C'River APC Guber : Court does not make orders in Vain By Okoi Obono-obla

Chief Okoi Obono-obla, Special Assistant on Prosecution to the President

I have taken a critical analysis of the Judgment of the Federal High Court Calabar in Suit No. FHC/CA/CS/73/2018 between Hon. Godwin Etim John and Chief Francis Ekpeyong against All Progressives Congress, John Ochala, Bishop Victor Ebong and Bassey Ita delivered on the 11 February , 2019 by Honourable Justice S.A Amobeda  and came to irresistible conclusion that the consequential orders made concerning the candidates of APC in Cross River State in the forthcoming general election is a classic case of shadow chasing and red herring.

Permit me to reproduce the consequential orders so that anybody reading this piece will properly understand and appreciate the matter thoroughly.

1.The Defendants are to forthwith reverse all steps taken by them in flagrant disobedience of the Orders of Court including but not limited to the submission of names of candidates for elective positions in the forthcoming  general elections for membership of Cross River State House of Assembly, House of Representatives and Senate and the Governorship o0f Cross River State in the 2019 general election.

2. The Independent National Electoral Commission (INEC) be and is hereby ordered not to recognize or in any manner endorse any steps whatsoever taken by the 2nd-4th Defendants purportedly as Members of the State Executive Committee of the 1st Defendant in Cross River State including the submission of the names of candidates for elective positions in the forthcoming General elections for membership of the Cross River State House of Assembly, House of Representatives and Senate and Governorship of Cross River State in the 2019 general elections.

3.That the candidates For Elective positions in Cross River State in the forthcoming General Elections for membership membership of the Cross River State House of Assembly, House of Representatives and Senate and Governorship of Cross River State whose names were submitted by the Defendants to INEC be and are hereby restrained from howsoever or in any manner campaigning or doing anything in furtherance of their candidacy in the 2019 General Elections.

4. That the Order of Justice O.A Musa of FCT High Court on 20/9/2018 which states that any nomination made in disregard of this order shall be void is hereby enforced.

5. That all nominations made and submitted to Independent National Electoral Commission (INEC), by the 1st Defendant is void and the same Independent National Electoral Commission (INEC) is hereby ordered to remove the names of the candidates of the 1st Defendant from the list of candidates to contest for the Election in the forthcoming General Elections for Membership of the Cross River State House of Assembly, House of Representatives and Senate and Governorship of Cross River State of the 2019 General Elections.

6. The National Working Committee and Independent National Electoral Commission (INEC) to receive the list of candidates emerged from the Hon. Godwin Etim John led
State Executive Committee of the 1st Defendant for the General Election into the Cross River State House of Assembly, House of Representatives, Senator and the Governorship Election, 2019.

I have read the Judgment  Order of the Federal High Court Calabar in the above case ! It seems to me that it is an order made in vain, not enforceable or grantable for the following reasons thus:

In the first place, none of the people whose name were sent to INEC as candidates of APC Cross River is listed as defendants in the case! You cannot delist a candidate whose name INEC has included in the ballot paper in such a dubious manner!  Since these candidates were not included or added as defendants, the order is not binding on them.

The legal maxim is Lex non-cogit ad impossibilia - meaning "The law does not compel to impossible ends". Thus in the case of BULUNKUTU VS. ZANGINA (1997) 11 NWLR (PT. 529) 526 AT 539 - 540, the Court held that Courts should desist from making Orders in vain and not make Orders that are impossible to be obeyed or implemented. See also: C. C. B. (NIGERIA) PLC VS. OKPALA (1997) 8 NWLR (PT 518) 673 AT 694; OLADIPO VS. OYELAMI (1989)5 NWLR (PT. 120) 210 AT 221.

More importantly, the Plaintiff filed a suit in the Federal High Court whose judgment was delivered on the 11 February 2019 has no locus standi to seek the reliefs No. 1, 2,3,5 and 6 of the judgment order ( which were termed consequentially)! The plaintiffs were Hon Godwin Etim John and Chief Francis Ekpeyong. It is clear that Hon Godwin Etim John and Chief Francis Ekpeyong were not aspirants for Governorship or National Assembly or State Assembly in the APC Primary election held in October 2018! Therefore, the Plaintiffs have certainly no locus standi to seek reliefs No. 1,2,3,5 & 6 of the Judgment order! It follows that the Court was divested of jurisdiction to hear, determine and grant those reliefs!

In law, before you can be allowed to have access to the Court to file a claim, you must establish in your statement of claim that you have suffered an injury in the hands of the defendant or that the defendant has infringed upon your right or that you have suffered damages in the hands of the defendant! So, Hon Godwin Etim John and Chief Francis Ekpeyong have not suffered any wrong in the hands of the defendant, how can they file any claim against them?

The proper plaintiffs would have been all aspirants that sought nomination into as governorship, National Assembly and State Assembly candidates in the APC Primary election! The defendants namely All Progressives Congress; Sir John Ochalla, Bishop Victor Ebong and Bassey Ita did not seek nomination as governorship, National Assembly and State Assembly candidates in the forthcoming elections under the platform of APC! It goes without saying that reliefs consequentially granted the Plaintiffs by the learned trial judge is certainly orders made in vain and therefore unenforceable! These orders are also made without jurisdiction and amount to a nullity.

The Order is not binding on Senator John Owanb-Enoh (Governorship candidate of APC Cross River State) and all other candidates filed by APC Cross River State in respect of the National and State Assemblies for the forthcoming General elections.

It is well settled that it is the National Working Committee of a Political Party through the National Chairman & National Secretary respectively that has the authority to submit the names of Candidates of that Party to the Independent National Electoral Commission (INEC) for any of the elective positions enumerated in the Constitution of the Federal Republic of Nigeria, 1999 (as amended) .

In this respect, the Order that  ‘’ The National Working Committee and Independent National Electoral Commission (INEC) to receive the list of candidates emerged from the Hon. Godwin Etim John led State Executive Committee of the 1st Defendant for the General Election into the Cross River State House of Assembly, House of Representatives, Senator and the Governorship Election, 2019’’. See the case of Senator Yakubu Garba Lado v. Congress For Progressives Change (2012) All FWLR 607.

The names of the candidates of APC Cross River State were submitted by the National Chairman & National Secretary of APC (not the Defendants-All Progressives Congress; John Ochalla, Bishop Victor Ebong & Bassey Ita).

The names of the candidates for the presidential, senatorial, House of Representatives and State Assembly were published by INEC on the  17 January 2019.

The names of Governorship candidates were published on the 31 January 2019.
It is well settled that an injunction cannot be granted to restrain a concluded or completed act. In this wise, INEC cannot be restrained from dealing with the names of candidates submitted by the APC since 26 October 2018.

Finally, the Order of Justice O.A Musa of FCT High Court on 20/9/2018  is on appeal before the Court of Appeal, Abuja; therefore it is an abuse of court process to seek to enforce it in Suit No. FHC/CA/CS/73/2018.