All Progressive Grand Alliance (Apga) & Anor. V. Gyang D. Dantong & Ors. (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CLARA BATA OGUNBIYI, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the National/State Assembly Election Tribunal sitting in Jos delivered on the 21/10/2011 dismissing the Appellants’ petition (hereinafter referred to as “the Trial Tribunal”) and held that the election of the 1st Respondent was in substantial compliance with the provision of the Electoral Act 2010 (as amended).

The 2nd Appellant contested the Plateau North Senatorial District election under APGA, the 1st Appellant in the 26/4/2011 election. The 1st and 2nd Appellants being dissatisfied with the outcome of the election in which the 1st Respondent of PDP was declared as the winner petitioned the trial Tribunal. The Appellants were aggrieved with the declaration and return and so filed the petition on, inter alia, the following grounds:

1. That the 1st Respondent was not duly elected by majority of lawful votes cast at the election into the Plateau North senatorial District held on the 26th April, 2011.
2. That the election of 26th April, 2011 was invalid by reason of total non-compliance with the electoral act 2010 (as amended). See pages 6 to 19 of the Record of Proceedings of the Trial Tribunal (Hereinafter referred to as “The Record”)

The Appellants therefore claimed the following reliefs:

(a) It been declared that the election conducted in Jos South, Jos East, B/Ladi, Riyon Local Government Areas and Tudun Wada/Kabong. Jenta Adamu wards of Jos North L.G.A. on the 26/04/2011 of Plateau North Senatorial seat was contrary to Electoral Act, and thereby invalid.

(b) It been determined that the election conducted in Jos South, B/Ladi Riyam, Jos East Local Government Areas and Tudun Wada/Kabong, Jenta Adamu wards of Jos North L.G.A. be nullified.

(c) An order of this Honourable Tribunal that the 1st Respondent was not validly elected by majority lawful votes cast in the said election.

(d) An order setting aside the return of the 1st Respondent as the winner of 26/4/2011 Plateau State Senatorial Zone election.

(e) An order of this Honourable Tribunal that the 1st Petitioner was validly and duly elected as senator Plateau North. See pages 19 to 20 of the Record.

The Appellants sued the 1st, 2nd, 3rd Respondents and others who were staffs of the 3rd Respondent during the election. However the names of the others were struck out on the applications of the 1st and 2nd Respondents that they were not necessary parties. See pages 242 to 275 and 316 to 330 of the Record.

The 1st and 2nd Respondents filed a reply to the petition while the 3rd Respondent did not file any reply thereto and in effect did not defend the petition therefore-

On the one hand, the Appellants called six witnesses in prove of their petition and they all testified before the Tribunal. The 1st and 2nd Respondents on other part called two witnesses who testified for them.

The Appellants tendered Exhibits A – A940 which were admitted at the trial Tribunal. At the close of evidence, all parties thereafter filed written accordingly adopted. The trial Tribunal in delivering its judgment on the 21/10/2011, dismissed the Appellants’ petition and affirmed the election and return of the 1st Respondent as the winner of the 26/4/2011 Plateau North Senatorial District election. See pages 364 to 438 and 440 to 486 of the Record. Hence this appeal.

The notice and grounds of appeal are contained at pages 487 – 498 of the record of appeal. Same dated 28th October, 2011 was filed on the 1st November, 2011 and contains 22 grounds of appeal. The record of appeal was thereafter transmitted and received in this court on the 3rd November, 2011 and in accordance with the Practice Directions issued by the President of this Court, briefs were filed and exchanged by all parties as appropriate. While that of the Appellants was dated the 8th November, 2011 and filed 9th November, 2011, the 1st and 2nd Respondents’ brief of argument was dated 11th November 2011 and filed on the 14th November, 2011. A further reply brief was also filed by the Appellants on the 16th November, 2011. Issues were therefore accordingly joined between the Appellants and the 1st and 2nd Respondents with the exception of the 3rd Respondent the Independent Notional Electoral Commission who neither joined issues with any of the parties nor was it represented in court by any counsel, despite having been served a hearing notice.