This is coming as Chief Mike Ozekhome (SAN), has described the directive as an act of desperation, and advised INEC to reject it.
He said his decision was predicated on the judgment of the state High Court in suit No ZMS/GS/52/2018 between Sanusi Liman Dan-Alhaji and 37 others Vs APC and 144 others; and Appeal No: CA/S/23/2019.
In a three-page letter dated February 13, 2019 and addressed to INEC Chairman, Prof. Mahmood Yakubu, Malami told the commission that the directive was sequel to Section 38 and 39 of the Electoral Amendment Act 2010.
He stated that since the Court of Appeal has annulled the ground upon which the commission had based the cancellation of the APC primaries in the state, the party would need a little time to catch up with its contemporaries in the election.
He submitted that granting the party concession is not a favour but a right that inures to all contestants under similar circumstances.
The letter read: “My office received a petition from the firm of M.A. Mahmud, (SAN) & CO in respect of the above subject matter, (copy attached for ease of reference) requesting that the subsisting judgment in Suit No. ZMS/GS/52/2018 – Sanusi Liman Dan-Alhaji & 37 ORS V. APC & 144 ORS be upheld and respected by INEC, as the Court of Appeal has upheld the Appeal No. CA/S/23/2019, thus effectively annulling the grounds upon which the purported cancellation of the APC primaries in Zamfara State by INEC was based.
“You may wish to recall that the Zamfara State High Court upheld the Zamfara APC primaries in the suit mentioned in the first paragraph above, held on October 3 and 7, 2018 for the governorship and the national and state legislative houses.
“You may further wish to recall that in Suit No.FHC/ABJ/CS/1279/2018- APC V. INEC & 5 ORS, the Federal High Court held that the nullification of the said Zamfara APC primaries by INEC was lawful. However, this decision has been upturned in Appeal No CA/S/23/2019. Copy is also attached for ease of reference.
“In the circumstance and in consideration of the provisions of Sections 38 and 39 of the Electoral Act, 2010, the law allows INCE the latitude and discretion to extend the time within which a political party may duly field a candidate for an election where unforeseen circumstances constrained such a party from doing so within the stipulated time frame.
“In this particular instance, the constraining circumstances that led to the delay in fielding candidate were caused by INEC’s refusal to comply with the Zamfara State High Court Judgment in the aforementioned suit to uphold the primaries as held. Moreover, INEC cannot foreclose the right of a political party to participate in elections without recourse to the Act. By the doctrine and principle of judicial precedence, the Appeal supersedes the Federal High Court’s Position in Suit No. FHC/ABJ/CS/1279/2018 –APC V. INEC & 5 ORS.
“In view of the fact, now that the Court of Appeal has upheld the Primaries as valid, the APC in Zamfara State will need a little time to catch up with its contemporaries in the election. Granting them this concession is not necessarily a favour but a right that inures to all contestants under similar circumstances.
“Consequent on the above, INEC is invited to comply with the judgment of the Court of Appeal by admitting the results of the APC Zamfara State primaries and to also comply with the provisions of S.38 of the Electoral Act, which empowers INEC to postpone the election for the governorship, National Assembly and House of Assembly Elections.
Reacting to Malami’s directive, counsel to the appellant, Chief Mike Ozekhome (SAN), described it as an act of desperation, advising INEC to reject it.
He berated the APC for taking Nigerians for a ride.
“This letter is wrong. It shows that they are desperate. INEC should reject it. They see Nigeria as an APC entity. They don’t believe that Nigeria is not for APC alone but to all Nigerians. It is a wrong request that should be ignored,” he said
However, investigation revealed that the Court of Appeal in Sokoto yesterday validated the position of the INEC that the APC in Zamfara State does not have candidates for the governorship, National Assembly and state House of Assembly elections coming up on February 16 and March 2.
The court, presided over by Justice Jumai Sankey, with other members of the panel, Justices Ndukwe Anyanwu and Vincent Abiru, dismissed the appeal and the motion filed by Governor Abdulaziz Yari and Alhaji Muktar Idris praying the court to be allowed to contest the elections.
It upheld the argument of Chief Ozekhome and Mr. Isiaka Dikko (SAN) that the notice of discontinuance earlier filed on February 11 by Hon. Sani Jaji under Order 11 Rules 1 and 5 of the Court of Appeal Rules had completely extinguished the appeal upon which Idris’ counsel, Mr. Mahmud Magaji (SAN), had predicated his motion filed on February 8.
Magaji had prayed the court to grant him interlocutory orders allowing Idris to contest the governorship, and Yari to contest as a senatorial candidate before the main appeal is heard.
He argued that the motion was brought to the court on February 8 to hear the appeal on February 19, 2019 based on its merit.
He further affirmed that the appellant later accused the former panel of the court of bias, which led to the reconstitution of a new panel by the president of the court.
The court in dismissing Jaji’s withdrawn appeal, also made consequential orders dismissing the motion of Yari and Idris, among other applicants, who had asked to be allowed to contest the elections pending the hearing of the main appeal.
The court agreed fully with Ozekhome, who cited several Supreme Court decisions, and argued that once the appeal was discontinued, Yari and Muktar, who had not cross appealed or asked for variation under Order 9 of the Court of Appeal Rules cannot compel Jaji to go on with his appeal.
Ozekhome specifically argued that the case was dead since the appellant declined to continue with the case.
He based his argument on Order 9 Rule 5 of the court, praying the court to strike out the appeal since there was no cross appeal.
“The case is like a corpse in the mortuary ready to be disposed,” Ozekhome said.
The learned silk also submitted that they could not predicate their prayers to be allowed to contest on a non-existent appeal, which had died.
After listening to all the argument, the court dismissed the appeal and the motion filed by Yari and Idris praying that they be allowed to contest the elections.
Reacting to the verdict, Jaji said he was happy because some people would like to use the appeal to enforce the judgment of the state High Court, which directed INEC to recognise the candidates of the Yari faction in the state.
On his part, Senator Kabiru Garba Marafa, who is among the G8 and one of the respondents praised the decision of the court.
He extolled Ozekhome for his logical arguments, saying if there is anything more than senior advocate, he should have been given.
“You know Yari cannot win election in Zamfara State, he would like to ride on federal might to come through the back door.
“In Zamfara today, killings are ongoing on unabated, our people are being kidnapped, raped as if we don’t have government, it is not about the party but about my people,” Marafa said.
