UZODINMA VS IHEDIOHA: THE MYSTERY OF THE 388 POLLING UNITS: THE POLICE WITNESS

By Collins Ughalaa

“Every Result Form completed at the Ward, Local Government, State and National levels in accordance with the provisions of this Act or any guidelines issued by the Commission shall be signed and countersigned by the relevant officers and polling agents at those levels and copies given to the police officers and the polling agents, where available” Section 74 of the Electoral Act 2010 (as amended). “The Presiding Officer shall give to the Polling Agents and the Police Officers where available a copy each of the completed forms after it has been duly signed as provided in sub-section (2) of this section” Section 63(3) of the Electoral Act 2010 (as amended).

Until now, not many people knew that police officers deployed to the polling units on election duty had other statutory functions than the routine maintenance of peace and order. Many did not know that the police officers were to be given copies of results sheets at the polling units. If every politician knew ~about~ this, they would have been kinder to the police officers on election duty, knowing that they could play critical roles in determining the final outcome of an election, especially in the event of legal disputation. If they knew, they would have also known the futility in fomenting crisis at the polling units and engaging in malpractices.

Part of the reasons some people shouted blue murder upon hearing that the Supreme Court placed probative value on the evidence of the police officer who was subpoenaed by the Governorship Election Tribunal to give witness over the results of the 388 polling units where Senator Hope Uzodinma claimed he garnered 213,695 votes, was because to them it was strange. For those not in the picture, in keeping with the provisions of Sections 63(3) and 74 of the Electoral Act 2010, and other corresponding statutes, the police were given copies of the results of the 388 polling units from the governorship election held in Imo State on Saturday, March 9, 2019. When the matter got to the Governorship Election Tribunal, the police authority was subpoenaed and a police officer, a Deputy Commissioner of Police, appeared to give his evidence. He presented as exhibits before the court the copies of the results given to the police. The Tribunal did not place probative value on the evidence tendered by the police.

The Court of Appeal did not also place probative value on it, save the minority opinion by Justice Oho, who went ahead to declare Uzodinma the duly elected Governor of Imo State. Justice Oho specifically held that “The police copies are particularly relevant and admissible where, as in this case, the respondents raised the issue of the authenticity of the results in their pleadings. The copies given to the police are in those circumstances relevant and tenable to test the veracity of the parties’ contention on the issue of what in fact transpired”.

Not satisfied, Uzodinma and the APC approached the Supreme Court. The issue of the PW54, the police officer who was subpoenaed by the court, gave his evidence and was cross-examined, was also brought to the attention of the Supreme Court. Mr. D.D. Dodo, SAN, counsel to the applicants had pleaded before the Supreme Court that the Tribunal had expunged the exhibits of the PW54 “on the ground that he lacked the competence and authority to testify and tender the said documents”. He pleaded that though the Court of Appeal on its part had admitted the documents “and held that PW54 was properly before the Court as a subpoenaed witness but refused to accord the exhibits any probative value, relying on extraneous grounds without affording them a hearing”.

On the claims that the documents tendered in evidence by PW54 were directly in his custody and not certified, and inadmissibility and evidential value of election results given to policemen, the Supreme Court agreed with the minority judgement of Justice Oho, that “The police copies are particularly relevant and admissible where, as in this case, the respondents raised the issue of the authenticity of the results in their pleadings. The copies given to the police are in those circumstances relevant and tenable to test the veracity of the parties’ contention on the issue of what in fact transpired”. The Supreme Court added: “The tendering of Exhibits PPP1 – PPP366 through PW54 was to show that the scores recorded therein were excluded from form EC8B (ward collation results). It is also to be reiterated that PW54 was summoned by the court to produce and tender the documents”. The Supreme Court further held that the “The respondents failed to prove that the documents were fake or forged”.

To further buttress the point being made, the Supreme Court referred to similar scenario in the case of Nnadi vs Ezike (1999) 10 NWLR (pt. 622) 228 at 238 C-E, which was a decision of the Court of Appeal, saying that “Election result forms given to the Police security men cum observers at the polling booths, as dictated by the provisions of paragraph 33 of Schedule 4 to Decree No.5 of 1999, constitute an internal and inbuilt control mechanism or measures designed to unravel unlawful cancellations, alterations, mutilations and juggling of figures during elections and such result as produced by the Police are the best and tenable available source to test the veracity of the parties’ contention on the issue of what in fact were the actual scores made by the contending parties. To jettison the forms given to the Police under any guise, as in the instant case, is throwing discretion to the wind”.

The Supreme Court also noted that Exhibits PPP1 – PPP366, being duplicate copies of the original results needed no certification to show its genuineness. Pointing out the provision of Section 86(2) of the Evidence Act, which provides that “Where a document has been executed in several parts each part shall be primary evidence of the documents”, the Court held that “The said documents being duplicates of the original required no certification”. Haven adumbrated the admissibility and certification of the evidence of the police officer, the Supreme Court held “that on the preponderance of evidence, the appellants discharged the burden of proving that the results from 388 polling units, which were in their favour, were excluded from the collation of results and that if the excluded votes are added to the results declared in their favour, they would have emerged as the winners of the election”.

Having considered pleadings made before it, the Supreme held that the Tribunal and the Court of Appeal were wrong in their judgement, stressing that “the consideration of the appellants’ case on a wrong premise occasioned a miscarriage of justice”. It added: “On this basis I hold that the two lower courts were wrong when they held that the appellants failed to prove their entitlement to the reliefs claimed. I find those issues sufficient to determine the appeal”. The Supreme Court concluded: “In the circumstance, I hold that there is merit in this appeal. The appeal is allowed. The judgement of the lower court affirming the decision of the Governorship Election Tribunal, is hereby set aside.”

On the acclaimed evidence of “the makers of the documents”, the Supreme Court held that “The need to call the polling unit agents to prove that elections actually held in those polling units did not arise. The authorities of this court requiring the evidence of polling unit agents, polling unit by polling unit, are therefore not applicable in the circumstance.” The Supreme Court explained their position, saying: “This is more so because the respondents, particularly the 3rd respondent, denied excluding the votes scored by the appellants in the affected units. In other words, they did not contend that elections did not take place in the 388 polling units. Their contention was that the results relied upon by the appellants were false. That they are not genuine. They pleaded that they would tender the original result [but they did not do so].”

While this piece was being concluded on Wednesday, the news broke that the Supreme Court had rejected the application by the All Progressives Congress (APC) to review its judgement on the governorship election in Bayelsa State that brought in Senator Duoye Diri of the People’s Democratic Party (PDP) as the duly elected Governor of the state. Apart from rejecting the application to review its judgement, the apex court also excoriated two senior lawyers of the All Progressives Congress (APC), Chief Afe Babalola (SAN) and Mr. Wole Olanipekun (SAN), for daring to file an application for a review of its February 13, 2020 judgment that nullified the victory of the party’s candidate in the governorship election in Bayelsa State.

Describing the application as vexatious and frivolous and consequently dismissing it, Justice Amina Augie of the Supreme Court who delivered the lead judgment breathed down hard on Babalola and Olanipekun, noting that their actions were regrettable and a deliberate desecration of the judiciary. She ordered Babalola and Olanipekun to pay N10 million each to each of the three respondents as fine. Justice Augie said the fine would be personally paid by the lawyers. She, therefore, handed down what has been tagged a landmark judgement, saying: “I feel like shedding tears that senior counsel in this case would ever bring this kind of frivolous applications during my life time. This court is not authorized and indeed lacked jurisdiction to review any judgment delivered on merit, more so when the applicants have not pointed out any accidental error or slip in the judgment. There must be an end to every litigation. It is settled that the decision of this court is final. This is final court and its decisions are final for all ages”.

We consider the Wednesday judgement of the Supreme Court as appropriate and in tandem with the provisions of the constitution. We agree with the counsel to the PDP, Mr. Tayo Oyetibo (SAN), that the application to the apex court to review and reverse its judgement was a dangerous invitation to the Supreme Court to violate Section 285 of the 1999 Constitution. We also agree with him that “When the Supreme Court gives judgment, it is deemed correct”, and that the judgment of the Supreme Court is final and finality”. As players in the political turf, and commentators in the commentary box, we may not like the judgement of the Supreme Court. But it is what it is: the Supreme Court is final.

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