Michael Ogbolosingha & Anor V. Bayelsa State Independent Electoral Commission & Ors (2015)

LAWGLOBAL HUB Lead Judgment Report

CLARA BATA OGUNBIYI, J.S.C.

The appeal is against the judgment of the Court of Appeal, Port Harcourt Division in Appeal No. CA/PH/304/2011 delivered on the 15th day of March, 2013.

Briefly, the statement of relevant facts in this appeal are that the 2nd, 3rd and 7th – 9th respondents as claimants filed suit No. YHC/149/2010 by way of originating summons in the Bayelsa State High Court by which they, inter alia sought to assert their alleged respective rights to be nominated as candidates of the People’s Democratic Party in their respective Local Government Areas in Bayelsa State for the Local Government Council Chairmanship Elections then scheduled for 3rd April, 2010.

Defendants at the trial court raised a preliminary objection which was heard and determined along with the originating summons on the merit. The trial court struck out the suit for lack of jurisdiction. Dissatisfied with the ruling of the trial court, the 7th, 8th and 9th respondents herein appealed to the Court of Appeal, Port Harcourt Division in Appeal No: CA/PH/166/2011 while the 2nd and 3rd respondents herein did not pursue the same appeal expeditiously.

The court below resolved the appeal in favour of the 7th, 8th and 9th respondents herein and the judgment of the trial court was thereupon set aside and the reliefs sought by the plaintiffs before the trial court were granted accordingly. The Defendants at the trial court who were respondents at the Court of Appeal, appealed to this Court in Appeal No. SC.127/2012 and the said appeal was dismissed while upholding the judgment of the Court of Appeal in Appeal No. CA/PH/166/2011 in favour of the 7th, 8th and 9th respondents herein, in the judgment reported as Peretu V. Gariga (2013) 3 NWLR (Pt.1348) page 415-443.

The 2nd and 3rd respondents herein, who did not pursue the appeal from the trial court to the Court of Appeal, right to this court were not part of the judgment by this court and unlike their counterpart the 7th 8th and 9th respondents could not enforce same in their favour, even though they were co-plaintiffs at the trial court.

Put differently, the 2nd and 3rd respondents herein ought to have been part of the judgment mentioned above, but for the fact that they did not pursue the appeal from the trial court to the Court of Appeal and thereafter to this court. Unlike their counterpart therefore, they could not enforce the judgment in their favour. In the result, the same 2nd and 3rd respondents herein returned to the Court of Appeal, Port Harcourt Division in Appeal No. CA/PH/304/2011 to pursue the appeal against the decision of the trial court in respect of which the 7th, 8th and 9th respondents herein had reversed in their favour by the judgments of the Court of Appeal and the Supreme Court. The lower court in determining the appeal No. CA/PH/304/2011 simply abided by its decision in Appeal No. CA/PH/166/2011 and Appeal No. SC.127/2012 reported as Peretu V. Gariga (supra) in upholding the appeal of the 2nd and 3rd respondents herein, hence the appeal now before us which was filed on the 15th day of March, 2013 and raised ten grounds of appeal.

In accordance with the rules of court, briefs were filed in the main appeal on behalf of the appellants and 2nd, 3rd, 7th, 8th, 9th and 10th respondents while the 1st, 4th, 5th, 6th, 11th, 12th respondents and also the 2nd set of cross respondents did not deem it fit to file any brief in the main appeal; they, however filed briefs in the cross appeal which was filed by the cross appellants. I shall return to the cross appeal shortly.

In the main appeal therefore, the appellants filed their brief of argument on the 21st November, 2013 but same was properly deemed filed on the 19th May, 2014. From the ten grounds of appeal filed, four issues were distilled by the appellants as follows:-

1) Whether the lower court had the jurisdiction to have determined the merits of the substantive originating summons proceedings and make findings and consequential orders in respect thereof, in the face of conflicting affidavit evidence before the court The issue is distilled from grounds 1, 2, 4 and 7.

2) Whether the lower court in the determination of the matter before it, infringed upon the appellants’ right to fair hearing Distilled from grounds of appeal Nos: 5, 6 and 9.

3) Whether the lower court was bound to apply or rely on the decisions of the Court of Appeal and the Supreme Court in Appeals Nos; CA/PH/166/2012 and SC.127/2012 when the parties and subject matter of the said cases are different from the parties and subject matter of the present matter. Distilled from grounds of appeal Nos. 3 and 8.

4) Whether the lower court had the jurisdiction to make the consequential orders in issue in this appeal Distilled from ground of appeal No. 10.

In response to the appellants’ brief of argument, the 2nd, 3rd, 7th, 8th and 9th respondents all filed their joint brief of argument on the 28th May, 2014 wherein they also raised three issues as follows:-