A Federal High Court in Abuja on Thursday extended the December 15 interim order stopping the Independent National Electoral Commission (INEC) and the Peoples Democratic Party (PDP) from taking any action 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.”
Recalls that the court on December 15, granted the ex-parte motion filed by the 26 lawmakers who dumped PDP for APC. The court restrained INEC from conducting fresh elections 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 the 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Adehi, however, sought an adjournment in view of the fact that Mr Lukman Fagbemi, SAN, had withdrawn his appearance and a new counsel had entered an appearance in the matter for the 3rd defendant (assembly) and in view of the fact that the 2nd defendant (PDP)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.
He said, “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.”
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 to 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 to 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 to respond to the same.
Besides, he said he intends to react to the processes filed by the plaintiffs.
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 servants and ministers 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 application 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.