Justice Charles Agbaza, in a judgment , also voided the entire proceedings before Magistrate Abubakar Mukhtar of a Wuse Magistrate Court in Abuja on grounds that the summon was issued in excess of his jurisdiction and error of law.
Justice Agbaza agreed with Okpebholo that the entire proceedings and the criminal summons were illegal, unconstitutional and in violation of his fundamental human right to fair hearing as guaranteed under Section 36 of the 1999 Constitution (as amended).
The News Agency of Nigeria (NAN) reports that Okpebholo, who is the governor-elect in the Sept 21 Edo governorship election, had, through his counsel, Andrew Emwanta, dragged Mr Honesty Aginbatse and Mukhtar before the court as 1st and 2nd respondents.
The development followed the criminal summons by Magistrate Mukhtar on Sept. 12, directing Okpebholo to.apoear in court on Sept. 20, the eve of the governorship poll in Edo, over an alleged false statement on his date of birth brought against him by Aginbatse, an Indigene of the state.
The Okpebholo, the APC candidate in the election, was ordered to appear before the court at 12 noon.
He was accused of claiming conflicting dates of birth in his nomination forms submitted to the Independent National Electoral Commission (INEC) to contest the election.
Against the backdrop, Emwanta filed an originating summons before the FCT High Court marked: CV/4589/2024, seeking an order of certiorari to bring into the court for the purpose of being quashed, the entire proceedings and criminal summons issued on Sept. 12 by Mukhtar at the instance of Aginbatse.
The lawyer, in motion dated and filed on Oct. 21, argued that the action was instituted to prevent Okpebholo from presenting himself as a candidate in the Sept. 21 poll and to disqualify him on false grounds.
He also sought a declaration that the entire proceedings and criminal summons was illegal, unconstitutional and in violation of his client’s fundamental human right to fair hearing guaranteed by the law.
He equally sought an order of prohibition, prohibiting the magistrate from further proceeding with the case number: CR/W22/816/2024 instigated by Aginbatse.
In the affidavit in support of the motion, Emwanta averred that Okpebholo “on March 31,2022, deposed to an affidavit to correct the mistake in his date of birth (written as Aug. 29, 1972 on his June 2008 WASSCE Certificate.
He also averred that Okpebholo on his permanent voters card had Aug. 1, 1977, as his date of birth instead of Aug. 29, 1970, which is his correct date of birth), before the Commissioner for Oaths in the Registry of this Honourable Court.”
He said Okpebholo also deposed to an Affidavit of Regularization of Personal Particulars at the Supreme Court of Nigeria Registry on July 26, stating the facts and correcting the aforementioned mistake in his date of birth in both his WASSCE Certificate and Personal Voters Card (PVC) issued by INEC.
The lawyer said his client further made a declaration via a Deed of Regularization of Personal Particulars and sworn to before the Commissioner for Oaths at the Supreme Court’s Registry on July 26, among other steps taken by the governor-elect.
Emwanta argued that the magistrate lacked jurisdiction to entertain such matter being a pre-election matter, under Section 29 of which the law confers jurisdiction on the Federal High Court.
But Aginbatse, in a 16-paragraph counter affidavit filed by his lawyer Raymond Azinye, urged the court to dismiss the application.
On his part, Mukhtar, who was the 2nd respondent, neither filed any process nor represented in court.
Delivering his judgment , Justice Agbaza agreed with Emwanta that the magistrate ought to have considered the exhibits presented by Okpebholo before issuing such order.
He cited previous Supreme Court decision in Osita Nwosu and Imo State Environmental Protection Agency to back his ruling.
The judge, who also agreed with the lawyer on other grounds, barred the magistrate from further proceedings on the case.
He was, however, of the view that the magistrate had a discretion to fix a hearing date of a matter before him.
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