Alhaji Buba Manu Mutum Biyu & Anor. V. Alhaji Abdul Aziz Ibrahim & Ors. (2005)

LawGlobal-Hub Lead Judgment Report

NZEAKO, J.C.A.

The 1st appellant was a candidate of the 2nd appellant, the All Nigeria Peoples Party (ANPP) at a senatorial election which took place for the Taraba State Central senatorial seat on 12th April, 2003. The 1st respondent also contested the election on the platform of the Peoples Democratic Party, (PDP) and was declared elected. The appellants, on 15th May, 2003 filed a petition at the Election Tribunal. This was struck out in limine on the ground of failure to join necessary parties. On appeal, the Court of Appeal set aside the Tribunal’s decision striking out the petition. It ordered the petition to be remitted for hearing on its merit by another Tribunal.

The new Tribunal heard the petition and on 28/5/2004, dismissed it. Aggrieved, the petitioners/appellants have appealed to this court again.

Parties to this appeal as required by the Rules of court, have filed and exchanged briefs of argument.

The appellants’ brief filed out of time on 5/7/2004, was deemed filed on 25/11/2004 by order of this court of the same date.

The 1st respondent filed his brief on 29/11/2004 and the 2nd – 111th respondents’ filed theirs also on 29/11/2004. At the hearing of the appeal, Yakubu Ahmadu, Esq., learned counsel for the appellants adopted his brief of argument and urged the court to allow the appeal.

Y. N. Akirikwen, Esq. for the 1st respondent also adopted his brief and urged us to dismiss the appeal. For the 2nd – 111th respondents, H. M. Liman, Esq., leading Mrs. C. K. Okoli, adopted their brief and also urged this court to dismiss the appeal.

The parties to this appeal have in their briefs of argument identified issues for determination from the 6 grounds of appeal in the appellants’ notice of appeal filed on 3rd June, 2004.

For the appellants, the following 4 issues were identified:-

1. Whether the trial tribunal rightly applied section 133(2) of the Electoral Act to the petition filed by the appellants and on that ground failed to consider substantial evidence of irregularities and non-compliance established by the petitioners.
2. Whether the trial Tribunal was right in relying on section 135(1) of the Electoral Act, 2002 to uphold the election in the face of glaring irregularities and non-compliance with the Electoral Act and other guidelines prescribed for the election.
3. Whether the Tribunal was right in holding that the complaints in respect of return of votes in excess of ballot papers issued to certain ward were misdirected.
4. Whether the Tribunal was right in failing to invoke section 149(d) of the Evidence Act against the respondents for their failure to produce the ballot boxes and ballot papers when they were subpoenaed to do so.

The 4 issues for the 1st respondent are set out thus:-

1. Whether the trial Tribunal rightly applied section 133(2) of the Electoral Act, 2002 to the petition filed by the appellants and on that ground failed to consider substantial evidence of irregularities and non-compliance established by the petitioners.
2. Whether having regard to the pleadings and evidence on record the appellants have sufficiently or at all proved the alleged irregularities, malpractices and non-compliance stated in paragraphs 4 and 5 of their petition before the trial Tribunal and whether the trial Tribunal rightly applied section 135(1) of the Electoral Act, 2002 in dismissing the petition as it did.
3. Whether the trial Tribunal was right in holding that the complaints in respect of return of votes in excess of ballot papers issued to certain wards were misdirected.
4. Whether the trial Tribunal was right in ailing to invoke section 149(d) of the Evidence Act against the respondents for their failure to produce the ballot boxes and ballot papers when they were subpoenaed to do so.

For the 2nd – 112th respondents, the following 3 issues were settled:-

1. Whether the Hon. Tribunal was right when in construing section 133(2) of the Electoral Act, 2002, it held that failure to join officials of the 2nd respondent whose conducts was complained of as necessary parties to the case fatal to the appellants petition? (sic) (Relates to ground one).
2. Whether the Hon. Tribunal was right in holding that the election held in the Taraba Central Senatorial District on the 12th April, 2003 was done in substantial compliance with section 135(1) of the Electoral Act, 2002 (Relates to grounds 2, 3, 4 & 6).
3. Whether by the failure of the 2nd respondent in producing ballot boxes and papers it caused a miscarriage of justice on the appellants (Relates to ground 5).

I will at this stage set out briefly some facts relevant to the consideration of this appeal. The 1st respondent was returned on 16/4/2003 by 4th respondent/returning officer as having been elected Senator for the Central Senatorial District of Taraba State at the election held on 12th April, 2003. He was said to have scored 176,714 votes against the 1st appellant’s score of 83,279 votes. ‘The 1st respondent and the 1st appellant were the only two candidates at the election. The appellants’ first petition was struck out by the first National Assembly/Governorship and Legislative Houses Election Petition Tribunal, sitting at Jalingo, Taraba State. This was upon a motion on notice filed by the 1st respondent alleging non-joinder of certain alleged necessary parties to the petition. When this court set aside the order striking out the said petition as earlier stated and ordered the hearing and determination of the same on its merit, before another Tribunal, parties proceeded to call oral and documentary evidence. The appellants called 6 witnesses and all the respondents, 4 – 6 by the 1st respondent, and 8 by the 2nd – 111th respondents.

The grounds of the petition of the appellants relevant to this appeal are set out in paragraphs 4 and 5 thereof thus:-

4. Your petitioners state that the election under reference was marred by irregularities and malpractices and non-compliance with the Electoral Act of 2002 and other relevant laws and in particular:-

(a) Returning maximum votes (100%) of exact number of allowed registered voters in a polling unit when some registered voters of such polling units did not vote.