Mallam Abubakar Abubakar & Ors. V. Saidu Usman Nasamu & Ors (2012)

LAWGLOBAL HUB Lead Judgment Report

ONNOGHEN, J.S.C.

The consolidated appeals arose from the decision of the Court of Appeal, Holden at Sokoto in appeal no. CA/S/EPT/GOV/31/2011 delivered on the 29th day of December, 2011 in which the court allowed the appeals of the 1st and 2nd respondents against the Judgment of the Kebbi State Governorship election tribunal and dismissed the cross appeal of the appellants. The lower court did not give the reasons for the decision along with the decision neither was the reason given within the fourteen (14) days allowed appellants to filed their notice of appeal nor within the sixty (60) days allowed the lower court to hear and determined appeals from election tribunal.

The judgment in the appeal was said to have been given on 29th December, 2011 while the reasons for the judgment was given on 23rd January, 2012. Appeal no. SC/14/2012 is therefore against the judgment in respect of the appeal brought before the lower court by the present 1st and 2nd respondents i.e. SAIDU USMAN NASAMU and IBRAHIM KHALIL ALIYU the Governorship and Deputy Governorship candidates of the Peoples Democratic Party (PDP) in the Kebbi State Governorship election held on 20th April, 2011.

The facts of the case are straight forward and include the following:-

On the 26th day of April, 2011 Governorship election into the Office of Governors of various states in Nigeria including Kebbi State, were held. At the election, 1st and 2nd appellants were sponsored by 3rd appellant Congress for Progressive Change while 1st and 2nd respondents were the candidates of 3rd respondent, Peoples Democratic Party (PDP).

The 4th respondent is the body constitutionally assigned the role of conducting national elections by which I except election into offices in local government councils.

At the conclusion of the election, the 4th respondent declared the 1st and 2nd respondents winners of the election into the Office of Governor and Deputy Governor of Kebbi State haven scored the majority of lawful votes cast at the election and fulfilled all other constitutional requirements.

Appellants were not satisfied with that result and challenged same at the tribunal on 18th May, 2011 vide an election petition, contending that the election was not conducted incompliance with the provisions of the Electoral Act and the Election Manual in that there was no due election. The respondents’ contention is that the election was conducted in substantial compliance with the Electoral Act and Election Manual and that all relevant forms were used in strict compliance with the laws and regulations.

At the conclusion of trial, the tribunal held that 4th respondent failed to establish proper conduct of the election vide actual or proper distribution of ballot papers and ballot boxes and other sensitive electoral materials which failure was fatal to the conduct of the election; that the hand written entries on plain sheets of paper – exhibits Kebbi State ten (10) and Kebbi State Eleven (11) in place of the prescribed statutory forms is of no evidential value as the statutory forms are key to proper conduct of creditable election. The tribunal consequently nullified the election and ordered a proper election to be conducted.

The decision resulted in all the respondents appealing separately against same while appellants cross appeal which appeals were consolidated by order of court made on 28th December, 2011 and heard according. The judgment was adjourned to 29th December, 2011. The judgment is in the following terms!

“1st set of appeal succeed, and is allowed. 2nd set of appeal succeed and is allowed. 3rd set of appeal is succeed (sic) and is allowed. Cross appeal lacks merit and is dismissed the judgment and order of the tribunal delivered on 13th November, 2011 in petition No. EPT/KR/GOV/1/2011 is set aside”.

No reason(s) for the above decision was given until 23rd January, 2012. Appeal no. SC/14/2011 is therefore against the decision of the lower court allowing the appeal if the 1st set of appellants i.e. 1st and 2nd respondents herein. The issues for determination in SC/14/2011 are, as stated in the amended appellants’ brief deemed filed on 7th February, 2012, as follows:-

“1. Whether the judgment of the Court of Appeal delivered on the 29th days of December, 2011 is nullity, the Court of Appeal having not advanced or provided reasons for same at the time the judgment was delivered …

2. Whether the Court of Appeal had jurisdiction to give, advance or profer reasons for the judgment delivered on the 29th day of December, 2011, on 23rd day of January, 2012 having not disposed of the appellant’s appeal within a period of sixty (60) days from the date of delivery of the judgment of the tribunal……
3. Whether the lower court not being a final Court of Appeal in respect of governorship elections has jurisdiction to give or reserve the reasons for its judgment to a later date….
4. Whether having regards to the circumstances of this case, including the totality of evidence and states of pleadings, the lower court were right in setting aside the judgment of the tribunal which nullified the election of the 1st and 2nd respondents and ordered fresh elections.”

Appeal no. SC/14A/2012 is against the decision of the lower court allowing the appeal if the 2nd set of appellants whose uses for determination has been identified as follows:-