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What You Don’t Know About Cross River North Senatorial Seat

Dr. Stephen Adi Odey and Jarigbe Agom Jarigbe contested the primary election of the Peoples Democratic Party (PDP), along with other candidates for the party’s ticket in the Cross-River North Senatorial District by-election. Dr. Stephen Adi Odey defeated Jarigbe Agom Jarigbe by 450 votes as against 90 votes scored by Hon. Agom Jarigbe and emerged PDP flag bearer in the Cross-River North Senatorial District by-election.

Being aggrieved by the outcome of the primary election, Jarigbe Agom Jarigbe approached the Federal High Court for a determination on who the party’s nominated candidate for the Cross River State North District Senatorial by-election was, Dr Stephen Odey also instituted an action at the Federal High Court to compel INEC to publish his name as submitted by the PDP as its candidate. The court declared Dr. Stephen Adi Odey the winner, and pronounced him as the PDP’s flag-bearer for the Senatorial election. Dr. Stephen Adi Odey contested in the bye-election and won. He was declared the winner, and sworn in as the Senator representing the Cross River State North Senatorial
District.

Meanwhile, one Chief John Alaga went ahead and filed a suit against Jarigbe Agom Jarigbe and INEC at the High Court of the Federal Capital Territory, Abuja in Suit No. CV/77/2020, challenging the nomination of Jarigbe Agom Jarigbe as PDP’s candidate for the by-election bearing in mind that Jarigbe Agom Jarigbe was never nominated by the PDP as its candidate for the Cross River North Senatorial By-Election. Chief John Alaga in that suit had prayed the court for a determination of some questions relating to the information supplied by Jarigbe Agom Jarigbe to INEC, alleging that the said information about the educational qualification of Jarigbe Agom Jarigbe was false, and that the primary election of the PDP was conducted without valid delegate list of the party. Dr Stephen being the winner of the primaries was not joined in the suit.

The High Court of the Federal Capital Territory, Abuja declined jurisdiction as the Plaintiff do not have the locus-standi to institute the action, having not participated in the primaries and dismissed the suit, for failure of Chief John Alaga to prove the assertions in the Originating Summons; however, the court made some consequential orders directing INEC to recognize Jarigbe Agom Jarigbe as the candidate of PDP in the Senatorial by-election.

Chief John Alaga appealed against the decision of the High Court of the Federal Capital Territory, Abuja. The Court of Appeal dismissed the appeal, but the appellate court preserved the order of the trial court made in favor of Jarigbe Agom Jarigbe. Dr. Stephen Adi Odey brought an application to be joined as an interested party at the Court of Appeal and same was granted.

Dr. Stephen Adi Odey further appealed to the Supreme Court and by filing a notice of appeal. Jarigbe Agom Jarigbe filed a notice of preliminary objection to the jurisdiction of the court, on the ground that the Notice of Appeal was not served on him and Chief John Alaga personally. The Supreme Court held that personal service of an originating process, like a Notice of Appeal, is a fundamental requirement of the law – AKINLOYE v ADELAKUN (2000) 5 NWLR (Pt. 657) 530. Order 2 Rule 3 and 4 of the Supreme Court Rules makes it mandatory for the Notice of Appeal to be served on all the Respondents, and breach of the Rules is not a mere irregularity but a fundamental breach which goes to the foundation of the appeal – POPOOLA v BABATUNDE (2012) 7 NWLR (Pt. 1299) 302 at 331. The entered an order setting aside the ex-parte order of substituted service. The Preliminary Objection Succeeds.

LEGAL ANALYSIS

The Supreme Court
From the decision of the Supreme Court, it is crystal clear that the Apex court did not delve into the substantive suit. The decision was based on the preliminary objection filed by Jarigbe Agom Jarigbe challenging the jurisdiction of the court on the ground that the Notice of Appeal was not served on him and Chief John Alaga personally. The Supreme Court held that personal service of an originating process, like a Notice of Appeal, is a fundamental requirement of the law and the court went ahead to set aside the ex-parte order of substituted service. The Preliminary Objection Succeeds.

The interpretation of the ruling is that there was no appeal before the Supreme Court because The Preliminary Objection filed by Jarigbe Agom Jarigbe Succeeds and the apex court never had the chance to determine the appeal filed by Dr. Stephen Adi Odey on its merit. Furthermore, the Supreme Court never delved into the appeal nor upheld the order of the trial court which was affirmed by the appellate court. No order to vacate seat was made. Supreme Court NEVER SACKED DR STEPHEN ODEY

Court of Appeal
On the judgment of the Court of Appeal which dismissed Chief John Alaga’s appeal but preserved the order of the trial court made in favor of Jarigbe Agom Jarigbe. A clear interpretation of the consequential order made by the trial court (directing INEC to recognize Jarigbe Agom Jarigbe as the candidate of PDP in the Senatorial by-election), thereby declaring him winner of the by-election even when his name was not submitted by a party (PDP)to INEC and Jarigbe Agom Jarigbe also did not contest in the Senatorial by-election is no longer the position of the law today.

Section 141 of the Electoral Act, 2010 provides; “An election Tribunal or Court shall not under any circumstance declare any person a winner at an election in which such a person has not fully participated in all stages of the said election”.

Section 285 (13) of the 1999 Constitution of the Federal Republic of Nigeria (As amended) provides; “An election Tribunal or Court shall not under any circumstance declare any person a winner at an election in which such a person has not fully participated in all stages of the election”.

The Supreme Court in CPC & ANOR V. OMBUGADU & ANOR(2013) LPELR-21007(SC) on the implication of the provisions of Section 141 of the Electoral Act 2010 (as amended) as to whether a person who has not fully participated in all the stages of the election can be declared the winner held thus;

“Section 141 of the Electoral Act 2010 (as amended) provides in unmistaken terms: “An election tribunal or Court shall not under any circumstance declare any person Winner of an election in which such a person has not fully participated in all the stages of the said election.” By the above provision, the National Assembly has set aside the decision of this court in Amaechi v. INEC (2008) 5 NWLR (Pt 1080) page 227 at 296. Contrary to the decision of this Court in Amaechi’s case, the implication of Section 141 of the Electoral Act, 2010 (as amended) is that while a candidate at an election must be sponsored by a political party, the candidate who stands to win or lose the election is the candidate and not the political party that sponsored him. In other words, parties do not contest, win or lose election directly; they do so by the candidates they sponsored and before a person can be returned as elected by a tribunal or Court, that person must have fully participated in all the stages of the election, starting from nomination to the actual voting.” Per NGWUTA, J.S.C. (P. 51, Paras. B-G)

The purported certificate of return issued by INEC to Jarigbe Agom Jarigbe after the judgment of the Court of Appeal which preserved the order of the trial court directing INEC to recognize Jarigbe Agom Jarigbe as the candidate of PDP was an overzelous act on the part of INEC since the court of Appeal did not specifically stated that certificate of return be issued. Secondly, it may well mean that the court refused to use specific words “issue certificate of return to Jarigbe” because the court as the fountain of justice may have at the back of its mind, the position of the law under section 141 of the Electoral Act, Section 285 (13) of the Constitution as well as the Supreme Court decision in CPC & ANOR V. OMBUGADU & ANOR (2013) LPELR-21007(SC) on the implication of the provisions of Section 141 of the Electoral Act 2010 cited Supra, which in effect cannot accommodate a party to occupy an elective post where he has not participated in all the stages of election. All stages starts from nomination by a political party to the final election. The law is sacrosanct and unchanged for now.

The position in AMAECHI V. INEC (2008) All FWLR (Pt. 407) 1, (2008) 5 NWLR (Pt. 1080) 227 at 296, (2008) Vol. 1 MJSC which can declare a candidate winner or be sworn in to a post when he has not participated in all the stages of an election is no longer the law and there are plethora of Supreme Court decisions to that effect. Since the Electoral Act and constitution amendment that corrected the decision in Amaechi v INEC is still valid. There have been plethora of cases where individual’s rights were determined in pre-election cases but the court fell short of ordering certificate of return be issued to them or the original winner be asked to vacate his seat because of Section 141 of the electoral act and section 285 (13) of the constitution.

The High Court of FCT
It is instructive to note that the case at the FCT High Court was instituted by Chief John Alaga who himself did not take part in any primary elections in the first place. Secondly, he did not joined Dr Stephen Odey, nor PDP as parties to the suit. Thirdly, the consequential order which Jarigbe Agom Jarigbe obtained was declared on the 4th November 2020 and the said order wasn’t about the winner of an election nor issuance of certificate but on privileges to participate in the by-election. Therefore the question of INEC issuing certificate of return did not arise as there was no by-election conducted at the time, so the scope of the court’s decision was only limited to participating in the by-election. Not to mention whether the court in FCT even has jurisdiction to entertain the case or to make an order in the first place.

Consequently, the consequential order made by the High Court of the FCT is void as there was no plaintiff before the court in the first place. See ABUBAKAR V. TANKO (2019) 3 NWLR, PT. 1658, @ PG. 1.

The Supreme Court in Vivian Clems Akpambo-Okadigbo & Ors v Egbe Theo Chidi & Ors made clear in effect that to make an order against a party who was not joined in the suit is in violation of his right to fair hearing and cannot stand. In any case a month later the Federal High Court declared Dr Stephen Odey as the authentic candidate of PDP in a suit which Jarigbe was joined. This was 2 days to the by-election. Furthermore, even when the court of appeal upheld the decision of the High Court of FCT which earlier ordered INEC to recognize Jarigbe as the candidate of PDP it was a judgment in relation to participating in the by-election which has now become academic because Dr Stephen Odey had already participated in the election and won. Therefore there is no judgment anywhere that ordered issuance of certificate of return to Jarigbe. You cannot put something on nothing and expect it to stand.

Finally here are vital issues and questions that resolved the matter.

Dr Stephen Odey
1. Did Dr Stephen Odey win the primary election as witnessed by INEC and declared by PDP?
The answer is in the affirmative which explains why PDP forwarded his name to INEC as the candidate of PDP in the Cross River North Senatorial By-election.

2. Did Dr. Stephen Odey win the by-election?
The answer is a big yes. He defeated Joe Agi, SAN the candidate of APC at the election with a wide margin and was declared winner by INEC.

3. Did INEC issued Dr. Stephen Odey with the certificate of return as required by the electoral Act?
Yes, it did, having declared him the winner of the Cross River North Senatorial By-election and returned him as dully elected.

4. Was Dr. Stephen Odey sworn in by the President of the Senate as the Senator representing Cross River North Senatorial District?
Yes, he was sworn in as affirmed above and has since resumed his duties in the senate

5. Has INEC at any material time withdrawn the certificate of return from Senator Odey?
No, INEC or Court has not ordered the withdrawals of certificate of return from Senator Odey

Hon. Jarigbe Agum Jarigbe
1. Was Dr Stephen Odey or PDP made a party to the suit filed by Chief. John Alaga, from where Jarigbe obtained the order he is parading?
No. No. No. And the law is clear that an order cannot bind a party who was not joined in the suit because doing so will violate his right of fair hearing. See Vivian Clems. Akpamgbo cited Supra.

2. Has any court set aside the certificate of return issued to Senator Stephen Odey?
No court in the land has set aside the certificate of return issued by INEC to Dr Stephen Odey.

3. Has INEC withdrawn the certificate of return issued to Senator Stephen Odey before erroneously issued certificate of return to Hon. Jarigbe Agom?
No. INEC has not withdrawn the certificate of return issued to Sen. Odey because the said certificate was in the first place issued to him consequent on his victory at the polls as required by the electoral act.

4. What is the effect of the order of the High Court of FCT and the Court of Appeal?
Inchoate, omnibus and empty as it did not invalidate the certificate of return issued to Dr Stephen Odey, nor ordered INEC to issue certificate of return to Hon. Jarigbe Agom.

CONCLUSION
Dr. Stephen Adi Odey defeated Jarigbe Agom Jarigbe at the primaries and also won the by-election and was issued with a certificate of return by INEC. He is the authentic/valid Senator representing the good people of Cross River North Senatorial District at the National Assembly. The certificate issued by INEC to Jarigbe Agom is null and void.

The Supreme Court struck out the appeal of Dr. Stephen Adi Odey, while upholding the notice of preliminary objection of Jarigbe Agom Jarigbe cannot be interpreted to mean Dr. Stephen Adi Odey has been sacked and therefore, the certificate of return purportedly issued to Jarigbe Agom by INEC, relying on the judgment of the Court of Appeal was in error because the court never made such an order as required by the electoral act. Therefore the Senate President, Dr. Ahmed Lawal was right to have sworn in Dr Stephen Odey as the Senator representing Cross River North Senatorial District.

Dr. Daniel Bwala, LLM (UK)

Barrister Lincolns Inn, (NP)

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