In a motion for dismissal tabled before the three-man panel headed by Justice Victor Oviawie, by lead counsel to the governor, Chief Bayo Ojo (SAN), it was argued that the petition, having suffered an incurable procedural error, is deemed abandoned by laws guiding petition adjudication.
Ojo, a former Attorney General of the Federation and Minister of Justice 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 the petitioner cannot file a 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.
All courts, including election tribunals, are bound by decisions of the apex court.
The PDP and its candidate have kicked against the motion for the dismissal of their petition, claiming that they applied for pre-trial on May 26, 2023, and not May 16, 2023.
They insisted that a competent application for the issuance of pre-hearing notice was made.
The response, taken out on behalf of the petitioners 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, 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 a 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.”
Sani is seeking an order from the tribunal to dismiss the petition for being abandoned on the premise that the application for pre-hearing notice was made and served prematurely.
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 has elapsed.
Consequently after an exhaustive arguments by counsels to governor, All Progressives Congress, Independent National Electoral Commission, and the PDP as well as it’s governorship candidate, Mohammed Ashiru, Justice Victor Oviawe-led panel adjourned the pre-hearing to June 16, 2023, to determined whether or not the court had the jurisdiction to entertain the matter.
