By Sixtus Mgbokwere
One of the facts adduced by the team of lawyers representing Hon. Emeka Ihedioha at the Supreme Court, led by the iconic Chief Kanu Agabi SAN CON, as reason for the application for setting aside the misjudgement of January 14 was what was technically referred to as “incuriam”.
That word is technical because it’s not in English dictionary. It’s a Latin word which is interpreted as “issued through inadvertence”.
Yet, it’s quite understandable when the explanation by Hon. Ihedioha’s legal team on it is read and understood.
There’s no short cut to simplify it better. Hence, it’s better to take few minutes and read the legal description by Hon. Ihedioha’s legal team of the term “incuriam” in the false victory handed Senator Hope Uzodimma by the Supreme Court. It reads thus:
“”THE JUDGMENT SOUGHT TO BE SET ASIDE IS A NULLITY IN THAT IT WAS GIVEN PER INCURIAM
“By Exhibit A1 (Form EC8D) the total number of voters accredited for the election was 823,743,while the total valid votes cast was 731,485.
“With the inclusion of 213,695 votes for the 1st Appellant/ Respondent and 1,903 to the votes of the 1st Applicant, as ordered by this court, the total number of votes cast at the election now stands at 953,083 (i.e. 731,485 + 213,695 + 1,903) making the total number of votes cast at the election to be far in excess of the total number of voters accredited for the election, 129,340.
“It amounts to an illegality under our electoral law for the total number of votes cast in an election to exceed the number of accredited voters.
“The Appellants/Respondents pleaded in paragraph 39 of their petition that a supplementary election should be conducted in the 388 polling units where the additional votes that created the illegality were alleged to have been cast and that pleading was binding on the Appellants/Respondents and the court.
“The Appellants/Respondents tendered at the trial the overall result of the election (Form EC8D) as declared by the 3rd Respondent (INEC) and it was admitted in evidence as Exhibit A1. It is also exhibited to the affidavit in support of this application as Exhibit KGA2. The exhibit shows that the total number of accredited voters for the election was 823,743, whilst the total votes cast were 731,485. By the judgment sought to be set aside this honourable court ordered the inclusion of an additional 213,695 votes for the 1st Appellant/Respondent and 1,903 for the 1st Applicant. Consequently, the total votes cast at the election now stand at 961,083 (i.e. 731,485 + 213,695 + 1,903), which is in excess of the total number of accredited voters by 129,340 votes. OBVIOUSLY, THE VOTES CAST CANNOT EXCEED THE NUMBER OF ACCREDITED VOTERS. To this extent therefore the judgment of this honourable court sought to be set aside was reached per incuriam and it has created an illegality which this court cannot allow to persist. In BUHARI v INEC (2008) LPELR 814(SC) 84 paras B-C, this court held that –
“the expression ‘per incuriam’ is one of the Latinism. It generally means through inadvertence. In law, it means the judge is giving a judgment in ignorance or forgetfulness of an enabling statute of some binding authority of the court.
“The judgment sought to be set aside was reached per incuriam for the further reason that it was contrary to the case made by the Appellants/Respondents in their Petition. In paragraph 39 of the Petition they averred as follows –
‘…..the returning officer did not call for polls to be taken in the excluded or wrongly cancelled units before he returned the 1st Respondent [now applicant] as the winner of the election. The 3rd Respondent [INEC] ought to conduct supplementary election where as in this case the number of registered voters in the units where the results were reckoned with or were purportedly cancelled was higher substantially than the difference between the scores of the 1st Respondent and the petitioner who was next to him in the wrong computation upon which the 1st Respondent was declared’
“In OVIAWE V. INTEGRATED RUBBER PRODUCTS NIGERIA LTD (1997) 3 SCNJ 29 at 45 this court held that –
‘it is not open to a party to depart from his pleadings …… nor, equally, is it open to the trial court to depart from the case pleaded by the parties’.
“Again in PASCUTTO v ADECENTRO LTD (1997) LPELR-2904(SC) at 28 paras A-B this court held that –
‘…. parties as I have already stated are bound by their pleadings and judgment must also be confined to the issues raised by the parties. It is incompetent for a court to make a case for either or both of the parties and then proceed to give judgment on the case so formulated contrary to the case of the parties before him’
“We submit therefore that the judgment sought to be set aside is incompetent and was reached per incuriam, because instead of ordering a fresh election as pleaded by the petitioners [now Appellants/ Respondents], and as stipulated by section 140 (2) of the Electoral Act (as amended), i.e. assuming without conceding that the allegation of the 1st Appellant/Respondent was proved, this court returned the 1st Appellant/Respondent erroneously as the winner of the disputed election.”
That’s it! The Supreme Court declared Uzodimma winner and governor without consideration for the observed and proven errors in numbers, facts and figures pertaining to votes in the election.
Therefore, the ball is on the court of the Supreme Court to straighten out the crooked issues in the votes it adopted and awarded to Uzodimma. That’s the simplest explanation of the concept of in the victory the Supreme Court gave to Uzodimma!