Alh. Kabir Ahmed Kofa & Anor V. Abubakar Lawal Kaita & 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 (3rd Respondent) conducted elections into the House of Representatives for Kankia/Ingawa/Kusada Federal Constituency in Katsina State on Saturday, 21st April, 2007 and declared the result the same day in favour of ALHAJI KABIR AHMED KOFA (1st Appellant) sponsored by the Peoples Democratic party (2nd Appellant) who had polled 147,600 votes.

ABUBAKAR LAWAL KAITA (1st Respondent) of the Action congress (2nd Respondent) polled 10,399 votes. HON. BRLL. ABUBAKAR DAMBO of the All Nigeria peoples parry (ANPP) polled 6,617 votes.

AMINU SANUSI IMAM of PSP had 65 votes; MUSA ABDULLAHI BOKO of DPP was credited with 271 votes and ABUBAKAR ABDULMALIK of NDP 76 votes respectively. Being aggrieved ABUBAKAR LAWAL KAITA and the Action congress presented a joint petition before the National Assembly Election Tribunal, sitting in Katsina, Katsina State on Monday 21st May, 2007 seeking the following reliefs against the Respondents:

” (B) Your petitioner is exercising his right because he ought (sic) have been return (sic) as the duly elected candidate and shall therefore pray the Honorable Tribunal for the following relief(s);

(a) An order nullifying the entire election held on the 21st April, 2007 more particularly as it relates to the office of member representing Kankia/Kusada/Ingawa Federal constituency of Katsina state at the Federal House of Representative.

(b) An order directing the 3rd to 316th Respondents to conduct a fresh election through out Kankia/Kusada/Ingawa Federal constituency for the purpose of determining the actual winner to the office of member representing Kankiq/Kusada/Ingawa Federal constituency of Katsina state at the Federal House of Representative. ”

The 1st and 2nd Respondents filed a Joint Reply to the petition denying the claims of the petitioner. The 3rd-316th Respondents did likewise. The matter proceeded to trial. At the close of evidence all learned Counsel submitted written addresses. On the 27th day of February, 2008 the Tribunal delivered judgment holding at page 974 lines 1-31 and page 975 lines 1-5 as follows: “In Kusada Local Government Area over voting is few as it is noticeable in only 6 Polling Stations while in Kankia Local Government Area it is in 12 Polling Stations and of course more pronounced in Ingawa Local Government Area with 24.

It is found that over voting and instances where total valid votes exceed the number of persons accredited to vote have affected on the whole about 150 Polling Stations in the 3 Local Government Areas forming the Federal Constituency made up as follows that is to say; In Ingawa 55 Polling Units affected out of 144 Polling Stations. In Kusada 49 out of BI Polling Stations and Kankia 48 out of 134 Polling Stations.

It should be mentioned that it is not just any slight or inconsequential electoral malpractices that will invalidate the result of an election as the law recognizes that non compliance with electoral provisions or commission of electoral offences do occur. They occur in many instances.

But the law is most concerned with the extent, how far and wide they did occur. And also how substantially did they affect the election result. Ojukwu vs Onwudiwe (1984) 1 SCNJ 247 and Awolowo vs Shugari (1979) 6-9 SC 51.

In Dushe vs Bawa (1959) 1 NLPLR 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 congratulated for a job well done. The question must be answered in the negative this is so in view of our earlier finding that unaccredited voters formed part of the votes used in declaring the result of the said election which votes we cannot determine. Consequently the proper order to make in the circumstance is to annul the election and order for a fresh election. The election into Kankia/Kusada/Ingawa Federal Constituency held on 21-04-2007 is hereby annulled and INEC is hereby ordered to conduct afresh election within 60 days. ”

Being dissatisfied ALHAJI KABIR AHMED KOFA and the peoples Democratic Party filed a Joint Notice of Appeal on 17-03-2007 containing eleven grounds of appeal seeking that the judgment be set aside and the petition dismissed. See Volume five pages 976 to 999 of the printed record.