Jafar Abubakar V. Alhaji Ibrahim Hassan Dankwambo & Ors (2015)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment)

As a sequel to the gubernatorial election for Gombe State held on 11th April, 2015 at which the 1st respondent herein was returned as duly elected, the appellant who was a candidate at the election filed a petition at the Governorship Election Petition Tribunal challenging the return of the 1st respondent as duly elected.

After the close of pleadings, the appellant applied for the issuance of pre-hearing conference notice pursuant to Paragraph 18(1) of the 1st Schedule to the Electoral Act. The tribunal duly issued pre-hearing information sheet and the parties filed their respective answers. Thereafter, the pre-hearing commenced at the end of which the tribunal issued a report of pre-hearing session and then fixed the petition for hearing. The 1st respondent later filed an application wherein he urged the court to strike out the petition upon the ground that the petition was signed by Sam Kargbo, Esq., a name that is not on the roll of legal practitioners.

The appellant filed a counter affidavit where, inter alia, it was deposed that Sam Kargbo is one and the same person as Samuel Peter Kargbo, a name on the roll of legal practitioners. In its ruling on the application, the tribunal held among others that there is a world of difference between the names Sam Kargbo and Samuel Peter Kargbo and that Section 2(1) of the Legal Practitioners Act insists on the use of the name on the roll of legal practitioners and not any other name, The tribunal then conclusively held that the name Sam Kargbo which is not contained on the roll of legal practitioners cannot validly sign the petition.

This ruling which was delivered on the July, 2015 is at pages 1972 – 1985 of volume 3 of the records. (However, see specifically pages 1982 – 1983 of volume 3 of the records). The tribunal however declined to strike out the Petition ruling that since the petitioner signed the petition himself, the signing of the petition by Sam Kargbo as well was secondary. Hearing on the petition then continued only for the 2nd and 3rd respondents to file similar applications urging the tribunal to dismiss the petition in limine upon the ground that Sam Kargbo who represented the petitioner at the pre-hearing session was not a name on the roll of legal practitioners and that in consequence the proceedings at the pre-hearing session should be expunged and concomitantly, the petition dismissed pursuant to Paragraph 18(11) of the 1st Schedule of the Electoral Act 2010 for failure by the petitioner to participate in the pre-hearing session.

The applications were consolidated for hearing and in its ruling delivered on 3rd August, 2015, the Tribunal granted the applications holding that the pre-session proceedings conducted by Sam Kargbo, who did not have the right of audience in court since his name is not on the roll of legal practitioners, amounts to a nullity. Consequently, the Tribunal dismissed the petition. The scarified ruling of the Tribunal is at pages 2063 – 2081 of volume 3 of the records. Thoroughly dissatisfied and peeved by the ruling, the appellant appealed against the same. He filed two notices of appeal, both in a timely manner, one on 3rd August, 2015 and the other on 19th August 2015.

The said notices of appeal are at pages 2082 – 2086 and 2087 – 2098 of volume 3 of the records. The records of appeal having been compiled were transmitted on 22nd August, 2015 and deemed by order of this Court made on 9th September, 2015 as having been properly compiled, transmitted and served on the parties. The notice of appeal filed on 3rd August, 2015 was equally struck out upon the application of the appellant.

The parties filed and exchanged briefs of argument. The appellant’s brief of argument in appeal no. CA/YL/EPT/GMB/GOV/62/2015 was filed on 25th August 2015. The appellant also filed a reply brief to the briefs of the 1st respondent and 2nd respondent on 3rd September, 2015. The Appellant’s brief in

?appeal no.CA/YL/EPT/GMB/GOV/63/2015 was filed on 25th August, 2015. It is the ippsisima verba of the appellant’s brief filed in appeal no.CA/YL/EPT/GMB/GOV/62/2015. The appellant also filed a reply to the brief of the 3rd respondent on 1st September, 2015.

The 1st respondent filed a brief of argument in appeal no.CA/YL/EPT/GMB/GOV/62/2015 on 31st August, 2015. He however did not file any respondents brief in respect of appeal no.CA/YL/EPT/GMB/GOV/63/2015. The 2nd respondent filed a brief of argument in appeal no. CA/YL/EPT/GMB/GOV/62/2015 on 31st August, 2015. Equally, he did not file any respondents brief in respect of appeal no.CA/YL/EPT/GMB/GOV/63/2015. The 3rd respondent did not file any respondents brief in appeal no.CA/YL/EPT/GMB/GOV/62/2015.

It however filed a respondents brief in appeal No.CA/YL/EPT/GMB/GOV/63/2015 on 29th August, 2015. The 4th respondent’s brief in CA/YL/EPT/GMB/GOV/63/2015 filed on 1st September, 2015 was found to have been filed out of time consequent upon which the 4th respondent does not have a valid brief in any of the two appeals.

In view of the fact that the appellant filed two separate appeals from the single ruling of the tribunal on the consolidated applications and given the fact that the submissions in the appellant’s brief in each of the two appeals are the same, the review of any one of the brief will equally apply to the either. Furthermore, given the similar nature of the submissions, the review of the respondents brief would apply mutatis mutandis to both appeals, in respective of the fact that the respondent did not all file brief encompassing both appeal.

The appellant distilled three issues for determination in his brief of argument as follows:-

1. Whether in consideration of all the circumstances of this case, the tribunal was right in dismissing the petition on the ground that the petitioner did not validly participate in the prehearing session,
2. Whether in consideration of the totality of the fact, evidence and circumstances of this case, the tribunal was right when it held that its ruling of 9th July, 2015 is to the effect that Sam Kargbo or the person who held out himself to be Sam Kargbo is not entitled or qualified to practice as a Barrister or Solicitor in Nigeria and in the circumstances has no right of audience in court as granted by Section 8 of the Legal Practitioners Act and Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 as amended.
3. Whether in consideration of the peculiar nature of the jurisdiction of Election Petition Tribunals, the facts and circumstances of this case, the plural panel acted of the tribunal with jurisdiction and was right in law to have entertained and granted the reliefs sought in the application of the 2nd (3rd) respondent at the stage and in the manner it did.

The 1st respondent adopted the issues for determination as formulated by the appellant. On his part, the 2nd respondent couched the issues for determination in his brief of argument as follows: