The Supreme Court has, again, struck out an appeal filed by the Hope Democratic Party HDP and its Presidential candidate, Ambrose Owuru, to challenge the declaration of President Muhammadu Buhari as winner of the February 23 presidential election.
The apex court struck out the appeal following the dramatic withdrawal of an application praying for restoration of the appeal to be heard afresh.
Owuru and HDP had sought for leave of the court to allow them bring back their appeal which had been struck out due to errors of filling two notices of appeal in respect of one matter.
When the matter came up on Monday, the attention of counsel to the appellants Mr.Sunday Ezema was drawn to Section 285 (7) of the 1999 constitution and was asked whether the appeal had 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.
Justice Olukayode Ariwoola who led four other Justices in a short ruling struck out the application.
Justice Ariwoola 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.
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 on the grounds that time to do so had lapsed; become statute barred; and that the court no longer had jurisdiction.
He argued that the appellants were not fair to the court by engaging it ‘in a non-justiciable 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 time of the court with frivolous application.
Justice 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 life to maintain it
HDP had filed a fresh motion to challenge the way and manner its appeal against President Buhari’s election was determined and struck out, on what it termed technicality rather than 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 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 technical ground was without compliance with the mandatory procedure of law.
The apex court had on October 3 struck out the HDP’s appeal on the grounds that 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 jurisdiction.
“The two notices of appeal filed by the appellants and jointly utilised is a procedure not backed by law and cannot be used,” she said.
“Rather the appellants have come here to tackle the decision on the merits which the court below handled out of the abundance of caution.”
In their petition at the tribunal, they had prayed for nullification of the February 23 election on the ground that its shift from February 16 by INEC to February 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 February 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 results.