Lagos — The Supreme Court last week ordered the Court of Appeal to commence a fresh trial into a petition by the presidential candidate of People's Mandate Party (MPM), Dr. Arthur Nwankwo, challenging the election of President Umaru Musa Yar'Adua on April 21, 2007.

The court sent the petition back to the lower court while delivering a judgement in an appeal filed by Nwankwo against the decision of the appellate court stopping him from presenting a motion after the pre-hearing conference. In the lead judgement delivered by Justice Ikechi Francis Ogbuagu, the apex court also held that all motions and preliminary objections according to practice's direction guiding election petitions tribunal must be taken and considered during the pre-hearing conference stage and not after it.

Nwankwo had at the said tribunal sought to present a motion after a pre-hearing conference, but the tribunal declined. Dissatisfied, he approached the Supreme Court to challenge the lower court's decision. In its verdict, the apex court ordered the petition back to the tribunal for retrial in the interest of justice.

The five-man panel of the Supreme Court presided over by Justice Ogbuagu, held that no court can hear any matter, motion or application if it does not have jurisdiction to do so, saying otherwise, the outcome of such a hearing would be a nullity. "The best thing to do is to remit the matter to the trial court. In conclusion, the appeal is allowed" even as the court awarded the cost of N50, 000 in favour of the appellant against each of the respondents.

Responding to the judgment, counsel to the respondent, Chief Godwin Kanu Agabi (SAN), said the judgment would help other cases in future as well as expand the frontiers of the nation's jurisprudence. He said the pronouncement of the apex court that once there is a provision for the proper way of doing something, no other way would be adopted in doing it aside from the laid out procedure provided for such. He also said that the practice direction in handling election petitions' matters must be obeyed, noting that the next option for the appellant is to comply with the order of the Supreme Court in beginning the case again at the trial court.

The presidential candidate of PMP had gone to the court of appeal seeking to annul the election of Yar'Adua and Vice President Goodluck Jonathan, alleging that the process that brought them to power contravened the electoral laws. He claimed that there were electoral inconsistencies and irregularities in the said polls and concluded that the best thing for the court to do was to pronounce the election a nullity.

But the decision of the apex court has raised suspicions in some quarters. Many observers see the ruling as another game plan to remove the Acting President, Jonathan, as quickly as possible before he consolidates his new office. They are wondering where the appellant was since December 2008 when the petitions filed by the presidential candidates of the All Nigeria Peoples Party (ANPP), General Mohammadu Buhari and the Action Congress (AC), Alhaji Atiku Abubakar were determined and concluded.

Since Yar'Adua travelled out of the country on November 23, 2009 for a medical treatment in Saudi Arabia without handing over to Jonathan, his deputy, the issue has generated a huge national debate. The President is said to be suffering from acute pericarditis. Since then, no one has seen or heard from him including all members of EXCOF. Although, he was rushed back to the country on February 24, this year, nobody including the Acting President has seen him, neither has he been able to make any public appearance.

But without seeing him or having any information on the condition of his health, members of EXCOF had, twice passed resolutions claiming that he was capable of discharging the functions of his office. The first resolution was passed on December 2, 2009 to frustrate the enforcement of the provision of Section 144 (2) of the 1999 Constitution while the second was passed on January 27, this year to allegedly rubbish the order of the Abuja Federal High Court which directed that his health should be probed. Both resolutions were allegedly passed without any access to the medical report on Yar'Adua by EXCOF.

Drama started when the then Attorney General and Minister of Justice, Chief Michael Aondoakaa (SAN) and the Chief Judge of the Federal High Court, Justice Dan Abutu, held the view that Jonathan should start exercising the powers of the President pending his recovery and return to office. All these were perceived as a device to forestall any attempt by the Vice President to lay hold on power.

However, matters got to a head when the 2009 Supplementary Appropriation Bill passed by the two chambers of the National Assembly late last year was reportedly taken to the Yar'Adua on his sick bed in Saudi Arabia for endorsement and when the out-going Chief Justice of Nigeria, Justice Idris Kutigi, was meant to swear-in the incoming CJN, Justice Katsina-Alu. These functions and many others, could have been performed by Jonathan had he been sworn-in as the country's Acting President.

While all these were ongoing, the two chambers of the National Assembly passed resolutions empowering Vice President Jonathan the Acting President. While the Senate predicated its resolution on the doctrine of necessity, the House of Representatives based its own resolution on the earlier court judgment which empowered Jonathan to assume presidential powers. This, as it was later discovered, did not go down well with the ministers and other loyalists of the president who had done everything within their power to ensure that Jonathan did not ascend the seat of power

There are strong indications that since Jonathan became the Acting President, some key ministers have been uncomfortable and thus scheming vigorously to ensure that he does not have any substantial hold on power. The ministers are believed to be agonising because of their relationship with Yar'Adua who appointed them in the first instance.

By the provision of Section 144 of the 1999 Constitution, the ministers are empowered to commence the process of the removal of the President by declaring him incapacitated, after which the Senate will set up a medical panel to examine his health status with a view to verifying the claim that resulted in his removal from office. But instead of observing this provision, most of the ministers, it was discovered, have concluded plans to apply "political mercy killing" on the President in order to free him to be properly taken care of by the family.

Currently, the ministers have been sharply divided over the powers of the Acting President, because of fears that any moment from now, they could lose their positions in a cabinet reshuffle. Some of them were said last week to have written a strongly worded memo to Jonathan advising him to maintain the status quo.

The ministers, who referred to themselves as 'wise men,' also cautioned the Acting President to avoid any attempt to refer to the current administration as 'Jonathan's administration,' insisting that it remains the 'Yar'Adua administration' till 2011. They also advised the Acting President against dissolving the cabinet and reasoned that since the ailing Yar'Adua is in the country, the Acting President does not have the power to either dissolve the cabinet or tamper with the office of the Service Chiefs.

Similarly, last week, after a crucial meeting in Abuja, the Peoples Democratic Party (PDP), announced that power must remain in the North till 2015, apparently barring Jonathan from the 2011 presidential race. Although Jonathan has barely settled into the office of Acting President, before the PDP began to send a strong message against any conception to gun for the number one position next year. PDP National Chairman, Prince Vincent Ogbulafor, said the decision was in line with the party's power rotation arrangement.

Reacting to insinuations that he was being used to frustrate the Acting President out of office, Nwankwo in a statement he issued at the weekend, said he was not "unmindful of what will be the vicious and pedantic interpretations and permutations about this Supreme Court ruling especially by the notorious fifth columnists in this country. Already some are giving interpretations totally at variance with the patriotic ruling of the court insinuating that the judgement was designed to scuttle the wheels of government, without as much realizing that even the Supreme Court, under the Supreme Court Rule, could have given us instant an judgement but decided to pass the buck to a fresh panel.

"Much as such people have the liberty to feather their imaginations and dream dreams, I consider such foreboding interpretations as arrant nonsense and products of demented minds that have already been condemned by history and humanistic conscience. Ours is a struggle anchored on good conscience and devotion to the good of humanity; it is a struggle driven by vision and mission to serve; it is a struggle defined by our massive aversion to poor governance; it is a struggle fuelled by our conviction that when the righteous is in power the people will rejoice, but when evil people are in power the people will suffer. That is the meat of our struggle.

"All through my life, I have dedicated my entire existence to the cause of the ordinary Nigerian people who have borne the brunt of poor leadership in this country; who have been unconscionably deprived in the midst of plenty; who have been subjected to the most degrading level of feeding from the garbage bins and to whom justice will always stand afar. I have always concerned myself with the strategies of how best we can build a prosperous and industrialized Nigeria, knowing that we have the potentials for achieving such standards. In pre-occupying myself with these plans, I am mindful of the fact that time is not on our side neither is history patiently waiting for us; that the enormous wealth such as Nigeria is endowed with has wings and that with its wings it can do one of two things - it can bring in more wealth or with its wings, it can fly away never to return.

"In this struggle for the good of the common man in Nigeria, I have had to endure official harassments, intimidations, blackmails, imprisonment, threats to my personal security, abuse of my fundamental human rights and exile. In all this, I have remained and will always remain unmoved and hopeful that one day, we will realize our folly and toe the path of reason. In this landmark judgement by the Supreme Court, we see an opportunity to salvage the Nigerian system and hope available to all Nigerians irrespective of gender, class, religion and ethnicity."

However, despite efforts by Nwankwo to convince people that his decision was not a renewed effort to frustrate Jonathan out of office, critics of the move view this development as the hand of Esau, but the voice of Jacob.