By Alex Enumah
Hearing of the Peoples Democratic Party’s (PDP) suit seeking the disqualification of Pastor Osagie Ize-Iyamu from the September 19 governorship election in Edo State was on Tuesday stalled at the Abuja Division of the Federal High Court.
The suit slated for hearing for September 8, 2020, could not go on owing to a motion objecting to its hearing by the All Progressives Congress (APC).
PDP had in a suit marked: FHC/ABJ/ CS/69/20, prayed the court for an order disqualifying Ize-Iyamu from contesting in the September 19 governorship poll on account of not being validly nominated by his party, the APC.
The plaintiff in the suit filed on July 3, 2020, by its team of lawyers led by Chief Ferdinand Orbih (SAN), is claiming that Ize-Iyamu was not a product of a valid primary election hence, should not be allowed to participate in the forthcoming election.
The defendants in the suit are the Independent National Electoral Commission (INEC), APC and Ize-Iyamu.
Although the suit was initially instituted in the Benin Division of the Federal High Court, it was however transferred to the Abuja Division owing to the annual vacation of the Federal High Court.
When the matter was called on Tuesday, PDP’s lawyer, Orbih, told the court that the suit was pen down for hearing “today” but he was served “in court this morning” with the notice of preliminary objection by the second defendant.
“I will want to react to it,” he said and prayed the court for a short adjournment to enable him do so.
Responding, the trial judge, Justice Ahmed Mohammed, called on the counsel to APC, Mr Tunde Adejumo, for confirmation.
Similarly, lawyers to INEC, Mr Alhassan Umar (SAN) and Ize-Iyamu, Chief Wole Olanipekun (SAN), while confirming service also requested for time to respond to the motion.
In the application dated September 7, 2020 and filed by its lead counsel, Mr Akinlolu Kehinde (SAN), the APC is asking the court to strike out the suit for being incompetent and for want of jurisdiction.
Some of the grounds, the application was predicated upon are that the suit cannot be heard during the court’s vacation period, it did not meet “conditions precedent laid down in Order 46 Rule 5 of the Federal High Court (Civil Procedure) Rules 2019 and that the court lacked jurisdiction to entertain the suit.
In a five-paragraph affidavit deposed to by one Kemi Eseze, the APC claimed that, “non fulfilment of the condition precedent laid down in Order 46 Rule 5 of the Federal High Court rules robs the court of the jurisdiction to hear the matter”.
According to the second defendant, the suit was filed on July 3, vide an originating summons and the Chief Judge of the Federal High Court in a circle of June 29 announced that the court will embark on its annual vacation on July 27 and end on September 25.
APC added that Order 46 Rule 5 provides that a civil matter will only be heard during the court’s vacation period pursuant to an application by the parties to the suit seeking the leave of the court to hear the matter.
“There has not been any such application in this suit neither has the second defendant consented to the matter being heard during the vacation period,” the party said.
The deponent further stated that there is no urgency warranting the suit to be heard during the vacation period, adding that the court has 180 days which will lapse in January 3, 2021 to hear and determine the suit.
She claimed that hearing the suit now, without the consent of the second defendant would breach its right to fair hearing.
The APC accordingly prayed the court for a declaration that the suit is incompetent having failed to comply with the conditions precedent laid down in Order 46 Rule 5.
“An order setting aside all the proceedings in the suit which occurred during the court’s annual vacation period in particular all the proceedings of this court sitting in the Benin Judicial Division for being incompetent and a nullity,” it said.