Barr. Ibrahim Shehu Shema V. Hon. Aminu Bello Masari & Ors (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

AMINA ADAMU AUGIE, J.C.A (Delivering the Leading Judgment)

Dissatisfied with the declaration and return of the Appellant as the duly elected Governor of Katsina State, the 1st Respondent filed a Petition at the Katsina State Governorship Election Tribunal, wherein he prayed for-

1. A DECLARATION that INEC failed to provide a level playing field between the competing contestants in the conduct of the election to the seat of Governorship of Katsina State held on 26th April 2011. Consequently, the election and return of the Appellant herein is null and void.
2. A DECLARATION that the Appellant did not sore majority of the lawful votes cast at the election … neither did he score the required 25% of votes of 2/3 of the Local Government Areas (LGAs) in Katsina State. Consequently, he was not entitled to a return or a declaration as a winner of the said election.
3. An Order declaring the return and declaration made – – in favour of the Appellant as the winner of the election unlawful, unwarranted, null and void.
4. A DECLARATION that the election is void by reason of corrupt practices which was manifestly practiced on a large scale across the entire LGAs of the State thereby invalidated the election and return of the Appellant.
5. A DECLARATION that all the results of the polling units and wards subject of complaint in paragraph 17 of- this Petition declared void, and consequently deducted from the scores wrongly credited to the Appellant.
6. A DECLARATION that he (the 1st Respondent) is entitled to be returned as the winner of the election and as the elected Governor…

ALTERNATIVELY

7. An Order directing the 2nd, 4th and 5th Respondents herein to conduct a re-run election between him and the Appellant only to determine in compliance with the Constitution where both have failed to meet the mandatory requirement of the Constitution (as amended).

The Petition was accompanied with 52 Written Statements on Oath, and a list of 34 Documents, which the 1st Respondent intended to rely upon at the trial. At the pre-hearing session, he filed an application dated 6th July 2011 for leave ”to file additional witnesses’ statements on oath”, and in its Ruling delivered on the 18th of July 2011, the Tribunal over-ruled the respective objections raised by of the Respondents, and held –

”Based on all the reasons given herein, we hold that this Application has merit.

It is granted as follows:

1. Leave be and is hereby granted to the Petitioner/Applicant to file Additional Witness Statements on Oath in his Petition.
2. The Additional Witness Statement on Oath of Akilu Lukman filed on 6/7/11 and the 2nd Additional Witness Statement on Oath of Akilu Lukman attached as Exhibit 1 to the Petitioner’s Further and Better Affidavit in support of his application, filed on 14/7/2011 are deemed as having been properly filed and served.

However, after trial commenced, he filed yet another Application dated 10th August 2011, praying the lower Tribunal for the following reliefs –

(a)An order … granting leave to the Petitioner/Applicant to move this application out-side of the pre-hearing session

(b) An order granting leave to the Applicant to file an additional witness statement on oath in support of the Petition.

(c)An order … deeming the additional witness statement separately filed as have been properly filed and served …

(d)And for such order or further order(s) as the Honourable Tribunal may be disposed to make in the circumstances of this case.

The ”Grounds upon which the Application is based” are that –

(1) The Applicant’s witness, Akilu Lukman, whose additional witness statement was filed on 6/7/11 containing analysis of the voters registers and Form ECA used during the conduct of the Governorship Election in Katsina State, and who served as the Secretary of a fact finding Committee constituted by the Petitioner to analyze the voters registers, travelled to Mecca for Pilgrimage and will not be back into the country until about the second week of September, 2011

(2) The Petitioner did not envisage that the witness wilt not be around during the time the petitioner is to open and close his case, neither did the potential witness inform the team of Petitioner’s lawyers before traveling out of the country.