The 79 legislators, who sued the People’s Democratic Party (PDP) and leaders of the National Assembly over threats to declare their seats vacant, accused the party yesterday of exhibiting foreknowledge of the outcome of the case.
The lawmakers’ lawyer, Mahmoud Magaji (SAN), expressed the fear when the case came up yesterday at the Federal High Court, Abuja that statements by Gadzama (SAN), lawyer to the PDP and its former Chairman Bamanga Tukur, were “conclusive and preemptive of the outcome of the court’s decision in the case”.
Magaji told the court that Gadzama’s statement “is making his clients uncomfortable because the outcome of the case is being preempted by the counsel on the other side”.
Magaji’s position was informed by Gadzama’s response to his submission that the court should stay further action on the case and await the outcome of his application to the Court of Appeal after seeing its interpretation of Section 68(1)(g) of the Constitution.
The section formed the kernel of the suit, where the plaintiffs argued that, in view of the proviso to Section 68 (1) (g) of the Constitution the leadership of the National Assembly cannot declare vacant the seats of any of the plaintiffs or others members of the PDP who joined or who may desire to become members of another political party, in view of the crisis that created factions/divisions in the party.
The plaintiffs’ lawyer said he decided to refer that aspect of the case to the Court of Appeal in view of the defendants’ contention that there was no faction in the party and that the crisis in the PDP did not imply fictionalisation or division as envisaged under Section 68(1)(g).
Magaji said his action was supported by the provision of Section 295 of the Constitution, which affords him the right to make such referral.
But Gadzama submitted that it was wrong for the plaintiff to have referred any part of the case to the Court of Appeal for determination, when the trial court was yet to decide the case.
He argued that it was the prerogative of the trial court to refer any part of a case before it to the appellate court for interpretation. He contended that the plaintiffs should have waited for the court’s judgment before heading for the Court of Appeal – a position Magaji objected to.
Magaji argued that Gadzama’s submission “that we should have waited for the court to decide the case before going before the Court of Appeal created an impression that the defendants have an inkling of the outcome of the decision and that we are not willing to let the case go on. What he said is suggestive. It is conclusive and preemptive of the case.”
Justice Ahmed Mohammed faulted Gadzama, cautioning him, noting that such statement was bad for practice, bad for the judicial process and the litigants.
The fresh application by the plaintiffs stalled the scheduled judgment in the case yesterday
Magaji had, at the resumption of proceedings, told the court that his application filed on March 21, 2014 “is seeking adjournment of this court sine die (indefinitely), pending the outcome of the referral application at the Court of Appeal.
“All the defendants have been duly served and we have also received counter affidavits of 1st, 2nd and 4th defendants. Even though we were served this morning with their counter affidavit, we will be asking for a short adjournment to enable us reply on points of law,” Magaji said.
Replying, Gadzama informed the court that the case was fixed for judgment over a month and half ago.
He said: “My Lord, this matter was slated over a month and half ago for judgment. It is a matter of urgent national importance. All sections of the country, particularly politicians, are anxiously waiting for the judgement because it has to do with tenure of office that is time bound.”
Gadzama later applied to withdraw his counter affidavit and opted to reply orally on points of law.
Senate President, David Mark’s lawyer Ken Ikonne, equally withdrew his counter affidavit. House of Representatives’ Speaker Aminu Tambuwal (the 3rd defendant) Alex Marama said he had no intention to file a counter, but was to reply on points of law.
Another defence lawyer, Ibrahim Bawa, representing the Independent National Electoral Commission (INEC), said he did not file any document in the suit in line with the commission’s decision to remain neutral in the matter.
Justice Mohammed consequently struck out Gadzama and Ikonne’s counter affidavits, paving the way for Magaji to move his application for indefinite adjournment.
He submitted that his application was anchored on his pending referral application at the Court of Appeal. He argued that it was trite that when an application is pending before a higher court, the lower court should wait for its outcome.
Responding, Gadzama argued that only the trial court has the right to refer an issue to the Court of Appeal for interpretation. He contended that in the eyes of the law, there was no application for referral before the court.
“This court has no jurisdiction to entertain the application. It is a first class example of an abuse of court process,” he said. He argued that Magaji ought to have directed his application for referral to the trial court, adding that the document the plaintiffs filed at the Court of Appeal was not certified and therefore should not be admitted.
Gadzama urged the court to dismiss the application and deliver its judgment.
Ikonne and Marama associated themselves with Gazadma’s position.
Replying on points of law, Magaji contended that his application was “timely and tenuously made”.
He said: “Assuming without conceding that our referral application is defective, it is not for this court to determine. The court is bound to hear an application whether bad, incompetent or weak.”
Magaji frowned at the comments by Gadzama that the court should not grant him room for appeal, a statement he said might make his clients feel that Gadzama knows the judgment would favour the defendants.
At that point, Justice Mohammed intervened and cautioned Gadzama, following which Magaji urged the court to discountenance the submissions of lawyers to the defendants and grant his application.
The judge adjourned till March 28 for ruling on whether to await the outcome of the plaintiff’s application before the Court of Appeal or proceed to deliver his judgment.
Defendants in the suit include Tukur, Mark, Tambuwal, the PDP and INEC.
The plaintiffs made up of 22 PDP Senators and 57 House of Representatives members – including those who have defected to the All Progressives Congress (APC) – are contending that Mark and Tambuwal cannot declare their seats vacant because of their defection. They are also contending that Mark and Tambuwal cannot rely on the provisions of sections 68(1)(g) and 68(2) of the Constitutions in declaring their seats vacant because there is division in the PDP, and that a faction of the party had merged with other parties.
It is also their argument that the two conditions precedent for lawful defection, according to the Constitution – division and merger – had occurred to warrant their defection.
79 defectors accuse PDP of exhibiting foreknowledge of case outcome
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