The Court of Appeal sitting in Abuja has dismissed a motion by a former Minister of State for Education of Nigeria, Chukwuemeka Nwajuba seeking leave to appeal as an interested party in a pre-election suit by a non-governmental organisation challenging the nomination of Bola Ahmed Tinubu as the presidential candidate of the All Progressives Congress (APC).
The three-man panel of the court upheld the argument of the party’s lawyer, Barrister Babatunde Ogala (SAN) that the motion was frivolous.
The justices told Nwajuba’s lawyer that had he failed to withdraw the motion, he would have been punished and made to face the risk of being de-robed.
The appeal flowed from Suit No FHC/ABJ/CS/1960/2022. filed at the Federal High Court in Abuja by the Incorporated Trustees of Kingdom Human Rights Foundation International against the APC, challenging its nomination of Tinubu as its presidential candidate.
The INEC Chairman was the other defendant.
The NGO contended that the candidate did not declare to the Independent National Electoral Committee (INEC), the source of the funds used in purchasing his nomination and expression of interest forms.
The suit was before Justice Binta Nyako.
The applicant prayed for several reliefs, including a declaration that having regard to Section 90 (3) read alongside Section 84(13) of the Electoral Act, 2022, the 1st Defendant (INEC) deliberately refused to exercise the powers and statutory duty/obligation “to immediately expunge and remove the 3rd Defendant’s name Bola Ahmed Tinubu from the final list of Presidential candidates contesting the 2023 Presidential election for failure of the 2nd Defendant to comply with the mandatory provisions of Section 90(3) of the Electoral Act, 2022.
“An order nullifying and setting aside as illegal, null and void, the nomination of the 3rd Defendant as Presidential candidate of the 2nd Defendant for the failure of the 2nd Defendant to comply with the mandatory provisions of Section 90(3) of the Electoral Act, 2022.”
In defence of the suit, the APC through Ogala, filed a Memorandum of Conditional Appearance, a Notice of Preliminary Objection and a Counter-Affidavit with Written Addresses.
The Preliminary Objection was premised on the ground that the suit was statute barred. That proper parties i.e. presidential Aspirants of the 2nd Defendant were not joined. That the suit was premature by virtue of the provisions of section 90(4) of the Electoral Act. And the suit constituted an abuse of Court Process.
Justice Nyako, On January 27, 2023, upheld the Preliminary Objection it agreed that the Plaintiff’s action was statute barred and the Plaintiff lacked the locus standi to maintain the suit against the 2nd Respondent and indeed all Respondents.
The Court dismissed same for being an abuse of court process and because the Plaintiff (NGO) lacked the locus standi to institute same.
The parties involved in the matter particularly the Plaintiff did not challenge the decision till the expiration of 14 days mandatorily required by the 1999 Constitution for Pre-Election Appeals.
But Nwajuba, who had challenged the nomination of Senator Bola Ahmed Tinubu (President-Elect) in two suits and had them dismissed by the Supreme Court and Court of Appeal respectively, then filed a motion seeking leave to appeal the judgment of the Federal High Court in the instant suit in which he was never a party.
Nwajuba’s motion seeking leave to appeal as an interested party was in Suit CA/ ABJ/PRE/ROA/CV/439MI/2023.
The office of Babatunde Ogala SAN & Co filed Counter- Affidavit to the notion seeking leave to appeal challenging amongst other things, the competency of the Motion with reference to section 285(11) of the 1999 Constitution.
When the matter came up for hearing yesterday, Ogala told the court that the application was an abuse, statute-barred, incompetent and a complete waste of time.
He said the application was seeking leave to appeal a pre-election judgement delivered on the 27th of January, 2023 through a motion that was filed on the 11th day of April, 2023.
The Court agreed with his submissions and, having confirmed the dates from the applicants’ counsel, ordered the appellant’s counsel to withdraw same.
Following, the Counsel’s reluctance to withdraw the application, he was persuaded by other counsel in court. He withdrew the motion and it was struck out.
In a unanimous ruling, the appellate court held: “The Applicant counsel having withdrawn the Motion seeking leave to appeal, the Motion is hereby struck out.
“Counsel to the Applicant is hereby admonished that not all cases are worth taking regardless of the calibre of persons involved.
“Counsel is lucky he withdrew the Motion else punitive measures would have been taken, including referral to the Legal Practitioners’ Disciplinary Committee (LPDC) where he may be de-robed.
“Senior legal Practitioners are advised to desist from filing frivolous suits and sending juniors on dates for hearing.
“There are learned silks here and none of them have stood up to say anything because they are unhappy with your conduct in court today.”
Ogala (SAN) thanked the court and apologised on behalf of Counsel to the Applicant.
