Sen. Daniel I. Saror & Anor V. Hon. Gabriel Torwua Suswam & Ors (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOHAMMED LADAN TSAMIYA, J.C.A: (Delivering the Leading Judgment)

This appeal has arisen from the decision of the Governorship Election petition Tribunal (herein referred to as “the tribunal”) sitting at Makurdi in Benue State of Nigeria, The decision in which the petition was struck out, was made on 28/02/2012 and the decision was reached in view of the recent decisions of the Supreme Court in Appeal No.SC/23/2012: Action Alliance Vs I.N.E.C & 4 Ors. delivered on 14/02/2012 (unreported), and the consolidated Appeals Nos. S.C.1/20I2 All Nigerian Peoples Party (A.N.P.P.) Vs Alhaji Kashim Shettima & Anor., and S.C. 2/2012 – Alhaji Kashim Shettima & 1 Or. Vs. Mohammed Goni & 4 Ors., delivered on 17/02/2012. (Unreported).

The facts of this case show that the 1st appellant (as the 1st petitioner) and the 1st respondent both were candidates in the general election to the office of Governor of Benue State, on the platform of the 2nd appellant and 2nd respondent respectively. On 27/04/2011 the 3rd respondent returned the 1st respondent as winner. Aggrieved by the decision of the 3rd respondent, the appellants filed, on 17/05/2012, a petition at the tribunal praying for the following reliefs:-

1. Your petitioners seek to nullify the elections to the office of Governor of Benue State held on the 26th day of April, 2011.
2. And you petitioners also seek to stop the 1st respondent from contesting the fresh elections that will be held following the nullification of the April 26, 2011 elections to the office of Governor of Benue State.
3. And your petitioners further seek to stop the 2nd respondent from fielding any candidate in the fresh elections to be held following the nullification of the April 26, 2011 elections to the office of Governor of Benue State.
4. Moreover, your petitioners seek to stop the 3rd Respondent from accepting the name of any candidate purportedly submitted to the 3rd respondent by the 2nd respondent for the purpose of the fresh elections to be held following then nullification of the April 26, 2011 elections to the office of Governor of Benue State as this will violate Section 31(1) and Section 33 of the Electoral Act and as it is too late for the 1st Respondent to withdraw pursuant to Section 35 of the Electoral Act.

The petition was based on two grounds, namely:-

1. that at the time of the election the 1st respondent was not qualified to contest the election, having presented a forged certificate to the 3rd respondent (INEC), contrary to Section 182 (1) (j) of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
2. That the election was invalid by reason of non-compliance with the provisions of the Electoral Act 2010 (as amended).

Upon being served with the petition the respondents filed their respective replies to the petition,the 1st and 2nd respondents, in their respective replies filed on 14/06/2012, and by motions on notice, each raised a preliminary objection challenging the competence of the petition and the jurisdiction of the tribunal to entertain the said petition. After hearing the respective counsel to the parties, the tribunal delivered its consolidated ruling on 11/08/2011 dismissing the petition.

The appellants, being dissatisfied with the ruling, appealed to this court and on 29/09/2011, this court delivered its judgment allowing the appeal and setting aside the decision of the tribunal.

Dissatisfied with the decision of this court, the 1st respondent appealed to the Supreme Court and the Supreme Court affirmed the decision of this court and ordered that the petition be heard on the evidence.

At the resumed sitting of the new panel of the tribunal, the trial of the petition started during which the 1st and 2nd respondents each, applied by motion on notice for dismissal of the petition on the ground that the petition by virtue of Section 285 (6) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) had lapsed but the tribunal dismissed the application in its consolidated ruling of 08/12/2011.

On Appeal to this Court, the said ruling of the tribunal dismissing the 1st and 2nd respondents’ application was affirmed on 02/02/2012. But being aggrieved with, the 1st and 2nd respondents appealed to the Supreme Court which appeal is still pending.

The tribunal after the decision of this Court on 2/2/2012 proceeded with the hearing of the petition, when it took evidence and admitted 4 Exhibits, and both written and oral submissions of Counsel to the parties were taken. On 09/02/2012 the tribunal adjourned for judgment to the date which would be communicated to the parties.

While the appeal of the 1st and 2nd respondents against the judgment of this court dated 02/02/2012 was pending and before the delivery of the reserved judgment of the tribunal the Supreme Court delivered two land mark decisions in the said cases of Action Alliance Vs I.N.E.C. & 4 Ors in Appeal No;SC.23 /2012 on 14/02/2012 (unreported) and the Consolidated Appeals in A.N.P.P. Vs Alhaji Kashimi Shettima & Anor. and Kashim Shettima Vs. Alhaji Mohammed Goni & 4 Ors in Appeal No:SC/1/2012 and S.C. 2/2012 delivered on 17/02/2012 (unreported). Consequent upon these decisions of the Supreme Court, the 1st and 2nd respondents applied again by motions on notice before the tribunal praying that the petition be dismissed for want of jurisdiction, in view of decisions of the Apex Court in the appeals.

After hearing the arguments of the Counsel to the parties, the tribunal found that it lacked jurisdiction and on 25/02/2012 the petition was accordingly struck out.

Being dissatisfied with the decision of the tribunal striking out the petition, the appellants filed their notice of appeal on 29/02/2012 containing 5 grounds of appeal, and from the 5 grounds of appeal, the appellants formulated 3 issues for determination.

The issues are:-