By Our Correspondent
Barely four days to the Ondo State Governorship election billed for Saturday November 26, The Appeal Court Sitting in Abuja has set aside Justice Okon Abang’s earlier ruling and restored Governor Olusegun Mimiko’s preferred choice, Eyitayo Jegede as PDP gubernatorial candidate in the poll which has been greeted with intense controversy.
In an unanimous judgment, the Justice Ibrahim Saulawa led three-man Special Panel of the appellate court, vacated the June 29 judgment of Justice Okon Abang of the Federal High Court in Abuja, which directed the Independent National Electoral Commission, INEC, to recognize Mr. Jimoh Ibrahim as PDP gubernatorial candidate for the poll.
Jegede had approached the appellate court to challenge the high court verdict which ordered INEC to only relate with the Ali Modu-Sheriff faction of the PDP. Justice Abang had on October 14, also re-affirmed his decision, even as he warned the electoral body against accepting any candidate nominated by the Senator Ahmed Markafi-led National Caretaker Committee of the PDP.
Acting on the strength of the order, INEC, promptly removed Jegede’s name from the list of candidates for the Ondo gubernatorial poll, and replaced it with Mr. Ibrahim. It will be recalled that whereas Jegede emerged from primary election that was sanctioned by the Markarfi-led NWC of the PDP, Ibrahim on the other hand, secured his ticket from the Modu-Sheriff faction of the party. Meanwhile, in its verdict today Wednesday November 23, the appellate court, held that Justice Abang’s refusal of to grant fair hearing to Jegede, “rendered the entire proceedings before his court a nullity”.
According to Justice Saulawu, “Indeed it is obvious from the records that the appellant’s name had been duly published as the governorship candidate of the 11th respondent (PDP) for the November 26 Ondo governorship election” Eyitayo Jegede and Jimoh Ibrahim Eyitayo Jegede and Jimoh Ibrahim It held that the lower court was in grievous error when it ordered the publication of Ibrahim’s name.
It said the decision of the high court was in total breach of the provision of section 36 of the 1999 constitution, which it said forbade any court from denying fair hearing to a party likely to be affected by final decision of the court. Justice Saulawa, said the action of the court violated the legal doctrine of audi altarem partem. “The tenets of natural Justice entails that a party ought to be heard prior to determination of case against them”.
The appellate court also noted that Justice Abang ordered INEC to “immediately” recognize Mr. Ibrahim who was never a party in the suit that culminated to both the June 29 and October 14 judgments.
“The Court below had no jurisdictional competence to make such order. I have no restriction in the circumstance in resolving the second issue equally in favour of the appellant”. It said that Justice Abang “unilaterally”, raised issues that were not included by the plaintiffs, an action it said amounted to “a violent attitudinal disposition to the rule of law”. Besides, the court said the primary election that was conducted by the State Chapter of the PDP loyal to Modu-Sheriff, which produced Mr. Ibrahim, was a nullity. It said the law was very clear on which organ of a party should conduct governorship primary elections.
“It is worth reiterating at this point that any primary election by state chapter of a party, be it the PDP or any other party, is undoubtedly, in the eye of the law, an illegal contraption that carries with it no legal or equitable right at all. It is in its entirety a nullity”, the appellate court held. Prior to delivery of the judgment, Justice Saulawa, said the panel was at a time, “subjected to a very intimidating and brow-beating treatment by counsel the Respondents”.
“Most regrettably, the Respondents have deemed it expedient to shoot themselves on the foot. Instead of adhering to the wise counsel of the Court to file brief within the time limit, even the extra day that was granted to them, they refused to do so.
“The consequences of the Respondents failing to file their brief by virtue of Order 18 of the Court of Appeal Rules are very obvious and we have made it clear in our judgment”. Justice Saulawa noted that instead of filing their brief of argument, the Respondents insisted that the appellate court had lost its jurisdiction to entertain Jegede’s suit by virtue of the appeal they lodged at the Supreme Court.
“I have most critically appraised the preliminary objection by Nwufor, SAN, and I found that it is most grossly lacking in merit and it is accordingly dismissed. “Having effectively dealt with the preliminary objection, I now proceed to determine the appeal on its merit”. The court noted that Jegede filed his appeal on November 11, which raised seven issues for determination.
The issues included whether it was proper for the high court to order INEC to jettison Jegede’s name after he had already been nominated by the PDP and his name published. Olanipekun argued that the high court lacked jurisdiction to determine who should be the candidate of a political party.
Relying on decided case-law in Lado vs. CPC, Olanipekun, stressed that the issue of nomination of candidates for an election is a domestic affair of a political party which no court has the jurisdiction to meddle into. He said Justice Abang was wrong when he held that he had the requisite jurisdiction to determine the matter.
The appellate court, in arriving at its decision, said it was necessary that it determined whether or not the appellant was denied fair hearing by the lower court. It consequently resolved all the seven issues in Jegede’s favour. “There is no gain saying that this appeal is grossly meritorious and is hereby allowed”. An initial three-man panel that was headed by Justice Jummai Hanatu-Sankey earlier recued itself from resolving the dispute, following allegation that it collected N350million bribe from Governors Olusegun Mimiko and Nyesom Wike of Ondo and Rivers States, respectively.
The allegation was contained in a petition that PDP Chairman in Ondo state, Prince Biyi Poroye wrote against the panel wherein he insisted that they were compromised. Sequel to withdrawal of the Justice Hannatu-Sankey-led panel, the PCA, constituted the fresh panel which Poroye and five other PDP Chieftains from the South West loyal to Modu-Sheriff, also wanted the Supreme Court to disband.
In their application that was refused by the apex court yesterday, Poroye’s group, contended that the new panel was set up in breach of their right to fair hearing guaranteed under Section 36 of the 1999 Constitution.
They prayed for an order, returning “case files relating to the appeals and the application for leave to appeal as an interested party (against the decision of the Federal High Court of 14th October 2016 in suit No. FHC/ABJ/CS/395/2016) – filed by Eyitayo Jegede (factional PDP candidate of the Ondo PDP), to the Registry of the Court of Appeal to take its normal course and turn in the docket of the court.”
The appeals that would have been affected by their motion were CA/A/551/2016 filed by Ahmed Makarfi and Ben Obi against Biyi Poroye and 10 others, CA/A/551A/2016 filed by Clement Faboyede and another against 10 others; CA/A551B/2016 filed by the PDP against Biyi Poroye and 9 others and CA/A/551C/2016 filed by Eyitayo Jegede against Prince Biyi Poroye and 10 others.
They argued that not only did the PCA acted without hearing from them, they said the case, being a pre-election matter, did not warrant any urgency to require the constitution of a special panel. They added that those who filed the appeals against the June 29 and October 14 decisions of Justice Abang, including Jegede and Markafi, were not joined as parties at the trial court.
It was equally their argument that no orders were made against any of those behind the appeals, and that they (the applicants), who were plaintiffs in the suits, were not informed when the PCA acted solely on the request by the appellants to constitute the panel on the grounds of urgency.
However, the Supreme Court, on Tuesday, cleared the coast for the appellate court to deliver the verdict which it suspended on November 18. The apex court, in a unanimous ruling by a five-man panel of Justices led by the Acting Chief Justice of Nigeria, Justice Walter Onnoghen, declined to disband the Special Panel constituted by President of the Court of Appeal, Justice Zainab Bulkachuwa, to resolve the Ondo PDP dispute.
Aside dismissing motions to stay proceedings of the appellate court, filed by the six PDP Chieftains, the Supreme Court, awarded a cumulative cost of N3million to each of the three Justices of the appellate court. Poroye and his group had joined the three appellate court Justices, Saulawa, Igwe Aguba and George Mbaba, as 5th to 7th Respondents in the appeal before the apex court.
The Acting CJN, Justice Onnoghen who delivered the lead ruling, ordered that counsel to the appellants, Chief Beluolisa Nwufor, SAN, should personally pay the cost from his pocket. The apex court further ordered the appellants to pay N500, 000 cost to the four other Respondents in the matter among whom included Jegede. Justice Onnoghen held that it was wrong for Poroye and his group to drag the appellate court Justices into the matter knowing that they were only carrying out a judicial duty that was duly assigned to them.
“The 6th to 7th Respondents who are Justices of the Court of Appeal were constituted by appropriate authority to hear and determine the case were not parties before the lower court and whatever they did was in their official capacity as judicial officers. “Judicial officers enjoy immunity in the performance of their duties and are not liable to be subjected to this kind of intimidation”, Justice Onnoghen held.
He stressed that joining them as Respondents in the matter “was not only an attempt to intimidate and scandalize the judiciary, but to put it in a mild way, an action in bad faith”. Justice Onnoghen also noted that the appellants (Poroye and his group), had also petitioned a previous panel of Justices of the appellate court that handled the case. “If the applicants are allowed to continue with this prank, there will be no end in sight and it will not augur well. In the circumstance, there is no merit in this appeal and it is hereby dismissed”.
While concurring with the lead ruling, another member of the apex court panel, Justice Kumai Akaahs, held that action of the appellants was “capable of bringing anarchy”. Nevertheless, the apex court panel fixed Thursday to hear the substantive suit challenging leave that was granted to Jegede to appeal the high court judgment that recognized Mr. Ibrahim as PDP flag-bearer for the election.
The Appellants had lodged 14 different appeals before the Supreme Court. Their counsel, Chief Nwufor, SAN, on Tuesday, withdrew 10 motions that forced the appeal court panel to suspend further proceedings on the Ondo PDP crisis.
Nwufor said his decision to withdraw the applications was to enable the apex court to hear the substantive suit challenging the competence of entire appeals before the Justice Saulawa led Special Panel. In its ruling dismissing motions for stay of proceedings at the appellate court, the Supreme Court awarded N250,000 against the applicants in each of the 10 withdrawn motions. The applicants were directed to pay a cumulative N2.5m to the respondents.
The six PDP chieftains had among other things, urged the apex court to determine whether the President of the Court of Appeal, Justice Bulkachuwa, was right when she constituted a special panel to hear cases filed against Justice Abang’s judgment, by Jegede, Senators Markarfi and Obi. Poroye and his group contended that the panel had in a ruling it delivered on November 16, okayed Jegede’s appeal, despite being aware that the Supreme Court was already seized of the facts in dispute.
The Justice Saulawa-led panel had on November 18, adjourned sine-die (indefinitely), further hearing on the matter. The panel handed-off the dispute, barely 48 hours after it reserved judgment on Jegede’s appeal. Justice Saulawa said the panel took the decision after it was served with a motion from the Supreme Court for the proceeding at the appellate court to be suspended. “We were served a motion in suit No CA/A/551b/2016, which was filed in the Supreme Court on November 17”, he stated.
He said the motion had among other things, prayed the apex court to invoke its disciplinary powers against the appellate court panel. The Poroye led group, who are Respondents in Jegede’s appeal, further prayed the apex court to not only set aside proceedings of the appellate court, but to also restrain the special panel from further adjudicating on the dispute. Besides, they equally applied for an order disqualifying/recuing all members of the special panel on the ground that they betrayed there Oath of Office by their refusal to be bound by laid down judicial principle of staris-decisis.
Determined to stop the appellate court from delivering its verdict, the group asked the Supreme Court to halt further proceeding at the lower court. While dismissing the motions after they were withdrawn, Justice Onnoghen directed the appellate court panel “to continue its proceedings forthwith”.
The appellate court panel had initially refused to hands-off the Ondo PDP dispute, even as it allowed Jegede’s lead counsel, Chief Wole Olanipekun, SAN, to adopt his processes in the appeal to enable it to deliver judgment on the matter. Olanipekun had argued that the court had a constitutional responsibility to do justice in the case, saying the appellate court would be abdicating its duties should it allow itself to be stampeded into handing-off the matter. The panel had on September 8, suspended hearing on two other cases relating to the Ondo governorship crisis, following appeals also pending before the Supreme Court.
He argued that in line with the legal principle of lis-pendis, the appellate court ought to hands-off the case to avoid a situation where it would conduct a parallel proceeding with the Supreme Court on the same subject matter.
“In view of the unchallenged facts brought to the notice of this court that an appeal against the ruling granting leave to the appellant to appeal the high court judgment, which this court made on November 10, is already before the Supreme Court and has been entered. “It is therefore our position that this court has lost its jurisdiction to continue with this matter. By order 5 Rule 11 of the Supreme Court Rules 1985, as amended, the Supreme Court is now seized of the whole of this proceeding as between the parties herein.
“It is also an undisputed fact that a motion on notice for staying of all further proceedings and further hearing in this appeal is pending at the Supreme Court and has been drawn to the notice of this court. “We thus maintain that this panel cannot entertain further proceedings until that motion is decided by the apex court, one way or the other.
“Proceeding to hear this appeal will amount to an effort in futility. It will amount to judicial rascality and judicial impertinence. “I submit that this court should not conduct parallel proceeding with the Supreme Court regarding the same case, but should allow the apex court, in line with the dictates of the hierarchy of courts established by the constitution, which places the Supreme Court above this court, to take a decision regarding the pending motion for stay of proceedings already before it. “I urge you to follow your own earlier rulings in CA/A/402/2016 and CA/A/402a/ 2016, delivered on September 8, concerning this same Ondo PDP crisis”, Nwufor submitted.
