Suleiman Adamu V. Muhammad Sani Takori & Ors (2009)

LawGlobal-Hub Lead Judgment Report

ABUBAKAR ABDULKADIR JEGA, J.C.A.

This is an appeal by the petitioner/Appellant against the judgment of the Governorship and Legislative Houses Election Tribunal Holden at Gusau delivered on the 27th July, 2007.

The Appellant and the 1st Respondent were both candidates who contested for the Office of member representing Gumi/Bukkugudun Federal Constituency at the April 21st, 2007 general Election. The Appellant was sponsored by the Democratic Peoples Party (DPP) while the 1st Respondent was sponsored by the 2nd Respondent.

The 3rd and 4th Respondents were responsible for screening, organizing and conducting the election.

The 1st Respondent was returned as the person duly elected having scored majority of 102,429 votes cast at the said election. The petitioner who scored the next highest votes of 8,508 cast at the election was not happy with the outcome of the said election and proceeded to file a petition in which he challenged the return of the 1st Respondent on the ground that the 1st Respondent was not qualified to contest the said election and be returned as duly elected by reason of the 1st Respondent’s failure to resign his appointment as a Commissioner and Attorney General in the Government of Zamfara State at least 30 days before the date of the said election, and that he swore to a false affidavit of compliance with all constitutional requirement for the elections.

In response to the said petition the 1st and 2nd Respondents filed a joint reply in which they denied the allegation of non-qualification. The Appellant filed his reply to the 1st and 2nd Respondents’ joint reply refuting that the 1st Respondent duly resigned his appointment.

The 3rd and 4th Respondents also joined issues with the petitioner by filing a reply with the leave of the Tribunal denying the allegation that the 1st Respondent was disqualified from contesting at the said election on the ground of failure to resign his appointment before the date of the election.

All counsel agreed to dispense with oral evidence and to tender relevant documents from the bar. The Appellant tendered Exhibits A, B, C at the commencement of trial, and upon a subpoena served on the relevant officers of Zamfara State Civil Service tendered Exhibits H1 and H2 and J. However the Tribunal rejected one Exhibit marked rejected “1” that is the receipt book containing the duplicate Exhibit H2 (Receipt No. 033811) to show the fact of non resignation by the 1st Respondent before the election. The 1st Respondent through his counsel tendered Exhibits D, E, F, G and all photocopies without any foundation as to the state of the originals all of which ought to be in the custody of the Respondent.

The Tribunal in a reserved judgment dismissed the petition; the Appellant dissatisfied with the judgment has appealed and filed three grounds of appeal. At the hearing of the appeal on the 14th day of October, 2008, learned counsel for the Appellant Dr H. L. Ali adopted his brief of argument dated 14/2/08 and filed on 21/2/08 and also his reply brief dated and filed on 7/4/08 and urged the court to allow the appeal. Learned Counsel for the 1st and 2nd Respondents Mr. S. Shuaibu adopted his brief of argument dated and filed on 26/02/08 and urged the court to dismiss the appeal. Learned counsel for the 3rd and 4th Respondents Mr. A.M Yawuri also adopted his brief of argument dated 15/4/08 and deemed filed on 19/5/08 he also urge the court to dismiss the appeal. In the Appellant’s brief of argument, the following issues were identified for determination:-

I. “Whether the learned trial Judges were right in holding that the 1st Respondent is not a Public officer within the meaning of Section 318 of the 1999 Constitution and thereby not required to resign his appointment 30 days to the April 2007 National Assembly elections.

II. Whether the learned trial Judges were right in law in admitting as Exhibits D, E, F, & G photocopies of documents in custody of the 1st Respondent without any foundation as to the whereabouts or state of the originals contrary to Section 97 (a-h) of the Evidence Act.

III. Whether the learned trial Judges were right in law, when they admitted Exhibit H2 a photocopy of the receipt Number 033811 and rejected the Receipt Book marked “Rejected 1″ containing the duplicate copy of Exhibit ‘F’ also marked Exhibit ‘H2’ which would have shown that Exhibit ‘F’ was only contrived to conceal the fact that the 1st Respondent did not resign his appointment 30 days before the April 21st National Assembly Elections. ”

Learned counsel for the 1st and 2nd Respondents formulated two issues for determination viz:-

I. “Whether the Tribunal below was right in holding that the 1st Respondent as Attorney General and Commissioner for Justice of Zamfara State was not a public officer required to resign his appointment 30 days before the election within the contemplation of Sections 66 and 318 of the 1999 Constitution of the Federal Republic of Nigeria.