The Supreme Court on Monday granted leave to the former governor of Bayelsa State, Chief Timipre Sylva, to seek to validate his nomination as the Governorship candidate of the Peoples Democratic Party [PDP] for the forthcoming gubernatorial election in the state.
The five-man panel of the apex court presided over by Justice Mariam Aloma Mukhtar cleared the way for Sylva when it granted him leave to file a cross appeal against the decision of the Court of Appeal, which held that the trial Judge Gabriel Kolawole went beyond himself in warning PDP not to tamper with the subject matter of the action before him.
The court also granted an order for accelerated hearing of the appeal of PDP and the cross appeal filed by Sylva and fixed February 7, 2012 for definite hearing.
“In view of the fact that this is a political matter and requires urgency, the application for accelerated hearing is hereby granted. The appeal and cross appeal are fixed for next Tuesday, February 7 for hearing”, Justice Mukhtar held.
In Sylva’s cross appeal filed by Prince Lateef Fagbemi [SAN], he asked the apex court to consider the urgency and circumstances of the case and invoke Section 22 of its enabling statute and hear the case fully and determine it to its finality as if it is the high court.
If the court agrees with him, it will hear the originating summons filed by Sylva at the Federal High Court.
Both Sylva and PDP are presently before the apex court because they were dissatisfied with the judgment of the Abuja Court of Appeal.
The court of appeal had held that Sylva was right to have filed his case against PDP at the Federal High Court but added that the trial judge, Justice Gabriel Kolawole went too far when he threatened to sanction PDP and INEC if they failed to appear before it within 72 hours to show cause why he should not grant Sylva all the reliefs he sought from the court.
In his appeal, Sylva said that the court of appeal erred in law when it held that the pronouncement of the trial judge, asking the Respondents to show cause and also warning the Respondents from taking any action which would foist upon the court a hopeless situation without hearing the Respondents amounted to pre-judging the issue before him.
He argued that a court of law had the responsibility of protecting the sanctity of its proceedings.
But PDP in its own appeal, said the court of appeal erred in law when it held that the federal high court had jurisdiction to hear Sylva's case.
It asked the court to strike out the case.
Sylva, however asked the court to grant all the reliefs he asked for at the high court.
It will be recalled that on Saturday January 7th, 2012 the Abuja division of the Court of Appeal y ruled that Sylva was right in approaching the Federal High Court in Abuja to stop PDP from conducting another primary for the purpose of selecting the party’s candidate for the next governorship election.
In a judgment written by Justice Zainab Bukachuwa, the court held that the trial judge at the Federal High Court, Justice Gabriel Kolawole had the jurisdiction to hear Sylva’s suit.
However, Justice Bukachuwa held that justice Kolawole overreached himself when after assuming jurisdiction then went further to threaten PDP with various sanctions should the party fail to appear before him to show cause why Sylva’s application to stop the primary should not be granted.
Her Lordship explained that Justice Kolawole’s pronouncements amounted to granting the reliefs in the substantive suit at an interlocutory stage, a procedure; she said was inimical to a fair determination of dispute.
For this reason, Justice Bulkachuwa said that the case be sent back to the high court for a fresh trial by a new judge other than Justice Kolawole.
The court rejected PDP’s argument that the Electoral Act 2010 had robbed the high court of the jurisdiction to entertain the case.
It held that many of the reliefs sought by Sylva were against the Independent National Electoral Commission and that INEC being an agent of the Federal Government, the proper court to sue it (INEC) was the Federal High Court.
Justice Kolawole had on November last year given PDP 72 hours to come and show cause why he should not grant Sylva’s prayers among which was to declare him the governorship candidate of the party.
The judge granted the order, following an exparte application filed on Sylva’s behalf by Lateef Fagbemi, SAN.
The judge warned that he would not hesitate to nullify any step taken by the PDP in defiance of his order, once the defendants were served the order and the originating summons.
He gave the defendants 72 hours to show cause why all the reliefs sought by Sylva should not be granted and adjourned the matter till November 22 for hearing.
The defendants were the PDP, its acting national chairman, Abubakar Kawu Baraje, and the Independent National Electoral Commission (INEC).
The court held that the era when political parties manipulate processes leading to the emergence of candidates were over, based on the 2010 Electoral Act as amended.
Justice Kolawole said: “When I looked at the totality of the facts in the substantive Originating Summons and when these are considered vis-à-vis the extant provisions of the Electoral Act as Amended, my view is that the Court will not in any way be handicapped, even if the exparte orders, in particular, prayers 1 – 3 are not granted because the court retains the power to direct the 1st Defendant (INEC).’
Justice Kolawole said in terms of political parties’ candidates who may have been unlawfully excluded either from the parties’ primaries or from the elections to accept and act on the name(s) of such candidates as the authentic candidates sanctioned and approved by the court.
“The new Electoral Act as Amended is a clear departure from the 1983 Act by which on the authority of the Supreme Court’s decision in Onuoha V. Okafor, the political parties were “god unto themselves” in terms of the choice of candidates. This court had intervened in quite a number of political parties’ cases when candidates were being manipulated by the leadership of the political parties.
“It is in this regard that I really do not see the Plaintiff being exposed in the long run to such injury, loss or damage that may, applying the Supreme Court’s decision in Kotoye V. CBN, supra be described as ‘irreparable or irretrievable’. Whatever be the case, I have no doubt that this court has the judicial powers to make appropriate orders as the justice of the case will require.
“Let me state, for the avoidance of doubt, that in relation to prayers 1 – 3 of the Motion Exparte, the Plaintiff has made out a strong case which ordinarily should enable this court to grant the said prayers. But in the light of the analysis I have done as regards the statutory powers which the court has pursuant to Electoral Act, 2010 as amended, the 2nd Defendant [PDP] does not, in the long run, have the final say because the court can always make appropriate orders as the justice of the case will require to redress any wrong that may be occasioned by my judicial hesitation in granting the said prayers 1-3 on the motion exparte.”
PDP was dissatisfied with the order and filed an appealed at the Court of Appeal.
Sylva, who is seeking re-election, had been excluded from the primary by the party. He is in court because the party is planning to dump him after winning the January 2011 primary before the Independent National Electoral Commission (INEC) postponed the governorship election.
The INEC action was based on an order of an Abuja High Court which declared that the tenure of five governors continue beyond May 29 because they won re-run elections. The verdict was upheld by the Court of Appeal, Abuja.
The governor is contending that his candidacy subsists as nobody petitioned against his success at the said primary election to the screening appeal panel or any other body or committee of the 2nd defendant.
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