Hon. Isa Badamasi Dahiru & Anor. V. Othman Bala Adam & Ors. (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

(REASONS FOR THE JUDGMENT, DELIVERED BY ALI ABUBAKAR BABANDI GUMEL, J.C.A.)

On 4th day of October, 2011. I allowed this appeal. I indicated then that I would give the reasons for my judgment, I now do so today. The 3rd Respondent (INEC) organized and conducted elections on the 26th April, 2011 for seats f or the Nassarawo State House of Assembly and other State Houses of Assembly in Nigeria.

The 1st Appellant was sponsored by the 2nd Appellant for the election while the 1st Respondent was sponsored by the 2nd Respondent in that behalf. At the end of the elections, the 3rd Respondent returned and declared the 1st Respondent as the duly elected candidate of the Keffi-East Constituency of the Nassarawa State House of Assembly.

The 1st and 2nd Appellants herein, filed petition number EPT/NS/HA/14/2011 to challenge the declaration of the result of the election and return of the 1st Respondent by the 3rd Respondent. Issues were duly joined in the filed and exchanged pleadings of the parties.

In a motion on notice dated and filed on 20/07/2011 and brought pursuant to paragraph 47(2) of the 1st Schedule to the Electoral Act, 2010, as amended, the 1st and 2nd Respondents sought for the following reliefs. They are:-

1. AN ORDER of this Honourable Tribunal striking out or dismissing the petition No. EPT/NS/HA/14/2011 for being incompetent as the petition was filed outside the 21 days period allowed by the Electoral Act, 2010 (as amended).
2. AN ORDER striking out the petition or dismissing the petition No. EPT/NS/HA/14/2011 for lack of jurisdiction by the Honourable Tribunal to hear and determine the petition.
3. AN ORDER setting aside the petitioners’ reply dated 14th day of June, 2011 to the 1st and 2nd Respondents’ reply for being incompetent.

The application was predicated on the following 4 grounds. They are:-

1. That the petition of the petitioners is statute barred as same was filed out of the statutory 21 days allowed for filing the petition under section 134(1) of the Electoral Act, 2010 (as amended).
2. That the petitioners’ petition raises pre-election issue and facts outside the jurisdiction of this Honourable Tribunal.
3. That the Honourable Tribunal lacks the jurisdiction to hear and determine this petition.
4. That the petitioners’ reply to the 1st and 2nd Respondents reply is incompetent for being contrary to paragraph 16(1) (a) & (b) of the first Schedule to the Electoral Act, 2010 (as amended).

This application was supported by a 6 paragraph affidavit. The Petitioners/Respondents and 3rd Respondent (INEC) did not file a counter-affidavit to this motion. However learned Counsel to the Petitioners/Respondents/ Appellants filed a written reply on points of law. After considering these processes and arguments and submissions of learned Counsel to the 1st and 2nd Respondents/Applicants and Petitioners/Respondents in their respective filed and exchanged written addresses, the Lower Court delivered its ruling on 9th August, 2011, wherein it struck out the petition of the Appellants for want of jurisdiction.

The Petitioners/Appellants were dissatisfied with the ruling of the Lower Court and appealed to this Court in a notice of appeal dated and filed on 24th August, 2011. This notice of appeal contains 3 grounds of appeal. They are hereby fully reproduced as follows:

GROUND 1

The Lower Tribunal erred in law when it held that the petitioners’ reply raised new facts tending to amend or add to contents of their petition contrary to Paragraph 16(1) (a) & (b) of the first Schedule of the Electoral Act, 2010 (As Amended) which occasioned miscarriage of justice.

PARTICULARS OF ERROR

1. The Petitioners alluded to the fact that the academic qualification submitted to INEC by the 1st Respondent was either fake or forged.
2. The 1st Respondent in his reply alluded that he went to Ahmadu Bello University Zaria and obtained a Bachelor’s Degree in Public Administration.
3. The Petitioners in their reply controverted that fact by saying the 1st Respondent did not attend ABU, Zaria and if he does did not obtain the degree he is parading.
4. The Petitioners simply joined issues with the 1st Respondent upon his own assertions.

GROUNDS 2

The Lower Tribunal erred in law when it held that the issue of certificate forgery were issues squarely within the jurisdiction of the State or Federal High Court being a pre-election matter and consequently not within the purview of the matters with the jurisdiction of the Election Tribunal.

PARTICULARS OF ERROR