The Court of Appeal in Abuja has been urged to reverse the decision by its President, Justice Zainab Bulkachuwa, to constitute a fresh panel to hear appeals relating to the dispute over the governorship candidate of the Peoples Democratic Party (PDP) in Ondo State. The election is on November 26.
The request is contained in a motion filed yesterday by members of the executive of the PDP in the six Southwest states (loyal to Ali Modu Sheriff), led by Biyi Poroye (factional Chairman of the Ondo PDP).
They also asked the court to disband the panel, comprising Justices Ibrahim Salauwa, Ignatius Igwe Aguba and George Mbaba, allegedly set up in breach of the applicants’ right to fair hearing guaranteed under Section 36 of the Constitution.
Poroye and others prayed the court to order the return of the case files relating to the appeals and the application for leave to appeal as an interested party (against the decision of the Federal High Court of 14th October 2016 in suit No. FHC/ABJ/CS/395/2016) – filed by Eyitayo Jegede (factional PDP candidate of the Ondo PDP) “to the Registry of the Court of Appeal to take its normal course and turn in the docket of the court.”
The appeals are: CA/A/551/2016 filed by Ahmed Makarfi and Ben Obi against Biyi Poroye and 10 others and CA/A/551A/2016 filed by Clement Faboyede and another against 10 others; CA/A551B/2016 filed by the PDP against Biyi Poroye and 9 others and CA/A/551C/2016 filed by Eyitayo Jegede against Prince Biyi Poroye and 10 others
They argued that not only did the President of the Court of Appeal act without hearing from them, the case, being a pre-election matter did not warrant any urgency to require the constitution of a special panel.
They added that those who filed the appeals against the June 29 and October 14, 2016 decisions of Justice Okon Abang of the Federal High Court, Abuja were not parties in the cases leading to the decisions.
The applicants also argued that no others were made against any of them (those behind the new appeals) and that they (the applicants), who were plaintiffs in the suits, were not informed when the President of the Court of Appeal acted solely on the request by the appellants to constitute the panel on the grounds of urgency.
They have also filed a motion before the Supreme Court, seeking a stay of all proceedings before the Court of Appeal in relation to the appeals pending the determination of the two appeals they filed on October 31, which have entered and given number: SC/914/2016 and SC/915/2016.
The motion filed by two members of the party, Benson Akingboye and Ehiozuwa Agbonayiwa particularly seeks stay of ”all further proceedings and further hearing in CA/ABJ/402A/2016 filed on behalf of the PDP by a lawyer engaged by the Ahmed Makarfi-led faction of the party’s leadership.
They hinged the motion on, among others, that it was wrong to allow the Court of Appeal to proceed with the appeals when they have valid appeals before the Supreme Court, which challenged the jurisdiction of the Court of Appeal.
“As the first and second respondents in the lower court, they (Akingboye and Agbonayiwa) challenged by way of preliminary objection the validity of the appeal which originated the appeal at the court below.
“Apart from the said objection, there arose in the court below the issue of representation for the Peoples Democratic Party as two counsel laid conflicting claims to being the counsel authorized by the said party to act for it in this appeal.
“Neither the said preliminary objections of the applicants herein nor the said issue of which particular legal practitioner is authori|sed to represent the PDP was resolved before the court below fixed the substantive appeal for hearing.
“By fixing the substantive appeal for hearing, the court below thereby postponed the ruling or decision on it until the hearing of the whole appeal or case.
“The interlocutory appeal is capable of disposing of, or terminating, the substantive appeal.
“This application could not be first brought at the court below due to the fact that the appeal had been entered at the Supreme Court when it was filed,” they said.
The appeal at the Supreme Court, filed on October 31, 2016 by Akingboye and Agbonayiwa, is against the October 29, 2016 decision by the former panel of the Court of Appeal, led by Justice Jumai Sankey in which it ordered accelerated hearing in the appeals.
They raised four grounds in their notice of appeal, the first being that the Justices erred in law by their failure to first determine vital issue of jurisdiction raised in their (the appellants’) preliminary objection that there is no valid notice of appeal filed in the court below.
The appellants faulted the former panel of the Court of Appeal for fixing the substantive Appeal for hearing when the issue of which counsel to represent the PDP (in whose name the appeal was filed) had not been resolved.
They also faulted the Sankey-led panel for granting a relief in the motion for accelerated hearing of the case in the court below, which the motion was defective and devoid of address for service.
No date has been fixed for hearing of the appeal filed for the appellant by B.E.I. Nwofor (SAN).
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