By Jonathan Ugbal, CrossRiverWatch
Justice Rosemary Dugbo Oghoghorie of the Calabar Division of the Federal High Court has reserved November 24, 2022, to deliver judgment on a suit by the People’s Democratic Party, PDP, and its Cross River guber candidate, Senator Sandy Onoh seeking the disqualification of the guber and deputy guber candidates of the All Progressives Congress, APC, from the 2023 general elections.
The date was agreed upon by all parties after they adopted their processes during the hearing on Tuesday. The APC, her guber and deputy guber candidates – Senator Bassey Otu and Honorable Peter Odey as well as the Independent National Electoral Commission, INEC, are listed as first, second, third, and fourth defendants respectively in the pre-election matter with suit number FHC/CA/CS/142/2022.
The Argument
The Plaintiffs, via their lead counsel, Mba E. Ukweni SAN while adumbrating after adopting their processes, said two key points formed the gamut of their originating summons. The first was that one needed to be a member of a political party to be fielded as a candidate and the second was that the third defendant has taken the oath of allegiance to the United Kingdom which questions his loyalty to Nigeria.
He urged the Court not to allow the shifting position of the first defendant who denied the third defendant in their affidavit filed in suit number FHC/ABJ/CS/976/2021 whose judgment is now a live appeal matter and is now claiming that he is a member of their party. Furthermore, he urged the Court to grant their prayers, especially on the fact that the first defendant will be deemed to have fallen short of the requirements to participate in the 2023 general elections as what affects the third defendant, impacts his ticket with the second defendant.
The counsel to the first defendant, Essien H. Andrew SAN prayed the court to grant their preliminary objection which was raised on points of law on the fact that party membership was an internal affair and that the plaintiffs lacked the locus standi since the Electoral Act 2022 did not contemplate the action they filed and as they have not said the fourth defendant failed in carrying out its responsibility.
On the merit of the originating summons, he argued that the plaintiff was alleging forgery and pointed out that when a crime is alleged in civil procedures, the burden to prove is on the plaintiff which he said the plaintiff has tried to shift to the defendants. He prayed the Court to dismiss the suit.
Benson Igbanor Esq. who led the argument of the second and third defendants, said they filed a motion of notice to strike out the suit and on the merits of the case, argued that the plaintiff did not controvert the issue of citizenship by birth which is the Constitutional requirement. He said the Oath of allegiance did not detract from the issue of citizenship by birth which confers the third defendant, the right to contest.
He argued that the process commenced wrongly as the Supreme Court had last Friday held that when hostile pre-election matters with elements of the crime were brought forwards, the best way to commence such a suit was by Writ of Summons. The Court also granted his prayer to file an additional list of authorities to guide the Court.
The Counsel to the fourth defendant, Matthew Ogwuocha Esq in his submissions averred that Section 28 subsection 1 of the 1999 Constitution of the Federal Republic of Nigeria, as altered had addressed the issue of citizenship by birth which he said the plaintiff have not controverted.
On membership, he submitted that the fourth defendant does not go beyond the administrative scrutiny of the political parties and that the first defendant complied with relevant positions of the Electoral Act which means the fourth defendant has no option other than to accept the second and third defendants as the nominated candidates. He urged the Court to dismiss the suit.
In their response on points of law, counsel to the plaintiff submitted that the practice direction of the Court guides the commencement of a suit and prayed the Court to discountenance the Supreme Court judge whose authority was not cited.
On Locus, Ukweni SAN submitted that there are provisions of the Electoral Act 2022 as amended that make the fourth defendant a clearing house and when weighed with the third schedule of the Constitution, grants the plaintiff’s locus.
On the issue of waiver to swearing an oath of allegiance by the third defendant, he submitted that it was an exception and specific to the third defendant, hence the onus lies on him to prove that he never swore an oath of allegiance but was granted a waiver.
Furthermore, he argued that the plaintiff never raised an issue of forgery or perjury, but they relied on the documents submitted and deposed to by the first and third defendants which they also accepted to rely on
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