*Says Markafi’s appeal competent
The Ahmed Makarfi and Ali Modu Sheriff factions of the People’s Democratic Party (PDP) laying claims and counter claims to the national leadership of the party are to know their fates in the final judgment of the Supreme Court on the issue.
The Apex Court yesterday in Abuja reserved judgment to a date that would be communicated to the two invoked in the power tussle.
The Makarfi faction of the PDP is challenging the validity of the Court of Appeal’s judgment delivered on February 17th which affirmed Senator Ali Modu Sherrif as the authentic National Chairman of the party.
After taken submissions of counsel in the matter yesterday Chief Justice of Nigeria (CJN), Justices Walter Onnoghen who presided over hearing of the appeal announced that the date for judgment would be communicated appropriately to all the parties.
In his argument, Counsel to Ali Modu Sheriff’s faction, Chief Akin Olujimi SAN, urged the apex court to dismiss the appeal filed by Makarfi-led group on the grounds that the appellant no longer has the authority to initiate appeal in the name of PDP, having lost so in the Port Harcourt judgment, which pronounced Sheriff as the authentic chairman of the Party.
According to Olujinmi SAN, by reason of the judgment, by the Appeal Court, Markafi’s faction lost every right and privilege to act on behalf of PDP.
He stated that the National Legal Adviser as well as the National Secretary of the Party, had in their motion, applied for withdrawal of the appeal, noting that the Party cannot initiate a legal action against itself.
But, counsel to Makarfi faction, Chief Wole Olanipekun SAN, in his own argument, urged the court to dismiss the objection made by Sheriff’s group on the grounds that it is incompetent and lacks merit.
His argument was that at the Port Harcourt judgment, Makarfi’s group acted as appellant in the name of PDP while Sheriff joined issue with the group in that capacity.
He maintained that until the Supreme Court, being the highest in the land, pronounces which of the factions is the authentic camp to lead the party, Makarfi’s faction has the right to initiate appeal.
Chief Olanipekun also drew court’s attention to Rule 29 of the court on the professional conduct and consequently urged the court to invoke the Rule on some of the lawyers representing Sheriff for act of professional misconduct
Earlier, in a ruling, the apex court had dismissed an application filed by Sheriff challenging the competence of the appeal filed by Makarfi, claiming the appeal was filed outside the stipulated period by law. The CJN in dismissing the application upheld the argument of counsel to Makarfi that the appeal was filed within the time limit.
Justice Onnoghen upheld Olanipekun’s argument that the said judgment having been delivered on February 17, and the notice of appeal having been filed at the Supreme Court on April 24, met the appeal time frame, making it competent.
After listening to arguments presented by both parties, THE CJN announced that judgment day would be communicated to the parties.
The court had, on its last sitting in May 4, 2017 ordered counsel in the matter to file their written briefs and adjourned to May 25 for hearing of the applications.
However due to the work load of the court coupled with the approaching recess of the court the matter was rescheduled for yesterday, May 22, 2017, three days earlier than the adjourned date.
In its argument at the sitting of May 4, 2017, the Sheriff’s group gave the Supreme Court reasons why it cannot hear an appeal marked: SC/133/2017 brought before it by the sacked National Caretaker Committee of the party led by Ahmed Makarfi.
The PDP’s National Executive Committee (NEC) led by Ali Modu Sheriff (as Chairman), Prof. Wale Oladipo (as Secretary) said the Makarfi Committee, having been declared illegal by the February 17, 2017 judgment of the Court of Appeal, Port Harcourt, lacked the powers to take decisions for the party, including initiating court proceedings in its name.
The PDP leadership stressed this position in a written argument it made in support of an application it filed on March 21, 2017 seeking the striking out of the appeal filed on February 27, 2017 by the Makarfi Committee against the February 17 Appeal Court’s judgment. The written submission was filed on May 10 in compliance with the Supreme Court’s directive on May 4, 2017.
The PDP leadership is contending that the Makarfi Committee did not obtain the necessary authorization of the PDP to appeal in its name and on its behalf, because the PDP under the current leadership was comfortable with the Appeal Court judgment and did not intent to challenge it.
In the address written by a group of lawyers led by Lateef Fagbemi (SAN), they submitted that since the Court of Appeal, in its February 17 judgment, declared that Sheriff-led NEC is the authentic leadership organ of the PDP, the Makarfi-led Committee could no longer pursue an appeal in the name of the party.
The Sheriff-led PDP leadership argued that the decision of the Makarfi committee to file an appeal in the name of the PDP without its (the party’s) authorization was not only illegal; it violated the party’s constitution.
Relying on the provisions of Chapter 5, Articles 35(1), 36(1) and 42(1) of the PDP constitution, it argued that the party, with a corporate personality, could only act through the principal national officer, whose powers and functions are stated in the constitution.
It referred to a May 18, 2016 judgment of the High Court of the Federal Capital territory (FCT) in suit No: FCT/HC/CV/1443/2016, ordering a return to status quo as at May 18, 2016 and the subsequent judgment of the Federal High Court in suit No: FHC/ABJ/CS/464/2016, to the effect that only the Sheriff NEC could instruct lawyers for the party, and urged the Supreme Court not to hear the appeal.
The Sheriff-led PDP leadership noted that it has not by its argument said the Makarfi Committee cannot appeal the May 17 judgment of the Appeal Court, having been parties in the case from the trial court, it (the Makarfi Committee) or its members could only appeal as interested parties after first, obtaining the court’s leave to so appeal.
In the substantive appeal, among other issues, it is the contention of the Sheriff/PDP lawyers that the appeal should either be dismissed or struck out because the supposed appellants (Makarfi’s PDP) neither obtain the leave of the Court of Appeal nor that of the Supreme Court before filing the appeal which is based on mixed law and facts.
In a counter argument, the Makarfi Committee, represented by a group of lawyers led by Wole Olanipekun (SAN), wants the court to discountenance the Sheriff NEC’s arguments and proceed to hear its appeal, in which it among others, urged the Supreme Court to set aside the Appeal Court judgment of February 17.
In its reply argument dated May 15, 2017, the Makarfi Committee queried the legitimacy of the application filed by the Sheriff-led NEC and argued that it was not only strange, but intended to frustrate the hearing of the main appeal.
It argued that it was wrong for Sheriff and others, who had briefed Akin Olujinmi (SAN) to represent them in the substantive appeal and had filed a respondents’ brief, in which they also made similar arguments in relation to the competence of the appeal, cannot again, brief Fagbemi to ask the court not to hear the appeal but to strike it out.
Relying on Order 8 Rule 6 (1), (2) and (4) of the Supreme Court’s Rules, the Makarfi Committee faulted the March 15, 2017 letter of the Sheriff-led NEC applying to withdraw the appeal and the subsequent application for its strike out. It argued that since the appeal was not filed by Sheriff and others, they lacked the right to apply to withdraw it.
In a response on point of law, filed by Fagbemi on May 18, the Sheriff-led NEC faulted all legal arguments by the Makarfi Committee, urged the court to discountenance its contention and hold that it lacked the locus stand to file an appeal in the name of the PDP, having been sacked by a subsisting judgment.
On the issue of representation, they explained that while Fagbemi and others are representing the PDP as a party, Olujinmi is leading a team for Sheriff and Oladipo, sued in their personal capacities and representing the National officers, NWC and NEC of the PDP.