A Federal High Court sitting in Abuja has dismissed the suit challenging the nomination of Senator-elect Ken Nnamani as the candidate of the Peoples Democratic Party (PDP) for the Enugu East senatorial seat.
Justice Inyang Ekwo, who delivered the judgment, upheld the preliminary objections raised in the suit by Nnamani to the effect that the suit is statute barred.
In a pre-election suit marked FHC/ABJ/CS/1574/2018, the plaintiff, Lawrence Ezeh, a candidate of the All Progressive Congress (APC), is seeking an order restraining Nnamani from further parading or holding himself as the People Democratic Party (PDP) Senatorial Candidate for Enugu East.
The case of the plaintiff is that Nnamani, who contested the election on the platform of the PDP, did not physically appear before the Commissioner of Oaths to depose to Form CF001 known as Independent National Electoral Commission (INEC) Affidavit in support of person seeking election to the office/membership of Senate.
In addition, the suit filed by his counsel, Mr. Frank Ikpe, the plaintiff is further praying the court for an order compelling the INEC (2nd Defendant) to stop further parading or holding Nnamani as the PDP Senatorial Candidate for Enugu East.
Meanwhile, both Nnamani and the INEC have all filed their motions challenging the competence of the suit as well as the jurisdiction of the court to adjudicate on the matter.
While the former governor was represented in court by Obina Onya, Mr Tobechukwu Nweke appeared in court on behalf of the electoral body.
In his judgment, Justice Ekwo held that the suit was instituted 60 days after the cause of action arose which is far beyond the constitutional period of 14 days.
“Section 285 (9) of the 1999 constitution, (4th Alteration Act, 2017), is clear and unambiguous and the court have no reason not to follow.
“It makes it mandatory for pre-election matters to be filed within 14 days. The duty of the court is to interpret the constitution as it is. The time does not stop running once the a cause of action has taken place.
“The argument of the plaintiff counsel that the cause of action arose when the INEC published the list on December 6, 2018 seems to suggest that time stopped to run when the 1st defendant filed and submitted his documents to INEC. This is far from the law.
“The question is when did the cause of action accrue to the plaintiff in this case?
“I have done my calculations and have arrived at the conclusion that the cause of action arose when the 1st defendant submitted his documents to INEC and not when the list was published.
“The plaintiff ought to have filed this suit earlier than the day it was filed. This suit is statute barred and I so hold. The consequence of this is that it diminished the locus standing and jurisdiction of this court.
“On the whole, I find that this suit bus statute barred and I make an order dismissing the suit,” the judge held.
Regarding the suit, which is predicted on section 117(4) of the Evidence Act, 2010, the plaintiff posed the following questions for determination by the court:
“Whether from a proper interpretation of the provisions of Section 117(4) of the Evidence Acts Laws of the Federation, the 1st Defendant does not have a duty to personally appear before the Commission of Oaths to depose to the Sworn Affidavit filed with the 2nd Defendant as part of the legal requirement for the contest of the Senatorial Seat for Enugu Senatorial District of Enugu State.
“Whether the 1st Defendant having not physically and personally sworn the purported affidavit filed with the 2nd Defendant in the presence of the , Commission of Oaths in line with the provisions of Section 117(4) of the Evidence Act is eligible to contest an election for the position of a Senator of the Enugu East Senatorial District of Enugu State.
“Whether the non-deposition of the purported Sworn Affidavit filed by the 1st Defendant with the 2nd Defendant does not amount to automatic disqualification of the 1st Defendant for contravening Section 117(4) of the Evidence Act.
“Whether it is legal for the 2nd Defendant to allow the 1st Defendant to contest an election for the position of a Senator for Enugu East Senatorial District in view of the 1st Defendant not to have personally Sworn the Affidavit filed with the 2nd Defendant before Commission for oaths.
“Whether the purported sworn affidavit filed by the 1st Defendant with the 2nd Defendant is not illegal, null, void and of not effect whatsoever.
“In case the above questions are answered in his favour, the plaintiff is asking the court to grant the following reliefs:
“A declaration that the 2nd Defendant has a duty pursuant to the provisions of the Evidence Act and Electoral Act not to recognize the candidate of the 1st Defendant for contravening the provisions of Section 117(4) of the Evidence Act.
“A declaration that having regard to the contravening of Section 117(4) by the 1st Defendant and the continued recognition of the 1st Defendant by the 2nd Defendant as PDP candidate for Enugu East Senatorial Seat is illegal and unlawful.
“A declaration that the 2nd Defendant as the Nation’s Electoral Umpire has a duty not to hold out the 1st Defendant as the PDP Candidate for Enugu East Senatorial Seat having regard to the contravention of Section 117(4) of the Evidence Act.
“A declaration that the purported candidature of the 1st Defendant to the position of a Senator to the Enugu East Senatorial Seat is illegal, null and of no effect whatsoever.
“A declaration that in view of the contravention of Section 117(4) the Evidence Act, the 2nf Defendant is liable to disqualify the 1st Defendant forthwith.
“An order directing the 2nd Defendant not to accord/ and or stop further according the 1st Defendant recognition or in anyway treating the 1st Defendant as the PDP Senatorial Candidate for Enugu Senatorial Zone.
“An order compelling the 2nd Defendant to invoke the relevant provisions of the Evidence Act and the Electoral Act to disqualify the 1st Defendant.
“An order compelling the 2nd Defendant to stop further parading or holding the 1st Defendant as the PDP Senatorial Candidate for Enugu East.
“An order of perpetual injunction restraining the 1st Defendant from parading or holding out himself as the PDP Candidate for the Enugu East Senatorial Zone”.
The originating summons is supported by a 17 paragraphs affidavit, deposed to the plaintiff himself.
He averred that part of the legal requirements stipulated by the 2nd Defendant for eligibility to contest Senatorial Election is the completion and submission of 2nd Defendant’s Form CF001 known as Independent National Electoral Commission Affidavit in support of person seeking election to the office/membership of senate.
“That I know as a fact that the 1st Defendant has been residing in the United States of America for the past 1 year and has not stepped his feet on the shores of this country since his departure.
“That I also known as a fact the 1st Defendant purportedly filed, completed and swore the purported affidavit (Form CF 001) and submitted same to the 2nd Defendant.
“That I am also aware that Exhibit ‘A’ was not marked by the 1st Defendant personally with his mark in the presence of the person before whom it was taken.
“That I know as a fact that Exhibit A was sent to the United State of America where the 1st Defendant is presently residing by his Political Party/Agents where he signed and returned same without his personal presence and appearance before whom it was taken.
“That the only documents that will show that the 1st Defendant was in the country to sign and swear to the said INEC Form CF. 001 are his International Passport and Immigration documents.
“That in consequence of the totality of the forgoing, I sought for and received legal advice from Senior Learned Counsel who upon my instruction has now commenced this action which has lead to colossal expenses in professional fees.”