…seeks restraining order against Ag. CJN
Dispute over the outcome of the February 23 presidential election assumed a new dimension on Tuesday, as the Hope Democratic Party (HDP) applied for a court order to stop President Muhammadu Buhari from being sworn-in for a second term on May 29, 2019.
The party and its presidential candidate, Chief Ambrose Owuru, in a fresh motion, asked the Presidential Election Petition Tribunal sitting in Abuja, to restrain the Acting Chief Justice of Nigeria, CJN, Justice Tanko Muhammad, from administering any oath on President Buhari at the expiration of his current term, pending the determination of the petition challenging his re-election.
The petitioners further applied for an order of the tribunal to restrain President Buhari from presenting himself to be sworn-in, until “the question as to whether he has been validly elected”, is determined.
The motion was predicated on section 1(2), 6(6), 139, 239 of the 1999 Constitution, as amended, as well as on sections 26(4) (5), 138(1) (b) of the Electoral Act, 2010, as amended.
Cited as 1st to 3rd Respondents in the matter were President Buhari, the Independent National Electoral Commission, INEC, and the All Progressives Congress, APC. Specifically, two principal prayers in the motion on notice dated May 9, read: “An order of this honourable court restraining the 1st respondent herein from presenting himself on May 29, 2019 or any other date for swearing in or inauguration ceremony or taking the oath of allegiance or office as the President of the Federal Republic of Nigeria, pending the determination of this Petition and the question as to whether he has been validly elected as challenged and pending before the court”.
As well as, “An order of this honourable court restraining the Chief Justice of Nigeria or any other Justice in that stead from swearing in, administering the oath of allegiance and oath of office or participating in the inauguration ceremony on May 29, 209 or any other date to swear in the 1st respondent, s the President of the Federal Republic of Nigeria pending the determination of this petition contesting the validity of the substituted and questioned presidential election of February 23, 2019.”
Enumerating grounds upon which they filed the motion, the HPD and its candidate who secured a total of 1,663 in the presidential election, contended that it would be legally inappropriate to allow President Buhari to assume office on the basis of an election that he did not validly win.
According to the petitioners, “A restraining order by this court is appropriate to preserve the subject matter of this petition and prevent the 1st Respondent from foisting a fiat accompli and state of hopelessness on the court and render the election petition before the court nurgatory.
“The law is settled that once the question of the validity of Election of any person is challenged as to whether he is validly Elected or not, the person is not competent to take office or assume the seat of power. See section 139 and 239 of the 1999 constitution, Nwobodo Vs. Onoh (1981),1 Sc p.97, and also Collins Obih V Sam Mbakwe (1984) 1SCNLR 192, 202 and 203.
“The Constitution of the Federal Republic of Nigeria prohibits and forbids that Nigeria or any part thereof be governed or taken over by any person or group of persons except in accordance with the provisions of the constitution. See section 1(2) of the 1999 constitution, as amended”.
The petitioners, through their lawyer, Mr. Oliver Eya, noted that pleadings have been concluded between parties in the petition they lodged against the presidential election fixed for pre-trial hearing session.
“Inspite of the pendency and scheduled hearing of this petition over the invalidity of the questioned substituted Presidential Election and return of the 1st Respondent of February 23, 2019, for reason of non-compliance and violation of the provisions of the Electoral Act 2010, the 1st Respondent is frantically making preparation to be sworn in and inaugurated on the 29th of May 2019, inviting the Chief Justice of Nigeria and the public”, the petitioners added.
In a 21-paragraph affidavit that was deposed to by one Anwal Abdullahi, the petitioners insisted that the February 23 presidential poll was invalid for reason of non-compliance with and violation of the Electoral Act involving the undue postponement of election from February 16 that it was previously slated for.
The petitioners alleged that INEC “self-sabotaged” itself and shifted the election, thereby, “giving way for the people’s controlled affirmative Referendum Election validating the 1st Petitioner endorsed 50 million majority votes threat”.
They told the tribunal that President Buhari has continued to make hasty preparations to be sworn in for a second term, regardless of the unresolved question of the invalidity of the election and return at the questioned substituted election of February 23.
“The Petitioner/Applicants case remains that the 1st Respondent could not have been declared and returned as Elected and cannot be validly Elected or Returned in the circumstances of an undue postponed Election and non-compliance and violation with the provisions of the Electoral Act and the 1999 constitution of the Federal Republic of Nigeria.
“That if the 1st Respondent is sworn in on May 29, 2019, he will take control of government of Nigeria and commence to act as President, to the prejudice of the Petitioners/Applicants and foist a fiat accompli on the court and render nugatory its proceeding and outcome and unduly influence the polity and undermine the authority of this honourable court.
“That the 1st Respondent will suffer no prejudice, damage or irreparable loss if he is not sworn in until the conclusion of the petition before this honourable court.
“That no amount of damages can compensate the Petitioners/Applicants and the poor majority constituents desirous of the validation of their affirmative Referendum as held on the February 16th, 2019, scheduled Presidential Election for a welfare state, to end poverty in the land in a transitional government arrangement thereof.
“That the end of justice will be served in preserving the status quo by restraining the 1st Respondent and preventing the wastages and dangers in swearing in a person whose election will be annulled”, the petitioners added.
Meantime, President Buhari, the APC and the INEC, persuaded the five-member tribunal headed by President of the Court of Appeal, Justice Zainab Bulkachuwa, for a short adjournment to enable them to respond to all the issues that were raised in the motion.
Before the matter was adjourned till May 22, President Buhari, through his lead counsel, Chief Wole Olanipekun, SAN, told the tribunal that he has filed a motion for the HDP’s petition marked CA/ PEPC/001/2019, to be dismissed for being grossly incompetent.
Olanipekun noted that the petitioners focused their case on a referendum they claimed INEC conducted on February 23. He said so far as his client was concerned, what held on that date was a presidential election and not a referendum.
Meanwhile, when the matter was called up, the pioneer Chairman of the Economic and Financial Crimes Commission, EFCC, Mr. Nuhu Ribadu, indicated that he was in court to represent President Buhari in the gallery.
VANGUARD
