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The Federal High Court Abuja, has refused the request by the Independent National Electoral Commission (INEC), the All Progressives Congress (APC) and Mr Great Ogboru to strike out a suit filed by Mr Victor Ochei.
Ochei’s suit is challenging the outcome of the party’s governorship primaries on Sept. 30.
In the suit, Ochei joined INEC, APC and Ogboru, the governorship candidate of the APC as first, second and third defendants.
All the defendants filed notices of preliminary objection in opposition to the suit and urged the court to dismiss it.
Ruling on the suit, Justice Nnamdi Dimgba held that the court had jurisdiction to hear the matter. Justice Dimgba said rather than challenge the court’s jurisdiction to hear the matter in Abuja, the defendants should have prayed the court to transfer the case to Delta.
The court noted that there was an agreement among party members which resulted in a consent judgement given by Justice Anwuli Chikere of the Federal High Court, Abuja on June 19.
The plaintiff had argued that the subsisting consent judgment contemplated that the list of delegates brought before the court was the one to be used in the Delta APC governorship primaries.
Having used a different delegate list which produced Ogboru as the APC governorship candidate, the plaintiff held that it was at variance and a derogation of the delegates list.
He therefore urged the court to order a rerun of the party primaries.
In its preliminary objection, INEC had urged the court to strike out the matter because the five main reliefs sought by the plaintiff amounted to sitting on appeal over the consent judgement.
However, Justice Dimgba held that the contention of INEC was “highly misconceived”, insisting that the complaint did not mean extending the scope of the consent judgement.
The court opined that by virtue of Section 287(3) of the 1999 Constitution as amended, “this section makes a decision of a high court enforceable”, adding that the court had a primary obligation to enforce its orders.
The court noted that the facts and circumstances of the case arose from party primaries which was an electoral act, and that Section 87(4) of the Electoral Act provided for use of delegate list.
By not using the list sanctioned by the consent judgement, the court was of the view that a political party could not desecrate the orders of court.
In the APC’s notice of preliminary objection challenging the order for accelerated hearing made by the court in the absence of the 2nd and 3rd defendants, the court held that the argument was unlawful, held no water and summarily dismissed it.
Consequently, the court refused APC’s plea to set aside the order of abridgement because of the time sensitive nature of the issue.
On the argument of APC that the issue was an internal affair of the party and that it’s constitution said nobody should go to court, the judge said that the submission was a proposition that deserved summary dismissal.
Dimgba held that Order 22 Rule 4 of the Federal High Court rules did not apply to the case as relied upon by APC.
He noted that they should have come by way of seeking transfer of the case and not to challenge the court’s jurisdiction to hear the matter.
The objection raised by Ogboru and that of the other defendants were almost the same, forcing the court to equally dismiss same.
The only ground of objection sustained by the court was the argument of the defendants that the suit was wrongfully commenced by way of originating summons.
Dimgba agreed with the objection because he noticed conflicting depositions in the various affidavits filed by parties.
The court therefore, held that the matter was not to be determined based on material affidavits but by way of writ of summons.
Justice Dimgba directed parties to file their pleadings and claims within the stipulated time and adjourned the matter until Jan. 23, 2019 for hearing.
