Hearing of a suit by the Peoples Democratic Party (PDP) seeking the disqualification of Pastor OsagieIze-Iyamu from the September 19 governorship election in Edo State was on Tuesday stalled at the Federal High Court, Abuja.
The suit slated for hearing on September 8, 2020, could not go on owing to a motion objecting to its hearing by the All Progressives Congress (APC).
PDP had in the suit numbered, 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 disqualified from participating in the forthcoming election.
Independent National Electoral Commission (INEC), APC and Pastor Osagie Ize-Iyamu are joined as defendants in the suit.
Although the suit was initially instituted in the Benin Division of the Federal High Court, it was however transferred to the Abuja owing to the annual vacation of the Federal High Court.
When the matter was called on Tuesday, PDP’s lawyer, Chief 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 and that he will want to react to it. he prayed the court for a short adjournment to enable him to do so.
The trial judge, Justice Ahmed Mohammed called on counsel to APC, Tunde Adejumo for confirmation.
Similarly, INEC’s lawyer, 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, Akinlolu Kehinde (SAN), the APC is asking the court to strike out the suit for being incompetent and for want of jurisdiction.
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Some of the grounds, the application was based 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.
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 2nd 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 2nd defendant consented to the matter being heard during the vacation period”, the party said.
A five-paragraph affidavit deposed to by one Kemi Eseze averred 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 on January 3, 2021, to hear and determine the suit.
She claimed that hearing the suit now, without the consent of the 2nd defendant would breach its right to a fair hearing.
The APC accordingly prayed the court for a declaration that the suit is incompetent having failed to comply with 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.”
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