All Nigeria Peoples Party & Anor. V. Hon. Engr. Abdullahi Umar Faruk & Ors. (2008)

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MASSOUD ABDULRAHAM OREDOLA, J.C.A.

This appeal is against the judgment of the National Assembly/Governorship/Legislative Houses Election Tribunal, sitting at Birnin-Kebbi, Kebbi State, in Petition NO.KB/EPT/HR/5/07. The election in question was for the member to represent Bunza/Birnin-Kebbi/Kalgo Federal Constituency of Kebbi State in the National Assembly and precisely the House of Representatives. The election took place on 21st April, 2007. According to the Petitioners, the 3rd Respondent herein alongside other Respondents conducted the said election. The 1st Appellant – All Nigeria Peoples Party (ANPP) sponsored the 2nd Appellant – Abubakar Malami Esq. as its candidate. Similarly, the 1st Respondent – Hon. Engr. Abdullahi Umar Faruk was sponsored by the 2nd Respondent, Peoples Democratic Party (PDP). The 1st Respondent was declared and returned as the winner of the said election with 71,023 votes while the 2nd Appellant scored 28,274 votes.

By a petition dated and filed on 21st May, 2007, the 1st and 2nd Appellants as Petitioners challenged the declaration and return of the 1st Respondent as the winner of the said election. The petition, accompanied by written statements on oath of witnesses and list of documents to be relied upon can be found at pages 1-48 of the record..,

The grounds raised by the Appellants for the challenge mounted against the return of the 1st Respondent are three. They are reproduced thus:

1. The Respondent was at the time of the election not qualified to contest the election.
2. The election was invalid by reason of corrupt practices and or non compliance with the mandatory provisions of the Electoral Act, 2006.
3. The 1st Respondent was not duly elected by majority of lawful votes cast at the election. The reliefs prayed for by the Appellants before the Tribunal are reproduced below:
4. That the 1st Respondent was not duly elected or returned and that his election was void and that the said Abubakar Malami Esq. sponsored by the 1st Petitioner was elected and ought to have been returned or as the case may be and or in the alternative nullifying the election in its entirety.
5. That the election of the 1st Respondent be nullified as he was not eligible, qualified and competent to contest the said election, his nomination having been made in breach of the provisions of the Electoral Act, 2006.
6. That the election of the 1st Respondent is invalid as the merger in pursuance of which the 3rd Respondent was misled into accepting the substitution of the 1st Respondent was in fact not duly consummated.
7. And such further orders or reliefs as the Honourable Tribunal may deem fit to make or grant in the circumstances.

Upon being served with the petition, the 1st and 2nd Respondents caused a conditional memorandum of appearance with notice of preliminary objection, both dated 28th May, 2007 and filed on 30th May, 2007 to be presented on their behalf. (Pages 49-52 of the record.) Thereafter, on 4th June, 2007, the 1st and 2nd Respondents filed their joint reply to the petition. (Pages 55-67 of the record.) On their part, the 3rd – 42nd Respondents filed their reply to the petition on 14th June, 2007. During the pre-trial conference, the preliminary objection raised by the 1st and 2nd Respondents was rolled over for hearing along with the petition. It was agreed and as contained in the Tribunal’s report that five issues are to be determined in the petition.

The issues are as follows:

1. Whether in view of the facts and documentary evidence before the Honourable Tribunal, the 1st Respondent was qualified to contest the election into the House of Representatives held on 21st April, 2007 as the candidate of the 2nd Respondent.
2. Whether this Tribunal has jurisdiction to entertain the petition.
3. Whether the 1st Respondent was validly returned in the circumstances as the winner of the said election by the 3rd and 4th Respondents.
4. Whether the return of the 1st Respondent is valid regard being had to the effect of the result returned by the 3rd Respondent vide Form EC8B(ii) and the entries in the voters register vis-a-viz the provisions of the Electoral Act.
5. Whether having regard to the allegation of irregularities and infraction of the Electoral Act contained in paragraph O of the petition, the election conducted on 21st day of April, 2007 has been conducted in substantial compliance with the provisions of the Electoral Act?

At the hearing before the Tribunal, all the parties also agreed to dispense with all written statements on oath of witnesses inclusive of oral testimonies of such witnesses. It was the consensus that reliance would be placed solely on documentary evidence to be tendered by learned counsel for the parties from the Bar and admitted in evidence. (Pages 313-314 of the record.) The petition was also consolidated by an order of the Tribunal made on 13th July, 2007 with Petition NO.KB/EPT/HR/3/07. (Pages 305 of the record.) The following documents were tendered by the Appellants, admitted and marked accordingly as exhibits. They are:

1. Exhibit P1 – Letter of substitution dated 5th February, 2007 co-signed by Dr. Ahmadu Ali, National Chairman of the PDP and Ojo Maduekwe, National Secretary of PDP.
2. Exhibit P2 – INEC Form CF001, Affidavit in support of personal particulars of persons seeking election.
3. EXHIBIT P3- INEC Form CF4B (iv), Nomination Form for House of Representatives.
4. Exhibit P4 – INEC Form CF004A, Notice of Withdrawal/Substitution of candidate.
5. Exhibit P5 – Merger Agreement.
6. Exhibit P6 – Letter dated 19th February, 2007 titled “Withdrawal Letter”. Signed by Dr. Ahmadu Ali, National Chairman of the

PDP.

7. Exhibit P7 – Forms EC8A (ii) issued to agents of Petitioners by INEC bound together in one volume.
8. Exhibits P8 (A) and (8) – INEC Forms EC8A (ii) Certified by the 3rd Respondent, bound in two volumes. 1. Pages 1-255 and 2. Pages 256-337.
9. Exhibits P9(A1) – (A35) – Forms EC8B(ii) 35 Copies Certified by INEC.
10. Exhibits P10(A1) – (A4) -INEC Forms EC8C (ii) 4 in number.
11. Exhibit P11 – Electronic Register issued to the 1st Petitioner before the day of election.
12. Exhibit P12 -INEC Forms EC8E (ii) Certified by INEC.

In addition to placing reliance on the Exhibits tendered by the Appellants with the exception of Exhibit P7, the 1st and 2nd Respondents also tendered Exhibit R1 – “Replacement of candidates for the 2007 elections under the ANPP, Kebbi State dated 18th February, 2007, signed by Ibrahim Usman Abarshi, Secretary. (P.318 of the record.)

Similarly, the 3rd – 42nd Respondents adopted the Exhibits tendered by the Appellants with the exception of Exhibits P7 and P11. They further tendered Exhibit R2 – “Notification of my decamping from ANPP dated 12th February, 2007, signed by Engr. Abdullahi Umar Faruk. (Page 318 of the record.) The Tribunal’s judgment was delivered on 15th October, 2007. It struck out the petition on the ground of incompetence and want of jurisdiction. (Page 356 of the record.) The Petitioners were dissatisfied with the judgment. They filed the instant appeal. It was dated and filed on 5th November, 2007. It contained five grounds of appeal. (Pages 373 -385 of the record.) From the five grounds of appeal, the Petitioners hereinafter referred to as Appellants distilled three issues in their brief of arguments dated 17th January, 2008 and deemed filed and served with leave of this court granted on 31st March, 2008. The formulated issues are:

1. Whether the trial tribunal’s failure to address the Appellants’ objection to the competence of the process filed by the Respondents has not occasioned a miscarriage of justice.
2. Whether the jurisdiction of an election petition Tribunal in respect of an election based substantially on challenge to the return of election result and eligibility of a candidate to contest election cannot be properly invoked on account of non-joinder of Independent National Electoral Commission even where the returning officers and the candidate whose eligibility was challenged were appropriately joined.
3. Whether this Honourable Court is not entitled to pronounce on issues number 3, 4 and 5 that were canvassed by the Appellants but overlooked by the Tribunal at the hearing.

The 1st and 2nd Respondents brief is dated 4th April, 2008 and filed on 7th April, 2008. Four issues were couched therein for determination in this appeal. They are reproduced below:

1. Whether or not the competence of the processes filed by the 1st and 2nd Respondents was an issue for determination before the Trial Tribunal and if so whether the failure of the Trial Tribunal to consider it in its judgment occasioned a miscarriage of justice.
2. Considering the nature of the pleadings, whether or not the Trial Tribunal was right in declining jurisdiction on account of the Petitioners/Appellants failure to join INEC as party in the petition.
3. Whether or not the Trial Tribunal was right in treating the Petitioners/Appellants petition as a separate and distinct petition in spite of the fact that it was consolidated with Petition NO. KB/EPT/HR/3/2007.
4. Having declined jurisdiction whether it was any longer necessary for the Trial Tribunal to proceed to treat the remaining issues.

Also, the 3rd – 42nd Respondents in their brief of arguments dated 9th May, 2008 and deemed properly filed and served by order of Court made on 28th May, 2008, formulated just one issue for determination in this appeal. It goes thus:

Whether or not the Tribunal was in the circumstances of the petition right in holding that it lacked jurisdiction to entertain it.

At the hearing of this appeal, all the learned counsel for the parties adopted and relied on their respective brief of arguments. However, the learned counsel for the Appellants, 8uleiman Abdulkadir Esq., urged us to discountenance the brief filed by the 1st and 2nd Respondents on the ground that it was filed out of time. He referred to 8.15(5) of the Interpretation Act and the case of Ani V. Uzorka (1993) 8 N.W.L.R. (Pt.309) 118. He contended that they had five days within which to file their brief and not seven days.