Hamisu Salisu Kore & Anor V. Independent National Electoral Commission & Ors (2008)

LawGlobal-Hub Lead Judgment Report

BABA ALKALI BA’ABA, J.C.A.

This is an appeal against the ruling of the Governorship and Legislative Houses Election Petition Tribunal sitting in Kano in petition No. EPT/KNS/HR/31/2007 wherein the Tribunal struck out the petition of the appellant in limine on the 4th day of September, 2007 (see pages 416 – 435) of the record. The 1st appellant/petitioner was the candidate of the 2nd appellant/petitioner, All Nigeria Peoples’ Party (ANPP) in the election into Doguwa/Tudun Wada Federal Constituency of Kano State into the House of Representatives while the 3rd respondent was the candidate for the Peoples Democratic Party (PDP) in the said election conducted by the 1st respondent, INEC.

At the end of the election, the 3rd respondent was declared the winner of the election. Unhappy with the declaration and return of the 3rd respondent as the winner of the election, the appellants filed a petition dated and filed on 21/5/2007 containing fourteen paragraphs at pages 2a – 5 of the record. The ground of the petition is as follows:-

“The 3rd Respondent was not duly elected by a majority of lawful votes cast at the election.”

“WHEREOF Your Petitioners pray that it be determined:

i. That the Petitioner is the candidate duly elected into the House of Representatives for the Doguwa/Tudun Wada Federal Constituency of Kano State at the National Assembly Election which took place on Saturday the 21st day of April, 2007.

ii. That the 3rd Respondent was not elected by the majority of the lawful votes cast at the said election as declared by the 1st and 2nd Respondents.

iii. That the purported declaration by the 1st and 2nd Respondents of the 3rd Respondent as the elected candidate into the House of Representatives for the Doguwa/Tudun Wada Federal Constituency of Kano State is ultra vires the Electoral Law, and is in the premise null and void and of no legal effect.

iv. That the purported declaration by the 1st and 2nd Respondents of the 3rd Respondent as the elected candidate into the House of Representatives for the Doguwa/Tudun Wada Federal Constituency of Kano State be, and is set aside.”

But before the hearing of the petition, the 3rd respondent/ applicant filed a motion on notice dated and filed on 27/6/2007, praying for:-

“(1) An order striking out the Petition filed herein by the Petitioners/ Respondents, Petition No. EPT/KN/HR/31/007, for being fundamentally defective, invalid and incompetent.

(2) And such further or other Orders as this Honourable Tribunal may deem fit to make in the circumstance of this case.”

The motion was supported by a six paragraph affidavit deposed to by one Miss Clementina Adeola Fakoya of No.88, Tafawa Balewa Road, Kano, a legal Practitioner in the chambers of O.E.B. Offiong & Co, the Legal firm representing the 3rd respondent/applicant. The paragraphs are as follows:

“1. That I am a Legal Practitioner in the Firm of O.E.B. OFFIONG & CO., whose O.E.B. OFFIONG ESQ is the Principal Counsel handling the defence of the 3rd Respondent/ Applicant in this Petition in conjunction with the other legal Practitioners in the firm including my humble self.