Hon. Samuel Alu V. Hon Raymond Akolo & Ors (2008)

LawGlobal-Hub Lead Judgment Report

RABIU DANLAMI MUHAMMAD, J.C.A.

On the 14th day of April, 2007, elections were held into the Nasarawa Eggon Constituency of the Nasarawa State House of Assembly. The appellant contested under the platform of the Peoples Democratic Party (P.D.P) while the 1st respondent contested under the banner of All Nigeria Peoples Party (ANPP). At the conclusion of the election, INEC declared the 1st respondent as the winner of the election. The appellant felt aggrieved with the declaration and return of the 1st respondent, he therefore filed a petition on 15th May, 2007, at the Nasarawa State National Assembly/Governorship and Legislative Houses Election Tribunal holden at Lafia.

On the following grounds:-

“a. that the election was invalid by reason of corrupt practices and non-compliance with the provisions of the Electoral Act 2006

b. that the respondent was not duly elected by the majority of lawful votes cast at the election.”

The 2nd to 56th respondents then filed a Notice of Preliminary Objection that the petition was incompetent having been filed out of the statutory period allowed for the filing of election petitions. The Notice of Preliminary Objection was supported by a ten paragraph affidavit. The petitioner filed a 3 paragraphs counter-affidavit in opposed hearing submission from counsel to the parties, the tribunal in its held:-

“The issues rose in the objection and its accompanying affidavit and the counter-affidavit are serious and conflicting enough that it is our view that these conflicts can only be resolved by oral and or documentary evidence and we accordingly so hold. Other issues of law raised in the course of arguing the preliminary objection shall be considered at the trial after oral evidence has been adduced to resolve the issues rose in the aforementioned conflicting affidavits.”

After holding that the issues raised in the objection and the affidavit in support and the counter-affidavit are serious and could only be resolved by oral and or documentary evidence and that all issues shall be considered after oral evidence has be adduced, the tribunal in a curious u-turn said:-

“The result is that the preliminary objection as it is, lacks merit and same is hereby dismissed.”

The petition then proceeded to full trial. The petitioner testified and called 15 other witnesses. The 1st respondent also testified and called one other witness. The 2nd – 56th did not testify nor called any witness to testify on their behalf. In its judgment, the tribunal extensively and exclusively with the issues raised in the preliminary objection and came to the following conclusion:-

“It is our finding that the result of the election was declared on the 14th of April, 2007. This will mean that this petition was brought outside the 30 days limited by Section 141 of the Electoral Act, 2006 and this Tribunal would lack jurisdiction to hear it in the first place. In other words having decided that this petition is incompetent, it would be an exercise in futility to look into the merits of the case…

Without belabouring this issue, this petition in our view is patently barren and is devoid of merit. It is one that should be dismissed and same is hereby dismissed with the order that patties shall bear their own costs.”

The petitioner was not satisfied with this decision the petitioner appealed to this Court the Notice of Appeal contained two grounds. Without their particulars, the grounds of appeal read:-

“1. The decision of the trial court is against weight of evidence.