TIMIPRE SYLVA VS INDEPENDENT NATIONAL ELECTORAL COMMISSION

CORAM

PARTIES

TIMIPRE SYLVA APPELLANTS

INDEPENDENT NATIONAL ELECTORAL COMMISSIONPEOPLES DEMOCRATIC PARTYGOV. HENRY SERIAKE DICKSON RESPONDENTS

AREA(S) OF LAW

SUMMARY OF FACTS

The Appellant won the primary election under the platform of the Peoples Democratic Party the (2nd Respondent) to contest the general gubernatorial election of Bayelsa State that was scheduled in 2011 but before the said general election was conducted, the Appellant filed an action at the Federal High Court contesting that his tenure in office will expire in 2012 and not in 2011. The Federal High Court (whose judgment was affirmed by the Appellate Court) directed the 1st Respondent (INEC) to conduct the said election in 2012 in consequence of which the 1st Respondent cancelled the said election and rescheduled another general election in 2012. The 2nd Respondent conducted another gubernatorial primary election which the Appellant did not participate therein because he was screened off by the screening committee of the 2nd Respondent in consequence of which the 3rd Respondent emerged as the winner of the said primary and eventually won the general gubernatorial elections of Bayelsa in 2012. Aggrieved by the above development, the Appellant filed another suit No. FHC/ABJ/CS/93/2011 which gave rise to appeals Nos. SC.9/2012 and SC.28/2012 in which the Supreme Court held in the judgment delivered on the 20th April, 2012 that the election for which the Appellant was nominated for by the 2nd Respondent was cancelled by the 2nd Respondent and that the Appellant lacked the locus standi to challenge the result of the primary election of the 1st Respondent for the 2012 general elections. After the above Supreme Court’s decisions, the Appellant instituted an originating summons against the Respondents severally and jointly at the Federal High Court of Yenagoa, seeking a declaration that he was the only valid and authentic Gubernatorial candidate of the 2nd Respondent for the Bayelsa State primary election and that he should be returned as the winner of the general gubernatorial election of Bayelsa State other than the 3rd Respondent since it is the party that wins election and not a candidate. He sought in the alternative, an order of the trial Court directing the 1st Respondent to conduct a fresh gubernatorial election in Bayelsa State with the Plaintiff as the candidate of the 2nd Respondent (PDP). The 1st, 2nd and 3rd Respondents filed a notice of preliminary objection challenging the jurisdiction of the trial Court to adjudicate on the matter because the said suit was caught up with the Public Officers Protection Act and the doctrine of estoppel per rem judicatam in addition to the fact that the Appellant lacked the locus standi to institute the said suit. The trial Court upheld the notice of preliminary objection and struck out the Appellant’s case. Dissatisfied with the rulings of the trial Court, the Appellant appealed to the Court of Appeal where the Appellate Court dismissed his appeal thus culminating into a further appeal to the Supreme Court.

HELD

Appeal Dismissed.

ISSUES

Whether the lower Court was right when it held that the defence of limitation of action under the Public Officers Protection Act could be validly raised by the 3rd Respondent. (Distilled from ground 1 of the Notice of Appeal). Whether the lower Court having regard to the decision of the Supreme Court in Sc/28/2012 and SC/9/2012 the appellant did not have the requisite locus standi to institute the case which is also caught by the doctrine Locus Standi. (Distilled from grounds 2 and 3 of the Notice of Appeal).”

RATIONES DECIDENDI

ISSUE FOR DETERMINATION – AN ISSUE FOR DETERMINATION MUST BE A PROPOSITION OF LAW OR OF FACT OR BOTH

“An issue for determination must be a proposition of law or of fact or both. See Nteogwuiji & Anor v. Ikwu(1998) 11 NWLR (Pt. 569) 267 at 288, Ugo v. Obiekwe (1989) 1 NWLR (Pt. 99) 566, Dantata v. Mohammed (2000) 78 LRCN 1422 at 1460”.

FORMULATION OF ISSUES FOR DETERMINATION – THE MAIN PURPOSE OF FORMULATION OF ISSUES FOR DETERMINATION IS TO ENABLE PARTIES NARROW THE ISSUES IN CONTROVERSY IN THE GROUND OF APPEAL

“The main purpose of formulation of issues for determination is to enable the parties to narrow the issues in controversy in the grounds of appeal in the interest of accuracy, clarity and brevity. See Sha v. Kwan (7000) 78 LRCN 1645 at 1665 at 1666, Ogbu Inyinya & ors v. Obi Akudo & ors (1990) 4 NWLR (Pt. 146) 551 at 568”.

ISSUE FOR DETERMINATION – ISSUE FOR DETERMINATION IN AN APPEAL MUST BE A CONCISE STATEMENT OF LAW OR FACTS

“It follows that an issue for determination in an appeal must be a concise statement of law or facts. It should not contain a conjecture or opinion”.

PUBLIC OFFICERS PROTECTION ACT – A SUCCESSFUL DEFENCE UNDER THE PUBLIC OFFICERS PROTECTION ACT OUSTS THE JURISDICTION OF THE COURT – CONDITION PRECEDENT FOR A COURT TO EXERCISE JURISDICTION IN A CASE

“A successful defence under this Act oust the jurisdiction of the Court. One of the four conditions for the Court to exercise jurisdiction in a given case is that the suit must have been commenced by due process of law and upon fulfillment of any condition precedent to assumption of jurisdiction. See Madukolum v. Nkemdilim(1962) 2 SCNLR 341, Sken Consult v. Ukey (1981) 1 SC 6.”

EFFECT OF COMMENCING A SUIT AFTER THE EXPIRATION OF THE TIME STIPULATED IN THE ACT – A SUIT COMMENCED AFTER THE TIME STIPULATED IN THE ACT HAS NOT BEEN COMMENCED BY DUE PROCESS

“A suit commenced after the expiration of the time stipulated in the Act cannot be said to have been commenced by due process. Jurisdiction is the power which a Court has to hear and determine a cause or complaint made before it. See Ikine v. Edjerode (2001) (1988) 92 LRCN 3288 at 3316, Adeyemi v. Opeyori (1976) 9-10 SC 31”.

JURISDICTION – FUNDAMENTAL NATURE OF JURISDICTION

“Jurisdiction is a threshold issue and since it is a sina qua non to adjudication and proceedings taken without jurisdiction is a nullity, the issue could be raised at any stage by any party or by the Court suo motu to avoid an exercise in futility.”

ISSUE OF JURISDICTION – THERE IS NO SPECIAL FORMAT OF RAISING THE ISSUE OF JURISDICTION

“However, there is no special format of raising the issue of jurisdiction. See Akegbejo & ors v. Dr. D. O. Ataga &ors (1988) 1 NWLR (Pt. 534) 459 at page 469. It follows that the issue of jurisdiction cannot be defeated by any rule of Court. See Akegbejo & ors v. Dr. D. O. Ataga & ors (supra).”

RIGHT TO FAIR HEARING – WHERE A PERSON IS NOT ALLOWED TO RELY ON THE PROVISION OF AN ACT OF PARLIAMENT AS AN ANSWER TO THE CASE AGAINST HIM, HE HAS NOT BEEN GIVEN FAIR HEARING

“A person cannot be said to have been given a fair hearing if he is not allowed to rely on the provision of an Act of Parliament as an answer to the case against him. It is not necessary for the Act to confer a right of defence on anyone. The defence is encompassed in the provision relating to fair hearing in s.36 (1) of the Constitution (supra).”

LACK OF JURISDICTION – THE PROPER ORDER A COURT SHOULD MAKE WHERE IT HAS NO JURISDICTION TO DETERMINE A CASE IS ONE OF STRIKING OUT

“Generally, where the Court has no jurisdiction to hear and determine a case, it has no jurisdiction to dismiss it. It should strike out the matter. See Ulor v. Benson (2000) 9 NWLR (Pt. 673) 570, Dim v. A-G Federation (1986) 1 NWLR (Pt. 17) 471”.

LACK OF JURISDICTION – INSTANCE WHERE THE COURT WILL MAKE AN ORDER OF STRIKING OUT AND ONE OF DISMISSAL WHERE IT LACKS JURISDICTION

“The implication of a general rule or principle is that there are exceptions thereto. The issue of jurisdiction may arise from a matter that does not relate to the merit of the case. On the other hand, it may arise from the very essence of the claim. In the first case above, the Court has no jurisdiction to dismiss the case but will merely strike it out in limine and the appellant may re-litigate the matter by correcting the matter that gave rise to lack of jurisdiction. In this scenario, the order of striking out does not preclude the party from fresh litigation on the matter.
On the other hand, the Court has jurisdiction to determine whether or not it has jurisdiction in the matter. If the circumstances of the case are such that the Court, in exercising the jurisdiction to determine whether or not it has jurisdiction, delves into and determines the merit vel non of the case the order striking it out is as good as an order for dismissal, thereby precluding the plaintiff/applicant from re-litigating the matter.”

POWER OF COURT TO DETERMINE WHETHER IT HAS JURISDICTION – A COURT HAS JURISDICTION TO DETERMINE WHETHER OR NOT IT HAS JURISDICTION OVER A MATTER BEFORE IT

“The Court cannot, out of the blues, declare it has jurisdiction or no jurisdiction over a matter. As stated earlier in this judgment, any Court has jurisdiction to determine whether or not it has jurisdiction over a matter before it. See A-G Federation v. Guardian Newspapers Ltd (2001) FWLR (Pt. 32) page 97.”

BINDINGNESS OF THE DOCTRINE OF RES JUDICATA ON PARTIES AND COURT -THE DOCTRINE OF RES JUDICATA DOES NOT ONLY PREVENT THE PARTY FROM FILING THE SUIT BUT ALSO ROBS THE COURT OF JURISDICTION TO ENTERTAIN THE MATTER

“The doctrine of Res judicata applies not only against the appellant but also against the jurisdiction of the Court itself in the sense that appellant is stopped per rem judicatam from bringing the same case before the Court and the jurisdiction of the Court is ousted. See Lamidi Ladimeji & anor v. Suara Salami &ors (1998) 5 NWLR (Pt. 548) 1 SC ratio 3.”

PURPOSE OF RES JUDICATA – THE RATIONALE FOR RES JUDICATA IS GROUNDED IN PUBLIC POLICY WHICH DICTATES THAT THERE MUST BE END TO LITIGATION

“The law is that where a matter has been decided with finality by a court of competent jurisdiction between the same parties and/or their privies, there can be no further litigation upon the same subject matter by the same parties or privies. There should be a bar to relitigate on the already decided issues and matters. The rationale for this is grounded in public policy which dictates that there must be end to litigation. This proposition is well settled in the decision of this court in Aro V. Fabolude (1983) 1 SCNLR 58.”

LACK OF LOCUS STANDI ON A PARTY WHO DID NOT PARTICIPATE IN AN ELECTION – A PARTY WHO DID NOT PARTICIPATE IN AN ELECTION LACKS THE LOCUS STANDI TO CHALLENGE THE SAID ELECTION

“In so far as this court had decided that the appellant was not the candidate of the 2nd Respondent for the general election conducted on 12/2/2012 into the office of Governor of Bayelsa State, he lacks locus standi to seek in this suit a relief that he be declared as Governor of that state.”

CASES CITED

STATUTES REFERRED TO

Electoral Act, 2010 as amended|Public Officers Protection Act Cap P.4, Laws of the Federation 2004|Supreme Court Act|

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