Yusuf Mohammed Anka & Anor V. Abdulaziz Yari Abubakar & Ors. (2008)

LawGlobal-Hub Lead Judgment Report

BABA ALKALI BA’ABA, J.C.A.

This appeal is against the decision of the Zamfara State Election Petition. Tribunal in Petition No. EPT/ZMS/GS/HR/15/2007, holden at Gusau, Zamfara State filed on 21/5/2007 by the 1st and 2nd appellants who were the petitioners against the 1st and 2nd respondents. The 1st appellant, Yusuf Mohammed Anka, was sponsored by the 2nd appellant, Peoples Democratic Party (PDP) while the 1st respondent, Abdulaziz Yari Abubakar, was sponsored by the 2nd respondent, All Nigeria Peoples Party (ANPP) respectively to contest for the office of member representing Talata Mafara/Anka Federal Constituency in the House of Representatives at’ the April 21st 2007, National Election conducted by the 3rd – 5th respondents.

According to the appellants the 1st respondent was indicted for embezzlement and fraud by the Administrative panel of Inquiry on alleged corrupt practices by some public officers and other persons as contained in the Government White Paper

At the end of the said election the 1st respondent was returned by the 3rd – 5th respondents as elected.

Aggrieved by the declaration and return of the 1st respondent as the winner of the said election, having scored the highest number of lawful votes at the election. The appellants filed a petition referred above challenging the declaration and return of the .1st respondent. The appellants’ petition accompanied by statements on oath of witnesses are contained at pages 2-24 of the record.

The 1st and 2nd respondents in response to the petition, filed a joint reply with statements on oath to which exhibits were attached at pages 53 – 64 of the record. The 3rd – 5th respondents also filed a reply to the petition supported by statements on oath at pages 186 – 190 of the record. The appellants filed a reply to the 1st and 2nd respondents’ reply which is at pages 142 – 143 of the record.

At the pre-hearing conference, all the parties in the petition, agreed that the issue for determination was whether the 1st respondent was at the time of the election not qualified to contest the election and whether the election was invalid by reason of non-compliance with the provisions of the Electoral Act, 2006. At the hearing of the petition, the appellants who were the petitioners called, witnesses and tendered documents in support of their case while the 1st and 2nd respondents tendered a document in evidence but did not call any witness. The 3rd – 5th respondents also called one witness but did not tender any document in evidence.

In a reserved and considered judgment delivered on 24/8/07, the Tribunal dismissed the appellants’ petition when it held at page 284 of the printed record as follows:

“In our conclusion, we see no merit in the petition regarding the disqualification of the 1st respondent from contesting the election an issue in the petition. And having determined this principal issue against the petitioners, we do not see the prayer to be returned as elected to arise in this petition. Even if it does arise, the only evidence that would avail for such order is that the fact of disqualification was of such notoriety in the electorate that the votes cast for him could be considered as wasted. See the case of Alh. Mohammed Daggash vs. Hajia Fati Ibrahim Bulama (2005) All NLWR (Pt246) 1327 at J351 paras. A-G.

The only evidence that could be of public notice and, a fortiori of notoriety to his constituency is Exhibit P1 of Exhibit P, which Exhibit EE has quashed and set aside. The entire petition fails and it is hereby dismissed.”

Being dissatisfied with the said judgment, the appellants filed a Notice of Appeal dated 23/8/07 at pages 286 – 289 of the record, containing five grounds of appeal. The appellants at page 2 of the appellants brief formulated two issues for determination in this appeal as follows:

“(1) Whether or not the 1st respondent was at the time: of the election qualified to contest the election. This issue arises from grounds 1, 2, 3 and 4 in the notice of appeal.

(2) Whether or not there was proper evaluation of and ascription of probative value to the evidence adduced by the petitioners in proof of their petition on ground of non-compliance with the Electoral Act. This issue arises from ground 5 in the notice of appeal.”

The 1st and 2nd respondents at page 3 of their brief also formulated two issues for determination in this appeal as follows: