Supreme Court on Monday, October 28th struck out a fresh suit filed by
the Hope Democratic Party (HDP) and it’s presidential candidate, Ambrose
Owuru, challenging the declaration of President Buhari as the winner of
the February 23rd presidential election.
The apex court bowed to hear the appeal afresh following protest by
the party that the court’s earlier decision which dismissed the appeal
was based on a technicality rather than on merits of the law.
The apex court struck out the appeal following the dramatic
withdrawal of an application praying for the restoration of the appeal
to be heard afresh. Justice Olukayode Ariwoola who led four other
Justices in a short ruling struck out the application. Ariwoola in the
ruling agreed that the application of the appellants had been caught up
by section 285 of the 1999 constitution and as such no longer has a life
to maintain it.
He, however, declined to award cost against the appellants as
demanded by counsel to the Independent National Electoral Commission
INEC Yunus Usman SAN and that of the All Progressives Congress APC
Yakubu Maikyau SAN. Owuru and HDP had sought leave of the court to allow
them to bring back their appeal to which had been struck due to errors
of filling two notices of appeal in respect of one matter and against
the provisions of the law.
When the matter came up on Monday, the attention of counsel to the
appellants Sunday Ezema was drawn to section 285 (7) of the 1999
constitution and was asked whether the appeal has not become
statute-barred. Although the counsel initially insisted the appeal can
still be heard, he, however, made a dramatic u-turn and applied for
withdrawal of the application. Buhari’s counsel Wole Olanipekun, SAN,
did not ask for cost against the two appellants.
Olanipekun had objected to the application of the appellants to hear
their appeal afresh because it was statute-barred. He argued that the
appellants were not fair to the court by engaging it ‘in a
nonjusticiable application that will serve no purpose other than wasting
precious time of the court. The position was adopted by counsel to INEC
and APC but with demand for substantial cost against the appellants for
wasting the time of the court with the frivolous application.
HDP had filed a fresh motion to challenge the way and manners its
appeal against President Buhari’s election was determined and struck out
on what it termed technicality rather than the merit of law. The party
in the new motion had asked the apex court to reverse itself in the
ruling delivered on October 3 and restore the appeal for a fresh hearing
on merit rather than on technicality of filing two notices of appeal
together in one matter.
In the fresh motion on notice brought pursuant to order 8 rule 2 of
the Supreme Court Rules and sections 6 and 36 of the 1999 constitution
as well as section 22 of the Supreme Court Act, the party and Owuru,
claimed that the judgment delivered by Justice Mary Peter Odili in
favour of Buhari was invalid on the ground that it was based on
technicalities of law rather than merit and justice. The motion filed by
Mr. Chukwunonyerem Njoku on behalf of the appellants pleaded with the
court to restore their appeal for a fresh hearing.
The HDP and its candidate maintained that the striking out of their
appeal on the technical ground was without compliance with the mandatory
procedure of law. The apex court had on Oct. 3 struck out the HDP’s
appeal because more than one notice of appeal was filed in the same
appeal contrary to the provisions of law. Justice Odili who delivered
the verdict had also held that Owuru and HDP failed to appeal against
the ruling delivered by the Presidential Election Petition Tribunal on
August 22 which struck out their petition based on the lack of
“The two notices of appeal filed by the appellants and jointly
utilised is a procedure not backed by law and cannot be used. Rather the
appellants have come here to tackle the decision on the merits which
the court below handled out of the abundance of caution”, she said In
their petition at the tribunal, they had prayed for nullification of the
February 23 election on the ground that its shift from Feb. 16 by INEC
to Feb. 23 was not in compliance with any law and as such a nullity.
The two appellants claimed that a referendum election was conducted
by Nigerians on Feb. I6 and won by them with over 50 million voice votes
and that the Chief Justice of Nigeria (CJN) should be ordered to
inaugurate them as President of Nigeria based on the referendum election