A High Court of the Federal Capital Territory (FCT) in Bwari, Abuja has dismissed a suit seeking to bar the All Progressives Congress (APC) candidate, Kayode Fayemi from participating in the Ekiti State governorship election.
Justice O. A. Musa, in a judgment on Tuesday, dismissed the suit marked: CV/57/2018, filed by the Action People’s Party (APP), on the grounds that it was without merit. The suit had Fayemi, APC and Ekiti State Government as 1st, 2nd and 3rd defendants.
The plaintiff had urged the court to disqualify Fayemi and restrain the APC from fielding him as its candidate on the grounds of his indictment in a report issued by a commission of inquiry set up by the state government to probe his administration, and the white paper issued by the government based on the report.
The APP had contended that, based on the indictment and the white paper issued, banning him from holding office for 10 years, Fayemi was constitutionally disqualified Fayemi from standing for election by virtue of Section 182(1)(i) of the Constitution.
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In his judgment, Justice Musa upheld the argument by Rafiu Balogun, lawyer to Fayemi and the APC to the effect that Section 182 of the Constitution, on which the suit was based, was no longer a valid provision.
The judge said the provision had ceased to exist by virtue of the First Alteration Act, 2011, by which the National Assembly deleted the Section 182 of the Constitution.
Justice Musa, who faulted the report by the Ekiti judicial commission of enquiry, held that the process leading to the issuance of the report was “fundamentally tainted with denial of due process and fair hearing.”
The judge noted that although the commission initially invited Fayemi as a witness, he objected to the invitation, which was overruled by the commission.
He said after overruling Fayemi’s objection to being invited as a witness, the commission failed to re-invite him to notify him that he was being invited as an accused, and without affording him an opportunity to be heard, but went ahead to give a report indicting him.
Justice Musa, who described the procedure adopted by the commission as “absurd”, proceeded to quash the report and the white paper issued by the state based on the report.
He said: “The proceedings of the Ekiti State Judicial Commission of Enquiry and the report are hereby quashed. They are null and void. The white paper issued by the state government is based on a non-existent report and it is a nullity.”
The judge also noted that there was evidence before the court that the report and white paper was subject of litigation before the High Court of Ekiti State.
Justice Musa said even if the report and white paper were to be valid, they were not sufficient to disqualify a citizen from holding public office.
The judge said, going by several decisions by the Supreme Court, an indictment by bodies, other than a court of law, cannot amount to a conviction by a court.
He said it was only when a citizen is convicted by a court of law for criminal offence can such a person be disqualified from holding public office or standing for election.
The judge said the position of the Supreme Court was informed by the fact that it was only a court of law that could conduct a fair and unbiased trial.
Justice Musa noted that none of the parties to the suit presented before the court,any evidence of indictment or conviction from any court of law.
The judge declared that Fayemi was eligible to stand for election and hold public office. He held that the APC was at liberty, under the law, to field him as its candidate.
Justice Musa, who answered the two questions posed by the plaintiff in the negative, dismissed all its prayers.
An elated Balogun, while reacting to the judgment, praised the court for standing with the truth and ensuring that justice was served.