Alhaji Ali Sa’ad Birnin Kudu V. Alhaji Buba Aliyu & Ors. (1992)

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AKANBI, J.C.A.

On 14th December, 1991 elections were held throughout the States of the Federation to elect the Governors and members of the various Houses of Assembly. In Jigawa State, the appellant Alhaji Ali Sa’ad Birnin Kudu contested the governorship election on the platform of the Social Democratic Party. His opponent in that election was Alhaji Aliyu Buba of the National Republican Convention. When the results of the election were announced, Alhaji Ali Sa’ad Birnin Kudu of the Social Democratic Party emerged the winner scoring 239,410 votes as against that of his opponent Alhaji Aliyu Buba who had a total of 120,011 votes. So, Alhaji Ali Sa’ad Birnin Kudu was duly declared the Governor of Jigawa State by the National Electoral Commission – the body charged with the responsibility for conducting the elections.

Soon after the elections, Governorship and Legislative Houses Election Tribunals were established in all the States of the Federation pursuant to Section 88 of the State Government (Basic Constitutional and Transition Provisions) Decree 1991 (No.50 of 1991)(hereinafter called Decree 50) to hear and determine any petition relating to the validity of an election.

Being dissatisfied with results of the election, the unsuccessful candidate, Alhaji Aliyu Buba filed an Election Petition before the Jigawa State Governorship and Legislative Houses Tribunal (henceforth called the Tribunal). In paragraph 3 of the petition, the Petitioner made allegation of diverse breaches of the rules governing the conduct of the election, by the National Electoral Commission, the first Respondent to the petition, its Resident Electoral Commissioner, (the 2nd Respondent) and the Returning Officer – the third Respondent. The Petitioner itemised in sub-paragraph (a)-(h) the alleged transgressions committed by these three Respondents. They will be referred to if and when found necessary in the course of this judgment. As against Alhaji Ali Sa’ad Birnin Kudu who was joined as the fourth Respondent, the only allegation made against him that he was under 30 years of age and was therefore incapacitated and disqualified from being elected as a candidate in the said election, was abandoned at the trial. Nor was the further averment that he was not duly elected by a majority of the lawful votes pursued. Be that as it may, relying on the aforesaid paragraph 3 of his petition, the petitioner claimed as follows:

“A. That in respect of ground specified in paragraph 3 hereof;

1. That the election be declared invalid, by reason of matters referred to herein, particularly due to some act or omission by the first and second Respondents in breach of their official duty;

or in the alternative;

That the election was not so conducted as to be substantially in accordance with the law as to elections.

2. That a by-election be ordered.

B. That in respect of ground specified in paragraph 4 hereof;

1. That the election of Alhaji Ali Sa’ad Birnin Kudu be declared void.
2. That the petitioner – Alhaji Buba Aliyu be returned elected.”

The 1st, 2nd and 3rd Respondents filed a joint reply in which they denied the material allegations contained in paragraphs 3(a) – (h) of the petition, and went on to plead that the election was properly conducted and that the 4th respondent won by a majority of votes cast at the election. Indeed it was averred that by obtaining, 1/3 of the votes cast in 20 out of the 21 Local Government Areas of the State, the fourth Respondent had exceeded more than was statutorily required of him to justify his election. Similarly, the fourth Respondent in his Reply to the petition joined issues with Petitioner as regards the alleged breaches of the rules governing the conduct of the election and also contended that he duly satisfied the provisions of Decree No.50 of 1991 and that he won the election by a majority of lawful votes having obtained a total of 239,410 votes as against 120,011 scored by the Petitioner.

From the facts pleaded, it is discernible that the complaints of the Petitioner in the main were directed against the 1st and 2nd Respondents who according to him did not afford him and his political party, the National Republican Convention the opportunity (i) to campaign and organize his supporters for the election, (ii) to send agents to represent him at the polling stations, (iii) to deliver along with his nomination papers, the required number of posters bearing his photograph and the symbol of his political party and (iv) to display such posters at the polling stations to enable his supporters identify same and vote for him. It was part of the Petitioner’s complaint that having regard to the short notice he had from 1st and 2nd Respondents of his nomination as the candidate to contest the election on the platform of his party, in place of Alhaji Haruna Suleiman who had been disqualified by the 1st Respondent, a day before the date fixed for the election, he was effectively denied the opportunity of making adequate preparation for the elections, with the consequences that the result of the election was seriously affected.

Besides, it was said that the 1st and 2nd Respondents did not within the period prescribed, publish by displaying at the place or places appointed for the delivery of nomination papers, before the election day, a statement of the full names of the Petitioner and persons nominating him. Furthermore, the Petitioner alleged that such were the circumstances, that the voters and in particular his supporters became confused as to who was actually contesting the election on the platform of the National Republican Convention and that this confusion was further compounded by the fact that the disqualified Alhaji Haruna Suleiman was “with the passive connivance of the 1st and 2nd Respondents” up to the time of the election still campaigning by broadcasting that he was the nominated candidate of the National Republican Convention. These then were in substance the premises on which the Petitioner sought to avoid the election of the 4th Respondent.

It is perhaps pertinent to note even at this stage that no allegation of wrong doing was levelled against the 4th Respondent. It is also well to observe in passing that no allegation of corrupt practice or offence against Decree 50 was made in the petition against him. Nor was it said that the 4th Respondent suffered any disqualification. I have already pointed out that the allegation that he was below the age of 30 years at the time of the contest was abandoned at the hearing. So all told, there can be no doubt that the fate of the petition or more precisely the success or failure of it, must necessarily turn on what view is taken of the averment contained in paragraph 3(a) – (h) of the petition to which I had earlier alluded as well as the evidence led in support.

Let me however point out that when the actual hearing began, parties were invited to settle issues and at the end of the day, the following issues were agreed upon and set down for trial.

“1. Whether the petitioner and the NRC were afforded a reasonable opportunity to have the petitioner replace the NRC candidate disqualified for the gubernatorial election in Jigawa State.