Alhaji M. M. Maska & Anor V. Alhaji Y. Ibrahim & Ors (1999)

LawGlobal-Hub Lead Judgment Report

ONNOGHEN, J.C.A.

This is an appeal against the judgment of the Local Government Council Election Petition Tribunal of Katsina State holden at Katsina delivered on 15th February. 1999 in which it held, inter alia that the 2nd appellant as well as the 3rd respondent have no locus standi in the election petition; that the 2nd respondent has been proved to be an ex-convict but that the petitioners have not established a link between 2nd respondent and Shehu Umar Maska, the Vice Chairman of 1st respondent; that there is no prayer that the election be nullified so the tribunal cannot give to a party that which he has not asked for and that the only ground of the petition cannot be entertained by the tribunal.

It is against this decision that the appellants have appealed to this court on 5 grounds filed on 22nd February. 1999. The appellant abandoned the 1st ground of appeal in his brief of argument and is accordingly struck out. Out of the surviving 4 grounds of appeal, the appellants formulated 4 issues for the determination of the court. The grounds of appeal are at pages 81-84 of the record.

The following are the issues submitted for determination in this appeal in the appellant’s brief of argument – see page 4 thereof:

(a) Whether or not on the preponderance of evidence and on the balance of probabilities particularly in the absence of any direct rebuttal the petitioners have linked the 2nd respondent with the convictions. This issue is said to arise from grounds 3 and 6;

(b) Whether or not a political party is a competent party in an election petition;

(c) Whether or not a ground in an election petition challenging qualification of a candidate is competent, and,

(d) Whether or not mere inelegant couching of a prayer is fatal even when the prayer is of a nature properly within the ambit of statutory provisions.

It is important to note that these 4 issues are substantially the same with those formulated by learned counsel for the 1st-3rd respondents in his brief of argument filed on 5th March, 1999. Learned counsel for the 4th respondent formulated only two issues in his brief of argument.

However, before going into the main issues for determination, it is important to take a preliminary point raised in the Ist-3rd respondent’s brief of argument to wit. The notice and grounds of appeal are headed in the wrong court and as such this court lacks the jurisdiction to entertain same. In the course of arguments on it, learned counsel for the appellant Israel A. Usman Esq., applied for leave to amend the offending notice and grounds which Mr. Joe Dappa opposed but we went ahead and granted, reserving our reasons to be assigned in this judgment. Mr. Usman had submitted that what happened is an error which does not occasion a miscarriage of justice, Mr. Dappa opposed the application on the ground that to allow it will render the appeal statute barred.

I am of the considered opinion that the heading of the notice and grounds of appeal is in error which has not occasioned miscarriage of justice. The parties have not been misled by it in any way. As regards the effect of an amendment it is trite law that an amendment dates back to the date the document amended was filed.

That being the case the notice and grounds of appeal so amended cannot be said to be statute barred if the original notice and grounds were filed within time. That apart, it is my considered opinion that this court is engaged in doing substantial justice to the parties so technicalities should not be allowed to becloud that sense of mission which is the pivot of our judicial system. That being the position it is my view that the appeal is properly before this court and is competent, the amendment having been granted as prayed.

On Issue No. 1 learned counsel for the appellants, I. A. Usman Esq., not only submitted that the appellants have on the preponderance of evidence and on the balance of probabilities, particularly, in the absence of any direct rebuttal, linked the 2nd respondent with the convictions but also established the fact that 2nd respondent is the same as Shehu Umar Maska, the Vice Chairman-elect of Funtua Local Government Council, contrary to the findings of the tribunal on the matter.

He stated that the tribunal was wrong in placing an onus on the appellants to produce 2nd respondent; to prove personal service; to bring parents or district head or headmaster or principal of the 2nd respondent’s school etc. That burden of proof in a civil case do shift as in this case. That the 2nd respondent was properly convicted. That there is evidence that the 2nd respondent and Vice Chairman are one and the same person.