On Monday, 13th January 2020 the Supreme Court of Nigeria delivered judgement on the appeal brought by Hope Uzodinma against Gov. Emeka Ihedioha on the Imo State Gubernatorial elections. While many Nigerians were shocked by the judgement and pondered the political implications of the judgement, what was not immediately apparent is the direct impact the judgement is going to have on all facets of business in Nigeria, including international trade, foreign direct investment, international contracts and the perception of Nigeria in the eyes of the international community.
Leaving politics aside, every Nigerian business person and every person or body anywhere on the surface of the earth interested in doing business either in Nigeria or with a Nigerian person or entity must be concerned about this judgement. And the reasons are legion. Two calls I received over the weekend, one from Finland and the other from California, US, highlight this concern.
The Finland caller, the head of a group seeking to invest in a state in Nigeria, said that their lawyers have raised urgent concerns about the safety of their investment. He dispensed with niceties. “We hear that once your government is interested in a court case it instructs the judges on what to do.” I tried to draw him out. He mentioned the Atiku case and then, more emphatically, “We hear that an elected Governor was thrown out a few days ago and that your public documents can now be subverted by any other document brought by anybody.” When I tried to assuage him, he asked, “What if they change the governor [of the state they are negotiating with] and the new governor declares our contract invalid? How would we prove our documents valid if the courts cannot even rely on your public documents? What if a new governor brings a forged document? Would your courts be of help?”
The second caller, a man who has made several visits to Nigeria, after some preliminaries informed me that they are seriously considering the safety of their investments in Nigeria owing to concerns on the “growing official interventions in court cases and the uncertainty of your judges. Your judges appear cowed.”
How did we get to this point? Courts, especially the lower courts and up to the Court of Appeal, rely on precedents in making decisions. In fact, the Court of Appeal and all lower courts are bound by the decisions of the Supreme Court. They cannot deviate from it; else it would be said to be wrong or to have been arrived at in ignorance of the law. This decision of the Supreme Court is taken as the latest declaration of the state of the law on the issues it decided, and the lower courts are not permitted to choose between an earlier decision of the Supreme Court and a latter one on similar issues. They are bound to follow the latter, except they can find a way to say that the issues are different or to distinguish it,
In their latest decision on the Imo gubernatorial elections, the Supreme Court appears to have inadvertently made some bad decisions with far-reaching implications. Their lordships seem to have been pre-occupied with politics and maybe technical law, without adverting their minds to the wider implications.
For instance, in admitting and relying on uncertified 366 Nos. Form EC8A, a public document, the Supreme Court has by implication opened the door to lower quality of documentary evidence to be admissible in Nigerian courts. This seems to be not only contrary to the Nigerian Evidence Act and other laws but runs against the practice in all Commonwealth and other civilized countries. In practical terms, a Dangote may lose his real estate investment in a certain place because someone or group came up with an uncertified Certificate of Occupancy without any certification from the Lands Registry on it. This may happen even if Dangote holds the original document. If this can happen to a Nigerian, what would happen to a foreign investor? Better put, what would this judgement do to the confidence of an investor in Nigeria?
The law presumes regularity of acts of and documents from public offices and the onus is on who asserts the contrary to prove. A mere assertion and production of a document that does not satisfy the Evidence Act should not suffice to shift this onus.
Let us take it further. Commercial contracts. What would be the effect of a mere assertion and production of a contrary document without proof in a dispute over a commercial contract? Would the court rule in favour of the person who produces any kind of document even if he does not relate his assertions or claims to the document? What role should the court play in assessment of documentary evidence? If reliance on a document leads to absurd results would the courts still rely on it even if it falls short of evidential standards? This is what happened in the Uzodinma v. Ihedioha case.
The document which the Supreme Court relied on to cause this international furor had serious defects that made them unreliable, to say the least. Whereas about seventy parties contested the gubernatorial election, only four parties were mentioned and awarded votes in the 366 Form EC8A tendered by Uzodinma. The rule is that even if a party scored did not score any vote, zero should be entered for it because zero is a score. Apart from this obvious omission, in almost all the exhibits only the alleged score of APC (Uzodinma’s party) was visible. Uzodinma himself and all his other witnesses including DCP Husseini could not read the scores of the other three parties when asked to do so on cross-examination. They all had one standard answer when asked how they wanted the court to rely on the document: that since their own was not visible that they expected INEC to tender the original. Yet the parties had their copies of the real scores issued by INEC. I took notes during the tribunal sittings and observed the witnesses. When a few days ago I went through my notes I could see that a choreography has all the while been at play.
Should the court shift the onus when a party on whom the onus lies has failed to discharge it? I also have certified true copies of both the Tribunal and the Court of Appeal judgements. I have read them over and over, including my handwritten notes which agree with the summation of the Tribunal. I am yet to fathom how the Supreme Court will rationalize its judgement. Which brings me to another issue. The Supreme Court is yet to issue the reasons for its decision. It just delivered a short judgement, the parties to await. It heard the appeal and delivered a short judgement the same day, on such a serious matter. It is within its power. Similar matters on the Sokoto and Kano gubernatorial elections were adjourned for one week after hearing, before judgement. However, these debates are happening all over on all media, national and international, and in writing its detailed judgement (whenever it will be) the Supreme Court now has the benefit of all these arguments pointing out the defects. I feel sour in my mouth.
The problem cannot just go away. No matter how we all try, the fact that in relying on the spurious 366 Form EC8As the total votes cast has overshot the accredited number of voters by more than one hundred thousand, that it is these additions that made Uzodinma overleap all the three candidates ahead of him in the INEC declared results, and that the new number added to Uzodinma is less than the number above the accredited number of voters (meaning that without these doubtful votes he could not win) are issues which no one can spin away, no matter how adept one is at sophistry.
This judgement is generating a lot of bad image for Nigeria in a time the country badly needs foreign investment. The investor confidence is at the nadir. The Supreme Court can make this nightmare go away, perhaps by ordering fresh elections in the affected units. That way it may begin to attend to its image and that of the judiciary as a whole without appearing to lose face.
EMEKA U. OPARA
Emeka U. Opara is a Lagos-based attorney and consultant.