Malam Abubakar Abubakar & Ors. V. Saidu Usman Nasamu & Ors (2011)

LAWGLOBAL HUB Lead Judgment Report

F. TABAI, J.S.C.

The originating process in this appeal is the petition filed at the Governorship Election Tribunal Birnin Kebbi. It was dated the 18th May, 2011. The petitioners were the appellants at the court below and are the 1st, 2nd and 3rd Respondents herein. Sequel to this petition a number of other processes were filed and exchanged by the parties.

The petitioners addressed a letter to the Honourable Tribunal. It is dated 14th June, 2011. Its heading “APPLICATION FOR THE ISSUANCE OF PRE-HEARING NOTICE” The said letter states:-

“Pleadings have been concluded as the Tribunal has served all the respondents with copies of the petition and the 1st – 6th respondents have served us with their replies to the petition. We have equally filed and served our petitioners replies to the respective replies.

Accordingly, we are humbly applying for the issuance of pre-hearing notice pursuant to paragraph 18 (1) and (2) of the First Schedule to the Electoral Act 2010 (as amended). We undertake to pay the cost of this application as assessed.”

(See: page 333 of the record.) On behalf of the 1st and 2nd respondents an application dated the 22nd of June, 2011 was flied for an order dismissing the petition in its entirety and setting aside as null and void and of no effect whatsoever, the notice of hearing purportedly issued at the instance of the petitioners. The grounds upon which the dismissal was sought are stated therein to be as follows:-

(a) Pleadings were exchanged between the parties with the petitioners’ reply filed at the close of pleadings on the 12th day of June 2011.

(b) The petitioner’s reply was served to the 1st and 2nd respondents on the 13th of June, 2011.

(c) The petitioners had 7 days after the 12th June, 2011 to apply for the issuance of pre-hearing Notice but the petitioners did not do so.

(d) The petitioners’ application for the issuance of pre-hearing Notice was made vide a letter dated 14th day of June, 2011 delivered to the Tribunal on the 15th of June, 2011.

(e) No application for the issuance of pre-hearing Notice was made by the petitioners in accordance with the Electoral Act 2010 (as amended).

(f) By the provisions of paragraph 47(2) of the First Schedule to the Electoral Act 2010 (as amended) all applications must be by motion supported by affidavit. (See pages 357 – 358 of the record). On the same day an identical application was made on behalf of the 3rd respondent (PDP). (See pages 376-379 of the record). Each of the application was supported by an affidavit of eleven paragraphs. In reaction, the petitioners filed a 24 paragraph counter affidavit. The 1st and 2nd respondents, the 3rd respondent and the petitioners submitted written addresses.

In its considered ruling on the 27/7/2011 the Applications for dismissal were refused and same dismissed. The 1st, 2nd and 3rd respondents were not satisfied with the decision and proceeded on appeal to the Court of Appeal by their notice of appeal dated 10th August, 2010. Therein the parties filed and exchanged their briefs of argument. In its considered judgment on the 23rd of September, 2011 the appeal was allowed. In the concluding paragraph the Court of Appeal, per Jimi Olukayode Bada, JCA stated as follows:

“In the final analysis; it is my view that this appeal succeeds and it is allowed. Accordingly, I make the following orders:-