Muhammadu Buhari & Ors V. Chief Olusegun a. Obasanjo & Ors (2003)
LawGlobal-Hub Lead Judgment Report
ABDULLAHI, P.C.A.
Following notices of preliminary objections filed by the 1st, 2nd and 3rd – 268th respondents on 19/6/2003 challenging the competence of the petitioners petition, the learned senior counsel to the petitioners on being served with the notices of the objections, reacted by filing on 7-7-2003, a notice of preliminary objection to the respondents’ objections in the following terms:
“TAKE NOTICE that the petitioners/respondents’ intend to object to the hearing of the notices of preliminary objection filed on behalf of the respondents and shall pray for the striking out of –
1. 1st and 2nd respondents’ notice of preliminary objection filed on 19th June, 2003, and
2. 3rd – 268th respondents’ notice filed on 19th June, 2003.
AND FURTHER TAKE NOTICE that the grounds upon which the objection is based is that the notices of preliminary objection are incompetent in that –
(a) the notices were filed after the two sets of respondents had joined issues with the petition by filing their replies thereby taking steps in the proceeding after they were served with the petition; contrary to paragraph 49(2) of the First Schedule to the Electoral Act, 2002.
(b) the notices filed by the two sets of respondents did not state clearly the legal grounds upon which their applications were based contrary to paragraph 49(3) of the First Schedule to the Electoral Act, 2002, and
(c) the content of the notices filed by the two sets of respondents offend the petitioners/applicants right to fair hearing.”
Moving this preliminary objection to the respondents’ preliminary objections to the petition, Chief Ahamba, learned senior counsel to the petitioners relied essentially on the provisions of paragraph 49(2)(3) and (5) of the First Schedule to the Electoral Act, 2002.
That the respondents having taken fresh steps in the proceeding in the petition after becoming aware of the defects alleged in the petition, have lost their right to raise the objections which must be regarded as incompetent and therefore must be struck out.
Learned senior counsel pointed out that by filing their replies and joining issues on the petition, the respondents have taken fresh steps in the proceeding within the meaning of paragraph 49(2) of the 1st Schedule to the Electoral Act, 2002 and as such cannot now be allowed to question the competence of the petition.
Further more, that as no clear grounds of law are shown on the face of the respondents objections and that as the objections were not heard and determined by this court before the respondents took further steps in the proceedings contrary to paragraphs 49(3) and (5) of the 1st Schedule to the Electoral Act, 2002, the respondent’s objections are incompetent and must be struck out. The case of Ozize v. Nweke Obo (1974) 2 SC 23 -31 was cited and relied upon.
In his reaction to this application which he described as a strange procedure, Chief Afe Babalola, learned senior counsel for the 1st and 2nd respondents said the application or objection by the petitioners to the respondents’ preliminary objection is at best only a defence to their objection as the respondents by entering their appearance on protest and filing their replies, the respondents did not at all waive their right to raise preliminary objection.
Learned senior counsel stressed that the provisions of paragraph 49 of the 1st Schedule relied upon by the petitioners, cannot override the provisions of sections 133(2), 136 and 137 of the Electoral Act, 2002, and the right of the respondents under the law to challenge the jurisdiction of this court. That by filing their replies to the petition within the time prescribed by law, that alone is not enough for the court to regard the respondents as having taken fresh steps on the authority of the case of Ikeh v. Njoke (1999) 4 NWLR (Pt.598) 263 at 267.
Mr. Gadzama, senior counsel for the 3rd – 268th respondents contended that the respondents’ preliminary objection had clearly shown on its face the grounds of law being relied upon and having been filed within reasonable time as stated in paragraph 49(2) of the 1st Schedule to the Electoral Act, 2002, the objection is competent as such this court has jurisdiction to hear it.
This application by the petitioners in the form of a preliminary objection to other preliminary objections filed by the respondents is rather unique. I entirely agree with Chief Afe Babalola, learned senior counsel to the 1st and 2nd respondents that the application can best be described as a defence to the preliminary objections filed by the respondents against the petition. The application could have served the same purpose if it had been presented in the form of response to the respondents’ preliminary objections to the competence of the petition.
This is because having regard to the terms of the preliminary objections by the respondents which I have earlier quoted in this ruling, it is not at all in doubt that the jurisdiction of this court to hear and determine the petitioners petition, the competence of which is the main subject of the preliminary objections, is plainly in issue. Therefore, where issue of jurisdiction is involved in a matter such as the respondents’ preliminary objections the question of whether or not the respondents have taken any fresh steps in the proceedings in the petition after becoming aware of the defects in the petition within the requirements of paragraph 49(2) of the 1st Schedule to the Electoral Act, which is the back bone of the petitioners’ objection, cannot provide any basis to prevent the respondents from raising the question of jurisdiction.
The provisions of the law in paragraph 49(2), (3) and (5) of the 1st Schedule to the Electoral Act, 2002 relied upon by the petitioners are: –
“49(1) …
(2) An application to set aside an election petition or a proceeding resulting therefrom for irregularity or for being a nullity, shall not be allowed unless made within a reasonable time and when the party making the application has not taken any fresh step in the proceedings after knowledge of the defect.
(3) An application to set aside an election petition or a proceeding pertaining thereto shall show clearly the legal grounds on which the application is based.
Leave a Reply