The controversy over the authentic candidate of the Peoples Democratic Party in the November 16, Anambra state gubernatorial election was yesterday put to rest by the Supreme Court of Nigeria.
In her judgement on the appeal marked SC 589 yesterday, Justice Kekere Ekun who read the decision of the 5-man panel said there was no merit on the issue of fair hearing raised by Mr Nicholas Ukachukwu against the Court of Appeal, Port Harcourt.
“After careful perusal of the briefs, oral submissions of parties, cases cited and records of proceedings, we are satisfied that the appellant was given full opportunity to be heard but fail to avail himself of same” the Supreme Court panel held.
“We therefore find no merit in this issue and therefore resolve it against the appellant” Justice Kekere Edun read.
Justice Kekere Ekun said the 2nd raised issue of jurisdiction of the trial court to entertain the suit before it and whether the Court of Appeal was right to hold that trial court lacked jurisdiction.
“Having carefully considered the provision of Section 87(9) of the Electoral Act 2010 as amended, we are of the view that the trial court had jurisdiction to look into a complain of non compliance of the 1st respondent in the selection or nomination of the 3rd respondent” the panel stated.
“However, it must be noted that the lower court not being the final court in this matter considered the appeal in its merit in the event this court did not agree with its decision on jurisdiction” the apex court said.
“There is no appeal against the finding of fact made by the lower court at ages 300-302 of the records. The judgement of the Court of Appeal on the merit of the appeal wherein it hold that Mr Tony Nwoye is the candidate of the 1st respondent having not been appealed stands and hereby affirmed. The appeal therefore subsists on part on the issue of jurisdiction” the court held.
It further said full reasons for its decision would be heard on January 31, 2014.
Joseph. Daudu represented the appellant (Ukachukwu), Joe-Kyari Gadzama for 1st and 2nd respondents (PDP and Alhaji Bamanga Tukur) respectively, Garba Pwul
was counsel to the 3rd respondent (Tony Nwoye), while the INEC (4th respondent) was represented by Ibrahim Bawa.
Daudu’s two briefs of argument dated October 31, 2013 but filed on November 1, were based on two grounds.
Specifically, Daudu had alleged that the Court of Appeal did not grant Ukachukwu fair hearing, claiming that his motion for extension of time was not heard.
He insisted it was a one sided affair as Ukachukwu’s lawyer Orji Nwafor Orizu was not called upon by the panel to hear his motion.
Secondly, the appellant held that the apex court should allow its appeal to stand based on the issue of jurisdiction, which he posited was the crux of the appeal.
Ukachukwu’s lawyer held that the Federal High Court Port Harcourt has undaunted jurisdiction to determine the appeal in line with Section 87(9) of the Electoral Act, 2010.
The appellant interpreted the provision as saying that an aspirant who participated in a party’s primary can complain if guidelines of the party is violated.
He held that the issue of tax evasion is in the PDP’s rules and guidelines, and specifically aimed at ensuring that its candidates are responsible leaders who pay taxes.
On the second issue which borders on jurisdiction, of “The provision of Section 87(9) of the Electoral Act has been breached in one form or the other, therefore the appellant has the right to complain since it has been contravened” Daudu stated.
“In view of this, the Court of Appeal was in error when it held that the Federal High Court has no jurisdiction to hear Ukachukwu’s suit” Daudu said.
He therefore urged the Supreme Court panel to allow the appellant’s appeal on jurisdiction and hold that the Federal High Court had jurisdiction over the matter.
On his part, Counsel to the PDP and Tukur, (1st and 2nd respondents), Gadzama said parties were given fair hearing.
However, he stated that they were the people that should complain over the way and manner, the appellant’s counsel, Orji Nwafor Orizu walked out of the appeal panel.
“The Court of Appeal gave us 3 days to file and serve our processes, they came late, and with dozens of strategies and motions aimed at delaying time of the court. Even at that, each of the applications was taken; some were dismissed while others were struck out” Gadzama told the panel.
Arguing on the issue of jurisdiction, Gadzama said that in view of Section 87(9), the appellate court did not err in its decision that declared Nwoye as the candidate of the PDP.
Gadzama pointed out that the appellant did not prove the issue of tax evasion against Tony Nwoye.
More so, counsel to the PDP and Tukur submitted that there has not been any allegation against the conduct of the governorship primary election in Anambra, insisting that the issue of non payment of tax by Nwoye came up after the primaries.
He therefore urged the panel to dismiss the appeal
on the grounds that “it is un-meritorious, most frivolous and not supported by evidence”.
Garba Pwul, counsel to Nwoye in his argument, said that Section 87(9) was designed to protect the winner and not to give advantage to the loser, “otherwise the court will dwell in the arena of politics to make a loser a winner”.
He aligned himself with the position of Gadzama, stressing that Ukachukwu was granted fair hearing but that his lawyer rejected the opportunity to be heard by “rudely walking out on the appeal panel”.
He therefore urge the panel to affirm the judgement of the Appeal Court and dismiss the entire appeal.
INEC’s counsel, Ibrahim Bawa did not take sides but said the electoral body would be bound by the decision of the Supreme Court.
Ukachukwu, who was declared PDP’s candidate by Justice Suleiman Aliyu of the Federal High Court Port Harcourt, is challenging the decision of the Justice Ejembi Eko, led panel of the Court of Appeal Port Harcourt, which subsequently voided the lower court’s judgement, and insisted that Nwoye was the validly nominated candidate of the party.
Earlier, the apex court had shut its door against the move by another governorship aspirant Andy Uba, who sought to be joined in the appeal which had challenged the return of Nwoye as the authentic candidate of the PDP.
Uba’s lawyer, Lateef Fagbemi was not permitted by the Presiding Judge to move his joinder application.
“I have no powers to fix any motion for hearing today, I am not the Chief Justice of Nigeria, so I can’t sit here and fix a day for hearing. There is no application fixed for hearing today in respect of SC 589” Justice Mohammed declared.