The Court of Appeal, Abuja on Friday dismissed the appeals filed by a former Senator representing Kogi West Senatorial District at the National Assembly, Smart Adeyemi and that of a governorship aspirant of the All Progressives Congress (APC) in Kogi state, Mr. Abubakar Achimugu, seeking to nullify the governorship primary election of the party which produced Ahmed Usman Ododo as the party’s flagbearer for the Kogi state governorship election slated for November 11.
The court held in a unanimous judgement that the two appeals challenging the judgement of the Federal High Court sitting in Abuja lacked merit and accordingly dismissed them.
Justice Muhammed Lawal Shuaibu’s led panel held that the appellants failed to prove the criminal allegations in his case.
The Appellate court ruled that the burden of prove lies on the plaintiff who alleges irregularities in the conduct of the primary election of the APC for the nomination of its governorship candidate in the forthcoming governorship election in Kogi state.
He said, “the evidence placed before the trial court by the respondents was not controverted by the appellant in this circumstance, issue one is hereby resolved against the appellant.
“Where commission of a crime is an issue, it must be proved beyond reasonable doubt. Allegation of falsification of votes is a criminal act and it is required in law to be proved beyond reasonable doubt, which the appellant could not prove, consequently, issue two is resolved against the appellant.
“On the whole, the appeal is un-meritorious and it is hereby dismissed. The judgement of the lower court is hereby affirmed. Parties are to bear their respective cost”, Justice Shuaibu held.
Recall that Justice James Omotosho of the Federal High Court in Abuja had, in a judgement delivered on July 12, held that Adeyemi did not prove his allegation that Ododo was not lawfully nominated by the APC.
Adeyemi had alleged in his suit that the primary election that purportedly produced Ododo as the APC governorship candidate did not hold and that the results were forged.
Delivering judgement in the suit marked FHC/CS/556/2023, Justice Omotosho held that Adeyemi’s allegations of results forgery were criminal and must be proved beyond reasonable doubts.
The court noted that the burden of proof was on the applicant to produce the forged results or the original copies of the results to discharge the burden and added that, failure to discharge the burden was fatal to the applicant’s case and further held that, there was evidence that the primary election was validly held and monitored by INEC.
Dissatisfied with the judgement which affirmed the primary election that produced Ododo as candidate of the party, Adeyemi approached the appellate court to set aside the judgement.
Adeyemi had in his suit at the trial court, sought the cancellation of the primary election on the ground that it was not validly conducted and prayed the court to declare as illegal, unlawful and invalid, the purported direct primary election said to have been conducted by the APC, through which Ododo emerged as a candidate for the governorship poll.
The former lawmaker told the court that Ododo was handpicked as flag-bearer of the party by the outgoing Governor of the state, Yahaya Bello, in gross violation of Section 177 of the 1999 Constitution, Section 29 and 84 of the Electoral Act as well as Article 20 of the Constitution of the APC.
Besides, the aggrieved governorship aspirant, through his team of lawyers led by Dr Adekunle Ottitoju, prayed the court to order the APC to conduct a fresh primary election and to give all aspirants equal opportunity as prescribed by the Electoral Act, 2022.
But, in his judgement, Justice Omotosho held that the plaintiff did not by way of credible evidence, establish his allegation and said, he found no reason to invalidate the outcome of the primary election and consequently dismissed the suit for lacking in merit.
In the same vein, the Court of Appeal, Abuja dismissed Achimugu’s appeal against a judgement of a Federal High Court sitting in Abuja which affirmed Ahmed Usman Ododo as the APC flagbearer for the November 11, 2023 governorship election in Kogi state.
The appeal was against the judgement of Justice Obiora Egwuatu delivered on 18th July which held that, Ododo can lawfully continue to fly the flag of the APC in the November 11, 2023 governorship election in Kogi State.
The appellate court, in a unanimous judgement delivered on Friday held that Achimugu’s appeal is bereft of merit and affirmed the judgement of the trial court.
The court consequently dismissed the appeal for lacking in merit.
Achimugu had approached the trial court with a suit seeking to disqualify Ododo from contesting the November 11 governorship election on grounds that he did not resign his employment with the Kogi State public service 30 days before contesting the governorship primary election.
But, the trial court, in its judgment, held that contrary to the claim of Achimugu, evidence showed that Ododo resigned his appointment more than 30 days before participating in the APC primary.
According to Justice Egwuatu, exhibits tendered by the defendants showed that while Ododo’s resignation letter was received by the Office of the Kogi State Governor on March 8, that of the 3rd defendant, Mr Salami Deedat, was received on March 9.
“Satisfied that they resigned their appointment on March 8 and 9, more than 30 days before the April 14 primary election of the APC, the suit is bereft of any merit and is accordingly dismissed”, the court held.
Achimugu, in a Notice of Appeal filed on July 21 through his counsel, Josiah Daniel-Ebune said Justice Egwuatu erred in law and occasioned a miscarriage of justice when he held that Ododo and Salami Deedat (2nd and 3rd defendants) duly resigned their appointment and thus, not caught up with the mandatory provision of what the law requires them to do before they participated in the APC’s governorship primary election for Kogi state held on April 15, 2023.
He asked the appellate court for an order setting aside the judgement of the trial court and grant all his reliefs sought in his amended originating summons.
