Independent National Electoral Commission & Ors. V. Alhaji Abubakar Habuhashidu & Ors. (2008)

LawGlobal-Hub Lead Judgment Report

NWALI SYLVESTER NGWUTA, J. C. A.

Governorship election was held throughout the country on 14th April, 2007. The result of the election in Gombe State was declared the following day 15th April, 2007. The 1st Respondent who was sponsored by the 2nd Respondent (PD) was declared and returned winner of the election in Gombe State.

1st Cross-Respondent and his sponsor, the DPP presented an election petition against the declaration and return of the 1st Respondent as the winner of the election. The Petition was filed on 15th May 2007.

One of the issues dealt with by the Tribunal was the competence vel non of the petition. This issue arose from oral evidence before the Tribunal and was predicated on the following two grounds:-

(1) That the petition was not filed within time; and

(2) That the petition failed to state the scores of all contestants at the election.

In its judgment the Tribunal held that the petition was filed within the time stipulated by the Electoral Act 2006. However, it held that the petition was incompetent for its failure to state the scores of all the contestants at the election.

The appellants appealed against the said judgment. On 11/3/2008 the 3rd-16th Respondents sought and were granted, leave by the Court to Cross-appeal against the judgment of the Tribunal. The notice of appeal was deemed filed on 11/3/2008. The lone ground of appeal is hereunder reproduced.

“The Lower Tribunal erred in law when it assumed jurisdiction to hear the Petition which was presented on the 15/5/07 against election result declared on the 15/04/07 and therefore statute barred by excluding 15/04/07 in computing 30 days within which to present election Petition, and by relying on Section 15(a)(i) of the Interpretation Act and Order 23 Rule 1(a) Federal High Court Rules, 2002 and this occasioned a miscarriage of justice.”

In the Cross-appellants’ Brief of argument the issue distilled for determination is

“Whether the petition presented on 15th day of May 2007 against election result declared on the 15th April, 2007 is competent and if the answer is in the negative whether the lower Tribunal had jurisdiction to adjudicate on the Petition.”

In their own brief of argument the Appellant Cross-Respondents framed the following issue for determination:

“Whether the Appellants/Respondents to the cross-appeal’s petition filed on the 15th May 2007 against the election into the Office of Governor of Gombe State declared on the 15th April, 2007 was flied outside the thirty (30) days period for the presentation of the Election Petition as stipulated under Section 141 of the Electoral Act, 2006.”

Learned Counsel for the Cross-Appellants flied a reply to the Cross-Respondents’ Brief of argument. None of the 1st and 2nd Respondents made a brief in the cross appeal.