Abubakar Saidu Ainoko V. Hon. Yakubu Yunusa & Ors. (2008)

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OLUFUNLOLA OYELOLA ADEKEYE, J.C.A.

The appellant Abubakar Saidu Ainoko and the 1st Respondent Han. Yakubu Yunusa were ‘both candidates who contested with three others the election to the Kogi State House of Assembly for Igala-mela/Odolu State constituency, on Saturday the 14th of April, 2007. The appellant contested the election on the platform of the All Nigeria peoples party (ANPP) while the 1st respondent contested on the – platform of the People Democratic Party (PDP). The 1st Respondent was declared the winner of the election by the 2nd Respondent, Independent National Electoral Commission.

The appellant filed a petition at the Governorship/Legislative Houses Election Petition Tribunal holding at Lokoja on 15th of May, 2007. The appellant questioned the election of the 1st Respondent on grounds as follows:-

(a) That the election was invalid by reason of corrupt practices and non-compliance with the provisions of the Electoral Act.

(b) That the 1st Respondent was not duly elected by majority of the lawful votes cast at the election.

The appellant consequently asked for reliefs as follows:-

(I) That it be determined that Ismaila Hussein, the 1st Respondent was not duly elected and that his election was void.

(ii) As a consequence of the above, an order for a fresh election in Igala Mela/Odolu constituency of the Kogi State House of Assembly on the 7th of June, 2007.

The 1st Respondent filed a conditional memorandum of appearance followed with a reply to the petition filed on the 21st of June, 2007. The 1st Respondent there and then indicated his intention to raise a preliminary objection at or before the hearing, to challenge the competence of the petition.

On the 10th of July the 1st Respondent filed a motion praying for an order to dismiss the petition for being incompetent. On the 19th of July, 2007 the application filed by the 1st Respondent raised a preliminary objection to the competence of the petition to which he annexed a certified True Copy of the declaration of Results of election Form EC8E(1) for the constituency. The application was heard by the Tribunal and on the 7th of August, 2007, a considered Ruling was delivered wherein the petition was dismissed for being incompetent having been filed out of time. Being aggrieved by the decision of the lower tribunal the petitioner now appellant appealed to this court by filing a notice of appeal with three grounds of appeal on the 27th of August 2007. At the time of the hearing of this appeal on the 24th of January, 2008, the appellant adopted and relied on the appellants brief filed on 17/9/07.

Three issues were distilled therein for determination as follows:-

(a) Whether the Tribunal was correct when it reached the conclusion that the date of the declaration of the election result was 14th instead of the 15th of April, 2007 in view of the petitioners counter affidavit and his protest that the result was declared on 15th in his presence and In the presence of others.

(b) Whether the Tribunal was correct when it refused to call oral evidence to resolve the conflict in the affidavit evidence of the parties

(e) Whether the tribunal was correct to have heard the motion without jurisdiction.