Alh. Badamasi Kabir & Anor V. Action Congress (Ac) & Ors (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOSEPH TINE TUR, J.C.A.(Delivering the Leading Judgment)

The Independent National Electoral Commission (INEC) conducted into the House of Representatives Katsina Central Federal Constituency on Saturday 21st April, 2007. ALHAJI BADAMASI KABIR (1st Appellant) contested on the platform of the Peoples Democratic Party (2nd Appellant) while MUSA DAMALE KAITA (1st Respondent but now deceased) did so on the platform of the Action Congress (2nd Respondent). Other candidates were also sponsored by other political parties. They are not parties in this appeal hence I shall not concern myself with their scores. At the end of voting the Independent National Electoral Commission’s Officials on the same day declared ALHAJI BADAMASI KABIR of the Peoples Democratic Party as having polled 84,076 votes while late MUSA DAMALE KAITA (deceased) of the Action Congress was credited with 3,916 votes and YUSUF of the All Nigeria Peoples Party Polled 16, 351 votes.

On Monday 21st May, 2007 late MUSA DAMALE and the Action Congress Party presented a joint petition before the Election Tribunal seeking interlia the following reliefs in paragraph 18 of the Petition:

“(a) An order nullifying the entire election held on the 21st April, 2007 more particularly as it relates to the office Member Representing Katsina Central Federal Constituency of Katsina State at the Federal House of Representative.

(b) An order directing the 3rd to 285th Respondents to conduct a fresh election through out Katsina Central Federal Constituency for the purpose of determining the actual winner to the office of member representing Katsina Central Federal Constituency of Katsina State at the Federal House of Representative.

The Respondents filed their replies to the petition. Thereafter the matter went to trial. The parties called oral and documentary evidence, at the close of hearing learned counsel submitted written addresses. On 27-02-2008 the Tribunal delivered judgment holding at page 754 lines 20-25 to page 756 lines 1- 7 of the printed record that:

“The Tribunal will not however go into the process of determining the actual un-accredited voter. The reason being that the photocopied voters register makes it difficult to arrive at the actual voters affected. We however do know that 71 out of 252 Polling Units were affected. It is therefore our view that this malpractice which cuts across at least one third of the Constituency should not be treated lightly. It should be mentioned at this stage, that it is not just any slight or inconsequential electoral malpractice that will invalidate the result of an election as the law recognizes that non-compliance with Electoral Provisions or commissions of electoral offences do occur. They occur in many instances. But the law is more concerned with the extent, how far and mode they did occur. And also how substantially did they affect the election result. Ojukwu vs. Onwudiwe (1984) SCNLR 247 and Awolowo vs. Shagari (1979) 6 – 9 SC 51.

In Dashe vs. Bawa (1989) 1 NEPLR 71 the Court held that if the nature of non-compliance is such as to give an obvious advantage to one of the parties to the election such non-compliance is substantial and unless there is evidence to the contrary has affected the result of the election in favour of the party who enjoyed the advantage and against the party who has suffered a disadvantage.

On the whole, we ask the final question which is whether this non-compliance did not and could not have had an impact whatsoever on the election in which case INEC be given a pat at the back for a job well done? We say No! as where breaches of election rules even though trivial have affected the results that in it self is enough to compel the Court to declare the result void.

In view of our earlier findings that unlawful votes were credited to parties which such votes cannot be ascertained, the proper order to make in the circumstance is to annul the election and order for a fresh election. Consequently, the election to the office of Member representing Katsina Central Federal House of Representatives Katsina Central Federal Constituency held on 21-04-2007 is hereby annulled and INEC is hereby ordered to conduct a fresh election within 60 days.”

Being aggrieved ALHAJI BADAMASI KABIR and the Peoples Democratic Party jointly filed Notice of Appeal on 17/03/2008 containing nine grounds praying that the judgment of the Tribunal be set aside. In the course of this appeal MUSA DAMALE KAITA died and on 10/04/2010 leave was granted the Appellants to have his name struck out from the proceedings. On 02/03/2010 the Appellants amended their joint Notice of Appeal and brief to reflect these changes. The Amended brief filed on 02/03/2011 was deemed filed on 12/04/2010 and adopted on 18/01/2010 during hearing. There is no brief by the Action Congress in this appeal though served all the processes. The 3rd -285th Respondents filed brief on 15/04/2010 which counsel adopted on 18/01/2011 when this appeal was called for hearing. The 1st and 2nd Respondents did not file any brief of Argument.

Learned Counsel to the Appellants formulated the following issues for determination in the Appellants Amended brief:

ISSUES FOR DETERMINATION

1. Whether it was right for the Tribunal to have distilled and ascertained for itself, the grounds for the petition under the guise of doing substantial justice when no ground was stated therein (arising from ground 6 of the Grounds of Appeal).
2. Whether it was right for the Tribunal to have relied on or attach probative value to the Register of Voters for 11 Registration Area in the Constitutions (Exhibit P1(a-v) – P11(a-q) and the depositions in paragraphs 1(1)-1(13), 14 – 17, 18, 20, 22, 25 – 27, 32 – 34 of the 1st Respondent’s Additional Witness Statement on Oath (Exhibit P40) after properly evaluating and rejecting or discrediting the said Respondent’s Additional Witness Statement on Oath (Exhibit P40) after properly evaluating and rejecting or discrediting the said Register and Witness Statement. (Arising from grounds 1 & 2 of the Grounds of Appeal).
3. Whether it was right for the Tribunal to have admitted in evidence and rely on the dispositions in paragraphs 1(1)-(13), 14-17, 18, 20, 22, 25 – 27, 32 – 34 of Exhibit P40 (the 1st Petitioner’s Additional Witness Statement on Oath) having regard of the state of the pleadings and the Tribunal’s earlier refusal of the petitioner’s application to amend their Petition (arising from grounds 3, 4, & 5 of the Grounds of Appeal).
4. Whether there is any admissible and probative evidence in support of the finding of the Tribunal that non-accreditation or proper accreditation affected not less than 70 polling units in the eleven Registration Areas complained of by the 1st and 2nd Petitioners regard being had of the fact that no voters, electoral official, polling or collation agents testified in respect of the election (Arising from ground 7 and 10 of the Ground of Appeal).
5. Whether the nullification of the election of the 1st Appellant by the Tribunal can be justified regard being had of the admissible and probative evidence before the Tribunal and its finding that the unlawful votes credited to the parties could not be ascertained (Arising from grounds 8 & 9 of the Grounds of Appeal).
6. Whether having regard to the provision of Section 141 of the Electoral Act, 2006, the Petition as filed was not incompetent and the lower Tribunal disrobed of the jurisdiction to entertain same.”

Issue six and one complains about the competency and albeit the jurisdiction of the Tribunal to entertain the Petition hence I shall consider first, issue six followed by issue one. This is because if the Petition was not brought within the statutory period the tribunal will lack the jurisdiction to entertain it.