A Federal High Court in Abuja on Thursday, extended the Dec. 15 interim order stopping the Independent National Electoral Commission (INEC) and the Peoples Democratic Party (PDP) from taking any action step against the 26 Rivers House of Assembly members who defected to All Progressives Congress (APC).
Justice Donatus Okorowo extended the order following an application by counsel for the embattled lawmakers, Steve Adehi, SAN, and supported by Ken Njemanze, SAN, who appeared for the Rivers House of Assembly.
Although PDP’s lawyer, Adeyemi Ajibade, SAN, opposed the application, Justice Okorowo agreed that based on Order 26, Rule 10 of the FHC, the court had the discretionary power to grant the plea in the interest of justice.
The judge held that he was persuaded by the reasons given by Adehi and Njemanze that granting the order would be better in the interest of justice.
Okorowo, who adjourned the matter until Jan 24 for hearing of the applications, said: “application for the extension of the order of the lifespan of the ex-parte order pending the hearing and determination of motion on notice is hereby granted.”
Justice Okorowo had, on Dec. 15, granted the ex-parte motion filed by the 26 lawmakers who dumped PDP for APC.
The court restrained INEC from conducting fresh election to fill the seats of the 26 assembly members.
It also restrained INEC, PDP and the house of assembly from declaring their seats vacant and withdrawing their respective Certificate of Returns pending the hearing and determination of the motion on notice.
The plaintiffs had, in the motion ex-parte marked: FHC/ABJ/CS/1681/2023/ dated and filed Dec 13, sued INEC, PDP, the assembly, clerk of the assembly, Inspector-General (I-G) of Police and Department of State Service (DSS) as 1st to 6th defendants respectively.
Upon resumed hearing on Thursday, plaintiffs’ counsel, Steve Adehi, SAN, informed the court that he had a motion on notice which originally was meant for hearing today.
Adehi, however, sought an adjournment in view of the fact that Mr Lukman Fagbemi, SAN, had withdrawn appearance and a new counsel had entered appearance in the matter for the 3rd defendant (assembly) and in view of the fact that the 2nd defendant (PDP) had just served on them their response this morning.
“In any case, I ask that the matter be further adjourned to enable us serve the 3rd and 4th defendants (assembly and clerk) and to also enable us to reply on points of law to the process served on us by the counsel to the 2nd defendant,” he said.
Then K.C.O. Njemanze, SAN, told the court that he had the instruction of the 3rd defendant (assembly) to take over the brief with the original letter of instruction backing this after the withdrawal of the earlier counsel, Fagbemi.
He equally informed that a memorandum of appearance had already been filed.
A lawyer from Fagbemi’s chamber confirmed to the court that the learner silk had withdrawn from the suit.
The PDP’s lawyer, Adeyemi Ajibade, SAN, who is also the National Legal Adviser of the party, said he had an application challenging the jurisdiction of the court to handle the suit and the competence of the suit itself.
He, therefore, prayed the court for an order discharging the Dec. 15 interim order granted by the court.
Ajibade said the plaintiffs had responded to their preliminary objection but yet to respond to their second application, which was a motion seeking the court’s order to discharge the interim order.
He, however, aligned himself with the application for adjournment by Adehi and Njemanze in view of Fagbemi’s withdrawal from the suit.
He said this would also enable him sort out their processes which had earlier been served on Fagbemi.
Njemanze told the court that he was yet to be served with the processes filed by the PDP to enable them respond to same.
Besides, he said he intends to react to the processes filed by the plaintiffs also.
He said though there had been moves to resolve the dispute politically with the involvement of President Bola Tinubu, he would need to get the disposition of his client to the development.
“Without prejudice to the information by my learned friend this morning about a political solution brokered by Mr President, I need to get my client’s reaction to this and then report back to this honourable court.
“In the circumstance, we pray for an adjournment to enable me file my processes,” he said.
The 4th defendant (clerk of the assembly)’s counsel, Ferdinand Orbih, SAN, notified the court that his client was yet to be served with any process in the matter.
“But as obedient servant and minister in the temple of justice, we appeared this morning with firm instruction from the 4th defendant,” he said.
Orbih said he would consult with the 4th defendant to know which path to tow.
He said if he agreed with the plaintiffs’ application but the PDP insisted on going on with the matter, the case would still be alive before the court.
“However, we are not opposed to the plaintiffs’ call for adjournment as the consultation continues,” he said.
Adehi, who said should the court consider all the applications for adjournment, prayed the court for an order extending the lifespan of the Dec. 15 interim order pending when the matter is resolved.
But Ajibade opposed Adehi’s application, reminding the court of their motion seeking to vacate the order.
He argued that issues had already been joined in the case by responding to the plaintiffs’ interlocutory injunction and that their counter affidavit had also been served.
Responding, Njemanze, who appeared for the assembly, disagreed with Ajibade.
“The issue of 2nd defendant filing processes no longer arise at this stage because those processes are highly defective because we have not been served and so, there cannot be issues at this stage,” he said.
He argued that it is the law that issue of service is fundamental in adjudication and that without service, there cannot be adjudication on matters.
He, therefore, backed Adehi’s application for the extension of the lifespan of interim order.
“We are not opposing the aplkication because if that order is discharged without going into the merit of the matter, this court will automatically lose control of the proceedings and create a situation where the main suit, if it succeeds, the order will be rendered nugatory.
“With all respect for the 3rd respondent, I submit that the parties before you, including the 2nd, 3rd and 4th defendants, have submitted themselves to the jurisdiction of this court and are therefore bound not to resort to self help or do any act that will render the judgment in this matter which ever way it goes nugatory.
“Secondly, the plaintiffs’ motion for interlocutory injunction had been served on the 2nd defendant.
“Therefore, the extension of the lifespan of the interim order will not be prejudicial to any of the party in view of the pendency of that motion.
“In the circumstance, the defendants will lose nothing if the status quo is maintained and the res in this matter is preserved pending when the motion on notice for interlocutory injunction is determined.
“For this reason, I am not opposing the application for the extension of the lifespan of the order,” he said.
Corroborating Njemanze’s submission, Adehi insisted that the circumstance leading to the grant of the ex-parte order had not changed.
The lawyer argued that the PDP’s body language “is such that leaves us in doubt because they are still calling for the declaration of the seats of the plaintiffs vacant and conduct of fresh election.
“So, those circumstances have not changed,” he said.
Besides, he said the lawyers in court had also sought an adjournment in order to go and verify the claim that the matter is being settled amicably.
Adehi also argued that PDP was not ready for the sitting because it had just responded to their application at about 8:50am today.
“And we are still entitled to file a reply on points of law. So there is no neglect on our part,” he said.
He also argued that the 1st plaintiff (factional speaker) had complied with the order of the court to undertake damages in the sum of N250 million.
“As a matter of fact, this court in granting that application has ordered for a damages for the sum of 250 million which the first plaintiff has complied with,” he said.
Adehi said by Order 26, Rule 10 of the rule of the court, the court had the discretion to grant his plea, especially weighing all the circumstances and seeing that he was willing to go on with his motion, but for the development in the morning.
He urged the court to grant their request.
Responding to Njemanze’s position that the PDP’s processes were incompetent, Ajibade corrected that all their processes filed were competent, even though there had been a change of counsel.
He also stated that neither the house of the assembly nor the clerk of the house had served them with their memorandum of appearance.
He urged the court to discountenance that position and hold that all their processes were in order before the court.
It was observed that INEC, I-G and DSS were not represented in court.
PDP insists on declaring 26 defected Rivers lawmakers’ seats vacant
Meanwhile, the Peoples Democratic Party (PDP) on Thursday insisted that the 26 Rivers House of Assembly lawmakers who dumped the party for the All Progressives Congress (APC) were no longer members of the state legislature.
PDP National Legal Adviser, Adeyemi Ajibade, SAN, told the NAN shortly after Justice Donatus Okorowo of a Federal High Court, Abuja, adjourned the embattled lawmakers’s suit until Jan. 24, 2024.
Ajibade said though President Bola Tinubu might have intervened in the dispute between the Gov. Siminalayi Fubara and the FCT Minister, Nyesom Wike, the party stood on what the constitution says on defection.
“PDP as a party, we are standing on the side of the constitution of the country.
“It is not about issues of an agreement because by the constitution, we all sworn to uphold.
“Tye governor himself sworn to uphold the constitution likewise the president.
“I am not against the president, calling for the resolution of the matter. He is the chief security officer of this country and he has every right to intervene in the issue.
“But besides that, we, as a political party, the PDP owns those seats and certainly we are interested in those seats.
“Whatever the governor is doing in this matter that concerns whether resolution on the issue, no resolution has been brought to Wadata Plaza on this matter.
“But as a political party, we cannot leave the seats and the votes willingly given to the party by people of Rivers State,” he said.
According to the senior lawyer, aside from that, the constitution of the country is very clear; Section 109 (1g) is clear as to issues of detection.
He said the affected lawmakers had not denied that they had not detected.
“Even if you pick the writ of summon that was filed before this court, they said they actually defeated.
“So they are only stating while they defected, that they have the right to defect based on the reasons given by them.
“So it is not an issue as to whether there was a deflection or not and we cannot fold our hands. So we have to go to recover our seats,” he said.
Ajibade, who said they had challenged the jurisdiction of the court to hear the suit, said if the court ruled that it had jurisdiction, the PDP would appeal it.
“If at the end of the day, if this court decided to maintain and insists that it has jurisdiction, then we will do the needful.
“We will study the ruling and if possible, we have higher court,” he said.
On what transpired in court, he said though the case was adjourned for hearing of interlocutory injunction, the PDP filed an objection that the court had no jurisdiction to entertain the matter
He said though he opposed the plaintiffs’ application for the extension of the ex-parte order earlier granted by the court on Dec. 15, he said it was unfortunate that other defendants who were supposed to take side with them did not oppose it, and the court granted the request.
“The court said based on the balance of probabilities, it decided to extend the order.
“The case has been adjourned to Jan. 24, 2024, and on that day, our application challenging the jurisdiction of this court will be taken to see whether this court has jurisdiction on the matter.
“And we equally have an application, asking the court to set aside the earlier ex-parte order granted by the court for lack of jurisdiction,” he said.
Also speaking, Mr Steve Adehi, SAN, lawyer to the 26 lawmakers (plaintiffs), said though they were in court with the hope of taking their interlocutory injunction, an issue regarding a change of counsel occured.
He said the matter was adjourned to enable parties out their house in order.
He said the court, however, made an order extending the lifespan of the interim order pending the hearing of the motion on notice scheduled to come up on Jan. 24.
When asked why the suit was not withdrawn by his clients based on the resolution entered into by Fubara and Wike, Adehi said: “We have just informed the court today that the counsel (Mr Lukman Fagbemi, SAN) that withdrew said he had instruction to withdraw from the matter on the grounds that it is being settled.
“The other counsel who came in today requested for an adjournment to confirm that position with their client.
“So I think we are not averse to settlement; like the parties said they just want to confirm the position from their various clients which is what all of us have said.
“If we confirm that information, we see how we can move forward .
“But then, the 2nd defendant (PDP) in the matter, by his own co duct, he has not shown any indication that there is going to be any settlement.
“The more reason why this adjournment was really necessary so that all the parties can go and actually confirm from their clients the position of the settlement initiative,” he said.
Earlier, upon resumed hearing on Thursday, Adehi informed the court that he had a motion on notice which originally was meant for hearing today, but sought an adjournment in view of the fact that Fagbemi had withdrawn appearance and a new counsel (Mr Ken Njemanze, SAN) had entered appearance in the matter for the Rivers House of Assembly, the 3rd defendant in the suit.
Justice Okorowo had extended the Dec. 15 interim order stopping the Independent National Electoral Commission (INEC) and PDP from taking any action against the 26 lawmakers pending the hearing and determination of the motion on notice.
The judge extended the order following an application by counsel for the embattled lawmakers, Adehi and supported by Njemanze, who appeared for the assembly.
Although PDP’s lawyer, Ajibade, opposed the application, Okorowo agreed that based on Order 26, Rule 10 of the FHC, the court had the discretionary power to grant the plea in the interest of justice.
The judge had, on Dec. 15, granted the ex-parte motion filed by the 26 lawmakers who dumped PDP for APC.
The court restrained INEC from conducting fresh election to fill the seats of the 26 assembly members.
It also restrained INEC, PDP and the house of assembly from declaring their seats vacant and withdrawing their respective Certificate of Returns pending the hearing and determination of the substantive suit.
The plaintiffs had, in the suit marked: FHC/ABJ/CS/1681/2023/ dated and filed Dec 13, sued INEC, PDP, the assembly, clerk of the assembly, Inspector-General (I-G) of Police and Department of State Service (DSS) as 1st to 6th defendants respectively.
