Hon. Farouk Mustapha V. Alh. Babayo Garba Gamawa & Ors (2011)
LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL
ADAMU JAURO, J.C.A (Delivering the Leading Judgment)
This is an appeal against the ruling of the National and State House of Assembly Election Petition Tribunal, Bauchi State delivered on 7th July, 2011 on petition number NA/SEN/EPT/BAU/06/2011, wherein the said petition was struck out.
The facts culminating in this appeal can be briefly summarized thus:
The appellant as petitioner in the tribunal was a Senatorial candidate for the Action Congress of Nigeria (ACN). The 1st Respondent on the other hand, was sponsored by the 2nd Respondent, Peoples Democratic Party (PDP). The appellant, the 1st Respondent and three other candidate contested the Bauchi North Senatorial District elections held on 9th April 2011 in Bauchi State. Upon the conclusion of the elections the 3rd and 4th Respondents acting on behalf of the 5th Respondent declared and returned the 1st Respondent on 10th April, 2011 as the winner of the election and Senator-elect for Bauchi North Senatorial District.
Distressed and piqued by the declaration and return of the 1st Respondent as the winner of the election, the appellant challenged some in the tribunal by a petition dated and filed on 29th April, 2011. The petition was anchored on two grounds namely, that the 1st Respondent was not elected by a majority of lawful and valid votes cast at the election and secondly that the election was invalid by reason of corrupt practices or non compliance with the provisions of the Electoral Act 2010 (as amended). The petition was served and a conditional appearance entered by the 1st Respondent. Other Respondents also entered their appearances.
Mr. Achimugu, on behalf of the second Respondent, by a motion dated 16th May 2011 and filed on 17th May 2011, prayed for the striking out of the petition. The ground upon which the application was anchored, was that the petition does not contain any relief or prayer, therefore in breach of paragraph 4(1)(d) and 4 (3)(a) of the 1st Schedule to the Electoral Act 2010 (as amended). Prince Lateef Fagbemi SAN on behalf of 1st Respondent, also filed a reply to the petition and a preliminary objection on 20th May, 2011. The preliminary objection was based on five grounds which included failure to state the reliefs sought in the petition. The petitioner on the other hand, filed two applications for amendment dated 21st May, 2011 and 26th May, 2011 respectively. The four applications were taken together during the pre-hearing session. In a reserved and considered ruling delivered on 7th July, 2011, the Tribunal refused the applications for amendment. The petition was also struck out for being incompetent on the ground of failure to state any relief in breach of paragraph 4(1)(d) and 4(3)(a) of the 1st Schedule to the Electoral Act 2010 (as amended).
Aggrieved and dissatisfied by the aforementioned ruling, the petitioner now appellant challenged some vide a notice of appeal dated and filed 13th July, 2011. The notice of appeal is premised on ten grounds of appeal. In line with the Rules of Court and Election Tribunal and Court Practice Directions 2011, briefs of argument were filed and exchanged. The appellants brief dated 25th July, 2011 was filed on 26th July, 2011, while the Appellant’s reply brief to 3rd – 5th Respondent’s brief was filed on 5th August 2011, while the Reply to 1st Respondents brief was filed on the 10th August, 2011. The 1st Respondents brief filed 8th August 2011, was by order of this court deemed filed on 10th August, 2011. The 3rd to 5th Respondents joint brief of argument was filed on 1st August 2011.
On 17th August 2011, the date fixed for hearing the appeal, learned Counsel for the appellant applied for the appeal to be heard on the appellants brief and that of 1st, 3rd to 5th Respondent’s brief. Learned counsel argued that the 2nd Respondent be deemed to have conceded to the appeal having filed no brief. There being no objection to the application by the learned counsel for the 1st and 3rd to 5th Respondents, the court directed that the appeal be argued based on the existing briefs of argument.
Mr. Joe Dappa for the appellant, adopted and relied on the appellants brief and the two reply briefs filed. Learned counsel submitted that ground 8 of the grounds of appeal was not argued, hence urged that the said ground be struck out as abandoned. Learned counsel further argued that issue 3 of the 1st Respondents brief founded on ground 8, be also struck out. In concluding, learned counsel urged the court to allow the appeal and set aside the ruling of the tribunal and remit the petition for hearing on the merit based on the amended petition dated 26th May, 2011 and filed 27th May, 2011.
Mr. Hassan T. Fajimite for the 1st Respondent, adopted and relied on the 1st Respondents brief learned counsel stated that 4 issues had been formulated for determination and argued seriatim. Learned counsel urged the court not to discountenance issue 3 of the 1st Respondent’s brief, learned counsel submitted that the case of Okereke V Yar’adua is quite distinguishable from the peculiar facts of this case. In concluding learned counsel urged the court to dismiss the appeal and uphold the decision of the lower tribunal. Mr. Mahmud Usman for the 3rd to 5th Respondent’s adopted and relied on the joint brief of argument filed by the 3rd to 5th Respondent’s, learned counsel stated that three issues for determination had been raised on page six of the brief. Learned counsel, in response to the contention of the appellant that the 3rd to 5th Respondents’ have no locus to file brief, submitted that the 3rd to 5th Respondents have the necessary focus to file brief. In concluding learned counsel urged that the appeal be dismissed as lacking in merit.
The appellant nominated ten issues for determination on pages 5 and 6 of the appellant’s brief of argument. The said issues are hereby reproduced, thus:
“1 Whether the Tribunal was right and within its jurisdiction when it delivered a consolidated ruling in respect of two applications to amend by the Petitioner and two applications to strike out by the 1st and 2nd Respondents. (Relates to Ground one of Appeal)
- Whether the Tribunal was right and within its jurisdiction when it consolidated the Petitioner’s motions to amend with the 1st and 2nd Respondents Motions to strike out suo moto and without notice and consent of the Petitioner. (Relates to Ground Two of Appeal)
- Whether a Witness Statement attached to a Petition does not form part of the contents of a valid Petition. (Relates to Ground Five of Appeal)
- Whether on accidental error in the insertion of reliefs or prayers in a written Deposition attached to a Petition instead of the foot end of a Petition cannot be corrected by amendment.
(Relates to Ground Six of Appeal)
- Whether a Petition is rendered incompetent by reason of a curable accidental error in inserting the reliefs or prayers in a written Deposition attached to the Petition instead of the Petition, (Relates to Ground Seven of Appeal)
- Whether the Tribunal was right when it held the Petition incompetent on the basis of incompetent objections taken to it. (Relates to ground Nine of Appeal)
- Whether the Tribunal was right when it held the Petition incompetent without first determining or making on order in respect of the Petitioners application dated 20/05/2011 to amend. (Relates to Ground Three of Appeal)
- Whether the Petitioner was not denied his right to fair hearing when his Petition was held irreparable without first considering and determining his application to amend dated 26/05/2011. (Relates to Ground Four of Appeal)
- Whether given the circumstances of this the cost awarded in the sum of N200,000.00 in favour of the 1st and 2nd Respondents is right. (Relates to Ground Ten of Appeal).
- Whether the Tribunal was right when it foiled to consider and make specific findings on the submission that under the extant Electoral Act the reliefs to be granted are automatic. (Relates to Ground Eight of Appeal)”
The 1st Respondent on the other hand, distilled 4 issues for determination on pages 3 and 4 of the 1st Respondent’s brief. The said issues we hereby reproduced thus:
Leave a Reply