Timipre Sylva Vs Independent National Electoral Commission (2015)

LAWGLOBAL HUB Lead Judgment Report

NWALI SYLVESTER NGWUTA, J.C.A.

My Lords, the suit from which this appeal emanated is an offshoot of the judgment of this Court delivered on 27th January, 2012 in Marwa v. Nyako (2012) 5 NWLR (Pt. 1296) 199. Here are the relevant facts:

The appellant who was the Governor of Bayelsa State had, by the time the said judgment was delivered on 27/1/2012, overstayed his mandate, the same having expired on 29th May 2011.

The 1st Respondent, the Independent National Electoral Commission, held the view, and rightly so as events turned out, that the four year tenure of the appellant would end on 28th May, 2011 and prepared for the next gubernatorial election. The 2nd Respondent, the Peoples Democratic Party, conducted her primary election in January, 2011 at which the appellant emerged as the candidate of the 2nd Respondent at the then coming election. His name and particulars were sent to the 1st Respondent.

However, before the election at which he was to represent his party as the governorship candidate could be held, appellant approached the Federal High Court sitting at Yenogoa, Bayelsa State, seeking a declaration that his term had not ended but was still running. The judgment of the Federal High Court, granting the relief sought by the appellant was affirmed by the Court of Appeal, Port Harcourt.

In compliance with the judgments, the electoral umpire, the 1st Respondent, cancelled the 2011 election, the appellant continued in office as Governor of Bayelsa State as the Federal High Court decided, and the Court of Appeal affirmed, that the tenure of office of the appellant would expire on 28th January, 2012. Accordingly to the 2nd Respondent as well as the appellant, abandoned the primary election at which he, the appellant, was nominated the 2nd Respondent’s candidate at the election that should have been held in 2011.

Before that matter could get to the Supreme Court, the 2nd Respondent announced a date in February, 2012 for the conduct of the election in Bayelsa State. In the subsequent primary election conducted by the 2nd Respondent, the appellant abandoned the result of the 2011 primaries and purchased forms for the 2012 election. He was screened and dropped by the 2nd Respondent.

As a result of his exclusion from the election, appellant filed suit No. FHC/ABJ/CS/93/2011 which gave rise to appeals Nos. SC.9/2012 and SC.28/2012 in which the Supreme Court held in the judgment delivered on 20th April, 2012 that the election for which the appellant was nominated by the 2nd Respondent was cancelled and that the appellant, by seeking to contest the primary for the 2012 election, had abandoned the nomination he won for the 2011 election that was cancelled.

In an attempt to validate his nomination for the April, 2011 election that was cancelled and to claim the benefits of the 2nd Respondent’s victory in the 2012 election the appellant went back to Court.

In the originating summons issued at the Registry of the Federal High Court sitting at Yenegoa against the 1st Respondent as the sole defendant, the plaintiff (now appellant) on 21/1/2013 raised the following issues/questions for the trial Court to resolve:

“(1) Whether having regard to the clear provision of Section 178(2) of the 1999 Constitution (as amended) and the Supreme Court judgment in the consolidated Appeal of Marwa v. Nyako (2012) 5 NWLR (Pt. 1296) 199 delivered on 27th January, 2012 wherein the Court held that the tenure of the plaintiff as the Governor of Bayelsa State had long expired since 29th May, 2012 (sic) the Gubernatorial Election in Bayelsa State became due since 29th April, 2011.

(2) If question 1 is answered in the affirmative and whether having regard to the plaintiff who being the incumbent Governor of Bayelsa State under the auspices of the Peoples Democratic Party (PDP) as at 29th April, 2011 and whose name had been submitted as a candidate of Peoples Democratic Party (PDP) for the Gubernatorial Election, the plaintiff was the only valid candidate of the Peoples Democratic Party (PDP) for the Bayelsa State Gubernatorial Election conducted thereafter.

(3) Whether by virtue of Section 33 of the Electoral Act, 2010 (as amended) a person whose name had been submitted as a candidate for the Bayelsa State Governorship election can be jettisoned other than by his death or withdrawal.

(4) Whether by virtue of Section 33 of the Electoral Act (as amended) the Defendant can be legally regard (sic) as the candidate for the Bayelsa State Governorship election following the expiration of the tenure of office on 20th April, 2011 (sic) any person other than the plaintiff, who had neither died nor withdraw his candidacy.