Abdullahi I. Garba V. Musa S. B. Usman & Ors. (2009)

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UWANI MUSA ABBA AJI, J.C.A.

This is an appeal against the decision of the National Assembly Governorship and Legislative Houses of Assembly Election Petition Tribunal sitting in Minna, Niger State, delivered on the 6th of December, 2007.

The facts of the petition as told by the Appellant are that the Appellant was validly nominated by the All Nigeria Peoples Party, simply referred to as ANPP, to contest the election held on 21st April, 2007 for the office of Member House of Representatives for Kontagora/Wushishi/Mashegu/Mariga Federal Constituency of Niger State subsequent to the withdrawal of the candidature of the 1st Respondent vide Exhibit P6, but was unlawfully excluded from the election, in that the 2nd and 3rd Respondents refused to substitute his name with that of the 1st Respondent as requested by the ANPP, who was hitherto the 2nd Petitioner at the Tribunal but whose name was later struck out on the 23rd of October, 2007. The complaint of the Appellant was thus the refusal of INEC the 2nd Respondent to substitute him as provided in Section 34 of the Electoral Act, 2006.

The story, as told by the 1st Respondent was that he was duly nominated for the election by the ANPP and all attempts to substitute him was not successful and consequently he made the final list of eligible candidates as released by the 2nd and 3rd Respondents for the election of 21st April, 2007 and contested the election.

The 2nd Respondent i.e. INEC declared the 1st Respondent the winner of the election, having polled the highest number of votes cast at the election and returned him accordingly as the winner of the Member Representing Kontagora/Wushishi/Mashegu/Mariga Federal Constituency.

The Appellant, not satisfied with the election and return of the 1st Respondent filed a petition before the Niger State National Assembly Election Petition Tribunal upon the following grounds:-

1. That the 1st Respondent was not at the time of the election qualified to contest the election, in that the 1st Respondent, though a member of the 2nd Petitioner was not sponsored by the 2nd Petitioner to contest the election.
2. That the 1st Petitioner who is the candidate validly and duly nominated by the 2nd Petitioner, was unlawfully excluded from the election in that the 2nd and 3rd Respondents refused to substitute the 1st Respondent with the 1st Petitioner as duly requested for by the 2nd Petitioner.
3. Though the ANPP (2nd Petitioner) polled the highest number of votes at the election held on the 21st of April, 2007, for the office of the Member Representing Kontagora/Wushishi/Mashegu/Mariga Federal Constituency, Niger State.

The Petitioner prayed for the following reliefs;

i. A declaration that the omission of the name of the 1st Petitioner as the candidate duly nominated by the 2nd Petitioner to contest the aforementioned election was unlawful.

ii. A declaration that the return of the 1st Respondent as the winner of the above mentioned election is null and of no effect whatsoever, in that the 1st Respondent was not the person nominated nor sponsored by the 2nd Petitioner and consequently, he was not a candidate for the said election.

iii. A declaration that the 1st Petitioner was the lawful candidate duly nominated by the 2nd Petitioner, who was entitled to be returned as the person who polled the highest number of votes cast at the election held on the 21st April, 2007.

iv. An order of this Honourable Tribunal directing the 2nd and 3rd Respondents to immediately return the 1st Petitioner as the member elect for the Kontagora/Wushishi/Mashegu/Mariga Federal Constituency and issue a certificate of return to this effect.

All the Respondents jointly and severally denied the allegations raised in the petition. The matter went to full trial whereby the Petitioner testified in person and did not call any other witness. Written Addresses were filed and adopted by the parties. In a considered judgment delivered on the 6th of December, 2007, the Tribunal dismissed the petition of the Appellant.

The Appellant is aggrieved by this decision and appealed to this Court vide two Notices of Appeal the first dated and filed on the 13th of December, 2007 and the second Notice of Appeal was filed on the 21st December, 2007. Learned counsel for the Appellant however abandoned the 1st Notice of Appeal and same is hereby stuck out.

Equally aggrieved by part of the decision of the tribunal delivered on 6th December, 2007, the 2nd and 3rd Respondents have cross appealed to this Court vide a Notice of Cross Appeal dated and filed on the 21st of December, 2007. The grounds of the main appeal without their particulars are hereby reproduced: