Pdp & Anor V. Jarigbe & Anor (2021)

LAWGLOBAL HUB Lead Judgment Report

TIJJANI ABUBAKAR, J.S.C.

This appeal stems from the decision of the Court of Appeal Port Harcourt Division, delivered on the 2nd day of November, 2020 affirming the decision of the trial Federal High Court sitting in Port Harcourt delivered on the 4th day of September, 2020. The facts giving rise to the appeal are that, the elected Senator representing Cross River State North Senatorial District died in office, the event of his death therefore created vacancy in the Senate. The second respondent, Independent National Electoral Commission issued out a notice on the 11th day of August, 2020 that bye-elections would be conducted to fill the existing vacancy, the bye-election was slated for 31st October, 2020. The 1st appellant accordingly requested the 2nd respondent to monitor the primary elections.

​Before the primary elections were conducted, the 1st respondent in this appeal apparently perceived threat to his prospects of participating in the bye-election, he therefore through counsel commenced an action at the Federal High Court by originating summons on the 24th day of August, 2020, and submitted three questions for determination by the trial Court, the questions are:

1. Whether upon proper construction and interpretation of the provisions of Sections 85(1) and 87 (c)(i) and 87 of the Electoral Act, 2010 (as amended), the defendant can alter, modify, amend, exclude or substitute the list of party members who emerged as ward and Local Government Area executives of the 1st defendant who emerged as ward and Local Government Area executives of the 1st defendant on the 7th and 21st March, 2020 pursuant to the elections duly conducted by the 1st defendant and monitored by the 3rd defendant.
2. Whether by the provisions of Article 15(2) and 18 of the 1st defendant’s Constitution, the 1st defendant can alter, modify, amend, exclude or substitute the list of party members who emerged as ward and Local Government Area executives of the 1st defendant on the 7th and 21st March, 2020 pursuant to the elections duly conducted by the 1st defendant and monitored by the 3rd defendant.
3. Whether by the provision of Section 87 of the Electoral Act, 2010 (as amended) and Article 59(2)(c) of the 1st defendant’s Constitution, the 1st defendant can conduct the primaries for its senatorial candidate in any other place or venue different from the senatorial Constituency Headquarters as prescribed by its Constitution.

Upon the determination of the questions set out herein, the 1st respondent then sought for the following reliefs:

a. A declaration that the 1st defendant is bound to utilize the list of the party members who emerged as ward and Local Government Area Executives of the 1st defendant on the 7th and 21st March 2020, same having been authenticated by the 1st defendant and certified by the 3rd defendant, for the purpose of selecting the senatorial candidate of the 1st defendant for the senatorial bye election in Cross River North Senatorial District.

b. An Order of this honourable Court restraining the 1st and 2nd defendants either by themselves or acting through their organs, agents, privies from carrying out any change, modification, exclusion, substitution or however, described by them to the list of party members who engaged as ward and Local Government Area executives of the 1st defendant on the 7th and 21st March, 2020 same having been authenticated by the 1st defendant and certified by the 1st defendant for the senatorial candidate of the 1st defendant for the senatorial bye election in Cross River North Senatorial District.

c. An order of this honourable Court restraining the 3rd defendant from giving effect to any purported change; modification; exclusion, substitution, or howsoever described by the 1st defendant to the list of party members who emerged as ward and Local Government Areas executives of the 1st defendant on the 7th and 21st March 2020 same having been authenticated by the 1st defendant and certified by the 3rd defendant for the purpose of selecting the senatorial candidate of the 1st defendant for cenatorial candidate of the 1st defendant for the senatorial bye election in Cross River North Senatorial District.

d. An order of this honourable Court directing the 1st defendant to conduct the primary elections for the purpose of selecting the senatorial candidate of the 1st defendant for the senatorial bye in Cross River North Senatorial District for 5th September 2020 or any other date, at the senatorial Headquarters in Ogoja in accordance with the provisions of the 1st defendants Constitution.

​e. And for such other order this honourable Court may deem fit to make in the circumstance of this case.

The case of the 1st respondent at the trial Court was that a faction of the 1st appellant, led by the 2nd appellant circulated unapproved list of delegates elected on the 7th and 21st March, 2020 for the purpose of conducting the primary elections fixed for 5th September, 2020. At the conclusion of hearing, the trial Federal High Court found in favour of the 1st respondent, and ordered that his name be restored on the list. He was eventually restored on the list by the 1st appellant in compliance with the order of the trial Court. The appellants became nettled by this decision and made for the Court of Appeal.

The appellants therefore filed an appeal at the Court of Appeal. The Court of Appeal Port Harcourt Division affirmed the decision of the trial Federal High Court. Appellants therefore finally appealed to this Court on the 4th day of November, 2020, the initial notice of appeal containing four grounds is at pages 2897- 2859 of the records of appeal Vol. IV. The appellants filed another notice of appeal on the 9th day of November, 2020 containing ten grounds of appeal. Learned senior counsel Chief Olanipekun, SAN filed brief of argument on behalf of the appellants on the 13th day of November, 2020 and nominated the following three issues for determination:

i. Was the lower Court correct when it affirmed the decision of the trial Court in relation to the 1st respondent’s disqualification by the 1st appellant’s Screening Committee. (Grounds 4, 9 and 10)

ii. Did the claim of the 1st respondent vide the originating summons filed on 24/8/2020 (leading to the judgment of the trial Court and affirmed by the lower Court) vest jurisdiction on the Court(s). (Grounds 1, 3, 5, 6, 7 and 8)

iii. Whether the claim of the 1st respondent herein in the originating summons filed on the 24/08/2020 was/is statute barred, considering the date of the filing of the claim vis-à-vis exhibit JA-J10. (Ground 2)