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Nigeria: S' Court Dismisses ALP Petition Against Yar'Adua
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This Day (Lagos)
10 May 2008
Posted to the web 12 May 2008
Funso Muraina
Abuja
The Supreme Court has dismissed the petition filed by the African Liberation Party (ALP) seeking nullification of the April 2007 election in which Alhaji Umaru Musa Yar'Adua was declared president.
In the unanimous judgment of a panel of five justices presided over by Justice Aloysius Katsina-Alu, the court held that the petition lacked merit.
Justice Tanko Mohammed, who read the lead judgment, said: "By the provision of Section 22 of the Supreme Court Act which entitles the court to exercise all those powers and jurisdiction that are exerciseable by the lower court, and as the lower court is empowered by Paragraph 3 (4) of the Practice Directions to dismiss the petition where the petitioner and the respondent fail to bring an application for such dismissal, I hereby dismiss the petition pending in the court below. I order each party to bear its own cost."
The court held that the petitioners and the respondents did not comply with the Practice Direction guiding the hearing of the petition at the Presidential Election Tribunal.
According to the court, certain motions which were, by the provision of the Practice Direction, ought to have been heard at the pre-hearing conference, were heard by the tribunal at the open court session.
The court therefore, set aside all the proceedings before the tribunal on the ground that it had no jurisdiction to hear it.
"I hold that the court below lacked competence and had no jurisdiction to entertain the Motion on Notice filed on August 8, 2007 by the petitioner and the preliminary objection filed by the first and second respondents.
"The proceedings, including the ruling delivered on March 20, 2007 are a nullity. They are hereby set aside."
It would be recalled that ALP and its presidential candidate, Chief Emmanuel Okereke filed the petition before the Presidential Election Tribunal.
They were asking the Tribunal to nullify the election of Yar'Ardua on grounds of non-compliance with the provision of the Electoral Act and other grounds.
The tribunal presided over by Justice James Ogebe had struck out the petition on technical grounds that it was "incurably defective" as it failed to conform with the mandatory provisions of the Electoral Act 2006.
Specifically, the five member tribunal had unanimously held that the petitioners failed to attach to the petition, list of witnesses, witnesses statements on oath and the list of documents to rely on.
The judgment of the tribunal was based on the preliminary objection filed to the petition by counsel to Yar'Ardua and INEC Dr. Alex Izinyon (SAN) and Chief Kanu Agabi (SAN) respectively.
Dissatisfied with the judgment of the Tribunal, counsel to the petitioners, Prince Orji Nwafor-Orizu had filed the appeal before the apex court.
Nwafor-Oritzu, had told the apex court that the Tribunal erred in law in dismissing his clients' petition on a preliminary objection raised at the open court.
The lawyer contended that, by the provisions of the Tribunal's Practice Direction issues relied on in striking out the petition ought to have been settled at the pre-hearing session of the tribunal and not during the open court session.
He contended that the Practice Direction stipulates that preliminary objection, applications on points of law and motions shall be determined at the pre-hearing conference stage.
"The tribunal disregarded this provision in dismissing the petition on a preliminary objection raised and heard in an open court after the pre-hearing conference had been concluded," he said.
Izinyon had said that the petition was incurably defective and the tribunal was right in dismissing it.
"What we have is a petition without witness statement on oath, no deposition to enable the respondents reply and to trigger off argument. I therefore urge this honourable court to hold that the appeal is unmeritorious and no miscarriage of justice has been done by the lower tribunal," he added.
Agabi had also argued along the side of Izinyon that the petition was incompetent and could not have gone in to trial.
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He said that the petition was not supported by any fact which prompted the petitioners to had asked the lower tribunal to grant them leave to supply further particulars.
"The petitioners made attempt to re-write the petition when they realised that it was defective but this was not allowed by the tribunal," he said.
He had urged the apex court to dismiss the appeal and affirm the judgment of the tribunal.
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