18 May 2019

Nigeria: Defection - Court Dismisses Suit Seeking to Remove Saraki, Dogara, Others

Abuja — Justice Okon Abang of the Federal High Court, Abuja, yesterday dismissed a suit filed by the Legal Defence and Assistant Project (LEDAP), praying the court to declare the seats of Senate President Bukola Saraki; Speaker of the House of Representatives, Yakubu Dogara and over 50 National Assembly members vacant for defecting from their political parties last year.

The suit, among other reliefs, sought for an order asking the federal lawmakers to refund all remunerations paid to them from the day they defected from one political party to the other, as well as an order directing the Independent National Electoral Commission (INEC) to conduct by-elections into the vacant seats.

In another development, the Supreme Court, in a divided decision of six to one, yesterday, dismissed the suit filed by the Cross River State Government challenging the suspension and trial of former Chief Justice of Nigeria (CJN), Justice Walter Onnoghen, for being incompetent.

But in her dissenting judgment, Justice Mary Peter-Odili granted all the reliefs sought by the plaintiff after holding that it has the locus standi to institute the action.

Justice Odili, who dismissed the preliminary objection filed by the Federal Government, held that it was proper for the plaintiff to bring the action, having been clothed with locus standi.

In her dissenting judgment, Justice Peter-Odili held that the Code of Conduct Tribunal (CCT) lacked the jurisdiction to adjudicate on the criminal charge against Onnoghen, saying as a judicial officer, the matter ought to have been handled by the National Judicial Council (NJC) first, as seen in the case of Nganjiwa Vs Federal Republic of Nigeria (2017).

Delivering judgment in the defection suit, Justice Abang held that though the plaintiff's case had merit and was good because of its public interest colouration, she, however, held that the plaintiff lacked the locus standi to institute the case, as it was neither a political party nor the INEC, charged under Section 86 of the Electoral Act to conduct election.

The court insisted that the plaintiff was not a member of the defendants' constituents and was not a registered voter for the alleged defectors, adding that it was the findings of the court that proper persons who were supposed to be joined in the suit were left out and that LEDAP has not shown any injury done to it as a group as a result of the defection of the defendants.

Justice Abang further noted that based on the subject matter of the suit, "the court has jurisdiction to hear the matter, but since jurisdiction of the court was challenged based on locus standi of the plaintiff, I cannot hear the substantive suit."

Justice Abang held that the plaintiff, having not shown sufficient interest that overrides general interest, "has no right to sue the defendants over defection, because it has not shown how the defection of the defendants affected its obligations as an NGO, even though it was registered under Company and Allied Matters Act, saying it could not make an order without hearing from political parties that nominated the defendants.

Similarly, the case of the 3rd defendant, Senator Godswill Akpabio was struck out for lacking in merit.

Akpabio had opted to defend himself outside the Counsel, who entered appearance for the 2nd, 4th to 56th defendants.

Earlier in the judgment, Justice Abang delved into the background of the plaintiff's case, where the court found out that there was no division, faction or merger that warranted the defendants to defect or decamp.

The Judge agreed with the plaintiff's lawyer, Jubril Okutepa (SAN), that before the defection, there was no division, but political contraption and gimmicks to enable the defendants escape the consequences of the cross-carpeting.

On the other hand, the court noted from the counter-affidavit of the defendants that there was no cause of action and that the plaintiff lacked locus standi to file the case.

But in an application filed by Counsel to Saraki and other defendants, Mahmud Magaji (SAN), asking the court to refer the matter to the Court of Appeal for interpretation of section 68(1)(g) of the 1999 Constitution, Abang refused to hands off the case, saying the background of the case, facts and authorities mentioned by the plaintiff counsel are enough for the court to rely on and make a pronouncement, noting: "Therefore, facts admitted, need no further proof."

The Judge ruled: "The defendants defected when their various parties needed them most. The court found out that the defendants defected out of fanciful, selfish political interest and ambition. They ought to be kept in political asylum for committing political inequity."

On the Onnoghen case, the apex court in a majority judgment, held that the plaintiff lacked the requisite locus standi to institute the suit.

Other Justices who agreed with the majority judgment delivered by Justice Paul Galilje, include Olabode Rhodes-Vivour, Musa Dattijo Mohammed, Kudirat Kekere-Ekun, John Inyang Okoro and Sidi Bage.

At the last adjourned date, Counsel to the plaintiff, Locius Nwosu (SAN), while adopting his brief of argument, urged the court to grant the reliefs sought by the state, while Counsel to the defendants and Solicitor General of the Federation, Dayo Akpata, argued his notice of preliminary objection in urging the court to dismiss the suit on the ground that the plaintiff lacked the locus standi to institute the action.

In a notice of preliminary objections filed by Attorney General of the Federation (AGF) and Minister of Justice, Abubakar Malami (SAN), the federal government further challenged the jurisdiction of the court to entertain the matter on the grounds that there was no dispute between the defendants in this suit and the plaintiff, as envisaged under Section 232(1) of the 1999 Constitution (as amended).

The federal government also contended that the subject matter of this suit is personal to Justice Onnoghen and does not in any way affect the Cross River State government as to confer it with the locus to institute this suit, adding: "The reliefs and claims made herein by the plaintiff are not for the benefit of Cross River State, but personal to Justice Onnoghen."

Akpata also informed the court that the subject matter of the suit was already before the Court of Appeal, which has reserved judgment.

Cross River State had in a suit marked SC/145/2019, filed by its attorney general, challenged the suspension and trial of Justice Onnoghen at the CCT, asking the apex court to quash the charge against Onnoghen, who is an indigene of the state.

When contacted, media aide to Saraki, Yusuph Olaniyonu, declined comment, saying it was not necessary.

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