Alh. Kashim Ibrahim Imam & Ors V. Senator Ali Modu Sheriff & Ors (2004)

LawGlobal-Hub Lead Judgment Report

OGBUAGU, J.C.A.

This is an appeal against the decision/judgment of the National Assembly/Governorship and Legislative Houses Election Tribunal for Borno State sitting at Maiduguri delivered on 2nd March, 2004 – Coram: Hon. Justice Kulu Aliyu – Chairman, Hon. Justice N.P. Emehelu, Hon. Justice L.M. Bako, Hon. Justice M.O. Oyanna and Hon. Justice I.I. Ejiofor – members.

The facts of the case briefly stated are that the appellants are the petitioners before the Election Tribunal for Borno, State. They jointly filed the petition challenging the election and return of the 1st and 2nd respondents as Governor and Deputy Governor respectively of Borno State in the election to the office of Governor of Borno State which took place on 19th April, 2003.

The 1st and 2nd petitioners/appellants, were candidates sponsored by the 3rd appellant – Peoples Democratic Party (PDP) while the 1st and 2nd respondents, were candidates sponsored by the All Nigeria Peoples Party (ANPP).

At the end of the said election, the 3rd respondent, declared and returned the 1st and 2nd respondents as winners or duly elected having scored a total of 581,880 votes as against 341,537 votes scored Dissatisfied with the result of the election, the appellants filed the petition on 19th May, 2003, challenging the return of the 1st and 2nd respondents mainly on three (3) grounds – namely, non-qualification and disqualification; the election being invalid by reasons of being fraught with numerous illegalities, corrupt practices and non-compliance with the provisions of the Electoral Act; and that the 1st and 2nd respondents, were not duly elected by a majority of lawful votes cast at the election.

Issues were joined by the respondents in their pleadings. At the trial, the petitioners/appellants, called four (4) witnesses and filed a counter-affidavit to the affidavit of one Mr. Ian Wilfred Goatman. The petitioners/appellants (hereinafter called the “the appellants”), and the 3rd respondent – INEC led evidence. While the 3rd to 12th respondents called one (1) witness, the 1st and 2nd respondents, rested their case on that of the appellants and relied on the said affidavit of Mr. Goatman which was deposed to pursuant to the application by Ali, Esq. (SAN) and was granted by the tribunal, on 13th December, 2003.

The tribunal, after the written addresses of the learned counsel for the parties, in a considered judgment, dismissed the petition. Aggrieved/dissatisfied with the said decision(s), the appellants have appealed to this court.

There are two (2) notices of appeal filed by the appellants. The first one is that filed on 14th January, 2004 containing four (4) grounds of appeal which read as follows:

“1. The learned trial Judges of the Election Tribunal erred in law when they admitted petitioners (sic) INEC Forms CF001 and CF002 which are not specifically pleaded nor facts relating to the documents pleaded in the petition and replies of the respondent and thereby occasioned surprises and miscarriage of justice.

Particulars of Error

(a) The law is that parties as well as the court are bound by their pleadings and documents not pleaded are not admissible.

(b) The Forms CF001 and CF002 are not evidence of facts pleaded.

(c) Neither of the parties pleaded facts of INEC forms and the documents attached therewith.

(d) None of the witnesses to the petitioners was asked or confronted with any of the documents.