Wednesday, 19 February 2020
Special Report: "There Is No Doubting The Fact That Your Lordships, Being Human, Will From Time To Time Fall Into Error"
(Being Address To The Supreme Court Of Nigeria By Kanu Agabi(SAN), Lawyer to Supreme Court Ousted Former Governor Of Imo State, Emeka Ihedioha On February 18th, 2020).
There is no denying that this is a time of crises in our country. At this, of all times, our Supreme Court has been afforded this unique opportunity of allaying the fears of those who cast aspersions on the credibility of our courts. Those who mean well for the nation will agree that we have here an opportunity for the Supreme Court to mitigate the rising unpopularity of our courts and to rehabilitate her damaged reputation and restore the good name of the judiciary by setting aside this judgment which seems to us to be a nullity. We may be quite wrong. In that case, please, forgive us. Your verdict in this matter should match the solemn oath you have taken.
Remember that every decision of this honourable court involves the good name of the judiciary. Prove to the world that this court is sacred. Let your verdict help to retain the good graces of our people.
It is owed to the work of this Supreme Court that the nation continues to survive. It is that work that give us the confidence to present this application. That you are willing to reconsider your decision gives you honour and glory. We come before you firmly convinced that you will act in aid of the cause of justice. In this application we appeal to you, we urge you, we beg you to preserve the glorious reputation of this court. We appeal to you to prove wrong all those who have an evil opinion of our judiciary. Here is a great opportunity for your Lordships to act. Free the judiciary from suspicion. Give no one cause to despise our courts. Prove to the world that you are the equals of the courts of other nations. Remember always that as you sit in judgment over us, so the nation sits in judgment over you. And you should worry, not just over the judgment of this generation, but also the judgment of generations to come when none of us will be alive to defend our actions.
There is no doubting the fact that your Lordships, being human, will from time to time fall into error. Prove to the world that when that happens you will not lack the courage to correct yourselves. That is the unique opportunity that this case offers you.
The nation thinks well of your lordships. Prove to the nation that our good thoughts of you are justified and are well deserved. There is not upon this bench a single judge who has been disloyal to his oath or who has a bad reputation. Stand up for the judiciary and for yourselves. Stand up for truth. Stand up for justice. Stand up for strict and honest interpretation of the laws. Take that stand for which the nation can praise you and commend you.
The position that you hold demands that you do so. It is the great precedents that your Lordships have established that we appeal to you to follow. The nation expects you to deliver an honest verdict, a correct verdict. Prove to the nation that here in this Supreme Court a man or woman who has lost his rights will be given the opportunity to bewail it. What is at stake in this case is not only the right that the Applicants have lost but the good name of the judiciary as well. What we call upon you to do is nothing new. It is something that you have done times without number in the past. Those occasions that you reversed yourselves in the past were not more urgent than it is now. Never in the history of this court have your Lordships delivered a judgment which evoked the protest of the public. This one has. Therefore, we urge you, we appeal to you to take a second look at it.
Those who in their wisdom established this court made it supreme thus expressing their determination that litigation should come to an end. And so this court is supreme, as you have yourselves said, not because you are infallible but because your decisions are final. Whatever you say the law is that is what it shall be. And that is why your Lordships are ever so careful to ensure that your decisions stand the test of time and are not open to any justifiable condemnation or suspicion.
The just decisions of this Supreme Court immortalize your Lordships who deliver them. It is important therefore that you commit nothing to writing that generations to come, long after we are all dead and gone, will examine and criticize and condemn as unjust and unjustifiable. That has been the lot of the Athenian jury which condemned Socrates. That has been the lot of Pontius Pilate who, having found no guilt in our Lord and Saviour Jesus Christ, nevertheless ordered that he be crucified. It is precisely to save judges from that kind of predicament that the law allows them in appropriate cases to correct their own mistakes or set aside altogether decisions that are a nullity. It is that opportunity that we urge your lordships to take in this case and re-examine the judgment which we urge you to set aside on the ground that if you re-examine it dispassionately you will find reason to set it aside and thereby demonstrate to the world that you have courage to correct yourselves when you find that you have erred.
In this case a man who himself branded the election in which he participated as invalid has been adjudged by your Lordships as the winner of the same election. That is in the face of past and innumerable decisions by your Lordships that if such a ground succeeded it should lead to the nullification of the election. In this case, the man you declared as winner of the election specifically prayed that your Lordships should nullify the result of elections in the entire State and that your Lordships order that a fresh election be conducted.
Your Lordships also declared as winner a man who prayed your Lordships to order a re-run election in all the 388 polling units where elections and results were cancelled or not declared.
Your Lordships ordered victory for a man who admitted under cross examination that in polling unit after polling unit, he awarded to himself more votes than the total number of registered voters in those polling units.
Your Lordships accepted votes from 388 polling units presented by the 1st Respondent which had the consequence of swelling-up the total number of votes scored in the election way beyond the total number of accredited voters. The excess votes between the total votes scored and the total accredited voters are 129,340 votes – a clearly impossible situation and brazen illegality under our electoral law. (Underlining supplied)
Your Lordships declared the 1st Respondent as winner of the election when your Lordships did not satisfy yourselves that the 1st Respondent scored enough votes across the various local government areas of Imo State to satisfy the geographical spread as decreed by the Constitution.
Based on the foregoing, we submit that the judgment delivered by this Honourable Court on 14th January 2020 in Appeal No. SC.1462/2019 and Cross Appeal No. SC.1470/2019 is a nullity because –
The judgment was delivered without jurisdiction in that the court declared the 1st Respondent as the winner of the election contrary to section 140 (1) and (2) of the Electoral Act (as amended)
The judgment is unconstitutional in that it declared the 1st Respondent the winner of the election without proof that the votes accredited to him met the geographical spread stipulated in section 179 (2) of the Constitution of the Federal Republic of Nigeria 1999 (as amended)
The judgment was obtained by fraud in that the votes upon which the 1st Respondent was declared as the winner of the election were in excess of the number of voters accredited for the election.
The judgment was given per incuriam as your lordships by this judgment unwittingly sanctioned that total votes cast at an election can be in excess of the total number of accredited voters, as in this case, the total votes exceeded the total accredited voters by 129,340 votes.
Furthermore, the judgment was given per incuriam in view of the 1st Respondent’s contention that the election was invalid by reason of non-compliance with the provisions of the Electoral Act 2010 (as amended) whereupon he prayed that a supplementary election should be held in the 388 disputed polling units where he claimed his votes were cancelled.
We respectfully urge your Lordships therefore to set aside the judgment in Appeal No. SC.1462/2019 and Cross Appeal No. SC.1470/2019 as prayed in our motion paper because as this Honourable Court rightly noted in ADEGOKE MOTORS v. ADESANYA (supra) “it is far better to admit an error than to preserve an error”.
May it so please your Lordships. ____________________
Kanu Agabi, SAN, CON
Dr. Onyechi Ikpeazu, SAN
J. T. U. Nnodum, SAN
K.C.O Njemanze, SAN
S. I AMEH, SAN.
Emeka Etiaba, SAN
Chief Umeh Kalu, SAN
Emeka Okpoko, SAN
L. M. Alozie, SAN
Essien H. Andrew, SAN
S. A. Anyalewechi, Esq.
A. S. Ogujiofor, Esq.
Uchenna Njoku, Esq.
Kanu G. Agabi & Associates.
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