Mohammed Baba Ibaku & Ors. V. Umar San Ebini & Ors. (2009)

LawGlobal-Hub Lead Judgment Report

JIMI OLUKAYODE BADA J.C.A.

This is one of the consolidated appeals against the Judgment of the Governorship and Legislative Houses Election Petition Tribunal sitting at Lafia in the Nasarawa State of Nigeria delivered on the 9th day of September 2008.

Briefly the facts of the case are that on 14th day of April 2007 the 4th Respondent conducted election in Udege/Loko Nasarawa West Constituency in respect of the House of Assembly in Nasarawa State of Nigeria. At the end of the election Patrick O. Ebinny of the Peoples Democratic Party was declared elected by the 4th Respondent. Dissatisfied with the declaration, the 1st and 2nd Respondents brought a petition challenging the result declared by the 4th Respondent, in that the said Patrick Oshagu Ebinny presented a forged certificate to the Independent National Electoral Commission and therefore not qualified to have contested the election.

At the Conclusion of hearing, the Election Petition Tribunal for Nasarawa State sitting in Lafia found that the said Patrick Oshagu Ebinny presented a forged certificate to the 4th Respondent and therefore was not qualified to contest the election. The election was nullified and fresh election was ordered.

In compliance with the Judgment of the Tribunal the 4th Respondent conducted another election on the 15th day of March 2008 for the Udege/Loko Nasarawa West Constituency in the Nasarawa State of Nigeria. At the conclusion of polls, the 1st Appellant who was not a candidate in the April 14th 2007 election was returned as winner by the 4th Respondent. Dissatisfied with the return of 1st Appellant, the 1st and 2nd Respondents brought another Petition before the second Election Petition Tribunal sitting in Lafia, Nasarawa State.

It was contended on behalf of the 1st and 2nd Respondents among others that the 1st Appellant not being a contestant in the nullified House of Assembly election of 14th April 2004 could not validly participate in the re-run election ordered by the Tribunal.

The Tribunal at the conclusion of hearing upheld the contention of the 1st and 2nd Respondents and declared the 1st Respondent as the validly elected.

The Appellants dissatisfied with the said Judgment now appealed to this Court.

The Learned Senior Counsel for the Appellants formulated eight issues for determination in the amended Appellant’s brief of argument as follows:-

(1) Whether having regard to the combined effect of Section 141 of the Electoral Act 2006 (as Amended) as well as the Provisions of paragraph 4(3)(b) of the First Schedule to the Electoral Act, Petition No.EPT/NS/001/2008 filed on 14th April 2008, thirty one 31 days after the declaration of result was not statute barred and patently defective, invalid and a nullity for want of proper endorsement/signature hence the trial Tribunal lacked the Jurisdiction to entertain it. (Grounds 14, 15, 16, 17 and 18).

(2) Whether the Trial Tribunal was not funtus officio in making adverse findings and/or declarations against the 1st Appellant in favour of the 1st Respondent after exhausting its Judgment in respect of Petition No.EPT/NS/001/08 and indeed lacked the Jurisdiction to grant reliefs not sought. (Grounds 13 and 19).

(3) Whether having regard to the Provisions of Section 141 of the Electoral Act 2006, (as Amended) as well as paragraph 14(21(a) (ii) and (iii) of the First Schedule to the Electoral Act, the Tribunal was right in granting the application for amendment of an invalid Petition to wit, Petition No.EPT/NS/001/08 on 29th July 2008 (Ground 21).

(4) Whether the Trial Tribunal was right in its interpretation and application of Section 42(1) of the Electoral Act by declaring the 1st Respondent as the only validly nominated candidate who contested the election of 15th March 2008 and accordingly declared him as elected. (Grounds 11 and 12).

(5) Whether the Trial Tribunal was right in its interpretation and application of Section 32(7) of the Electoral Act, 2006 when it came to the conclusion that the fresh election ordered did not require the calling for the acceptance of fresh nomination forms and that the 1st Appellant who did not contest the nullified general election of 14th April 2007 could not have been validly sponsored and/or was not qualified to have contested the election of 15th March 2008 (Grounds 2, 3, 4, 5 and 6).