Sani & Ors. V. Lere & Ors. (2009)

LawGlobal-Hub Lead Judgment Report

BABA ALKALI BA’ABA, J.C.A.

This is an appeal against the decision of the National Assembly/Governorship/Legislative Houses Election Petition Tribunal, sitting in Kaduna, Kaduna State dated the 28th day of February, 2008 annulling the election of the 1st appellants and returning the 1st respondent as the winner elect representing Lere Federal Constituency in the House of Representatives for the April 14th 2007 election.

Being dissatisfied with the said decision, the appellants by Notice of Appeal dated the 3rd day of March, 2008 appealed against the said decision to this Court.

In accordance with the rules of practice and procedure of this Court the parties to this appeal filed their respective briefs.

At the hearing of the appeal which came up on the 12th day of February, 2009, all counsel to the parties adopted their respective briefs and advanced oral argument in amplification of the argument in their respective briefs.

The appellants’ brief is dated 16/3/08 filed on 17/3/08 and a Reply brief dated the 13th day of April, 2008, filed on 14th day of April, 2008. While the 1st and 2nd respondents’ brief is dated and filed on the 1st day of April, 2008 and the 3rd – 81st respondents’ brief is dated the 3rd day of October, 2008, deemed filed on the 7th day of October, 2008.

At pages 1 – 3 of the appellants’ brief, eight issues were formulated for determination in this appeal and they are as follows:

“1. Whether the trial Tribunal was right in holding that the proof of non-voting in an election does not require tendering voters cards and that it is sufficient to plead the vin numbers of such cards. (Culled from Ground 1).

2. Whether the trial Tribunal was right in admitting in evidence and placing reliance on documents referred to as Exhibits “L” & “M” series which said documents were tendered by a person who was only invited to produce the said documents pursuant to Section 192 and 193 of the Evidence Act and who was never referred to and called as a witness and consequently not sworn; in nullifying the election of the 1st and 2nd Appellants. (Culled from Grounds 2 and 9).
3. Whether the trial Tribunal was not in error in violating the Appellant’s constitutionally guaranteed rights to fair hearing under Section 36(1), (4), (5) and (6) of the 1999 Constitution and the principles of natural justice by failing to afford the Appellant an opportunity to cross-Examine as to the authenticity or sufficiency of the facts contained in Exhibits “L” and “M”, which facts the trial Tribunal relied upon to annul the election of the 1st and 2nd Appellants. (Tied to Ground 10).
4. Whether the trial Tribunal was right in relying on over-voting to set aside the election of the 1st and 2nd Respondents’, when the case of the Petitioners (as per their pleading) was that there was no election in Garu and Kayarda Wards and in holding that there was no election in the Wards and at the same time holding that there was over-voting. (Culled from Grounds 3 and 8).
5. Whether the trial Tribunal was right in relying on the evidence of Petitioner witnesses who testified as Agents even though there was no evidence before the Court that their appointment were in accordance with Section 46 of the Electoral Act, 2006 and no evidence of their party membership before the Tribunal. (Culled from Ground 6).
6. Whether the Tribunal erred in law when it set aside the election of the 1st and 2nd Appellants when petitioner did not establish any electoral malpractice and inspite of the apparent and material contradictions in the evidence of the Petitioners’ witnesses. (Culled. from Grounds 4 and 7).
7. Whether the trial Tribunal was right in returning the 1st respondent as member elect representing Lere Federal Constituency in the House of Representatives, when there was evidence in the Tribunal showing that the 1st respondent was neither qualified to contest or be returned having been dismissed by FSB bank. (Culled from ground 5).
8. Whether the decision of the trial Tribunal is not a nullity having regard to the fact that Honourable Justice Okpanachi who was the Chairman of the Tribunal and before whom hearing begun did not take part in the preparation of the judgment. (Culled from Ground 11).”

The 1st and 2nd respondents, on the other hand also formulated eight issues at pages 7 – 8 of their brief as follows:

“1. Whether the tendering of voter’s cards was compulsory to prove that elections were not held in a polling unit (ground 1).

2. Whether the trial Tribunal was right in admitting in evidence and placing reliance on documents referred to a exhibit “L” &. “M” series – the Voters’ Registers used for the Election – (grounds 2 and 9).
3. Whether the admission of Exhibits “L” &. “M” infringed the appellants’ right to fair hearing. (Ground 10).
4. Whether the trial Tribunal relied wholly or partially on over voting to set aside the elections in Garu and Kayarda wards and in the affirmative whether such reliance prejudiced the appellants. (Ground 3 and 8).
5. Whether the trial Tribunal had a legal obligation to insist on the. production of the 1st respondent’s witnesses’ letters of appointment as party agents before placing any probative value on their oral testimony. (Ground 6).
6. Whether the respondents established any form of electoral malpractice to nullify the elections in the affected polling units in Garu and Kayarda wards (Grounds 4 and 7).
7. Whether the 1st respondent was not qualified to contest for election to represent Lere Federal Constituency in the House of Representatives. (Ground 5).
8. Whether the Tribunal was improperly constituted at the time of delivering judgment thereby rendering the judgment a nullity. (Ground 11).”

The.3rd – 81st respondents also formulated eight issues for determination in this appeal at pages 6 – 7 of the 3rd – 81st respondents’ brief as follows:

“(1) Whether the tendering of voters cards was compulsory to prove that elections were not held in a polling unit (Ground 1).

(2) Whether the trial Tribunal was right in admitting in evidence and placing reliance on documents referred to as Exhibits “L” and “M” series, the Voters Registers used for the Election (Grounds 2 and 9).

(3) Whether the admission of Exhibits ‘L’ and ‘M’ infringed the Appellants right to fair hearing (Ground 10).