Governor Umahi: Averting Confusion

Congratulations, Judge KBJ

Before I go into the ‘word for today’, on behalf of the Nigerian woman, I must say hearty congratulations to 51 year old Harvard-trained Judge KBJ, Kebanji Brown Jackson, the first Black woman to sit on the U.S. Supreme Court. Indeed, her elevation is a true combination of merit and double affirmative action – gender and race – the proverbial round peg in a round hole! This is how to practice Federal Character or Affirmative Action. I hope the Nigerian Government will take a cue from this, and learn that merit and integrity do not necessarily have to be sacrificed on the altar of Federal character, Quota system, gender or any other type of affirmative action. See Sections 14 & 42 of the 1999 Constitution of the Federal Republic of Nigeria (as amended)(the Constitution). You can still pick the best, from the Zone or State you are selecting from.

The Umahi Saga

The recent judgements in Governor Umahi’s case – the one from the Ebonyi State High Court, Abakaliki per Njoku J. which was delivered on February 28, 2022; and that of the Federal High Court, Abuja per Ekwo J. delivered on March 8, 2022, brings to mind various legal principles like ‘Lack of Jurisdiction’, ‘Abuse of Court Process/Forum Shopping/Conflicting Judgements’, ‘Stare Decisis’ and maybe even ‘Res Judicata’. The Court of Appeal sitting in Enugu subsequently delivered its decision on the appeal from the Ebonyi Court, on April 1, 2022.
If the Federal High Court, Abuja decision has also been appealed, the proper thing for the Court of Appeal, Abuja to do in this case, would not just be to take judicial notice of the issues already decided upon by its brother Panel in Enugu, since it involves the same parties and a similar subject-matter (unless the decision was reached per incuriam – in this circumstance, that would mean to be reached without due regard to the Constitution – which cannot be said to be the case by virtue of the Supreme Court decision in AGF v Abubakar 2007 10 N.W.L.R. Part 1041 Page 1 which the Court of Appeal in Enugu followed (the doctrine of ‘Stare Decisis’ – to stand by things decided/following judicial precedent), and only address those issues which have not already been covered; but to reverse Ekwo J’s decision sacking Umahi and his Deputy, based on the doctrine of Stare Decisis – AGF v Abubakar (Supra).
In Ayade’s case which also had a similar subject-matter as that of Umahi’s, Taiwo J. of the Federal High Court, Abuja followed the precedent of the Court of Appeal, Enugu, and refused to declare Ayade’s seat vacant on account of his defection from PDP to APC.
It all seems confusing, but there are some issues that I have distilled from this matter, which I would like you my dear colleagues, to share your views on.

Lack of Jurisdiction

Section 308(1) & (3) of the Constitution prohibits the institution of civil or criminal proceedings against the President, Vice President, Governor and Deputy Governor in their personal capacities during their tenure of office. See the case of Tinubu v IMB Securities Plc 2001 4 N.W.L.R. Part 740 Page 670. Does a suit commenced by the use of an originating summons, not qualify as a civil proceeding? In Ezeaku v Okonkwo 2012 4 N.W.L.R. Part 1291 Page 529 at 547 per Oseji JCA (as he then was), Originating Summons was defined inter alia as “a civil procedure…..reserved for issues like the determination of short questions of construction, and not matters of controversy that the justice of the case demands the settling of pleadings”. Also see the case of B.A. Alegbe, Speaker, Bendel State House of Assembly v M.O. Oloyo 1983 7 S.C. 85 Page 215-216 per Eso JSC.
Or are matters instituted by way of originating summons, not within the scope of the meaning of civil proceedings as envisaged by Section 308 of the Constitution? I believe they are, since Section 308 doesn’t provide that they are excluded therefrom. Did the court therefore, have the jurisdiction to hear a matter involving parties who are exempted from suit and legal process by Section 308 of the Constitution, unless as provided therein? I don’t think so.
Nonetheless, in seeking an interpretation perhaps, as to whether the provisions of Sections 68(1)(g) & 109(1)(g) which govern defection by Federal and State Legislators can be extrapolated to the Executive, Governor Umahi and Deputy are desirable, but not necessary parties to determine these questions, even if they would be bound by the decision. The matter could have been decided without them being joined. See the case of Green v Green 1987 3 N.W.L.R. Part 60 Page 480 per Oputa JSC. The principle would still have been established, for Governors and Deputies who defect.

Abuse of Court Process

Assuming that the court did have jurisdiction to hear this case, here are some of the matters arising that constitute abuse of court process. In Ntuks v NPA 2007 13 N.W.L.R. Part 1051 Page 392 at 419-420 Niki Tobi JSC articulated what amounts to abuse of court process to include, the process of court being used mala fide (in bad faith); an action which is one too many (multiplicity of actions); where there is no iota of law supporting the claim; where the claim is frivolous, vexatious and reckless. Also see the case of Saraki v Kotoye 1992 9 N.W.L.R. Part 264 Page 156. However, these days, I believe that forum shopping is one of the most popular forms of abuse of court process. See the case of Dingyadi v INEC (No.2) 2010 18 N.W.L.R. Part 1224 Page 154 per Adekeye JSC.

1)Per Incuriam

The Constitution which is the grundnorm (Section 1(1)), does not support the decision of Ekwo J., whose decision was based principally on issues of morality. In this matter, not only was there no iota of law supporting the decision (Ntuks v NPA (Supra), the trial Judge failed to follow the precedent set by the Supreme Court case of AGF v Abubakar (Supra), to the effect that, under the Constitution, the only way to remove a President or Vice (and by extension, Governor and Deputy) is by the Legislature so doing, by reason of gross misconduct. Ekwo J.’s decision was therefore reached per incuriam, going by the definition of the term.

2)Multiplicity of Actions/Conflicting Judgements

Even after the Chief Justice of Nigeria, Hon. Justice Ibrahim Tanko Muhammad summoned six State Chief Judges on the issue of conflicting court orders/forum shopping etc last year, it is surprising that two actions were filed with two principal parties common to both actions, on a similar subject-matter; and two courts of concurrent jurisdiction still delivered two different judgements which have resulted in having the opposite effect on the same issue. Was an affidavit of non-multiplicity of action not required, with the processes filed in both suits in Ebonyi and Abuja? Even if the parties in both cases were slightly different, Umahi and his Deputy/their defection were the major targets and recurring decimals in both cases. Whether the issue of the action in Ebonyi could have been raised by Umahi’s team, since Umahi was the common denominator in both cases, it is obvious that the Abuja Court was aware of the Ebonyi case. Perhaps, the trial Judge felt that the two cases bore no similarities, aside from the common parties. But, even if the  prayers in the Ebonyi case were slightly different from that of the Abuja case, there was an important intersection – the decisions in/outcomes of both cases would have had the same principal effect – that is, to declare their defection from PDP to APC either lawful or unconstitutional (and subsequently, keep them in or remove them from office). Could the two cases have been consolidated?

2)Contentious Issues

The originating summons used to commence both matters, seemed to go beyond mere interpretation, to include contentious issues.

3)Res Judicata

Is the doctrine of res judicata applicable this case? At the filing of the Abuja case, judgement in the Ebonyi case had not yet been delivered. Subsequently, judgement in the Ebonyi case was delivered on February 28, 2022, while that of Abuja was delivered on March 8, 2022.
In Abiola & Sons B. Co. Ltd v 7up Bottling Co. Ltd 2012 15 N.W.L.R. Part 1322 Page 184 at 201, the Supreme Court per Galadima JSC held that: “The Latin phrase res judicata means literally, “a thing adjudicated”. It is trite law that a matter once judicially decided, is finally settled”.

For a plea of res judicata to be able to avail a Defendant, a) there must be an earlier decision on the issue b) a final judgement on the merits c) the involvement of the same parties, or parties in privity with the original parties. See the case of Abe v Adeniyi 2007 4 N.W.L.R. Part 1023 Page 191 at 218. Was issue of Umahi and his Deputy’s defection to APC a thing already adjudicated upon by the Ebonyi High Court, because even though both cases may not  have been on all fours with each other, they shared a common goal/interest? While in the Ebonyi case, the runner up in the election wanted to be declared the winner, because they claimed that Umahi’s votes were abandoned or invalidated, and he and his Deputy should vacate the offices; in the Abuja case, PDP wanted a declaration that the votes won by Umahi belonged to the party, and were not transferable to be used for the benefit of APC. The end result of both matters however, was to get Umahi and his Deputy out of office. At the end of the day the decision in the Ebonyi case kept in Umahi office, while that of Abuja, removed him from same.
Onnoghen JSC in D.T.T.Ent (Nig.) Co. Ltd v Busari 2011 8 N.W.L.R. Part 1248 Page 387 at 410,  stated that once there is a final determination by the court, neither the parties thereto nor their privies can be subsequently allowed to relitigate the matter, because such decision is conclusive until it is reversed on appeal. Onnoghen JSC said: “The veracity of that decision or determination is also not open to a challenge, nor can it be contradicted. The doctrine is grounded in public policy which stipulates that there must be an end to litigation, as captured in the Latin maxim,  ‘interest republicae at sit finis litium’ ”. Did the Abuja case qualify as a relitigation of the Ebonyi case?
While some argue that the Abuja Court should not have handed down a decision which not only had a resultant effect tantamount to a court of coordinate jurisdiction sitting as an appellate court over the decision of a sister court, and overturning its sister court’s decision which it does not have the jurisdiction to do, it also sought to overturn the decision of the Apex Court in AGF v Abubakar (Supra)  instead of following it, which amounts to a ‘judicial abomination’. On the other hand, others argue that, at best, the Ebonyi decision could only be a persuasive authority for the Abuja case, and that they are different matters with different parties, res judicata does not apply.

Conclusion

It is clear that at the instigation of politicians and their counsel, the lower courts seem to already be setting the stage for confusion, for the period leading up to the general elections next year and thereafter. The Apex Court being the final court of the land, is the only one that is able to lay these controversies to rest. However, in so doing, it is also bound by the provisions of the Constitution. If those excluded by Section 308 are to be bound by the same provisions that bind Legislators with regard to defection, the Constitution must be so amended, and a proviso inserted in Section 308 to the effect that, in the case of defection from the party which sponsored candidates to win the elections, legal proceedings can be instituted against them to remove them from office. For now, from the provisions set out in the Constitution, the removal of the President, Vice President, Governor and Deputy Governor remains largely a legislative, and not a judicial function. See Sections 143,144, 188 & 189 of the Constitution.