Congress For Progressive Change V. Independent National Electoral Commission (INEC) & 42 Ors (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ISA AYO SALAMI, P.C.A, OFR (Delivering the Lead Ruling)

Following the conduct of the Election into the office of the President of the Federal Republic of Nigeria by the 1st and 2nd Respondents on the 16th day of April, 2011, and the subsequent return and declaration of the 3rd and 4th Respondents (candidates of the 5th Respondent), as winners of that Election on the 18th April, 2011, the Petitioner (one of the political parties that participated in the election and sponsored candidates at that election); was aggrieved by the outcome of the exercise, and accordingly filed a petition in this Honourable court on the 8th day of May, 2011.

Sequel to the service of copies of the Petition on the Respondents, the 3rd and 4th and 5th sets of Respondents in their respective Replies gave Notices of Preliminary Objections to the Petition on Grounds of incompetence which Notices and Grounds of Objections are as contained in pages 2 – 3 of the 3rd and 4th Respondents’ and pages 3 – 5 of the 5th Respondent’s Replies, respectively.

Pursuant to Section 136 (1) of the Electoral Act, 2010 (As Amended), Paragraphs 4(3) (B) and 47 of the 1st Schedule to the Electoral Act, 2010 (As Amended), and the inherent jurisdiction of this Honourable Court; the 3rd and 4th Respondents through their team of lawyers led by Chief Wole Olanipekun, SAN, by a Motion on Notice, dated and filed on the 23rd day of June, 2011, sought for the following Orders:-

“1. An Order striking out dismissing this Petition for being incompetent, incurably defective and vesting no jurisdiction on the Honourable Court to adjudicate on it.

2. And for such further or other orders as the court may deem fit to make in the circumstances.”

The Grounds upon which the application is predicated are hereunder reproduced thus:-

“A (i). The Petition is founded on a nullity having been filed on Sunday the 8th day of May, 2011.

(ii). Sunday is a non-working day, otherwise described dies non juridicus and also a public holiday.

(iii). The Registry of the court, under the applicable Rules, does not open on a Sunday for the transaction of any business.

B (i). The petition is not properly constituted.

(ii). General Muhammadu Buhari and Pastor Tunde Bakare for whose benefit the Petition has been presented are not made parties to the petition.

(iii). The prayers and/or reliefs of the Petitioner cannot be countenanced and/or granted in the absence of the said General Muhammadu Buhari and Pastor Tunde Bakare.

(iv). The court cannot make any order against the Respondents who were the Presidential and vice Presidential candidates of the 5th Respondent (PDP) in favour of the Petitioner in the absence of the Petitioner’s own Presidential and Vice Presidential candidates as parties to the Petition.

C. The Petition constitutes a gross abuse of the processes of this Honourable Court.