Court of Appeal, Abuja dismisses case against Tinubu

On Friday, 17 February 2023 the Court of Appeal, Abuja upheld the Preliminary objections filed by the office of Babatunde Ogala SAN & Co on behalf of Asiwaju Bola Ahmed Tinubu, Presidential Candidate, All Progressives Congress. That was Hon. Emeka Nwajuba, (former Minister of State for Education) and Incorporated Trustees of Rights for all International.
Asiwaju Bola Ahmed Tinubu, Presidential Candidate, All Progressives Congress

On Friday, 17 February 2023 the Court of Appeal, Abuja upheld the Preliminary objections filed by the office of Babatunde Ogala SAN & Co on behalf of Asiwaju Bola Ahmed Tinubu, Presidential Candidate, All Progressives Congress. That was Hon. Emeka Nwajuba, (former Minister of State for Education) and Incorporated Trustees of Rights for all International.

Chronology of Case

The Federal High Court sitting in Abuja per Honorable Justice Inyang Eden Ekwo on the 15th December 2022 dismissed a suit filed by Hon. Nwajuba, Tinubu in Suit No: FHC/ABJ/CS/ 942/ 2022.Other parties sued are the Peoples Democratic Party, Alhaji Atiku Abubakar, Attorney General of the Federation and the Independent National Electoral Commission.

The suit which was filed on the 17th of June, 2022 and amended pursuant to an Order of the court on the 31st of August, 2022, prayed to the Court for Thirty-two reliefs with the main reliefs as follows:

A DECLARATION that having regard to the clear, unambiguous and express provisions, spirit and tenor of Articles 11(a) (i), 12 (1) and 13 (1) of The Constitution of the All Progressives Congress (2014) as Amended, the special convention of the 1st Defendant held on the 6th and 7th June 2022 was not properly constituted as regards the composition of delegates who should attend and vote at the said convention and did not confer the convention the powers to elect the 3rdDefendant as the Presidential Candidate of the 1st Defendant for the 2023 Presidential election.

A DECLARATION that having regard to the clear, unambiguous and express provisions, spirit and tenor of Section 33(1) And (5) (C) of the Constitution of the People’s Democratic Party 2017 as Amended, the Special National convention of the 2nd Defendant held on the 28 and 29th of May, 2022 was not properly constituted as regards the composition of delegates who should attend and vote at the said convention and did not confer the convention the powers to elect the 4th Defendant as the Presidential candidate of the 2ndDefendant for the2023 Presidential election.

A DECLARATION that having regard to the clear, unambiguous and express provisions, spirit and tenor of Section 6(6) (A) (B) And (C) read alongsideSection 15(5) of the 1999 Constitution of the Federal Republic of Nigeria as amended, this Honorable Court has the inherent judicial powers to nullify, cancel and declare as illegal, null and void the votes scored by the 3rd and 4thDefendants at the special national convention of the 3rd  and 4th Defendants at the special national convention of the 1st and 2nd Defendants held on the 6th and 7th of June 2022 and on the 28th and 29th of May,2022 respectively, and which produced the 3rd and 4th Defendants as the 2023 Presidential candidates of the 1st and 2nd Defendants on the grounds of corruption, buying and selling of delegates votes and voter inducement.

A DECLARATION that all the votes cast in favor of the 3rd and 4th Defendants at the special convention of the 1st and 2nd Defendant held on the 6th and 7thof June 2022 and on the 28th and 29th of May, 2022 respectively are illegal, null and void and of no effect whatsoever on the grounds of corruption, buying and selling of delegates votes and voter inducement.

AN ORDER CANCELLING, SETTING ASIDE AND NULLIFYING the votes scored by the 3rd and 4thDefendants at the special national convention of the 1st and 2nd Defendants held on the 6th and 7th of June, 2022 and on the 28th and 29th of May, 2022 respectively and which produced the 3rd and 4thDefendants as the presidential candidates of the 1st and 2nd Defendants on the grounds of illegality,voter inducement and corruption.

AN ORDER returning the 2nd Plaintiff as the duly elected/ nominated Presidential candidate of the 1stDefendant being that by operation of Section 90(3), the 2ndPlaintiff, Honorable ChukwuemekaNwajuba is the only candidate out of the 10contestants who polled votes at the 1st Defendants’ convention and whose source of the N100m is verified and complied with the electoral Act as contained in the print out of the names in the bank statement of over 1000 individual contributions person.

AN ORDER OF PERPETUAL INJUNCTION RESTRAINING, BARRING AND PROHIBITING the 6thDefendant from accepting the candidacy of the 3rd and 4th Defendants from the 1st  and 2ndDefendants as their Presidential candidates for the 2023 Presidential elections on the grounds that their emergence offends the provisions of the Electoral Act and their party’s constitution in the composition of the national convention; and the federal character principle enshrined in theConstitution of the Federal Republic of Nigeria as amended.

In defense of the suit, the Law Office of Babatunde Ogala (SAN)& Co on behalf of All Progressives Congress filed its’ Memorandum of Conditional Appearance, a Notice of Preliminary Objection and a Counter-Affidavit with Written Addresses. The Preliminary objection was premised on the following grounds:

That the Affidavit upon which the suit predicated is incompetent by operation of law as the Deponent had no knowledge of the facts deposed.

That the Plaintiffs lacked the Locus standi to institute and maintain the suit against the 2nd

The Originating summons is incompetent not issued or sealed by the Registrar of the Federal High Court.

The Plaintiffs lacked the cause of action to institute or maintain the suit against the 2nd

Proper parties were absent in the suit.

And the suit constituted an abuse of the Court Process.

On the 21st of October, 2022 when the matter came up for hearing, Mr. Babatunde OGALA SAN, on behalf of the All-Progressives Congress adopted the Notice of Preliminary filed and prayed the Court to dismiss/strike out the suit for want of jurisdiction. Counsel to the Plaintiff in reaction to the Notice of Preliminary Objection filed a Motion on Notice seeking to dismiss the Preliminary objection, adopted same in urging the Court to dismiss the objections filed and proceed to determine the suit on its merit.

The trial judge while delivering his judgment on the 15th of December, 2022 ruled first on the Motion on Notice of the Plaintiff seeking to dismiss the Preliminary objection of the 1st Defendant that no Preliminary objection can be raised to a Preliminary objection, the Motion was an aberration in Law and dismissed same accordingly.

Secondly, on the Preliminary objection filed on behalf of the 1st Defendant, the Court agreed with learned counsel to the 1st Defendant (APC) that both Plaintiffs lacked the locus standi to institute and maintain the action against the 1st Defendant. The 1stPlaintiff being Incorporated Trustees of Rights for all International while the 2ndPlaintiff (Hon. EmekaNwajuba) lacked the locus standi to challenge the Primaries of the 2nd and 4thDefendant and having joined both causes, the suit is fundamentally defective.

The court noted, that while other grounds in the Preliminary objection of Mr. Ogala SAN were germane, there will be no need to consider the same as the issue of Locus already raised is a threshold issue which the Plaintiffs lack and the court must lack the Jurisdiction to proceed.

However, as a matter of judicial obligation on trial Courts, the Court considered the merits of the case. The Court adopted the first issue raised in the Preliminary Objection of Mr. Ogala SAN raised on behalf of the APC that the affidavit in support of the Originating summons was incompetent as the Deponent was barred by operation of Law, lacked knowledge of the facts of the Convention being a secretary in the office of the 1stPlaintiff.

It was the finding of the Court that it was an issue related to evidence and could only be taken on the merits. The Court agreed with the submissions of the learned Silk that the Deponent who was informed of the facts of the case by the counsel who instituted the action could only amount to hearsay as the counsel was never present in the Special Convention of the 1st Defendant nor was there any averment that he was an eye-witness of the Special Convention and the entirety of the Affidavit which forms the premise of the case of the Plaintiff falls flat on its’ face as it is grossly incompetent and inadmissible in Law.

The Court on the issue of abuse of court process raised by Mr. Ogala SAN, averted its’ mind to Section 823(1) and 825 (1) (b) of the Companies and Allied Matters Act, 2020 to hold that the 1st Plaintiff had deviated from its objectives as a Non-Governmental Organization to seeking politically motivated litigations and thus made a consequential order dissolving the 1st Plaintiff effective immediately. The Registrar-General of the Corporate Affairs Commission to take over the activities of the 1st Plaintiff.

On the whole, the suit was dismissed as lacking in merit.

Aggrieved by the Decision, Emeka Nwajuba through his legal representative as stated in the affidavit in support of the Originating Summons i.e. The Incorporated trustees of Rights for All international appealed the Judgement of the Lower court which dissolved the NGO having become unlawful by engaging in activities outside the tenets of its incorporation.

The Appeal was commenced by a notice of Appeal dated the 28th of December, 2022, records were transmitted and the Appellants Brief of Argument was filed. .

The reliefs sought by the Appellant were;

An ORDER allowing the Appeal on the grounds that the lower Court delivered its judgment outside the 180 Days required by the 1999 Constitution as amended and as such a nullity

Ghani AROBO Esq with Gbenga BENSONEsq counsel in the law office of Babatunde Ogala SAN& Co filed preliminary objections and Respondent Briefs against the Appeal and the Appeal was heard by a 3 man Panel of the Court of Appeal on the 15th day of February, 2023 and judgment was reserved.

In a considered judgment, delivered on the 17th day of February, 2023 the court of Appeal, upheld the Preliminary objections filed by the office of Babatunde Ogala SAN & Co as follows;

That the Suit at the Lower court was not a Pre-Election matter as the Appellant cannot be said to be a person covered by Section 285(14) a, b. c of the 1999 Constitution being an NGO.

That the removal of the 2nd Defendant’s name (EMEKA NWAJUBA) at the lower court meant the Judgment of the lower Court was not appealed and the court struck out the Notice of Appeal as incompetent.

On the Merits of the case, the Court of Appeal held thus;

The Appeal was lacking in merit and the Appellant only sought to revive the dissolved NGO through the back door, the counsel to the Appellant who is also a trustee of the NGO should live with the same in sober reflections.

The Appellant is not clothed with locus as can be gleaned from Section 285(14) a, b and c of the 1999 Constitution

The Appellant is a busybody and a meddlesome interloper.

Cost of 100,000.00 (One Hundred Thousand Naira) is awarded against the Appellant and in favor of the 1st – 4th Respondents each.

The appeal is dismissed.

The judgment of the lower court delivered on the 15th Day of December 2022 is affirmed.

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