Tobi Soniyi
16 June 2011
Justice Gabriel Kolawole of a Federal High Court in Abuja Wednesday has ordered the Clerk and the Senate President to appear before him and show cause within five days why the Oath of Office should not be administered on Igbeke representing Anambra North Senatorial District, pending the hearing and determination of the motion on notice.
Rather the judge turned down a request by Senator Uba Igbeke to compel the Clerk of the National Assembly and the Senate President, David mark to inaugurate Igbeke as a Senator.
As hearing on the election petition filed by the Congress for Progressive Change [CPC] resumes today at the Presidential Election Tribunal, the Peoples Democratic Party (PDP) has asked the tribunal to throw out the petition for lacking in merit.
The party’s position was contained in a preliminary objection filed by its counsel, Chief Joe-Kyari Gadzama (SAN) .
The party is contending that the said petition, having been filed on Sunday, May 08, 2011 which was a public holiday should not be heard by the court.
PDP said that it was not in dispute that the petitioners filed the petition in question on May 8, 2011, a Sunday.
He cited Section 15 (5) of the Interpretation Act CAP I 23, LFN 2004, which defined a public holiday as “In this section, “holiday” means a day which is a Sunday or a Public Holiday” He said that the Public Holidays Act CAP P40 LFN 2004 was more explicit in its exclusion of Sundays from the list of working days.
Section 4 of the Act specifically reads thus: “No person shall be compellable to do any act on a day appointed by or under the provisions of this Act to be kept as a public holiday which he would not be compellable to do on a Sunday”.
He also asked the court to strike out Paragraphs 14 (d) iv and 38 of the petition because they contained complaints against the Nigeria Police Force, Civil Security and the Nigerian Army who were not made parties to the petition.
Gadzama said the failure of the petitioner to join the Nigeria Police Force, Civil Security and the Nigerian Army as parties to the petition despite complaints made against them in the said paragraphs of the Petition rendered the petition in effective.
He said, “The principle of our law is that no person shall be guilty without being given the opportunity to defend himself. Every person against whom an allegation is made must be confronted with that allegation so that he can offer his defence.”
He submitted that while by virtue of Section 137 (3) of the Electoral Act 2010 (As Amended) it was no longer proper in law to join electoral officers as parties to an election petition having already sued the Electoral Commission itself, the Police, the Army and Civil Security were definitely not staff of INEC and must therefore still be afforded the chance to defend themselves against allegations levelled against them.
“If the petitioner complains of the conduct of an Electoral officer, a Presiding Officer or Returning Officer, it shall not be necessary to join such officers or persons notwithstanding the nature of the complaint and the Commission shall, in this instance, be made a respondent; and deemed to be defending the petition for itself and on behalf of its officers or such other persons.”
AllAfrica – All the Time