By Emeka U. Opara
On 14th January 2020 the Supreme Court entered judgement in favour of Chief Hope Uzodinma in an appeal brought by him against Rt. Hon. Emeka Ihedioha, Governor of Imo State. By that judgement which has generated a lot of national and international relations, the Supreme Court ousted Rt. Hon. Ihedioha and ordered that Chief Uzodinma be sworn in as the Governor of Imo State.
On 5th February 2020 Rt. Hon. Ihedioha by his lawyers filed an application in which they called upon the Supreme Court to set aside “as a nullity” its judgement of 14th January 2020.
The application is predicated upon four grounds or reasons:
That the judgement of 14th January 2020 was a nullity in that the Supreme Court delivered it without jurisdiction (that is, without the power at law to so give that judgement) in that:
Under Section 140(2) of the Electoral Act 2010(as amended) the Supreme Court is forbidden to declare as winner somebody like Chief Uzodinma who had in his petition branded as invalid and not conforming with the Act the election he was challenging.
There was no proof, as required under Section 179(2) of the Constitution of the Federal Republic of Nigeria 1979 (as amended), that Chief Uzodinma met the required constitutional spread (which means having up to 25% of the votes cast in each of at least two-thirds of the 27 local government areas of Imo State).
That the judgement was obtained by fraud or deceit.
That the judgement was given per incuriam (a legalese which means, without paying heed to the required statutory provisions and earlier judgements that would have made it go the other way).
That the Supreme Court was misled by the Petitioner (Uzodinma) to enter the judgement.
In support of Rt. Hon. Ihedioha’s application his lawyers have filed an affidavit of 7 paragraphs, with Paragraph No. 5 containing 17 sub-paragraphs. From this affidavit we understand that on specific pages of the record before the Supreme Court Hope Uzodinma had admitted on cross-examination before the Tribunal that he authored by himself the table which the Supreme Court eventually relied on in awarding votes to him, that he allocated votes to himself and to Emeka Ihedioha but did not allocate to any of the other 68 candidates, and that that the number of votes he allocated to himself in the table are in excess of the registered voters in the polling units where he claimed he obtained the votes. There are some other revelations with reference to specific page numbers of the record:
The difference between the total number of accredited voters and the votes cast in the Governorship election in Imo State based on the judgment of the Supreme Court is 129,340 votes, something expressly forbidden by the Electoral Act.
In one breath the Petitioners had pleaded in their petition that the election did not conform to the Electoral Act and therefore should be annulled; in another breath they asked that supplementary election be conducted in the 388 units. Again, the 1st Petitioner asked to be declared Governor under the same election he impugned as not in conformity with the Electoral Act. The present application points the Supreme Court to some of its decisions where it held that granting such inconsistent reliefs to a petitioner was contrary to law and an “impossible feat”.
There was no pleading or evidence on record that elections were cancelled in 252 polling units as stated in the judgment of the Supreme Court. How this came into the judgement can only be a serious error.
Nowhere in his pleadings or in his evidence before the Tribunal did Hope Uzodinma state that he met the requirement of geographical spread as required by the Constitution. The Supreme Court gratuitously made such serious declaration in his favour void of pleadings and without evidence.
Also filed alongside the application is a written argument or brief. The Applicant in his brief started out by first drawing the attention of the court to the following points:
That notwithstanding the provisions of Section 285(7) of the Constitution (which stipulates that an appeal on an election matter before the Supreme Court must be heard and judgement delivered within 60 days of the delivery of judgement by the Court of Appeal), what is now brought before the Supreme Court is not an appeal but an application to set aside a judgement which was a nullity from the beginning. On this point the Applicant is relying on several cases decided by the Supreme Court itself to the effect that there is no time bar to bring an application to set aside a proceeding or judgement which is a nullity. According to the Applicant,
“We submit that a void act is a non-event. It creates or yields nothing for ex nihilo nihil fit. Consequently, it can never be too late to bring an action or an application to declare a void act a nullity and to have it set aside.”
The Applicant cites several Supreme Court decisions, including a recent decision of the Supreme Court delivered on 20th December 2019 in Uche Nwosu v. Action Peoples Party where the Supreme Court is said to have upheld this same principle. On the same principle, the Applicant goes further to cite the case of Mustapher v. Governor of Lagos State 2 NWLR (Pt. 58) 539 where Oputa, JSC stated that “[i]t can never be too late to admit and give effect to the plea that the judgement or orders was a nullity.”
That notwithstanding Section 235 of the Constitution which makes the decisions of the Supreme Court final and not amenable to appeals, the Court itself has affirmed in several decisions that there is an inherent power in every court of record to set aside its own judgement or order. This power, argues the Applicant, is “inherent” and the Constitution itself in Section 6(6)(a) recognizes it as prevailing over any contrary provision that may be contained in any other place in the Constitution or in any law. The Applicant argues further that the Supreme Court in a number of cases has identified five instances when the Court can exercise this inherent power to set aside its own judgement, four of which are applicable in the present circumstances. These instances are:
Where the judgement was given in the absence of jurisdiction.
Where the judgement was obtained by fraud.
Where the judgement was given per incuriam, in ignorance of or without regard to an existing law or decided case.
Where the court was misled to enter the judgement.
Where the procedure adopted was to deprive the decision or judgement of the character of a legitimate adjudication.
The Conclusion of the brief consists of very passionate closing remarks. This brief, under the hand of a silk, Kanu Agabi, SAN, CON, must take a place among the best briefs written in this country. In urging the Court to grant the application, the brief ends by first appealing to the justices of the Supreme Court to rise to the occasion and save the credibility of our courts. “There is no doubting the fact that your lordships, being human, will from time to time fall into error. Prove to the world that when that happens you will not lack the courage to correct yourselves. That is the unique opportunity that this case offers you”, the brief intones. Finally, it says,
“We respectfully urge your Lordships therefore to set aside the judgment … as prayed in our motion paper because as this Honourable Court rightly noted in ADEGOKE MOTORS v. ADESANYA (supra) ‘it is far better to admit an error than to preserve an error’. May it so please your Lordships.”
The Respondents to the application, Chief Hope Uzodinma and his party APC, are expected to file their own counter-affidavit(s) and brief(s). When that happens, Rt. Hon. Emeka Ihedioha will file a short reply brief on any points of law raised. The Supreme Court will then, on a date fixed, hear the application and subsequently hand out a ruling that will undoubtably be historic, and hopefully put to rest the controversy that has so much exercised our country’s judiciary.