Imo: Can the Supreme Court Reverse Itself On Ihedioha?

Tomorrow, February 18, the Supreme Court will hear the appeal filed by Chief Emeka Ihedioha of the Peoples Democratic Party (PDP), asking it to review its judgement on the governorship election held on March 9, 2019, in Imo State.

The apex court fixed the date one month after it sacked Ihedioha on January 14 and declared the candidate of the All Progressives Congress (APC), Senator Hope Uzodinma, as the duly elected governor of Imo State.

But  now, with last Friday’s swearing in of Senator Douye Diri as the duly elected governor of Bayelsa State, after the nullification of the election of David Lyon of the APC by the Supreme Court, what naturally agitates the minds of critical observers is whether the PDP will still have the conscience and justification to continue with its case asking the apex court to reverse itself on the last Imo governorship election.

Since the Supreme Court nullified the election of Ihedioha and the emergence of Governor Uzodinma, the PDP had literally made Imo ungovernable even as they denigrate the apex court over their decision.

But Justice Kudirat Kekere-Ekun, who delivered the judgment of the seven-man panel led by Chief Justice Tanko Muhammad, made it clear that the votes due to Uzodinma were unlawfully excluded from 388 polling units.

Having decided that the exclusion of certain votes in his favour during the collation of votes at the governorship election in the state was illegal, the apex court went ahead to add the said votes which led to the victory of Uzodinma.

Justice Kekere-Ekun, therefore declared Uzodinma as the validly elected governor and ordered that the certificate of return issued to Ihedioha be withdrawn immediately and issued to the APC candidate in the election.

INEC had since obeyed the court order and Uzodinma was subsequently sworn-in, and had since continued to steer the affairs of the state.

But what is surprising in all of these is that since the declaration of Diri as governor of Bayelsa, many supporters of the PDP had been popping champagnes in celebration of the re-emergnce of their party in the oil-rich state. In their estimation, the Supreme Court did a good job by nullifying the election won by APC in the state and declaring one of their own as the governor of the state.

Many wonder why the PDP has continued to raise dust over the dispensation of justice by the apex court to Uzodinma in Imo State.

The PDP National Chairman, Prince Uche Secondus, while addressing a press conference on the judgment two days after it was delivered, said it must be reversed in the interest of justice.

To make good the threat from Secondus, Ihedioha and the PDP put together a team of lawyers who approached the Supreme Court to set aside its earlier judgment declaring Uzodinma as the winner of the Imo guber election.

But the qustion is -can the Supreme Court reverse itself? The argument is that under the doctrine of stare decisis, the apex court is bound by its previous decisions. Analysts contend that there had been cases where the judgment of the Supreme Court stunned a section of the public but the court didn’t reverse its judgment when approached.

Justifying the position, Senior Advocate of Nigeria (SAN), Chief Robert Clarke in examining the constitutionality of approaching the Supreme Court for a review of its judgment said it is  nearly impossible for the apex court to reverse itself on a case it has passed judgement on, revealing that only about three cases have been so reviewed in the history of Nigeria.

He said: “I have been privileged to appear in two television stations on this judgment. I am a bit conversant with all the facts of the case. I do not think that there is any reason to fault the judgment of the supreme court because the facts of the case were that certain evidence was laid at the tribunal and the tribunal admitted those documents on the basis that they have no evidential value.

“When it got to the court of appeal, one of the judges faulted the decision of the tribunal, saying it should have looked at the documents. The judge said they did not evaluate the evidence on technical grounds. The Supreme Court preferred the dissenting judgment of the appeal court. The Supreme Court agreed to sit as an original court, which the law allows them to look at the evidence. And that was what they did.

“It would be difficult to fault their judgment because they had the opportunity of looking at all the figures that were being disputed and they decided solely on the figures.”

Chief Clarke rather blamed the INEC for not playing its part at the Imo election tribunal, saying that at the stage the petitioner brought that evidence, the apex electoral body on its own should have challenged it, rather than claiming that it is not relevant.

He clarified that what the petitioner said was that INEC as an umpire should not have nullified those votes.

He said: “It was an indictment against INEC. INEC’s lawyer should have at that stage allowed the court to look at the document and challenge those figures. But they never did so. They were relying on technicalities – that the documents were dumped on the tribunal, forgetting that documents speak for themselves.

“If at the stage the petitioner dropped those documents INEC did not challenge it, the Supreme Court now said we want to look at it since they are relevant. They looked at it and got those figures. You can’t challenge how they got those figures.”

Clarke further explained that all over the world, where the common law is being practised, the apex court allows people to review their judgment. In Nigeria also, he said, the Supreme Court allows people to come and review judgment but not to challenge it as if appealing against the decision of the judges on the matter.

He said: “If they make the mistake to allow anybody to always come to the court to challenge their decisions, they would open a floodgate, where everybody will want to take advantage.  And that is why in Nigeria today, I don’t think there are more than three cases that have gone to the Supreme Court for review.  I am lucky I have done two of those cases in the history of the three that have returned to them.

A constitutional lawyer, Mr. Realwan Okpanachi, argued that the apex court no longer had the jurisdiction to entertain any application relating to the Imo governorship election, because it had clearly passed the 60 days provided for in the constitution. The lawyer cited Section 285 (7) of the constitution to support his assertion.

Okpanachi, said: “Section 285 (7) states that an appeal from a decision of an election tribunal or Court of Appeal in an election matter shall be heard and disposed of within 60 days.”

He added: “The judgment in particular was delivered by the Court of Appeal before November 20, 2019. The appeal by Uzodinma was filed around November 20, 2019, and that is to say that the judgment was passed before November 20, 2019.
“When you calculate from November 20, 2019 till date, it clearly shows that it is above 60 days.”

Okpanachi said the Supreme Court cannot entertain, hear, determine any appeal or application connected with that election appeal.

“The judgment, as it is, is binding, conclusive and cannot be set aside, reversed or touched by any person, including the Supreme Court itself. 

The Supreme Court is the apex court; the highest court in Nigeria and its decision, by virtue of the constitution of the Federal Republic of Nigeria, is final. Therefore, its decision is not subject to any other authority or persons”, he said 

In the estimation of many, Okpanachi was right if existing precedents are anything to go by. On November 2, 2009, the Supreme Court dismissed Celestine Omehia’s application seeking review of its judgment of October 25, 2007, which removed him and declared Rotimi Amaechi as the governor of River State. 

Amaechi won Rivers State PDP governorship primary in December 2006 but was substituted with Omehia. Early in 2007, Amaechi filed a suit challenging his substitution against the April 14, 2007 elections. The Court held that Amaechi was wrongly substituted with Omehia by PDP and that in the eyes of the law, Amaechi who didn’t contest the election was at all times the legal candidate of PDP at the elections, and proceeded to declare him as Governor of Rivers State.

So, many argue that the Imo guber case is a forgone conclusion and Chief Ihedioha is merely embarking on an academic exercise by approaching the Supreme Court to reverse itself. That would amount to the apex court swallowing its own vormit.

The thinking in many quarters is that there is really nothing left for Ihedioha to rely upon in pursuit of the case. The strongest of the argument is that the Supreme Court is the last court of the land; meaning that after it, no other court is available to a party for further action. The understanding is that in order to avoid a situation where a case may never end, the same court is not expected to review its rulings after delivering judgment. Put differently, a Court cannot sit as an appellate Court over its decision and has no business returning to a case it has already concluded.

Analysts also argue that with Thursday’s victory of the PDP in Bayelsa and jubilation of its members over the decision of the Supreme Court, it would be a contradiction for the opposition party to still wish that the apex court  reverses itself. In the estimation of many, what is good for the goose is good for the gander.

Speaking on Ihedioha’s request and tension being generated by the PDP since the declaration of Uzodinma, the Chief Press Secretary to the governor, Oguike Nwachukwu cautioned that what the opposition party is denigrating today, it would still need its services tomorrow.

He said: “The request for the Supreme Court to reverse itself is a road that will lead to nowhere. The PDP should know that the Supreme Court is not a market where you go to buy judgements. I wonder why the party wants to bring down the entire judiciary and country at large for the simple reason that a case was decided against it.

“Thesame party that is happy with the Supreme Court for declaring its candidate, Diri, winner in Bayelsa just last Thursday, denigrates thesame institution for a well thought out decision that saw the emergence of Uzodinma in Imo.”

Written by: Wilfred Eya