PRESIDENTIAL POLLS: PDP ASKS S' COURT TO SET ASIDE TRIBUNAL RULING ON CPC'S PETITION

By NBF News
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The Peoples Democratic Party (PDP) has approached the Supreme Court to set aside the ruling of the Presidential Election Tribunal dismissing its objection raised in the petition filed by Congress for Progressive Change (CPC) against the election of President Goodluck Jonathan for being incompetent.

Besides, the ruling party has asked the apex court to strike out the names of the Independent National Electoral Commission (INEC), the Resident Electoral Commissioner (REC), Abia State and those of the 36 states of the federation joined as respondents in the petition for mis-joinder.

The PDP had asked the Court of Appeal sitting as the presidential election tribunal to throw out the CPC's petition for being a nullity having been filed on Sunday, May 8, 2011, which it noted was a non-working day and that the registry of the court, under the applicable rules does not open on a Sunday for transaction of any business.

Counsel to the party, Chief Joe-Kyari Gadzama (SAN) who argued the objections at the Tribunal submitted in his notice of appeal that pursuant to order 46 Rule 4 of the Federal High Court (Civil Procedure) Rules 2009, the Chief Judge is only permitted to give directions as to sittings on a Sunday and not filing on a Sunday, adding that the said provisions does not leave room for the discretion of the Chief Judge of the Federal High Court or President of the Court of Appeal to direct the filing of a court process on a Sunday.

Besides, he further submitted that paragraph 26 (2) of the 1st Schedule to the Electoral Act 2010 (As amended) does not in any way envisage the opening of the Registry on a Sunday or a public holiday.

In its seven grounds of appeal, the party contended that the Justices of the Court of Appeal erred in law when they held in the ruling that 'Apart from the fact that the provisions of order 46 Rule 4 are subject to the discretion of the President, the submission of the learned senior counsel Sofunde, SAN that implicit in the provision of paragraph 26 (2) of the 1st schedule to the Electoral Act, is that the Electoral Act envisages the opening of the Registry to do business on Saturdays and public holidays is unassailable.'

Gadzama said the tribunal erred in law by holding that 'In the instant case, the petitioner's petition as been said earlier bears the stamp and imprimatur of the Registrar and Registry of the Court of Appeal as having being filed on the 8th day of May and, therefore, provides prima facie evidence of the regularity or otherwise for this court to invoke the presumption under section 150 of the Evidence Act in favour of the petitioner.'

On its ground four, the party argued that the Justices of the lower court erred in law and misplaced the concept of burden of proof when they held that, 'Again, contrary to the submissions of the learned senior counsel to the respondents, the burden of establishing that there was no directive from the President to the Registrar to open the Registry on Sunday, the 8th day of May, 2011 for the purpose of filing the petitioner's petition was/is on the respondents, which has not been discharged.'

The PDP submitted in its ground five of the appeal that the tribunal erred in law by holding in its ruling, 'The parties have each cited the Supreme Court case of Anie Vs Uzoka [supra] to buttress their respective stance on why the petition should be struck out or sustained. In that case, Onu, JSC gave judicial assent to sections 6 (3) and 6 (1) that the Chief Judge (herein the Honourable President) in their roles as judicial administrators, are empowered to request work to be done on a dies non jurisdicus.

As for sitting or filing of process like the petition, which is now the bone of contention in this case, this court, per Agube JCA; had in Kupolati Vs Oke (2009) All FWLR (pt.486) 1858 @ 1916 to 1917 cited the portion of Anie Vs. Uzorka (supra) where the apex court held that any Judge has the jurisdiction to sit on a Sunday which is a dies non juridicus provided it does not compel the litigants who are members of the public or their counsel to appear in court.'

Both President Jonathan and his party had in their notice of preliminary objections, asked the Tribunal to throw out the CPC's petition for been 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 a 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.

But delivering ruling on the objections, the tribunal declined the request to throw out the petition on the ground that it would not act on technicality to dismiss the petition at the preliminary stage without looking into its merit.

President of the 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 of the petitioner (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 recognizes 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 lacking in merit and for being premature.

Justice Salami who is heading the five-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 life out of the petition.

However, PDP said that it was not satisfied with the tribunal's 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 will 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 was 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.

Meanwhile hearing of the substantive petition has been fixed for August 1.