Godwin Tsa, Abuja
The Abuja division of the Court of Appeal on Thursday dismissed the appeal brought by the Action Peoples Party (APP) against the Independent National Electoral Commission (INEC) over the exclusion of it’s candidates from participating in the 2019 governorship election in Bayelsa and Kogi States.
The appeal was dismissed just after the Bayelsa State Governor Douye Diri, his deputy, Lawrence Ewhrudjakpo and the Peoples Democratic Party had asked to be joined in the appeal as respondents.
Also on Thursday, the Kogi state governor, Yahaya Bello and his political platform, the All Progressive Congress (APC), had equally approached the court to be joined as respondents in the appeal.
However, when the matter was called up, counsel to the appellant, Obed Agu drew the attention of the court to a motion of withdrawal of the appeal filed on April 14.
Agu told the court that his client was desirous of withdrawing the appeal in accordance to order 11 Rule 1 of the Court of Appeal rules 2015.
His application was not opposed to by counsel to INEC, Alhassan Umar SAN and those representing parties seeking to be joined in the appeal.
Umar however asked the court for N3m cost against the appellant.
Other counsel representing parties seeking to be joined in the matter did not opposed the motion for withdrawal of the appeal but demanded that it should be dismissed.
Delivering it’s ruling, a three-man panel of the court led by the acting President, Justice Monica Dongban-Mensem dismissed the appeal in line with order 11 Rule 5 of the Court of Appeal rules.
The court however refused to award cost against the appellant on the ground that the only respondent on record, the INEC, did not file it’s response to the appeal.
Justice Mensem who delivered the unanimous ruling said the preliminary objection filed by INEC against the appeal cannot stand on its own without a respondents brief.
The appeal marked CA/ABJ/CV/218/2020 is challenging the judgment of Justice Ijeoma Ojukwu of the Abuja division of the Federal High Court delivered on February 21st, wherein she held that INEC was right to have excluded candidates of the party (APP) in the governorship election in Kogi and Bayelsa states in 2019.
The judgment of the trial court was predicated on the ground that APP replaced its withdrawn candidates outside the statutory period of 45 days to the date of the 2019 Kogi and Bayelsa States’ governorship election.
Specifically, in the suit marked FHC/ABJ/CS/1163/2019 the party had among other reliefs, sought the declaration of the court to the effect that any subsequent conduct of the 2019 Kogi and Bayelsa governorship elections without the replaced candidates of the Plaintiff amount to unlawful exclusion of the plaintiff in the said election.
“A declaration that any subsequent conduct of the 2019 Kogi and Bayelsa States’ governorship election without the replaced candidates of the plaintiff is null and void by reason of such exclusion.”
Governor Diri, his deputy, Senator Ewhrudjakpo and their political platform, the PDP filed separate motions seeking to be joined in the appeal as defendants.
In his motion brought pursuant to section 6(a) and 36 (1) of the 1999 constitution, section 15 of the Court of Appeal Act, Governor Diri through his counsel, Chief Chris Uche (SAN), urged the court to join him as the second respondent in the appeal.
He argued that as the winner of the governorship election for Bayelsa State held on November 16, 2019, sought to be nullified by the appellant, he is a person directly affected by the appeal.
Uche told the court that the appellant deliberately suppressed the fact from the court that it is simultaneously prosecuting an election petition before the Bayelsa Governorship Election Tribunal in respect of the same complaint of unlawful exclusion from the governorship election in Bayelsa State and seeking for the nullification of the same election as he is seeking by this appeal.
According to Uche, the appellant admits participating in the said election and pleading the votes scored by it as 148 votes before the governorship election tribunal in Bayelsa State.
In addition, he said the APP participated in the said election, and that its name and logo were both on the ballot papers and on the result sheet, Form EC8E, as well as the summary of results, Form EC8D.
Uche submitted that “having proceeded to the election tribunal to file an election petition to question the concluded election pursuant to section 138(1) of the Electoral Act 2010 (as amended) on the same ground of exclusion of its candidate, the appellant is precluded and ought not be allowed to proceed with this appeal, the power to nullify a concluded election belonging to an Election Tribunal or Court of Appeal sitting as a Presidential Election Tribunal.
On his part, counsel to the deputy governor, Chukwuma-Machukwu Ume (SAN), in his motion on notice equally prayed the court for an order to join his client in the appeal as an interested party and a cross-appellant.
Ume also filed a notice of preliminary objection challenging the substantive appeal on the ground that the APP had fully participated in the Bayelsa state governorship election conducted on November 16, 2019, and scored votes material to its full electoral strength and so was not excluded from the election.
He further predicated his objections on the ground that the appellant’s appeal disclosed no material and substantial reasons while seeking to set aside an election that was dull held as stipulated by the 1999 constitution and the Electoral Act, 2010.
While submitting that the appeal was frivolous and against the judgments of the Supreme Court in Falake V INEC (2016) and Amaechi Vs INEC (2008), Ume added that there is nothing before the court to show that the appellant has ever won any senatorial seat, or a seat of a member of House of Representatives, or a seat of a member of House of Assembly or a seat of a local government chairman or a councillor of local government council.
The Bayelsa State deputy governor urged the court to join him in the appeal as he is interested in its outcome in view of the fact that his interest will be affected by such outcome.
In his supporting affidavit, the applicant averred that he was issued with a certificate of return by INEC as the elected deputy governor, in compliance with the judgment of the Supreme Court delivered on February 13, 2020, in appeal No. SC/1/2020 -People’s Democratic Party & 2 ors. V. Biobarakuma Degi-Eremienyo & 3 ors.
That considering this development, it is imperative to join him as an interested party to the appeal as doing otherwise would rob the court of jurisdiction to hear the appeal.
The PDP equally filed a similar application through its counsel, Adedamola Fanokun.
Meantime, counsel to the appellant, Ezenwa Ibegbunam informed the court that he had filed a counter-affidavit in urging the court to refuse the applications for joinder.
But counsel to INEC, Alhassan Umar (SAN) said the commission as a neutral umpire was not opposing the applications for joinder.