27th December, 2012
Nigeria’s Senator Gyang Pwajok (PDP- Plateau North), has filed an appeal at the Court of Appeal, Abuja, against the 20 December nullification of his election by an Abuja Federal High Court.
The Federal High Court, presided over by Justice Adeniyi Ademola, while delivering judgment in a matter filed by the Congress for Progress Change (CPC) against INEC and PDP, had nullified the Oct. 6 by-elections and asked Pwajok to “stop parading’’ himself as senator.
The CPC had approached the court to determine whether the first respondent, INEC, had the power to reject the names of its candidate for the by-election.
The CPC further asked the court to determine whether INEC had the power, under section 87 of the Electoral Act, to refuse to include the names of its candidates in the ballot papers of the elections.
Ademola in his judgment, said that only the court was constitutionally empowered to disqualify persons from contesting elective positions and therefore, annulled the election.
The court directed INEC to, within 90 days, resolve the problems and include the names of the CPC candidate before conducting a fresh by-election.
But Pwajok, in a notice of appeal filed by his counsel, Gabriel Odey, declared that the judge erred in law when he refused to consider some fundamental issues raised by INEC and the PDP in their preliminary objection to the matter.
The senator averred that after applying to be joined in the matter since he was directly affected by the issues, the court gave him the nod, but judgment was delivered soon after, without allowing his counsel to present his case.
“While delivering the judgment, the learned trial judge did not consider all the issues therein before dismissing same.
“A court of law is bound to consider all issues validly raised in the appellants’ notice of preliminary objection; any breach of that will deny fair hearing and miscarriage of justice,’’ Pwajok stated.
Pwajok further declared that the judge erred in setting aside the by-election where he was returned as winner since the plaintiff, the CPC, had no valid proof of any valid primary election where it arrived at any candidate.
The senator also expressed surprise that the judge went ahead to nullify the election after declaring that he had no power to do so and also admitting that only the elections tribunal had such powers.
“Having held that it had no power to nullify the said election, the learned trial judge could not have made the consequential orders asking Sen. Pwajok to `vacate office with immediate effect’ and ordering INEC to conduct a fresh election within 90 days.
“It is settled that the court cannot hide under its inherent powers to make consequential orders which it ordinarily lacks jurisdiction to make.
“The power to nullify an election and order a fresh one resides solely in election tribunals by virtue of section 285 of the 1999 Constitution,’’ Pwajok stated.
He accused the judge of being a “Father Christmas’’ in nullifying the election since the CPC did not seek such relief.
The senator urged the court to set aside the judgment and also dismiss the plaintiff’s original suit and all reliefs sought as they all lacked merit.
No date has been fixed for the hearing of the appeal.
The by-election into the vacant seat of the Plateau North Senatorial District followed the death on 8 July, of the former occupant, Senator Gyang Dantong.
Dantong died along with the Plateau State House of Assembly Majority Leader, Mr Gyang Fulani, in a stampede when gunmen attacked mourners at a burial in Maseh, in the Bachit District of Riyom Local Government Area in Plateau.