In a resounding decision, the Court of Appeal sitting in Lagos on Wednesday, 22nd November, 2023,delivered judgment reaffirming the victory of Senator Bassey Otu as the Governor of Cross River State with Hon Peter Odey as his Deputy. It dismissed the appeal for lacking in merit.The Appeal Court agreed with the submission made in the brief of argument filed and argued by Prof Mike Ozekhome,SAN, the lead Counsel for Bassey Otu and Peter Odey and resolved all the 20 issues formulated for determination in the Appellants’ brief by their Counsel, Dr. J.Y. Musa,SAN,in favour of the Respondents and against the Appellants,the PDP and Senator Sandy Ojang Onor. The court also slammed 1 million naira cost against each of the Appellants in favour of each of the four Respondents, Bassey Otu, Peter Odey,INEC and the APC.The court went ahead and affirmed the earlier judgment of the Cross River State Governorship election tribunal in Petition Number: EPT/CR/GOV/02/2023, instituted by Sen Prof Sandy Ojang Onor and the PDP against Otu and Odey and delivered on 26th September, 2023. The said Tribunal’s judgment had affirmed Prince Bassey Edet Otu and his Deputy, Hon. Peter Agbe Odey as competent candidates for and winners of the Governorship Election held in cross River State on the 18th of March, 2023.
The court in its lead judgement delivered by the presiding Justice, resolved issues 1,2,3,4 and 12 in favour of the Respondents and against the Appellants, holding that the tribunal was right to have declined jurisdiction in determining the membership of a political party of the 3rd Respondent, Hon Peter AGBE Odey, as it is a pre-election matter and therefore statute-barred. The court further agreed with the learned tribunal that allegedly providing false information on Form EC9, particularly Exhibit D52B, is also a pre-election matter.The court also further agreed with the lower tribunal that aside the action being statute-barred, the Appellants did not prove the alleged conflict in the names of the Secondary School attended by the 2nd Respondent, Prince Bassey Edet Otu, as decided by the Supreme Court in APC V. OBASEKI.
The court in resolving issues 5,6,7 taken together defined what a subpoena is,quoting from the book, Civil Procedure in Nigeria by Fidelis Nwadialo,SAN,at page 652).It affirmed the decision of the learned tribunal that Pw1,Pw2 and Pw3 are not persons who come under the category of subpoena to compel their attendance in court as they all were at the material time under the control of the Appellants,holding that their testimonies were rightly discountenanced. The court further agreed with the tribunal that PW3 did not present academic qualifications or qualifications of practice in the specific field of immigration to show that he was an expert in Immigration Law.
Further, the court in determining issues 8,9,10,11,12,13,14,15,16 and 17 taken together, held that the tribunal was right to have decided that the Appellants raised fresh issues in their reply to the 2nd and 3rd Respondents, as what was initially captured in their petition was that the 2nd Respondent was not educated up to school certificate level and not that he provided false information in form EC9.
In determining the remaining issues 19 and 20, the Court of Appeal affirmed the decision of the tribunal that the testimony of Pw3, the expert witness, regarding the alleged swearing to an oath of allegiance by Peter Odey was based on mere conjecture and speculation,as there was no evidence before the Tribunal showing that the Odey indeed swore to an oath of allegiance.The court held that even if he did swear to such an oath, that is not a ground for disqualification as he is a Nigerian Citizen by birth.
In the two other concurring judgements delivered by the other Justices, the court held that a deep understanding of section 285(14) and 177 and 182 (1) (j) must be appreciated in order to avoid blurring the dividing lines between pre and post- election matters,holding that the issues canvassed by the Appellants were all pre-election matters that should have been ventilated before the Federal High Court within 14 days of their happening.
The court finally dismissed the appeal in its entirety for lacking in merit and affirmed Prince Bassey Edet Otu and Hon Peter Agbe Odey as the duly elected Governor and Deputy Governor of Cross River State, respectively.
