Mahmud Aliyu Shinkafi & Anor V. Abdulazeez Abubakar Yari & Ors (2016)

LAWGLOBAL HUB Lead Judgment Report

JOHN INYANG OKORO, J.S.C.

This is an appeal against the judgment of the Court of Appeal sitting in Sokoto, in Appeal No. EPT/CA/S/GOV/005/2015 delivered on 12th November, 2015 wherein the Court below dismissed the Appellants’ appeal against the judgment of the Election Petition Tribunal that earlier dismissed the Appellants’ Petition in a judgment delivered on 17th September 2015. A synopsis of the facts giving birth to this appeal will suffice.

The 1st Appellant herein contested in the Gubernatorial Elections of 11th April, 2015 as the candidate of the Peoples Democratic Party the 2nd Appellant, to the office of the Governor of Zamfara State. The 1st Respondent also participated in the same elections as the candidate of the All Progressives Congress – the 2nd Respondent. The said election was conducted by the 3rd Respondent, as I said, on 11th April, 2015. At the end of the polls and collation of results, the 3 Respondent declared the 1st Respondent the winner and returned him the duly elected Governor of Zamfara State. Eighteen (18) other parties also fielded their candidates at the said Election.

As would be

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expected, the Appellants were dissatisfied with the result of the election and the return of the 1st Respondent as the Governor of Zamfara State. They thereafter approached the Governorship Election Petition Tribunal, holden at Gusau, Zamfara State and filed Petition No. EPT/ZMS/GOV/2/2015 against the Respondents. The Petition was anchored on the grounds that there was want of the 21 days statutory notice given to the 3rd Respondent (INEC) before the conduct of the 2nd Respondent APC’s primary election to select their Governorship candidate. Secondly, that there was over-voting at the 11th April, 2015 general Election to the office of the Governor of Zamfara State.

Each set of the Respondents filed their respective replies to the Petition and in each of their replies, they gave notices of their preliminary objections to the hearing of the petition. The Appellants at the trial of the Petition, called Six (6) witnesses whilst one (1) witness testified for the Respondents. Some documents were tendered in evidence by the parties and were received and marked as Exhibits. At the end of hearing, Counsel to the respective parties filed and exchanged written

2addresses. In its judgment, the Tribunal found for the Respondents and dismissed the petition. The Appellants, not being satisfied with the decision of the Tribunal, appealed to the Court of Appeal. The lower Court found the appeal unmeritorious and dismissed same, thus affirming the judgment of the trial Tribunal.

Again, dissatisfied with the judgment of the lower Court, the Appellants have appealed to this Court via Notice of Appeal dated 17th, November, 2015 but filed on 20th November, 2015. The said notice of appeal has eleven grounds of Appeal. On 16th December, 2015, when this appeal was argued, all parties to this appeal through their respective counsel, identified, adopted and relied on their respective briefs.

In the Appellants, brief dated 29th, November, 2015 but filed on 1st December, 2015 by learned Senior Counsel, Yunus Ustaz Usman, SAN, six issues were distilled for the determination of this appeal.

The six issues are as follows:

1. Whether the Hon. Learned Justices of the Court of Appeal erred in law in holding at pages 11 -13 of their Lordship’s judgment that want of compliance with Sections 85 and 87 of the Electoral Act,

3 2010 (as amended) which are a (sic) statutory provision does not disqualify the 1st Respondent from contesting the Gubernatorial election (Grounds 1 and 8).

2. Whether the Hon. Justices of the Court Appeal erred in law when their Lordships held at paragraph 17 of their Lordship’s judgment that: “The above notwithstanding, I do not agree with the submission of the learned senior counsel to the Appellants that if Exhibits A, A1, A3, were not relied upon by the Tribunal, there would be no evidence to disprove the allegation of violation of Section 85 of the Electoral Act, 2010 (as amended). If I may ask, who has the burden of proving the allegation of the violation of Section 85 of the Electoral Act, 2010 (as amended) It is elementary and the law is well settled to the effect that it is he who alleges that has the onus of proof” (Grounds 2, 6 and 10).
3. Whether the Hon. Learned Justices of the Court of Appeal erred in law in holding that there was no over-voting or violation of the provision of the Electoral Act, 2010 (as amended) and that even if there was such non-compliance, such non-compliance does not substantially affect the principles behind the

4Electoral Act, 2010 (as amended) (which is free and fair election) or substantially affected the result of the election. (Grounds 3, 4 and 5).

4. Whether the Hon. Learned Justices of the Court of Appeal were right in holding that the 2nd Respondent (APC) gave the mandatory 21 days statutory notice to INEC before conducting its primary election of 4th December, 2014 (Ground 7).
5. Whether the Hon. Learned Justices of the Court of Appeal violated the Petitioners/Appellants’ constitutional rights to fair hearing as enshrined under Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) when it refused to determine on issues 4 and 10 raised by the Appellants against the decision of the trial Tribunal. (Ground 9).
6. Whether the judgment affirming the judgment of the trial Tribunal is not against the weight of evidence. (Ground 11).

Also, in the brief settled by A. J. Owonikoko, SAN, leading other Counsel on behalf of the 1st and 2nd Respondents, two issues are however formulated for the determination of this appeal. The two issues may be stated thus: