All Nigeria Peoples Party & Anor. V. Hon. Bala Na’allah & Ors. (2008)

LawGlobal-Hub Lead Judgment Report

JOHN INYANG OKORO, J.C.A.

This is an appeal against the judgment of the National Assembly, Governorship and Legislative Houses Election Petition Tribunal sitting in Bernin Kebbi, Kebbi State in petition No. KB/EPT/HR/6/07 wherein the Tribunal dismissed the Appellants’ petition on 10th October, 2007. A brief facts giving birth to this appeal are that on the 21st day of April, 2007, the 3rd Respondent (INEC) in conjunction with the 4th to 47th Respondents conducted elections into the House of Representatives in the Zuru/Danko/Wasagu/Sakabo/Fakai Federal Constituency of Kebbi State. In the said election the 1st Appellant sponsored the 2nd Appellant as its candidate in the Election. The 1st Respondent contested on the platform of the 2nd Respondent. At the end of the election, the 1st Respondent was declared winner and returned elected.

Dissatisfied with the return of the 1st Respondent by the 3rd Respondent, the Appellants as petitioners filed a petition dated 21st May, 2007 at the Lower Tribunal challenging the return of the 1st Respondent as member the Zuru/Danko/Wasagu/Sakaba/Fakai Federal Constituency of Kebbi State. On receipt of the petition, the 1st and 2nd Respondents filed Notice of Preliminary objection on 28th May, 2007 challenging the competence of the petition and the jurisdiction of the Court. The 1st and 2nd Respondents also filed another Notice of preliminary objection on 2nd July, 2007. The parties agreed to roll over to the trial the preliminary objection. At the end of trial, the lower Tribunal upheld the election of the 1st Respondent and dismissed the petition for lacking in merit. On the preliminary objection, the Tribunal held that the petition was competent and that it had jurisdiction to hear the petition invariably overruling the preliminary objection.

Dissatisfied with the stance of the Tribunal in dismissing their petition, the Appellants, on 30th October, 2007, filed Notice of appeal containing seven grounds of appeal and from the said grounds of appeal, the Appellants have formulated seven issues for determination. The issues are as follows:-

1. Whether the trial Tribunal was right in failing to address the Appellants’ objection to the competence of the process filed by the Respondents in response to the Appellants’ petition.
2. Whether the trial Tribunal was not bound to invoke Section 149(d) of the Evidence Act against the 3rd Respondent for failure to produce Register of voters of which they were given notice to produce.
3. Whether Exhibit P7 – P11 had not discharged the burden the documents were meant to served (sic) details ( sic) particulars having been provided thereon.
4. Whether the case before the trial Tribunal was that of sponsorship and not that of double nomination.
5. Whether the Appellants properly raised the issue that the substitution of the 1st Respondent was dependant on the merger agreement and that the withdrawal of the earlier candidate and the substitution with the 1st Respondent was not done in contravention of the Electoral Act, 2006.
6. Whether the 1st Respondent was qualified to contest the election into the House of Representatives for Zuru/Sakaba/Danko/Wasugu/Fakai Federal Constituency held on the 21st day of April, 2007.
7. Whether the judgment of the trial Tribunal was not against the weight of evidence.

The Learned Counsel for the 1st and 2nd Respondents submits that only one issue arises from the seven grounds of appeal for the determination of the appeal and it is couched thus:-

“Whether or not the Lower Tribunal was right in dismissing the petition and upholding the return of the 1st Respondent as the duly elected Member of the House of Representatives representing Zuru/Danko/Wasagu/Sakabal Fakai Federal Constituency.”

In the brief filed by the Learned Counsel for the 3rd to 47th Respondents, four issues are formulated. The issues are:-

1. Are the replies, Motions and Notices of preliminary objection filed by the Respondents before the Lower Tribunal competent?
2. Was the Lower Tribunal bound to invoke Section 149 (d) of the Evidence Act against the 3rd Respondent for its failure to produce register of voters?
3. Whether the Lower Tribunal acted properly when it refused to accord any probative value to exhibits P6 – P11 tendered by the petitioners/Appellants.
4. Whether the 1st Respondent was qualified to contest the election.

In arguing this appeal, the Appellants grouped the seven issues into three and argued them as if they were three issues. That is to say, issue one is argued separately. Issues 2, 3 and 7 are argued together while issues 4, 5 and 6 are also argued together. I intend to determine this appeal based on the three groups of issues as argued by the Appellants. Strictly speaking, the issues are three and not seven as couched by the Appellants. In other words, there are duplication of issues and this should be discouraged. One does not win a case on the number of issues but on how cogent and relevant they are to the decision of the Lower Court and the grounds of appeal See Alao Vs. Akamo (2005) 11 N.W.L.R. (Pt.935) 160. Be that as it may, I now proceed on the serious business at hand.

On the 1st issue, it was the contention of the Learned Counsel for the Appellants that the notice of preliminary objection dated 28th May, 2007 and filed on the 30th Day of May, 2007 and the one incorporated in the petition dated 11th day of June, 2007 were apparently filed in breach of the provision of section 6 (2) of the Election Tribunal and Court Practice Direction 2007 having been filed in a form other than a motion supported by an affidavit in addition to its failure to state the rule or law under which it was brought. Also that the preliminary objection was not supported by a written address in support of the reliefs sought. It was a further contention of the Appellants that the preliminary objection also filed by the 3rd – 47th Respondents were defective in that it failed to comply with Section 6(2) of the Election Tribunal and Court Practice Direction 2007. Learned Counsel cited the case of Ladipo Vs. Oduyoye & Ors (2004) 1 EPR 705 and urged this Court to dismiss the preliminary objection filed by both set of Respondents.

In his reply, the Learned Counsel for the 1st and 2nd Respondents submitted that the preliminary objection is not related to or limited by paragraph 6(2) of the Practice Direction quoted and relied upon by the Appellants.

Furthermore, that if the Appellants had averted their minds to Section 147 (3) of the Electoral Act, paragraphs 4(1), 4 (2) and 4 (6) to the 1st Schedule to the Electoral Act 2006, or the time honoured principle that the jurisdiction of the Court is a threshold issue which may be considered at any stage in the course of proceedings, they would have realized the futility of their case regarding the competence of the 1st and 2nd Respondents preliminary objection. He contended further that the Appellants misunderstood the purport of the preliminary objection and misdirected themselves on the issue of whether or not the Electoral Act or the 1st Schedule to the Electoral Act 2006 put a time limit on when a preliminary objection can be raised. The Learned Counsel for the 3rd – 47th Respondents also made a similar reply as that of the 1st and 2nd Respondents and I do not intend to repeat it here. Both Counsels for the two set of Respondents urged this Court to hold that their preliminary objections were competent.

Let me say from the out set that I do not know what the Appellants intend to achieve from this issue since the lower Tribunal resolved the preliminary objection raised by the Respondents in their favour. On page 397 of the record of appeal, the Tribunal, after considering the preliminary objection, concluded as follows:-

“The grounds the petitioners in Petition No.6 are challenging the conduct of the election as contained in paragraph D (i), (ii) and (iii) of the petition are stated hereunder even at the risk of repetition.

“1. The 1st Respondent was at the line of the election, not qualified to contest the election.