Action Congress & Anor. V. James Yakwen Ayuba & Ors. (2008)

LawGlobal-Hub Lead Judgment Report

ALFRED P. EYEWUMI AWALA J.C.A.

Sequel to the General Election held nationwide on 21/4/07 for seats in the Federal House of Representative inter alia, this appeal and Cross-Appeal arose from the decision of the Election Petition Tribunal holden in Jos Plateau State (herein after called the lower tribunal) set up to hear petition No. AD/NASN/EPT/3/07 from the election. Reserved judgment was delivered on 12/9/07 by the lower tribunal dismissing the said petition filed by the Appellants against the election of the 1st Respondent to the House to represent Mangu/Bokkos Federal constituency after the election held on 21/4/07 as part of the said general election. Whereat the 1st Respondent was declared the winner and returned elected by the 3rd Respondent. It is note worthy to state that the 2nd Appellant was the flag bearer for the 1st Appellant during the election, while the 1st Respondent contested the election on the platform of the Peoples Democratic Party (PDP) not joined in this appeal.

The Appellants being dissatisfied with the whole decision/judgment regarding the interpretation of Section 141 of the Electoral Act, 2006 by the lower tribunal filed a Notice of Appeal dated 24/9/07 to the Court of Appeal, Jos, 25/9/07. The 1st Respondent also not satisfied with part of the decision filed a Notice of Cross-Appeal dated 28/9/07 to that effect on 28/9/07.

Four grounds of Appeal are raised by the Appellants in their Notice of Appeal, whilest one by the Cross-Appellant in his Notice of Appeal.

On 14/4/08 appeal and’ cross-appeal were heard’ together after due filing on and exchange of Briefs of Argument by parties. Appellants’ brief was filed 26/10/07 deemed 3/3/08; 1st Respondent filed his on 2/11/07 deemed 3/3/08 and the 2nd to 5th Respondents’ filed their jointly on 31/10/07 deemed 3/3/08. The Appellants’ filed an Appellants’ Reply Brief on 16/11/07 deemed 3/3/08. The cross-appellant’s brief was filed on 31/10/07 deemed 3/3/08. Whereas the Cross-Respondents filed their joint Brief of Argument on 7/11/07 and deemed 14/4/08 the day of hearing both appeals.

Learned counsel for the parties, except for the 2nd to 5th Respondent who was absent at the hearing after filing his clients’ joint brief, adopted and relied on their respective briefs of arguments in both the main Appeal and the cross-appeal at the hearing.

The Appellants in the main appeal distilled two issues whereas the 1st Respondent couched 3 issues, whilest the 2nd to 5th Respondents raised one issue respectively for determination. In the cross-appeal one issue each was couched by the cross-appellant and the cross-respondent respectively.

I shall deal with ‘the appeals seriatim, one after the other. The main appeal first and then Cross-Appeal. The Appellants’ two issues couched for determination in the main appeal read thus:-

(i) “Whether in view of the decisions of the Supreme Court in Akeredolu v. Akinremi (1985) 2 NWLR (Pt. 10) 789 and Yusuf v Obasanjo (2003) 19 NWLR (Pt. 847) 554 the trial tribunal was right in striking out the Appellants’ petition, which was filed 22/5/07 against the result of the election which the tribunal found to have been declared on 22/4/07 on the ground that the petition ….(sic) was filed out of time (Based on Grounds 1 & 2 and 4).

(ii) Whether the tribunal was right when determining whether this election petition was filed within time stipulated in section 141 of the Electoral Act, 2006, it failed to have recourse to the provision of section 15(2) of the interpretation Act, CAP 192 LFN 1990 and Order 23 of the Federal High Court (Civil Procedure) Rules, 2000.” (Grounds 3).

Whereas the three issues raised for determination by the 1st Respondent in the main appeal read thus:-

(a) Whether the ruling of the ‘Nasarawa Election Tribunal in petition EPT/NS/022/007 between Umar Yahuza Musa & Anr V Muhammed A. Al-Mukura & 94 Ors delivered on the 7/8/2007 was binding on the tribunal (Ground 1)

(b) Whether the Plateau State Governorship and Legislative Houses election Tribunal was bound to follow the decisions of the Supreme Court in Akeredolu v Akinremi (1985) 2 NWLR (Pt. 10) and Yusuf v Obasanjo (2003) 16 NWLR (pt. 847) 554 as against that of the Court of Appeal in Ogbebor v Danjuma (2002) 15 NWLR (pt. 843) 403 and Alataha v Asin (1999) 5 NWLR (Pt 601) 324 (Grounds 2 and 3)

(c) Whether the. Election Petition presented on the 22/5/07 against declaration of result made on the 22/4/2007 was statute barred (Ground 4).