Sulaiman Usman & Anor V. Alhaji Ahmad Muhammad Maccido & Ors (2009)

LawGlobal-Hub Lead Judgment Report

MASSOUD ABDULRAHMAN OREDOLA, J.C.A

 This appeal is against the judgment of the National Assembly, Governorship and Legislative Houses Election Petition Tribunal, sitting at Sokoto, Sokoto State, (hereafter called the Tribunal) dated 26th October, 2007. The Tribunal dismissed the Appellants’ petition. It held that the same lacked merit, and the return of the 1st Respondent was affirmed. The Appellants as Petitioners on 21st May, 2007 presented a petition before the Tribunal challenging the return of the 1st Respondent by the 3rd – 5th Respondents as the duly elected Senator in the National Assembly, representing Sokoto North Senatorial District in the elections held on 21st April, 2007 on the platform of the 2nd Respondent. (Pages 1 – 7 of the record) The 1st Respondent was declared the winner of the said election with a total of 193,296 votes while a score of 40,118 votes was returned for the 1st Appellant as the candidate with the next highest votes after the 1st Respondent. (Pages 2-3 of the record).

The 1st and 2nd Respondents filed their reply to the petition dated the 11th day of June, 2007. It contained a preliminary objection challenging the competence of the petition and the jurisdiction of the Tribunal to entertain the same with their written address in support of the notice of preliminary objection. (Pages 45 _ 64 of the record). The Appellants filed their reply submissions in opposition to the 1st and 2nd Respondents objection on the 27th day 2007. (Pages 65 – 73 of the record). On the 28th of June, 2007 the 3rd – 5th Respondents filed a motion on notice seeking for leave for Mrs. Hauwa A. Kangiwa to cease further representation for the 3rd – 5th Respondents and for Abdul Kareem Adeyi Esq. to be substituted as her replacement. (Pages 74-79 of the record) Upon leave of the Tribunal being granted as sought, the 3rd – 5th Respondents further sought by way of a motion on notice dated and filed on the 14th day of July, 2007 for an order enlarging time within which to file and serve their reply to the petition; time within which to do so having expired. (Pages 84 – 91 of the record).

The Tribunal on 14th July, 2007 in a considered ruling dismissed the 15th & 2nd Respondents’ preliminary objection to which the 3rd – 5th Respondents had lent their support in argument. The matter was adjourned to 215t July, 2007 for pre-trial sessions to commence. On the said date, the 3rd – 5th Respondents at the commencement of pre-trial session moved their application for enlargement of time which was granted, moreso, when counsel to the Appellants did not oppose the same. The Appellants were given time to file their reply to the said Respondents reply if need be. (Pages 92 – 95 of the record).

The Appellants subsequently and on 26th July, 2007 filed their reply to the 3rd – 5th Respondents reply. (Pages 106 – 108 of the record). The Appellants on 31st July, 2007 applied thereafter for leave to file an additional list of documents, a witness statement on oath and to apply for subpoena to be issued in respect of certain persons. (Pages 114 – 128 of the record.) The 3rd 5th Respondents filed a counter affidavit to the said application with their written address. Both documents were dated and filed on 7th August, 2007. The 1st & 2nd Respondents on the same date also filed a counter affidavit and written address in opposition to the Appellants application. (Pages 129 – 144 of the record) On 8th August 2007 the tribunal took arguments regarding the pending application and delivered its ruling in respect thereof on 15th August, 2007. It granted the reliefs sought by the Appellants with the exception of the deeming prayer. (Pages 146 – 177 of the record). The Appellants subsequently and on 16th August, 2007 filed the list of additional witnesses to be called and list of additional documents to be relied upon. (Pages 177 – 181 of the record).

Upon the conclusion of the pre-hearing session, the Tribunal framed two issues as agreed upon by the parties, for determination of the petition. The two issues are reproduced thus:

(a) Whether having regard to the provisions of section 65 (2) of the Constitution of the Federal Republic of Nigeria 1999, Sections 32, 34, 36 and 38 of the Electoral Act, 2006 and the circumstances of the emergence of the 1st Respondent as the candidate of the 2nd Respondent, the 1st Respondent was qualified to contest election into the office of member of Senate of Sokoto North Senatorial District held on 21st April, 2007.

(b) Whether in the circumstances of the petition, the 4th Respondent was right in declaring the 1st Respondent as duly elected.

Trial commenced on 7th September, 2007 with the Appellants calling their first witness after documents to which opposing counsel had no objection, had been tendered from the bar and admitted in evidence.

PW1, the 1st Appellant adopted his witness statement on oath in the course of which a document was tendered through him and admitted in evidence. He was cross examined and subsequently discharged. However, in view of the subsequent non availability of the Appellants proposed witness to give evidence, the Appellants applied that PW1 be recalled to depose to additional witness statement in respect of the testimony for which an additional witness statement had earlier been filed. (Pages 184 – 230 of the record).

The 1st and 2nd Respondents filed a counter affidavit to the application accompanied by a written submission, whilst the 3rd – 5th Respondent opposed the same on points of law. The Appellants filed their reply on points of law to the arguments raised.

Arguments were taken on the said application on 12th September, 2007. Thereafter, the Tribunal in a considered ruling granted the application. The Appellants then filed the additional witness statement. (Pages 234 – 249 of the record)

The said PW 1 then adopted the additional witness statement at the resumed sitting of the Tribunal and was further cross examined.

The Appellants then closed their case on 18th September, 2007 whereupon the Respondents commenced their defence. DW1, the Secretary of the Sokoto Chapter of the ANPP adopted his written statement on oath and tendered Exhibit R1, a letter dated 31st January, 2007 and written by the 18t Respondent to the ANPP. He was duly cross examined thereon. The 1st and 2nd Respondents then closed their defence. (Pages 250 – 259 of the record ).