The Court of Appeal, Abuja Division Saturday dismissed the appeal brought by the Peoples Democratic Party [PDP], challenging the competence of the suit filed by Bayelsa State Governor, Chief Timipre Sylva, seeking to be retained as the candidate of party for the 2012 governorship election or a contestant at any PDP primary election for the state gubernatorial race.
The PDP had appealed on the premise that Sylva’s suit was incompetent and that the Federal High Court, which entertained it lacked jurisdiction to do so.
But ruling on the appeal, the Appeal Court held that Sylva was right in approaching the Abuja Division of Federal High Court to stop PDP from conducting another primary for the purpose of selecting the party’s candidate for the next governorship election on account that the January 2011 primary election which he won was valid and he had not resigned his mandate thereof.
In a judgment prepared by Justice Zainab Bukachuwa, the Appeal Court agreed with the Governor’s counsel, Prince Lateef Fagbemi [SAN] that the trial judge at the Federal High Court, Mr. Judge Gabriel Kolawole had the jurisdiction to hear Sylva’s suit.
But Justice Bukachuwa held that Kolawole went too far when after assuming jurisdiction, proceeded 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.
Bulkachuwa held that Mr. Judge Kolawole’s pronouncements showed bias and therefore while ordering that the case be remitted to the high court for a full trial by another Judge not him [Kolawole].
The court rejected PDP’s argument that the Electoral Act 2010 had robbed the high court of the jurisdiction to entertain the case.
In doing so, 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.
Reacting to the ruling, Chief Press Secretary to Governor Sylva, Mr. Doifie Ola, described the ruling as a victory for justice, a victory for democracy and above all, a victory for Bayelsa. He advised the PDP leadership to take advantage of this new window, and embrace Sylva as its rightful candidate for the February 11, 2012 Bayelsa State Governorship election.
Justice Kolawole of the Federal High Court had in 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 ex parte application filed on Sylva’s behalf by 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.
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).’
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 bitter that the party is planning to dump him after winning the January 12 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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