The Court of Appeal has reserved judgment in an appeal filed by the sacked Akwa Ibom governorship candidate of the All Progressives Congress, Akanimo Udofia.
The three-member panel headed by Justice Elfreda Williams-Dawodu made this known after the appellant’s counsel, Damian Dodo, and Ita Enang’s lawyer, Mba Ukweni, adopted their briefs and presented their arguments for and against the appeal.
The Federal High Court (FHC) in Uyo had, on November 14, nullified the nomination of Mr Udofia as the governorship candidate of the APC in Akwa Ibom.
The judge, Agatha Okeke, ordered the APC to conduct a fresh governorship primary within two weeks but barred Udofia from participating in the new primary.
The case was instituted by Mr Enang, who prayed the court to declare him the validly elected candidate of the party, arguing that Mr Udofia was not a party member at the time of the primary. In the appeal, Mr Enang, APC and Independent National Electoral Commission (INEC) are the first to third respondents, respectively.
But Udofia had filed an appeal marked: CS/C/370/2022 to challenge the FHC judgement.
Also, in another appeal filed by the APC through its lawyer, J.Y. Musa, on the same matter marked: CS/C/371/2022, Messrs Enang, Udofia and INEC are first to third respondents, respectively.
Upon resumed hearing in Mr Udofia’s appeal on Saturday, Mr Dodo said the brief, which the appellant relied upon, was dated December 9 and filed on the same date.
He adopted all his court documents and urged the court to set aside the lower court’s judgement.
Arguing his case, the lawyer said the lower court erred in its judgement, as the suit, which was commenced via an originating summons, ought to have been instituted through a writ of summons, citing an Appeal Court judgment affirmed by the Supreme Court on October 21 to support his submission.
He said the apex court held that whenever parties are in dispute, especially in pre-election matters, what should be filed was the writ of summons, where parties would call their witnesses to enable the court to make an unbiased decision since it would be difficult for a court to find two parties agreeing on a fact.
He said in the instant case where there were allegations of results fabricated and votes allocated to certain people, Enang (first respondent) should have commenced the suit by writ of summons.
Mr Dodo also argued that Mr Enang’s amended originating summons was filed at the lower court outside the 14 days prescribed by law.
According to him, when the lower court predicated its judgement on the amended originating summons, that became an incurable malady that has afflicted the entire suit, and the consequence is that the court verdict based on the amended originating summons is a complete nullity.
Besides, he argued that the brief filed by Mr Enang at Appeal Court was filed outside of a five-day stipulated time.
He urged the court to uphold their appeal and make a consequential order directing INEC to recognise and publish Udofia (appellant)’s name as APC candidate for the 2023 Akwa Ibom governorship poll.
But Mr Ukweni, who appeared for Mr Enang, disagreed with Mr Dodo’s submission.
Responding to the argument that Mr Enang’s brief was filed out of time at the Appeal Court since he had within five days to do so, the lawyer said the record of appeal showed that he was served on December 12 in open court in Calabar.
He explained further that though the appellant served them with a brief of appeal on December 9, the first respondent (Mr Enang) was not served with the record of appeal, including the notice of appeal, until December 12.
He said their brief, dated December 14, was filed on December 16.
Mr Ukweni mentioned that in the case, the court held that the respondent’s time to file briefs would commence when a complete record had been served on parties.
Reading his brief of argument, the lawyer noted that service out of jurisdiction does not apply to FHC when the process is to be served within Nigeria and urged the court to dismiss Mr Udofia’s appeal.
Responding to the reply brief of the appellant that Mr Enang’s amended originating summons at FHC was filed outside 14 days, Mr Ukweni said the trial judge granted their amended originating summons on August 24 in a ruling.
The lawyer argued that the amendment on the originating summons was a decision of the court which was deemed to be appropriately filed.
He further argued that Mr Udofia should have challenged the court ruling within 14 days from Aug 24 when it was delivered.
He prayed the court strike out the issues and the grounds of appeal in this respect.
The senior lawyer, who argued that the court’s decision is sacrosanct, said they could not come through the back door to challenge it.
Disagreeing with Mr Dodo on filing the lower court suit through originating summons instead of the writ of summons, Mr Ukweni said the chief judge of FHC, John Tsoho, gave a practice direction for speedy trial of pre-election cases.
He argued that Mr Tsoho, by the power conferred on him as CJ, directed that pre-election matters should be commenced through originating summons based on expediency.
He clarified that the facts of the case were different from the authorities cited by Mr Dodo.
“In that case, there were issues of forgery of certificate, but we are not amending the forgery of certificate. Our argument is that the appellant (Udofia) is a member of PDP who contested its primary election on 25th of May, 2022,” he stated. “How come on the 26th of May, 2022, you became a candidate for APC?” he said.
Mr Ukweni said Mr Udofia admitted before the lower court that he joined APC on May 1.
“The trial judge said, assuming we followed your argument that you joined APC on May 1, but the register of members of the party as provided for by the Electoral Act was submitted to INEC on April 14,” he noted. “So how could you have passed through the process of nomination even if you have joined a party on May 1st?”
He told the court that a ballot paper of the PDP primary held on May 25 with Mr Udofia’s photograph on it was exhibited in their brief. The lawyer urged the court to dismiss the appeal, saying it was unmeritorious.
The second (APC) and third (INEC) respondents did not file any brief in the appeal.
Mr Ukweni also prayed the court to dismiss APC’s appeal for being unnecessary after an appeal had been filed by Mr Udofia.
Justice Williams-Dawodu, after observing that the case would expire on January 22, reserved the matter for judgment.
She also mentioned that the judgment date would be communicated to the parties.
(NAN)
