Mallam Yahaya Abdulkarim & Ors V. Mahmuda Aliyu Shinkafi & Ors (2008)

LawGlobal-Hub Lead Judgment Report

HUSSEIN MUKHTAR, J.C.A

The petitioners/appellants had, filed a petition dated 15th May 2007, and sought for nullification of the election and return of the 1st and 2nd respondents in the April 14th 2007 gubernatorial election as Governor and Deputy Governor and returning the 1st and 2nd appellants as Governor and Deputy Governor of Zamfara State respectively.

The 1st and 2nd petitioners/appellants were sponsored by the Peoples Democratic Party (hereinafter referred to as ‘the PDP’) to contest the governorship election in Zamfara State held on the 14th April 2007, while the 1st and 2nd respondents were correspondingly candidates fielded by the All Nigeria Peoples Party (hereinafter referred to as ‘the ANPP’) for the office of Governor and Deputy Governor of Zamfara State respectively.

Sequel to the April 14th 2007 election the 1st and 2nd respondents were returned as Governor and Deputy Governor respectively by the 4th respondent, the Independent National Electoral Commission (hereinafter referred to as ‘INEC’).

Being dissatisfied with election result and return of the 1st and 2nd respondents, the appellants filed a petition before the Governorship and Legislative Houses Election Tribunal Zamfara State (hereinafter referred to as ‘the tribunal’) on the ground that the 2nd respondent who was the running mate of the 1st respondent in the governorship election for Zamfara State was, at the time of the election, disqualified to contest the said election for the following reasons:

“1. The 2nd respondent as at the time of the election held on the 14th day of April 2007 did not resign his appointment as a Commissioner in the public service of Zamfara State.

2. The 2nd respondent has been drawing salaries and allowances of the office of Commissioner in the public service of Zamfara State.
3. The 2nd respondent has been indicted for embezzlement and/or fraud by an administrative panel of enquiry which indictment has been accepted by the Federal Government of Nigeria. The Government white paper on the report of the administrative panel of enquiry on alleged corrupt practices by some public officers and some persons is hereby pleaded.”

The petitioners/appellants, therefore, relied on the above two main grounds in seeking for their return as winners of the April 14th 2007 governorship election in Zamfara State as against the 1st and 2nd respondents. The petitioners/appellants sought for the following singular relief before the tribunal:

“WHEREOF your petitioners pray that it may be determined that the said 1st respondent was not duly elected and/or returned and that his election was void and that the said 1st petitioner was elected and ought to have been returned as the candidate duly elected as Governor of Zamfara State” (see page 13 of the Record of appeal)

At the hearing of the petition, three witnesses P.W. 1, P.W.2 and P.W.3 were called by the appellants who testified and their statements on oath were tendered and admitted as exhibits A, B and C. The petitioners/appellants’ counsel further tendered from the bar a document purported to be the Zamfara State payroll report for the months of March and April 2007 showing that the 2nd respondent was paid salaries for the months of March and April 2007 and therefore did not resign his appointment as a commissioner when the election was held. However, the tribunal rejected those documents on the ground that they did not come from proper custody and were not appropriately certified by a public officer having custody of the original pay poll reports, and were marked as R1 and R2 respectively. The presentation of the petitioners’ case was dead-locked after the rejection of those two exhibits on 23rd August 2008 when the petitioners counsel asked for a further adjournment, but the tribunal in its ruling refusing the adjournment observed thus:

“This tribunal has already over-indulged the petitioners in this trial.

The several long adjournments sought and granted in this petition are on record and speak for us. If the adjournments have not been of any use up to this stage of the trial, then we don’t see what use a further adjournment for the same purpose can still be in the trial. We agree with the counsel for the 1st – 3rd respondents that there are no good reasons for the adjournment sought and we refuse it. The petitioners may proceed with the trial.”

The petitioners’ counsel then said he had nothing more to say and their case was thereupon closed. The respondents did not call evidence but simply relied on the petitioners’ case. Written addresses were ordered and deemed adopted upon filing by all the learned counsel representing the petitioners and the two sets of respondents in which one common issue was raised for determination, i.e.; whether the petitioners have established that the 2nd respondent who was the running mate of the 1st respondent for the office of the Governor of Zamfara State was, at the time of the gubernatorial election, disqualified from contesting that election.

In its judgment delivered on the 27th September 2007, the tribunal held that although the respondents had not led evidence on their pleadings thereby effectively abandoning all the averments therein, the petitioners were only entitled to succeed upon proof of the alleged disqualification of the 2nd respondent. The tribunal observed that the office of Commissioner, which was held by the 2nd respondent, was not a public office in the employment of the State as envisaged by section 182 (1) (g) of the Constitution of the Federal Republic of Nigeria 1999 (hereinafter referred to as ‘the 1999 Constitution’.) The 2nd respondent was therefore not disqualified, on that ground, from contesting the election.

On the allegation of embezzlement of public funds, the tribunal further held that the petitioners did not adduce evidence showing that the 2nd respondent was indicted for embezzlement by an administrative panel of enquiry, which was accepted by the Federal Government. Both grounds of the petition thus failed, which led to the dismissal of the petition.