Why Uzodinma vs Ihedioha is most discussed gov’ship judgment of S/Court

The Senator Hope Uzodinma, All Progressives Congress (APC) -Appellants, and Rt Hon. Emeka Ihedioha, Peoples Democratic Party (PDP) and Independent National Electoral Commission – Respondents, SC.1462/2019 case became a landmark decision of the Supreme Court of Nigeria because it redefines several principles of election petitions law in Nigeria. The apex court heard appeals challenging the […]

The Senator Hope Uzodinma, All Progressives Congress (APC) -Appellants, and Rt Hon. Emeka Ihedioha, Peoples Democratic Party (PDP) and Independent National Electoral Commission – Respondents, SC.1462/2019 case became a landmark decision of the Supreme Court of Nigeria because it redefines several principles of election petitions law in Nigeria.

The apex court heard appeals challenging the elections of 21 state governors over the March 9 and 23, 2019 governorship elections. Only the election of Ihedioha was nullified in favour of Uzodinma. The judgment became not only the most misunderstood, but also the most discussed and controversial in the just concluded governorship election petitions appeals in Nigeria.

The Chief Justice of Nigeria, Justice Tanko Muhammad, leading six others – Justices Sylvester Ngwuta, Olukayode Ariwoola, Kudirat Kekere-Ekun, Amiru Sanusi, Amina Augie, and Uwani Abba-Aji – cemented a case law that where a petitioner claims that there were anomalies in the polling units of an election, the onus lies on him or her to call witnesses to demonstrate these.

Thus, unlike in the case of Atiku Abubakar, PDP and INEC, Muhammadu Buhari and APC; and Alex Otti, All Progressives Grand Alliance (APGA) and INEC, Okezie Ikpeazu and PDP, where the apex court declared the documents tendered without adducing sufficient testimony as “dumping”, Uzodinma, “case was that votes lawfully earned were unlawfully excluded from the collation at ward level.”

Explaining this principle further, Justice Kekere-Ekun, who read the lead judgement said, “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 the court requiring the evidence of polling unit agents, polling unit by polling unit, are therefore not applicable in the circumstances. This is because the 3rd respondent (INEC) 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.”

Crux of Uzodinma’s appeal

Uzodinma and APC contended that election held in 27 LGAs, 305 electoral wards, and 3,523 polling units. He stated that INEC cancelled results in 252 polling units, collated results from 3,883 polling units and excluded results from 388 polling units – the results of which were excluded in EC8B.

He claimed that he scored 213, 695 votes in the 388 units and Ihedioha only got 1,903 votes from the same result, adding that he was denied victory by reason of wrong computation of votes. He contended that Ihedioha was not validly elected and that his election was invalid by reason of non-compliance with the Electoral Act.

Uzodinma, through his lead counsel, Damian Dodo (SAN), called collation agents PW11, PW51 and PW54 and 28 other witnesses to prove the results of the 388 polling units contained in Exhibits PPP1-PPP366. He contended that the lower courts drew a wrong inference from the evidence before the court and reached a wrong conclusion. He asked the court to exercise its powers under Section 22 of the Supreme Court Act “to consider, evaluate and give probative value to the documents.”

Dodo further submitted at the trial that the respondents extracted evidence from PW41, PW43, PW45, PW46, PW47 and PW 49 under cross examination confirming the presence of police officers in their units, thereby illustrating the relevance of the evidence of PW54, who tendered exhibits on the ground that PW54 lacked the competence and authority to testify and tender the said documents.

He noted further that the lower court upheld their appeal against the rejection of the documents and held that PW54 was properly before the court as a subpoenaed witness but refused to accord the exhibits any probative value, relying on extraneous grounds without affording them a hearing.

He contended that the PDP and Ihedioha did not tender any result for the election in the 388 polling units in issue to contradict the duplicate originals of the results tendered by the appellants even though their fifth witness (RW5) admitted that men and materials were deployed to the 388 polling units for the election. He submitted that the duplicate originals of Form EC8A tendered by the appellants enjoyed the presumption of regularity and the duty to rebut same was on the respondents.

He argued that the parties did not join issues as to whether elections held in the various polling units which by Section 168(1) of the Evidence Act confers presumption that election held there.

Ihedioha, PDP, INEC reply

Lawyers to Ihedioha and PDP, Onyechi Ikpeazu (SAN) and Ken Njemanze (SAN) contended from the tribunal and the Court of Appeal that none of the witnesses made or witnessed the making of the result sheets and that the allegation of exclusion cannot be proved without calling the relevant polling agents from the affected polling units. They added that the lower courts were right in not attaching any evidential value to them.

They had argued that the onus was on Uzodinma and APC to call the INEC officials including the presiding officers who purportedly made the 388 pink copies of the polling units’ results to testify that they issued those results.

INEC, through its counsel Eke Ejelam (SAN) had claimed that the results of the 388 polling units by Uzodinma was forged, and that they were not tendered by INEC officials.

Also, on January 10, PDP’s counsel, Ikpeazu had brought a motion seeking to disqualify Uzodinma based on the Supreme Court’s judgment on December 20, 2019 that Uche Nwosu of Action Alliance was also nominated as candidate of the APC. He contended that having agreed that Nwosu’s dual nomination was invalid, null and void and violation of Section 37 of the Electoral Act, 2010 (as amended), the APC also nominating Uzodinman as its candidate for the same election, was invalid.