Peoples Democratic Party & Anor Vs Timipre Sylva & Ors (2012)
LAWGLOBAL HUB Lead Judgment Report
BODE RHODES VIVOUR, J.S.C.
Sometime in 2010 INEC, the regulatory body charged with the conduct of elections in Nigeria announced that General Elections for the office of Governor of Bayelsa State would hold in April 2011. At the time Timipre Sylva, the 1st respondent was the Governor of Bayelsa State. He protested. He was of the view that his term of office which commenced in 2007 would expire in May, 2012. This according to him was that the elections in 2007 which he won as nullified by the court, which ordered a re-run, which he also won. So his term of office started to run from the date when he took a second oath of office. The 2nd respondent, INEC did not agree with the position taken by the 1st respondent. Elections for the office of Governor of Bayelsa State was to hold in April, 2011 and that was it. The appellant the Peoples Democratic Party, which the Governor (1st respondent) belonged to decided to hold its primaries in January 2011 with a view to producing its candidate for the election scheduled for April 2011. The 1st respondent contested the primary election and won, and his name was submitted by the appellant to INEC as its candidate for the election for the Office of Governor of Bayelsa State scheduled for April 2011. Meanwhile the 1st respondent filed suit No. FHC/ABJ/C5/65/10. Timipre Sylva v. INEC & Others at FHC. This suit was to determine whether the 1st respondent’s tenure would end on the 28th day of May 2011 or the 28th day of May, 2012, and that the 2nd respondent should not conduct elections into that office in April 2011. Finally he asked for an injunction to restrain the appellant from conducting primary election in Bayelsa State for the April 2011 General Election.
The 1st respondent succeeded in his suit, and so the 2nd respondent cancelled the elections fixed for April 2011. The 2nd respondents appeal to the Court of Appeal was dismissed. See INEC v. Nyako & Others 2011 12 NWLR Pt.1262 p.439.
In November of 2011 the 2nd respondent announced that elections for the office of Bayelsa State Governor would now hold on the 12th day of February 2012. The PDP, on being aware of the new date for the gubernatorial elections fixed its primaries for the 19th day of November 2011.
The 1st respondent applied to contest the primary elections. He was screened by a panel set up by his party, the PDP. At the end of the screening exercise he was not cleared to contest the primary election. His name was not among those cleared to contest the primary election fixed for the 19th day of November 2011.
Dissatisfied with the turn of events, the 1st respondent filed an originating summons on the 14th day of November 2011 at the FHC. A 10 paragraph affidavit deposed to by Imoh Udoh Tommy was filed in support of the originating summons.
The 1st respondent as plaintiff asked for the following reliefs:
DECLARATION that having submitted the name of the Plaintiff to the Independent National Electoral Commission as its candidate for the gubernatorial election of Bayelsa State, he remained the only candidate of PDP for the Governorship election of Bayelsa State following the victory of the plaintiff at the primary election conducted by the defendants for the purpose on 12th day of January, 2011 and the defendants are not entitled to change or substitute another candidate for the plaintiff who has not withdrawn his candidature.
DECLARATION that the right or interest of the plaintiff as the candidate of PDP in the forthcoming Governorship election of Bayelsa State became vested on the submission of the Plaintiffs name to the Independent National Electoral Commission following his victory at the primary election conducted for the purpose by the defendants on the 12th day of January, 2011.
DECLARATION that the Independent National Electoral Commission (INEC) is not entitled or equipped to jettison the name of the plaintiff which has been submitted to it by the National Headquarters of the Peoples Democratic Party as the candidate of the party for Governorship election in Bayelsa State when the Plaintiff has not withdrawn his candidacy and is still living.
DECLARATION that having conducted a primary election pursuant to section 87(1) (4)(b) of the Electoral Act, 2010 as amended at which the Plaintiff emerged as winner and his name having been forwarded to the Independent National Electoral Commission as the candidate of the PDP in the forthcoming gubernatorial election in Bayelsa State, it is not open to the defendants to conduct another primary election while the plaintiff has not withdrawn and has not been disqualified by any law or court order.
DECLARATION that the defendants cannot rely on any purported extensive consultation with stakeholders of Peoples Democratic Party (PDP) to remove and/or render ineffective the valid nomination/candidate of the plaintiff as the candidate of the PDP in the forthcoming Governorship election for Bayelsa State.
DECLARATION that the National Working Committee of Peoples Democratic Party (PDP) is not empowered under the Constitution of Peoples Democratic Party (PDP) to appoint, constitute and/or inaugurate as screening committee or screening appeal panel or by whatever named called to screen the plaintiff who has been validly nominated by PDP and whose name has been forwarded to INEC as her candidate for the forthcoming Governorship election in Bayelsa State.
AN ORDER setting aside all steps, actions and arrangements made by the defendants for the conduct of another primary election for the purpose of choosing a candidate for the forthcoming gubernatorial election of Bayelsa State.
INJUNCTION restraining the defendants from conducting another primary election to choose a candidate for the forthcoming gubernatorial election in Bayelsa State.
INJUNCTION restraining the 1st defendant from accepting and/or acquiring from the 2nd and 3rd defendants any fresh name or submission of new name as Peoples Democratic Party Governorship’s candidate for Bayelsa State, other than the name of the plaintiff submitted to it by the 2nd defendant in January 2011 as its candidate for the Governorship Election of Bayelsa State.
INJUNCTION restraining the defendants from changing or substituting another name for the name of the claimant already forwarded to the INEC as the Governorship candidate of the PDP in the forthcoming gubernatorial election of Bayelsa State.
ALTERNATIVELY
In the event that the court finds that the defendants can conduct a fresh or another primary election to choose a candidate for the said election, the plaintiff claims as follows:
DECLARATION that having paid all necessary levies to the PDP and having been duly nominated in accordance with Section 32 of the Electoral Act, 2010 as amended the Plaintiff is entitled to participate in the primary election of the PDP at which a candidate will be elected to contest the forthcoming gubernatorial election of Bayelsa State.
DECLARATION that any such primary election cannot be conducted by the defendant until all candidates for same have been given adequate campaign time and equal opportunities and facilities for participation in the primary election.
DECLARATION that under and by virtue of the Constitution of Nigeria 1999 (as amended) the Constitution and Guidelines of PDP question of security is not a factor to determine whether a person should be cleared to contest primary election of the political party.
DECLARATION that the decision of the National Working Committee of the Peoples Democratic Party to disqualify the plaintiff from participating at the Governorship primary election for Bayelsa State when the plaintiff or any other person never appealed to it and when there was no sitting of the body as an entity, is null void and of no effect whatsoever.
DECLARATION that the decision of the National Working Committee of the Peoples Party to issue a press statement disqualifying the plaintiff from contesting the Governorship primary election in Bayelsa State, without affording the plaintiff a hearing is null and void for violating the plaintiffs constitutional right to fair hearing guaranteed by section 36 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) as well as the African Charter on Human and Peoples Right.
INJUNCTION restraining the defendants, by themselves, their agents, servants and/or privies or otherwise howsoever from conducting any ward congress and from further embarking on activities leading to any primary election to the PDP for the said gubernatorial election any time earlier than four weeks from the date of judgment and after the name of the plaintiff/claimant would have been published as was done in respect of other candidates in the PDP primary election for the post of Governor of Bayelsa State.
A motion of Notice was filed along with the originating summons. Therein the Plaintiff/applicant asked for the following orders:
AN ORDER of Interlocutory Injunction restraining the defendants officers or otherwise and/or any other person however described from conducting, organizing or holding any meeting or ward congress and embarking on any activities leading to the holding of any fresh gubernatorial primary election for Bayelsa State on the 19th of November, 2011 or on any other day pending the determination of the substantive suit.
AN ORDER of Interlocutory Injunction restraining the 1st defendant whether by itself, servant, agents, privies or however called from accepting from the 2nd and 3rd defendants any fresh submission of name of Governorship aspirant from Bayelsa State to change/substitute the name of the plaintiff which has already been submitted to the 1st defendant after the primary election of January 2011, pending the hearing and determination of the substantive suit.
AN ORDER of Interlocutory injunction restraining the 2nd and 3rd defendants, whether by themselves, servants, agents, privies or howsoever called from forwarding a fresh name or governorship aspirant to the 1st defendant when the plaintiff is still alive and has not withdrawn his candidacy for the governorship election of Bayelsa State, pending the determination of the substantive suit.
AND/OR ALTERNATIVELY
AN ORDER of Interlocutory Injunction mandating the defendants whether by themselves, their servants, agents, privies or however, called to publish the name of the plaintiff as an aspirant for the 19th November, 2011 governorship primaries in Bayelsa State or any governorship primary election schedule for Bayelsa State, on any date which the defendants may choose pending the determination of the substantive suit.
The 1st respondent (INEC) filed an application exparte asking for the same reliefs. Kolawole J of the Federal High Court presided. His lordship heard the Motion exparte on the 15th of November 2011. The following orders were made:
That the instant motion exparte is not refused, but the defendants shall be put on Notice of same and they shall within 72 hours of being served with the said motion on Notice, show cause why the plaintiff shall not be entitled to the preservatory orders as the said prayers 1 – 3 on the motion exparte seek.
That in the event that the defendants when served with the originating summons, the motion on notice and the enrollment of these orders the 2nd and 3rd defendants in particular, were unable to show such reasonable and or just cause why the orders shall not be made, this court will have no hesitation in granting the said orders in the way and manner as couched or any grant prayer 4 as the alternative prayer couched in the motion exparte.
That in the event, perhaps, unlikely that the 2nd defendant in defiance of these orders, take steps which may be prejudicial perhaps subversive of those orders and of these proceedings before the return day, which I have fixed at 22/11/2011, this court will without much ado, proceed to making such necessary orders to nullify such steps or decisions taken once they are served with the processes and/or orders made therein order to uphold and protest the sanctity of the courts processes and to vindicate the integrity of the court as the established constitutional arbiter between the State and the citizens and between the citizens interse.
That the originating summons together with motion on Notice and the Certified True Copy of the Enrollment of these orders made herein shall be served on the defendants, the 2nd and 3rd defendants in particular shall within 72 hours of such service, show cause why the Plaintiff shall not be entitled to have the orders sought by this motion exparte dated and filed on 14/11/2011 granted in his favour.
That the said motion on Notice is adjourned to 22nd day of November, 2011 for hearing along with the orders made on the defendants, the 2nd and 3rd defendants in particular to show cause why the plaintiff shall not have the orders sought exparte granted in his favour.
That the further consideration of this matter is further adjourned to 22nd day of November, 2011.
Dissatisfied with these orders, the 2nd defendant (the PDP) filed an appeal to the Court of Appeal. The PDPs complaint was the Federal High Court had no jurisdiction to entertain the plaintiffs action and that the learned judge made prejudicial statements which disqualified him from hearing the Motion on Notice and the substantive suit (i.e. the Originating Summons).
In its judgment delivered on the 7th day of January, 2012 the Court of Appeal held that the Federal High Court had jurisdiction to entertain the 1st respondents action. The Court proceeded to order the suit remitted back to the Federal High Court for the hearing of the Originating Summons on the merit. The court also held that the presiding judge disqualified himself by statements made in the Ruling on the 15th of November, 2011. This appeal is against that judgment.
The plaintiff cross appealed. The cross-appeal is SC.9/2012.
I must observe that the suit Nos’ of the appeals are wrong. The appeal was filed on 7/1/12, while the cross-appeal was filed on 10/1/12. A cross appeal is filed after an appeal has been filed. It follows naturally that the appeal must have an earlier suit number than the cross appeal. It is clear that there has been some lapse in the Registry of this court by giving SC.28/2012 to the appeal and SC.9/2012 to the cross appeal. It should be the other way round.
Learned counsel for the appellant, Mr. Tayo Oyetibo SAN formulated three issues for determination for the appeal. They are:
Whether the Court of Appeal was right in Law, in holding that the Federal High Court has jurisdiction to entertain the 1st respondents action, when the reliefs being sought in the 1st respondents originating summons and the facts disclosed in the affidavit in support of the originating summons, show clearly that his action relates to pre-primary election affairs of the appellant which are not justiciable and therefore outside the jurisdiction of the Federal High Court.
Whether the Court of Appeal was right in law in restricting itself to the main claims being sought by the 1st respondent on his originating summons, in holding that the Federal High Court has jurisdiction to entertain the action, when it ought to have struck out the action on the ground that the Federal High Court has no jurisdiction to entertain both the main claims and the alternative claims contained in the originating summons.
Whether the Court of Appeal was right in Law, in holding that the Federal High Court has jurisdiction to entertain the 1st respondents action when the reliefs being sought in the 1st respondents originating summons and the facts disclosed in the affidavit in support of the originating summons, show clearly that this action relates to pre-primary election affairs of the appellant which are not justiciable, and therefore outside the jurisdiction of the Federal High Court.
Learned counsel for the 1st respondent Mr. L. O. Fagbemi, SAN formulated two issues. They are
Having regard to the nature of the claim of the plaintiff/1st respondent, whether the Court of Appeal was wrong in its conclusion that, the Federal High Court has jurisdiction.
Whether an alternative claim can be used to determine the jurisdiction of the court.
Learned counsel for the 2nd respondent, Mr. A. Sadauki did not file a brief, while learned counsel for the 3rd respondent, Chief F. T. Egele filed a brief on the 1st of February 2012 wherein he adopted the issues in the appellants brief.
I have examined the issues formulated by the appellant and the 1st respondent. To my mind they do not address the real issue in this appeal. When such is the case an appeal court has inherent power to adopt or formulate issues that in its view would determine the real points in controversy. See Ikegwuoha v. Ohawuchi 1996 3 NWLR pt.435 p.146;
Aduku v. Adejoh 1994 5 NWLR pt.346 p.582.
INEC fixed gubernatorial elections for Bayelsa State for April 2011. The 1st respondent contested his parties primaries (i.e PDP) for that election in January 2011 and won. His name was forwarded to INEC as the PDPs candidate for the gubernatorial election fixed for April, 2011. The 1st respondent, then filed suit No.FHC/ABJ/CS/651/10. The suit was to determine when the tenure of the 1st respondent would come to an end. Whether on 28/5/2011 or 28/5/12, INEC held the view that the 1st respondents tenure would come to an end on 28/5/11. That explains why it fixed gubernatorial elections for April, 2011. The 1st respondent was of the view that his term would end on 28/5/12. The Federal High Court agreed with the 1st respondents view, and the Court of Appeal affirmed that judgment. After the decision INEC fixed gubernatorial elections for Bayelsa State for 12/2/12 while the PDP fixed its primaries for 19/11/11. The 1st respondent went to court because he claims to be the authentic candidate of the PDP by virtue of winning the primaries held in January 2011 and his name sent to INEC as the PDP candidate. He also went to court because the PDP (his party) refused to allow him contest the primary elections which was held on 19/11/11. To my mind the real issues in this appeal are:
Whether after the 1st respondent won the primaries conducted in January 2011 and his name sent to INEC as the PDPs candidate for the gubernatorial elections fixed for April, 2011, he is still the PDP candidate for the gubernatorial elections which was held on 12/2/12.
Whether the PDP can stop or prevent the 1st respondent from contesting its primaries conducted on 19/11/11 to choose its candidate for the gubernatorial elections which was held on 12/2/12.
Whether the Federal High Court has jurisdiction to hear and determine the 1st respondents claims.
At the hearing of appeal on the 7th day of February 2012 learned counsel for the appellant and learned counsel for the 1st respondents made lengthy submissions.
I shall not reproduce the submission since they shall be well reproduced when considering the issues for determination of the appeal.
Learned counsel for the appellant adopted his brief filed on 27/1/12. He urged this court to allow the appeal and strike out the action.
Learned counsel for the 1st respondent adopted his brief filed on 1/2/12 and urged this court to dismiss the appeal.
Both counsel agreed that this appeal raises the issue of jurisdiction and that if it succeeds suit No. SC.9/2012 is dead. I also agree. Learned counsel for the 2nd respondent did not file a brief. He informed the court that he is neutral.
Learned counsel for 3rd respondent adopted his brief filed on 1/2/12 wherein he adopted the three issue and arguments in appellants brief. He urged this court to dismiss the cross-appeal and conceded the main appeal.
Learned counsel for the 1st respondent observed that on the 7th day of January, 2012 learned counsel for the appellant filed a Notice of Appeal and on the 13th day of January, 2012 he filed a Notice of Withdrawal of Appeal.
He submitted that by virtue of the provisions of Order 8 Rule 6 (5) of the Supreme Court Rules an appeal which has been withdrawn is deemed dismissed. He further submitted that the appellants appeal was dismissed from that day. Record of Appeal shows that the appellant filed two Notices of Appeal on the 7th of January 2012 and on the 13th of January 2012.
On the 7th of February when the appeal was heard learned counsel for the appellant informed the court that he was withdrawing his Notice of Appeal filed on 7/1/12 and that he would rely on the Notice of Appeal filed on 13/1/12. There was no objection. Notice of Appeal filed on 7/1/12 was struck out, it having been withdrawn. An appellant may file more than one Notice of Appeal. All he is required to do is to indicate to the court which of the Notices of Appeal he would be relying on. A Notice of Appeal withdrawn is struck out.
This appeal is heard on the Notice of Appeal filed on the 13th day of January 2012.
ISSUE NO. 1
Learned counsel for the appellant observed that, though the 1st respondent won the primary election conducted by the appellant in January 2011. He abandoned the result of that primary by applying to the appellant to contest the primary election scheduled for 19/11/11. Reference was made to paragraphs IV. V. XIV of the affidavit in support of the originating summons, contending that by abandoning the results of the primaries conducted in January 2011 he was no longer PDPs candidate for the elections.
Learned counsel for the 1st respondent observed that the 1st respondent won the primaries in January 2011 and his name was forwarded to INEC as PDP candidate for the gubernatorial election filed for April 2011. He submitted that by virtue of Section 33, 35 of the Electoral Act, there cannot be a second primary or substitution of name in which a prior primary was conducted, contending that another primaries can only be conducted if the events envisaged in Section 35 occur. Finally he submitted that the primaries conducted in January, 2011 are valid.
The following sections of the Electoral Act shall be examined to resolved this issue. Sections 31, 33 and 35.
Section 33 of the Electoral Act States that:
’33. A political party shall not be allowed to change or substitute its candidate whose name has been submitted pursuant to section 31 of this act except in the case of death or withdrawal by the candidate.
While section 35 states that:
’35. A candidate may withdraw his candidature by notice in writing signed by him and delivered by himself to the political party that nominated him for the election and the political party shall convey such withdrawal to the commission not later than 45 days to the election.
The interpretation of section 33 and 35 of the Electoral Act is that after a candidate wins the primaries of his party, he can only be substituted by his party with another person if he dies or withdraws.
If he chooses to withdraw he must inform the party in writing, signed and delivered by him, and the party shall notify INEC not later than 45 days to the election. I will pause here before I consider section 31 of the Electoral Act.
Section 33 and 35 supra are irrelevant since the 1st respondent never withdrew his candidacy or died. This is a case where the elections fixed for April 2011 in which he was to be the PDPs candidate was cancelled by INEC. INEC has the sole responsibility to decide when, election are to be held.
Now, paragraphs IV, V, XIV of the affidavit in support of the 1st respondents originating summons read:
(IV) That inspite of his protest and complaint, officials of the 2nd defendant advised that he should obtain another expression of interest form and nomination form as the party – PDP would not allow him to stand as its candidate based upon the previous primary consequent upon which he, again paid the sum of N500, 000 and N 5,000,000 respectively totaling N5, 500,000.00 to express his interest and for the nomination respectively.
(V) That in further alternative to his position of maintaining his mandate as the party flag bearer as per exhibit H and M series he attended the screening by the gubernatorial screening Committee for the fresh primary under protest on 27th day of October, 2011
(XIV) That he continued to campaign for the said primary election without the publication of his name by the 2nd defendant
My lords, the 1st respondent payed N 5.5 M (five Million five hundred thousand), presented himself to the Screening Committee of his party, and campaigned extensively for the fresh primary elections fixed by his party for 19/1/11 to choose its candidate to stand for Governor of Bayelsa in elections fixed for 12/2/12.
These are clear acts indicative of the fact that the 1st respondent had abandoned the results of the primaries he won in January 2011. He was now interested in the primaries fixed for 19/11/11. Furthermore the primaries that the 1st respondent won in 2011 fades into significance since the elections for which the said primaries was conducted were cancelled.
The 1st respondent won the primaries conducted in January 2011 and his name forwarded to PDP as the PDPs candidate for the elections slated for April 2011. With the cancellation of the elections of April 2011 the primaries conducted in January 2011 is no more of any relevance. INEC has the sole responsibility to fix dates for elections and to my mind if INEC fixes a date for elections and for whatever reason, be it logistic, I do not think anyone has a cause of action against INEC for cancelling an election (not held) and rescheduling elections for another day. Furthermore INEC fixed the elections for April 2011 on its understanding that the 1st appellants term would end on 28/5/11, but with the courts judgments that 1st appellant tenure would end on 28/5/12 the need to cancel election for April 2011 was justified. In sum the 1st respondent is/was no longer the PDPs candidate for gubernatorial elections held on 12/2/12 simply because he did not take part in the primaries for that election which was held on 19/11/11.
Since the general elections fixed for April 2011 were cancelled by INEC, the provisions of sections 33 and 35 of the Electoral Act are no longer applicable. With the cancellation of the general elections, primaries held in January 2011 are irrelevant for determining PDPs candidate for Governor of Bayelsa State.
ISSUE 2
Learned counsel for the appellant observed that the PDP conducted two primaries, in January 2011 and in November 2011. He further observed that paragraph 7 of the 1st respondents pleadings show clearly that both he and the PDP had abandoned the primaries conducted in January 2011, contending that on disclosed facts in his pleadings the real issue in controversy was a preprimary election affair of the PDP, having abandoned primary of January 2011. He submitted that the court has no jurisdiction to entertain/interfere with pre primary affairs of a Political Party. Reliance was placed on
Onuoha v. Okafor 1983 2 SCNLR p.244
Dalhatu V. Turaki 2002 15 NWLR p.845 p.310
Senator Y.G. Lado & others v. Congress for Progressive Change & other (unreported consolidated appeals SC/157/2011 and SC334/2011 delivered on 16/12/2011.
Concluding he submitted that the 1st respondents claim is not justiciable as it remains within the realm of the internal affairs of the party.
Learned counsel for the 1st respondent observed that the appellant and the 2nd to 4th respondents have no jurisdiction to substitute him for someone else after he won the primaries conducted in January 2011, contending that the primaries conducted in January 2011 is valid and the 1st respondent is the authentic candidate of the PDP for the gubernatorial elections for Bayelsa State.
He observed that the case relied on by learned counsel for the appellant were wrongly cited, contending, that at the time the 1st respondent filed the suit there was only one primary election that was held on 11/1/2011. Submitting that the argument of the appellant that this suit raised pre-primary election affair is highly misconceived and the argument should be discountenanced. He urged the court to resolve the issue against the appellant.
In deciding this issue I shall examine the following cases. They were all decided by the full court (i.e. of the Supreme Court).
Onuoha v. Okafor 1983 Vol. 14 NSCC p. 494
Dalhatu v. Turaki 2003 15 NWLR pt. 843 p.310
Amaechi v. INEC 2008 1 SC pt.1 p.36
Ugwu v. Arerume 2007 12 NWLR pt.1048 p.365
Onuoha v. Okafor (supra) decided that nomination or sponsorship of a candidate for election is a political matter within the discretion of the party.
Dalhatur v. Turaki (supra) followed Onooha v. Okafor (supra) Amaechi v. INEC (supra) decided that a person who contest and wins the primary election can only if barred from contesting the General Election, if and only if his political party gives congent and verifiable reasons for the substitution as required by the Election Act of 2006. If no such reason is given the candidate who won the primaries remains the recognized candidate of the party and would be declared the winner of the election (even if he did not contest the general election).
Ugwu v. Ararume (supra) explained section 34 of the Electoral Act 2000, thus. A political party intending to change the name of its candidate shall inform INEC in writing not later than 60 day to the election giving cogent/verifiable reasons. There shall be no substitution after 60 days.
Onuoha v. Okafor (supra) and Dalhatu v. Turaki (supra) are relevant in this appeal and I shall explain. Amaechi v. INEC (supra) is irrelevant because in that case Gov. Ameachi contested the primaries and won but was barred from contesting the General Elections. His party, the PDP was unable to give cogent and verifiable reasons why he was not allowed to contest the general elections.
In this case Gov. Sylva contested primaries in January 2011 for a general election fixed for April 2011. The general election was cancelled. Fresh primaries were fixed by this party, but he was not allowed to contest. There is thus no similarity in Ameachi case and this case. In Amaechis case he was barred from contesting the general election. In this case Gov. Sylva was barred from contesting primaries of his party.
SC.9/2012
