Labaran Abdul V. Hon. Isa Garba & Ors. (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOSEPH TINE TUR, J.C.A.(Delivering the Leading Judgment)

On the 14th day of April, 2007 the Independent National Electoral Commission conducted elections into the State House of Assembly in respect of Warawa Constituency in Warawa Local Government Area of Kano State.

The Peoples Democratic Party sponsored Honourable Labaran Abdul while the All Nigerian Peoples Party had Hon. Garba as candidate. Other contestants were Bello K. Gopel (A.C); Kabiru A.G./Dau (DPP) and Engineer Isa Abubakar (PAC). At the end of voting the Commission returned Hon. Labaran Abdul of the Peoples Democratic Party at the duly elected member of the State House of Assembly who had polled 6,524 votes while Hon. Isa Garba of the All Nigerian Peoples Party polled 6,257 votes. Bello K. Gopel 4,242; Kabiru A.G./Dau – 47; Engineer Isa Abubakar 234; and Kabiru Abdul (DPP) 87 votes respectively. Being aggrieved by this return. Hon. Isa Garba and the All Nigerian Peoples Party (ANPP) jointly petitioned the Governorship and Legislative House of Assembly Tribunal, holden at Kano.

The Tribunal heard evidence from the Petitioners, the Respondents and their witnesses and came to the conclusion that due to violence’ thuggery, intimidation etc, voting did not take place in five out of the 106 polling units.

On the 30th day of January 2008 the return of Honorable Labaran Abdul of the Peoples Democratic Party was nullified, with the Tribunal making the following orders:

“On the whole, having regard to all that we have stated and the conclusion arrived at by us in each of the above three formulated issues for determination in petition, it is nothing but stating the obvious to say that the said three issues has been answered in the affirmative in favour of the Petitioners” In the circumstances prayers 1, 2 and 3 adumbrated under paragraph 15 of the amended petition succeed and are hereby accordingly granted. Prayer 4 fails and same is hereby dismissed. For the avoidance of doubt we grant

1. A declaration that the 1st Respondent Labaran Abdul was not duly elected or duly returned as the winner of the election in Warawa Constituency of Kano State.
2. AN ORDER that the 100 votes increased in favour of PDP in Tamburawa Gabas ward be excluded while the 20 votes reduced from the votes of the Petitioners in the said Ward Tamburawct Gabas Ward be added.
3. AN ORDER nullifying the election or return of the 1st Respondent and a further order that fresh election be conducted by the 5th Respondent in the under mentioned polling units where the election were inconclusive i.e. Makera 007; Giwaran Alitini 003; Jigawa 002; Ganakakun 001 and Ganakakun 002 all of which are in Warawa Constituency of Kano State. Accordingly, the 5th Respondent shall pursuant to the provisions of paragraph 27(3) of the First Schedule to the Electoral Act, 2006 conduct fresh elections in the aforesaid 5 polling units within 3 months from the date of this judgment. This judgment shall be certified to the Resident Electoral Commissioner, Kano State or the Independent National Electoral Commission (INEC).”

Being naturally aggrieved Labaran Abdul of the Peoples Democratic Party presented a Notice of Appeal before the Registry of the Appeal Court, Kaduna on 19-12-2008 with thirteen grounds complaining against the whole judgment of the Tribunal. On 10-04-2008 leave of this Court was sought by the 1st Appellant to amend the original Grounds of Appeal. This was granted on the 19th day of May, 2008. The 1st Appellant filed a brief of argument on 20th day of March, 2008 dated 19th day of March, 2008.

On 31-03-2008 the 1st and 2nd Respondents filed a brief of argument but on 30-05-2008 sought leave to amend the brief. The Court granted the amendment on 08-07-2008 and same was deemed filed and served on the other parties.

In the Appellant’s Brief of Argument the following issues for determination were identified:

“(1) Whether it is proper for the Tribunal to suo motu formulate new issues in the course of writing its judgment and basing its decision on the new issues without inviting the parties to address it on the new issues so formulated.

Ground ii of the Notice of Appeal.

(2) Whether it is immaterial that the Appellant did not cause the disruption of the elections and that he might not have consented to the said disruption before his election can be nullified as a result of the said disruption. Ground viii and ix of the Notice of Appeal.

(3) Whether the Tribunal was right when it held that the 5th respondents or the Court could order a fresh election in five polling units where the tribunal held that election was inconclusive. Grounds vii and xii of the Notice of Appeal.

(4) Whether the Tribunal was right in allowing the petition and nullifying the return of the Appellant as the winner of the election in Warawa Constituency of Kano State in the face of the evidence before the Tribunal. Grounds i, iii, iv, v, vi, vii, x, xi, and xiii of the Notice of Appeal.