Sunday, 26 January 2020

Was the Supreme Court right in Hope Uzodinma v Emeka Ihedioha?

By Larry C. Nkwor

In a controversial Judgment delivered on the 14th of January 2020, the Supreme Court upheld the appeal of Hope Uzodinma (1st Appellant) and the All Progressive Congress (2nd Appellant) declaring Uzodinma as the duly elected Governor of Imo State in the Governorship Election conducted in Imo State on the 8th of March 2019. I have read the  Judgment carefully and  I am of the view that the Supreme Court was wrong in arriving at the judgment occasioning a miscarriage of justice. In this article, I have examined the major parts of the Judgment which I believe is perverse.


1. Admissibility of the Election Results Proposed by the Appellant
It was the Appellants' contention that the 3rd Respondent, INEC excluded results from 388 polling units. They claimed that they scored an overwhelming majority from the 388 polling units, the result of which was excluded from ward collation results. The Appellants contended that the total  votes due to the Appellants  from the 388 polling units was 213,695 while the  1st Respondent, Emeka Ihedioha was entitled to only 1,903 from the same 388 polling units. The documents  which showed the excluded results as proposed by the Appellants were tendered through PW54, a Deputy Commissioner of Police. The Supreme upheld the admissibility of these documents and gave probative value to it.

I disagree with the Supreme Court on the Admissibility of the documents tendered through PW54 on the ground that PW54 was not the maker of the said documents.

Section 83(1) of the Evidence Act 2011 provides that:

In any proceedings where direct oral evidence of a fact would be admissible, any statement made by a person in a document which seems to establish that fact shall, on production of the original document, be admissible as evidence of that fact if the following conditions are satisfied -

(a) if the maker of the statement either -

(i) had personal knowledge of the matters dealt with by the statement, or

 (ii) where the document in question is or forms part of a record purporting to be a continuous record, made the statement (in so far as the matters dealt with by it are not within his personal knowledge) in the performance of a duty to record information supplied to him by a person who had, or might reasonably be supposed to have, personal knowledge of those matters; and

 (b) if the maker of the statement is called as a witness in the proceedings:

This means that the makers of the document must be called to tender the said document for it to be admissible. The onus was on the Appellants to call the INEC officials who purportedly made the 388 copies of the polling results to testify that they made the result. The documents tendered by PW54 were of no evidential value since it was not tendered by their makers.

It must be noted that section 83(1) of the Evidence Act contains an exception in a proviso:

"Provided that the condition that the maker of the statement shall be called as a witness need not be satisfied if he is dead, or unfit by reason of his bodily or mental condition to attend as a witness, or if he is outside Nigeria and it is not reasonably practicable to secure his attendance, or if all reasonable efforts to find him have been made without success"

The Appellants didn't make use of this exception neither was any reference made to this proviso in the Judgment.

Section 83(4) of  the Evidence Act further provides that:
For the purposes of this section, a statement in a document shall not be deemed to have been made by a person unless the document or the material part of it was written, made or produced by him with his own hand, or was signed or initialed by him or otherwise recognised by him in writing as one for the accuracy of which he is responsible

The Supreme Court Shouldn't have relied on the evidence of PW54 since he didn't make or witness the making of the document. PW54 was not the right person to tender Exhibits PPP1 - 366.


2.  Burden and Standard of proving that the documents were fake or forged

The Supreme Court was right when it held that the burden of proving forgery was on the Respondents. The Respondents made criminal allegations against the Appellants when they alleged that the documents tendered by the Appellants to show the true results were forged. However the Court erred in law where it stated that allegation must be proved beyond reasonable doubt.

 Section 135(3) of the Evidence Act provides that:

"In election matters, whether the commission of crime is in issue or not, proof shall be on the preponderance of evidence or balance of probabilities"


3. Failure of the 3rd Respondent (INEC) to tender genuine results

The Supreme Court rightly held that the genuine result as purported by the 3rd Respondent ought to have been tendered by them. The court referred to paragraph 12(2) of the First Schedule to the Electoral Act 2010, (as amended). It provides:

"Where the Respondent in an election petition complaining of an undue return and claiming the seat or office for a petitioner intends to prove that the claim is incorrect or false, the respondent in his reply shall set out the facts and figures clearly and distinctly disproving the claim of the Petitioner"

The Respondents ought to have tendered what they claimed to be the genuine result. The failure of the Respondents in this regard might have decimated their case. However, I agree with the Learned Senior Counsel for the 2nd Respondent, K.C.O Njemanze SAN where he submitted that that since the Appellants were seeking declaratory reliefs, they must succeed on the strength of their case and not on the weakness of the defence. This brings us to the last issue which is the Crux of the matter


4. Crux of the Matter

The crux of the matter was whether the 1st Respondent was validly elected by majority of lawful votes cast. The Supreme Court shouldn't have relied solely on the evidence that votes lawfully earned were excluded from the collation at the ward level.

The Learned Counsel for the 1st Respondent submitted that the evidence of PW11 and PW51 and the tabulation of scores relied in the pleading in fact contradicted the case of the Appellants by revealing inconsistencies of number of votes vis a vis the number of registered voters. The Learned Counsel for the 2nd Respondent also alleged that the Appellants' pleadings were contradictory and unreliable in terms of calculation of scores allegedly excluded. The Supreme Court failed to  rule on both assertions. These assertions ought to have been crucial in the determination of the matter. It was preposterous that the Supreme Court chose to remain silent on this.



Conclusion

On the grounds as stated above, I believe the Judgment of the highest Court in the land in the case of Hope Uzodinma v Emeka Ihedioha is perverse and a miscarriage of justice.



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