Abdullahi Alhaji Minjibir & Anor. V. Sani Sale Minjibir & Ors. (2008)

LawGlobal-Hub Lead Judgment Report

MASSOUD ABDULRAHMAN OREDOLA, J.C.A.

The 1st Appellant – Abdullahi Alhaji Minjibir was the candidate fielded by the 2nd Appellant – Peoples Democratic Party for election to the Minjibir/Ungongo Federal House of Representatives Constituency of Kano State. The election was held on 21st April, 2007. The Respondent-Sani Sale Minjibir also contested in the said election for the same office. He was sponsored by the 2nd Respondent-All Nigeria Peoples Party. The 3rd and 4th Respondents organized and conducted the said election in the course of their statutory functions. At the end of the day, the 1st Respondent was declared and returned by the 3rd and 4th Respondents as the successful candidate and winner of the election in question.

Being dissatisfied with the said declaration and return, the 1st and 2nd Appellants herein as Petitioners, filed a petition numbered EPT/KNS/HR/42/2007 before the Tribunal. It was dated and filed on 22nd May, 2007, containing 14 paragraphs and challenging the conduct of the said election and return of the 1st Respondent. (Pp. 2-25 of the record)

Upon being served with the petition, both 1st and 2nd Respondents filed their joint memorandum of conditional appearance dated 14th June, 2007 and filed on the same date. (P.59 of the record) Thereafter, on 28th June, 2007 the 1st and 2nd Respondents filed their joint reply dated the same date to the petition. (Pp. 87-99 of the record) The said joint reply was duly served on the Petitioners and 3rd and 4th Respondents through their respective learned counsel on 2nd July, 2007 and 5th July, 2007 respectively. (Pp. 134 – 137 of the record)

The 3rd and 4th Respondents engaged in filing motions for extension of time to file their memorandum of appearance, dated 3rd July, 2007 and filed on 5th July, 2007. (Pp. 138 – 144 of the record) Another motion for extension of time to file their reply to the petition is dated 20th July, 2007 and filed on 23rd July, 2007. (Pp. 198-234 of the record)

Thereafter and on 27th July, 2007 to be precise, the Petitioners vide their motion on notice dated 26th July, 2007 prayed the Tribunal for, “an order issuing the Form TF 007 and other Pre-Hearing session documents and to schedule the Pre-Hearing Sessions.” (Pp. 237-242 of the record) The 1st and 2nd Respondents also filed a counter-affidavit deposed to on 1st August, 2007 against the aforesaid Petitioners’ motion for issuance of Form TF007 and other pre-hearing session documents. (Pp. 245 and 246 of the record) the Petitioners also filed a further and better affidavit sworn to on 9th August, 2007 in response to the aforesaid counter-affidavit filed by the 1st and 2nd Respondents (Pp. 260-261 of the record).

On 13th July, 2007, and in the course of hearing the petition, the learned counsel for the 3rd and 4th Respondents applied and withdrew their motion on notice dated 3rd July, 2007. The application was granted and the said motion was struck out having been withdrawn by counsel. (P. 266 of the record).

On 9th August, 2007, the motion on notice filed by the Petitioners for issuance of Form TF007 was taken, argued and duly heard. The learned counsel for all the Respondents respectively opposed the application. (Pp. 268-271 of the record). The Tribunal in its considered ruling delivered on 10th August, 2007, found that the application for issuance of Form TF007 by the Petitioners was filed out of time. It then went ahead and dismissed the petition as an abandoned petition. (Pp. 272-279 of the record).

Aggrieved by the unpalatable turn of events as heralded by the Tribunal’s ruling, the Petitioners (hereinafter referred to as Appellants) filed their notice and grounds of appeal dated 23rd August, 2007 but filed on 24th August, 2007 containing four grounds of appeal. (Pp. 280-283 of the record). Out of these grounds of appeal, two issues were distilled for determination by the Appellants. The issues are reproduced below:

2.02 Whether the learned Trial Tribunal was right when it struck out this petition as an abandoned petition notwithstanding the existence of a subsisting application by the 3rd and 4th Respondents for extension of time within which to file their reply.

2.03 Whether the learned Trial Tribunal’s Ruling which was based on speculations and assumptions regarding the date the 2nd and 3rd Respondents were served with the petition in this matter, led to a miscarriage of justice in this petition.

The 1st and 2nd Respondents in their brief of argument dated and filed on 19th November, 2007 submitted one issue for resolution in this appeal. It states: (i) Whether the Honourable Tribunal was in error in dismissing the petition for the Petitioners failure to comply with the mandatory provisions of the Election Tribunal and Court Practice Direction, 2007 which command filling of an application for issuance of pre-hearing notice as in Form TF007?

The 3rd and 4th Respondents also in their brief of argument dated 6th November, 2007 and filed on 7th November, 2007 formulated two issues for determination in the instant appeal. Both issues are as follows:

3.2 Whether or not the Appellants petition was liable to be dismissed as abandon in accordance with the provisions of paragraph 3(4) of the Election Tribunal and Court Practice Direction, 2007.