Hon. Abdullahi K. Kamba & Anor V. Alh. Ibrahim Bawa & Ors. (2004)

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OLUDADE OLADAPO OBADINA, J.C.A.

This is an appeal against the decision of the National Assembly, Governorship and Legislative Houses Election Tribunal, sitting at Birnin Kebbi, Kebbi State, contained in its ruling, delivered on the 9th day of June, 2003, in petition No. NAS/KPT/KBS/06/03, striking out the petition. The appellants were the petitioners at the tribunal, while the respondents were the respondents.

The facts leading to this appeal are briefly as follows:-
On the 12th of April, 2003, the 5th respondent conducted election, into, amongst others, the House of Representatives for Arewa and Dandi Federal Constituency of Kebbi State. The 1st appellant contested the election under the platform of the 2nd appellant; while the 1st respondent also contested the election under the platform of the 2nd respondent. The 3rd and 4th respondents were officers and agents of the 5th respondent empowered by law to conduct the elections.

At the conclusion of the election, the 1st respondent won the election and was declared and returned as winner by the 3rd – 5th respondents. The petitioners were unhappy with the result and the return of the 1st respondent as the winner. The petitioners therefore filed a petition against the respondents in respect of the election.

The 1st and 2nd respondents filed a reply to the petition and gave a notice of preliminary objection to the petition. The 3rd – 5th respondents also filed a reply to the petition. They filed an application challenging the competence of the petition.

Before the same tribunal, the learned Counsel for the petitioners also had other petitions, namely – petitions Nos:
NAS/EPT/KBS/06/03; NAS/EPT/KBS/08/03;
NAS/EPT/KBS/09/03; NAS/EPT/KBS/10/03;
NAS/EPT/KBS/11/03.

The counsel Trial, the petitions were the same and similar preliminary objection on the same grounds were filed by counsel for the respondents in all the petitions.

On the 5/6/2003:, the preliminary objections filed in petition 13 No. NAS/EPT/KBS/06/03 were argued by counsel for the parties. Ruling was fixed for 9th of June, 2003. At the conclusion of arguments by learned Counsel for the parties, all the counsel agreed that the ruling in petition No. NAS/EPT/KBS/06/03 being reserved should be binding on all the other petitions Nos. NAS/EPT/KBS/07/03; NAS/EPT/KBS/08/03; NAS/EPT/KBT/09/03; NAS/EPT/KBS/10/03 and NAS/EPT/KBS/11/03.

On the 9th of June, 2003, the learned trial Tribunal delivered its ruling upholding the objection and struck out the petitions. It is against the said ruling that the appellants appealed to this court.
The appeals predicated on (4) four grounds of appeal. From the four (4) grounds of appeal, the appellants formulated three (3) issues for determination. The issues read as follows:-
“(1) Whether or not, from the facts and circumstances of the petition, it is legally proper for the trial tribunal to conclude that the decision in this petition No. NAS/EPT/KBS/06/03 should be binding on the five (5) other petition, this petition No. NAS/EPT/KBS/-7/03 inclusive.
(2) Whether or not, having regard to the circumstances of this case, the petition was filed Within the mandatory period of thirty days as required by section 32; (sic) of the Electoral Act, 2002.
(3) Whether or not, on proper construction of paragraph 3 of the First Schedule to the Electoral Act, 2002, it is legally correct to conclude as did the trial tribunal that the only recognizable way of determining when an election petition is presented is the date when Form TF 002 issued by the secretary of the tribunal is dated.”

Ground (1) one of the grounds of appeal was later withdrawn by the appellants and struck out by the court. The appeal was therefore based on grounds 2, 3 and 4 of the ‘grounds’ of appeal.
The 1st and 2nd respondents filed a notice of preliminary objection dated 1st day of December, 2003, against grounds 2, 3 and 4 of the grounds or appeal; on the grounds that the particulars of the grounds of appeal are argumentative, vague and narrative, contrary to the provisions of Order 3 rule 2(3) of the Court of Appeal Rules, and accordingly incompetent.

Without prejudice to the preliminary objection, should the preliminary objection fail, the 1st and 2nd respondents distilled three (3) issues from the three (3) grounds of appeal. The issues run as follows:-
“(i) Whether the petition having been presented on 15th May, 2003, was not caught by the limitation for the time of filing the petition under the Electoral Act, 2002.
(ii) Whether the parties having agreed to a procedure for the hearing of the petition can turn around to deny same after the ruling.
(iii) Whether the issuance of Form TF 002 by the secretary is not the only means of the determination of the presentation of the petition.”

The appellants filed appellants’ reply brief to the objection raised by the respondents, to the effect that there was no consent judgment in this case.

The primary objective of a preliminary objection is to terminate the proceedings at the stage the objection is raised – Okoi & Oths. v. Ibiang & Oth. (2002) 10 NWLR (Pt.776) 455 at 468. The court has a duty to decide on the objection before proceeding to consider the substantive issue. See Ahaneku & Ors. v. Ekeruo & Oths. (2002) 1 NWLR (Pt.748) 301 at 308. In the circumstance, I have to consider the preliminary objection first.

The first objection is against ground 2 of the appeal. Ground 2 of the appeal against which objection is being raised with the particulars read as follows:-
“The learned members of the trial tribunal erred in law, when they in their ruling dated 9th June, 2003, held as follows:-
‘This ruling is by the consent of Mr. Rickey Tarfa, SAN the 1st respondent’s counsel; Mr. Aminu, the petitioners’ counsel; and R. A. Sadik, counsel to 2nd – 14th respondents shall be binding on the parties in the underlisted petitions:-
(1) NAS/EPT/KBS/07/03; Ron. Abdullahi K. Kamba & PDP v. Alh. Ibrahim Bawa & ANPP.
(2) NAS/EPT/KBS/08/03; Ron. Zailani Mohammed & PDP v. Alh. Usman Sani, ANPP, INEC and 30 others.
(3) …
(4) …
(5) …
which all have the same preliminary objections based on all the grounds in the election petition No. NAS/EPT/KBS/06/ 03, whose ruling has just been delivered. The tribunal accordingly struck out these petitions.”