From: Godwin Tsa, Abuja
A Federal High Court in Abuja has struck out the suit challenging the election of Sokoto State governor, Alhaji Aminu Tambuwal.
Justice Gabriel Kolawole in his ruling Friday equally dismissed an application by the plaintiff containing a proposed amended of his originating summons on the ground that it was a malafide and intended to over reached Gov. Tambuwal and his political platform, the All Progressive Congress (APC).
In the substantive suit, which the judge held was not in the case file, the plaintiffs, Senator Umaru Dahiru and Barrister Aliyu Abubakar Sanyinna are seeking Tambuwal’s removal from office on the basis that the governor was wrongly nominated by APC as the governorship candidate of the party in the election which held on April 11, 2015.
The dismissed motion on notice dated 30 January 2017, marked FHC/ABJ/CS/09/2017, emanated from an earlier suit with number FHC/ABJ/CS/11/2015, filed on January 27, 2015 by Senator Umaru Dahiru and Barrister Aliyu Abubakar Sanyinna.
The Supreme Court had last year remitted the case file marked FHC/ABJ/CS/11/2015, back to the Federal High Court for a fresh trial on the ground that “there is life” in the case in spite of the conduct of the governorship election that produced Tambuwal.
The apex court had disagreed with Tambuwal in his claim that the case of the plaintiff challenging his nomination by APC had become “academic and hypothetical”.
However, sequel to the Supreme Court’s order for retrial, Senator Dahiru through his counsel Ikoro N. Ikoro, filed a motion on notice dated 30th January 2017, marked FHC/ABJ/CS/09/2017, seeking the variation of his pleadings in the motion on notice.
Specifically, the plaintiff are seeking the nullification of the return of Tambuwal as the governorship candidate of APC in the 2015 gubernatorial election in Sokoto state.
The application also sought the return of Dahiru in place of Tambuwal as governor of Sokoto state.
But the 1st defendant (APC) and 2nd defendant (Tambuwal) vehemently objected to the application.
However, ruling on the application for amendment filed by the plaintiff, Justice Kolawole apart from dismissing the application, equally struck out the motion on notice.
The court agreed with APC and Tambuwal that granting the application for amendment of the reliefs would change the “nature and character” of the case file which the Supreme Court had remitted to the court for retrial.
“The application of the plaintiffs is an ingenious attempt to have a second bite at the cherry; it is inconsistent with the reliefs sought in the motion on notice remitted from the Supreme Court.
The court noted that the plaintiff had in his motion on notice filed on January 27, 2015, claimed that the December 4, 2014, primary election conducted by APC which produced Tambuwal was “hallowed ritual, a sham and in gross violation of Section 87 of the 2010 Electoral Act and the APC 2014 election guidelines.
Justice Kolawole said granting the amendment would amount to “revalidation of a primary said to be flawed by the plaintiff.
“Granting the application will occasion injustice on the part of the 1st and 2nd defendants because the the motion on notice did not intend to cure any misnomer.
Justice Kolawole in dismissing the application, said “changing the case file is a fundamental issue of professional impropriety” which must be not be tolerated.
“The amendment is malafide, dishonest, an abuse of court process, and intended to over each the Supreme Court and outsmart the 2nd defendant.
Consequently, “the application for amendment is hereby dismissed. The instant motion on notice marked FHC/ABJ/CS/09/2017, is not the one remitted by the Supreme Court for retrial. The case file that migrated from the Late Justice Evoh Chukwu of the Federal High Court to the Supreme Court was marked FHC/ABJ/CS/11/2015.
“In view of the fact that the application is dismissed, the case file has become empty and there is nothing to adjourn for or to be heard. Consequently, the case file is struck out” Justice Kolawole odered.
In opposition to the application of Umar, counsel to the APC (1st defendant) Jibrin Okutepa SAN urged the court not to grant the application.
Describing the application as “strange” Okutepa held that, “if granted, it will change the character of the plaintiff’s suit, already decided by the Supreme Court.
“A party must be consistent in its prayers; the change in prayers if granted, robs the court of the jurisdiction to hear the case based on the provisions of Section 285 (1) of the 1999 Constitution of the Federal Republic of Nigeria as amended.
“My Lord, in line with the constitutional provision, the relief the plaintiff is now seeking rests on the Election Petition Tribunal.
“Granting the relief, means this court has disobeyed the Supreme Court’s decision pursuant to Section 287 (3) of 1999 CFRN as amended” Okutepa submitted.
On his part, Sunday Ameh SAN, counsel to Tambuwal (2nd defendant) in his counter affidavit, strongly opposed the application for variation of prayers on the motion paper.
While aligning with the submissions of APC’s lawyer, Ameh insisted that depositions in the counter affidavit which the plaintiff considered “offensive” are facts relevant to the determination of the case.
However, he stated that, ” this court cannot grant prayers that will change the character of plaintiff’s pleading.
“Ordinarily, we would have left the plaintiff to battle in court with a self contradictory claim -which in one breadth is challenging the governorship primary election that produced the 2nd defendant as candidate sponsored by the APC and seeks from this court an order nullifying the primary.
“Then, on the other hand, the plaintiff is asking the court to make an order allowing him to utilise the outcome of a primary he said was marred by electoral fraud” Ameh said.
He said “the new claim being introduced in the amendment proposed are touching on the return of Umar as governor and nullification of Tambuwal as governor.
Ameh posited that the application was lacking in merit, and therefore asked court to dismiss it.
INEC did not file any counter affidavit to oppose the plaintiff’s application, adding that, ” We are leaving the issue at the court’s discretion. END