Ekiti APC: When courts fail to dispense justice

The dust created by the last governorship primary of the All Progressives Congress (APC) in Ekiti State has not settled with the Supreme Court’s decision to strike out a suit querying the propriety of the exercise. The apex court hinged its December 5, 2022 decision on the provision of Section 285(10), thereby affirming the error committed by the trial court, which failed to give effect to the provision of Section 285(8) of the Constitution, which provides that objections in pre-election cases should be considered along with the substantive suit. Eric Ikhilae reports.

If courts are created to resolve disputes and ensure justice, why would a court sidestep such a core responsibility when called upon to do so

This was the question on the lips of many, who were at the Supreme Court on December 5 this year when the court struck out an appeal seeking to determine who the actual candidate of the APC for the last governorship election in Ekiti State was.

By its decision, the apex court effectively closed the door against any enquiry into the question of whether or not there were irregularities in the conduct of the January 27, 2022 governorship primary of the APC in Ekiti State.

Shortly after the primary, an aggrieved aspirant, who equally participated, Engineer Kayode Olubunmi Ojo approached the Federal High Court to challenge the party’s return of Abiodun Abayomi Oyebanji as the winner and therefore its candidate.

Ojo, in the suit marked: FHC/ABJ/CS/151/2022, filed on February 9, 2022 alleged among others, that the primary was marred by irregularities as it was conducted in violation of relevant guidelines and laws.

He was insistent in his claim that the primary was “vitiated by gross irregularities and fundamental non-compliance with the first defendant’s party guidelines regulating the conduct of the said party primaries, the Electoral Act and the Constitution and therefore void and of no effect whatsoever.”

He prayed the court to nullify the primary and order the conduct of a fresh one or alternatively, void the votes irregularly ascribed to Oyebanji and declare him the winner having scored the highest lawful votes.

Ojo’s legal team faulted the competence of the statements defence filed by the 20 defendants, including the APC, Oyebanji and the Independent National Electoral Commission (INEC) on the grounds that they were filed out of time.

At trial, the plaintiff testified as the first plaintiff’s witness (PW1) on July 21 and 22. He also tendered 30 exhibits, including his Expression of Interest Form, Payment Receipt and Nomination Form.

He also called a witness, who gave evidence and tendered two exhibits and closed his case.

The defendants, some of whom filed preliminary objections, called no evidence or witness, except an INEC officer, who was subpoenaed.

In his judgment on August 4 Justice Babs Kuewumi upheld the preliminary objection filed by the first defendant (the APC) and held that the plaintiff’s statement of claim was incompetent on the grounds that it was not signed by a known lawyer.

Rather than proceed to determine the substantive suit on the merit, Justice Kuewumi struck out the suit, a decision Ojo challenged at the Court of Appeal in Ado Ekiti.

In its judgment on October 7 a three-member panel of the Court of Appeal, led by Justice Moore Adumein, faulted the decision by Justice Kuewumi not to determine the suit on its merit as provided under Section 285(8) of the Constitution.

Justice Adumein, in the led judgment on the appeal marked: CA/EK/65/2022, held among others, that “it is ludicrous that the trial court abandoned the consideration and resolution of the main dispute between the parties and aborted, terminated or truncated an important judicial exercise or process at an elementary or interlocutory stage.

“What the trial court did in this case, was to abandon its sacred duty of deciding the matters in dispute or controversy and to punish the appellant because his learned counsel signed two processes with dissimilar signatures.

“The duty of the trial court, like any other court, was and/or is to do substantial justice to the parties before it and not to inflict avoidable pains on any of them by leaning towards an obvious technical justice.

“To say the least, what the trial court did, in this case, was a travesty of justice, which is one and the same thing as injustice itself,” Justice Adumein said.

But, having found that the trial court was wrong not to have determine Ojo’s suit on merit, the Court of Appeal however rejected the appellant’s prayer that it invoked its powers under Section 15 of the Court of Appeal Act to determine the case on the merit.

Rather than correct the errors it claimed that the trial court committed, the Court of Appeal upheld the objection by the respondents to the effect that the 180 days allowed, under Section 285(10) of the Constitution, for the trial court to determine pre-election cases has elapsed.

The Court of Appeal further held that since the 180 days has elapsed, it no longer has the jurisdiction to invoke its powers under Section 15 of Court of Appeal Act to entertain the case on the merit.

The appellate court held that the case had become academic and proceeded to strike it out.

Ojo, who was again dissatisfied with the Court of Appeal’s judgment, challenged the decision at the Supreme Court through an appeal marked: SC/CV/1312/2022.

In the appeal, Ojo’s legal team, which included Alex Izinyon (SAN) and Damian Dodo (SAN) argued among others that the Court of Appeal was wrong not to have exercised its powers under Section 15 of its Act to determine the case on the merit.

The appellants’ legal team said: “We submit strongly, with respect, that the court below was wrong in not invoking its power under Section 15 of the Court of Appeal Act as appeal is a continuation of hearing pursuant to Section 285(10) of the 1999 Constitution as it was within her powers within the life span of the 60 days of the appeal to step in to consider the merit of the case and do justice after all the tears and castigation of the learned trial judge in not doing justice.

“For emphasis the lower court put it rightly thus: What is justice in the circumstance where the lower court found out that there was injustice perpetrated by the trial court but fell into the same error on the grounds that it was only the trial court, who would have done so within the 180 days allowed by law and relied on two main cases to reach the conclusion.

“In the present situation, the appellant approached the trial Federal High Court timeously to seek redress under the relevant constitutional provisions, which donate the right of access and fair hearing in court.

“Unfortunately, the judex (judge) consciously elected to frustrate these rights, by failing to determine the merit of the case, whereof the lower court (Court of Appeal) has now held that same can no longer be done, because the 180 days have lapsed.”

On November 24 when parties got to court, a five-member panel of the apex court, led by Justice Inyang Okoro expressed concern that several months after the APC held its primary in Ekiti the court was yet to determine the actual candidate of the party for the election that held June 18, 2022.

He however expressed concern about the impact of the provision of Section 285(10) on the fate of the appeal, to which Izinyon responded by arguing that it was incumbent on the apex court, as a policy court to redress the wrong done to the appellant by the two courts below.

Izinyon noted that there were constitutional issues raised in the appeal, requiring a formal determination.

Izinyon then applied that a full panel of the court be constituted to enable the Supreme Court to make a departure from its position on Section 285(10) of the Constitution.

Lawyers to the respondents in the appeal did not oppose the appellant’s request for the construction of a full panel.

Ruling, Justice Okoro ordered the appellant to make a formal application to the Chief Justice of Nigeria (CJN) for the constitution of the full panel.

He then adjourned sine die (indefinitely) pending when the CJN would constitute the full panel to decide the matter as requested by the appellant.

Following the application by the appellant’s legal team, the CJN constituted a full panel of seven justices, headed by Justice Kudirat Kekere-Ekun, to hear the case.

However, when parties returned to the court on December 5 the panel failed to entertain any argument from the appellant’s lawyer on the need to look at the merit of the case.

Members of the panel said that the court’s hands are tied in the face of the provision of Section 285(10) of the Constitution.

The panel later prevailed on Izinyon to withdraw the appeal, following which the court dismissed, thereby closing the door to a possible examination of Ojo’s grievance and righting the wrong done to him.