PRESIDENTIAL ELECTION TRIBUNAL: PDP ASKS COURT TO THROW OUT CPC'S PETITION

As hearing on the election petition filed by the Congress for Progressive Change (CPC) resumes today at the Presidential Election Tribunal, the Peoples Democratic Party (PDP) has asked the tribunal to throw out the petition for lacking in merit.

The party's position was contained in its preliminary objection filed by its counsel, Chief Joe-Kyari Gadzama (SAN), pursuant to Section 137 (3) of the Electoral Act 2010 (As Amended), Order 3 Rule 9 of the Court of Appeal Rules 2011, Order 46 Rule 4 of the Federal High Court (Civil Procedure) Rules 2009 and Paragraphs 4 (d) and 47 (1) of the 1st Schedule to the Electoral Act 2010 (As Amended) and under the inherent powers of the Court of Appeal.

The party argued that the said petition, having been filed on Sunday, May 8, 2011 which is a public holiday, a dies non juridicus, adding that the the Registry of the Tribunal does not open on a Sunday.

According to the party, it is not in dispute that the petitioners filed their complaint on May 8, 2011, a Sunday. The position of the law on public holidays can never be over-emphasized. For the avoidance of doubt and for the purpose of clarity, Section 15 (5) of the Interpretation Act CAP I 23, LFN 2004, in defining a public holiday states thus:

'In this section, 'holiday' means a day which is a Sunday or a Public Holiday' The Public Holidays Act CAP P40 LFN 2004 is even more explicit in its exclusion of Sundays from the list of working days. Section 4 of the Act specifically reads thus:

'No person shall be compellable to do any act on a day appointed by or under the provisions of this Act to be kept as a public holiday which he would not be compellable to do on a Sunday'.

'Thus section 4 of the Public Holidays Act clearly sets Sundays as the benchmark for Public Holidays. The pertinent question is whether or not; a court can sit or validly transact court business on a Public Holiday. Likewise, Order 46 Rule 4 of the Federal High Court (Civil Procedure) Rules 2009, which are the Rules guiding this Honourable Court states thus:

'Subject to the directions of the Chief Judge, sittings of the court for the dispatch of civil matters shall be held on every weekday except: On any public holiday, during the week beginning with Easter Monday, during the period beginning on December 23, and ending on January 5.

He said: ' During the long vacation, i.e. the period beginning in any day in August and ending on date not less than six weeks later ending on a Friday as the Chief Judge may by notification in the Gazette appoint.

'In Patrick Ikhariahle -V- Okoh 2008, 2 LRECN Pg 47 @ 55-56 Ratio 9 and 10, it was held most emphatically that courts cannot sit or transact court business (filing of processes, certification of documents etc) on 'Sundays'.

But if the court refuses to agree with it on this point, then it should in the alternative, strike out paragraphs 14 (d) iv and 38 of the petition which according to the party, contain complaints against the Nigeria Police Force, civil security and the Nigerian Army who are not parties to the petition. Besides, Gadzama said the failure of the Petitioner to join the Nigeria Police Force, civils and the Nigerian Army as parties to the Petition despite complaints made against them in the said paragraphs of the petition render the petition in effective.

On this point, Gadzama said, 'The Electoral Act 2010 (As Amended) is lucidly clear on those who must be made parties to a petition i.e. those who are necessary parties and must as a matter of course be made parties to the petition because without them, the issues raised cannot be effectively resolved. The Courts have been even more emphatic: where specific allegations are leveled against persons or group of persons, the proper procedure in law is to join them as parties to the petition. In the instant case, since they have been mentioned severally in Paragraphs 14 (d) (iv) and 38 of the petition, the police force, the Army and civil security in general should have been joined in order for them to confirm or refute the allegations leveled against them by the petitioner.

While asking the court to strike out the names of the INEC National Commissioners and Resident Electoral Commissioners from the petition, the PDP submitted that they are not necessary parties to this petition in view of Section 137(3) of the Electoral Act 2010, (As Amended), which provides as follows: '( If the petitioner complains of the conduct of an Electoral officer, a Presiding Officer or Returning Officer, it SHALL (emphasis ours) not be necessary to join such officers or persons notwithstanding the nature of the complaint and the Commission shall, in this instance, be made a respondent; and deemed to be defending the petition for itself and on behalf of its officers or such other persons.'

Gadzama contented 'One cannot claim ignorance of the previous position of the law regarding the compulsory joinder of Electoral Officers against whom the Petitioner has leveled allegations but we submit with respect that the law in respect of that particular requirement has changed. For the avoidance of doubt, section 144 (2) of the 2006 Electoral Act states thus:

'The person whose election is complained of is, in this Act, referred to as the Respondent, but if the petitioner complains of the conduct of an Electoral Officer, a Presiding Officer, a Returning Officer or any other person who took part in the conduct of an election, such officer or person shall for the purpose of this Act be deemed to be a respondent and shall be joined in the election petition in his or her official status as a necessary party. PROVIDED: that where such officer or person is shown to have acted as an agent of the Commission, his non-joinder as aforesaid will not on its own operate to void the petition if the Commission is made a party.' Hearing continues.