Legal fireworks are expected Monday at the Kaduna Governorship Tribunal as Governor Uba Sani moves to terminate the petition of the Peoples Democratic Party (PDP) and its candidate, Mohammed Ashiru Isa, against his election.
The tribunal, last week Monday, set aside today, to hear the latest motion by the governor’s legal team led by former Attorney General of the Federation and Minister of Justice, Chief Bayo Ojo (SAN), to end proceedings in the petition, based on the latest pronouncement of the Court of Appeal.
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The principle of stare decisis, a Latin term that means “let the decision stand” or “to stand by things decided” makes it compelling for lower courts to line behind decisions of superior courts.
To this end, decisions of the two appellate courts; Court of Appeal and Supreme Court, are binding on election petition tribunals, where facts in cases are similar.
Sani is calling for an end to the last petition standing against his victory, by pointing to the July 18, 2023 judgment of the Court of Appeal in the case of the All Progressives Congress (APC) against Enugu State governor, Peter Mbah, knocked off at the preliminary stage due to a fatal error by the petitioners, in applying for the crucial pre-hearing notice.
The Supreme Court had held in many instances that either premature or late filing of the all-important Notice, would deem the petition abandoned and terminable.
The unanimous judgment of the three-man panel headed by Justice Olubunmi Oyewole held that the appeal brought by APC’s Uche Nnaji against the dismissal of his petition at the preliminary stage wasn’t meritorious because the filing of the pre-hearing Notice out of time, had dealt the entire petition a fatal blow.
All three justices held the petition had become abandoned by the reason of the late filing of the said Notice, adding that Justice K.M Akano-led Enugu Governorship Tribunal was right under the law, to dismiss the petition in course of proceedings.
Oyewole in his lead judgment held that “as found by the trial Tribunal, the application for the issuance of pre-hearing notice filed by the Appellants on the 6th of June, 2023, prior to the service of the final pleading in the petition on all the parties, was incompetent.
“Election proceedings are sui generis and the stipulated procedure must be scrupulously complied with, otherwise a defaulting Petitioner or party would only have himself to blame.
“The moment the Appellants failed to activate the issuance of pre-hearing notice within the stipulated period, they had abandoned their petition and there was nothing before the trial Tribunal upon which it could adjudicate any further.
“This is different from objections contemplated by Paragraph 12 (5) of the First Schedule, Section 132 (7) of the Electoral Act and 285 (8) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) in respect of which ruling would be delivered along with the final judgment.”
Oyewole went ahead to allude to Justice Olatokunbo Kekere-Ekun, now a senior Justice of the Supreme Court, in the case of Azudibia V INEC (2008) 4 LRECN 705 at 126 where she said, “a process filed prematurely is a mere piece of paper without any legal consequence.”
Armed with the very consequential judgment, Sani is now asking the Justice Victor Oviawie-led tribunal to revisit his earlier motion during the pre-hearing stage, that Isa and PDP had abandoned their petition and same, be dismissed.
Another pre-hearing motion from the governor also called for the dismissal of the petition for being filed out of time.
While the PDP petition bore official imprints of being filed at 11:45pm on the last day allowed by the extant laws, 9th of April, 2023, both the computer-generated payment evidence for the filing and the receipt issued by the Tribunal secretariat, bore 10th April, 2023, showing the petition was filed out of time.
Both receipts, showing N14,300 paid, had the name of Mr. Samuel Atung, a Silk.
Pleading an early end, Chief Ojo said “The nature of the application argued is such that could bring this Petition to an end. The Court of Appeal has recently terminated a petition based on an application that is on all fours with the one already argued by the 2nd Respondent (Sani).
In the motion referenced by the governor’s legal team, the tribunal had said ruling would be taken alongside the final judgment in the Petition.
The APC team is now contending that the latest Court of Appeal judgment had declared such wait, unnecessary, with Justice Oyewole saying an abandoned petition can be terminated at any point in the proceedings and could be suo moto, done, by the Tribunal.
In the Motion for dismissal, Chief Ojo, argued that the petition, having suffered incurable procedural error, is deemed abandoned by laws guiding petition adjudication.
He cited several legal authorities in his written address, especially decided cases of the Supreme Court and the Court of Appeal, to show the petitioners had procedurally defaulted.
In Maku v Sule, the Supreme Court held that petitioner cannot file pre-hearing notice, either prematurely or out of time.
Where this happens, the apex court’s position is that the entire petition should be dismissed.
“In a long line of cases, it has been stated, restated and reiterated what the consequence of not applying for the issuance of Form TF007 would portend and that is the dismissal of the petition” the court had ruled.
PDP and Isa however kicked, insisting that they applied for pre-trial on 26th May, 2023 and not 16th May, 2023, adding that a competent application for the issuance of pre-hearing notice, was made.
The response, taken out by S.K Musa, SAN, said the application for dismissal, “proceeds from an erroneous assumption that the application for pre-hearing of 16th May, 2023, is the only application made by the petitioners, without considering that there was a subsequent application made at the close of proceedings.”
Relying on the established precedents, Chief Ojo however, drew the attention of the Tribunal to the petitioners’ defence, as an attempt to correct the anomaly in their filings, which according to him, also failed to regularise the defective procedure they adopted.
In the further and better affidavit, the governor’s legal team leader said, “The application dated 26th May 2023 being an attempt by the petitioners to re-open pleadings is still invalid, as there was no application or an attempt to withdraw the application dated 16 May, 2023.
“Whichever way, there is no competent application for the issuance of pre-hearing information sheet, placed validly before this Tribunal.
“The petitioners are under an obligation to apply for the issuance of pre-hearing information sheet within seven days after the 30th day of May, 2023.
“We submit from the judicial authorities related thereto that the sole meaning that is derivable from the provision of paragraph 18 of the First Schedule to the Electoral Act, 2022 is that the application for the issuance of the pre-hearing notice can only be made upon the close of pleadings and not earlier or before.”
The ex-AGF also cited the decision of the Court of Appeal in Stephen v Moro, where the court held through Justice Jummai Hannah Sankey that, “From the onset it must be clarified that the law is now well settled that any application for a pre-hearing session made in the Forms TF007/TF008 before pleadings had closed and when the last respondent’s reply is yet to be served on the parties; or when the appellant’s reply to the last respondent’s reply is yet to be served, is premature and renders the petition abandoned.”
Governor Sani is seeking the order of the Tribunal to dismiss the petition on the premise that the application for pre-hearing notice, was made and served prematurely, which translated into the abandonment of the petition.
The governor, who is a co-respondent in the matter, alongside the Independent National Electoral Commission and his ruling All Progressives Congress, is also asking for an order of the Tribunal, dismissing the petition on the premise that the time for the petitioners, to bring an application for pre-hearing notice had elapsed.
Also cited by the governor’s legal team is the decided case of Labour Party v Yahaya Bello, where the consequences of faulty procedure was also reinforced.
The superior court had held, “In effect, an appellant must wait for the time frame or period of time allocated to parties to file replies before the appellant can take out Form TF007, within seven days of the service of the respondent’s reply filed within time permitted under paragraph 12 (1) of the 1st schedule, on the appellant . Paragraph 16 (1) applies mutatis mutandis to each and every other respondent to this petition, and it will be a breach of section 36 (1) of the 1999 Constitution of Nigeria as amended”.
