MICHAEL OGBOLOSINGHA & ANOR v. BAYELSA STATE INDEPENDENT ELECTORAL COMMISSION & ORS

CORAM

PARTIES

MICHAEL OGBOLOSINGHASAMUEL BOY APPELLANTS

 BAYELSA STATE INDEPENDENT ELECTORAL COMMISSION & ORS

RESPONDENTS 

AREA(S) OF LAW

SUMMARY OF FACTS

The 2nd, 3rd, 7th, and 9thClaimants /Respondents filed a suit by way of originating summons at the Bayelsa State High Court wherein they sought to assert their respective rights to be nominated as candidates of the People Democratic Party of their respective Local Government Area for the Local Government election scheduled for 3rd April, 2010. T he Defendants/Appellants raised a preliminary objection which was determined along with the originating summons. The trial court in its ruling struck out the suit for lack of jurisdiction. Dissatisfied with the ruling of the trial court, the 7th, 8th and 9thClaimants/Respondents appealed to the Court of Appeal while the 2nd and 3rd Claimants/Respondents did not pursue the appeal expeditiously. In its judgment the Court of Appeal resolved the appeal in favour of the 7th, 8th, and 9th Claimants/Respondents and granted the reliefs sought by them at the trial court. The Defendants at the trial court appealed to this court which appeal was dismissed, and the court upheld the judgment of the lower court. The 2nd and 3rd Respondents herein who did not pursue the appeals could not enforce the judgment in their favour and they consequently returned to the Court of Appeal which simply abided by its previous decision and that of the Supreme Court reported as Peretu v. Gariga (supra), hence this appeal at the instance of the Appellants and a cross appeal by the Cross Appellants.

HELD

Appeal allowed, Cross appeal dismissed

ISSUES

1. Whether this court can overrule itself in this appeal sequel to the decision in SC. 127/2012; Perutu V. Gariga (2013) 3 NWLR (Pt. 1348) page 415 – 443?

2.Whether the lower court rightly exercised jurisdiction to determine the merits of the substantive Originating Summons proceedings and made findings and consequential orders in respect thereof?

3. Whether the parties were given equal opportunity to be heard in the determination of their case Cross-Appeal – Whether in view of the provisions of Section 27(3)(a) of the Local Government Law Cap L10 Laws of Bayelsa State 2006 the tenure of office of the Cross-Appellants will only take effect from the day the oath of office and oath of allegiance is administered on them?

RATIONES DECIDENDI

APPLICATION OF THE PRINCIPLES OF ESTOPPEL PER REM JUDICATAM – REQUIREMENTS A PARTY MUST ESTABLISH FOR A PLEA OF ESTOPPEL PER REM JUDICATAM TO SUCCEED

“The law is trite in laying down the fundamental condition precedent to the application of the principles of estoppel and or res judicata wherein the parties and the subject matter of the previous proceedings must be the same with the present under consideration.Judicial authorities have enunciated the principles which are well pronounced in the case of Makun V. F.U.T. Minna (supra) wherein this court re-iterated that, for a plea of estoppel per rem judicatam to succeed, the party relying thereon must establish the following requirements or pre-conditions namely:-
(a) That the parties or their privies are the same in both the previous and the present proceeding.
(b)That the claim or issues in dispute in both actions are the same.
(c)That the res or the subject matter of litigation in the two cases is the same.
(d)That the decision relied upon to support the plea of estoppel per rem judicatamis valid, subsisting and final.
(e)That the court that gave the previous decision relied upon to sustain the plea is a court of competent jurisdiction.
It has also been held severally by this court that, unless all the above Constitutional elements or requirements of the doctrine are fully established, the plea of estoppel per rem judicatamcannot sustain. See also the decisions in Yoye V. Olalode(1974) 10 SC 209; Alase V.Olori- ilu (1965) NMLR 66;Fadiora V. Gbadebo (1978) 3SC 219 and Udo V. Obot (1989) 1 SC(Pt. 1) 64.”

PLEA OF RES JUDICATA – A PLEA OF RES JUDICATA OPERATES NOT ONLY AGAINST THE PARTIES BUT ALSO THE COURT ITSELF

“The plea of res judicata is of a special nature as it operates not only against the parties but also the court itself and robs it of its jurisdiction to entertain the same cause of action on the same issues previously determined between the same parties by a court of competent jurisdiction.”

OBITER DICTUM – AN OPINION OF A COURT UPON WHICH NO ISSUE HAD BEEN JOINED BY THE PARTIES AMOUNTS TO OBITER DICTUM

“An opinion of a court upon which no issue had been joined by the parties amounts to obiter dictum and cannot therefore constitute a ground of appeal. See Bamgboye V.University of llorin (1999) 10 NWLR (Pt. 622) 290”.

RATIO DECIDENDI AND OBITER DICTUM – MEANING OF RATIO DECIDENDI AND OBITER DICTUM

“However, a Ratio decidendi according to the Black’s Law Dictionary simply means;
“Reason for deciding.”The principle or rule of law on which the court’s decision is founded.” It could also mean the rule of law on which a later courtthinks that a previous court’s judgment is founded.”
The same Black’s Law Dictionary also defines Obiter Dictum as,
“something said in passing.”

RELIEF – WHERE THERE IS A WRONG, THERE MUST BE A REMEDY

“Where there is a wrong, there must be a remedy.

ELECTION – IT IS A POLITICAL PARTY THAT CONTESTS AND WINS ELECTIONS -SECTION 56(L)(A) OF THE LOCAL GOVERNMENT LAW, BAYELSA STATE

“It is a political party that contests and wins elections; the implication is, a candidate cannot be qualified to assume an elective office unless he has been sponsored by a party that won the election”.

TENURE OF OFFICE – WHETHER A POLITICAL PARTY CAN ELONGATE THE TENURE OF OFFICE FOR ITS CANDIDATE

“No political party can, by, any stretch of imagination, ingenuity of action, as the one now taken by the cross appellants, who are members of the same political party, can be made to have an elongated tenure of office for its candidates, that is longer than that prescribed by law i.e a term of three years”.

OATH OF OFFICE AND OATH OF ALLEGIANCE – FUNCTIONS OF THE OATH OF OFFICE AND OATH OF ALLEGIANCE

“The subscription of oath of office and oath of Allegiance has dual functions:- While it could be used for purpose of computing the tenure of office, it is also used for the purpose of entering into the office.

TERM OF OFFICE – WHETHER A CANDIDATE OF A POLITICAL PARTY CAN ACQUIRE A TERM OF OFFICE MORE THAN THAT WON BY HIS POLITICAL PARTY

“A candidate of a political party cannot acquire a term of office more than that won by his political party, as a result of winning the election.

COMMENCEMENT OF TENURE OF OFFICE – TENURE OF OFFICE DOES NOT ABATE AND STARTS AFRESH FROM THE SUBSEQUENT DATE THE LAWFUL CANDIDATE OF THE PARTY SUBSCRIBES TO THE OATH OF OFFICE

“It begins to run from the very moment the candidate of the political party that won the election subscribes to the oath of office after the party had been returned along with that particular candidate. If the candidate so declared along with the party turns out not to be the party’s lawful candidate, the term of office relevant to the election does not abate and starts afresh from the subsequent date the lawful candidate of the very party subscribes to the oath of office. Tenure commences on the date the earlier unlawful occupant of that office subscribed to his oath and comes to an end three years thereafter. See Amaechi v. INEC (2008) 1 SC (pt 1) 36”.

TENURE OF OFFICE – NO COURT CAN EXTEND THE TENURE OF OFFICE AS PRESCRIBED IN SECTION 27(3)(A) OF THE LOCAL GOVERNMENT LAW.

“The law remains, as held in Ladoja v. INEC (2007) 12 NWLR (pt 1047) 119,that the cross-appellants are only entitled to the unexpired term of the three year tenure provided by Section27(3)(a) of the Local Government Law. No court can extend this term. Not even this Court! See Marwa v. Nyako (2012) 6 NWLR (pt 1296) 356 and Obi v. INEC (2007) 11 NWLR (pt 1046) 644.”

CASES CITED

STATUTES REFERRED TO

Constitution of the Federal Republic of Nigeria 1999 (as amended)

Local Government Law, Cap L10, Laws of Bayelsa State, 2006

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