Isyaku Magaji & Anor V. Habibu Saleh Ors (2008)

LawGlobal-Hub Lead Judgment Report

BASA ALKALI BA’ABA, J.C.A.

This is an appeal against the ruling of the Election Petition Tribunal, holden at Kano, Kano State in Petition No. EPT/KNS/HA/ 24/2007 delivered on the 19th day of January, 2008, striking out the petition.

The brief facts of the petition leading to this appeal are as follows: On the 14th day of April, 2007, the 1st appellant as a candidate of the 2nd appellant, contested the election to the House of Assembly for Minjibir Constituency, Kano State while the 1st respondent contested the same election on the platform of the 2nd respondent, the All Nigeria Peoples Party (ANPP). At the conclusion of the said election, the 1st respondent who scored the highest lawful votes at the election was declared the winner of the election by the 3rd respondent.

The appellants as the petitioners filed a petition dated and filed on the 15th day of May, 2007 containing twenty-five paragraphs at pages 1 – 54 of the record challenging the declaration and return of the 1st respondent. The 1st and 2nd respondents thereafter filed a motion challenging the competence of the petition of the petitioner on divergent grounds (see pages 89 – 98) of the record which was subsequently withdrawn on 10/9/07. On the 10/9/07, counsel to 3rd and 4th respondents moved their application seeking for the dismissal of the petition on the ground that it was filed out of time (see pages 309 – 310) of the record. The said application was dismissed by the Tribunal on 28/9/07 and held that the petition was filed on the 15th day of May, 2007 within time (See pages 313 – 317) of the record.

Leave was granted to the respondents to file their respective reply out of time (page 319) of the record.

Before the end of the pre-hearing session, the Tribunal observed that although the petition is said to have been filed on 15/5/07 but amongst the receipts issued by the Secretary in respect of petitions filed on 15/5/07, there was no receipt issued in respect of the appellants/ petitioners’ petition. As a result, the appellants as petitioners, filed a motion dated 23/10/2007 filed on 24/10/2007, praying for the following orders:-

“1. An order of this Hon. Tribunal summoning Mrs. E.I. Sowemimo to appear and produce receipts for filing fees/security for costs paid to her by the petitioner for this petition or to clarify the issue of the whereabout of the receipt she was supposed to have issued to the petitioners.

2. An order of this Tribunal directing the Registrar of this Court to produce for counsel’s inspection all the receipts booklets containing the duplicate copies of all receipts issued by this Tribunal for filing fees and other requisite fees in the entire 43 petitions filed before the Tribunal.
3. And for further or other orders as this Hon. Tribunal may deem fit to make in the circumstance of this case.”

The motion reproduced above supported by a twenty-four paragraph affidavit was heard and the Tribunal in its ruling delivered on the 21/11/2007, held inter alia as follows:-

“It is our most humble view that the said Mrs. E.I. Sowemimo was acting in her official capacity at all the time of her being the Secretary to the Tribunal. Any transaction had with her by any of the parties was also done on official basis. She only headed the Registry. It was Mrs. E.I. Sowemimo that is no longer there as the head of the Registry. The Registry of the Tribunal has not gone anywhere. It is there and the person who took over from her is also there. That is how any organ of government functions. Since the Registry of this Honourable Tribunal is still there, it is our most humble view that no useful purpose would be served in summoning the erstwhile Secretary. It would have been a different thing assuming the Registry has wound-up and an issue arises in which only the former Secretary of the Tribunal could shed light. It has not been alleged that the erstwhile Secretary did not hand over to the current Secretary. Therefore all the duplicate receipts issued in payment for filing of all the petitions ought to have been handed over to the current Secretary by the former Secretary. The said duplicate receipt booklets ought ordinarily to be in the effective custody and control of the current Secretary. It is for this reason that we have stated earlier that the two prayers shall be taken together by us. Therefore, the petitioners should be able to get whatever information needed by them in the record of the Tribunal left behind by the erstwhile Secretary. It is for this reason also that we find ourselves unable to accede to the first prayer of the petitioners.

However, in view of our decision that all the official records of the Tribunal including duplicate receipts issued for the filing of the petitions are to be in the effective custody and control of the current Secretary, we find merit in the second prayer. We grant the said second prayer as prayed. Accordingly, it is hereby ordered that the Secretary of this Tribunal shall produce for the counsel’s inspection all the receipt booklets containing the duplicate copies of all the receipts issued by this Tribunal for filing fees and other requisite fees in the entire petitions filed and paid for before the tribunal. Application granted in part.”

The appellants as petitioners filed their written address in compliance with the Tribunal’s order (See pages 346 – 347) of the record. The Tribunal on the 19th of January, 2008, delivered its ruling part of which reads as follows:-

“This Tribunal on discovering from its records that there was no receipt of evidencing payment of filing fees, suo motu invited counsel to address it on the effect of non-production of receipt to evidence payment of filing fees by the petitioners. Learned counsel to the petitioners took objection on the jurisdiction of the Tribunal to suo motu raise the issue or production of receipt. The ground of the objection taken is that this Tribunal had on the 20th of September 2007 held that this petition was filed on the 15th of May 2007.

Learned counsel for the petitioners contended that the Tribunal having held that the petition was filed on 15th of May 2007 lacks the jurisdiction to raise the issue of non-production of receipt.”

The Tribunal at pages 364 concluded thus: