BENETH IGBANI & ANOR v. BAYELSA STATE INDEPENDENT ELECTORAL COMMISSION & ORS
(2013)LCN/6023(CA)
In The Court of Appeal of Nigeria
On Friday, the 15th day of March, 2013
CA/PH/304/2011
RATIO
“The 1999 Constitution of the Federal Republic of Nigeria, the section 287 creates room for this Court to enforce decisions of the Supreme Court. In addition to this, the doctrine of stare decisis makes it apposite for this Court to be bound by the decision of this Court and the Supreme Court on all issues.” Per ADAH, J.C.A.
“Estoppel as a principle of law has been well applied in numerous cases before our Courts. In the case of Bwacha v. Danlami & ors (2001) 3 NWLR 610, Adekeye JSC held: “The law reports are saturated with numerous decisions of this Court on the subject matter of issue estoppels. The condition precedent to application of issue estoppels is based on the principle of law that a party is precluded from contending the contrary of any specific point which having been once distinctly put in issue has with certainty been determined against him. In the case of Ikeni v. Efamo (2001) 10 NWLR (Pt.720) page 1, the Supreme Court enumerated the elements necessary for determining whether issue estoppels is applicable as:- (a) Whether the parties in the previous proceedings and the current proceedings are same. (b) Whether the issues are same (c) Whether the issues are material to the cause of action in the previous and in the latter case and (d) Whether the issue has been resolved in the previous case.” Per ADAH, J.C.A.
JUSTICES
EJEMBI EKO Justice of The Court of Appeal of Nigeria
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
STEPHEN JONAH ADAH Justice of The Court of Appeal of Nigeria
Between
1. BENETH IGBANI
(P.D.P. Chairmanship Nominee, Ogbia)
2. PRINCE OKOLOBAOWEI A. SEIMOKUMO
(P.D.P. Chairmanship Nominee, Yenagoa L.G.A.) Appellant(s)
AND
1. BAYELSA STATE INDEPENDENT ELECTORAL COMMISSION.
2. MR. PERES PERETU
3. EDDY JULIUS
4. EBIKITIN SUNDAY DIONGOLI
5. SAMUEL BOY
6. MICHAEL OGBOLOSINGHA
7. CHIEF DARIUS OBIENE
(Sued in his capacity as erstwhile Chairman of the P.D.P. Adhoc Electoral Panel)
8. MR. JAMES AGARI
(Sued in his official capacity as the secretary Of the P.D.P. State Executive Committee in Bayelsa State)
9. CHIEF RUFUS ABADI (State Chairman, P.D.P. Bayelsa P.D.P. State)
10. CHIEF KOKU GARIGA
(P.D.P Chairmanship Nominee, Sagbama L.G.A.)
11. CHIEF INEYE INGBAIFEGHA
(P.D.P Chairmanship Nominee, Kolokuma/Opokuma L.G.A.)
12. SELEKEBINA SABOR
(P.D.P. Chairmanship Nominee, Ekeremor L.G.A.) Respondent(s)
STEPHEN JONAH ADAH, J.C.A. (Delivering the Leading Judgment): The is an appeal against the judgment of the Bayelsa State High Court sitting at Yenagoa delivered by B. M. Ugo, J on the 23rd day of December, 2010. The case at the lower court was commenced by an originating summons. The two Appellants along with three others took out the summons of the Bayelsa State High Court to originate the suit. The 1st Appellant was 3rd claimant while the 2nd Appellant was the 5th claimant before the court. The three others were Chief Koku Gariga (PDP Chairmanship Nominee Sagbama Local Government Area). Chief Ineye Ingbaifegha (PDP Chairmanship Nominee Kolokuma Opokuma Local Government Area), and Selekebina Sabor (PDP) chairmanship Nominee, Ekeremor, Local Government Area.
The action was against the 1st to 9th Respondents in this appeal as Defendants. Incidentally the 10th, 11th and 12th Respondents in this appeal were part of the claimants in the lower court.
The facts of this case are that the two Appellants and the 2nd, 3rd, 4th, 5th, 6th, 7th, 8th, 9th, 11th and 12th Respondents are all members of the Peoples Democratic Party. The 9th Respondent was the chairman of the party in Bayelsa State while the 8th Respondent is the secretary of the party and the 7th Respondent is the chairman of the P.D.P Adhoc Electoral Panel).
Sequel to the conduct of the Local Government Council Elections on 3rd April 2010, in Bayelsa State, the PDP conducted its primaries to nominate candidates for the Local Government Council Election. The Appellants in this case were interested in the contest for the chairmanship seats of their respective Local Government Council on their party’s platform. The Local Government Area Congresses of the PDP held on 28th November 2009 and the two Appellants were duly screened and nominated the party’s chairmanship candidates for the then forth coming Local Government Council Elections. They succeeded and the 9th Respondent in his capacity as the state chairman of the PDP submitted the Appellants, names on behalf of the party to the 1st Respondent on 10th December 2009. He issued them with certificates of return, letters of congratulation and directed the Appellants and three others to proceed to the 1st Respondent for screening.
To the amazement of the Appellants, instead of their being screened by the 1st Respondent, the 1st Respondent screened the 2nd to 6th Respondents to whom the 8th Respondent who was the secretary of the party in the state and without the authority of the 9th Respondent, also issued certificates of return to contest the same chairmanship seats the Appellants had been cleared earlier by the 9th Respondent. This grouse took the two Appellants and three others to originate an action before the Bayelsa State High Court against the Respondents.
Before the High Court, the claimants laid three questions and claimed eleven (11) consequential reliefs. The Questions and the reliefs are laid out at pages 1, 2, 3 and the Record of Appeal.
The 1st to 6th Respondents in opposition to the action filed their counter-affidavits and raised preliminary objections against the suit. The objection was to challenge the competence of the suit and the jurisdiction of the trial Court. The learned trial judge in a considered judgment on 23/12/2010 upheld the objection of the Respondents and concludes as follows:-
“The result of all I have said if expressed in our local parlance, would come to this; that the Claimants have come to Sokoto to look for what is exclusively in their ‘Sokoto’ trouser; that is their Party’s National Executive committee. Their case is non justiceable here and is accordingly struck out.”
Being dissatisfied with the judgment of the lower Court the Appellants appealed to this Court via their notice of appeal filed on 23rd day of March 2011. See pages 964 – 981 of the Records.
At the hearing of this appeal on 5/3/2013, the Appellants adopted their brief of argument while the Respondents through their respective counsel adopted also their briefs of argument. Mr. John Bull of counsel for the 6th Respondent raised a preliminary objection. The notice of preliminary objection was separately filed on 22/11/11. The objection was argued at pages 3 – 9 (is) paragraphs 1.01 – 1.17 of the 6th Respondent’s brief filed on 22/11/11. The Appellant’s reply to this objection had been withdrawn and struck out.
Since the objection raised by the learned counsel for the 6th Respondent is a preliminary one, that issue of objection needs to be given due consideration before any further step is taken in this case, The issue of raising a preliminary objection should not be a moot one. In the case of Clement Odunukure v. Dennis Ofomata & Anor. (2010) 18 NWLR (Pt.1225) 404 SC, the Supreme Court held that a preliminary objection need not be filed in any case except it is to terminate the appeal often times on ground of incompetence. Rhodes Vivour JSC in that case of Odunukure (supra) held as follows:
“a preliminary objection is filed only when the Respondent is satisfied that there is some fundamental defect in the Appellants process. The sole purpose being to terminate the appeal usually on grounds of incompetence. See Ndigwe v. Nwude (1999) 11 NWLR (pt.626) page 314, NEPA v. Ango (2001) 15 NWLR (Pt.737) page 627. Nowadays, Preliminary objections are filed once a Respondent notices any error in the Appellants processes. This is wrong. Where the Respondent complains of the competency of a ground of appeal as in this appeal, and the other grounds are in order, and can sustain the appeal the Respondent ought to file a motion on Notice to strike out the incompetent grounds and not a preliminary objection. See Muhammed v. Military Administrator Plateau State (2001) 16 NWLR (pt.740) page 524; NDIC v. Oranu (2001) 18 NWLR (Pt.744) page 183. Finally and for emphasis, A preliminary objection is filed only against the hearing of the appeal and not against one or more grounds of appeal.”
See also the case of SPDCN Ltd v. Amadi (2011) 14 NWLR (Pt.1266) 157.
In the instant case there are two grounds of appeal. The ground objected to is ground two. The first ground of appeal as reflected in the notice of appeal at pages 976 to 980 of the Records of appeal which is the notice of this instant appeal is in order and from the way it is captioned it is capable of sustaining this appeal without the second ground of appeal. There is therefore no doubt that the preliminary objection of the 6th Respondent is in this respect, uncalled for and an abuse of process.
The said preliminary objection is hereby dismissed, being an abuse of process. See SPDCN Ltd. v. Amadi (supra)’
Having dispensed with the issue of the preliminary objection of the 6th Respondent, I now go head on into the appeal before the Court.
At the hearing of this appeal, the attention of this Court was drawn to the affidavit of facts deposed to by one P. K. Davies, a legal practitioner in the law firm of the learned counsel to the Appellants.
This affidavit was deposed to and filed on the 18th February, 2013. The affidavit is of eight paragraphs. The essence of the affidavit from paragraph 7 thereof is to bring to the attention of this Court its previous judgment and that of the Supreme Court in a sister matter. Exhibit ‘A’ annexed to this affidavit is the certified true copy of the judgment of this Court in Appeal No – CA/PH/166/2011:
BETWEEN
1. CHIEF KOKU GARIGA
(P.D.P. Chairman Nominee, Sagbama, L.G.A.)
2. CHIEF INEYE INGBAIFEGHA – APPELLANTS
(P.D.P. Chairmanship Nominee, Kolokuma/Opokuma L.G.A.)
3. SELEKEBINA SABOR
(P.D.P. Chairmanship Nominee, Ekeremor LG.A.)
AND
1. BAYELSA STATE INDEPENDENT ELECTORAL COMMISSION.
2. MR. PERES PERETU
3. EDDY JULIUS
4. EBIKITIN SUNDAY DIONGOU
5. SAMUEL BOY
6. MICHAEL OGBOLOSINGHA – RESPONDENTS
7. CHIEF DARIUS OBIENE
(Sued in his capacity as erstwhile Chairman Of
The P.D.P. Adhoc Electoral Panel)
8. MR. JAMES AGARI
(Sued in his official capacity as the secretary Of
The P.D.P. State Executive Committee in Bayelsa State)
9. CHIEF RUFUS ABADI
(Stage Chairman, P.D.P. Bayelsa P.D.P. State)
The judgment was delivered on Thursday 16th Day of February, 2012. Exhibit ‘B’ annexed to this affidavit is the certified true copy of the judgment of the Supreme Court of Nigeria in appeal No. SC. 127/2012:
1. MR. PERES PERETU
2. MR. EDDY JULIUS
3. EBIKITIN SUNDAY DIONGOLI – APPELLANTS
4. BAYELSA STATE INDEPENDENT
ELECTORAL COMMISSION
5. CHIEF RUFUS ABADI
AND
1. CHIEF KOKO GARIGA
2. CHIEF INEYE INGBAIFEGHA
3. SELEKEBINA SABOR
4. CHIEF DARIUS OBIENE – RESPONDENTS
(Sued in his capacity as erstwhile Chairman
Of PDP Ad-hoc Electoral Panel)
5. MR. JAMES AGARI
(Sued in his official capacity as the Secretary
Of the PDP State Executive Committee in Bayelsa State)
This judgment was delivered on Friday the 14th day of December 2012.
The affidavit was served on all the Respondents but none of the Respondents filed a counter affidavit to contest or controvert the depositions in the affidavit of facts. What this signifies is that the uncontroverted affidavit is deemed admitted by the parties. The Court will therefore have nothing affecting the use of this affidavit in this case. Moreover, by section 122(2)(m) of Evidence Act, 2011, this Court can take judicial notice of its decisions and those of the Supreme Court.
From Exhibit ‘A’ it is excellently well settled that the subject matter of the suits are the same with the present one. In fact, these present set of Appellants were originally in the appeal in Exhibit A before they opted out see page 12 of Exhibit A where the Appeal Court said:-
“It is significant to note at this point that originally there were five Appellants. The names of Beneth Igbani and Prince Okolobaowei A. Seimokumo, following an application in that regard and this court’s order granting same, have been struck out. The appeal as constituted remains that of Chief Koko Gariga, Chief Ineye Ingbaifegha and Selekebina Sabor the P.D.P. chairmanship nominees for Sagbama, Kolokuma/Opokuma and Ekeremor Local Government Councils respectively.”
Parties have filed and exchanged their briefs of argument in compliance with the rules of the Court. The two issues distilled in the Appellants’ brief as having arisen for the determination of the appeal read:
“1. Whether the learned Trial judge was right when he declined to interpret the provision of the constitution of the Peoples Democratic Party (P.D.P) (Exhibit AA14) in relation to the facts of this case.
2. Whether the learned trial judge was right when he declined to grant the relief of the Appellants.”
These Appellants were among the Plaintiffs in the case at the trial Court. They even appealed originally over the judgment of the trial Court before they pulled out. But after the Appellants in Exhibit A won and their offices regained, they now decide to return to Court.
The judgment appealed upon is that of B. M. Ugo, J. delivered on 23rd December 2010 and which is the same decision appealed upon in the instant appeal. Then the two issues raised in Exhibit A are the two raised in this case. This is clearly a case of issue Estoppel and application of the doctrine of judicial precedent. Estoppel as a principle of law has been well applied in numerous cases before our Courts. In the case of Bwacha v. Danlami & ors (2001) 3 NWLR 610, Adekeye JSC held:
“The law reports are saturated with numerous decisions of this Court on the subject matter of issue estoppels. The condition precedent to application of issue estoppels is based on the principle of law that a party is precluded from contending the contrary of any specific point which having been once distinctly put in issue has with certainty been determined against him. In the case of Ikeni v. Efamo (2001) 10 NWLR (Pt.720) page 1, the Supreme Court enumerated the elements necessary for determining whether issue estoppels is applicable as:-
(a) Whether the parties in the previous proceedings and the current proceedings are same. (b) Whether the issues are same (c) Whether the issues are material to the cause of action in the previous and in the latter case and (d) Whether the issue has been resolved in the previous case.”
Furthermore, in the case of Makun v. F.U.T. Minna (2011) 18 NWLR (Pt.1278) 190, the Supreme Court espoused elaborately on the nature, application and operation of estoppel per rem judicatam and the effect of a successful pleas of the doctrine on the case in Court. The Court held as follows:-
Estoppel per rem judicatam or estoppels by record arises where an issues of fact has been judicially determined in a final manner between the parties or their privies by a court or tribunal having jurisdiction in the matter and the same issue comes directly in question in subsequent proceedings between the parties or their privies. It effectively precludes a party to an action, his agents and privies, from disputing, as against the other party in any subsequent suit, matters which had been adjudicated upon previously by a court of competent jurisdiction between him and his adversary involving the same issues. The plea operates not only against the parties but also against the jurisdiction of the court itself and robs the court of its jurisdiction to entertain the same cause of action on the same issues previously determined by a court of competent jurisdiction between the same parties. It is entirely a question of fact whether the parties and their privies and the subject matter of the claim are the same in both the previous and present suits. (Adone v. Ikebudu (2001) 14 NWLR (Pt.733) 385; Ukaegbu v. Ugoji (1991) 6 NWLR (196) 127; Ezeudu v. Obiagwu (1986) 2 NWLR (pt.21) 208; Osunrinde v. Ajamogun (1992) 6 NWLR (Pt.246) 156; Iga v. Amakiri (1976) 11 SC 1; Udeze v. Chidebe (1990) 1 NWLR (pt 125) 141; Lawal v. Dawodu (1972) 1 All NLR (Pt.2) 270; Ezenwani v. Onwordi (1986) 4 NWLR (Pt.33) 27; Fadiora v. Gbadebo (1978) 3 SC 219 referred to.) (pages 220-221, paragraphs E-A;233, paragraphs C-D)
This case of Makun v. F.C.T. Minna (supra) further elaborated on the pre-conditions for successful plea of estoppels per rem judicatam. The Court held that:-
For a plea of estoppels per rem judicatam to succeed, the party relying on it must establish the following pre-conditions, namely:-
(a) that the parties or their privies are the same in both the previous and the present proceedings in which the plea is raised;
(b) that the claim or issues in dispute in both actions are the same;
(c) that the res or the subject matter of the litigation in the two cases is the same;
(d) that the decision relied upon to support the plea of estoppels per rem judicatam is 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.
Unless all the above constituent elements or requirements of the doctrine are fully established the plea of estoppels per rem judicatam cannot be sustained. In the instant case, the parties, issues and subject matter of the two previous suits were the same as the present suit. (Adigun v. Gov. Osun State (1995) 3 NWLR (Pt.385) 513; Oke v. Atotoye (1985) 2 NWLR (Pt.9) 578; Yoye v. Olubode (1974) 1 All NLR (Pt.3) 118; Alasha v. Olori-Ilu (1965) NMLR 66.
The five basic conditions listed in this decision are meant to concur in any situation before a successful plea can be settled. In the instant case, the Appellants contested before the trial Court their right to the seat of Local Government Council Chairman in their respective Local Government Councils. The trial judge threw away the case on ground of lack of jurisdiction.
Three of the Plaintiffs at the trial Court pursued the issue on appeal to this Court and this Court in suit No. CA/PH/166/2011 heard the appeal and awarded them the res. On a further appeal to the Supreme Court, the Supreme Court affirmed the decision of this Court and entered judgment for the Plaintiff before the trial Court. With that decision the three Appellants were restored to office but not these present two Appellants. Ordinarily, since the two Appellants were all in the case No.YHC/149/2010 before the Bayelsa State High Court, and the ultimate Court has granted the relief they brought before the High Court, these two Appellants would have been placed on the same page for the execution of that judgment. Since this was not the case, the two Appellants had to come back to Court to dust up their reliefs and present them before this Court. In a situation of this nature since the facts and parties in this instant case, are the same with the former, the Court will not go again into any hearing other than to apply the decisions to these present Appellants. The 1999 Constitution of the Federal Republic of Nigeria, the section 287 creates room for this Court to enforce decisions of the Supreme Court. In addition to this, the doctrine of stare decisis makes it apposite for this Court to be bound by the decision of this Court and the Supreme Court on all issues.
My Lords, we are therefore bound by the earlier decision of this Court in case No. CA/PH/166/2001 and SC.127/2012. All that is needed in this case is for me to consider the facts of this case and to see if they are the same with the previous one decided by the Courts.
In the instant case, the two Appellants and three others took out the originating summons in suit No YHC/149/2010 before the Bayelsa State High Court, Yenegoa. They sought for determination of that Court of three question and eleven consequential reliefs. The trial Court after hearing arguments on the originating summons declined jurisdiction placing reliance on Act. 27:1 of the Peoples Democratic Constitution which provides:
“Any question as to the meaning of any section of this Constitution or the Schedule hereto shall be referred to the National Executive Committee whose interpretation of the same shall be final”
On appeal of three of the Plaintiffs, to this Court in appeal No.CA/PH/166/2011, two issues were raised. This Court held at page 27 of the Judgment Exhibit A that the trial Court’s ruling declining jurisdiction over the instant matter is for all the foregoing manifestly perverse. This Court then acting on section 6(6)(a) of the 1999 Constitution, as amended, section 15 of the Court of Appeal Act concluded as follows:
“The 3 – 4 – 2010 Local Government Elections to which the instant appeal relates have been conducted and the P.D.P has won same. It has been demonstrated in this judgment that it is the Appellants who being the lawful candidates for the election that won the elections for their party. The justice the Appellants deserve and indeed the determination of the real issue in controversy between the parties in the appeal require that the Appellants be and are hereby declared the lawfully elected chairpersons of their respective Local Government Councils.”
There was an appeal to the Supreme Court on the decision of this Court. That appeal is as in Exhibit B of the affidavit of facts, Appeal No SC.127/12. The Supreme Court dismissed the appeal and affirmed the decision of this Court. The Supreme Court also adopted the conclusion reached by this Court.
With that decision, all issues generated in this appeal have been resolved. There must be an end to litigation. The end comes from the decision of the Supreme Court which is the Apex court in Nigeria.
The two Appellants in the instant case are among the parties that originated suit YHC/149/2010. The trial court’s decision in that case is that which came on appeal to this court and on further appeal to the Supreme Court. The issues raised by the Appellants are on all fours with the two issues raised in the earlier case for which decisions have been given. It follows therefore that by the doctrine of estoppel res judicatam the issues have been settled and can no longer be re-opened for re-hearing.
In the case of Usman v. Umaru (1992) NWLR (pt.254) 377, the Supreme Court held as follows:-
“It is now well settled that under the doctrine of stare decisis, the Court below as an intermediate Court of Appeal between the court below it and this court as the final Appellate court, is bound by its own decisions except in circumstances specified in young v. Bristol Aeroplane Co. Ltd. (1944) 2 All E.R. 293, 300, that is (a) the Court of Appeal is entitled to decide which of two conflicting decisions of its own it will follow; (b) it will refuse to follow its own decision which, though not expressly overruled, cannot in its opinion stand with a decision of this court; and (c), it is not bound to follow a decision of its own if it is satisfied that the decision was given per incuriam.”
This Court on this clear authority is bound by its own decisions except where there is conflict and confusion or it is given without jurisdiction or authority. The decision of this Court in appeal No. CA/PH/166/2011 has been tested in the Supreme and it has been affirmed. It follows therefore that this Court has no reason whatsoever to depart from its own decision in this case.
Afortiori, this case has gone to the Supreme Court and it has been duly resolved. In the case of Abacha v. Fawehinmi (2000) 6 NWLR (Pt.660) 224 the Supreme Court held that:-
“By the time-honoured doctrine of precedent as it operates in Nigeria and common law countries, the decision on a given issue of law handed down by the apex court, which for us in Nigeria is the supreme court, is not only superior but binds all subordinate courts, including all courts exercising appellate jurisdiction. It is the law that a decision of a court of competent jurisdiction, no matter that it seems palpably null and void, unattractive or insupportable, remains good law and uncompromisingly binding until set aside by a superior court of competent jurisdiction: see
Babatunde and Anor v. Olatunji and Anor (2000) 2 NWLR (pt.646) 557 and Ezeokafor v. Ezeilo (1999) 9 NWLR (pt.619) 369 (1999) 6 SC (Pt.11) 1.”
In the instant case, these Appellants who were among the Plaintiff’s at the trial Court, ought to have enjoyed the fruit of that decision before today but for the fact that they opted out of the appeal in CA/PH/166/2011. Since that decision is on the cause of action hoisting the instant appeal, it stands to reason that the cause of these Appellants shall follow the earlier decision of this Court. In the case of N.I.M.B. Ltd v. U.B.N Ltd (2004) 12 NWLR (Pt.888) 599, The Supreme Court had enjoined the Courts to maintain the certainty of the law. The Supreme Court held Per Pats Acholonu, JSC that:-
“The theory of justice to which we adhere rests a priori on the premise that there must be certainty and parties to the legal duel should be in a position to know where they stand at a certain time. A system of law where Judges of the same degree i.e. of co-ordinate jurisdiction make contradictory and inconsistent orders in respect of the same subject matter involving the same parties i.e. each relying on his whims, caprices, prejudices and sometimes a vaunting ego, makes nonsense and mockery of the law. The beauty or what I might describe as the romance of law is that just as stare decisis exercises a restraining influence on our courts, so too do discipline in the courts in dutifully adhering to normative order by which court of co-ordinate jurisdiction do not sit on appeals on each other, attracts respect for the law.”
It should be settled in the face of this authority that this Court between the doctrines of res judicata and stare decisis has a duty to apply the decisions in CA/PH/166/2012 and SC/127/2012 to this case and I so do. The decision of the Supreme Court was unanimous. Ngwuta, JSC who delivered the leading judgment concluded at pages 18 19 of the Judgment delivered on 14/12/12 in Exhibit B to the affidavit of facts as follows:
“My Noble Lords, this case is fallout of battle for supremacy by two key officers of the PDP, each with the support of his acolytes, to the detriment of the party to which they belong. It is a sad commentary on a system wherein individuals who have managed to clutch to power in the system demand to be, and are actually, revered and honoured more than the system from which they derive their powers. It is the bane of any system or organization to elevate any member thereof, no matter his status, over and above the system or organization in which he operates and to which he owes his power.
An army is much more than the numerical strength of its soldier. The same applies to any organization, including political parties. The interest of the Peoples’ Democratic Party (PDP) or any other system or association should on no account be subrogated to the interest of any member or group of members. The interest of the party or system is supreme.
In conclusion, this appeal is bereft of merit. I dismiss the appeal and I adopt the conclusion reached by the lower court that:
”The justice the appellants deserve and indeed the determination of the real issue in controversy between the parties in the appeal require that the appellants be and hereby declared the lawfully elected chairpersons of their respective Local Government Councils.”
Respondents are to assume their respective positions as chairpersons of their respective Local Government Councils forthwith.”
In the instant case, therefore, I allow the appeal of these two Appellants and I set aside the decision of the trial court. The Appellants came to court without delay to fight for their rights. During the pendency of this case the tenure of the Appellants is almost expended. The law is never helpless in remedying any wrong. The maxim is ubi jus ibi remedium. If the court is satisfied that a person has suffered a legal injury it will surely provide a remedy. The court cannot do otherwise. The court will duly give a remedy where the facts as disclosed fall within a remedy recognized by law. See the cases of Bello v. Attorney-General, Oyo State (1986) 5 NWLR (pt.45) 828, 890; Attorney-General Lagos State v. Eko Hotels Ltd (2006) NWLR (pt.1011) 378; Amaechi v. INEC (2008) 5 NWLR (Pt.1080) 227.
In the instant case, the Appellants are to assume their respective positions as chairpersons of their respective Local Government councils forthwith. Then they are to be paid their salaries and allowances for the period they were kept out of office during their tenure.
I award a cost of N50,000 in favour of the Appellants against the 2nd to 8th Respondents.
EJEMBI EKO, J.C.A.: This appeal emanates from the same facts and circumstances forming the cause of action in the suit No. YHC/149/2010 and appeal No. CA/PH/166/2011. At the trial court the present Appellants, jointly with the appellants in CA/PH/166/2011, were the claimants against the present Respondents. The decision in the appeal No. CA/PH/166/2011, delivered on 16th February, 2012 is that:
The 3/4/2010 Local Government erections to which the instant appeal relates have been conducted and PDP has won same. It has been demonstrated in this judgment that the Appellants who being the lawful candidates for the election that won the elections for their party. The Justice the Appellants deserve and indeed the determination of the real issue in controversy between the parties in the appeal require that the Appellants be and are hereby declared the lawfully elected chairpersons of their respective Local Government Councils.
This decision was affirmed by the Supreme Court, in the appeal No.SC.127/12, on 14th December, 2012. Standing on the rule of Stare decisis, My Lords we are bound by our decision in CA/PH/166/2011. And on the doctrine of judicial precedent, further reinforced by Section 287 of the 1999 Constitution, this Court, as an intermediate court, is not only bound by the decisions of the supreme court; we are obligated to enforce them. I have no cause to depart from the decision of this court in CA/PH/166/2011, and the decision of the Supreme Court No.SC.127/12, which are all decisions from the same decision of the Bayelsa State High court (coram: B. M. Ugo, J.) in the suit No.YHC/149/2011 delivered on 23rd December, 2010.
It is for the foregoing, and the fuller, reasons contained in the judgment just delivered by my learned brother, S. J. ADAH, JCA that I also allow the appeal. I hereby adopt the said judgment including the decision on the preliminary objection and all the consequential orders made therein.
MODUPE FASANMI, J.C.A.: I have had the advantage of reading in draft the lead judgment of my learned brother STEPHEN JONAH ADAH, J.C.A. just delivered.
Res judicata gives effect to the policy of the law that a final judgment rendered by a court of competent jurisdiction is conclusive as to the rights of the parties and their privies, and so constitutes an absolute bar to subsequent action involving the same claim, demand or causa of action. See Abiola & Sons B. Co. Ltd. v. 7up Bottling Co. Ltd (2012) 15 NWLR Part 1322 page 184 at 200 paras D – F.
My learned brother has treated the core issue in the appeal. The judgment of the Supreme Court in this appeal operates as res judicata by way of estoppel to bar the parties from relitigating on the matter. I am in complete agreement with the reasoning and conclusions reached in this appeal. I too allow the appeal and abide by the consequential orders contained therein inclusive of cost.
Appearances
Idongesit Uko with Ikobah Hilton and Ajibola O. AjiboyeFor Appellant
AND
Somina Peter John-Bull with P. F. Neebani for 6th Respondent.
Festus Keyamo for 10th – 12th Respondents.For Respondent
