OBA v Bafil: Judgement day – Sen. Bassey Albert wins
Today, 30th November,2017 at the Court of Appeal, Calabar the Appeal between Senator Bassey Albert and Hon. Bassey Etim has been determined.
O. Ojibara, Esq for the appellant
Mba Ukweni, SAN leading 7ors for the 1st Respondent
G.A Umoh Esq leading Akpadiagha Ebitu and Ini Ememobong for the 2nd Respondent
Reading the judgement on behalf of his Learned brothers, Justice S. J.Ada,JCA held inter alia, that on the preliminary objection of the 1st Respondent(Bafil)bothering on the competence of the notice of appeal of the Appeallant, the notice of appeal is an originating process and the foundation upon which every other processes will rest on, ad there cannot therefore be an appeal without a notice of appeal. He stated that it is not the amount if notices of appealed filed that matters but the one upon which the Appeallant chooses to anchor his case on. The court therefore dismissed the preliminary objection for lacking in merit as substantive justice not technical justice is what the court is called upon to do.
On the main case, the court held on the 5 issues raised by the appellant as follows:
It is trite law that it is the responsibility of the political party to present candidates and that the recording of the result must be done on the specified sheet according to the guidelines of the party for the elections. The court held that a court cannot prospect for evidence but to evaluate evidence before her. The result sheet tendered by the appellant is in conformity with the guidelines whereas the result sheet submitted by the 1st Respondent (Bafil) is not consistent with the guidelines and therefore it is held that the result sheet tendered by the appellant (OBA) is admitted as being genuine and therefore ought to have been relied upon by the court below. The appellate court resolved issues 1,2 and 5 in favour if the appellant (OBA).
On issues 3 and 4 bothering on whether the court had the powers to grant reliefs not asked for by the claimants now 1st Respondent? The court held that
The claimant can only get what he claims and nothing more, adding that a judge should not Both are a case by wrongly evaluating the evidence before him. in the instant case, the court must be cautious in giving consequential orders. The issue of return of salaries and allowances were not consequential but substantive in nature and the lower court went on a hunting spree for evidence.
Therefore issues 3 and 4 are resolved in favour of the appellant.
The Appealate court in determining the controversy as to who was the winner of the nomination for uyo senatorial district the court will rely on the authentic result sheet which was that entered in the recommended sheet and supervised by the authorised persons to so act. It was further held that the trial court ought not to have discountenanced the documents tendered by the appellant.
The judgement of the lower court was perverse and can therefore not stand in view of the above, to this end the nomination of senator Bassey Albert is upheld and the judgement of the lower court is hereby set aside along with all the orders made therein.
Judgement of the Court of Appeal In OBA vs BAFIL in a nutshell
Parties to this suit agree on the fact that this suit lies on the authenticity of mandate they so claim. In resolving this the PDP Constitution and guideline is the final authority.
See Sec. 50 PDP Constitution.
It is trite law that selection of candidate is done by the political party. And it sets down guidelines to be followed which in this case was followed (See article 30 of the guidelines) exhibit 23 shows that the appellant was cleared to stand for nomination which he won with 363 votes as contained in exhibit 19 (result sheet)
INEC is by law an impartial umpire not to interfere in domestic affairs of party. The lower court therefore should have recognized the result as tendered by INEC and not to discountenance it in such a way as to make it seem as though “The court is on a mission to fuel injustice”
On the other hand the exhibits tendered by the respondent supporting his case are flawed with inconsistencies in form and contents for example the Returning officer signed the result on the 9th December While electoral officer signed on 7th Dec.
The lower court went on an expedition hunting for evidence. There is no evidence that the Appellant was hoisted or imposed on the party as the candidate to represent Akwa Ibom North East in the senate.
The duty of the court in this case was to determine which document is authentic
Exhibit19 appears to be the only one signed by the officers appointed constitutionally by the panel set up by the party for this purpose thus, the lower court had no reason whatever to reject them. And the 2nd Respondent whose duty it is to conduct election did so and tendered exhibits to prove this. This also the court had no reason to discountenance.
Moreso where the lower court had nullified the said primary that produced the appellant as a candidate the same court could not have justifiably declare 1st Respondent winner. You cannot declare a party winner of a nomination you declared null and void. This is “Great miscarriage of justice”
The Judgment of the trial court is hereby set aside and the appeal allowed.
Bassey Albert Akpan is by this the winner of the nomination held on December 7th 2014.
Parties are to bear their cost.