Court of Appeal sitting in Abuja yesterday dismissed a motion by former Minister of State for Education, Chukwuemeka Nwajuba, seeking leave to appeal as an interested party in a pre-election suit by a non-governmental organisation challenging nomination of Bola Tinubu as presidential candidate of All Progressives Congress (APC).
The three-man panel upheld argument of the party’s lawyer, Babatunde Ogala that the motion was frivolous.
The justices told Nwajuba’s lawyer that had he failed to withdraw the motion, he would have been punished and the risk being de-robed.
The appeal flowed from Suit FHC/ABJ/CS/1960/2022. filed at Federal High Court in Abuja by Incorporated Trustees of Kingdom Human Rights Foundation International against APC, challenging its nomination of Tinubu.
The INEC chairman was the other defendant.
The NGO contended the candidate did not declare to INEC, the source of funds used in purchasing his nomination and expression of interest forms.
The suit was before Justice Binta Nyako.
The applicant prayed for several reliefs, including a declaration that having regard to Section 90 (3) read with Section 84(13) of Electoral Act, 2022, the first defendant (INEC), refused to exercise the powers and statutory duty/obligation “to expunge and remove the third defendant’s name, Tinubu, from the final list of presidential candidates contesting 2023 presidential election for failure of the second defendant to comply with mandatory provisions of Section 90(3) of Electoral Act, 2022.
“An order nullifying and setting aside as illegal, null and void, nomination of the third defendant as presidential candidate of the second defendant for the failure of the second defendant to comply with mandatory provisions of Section 90(3) of Electoral Act, 2022.”
In defence of the suit, APC through Ogala, filed a Memorandum of Conditional Appearance, a Notice of Preliminary Objection and a Counter-Affidavit with Written Addresses.
The Preliminary Objection was premised on the grounds that the suit was statute barred. That proper parties i.e. presidential aspirants of the second defendant were not joined. That the suit was premature by virtue of Section 90 (4) of Electoral Act. And the suit constituted abuse of court process.
Justice Nyako, on January 27, upheld the preliminary objection it agreed that the plaintiff’s action was statute barred and the plaintiff lacked the locus standi to maintain the suit against the second respondent and all respondents.
The court dismissed same for being an abuse of court process and because the plaintiff (NGO) lacked the locus standi to institute same.
The parties involved did not challenge the decision till expiration of 14 days mandatorily required by the 1999 Constitution for Pre-Election Appeals.
But Nwajuba, who had challenged nomination of Bola Tinubu (President-Elect) in two suits and had them dismissed by Supreme Court and Court of Appeal, then filed a motion seeking leave to appeal the judgment of Federal High Court in the instant suit in which he was never a party.
Nwajuba’s motion seeking leave to appeal as an interested party was in Suit CA/ ABJ/PRE/ROA/CV/439MI/2023.
The Office of Babatunde Ogala SAN & Co filed Counter- Affidavit to the notion seeking leave to appeal challenging amongst other things, the competency of the Motion with reference to section 285(11) of the 1999 Constitution.
When the matter came up for hearing yesterday, Ogala told the court that the application was an abuse, statute-barred, incompetent and a complete waste of time.
He said the application was seeking leave to appeal a pre-election judgement delivered on the 27th of January, 2023 through a motion that was filed on the 11th day of April, 2023.
The Court agreed with his submissions and, having confirmed the dates from the applicants’ counsel, ordered the appellant’s counsel to withdraw same.
Following, the Counsel’s reluctance to withdraw the application, he was persuaded by other counsel in court. He withdrew the motion and it was struck out.
In a unanimous ruling, the appellate court held:
“The Applicant counsel having withdrawn the Motion seeking leave to appeal, the Motion is hereby struck out.
“Counsel to the Applicant is hereby admonished that not all cases are worth taking regardless of the calibre of persons involved.
“Counsel is lucky he withdrew the Motion else punitive measures would have been taken, including referral to the Legal Practitioners’ Disciplinary Committee (LPDC) where he may be de-robed.
“Senior legal Practitioners are advised to desist from filing frivolous suits and sending juniors on dates for hearing.
“There are learned silks here and none of them have stood up to say anything because they are unhappy with your conduct in court today.”
Mr. Ogala SAN thanked the court and apologized on behalf of Counsel to the Applicant.