Tuesday, November 1, 2011

Presidential polls: Jonathan, PDP lose at Supreme Court •Tribunal decides his fate today

The Supreme Court yesterday struck out the twin interlocutory appeals filed by President Goodluck Jonathan and his Peoples Democratic Party (PDP) against the decision of the Presidential Election Tribunal, which allowed the filing of the petition challenging the outcome of the presidential election by the Congress for Progressive Change (CPC) on Sunday May 8, 2011.

Meanwhile, the validity or otherwise of the election that produced President Goodluck Jonathan and Vice President Namadi Sambo would be determined today as the Court of Appeal sitting as the Presidential Election Tribunal will deliver judgment in the petition brought by the CPC against the outcome of the April 16 polls.

The tribunal, which concluded public hearing of the petition on October 20, 2011 had reserved its judgment till today.
According to the notice issued to all counsel in the appeal, the tribunal would deliver its final judgment on the matter today at 9am.

The two appeals challenging the competence of the CPC petition were thrown out by the apex court on the grounds that the statutory 60 days allowed by the Electoral Act to determine interlocutory issues had since elapsed.
President Jonathan and the PDP had prayed the Supreme Court fervently to declare the CPC petition as incompetent because it was filed on a Sunday deemed to be a public holiday.
However, the five-man panel held that itwould not delve into the matter in view of the fact that the 60 days allowed by the Electoral Act to hear the appeals had elapsed and accordingly, directed all parties to the petition to go back to the tribunal for the determination of the case.

In the appeals, Jonathan and the PDP had, through their counsel, Chief Joe-Kyari Gadzama (SAN) and Chief Wole Olanipekun (SAN) contended that the lower court erred in law when it held “that the CPC petition, which was filed on a Sunday is competent and proper in law.
PDP said the provisions of Order 46 Rule 4 of the Federal High Court (Civil Procedure) Rules 2009 left no room for the discretion of the Chief Judge of the Federal High Court or the President of the Court of Appeal to direct the filing of a court process on a Sunday.

It also argued that Paragraph 26 (2) of the 1st Schedule to the Electoral Act 2010 (As Amended) did not in any way envisage the opening of the registry on a Sunday or a public holiday.
Jonathan on his part had contended that since the petition was filed on a public holiday, it should be declared null and void and held that there was nothing to adjudicate upon by the tribunal. He stressed CPC had slept off on its rights as far as the petition was concerned by not filing it during a working day recognized by law.

The tribunal, in its ruling on the objection, stood its ground that it would not act on technicality to dismiss the petition at the preliminary stage without looking into its merit.
The then chairman of the tribunal and President of Court of Appeal, Justice Isa Ayo Salami, who gave the ruling said the president, PDP and Independent National Electoral Commission (INEC) failed to disclose injustice or damages they stood to suffer if the petition was heard.

Citing section 150 (1) of the Electoral Act 2010, the tribunal said 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 would 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 might, 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 CPC.

When the matter was mentioned yesterday, the five-member panel of Justices of the apex court, headed by Justice Walter Onnonghen asked PDP’s counsel to address the court whether the appeal was still alive in view of the constitutional provisions that an appeal must be decided within 60 days of a ruling.

Gadzama told the court the appeal is still alive, not withstanding Section 285 of the constitution, since the 60 days as provided for in the aforesaid section will exclude the entire vacation period of the Supreme Court as well as the Court of Appeal and maintained that there were eight Saturdays, eight Sundays between 6th September 6 and October 27, 2011 when the vacation ended.

Notwithstanding the fact that judgment in the CPC petition at the Tribunal had been reserved, PDP, he said is ready to go ahead with the appeal, adding that the aforesaid section was meant to only punish litigants who were seen to cause unnecessary delay in a suit.

CPC’s counsel, Oladipo Opeseyi (SAN) told the Court that the appeal brought before it by the PDP is dead because the 60 days period within which to decide an appeal had elapsed.
The Court then adjourned till Monday 31, 2011 to rule whether the appeal is alive or dead.
Olanipekun on his part said the Supreme Court, being a creation of the constitution cannot bend provisions of the same constitution.

He submitted that the consolidated appeal is dead, adding that, “If your Lordships are inclined to striking out the appeals, there should be a recommendation for amendment of the contentious section to the National Assembly wherein, the 60 days will not be inclusive of the days of vacation.
The Tribunal had since concluded public sittings on the substantive appeal and has reserved its judgment indefinitely.