Kogi Guber: Acid test for Nigeria?s jurisprudence
On August 29, 2012 ? In Viewpoint


AS Justice Abdul Kafarati of the Federal High Court sitting in Abuja prepares to deliver judgement on the suit filed by Jibrin Isah (Echocho) seeking to validate the January 2011 Peoples Democratic Party (PDP) governorship primary election in Kogi State today, there are anxieties as to whether the judgement will not toe the path of the suit filed by the former governor of Bayelsa State, Timpriye Sylva against the PDP for excluding him from the second primary election of the party.

The Supreme Court had, on April 20, dismissed Sylva?s suit against the PDP for lack of jurisdiction, holding that the issue of primary election was the exclusive affair of the party and that the court lacked the power to decide for a party who its candidate should be.

One might be tempted to adopt the judgement of the Supreme Court in Sylva?s case as being applicable to the instant case of the Kogi governorship tussle filed by Echocho because the suits look alike on the surface, but a critical and legal consideration of the two suits reveals that their causes of action are different.

The PDP in Kogi State had conducted a primary election on January 9, 2011 where Echocho emerged as its standard-bearer in the April 26, 2011 general election, but the victory of Echocho was short-lived when, on February 23,2011, Justice Adamu Bello of a Federal High Court sitting in Abuja elongated the tenure of five state governors beyond May 29, 2011, of which Kogi was one.

On appeal by Independent National Electoral Commission ( INEC), the Court of Appeal, Abuja division, had upheld the judgement of the lower court that the tenure of five governors, including the Kogi State governor, had not expired, hence the postponement of the general election in Kogi, Adamawa, Bayelsa, Sokoto and Cross River

This decision, no doubt, changed the political terrain of Kogi State, as the PDP went ahead to conduct another primary election in September 2011, where Idris Wada emerged as the winner.

Not satisfied with this judgement, INEC evoked the jurisdiction of the Supreme Court in Appeal No: SC/357/2011 vide its notice of Appeal dated July 14, 2011, asking the court not only to set aside the judgements of the Federal High Court and the Court of Appeal elongating the tenure of the governors, but also to dismiss their claim.

The Supreme Court, on January 27, 2012, acceded to the INEC?S appeal and granted all its reliefs/prayers, stating clearly that the tenure of former Governor Ibrahim Idris and four others ended on May 28, 2011.

Judgment of apex court
Following the judgement of the apex court, Wada was sworn in as the duly elected governor of the state in the December 3 governorship poll. This action led Echocho to court.

Through his counsel, Chief Wole Olanipekun, (SAN), he asked the court to determine whether, having regard to the combined effects of Sections 26(1), 26(2), 87(1) 87(2) (3) and (4)(b) of the Electoral Act 2010 as amended, the valid and due nomination of the plaintiff (Isah) and submission of his name by the PDP (1st defendant) to the INEC as the party?s governorship candidate in the Kogi State 2011 governorship election can be vitiated by the postponement of the election from April 26 to December 3 2011.

He also asked the court to determine whether the PDP could validly have conducted another special state congress for the governorship primary election in September 2011 for the governorship election, having sent his name to INEC as its candidate.

He posited that he could not be substituted with any other name except as provided in Section 33 of the Electoral Act, as amended.

While replying to the reliefs sought by Echocho, counsel to Wada, Chris Uche, SAN submitted that ?there is nothing unique about the plaintiff?s case because there is a precedent of a similar misadventure which recently ended in misfortune at the Supreme Court?.

Citing the recent case of Sylva versus PDP, Uche maintained that every right claimed by Echocho for having won the January primaries has been extinguished by the Supreme Court judgement, as the two cases were similar in every material particular.

Considering the reliefs sought and the arguments of parties in the instant suit, it is crystal clear that there is a whole lot of difference between Sylva and Echocho?s suit.

It will be recalled that while the INEC?s appeal was still pending at the apex court, it went ahead to conduct an election in Kogi State to elect a governor.

Looking at the parties, Sylva?s suit was against the PDP refusing to allow him to contest the party primaries of November 19, 2011 for the general election of February 12, while Echocho?s case challenged INEC?s action of conducting an election during the pendency of its own suit against the tenure elongation.

Shaibu wrote in from Abuja.

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