ABUJA—The Abuja Division of the Court of Appeal, yesterday, dashed the hopes of former Minister of Information, Prof. Jerry Gana, to participate in the February 16 presidential election.
The appellate court, in a unanimous judgement by a three-man panel of justices, vacated a judgement of the High Court of the Federal Capital Territory that directed Independent National Electoral Commission, INEC, to recognise Gana as the presidential candidate of Social Democratic Party, SDP.
The appellate court declared the former governor of Cross River State, Donald Duke, as the authentic presidential flag-bearer of the party for the impending poll.
It will be recalled that the SDP had at the end of a primary election it conducted on October 6, declared Duke, who polled 812 votes, as winner, with Gana who garnered a total of 611 votes, as the runner up.
However, the high court, in a judgement delivered by Justice Hussein Baba-Yusuf of the FCT High Court on December 14, 2018, stripped Duke off the presidential ticket of the party and handed it to Gana.
Dissatisfied with the judgement, SDP and Duke approached the appellate court to set it aside.
However, while vacating the injunction, yesterday, the appellate court held that the reasons the high court gave for nullifying Duke’s candidacy was “clearly not valid.”
Justice Abdul Aboki held that the judgement that disqualified Duke on the premise that he is from the southern part of the country was “perverse” and in grave violation of Article 10 of SDP Constitution that guaranteed right of its members to vote and be voted for.
“What the trial court has done is to take away the right of equal opportunity granted to be voted for in presidential primary of the party,” it said.
Other Appellants in the matter were the National Chairman of the party, Chief Olu Falae, the National Secretary, Shehu Musa Gabam, and the chairman of SDP Presidential Screening Panel/ Deputy National Chairman, South, Prof. Tunde Adeniran.
The appellants, through their lawyer, Chief Wole Olanipekun, SAN, maintained that the lower court erred in law when it wrongly placed reliance on its amended constitution ratified on October 6, the same day the presidential primary election held.
They argued that whereas it was the 2018 amended constitution of the party that contained provisions for zoning and rotation of political offices, the presidential primary poll was conducted with the SDP constitution of 2011.
While delivering judgment on the matter, the appellate court, upheld the argument of the appellants, stressing that the amended constitution of the party could not take retroactive effect.
The appellate court noted that though the said amended constitution was ratified and adopted at the national congress of the party on October 6, it said the document did not take effect till October 8 when it was duly transmitted to INEC.
It said there was nothing in both the former and amended constitutions of the party that curtailed the right of its members, to at any time, vote or be voted for.
The appellate court held that the high court judgment that handed the presidential ticket to Gana was “perverse and wrong”.
It held that the lower court’s verdict was a violation of Duke’s right to freedom from discrimination, adding that Gana was bound by an undertaken he signed to support any candidate that emerged from the presidential primary contest.
The appellate court described the purported zoning formula as “a mere political arrangement” to help SDP to win elections, saying it had nothing to do with the qualification of a candidate.
It held that Gana’s complaint was not that there was any violation of the Electoral Act, but that Duke who is from the Southern part, was not qualified to contest the presidential election.
“Such a complaint does not disclose a cause of action”, Justice Abdul Aboki who read the lead judgement held.
Moreover, the court noted that five out of the six aspirants that participated in the SPD presidential primary poll were all Southerners, even as it wondered why Gana did not raise any issue until he contested and lost the ticket.
“There is no dispute that the 6th Appellant (Duke) is qualified under the 1999 constitution, as amended, to contest for presidency”, the appellate court held, adding that the zoning arrangement “has nothing to do with due process of the primary election”.
It held that Prof. Gana was aware of the the said rotation formula before he freely signed the undertaken.
The appellate court therefore resolved all the issues against Gana and ordered him to pay N500,000.00 cost to all the five Appellants in the matter.
Gana had in his suit, insisted that Duke’s participation in the primary poll was in contravention of Article 2 and Article 15 of the SDP constitution, 2018, and therefore null and void and of no effect whatsoever.
He urged the trial court to determine whether being the only candidate from the North, his name ought not to have been forwarded to the INEC.
Alternatively, he prayed the court to determine whether by provisions of section 87(1) (2) (7) and (9) of the Electoral Act, 2015, and Article 2 and 15 of the SDP Constitution, the party’s failure to issue guidelines for the presidential primary election did not invalidate the outcome.
He, therefore, applied and secured a perpetual injunction that restrained Duke from parading himself as the SDP presidential candidate.
It held that process for the presidential election commenced from the moment Duke obtained his expression of interest and nomination forms, in compliance with an announcement the party made on August 17, wherein it gave September 7, 2018, as last day for submission of forms by aspirants.
According to the appellate court, it was the 2011 constitution of the party that was in force at the time the process for the presidential primary election was kick-started.
