By Tobi Soniyi

The Court of Appeal sitting in Abuja Monday reserved judgment in the appeal filed by the Peoples Democratic Party against an ex-parte ruling of a Federal High Court, Abuja, which technically stopped the party from going ahead with the November 19 governorship primaries in Bayelsa State.

Justice Zainab Bukachuwa, who presided, said the date the judgment would be delivered would be communicated to the lawyers.

Before reserving judgment, the court admitted that its decision to hear the appeal was hasty in view of Section 241 (2) (a) of the constitution which makes only the final decision of the high court appealable to the court of appeal.

After setting aside the court’s earlier decision that the court has the power to hear the appeal, Bulkachuwa invited counsel to the parties to address the court on the implication of section 241 (2) (a) of the constitution.

She said that the court came to the earlier decision because they had not studied the files properly and that after a comprehensive look at the case, it occurred to them that they should seek the views of the lawyers as regards the section of the constitution.

The said section provides: “An appeal shall lie from decisions of the Federal High Court or high court to the Court of Appeal as of right in the following cases - final decisions in any civil or criminal proceedings before the Federal High Court or a high court sitting as a court of first instance.”

But counsel to PDP, Mr. Tayo Oyetibo, SAN, said he was not prepared to address the court on whether it could hear the appeal or not because he only prepared to argue the appeal which was the business of the day. Prince Lateef Fagbemi, SAN, counsel to the Bayelsa State Governor, Timipre Sylva, urged the court to go ahead and hear the appeal since all counsel had prepared their minds for the hearing of the appeal.

After so much persuasion, the court agreed to hear the appeal. In adopting his brief of argument, Oyetibo adopted his appellant's briefs and his reply brief.

He said the case should not have been filed in Abuja because the claims were against the PDP and not the Independent National Electoral Commission (INEC).

In his view, the case ought to have been filed in Bayelsa. He therefore said that the federal high court did not have the jurisdiction to entertain the case.

He also argued that Section 87(9) of the Electoral Act 2010 relied on by the plaintiffs did not confer them with the right to file the case at the federal high court.

According to him, the section does not confer jurisdiction but confers the right of action to a litigant.
Responding, Fagbemi said that the reliefs sought by his clients were against both INEC and PDP.

He said:”It is not correct to say that there is no relief against INEC.”
He told the court that both INEC and the PDP had their headquarters in Abuja and therefore the federal high court had the jurisdiction to hear the case.

Fagbemi further argued that section 87 (10) of the Electoral Act which barred courts from stopping the holding of primaries was unconstitutional because it violated section 6(6)( C) of the constitution.

He argued that whereas the National Assembly could add more powers to the powers of the court, it could not take away the powers already conferred on the courts.

He asked the court to dismiss the appeal and remit the case back to the high court with a rider that the case be heard expeditiously.

Justice Gabriel Kolawole had in an order given PDP 72 hours to come and show cause why he should not grant Sylva’s prayers among which was to declare him the governorship candidate of the party.

The judge granted the order following an ex-parte application filed on Sylva’s behalf by Fagbemi.

The judge warned that he would not hesitate to nullify any step taken by the PDP in defiance of his order, once the defendants were served the order and the originating summons.

He gave the defendant 72 hours to show cause why all the reliefs sought by Sylva should not be granted and adjourned the matter till November 22 for hearing.

The defendants are the PDP, its acting national chairman, Abubakar Kawu Baraje, and the Independent National Electoral Commission (INEC).

The court held that the era when political parties manipulated processes leading to the emergence of candidates were over, based on the 2010 Electoral Act as amended.

Justice Kolawole said: “When I looked at the totality of the facts in the substantive Originating Summons and when these are considered vis-à-vis the extant provisions of the Electoral Act as amended, my view is that the Court will not in any way be handicapped, even if the ex-parte orders, in particular, prayers 1 – 3 are not granted because the court retains the power to direct the 1st Defendant (INEC)."

Justice Kolawole said in terms of political parties’ candidates who may have been unlawfully excluded either from the parties’ primaries or from the elections to accept and act on the name(s) of such candidates as the authentic candidates sanctioned and approved by the court.

“The new Electoral Act as Amended is a clear departure from the 1983 Act by which on the authority of the Supreme Court’s decision in Onuoha V. Okafor, the political parties were “god unto themselves” in terms of the choice of candidates. This court had intervened in quite a number of political parties’ cases when candidates were being manipulated by the leadership of the political parties.

“It is in this regard that I really do not see the plaintiff being exposed in the long run to such injury, loss or damage that may, applying the Supreme Court’s decision in Kotoye V. CBN, supra be described as ‘irreparable or irretrievable’. Whatever be the case, I have no doubt that this court has the judicial powers to make appropriate orders as the justice of the case will require.

“Let me state, for the avoidance of doubt, that in relation to prayers 1 – 3 of the Motion Exparte, the Plaintiff has made out a strong case which ordinarily should enable this court to grant the said prayers. But in the light of the analysis I have done as regards the statutory powers which the court has pursuant to Electoral Act, 2010 as amended, the 2nd Defendant [PDP] does not, in the long run, have the final say because the court can always make appropriate orders as the justice of the case will require to redress any wrong that may be occasioned by my judicial hesitation in granting the said prayers 1-3 on the motion exparte.”

Sylva, who is seeking re-election, had been excluded from the primary by the party. He is bitter that the party is planning to dump him after winning the January 12 primary before the Independent National Electoral Commission (INEC) postponed the governorship election.

The INEC action was based on an order of an Abuja High Court which declared that the tenure of five governors continue beyond May 29 because they won re-run elections. The verdict was upheld by the Court of Appeal, Abuja.

The governor is contending that his candidacy subsists as nobody petitioned against his success at the said primary election to the screening appeal panel or any other body or committee of the 2nd defendant.

In the motion on notice, Sylva is, among others praying the court for “an order of interim injunction restraining the defendants, their agents, servants, privies, officers or otherwise and/or any other person howsoever described from conducting, organising, or holding any meeting or ward congress and from embarking on any activities leading to the holding of any fresh gubernatorial primary election for Bayelsa State on the 19th November, 2011 or on any other day, pending the determination of the substantive suit.

Besides, he urged the court to stop the party from nominating another candidate for the election and accelerate the hearing of the substantive suit.