…fixes May 22 for accelerated hearing
A three-man panel of Justices of the appellate court headed by Justice Adamu Jauro, fixed May 22 for definite hearing of the appeal that lodged before it by Senator Peter Nwaoboshi whose election was nullified by the Federal High Court in Abuja on the premise that he was not validly nominated by the PDP.
The appellate court panel further gave the Respondent, Prince Ned Nwoko, who was handed the senatorial seat by the high court, six days to respond to two separate appeals that were lodged against him by both Nwaoboshi and the PDP.
Justice Jauro also directed the Independent National Electoral Commission, INEC, to within the same number of days, state its own position on the disputed primary election.
The orders followed an application by Nwaoboshi’s lawyer, Mr. Anthony Idigbe, SAN, who applied for the abridgment of time for hearing of the appeal.
Idigbe, SAN, noted that the high court judgment being challenged was delivered on April 3, stressing that the appeal will become statute barred on June 3 when the constitutionally allowed period will expire.
The application was not opposed by Nwoko’s lawyer, Mr. Ahmed Raji, SAN, who however requested to be given seven days to file his client’s response to the appeal.
Likewise, both INEC and the PDP, which were represented by Mr. Anthony Onyere and Mr. Emmanuel Inodem, respectively, said they were not opposed to the application for abridgement of time.
Consequently, in its ruling, the panel, gave the Respondents six days to turn in their processes for commencement of hearing on the matter.
It will be recalled that Justice Ahmed Mohammed of the Federal High Court in Abuja had in a judgement on April 3, held that Nwaoboshi was not validly nominated in the primary election the PDP held in Delta State on October 2, 2018.
The court said it was satisfied that the primary poll was won by the Plaintiff, Prince Nwoko, who it ordered the INEC to immediately recognize as the authentic candidate of the PDP for the Senatorial District.
Besides, the court ordered Senator Nwaoboshi who is currently occupying the seat, to stop parading himself as candidate of the PDP for the Senatorial District.
However, dissatisfied with the judgment, the embattled lawmaker approached appellate court, asking it to set it aside.
In his grounds of appeal, Nwaoboshi contended that the verdict was entered against him in error.
According to him, the trial judge overreached himself by deciding the suit on the basis of highly contradicted and conflicting evidence, particularly as the ballot papers upon which the trial judge based his judgment were seriously controverted and ballot counting was impossible without calling a witness.
He urged the appellate court to hold that the trial judge erred in law when he held that the suit was not caught by the 14 days rule in section 285(9) of the Fourth Alternation to the Constitution of the Federal Republic of Nigeria 1999 (as amended), as the primary election, subject matter of the suit, was conducted on October 2, 2018 and the 14 days time allowed started running on the same October 2, 2018 when the primary election took place.
The appellant further wants the verdict nullified on the premise that the trial judge erred in law when he assumed jurisdiction to entertain the suit despite that it had become statute barred.
Insisting that he won the PDP primary poll, Nwaoboshi, said whereas he got a total of 506 votes, the Plaintiff got 453 while another aspirant, Paul Osagie secured 216 votes.
The high court had on April 17, rejected application by the appellant for the stay of execution of the judgment pending the determination of his appeal.
He had through his lawyer, Mr. Selekowei Larry, SAN, pleaded the court to suspend the judgement to allow the appellate court to decide the case.
The plea was refused by Justice Ahmed Mohammed who held that the high court had become functus-officio in the matter.
The trial Judge ordered all the parties to go before the appellate and ventilate their case, stressing that record of proceedings in the matter had already been compiled and transmitted to the higher court.
The plaintiff had in a pre-election suit he filed before the court, alleged that PDP leadership, illegally submitted Nwaoboshi’s name to INEC after he lost the primary contest.
In the Originating Summons he filed on December 11, 2018, Prince Nwoko, urged the court to among other things, determine whether INEC which supervised the primary election of the PDP and knew that he won majority votes cast, was not wrong to accept and publish Nwaoboshi’s name as PDP’s candidate for the Senatorial poll.
He also urged the court to determine whether by mandatory provision of the Electoral Act, INEC, was not bound to publish his name as the bonafide winner of the Delta North Senatorial primary, having secured the highest number of votes.
More so, the plaintiff, prayed the court to determine whether the continued display of Nwaoboshi’s name instead of his own, does not constitute a violation of the Constitution, Electoral Act and INEC’s Guidelines for the conduct of primary election.
He asked the court to declare that the publication of Nwaoboshi’s name, after he lost the primary election, was illegal and unconstitutional.
The plaintiff, aside alleging that Nwaoboshi used illegal delegates during the primary, told the court that the Senator-elect hired thugs to cause stampede when he learned of his imminent defeat.
He described result sheet that was eventually returned by organisers of the primary election, wherein he got 453 votes as against Nwaoboshi’s 506 votes, as “a fraud and sham”.
The plaintiff subsequently secured an order of the court for all the ballot papers that were used for the primary election to be brought and counted before the court in the presence of representatives of all the parties.
In his judgment, Justice Mohammed noted that though the order for production of the ballot papers was directed to the PDP, however, it was Nwaoboshi that vehemently opposed the order.
The court held that PDP ought to have exhibited the ballot papers it said were used in the conduct or the election, since it failed to comply with the order that directed it to produce the ballot papers to be recounted.
Relying on section 167 of the Evidence Act, Justice Mohammed held that action of the PDP indicated that the Plaintiff would have won if the ballot papers were brought before the court.
He dismissed all the preliminary objections the PDP, Nwaoboshi and INEC lodged against the suit.
The court held that the suit was not status barred, saying it has the requisite jurisdiction to entertain same.
The Defendants had in their objections, argued that the suit, was caught by section 285(9) of the 4th Alteration to the 1999 Constitution that prescribed 14 days for filing of pre-election matters.
They argued that the suit was filed over 65 days after Nwaoboshi’s name was submitted to INEC.
Nevertheless, the court noted that the Plaintiff had earlier instituted an action before an Abuja High Court to challenge the outcome of the primary election.
It held that though the Plaintiff subsequently withdrew that suit, he instituted the instant action after his petition against the outcome of the primary poll was ignored by PDP’s appeal panel.
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