Chibuzo Ukaibe takes a look at the intricacies that may play out as Supreme Court delivers its judgement on who is the legally recognised person between Barrister Bassey Dan-Abia and Honourable Eseme Eyibo, to represent Eket/ Esit Eket/ Ibeno/Onna Federal Constituency in the House of Representatives.
Once again, the legal battle to determine between Barrister Bassey Dan-Abia, the declared winner on the April 2011 election? for Eket/ Esit Eket/ Ibeno/Onna Federal Constituency under the platform? of the? Peoples Democratic Party (PDP) and Honourable Eseme Eyibo who was declared winner in the position by the? orders of an Abuja Federal High Court will continue but this time around the country’s apex court the Supreme Court will put finality to the legal battle that has taken time and resources of? parties? come? July 6, 2012.
The Court of Appeal, Abuja Division had in its judgement in the appeal brought by Dan-Abia challenging the decision of the Federal High Court,? Abuja,? ordered that Hon Eyibo should? immediately vacate the seat as it held that he is an illegal occupant of the seat in the House of Representatives.
The Court had on January 27th in a unanimous judgement read by Justice Ejembi Eko, ordered the leadership of the House of Representatives to immediately swear-in Dan Bassey Abia as the candidate of the PDP representing Eket Federal Constituency in Akwa Ibom State.
The Appellate Court also held that the present occupant of the seat,? Eseme Eyibo, having sneaked into the House illegally should immediately vacate the seat for the winner of the election.
According to Justice Eko “the 1st respondent [Eseme Eyibo] by his own showing has not proved that his purported nomination as the candidate of the PDP complied with the mandatory provisions of the PDP Electoral guidelines because no electoral panel attended the venue where his supporters assembled to pass a resolution that he? be affirmation and that he was accepted by the PDP as a consensus candidate for the Eket/Ibeno/Esit/Onna Federal Constituency the mandatory result sheet form code was not filled and none was shown. The Electoral guideline is very clear no result shall be upheld as valid until it has been entered in the appropriate Form PD004/NA designated for it.”
Justice Eko pointed out that “the appellant was not only relying on his victory at the Uyo township stadium conducted on January 29th? 2011 he insisted on the earlier primaries conducted on January 7th and 8th 2011 and posited further that he attended the Uyo exercise of January 28th and 29th 2011 under protest. Unfortunately the trail court did not bother to consider the appellant’s evidence proving this assertion. A judgment delivered which did not or refused to consider the defence is a clear negation of the principle of fair hearing as contained in section 36[1] of the 1999 Constitution the judgment is perverse and totally a nullity. It cannot stand.
“For the avoidance of any doubt and in the case of the 1st respondent [Eyibo] would have on the authority of the orders in the suit no FHC/ABJ/CS/177/2011 made on June 1st 2011 sneaked into the hallowed chambers of the House of Representatives purporting to represent Eket/Ibeno/Esit/Onna Federal Constituency it is hereby ordered that the 1st respondent shall forthwith vacate the seat for the appellant [Dan Abia]. The suit is a mere artifice and unfortunately the trial court gave it a stamp of state action contrived or employed by the 1st respondent to undemocratically smuggle himself into the House of Representatives. True democrats should not adopt unwholesome tactics that undermine the democracy they themselves call nascent democracy. Democracy is not a do-or-die affair. Democrats should learn to respect the people,” he declared.
Reacting to the decision of Justice Kafarati of the Federal High Court Justice Eko had this to say “the learned trial judge had at pages 465-466 of the record found “since the failure of the PDP to arrive at Eket for the primaries as communicated to the parties was not due to the fault of the plaintiff [Eyibo] or the delegates present, the justice of it demands that the plaintiff be returned as the candidate of the PDP for Eket Federal Constituency” just like that?.
Justice Eko maintained that “ it is on this perverse and/or outrageous reasoning that he granted the 1st respondent’s prayer by directing INEC to insert the name of the 1st respondent Hon. Eseme Eyibo as the PDP candidate for Eket/Ibeno/Onna Federal Constituency and further directed that the 1strespondent is to take the place of the appellant [Dan Abia]. There is no legal justification for these orders. The 1st respondent did not prove that he won any primary election conducted by the PDP in pursuance of the Electoral Act, the PDP Constitution and the PDP electoral guidelines that would entitle him to become the candidate or that he was the candidate sponsored by the PDP in the April 2011 election.
It would be recalled that Eyibo had dragged INEC, PDP and Abia to the Federal High Court in Abuja challenging the primaries that returned Abia as the party’s candidate on the grounds that it was held outside the headquarters of the Federal Constituency. They were cited in the suit as the 1st 2nd and 3rd defendants respectively.
The court presided over by Justice Abdul Kafarati had on June 1st in his judgment held that “the primaries purportedly held at the Uyo Township Stadium on the 28th and 29thof January at which Mr. Dan Abia was purportedly elected as the candidate of the Peoples Democratic Party for election to office as member representing Eket/Ibeno/Esit/Onna Federal Constituency for the 2011 general elections is hereby set aside.
“That the purported sponsorship of Mr Dan Abia as the candidate of the Peoples Democratic Party for election as member of the House of Representatives representing Eket/Ibeno/Esit/Onna Federal Constituency for the 2011 general election is hereby set aside,” he added.
However, not satisfied with the decision of the court, Abia through his counsel led by Prince Lateef Fagbemi, SAN had on June 2,? filed a notice of appeal at the Court of Appeal Abuja Division, challenging the whole decision of the lower court on the grounds that the trial judge erred in law when he set aside the primary election won by the appellant on the ground that the primary election conducted by the PDP on January 29 at Uyo Akwa-Ibom State, contravened the provisions of Section 87 [4] of the Electoral Act 2010.
Fagbemi averred that the said primary was by way of direct primaries procedure as provided for by Section 87[3] of the Electoral and not through the indirect system as provided for section 87[4] of the Electoral Act.
He further argued that section 87[3] of the Electoral Act does not make it mandatory for primary elections to be held within a Federal Constituency pointing out that “this misapplication of the Electoral Act by the trial judge occasioned a miscarriage of justice against the appellant.
The Senior Advocate of Nigeria also challenged the decision of the lower court on the grounds that the trial judge erred in law when he ordered that Eyibo be returned as the winner of the said election.
According to him “the 1st respondent (Eyibo) filed his suit before the conduct of the general elections into the Eket Federal Constituency and there was no relief sought by him that he be so returned as the winner of the said general elections conducted on the 9thof April into the Eket Federal Constituency by INEC.
The Supreme Court has in many recent cases established the fact it is only a political party that has the exclusive right to sponsor a candidate in an election.
In a recent judgment on the appeal brought by the former Governor of Bayelsa State Timipre Sylva challenging his exclusion from the PDP’s governorship primaries the apex court held that it is the exclusive preserve of a political party to decide who its flag bearer in an election should be.
Specifically the apex court had on? April 20, 2012 dismissed the appeal of Silva who sought to be declared the authentic candidate of the PDP for the Bayelsa State governorship elections on the grounds that he won the January 2011 primaries before the tenure elongation which was later voided by the same Supreme Court.
But the Supreme Court among other things held that the January primaries won by Sylva in preparation for the election of April 2011 had faded into irrelevance following the cancellation of that election by INEC.
Besides the Supreme Court held that having purchased the nomination form for the rescheduled primaries Sylva had participated in the exercise and therefore abandoned his right to lay claims to the January primaries.
Also the court declared that the right to field a candidate resides exclusively with the Party.
The apex court in the unanimous judgement held that it was within the exclusive preserve of a political party to choose its candidates for election.
And that the decision of the PDP not to use the primary won by Sylva in 2011 for the 2012 governorship election in Bayelsa which was won by?? Dickson was right.
In the lead? judgement written by Bode Rhodes-Vivour, the court held that the Federal High Court which summoned PDP to come and show cause why the primary that produced Seriake? Dickson should not be stopped had no jurisdiction to hear the suit.
The Supreme Court consequently struck out that suit saying that even the lower court did not have the jurisdiction to hear the case in the first place.
In the judgment, the Supreme Court cleared the air once and for all on the powers of political parties to exempt members from taking part in their primaries.
In the words of Justice Rhodes-Vivour “the right to nominate or sponsor a candidate by a political party is a domestic right of the party. A member of the party has no legal right to be nominated/sponsored. A court thus has no jurisdiction to determine who a political party should sponsor. Nomination or sponsorship of a candidate for election is a political matter solely within the jurisdiction of the party, and this is so because the sponsorship or nomination of a candidate is a pre- primary election affair of the party. The PDP has the right to bar Sylva, or any of its members from contesting its primaries if it so desires.”
The court further held that only those who took part in the primaries could challenge the conduct and that Sylva having not taken part could not challenge the last primaries.
This decision was further reaffirmed in its recent judgment in the case of Ikechi Emenike and the Governor Theodore Orji of Abia State on May 25th 2012.
According to Justice Christopher Chukwuma Eneh in his concurrent judgment, “it is not the business of the court to choose candidates for political parties, politicians should stop burdening the courts with the internal affairs of their parties.”
As the apex court delivers judgment in the matter it would establish if a candidate who was not sponsored by a political party in an election could validly be said to be the candidate of that party. It will also decide on whether Eyibo who did not stand the April election could be said to be the winner of the said poll having claimed that after waiting for the officials of the party at the Eket Stadium, he was affirmed by the delegates.
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