Daniel Ishaya Gani V. Kezeya Dangana & Ors (2009)

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ALFRED PEARSON EYEWUMI AWALA, J.C.A.

Following the General Election held nationwide on 14th day of April, 2007 for Seats in the States’ Houses of Assembly, this Appeal and the Cross Appeal arose from the decision of the National Assembly/Governorship and Legislative Houses Election Tribunal holden at Jalingo Taraba State (hereinafter called the Lower Tribunal) set up to hear petition No. EPT/SHA/04/2007 from the said Election. Judgment was delivered on 28/9/07 after hearing by the Lower Tribunal which nullified the election of the 1st Respondent and his subsequent return as the candidate representing Wukari II Constituency in Taraba State House of Assembly.

It is pertinent I give brief background facts of what led to the appeal and Cross-Appeal as aforesaid for better comprehension of the issues involved here.

The Appellant/Cross-Respondent and the 1st Respondent/Cross-Appellant contested the election held on 14/4/07 under the Platform of PPA and PDP respectively.

The Appellant/Cross-Respondent was returned as the person duly elected to represent Wukari II constituency in the Taraba State House of Assembly having scored the majority of the lawful votes at the said election.

Dissatisfied with the return, the 1st and 2nd Respondents filed an election petition at the lower tribunal against the Appellant/Cross-Respondent and the 3rd to 5th Respondents challenging them for the non-conduct of election in 14 polling units of Bantaji ward of the said constituency and secondly on the ground that the Appellant/Cross-Respondent was not qualified to contest the said election having not resigned or withdraw from his appointment with the Taraba State Teaching Service Board as a teacher 30 days before the election.

On 14/5/07 the Appellant/Cross-Respondent filed a Reply to the petition so did the 3rd to 5th Respondents.

All the parties agreed that there was in fact no election in the 14 polling units in contention. At the end of the pre-hearing Sessions report was given and the petition was fixed for hearing at the lower tribunal and was heard accordingly.

In its decision, the lower tribunal found that the Appellant/Cross-Respondent was duly qualified to contest the election having resigned his appointment 44 days to the election but however nullified the return and election of the Appellant/Cross-Respondent in that the non-conduct of election in the 14 polling units which were in contention substantially affected the results of the election and ordered election in the said 14 polling units.

It is the judgment nullifying the election and return of the Appellant/Cross Respondent as the candidate representing Wukari II Constituency in the Taraba State House of Assembly and the order for re-election in the 14 polling units in contention that formed the basis of the main appeal. The Appellant/Cross-Respondent’s Notice of Appeal was filed on 18/10/07.

The 1st and 2nd Respondents were also dissatisfied with part of the decisions of the Lower Tribunal as they affected the qualification of the Appellant/Cross Respondent to contest the election. They therefore filed a Notice of Cross-Appeal on 18/10/07.

Seven Grounds of Appeal are raised by the Appellant in his Notice of Appeal, whilst three by the Cross-Appellants in their Notice of Cross-Appeal.

On 3/10/08 the appeal and the Cross-Appeal were heard together by us after due filing and exchange of Briefs of Argument by counsel in the divide. And after adoption of same by them the appeals were heard. The Appellant’s counsel in the main Appeal distilled 4 issues, as follows:-

1. “Whether the Election Petition Tribunal was right when it nullified the election and return of the Appellant / Cross-Respondent based on the non-conduct of election in 14 polling units when the presiding officers of the said units are not joined as parties to the petition”. (Based on Ground 1)
2. “Whether the election Tribunal was right when it refused to make a pronouncement or findings on the issue of non joiner of the presiding officers of the 14 polling units as parties to the petition” (Based on Ground 2).
3. “Whether the tribunal was right when it nullified the election and return of the Appellant/Cross Respondent based on the non-conduct of election in 14 out of 99 polling units when the election in 85 polling units is not found wanting”. (Based on Grounds 3, 4, 5 and 7).
4. “Whether the tribunal was right when it took into consideration the pattern of voting in nullifying the election and return of the Appellant/Cross Respondent”.

(Based on Ground 6).