Ekemini Udim, Principal partner of Justice Chambers and Lead Counsel to Onofiok Luke in the suit filed against the Akwa Ibom State House of Assembly, gives precept-by-precept background to the Idongesit Ituen saga. Excerpts:
Preamble to the matter
I have read so much on social media on this issue since Wednesday the 14th day of November, 2018 when the judgment of the Federal High Court was delivered. I have also listened to commentaries on radio and TV. Most of what has been said so far have been largely misrepresented and I consider it expedient (in my capacity as a lawyer who was in court throughout the hearing of the matter up to delivery of judgment) to address some issues with a view to shedding some light on the subject matter and putting issues in proper perspective.
Who Took the Matter to Court?
It was Idong Ituen who took the matter to court. He filed Suit No. FHC/UY/151/18 at the Federal High Court on the 25/9/2018. The procedure through which he approached the court is known as ‘’Originating Summons’’. This procedure is used for the interpretation of documents or sections of the Constitution or any other law and does not usually require the calling of witnesses to testify in court. In the said suit, Idong Ituen sued four institutions namely, the office of the Speaker, Akwa Ibom State House of Assembly, the Peoples’ Democratic Party, Independent National Electoral Commission and, the Commissioner of Police, Akwa Ibom State Command. The suit was served on the Speaker and other defendants and thereafter set down for hearing.
What were the principal reliefs sought by him?
- A declaration that in view of section 109(1)(g) of the 1999 Constitution (as amended), a member of a House of Assembly who was sponsored by a particular party was free to become a member of another political party where there was a division in the political party that sponsored him previously or a merger or alliance of two or more political parties with the one that sponsored him.
- A declaration that in the instant case where there was serious intractable and unresolved crisis resulting in the production of two parallel Chapter Chairmen and Executives of the PDP in Itu Chapter, the particular chapter that sponsored the claimant in 2015 elections and ought to sponsor the claimant for his aspiration in the 2019 elections, and in view of the alliance of the PDP with 37 strange political parties, resulting in Coalition of United Political Parties (CUPP), the Claimant was justified to join another stable political party that could sponsor him for the forthcoming election.
- An order of perpetual injunction restraining the defendants, particularly the 1st defendant from declaring the Itu State Constituency seat vacant.
Defendants’ Reply
Only two defendants appeared in the matter namely, the Speaker and the PDP. In their respective arguments in opposition to the suit, lawyers for the two defendants informed the court that there is no ‘serious intractable and unresolved crisis’ in Itu and that PDP has not merged with any other political party as alleged by Idong Ituen. The lawyers argued that under the Constitution, a law maker is not allowed to defect from one political party to another except under two circumstances, namely where there is division at the national level of the party and, where there is a merger with other political parties as was done by ACN, Action Congress, CPC etc. for the eventual emergence of APC. The lawyers then said that the claimant had failed to bring his case within the two instances above. The lawyers then prayed the court to dismiss the suit for want of merit.
In his judgment the court held that division in the Itu Chapter of the PDP is not what the Constitution contemplates. That what the Constitution contemplates is division at the national level of the party of such magnitude that the party can no more exist as one united party. That Idong Ituen had failed to show that there was any such division in the PDP at the time of his defection.
The court then dismissed the suit for lacking in merit.
The Counter-Claim
In the defense process of the 1st defendant, a counter claim was raised and extensively argued. In it, counsel prayed the court to invoke the provisions of section 109(1)(g) of the 1999 Constitution and declare the seat vacant. The said section provides thus:
(1) A member of the House of Assembly shall vacate his seat in the House if –
(g) being a person whose election to the House of Assembly was sponsored by a political party, he becomes a member of another political party before the expiration of the period for which that House was elected.
After a careful consideration of the above provision of the Constitution together with the facts presented by the claimant, the learned trial judge pronounced that, having defected from the PDP to the APC before the expiration of the tenure for which he was elected, Idong Ituen had lost his seat in the Akwa Ibom State House of Assembly. The court then went ahead to grant other reliefs in the counter claim such as directing INEC to conduct bye-election to fill the vacant seat in the House.
Is Counter-Claim known to Law?
Absolutely. In law, a person who has been sued to court, has a duty to defend the suit filed against him. He also has the liberty to file a counter claim. In so doing, the defendant simply says that what the claimant is saying is false and that he (defendant) has the true version of the story for which reason the court should dismiss the claimant’s story and grant his own claims. That is what happened here and the court saw wisdom in the counter claim and granted them.
What is more, what was before the court was an invitation to interpret the provisions of the Constitution, in this case section 109(1)(g) which says that a member who defects to another party before the expiration of his tenure loses his seat. The implication is that, even without a counter-claim, the court had a duty in law to give effect to that section of the Constitution and declare the affected seat vacant.
Was The Court Doing What Has Never Been Done Before in Granting the Counter Claim?
Not at all. There is nothing new under the law. What has been, has been before and what has been done by the Federal High Court, Uyo has been done before by the Federal High Court sitting in Akure, the Court of Appeal sitting in Akure and the Supreme Court of Nigeria sitting in Abuja. I refer you to the case of Hon. Ifedayo Abegunde v. Ondo State House of Assembly reported in (2015) N.W.L.R (Pt. 1461) 314. The facts of that case are the same with Idong Ituen’s case. Hon. Ifedayo defected from Labour Party to Action Congress and rushed to court to stop the speaker from declaring his seat vacant. Ondo State House of Assembly filed a counter claim and it was granted. His seat was declared vacant and INEC ordered to conduct bye-election. He went to the Court of Appeal and the court affirmed the judgment of the trial court. He went to the Supreme Court and the apex court said the same thing.
It is therefore not correct for some of our colleagues to argue that the judge in Uyo was wrong in granting the counter claim. It is also not correct for Hon. Idong Ituen to say that since he is the person that went to court, the court should not have declared his seat vacant. Idong is not a lawyer and we should understand his position. The case of Ifedayo is a locus classicus on the subject matter.
But Idong Had a Lawyer
Idong had a lawyer who was in court throughout the hearing of the matter. He did all that was required of him in law and could not have done the impossible. One must give it to him. He did his best and had to leave the rest for the court to decide. But when the position of the law is so clear and has been decided upon by the highest court in the land, there is usually no magic that can take place as the lower court has an obligation to stand by the decision of the higher court in compliance with the doctrine of judicial precedent. No trial court goes against the decision of the superior court without a reprimand.
Was There Any Order of Stay of Execution Against the Speaker at The Time of the Invasion of the Assembly?
There was no such order. No such order whatsoever. This is what happened: After the judgment of the court was delivered, the enrolled order (summary of the judgment) was served on the office of the Honorable Speaker and the Clerk of the House. The language of this order of the court was that compliance should be given with IMMEDIATE EFFECT. (please see the order of the court as contained in the judgment of 14/11/2018).
You would recall that the Speaker, through his SA on Media immediately issued a press statement to that effect and pointed out that the Speaker is in receipt of the order and has abided by same as directed by the court. You would also recall that the Clerk issued a circular to the HODs and Heads of Units to comply with the order of the court. As at the time all these actions were taking place, there was no counter order (stay of execution) from the court.
Even as I write this (Tuesday 20/11/2018) there is no order for stay of execution of the judgment of the court. Please any person can approach the Federal High Court and make an application to the registrar to be shown the content of the file in Suit No. FHC/UY/151/2018.
It is therefore not true as argued in some quarters that Idong obtained a stay of execution against the Speaker. It is false. Please ignore it. You can as well confirm it in court. I have given the suit number. It is also not true that an appeal has been filed or entered at the Court of Appeal, Calabar.
The position of the law is that judgments of court take immediate effect from the minute it is handed down and so, if an authority goes ahead to give effect to the judgment of a court of law, such authority cannot be said to be in breach of any law.
But What Did Idong Do After the Judgment?
He filed a notice of appeal at the Federal High Court, Uyo. He also filed a motion for stay of execution. In law, the filing of a notice of appeal does not automatically stay execution of the judgment of a court of law. Please ask any lawyer about this. This has been the law even before the filing of the case we are discussing now.
Additionally, the filing of a motion for stay of execution does not automatically stay execution. You have to serve the motion on the parties, take a date for the motion to be argued, argue it fully in court, and await the decision of the court. In this case, there was no ruling or decision of the court staying execution, as at the time of the invasion of the Assembly.
Interestingly, the motion for stay of execution was scheduled for hearing the very morning the invasion of the Assembly took place. Idong Ituen’s lawyer, Uyo-Obong Jumbo was in court arguing the motion. I am sure he was not even aware of what was going on at the Assembly. Lawyers for the defendants were also in court arguing the same motion. The court then adjourned for ruling on the motion.
The question then is, was it necessary to resort to invasion of the Assembly when Idong’s lawyer was in court arguing on his behalf? I do not think it was.
Has any appeal been filed in the Court of Appeal, Calabar?
Not as I write this piece. What I know is that Idong is in the process of filing an appeal and is currently compiling records to take to the Court of Appeal. Such record would include attachment of all the documents or processes filed at the FHC during the pendency of the suit. It would also include the record of proceedings. It is after compiling this into about 25 volumes that the Court of Appeal can be approached for entry of the appeal. It is at that point that an appeal number will be given by the appellate court. As at today (Tuesday 20th November, 2018) there is no appeal number in this matter which means, an appeal is yet to be lodged at the Court of Appeal.
Was the invasion of the Assembly Necessary?
I do not think so.
