Godwin Tsa, Abuja
The Hope Democratic Party (HDP) has returned to the Supreme Court with a motion urging it to reverse itself in the judgment delivered on October 3 dismissing its appeal filed against the election of President Muhammadu Buhari.
In the said motion, the party claimed that the judgment delivered by Justice Mary Peter Odili in favour of Buhari is invalid and unconstitutional on the ground that it was based on technicalities of law rather than merit and justice.
In the motion brought pursuant to order 8 rule 2 of the Supreme Court Rules and sections 6 and 36 of the 1999 constitution as well as section 22 of the Supreme Court Act, the party and its presidential candidate, chief Ambrose Albert Owuru, pleaded with the court to restore their appeal for fresh hearing on merit.
Besides, counsel to the appellants, Chukwunonyerem Njoku, who filed the motion insisted that the dismissal of their appeal on October 3 on technical ground was without compliance with the mandatory procedure of law.
The fresh motion predicated on eight grounds indicated that the appeal dismissed on preliminary objection of Buhari without requisite applications after filed briefs and incorporation of notice of objection without leave of the apex court is a nullity and liable to be set aside.
Other ground is that by virtue of order 8 upon which the dismissal was based, an appellant whose appeal has been dismissed under the rule may apply by notice of motion that the appeal be restored and heard on merit.
The appellants maintained that there are exceptional circumstances as required by law to cause the restoration of the appeal having been dismissed on technical ground without respondents first applying for or granted leave to prevent ambush or surprise to them to prevent the hearing of the appeal on merit and affirm their claim as winners of February 16 presidential referendum election.
They further claimed that the decision of the court arising from respondents’ ambush, intimidation, misdirection of court and non compliance with the strict rules and procedures for hearing notice of preliminary objection is invalid and a nullity in law and liable to be set aside.
A 10 paragraph affidavit in support of the motion with number SC/1110/2019 and deposed to by one Odion Peter Olhoaye, a legal practitioner in the law firm of AA Owuru claimed that the appellants filed notice of appeal dated August 28, 2019 from the Presidential Election Petition Tribunal to the Supreme Court from their personal record when judgment was withheld, held back and delayed by the tribunal.
They averred that following the last minute release of the judgment by the Presidential Election Petition Tribunal, additional grounds were hurriedly filed and mistakenly titled “Notice of Appeal” instead of “Additional Grounds”.
The two appellants insisted that a mere mistake in the title “Notice of Appeal” instead of “Additional Grounds of Appeal”, was not enough ground for Supreme Court to dismiss their appeal on that technicality.
Besides, the appellants further claimed that the Supreme Court jurisdiction had not been fully activated because motion for substituted service on Buhari who up till September 27, 2019 evaded service of court process was yet to be moved or withdrawn in the court’s record before the court was misled into dismissing the appeal on technical objection.
Appellants further contended that the Supreme Court is under a duty in the interest of justice to first dispose off all outstanding applications and motions before determining any issue that touched on the substantive appeal.
“The Supreme Court has the powers as provided under its rules and Acts to in the circumstances grant this application, restore the appeal and allow the formal adoption of all filed briefs as exchanged among parties for well considered decision of the apex court in the appeal in the interest of justice.”
HDP and Owuru averred that they are desirous of pursuing their appeal against Buhari, Independent National Electoral Commission (INEC) and the All Progressive Congress (APC) to a logical conclusion on merit and not on legal technicalities and ambush.
The Supreme Court had on October 3 struck out the appeal by HDP and Owuru against the election of Buhari on the ground that Owuru and his party engaged in gross abuse of court processes by filing two notices of appeal in one matter contrary to the provisions of the law.