Alhaji Usman Alhaji & Anor. V. Arch (Alh) Kabiru Ibrahim Gaya & Ors. (2008)

LawGlobal-Hub Lead Judgment Report

ABUBAKAR ABDULKADIR JEGA, J.C.A.

This is an appeal from the decision of the National Assembly Elections Tribunal-sitting in Kano delivered on 2nd day of November, 2007. The judgment relates to the election in respect of Kano South Senatorial District held on the 21st April, 2007.

The 1st Appellant was a candidate sponsored by the 2nd Appellant in the aforementioned elections for membership of the Senate of the Federal Republic of Nigeria to represent Kano Senatorial District of Kano State of the Federal Republic of Nigeria.

The 1st Respondent was a candidate sponsored by the 2nd Respondent in the aforementioned elections for membership of the Senate of the Federal Republic of Nigeria, to represent Kano South Senatorial District of Kano State of the Federal Republic of Nigeria.

The elections aforementioned were conducted under the supervision of the 3rd – 5th Respondents at the end of which exercise the 3rd Respondent returned the 1st Respondent as the winner of the election.

The Appellants as petitioners were not satisfied with the validity of the return made by the 3rd Respondent and by a petition dated and filed on the 21st May, 2007 which was amended by an order of the Tribunal made on 3rd August, 2007 challenged the said return alleging that the 1st Respondent was not at the time of the election qualified to contest the election and that the facts of the disqualification of the 1st Respondent was so notorious within the Kano South Senatorial District that voters in the constituency who cast their votes for the 1st Respondent knew or had reason to know that they were throwing away or wasting the votes casts for the 1st Respondent. All the Respondents filed their Replies to the petition. The 1st & 2nd Respondents relied on the Reply dated 26th June, 2007. The Reply of the 3rd to 5th Respondents notwithstanding the change of counsel is the one dated 26th June, 2007. The facts of the petition are that the 1st Respondent was Governor of Kano State between 1992 and 1993. By an instrument contained in Exhibit P7, the Military Administrator of Kano State constituted a Judicial Commissioner of Inquiry into certain activities of the State Government between 1992 and 1993 under the Chairmanship of Hon. Justice Wada Omar Kano. The terms of reference of the Judicial Commission of Inquiry which are contained in a schedule to the instrument included enquiry into – “The operations of the following funds between the 1st day of January, 1992 and 31st December, 1993 (both dates inclusive) –

(i) The pension fund; and

(ii) The ecological disaster relief fund;

(iii) Management of the pilgrims Welfare Board between 1992 and 1993.”

Also included in the terms of reference of the Judicial Commission of Inquiry were the following:-

“2. To determine the extent of financial contribution if any made by the Federal Government or any grant made to the funds or accounts during the period.

3. To determine how contribution or grants received pursuant to paragraph 2 above were disbursed or utilized and whether or not any amount was lost through fraud or other forms of malpractice.
4. To identify the officers or other persons involved in any fraudulent transaction or deed in relation to the funds and determine the extent of their liability or culpability.”

Pursuant to the instrument of its appointment and terms of reference the Commission conducted the inquiry and submitted its report Exhibit 5. It extensively reviewed the involvement of the 1st Respondent in various fraudulent schemes pertaining to funds covered under the terms of reference and indicted the 1st Respondent of fraud and embezzlement. In a White Paper contained in Exhibit P8 the Government of Kano State accepted the indictment of the 1st Respondent.

The 1st Respondent challenged his indictment of fraud and embezzlement inter alia by the Commission of Inquiry and the Government White Paper accepting the indictment before the Kano High Court of Justice in Suit No. K/83/98 between the 1st Respondent and Military Administrator of Kano State & Anor alleging them to be unconstitutional, illegal, null and void of no effect whatsoever but the High Court of Justice of Kano Sate in a judgment given on the 28th May, 1998 upheld the constitutionality, legality and effectiveness of the Report containing the indictment for fraud and embezzlement and the White Paper accepting same.

Exhibits P9, 10, 12, 12(1), 13, 13(1), 13(2), 14 & 15 were documentary evidence corroborating the testimonies of PW1, 2, 3 & 4 to the effect that the indictment of the 1st Respondent was well known in Kano South Senatorial District such that the voters who voted for the 1st Respondent knew they were throwing away their votes.