Ubani warns Appellate Courts against Inconsistencies in Judgments

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…Says Protests against Supreme Court Judgment strange development.

A former second vice-president of the Nigerian Bar Association, NBA, Monday Onyekachi Ubani has sent a strong message to the Appeal and Supreme Courts on the need to be consistent in their decisions on electoral matters. He said as a result of inconsistencies, judgments emanating from the courts are sometimes not even cited as precedents. Speaking against the backdrop of ongoing massive protests and outrage trailing the recent decision of the apex court on the governorship election in Imo State in which Emeka Ihedioha, candidate of the Peoples Democratic Party, PDP was sacked and Hope Uzodinma, candidate of the ruling All Progressives Congress, APC, was declared as governor, Ubani warned that this issue of creating some confusion in their decisions should stop, and described it as “unhealthy”. According to him, this only happens in electoral matters. “All other cases – contracts, constitutional issues and others– we don’t have issue. The judiciary has always been very consistent. But in electoral matters, we keep on seeing several decisions from similar facts and different decisions from similar facts”.

Speaking on Monday on Sunrise Daily, Channels Television breakfast programme, Ubani cautioned that due to the fact that “politicians are now trying to get involved in our judiciary because of election matters, we should try as much as possible to remain neutral. Judiciary must be neutral, judiciary must be bold, judiciary must be courageous; judiciary must be interested in justice at every point in time so that we don’t begin to have issues like this whereby people begin to protest Supreme Court decisions. It’s not healthy for us as a nation; it’s not healthy… So, my advice to the judges and to the Supreme Court is that let them maintain consistency because issue of precedence is key. The moment you distort it, you create a lot of legal confusion in the legal community. Let’s try and lay down precedents that will stand the test of time. The truth of the matter is that justice must be done and the Supreme Court of the land remains the highest and final court. And remember, they are infallible because they are final, so they must maintain that level of finality and infallibility that all of us attribute to them without creating some dangerous confusion in our legal community”.

On disappointments by some Nigerians based on their permutations, Ubani who asserted that “these inconsistencies are not helping the electoral jurisprudence”, stressed that anyone that is doing the permutation and all that based upon politics, may get it wrong because the Supreme Court is advised to follow law. “If it is a situation where you are very sure this is a decision the Supreme Court has held in previous matters, and they would maintain that consistency, of course you do your permutation, and of course you will be wrong with your permutations; I mean if you do wrong political permutations. If you are doing legal permutation, you will know that this is what the court actually will come up with” he stated.

Describing the ongoing protests in some parts of the country, including Abuja as a “strange development” Ubani noted that “this is the first time that people openly protest against a Supreme Court judgment’, adding that “even with Rotimi Amaechi’s case where a man never contested an election and the Supreme Court declared him the governor, the people didn’t react. This is the first time we are seeing this and it’s a bit strange”. While maintaining that the Supreme Court and the judiciary must still be bold, must be courageous in order to enthrone justice, the renowned human rights activist averred that “it’s key that even if you are a loser, you will go home feeling that justice has been enthroned”.

In his view, the courts are constituted by human beings and not angels. “They live in the society. They watch television; some say they don’t. Some of them also listen to radio and of course sometimes, get feelings of the reactions of members of the public of whether justice had been done and what is the reaction. The most important thing is that judges should be bold enough to uphold the law; issue of law is critical. The moment justice is applied, irrespective of any person’s feeling, if you are satisfied that what you have done is pure justice, you don’t need to be worried if people are reacting negatively; that also is very important. So, to me, they are human beings; I’m sure they are seeing the reactions of members of the public, especially in Imo State where people are reacting”.

 Ubani did not however foresee a situation whereby the Supreme Court would reverse itself on the judgment as being demanded y the national chairman of the PDP, Uche Secondus, stating unequivocally that “it has never happened in our history”.  Insisting that “the Supreme Court cannot sit on appeal over its matter”, Ubani explained that what they do is that in a subsequent case, “not in a case they have decided, unless there is clerical error…they can review, they can reverse themselves. If you bring a fresh matter, first and foremost, the Supreme Court must admit that it was in error; it can only reverse itself if there is patent error they have committed; the ratio decided was wrong, patently wrong, in a subsequent case, not in the same case. But they must agree they were in error”.

Shedding light on the controversy surrounding how someone in the fourth position suddenly became number one, Ubani explained that the issue before the Supreme Court was the issue of exclusion of votes from 388 polling unit. “That was the contention of Uzodinma; and you did not have INEC that came to court with the evidence of the POs, either incident forms saying elections did not take place in those areas, and with your witnesses. What the Supreme Court now did is to take into cognizance all the votes that Uzodinma purportedly scored in those polling units and then added it to what he had already been given by INEC – 96,000. By the time you added all those votes that he scored in those polling units, he now came up more than that of Ihedioha, more than that of Uche Nwosu, and more than that of Ararume; and that was why number four became number one. It is important that we explain this because a lot of people just said how can it be possible for number four to be number one? He became number one after the addition such that his own votes became more than that of other contestants”.

He said the relief sought by Uzodinma was unique in that most times, when you go to court, what the petitioner had always argued was that there was non-compliance with the Electoral Act; that this person did not meet up the required votes before he was declared the winner by INEC. “But this man is saying look, I’m not contesting that Ihedioha has been declared with this result. What I am saying is my own results were not added because if you had added my own result, it would have made entire difference. That was his own unique relief”.

On the significance of the Imo State Supreme Court judgment  Ubani said by allowing the excluded votes in the absence of  physical evidence by all the affected polling unit agents contrary to established precedence, the apex court may have decided to lessen the burden on a petitioner to prove his case. In his words, “to me, there is a take-away in this Supreme Court decision. The issue of onus on the petitioner had been too burdensome. Most times, they will ask the petitioner, for you to prove that there was non-compliance, you need to have almost all the polling unit agents who will come; and of course within the limited time allowed by the Electoral Act for you to prove your case is always an issue. It’s a burdensome proof you have to. But in this case, based upon what we have heard, only 28 polling unit agents were called by Hope Uzodinma and that the court relied mostly on the document that was purportedly brought to court by the police officer – I think he was PW 54 that came to give that evidence. He didn’t speak to those documents and all that. May be the Supreme Court is now trying to lessen the burden that is placed upon the shoulder of the petitioner because he has this onerous responsibility of always bringing witnesses that must come to court physically in order to speak to most of the documents”. 

Ubani however advocated that minimal involvement of the courts in the country’s judicial process should be what is encouraged. According to him, “we should rather allow the electoral fortunes of politicians to be decided at the polling units. Let the people be the one to decide who governs them and it should end there so that they do not come to court. Look at what took place recently in Britain; how many cases are in the British courts? They are the ones that even gave us our laws. Even in American election, it’s only one instance; and that was how many years ago that the Supreme Court had to intervene in the electoral process. So, this minimal involvement of our judiciary should be what should be encouraged. Let’s go for an electoral system that is free, fair, and credible. And that credibility comes in when you reduce the perks of office. And I keep on saying it; unless we address the issue of what people get when they get into political offices, these guys will become so aggressive, they will kill and they will manipulate in order to be there”.

Speaking to the figures not tallying

Total accredited voters according to INEC is 823743, total votes cancelled …..

Remember that INEC did not take into cognizance the results of those 388 polling units in this issue of accredited voters and all that. Excluded were those 388 polling units. Why? That is the question INEC needs to answer because that is the contention of Hope Uzodinma before the court  that elections were conducted in these polling units and these polling units are INEC recognized polling units; unless you are saying they were not recognized polling units. Elections were conducted there by your own POs. So, if you want to contradict that elections never took place in those polling units, it’s for you now to bring the  POs who will now come to court to say there was no election at all contrary to what Hope Uzodinma was saying, there was no election in those polling units. I don’t think that was done by INEC and that was why the Supreme Court now relied on that particular result that emanated from these particular polling units.

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