As the uproar over the January 14 judgment of the Supreme Court that ousted ex-Governor Emeka Ihedioha from office continues unabated, his lawyer and erstwhile Attorney General of the Federation and Minister of Justice, Kanu Agabi (SAN) has identified some areas he alleged the court was misled into arriving at it’s decision.
In his papers before the apex court seeking for setting aside of the judgment, Agabi observed that the beneficiary of the judgment, Governor Hope Uzodinma failed to plead the votes scored by all the parties in the 388 affected polling units, as it was only the votes scored by him that were pleaded – an omission he said, rendered the petition incompetent.
He submitted that the consequence of this omission was that the apex court was misled into making a vague order directing the inclusion of votes from the 388 polling units without stating or specifying the particular number of votes to be included from those polling units for all the parties.
Agabi added that “without computing the votes for all the parties from the 388 polling units this honourable court was misled into making a declaration that the 1st Appellant/Respondent was the winner of the gubernatorial election in Imo State – an election that the Appellants/Respondents had themselves branded or stigmatized as invalid on account of non-compliance.
In a motion on notice filed pursuant to section 6(6) of the 1999 constitution, section 22 of the Supreme Court Act, 2004, and the inherent jurisdiction of the court, Iheadioha is seeking the setting aside the judgment on the ground that it was obtained by fraud.
The motion which was filed by the legal team of the former governor headed by Chief Kanu Agabi (SAN), was in respect of appeals Nos: SC. 1462/2019; SC/1470/2019; CA/OW/GOV/05/2019and petition No: EPT/GOV/IM/08/2019, between Senator Hope Uzodinma, All Progressives Congress (APC) and Rt. Hon. Emeka Ihedioha, People’s Democratic Party (PDP) and Independent National Electoral Commission (INEC).
It is the contention of Ihedioha that the judgment of the Supreme Court ought to be set aside as it us a nulity obtained by fraud.
On this ground, Ihedioha submitted that “the Appellants/Respondents (Uzodinma), fraudulently misled this court into holding that a total of 213,495 votes were unlawfully excluded from the votes scored by the 1st Appellant/Respondent in the gubernatorial election of 9th March 2019 in Imo State.
“In aaddition, it is the position of the former governor that the apex court gave the judgment without jurisdiction.
On this point, he argued that having regard to section 140(2) of the Electoral Act (as amended), the Appellants/Respondents divested this Honourable Court of the relevant jurisdiction to declare the 1st Appellant/ Respondent as the winner of the gubernatorial election conducted in Imo State on the 9th day of March 2019 by branding or stigmatizing the entire election as invalid.
“This Honourable Court had no jurisdiction to declare the 1st Appellant/Respondent as elected in an election petition which was based on two inconsistent and mutually exclusive grounds, to wit, (i) that the 1st Applicant was not duly elected by majority of lawful votes cast at the election, the implication of which is that the majority of votes cast at the election were valid; and (ii) that the election was invalid for non-compliance with the Electoral Act, the implication of which is that the election be annulled.
This Honourable Court did not have the jurisdiction to declare the 1st Appellant/Respondent as elected in the absence of any proof that the votes ascribed to him met the mandatory geographical spread stipulated in section 179 (2) of the Constitution of the Federal Republic of Nigeria (as amended).
This Honourable court did not have the jurisdiction to declare that the 1st Appellant/Respondent met the constitutional geographical spread without providing in its judgment the reason(s) for that conclusion.
The apex court had in a unanimous judgment delivered on January 14, removed Ihedioha on the grounds that he did not win a majority of the votes cast in the March 9 governorship election.
The court said Ihedioha was returned as governor of Imo State based on wrong computation of the election results in the state.
In the lead judgment delivered by Justice Kudirat Kekere-Ekun, the court voided the concurrent decisions of the tribunal and Court of Appeal, which had declared Ihedioha winner of the poll on the grounds that they both failed to take into account votes from 388 polling units in the election.
Justice Kekere-Ekun said that the lower court misconstrued the case of the appellants that he was challenging the validity of the election whereas he was challenging the unlawful exclusion of votes in the 388 polling units.
In addition, the court held that the excluded votes from the 388 polling units be ascribed to the appellants.
Consequently the apex court ordered the Independent National Electoral Commission to withdraw the Certificate of Return issued to Ihedioha and issue a fresh one to the candidate of the APC, Uzodinma, on the grounds that he won majority of lawful votes cast in the election.