12th December, 2011
A five-man panel of the Court of appeal led by Justice Zainab Bulkachuwa on Monday adjourned to a yet to be determined date to deliver judgment on the appeal instituted by the Peoples Democratic Party, PDP challenging the order of a Federal High Court which warned the party not to go ahead with the gubernatorial primary election in Bayelsa State.
At the resumed hearing of the matter before the court, Mr. Tayo Oyetibo, a senior advocate of Nigeria representing the PDP told the court that the party’s appeal is predicated on four grounds, chief of which was the issue of jurisdiction.
The senior advocate argued that Governor Temipre Silva’s suit at the Federal High Court made claims only against the party and that nothing was claimed against the Independent National Election Commission that would have clothed the lower court with jurisdiction to entertain the matter.
He contended that when an action contains multiple reliefs, that a plaintiff must show how specific relief relate to specific parties and that looking at Governor Sylva’s suit, that all the reliefs related to only the PDP and that the appropriate court open for the embattled Governor is the Bayelsa state High Court and not the Federal High Court in Abuja.
He contested the Governor’s reliance on section 87(9) of the Electoral Act 2010 as amended under which the governor took the case to the Federal High Court noting that the section only provides an opportunity to an aggrieved to institute a legal action against any political party over issues of nomination or selection of candidates but did not expressly confer jurisdiction to the Federal High Court.
Oyetibo argued that disputes arising from the issue of nomination of the party’s flag bearer in Bayelsa state would best be resolved at the Bayelsa state High Court and not at the Federal High Court in Abuja Division. According to him “none of the claims filed at the lower court falls within the jurisdiction of that court and it ought not to have entertained it as there was no substantive jurisdiction”.
In a similar vein, the Independent National Election Commission, INEC, represented by Chief F.F Egele argued in support of the PDP and claimed that the Federal High Court ought not to have made the order directing the party from conducting its primary election in Bayelsa state on the ground that it lacked the jurisdiction to do so.
According to ChiefÂ Egele, “the point we are making is that the pre primary election threat made by the Federal High Court before adjourning the matter to three day after the action the suit intended to stop amounts to an affront to section 87(10) of the amended Electoral Act 2010. This section withdrew the power of the court to make orders of interim injunction. In making the order, the court breached our right to be heard and does not show the judge was an impartial arbiter”.
The electoral body urged the court to upheld PDP’s appeal and transfer the case back to another judge in Bayelsa High Court for adjudication.
In his submissions, Governor Sylva through his counsel, Prince Lateef Fagbemi, also a senior advocate, pointed out that the claims he made before the lower court relates to all the defendants in the suit and observed that it is a different case whether or not it has merit and argued that PDP’s argument that he made no claims against INEC was erroneous.
Fagbemi also posited that section 87(10) of the Electoral Act as amended has created a new regime of jurisdiction flowing from Section 87(9) which opened an opportunity for an aggrieved to seek redress before the court. He contended that once a person’s name had been submitted to INEC by a political party as is the case of Governor Sylva, that such a person can only be substituted only if he withdraws or dies.
He further averred that section 6(6) of the Constitution which empowers the court below to entertain the matter is superior to the provisions of the electoral act and urged the court to hold that the trial court was right in doing what it did to save the subject matter of the suit and to refuse the calls by INEC and PDP to transfer the matter to Bayelsa which he said is scandalous.
Fagbemi subsequently pleaded with the court to refuse the appeal and to direct the trial court to determine the matter expeditiously.
Sylva had dragged the party and the Independent National Election Commission, INEC, before the Federal High Court to challenge the decision of the party to go ahead with its gubernatorial primary election in the state after his disqualification.
By Nnamdi Felix/Abuja