By Ikechukwu Nnochiri
The Supreme Court, on Tuesday, declined to restore Emeka Ihedioha of the Peoples Democratic Party, PDP, as the Governor of Imo State.
The apex court, in a decision by a seven-man panel of Justices led by the Chief Justice of Nigeria, CJN, Justice Tanko Muhammad, reinstated the judgement it gave on January 14, which declared Hope Uzodinma of the All Progressive Congress, APC, as the validly elected governor of Imo state.
In the lead verdict that was delivered by Justice Olukayode Ariwoola, the apex court, held that Ihedioha’s application to set-aside the judgement that removed him from office lacked merit.
It held that the application was an invitation for the Supreme Court to sit on appeal over its own final judgement.
However, a member of the apex court panel, Justice Centus Nweze, disagreed with the lead verdict and gave a dissenting opinion that allowed Ihedioha’s application.
Nweze said he was satisfied that the judgement that declared Uzodinma winner was entered in error.
While dismissing Ihedioha’s case, Justice n his lead verdict, Justice Ariwoola, held that section 235 of the 1999 constitution, as amended, accorded finality to the judgement that declared Uzodinma winner.
The apex court said it decided to discountenance the preliminary objection Uzodinma filed against Ihedioha’s application so as to decide the matter on its merit.
Justice Ariwoola said: “There is no doubt that the judgement of this court being sought to be set-aside for being a nullity was delivered on the 14th of January, 2020. The judgement is a final judgement of this court as prescribed by section 235 of the constitution.
“The appeal was adjudged to be meritorious and was allowed and the judgement of the lower court which affirmed the judgement of the Governorship Election Petition Tribunal was set-aside.
“By the provisions of the Rules of this court, it shall not review any judgement once given and delivered by it, except to correct any clerical mistake or error arising from any accidental slip or omission, or to vary a judgement or order so as to give effect to its meaning or intention.
“The judgement or order shall order shall not be varied, when it correctly represents what the court decided, nor shall the operative or substantive part of it be varied and in different form substituted. See order 8 Rule 16 of the Rules of this court”.
Insisting that the judgement of the apex court on the Imo state governorship dispute remained final, Justice Ariwoola said the law may be amended in future to affect issues on the same subject, saying “but for that case decided, that is the end of the matter”.
According to him, “It is settled law that this court has no power to change or alter its own judgement or to sit as an Appeal Court over its own judgement.
“There is no doubt that the court has inherent powers in respect of matters under its inherent jurisdiction. It certainly has no inherent powers to assume jurisdiction in respect of matters not within its jurisdiction.
“It is clear, from the tone and the wordings of the instant application, that what is being sought, is asking this court to sit on appeal over its own judgement already delivered and executed. That is certainly beyond the competence of this court. It is not disputable that the jurisdiction of this court is derived from the Constitution and Acts of the National Assembly.
“There is no constitutional provision for the review of the judgement of the Supreme Court by itself. Therefore, once it delivers its final judgement, the Supreme Court, subject to the stiff Rule principle, becomes functus-officio with respect thereof”.
He noted that the apex court had on February 26, considered and also dismissed a similar application that was brought with respect to the Bayelsa State governorship election.
Justice Ariwoola emphasized that Order 8 Rule 16 of the Supreme Court Rules, used the word “Shall not”, which he said was a statutory provision that it must not review its final judgement except under the prescribed circumstances in the Rules.
“The finality of the decision of the Supreme Court is entrenched in the constitution, therefore, once the decision of the court is clear, it is final in the sense that the thrust of the ratio decidendi is manifest in it.
“Inherent powers of the court can only be invoked when there is a missing link in the body of the judgement and some steps must be taken to fill in the gaps so that justices of the issues will be clear.
“That is why this court can sometimes be called upon to dot the I’s and fill the gap in the slip apparent in the judgement, otherwise, the court cannot under the guise of so called inherent powers, alter a clear and unambiguous judgement, once given.
“The finality of the decision of the Supreme Court in civil proceedings is absolute. Unless specifically set-aside by later legislation. The justices that man the court are off course fallible, but their judgements are as the constitution intends, infallible.
“Therefore any ingenious attempt by counsel to set-aside or to circumvent the decision of the decision of the Supreme Court will be met with stiff resistance.
“Without any further ado, this application is considered lacking in merit and liable to be dismissed. To ask us to set-aside the judgement of this court delivered on 14th of January is an invitation to ask us to sit on appeal over our own judgement and we cannot do so.
“To set-aside the judgement in the instant circumstance is to open the floodgate for applications by parties to review judgements of this court. To do that, is to say the least, bring the court to disrepute and ridicule. In the circumstance, this application is accordingly dismissed.
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“Even though cost will ordinarily follow events, parties are to bear their respective costs”, Justice Ariwoola held.
Meanwhile, in his dissenting judgement, Justice Nweze, held that the Supreme Court had no jurisdiction to entertain Uzodinma’s appeal since his substantive petition was struck out by the lower court for want of competence.
He held that in absence of any clear order of the Supreme Court on the decision of the appellate court that dismissed the petition, it was wrong to declare Uzodinma winner.
Justice Nweze held that the Supreme Court was constitutionally empowered to in the interest of justice, set-aside its judgement that was entered in error.
“This court has the powers to overrule itself and had done so in the past”, he held.
He said it was “clearly preposterous” to award Uzodinma victory of an election that he contended was invalid.
Justice Nweze said he was convinced that Uzodinma awarded “mysterious” votes to himself in 388 polling units, but failed to make any reference to votes that accrued to other candidates.
Besides, he noted that accurate computation of votes Uzodinma awarded to himself showed that his votes exceeded the number of validly accredited voters.
He alleged that Uzodinma “highjacked” the duty of INEC by personally computing results for himself without adducing any record of how the voters were accredited.
Justice Nweze held that Uzodinma “misled” the Supreme Court into accepting “fake results”, adding that votes he awarded to himself was about 129, 300 in excess of the total number of accredited voters.
He held that the apex court, having had its attention drawn to the error in its judgement, “had the humble duty of redeeming itself by setting aside its judgement” in line with section 179 (2) of the constitution.
He held that the erroneous judgement if allowed to stand, “it will continue to hunt the electoral jurisdiction in the country”, saying the Appellant (Uzodinma) misled the court to declare him winner without satisfying the constitutional requirement.
Consequently, Justice Nweze vacated the January 14 judgement that declared Uzodinma winner.
He ordered Uzodinma to immediately return the Certificate of Return that was issued to him by INEC, directing the issuance of a fresh one to Ihedioha as winner of the Imo state governorship election.
Justice Nweze further commended Ihedioha’s legal team for their “boldness and courage” in approaching the apex court to set-aside a judgement it entered in error.
Ihedioha and the PDP had through their lawyer, Chief Kanu Agabi, SAN, urged the apex court to review and set-aside the judgement they argued was entered in error.
Arguing the case, Agabi, SAN, prayed the court to correct a mistake he said occasioned a great miscarriage of justice against his clients.
“We are not here to challenge the authority of this court. We respect the supremacy of this court and we recognise that your judgement is final.
“If we can go to God in prayer to change his mind, so also we have come before this court to change its mind”.
He contended that judgment of the Court of Appeal that struck out Uzodinma’s petition for being incompetent, was not decided by the Supreme Court.
Agabi noted that whereas only results from 366 polling units was in issue, the apex court panel, erroneously made reference to 388 poling units.
He queried the whereabout of the balance of results from 22 polling units in the state, saying “no indication was given as to what the results were in respect of the 22 polling units.
“It was a fatal error”, Agabi submitted, adding that from the computation of the apex court, the total number of votes cast at the election exceeded the total number of accredited voters by over 100, 000 votes.
Besides, Agabi argued that Uzodinma had in his substantive petition before the Imo State Governorship Election Petition Tribunal, maintained that the gubernatorial contest that held in the state on March 9, 2019, was invalid by reason of corrupt practices and non compliance with the Electoral Act.
Ihedioha’s lawyer therefore contended that it was wrong for the apex court to declare Uzodinma winner of an election he adjudged to be flawed.
“He got a benefit for what he did not seek”, Agabi added, even as he urged the apex court to set-aside its judgement that favoured Uzodinma and the All Progressive Congress, APC, and restore the Court of Appeal verdict that affirmed Ihedioha as the valid winner of the Imo state governorship election.
He insisted that the Supreme Court was adequately empowered by section 6(6) of the 1999 Constitution, as amended, to reverse itself on the matter.
“My lords, when I was a child my father will beat me to cry and also beat me to stop. My Lords please we are crying, do not treat us like my father did. I urge you set aside that judgement.
“My lords are human and can make mistake, but the law has given you power to correct yourselves so that your mistakes are not immortalized”, Agabi pleaded.
Meanwhile, Uzodinma and the APC, through their lawyer, Damian Dodo, SAN, urged the Supreme Court to dismiss the application and re-affirm its earlier verdict that sacked Ihedioha from office.
“There is a total lack of jurisdiction on this court to revisit its judgement of January 14. Whether the application is characterised as an application for review or classified as an application to set-aside, or howsoever it is dressed.
“This court has consistently and rightly so, held that there is a lack of jurisdiction to sit on appeal over its judgement”, Dodo submitted.
He argued that there was no clerical error or accidental slip to be corrected in the judgement that removed Ihedioha from office.
“In this case, there is no doubt whatsoever about the decision of this Court. Therefore, the invitation to review or set-aside is not tenable. The dignity of this court must be respected.
“The application is incompetent and should be dismissed because there is no jurisdiction. It is a deliberate invitation for this court to sit on appeal over its judgement and the law does not allow that.
“The question of conflicting or inconsistent reliefs does not arise in this matter, it is already too late in the day for the Applicants. The judgement of this court had clearly set-aside the decision of the lower court in all its ramifications. The argument that there is an aspect of the lower court decision striking out the petition that was not considered by this court, is totally untenable.
“The order of this court setting aside the decision of the lower court was a tsunami. It was a clean sweep. We therefore urge my lords to sustain our preliminary objection and dismiss this application as an abuse of court process”, Dodo added.
He further contended that the application was constitutionally barred as it was brought outside the 60 days period prescribed under section 285 (7) of the Constitution.
On its part, INEC, through its lawyer, Mr. Taminu Inuwa, SAN, said it would abide by the decision of the court.