Chief Koku Gariga & Ors. V. Bayelsa State Independent Electoral Commission & Ors. (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

DATTIJO MUHAMMAD, J.C.A.: (Delivering the Leading Judgment)

The appellants and the 2nd – 9th respondents are members of the Peoples Democratic Party, the P.D.P, in Bayelsa State. The 8th and 9th respondents are the state secretary and chairman of the party respectively. The 7th respondent is the chairman of the Electoral panel set up by the party in the state to conduct its primaries for the Local Government Council Elections that took place on 3rd April, 2010. 1st respondent is the statutory body responsible for the conduct of the elections.”

Interested in contesting the chairmanship seats of their respective Local Government Councils, Sagbama, Ekeremor, and Kolokuma Opokuma, on their party’s platform, the appellants collected and filled the party’s nomination and expression of interest forms. At the party’s Local Government Area congresses held on 28th November 2009, the appellants were duly screened and declared the party’s chairmanship candidates for the forthcoming Local Government council Elections. Upon their success at the congresses, the 9th respondent in his capacity as the state chairman of the P.D.P submitted appellants’ names on behalf of the party to the 1st respondent by his letter dated 3rd December 2009.

The 9th respondent, on the 10th December 2009, issued the appellants with certificates of return, letters of congratulation and directed them to proceed to the 1st respondent for screening. Instead of screening the appellants, 1st respondent screened the 2nd – 6th respondents to whom the 8th respondent, without any authority from the 9th respondent, also issued certificates of return to contest the same chairmanship seats the appellants had earlier been declared candidates for by the 9th respondent. The unfolding drama took the appellants to the lower court where by an originating summons on 31/3/2010, commenced the action decision in respect of which brought about the instant appeal.

At the court, Bayelsa State High Court, the claimants sought answers to the following questions:

“1. WHETHER the first defendants is not under a legal obligation by the combined provisions of Articles 13.1(c) and 13.22 of the Constitution of the Peoples Democratic Party 2009 (as Amended) and all other provisions of the said constitution to screen the claimants as the lawfully nominated candidates of the People Democratic Party for Sagbama, Kolokuma/Opokuma, Ogbia, Ekeremor and Yenagoa Local Government Areas respectively of Bayelsa State in respect of the forthcoming Local Government Elections in Bayelsa State stated for the 3rd of April, 2010, having been presented to it by the 9th defendants.

2. WHETHER by the provisions of Article 13.22 and Article 13.1 and all other provisions of the Constitution of the Peoples Democratic Party 2009 (as amended), the 9th defendant, as against the 8th defendant, is not the one legally empowered to issue certificates of Return and present the names of the validly nominated candidates of the Peoples Democratic Party for Sagbama, Kolokuma/Opokuma, Ogbia, Ekeremor and Yenagoa Local Government Areas respectively of Bayelsa State to the 1st defendant for screening in respect of the forth coming Local Government elections in Bayelsa State for 3rd April, 2010.
3. Whether by the provisions of Article 13.1 and all other provisions of the Constitution of the Peoples Democratic Party 2009 (as amended), the 8th defendant is legally empowered to overturn certificates of Return already issued by the 9th defendant to the plaintiffs by issuing subsequent certificates of Return to the 2nd – 6th defendants.”

In the event of the court’s answers to the foregoing questions turning out in their favour, the appellants prayed the court the following eleven reliefs:

“1. A declaration that the 1st defendant is under a legal obligation by the combined provision of Articles 13.1(c) and 13.22 of the constitution of the Peoples Democratic Party 2009 (as amended) to screen the claimants as the lawfully nominated candidates of the Peoples Democratic Party for Sagbama, Kolokuma/Opokuma, Ogbia, Ekeremor and Yenegoa Local Government Areas respectively of Bayelsa State in respect of the forthcoming Local Government elections in Bayelsa State for 3rd of April, 2010.

2. A declaration that the purported screening of the 2nd to 6th defendants as chairmanship candidates of the Peoples Democratic Party by the 1st defendant is illegal, null and void.
3. A DECLARATION that by provisions of Article 13.22 and Article 13.1 and all other provision of the constitution of the Peoples Democratic Party 2009 (as amended), the 9th defendant as against the 8th defendant, is the one legally empowered to issue Certificates of Return and present the names of the validly nominated candidates of the Peoples Democratic Party for Sagbama, Kolokuma/Opokuma, Ogbia, Ekeremor and Yenegoa Local Government elections in Bayelsa State slated for 3rd of April, 2010.
4. A DECLARATION that by provisions of Article 13.22 and Article 13.1 and all other provision of the constitution of the Peoples Democratic Party 2009 (as amended), the 8th defendant is not legally empowered to overturn Certificates of Return already issued by the 9th defendant to the plaintiffs by issuing subsequent certificates of Return to the 2nd – 6th defendants.
5. An order setting aside the certificates signed and issued to the 2nd to 6th defendants by the 8th defendant herein in his capacity as Secretary of the state executive committee of the Peoples Democratic Party in Bayelsa State for same was a nullity and ultra vires.
6. An order setting aside the screening exercise carried out by the 1st defendant between the 16th and 18th of December, 2009 on the 2nd – 6th defendants among others as Peoples Democratic Party flag bearers or nominees for Sogbama, Kolokuma/Opokuma, Ogbia, Ekeremor and Yenegoa Local Government Areas respectively of Bayelsa State in the forthcoming elections as same was in exercise in futility.
7. An order of perpetual injunction restraining the 2nd to 6th defendants either by themselves and/or through their agents, privies and or servants jointly and/or severally from parading themselves as P.D.P chairmanship candidates for the forthcoming Local Election in Bayelsa State in Sagbama, Kolokuma/Opokuma, Ogbia, Ekeremor and Yenegoa Local Government Areas respectively of Bayelsa State.
8. An order of perpetual injunction restraining the 1st defendant from according recognition to the 2nd to 6th defendants as chairmanship candidates duly returned by the Adhoc electoral panel of the Peoples democratic Party for Sagbama, Kolokuma/Opokuma, Ogbia, Ekeremor and Yenegoa Local Government Areas respectively of Bayelsa State to contest the forthcoming Local Government election on the platform of the P.D.P
9. An order of perpetual injunction restraining the 1st defendant from organizing, supervising and/or conducting any Local Government election(s) in Bayelsa State in respect of the forthcoming Local Government Elections slated for 3rd of April, 2010 without the inclusion of the Plaintiffs as the validly nominated candidates of the Peoples Democratic Party.
10. An order compelling the 1st defendant herein to accept the screen the plaintiffs as the validly nominated chairmanship candidates, duly returned by the Adhoc Electoral Panel of the Peoples Democratic Party for Sagbama, Kolokuma/Opokuma, Ogbia, Ekeremor and Yenegoa Local Government Areas respectively in Bayelsa State.
11. Such further order or other orders as this Honourable court may deem fit to make in the circumstances of the case.”

The 1st to the 6th respondents in opposition to the action filed their respective counter affidavits. They also raised preliminary objections against the suit on similar grounds. The grounds are:

“1. That the subject matter of this suit is an intra-party dispute in so far as the fulcrum of this suit is to determine who are the validly nominated candidates of the P.D.P for the council elections of 3/4/2010.

2. That the plaintiffs being members of the Peoples Democratic Party have not brought this suit in compliance with Art 21.1 of the P.D.P Constitution providing for the process of internally resolving remedies before coming to invoke the jurisdiction of this court.
3. That by virtue of the P.D.P Constitution (as amended) it is within the preserve of the National Executive Committee of the P.D.P. under Article 17.1 of the said constitution to resolve any dispute as to the authentic candidates of the P.D.P. in any election, including chairmanship candidates of the Bayelsa State branch.
4. That this action ought not to have been commenced by originating summons having regards to the substantial dispute on fact that are likely to arise from the depositions in the various affidavits.”

The lower court relied on this court’s decisions in Nigerian Civil Service Union v. Essiem (1985) 3 NWLR (Pt. 12) 306 at 315 and the Supreme Courts’ decisions in Onuaha v. Okafor (1983) NSCC 494 at 505 and Dalhatu v. Turaki (2003) 15 NWLR (Pt. 843) 310 at 347 in upholding 1st – 6th respondents preliminary objections and striking out appellants, suit.

Dissatisfied by the decision, the claimants have appealed to this court on an amended Notice containing two grounds.

It is significant to note at this point that originally there were five appellants. The names of Beneth Igbani and Prince Okolobaowei A. Seimokumo, following an application in that regard and this court’s order granting same, have been struck out. The appeal as constituted remains that of Chief Koko Gariga, Chief Ineye Ingbaifegha and Selekebina Sabor the P.D.P chairmanship nominees for Sagbama, Kolokuma/Opokuma and Ekeremor Local Government Councils respectively.

Parties have filed and exchanged their briefs of argument in compliance with the rules of the court. The two issues distilled in the appellants’ brief as having arisen for the determination of the appeal read: