Kaduna State governor Uba Sani has moved to terminate the petition of the Peoples Democratic Party (PDP) and its candidate, Mohammed Ashiru Isa, against his election.

The Tribunal, last week Monday, set aside today, to hear the latest motion by the governor’s legal team led by former Attorney General of the Federation and Minister of Justice, Chief Bayo Ojo, SAN, to end proceedings in the petition, based on the latest pronouncement of the Court of Appeal.

The principle of stare decisis, a Latin term that means “let the decision stand” or “to stand by things decided” makes it compelling for lower courts to line behind decisions of superior courts.

To this end, the decisions of the two appellate courts; Court of Appeal and Supreme Court, are binding on election petition tribunals, where facts in cases are similar.

Sani is calling for an end to the last petition standing against his victory, by pointing to the July 18, 2023 judgement of the Court of Appeal in the case of the All Progressives Congress, against Enugu State governor, Peter Mbah, knocked off at the preliminary stage due to a fatal error by the petitioners, in applying for the crucial pre-hearing notice.

The Supreme Court had held in many instances that either premature or late filing of the all-important Notice, would deem the petition abandoned and terminable.

The unanimous judgement of the three-man panel headed by Justice Olubunmi Oyewole held that the appeal brought by APC’s Uche Nnaji against the dismissal of his petition at the preliminary stage wasn’t meritorious because the filing of the pre-hearing Notice out of time, had dealt the entire petition a fatal blow.

All three justices held the petition had become abandoned by the reason of the late filing of the said Notice, adding that Justice K.M Akano-led Enugu Governorship Tribunal was right under the law, to dismiss the petition in course of proceedings.

Oyewole in his lead judgement held that, “as found by the trial Tribunal, the application for the issuance of pre-hearing notice filed by the Appellants on the 6th of June, 2023, prior to the service of the final pleading in the petition on all the parties, was incompetent.

“Election proceedings are sui generis and the stipulated procedure must be scrupulously complied with, otherwise a defaulting Petitioner or party would only have himself to blame.

“The moment the Appellants failed to activate the issuance of pre-hearing notice within the stipulated period, they had abandoned their petition and there was nothing before the trial Tribunal upon which it could adjudicate any further.

“This is different from objections contemplated by Paragraph 12 (5) of the First Schedule, Section 132 (7) of the Electoral Act and 285 (8) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) in respect of which ruling would be delivered along with the final judgement.”

Oyewole went ahead to allude to Justice Olatokunbo Kekere-Ekun, now a senior Justice of the Supreme Court, in the case of Azudibia V INEC (2008) 4 LRECN 705 at 126  where she said, “a process filed prematurely is a mere piece of paper without any legal consequence.”

Armed with the very consequential judgement, Sani is now asking the Justice Victor Oviawie-led Tribunal to revisit his earlier motion during the pre-hearing stage, that Isa and PDP had abandoned their petition and same, be dismissed.

Another pre-hearing motion from the governor also called for the dismissal of the petition for being filed out of time.

While the PDP petition bore official imprints of being filed at 11:45pm on the last day allowed by the extant laws, 9th of April, 2023, both the computer-generated payment evidence for the filing and the receipt issued by the Tribunal secretariat, bore 10th April, 2023, showing the petition was filed out of time.

Both receipts, showing N14,300 paid, had the name of Mr. Samuel Atung, a Silk.

Pleading an early end, Chief Ojo said “The nature of the application argued is such that could bring this Petition to an end. The Court of Appeal has recently terminated a petition based on an application that is on all fours with the one already argued by the 2nd Respondent (Sani).

In the motion referenced by the governor’s legal team, the Tribunal had said ruling would be taken alongside the final judgement in the Petition.

The APC team is now contending that the latest Court of Appeal judgement had declared such wait, unnecessary, with Justice Oyewole saying an abandoned petition can be terminated at any point in the proceedings and could be suo moto, done, by the Tribunal.

In the Motion for dismissal, Chief Ojo, argued that the petition, having suffered incurable procedural error, is deemed abandoned by laws guiding petition adjudication.

He 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 petitioner cannot file 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.
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