Aliyu Abubakar & Ors v. Sen Mohamed Danjuma Goje & Ors (2023)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

BIOBELE ABRAHAM GEORGEWILL, JCA (Delivering the leading judgment)

This is an appeal against the judgment of the National and State Houses of Assembly Election Tribunal, Gombe State, sitting in Gombe, Coram: in Election Petition No. EPT/GM/SEN/02/2023: Aliyu Abubakar & Anor. v. Sen Mohamed Danjuma Goje & Ors., delivered on 8/9/2023, wherein the petition filed by the appellants as petitioners against the respondents were struck out for being incompetent and or dismissed for lacking in merit.

The appellants were peeved with the said judgment and had appealed against it to this court vide their notice of appeal filed on 14/9/2023 on seven grounds of appeal at pages 1092 – 1102 in volume 2 of the record of appeal. The record of appeal was duly transmitted to this court on 21/9/2023. The appellants’ brief was filed on 26/9/2023.

The 1st respondents’ brief was filed on 29/9/2023. The 2nd respondent’s brief was filed on 29/9/2023. The 3rd respondent’s brief was filed on 29/9/2023. The appellants’ reply brief to the respondent’ brief was filed on. The appellants’ reply brief to the 2nd respondent’s brief was filed on 3/10/2023.

At the hearing of this appeal on 18/10/2023, the appellants were represented by E. O. Okoro SAN, appearing with H. A. Saleh, Esq. and S. M. Danlami, Esq., who adopted the appellants’ brief and reply briefs as their arguments in support of the appeal and urged the court to allow the appeal and set aside the judgment of the lower tribunal and to grant the reliefs claimed by the appellants against the respondents in their petition filed before the lower tribunal.

The 1st respondent was represented by Paul Erokoro SAN, appearing with Peter Molang, Esq., A. U. Abubakar, Esq. and Opeyemi Odunsi, Esq., who adopted the 1st respondent’s brief as their arguments in opposition to the appeal and urged the court to dismiss the appeal and affirm the judgment of the lower tribunal. The 2nd respondent was represented by L. A. Haruna, Esq., who adopted the 2nd respondent’s brief as his arguments in opposition to the appeal and urged the court to dismiss the appeal and affirm the judgment of the lower tribunal. The 3rd respondent was represented by H. N. Onyekwere, Esq., appearing with S. D. Shut, Esq., who adopted the 3rd respondent’s brief as their arguments in opposition to the appeal and urged the court to dismiss the appeal and affirm the judgment of the lower tribunal.

Brief statement of facts

As can be garnered from the averments of the parties in their respective pleadings before the lower tribunal as well as the evidence, oral and documentary as led by the appellants and the 1st respondent, the 2nd and 3rd respondents having not called any witness, the relevant facts in this appeal are that the appellants as petitioners had, by their petition dated 18/3/ 2023,challenged the election and return of the 1st respondent as the winner of the Gombe Central Senatorial District election held on 25/02/2023. In their petition, the appellants challenged the 1st respondent’s election on three grounds, namely;

(a) That the 1st respondent was at the time of the election, not qualified to contest the election;

(b) That the 1st respondent was not elected by the majority of lawful votes cast at the election, and

(c) That election of the 1st respondent was marred by malpractices and non-compliance with the Electoral Act, 2022.

The appellants then, sought for five reliefs against the respondents. See paragraph 26 of the petition. However, at the trial before the lower tribunal on 26/06/2023 through the 1st appellant as PW10, the appellants abandoned their grounds B and C, leaving ground A as the only extant ground, and which is to the effect that the 1st respondent was at the time of the questioned election not qualified to contest the election. See page 1022 in Vol. 2 of the records of appeal.

The facts in support of this extant ground are that the 1st respondent maintained membership and sought to be nominated by both 2nd appellant and 2nd respondent as their candidate by participating in the primary elections of both the PDP and APC in May, 2022, an act which the appellants alleged made the 1st respondent’s nomination and subsequent election void The appellants further alleged that the 2nd respondent was misled into presenting the 1st respondent to stand as its candidate in the general election after the lst respondent had participated in the 2nd appellant’s primary election and lost to the 1st appellant, and that the 1st respondent participated in 2nd appellants’ PDP primary election while maintaining the membership of 2nd respondent, APC, and that on 10/12/2022 at the flag – off of the 2nd respondent’s campaign where all the candidates contesting under the platform of the 2nd respondent were presented with flags to symbolize their candidature, the 1st respondent was not presented with similar flag like all the other candidates. See paragraph 11(a) (b) & (c) of the petition at pages, 3, 14 – 15 in Vol. 1 of the records of appeal.

In their reactions to the petition, the 1st – 3rd respondents filed their respective replies. The 1st respondent filed his reply to the petition on 15/4/2023 along with a motion on notice seeking an order striking out the petition for being incompetent, having been statute barred and on some other grounds. In response, the appellants filed their counter-affidavit on 22/04/2023.