The judiciary and Cross River north senatorial district legal conundrum

While the crisis rocking the Cross River North Senatorial District over who is the authentic candidate of the PDP at its primary election may be rightly described as one of the unintended consequences of the zero-sum nature of Nigerian politics, the nefarious role of the Judiciary which has metastasized an otherwise routine political dispute is also worthy of mention, and in the opinion of this Writer, leaves much to be desired.

The intriguing facts of the case are as follows: consequent upon the death of the Senator representing Cross River North in the National Assembly― Rose Oko, the Independent National Electoral Commission (INEC) invited interested political parties to field candidates to fill the vacant seat at an election scheduled for the 31^st of October, but later postponed to 5^th December, 2020.

Sequel to the above, Dr. Stephen Odey and Hon. Agom Jarigbe Agom, participated in the primary election of the PDP held on the 5^th of September, 2020 where the former emerged victorious, having polled the highest number of votes, namely 490. Hon. Jarigbe, his closest rival, came second with a total of 90 votes. The three other aspirants scored nil votes.

Aggrieved by the outcome of the primaries, Hon. Jarigbe beseeched a vacation Court at the time, in Port Harcourt in a suit marked FHC/PH/CS/137/2020 and sought to be declared winner of the primary election. He also obtained an Ex-Parte Order on the 11^th of September, 2020, restraining INEC and the PDP respectively, from submitting and publishing the name of Dr. Odey as the candidate of the party pending the determination of a Motion on Notice filed contemporaneously with the Motion Ex-parte.

On his part, Dr. Odey approached a Federal High Court in Calabar in a suit which had Hon. Jarigbe and the PDP as parties and equally sought a declaration of the Court that he was the authentic candidate of the PDP as well as an Order directing INEC to publish his name in line with the principles of the Electoral Act.

As it turned out, following the intervention of the Chief Judge of the Federal High Court; in a letter dated 14^th October, 2020, Hon. Justice Oshoma who was seised with Hon. Jarigbe’s suit in Port Harcourt transferred it to the Calabar judicial division of the Court and the same was consequently renumbered: FHC/PHC/CS/105/2020 and subsequently, consolidated with Stephen Odey’s suit before Justice Amobeda of the Federal High Court sitting in Calabar.

On the 3^rd of December, 2020, some two days before the by-election, Amobeda J. delivered judgment in the consolidated suits. While the learned Judge upheld Dr. Odey as the authentic candidate of the PDP and thereby ordered INEC to publish his name, his Lordship dismissed the case of Hon. Jarigbe for lacking in merit as the “report of the minority team declaring jarigbe as the winner does not meet the required criteria stipulated by the guidelines of party primaries for election”.

INEC consequently published Dr. Odey’s name in obedience to the Order of the Court. At the bye-election on the 5^th of December, 2020, PDP emerged victorious and Dr. Odey was accordingly returned as duly elected and issued with the certificate of return by INEC. He would be sworn in by the Clerk of the National Assembly on the 16^th of December, 2020. Suffice to state at this point that no appeal has been entered up until now against that decision of Amobeda J.

But this is the point where it gets both ridiculous and interesting. In what would pass for the most disingenuous instance of ‘forum Shopping’, while the principal parties locked horns in Port Harcourt and Calabar, one Chief John Alaga had approached the FCT High Court presided over by Justice Bintu Mohammed seeking the disqualification of Hon. Jarigbge as the candidate of the PDP for alleged submission of false information in aid of his qualification.

It bears stating at this stage if only to underscore the sheer complicity of the judiciary in bringing about the current legal imbroglio, that Chief Alaga, the Plaintiff in that suit marked CV/77/2020 did not participate in the primary election he sought to impugn, nor was Dr. Odey made a party to it. Again, Hon. Jarigbe whose candidacy was sought to be impugned in the suit did not emerge as the candidate of the PDP at the primary election held on the 5^th of December, 2020 as Justice Amobeda J. had found in the consolidated suits.

Yet, against the run of play, despite dismissing Alaga’s suit for lacking in merit, and of course for lack of locus standi to have instituted same, Justice Binta Mohammed went ahead to make positive orders in favour of Hon. Jarigbe, by declaring him the candidate of the PDP in clear conflict with the order of Justice Amobeda J. of the Federal High Court sitting, which it must be stated, is invested with requisite territorial jurisdiction to adjudicate on the matter.

But the matter was only about to get even more complex. Aggrieved by the decision of the FCT High Court, Chief John Alaga appealed against the same. Having caught wind of the suit at this time, Dr. Odey applied and was joined as an interested party in the appeal. However, despite dismissing the appeal, the Court of Appeal, strangely, preserved the orders of the FCT High Court recognizing Hon. Jarigbe as the candidate of the PDP consequent upon which INEC issued Hon. Jarigbe, a Certificate of Return.

Dr. Odey’s further appeal to the Supreme Court to set aside the concurrent findings of the two lower courts in favour of Hon. Jarigbe would suffer a technical setback on the 25^th of February, 2021 as the Court in a split decision of 4-3, struck out the appeal for defective service of the Notice of Appeal on the 1^st and 2^nd Respondents upon a Preliminary Objection by their legal teams. I have my reservations on that holding of the apex Court with respect, but that would be the subject of another day’s discourse.

This state of affairs has led to an unprecedented legal conundrum that has left the National Assembly, INEC, and all the parties involved in a state of confusion with possible security implications in the senatorial district.

Dr. Odey would not relinquish his seat at the National Assembly. It is the case of his legal team that there was no order by the Court of Appeal to the effect that the Certificate of Return issued to him, be withdrawn. They also contend that having not participated in all the stages of the election, Hon. Jarigbe couldn’t have been returned on the strength of section 141 of the Electoral Act. I must observe that these arguments are tenuous with respect. It is wrong to suggest that Hon. Jarigbe didn’t participate in all the stages of the election as evidence shows he polled 90 votes in the primary election of 5^th September, 2020.

In any event, it is this writer’s view that it is immaterial whether Hon. Jarigbe’s name was submitted to INEC as of 5^th December, when the bye-election held, as Dr. Odey’s legal team contends. For if it holds true that he was the rightly nominated candidate of the party, the fact of Dr. Odey’s name having been submitted to INEC becomes inconsequential in the eye of the law. This at least was the unequivocal position of the apex Court in the Mato v Hember (2018) 5 NWLR (Pt. 1616) 258 line of cases. So, to this extent, Dr. Odey’s legal team may be barking the wrong tree.

For Hon. Jarigbe, it is his brief that the Court of Appeal’s decision affirming his candidacy remains extant and binding, since Dr. Odey’s appeal against it, was not considered on merit. He is accordingly asking to be sworn in by the Senate President. To this extent, I think Hon. Jarigbe is on the good side of the law. A judgment of a Court, is binding until set aside howsoever erroneously decided. Of course, the case law on this point is a legion.

However, if the above holds, then by necessary implication, the judgment of Hon. Justice Amobeda of December 3, 2020, which cognized Dr. Stephen Odey as the lawful candidate of the PDP remains equally binding and subsisting; not having been set aside by any Court, as the judgement leading to the striking out order by the apex Court, emanates from the FCT High Court, and not the Calabar FHC.

By and large, the ugly outcome of the Cross River North Senatorial district election couldn’t have been without the grossly underwhelming performance of the judiciary. From the FCT High Court which assumed jurisdiction over a suit clearly outside of its remit; and proceeding to make a copious finding on same despite having dismissed the suit on the merit; to the Court of Appeal’s affirmation of same; and perhaps the worst of them all, the Supreme Court’s preference of the arguments of technicalities instead of rising up to its full stature as a Policy Court to resolve to finality all the issues constituted in the vexed senatorial contest, we have in our hands, one of the worst instances of abdication of responsibility by the judiciary.

Courts all over the world are set up to resolve disputes between individuals and governments; if by any means it is unable to do that; the least it could, is to create more confusion for the parties. In election-related matters where the stakes are so high; that responsibility is unarguably, even more imperative.

Raymond Nkannebe is a Legal Practitioner. Please follow me on Twitter @RayNkah