Barrister Emmanuel Bako Kantiok & Anors. V. Kantiok Iriya Ishaku & Ors (2008)

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ABUBAKAR ABDULKADIR JEGA J. C. A.

In this appeal, the Appellant Barr Emmanuel Bako Kantiok presented Petition No. EPT/KD/H/003/2007 before the Governorship and Legislative Houses Election Tribunal kaduna on the 10/5/07. The petition has two grounds which are stated as follows:-

“(I) That the 1st Respondent was at the time of the election, not qualified to contest the election; and

(II) That the 181 Respondent was not duly elected by majority of lawful votes cast at the election.”

The grounds of the petition are based on Section 106(d) of the 1999 Constitution and section 145(1) (a) & (c) of the Electoral Act, 2006.

The 1st & 2nd Respondents did not enter appearance or file their Reply to the petition within time and they were shut out by the Ruling of the Tribunal delivered on 9/7/07. The petition was served on the 3rd & 4th respondents on 15/05/2007 and 16/05/07 respectively but they did not enter appearance within time and therefore had 21 days to file their Reply to the petition on the 15/06/2007 a period far more than 21 days they filed a Reply without leave of Tribunal and kept quiet.

The 1st & 2nd Respondents filed a Notice of preliminary objection dated. 04/06/07 challenging the competence of the petition. On the 26/7/20 the Tribunal delivered its Ruling and struck out the petition on the ground that it is incompetent.

Dissatisfied with the Ruling of the Tribunal delivered on 26/7/07, the Appellants appealed to this Hon Court vide Notice of Appeal dated and filed on 15/8/2007.

The appeal was heard on the 17/4/08 learned counsel for the Appellants, Mr. G.A. Alley informed the court that their brief of argument is dated 30/8/07 and filed on 31/8/07 they also filed a Reply brief dated and filed on 11/12/07 learned counsel adopt the two briefs of argument and urged the Court to dismiss the Notice of preliminary objection and allow the appeal.

Mrs. S.O. Omoloba for the 1st & 2nd Respondents informed the court that their brief or argument is dated 13/9/07 and deemed filed on 29/11/07. That, they also filed a Notice of preliminary objection dated 12/9/07 and filed on 13/9/07 learned counsel adopt the brief of argument and urged the Court to allow the Notice of preliminary objection and I dismiss the appeal.

Mr. M.I. Komolafe for the 3rd to 4th Respondents informed the court that 3rd & 4th respondents’ brief of argument is dated 17/11/07 and deemed filed on 29/11/07 he adopts the brief and urged the Court to dismiss the appeal with costs.

In his brief of argument, learned counsel the Appellants formulated the following issues for determination:-

“1. Whether the Tribunal did not deny the Appellants their right to fair hearing contained in Section 36(1) of the 1999 Constitution of Nigeria, when it ignored and did not consider the Appellants’ written Address with accompanying counter affidavit which they filed and used in opposition to the 1st & 2nd Respondents’ motion dated 4/6/07, but proceeded to strike out the Appellants’ petition on the grounds that the said 1st & 2nd Respondents’ motion had no counter and was unchallenged and uncontradicted.

2. Whether the Tribunal did not cause a miscarriage of justice, when it struck the Appellants’ petition filed on 10/5/07 which has two grounds and is not related to pre-election matters or any person called Hon Francis Madaki Duniya, upon hearing the 1st & 2nd Respondents’ motion dated 04/06/07 which had complaints against the Appellants’ petition but against a different petition filed on 18/05/07 which has only one ground (1) and is not related to pre-election matters and one Hon I Francis Madaki Duniya.
3. Whether the Tribunal is not, and its decision is not perverse when it held that Paragraphs A3 and A4 of the petition are premised on pre-elections issues and that paragraph E and F of the petition are incongruous in setting and incompatible, and concluded that the petition is incompetent even though the 1st and 2nd Respondents had admitted the facts of the said Paragraphs which complied with Section 106(d) of the Constitution of the Federal Republic of Nigeria, 1999 and Section 145(1) (a) & (G) of the Electoral Act, 2006 and are seeking appropriate relief against the 1st & 2nd Respondents.
4. Whether the Tribunal is not wrong, and did not cause a miscarriage of justice, when it held that it is not mandatory under the provisions of the Electoral Act 2006 for a Respondent to file a Memorandum of Appearance before making a preliminary objection to a petition and concluded that the 1st & 2nd Respondents’ motion dated 04/06/07 was competent.”

On his part, learned counsel for the 1st and 2nd Respondents formulated two issues for determination the issues are:-