“John Marshall Harlan, the great dissenter was an American Supreme Court jurist during the civil liberty struggles. His constant alternative legal opinion helped in shaping civil liberty rights in America. Such will be, I hope, the helpful efforts of Justice Fredrick Oho as the alternative judgment in the Imo Governorship appeal.”
Justice Oyebisi Omoyele and three other Justices of the Appeal court on Tuesday 19th November 2019 upheld the decision of the Tribunal by declaring Emeka Ihedioha of PDP the winner of Imo state governorship election. The dissenting judgment of Justice Fredrick Oho puts to question the majority judgment.
The purpose of this article is to extrapolate the majority and minority judgments and make sense of them for the pending Supreme Court’s judgment without necessarily committing contempt of court in particular to common law sub-judice and balancing section 39 of our constitution on freedom of speech.
The other tranche of the ambition of this article is to inquire whether Emeka Ihedioha and PDP satisfy the constitutional mathematical logic and how did the Tribunal and the Appeal courts arrive at the constitutional syllogism of section 179 on one-quarter of legitimate votes in two-third of the 27 Imo local government areas?
By way of propositional calculus 18 LGAs constitutes two-third. Alternatively, how did Hope Odinaka Uzodinma of APC magically and legally construed to be the authentic winner? Can Fr. Mbaka’s mystic averments/prophesy have any place in the Temple of Justice? The above questions could form interesting topics for doctoral thesis.
However, that may be, Uche Nwosu of the Action Alliance (AA), Ifeanyi Ararume of All Progressives Grand Alliance (APGA) and Hope Uzodinma of All Progressives Congress (APC) argued severally and individually that Emeka Ihedioha did not satisfy the requirements of section 179 of our Constitution and for this reason prayed the court to no avail, to set aside the decision of the Tribunal in the 9th March 2019 governor’s election.
In addition, Hope Uzodinma prayed the court to admit in evidence 388 excluded polling units’ results which if aggregated he should be declared the winner. He corroborated this claim with subpoenaed evidence of DCP Rabiu Hussaini (PW54) in union with forms EC8A/EC8B. Not only that Hope Uzodinma’s argument goes to the root of the determination, it will be material and substantial in the Supreme Court’s decision.
The ontological essence of the dissenting judgment in this election petition is in shaping our electoral jurisprudence and further midwife the Supreme Court to have an alternative but imaginative legal view in formulating her would be judgment.
Justice Fredrick Oho is like a legal rebel and a non-compromising jurist as the alter ego of John Marshall Harlan. A dissenter affects future judgments in cases similar to the matter present at hand and in the hope that, through his judgment law makers may amend the perceived issues, the way the constitution is couched and interpreted. The eloquent dissent by the amiable Justice on the travesty of Imo State Governorship’s election petition decision cannot be ignored in a hurry.
The reasoning in a dissenting opinion can over time, influence and persuade future decisions. It can sometimes be cited as a persuasive authority in subsequent cases. The majority judgment may concur but they have separate and individualized legal reasoning for their judgments. These autonomous ratio decidendi will assist the Supreme Court in reaching a healthy decision.
The dissenter may disagree with the majority judgment for any number of reasons; for instance, different interpretation of the existing case law, the application of different principles, or a different interpretation of the facts.
Dissenting legal opinion helps in understanding discussions between the judges and what was canvassed by the parties in the suit. In another development, a Justice may concur or agree with the majority opinion with different legal reasons. Concurring opinion can sometimes be seen as a dissenter because of its distinguishable ratios.
Dissenting and majority judgments will form the legal cynosure in the Supreme Court’s decision as to who will finally pontificate from Douglas House. Of course, Douglas House is different from Douglas road.
Justice can be done if and only if the Supreme Court disassociate herself from the straw man fallacy as seen in the Appeal Court’s majority judgment when it maintained a volte-face in PW54 examination. I will expect the Supreme Court will exorcise herself from the marauding spirits as seen in Atiku vs. Buhari petition.
Law practitioners are patiently waiting for a new precedence in election petition. Certainly, there will be one before the end of January 2020. I envisage the Apex court may adopt a legal hermeneutical decoy in rendering of her judgment.
For the development of the Nigerian legal system, it will be a lofty idea if the Supreme Court appears forthright in her innovative or maverick delivery of the much-awaited judgment.
It is also envisaged that the Apex court will be persuaded to give judgment in line with the appellants and respondents’ pleadings/ submissions without adopting a volte-face. If this happens then justice will be seen to have been dispensed and the Supreme Court would have consummated Gulak’s apotheosis. A rerun verdict by the Supreme Court may in this circumstance give better legitimacy to whoever that will be the substantive Imo governor.
Harry Fanon is a philosopher and a jurisprudence lawyer; he writes from the United Kingdom (email: [email protected])