The Federal High Court, Abuja, on Friday, fixed December 14 for judgment in a suit challenging the validity of the primary election that produced Governor Oluwarotimi Akeredolu of Ondo State as All Progressives Congress (APC)’s candidate in the October 10 poll.
Justice Okon Abang fixed the date after taking arguments from parties in the suit with number: FHC/ABJ/CS/886/2020 filed on August 3 by Dr Nath Adojutelegan, an APC governorship aspirant in the state election.
In the suit, the APC, Akeredolu and the Independent National Electoral Commission (INEC) are 1st to 3rd respondents respectively.
Adojutelegan, who along with others lost the primary election to Akeredolu, had challenged the poll’s outcome.
In the suit, the plaintiff alleged that the exercise was marred by grave and substantial noncompliance with the spirit and purpose of the APC’s Constitution, Electoral Guidelines and the Electoral Act, 2010 (as amended), which he argued “substantially affected the outcome of the primary election”.
He said the delegates’ list used for the primary violated section 87(7) and (8) of the Electoral Act 2010 (as amended), Article 20 (iii) and (iv) (a), (b), (c) and (d) of the APC Constitution 2014 (as amended) and Electoral Guidelines.
Adojutelgan urged the court to make an order nullifying the nomination of Akeredolu as the party’s candidate in the October 10 governorship election in the state.
He also urged the court not to allow Akeredolu to gain from his alleged wrongdoings regarding the governorship primary election.
The plaintiff prayed the court to make an order nullifying the exercise and order a fresh primary from which the governor should not be allowed to participate in.
At the resumed hearing on Friday, the INEC Lawyer, Abdulaziz Sani, on whose instance the case was adjourned in the last sitting, told the court that he had finally served all the defendants as well as the plaintiff in the matter copies of his counter affidavit.
“I also ensured a copy was filed in court file. The counter affidavit is filed on August 17. It is a two-paragraph application. It has one exhibit called Exhibit INEC. We have a written address dated August 14 and adopt same. Considering the nature of the dispute,, we will only be bound by the court decision”.
Counsel to the 1st defendant (APC), Omosanya Popoola, said the plaintiff served him earlier in the day with the points of law in response to INEC’s counter affidavit.
“i just want to cite two authorities, in response to the plaintiff’s application”.
Isaac Aderogba, the plaintiff’s Counsel, said he was served with a counter affidavit and written address by INEC on November 17.
“In response, we filed our written reply dated November 18 on November 19.We adopt the said reply and urge your lordship to enter judgment for the plaintiff”.
Popoola argued that in the plaintiff’s reply, particularly paragraph 3.4 to 3.6, he contended that INEC by its response had admitted that the primary in issue was conducted in an open-secret ballot.
“However, my position is that for an admission to be relied upon by the plaintiff, it must be unequivocal in all respects. He said the primary was conducted in an open ballot and INEC said it was an open-secret ballot. That’s what the plaintiff is saying that it is an admission of their position on the manner of the ballot. Our position is that it was a secret ballot”.
Again, the lawyer argued that even if INEC had admitted to their position, “it will still not avail the plaintiff in that the reliefs being sought by the plaintiffs are declarative reliefs.
“And the weakness of the defence of the defendant or even an admission will not be any benefit to him considering what is before your lordship. He must prove his case beyond reasonable doubt and not rely on admission by any party”.
According to him, he must be consistent in the case is making because his contention is that the primary was conducted using an open ballot and he cannot now change and turn around to say it was an open secret ballot.
On his part, Chief Akin Olujimi, SAN, who is counsel to 2nd defendant (Akeredolu), called the attention of the court to Paragraph 3.5 of the plaintiff (Adojutelegan)’s reply.
According to him , he (Adojutelegan) said the deposition made by INEC is inconsistent by the deposition made by the 2nd defendant at Paragraph 28 and 31 of his counter affidavit.
“The case made by the plaintiff is that instead of using secret ballot mode of election during the primary as provided by the constitution of 1st defendant that they used an open ballot system. In our reply, we said you are wrong that the committee used a secret ballot system in the primary”.
Countering Aderogba’s argument, he said the word: “open” used by INEC was merely descriptive of the type of secret ballot that was used.
“It could also have been a closed secret ballot. So the constitution of the APC just said secret ballot. Therefore, the liberty is there for the committee to make it open or closed. So what he called admission by INEC has not changed anything in regard to the fact that the secret ballot system was used”.
It is not a contradiction of the position of either the 1st or 2nd defendant”.
He said the contention of the plaintiff in paragraph 3.5 had not advanced his case.
“Secondly, he labelled this as admission. If it is an admission without conceding it, it can only be an admission against the 3rd defendant and not an admission by any other party than the 3rd defendant who made it”.
Responding, Aderogba said he was taken aback by the position of the 1st and 2nd defendants being that “my learned friends want to be more catholic than the Pope”.
He argued that based on the settled principle, the admission of a party could support the position of a plaintiff.
“I urge my lord to discountenance the objection of the 1st defendant”.
On the 2nd defendant argument, “we submit that there is a word of difference between an open ballot system and a secret ballot system. It is not merely as to description as learned senior counsel put it. Your lordship will find that in our written address in support of the summon, the features of the secret ballot system essential to that system as features is the present or existence of a polling booth”.
According to him, if the framers and makers of the 1st defendant’s constitution and guidelines had intended to use an open ballot system or to give discretion to the electoral committee to choose between open secret ballot and close secret ballot, they would have clearly said so.
“It is not within the province of the honourable court or any of the parties to read in such extraneous words”.
Aderogba urged the court to reject the submission of counsel to the 1st and 2nd defendant and enter judgment in favour of his client.
However, INEC’s Lawyer, Sani, in his argument, corroborated Olujimi’s submission.
He also pointed out that the words “secret ballot” or “open ballot” were merely descriptive.
“As far as the 3rdd defendant is concerned, the officials of the 3rd respondent monitored the primary and reported what they saw. The word secret ballot or open secret ballot as far as the third defendant is concerned is merely descriptive”.
According to him, the word open secret ballot is a high breed of secret ballot.
Justice Abang, in his ruling, said the matter would be adjourned for judgment.
He, however, said he would first make findings on the 1st and 2nd defendant’s preliminary objections, challenging the court’s jurisdiction to hear the matter.
“Where the objection sustains, that will be the end of this matter. However, in the event the objections are overruled and I assume jurisdiction, the court will then make findings on the substantive matter on its merit”.
The judge, then, adjourned the matter until December 14 for judgment.