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P.D.P. v. Sylva

PEOPLES’ DEMOCRATIC PARTY

V

TIMIPRE SYLVA

INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)

ABUBAKAR KAWU BARAJE

( Acting National Chairman, Peoples’ Democratic

Party)

V

TIMIPRE SYLVA

V

PEOPLES’ DEMOCRATIC PARTY

INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)

ABUBAKAR KAWU BARAJE

( Acting National Chairman, Peoples’ Democratic Party)

SUPREME COURT OF NIGERIA

MAHMUD MOHAMMED JSC ( Presided )

CHRISTOPHER MITCHELL CHUKWUMA-ENEH JSC

MUHAMMAD SAIFULLAHI MUNTAKA-COOMASSIE JSC

JOHN AFOLABI FABIYI JSC

BODE RHODES-VIVOUR JSC ( Read the Lead Judgment )

SC.28/2012

SC.9/2012

CONSOLIDATED

FRIDAY, 20 APRIL 2012

APPEAL - Cross-appeal - When to file - Appeal filed - Propriety of having an earlier suit number than the cross-appeal

APPEAL - Issues for determination - Appellate court - Power of to adopt or reformulate - When may exercise

APPEAL - Notice of appeal - Propriety of appellant filing more than one - Where does - Duty of - Withdrawal of notice of appeal Resultant effect of

COURT - Federal High Court - Jurisdiction of - How determined

COURT - Main claims - Where court lacks jurisdiction to hear Ancillary claims - Determination of - Impropriety of

ELECTION PETITION - Aspirant - Who constitutes - Electoral Act, section 87(1) considered

ELECTION PETITION - Electoral candidate - Nomination of - Political party - Exclusive right of thereon - Primary election - Conduct of - Party aggrieved with - Right of - Complaint on - Court Jurisdiction of to determine - Electoral Act, section 87(9) considered

ELECTION PETITION - Electoral candidate - When may be substituted -  Where withdraws - Onus on - Electoral Act, sections 33 and  35 considered

JURISDICTION - Court - Jurisdiction of - Determinants of - Originating process - Where is an originating summons - How determined

JURISDICTION - Issue of - Fundamental nature of - Lack of - Effect of on proceedings - Court - Jurisdiction of - Power of to decide whether it has to determine claim before it

JURISDICTION - Main claims - Court - Where lacks jurisdiction to hear - Ancillary claims - Determination of - Impropriety of

JUSTICE - Courts in Nigeria - Duty on to ensure justice - Constitutionality of - Powers donated therefor - Nature of POLITICAL PARTIES - Members of - Bindingness of by constitution of STATUTE - Electoral Act, section 87(1) - Aspirant - Who constitutes

STATUTE - Electoral Act, section 87(9) - Electoral candidate Nomination of - Exclusive right of party thereon - Primary election -  Conduction of - Party aggrieved with - Right of - Complaints by - Jurisdiction of court to determine

STATUTE - Electoral Act, sections 33 and 35 - Electoral candidate When may be substituted - When withdraws - Onus on

VOLUNTARY ASSOCIATIONS - Ultra vires - Doctrine of - Irrelevance of thereto

WORDS AND PHRASES - ‘Aspirant to an election’ - Who constitutes

Issues:

  1. Whether after the 1st  respondent won the primaries conducted in January 2011 and his name sent to INEC as the PDP’s candidate for the gubernatorial elections fixed for April, 2011, he is still the PDP candidate for the gubernatorial elections which was held on 12 February 2012.
  2. Whether the PDP can stop or prevent the 1st respondent from contesting its primaries conducted on 19 November 2011 to choose its candidate for the gubernatorial elections which was held on 12 February 2012.
  3. Whether the Federal High Court has jurisdiction to hear and determine the 1st respondents claims.

Facts:

The 1st respondent (herein), elected governor of Bayelsa State in 2007  was aggrieved by the declaration of INEC that the gubernatorial elections for Bayelsa State would hold in April 2011 on grounds that his tenure started to run from the date he took a 2nd oath of office after having won the rerun election. He therefore commenced an action in the Federal High Court, Abuja, to determine whether his tenure would end on 28 May 2011  or 28 May 2012 and sought an injunction to restrain the 2nd defendant from conducting the election in April 2011. In the meantime, the primaries conducted by the appellant herein (PDP) in preparation of the election was won by the 1st respondent. The trial court granted 1st respondent’s claims in the Federal High Court suit and the proposed election was cancelled. The 2nd respondent subsequently announced a new date of 12 February 2012  for the election. Pursuant to this, the appellant set up a panel to screen candidates for its primaries. At the end of the exercise, the 1st respondent was not cleared to contest the primary election. Aggrieved, he commenced an action by originating summons seeking, inter alia, declaratory and injunctive reliefs that; having submitted his name to INEC as its candidate for the gubernatorial election of Bayelsa State, he remained the only candidate of PDP for the election following his victory at the primary election conducted by defendant (PDP), the defendants cannot rely on any purported extensive consultation with stakeholders of PDP to remove and/or render ineffective, the valid nomination of plaintiff as the candidate in the governorship election; order setting aside all steps and actions made by the defendants for the conduct of another primary election for the purpose of choosing a candidate for the election, and injunctions restraining the defendants from conducting another primary to choose a candidate for the election, and the 1st defendant from accepting from the 2nd and 3rd defendants, any fresh name therefore. In the alternative, declaratory reliefs, inter alia, that having paid all necessary levies to PDP and having been duly nominated under section 32, Electoral Act, 2010 (as amended), the plaintiff is entitled to participate in the primary election of PDP at which a candidate will be elected to contest the forthcoming elections, the decision of the National Working Committee of PDP to issue a statement disqualifying the plaintiff from contesting the election without affording the plaintiff a hearing is null and void for violating plaintiff’s constitutional right to fair hearing and injunction restraining the defendants from conducting any ward congress and from further embarking on activities leading to any primary election to the PDP for the election any time earlier than four weeks from the date of judgment and after the name of plaintiff would have been published as was done in respect of other candidates in the PDP primary election for the Governor of Bayelsa State. He filed a motion on notice seeking interlocutory injunctions restraining the defendants from conducting ward congress, to hold fresh gubernatorial election, the 1st defendant from accepting from 2nd and 3rd defendants, any fresh submission of any gubernatorial aspirant and the latter from submitting a fresh name pending determination of the substantive suit. In the alternative, order mandating defendants to publish plaintiff’s name as an aspirant for the slated primaries. He also filed a motion ex parte asking for same reliefs. Aggrieved by the orders made by the trial court, the 2nd defendant (PDP) appealed to the Court of Appeal on grounds that the trial court lacked jurisdiction to try the case. The Court of Appeal held that the trial court had jurisdiction, but the presiding judge had disqualified himself by statements made in the ruling. It also remitted the matter to the trial court for determination of the substantive suit. Aggrieved, the defendant appealed to the Supreme Court while the plaintiff, 1st respondent (herein) cross-appealed.

In determination of the appeal, the Supreme Court considered the following statutes:

Electoral Act, section 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.” Electoral Act, section 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.” Electoral Act, section 87(9):

“Notwithstanding the provisions of the Act or rules of a political party, all aspirants who complain that any of the provisions of this Act and guidelines of a political party has not been complied with in the selection or nomination of a candidate of a political party for election, may apply to the Federal High Court or the High Court of a State or FCT for redress.” Electoral Act, section 87(1):

“A political party seeking to nominate candidates for elections under this Act shall hold primaries for aspirants to all elective posts.”

Constitution of the Federal Republic of Nigeria, 1999, section 251(1)(r):

“Any action or proceeding for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies...”