Mamman Musa & Anor V. Mohammed Abdullahi & Ors (2008)

LawGlobal-Hub Lead Judgment Report

OYEBISI FOLAYEMI OMOLEYE, J.C.A.

: This is an appeal against the judgment of the National Assembly/Governorship and State House of Assembly Election Petition Tribunal, Niger State holden at Minna. The judgment was delivered on 6/8/2007.

The brief feds of this case are that the 1st Appellant, the candidate of the 2nd Appellant, PDP contested “inter alia “with the 1st Respondent, the candidate of ANPP, the 2nd Respondent the election into the Niger State House of Assembly for the Bosso Local Government Constituency on the 14th day of April, 2007 general elections. The 1st Respondent was declared the winner by the 3rd Respondent, the returning officer and an agent of the 4th Respondent, INEC.

The 1st and 2nd Appellants aggrieved with the outcome of the Said election, filed a petition at the lower Tribunal on the ground that the 1st Respondent was not qualified to participate in the election because he failed to resign his appointment as a public officer with the Niger State Government thirty (30) days before the said 14th April, 2007 general election. The 1st and 2nd Respondents filed their Reply to the petition appropriately.

The case went to trial and the lower Tribunal in its considered judgment delivered on 6/8/2007 dismissed the petition of the Appellants as lacking in merit. It is against the said judgment that the Appellants filed this appeal.

The Amended Notice of Appeal of the Appellants dated 16/8/07 was filed on the same date. It contained five (5) grounds of appeal.

These with their particulars are as follows and I quote verbatim:

“GROUNDS OF APPEAL

1. The Tribunal erred in low when it held that Section 149 (d) of the Evidence Act operated against the Appellants in this case.

PARTICULARS

i. The Tribunal held on page 11 of its judgment thus “For the same reason that they (petitioners) deem it necessary to call PW1, PW2 and PW3 as witnesses, it is the duty of the petitioners to also as witness the staff officer, who was the immediate boss of 1st respondent, and to whom he claimed he gave his letter of resignation .. ”

“We hold under S. 149(d) Evidence Act that the petitioners failed to call the staff officer as a witness because his evidence would have shown that 1st respondent resigned his appointment as he claimed”.

b. The petitioners never alleged or claimed that the 1st respondent gave (or did not give) any letter of retirement to the staff officer. In fact, the petitioners did not mention the phrase ”staff officer” either in their pleading or evidence.

c. The story of the 1st respondent giving his notice of withdrawal from service to the staff officer of his ministry was first weaved and contrived by the 1st and 2nd respondents in paragraph 3(b) of their reply, and paragraph 4 of the statement on oath of the of respondent.

d. There, is not a scintilla of evidence that the staff officer, (if there was one) was the “immediate boss” of the 1st respondent.