Edo Assembly Crisis: Confusion over Court Decision on Restraining Order

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With all attention now focused on the judiciary in resolving the legislative log-jam in the Edo State House of Assembly, Tuesday’s decision by the Federal High Court, Abuja has sparked off fresh controversy between the feuding parties – the minority group of 10 members loyal to the governor, Godwin Obaseki, who are carrying on legislative duties, and the 14 members-elect loyal to the national chairman of the ruling All Progressives Congress, APC, Adams Oshiomhole, who are contesting an alleged illegal inauguration of the House. Consequent upon the protracted crisis which had kept the 14 aggrieved members out of the House since June when the nocturnal inauguration took place, the controversial speaker of the House, Frank Okiye on December 4, 2019, declared their seats vacant and thereafter wrote the Independent National Electoral Commission, INEC, to conduct by-elections to fill the seats prompting the embattled members-elect to approach the court for an ex parte order to restrain INEC from taking any action to fill their seats. The 14 lawmakers who instituted the suit on December 10, last year, are Victor Edoror, Washington Osifo, Vincent Uwadiae, Kingsley Ugabi, Michael Ohio-Ezomo, Sunday Aghedo, Chris Okaeben, Crosby Eribo, Aliyu Oshiomhole, Oshomah Ahmed, Ganiyu Audu, Ugiagbe Dumez, Uyi Ekhosuehi and Eric Okaka.

Confusion has however continued to trail the decision of the court on the matter. While it was widely reported that the presiding judge of the Federal High Court 4, Abuja, Justice Ahmed Mohammed had restrained INEC from conducting by-elections to fill the 14 seats, the Okiye-led House argued that no such order was made. Mohammed had at the proceedings of December 12, refused to grant the ex parte application in the absence of the two defendants – Okiye and INEC – ordering them to appear before him on December 19 to show cause why the interim injunction being sought by the plaintiffs in their motion ex-parte should not be granted. The court, however, could not sit on that day hence an adjournment to Tuesday, January 7, 2020. While Okiye was absent and not represented in court by a lawyer, counsel to INEC, Femi Adeyemi, told the court that as an electoral umpire, it had decided to be neutral, and so was not opposed to the order being sought by the plaintiffs.

Interestingly, the outcome of the day’s proceedings has now become a subject of another controversy. While Adaze Emwanta, a constitutional lawyer and spokesman of the Obaseki faction of the APC said there was no court ruling on the matter at all, Washington Osifo, also a lawyer and spokesman for the group of 14 law makers-elect, insisted the court restrained INEC from taking any step to fill their seats. Both were guests on Channels Television breakfast programme, Sunrise Daily on Thursday. In a heated debate on the issue, Emwanta, who claimed to have been present in court, described Osifo and others as “merchants of fake news”. He explained that “what actually transpired on Tuesday this week was that the court said since INEC claimed it was not opposed to that request for injunction, that INEC cannot just say that but they should file an affidavit to that effect. And of course, the speaker of the House of Assembly who is the first defendant was not in court; the court now ordered hearing notice to be issued on the speaker and adjourned the matter to 28^th of January. So, these merchants of fake news that have been peddling that story that there is a court order have even failed to show us a copy of that order”.

According to Emwanta, a law teacher at the University of Calabar, “as it is characteristic of them, if there was a court order they would have published it as they usually do. So, it’s quite unfortunate that people will do that just to create an impression that INEC had been restrained. I think by now INEC will be very surprised to know that they had been restrained by this mystery court order”. He believed that on the adjourned date, Okiye would file his counter-affidavit “because as far as we know, those seats remain vacant because the constitutional requirements for the declaration of those seats were met” adding “it is the duty of INEC to conduct elections. So, this idea of running to court to prevent INEC is like medicine after death and I know the courts will ensure that these elections are conducted”.

Countering Emwanta’s argument, Osifo insisted that there was a ruling “stressing that even Emwanta knew it but chose to interpret it the way it suited him. Giving his own perspective, Osifo said “I listened to him very carefully; what he said, yes, half-truth, but majorly false. The matter came up; it was by way of an ex parte motion in the Federal High Court. The matter before His Lordship was whether or not Frank Okiye, the purported Speaker, had the powers to declare the seats vacant, premised upon the fact that there was a pending matter challenging the inauguration of the House and also challenging the election of Okiye as Speaker. Now, when there are matters in court, parties are advised not to take any steps in anticipation of the judgment of the court that will render the judgment of the court nugatory. That being the case, it was re-emphasised even on Tuesday here in Abuja”.

Explaining further, Osifo recalled that “when the INEC lawyer came and told the court that the Commission was not opposed to our application before the court which is to restrain INEC and not Okiye; well, my brother, the acclaimed constitutional lawyer, doesn’t know the difference between who to restrain; because I listened to him. He said they cannot restrain Okiye; nobody is restraining Okiye he must know. And Okiye couldn’t have been restrained because he has taken an action and an action that has already been completed cannot be restrained. But there is an action that has not been taken and that action derives from the pronouncement of Okiye declaring the seats vacant, and directing INEC to take steps to conduct fresh elections, assuming there is vacancy, to fill the vacancies. And we are saying that there is no vacancy in the first instance; you didn’t have the power to declare the seats vacant because your own seat is being challenged and you are a party to that suit. Therefore INEC cannot validly rely on your invalid directive to conduct an election. And we are challenging that in court”.

According to Osifo, “and in the wisdom of His Lordship, listening to the INEC lawyer representing the Commission, and telling the court that this is the position of the Commission; that we are not opposed to the prayer we are asking for. Therefore, it is fact in law that oral evidence by way of oral submission, you can come. What His Lordship said was that in line with Order 26, rule 11, 12 and 13, of the Federal High Court civil procedure rules, it is required, notwithstanding your oral submission, it is required that you come by way of an affidavit in support. And in the words of the judge, he said that even if it is two lines or two paragraphs, just let us know. However, you are by this oral evidence restrained, you and your Commission, not to take any steps while this matter is in court”.

However, responding, Emwanta said it was funny that Osifo, a lawyer, could sit before Nigerians to make a very false remark, which he said was contemptuous of the court. In his words, “for me, on the 28^th of January is just some few weeks away and the truth will come because from what he had said, that is contempt of court. He’s actually one of the plaintiffs. For him to sit there to say there was a ruling, when in fact there was no ruling. Can the court just give an order on an action that has not been decided? He didn’t say the court granted any order; he said the court restrained INEC. Restraining orders are not made orally; there must be an enrolment of order. So, for him to make that statement which was published, we now know the source of this falsehood; and I think at the appropriate time, forms 48 and 49 will be filed for contempt of court…”.   He was however confident that the plaintiffs’ application for injunction would be refused and “INEC would go ahead to fill those 14 seats”. But for the main opposition party, the Peoples Democratic Party, PDP which has made itself an interested party in the on-going APC internal imbroglio, INEC should have no need to conduct another election. While the PDP is on the same page with the Okiye-led House on the declaration of the 14 seats vacant, it is in court praying for the invocation of doctrine of necessity to compel INEC to withdraw the certificates of return issued to the 14 embattled members-elect and give to its members who came second during the legislative elections.

Joining the debate on Channels Television, state publicity secretary of the PDP, Chris Nehikhare accused the ruling APC which dominated the 24-member House of taking the state for granted, and the 14 members-electing of abdicating their duties and holding their constituencies to ransom. According to him, “we are now asking the court to declare a doctrine of necessity for our members who were the runners-up in the election to be declared the winner. This is in respect to the fact that the members of the APC that were elected abdicated their offices. We are asking INEC to withdraw the certificate of returns from these members-elect who technically are no longer members-elect because the speaker has declared their seats vacant in exercise of the powers vested in him under the constitution of the Federal Republic of Nigeria, 1999”. Defending the party’s position, Nehikhare noted that “the constitution did not envisage that someone or a group of people will win an election and refuse to do their work. So, you have to take this extra-legal action to be able to put people in order”.

Further knocking the ruling party, the PDP was miffed that the feuding APC members had “taken matters to court, tied up the whole system, trying to disable the House of Assembly, not representing the constituencies”. The PDP contended that what is going on in the legislature “is no longer an in-house matter but one that concerns the people of Edo State and Nigerians” positing that “we have to teach irresponsible people a lesson that when you do things with impunity, there will be a consequence”. But as far as Emwanta was concerned, for the PDP that did not win elections to now imagine that those 14 seats would come to it on a platter of gold was nothing but “wishful thinking”. He argued that the PDP’s claim that certificate of return be issued and given to them has no place in our law and advised the party to be ready for the elections in 2023, “because those seats that have been declared vacant are for by-elections and I think the PDP, if they are ready, should be thinking of by-election because those seats would be occupied by the APC when the time comes”.

Osifo on his part felt vindicated about his earlier allegation that both the APC and the PDP had been working in tandem, but was surprised that they differed on the issue of filling the vacant seats. Accusing the APC of orchestrating the petition acted on by Okiye to declare their 14 seats vacant at a meeting with the opposition party, Osifo said the agreement was “to allow their partners, which is the PDP, to have the benefit of what would happen eventually”. This notwithstanding, Emwanta was of the view that eventually “the right thing would be done; these elections would be conducted to fill those 14 vacant seats. They are just trying to delay the process of the election, but it’s just a temporal one because at the end of the day, there is an existing judgment of the Federal High Court which is to the effect that the House was duly inaugurated by a proclamation issued by the governor”.

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