By Ikechukwu Nnochiri
ABUJA – The Abuja Division of the Court of Appeal, on Thursday, restored Senator Peter Nwaoboshi of the Peoples Democratic Party, PDP, as the Senator-elect for Delta North Senatorial District.
The appellate court, in a unanimous decision by a three-man panel of Justices, voided the judgment of the Federal High Court in Abuja that sacked Nwaoboshi on the premise that he was not validly nominated by the PDP.
Justice Ahmed Mohammed of the High Court 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 trial court said it was satisfied that the primary poll was won by Prince Ned Nwoko, who it ordered the Independent National Electoral Commission, 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.
Meanwhile, dissatisfied with the judgment of the high court, the embattled lawmaker, approached the appellate court to set it aside.
In his six 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 asked for the verdict to be nullified on the ground 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, Nwoko, got 453 votes, while another aspirant, Paul Osagie secured 216 votes to come third.
Aside Nwaoboshi’s appeal marked CA/A/318/2019, the PDP also lodged a separate appeal marked CA/A/319/2019, to challenge the high court’s judgement.
Meantime, in its lead verdict that was prepared and delivered by Justice Mohammed Idris, the appellate court, said it had after “a forensic and microscopic examination” of all the affidavit evidence that was brought before it by the parties, concluded that the high court erred.
The appellate court held that as at December 17, 2018, when Nwoko went to court to challenge the outcome of PDP’s primary election, his suit had become status barred by virtue of section 285(9) of the 4th Alteration to the 1999 Constitution that prescribed 14 days for filing of pre-election matters.
It held that the trial court had no jurisdiction to entertain Nwoko’s suit.
“After a microscopic examination of affidavit evidence before this court, we came to the conclusion that the suit was clearly statute barred.
“We allow the appeal and set-aside the judgement of the trial court. The substantive suit hereby struck out. We make no order as to cost”, Justice Mohammed held.
Other Justices that concurred with the lead Judgement were Justices Adamu Jauro and Emmanuel Agim.
Nwoko had in his pre-election suit, 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.
Nevertheless, the appellate court, upheld Nwaoboshi and PDP’s contention that the suit was status barred, having been lodged 65 days after nomination was made to INEC.