At Last, It’s Victory for Jarigbe

Alex Enumah writes that with the declaration of the Court of Appeal Abuja over the weekend that it has become ‘functus officio’ in the Cross River North Senatorial District bye-election, it is now victory for Senator-elect, Jarigbe Agom Jarigbe

Respite on Saturday was said to have finally come the way of Senator-elect for Cross River North Senatorial District, Hon. Jarigbe Agom Jarigbe following refusal of the Court of Appeal, Abuja to set aside Jarigbe’s declaration as winner of the December 5, 2020 bye-election for the senatorial district in Cross River State. This is so because the Court of Appeal which is the final court for election matters for national and state house of assembly in two separate rulings held that it cannot overrule itself in its own judgement, especially when it has not been established that there was a slip in the delivery of such a particular judgement.

Although this is not the first time Jarigbe will be emerging victorious in his bid to move to the Upper Chamber of the National Assembly, this victory however has finally brought to an end legal battles for the seat of Cross River North Senatorial District which became vacant owing to the demise of the former occupant, late Senator Rose Oko

It should be stated that Jarigbe won both the pre-election and election suits to secure his seat at the Red Chamber of the National Assembly. In the pre-election cases, Jarigbe won all through from the High Court to the Court of Appeal and the Supreme Court. Jarigbe had approached a High Court of the Federal Capital Territory (FCT) to challenge his disqualification from the December 5, 2020 bye-election for the Cross River North Senatorial District in Cross River State. The High Court in its judgment declared Jarigbe as the authentic candidate of the PDP for the December 5, bye-election for Cross River North Senatorial District.

However, the PDP had submitted the name of Stephen Odey as its candidate in the election. The PDP and Odey scored a total of 129,207 votes to defeat their closest rival, Joe Agi of the All Progressives Congress (APC) who scored 19,165 and while the electoral umpire accordingly declared PDP as the winner of the bye-election, it went further to issue a certificate of return to Odey. But when the Court of Appeal in Abuja upheld the judgment of the FCT High Court which had declared Jarigbe as the authentic candidate of the PDP in the December 5, bye-election, INEC in line with the appellate court judgement in late December, recognized Jarigbe as PDP’s candidate and went ahead to issue him a fresh certificate of return after it withdrew the earlier one issued to Jarigbe. Similarly, the Supreme Court in its own judgment also affirmed the decision of the Court of Appeal that Jarigbe was the authentic candidate of the PDP in the December 5, bye-election.

While the pre-election matter was ongoing, Jarigbe also joined as a party at the National and State House of Assembly Election Petition Tribunal, which held in Calabar. The tribunal presided by Justice Yusuf Mohammad had in a judgment delivered on June 18, 2021, held that Odey was the authentic candidate of the PDP for the senatorial bye-election. The panel accordingly ordered INEC to withdraw the Certificate of Return earlier issued to Jarigbe and issue same to Odey.

However, in a ruling on July 30, a three-member panel of the Court of Appeal, Calabar presided over by Justice Chioma Nwosu-Iheme, nullified the decision of the tribunal and ordered the sack of Odey on the grounds that he was not the authentic candidate of the PDP in the said bye-election. The panel subsequently ordered INEC to immediately issue Jarigbe the certificate of return which the court held was wrongly withdrawn from him.

This ordinarily would have put an end to the whole legal battle for the seat of the Cross River North Senatorial District since the Court of Appeal is the final court for such matters. But this was not the case as the two major contestant from the tribunal to the Court of Appeal, Chief Joe Agi of the APC and Stephen Odey of the PDP, again approached the appellate court in Abuja, to revisit and review the July 30, judgement with a view to setting it aside.

They had claimed that the appellate court erred in its decision when it dismissed their own appeals against the judgement of the National and State House of Assembly Election Petition Tribunal and found merit in Jarigbe’s appeal and went ahead to order the Independent National Electoral Commission (INEC) to immediately issue Jarigbe a Certificate of Return which the electoral umpire “wrongly withdrew” from Jarigbe. They further claimed that the judgment delivered on July 30 in Calabar violated section 285 of the 1999 constitution having been done without jurisdiction. In addition, the appellants submitted that Jarigbe, who was returned as winner of the bye-election did not participate in all the stages of the election as required by law.

The appellants therefore asked the court to set aside the judgment on account of being a nullity.

But, in its ruling in the two applications on Saturday, the presiding judge, Justice Monica Dongban-Mensem specifically told the applicants that the appellate court lacked the jurisdiction to review and amend its own decision in the Cross River Senatorial District bye-election delivered by the Calabar Division of the court.

In a unanimous decision, the five-member panel held that the applicants have not shown any slip for the court to amend its own judgment.

According to the presiding Justice, the court has performed its judicial duties under Section 246 of the constitution and has become functus officio.

According to the law, the Court of Appeal is the final court for National and State House of Assembly elections; unlike the governorship and presidential elections, the National and State House of Assembly Election petitions don’t get up to the Supreme Court.

In the ruling, the panel observed that the applicants were not sincere in their application and only sought for review because the outcome of the appeal at the Calabar Division was not favourable to them.

Justice Dongban-Mensem, held that, “The court will not overrule its earlier decision at the whims and caprices of the parties.”

While insisting that the court has entered judgement in its final appellant jurisdiction, she held that the applications are an abuse of the court process, adding that the applications ought not to have been filed in the first place, adding that the request for review was brought in bad faith as It constituted a dangerous invitation to the court to set a bad precedent.

Citing section 246 of the 1999 constitution, the Court of Appeal held that its judgment once delivered diligently cannot be set aside except where such judgement is fundamentally defective.

Justice Dongban-Memsem held that in the instant applications, both Agi and Odey failed to show fundamental defectiveness in the judgment they challenged.

She further held that the two applicants did not show the court any aspect of the law that empowered the court to review its own judgment and set It aside other than where clerical typographical errors are discovered.

The court described the applications as a gross abuse of court process, malicious and brought in bad faith to over reach the court.

“In totality, the application by the appellants is worthy of nothing but dismissal and I hereby dismiss It for want of merit,” she said.

While dismissing the application, the court upheld the July 30 2021 judgment that recognized Jarigbe as the Senator for Cross Rivers North Senatorial district.

As punitive measures, the court awarded cost of N2 million against Agi and the APC in the first appeal against PDP and Jarigbe.

Similarly, the court awarded another sum of N1 million each against Odey in favour of Joe Agi, APC and Jarigbe who are the 1st, 2nd, and 3rd respondent’s respectively in the second appeal.

QUOTE

Citing section 246 of the 1999 constitution, the Court of Appeal held that its judgment once delivered diligently cannot be set aside except where such judgement is fundamentally defective