By Jonathan Ugbal
A Federal High Court sitting in Calabar and presided over by Justice Ijeoma Ojukwu on Monday dismissed a suit seeking the replacement of Senator Bassey Otu with Senator John Owan-Enoh as the candidate of the All Progressives Congress, APC for the 2023 general elections.
Senator Owan-Enoh on June 8, 2022, filed an originating summons with the APC, Independent National Electoral Commission, INEC and Senator Otu as the first, second, and third defendants respectively where he sought to Court, among other reliefs, declaring that Senator Otu was not correctly cleared to participate in the primary election to be nominated as guber candidate.
Justice Ojukwu in her judgment held that the plaintiff failed to justify his case as he did not provide “cogent and palpable evidence” to run contrary to the averments of the first defendant who insisted that the third defendant was adequately cleared and that the issue of nomination was an internal party affair.
One of the issues for determination was whether the third defendant met the constitutional requirements to contest the position of Governor. And, Justice Ojukwu who cited the provisions of Section 177 of the 1999 Constitution of the Federal Republic of Nigeria as altered, and Section 29 subsection 5 of the Electoral Act 2022, as amended, held that the plaintiff failed to supply documents that would have invalidated what was filed by the first and third defendants.
On whether Prince Otu was properly cleared, Justice Ojukwu held that the party’s National Working Committee had done that and since there was no reversal of the party’s decision before the Court, it will be deemed that he was properly cleared to contest.
Furthermore, Justice Ojukwu held that the logic behind the screening committee not clearing Senator Otu who presented higher certificates for the flimsy excuse of failing to include his First School Leaving Certificate was incomprehensible and said this was corrected by the National Working Committee of the party.
How The Preliminary Objections Were Decided
Before her judgment on the substantive issues, Justice Ojukwu went through the preliminary objections raised by the third defendant.
On Jurisdiction, she held that the third defendant’s argument that the plaintiff’s affidavit was hearsay as it was deposed to, by a lawyer, and hence inadmissible, was not correct and resolved the matter in favor of the plaintiff. She held that once an affidavit met the requirements of Section 115 of the evidence act and the rules of court, especially in a matter commenced by originating summons, it remained admissible.
On the issue of the plaintiff voluntarily withdrawing from the race as per his press statement to his supporters, Justice Ojukwu held that it did not confirm with constitutional requirements especially as the first defendant still went ahead to screen him, clear him, and he participated in the primaries. The matter was resolved in favor of the plaintiff.
On whether the matter was commenced the right way, Justice Ojukwu held that the rules of the Court were very clear on that. She ruled that since the Judge had discretion, the mode of commencement was also in order. It was resolved in favor of the plaintiff.
On whether the processes were properly endorsed since the service was out of the State, Justice Ojukwu held that the rules of the Court and judicial precedents were clear that the Federal High Court remains one and out of jurisdiction can only apply when the service of processes is outside Nigeria.
On whether the plaintiff failed to exhaust the internal party mechanisms, Justice Ojukwu resolved it in favor of the plaintiff and held that Article 19 (5) of the first defendant’s constitution did not spell out the mechanisms and steps to be taken by an aggrieved party member and the time it takes.