The Supreme Court has dismissed the appeal by David Edevbie against the August 29 judgment of the Court of Appeal, Abuja which reversed the July 7 judgment of the Federal High Court, Abuja voiding the nomination of Speaker Sheriff Oborevwori as the governorship candidate of the Peoples Democratic Party (PDP) in Delta State.
In a judgment on Friday, a five-member panel, presided over by Justice Amina Augie, was unanimous in holding that the appeal was without merit and proceeded to affirm the August 29 judgment of the Court of Appeal, Abuja.
Justice Tijani Abubakar, who read the lead judgment held that the suit was wrongly commenced through originating summons as against writ of summons in view of the contentious nature of facts in the case.
Justice Abubakar held that the suit was premature because it was filed before Oborevwori’s personal particulars, including academic credentials, were submitted to INEC as required under Section 29 of the Electoral Act 2022.
Edevbie had claimed that the academic credentials that Oborevwori submitted to his party, the PDP, were forged.
Justice Abubakar noted that it is only after the submission of a candidate’s personal particulars to INEC by the political party and INEC pl publishes the information in the constituency where the candidate is to contest election, can an action can an action challenging the authenticity of such information crystallize.
He added that under Section 29(5) of the Electoral Act 2022 it is only after a candidate’s academic credentials and sworn affidavit are submitted by his/her party to INEC an aggrieved candidate or aspirant could raise any complaint about whether or not the information contained in the documents are false.
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“Section 29(5) of the Electoral Act 2022 cannot be read in isolation. It can not be activated anytime prior to the submission of the particulars of a candidate to INEC,” Justice Abubakar said.
He upheld the position of the Justices of the Court of Appeal that Section 29 (5) of the Electoral Act could only be activated after the preceding sub-sections have been complied with.
Justice Abubakar noted that Justice Taiwo Taiwo of the Federal High Court, Abuja was wrong in his interpretation and application of Section 29(5) of the Electoral Act 2022
“The suit is premature and does not disclose any cause of action against the respondents,” Justice Abubakar said.
On whether the suit was properly filed at the Federal High Court, Justice Abubakar held that in view of the highly contentious nature of the facts in the case, and that the allegations of forgery were criminal in nature, the plaintiff/appellant (Edevbie) was require to lead evidence to prove beyond reasonable doubt.
The judge held that the nature of the facts in the case required that it ought to be commenced via writ of summons as against the originating summons with which Edevbie commenced the suit at the Federal High Court.
He said if the suit was commenced by writ of summons, parties would have been at liberty to call witnesses including representatives of the institutions that issued the disputed certificates.
The judge faulted the appellant’s claim that he instituted the suit based on the practice direction issued by the Chief Judge of the Federal High Court for the commencement of pre-election cases.
He noted that not only was the suit filed before the practice direction came into eeffec, the practice direction is a secondary legislation and contradicts the provision of the Constitution and the Rules of the court.
He noted that Order 3 Rule 2 (b) of the Federal High Court (Civil Procedure) Rules, provides that where there are allegations of fraud, the case must be commenced by writ of summons.
Justice Abubakar held that the suit was wrongly commenced via originating summons.
“On the whole, I find no merit in this appeal and it is hereby dismissed. The decision of the court of appeal is affirmed,” Justice Abubakar said.
He added that in line with an earlier agreement by parties, the judgment in the appeal marked: SC/CV/1132/2022 shall apply to a sister appeal marked: SC/CV/1128/2022.
Justice Augie and other members of the panel – Justices Mohammed Garba, Adamu Jauro and Emmanuel Agim – agreed with the lead judgment.