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Appeal Court reserves judgement in C’River guber tussle

By Anietie Akpan, Calabar   |   03 December 2015   |   12:46 am  

courtTHE Court of Appeal sitting in Abuja has reserved judgement in the suit filed by Joe Agi, SAN against Cross River Governor Ben Ayade and his Peoples Democratic Party (PDP) as well as the Independent National Electoral Commission (INEC) relating to the April 11, 2015 gubernatorial election in the state.

The Justice Tinuade Akomolefe Wilson-led three-man panel took the decision after hearing submissions by parties to the matter.

Dissatisfied with the decision of the Federal High Court, Abuja declining jurisdiction to entertain his ‘grievance,’ Agi headed for the appellant court with seven grounds of appeal over the issue of age falsification against the governor.

Justice Abdul Kafarati had on July 31, 2015 in Suit No. FHC/ABJ/CS/25/2015 between Agi, SAN v. PDP and two others dismissed the case.

In the notice and grounds of appeal, Agi averred that “the learned trial judge erred in law and thereby occasioned a miscarriage of justice to the appellant when he declined jurisdiction and held that “the issue of payment of non-payment (sic) of subscription fees by a member of political party is an internal affair of the party concerned for which the court do not have jurisdiction to entertain”.

He argued that “the issue of non-payment of subscription fees by the third respondent (Ayade) is an infraction to the binding constitution and guidelines of the first respondent which is a condition precedent for qualification and must be fulfilled by an aspirant of the party to the gubernatorial election and the court has jurisdiction to entertain a suit founded on complaint relating to non-compliance with the constitution or guidelines of the first respondent (PDP) as a political party.

“The decision of the lower court upholding the preliminary objections of the 1st and 3rd respondents only dealt with the one ground of the appellant’s case without considering the ground of the appellant’s case bordering on presentation of conflicting age(s) declaration by the 3rd respondent to the 1st respondent contrary to Article 14 (b) and 15 (2) of the Electoral Guidelines for the Primary Elections 2014 of the Peoples Democratic Party (Exhibit JA5) and the Electoral Act.”

He said for the lower court to rely on “the decision of the Supreme Court in Ardo v. Nyako (2014)…is not applicable to the facts of the present case as the applicant in Ardo’s case did not participate in the party’s primaries which he complained against whereas the present appellant participated in the party’s primaries/choosing process and as such has the locus to complain about the non-compliance with the party’s constitution and guidelines. The decision of the Supreme Court in Ukachukwu v. PDP (2014) 17 NWLR (Part 1435) 134 is on all fours with the facts of the appellant’s case and should have been applied and relied upon by the lower court”.

Agi further averred that the “learned trial judge misdirected himself in law when he predicated his decision on a point not validly raised by any of the parties when he held that: ‘the second issue raised by the plaintiff (Agi) borders on criminality, to wit, forgery and perjury. I do not want to waste time on this. It is trite that both forgery and perjury being criminal offences have to be proved beyond reasonable doubt. This suit was commenced by way of originating summons. It is impracticable to prove these by way of affidavit evidence. …”

But in his appeal, Agi said: “The issue of forgery and perjury never arose from the pleadings or evidence of any of the parties. The 1st respondent raised the issue of forgery and perjury for the first time in its oral submission in adumbration of his address without any scintilla of pleadings or evidence backing same.

He continued: “The lower court brushed aside the mandatory provisions of Articles 14 (b) and 15(2) of the Electoral Guidelines for the Primary Elections 2014 of the Peoples Democratic Party (Exhibit JA5) and Section 87 (10) of the Electoral Act, 2010 (as amended) in order to do justice which consequently occasioned grave miscarriage of justice to the appellant”

“The issue of conflicting and contradictory declaration of age(s) by the 3rd respondent only raised question of non-compliance with mandatory provisions of applicable laws and guidelines of the 1st respondent and has nothing to do with forgery and/or perjury to be proved beyond reasonable doubt as erroneous held by the lower court”.

The lower court, according to Agi, erred in law when it held inter alia that “it was not pointed out by the plaintiff which document was forged. All these need to be properly investigated which had not been done.”



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