Hon. Hadi Abubakar Sirika & Anor. V. Sen. Mahmud Kanti Bello & Ors. (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOHN INYANG OKORO, J.C.A. (Delivering the Leading Judgment)

The Appellants were Petitioners at the National Assembly/Governorship and Legislative Houses Elections Tribunal in Katsina State, hereinafter referred to as the Tribunal. The 2nd Appellant, the ANPP was the platform on which the 1st Appellant contested the 21st April, 2007 Nationwide elections into the National Assembly including the seat of the Katsina North Senatorial District in focus. The 1st Respondent contested the same election for the seat in the same Senatorial District under the platform of the 2nd Respondent, his political party; he was also the candidate declared and returned by the 5th Respondent herein as the winner of the election.

The said declaration was made on 21st April, 2007. Dissatisfied with the declaration and return of the 1st Respondent, the Appellants, on the 21st day of May, 2007, filed their petition before the lower Tribunal. After a full trial the Tribunal, on 10th March 2008, delivered its judgment wherein it dismissed the petition. Not being satisfied with the stance of the lower court, the Appellants filed Notice of Appeal dated 28th March, 2008 containing nine grounds of appeal.

Out of the nine grounds of Appeal, the Appellants have distilled seven issues for the determination of this appeal. The issues are:-

1. Whether the Tribunal was not in error when it found and held that the evidence tendered by the Petitioner/Appellants in respect of non accreditation of voters in the 11 Local Government Areas contradicted their pleadings?
2. Whether the Tribunal was not in error when it held and found that the Petitioners/Appellants abandoned their pleadings on shortage of election materials in respect of 9 Local Governments, and whether they have not been able to prove substantive non compliance with the Electoral Act 2006 against the 3rd – 1398th Respondents.
3. Whether the finding of the trial Tribunal in respect of Hamcheta, Tsagem/Takusheyi, Jani, Magami, Bujawa/Gewayau, Duwan/Makau, Machika, Kwatta and Bagiwa wards of Mani Local Government, and Ingawa, Dara, Kurfeji/Yankaura B Kwari wards of Ingawa Local Government Area was not perverse?
4. Whether the Tribunal was not in error when it found and held that the Petitioners/Appellants have failed to lead evidence in proof of their allegations in Bindawa Local Government Area, and whether same were deemed abandoned.
5. Whether the Tribunal was not in error when it found that the Petitioners/Appellants have failed to establish their allegations in Dutsi Local Government Area?
6. Whether having regards to the pleading and the totality of the evidence adduced the Petitioners/Appellants did not proved(sic) any of the allegations in Sandamu Local Government Area.Politics

Let me quickly point out here that the learned counsel for the Appellants had stated in paragraph 5.0 (page 36) of his brief that 7 issues were distilled from the 9 grounds of appeal but as can be seen clearly, only 6 issues have been formulated by him. There is no issue 4 as it were. There is no explanation to the whereabout of issue no 4. I shall return to this matter in the course of this judgment if need be.

In the brief settled by Uyi Igunma Esq. on behalf of the 1st Respondents, six issues are also decoded from the nine grounds of appeal filed. The issues are as follows:-

1. Whether the finding of the Tribunal that the Appellants’ evidence contradicts their pleadings which complain of “no proper accreditation” is correct.
2. Whether the Tribunal was right in its finding that the allegation of shortage of election materials in 9 Local Government Areas is deemed abandoned.
3. Whether the Tribunal was right to prefer the testimony of RW 23 to the testimony of PW 10 in respect of Hamecheta Ward in Mani Local Government Area.
4. Whether the Tribunal’s finding that the election result in “Form EC8(ii)”(sic) Exhibit p. 19, in respect of Tsagem/Takusheyi Ward contradicts the evidence of PW 14 is perverse.
5. Whether the Election Tribunal considered the electoral documents tendered by the Appellants and if not whether the Appellants have suffered any miscarriage of justice.
6. Whether the Election Tribunal was right to accord more weight to the evidence of RW 2 and RW 15 than the evidence adduced by the Appellants in respect of Sandamu Local Government Area especially that of PW 11.

The 2nd – 1421st Respondents did not file any brief in this appeal. When this case came up for hearing on 12th April, 2007, the learned counsel for the 1st Respondent drew the attention of the court to the fact that he had filed Notice of preliminary objection and in keeping with the practice in this court, the said preliminary objection was heard first and although the learned counsel for the Appellant was absent without any excuse, his brief was deemed argued in line with Order 17 Rule 9(4) of the court of Appeal Rules, 2007.

I shall determine the preliminary objection first, before considering the issues formulated by the parties in this appeal.

The Notice of preliminary objection is contained on pages 6-7 of the 1st Respondents’ amended brief of argument and the argument on it is found on pages 7 – 20 of the said brief. The Notice states:

“TAKE NOTICE that pursuant to Order 10 Rule 1 of the court of Appeal Rules, 2007, the 1st Respondent will at the hearing raise a preliminary objection to the competence of the appeal and consequently urge the Honourable court to dismiss or strike out the petition on the following grounds:-

1. The court has no jurisdiction to entertain the appeal as the appeal arose from a petition which was ab initio incompetent for being statute barred in that the petition was filed outside the 30 days period limited by section 141 of the Electoral Act, 2006: the petition was filed on 21st May, 2007 against the result of the election which was declared on 21st April, 2007.
2. The Appeal is merely academic and theoretical in that none of the grounds of appeal raises any issue that can lead to the grant of the reliefs sought by the Appellants.
3. Every one of the nine grounds in the Notice of Appeal is incompetent and liable to be struck out because:

(i). Grounds 1 and 9 raise merely academic and theoretical issues.

(ii). Ground 2 has been abandoned.

(iii). Grounds 2,3,4,5,6,7,8 and 9 are not bourne out by the record of appeal.

(iv). Issues nos. 3, 5 and 6 were argued together with issue 4 which is non-existent and incompetent thereby rendering grounds 3,4,5,6,7 and 8 encompassed in issues 3, 5 and 6 incompetent and liable to be struck out.