Ihedioha’s application for review: dead on arrival.

MacDonald Kelechi Ebere BPhil, MA, MPhil, PhD (candidate).

I am starting this essay with a strong caveat; I am not a lawyer. However, it is a reasoned, rather than a legal opinion, and should be considered as such.

Given the current situation of things in Imo politics, it is very easy to follow the crowd and shout injustice. However, in order to make good sense of Rt. Hon. Ihedioha’s case, it is strongly recommended you study the following judgments on the case and make your conclusions:

• _Appeal Court majority judgment_
• _Appeal Court dissenting judgment_
• _Supreme Court judgment_

As a starting point, Rt. Hon. Ihedioha’s legal team recently approached the Supreme Court to _“… (set) aside as a nullity the judgment delivered by this Honourable Court on the 14th of January 2020 in Appeal No. SC.1462/2019 and Cross Appeal No. SC. 1470/2019”_. Rt. Hon. Ihedioha’s legal team advanced some reasons, which are considered below:

1. *There being a subsisting judgment of the court of appeal dismissing the petition incompetent continues to subsist as the appeal against that decision was not considered by this honourable court.*

In simple terms, the petition by Senator Uzodimma against Rt. Hon. Ihedohia’s emergence as the winner of the election was argued to be incompetent by Rt. Hon. Ihedohia’s legal team because they claimed that Senator Uzodimma came 4th in the last Imo gubernatorial election; and as such didn’t have the _locus standi_ (i.e. the right) to contest the election. The appeal court, in a cross-appeal, upheld this position by 4/5. The dissenting judgment by one of the appeal court judges (JCA Oho) dismissed the position. Rt. Hon. Ihedioha’s lawyers now argue that the decision of the 4 out of 5 judges of the appeal court on this case still stands, based on their claim that the _“…decision was not considered by this honourable court”_. As such, they further argue that the Supreme Court should have set aside this judgment first, before considering Senator Uzodimma’s appeal. But how true is their claim?

First, it is now on record that the Appeal Court judges who dismissed Senator Uzodimma’s Cross Appeal case worked from *a wrong assumption* that he came 4th and therefore didn’t have the _locus standi_ to challenge Rt. Hon. Ihedioha. It is obvious that Rt. Hon. Ihedioha’s lawyers have bought into this wrong assumption and, therefore, come to *a wrong conclusion* that the Supreme Court had no jurisdiction to hear Senator Uzodimma’s appeal and the Supreme Court’s judgment arising from it is a nullity. They appear to ignore the dissenting Appeal Court judgment on the case, which came to the view that _“… this Cross Appeal is moribund having failed woefully. It is accordingly dismissed”_. As such, is the said judgment, argued by Rt. Hon. Ihedioha’s lawyers, subsisting on the judgment of the 4 judges or the judgment of the dissenting judge? I guess they lawyers need to address this, first, as well before alleging lack of jurisdiction and nullity of judgment.

On the face value, nevertheless, it is easy to see the claim of Rt. Hon. Ihedioha’s lawyers as a matter of procedure, which could be argued to be a matter of technicality. Unfortunately for them, too, technicalities no longer have a place in our jurisprudence (based on the judgment of the same Appeal Court Judge, Adah, they are enthused about). Even if one was to countenance their alleged procedural mistake, the false assumption that Senator Uzodimma came 4th in the election needed to be unravelled and disposed of first, before the veracity of their claim could be ascertained. And that’s exactly what the Supreme Court did. It concluded _“…that the consideration of the appellants’ case *on a wrong premise* occasioned a miscarriage of justice”_ (emphasis mine). The Supreme Court, also, considered the Cross Appeal last in the sequence of things.

Based on the foregoing, it is very obvious that Rt. Hon. Ihedioha’s legal team is making a completely false claim. The Supreme Court actually considered the outcome of the cross-appeal, contrary to their allegation, and came to the view that: _“having regard to the resolution of Appeal No SC.1462/2019 in favour of the appellants, this cross-appeal is spent. It has become academic and is hereby struck out. Parties to bear their costs.”_

These were all very clear in the Supreme Court judgment. As such, one would be excused to wonder why Rt. Hon. Ihedioha’s lawyers think that the judgment of the lower court still subsists, if they are not simply being mischievous, misleading, and distracting.

2. *The judgement sought to be set aside is a nullity in that it was delivered without jurisdiction*
The reasons advanced here by Rt. Hon. Ihedioha’s legal team are at variance with what were either before the Supreme Court or Senator Uzodimma’s prayers. According to the Supreme Court: _“The issue fought between the parties to this appeal at the trial court was on the exclusion of votes scored by the appellants in 388 polling units from ward collation results (Form EC8B) which led to a wrong declaration of the 1st respondent as the winner of the election”._ It is, also, instructive to note that Senator Uzodimma did not contest the election itself. He was quite specific, as the Supreme Court stated. According to the Supreme Court:

_“A careful perusal of the appellants’ pleading reveals that they did not, at any stage challenge the holding of elections in any polling unit. I am of the view that this is crucial. Indeed, their contention was that elections held, they scored votes but their votes were excluded at the collation stage. The need to call the polling unit agents to prove that elections actually held in those polling units did not arise. The authorities of this court requiring the evidence of polling unit agents, polling unit by polling unit, are therefore not appliable (sic) in the circumstances. This is more so because the respondents, particularly the 3rd respondent denied excluding the votes scored by the appellants in the affected units. In other words, they did not contend that elections did not take place in the 388 polling units”._

It is therefore preposterous that Rt. Hon. Ihedioha’s team would resort to mere academic exercise, which the Supreme Court had already discountenanced, cautioned against, and dismissed.

Rt. Hon. Ihedioha’s lawyers further argue that the judgment sought to be set aside is a nullity in that:
3. *It was obtained by fraud or deceit*
4. *It was given per incuriam*
5. *This honourable court was misled to enter the judgment*

Disturbingly, these are of no extra value. Previous similar criminal allegations were made and considered by the courts and the Supreme Court came to the view that:

_“Having pleaded that the documents are false, the respondents made allegations of a criminal nature against the appellants. They were required to plead the specific elements of fraud and lead evidence showing the genuine results. Not only must the allegation be proved beyond reasonable doubt, it must also be proved that the appellants personally committed the forgery or aided and abetted the commission of the crime through their agents or officials. It is well settled that mere averment in pleadings do not constitute evidence. *See: Uchechukwu & Anor. Vs Barr. Uzama Simon Okpalake & Ors (2010) LPELR – 5041 (CA); Maihaja Vs Gaidam (2017) LPELR – 42474 (SC) @ 35-36 A –D; Audu Vs INEC (No. 2) (2010) 13 NWLR (Pt. 1212) 456*. Although they relied heavily on the assertion that Exhibits PPP1 – PPP366 were fake, no evidence was adduced to prove the assertion at all, let alone beyond reasonable doubt. The respondent failed to produce the “genuine” results as pleaded.”_

To repeat similar criminal allegations over again, is a clear disrespect and disregard for the rule of law and the Supreme Court. It also shows a lack of decency and decorum. Let it not be that Rt. Hon. Emeka Ihedioha has unwittingly decided to constitute a nuisance to the court, as a way to distract and undermine our democracy and judiciary. This will be very unbefitting of someone who claims to be a statesman and a democrat.

From the foregoing, Rt. Hon. Ihedioha’s case appears dead on arrival. The Supreme Court would be making a mockery of itself, which is very unlikely, should it reverse the judgment. The grounds are very porous, grossly weak, and disturbingly misleading. The odds, it seems, are very much against Rt. Hon. Ihedioha.

Imo State just needs stability and peace at this point in time! Rt. Hon. Ihedioha should not stand in the way. He should simply do the right and honourable thing, as his title suggests.

_Ebere is former Mayor Owerri Municipal Council, Imo State_