All Nigeria Peoples Party (Anpp) & Anor. V. Peoples Democratic Party (Pdp) & Ors. (2006)

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KEKERE-EKUN, J.C.A.

This is an appeal against the decision of the Governorship and Legislative Houses Election Petition Tribunal (hereinafter referred to as the Tribunal) sitting in Kano delivered on 6th August, 2003 wherein the Tribunal nullified the election of the 2nd appellant herein on the ground that at the time of the election he was not qualified to contest the election into the Kano State House of Assembly, not having attained the age of 30 years. The 2nd appellant, Sani Ibrahim Ahmed had contested the election into the Kano State House of Assembly on the platform of the All Nigeria Peoples Party (ANPP) while the 2nd respondent contested on the platform of the Peoples Democratic Party (PDP) both representing the Nassarawa constituency. The election took place on 3rd May, 2003 and the results were declared on the 4th May, 2003. The 2nd appellant was declared the winner.

The 1st and 2nd respondents in this appeal were dissatisfied with the outcome of the election and filed a petition before the Tribunal as 15th and 2nd petitioner respectively challenging the return of the 2nd appellant as the winner of the election. The sole ground of the petition was that at the time of the election he was not qualified to contest because he was below the age of 30 years and was therefore in contravention of the provisions of section 106(b) of the 1999 Constitution of the Federal Republic of Nigeria.

At the conclusion of the trial, after considering the oral and documentary evidence led by both parties, the Tribunal in its judgment delivered on 6th August, 2003 nullified the election of the 2nd respondent and ordered a bye-election. The appellants, being dissatisfied with the judgment appealed to this court by their notice of appeal dated 8th August, 2003 containing three grounds of appeal. Pursuant to a subsequent order of this court the appellants filed six additional grounds of appeal bringing the number of grounds of appeal to nine.

In compliance with the rules of this court the parties duly filed and exchanged their briefs of argument. The appellants’ brief of argument dated 14/7/04 was deemed filed on 17/1/05. The 1st and 2nd respondents brief of argument dated 22/2/05 was deemed filed on 10/3/05. The appellants also filed a reply brief dated 20/4/05, which was filed on 9/6/05.

In their brief of argument the appellants formulated 3 issues for determination in this appeal as follows:

1. Which is the best evidence i.e. legally preferable evidence as to the age of the 2nd appellant, the evidence of his father and birth certificate or pieces of doubtful documentary evidence inconsistent with the former, accepted and relied upon by the Tribunal below in finding that he was below 30 years old at the time he contested election into the Kano State House of Assembly?
2. From the quality of evidence on record, whether it can be said that the 2nd appellant was not up to 30 years old at the time he contested election into the Kano State House of Assembly?
3. Whether the Tribunal below possessed jurisdiction to adjudicate on pre-election issues such as qualification meant for the Federal or State High Courts and in the light of this whether the disqualification of the 2nd appellant to contest the said election on the unpleaded ground of forgery of birth certificate was not null and void and of no effect?

The 1st and 2nd respondents, on their part, formulated the following two issues for determination in this appeal:

1. Whether the Tribunal having regard to the preponderance of evidence before it was right to have rejected the evidence of DW1, the appellant’s father, along with exhibit F tendered by him.
2. Whether the tribunal has jurisdiction to entertain a petition challenging an election on the ground of qualification to contest an election.

The 3rd-6th respondents did not file any brief of argument in this appeal. When the appeal was heard on 21st November, 2005 learned counsel for the appellants and the 1st and 2nd respondents adopted their respective briefs. Mr. J. B. Daudu, SAN, learned counsel for the appellants made some oral submissions to elaborate some of the issues argued in his brief. He submitted that the evidence that the Tribunal relied upon to reach the conclusion that the 2nd appellant was underage and therefore not qualified to contest the election into the Kano State House of Assembly was documentary, that is documents generated from schools attended by the appellant. He submitted that on the other hand the 2nd appellant’s father testified on his behalf and tendered his birth certificate, exhibit F, which he said had always been in his possession. He noted that he also testified that no one had ever asked him for the said birth certificate and that the 2nd appellant did not live with him but had always lived with an uncle. Mr. Daudu submitted that the Tribunal had no basis for its conclusion that the evidence of the 2nd appellant’s father and exhibit F were incredible, as nothing was elicited under cross-examination to weaken his evidence. He submitted further that the inference drawn by the Tribunal from the fact that exhibit F had been in the 2nd appellant’s father’s possession and had never been asked for or seen by anyone until it was tendered before the Tribunal was unjustified. He submitted that the issue of age ought to have been resolved in favour of the 2nd appellant. He urged this court to allow the appeal.

Mr. Rotimi Rowland, after adopting the 1st and 2nd respondents’ brief also addressed us orally and contended that exhibit F was rejected not because it was kept for 30 years but because the record of 2nd appellant from his primary and secondary schools show that at the time he contested the election he was 28 years old. He submitted that the inference to be drawn from the finding of the Tribunal is that exhibit F might have been forged. He urged us to dismiss the appeal.

Mr. Daudu in reply on points of law submitted that the documents the respondents relied upon amount to hearsay and that they were not documents submitted to the Independent National Electoral Commission (INEC) by the 2nd appellant.

I have carefully examined the issues formulated by both parties in their respective briefs. I find that issue 1 formulated by the respondents covers issues 1 and 2 formulated by the appellants. However, I find the appellants’ issue 1 to be prolix and argumentative. In their brief of argument the appellants have argued issues 1 and 2 together. I am of the view that issues 1 and 2 should be combined and re-formulated into one issue. I therefore re-formulate the appellants’ issues 1 and 2 thus:

“Whether having regard to the evidence before the Tribunal it was established that at the time of the election into the Kano State House of Assembly the 2nd appellant had not attained the age of 30 years as required by section 106(b) of the 1999 Constitution.”

The appellants’ issue 3 is in pari materia with the respondents’ issue 2. This appeal shall therefore be determined on two issues: the appellants’ issues 1 and 2, which I have re-formulated and re-numbered as issue 1 and their issue 3 re-numbered as issue 2.

Issue 2 deals with the jurisdiction of the Tribunal to entertain the petition. It is settled law that the issue of jurisdiction is of such a fundamental nature that once it is raised, it must be considered and disposed of first since any adjudication without jurisdiction would amount to a nullity. I shall therefore deal with issue 2 first.