The Court of Appeal, Abuja has reserved judgment in an appeal filed by the sacked Akwa Ibom governorship aspirant of the All Progressives Congress (APC), Mr. Akanimo Udofia, against the judgement of a lower court.
The three-member panel headed by Justice Elfreda Williams-Dawodu made this known after counsel to the appellant, Damian Dodo, SAN, and Senator Ita Enang’s lawyer, Mba Ukweni, SAN, adopted their briefs and presented their arguments for and against the appeal.
A Federal High Court (FHC), Uyo had, on November 14, nullified the election of Mr Udofia as the APC governorship candidate in Akwa Ibom State.
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Justice Agatha Okeke of the court had ordered APC to conduct a fresh governorship primary within two weeks, but barred Udofia from re-contesting the new primary.
The case was instituted by Mr Enang, a former presidential aide on Niger Delta Affairs, who was an aspirant in the primary.
Enang had prayed the court to declare him the validly elected candidate of the party, arguing that Udofia was not a member of the party but that of PDP as at the time of the primary.
But Udofia had filed an appeal marked: CS/C/370/2022 to challenge the FHC judgment.
In the appeal, Enang, APC and Independent National Electoral Commission (INEC) are 1st, 2nd and 3rd respondents respectively.
Also, in another appeal filed by the APC through its lawyer, J.Y. Musa, SAN, on the same matter marked: CS/C/371/2022, Enang, Udofia and INEC are 1st to 3rd respondents respectively.
Upon resumed hearing in Udofia’s appeal on Saturday, Dodo said the brief which the appellant relied upon was dated December 9 and filed same date.
He adopted all his court documents, and urged the court to set aside the judgment of the lower court.
Arguing his case, the lawyer said the lower court erred in its judgment as the suit, which commenced via an originating summons, ought to have been instituted through a writ of summons, citing an Appeal Court judgment which was 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 called their witnesses to enable the court 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 being fabricated, votes being allocated to certain people, Enang (1st respondent) should have commenced the suit by writ of summons.
Dodo also argued that Enang’s amended originating summons was filed at the lower court outside the 14 days period prescribed by law.
According to him, when the lower court predicated its judgment on the amended originating summons, that became an incurable malady that has afflicted the entire suit and the consequence is that the judgment of that court on the basis of the amended originating summons is complete nullity.
Besides, he argued that the brief filed by Enang at Appeal Court was filed out of a five-day stipulated time.
He, therefore, urged the court to uphold their appeal and make a consequential order directing INEC to recognise and publish Udofia (appellant)’s name as Akwa Ibom governorship candidate APC candidate for 2023 polls.
But Ukweni, who appeared for Enang, disagreed with Dodo’s submission.
Responding to the argument that Enang’s brief was filed out of time at 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 brief of appeal on December 9, the 1st respondent (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.
“So it is not correct that we filed our brief out of time,” he said, citing a 2006 case decided by Court of Appeal between Justice Party and INEC to back his argument.
Ukweni said in that case, the court held that the respondent’s time to file brief would commence when complete record had been served on parties.
“In fact in this case, all the records in this particular appeal were served on the respondent on the 12th day of December, 2022 in open court,” he insisted.
Reading his brief of argument, the lawyer said that service out of jurisdiction does not apply to FHC when the process is to be served within Nigeria.
He urged the court to dismiss Udofia’s appeal.
Responding to the reply brief of the appellant that Enang’s amended originating summons at FHC was filed outside the 14-day period, Ukweni said the trial judge granted their amended originating summon on Aug. 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 properly filed.
He further argued that Udofia should have challenged the court ruling within 14 days from Aug 24 when it was delivered.
“So to now say that they are attacking the judgment on the ground that it was based on amended originating summons is an indirect way of seeking your lordship’s extension of time to appeal against that decision of 24th August, 2022,” he said.
He prayed the court to strike out the issues and the grounds of appeal in this respect.
The senior lawyer, who argued that the decision of the court is sacrosanct, said they cannot come through the back door to challenge it.
Disagreeing with Dodo on filing the lower court suit through originating summons instead of writ of summons, Ukweni said that the Chief Judge of FHC, Justice John Tsoho, gave a practice direction for speedy trial of pre-election cases.
He argued that Justice Tsoho, by the power conferred on him as CJ, directed that pre-election matters should be commenced through originating summons based on the expediency.
“And we commenced the suit by originating summons,” he said.
He clarified that the fact of the case was not the same with the authorities cited by Dodo.
“In that case, there were issues of forgery of certificate but we are not amending 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.
“How come on 26th of May, 2022, you became a candidate of APC?
“That was the simple case that was presented before the lower court and which has come up before your lordship on appeal,” he said.
Ukweni said 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.
“So how could you have passed through the process of nomination even if you have joined a party on May 1st?” he asked.
He told the court that a ballot paper of PDP primary held on May 25 with Udofia’s photograph on it was exhibited in their brief.
The lawyer urged the court to dismiss the appeal, saying it was unmeritorious.
The 2nd (APC) and 3rd (INEC) respondents did not file any brief in the appeal.
Ukweni also prayed the court to dismiss APC’s appeal for being unnecessary, after an appeal had been filed by Udofia.
“Why would you (APC) complained for another person?” he asked, urging the court to dismiss it and affirm the lower court judgment directing the conduct of another election for party members.
Justice Williams-Dawodu, after observing that the case would expire on Jan 22, reserved the matter for judgment.
She said that judgment date would be communicated to parties. (NAN)
