The Judiciary And The Cross River North Senatorial District Legal Conundrum

By Raymond Nkannebe

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, stands condemnable.

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, 2021 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 Stephen 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, Stephen 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 accordingly 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 suit 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 bye-election, Amobeda J. delivered a considered judgment in the
consolidated suits. While the learned judge upheld the candidacy of
Stephen 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 winner, does not meet the
required criteria stipulated by the guidelines of party primaries
for election”.

INEC consequently published Stephen 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. Stephen 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 6^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. Stephen Odey made a party
to it. Again, Hon. Jarigbe whose candidacy was sought to be
impugned in the suit, did not emerge 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 as the
candidate of the party in clear conflict with the order of Justice
Amobeda J. of the Federal HIGH Court sitting in Calabar, and which
had the 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 same. Having caught wind of the suit at this time,
Dr. Stephen 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. Stephen Odey’s further appeal to the Supreme Court to aside
the concurrent findings of the two lower Courts in favour of Hon.
Jarigbe would suffer a technical set back 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.

And so, where does all these legal melo-drama leave Dr, Stephen
Odey; Hon. Agom Jarigbe and the people of Cross-River North
Senatorial District? An unfortunate position by all means.

Dr. Stephen 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 rather
tendentious with respect. It is wrong to suggest that Hon. Jarigbe
didn’t participate in all the stages of the election as he did poll
90 votes in the primary election of 5^th September,
2020.

It is this writer’s view that it is immaterial whether Hon.
Jarigbe’s name was submitted to INEC as at 5^th December,
when the bye-election held, as the Dr. Odey legal team contends.
For if it holds true that he was the rightly nominated candidate of
the party, the fact of Dr. Stephen 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, the Dr. Stepen Odey team may be barking a wrong
tree.

For Hon. Jarigbe, it is his brief that the Court of Appeal’s
decision affirming his candidacy remain extant and binding, since
Dr. Stephen Odey’s appeal against it, was not considered on the
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. The case law on this point is a
legion.

But If the above holds, then by necessary implication, the
judgment of Hon. Juistice 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 appeal striking out
order by the apex Court, emanates from Chief Alaga’s suit, and not
the Calabar FHC.

With the benefit of hindsight, 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 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; a Legal Practitioner
is of Synergy Attornies Lagos. Please follow me on
Twitter @RayNkah

By Raymond Nkannebe

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, stands condemnable.

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, 2021 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 Stephen 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, Stephen 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 accordingly 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 suit 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 bye-election, Amobeda J. delivered a considered judgment in the
consolidated suits. While the learned judge upheld the candidacy of
Stephen 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 winner, does not meet the
required criteria stipulated by the guidelines of party primaries
for election”.

INEC consequently published Stephen 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. Stephen 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 6^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. Stephen Odey made a party
to it. Again, Hon. Jarigbe whose candidacy was sought to be
impugned in the suit, did not emerge 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 as the
candidate of the party in clear conflict with the order of Justice
Amobeda J. of the Federal HIGH Court sitting in Calabar, and which
had the 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 same. Having caught wind of the suit at this time,
Dr. Stephen 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. Stephen Odey’s further appeal to the Supreme Court to aside
the concurrent findings of the two lower Courts in favour of Hon.
Jarigbe would suffer a technical set back 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.

And so, where does all these legal melo-drama leave Dr, Stephen
Odey; Hon. Agom Jarigbe and the people of Cross-River North
Senatorial District? An unfortunate position by all means.

Dr. Stephen 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 rather
tendentious with respect. It is wrong to suggest that Hon. Jarigbe
didn’t participate in all the stages of the election as he did poll
90 votes in the primary election of 5^th September,
2020.

It is this writer’s view that it is immaterial whether Hon.
Jarigbe’s name was submitted to INEC as at 5^th December,
when the bye-election held, as the Dr. Odey legal team contends.
For if it holds true that he was the rightly nominated candidate of
the party, the fact of Dr. Stephen 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, the Dr. Stepen Odey team may be barking a wrong
tree.

For Hon. Jarigbe, it is his brief that the Court of Appeal’s
decision affirming his candidacy remain extant and binding, since
Dr. Stephen Odey’s appeal against it, was not considered on the
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. The case law on this point is a
legion.

But If the above holds, then by necessary implication, the
judgment of Hon. Juistice 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 appeal striking out
order by the apex Court, emanates from Chief Alaga’s suit, and not
the Calabar FHC.

With the benefit of hindsight, 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 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; a Legal Practitioner
is of Synergy Attornies Lagos. Please follow me on
Twitter @RayNkah