The three -man appeal panel, presided over by Justice Adamu Juaro, in a unanimous verdict, said Fayemi not resigning as the then Minister of Mines and Steel Development to contest the May 12, 2018 governorship primary , where he emerged as candidate, was not enough to disqualify him.
Other Justices of the appeal panel are: Justices Emmanuel Agim and Abubakar Lamido.
The Appeal court in a judgement delivered by Justice Agim, held that Fayemi’s indictment by Justice Silas Oyewole-led judicial panel of inquiry set up by former governor Ayodele Fayose to try the governor for alleged embezzlement does not suffice to bar him from participating in the election.
The Justices said only a conviction by a competent court of law can bar any aspirant from participating in a primary or general election and not a mere indictment by a panel .
The federal high court, had in a judgement delivered by Justice Uche Agomoh last year, dismissed the case for lack of merit, after which the former governor appealed the case.
Oni’s lawyer, Chief Tony Adeniyi, urged the court to determine whether the lower court didn’t commit infraction to have ruled that Fayemi, by virtue of being a Minister was not obligated to resign in line with Article 2 of the 2014 guidelines of the APC , which provided that every intending aspirant must resign 30 days to the primary.
Oni also told the court that Fayemi as a public servant must comply with this provision and he again contended that the governor having been indicted by a judicial panel of inquiry was not eligible to participate in the party’s primary.
But Fayemi, through his lawyer, Raheem Balogun, countered the position canvassed by Oni, saying Fayemi was not a public servant and was not obliged to comply with article 2 of the guideline.
He also added that the panel of inquiry that indicted Fayemi was not a court of competent jurisdiction and lacks the power to bar any aspirant from contesting an election.
In its judgement, the court, however, agreed that a Minister is a public servant as claimed by the appellant, saying the position is an office in the public service of the federation.
The appeal court said: ” We have considered the positions of all the parties regarding who is a public servant. Section 277 of the 1999 constitution explained who is a public servant and a Minister being an office in the service, is a public servant.
” But the 1st respondent(Fayemi) was not an employee since he was hired and confirmed by the Senate to perform a specific task in the Ministry of Mines and Steel Development. It is not every public servant that is an employee in the civil service”.
On the issue of 2018 primary, the Court said : ” the 30 days recommended by law for any public servant to resign is not applicable in this case, because the 1st respondent is not an employee of government and he can be removed anytime by his principal”.
In the case of his indictment by a judicial panel, the court added: “Indictment is not a conviction. Only a competent court of law can bar anyone from participating in an election.
“The judicial panel that indicted him is not a court of competent jurisdiction. It is just a fact finding body.
” And the appellant did not show any sign of prosecution of the 1st respondent and his conviction for the offence alleged to have been committed to deserve being barred”, he said.
In the primary election, Fayemi polled a total of 941 votes to defeat Oni, who garnered 481
Fayemi’s lawyer, Balogun, commended the jurists for their industries and zeal , saying they had once again reestablished the fact that Fayemi did not err in law by contesting the primary.
Oni’s lawyer, represented by Olusesan Akinola, said they would study the judgement and from there determine the next line of action.
