2023: Appeal Court reserves judgement in Akwa Ibom APC governorship poll dispute

The Court of Appeal, Abuja, has reserved judgement in an appeal filed by the sacked Akwa Ibom governorship candidate of the All Progressives Congress (APC), Akanimo Udofia, against the judgement of a lower court.

The three-member panel headed by a judge, Elfreda Williams – Dawodu, made this known after counsel to the appellant, Damian Dodo, SAN, and Ita Enang’s lawyer, Mba Ukweni, SAN, adopted their briefs and presented their arguments for and against the appeal.

A Federal High Court (FHC) in Uyo had, on 14 November, 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 Mr Udofia from participating in the new primary.

The case was instituted by Mr Enang, a former presidential aide, who was an aspirant in the primary.

Mr Enang had prayed the court to declare him the validly elected candidate of the party arguing that Mr Udofia was not a member of the party as of the time of the primary.

But Udofia challenged the judgment of the lower court.

In the appeal, Mr Enang is the 1st respondent, the APC is the 2nd, and the Independent National Electoral Commission (INEC) is the 3rd.

Udofia’s argument

Also, in another appeal filed by the APC through its lawyer, J.Y. Musa, SAN, on the same matter, Messrs Enang and Udofia are 1st and 2nd respondents respectively, while INEC is 3rd.

Upon resumed hearing in Mr Udofia’s appeal on Saturday, his lawyer, Mr Dodo, said the brief which the appellant relied upon was dated 9 December and filed the 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 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 judgement which was affirmed by the Supreme Court on 21 October 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 being fabricated, and votes being allocated to certain people, Mr Enang (1st 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 judgement of that court on the basis of the amended originating summons is a complete nullity.

Besides, he argued that the brief filed by Mr Enang at the Appeal Court was filed outside of the five-day stipulated time.

He urged the court to uphold their appeal and make a consequential order directing INEC to recognise and publish the appellant, Mr Udofia’s name as the APC candidate for the 2023 Akwa Ibom governorship poll.

Enang’s argument

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 12 December in open court in Calabar, Cross River State.

He explained further that though the appellant served them with the brief of appeal on 9 December, the 1st respondent (Enang) was not served with the record of appeal, including the notice of appeal, until 12 December 12.

He said their brief, dated 14 December, was filed on 16 December.

READ ALSO: 2021 Afrobasket Qualifiers: Mfon Udofia to lead Nigeria’s D’Tigers“So it is not correct that we filed our brief out of time,” he said, citing a 2006 case decided by the Court of Appeal between the Justice Party and INEC to back his argument.

Mr Ukweni said in that case, the court held that the respondent’s time to file a brief would commence when a 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 Mr Udofia’s appeal.

Responding to the reply brief of the appellant that Mr Enang’s amended originating summons at FHC was filed outside the 14 days, Mr Ukweni said the trial judge granted their amended originating summon on 24 August 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 Mr Udofia should have challenged the court ruling within 14 days from 24 August when it was delivered.

“So to now say that they are attacking the judgment on the ground that it was based on the 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 lawyer, who argued that the decision of the court is sacrosanct, said they cannot come through the back door to challenge it.

‘Not a member of APC’Disagreeing with Mr Dodo on filing the lower court suit through originating summons instead of a 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.

“And we commenced the suit by originating summons,” he said.

He clarified that the fact of the case was not the same as the authorities cited by Mr 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 the 25th of May, 2022.

“How come on the 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.

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.

“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 the PDP primary held on 25 May 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 News Agency of Nigeria (NAN) reports that the 2nd (APC) and 3rd (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.

“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.

Mr Williams-Dawodu, after observing that the case would expire on 22 January, reserved the matter for judgement.

She said the judgement date would be communicated to the parties.