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A tale of 2 judgements

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Congratulations to the new British PM, Sir Keir Starmer of the Labour Party. I hope Nigeria will take a cue from the forming of his cabinet with the 24-hour alacrity that serious governance demands. Nigeria concludes her elections three months before the actual swearing-in into office, yet, cabinet members are not chosen in advance, but, months later, while governance is left on cruise control in the meantime. The British win their election, and the next day, the new cabinet is in place! And, I cannot but mention the fact that the new British cabinet has a good gender balance, with almost half of its members being female.

As usual, last week was yet another interesting week for us Lawyers. Aside from the reactions following Nigeria’s signing of the Samoa Agreement, there were the judgements handed down by the Federal High Court in the PDP Edo Primaries Case, and that of the Court of Appeal in the Rivers State House of Assembly imbroglio.

The Samoa Agreement

It appears that some Nigerian groups, particularly religious ones, falsely alleged that the Samoa Agreement contains provisions that may be in favour of same-sex relationships and the acceptance of the LGBTQ culture in the form of being guaranteed as fundamental rights, and they have taken exception to Nigeria being a part of that. This allegation is baseless, as not only does Article 9 of the Agreement make no mention of LGBTQ, the Federal Government has also denounced the false allegation as inflammatory on the part of mischief makers trying to incite the people against the Government, stating that the Agreement is simply for the economic development of Nigeria.

But, is there really any need for this unnecessary controversy? By virtue of Section 12(1) & (3) of the 1999 Constitution of the Federal Republic of Nigeria (as amended in 2023) (the Constitution), no Treaty between Nigeria and any other country shall have the force of law until it is enacted into law by the National Assembly, and such law must be ratified by a majority of all the Houses of Assembly in Nigeria, before the President can assent to it. Consequently, a Government that is vehemently opposed to a culture won’t endorse it, nor will Legislators who are standing firmly on the Same-Sex Marriage (Prohibition) Act 2013, the Criminal Code and Penal Code, domesticate into Nigerian law, any Treaty whatsoever that may appear to be contrary to Nigerian laws.

This is a classic case of spreading fake news, which has become a big problem, not only in Nigeria, but globally.

The Edo PDP Primaries Federal High Court Judgement

It has become more or less a weekly repetition for me, to mention that the National Judicial Council (NJC) and Legal Practitioners’ Disciplinary Committee (LPDC) should discipline erring Judges and Lawyers respectively, as it is the most effective way to deter others from all these unwholesome practices that are bringing the justice/legal sector into serious disrepute. It seems as if some Lawyers and Judges are in cahoots to abuse court processes and cause more confusion, instead of resolving differences.

The new trend, where at the conclusion of court proceedings, Lawyers go out to brief the media on pronouncements that the court did not make, as was done in this Edo case, which Media Houses then disseminate without ascertaining the true facts, resulting in the general public being misinformed and misled, thereby causing unnecessary chaos, is not only troubling and dangerous to say the least, but unethical. Aside from the Rules of Professional Conduct for Legal Practitioners 2023 (RPC) which disallows such behaviour by Lawyers, accuracy is the first rule that Journalists must observe in their reportage.

As wrongly reported in the media, the FHC didn’t nullify the Edo PDP Gubernatorial Primaries, or the position of Asue Ighodalo as the PDP’s Gubernatorial Candidate in the upcoming Edo State election. The court however, delivered a strange judgement holding that the Plaintiffs in the case are lawful delegates who cannot be excluded from participating as Ward Delegates in a primary election that already took place on 22 February 2024, or any other date, a decision which by law, the court isn’t empowered to make.

In Osagie & Ors v Enoghama, PDP & Ors (2022) LPELR-58903 (SC) (decided by Ekwo J at first instance) the Apex Court upheld his decision and held inter alia that: “There is no law that gives delegates elected to vote in a primary election of a political party the right of action to protect or preserve their status as such delegates or protect their right to vote during such primary elections. The refusal of their political party to recognise them as such delegates, or to allow them to vote in a primary election to elect the party’s candidates, would not give such delegates legal cause for action. However, such refusal can create a legal cause of action by an Aspirant in the primary election, after a candidate has been selected under Section 84(14) of the Electoral Act”.

The decision in Suit No. FHC/ABJ/CS/165/2024 Honourable Kelvin Mohammed & 2 Ors v INEC, PDP & 2 Ors in which Judgement was delivered by Inyang Ekwo J of the Federal High Court (FHC) on July 4, 2024 (Edo case), is consequently, rather bizarre, and yet another case of abuse of court process – a frivolous, vexatious case, in which not only do the Claimants not have locus standi to bring the action, there’s no legally recognisable, sustainable or reasonable cause of action for any court to adjudicate upon, thereby leaving the court without jurisdiction to hear their case. In Gafar v Government of Kwara State (2007) LPELR-8073 per Mahmud Mohammed, JSC, the Supreme Court held that “where a court had no jurisdiction to entertain any claim, anything done in respect of the claim will be an exercise in futility”. Also, see the locus classicus of Madukolu v Nkemdilim 1962 2 SCNLR 34. I submit that the decision in the Edo case, is an exercise in futility; null and void ab initio and of no effect.

The main plank of the Claimant’s claim, borders on matters concerning Ad-hoc Delegates and their alleged exclusion from participation in the Edo State PDP Primaries that took place earlier this year, which means that this happened before the Edo Gubernatorial election that is yet to take place. See Osagie & Ors v Enoghama, PDP & Ors (Supra). In Magaji v APC & Ors (2023) LPELR-60356(SC) per Kudirat Motonmori Olatokunbo Kekere-Ekun, JSC, the Supreme Court held that it had decided in several cases that: “the selection of ward delegates to vote in a primary election is not a pre-election matter, in respect of which any court has jurisdiction to adjudicate…..”. I submit that the Edo case doesn’t fall within the definition of a pre-election matter, nor does the court have jurisdiction to adjudicate upon it.

Section 285(14)(a)-(c) of the Constitution clearly sets out the definition of a pre-election matter, and who is permitted to institute such pre-election proceedings. In the case of Section 285(14)(a) & (b), only Aspirants (see the definition of Aspirant in Section 152 of the Electoral Act 2022 (EA)), that is, those who participated in the Primaries to vie for the position that the people will vote for in the general elections, have the locus standi to institute the pre-election proceedings mentioned therein; while by virtue of Section 285(14)(c), it is the political party that has the locus standi to institute the pre-election proceedings mentioned therein.

In the Edo case, neither Aspirants nor the PDP instituted the action, but, so-called alleged Ad-hoc Delegates. In Osagie & Ors v Enoghama, PDP & Ors (Supra) the Apex Court held that “… the persons instituting an action before a court of law must have legal capacity, otherwise, the court is robbed of the necessary jurisdiction to entertain same”. I submit that, in the Edo case, the Claimants don’t have the legal capacity to institute the action as they are not Aspirants, and therefore, the FHC is robbed of jurisdiction to entertain same. See the case of Commissioner of Lands Mid-Western State v Edo-Osagie & Ors (1973) LPELR-2933(SC) per George Baptist Ayodola Coker, JSC.

The position of the law is that, matters concerning the internal affairs of a political party are not justiciable. The subject-matter of the Edo case, the issue of Ad-hoc Delegates, falls within the internal or domestic affairs of a political party. The only narrow exception, is that which I have pointed out in Section 285(14) of the Constitution, also echoed in Sections 29(5) & 84(14) of the EA. I submit that the Edo case doesn’t form part of this narrow exception. In Osagie & Ors v Enoghama, PDP & Ors (Supra) which appears to be on all fours with the Edo case, this correct position of the law was what was decided thus: “Ordinarily, political parties being voluntary associations, disputes over any of their internal affairs…..are not justiciable, and therefore, not within the jurisdiction of the courts, except where the national Constitution or statute expressly gives a court such jurisdiction, or the dispute is about the commission of a crime, or involves the violation of a contractual right or the commission of a tort”. The Edo case doesn’t fit this bill.

Unfortunately, it is these types of actions of some Judges, that encourage the public to vilify the Judiciary and pour invectives on them. I have learnt to take things on a case-by-case basis, as I believe it would be unfair to tar all judicial officers with the same negative brush of corruption, lack of knowledge or abuse; just like I wouldn’t want to be tarred with the brush of recklessness or irresponsibility, or of a Lawyer who possesses no knowledge of the law or lacks credibility, as some have held themselves out to be on account of their actions.

Rivers State Court of Appeal Judgement

Appeal No. CA/PH/198/2024 Hon. Martin Chike Amaewhule & 24 Ors v Rt. Hon. Victor Oko Jumbo & 5 Ors in which Hon. Justice Jimi Olukayode Bada, JCA delivered the lead judgement on July 4, 2024, an appeal against the case filed at the Rivers State High Court (RHC) by the Respondents, Suit No. PHC/1512/CS/2024 Rt. Hon. Victor Oko Jumbo & 5 Ors v Hon. Martin Chike Amaewhule & 24 Ors, the Court of Appeal held inter alia that by virtue of Section 272(3) of the Constitution, the FHC and not the RHC is the court vested with the jurisdiction to hear the matter on the vacancy of the seats of the River’s State House of Assembly. The Intermediate Court resolved all the issues in the appeal in favour of the Appellants and struck out the aforementioned case at the RHC.

Even though the Court of Appeal held that the RHC lacked the jurisdiction to hear the matter, it decided the appeal on its merits, that is, it performed its judicial duty and obligation to determine and make clear pronouncements on all the issues properly placed before it by the parties on appeal, as doing this obviates the need to order a retrial of the issues that it has decided. See the case of Igboke v Chukwu & Ors (2023) LPELR-60104(SC) per Chima’s Centus Nweze, JSC. The Enrolment Order of the Court of Appeal, which is simply all the drawn-up orders of the court in the case, also returned the parties to the status quo ante bellum. In Akapo v Hakeem-Habeeb & Ors (1992) LPELR-325(SC) per Philip Nnaemeka-Agu, JSC, the Apex Court defined status quo ante bellum as “the state of affairs before the beginning of the hostilities”. The Apex Court in First African Trust Bank Ltd & Anor v Ezegbu & Ors (1993) LPELR-1279(SC) per Abubakar Bashir Wali, JSC called it “…. the last actual, peaceable, uncontested status which preceded the pending controversy”. It appears that the status quo ante bellum in this case, would be when the new session began, with Rt. Hon. Martin Chike Amaewhule as the Speaker of the 10th Rivers State House of Assembly.

Conclusion

When will abuse of court of process stop? Only when the appropriate punishment is meted out, to those who abuse it. Without sanctions, there’s no deterrent. In the Edo case, the Claimants had no locus standi to institute the action; yet, they did, obviously on the wrong advice of their Counsel. The subject-matter of the case is non-justiciable, yet, they still went ahead to institute the action based on it. In either scenario, the FHC lacked the jurisdiction to entertain the matter, yet, Ekwo J still went ahead to entertain the case and deliver judgement therein, instead of striking it out. See the case of Sylva v INEC & Ors (2015) LPELR-24447(SC).

In the Rivers State Assembly case as well, the RHC also lacked the jurisdiction to hear matter, but Justice Charles Wali heard it anyway. The difference between Edo and Rivers is that, in the case of Rivers, the matter is justiciable; it was only instituted at the wrong venue. Therefore, Wali J could/should have transferred the case to the FHC. See Order 37 Rule 2(a) & (b) of the High Court of Rivers State (Civil Procedure) Rules 2010; Section 22(3) of the FHC Act 2004; and Order 49 Rule 5 of the Federal High Court (Civil Procedure) Rules 2019 on the transfer of cases to other courts, when there’s lack of jurisdiction.

The two aforementioned cases, are prime cases for the LPDC and NJC, to wade into. The actions of Counsel who filed these matters, and the Judges who wrongly assumed jurisdiction in them, despite the unequivocal provisions of the Constitution, EA and plethora of authorities should be investigated.

Finally, with all the different interpretations of ‘status quo ante bellum’ vis-à-vis the circumstances of a particular case, it may have been easier for the Court of Appeal to have stated expressly what they mean by status quo ante bellum in the Rivers case, in order to lay any confusion to rest. And, going forward, it may be expedient for a clear pronouncement of the court on what it considers to be the status quo ante bellum to become the practice, so that parties are clear about their standing.

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