Many Nigerians already believe that the practical concept of the rule of law has taken a serious plunge under the watch of Abubakar Malami, SAN, as the Attorney General of the Federation (AGF) and Minister of Justice. This is always debatable within the context of our political leanings and the complexions of our jurisprudence.
What, I think, no one can seriously disagree with is that there is still enough time in the life span of the Buhari administration to finish strong in the area of adherence to the rule of law, especially as it concerns obedience to Court orders. This administration has recorded a massive leap in the area of granting judicial independence to the judiciary. That is massive. Whether the governors want to implement this in their states is something that will reflect on their own legacies not that of President Buhari or AGF Malami.
But a grant of financial independence without a strict policy of obedience to Court orders is a total constitutional cum political jiggery pokery. This cannot possibly be the intention of the President or AGF. That is why I am concerned that the Learned AGF’s name and sacrosanct office is being bandied around as the presiding bishop for the ongoing preparation to ordain an illegality in overturning the final decision of the Court of Appeal which declared Jarigbe Agom Jarigbe as the duly elected Senator representing the good people of Cross River Northern Senatorial District.
Who the candidate of the PDP was in the December 5, bye election to elect the Senator to represent Cross River North in the Senate after the demise of Senator Rose Oko was put to rest by the Supreme Court when it struck out the appeal filed by Stephen Odey, thereby leaving the decision of the Court of Appeal that affirmed the decision of the FCT High Court which declared Jarigbe Agom the candidate of the PDP, ordering that he should be “accorded all the rights and privileges of the party candidate”.
Even with this judgement, politics took over. Honorable Agom was not sworn in, in spite of the recommendation of the Clerk and legal unit of the National Assembly that Jarigbe be sworn in. The Senate President refused to swear him in. It was like a bad dream, one impossible in a democracy. The rule of law was, again, sacrificed on the altar of political shenanigans. I am not privy to what the AGF did to prevail on the Senate to comply with that order of court.
After the Supreme Court struck out his appeal, Stephen Odey and his supporters (including his lawyers) started a surreal argument, that the decision they appealed against did not bind them. Appealing was a fatal mistake they made; but no, they don’t want to accept their own legal miscalculation, they rather prefer to bash the judiciary the way politicians do. The only time politicians agree that a decision of a court is fair and just, is when it favours them.
A FCT High Court declared Jarigbe the candidate; a Federal High Court, Calabar, declared Stephen the candidate. Court of Appeal, Abuja affirmed the FCT High Court decision declaring Jarigbe the candidate; and Jarigbe who had already appealed the Federal High Court, Calabar decision to the Court of Appeal Calabar, went and withdrew his appeal and it was withdrawn and dismissed. Now, we have, as it were, two Court of Appeal decisions; with the one in Abuja not even mentioning Stephen Odey at all. Instead of him to leave it as it were and face the Election Tribunal, so that when it eventually gets to the Court of Appeal, they will have to pick from two of their previous decisions to determine who the candidate was; Stephen Odey did the unthinkable! He panicked and went to the Court of Appeal, Abuja, seeking leave to appeal to the Supreme Court.
He got the leave to appeal. By that singular act he has made himself a party to a proceeding he was never mentioned. Even at this stage, some of us thought he had a chance; until he blew his chances by failing to serve properly! The Supreme Court struck out that appeal. That was when Stephen Odey remembered that the decision of the FCT High Court didn’t mention him. He started writing letters (letters he would have written when there were two Court of Appeal decisions) talking about how the decision didn’t bind him because he was not made a party at the trial court and how there are no consequential orders.
I asked Stephen Odey two questions then that he couldn’t answer and hasn’t answered up to date: if you were not made a party and the decision didn’t bind you or concern you why did you sought leave (beg for permission) to appeal it? If there were no consequential orders, what did the court mean when it ordered that Jarigbe should be accorded all the rights and privileges of the candidate of People’s Democratic Party (PDP)?
Well, the Supreme Court’s decision settled the issue of candidacy. But Jarigbe wasn’t sworn in. We heard that this was part of the deal brokered by the Governor of Cross River State with the powers that be not to swear in Jarigbe, and in reciprocation he will decamp to the APC and after the election tussle has been put to rest in the Tribunal/Court of Appeal, Stephen Odey will also cross carpet to the APC. We have seen the Governor decamp and we have seen Stephen Odey lose at the Court of Appeal.
The issue of party candidacy is a pre-election matter that the Election Tribunal has no jurisdiction to entertain. When Stephen Odey and Joe Agi, SAN, brought up this issue, again, at the Election Tribunal, the Tribunal rightly held that it has no jurisdiction to entertain this, but went ahead to interpret a Supreme Court decision and decided that the decision didn’t state that Jarigbe was the candidate. It was this reasoning that the Court of Appeal overturned.
The Court of Appeal agreed with the Tribunal that it was the PDP that won the elections. But stated clearly that the issue of who the candidate of the party was/is has long been settled by the Supreme Court. Under our laws, votes in an election belong to the political party and in this election, it is the PDP. In deciding who the candidate is, the Court of Appeal as the final court, simply gave effect to the decision of the Supreme Court that Jarigbe Agom Jarigbe is the candidate and that the Tribunal has no powers to decide otherwise.
The argument that Jarigbe didn’t participate in all the stages of the elections is stillbirth. Stephen Odey wasted his chances to raise this at the Supreme Court when he failed to serve court processes properly. He is to be blamed for that. No one else. In any case, will that argument even have held water? I don’t think so. Jarigbe participated in all the stages of the election: he was returned as candidate in a primary election duly conducted and even observed by INEC and the party, at a stage it was his name that was published by INEC, he campaigned for votes and was voted.
Stephen Odey wants to make it look like Jarigbe just fell from the skies to claim the party candidacy. They don’t want to tell you that there were two primaries equally supervised by the party and INEC, they don’t want to tell you that when elections were conducted the space for party candidate was blank in most election documents, they don’t want to tell you that INEC issued a certificate of return to Stephen Odey in compliance with a court order, just like they later did to Jarigbe Agom.
Jarigbe participated in all the stages of the election.
In any case, now that the final court on this issue has held that Jarigbe Agom is the candidate duly elected Senator, this has been put to rest. It beats me hollow, therefore, when an application is being brought in an attempt to set a final and unappealable judgement aside, and the promoters of this judicial circus are bragging openly that the Attorney General and Minister of Justice is the dance behind this masquerade; because according to them, it is an APC agenda, since Odey is as good as an APC Senator already.
How can you bring a motion before the justices of the Court of Appeal, Calabar, who are on vacation to upturn a decision they didn’t give. The panel of justices of the Court of Appeal who heard the appeal from the Election Tribunal were set up ad hoc by the President of the Court of Appeal, pursuant to his constitutional powers. Though, the application was later transported to Abuja, that panel is now functus officio.
Well, this unverified braggadocio is not really my concern; if anything, it just reminded me, that indeed, the Learned Attorney General, constitutionally has a role to play in matters like this: it behoves on his hallowed office to make sure judgements of Courts are obeyed, especially judgements of this nature, that touches on the very foundation of democracy, peace and security.
I call on the AGF to use his good office to uphold the tenets of democracy and rule of law; not just because his name is being dropped by those who seek to do otherwise, but because his learning, his calling and the law demands so; and because his legacy and that of the President is always at stake in matters like this.
The debate about the legality or otherwise of this judgement, like all other judgements, is one that will rage forever – in our Courts, law classrooms and academic journals. But it is a final decision of the final Court in this issue and should be obeyed. To paraphrase the legendary Justice Oputa, final decisions of final courts are final and must be complied with not because it is perfect but because the Court is final. To do otherwise is to invite chaos. No one, including foreign investors, will take our democracy and institutions, especially our courts, seriously, when we don’t.
History will vindicate the just.
F. Baba Isa, Esq., a Legal Practitioner and Cross Riverian, writes in from Abuja via email@example.com.
NB: Opinions expressed in this article are strictly attributable to the author, F. Baba Isa and do not represent the opinion of CrossRiverWatch or any other organization the author works for/with.