Babangida Ibrahim V. Bature Umar & Ors (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

THERESA NGOLIKA ORJI-ABADUA, J.C.A (Delivering the Leading Judgment)

In the Election Petition filed by the 1st and 2nd Respondents on the 29th April, 2011 before the National and State House of Assembly Election Tribunal, sitting at Katsina, the following reliefs were sought, that is to say; (i) the 1st Respondent, i.e. the 3rd Respondent in this Appeal, was not duly elected by majority of lawful votes cast at the election; (ii) the 1st Petitioner, that is to say; the 1st Respondent herein who scored the majority of lawful votes at the election be declared validly elected and returned the winner of the election;

or, In the Alternative to (i) and (ii) above; that (iii) the 1st Respondent, i.e. the 3rd Respondent hereat was not duly elected or returned and (iv) the election of the 1st Respondent was null and void and a fresh or bye-election ordered to be conducted by the 2nd Respondent, i.e., the 4th Respondent in the appeal, for the Malumfashi/Kafur Federal Constituency.”

It is evident on the record of appeal before this court, that the Appellant, originally, was not a party to the said Petition filed by the 1st and 2nd Respondent at the Lower Tribunal on the 29th April, 2011.

Interestingly, and, on the 13th June, 2011, the 1st and 2nd Respondent herein, lodged with the trial Tribunal against the Appellant, a Motion on Notice seeking thus:

”1. An order setting aside the Certificate of Return issues by INEC on the 11th day of May, 2011 to one Babangida Ibrahim a purported candidate of the 4th Respondent and any action taken pursuant to the said Certificate.

2. An injunction restraining INEC by itself, its servants, agents, officers and any other person whomsoever from issuing a Certificate of return to any person in respect of the election to the House of representatives for the Malumfashi/Kafur Federal Constituency held on the 9th day of April, 2011 pending the hearing and determination of the Petition.
3. An order that the status quo among the parties as at 29th day of April, 2011 the date when the petition was filed be maintained by the parties pending the hearing and determination of the Petition.

The said motion was anchored on the grounds that;

”1. The Petitioner filed this Election petition dated 29th April, 2011 on the same date against the 1st Respondent, ABDULAZIZ LABO (whom INEC declared as the winner of the election on Form EC8E (i) and the other Respondents.

2. Subsequent to the filing of the Election Petition, INEC on the 11th day of May, 2011 without any judgment or order from the Election Tribunal or any other court of competent jurisdiction, issued the Certificate of Return in respect of the Election to a completely different person, one Babangida Ibrahim, a purported candidate of the 4th Respondent who did not feature in the Form EC 8E(i) for th election .
3. The 2nd and 3rd Respondents’ action aforesaid is tantamount to ”executive lawlessness” intended to overreach the Tribunal, present it with a fait acompli and render its judgment or orders in the Petition nugatory and futile.
4. The Honourable Tribunal has inherent powers to preserve its jurisdiction and the res and ensure that no person or authority undermines or frustrates lawful proceedings before it”.

The facts supporting the said Motion on Notice were deposed to by one Ahmed M. Danbaba, the Katsina State Legal Adviser to the 2nd Respondent in the fourteen paragraph affidavit filed along with the same, and, a further affidavit of four paragraphs. Counter-affidavits were respectively filed by the 2nd and 3rd Respondents. After consideration of the facts presented by the parties and determination of the prayers and issues raised, the trial Tribunal, narrowed the issues therein to; ”whether the Appellant was a candidate in respect of the election to the House of Representatives for Malumfashi/Kafur Federal Constituency held on the 9th April, 2011”.

The Tribunal expressed that the said 2nd and 3rd Respondents, i.e. the 4th and 5th Respondents in this appeal did not furnish it with any documentary evidence establishing that the Appellant participated in all the processes of the election, and, was issued with Certificate of Return. It remarked that issuing a Certificate of return to a person who never won an election is a contravention and flagrant violation of section 75 of the electoral Act, 2010 As Amended. The Tribunal then ordered thus:

”1. The Certificate of Return issued by INEC to one Babangida Ibrahim as purported candidate of the 4th Respondent and any action taken pursuant to the said Certificate is hereby set aside, having not been the candidate or winner at the election held on the 9th of April, 2011 for Malumfashi/Kafur Federal Constituency.

2. In compliance with section 75 of the Electoral Act 2010 (as amended), the 2nd and 3rd Respondent are hereby directed to issue the Certificate of Return to Abdulaziz Labbo who was declared as winner of the Malumfashi/Kafur Federal Constituency in the election held on 9th April, 2011 by virtue of Exhibit B1, that is, the declaration of result form, pending the hearing and determination of this Petition.”

Finding the said pronouncement so outrageous, the 2nd, 3rd and 4th Respondents in the said Petition, instantly, lodged their respective appeals against the same.

It is instructive to note that the present Appellant was equally not a party to the said motion filed on the 13th June, 2011 and determined on the 5th July, 2011, allegedly affecting his interest. In consequence thereof, he filed a Motion on Notice dated the same 5th July, 2009, on the 6th July, 2011. In the said Motion he prayed for the following reliefs:

”1. AN ORDER of the Honourable Tribunal setting aside its RULING/ORDERS delivered on the 5thday of July, 2011 in this petition in the absence of the applicant.