The Enugu Division of the Court of Appeal will tomorrow, March 19, 2012 begin hearing on the appeal filed by former Information Minister Dora Akunyili challenging the striking out of her petition by the election tribunal for lack of jurisdiction.
The Enugu Division of the Court of Appeal will tomorrow, March 19, 2012 begin hearing on the appeal filed by former Information Minister Dora Akunyili challenging the striking out of her petition by the election tribunal for lack of jurisdiction.
Mrs. Akunyili, a professor of pharmacy and candidate of the All Peoples Grand Alliance, lost the Anambra Central Senatorial District to Chris Ngige, a medical doctor who ran on ticket of the Action Congress of Nigeria.
Since then, Professor Akunyili has taken to courts to contest the declaration of Mr. Ngige as the winner of the senatorial race.
The case, which has witnessed a series of twists and turns, was in the end caught in the web of two Supreme Court judgments which held that any case that had exceeded the period of 180 days as provided in Section 285 (6) of the amended 1999 constitution ought to be struck for lack of jurisdiction.
In apparent obedience to the decision of the apex court, the election tribunal headed by Justice Onajite-Kuejubola upheld the objection of counsel to Dr Ngige and INEC that notwithstanding the previous order of the Court of Appeal given on November 16, 2011 remitting the case for hearing on merits, the tribunal lacked the jurisdiction to continue with the adjudication.
On February 17, 2012, the Supreme Court of Nigeria had ruled in the Borno governorship appeal (Shettima Vs Goni) that the Court of Appeal had no power to remit any case that had lasted beyond the period of 180 days stipulated in the Constitution for either hearing on merits or for de novo trial. The apex court further described the 180 day stipulation for deciding all electoral cases as a Rock of Gibraltar or Mount Zion and ruled that the period could not be moved, extended or elongated by even a second.
Professor Akunyili’s petition was filed on May 17, 2011, which meant that it celebrated its 180th day on November 12, 2011.
In her appeal, Professor Akunyili is contending that her case is not affected by the Supreme Court decision which came about after her petition was extended for a fresh 180 days in November 2011. A legal source in Abuja told SaharaReporters that her petition is relying on the doctrine of ‘issue estoppel’ to argue that her case is different from other cases similarly struck out by the electoral tribunal.
Akunyili is asking the appeal court to remit her petition back to the tribunal to continue from where it stopped.
SaharaReporters learned that the tribunal at Awka had wound up its activities and its members had returned to their various states.
A source within the camp of Dr. Ngige disclosed that the senator is likely to contend that the previous order remitting the petition for hearing had been made without jurisdiction. They reportedly intend to argue that the continuation of the trial by the tribunal amounted to a waste of judicial time and an exercise in futility.
The Independent National Electoral Commission would likely raise a preliminary objection regarding the competence of the appeal particularly as it pertains to the relief sought which in INEC’s view is no longer grantable in view of the Supreme Court position on the issue.
In view of the unambiguous position of the Supreme Court on the issue of 180 days, the Court of Appeal would have no choice than to dismiss Professor Akunyili’s appeal. As one lawyer said, “If the Enugu Division of the Court of Appeal rules that Professor Akunyili’s case must be reopened, then the court would be placing itself in the odious position of rebuking the clear judgment of the Supreme Court on issues raised by other such appeals. It would be an act in futility.”
But another lawyer said he would not be surprised if the Court of Appeal got involved in playing games in the case. The lawyer cited the notoriety that the Court of Appeal “has gained these days, particularly its penchant for giving conflicting judgments depending on where the corruptive interests of the justices lie.”
However he added that one indication that Mrs. Akunyili may have been falsely assured of victory in her appeal going by her recent boast that she had won all previous appeals that came up at Enugu Division.
One of our legal sources recalled that, in the very first appeal that was ruled in favor of Mrs. Akunyili, the appeal court in Enugu had failed to make a pronouncement on the weighty allegation that Akunyili forged a statutory Form TFOO8 which strangely found its way into the tribunal’s file. That apparent fraud led the tribunal to strike out her petition. “Instead of addressing that issue of fraud, the court of appeal glossed over it. The justices held that the forgery was a mere technicality and remitted the case for hearing on merits even though counsel to Professor Akunyili had openly stated that the life span of the petition would lapse on or about November 11, 2011,” said the source.
The lawyer declared that “it remains to be seen whether the Court of Appeal will ignore the age-long principle of stare decisis and give a decision that contradicts the Supreme Court’s decision.”
In the Borno case, the Supreme Court had observed that “It is very worrisome that despite the decisions of this Court since October 2011 on the time fixed in the Constitution some of the justices of the lower Court [i.e. Court of Appeal] still appear not to have gotten the message”.
The panelists expected to hear Professor Akunyili’s appeal are Justices Jega, Lokulo-Sodipe (who is a known acolyte of former President Olusegun Obasanjo), Adamu Jauro, and Samuel Oseji.
known acolyte of