Nicholas Ejijah Msheliza & Anor V. Hon. Abdul Musa Msheliza & Ors. (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CLARA BATA OGUNBIYI, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the decision of the National of and State House of Assembly Election Tribunal of holden of Maiduguri Borno State delivered on the 28th day of September, 2011 Corom: Hon. Justice B. S. Adamu, Hon. Justice M. O. Ighodalo and Hon. Justice M. M. Dodo dismissing the petition of the Appellants for want of jurisdiction.

The Appellants by a petition dated the 29th day of April, 2011 and filed on 30th April, 2011 seek the following reliefs against the Respondents viz:

(a) A DECLARATION of this Honourable Tribunal that the declaration and return of the 1st Petitioner by the 3rd Respondent on the 10th of April, 2011 at the Askira/Uba and Hawul Federal Constituency Headquarters in Azare is extant and valid the 1st petitioner having been adjudged as scoring the highest number of lawful votes cast at the election.

(b) A DECLARATION of this Honourable Tribunal that the 1st petitioner is the candidate returned as winner of the election of 9th April, 2011 for Askira/Uba and Hawul Federal Constituency.

(c) A DECLARATION of this Honourable Tribunal that the 2nd declaration and return of the 1st Respondent by the 3rd Respondent in Maiduguri on 11th April, 2011 is contrary to the provisions of the Electoral Act, 2010 illegal, null and void ab initio.

(d) Costs of this petition.

ALTERNATIVELY

(a) A DECLARATION of this Honourable Tribunal that the elections in Askira East Ward and Ngohi Ward in Askira/Uba Local Government Area were marred with irregularities, corrupt practices contrary to Electoral Act 2010 and therefore null and void.

(b) A DECLARATION of this Honourable Tribunal that the elections in Askira East Ward and Ngohi Ward were all marred with irregularities and corrupt practices contrary to the Electoral Act, 2010 and therefore null and void.

(c) A DECLARATION of this Honourable Tribunal that the purported results from Askira East Ward and Ngohi Ward in Askira/Uba Local Government Area were tainted with Electoral fraud, irregularities and corrupt practices and therefore null and void.

(d) AN ORDER of this Honourable Tribunal ordering a re-run election in Askira East Ward and Ngohi Ward in Askira/Uba Local Government Area in order to determine the winner of the election in the Constituency.

The Petition was endorsed with a fist of witnesses to be called of the hearing, witnesses’ statement on oath and list of documents to be relied upon of the trial.

Upon service of the petition on the Respondents they entered appearance and the 1st and 2nd Respondents respectively filed notices of preliminary object to the petition. On the one hand, the grounds upon which the 1st Respondent filed his notice of preliminary objection are as follows: