Saida Sa’ad & Anor V. Mohammed Abubakar Maifata & Ors. (2008)

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MASSOUD ABDULRAHMAN OREDOLA, J.C.A.

The 1st Appellant, Saida Sa’ad contested election under the platform of the 2nd Respondent, Action Congress Party (ACP), during the general election held nationwide on 21st April, 2007, into the Federal House of Representatives for the Tarauni Federal Constituency, Kano. The 1st Respondent, Mohammed Abubakar Maifata also contested the same elective post under the sponsorship of the 2nd Respondent, All Nigerian Peoples Party, (ANPP). The 3rd ‘and 4th Respondents alongside others conducted the said election. The results declared by the 3rd and 4th Respondents returned the 1st Respondent as the winner with 35,932 votes, while the 1st Appellant came third with 6,654 votes.

Being dissatisfied with this unpalatable turn of events, the Appellants herein, on 22nd May, 2007 filed their petition containing 14 paragraphs, before the National Assembly Election Tribunal, holden at Kano, Kano State (Pages 1 – 30 of the record). The petition was predicated on two grounds, namely, invalidity by reason of corrupt practices/non compliance with provisions of the Electoral Act, 2006 and educational disqualification of the 1st Respondent.

On 25th June, 2007, the 1st and 2nd Respondents caused a memorandum of conditional appearance to be filed on their behalf and eventually on 9th July, 2007, they filed their joint reply to the petition. (Pages 84 – 85 and 102 – 116 of the record). Leave was also granted on 27th September, 2007 to the 3rd and 4th Respondents to amend their reply filed on 1ih September, 2007. Series of applications were filed by the parties, taken, heard and determined by the Tribunal with delivery of rulings thereon.

On 25th October, 2007 and in the course of hearing in the matter, the Tribunal observed thus:

In the interim however, the Tribunal would like learned counsel for the Petitioners to confirm as to when filing fees were paid and the date receipt issued.

The response of B. O. Osuji Esq., learned counsel for the Appellants then Petitioners was:

The petition was filed on the 22/5/07 at 5.58 p.m. I cannot however find the receipt now.

He went further and added:

I will apply for a short adjournment to enable me confirm from the office if receipt has been issued or not.

After written addresses have been duly filed and exchanged by the learned counsel for the parties as ordered by the Tribunal, the Tribunal delivered its ruling on 22nd October, 2007 in respect of complaints made against paragraphs 9, 10 and 11 of the petition regarding the issue of nonjoinder of presiding officers of polling units as respondents in the petition. The stated paragraphs 9, 10 and 11 of the petition were held incompetent and accordingly struck out. With that development, the first ground of the petition bit the dust.

The Appellants vide motions filed on 20th October, 2007 and 24th October, 2007 sought leave of the Tribunal to summon the erstwhile Secretary of the Tribunal, to produce receipt for filing fees/security for cost paid to her by Appellants and for inspection of requisite court records. The previous motion filed on 20th October, 2007 was withdrawn and struck out.

The one filed on 24th October, 2007 was duly heard and argued and the Tribunal’s ruling thereon, inter alia gave birth to the instant appeal. It is to be noted that the said motion was supported by a 24 paragraph affidavit sworn to by Omereonye C. Morgans, a Kano based legal practitioner who stated therein that he has a working relationship with M. N. Duru Esq., the learned counsel for the Appellants. In yet another affidavit, this time a further and better affidavit sworn to on 1st November, 2007 by one Collins Ukachukwu, a Litigation Secretary in the law firm of M. N. Duru & Co, it was deposed therein that the court’s file in respect of the petition has the assessed requisite fees payable for the petition to be in the sum of N4,895.00 duly stamped as paid and signed with the date of payment by the then Tribunal’s Secretary, Mrs. E. I. Sowemimo. In the ruling of the Tribunal delivered on 21st November, 2007 the prayer relating to summoning Mrs. E. I. Sowemimo was refused while the second prayer for inspection of court documents was granted.

Subsequently and on 19th January, 2008 the Tribunal delivered its ruling on the issue of payment of filing fees and production of receipt evidencing payment of filing fees raised suo motu by the Tribunal. It found therein that: