Yusuf Ahmed Badau & Anor V. Independent National Electoral Commission & Ors. (2008)

LawGlobal-Hub Lead Judgment Report

JOHN INYANG OKORO, J.C.A.

This is an appeal against the decision of the Governorship and Legislative Houses Election Petition Tribunal sitting in Kano in petition number EPT/KNS/HR/30 2007 wherein the Tribunal struck out the petition of the Appellants in limine on 3rd September, 2007. The 1st Appellant was a candidate of the All Nigeria Peoples Party in the election held on the 21st April, 2007 for the House of Representatives seat for the Shanono/Bagwai Federal Constituency of Kano State. The 3rd Respondent was a candidate of the People Democratic Party in the said election. The 1st and 2nd Respondents conducted the elections at the end of which the 3rd Respondent was declared winner. Not being satisfied with the return of the 3rd Respondent, the Appellants filed a Petition before the lower Tribunal. But before the Petition could be heard, the 1st and 2nd Respondents on 1st August, 2007, filed an application praying the lower Tribunal to strike out the Petition in its entirety on the ground that “the failure to state in the petition the official scores by which the 3rd Respondent was returned by the 1st Respondent renders the petition incompetent” (See pages 182 – 190 of the Record of Appeal).

Both parties filed written addresses in support and against the application respectively. In a reserved ruling, the Tribunal ruled as follows:-

“In view of the foregoing, we find the preliminary objection meritorious and we uphold it. Consequently, we strike out the petition for non – compliance, with paragraph 4 (i) (c) of the 1st schedule to the Electoral Act, 2006 by failure to state the official scores of the candidates who contested the election in issue.”

Being dissatisfied with the stance of the lower Tribunal which struck out their Petition, the Appellants have appealed to this Court. The Notice of Appeal is dated 15th September, 2007 and filed same date. It contains five grounds of appeal out of which the Appellants have distilled three issues for determination.

These are:-

“(1) Whether as a condition for the competence of the Petition, the provisions of paragraph 4 (i) (c) of the First Schedule to the Electoral Act, 2006 impose a legal obligation to state in the Petition the official scores by which a candidate is declared the winner of the Election challenged? (Ground I”)

(2) Having regard to the legal ground (and the facts) upon which the petitioners anchored their challenge to the return of the 3rd Respondent, was the Tribunal right in holding that the person returned as winner of the election, as well as the scores of the candidates who contested there at were not stated in the petition? (Ground 2).

(3) In deciding the interlocutory Application leading to its Ruling, was it lawful for the Tribunal to suo motu raise and make findings relating to the averments of the parties in support or in opposition to the matters alleged in the substantive petition? (Grounds 3, 4, 5).”

The 1st and 2nd Respondents were represented by one counsel who formulated two issues for the determination of this appeal as follows:-

“(1) Whether the lower Tribunal was right in holding that the official scores by which the 3rd Respondent was returned by the 1st Respondent as the winner of the election was not stated in the petition despite the scores pleaded by the petitioners in the petition.

(2) Whether the lower Tribunal in its Ruling on the application of the 1st and 2nd Respondents suo motu raised issues relating to the averments of the parties in support or in apposition to the matters alleged in the substantive petition and made findings in that regard (Grounds 3and 5)”

The learned counsel for the 3rd Respondent submitted three issues to be resolved in this appeal. The issues are:-

(1) Whether or not the lower National Assembly Election Tribunal was right to have struck out the Appellants petition having regard to the failure to comply with the provisions of paragraph 4 (1) (c) of the first schedule to the Election Act 20067 (Ground I)