KUNLE OLASANMI looks at the controversy over the Cross River North Senatorial District poll and the recent Supreme Court judgement.
About two weeks after the Supreme Court delivered judgement on the Cross River North Senatorial District election, the dust is yet to settle in the two camps contesting the seat.
Though Senator Stephen Odey still occupies the seat in the senate, his challenger, Hon. Jatgbe Jarigbe, is also laying claim to the seat based on the recent Supreme Court judgement.
While Senator Odey’s camp is saying there was no declarative relief in the judgment, the camp of Jarigbe said the senator is occupying the seat illegally as the apex court has sacked him.
In the judgement delivered on February 25, 2021, the court ruled in favour of Jarigbe.
Both Odey and Jarigbe were of the PDP during the election conducted by INEC on December 5, 2020. INEC declared the PDP as winner of the election. But there were issues over who the authentic candidate of the party was.
While Odey is said to be backed by Governor Ben Ayade, Jarigbe is said to be backed by Rivers State Governor Nyesom Wike.
In a decision of four to three judges, the apex court dismissed the appeal filed by Odey challenging the judgment of the Court of Appeal which declared Jarigbe as the valid candidate of the PDP in the election.
The judgment by justices Chima Centus Nweze, Samuel Oseji, Tijjani Abubakar and Abdu Aboki upheld the preliminary objections raised by Jarigbe challenging the mode of service of the notice of appeal and accordingly struck out Odey’s appeal on the ground of improper service.
But in their dissenting judgment, justices Musa Dattijo Muhammed, Helen Ogunwumiju and Emmanuel Agim disagreed with the other judges by dismissing the preliminary objections and allowing the appeal.
Justice Nweze who read the lead majority judgment said the failure to personally serve the notice of appeal on Jarigbe as required by the rules of court was fatal to the substantive appeal.
He held that personal service of the notice of appeal to the respondent was a fundamental requirement of the law and a condition precedent that its defect cannot be cured.
“The failure by the appellant to effect personal service on the second respondent (Jarigbe) is a fundamental defect that is incurable as it robs the court of its jurisdiction to hear the appeal.
“The defect is not a mere irregularity as proceeding to hear the appeal without proper service of the notice of appeal on the respondent will infringe on his right to fair hearing. The preliminary objections succeed and the appeal is hereby struck out,” Nweze ruled.
He was supported by Justice Tijjani Abubakar who held that the issue of improper service was fundamental in nature and any defect in service was fatal to the appeal.
“The preliminary objection has merit and is sustained, the appeal is hereby struck out,” he ruled.
Both justices Aboki and Oseji agreed with the majority judgment in holding that proper service was not carried out on the second respondent as required by law.
In her dissenting judgment, Justice Helen Ogunwumiju cautioned against sacrificing substantial justice on the altar of technicalities.
While dismissing the preliminary objections by Jarigbe, Justice Ogunwumiju held that the service of the notice of appeal on counsel to Jarigbe was enough and amounted to proper service.
Besides, she held that even if proper service was not carried out on Jarigbe, the court granted an order for substituted service in favour of the appellant which had corrected any defect of service.
“The order for substituted service cures any defect that comes with improper service and the order has not been set aside. Can we then say the notice of appeal was not served on the second respondent in the face of the order for substituted service?
“I am surprised that the issue of improper service continued even after the order for substituted service. In this case, the motion for substituted service on the second respondent was heard before hearing of the appeal commenced. I overrule the preliminary objections as it has no merit,” she held.
Having so dismissed the preliminary objections, Justice Ogunwumiju resolved the issues canvassed in the substantive appeal in favour of the appellant.
She took a swipe at the trial court for assuming jurisdiction to adjudicate on the matter in which proper parties were not before it.
The judge also extended same to the Court of Appeal for agreeing with the trial court and proceeding to make consequential orders against the appellant who was not a party in the suit.
In his own minority judgment, Justices Musa Dattijo Muhammed and Emmanuel Agim faulted the reasoning and conclusions reached by the other judges who gave the majority judgment.
Despite the decision of the apex court, the controversy over who should occupy the seat still rages on.
According to the camp of Senator Odey, there was no declarative pronouncement in the judgement ordering him to vacate his seat in the senate, while the other camp is saying he is occupying the position illegally after the apex court’s pronouncement.
The dollar question now is, after the apex court’s judgement, what is next for the two contenders of the only senate seat in Cross River North?
Before now, an aide to the Cross River State governor and director-general of the Due Process and Price Intelligence Bureau, Mr Alphonsus Eba, accused Governor Wike of being responsible for the internal crisis that has engulfed the state chapter of the PDP.
Eba, who accused Nwike of stocking the flame of the crisis, described his actions as inimical to the overall unity and interest of the party.
The party in the state has been engulfed in a crisis that had led to parallel congresses that produced factional wards and local government chapter executives loyal to Governor Ayade on the one hand and some National Assembly members on the other hand.
The conflict further deepened with two members of the party laying claim to the Cross River North Senatorial Election victory.
To worsen the situation, INEC has issued Certificates of Return to both Senator Odey, who was declared winner of the by-election and Hon. Jarigbe, after the judgment of the court.
“There is one big man once you cross the river to the other side, Rivers. I am sure we call him the governor-general of PDP. He is a very respected and dogged governor, I am sure he has some scores to settle with the governor of the state.
“In politics, a man who wants the party to be united must see to the unity of the party because Cross River is a sovereign state like Rivers State and we expect that he should not stoke the fire in the state, because he is one man whom we respect very much in the PDP as our leader because he has fought a lot of battles for us.
“Recently, he was in Edo State to help us get that very big victory, so, he is highly respected. We call on him to sheathe his sword. This is not the time for settlement of scores in Cross River State”, an aide said.