The Court of Appeal sitting in Abuja on Monday adjourned indefinitely, to deliver its judgement in the appeal filed by the Peoples Democratic Party (PDP) against an ex parte decision of the Federal High Court in Abuja which warned the party of the consequence of going ahead with the November 19, 2011 governorship primaries in Bayelsa State, in view of the subsisting suit initiated by Governor Timipre Sylva on the subject matter.
Justice Zainab Bukachuwa who led other two justices of the appellate court while adjourning, said all parties will be notified of the date to deliver their judgement on the matter.?
Adopting his brief of argument and reply brief on points of law, PDP’s counsel, Tayo Oyetibo (SAN) submitted that Sylva should not have filed the action in Abuja because the claims were against the PDP and not the Independent National electoral Commission (INEC).
Oyetibo said the case should have been filed in Bayelsa, as he argued that the Federal High Court lacked the requisite jurisdiction to entertain the case.
He also contended that Section 87(9) of the Electoral Act 2010 which the plaintiff relied on to bring the action may have conferred on him a right of action, but did not confer jurisdiction on the instant court.
According to him, the section does not confer jurisdiction but confers the right of action to a litigant.
In his response, Prince Lateef Fagbemi (SAN) submitted that the jurisdiction of the court was obvious in the face of the court processes. He pointed out that the reliefs sought by his clients were against all defendants, including the Independent National Electoral Commission (INEC) and PDP.
He meanwhile wondered why the appellant who did not make an issue of jurisdiction at the trial court would make a heavy weather of it now at the appellate court. “It is not correct to say there is no relief against INEC,” Fagbemi submitted. He told the court that both INEC and the PDP have their headquarters in Abuja and therefore the Federal High Court has the jurisdiction to hear the case.
Fagbemi also submitted 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 submitted further that it is only an elementary principle that the provisions of the constitution are superior to the provisions of any other statute. He there argued that while 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 by the constitution.???????????????????
He therefore asked the court to dismiss the appeal and remit the case to the High Court with a plea that the case be heard expeditiously. On the insinuation of bias made by INEC, Fagbemi said the trial Judge, Mr. Judge Gabriel Kolawole issued a warning in line with exhortation of the Supreme Court in several decisions such as in Ojukwu Vs Governor of Lagos and Inakoju Vs Adeleke, where they held that all parties must stay action once a matter is in court. He said Mr. Judge Kolawole’s ruling was a reminder of the principle which protects the res (subject matter) and the authority of a court to do justice to a matter and forecloses parties resorting to self help.????????????
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Consequently, Justice Bulkachuwa adjourned indefinitely for judgment. Before reserving the appeal for judgment, the court had earlier 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.
Justice Bulkachuwa after setting aside the court’s earlier decision that the court has the power to hear the appeal, invited counsels to the parties to address the court on the implication of section 241 (2) (a) of the constitution.
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