JONATHAN, PDP LOSE BID TO STOP CPC PETITION
Congress for Progressive Change (CPC) on Thursday crossed a major legal hurdle at the Presidential Election Tribunal where the Court of Appeal threw out the objections raised by President Goodluck Jonathan and his Peoples Democratic Party (PDP) challenging the merit and competence of its petition.
However, allegations of conspiracy and rigging brought against the police and civil defence corps by the party were struck out from the petition on the grounds that they were not joined as respondents in the petition.
In their notice of preliminary objections, counsel to president Jonathan and Sambo, Chief Wole Olanipekun (SAN) and Chief Joe-Kyari Gadzama (SAN) who appeared for the PDP had asked the Tribunal to throw out CPC's petition for being a nullity having been filed on Sunday, May 8, 2011, which they noted was a non-working day and that the registry of the court, under the applicable rules does not open on Sunday for transaction of any business.
They said that the petition was not properly constituted because General Muhammadu Buhari and Pastor Tunde Bakare for whose benefit the petition was filed were not made parties to the petition.
Jonathan and Sambo said that the court lacks the jurisdiction to entertain the petition because some of the grounds relied upon by the petitioner were pre-election matters which could not be determined by an election tribunal.
Delivering ruling on the fierce objection argued by three Senior Advocates of Nigeria, the tribunal stood its ground that it would not act on technicality to dismiss the petition at the preliminary stage without looking into its merit.
President of Court of Appeal and Chairman of the tribunal, Justice Isa Ayo Salami who gave the ruling said that the president, PDP and INEC failed to disclose injustice or damages they stand to suffer if the petition was heard.
Citing section 150 (1) of the Electoral Act 2010, the tribunal said that there was a presumption of regularity and that the Public Holiday Act relied heavily upon by the three applicants did not apply to the case at hand.
The tribunal held that the respondents will have nothing to lose by the petitioner filing its petition on a Sunday adding that notwithstanding the provision of the Public Holiday Act, the Permanent Secretary may, in the interest of the public request any person to perform official functions on a Saturday, Sunday or public holidays.
'If it is in public interest, public servants can work on weekends. Public interest means, that election petition should be dealt with expeditiously. Even the Electoral Act reflected on this', Justice Salami stated and resolved the issue in favour CPC.
On non joinder of Buhari and Bakare as parties in the petition, the tribunal held that the Electoral Act gives political parties the powers to file election petition, saying that, 'the Electoral Act recognises the in-alienable right of the party to file a petition at the tribunal, so, it cannot be struck out for non joinder of Buhari/Bakare. This court has the jurisdiction to hear and determine the petition, even without joinder of the two persons'.
Jonathan, PDP and INEC had filed three different motions praying that the petition should not be heard for being illegal and incompetent, the president of the Court of Appeal, struck out the motions for lack of merit and for being premature.
Justice Salami who is heading the 5-man panel hearing the petition held that filing of the petition on Sunday was just a mere technicality that should not be allowed to sniff live out of the petition.
However, PDP said that it was not satisfied with the tribunal position and vowed to challenge it at Supreme Court.
PDP lawyer, Chief Joe Gadzama SAN, told newsmen that the potency of the ruling would be tested at the apex court.
He said that the party would not apply for a stay of proceeding in the main petition since the Electoral Act did not envisage the present position.
The tribunal opined that if CPC were actually interested in challenging the alleged roles of the Army, Police and Civil Defence in the election, it would have joined them as defendants in the petition.
Justice Salami said that it would be grossly unfair to sustain the allegations against the three bodies since they would have no opportunity to defend themselves before the tribunal.
President Jonathan, PDP and INEC had argued fiercely in their motions that the CPC petition was a nullity and a lifeless paper having been filed on a non working day for civil servants and for all public institutions.
They canvassed that since the petition was filed on a public day, it should be declared null and void and hold that there was nothing to adjudicate upon by the tribunal.
They contended that CPC had slept off on its rights as far as the petition was concerned by not filing it during a working day recognised by law.
Justice Salami while rejecting the arguments held that tribunal did not fall under regular courts and that it could even sit on any day to meet up with the stipulated 90 days to dispose of the petition.
Meanwhile, hearing of the substantive petition has been fixed for August 1.