Three litigants, Kalu Agu, Labaran Ismail and Hassy El-Kuris, who identified themselves as electorates and taxpayers have challenged the dismissal of a suit they filed against President Buhari prior to the presidential election.
The trio alleged that, Justice Ahmed Mohammed of the Federal High Court in Abuja had in a judgment last month, dismissed the suit marked FHC/ABJ/CS/1310/2018, on the premise that it was statute barred.
Cited as defendants in the matter were President Buhari, the All Progressives Congress, APC, and INEC.
Meanwhile, in their four grounds of appeal, the appellant contended that the high court judge erred by relying on a preliminary objection that was filed on behalf of President Buhari by the AGF, to dismiss the suit.
Citing several decided cases, the appellants argued that, “The Attorney General or a lawyer in his office cannot appear or file processes for the 1st Defendant”.
Besides, they urged the Court of Appeal to determine, “Whether the Learned Trial Judge was right in holding that the suit was statute-barred by computing the number of days from the 28th day of September 2018 when the 2nd Respondent held its primary election wherein the 1st Respondent was elected as a candidate of the 2ndRespondent?
“Arising from the foregoing it is our submission that the Learned Trial Judge was, with respect, wrong to have held that the objection to the representation by the Attorney General and ipso facto the processes was belated in that there was no objection to the appearance of the law officers and that the Appellants reacted to the processes filed. A court must be guided by the process before it:
“It is evident from the processes and proceedings before the court that there was a frontal challenge by the Appellants to the processes filed on behalf of the 1st Respondent by the law officers. The court was bound to rule on this issue and not sweep it under the carpet.
“Howbeit, it is further submitted that it is settled law that the issue of competence of proceedings or a process cannot be waived when the challenge goes to the fundamental nature of the process and not merely on a procedural aspect of the process
“In the circumstances of the foregoing, we urge Your Lordship to hold that the reliance of the Court on the processes and the refusal to strike them out was wrong.
“Further, we urge Your Lordship to reverse the decision of the Court, assume original jurisdiction on the matter and strike out all the processes filed by the 1st Respondent’s Counsel.
“By Section 31(5) of the Electoral Act, it is the information given by the 1st Respondent, the candidate to the 3rd Respondent that is the subject matter of this suit.
“It is, with respect, inconceivable that, in the light of the clear and express provisions of Section 31 of the Electoral Act and the reliefs sought, the Court reasoned that the Appellants could be challenging the information set out in a document submitted to a political party by an aspirant.
“It is, with respect, self-evident that Section 285(9) of the 1999 Constitution (as amended) cannot be referable to an event occurring at the primary election of a party since the document in issue is a post-primary document.
“In the instant case it is our submission that the cause of action is not yet complete until the time “any person”, in this case, the Appellants, “… has reasonable grounds to believe that any information given by a candidate in the affidavit or any document submitted by that candidate is false…” as provided in Section 31(5) of the Electoral Act. The document in issue in the context of the overall provision of Section 31 is only referable to a document submitted to the 3rd Respondent which is the one exhibited and referred to in all the processes before the court.
“With respect, what the court below did was to create a situation, not within the contemplation of the law and upon that basis initiate dismissal of the suit. In the circumstances of the foregoing we urge Your Lordship to reverse the decision of the Learned Trial Judge and hold that the suit is not statute barred.
“In conclusion, we submit that the decision of the Court below be reversed on the following grounds:
“That the processes filed by the first Respondent are incompetent and ought to be struck out.
“That the suit is not statute-barred as it does not question any act or event occurring at the 2nd Respondent’s primary election.
“That the Court assumes jurisdiction over the suit and grants the reliefs sought at the lower court since we have demonstrated in paragraph 2:7 above that there is no counter affidavit known to law in opposition to the Originating Summons and ipso facto the reliefs sought”, the appellants added.
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