Hon. Juliet A. Gita & Ors V. Ayo Olueifye & Ors (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

PAUL ADAMU GALINJE, J.C.A (Delivering the Leading Judgment)

The Appellants herein contested the councillorship primary election conducted by the Peoples Democratic Party for the April 3rd, 2010 Local Government Election for all the wards in Ekeremor Local Government Area of Bayelsa State.

According to them, they were duly nominated and were accordingly issued with certificates of return by the state’s chairman of peoples Democratic Party and thereafter their names were sent to the Bayelsa State Independent Election Commission as candidates at the election.

However, without any reason, their names were substituted with those of the 1st -12th Respondents for the April 3rd 2010 Election. They are dissatisfied with the substitution. Being dissatisfied they challenged their substitution at the Bayelsa State High Court by an amended originating summons filed on the 7th of May 2010. Their action failed and was so dismissed on the 23rd of December 2010.

They again are dissatisfied with the decision of the lower court and have therefore brought this appeal. Their notice of appeal dated 19th January 2011 and filed on the 20th of January 2011 contains four grounds of appeal which I reproduce hereunder without their particulars:-

“a. The lower court erred in law when it refused to declare that the claimants/Appellants are the bona fide candidates for the April, 3rd 2010 Local Government Election in Ekeremor Local Government Area of Bayelsa State.

b. The lower court erred when it held that section 34 of the Electoral Act 2006 is not applicable to Local Government Election in Nigeria.

c. The lower court erred when it defines Area council” to mean ” Areb council as it relates exclusively to the Federal Capital Territory Abuja and sets out its six Area councils of Abaji, Abuja municipal, Bwari, Gwagwalada, Kule [sic kuje] and kwali.

d. The lower court erred in law when it denied the claimant/Appellant fair hearing.”

From these grounds of appeal, the appellants distilled three issues for determination of this appeal.

These issues as set out at paragraph 3. 1 of the Appellants Amended brief of argument dated and filed on the 26th October 2011 read as follows:-

“i. whether the learned trial judge was right to have raised the issue of the applicability of section 34 of the Electoral Act 2006 suo motu without allowing parties to be heard on same, and before relying heavily on same to enter judgment against the Appellants?.

ii. whether the lower court did not deny the appellants fair hearing in the course of the proceedings at the lower court when the Appellants were not given and opportunity to be heard on the applicability of section 34 of the Electoral Act before the court raised and consider [sic considered] same as the basis for the dismissal of the Appellants, case?

iii. whether the 2nd set of Respondents were right to have substituted the appellants with the 1st set of Respondent as the duly nominated councillorship candidate [sic candidates] of the peoples Democratic party for the April, 3rd 2010 Local Government Elections for all the wards in Ekeremor Local Government Area of Bayelsa State?”