Godwin Tsa, Abuja
The Supreme Court has upheld the ruling of the Rivers State High Court restraining the All Progressives Congress (APC) from conducting its ward, local government and state congress in Rivers State, pending the determination of a suit that was filed by 22 aggrieved chieftains of the party.
In suit No. BHC/78/2018, the litigants, Ibrahim Umah and 21 others had on May 11, 2018, secured an interim injunction from a High Court in Port Harcourt, wherein, Justice Chiwendu Nwogu restrained the APC from going ahead with the indirect primaries that held on May 19, 20 and 21 respectively which produced Mr. Tonye Cole as governorship candidate and other candidates to represent the party in the 2019 polls.
The APC had through its lawyer, Prince Lateef Fagbemi, ,asked the Supreme Court to resolve legal quagmire against its list of candidates that contained Cole’s name. A request that was rejected by the panel of the apex court led by Justice Mohammad Dattijo, which rather re-affirmed its previous ruling that validated the high court verdict that barred APC from conducting its Rivers primaries.
The Supreme Court evoked section 22 of its act which allows it to take over a matter and give final judgment to decide on the appeal. In a lead judgment delivered by Justice Sidi Barge, the Apex Court held that by virtue of section 11 rule five of the appeal court rules, the appeal against the high court ruling having been withdrawn by the APC is tantamount to outright dismissal.
Justice Barge said that since the court of appeal failed or evaded to make dismissal pronouncement for the said appeal, the Apex Court has no choice than to evoke section 22 of the Supreme Court act to assume jurisdiction over the case and decide on it.
“It is apparent that the lower court based its decision on the lack of authority of Felix C. Nwafor on a decision which had been set aside by the Supreme Court.
The letter dated 3rd August, 2018, was, assuming it was valid, for Fagbemi (SAN) to act as ‘the only counsel on record’. He cannot also use same as basis for leading others including Tuduru Ede, Esq. A change of counsel would have reversed or regularised the development. The letter of Fagbemi (SAN) to ‘continue to act as counsel on record is a misnomer. He has never been counsel on record save for Tuduru Ede, Esq, who initiated the appeal by filling the notice of appeal.
“The instruction of Felix C. Nwafor, Esq, was direct and specific. He was not to act as counsel on record. He had the mandate of the respondent to discontinue the appeal by filling a notice of withdrawal, which he did.
“There is nowhere in this appeal or records where the instruction of Felix . Nwafor, Esq to this effect has been denied or withdrawn. This was further strengthened by the averments contained in the affidavit deposed to by Chiewe Chinweikpe, in support of the motion on notice dated 12th September, 2018 as contained at page 31-35 of the records of appeal.
“Clearly from the foregoing, I have no hesitation in holding that it is inappropriate for the lower court to now rely on its previous decision on June 21, 2018 in October 31, 2018 to circumvent the effect of the notice of withdrawal which in actual fact, the Supreme Court being the apex court in the nation’s judicial hierarchy, had set aside the ruling on October 22, 2018 in SC/764/2018- APC V Ibrahim Umah and others.
“ It is my considered opinion that this appeal must be given a decent burial. The appeal having been withdrawn at the lower court by the respondent is deemed distilled. This is what the lower court failed or evaded to do. Therefore by virtue of section 22 of the Supreme Court act 2004, the lower court having failed to exercise its powers provided under order 11 rule 5, this court is bound to do so.
“Thus I’ll allow, the appeal and set aside the ruling of the lower court dated October 31st 2018. I hearby dismiss Appeal No Ca/Ph/198/2018 same having been validly withdrawn.”
The Supreme Court had initially fixed March 8 for the judgment, however, it brought the date forward after APC contended that the matter would be caught up by the 60 days deadline the Electoral Act provided for the determination of pre-election cases. The appeal marked SC/1070/2018, was filed before the court by 23 chieftains of the party, led by one Abdulahi Umar.
Among other things, the appellants urged the apex court to determine whether it was right for the Court of Appeal to proceed with hearing APC’s appeal against the high court order, despite the notice of withdrawal dated September 13, 2018. They further challenged the interlocutory decision of the appellate court in a ruling that was delivered on October 31, 2018, by a panel of Justices led by Justice Cordelia Ifeoma Jumbo-Ofo, which granted a stay of execution of the order of the high court that stopped the APC primaries. Umar and his group argued that it was wrong for the appellate court to rely on its previous decision that was set aside by the Supreme Court on October 22, 2018, in another appeal marked SC/764/2018, which the APC lodged against them. While adopting their brief of argument, the appellants, through their lawyer, Mr. Henry Bello, urged the Supreme Court to uphold its earlier judgement and nullify outcomes of the indirect primary elections that produced Cole and other candidates in the faction of the party loyal to the Minister of Transportation, Mr. Rotimi Amaechi.
The appellants equally urged the apex court to dismiss the appeal in Port Harcourt, having been withdrawn by the appropriate organ of the APC in Rivers State. Meanwhile, shortly after the matter was adjourned for Judgment, the appellants re-approached the apex court, asking to withdraw the appeal. They applied for the appeal to be struck out since it would have been overtaken by events by March when the 60 days period provided by the Electoral Act would have elapsed. Bello told the apex court panel that the lower court had delivered a consent judgment in the matter, following the withdrawal of the appeal.
However, APC, through its team of lawyers led by Prince Fagbemi, SAN, prayed the Supreme Court to dismiss the case and uphold the list of candidates that were okayed by leadership of the party. Fagbemi, SAN, maintained that whereas the Court of Appeal struck out one of the appeals that involved the consent judgement of the high court, he said the instant appeal at the Supreme Court was different. Fagbemi further argued that the appeal was not a pre-election matter since what was being challenged was the election of officers to the Wards, Local Government and State Congresses of the APC. His contention was however discarded by the Supreme Court, which said it was satisfied that the proceedings at the appellate court ought to have been terminated immediately the case was withdrawn.