Hon. Engr. Bako Sarai & Anor V. Inusa Haruna & Ors (2008)

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JOHN INYANG OKORO, J.C.A.

This is an appeal against the decision of the Governorship and Legislative Houses Election Petition Tribunal sitting in Kano in petition No EPT/KNS/HR/27/07 wherein the Tribunal, on 17th September 2007, struck out the petition filed by the Petitioners/Appellants dated 21st May, 2007.

The 1st Appellant, and 1st Respondent were candidates at the National Assembly i.e. House of Representatives Election which took place on the 21st April, 2007. Whereas the 1st Appellant contested on the platform of the Peoples Democratic Party, the 1st Respondent was the candidate of All Nigeria Peoples Party for the DAWAKIN KUDU/WARAWA Federal constituency in Kano State. At the end of the election, the 1st Appellant was said to have polled 22,298 votes cast while the 1st Respondent was said to have polled 46,600 votes whereupon the 3rd Respondent declared the 1st Respondent as duly elected by the people of that constituency having polled majority of lawful votes cast.

Against this declaration, the Appellants as Petitioners filed a petition before the Election Petition Tribunal sitting in Kano on the 21st day of May, 2007, alleging among other things, undue return of the 1st Respondent as the winner of the said election and urging the Election Tribunal to void the return of the 1st Respondent.

In the course of proceedings, the 1st, 2nd, 68th – 78th Respondents filed a Notice of preliminary objection to the competence of the petition as well as the jurisdiction of the Election Tribunal to entertain same. Written addresses were filed by parties who also adopted same leading to the ruling delivered by the Tribunal on 17th September 2007 whereupon the Tribunal upheld the objection and struck out the petition. Being dissatisfied with the said ruling of the Election Tribunal, the Appellants have appealed to this court.

Notice of appeal in this case is dated 25th Sept. 2007 and filed on 26th Sept. 2007. It contains two grounds of appeal from which the Appellants have decoded two issues for determination. The issues are as follows:-

“1. Whether the provisions of the schedule to the Electoral Act 2006, that is, paragraph 4 sub- rule (3b) supports the decision in the Supreme Court case of Immanuel Okafor V. Augustine Nweke (2007) ALL FWLR (pt. 368) 1016 at 1025-1027.

2. Whether the Election Petition Tribunal can give two different decisions based on the same facts before it”

On receipt of the Appellants’ brief of argument, the learned counsel for the 1st, 2nd, 68th – 75th Respondents also distilled two issues for consideration of this appeal as follows:-

“1. Whether the Election Petition Tribunal sitting in Kano was wrong in holding that the Election petition No EPT/KNS/HR/27/07 was not properly signed in accordance with the provisions of paragraphs 4 (3) (b) of the first schedule to the Electoral Act, 2006, relying on the Supreme Court decision in Okafor V. Nweke ALL FWLR (pt. 368) p. 1016 at pp 1025 -1027 paragraphs G-B (distilled from Ground 1 of the Grounds of Appeal).

2. Whether the Election Petition Tribunal sitting in Kano was wrong in not following its earlier decision in Election Petition No. EPT/KNS/HR/17/07 between BAGWAI & ANOR V. GODA & 27 ORS. (Unreported) delivered on the 7th day of September, 2007 especially when there was a distinguishing feature between BAGWAI & ANOR V. GODA & 78 ORS and the instant case (culled from Ground 2 of the Grounds of Appeal)

The learned counsel for the 3rd to 67th Respondents also couched two issues which are in all four with that submitted by the 1st set of Respondents which I have already reproduced above. I have no intention of recasting the 3rd to 67th Respondents’ issues here as it will amount to an unnecessary repetition, From the issues formulated by the parties in this appeal, it seems to me that the issues as couched by the two set of respondents are more lucid and will certainly assist this court in arriving at a decision. That is not to say that the Respondents’ issues are different from that of the Appellants. They convey the same meaning but that of the Respondents are more elegantly drafted and I am inclined to determining this appeal based on the issues as formulated by the Respondents, after all, as has been stated before now, a good issue edifies a brief and is a source of pleasure and inspiration to the owner of the brief. See Tobi: The Brief System in Nigerian Courts 1999 p. 29. Counsels are therefore advised to make their issues simple, concise and clear enough to enable the adverse party and the court to know the trend of the argument in the brief. Having said that, I now proceed to consider the argument of counsel in this appeal.

On the first issue, the learned counsel for the Appellants, referring to paragraph 4 Rule 3 (b) of the first schedule to the Electoral Act 2006, submitted that it is only the signature of the Petitioner or Petitioners or their Solicitor that is required to authenticate the petition filed. That where the name or names of the Petitioner(s) or their Solicitor are written at the foot of the Petition it is only then that it is required that each person should sign against his name. Furthermore, that the above provision requires that the petition be “signed only” wherein he referred to the case of Ibrahim & Ors. V. Sheriff & Ors (2004) I EPR, 215 at 220.

It was a further contention of learned Appellants’ counsel that the absence of the name or names of the Petitioner or Petitioners or Solicitor at the foot of the petition would not vitiate the petition provided there is “any signature” at the end thereof. More so, that it amounts to technicality the opinion of the court below that the signature on the petition does not show whether it is for the 1st Petitioner or for the 2nd Petitioner. He urged this court not to cave in to technicality, relying on the case of Dikko Yusuf & Anor V. Obasanjo & Ors. (2004) 1 EPR 467 at 478.

Furthermore, on the issue, learned counsel opined though erroneously, that by Paragraph 4 Rule 6 of the 1st schedule to the Electoral Act 2006, the petition should not have been dismissed but ought to have been struck out. The record shows that the Petition was struck out and not dismissed, it should be noted.

Finally, it was submitted that since the issue of signature was not raised in the response to the petition and that the Respondents having taken steps in the proceedings, cannot be allowed to benefit from any irregularity if at all there is one in accordance with paragraph 4 Rule 3 (b) of the 1st schedule to the Electoral Act, 2006. He urged the court to allow this appeal on this issue.