Kabiru Ibrahim Gaya & Ors v. Hon. Kawu Sumaila & Ors (2023)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

UGOCHUKWU ANTHONY OGAKWU, JCA (Delivering the leading judgment)

The appellants herein presented a Petition before the National and State Houses of Assembly Election Petition Tribunal in petition No. EPT/KN/SEN/02/2023: Kabiru Ibrahim Gaya & Anor v. Hon. Kawu Sumaila & Ors. By the petition, the appellants challenged the declaration and return of the 1st respondent as the Senator-elect for the Kano South Senatorial District of Kano State at the election held on 25th February 2023.

The pleadings were filed exchanged and the respondents filed objections challenging the competence of the petition. The objections were upheld, and the petition was struck out for being incompetent. The tribunal still proceeded to consider the merits of the petition on the evidence adduced by the appellants, and it thereafter dismissed the petition for being unmeritorious.

The appellants were dissatisfied with the judgment of the tribunal, and they appealed against the same. The judgment of the tribunal which was delivered on 11th September, 2023 is at pages 868-943 of the records of appeal, while the notice of appeal which was filed on 29th September 2023 is at pages 958 – 971 of the records of appeal.

The Index for reference in the records of appeal states that the notice of appeal is at pages 943 – 957. While there is a page 943 which is the last page of the judgment of the tribunal, there are no pages 944 – 957 in the records of appeal, as after the judgment, the next page where the notice of appeal starts is numbered as page 958.

This discrepancy in the numbering of the pages of the records of appeal is however of no consequence as it would not seem that the records of appeal are not complete, and no issue has been made of the records of appeal being incomplete. So, I will overlook the peccadillo and let that sleeping dog lie.

In prosecution of the appeal, the records of appeal having been compiled and transmitted, the parties filed and exchanged briefs of argument and other processes in articulation of their submissions in the appeal. The processes on which the appeal was argued, and which learned counsel adopted and relied upon are:

1. Appellants brief of argument filed on 12th October, 2023
2. 1st respondents brief of argument filed on 22nd October, 2023.
3. 2nd respondents brief of argument filed on 21st October, 2023.
4. 3rd respondents brief of argument filed on 22nd October, 2023.
5. Appellants reply to 1st respondents brief filed on 25th October, 2023.
6. Appellants reply to 2nd respondents brief filed on 15th October, 2023.
7. Appellants reply to 3rd respondents brief filed on 25th October, 2023.
8. 1st respondents motion filed on 22nd October, 2023 for the dismissal of the appeal.
9. Appellants counter-affidavit to 1st respondents motion filed on 25th October, 2023.
10. 2nd respondents motion for an order dismissing the appeal filed on 21st October, 2023.
11. Appellants counter-affidavit to 2nd respondents motion filed on 25th October, 2023.

The appellants distilled two issues for determination in the appeal, namely:

i. If the petition filed by the petitioner, was ever considered in reaching the court’s decision being properly filed and responded to with the reliefs sought at the trial court and

ii. If the striking out of the evidence brought by the petitioner was fairly and justly determined in the light of the new Electoral Act, 2022.

All the respondents adopted the two issues formulated by the appellant.

The applications referred to above, which were filed by the 1st and 2nd respondents are threshold in nature as they seek to scuttle the hearing of the appeal in limine. The 1st respondents motion prays for the following orders:

1. An order of this court striking out the argument of the appellants/respondents as contained in their brief of argument dated 12th October, 2023 for failing to fit into the narrow scope of issues formulated by the appellants/respondent.
2. An order of this honourable court striking out the appellants brief of argument same being grossly incompetent incurably invalid.
3. An order of this honourable court striking out the appellants issues for determination as contained in their brief of argument for being abandoned.
4. An order of this honourable court striking out the appellants grounds of appeal for being abandoned.
5. An order of this honourable court dismissing this appeal.

The grounds of the application are as follows:

1. That the argument in brief of argument filed by the appellants on the 12th October, 2023 did not fit into the issues for determination raised therein.
2. The appellants only argued the grounds of appeal and not issues for determination.
3. The appellants brief of argument offends the provision of Order 19 Rule 3 of the Court of Appeal Rules, 2021.
4. The grounds of appeal are abandoned.

The application filed by the 2nd respondent is for the following reliefs: