➥ CASE SUMMARY OF:
Michael Ogbolosingha & Anor. v. Bayelsa State Independent Electoral Commission & Ors. (2015) – SC
by “PipAr” Branham-Paul C. Chima, SAL.
➥ COURT:
Supreme Court – SC.165/2013
➥ JUDGEMENT DELIVERED ON:
Friday, the 20th day of February, 2015
➥ AREA(S) OF LAW
Tenure of office;
Res judicata.
➥ PRINCIPLES OF LAW
⦿ WHEN ESTOPPEL PER REM JUDICATAM CAN SUCCEED
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 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. 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 judicatam cannot sustain. See also the decisions in Yoye V. Olalode (1974) 10 SC 209; Alase V. Olori-Ilu (1965) NMLR 66; Fadiora V. Gbadebo (1978) 3 SC 219 and Udo V. Obot (1989) 1 SC (Pt. 1) 64. — C.B. Ogunbiyi, JSC.
⦿ NATURE OF RES JUDICATA
From the cumulative summary of the foregoing authorities, it is clear that the existence of the principle is entirely a question of fact for purpose of establishing whether the parties and their privies, the facts in issue and the subject matter of the claim are the same in both the previous and the present suits. 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. — C.B. Ogunbiyi, JSC.
⦿ OBITER DICTUM VS RATIO DECIDENDI
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 Ilorin (1999) 10 NWLR (Pt.622) 290. 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 court thinks that a previous court’s judgment is founded.” — C.B. Ogunbiyi, JSC.
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. — C.B. Ogunbiyi, JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
Clara Bata Ogunbiyi, J.S.C.
➥ APPEARANCES
⦿ FOR THE APPELLANT
Mr. Samuel Brisibe
Mr. Preye Agedah
⦿ FOR THE RESPONDENT
Mr. Festus Keyamo
Mr. I.O. Kamalu
➥ CASE FACT/HISTORY
The appeal is against the judgment of the Court of Appeal, Port Harcourt Division in Appeal No. CA/PH/304/2011 delivered on the 15th day of March, 2013..
Briefly, the statement of relevant facts in this appeal are that the 2nd, 3rd and 7th – 9th respondents as claimants filed suit No. YHC/149/2010 by way of originating summons in the Bayelsa State High Court by which they, inter alia sought to assert their alleged respective rights to be nominated as candidates of the People’s Democratic Party in their respective Local Government Areas in Bayelsa State for the Local Government Council Chairmanship Elections then scheduled for 3rd April, 2010.
Defendants at the trial court raised a preliminary objection which was heard and determined along with the originating summons on the merit. The trial court struck out the suit for lack of jurisdiction.
Dissatisfied with the ruling of the trial court, the 7th, 8th and 9th respondents herein appealed to the Court of Appeal, Port Harcourt Division in Appeal No: CA/PH/166/2011 while the 2nd and 3rd respondents herein did not pursue the same appeal expeditiously. The court below resolved the appeal in favour of the 7th, 8th and 9th respondents herein and the judgment of the trial court was thereupon set aside and the reliefs sought by the plaintiffs before the trial court were granted accordingly.
The Defendants at the trial court who were respondents at the Court of Appeal, appealed to this Court in Appeal No. SC.127/2012 and the said appeal was dismissed while upholding the judgment of the Court of Appeal in Appeal No. CA/PH/166/2011 in favour of the 7th, 8th and 9th respondents herein, in the judgment reported as Peretu V. Gariga (2013) 3 NWLR (Pt.1348) page 415-443.
The 2nd and 3rd respondents herein, who did not pursue the appeal from the trial court to the Court of Appeal, right to this court were not part of the judgment by this court and unlike their counterpart the 7th 8th and 9th respondents could not enforce same in their favour, even though they were co-plaintiffs at the trial court. Put differently, the 2nd and 3rd respondents herein ought to have been part of the judgment mentioned above, but for the fact that they did not pursue the appeal from the trial court to the Court of Appeal and thereafter to this court. Unlike their counterpart therefore, they could not enforce the judgment in their favour.
In the result, the same 2nd and 3rd respondents herein returned to the Court of Appeal, Port Harcourt Division in Appeal No. CA/PH/304/2011 to pursue the appeal against the decision of the trial court in respect of which the 7th, 8th and 9th respondents herein had reversed in their favour by the judgments of the Court of Appeal and the Supreme Court. The lower court in determining the appeal No. CA/PH/304/2011 simply abided by its decision in Appeal No. CA/PH/166/2011 and Appeal No. SC.127/2012 reported as Peretu V. Gariga (supra) in upholding the appeal of the 2nd and 3rd respondents herein, hence the appeal now before us which was filed on the 15th day of March, 2013 and raised ten grounds of appeal.
➥ ISSUE(S) & RESOLUTION(S)
[MAIN APPEAL: ALLOWED]
♎ I. Whether this honourable Court can overrule itself in this appeal, with regards to the Decision in SC.127/2012. Perutu V. Gariga (2013) 3 NWLR (Pt.1348) pages 415 – 443?
RULING: IN APPELLANT’S FAVOUR.
A. THAT THE PARTIES ARE DIFFERENT AND NOT SAME AS IN PERUTU V. GARIGA (SUPRA)
“As rightly submitted by the counsel representing the appellants, in the matter under consideration, the parties and the subject matter of the previous appeals (i.e Appeals Nos. CA/PH/166/2012 and SC.127/2012) are different and not the same as the parties and subject matter of the one before us. In other words and for instance, the 2nd and 3rd respondents (in the persons of Benneth Igbani and Prince Okoloaowei A. Seimokumoh) now before us were not parties to the previous matters (i.e Appeals Nos. CA/PH/166/2012 and SC.127/2012.”
B. THAT THE SUBJECT MATTER IS DISTINCT
“Furthermore, it is pertinent to state that the subject matter of the previous appeals were the Chairmanship of Sagbama, Ekeremor and Kolukuma/Opokuma Local Government Councils and or the rights of the appellants in those cases to be nominated as the candidates of the PDP for the elections to the said offices. To the contrary, the subject matter before us, relates to the Chairmanship of the Yenagoa and Ogbia Local Government Councils and or the alleged right of the 2nd and 3rd Respondents to be nominated as the PDP candidates for election to the said offices.”
C. THE LOWER COURT ERRED
“In other words, I am in complete agreement with the contention held by the learned counsel for the appellants when he submitted that the lower court was not bound to apply or rely on its decision and also that by this Court in Appeal Nos. CA/PH/166/2012 and SC.127/2012 respectively. Consequently therefore, I hold a considered view that their Lordships of the lower court were in great error in their conclusion held at page 1096 of the record of appeal reproduced supra. In the result, the said issue is hereby resolved in favour of the appellants.”
.
.
♎ II. 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 & Whether the parties in this case were given equal opportunity to be heard before the lower court?
RULING: IN APPELLANT’S FAVOUR.
A. WITH THE DETERMINATION OF THE 1ST ISSUE, THIS ISSUE SUCCEEDS BECAUSE THE LOWER COURT MADE HER EARLIER DECISION BASED ON RES JUDICATA PRINCIPLE
“It is clear to me from the record that the court below applied the principle of the doctrines of res judicata and stare decisis and concluded that it had a duty to apply the decisions in CA/PH/166/2012 and SC.127/2012 to the appeal before it. The confirmation of this is obvious with reference made to the pronouncements which were reproduced from the record of appeal supra. It is on record for instance that the judgment of the lower court was premised on the earlier decisions arrived at and under reference. Consequently, the elaborate and detailed submissions made by counsel on the conflicting nature of the affidavits in support of the originating summons are not desirable for the consideration of this appeal. Put differently, with the determination of the 1st issue which resolved that the lower court erred in applying the principle of res judicata to the matter before it, the resolution of the other issues will also succeed on the outcome of the 1st issue being the central crux of the entire appeal. In other words, with the 1st issue being resolved in favour of the appellants, the same also applies to the other issues 2 and 3.”
.
.
.
✓ DECISION:
“The appeal in the result is allowed and I make an order setting aside the judgment made by the lower court on the 15th March, 2012. In its place, I will make an order that, since the tenure of the appellants have been spent, they cannot now have the benefit of the office which was enjoyed by the 7th, 8th and 9th respondents, who were within the tenure allocated the party by law at the time they obtained judgment. The appellants came at a time when the three years period had since come to an end. They came too late; there cannot therefore be any benefit accruing to them. The res had finished and also become extinct by reason of effluxion of time. The appeal has become spent and academic. I also make no order as to costs.”
.
.
.
.
[CROSS-APPEAL: DISALLOWED]
I. Whether in view of the provisions of Section 27(3)(a) of the Local Government Law Cap 110 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?
RULING: IN CROSS-RESPONDENT’S FAVOUR.
A. THAT OATH TAKING, IRRESPECTIVE OF WHEN TAKEN, CANNOT ELONGATE TENURE
“This court had stated clearly in Marwa’s case that oath taking cannot be used as a means of tenure extension or elongation … Again the intriguing question to pose at this juncture is:- If the cross appellants’ tenure is to be extended by the fact that they needed to take further oaths, what then should happen to the period occupied by PDP, their own party, – as against the citizenry of their respective local government areas and the opposition parties The effect will certainly yield injustice to them, especially where the law is trite that no provision of a statute is to be interpreted to cause injustice. To do so is to defeat the very foundational intent and purpose of justice itself as well as the provision of section 27(3)(a) of the Local government law Bayelsa State.”
B. THAT THE MAXIMUM TENURE IS THREE YEARS AND SUCH HAS EXPIRED
“It is a fact that the tenure of their party which won the election in April, 2010 expired in March, 2013. The paramount question is, whether they can, by virtue of this cross-appeal, be entitled to a fresh term of three years outside their due statutory tenure which have since been expended i.e. to say after the expiration of the term won by their party This is, bearing in mind the principle laid down in Amaechi v. INEC (supra) that, in our political system, elections are won by the political parties and not by the candidates. The necessary consequential effect following Amaechi’s case is that, a political party who wins an election is mandatorily entitled only to the term of office allowed by law; such as a term of 3 years allowed by section 27(3)(a) of the Local Government Law of Bayelsa State, The provision as it were, cannot now in anyway or by any wisdom or guise be interpreted to extend the tenure won by the PDP in the said election, for additional three years or more as is wrongly canvassed, conceived, anticipated or envisaged by the cross appellants. It should, sound loud and clear, like the church bell, that the three years fixed by section 27(3)(a) is unmovable like mount Zion. 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. To do otherwise for purpose of interpreting the law in the con advocated by the cross appellants, who are taking over as it were from their brothers of the same party, is to do great violence to the interpretation of the enactment in the face of the party i.e., PDP as the same party that has been in office. The desire and move can best be described as a wishful thinking and a mirage.”
LEGISLATION: section 27(3)(a) of the Local Government Law, Bayelsa State.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (CASE)
⦿ HOW RATIO DECIDENDI IS DETERMINED
In the case of United Bank for Africa Limited Vs. Stahlban GMBH & Co. KG. (1989) 3 NWLR (Pt.110) 374 at 402 for instance, this court held and said:- “The ratio decidendi of a case is not determined from isolated dictum in the judgment. It is determined on considerations of the issues in the dispute between the parties and the facts pleaded and found in support of the contention of the issues. Hence, every judgment ought to be read as applicable to the particular facts proved.”
⦿ OATH OF ALLEGIANCE IS SUPERFLUOUS IN DETERMINING TENURE OF OFFICE
Marwa v. Nyako (supra) where this court held per Onnoghen, JSC and said:- “It is therefore clear and I hereby hold that the second oath of Allegiance though necessary to enable them continue to function in that office, were clearly superfluous in the determination of the four years tenure under section 180(2) of the 1999 Constitution.” In the said same authority at page 82 of the report, this court also said:- “It is very clear from the relevant provisions that no person elected under the 1999 Constitution can remain in that office a day longer than as provided otherwise the intention of the framers of the Constitution would be defeated. If the interpretation favoured by the Respondents is adopted and the four years tenure is to be calculated from the second oaths taken in 2008 while in fact and law the 1st Respondent took oaths of allegiance and of office on 29th May, 2007, and remained and functioned in office as Governors of their various states would their period of office not exceed the Constitutionally provided tenure of four years The answer is clearly in the positive…”
➥ REFERENCED (OTHERS)
