Alh. Muhammadu Maigari Dingyadi & Anor. V. Aliyu Magatakarda Wamako & Ors. (2008)

LawGlobal-Hub Lead Judgment Report

AHMAD OLAREWAJU BELGORE, J.C.A.

Governorship election was held in Sokoto State on the 14th day of April, 2007 and the 4th Respondent herein as the State Returning Officer for the Governorship election declared the following results:-

S/N CANDDATE PARTY VOTES

1. ABBAKAR CHKA M. SARKIN YAKI ANPP 32,152
2. MUHAMMADU MAIGARI DING YADI DPP 296,419
3. AHAMED BELLO AHMED AD 3,365
4. ABDULWAHAB YAHAYA GORONYO UNDP 3,572
5. DR. UMAR BELLO AC 9,706
6. AMINU A. SALAHTAUMA CPP 7,931
7. ALH. ABDULLAHI UMAR FAROUK APGA 8,283
8. ALIYU MAGATAKARDA WAMAKO PDP 392,258
9. BELLO IBRAHIM GUSAU PPA 5,931
10. ABUBAKAR GARBA ALHAJI ADC 6,065

Aliyu Magatakarda Wamako (the 1st Respondent herein) was returned as the winner of the election having scored the highest number of votes cast. The 1st Respondent contested the election under the banner of the Peoples Democratic Party (hereinafter referred to as PDP).

Alhaji Muhammadu Maigari Dingyadi the 1st Appellant herein, who had contested the election as the candidate of the Democratic Peoples Party (hereinafter referred to as DPP) and scored the second highest number of votes was not satisfied with the results of the election and filed a petition before the Governorship and Legislative Houses Election Tribunal, sitting in Sokoto, challenging the declaration and return of the 1st Respondent as the winner. All the other 42 respondents herein were also the respondents before the Governorship and Legislative Houses Election Tribunal (now called “The Tribunal”). The election was conducted by the Independent National Electoral Commission, the 3rd respondent (hereinafter referred to as “INEC”).

The grounds upon which the petition was brought before the tribunal were stated in paragraph 9 of the petition which is hereunder reproduced: –

“9. Your Petitioner states that the 1st Respondent, Aliyu Magatakarda Wamako, was not validly returned as the person duly elected on the following grounds:-

(i) The 1st Respondent was not qualified to contest the election, is (sic) nomination to contest the election being (sic) was void, having been sponsored for the election by All Nigeria Peoples Party, to which he belonged, as against the Peoples Democratic Party, on whose platform he was placed on the ballot at the election

(ii) The election was invalid by reason of corrupt practices and/or noncompliance with the provision of Electoral Act, 2006; and

(iii) The 1st Respondent was not duly elected by majority of lawful votes cast at the election.

(iv) The 4th Respondent as the returning officer at the election wrongfully failed to return 1st petitioner as duly elected as governor of Sokoto State in breach of Section 70 of the Electoral Act. ”

The facts upon which the Appellants relied in bringing their joint petition were stated in paragraphs 11, 12, 13 and 14 of the petition thus: –

“11. NONE- QUALIFICATION OF THE 1ST RESPONDENT:

(i) The 1st respondent was nominated by All Nigeria Peoples Party as its governorship candidate to contest in the election of 14h April, 2007, and the 1st Respondent in turn, nominated Senator Bello Jibril Gadaas his running mate.

(ii) The rd Respondent duly nominated one Mukhtari Shehu Shagari as its governorship candidate at the election, who in turn nominated one Aliyu Mohammedas his running mate. Subsequent to the completion of nomination, the 1st respondent knowingly allowed himself to be held out as a nominated candidate of 2nd respondent without withdrawing or causing his valid nomination to be withdrawn on the platform of All Nigeria Peoples Party as required by Section 38 of the Electoral Act.

(iv) In allowing himself to be nominated twice by two political parties for the same election, 1st respondent did not obtain the consent of either senator Bello Jibril Gadaor of the All Nigeria Peoples Party with whom he shared the joint and inseparable ticket.

(v) In allowing himself to be nominated twice over by the two political parties, 1st respondent did not obtain the consent of the running mate of the validly nominated candidate of rd respondent to be withdrawn and substituted with the validly nominated governorship candidate of the rd respondent.

(vi) In allowing himself to be nominated twice over by two political parties for the same election, 1st respondent and with full approval of 3rd respondent, used (sic) falsely represented himself as having been nominated by the same nominators who nominated him as governorship candidate of All Nigeria Peoples Party.

(vii) The persons who nominated 1st respondent as governorship candidate of All Nigeria Peoples Party at the election, were his nominators until the time for nomination, withdrawal and or substitution expired as stipulated by the Electoral Act.

The documents to be relied on were pleaded in paragraph 11(viii)(a) – (h) of the Petition. In paragraph 12, the Appellants pleaded invalidity of the election by reason of corrupt practices and/or Non-compliance with the provisions of the Electoral Act, 2006 and INEC’s Election Manual/Guidelines. In 12(i), it was pleaded that 3rd – 43rd Respondents negligently deployed used and relied upon electoral materials (including ballot papers, result form, other than those authorized and permitted by the Act/Manual and or guidelines, in at least seven out of the 23 local government areas of Sokoto State. These are:-

(a) Wards 03, 07, 08 and 010 in Shagari Local Government Area;

(b) Wards 10, 14, 09 and 010 in Bodinga Local Government Area;

(c) Wards 02, 06, 08, 010 and 011 of Sokoto North Local Government Area;

(d) Wards 05, 08, 010, 023 and 023 (sic) of Sokoto South Local Government Area;

(e) Wards 03, 010 and 011 of Silame Local Government Area;

(f) Ward 08 of Wamakko Local Government Area;

(g) Wards 024, 006, 007 and 008 of Gwadabawa Local Government Area.

It was averred in paragraph 12(ii) that the conduct of election in the above listed seven local governments, in the results of the wards, where seemingly genuine electoral forms were used, the returns supplied to candidates were produced on uncertified and unstamped electoral materials and result forms EX8A and EC8Bs contrary to section 64 of the Electoral Act. In sub-paragraphs 12(iii) and (iv), it was pleaded that votes were counted as validly cast for the 1st Respondent as a candidate of PDP notwithstanding that he was only validly nominated and sponsored by ANPP, and as a result a total of 392, 258 votes were wrongly attributed as validly cast at the election for the 1st Respondent on the platform of PDP, whereas the actual vote cast for him was 32,152 votes attributed to one Abubakar Chika M. Sarkin Yaki of ANPP.

In paragraph 13(i) – (iv), the Appellants pleaded invalid computation of Majority of Lawful Votes where reliance was placed on form EC8D. In paragraph 14, the Appellants pleaded that the 4th Respondent invalidly returned the 1st Respondent instead of the 1st Appellant who scored majority of lawful votes and who scored at least 25% of the votes cast in at least two-thirds of all the local government areas of Sokoto State.

The relief sought before the tribunal are as follows:-

1. THAT IT BE DETERMINED that the 1st respondent was not qualified to contest as the governorship candidate of the Peoples Democratic Party for Sokoto State in the election held on 14th April, 2007.
2. THAT IT BE DETERMINED that the 1st respondent was not validly nominated as the governorship candidate of the Peoples democratic Party for Sokoto State in the election held on 14th April, 2007.
3. THAT IT BE DETERMINED that the purported nomination of 1st Respondent as the candidate of Peoples Democratic Party in the Sokoto State Governorship Election held on 14th April, 2007 was void for double nomination for the same elective office in the same election, the said candidate having been validly nominated and not withdrawn by all Nigeria peoples Party for the election.
4. THAT IT BE DETERMINED that the purported nomination of 1st Respondent as a candidate of the Peoples Democratic Party in the Sokoto state Governorship election held on 14th April, 2007 was void, for lack of valid nominators apart from nominators who already nominated him as candidate of All Nigeria peoples Party in the election.
5. THAT IT BE DETERMINED that, the 392,258 votes, recorded as valid votes cast for 1st Respondent by the returning Officer at the governorship election held in Sokoto State on 14th April, 2007 are void and wasted, the candidate having not been validly nominated to contest on the platform of Peoples Democratic Party, alleged to have sponsored him in the election.
6. THAT IT BE DETERMINED that the return of 1st respondent as having been duly elected as Governor of sokoto state at the governorship election of 14th April, 2007 on the basis of 392,258 void and invalid votes cast for candidate of Peoples Democratic Party in the election, was a nullity and running mate at the Sokoto State Governorship election held on the 14th April, 2007.
7. THAT IT BE DETERMINED that the 1st petitioner scored majority of lawful valid votes at the governorship election held on 14th April, 2007 and also scored not less than 25% of the total votes cast in at least two thirds of the Local Government areas of Sokoto State.
8. THAT IT BE DETERMINED that the 1st petitioner be returned as having been duly elected Governor of Sokoto state in the governorship election held on 14th April, 2007.

ALTERNATIVELY

10. THAT IT BE DETERMINED that the Sokoto State Governorship election held on 14th April, 2007 be voided for substantial irregularities, to wit; use of illegal ballots, and recording results for candidates of parties who were never validly nominated for the elections and one of whom recorded unlawful votes constituting more than half of the total votes wrongly computed as valid in the election.
11. THAT IT BE DETERMINED that a fresh governorship election be held in Sokoto State amongst candidates who were validly nominated at the close of nomination before the election held on the 14th day of April, 2007.

The 1st and 2nd respondents entered conditional appearance on the 21st day of May, 2007. On the 28th day of May, 2007, the two Respondents filed Notice of Preliminary Objection urging that the petition be dismissed/struck out for the facts that it was:-

i. Incompetent and discloses no cause and/or no reasonable cause of action against the 1st and 2nd Respondents;

ii. Improperly constituted;

iii. Not grounded or rooted in the Electoral Act, 2006 and or the Constitution of the Federal Republic of Nigeria 1999.

iv. The Tribunal has no jurisdiction and/or ought not to exercise jurisdiction to entertain the petition; v. Incompetent as appropriate security for cost and filing fees have not been paid contrary to the mandatory provisions of the Electoral Act, 2006.

The grounds upon which the objection was based are that:-

i. The Tribunal has no jurisdiction and ought not to exercise jurisdiction to entertain the complaints of the Petitioners as itemized in paragraphs 9(i) and 11(i), (ii), (iii), (iv), (vi), (vii), and (viii)(a)-(h) of the petition;

ii. The Petitioners have no locus standi to question the 1st Respondent’s Election on the ground that he, (1st Respondent) was not qualified to contest the Election; further and/or in the alternative to this ground, that the issue of the entitlement of the 1st Respondent to contest the Election on the platform of the 2nd Respondent is not justiciable;

iii. The ANPP, Senator Bello Jibril Gada and Mukhtari Shehu Shagari are necessary parties to the Petition having regard to the averments of the petitioners in paragraphs 9(i) and 11(i), (ii), (iii), (iv), (v), (vi), (vii), and (viii)(a)-(h) of the petition but were not joined as parties to this petition;

iv. Contrary to paragraph 4(3) (b) of the 1st Schedule to the Electoral Act 2006, the said petition is not properly signed on behalf of the 2nd petitioner by any named person or legally recognized and therefore incompetent. The 1st and 2nd Respondents filed their joint Reply to the Petition on the 2nd day of June, 2007 and it incorporated the Preliminary Objection earlier filed. In the said Reply, the two respondents denied all major averments in the petition. In paragraph 12 of the Reply, it is averred as follows: –

“12. The 1st and 2nd Respondents contend that the 1st Respondent was qualified to contest the election being a registered member of the 2nd Respondent and were duly sponsored by the said 2nd respondent.”

The 1st and 2nd Respondents prayed in their reply that the petition be dismissed in terms hereinafter appearing: – “WHEREOF the Respondents pray the Tribunal to dismiss the petition for the reasons stated in the Notice of Preliminary Objection and on the ground that the petition is wholly incompetent, frivolous and lacking substance and merit and constitutes gross abuse of the process of this Tribunal.”

To prove their averments, the 1st and 2nd respondents filed witness statements on oath and list and copies of documents they intended to rely upon at trial. The documents front-loaded are the following: –

1. A letter signed by Alhaji (Dr.) Aliyu Magatakarda Wamakko and dated 31st January, 2007 and titled

“MEMBERSHIP OF THE PARTY”

2. 1st Respondent’s PDP membership card No. 3632784. 3. Letter of Sokoto State Chairman of PDP dated 03/02/07 to the National Chairman of PDP requesting for waiver of certain conditions in the PDP Constitution to enable 1st Respondent contest the Gubernatorial election in Sokoto State on the platform of PDP
3. Letter of PDP National Executive Committee to 1st Respondent approving the waiver
4. INEC FORM C.F. 001 duly completed by Mukhtari Shehu Shagari
5. INECT FORM EC.8D (Summary of result from Local Government Areas)
6. INECFORMEC.8E (Declaration of Result).

The 1st and 2nd respondents later filed a notice of motion on the

2nd day of July, 2007 praying, inter alia, for an order of the tribunal dismissing and/or striking out the petition for incompetency and for lack of jurisdiction in the tribunal to adjudicate on the petition and other grounds.

By leave of the tribunal granted on the 12th day of July, 2007, the 3rd to 43rd respondents filed their Reply to the petition on that date.

In their joint reply, the 3rd to 43rd respondents denied paragraphs 8 to 15 of the petition and averred in paragraphs 7, 8 and 9 as follows: –

“7 The Respondents stated (sic) in answer to paragraph 12 of the petition as follows:

(i) That the Respondents exercised due diligence and conducted the election in accordance with the Electoral Act; manuals and Guidelines of the election.

(ii) That all the election materials including ballot papers and result Forms used for the governorship election in the State were duly authorized by the Commission (3rd Respondent)

(iii) The Respondents shall put the petitioners to the strictest proof of the averments contained in that paragraph.

8 The Respondents State in answer to paragraphs 13 and 14 of the petition that the 4th Respondent correctly computed the majority of the lawful votes cast at the election and validly returned 1st Respondent as duly elected at the election.

9. The Respondents shall rely on all the rules, manuals, guidelines, letters and all other correspondences relating to the governorship election in Sokoto State.”

The 3rd to 43rd respondents did not attach statement on oath or any documents.

The appellants later filed two replies, one to each set of respondents respectively.

To these replies, especially the one addressed to the 1st and 2nd respondent’s reply, the appellants attached statement on oath of a witness and front-loaded some documents in opposition to the reply to the petition.

On the 20th day of June, 2007, the tribunal dismissed in its entirety the motion challenging the competency of the petition and jurisdiction of the tribunal to entertain the petition and the petition proceeded to hearing. That was after the pre-hearing sessions. The appellants eventually called their four witnesses as listed and the 1st and 2nd respondents called only two of their witnesses. The witnesses on both sides were respectively cross-examined and documents were admitted as exhibits on both sides. Exhibits P1; P1(1) – P1(6); P2; P3; P4(A); P4; P5; P6; P7; P8; P9; P9(1) – P9(3); P10; P10(A); P11; P11(1) – P11(3); P12; P12(1) – P12(3); P13; P13(1); P14 and P14(1) and P14(2) were received in evidence on behalf of the appellants. Exhibits P7 to P14(1) and P14(2) are Summary of Results from Polling Stations – Forms EC. 8B. Exhibit P1; is one form C.F. 001, being Affidavit deposed to by Mukhtari Shehu Shagari in support of his personal particulars in seeking election to the office of Governor of Sokoto State. It was deposed to on the 14th day of December, 2006. Exhibit P1(1) is form E.C.4B(vi) being the form for Nomination of Governor completed by the 1st respondent herein on a date not very clear. The day was 12th and the year was 2007 but the Month cannot be deciphered from the certified true copy. On this exhibit, one SEN. BELLO J. GADA was nominated by the 1st respondent as his running mate for the purposes of the election. Exhibit P1(2) is the affidavit deposed to by the 1st respondent in support of his personal particulars in seeking election to the office of the Governor of Sokoto State. It was deposed to on the 13th day of February, 2007. These three exhibits were front-loaded and annexed to the petition. Exhibit P1(3) is the letter from PDP to the INEC Chairman dated February 5, 2007. It was signed by the National Secretary of the Party and someone unspecified for the National Chairman. It is titled as “SUBSTITUTION OF PDP GOVERNORSHIP CANDIDATE, SOKOTO STATE”.

It confirmed to the INEC that the 1st respondent was PDP’s Governorship candidate for Sokoto State. Exhibit P1(4) is INEC form Cf.004B entitled:

“GOVERNORSHIP ELECTION. NOTICE OF WITHDRAWAL/SUBSTITUTION OF CANDIDATE (PURSUANT TO SECTION 34 AND 36 OF THE ELECTORAL ACT, 2006.

It states the name of Party as PDP; name of candidate as ALIYU MAGATAKARDA WAMAKKO and the State as SOKOTO. It was dated the 13th day of February, 2007. Exhibit P1(5) is the letter addressed to the INEC Chairman dated 5th February, 2007. It was signed by the PDP National Secretary and someone unspecified for the National Chairman. It is entitled:

SUBSTITUTION OF PDP DEPUTY GOVERNORSHIP CANDIDATE, SOKOTO STATE.

This exhibit confirmed to the INEC that one Mukhtari Shehu Shagari was the PDP’s Deputy Governorship Candidate for Sokoto State. Exhibit P1(6) is INEC form Cf. 0048 entitled: GOVERNORSHIP ELECTION NOTICE OF WITHDRAWAL/SUBSTITUTION OF CANDIDATE (PURSUANT TO SECTION 34 AND 36 OF THE ELECTORAL ACT 2006) It states the name of the Party as PDP; name of Candidate as MUKHTARI SHEHU SHAGARI; and name of the State as SOKOTO. It was dated the 13th day of February, 2007. The above stated exhibits were either front-loaded and/or pleaded in the petition. Apart from Exhibit PS, the remaining exhibits admitted on behalf of the appellants were either pleaded or annexed to the Petitioners/Appellants’ Reply to the Respondents’ Replies to the Petition.

On behalf of the 1st and 2nd respondents, six (6) Exhibits were admitted including Exhibit R1, the receipt of certification through PW1. Exhibit R4 is a letter on the letterhead of the 1st respondent addressed to the Sakata State Chairman of the All Nigeria Peoples’ Party, Sakata State. It was signed by the 1st respondent and dated the 31st January, 2007, titled as “MEMBERSHIP OF THE PARTY”.

Exhibit R5 is the 1st respondent’s membership Card of the PDP, numbered 3632784. Exhibit R6 is a letter addressed to the National Chairman, Peoples Democratic Party. Abuja dated 03-02-07. It was signed by Alhaji Muhammadu Arzika Tureta, Chairman, Sakata State. It was written on the letterhead of the Sakata State Secretariat of the PDP and tiled as –

“RE: NOMINATION OF CANDIDATES FOR ELECTION INTO THE OFFICE”

Exhibit R7 dated February 20, 2007 was signed by DR. AMADU A. ALI (GCON), National Chairman of PDP and it was addressed to the 1st respondent conveying the approval of the Party’s National Executive Committee for the 1st respondent’s application for waiver in accordance with Article 17.2G of the PDP Constitution. Exhibit R8 is INEC form EC.8E which is the INEC declaration of result of election to the office of Governor in respect of Sakata State. For the 3rd to 43rd respondents, the tribunal admitted Exhibits R2 and R3 under cross-examination of PW1 by learned counsel for the 3rd and 43rd respondents. The two exhibits were admitted under the petitioners’ reply. That was all the evidence adduced by the 3rd to 43rd respondents in this case. At the close of the case for the 1st and 2nd respondents, Mr. M.U. Ibrahim, learned counsel for the 3rd to 43rd respondents had this to say: “We are not calling any witness.” See page 411 of the record.

The appellants filed a Reply in answer to the Replies filed by each set of the respondents. The replies filed by the appellants were held by the tribunal to have raised fresh issues not raised in the respondents’ replies to the petition. It was at the stage of its judgment that the tribunal struck out or discountenanced the appellant’s replies on the objections of all the respondents. The respondents had indicated at the pre-hearing session that they were going to object to the replies and it was agreed by all parties and the tribunal that the issue be left until the final addresses. I will come back to this issue anon.

That was the state of pleadings before the tribunal and as I stated earlier in this judgment, the appellants called four witnesses as listed in their petition. The 1st and 2nd respondents called only two witnesses, while the 3rd to 43rd respondents called none. At the close of the case for all parties, written addresses were filed on the order of the tribunal. Parties later adopted their respective written addresses and the matter was adjourned for judgment which was delivered on the 29th day of October, 2007 whereof the petition was dismissed in the following terms –

“Finally, we hold that the petition is unmeritorious and failed to meet the required standard of evidential proof. It fails in its entirety and same be and is hereby dismissed. The return of the 1st Respondent ALIYU MAGATAKARDA WAMAKO by the 4th Respondent as duly and validly elected Governor of Sokoto State is hereby affirmed. ”

In that judgment, the tribunal held that the appellants have not validly invoked the provisions of paragraph 16 of the First Schedule to the Electoral Act, 2006. It further held that the replies filed to the reply of the 1st and 2nd respondents and to that of the 3rd to 43rd respondents were filed in violation of paragraph 16 of the said Schedule and are therefore null and void. The replies filed by the appellants were accordingly struck out for raising new issues that were not raised in the replies to the petition. In the same judgment, the tribunal observed and found that the 3rd to 43rd respondents did not adduce evidence in support of their joint reply. The prayer by the appellants to have the reply struck out met a brick wall. The tribunal declined to accede to the prayer on the ground that the 3rd to 43rd respondents had formulated issues based on their denial of the grounds of the petition in their reply. This was after agreeing with learned counsel with the appellants that where a party fails to adduce evidence on any fact averred in his pleadings same would be deemed abandoned. The tribunal, indeed, held that to be the law and cited in support the decided cases of –

1. YUSUF OYETUNDE (1998) 12 NWLR (PT. 579) 483 AT 488; AND
2. OMOBORWWO VS. AJASIN (1984) ALL NLR 189 (Reprint).

On this issue the tribunal further held thus:-

”Accordingly we hold that the failure of the 3rd to 43rd Respondents to adduce any evidence in respect of the averred facts in his (sic) reply, these facts are deemed abandoned.

However, same cannot be said of the issue formulated. On that note, there is that need to determine what is an issue.”

The tribunal then went on to define what an issue is and end up this way-

“..The fact that they did not proffer any evidence does not attract an automatic striking out order of the issue or issues formulated. The success or failure and its stand would be and ought to be determined at the end of the day. The call to strike out the issue formulated by the 3rd to 4th Respondents is hereby refused and. dismissed. We hold that the issue still stands and would be considered at the appropriate stage of this judgment. ”

The appellants have appealed to this Court by filing a notice of appeal containing sixteen (16) grounds of appeal. The grounds of appeal, shorn of their particulars, are reproduced hereunder: –

GROUND ONE

The learned members of the trial Tribunal misdirected themselves in law and on the facts when they struck out the Petitioners/Appellant’s Replies in answer to the Replies of 1st and 2nd Respondents, as well as the Reply by 3rd – 43rd Respondents, thereby occasioning a miscarriage of justice by holding at page 19 of their judgment thus:-

“Having carefully compared and contrasted the averments as stated hereinbefore, the provisions of paragraph 16 of the Electoral Act which in our view limits the right of a petitioner to reply to the Respondents’ Reply that only where the Respondent raises new issues, it is our candid view and conclusion that those paragraphs of the replies respective Respondents do not contain or constitute any new issue outside those averred in paragraph 9 of the petition and the facts in paragraphs 11-14 thereof. It therefore suffices to say that the petitioner has not validly invoked the provision of paragraph 16 of the First Schedule to the Electoral Act; 2006. To that end, the replies filed to the reply of 1st and 2nd Respondents and that to the 3rd -43rd Respondents are in violation of paragraph 16 of the said Schedule.

It is therefore void.”

GROUND TWO

The learned members of the Trial Tribunal misdirected themselves in law when, after voiding the Petitioners’ Replies, they further held at page 19 of their judgment that;

“Equally, since the statement attached to the reply are predicated on the said reply i.e. paragraph 16 of the First Schedule to the Act; and not pursuant to paragraph 1(i) a-c of the Election Tribunal and Court Practice Directions 2007 as amended then it could be said and we so hold that the said statement and all the exhibits therein attached and tendered are not in any way in response to any new issue raised in the replies of the Respondents. Rather they are additional facts and exhibits in further proof of the original complaint. Allowing it to stay would constitute granting the Petitioner the right to stab the respondents at the back when they would have lost the right and opportunity to react and reply. ”

GROUND THREE

The learned members of the trial Tribunal erred law and thereby acted without jurisdiction when they reopened and revisited the issue of admissibility of documents frontloaded with Petitioners Replies, after earlier objection to same had been overruled in the course of trial, on the basis that;

“argument of the learned senior counsel to the Petitioner that the tribunal had ruled on the admissibility of the document is of no moment when upon the request of the Tribunal at the pre-hearing and during hearing, parties agreed to revisit the objection of the Respondents to the reply, the statements and the annexure.”

GROUND FOUR

The learned members of the Election Tribunal erred in law when despite accepting that the 3rd -43rd Respondents, had abandoned their Replies by not leading evidence in support, they relied at page 24 of the judgment on OVERSEAS CONSTRUCTION CO. NIG LTD v. CREEK ENTERPRISES NIG LTD (1985) 12 SC 158 at 190, as authority to hold that issues remained joined by the Respondents with the Petitioners on the petition in the underlined portion of the judgment below:

“According, we hold that the failure of the 3rd – 43rd Respondents to adduce any evidence in respect of the averred facts in his reply, those facts are deemed abandoned. However, same cannot be said of the issue formulated. ”

And thereby occasioned miscarriage of justice WHEN:

An abandoned pleading cannot form the basis of joinder of issues with the Petitioners.

GROUND FIVE

The learned members of Election Petition Tribunal misdirected themselves in law and on the fact in holding that the 1st Respondent did not breach prohibition of double nomination under section 38 of the Electoral Act, 2006 and was thus not qualified to contest the election, despite the fact that he was the candidate of ANPP at the same election whilst remaining a candidate of ANPP;

GROUND SIX

The learned members of the Election Tribunal erred in law and misdirected themselves on the facts, when they held at page 69 of their judgment that;

“The 1st Respondent was qualified to contest election into office of Governor of Sokoto State on 14hApril, 2007 having validly nominated a running mate to contest the said election in compliance with section 187(1) of the Constitution of the Federal Republic of Nigeria, 1999′”.

GROUND SEVEN

The learned members of the Election Tribunal erred in law when they held at page 42 of their judgment that the Electoral Act did not provide for qualification to contest, but that it is section 177 that provides for same, and so held that invalid nomination cannot be a ground for election petition under section 145(1)(a) of the Electoral Act.

GROUND EIGHT

The learned members of the Election Tribunal misdirected themselves in law and on the fact when they held at page 43 of the judgment, thus:

“Looking critically on the foregoing paragraphs containing the fact of ground one in paragraph 9(1) of the Petition, apart from mere mentioning the word “Qualification”, there is no where an allegation is made in all the facts averred in paragraph 11 pointing to any violation of section 145 of the Electoral Act 2006 nor section 177 of the Constitution of the Federal Republic of Nigeria

GROUND NINE

The learned members of the Election Tribunal misdirected themselves in law and came to an erroneous finding when they held at page 45 of the judgment that;

“Having submitted EXHIBIT R4 to the ANPP and which receipt was confirmed by DWI the state secretary of ANPP shows that the 1st Respondent has abandoned his mandate under ANPP based on his withdrawal of his membership of the party. Again the evidence of DW2 which led to the tendering of EXHIBIT R5, R6 and R7 conclusively suggests that the 1st Respondent is a member of PDP and that the said party put him forward as their governorship candidate of the State”

And further at page 50 thus:

“The party substituted its former candidate Mukhtar Shehu Shagari with that of the 1stRespondent while the said Mukhtar Shehu shagari was made the Deputy”.

And further still on page 51 thus:

“Considering the evidence before us, the Exhibit Pl series, and EXHIBIT R4, R5, R6 and R7 Prima-facie show a process of nomination, substitution of the candidature of the 1st Respondent and Mukhtar Shagari. ”

GROUND TEN

The learned members of the Election Tribunal misdirected themselves in law and came to an erroneous finding when they held at page 45 of the judgment that;

“If assuming our judgment on the ground and the facts vis-a-vis the provision of the Electoral Act and the 1999 constitution is wrong, the evidence of DW1, DW2, EXHIBIT R4 and R5 conclusively show that the 1st Respondent resigned his membership of ANPP and joined PDP who equally put him forward to contest the election under the platform of PDP. See Exhibit P1(1) and P1(4) and P(1) (6)”.

GROUND ELEVEN

The learned members of the Election Tribunal erred in law and thereby occasioned miscarriage of justice to the Petitioner when they held at pages 47 – 48 of their judgment that invalid nomination of a candidate at an election is a;

“domestic affair of a political party” and that at best “an aggrieved party could approach a State High Court or the Federal High Court to ventilate his grievance against those processes. It is not open for a candidate to complain before the tribunal.

And at page 52 that:

“the issue of withdrawal and substitution of a candidate are preliminary issue before the Election. They are issues endowed on the candidate and the political party by law to carry out freely and in compliance with the conditions therein prescribed. One may quickly ask whether the noncompliance with those would render an election void. We answer this in the negative. As we said earlier on, they are preliminary issues. They cannot be said to be those that can constitute a ground to challenge the conduct and return in an election nor constitute a ground upon which election could be nullified. They also cannot satisfy as a condition under section 145 of the Electoral Act 2006 nor section 177 of the Constitution of the Federal Republic of Nigeria 1999. These are matters that could and ought to be ironed out before the Election and palpably before a regular Court, if need be. That is therefore, to say they are not justifiable (sic) before the Tribunal having regard to section 285 of the Constitution of the Federal Republic of Nigeria 1999. In the instant case, if anybody would complain or seek redress it is ANPP or Mukhtar Shehu Shagari that would be the proper party. The cry of the Petitioner (sic) here can be likened to that of a sympathizer and not the bereaved. It is that of a busy body and an interloper”.

Notwithstanding that Petitioners relied on the invalid nomination and withdrawal in their Petition against the Respondents. GROUNDE TWELVE

The learned members of the Tribunal erred in law and thereby came to a wrong decision when it held that it lacked jurisdiction by conveniently misconstruing the ratio of the decision in ARARUME’s case to hold that;

“What the Apex Court is saying is that if after the primaries and the emergence of a candidate, and the subsequent nomination by the political party of such candidate as its candidate to the Electoral Body, if after all necessary screening of such candidate by the Electoral Body and such candidate is listed as the candidate of that party that nominate him, it would be too late in the day for such political party to wake up at night to replace or substitute such candidate with another. ”

GROUND THIRTEEN

The learned members of the Election Tribunal erred in law when they held at page 53 that;

“… there is nothing in the Electoral Act to show that late nomination can invalidate the election of a candidate or is ground of questioning an election under section 145 of the Electoral Act. ”

And thereby wrongly concluded that:

“By that token one can say that the law does not want to interfere with the political parties’ choice and substitution.

It is their internal affairs and it is entirely up to them to choose, select, and substitute their candidate before the election depending on the political wind’.

GROUND FOURTEEN

The learned members of the Election Tribunal erred in law and misinterpreted the ingredient of double nomination to warrant. An order voiding nomination under section 38 of the Electoral Act, when they held at page 57 that;

“There has to be proof of membership of two political parties” in addition to proving that 1st respondent knowingly allowed himself to be doubly nominated; and at page 60 that “electorate also voted for him under those political parties at 38 of the Electoral Act 2006 might become justifiable before the Tribunal. ”

And thus held at page 60 that the complaints under sections 32, 34, 36 and 38 are not justiciable before the Tribunal. GROUND FIFTEEN

The learned members of the Election Tribunal misdirected themselves in law and on the facts and thereby occasioned substantial miscarriage of justice when they rejected the claim of the Petitioners/Appellants to set aside the return of the 1st Respondent and make a consequential order directing the Independent National Electoral Commission (INEC) to issue certificate of return to 1st Petitioner/Appellant as having been duly elected by majority of lawful valid votes at the election by the combined effect of section 41 and 147(2) if the Electoral Act and section 179(2) of the Constitution of the Federal Republic of Nigeria, 1999; the 1st respondent having been unlawfully placed on the ballot.

GROUND SIXTEEN

The judgment is against the weight of evidence.

Briefs of argument were filed and exchanged. For the appellants, eight issues were distilled from the grounds of appeal.

For the 1st and 2nd respondents, six issues were identified for determination. The 3rd to 43rd respondents formulated three issues.

The eight issues identified by the appellants are stated in paragraphs 3.1 to 3.8 of their brief in the following order:-

3.1 Whether the Trial Tribunal was right when it struck out the Appellants’ Reply in answer to the Respondents Reply to the petition and discountenanced all the evidence, witness statement on oath, list of documents and the documents tendered in respect thereof. (Grounds 1 & 2 of the Notice)

3.2 Whether the Trial Tribunal had jurisdiction to reopen, revisit and reverse itself on an issue whereof it had previously delivered a decision. (Ground 3 of the Notice).

3.3 Whether the 1st Respondent validly withdrew his candidature as the gubernatorial candidate of ANPP before being nominated as a candidate of the 2nd respondent. (Ground 13 of the Notice).

3.4 Whether the Appellant established their case of invalid nomination against the 1st Respondent and if so, what is the effect of invalid nomination on the candidature of the 1st Respondent? (Ground 12 of the Notice).

3.5 What is the effect of the 1st Respondent’s failure to duly nominate a running mate on his candidature in the gubernatorial election conducted on 14th April, 2007 (Ground 6 of the Notice).

3.6 Whether the qualification of the 1st Respondent to contest an election can only be determined exclusively with reference to section 177 of the 1999 Constitution of Federal Republic of Nigeria; (Grounds 7 & 8 of the Notice).

3.7 What is the effect of the breach of Sections 34, 36 & 38 of the Electoral Act 2006 on the nomination of the 1st Respondent to contest the 14th April 2007 election? (Ground 9, 10, 11 & 14 of the Notice).

3.8 Whether the 1st Appellant was not entitled to be returned as governor of Sokoto State in the 14th April, 2007 election, having regard to his score at the election and the fact that same was not objected to at the hearing of the petition. (Ground 15 of the Notice).

The six issues formulated by the 1st and 2nd respondents are as stated in paragraphs 3.1(i) to (vi) of their brief of argument and they are as follows: –

i. Whether the tribunal was right to have struck out the Petitioners’ reply to the 1st and 2nd respondents’ reply to the petition for non compliance with paragraph 16 of the 1st Schedule to the Electoral Act, 2006. Grounds 1, 2, 3, and 4.

ii. Having regard to the state of pleadings and evidence (both oral and documentary) led at the trial, vis-‘C3 -vis constitutional/statutory provisions and judicial authorities, whether the tribunal was wrong to have held that 1st Respondent was qualified to contest the election of 14th April, 2007. Grounds 5, 6, 7 and 8.

ii. In view of the settled state of our electoral law, coupled with the series of decisions of our appellate courts considered by the tribunal, whether the tribunal was right in the application of Section 145 of the Electoral Act, 2006 to the facts of this case. Grounds 12 and 13.

iv. Whether the issues of nomination and substitution of a candidate fall within the jurisdiction of the tribunal. Grounds 11 and 14.

v. Considering the pleadings and evidence led at trial, whether the issue of double nomination of the 1st respondent was sufficiently established before the tribunal. Ground 9.

vi. Having regard to the evidence led at trial, whether appellants were entitled to the reliefs claimed in the petition.

Grounds 15 and 16.

For the 3rd to 43rd respondents, the issues are found in paragraphs 3.02(1) to (3) and they are hereunder reproduced: –

(1) Whether the reply by the Petitioners to the 1st and 2nd Respondents reply and also to the 3rd -43rd Respondents reply were competent?

(2) Whether or not the Appellants’ case of alleged invalid substitution/nomination can be properly or competently be made the subject of a challenge of an election under section 145(1) of the Electoral Act, 2006?

(3) Whether the Election was conducted in substantial compliance with the provisions of the Electoral Act?

In the consideration of this appeal, I will first of all resolve the issue of the parties in view of ground four of the grounds of appeal.

This touches on the stand of the 3rd to 43rd respondents in this case.

According to the tribunal, the 3rd to 43rd respondents did not adduce evidence in support of their pleadings and the tribunal held that the pleadings are deemed to have been abandoned, but it went on to hold that the issues formulated from the pleadings stand. The prayer by the appellants that the 3rd to 43rd respondents reply which was deemed to have been abandoned be struck out was refused and dismissed by the tribunal on the ground that the issue or issues formulated by this set of respondents stand until after their consideration.

There is no doubt that the tribunal was clearly in error.There cannot be an issue for consideration formulated by a party that has abandoned his pleadings. The issue so formulated has nothing to hang on. Where a defendant abandons his pleadings he is taken as having thrown in the towel and as having admitted the allegations against him in the statement of claim.

In SAMSON AJIBADE v. MOHOWA & ANR (1978) 9/10 S.C. 1, where the 1st defendant failed to adduce evidence in support of his pleading denying negligence and the 2nd defendant who did not file a defence was refused a hearing by the trial court, the Supreme Court held that –

“Having regard to the Appellant’s undenied pleading and his unrebutted and unexplained evidence showing that the 3rd defendant was prima-facie negligent, the learned trial judge ought to have found the 3rd defendant liable for negligence. ” In the instant case, the tribunal ought to have struck out the 3rd to 43rd respondents’ reply having rightly found that no evidence was led in respect therefore. If that has been done, the tribunal would have discovered that the evidence led by the appellant in respect of the allegation against those respondents stand unchallenged, uncontradicted and uncontroverted. In the premise, the tribunal would have found for the appellants in respect thereof. In EZULUMER OHIAERI & ANR v. ADNNU AKABEZE & ORS (1992) 2 SCNJ (PT. 176, the Supreme Court held that evidence offered in support of undenied averments in pleadings must be believed. In FRANCIS OSANE ESEIGBE v. FRIDAY AGHOLOR &. ANR. (1993 13 SCNJ 82,91, it was held, inter alia, that: –

“In civil matters the fate of every case depends on the pleadings and the evidence in support. A matter that is pleaded but not traversed remains a fact against the other side. Thus, where the plaintiff pleads negligence and it is not specifically traversed and that plaintiff goes on to prove the averment by evidence in court and the defendant offers no evidence whatsoever, that pleading remains uncontradicted and must be held against the defendant.

It was further held, par ONU, JSC at p.105 that: –

“Pleadings cannot constitute evidence. Thus pleadings not alluded to in evidence, as it appeared in this case, must be deemed to have been abandoned.”

In FCDA v. ALHAJI MUSA NAIBI (1990) 5 SCNJ 186, 195-196, it was held that –

“Pleadings cannot constitute evidence and a defendant who does not give evidence in support of his pleading or in challenge of the evidence of the plaintiff is deemed to have accepted the facts adduced by the plaintiff notwithstanding his general traverse.”

It was also held that –

“If the defendant does not give evidence in support of his pleadings, the averments therein are taken as having been abandoned for they stand as no more than mere averments which have not been supported.

See also HONIKA SAWMILL (NIG) LTO v. MARY OKOJIE HOFF (1994) 2 SCNJ 86, 89, 97 AND 98 where it was held that

“Where parties have joined issues on pleadings, each party is required to prove his averments which have not been admitted by offering evidence or eliciting evidence from the opponent through cross-examination. ”

It was also held that

“Where facts are admitted no evidence is admissible in proof of those facts. In the circumstances of this case, in so far as the appellant failed to reply to the respondent’s averments, the respondent patently bore no burden.”

This is in consonant with section 75 of the Evidence Act.

In the instant case, the 3rd to 43rd respondents did not adduce evidence and the cross-examination of the appellants’ witness did not elicit any evidence in support of the averments in their joint reply. At the close of the case for the 1st and 2nd respondents, Mr. M.U. Ibrahim, learned counsel for the 3rd to 43rd respondents announced to tribunal that they were not calling witnesses. The tribunal was right in treating the reply as having been abandoned. It however, failed or refused to strike out the reply based on wrong assumption that issues formulated by parties can stand alone without their pleadings. This is patently wrong and not in accord with the principles of law governing pleadings.

It is most instructive to note that the same tribunal turned round to say that the issues formulated by these respondents must be given a consideration. The tribunal tried, albeit, unsuccessfully, to justify its stand on this point by engaging itself in an unnecessary and futile exercise of defining what an issue is. The tribunal was correct in its definition of “an issue” but it was manifestly wrong in its application to the facts of this case. The tribunal ought to have stuck out the reply after having correctly found that the same has been abandoned.

It will be observed that there is no appeal, by the 3rd to 43rd respondents, against these serious findings of fact by the tribunal in this behalf. One is tempted to ask the pertinent question: –

“What is the effect of the striking out of the 3rd to 43rd espondents’ reply?”

The reply or answer to this question is very simple and straight forward. There ceased to be a contest between the appellants and the 3rd to 43rd respondents before the tribunal, the 3rd to 43rd respondents having admitted the claims of the appellants as regards the conduct of the elections. This is by operation of the law. If the appellants are required to prove the averments relating to the allegation against the conduct of the election, by the 3rd to 43rd respondents, only a minimal proof is required.

I hold that the tribunal ought to have struck out the 3rd to 43rd respondents’ reply to the petition and the said reply be and is hereby struck out. I exercise this power under section 16 of the Court of Appeal Act, 1976 (as amended).

As the parties now stand, the contest before the tribunal was purely between the appellants and the 1st and 2nd respondents, and that is exactly how the parties now stand before this Court The 3rd to 43rd respondents having not filed an appeal against the finding that their reply had been abandoned, they have nothing to urge in this appeal.

The appellants have argued issues 1 and 3 of their brief together. The gist of the complaint in the two issues is whether the tribunal has jurisdiction to revisit the issue of the appellants’ reply after having received evidence on them by admitting in evidence, some documents attached to the reply. It was submitted by Mr. Rickey Tarfa, SAN, for the appellants that the tribunal was in error to have assumed jurisdiction to revisit the issue of propriety of the reply (Petitioners’ Reply). He submitted that upon the receipt of the 1st and 2nd respondents’ reply to which was annexed form Cf. 001, completed by Mukhtari Shehu Shagari, the contents of which were palpably false, the appellants were compelled to file Petitioners Reply to show that the defence was not maintainable and the fact contained therein untenable. He submitted that paragraph 16(a) of the First Schedule to the Electoral Act only forbids the introduction of new issues tending to amend or add to the contents of the petition. It does not forbid the filing of a petitioner’s reply tending to show that the defence in the respondent’s reply to the petition is untenable and improbable. He further argued that since the documents frontloaded by the respondents were duly certified by and from the custody of the INEC, the presumption is that they are regular and valid, and any evidence tending to dislodge or rebut that presumption cannot be tagged as raising new issues. He cited in support, Order 26, rule 26 of the Federal High Court (Civil Procedure) Rules, 2006 which is also applicable to petitions before an election tribunal. He submitted that the need for the appellants to file a reply was very compelling given the fact that the respondents are relying on public documents to show that the 1st respondent was qualified to contest the election and to disprove the appellant’s case. He submitted that the reply did not raise new or fresh issue nor did it canvass new grounds of petition, rather, the reply simply addressed the new issues raised by the respondents. He stated that what their reply intended to achieve was to show the tribunal that Mukhtari Shehu Shagari did not file form Cf. 001 on 13th February, 2007 as depicted on the form. It was also intended to expose the falsity of the averment that the 1st respondent resigned his membership of ANPP on the 31st day of January, 2007 as he could not resign on that date and all the same be attending the ANPP National Caucus meeting held on the ih day of February, 2007. Learned Senior Counsel for the appellants submitted that these facts did not distract from the case set up by the appellants in their petition but go to show the falsity in the defence set up. He relied on AKEREDOLU v. AKINREMI (1989) 3 NWLR (PT. 164) 164, 172 and ADEPOJU v. AWODUYILEMI (1999) 5 NWLR (PT. 603) 364, 383. He drew attention to the fact that the appellants reply showed that Mukhtari Shehu shagari did not file form Cf. 001 on 13th February, 2007 as alleged and that, indeed, the document was not in existence as at 14th April, 2007 when the gubernatorial election was held and the appellants could not have known of its existence. He cited OLABANJI v. AJIBOYE (1992) 1 NWLR (PT. 218) 473. He cited paragraph 40 of the 1st Schedule to the Act which empowers election tribunal to inquire into issues specifically raised in the pleadings provided such issues are necessary for the purpose of the just determination of an election petition. He also cited TOUNAEGHA v. WILSON (1993) 1 NWLR (PT. 267) 23, 30 and KANYA v. BABURA (1993) 1 NWLR (PT. 280) 149, 162. Learned Senior Counsel also submitted that since the point of contention was the validity of other wise of the candidature of the 1st respondent, all facts tending to show that he was not qualified to contest the election are not only admissible, they must also be acted upon. He relied on ABDULLAHI v. ALEWA (1999) 5 NWLR (PT. 602) 196, 204. Attention was drawn to pages 334 to 335 of the record of proceedings where the tribunal was relying on an objection to the admissibility of a document and stated that: –

“We have considered the argument for and against and carefully look (sic) through the reply of the petitioner to the reply of the 1st and 2nd respondents and the additional statement dated 11/6/07. .. by the reply of the petitioner to the reply of the 1st and 2nd respondents, paragraphs 2 and 3 becomes (sic) relevant. Those paragraphs adequately accommodate the documents in issue. That is to say that proper notice has been given by these paragraphs of the reply”.

Attention was also drawn to the fact that 1st and 2nd respondents admitted that issues were joined with the appellants as regards the appellants’ reply. Page 342 of the record was referred to where Learned Senior Counsel had this to say when objection was taken to the admissibility of the 1st respondent Letter of withdrawal of his membership of ANPP, in the following terms –

“The fulcrum of the case of the petitioner which we joined issue is that the 1st Respondent has not resigned his membership of ANPP. It was as a result of that the pleading in paragraph 9. They joined issue with us. They went further by pleading other documents to refute this letter. The letter is relevant and is admissible. ”

He submitted that the decision of the tribunal declaring as null and void, the appellant’s reply effectively shut the door against the appellants in properly putting forward their case and also excluded relevant facts to establish the truth of otherwise of the allegation that the 1st respondent did not withdraw his membership of ANPP and that the running mate that he nominated to contest the election with him is Senator Bello Jibril Gada and this has occasion a serious miscarriage of justice.

It was submitted for the appellants that tribunal having acted on the state of the pleadings as a basis for the admissibility of several documents and receipt of oral evidence, in the course of the trial, the tribunal is precluded from revisiting the issue to return a verdict contrary to its stand during trial. There is no evidence that the earlier rulings were given without jurisdiction or that they were obtained as a result of fraud. Reliance was placed on the Supreme Court’s decision in A.I.C. LTD v. NNPC (2005) 1 NWLR (PT. 937) 563,597. Mr. Tarfa urged that the two issues be resolved in favour of the appellants.

In response, Chief Wole Olanipekun, SAN, Learned Senior Counsel for the 1st and 2nd respondents argued issue 1 of the respondents’ brief in answer to issues 1 and 2 of the appellants’ brief. He sought the indulgence to adopt the background facts set out at paragraphs 2.7-2.8 of his brief. He submitted that by the Petitioners’ Reply, the appellants formulated a clear and distinct cause of action different from the case they presented in their petition. This they did by attaching form Cf. 001 which was also attached to the 1st Respondent’s declaration. There was also a request letter written by counsel for the appellants requesting ANPP to furnish appellants with certain minutes of the party’s meetings. Also attached to the Reply was a purported revenue collector’s receipt which was purportedly issued to Mukhtari Shehu Shagari; a list of Governors and their Deputies together with another letter from the office of the learned counsel for the appellants, dated th June, 2007 like the previous one addressed to the Registrar of Nasarawa State High Court. He stated that it was against this backdrop that the 1st and 2nd respondents moved the tribunal by way of objection to strike out the offending reply. He submitted that the basis of the objection is paragraph 16(i) of the First Schedule to the Electoral Act, 2006 which has clearly and specifically delineated the scope, content and outlook of a petitioner’s reply and which prohibits the petition from using the avenue of a reply to rake up new facts, grounds, issues and prayers which the respondent would not be opportune to respond to. He submitted that the provisions of paragraph 16 of the First Schedule is in keeping with, and in recognition of, the principle of audi alteram partem which requires that in every judicial proceeding, every party must be given fair and equal opportunity to be heard in respect of any statement or report adduced to his prejudice. He relied on R. v. THE ADMINISTRATOR -IN- COUNCIL,WESTERN NIGERIA & ANR. (1962) NMLR 313, 316. Learned senior Counsel further submitted that Courts normally frown at a reply which tries to override the other party by introducing new issues or new cause of action. He relied on AKEREDOH (supra) at page 172; ACHIKE v. OSAKWE (200) 2 NWLR (PT. 646) 630 and ADENIJI v. FETUGA (1990) 5 NWLR (PT. 150) 375 at 391 where he quoted Akanbi, JCA (as he then was) from paragraphs A-D. He also cited OJE v. BABALOLA (1991) 4 NELR (PT. 185) 267 where he quoted Nnaemeka-Agu, JSC at page 276. Learned Senior Counsel submitted that the purpose of pleadings is to identify, define and delineate the areas of controversy between the parties. He cited in support ASHIM NOIBI v. R.J. FIKOLATI (1987) 1 NELR (PT. 52) 619; BUHARI v. OBASANJO (1999) 7 NWLR (PT. 611) 355, at 392 where Uwais, CJN was quoted from paragraphs D-E; and YAR’ADUA v. BARDA (1992) 2 NWLR (PT. 231) 638, 652.

Also cited is ADEPOJU (supra) at pages 381-383 where this Court struck out the offending paragraphs of the petitioner’s reply which set up a new claim different from the claim in the election petition. He submitted that it is a strange point or issue urged by the appellants that the documents and witness statement attached to the rejected reply be admitted by the tribunal. He submitted that the 1st and 2nd respondents are not caught up with by the provisions of paragraph 49(1) and (2) of the First Schedule to the Act. He submitted that in proceeding where affidavit evidence is employed, it is the law that all documents exhibited to an affidavit are part and parcel of that affidavit and they cannot be severed from it. They should or fall together with the affidavit. In respect of pleadings. Learned Senior Counsel submitted that any documents referred to in a pleading become part of the pleading. The pleading and the documents cannot therefore be separated by the court and the law does not so permit. He relied in this behalf on UNIVERSITY OF ILORIN v. OYAKUA (1989) 2 NWLR (PT. 104) 444; SEATRADE v. FIOGRET LTD (1989) 3 NSCC 452; EHOLOR v. IDAHOSA (1992) 2 NWLR (PT. 223) 323; IFUADI v. ATEDZE (1998) 13 NWLR (PT. 581) 205 and paragraphs 1(1) and 2 of the Election Tribunal and Court Practice Directions, 2007. The import of the submission is that once the reply was struck out, all the documents and statement attached to it do no longer exist. He finally submitted on this point that you cannot put something on nothing and expect it to stand, citing PLATEAU STATE v. A-G. F (2006) 3 NWLR (PT. 967) 346.

I must state, right away, that it was the agreement and understanding of all the parties and the tribunal, in this case, that the issue of the documents and the additional witness statement on oath attached to the appellants’ reply be addressed at the end of the case. This fact is borne out by the record of proceeding. The effect of this is that the tribunal was given the right to consider the propriety of the reply. Notwithstanding the fact that the respondents have tendered documents which were admitted in evidence based upon the reply in question, there was nothing wrong in the tribunal considering its propriety and this has nothing to do with its jurisdiction. Indeed, it did not amount to a re-visit of an earlier decision. No decision was ever taken by the tribunal concerning the appropriateness of the petitioners’ reply.

The cardinal point to consider here is whether the tribunal was right in striking out the reply. We have to examine the reasons given by the tribunal for striking out the reply and, along with this examination we have to scrutinise the content of the reply in order to see whether the decision of the tribunal accord with the law on the issue.

Now, the tribunal took a look at what it considered to be the relevant paragraphs of the parties’ pleadings. For the appellants, it looked at paragraphs 1, 2, and 3 of the appellants reply. It then took a look at paragraph 5 of the 3rd to 43rd respondents’ reply and thereafter looked at paragraph 9(i) (ii) (iii) and (iv) of the petition. The tribunal then examined paragraph 5 of the 1st and 2nd respondents’ reply and concluded that in the view of the tribunal, paragraphs 6, 7, 8, 9, 10, 11, 12 to 14 of the 1st and 2nd respondents’ reply was denying paragraph 9(i), (ii), (iii) and (iv) of the petition. The tribunal then concluded in the following terms:-

“Having carefully compared and contrasted the averments as stated hereinbefore, the provision of paragraph 16 of the Electoral Act which in our view limits the right of a petitioner to reply to the Respondents reply to those conditions therein enumerated i.e. that only where the Respondent raises new issues, it is our candid view and conclusion that those paragraphs of the replies of the respective Respondents do not contain or constitute any new issue outside those averred in paragraph 9 of the petition and the facts in paragraphs 11-14 thereof. It therefore suffices to say that the Petitioner has not validly invoked the provision of paragraph 16 of the First Schedule to the Electoral Act 2006.

To that end, the replies filed to the reply of the 1st and rd Respondents and that of the 3rd to 43rd Respondents are in violation of paragraph 16 of the said First Schedule. It is therefore void and we so hold.

Equally, since the statement attached to the reply are predicated on the said i.e. paragraph 16 of the First Schedule to the Act and not pursuant to paragraph 1(1) a-c of the Electoral Tribunal and Court Practice Directions 2007 as amended then it could be said and we so hold that the said statement all the exhibits therein attached and tendered are not in any way in response to any new issue raised in the replies by the respondents. Rather, they are additional facts and exhibits in further proof of the original complaint. Allowing it to stay would constitute granting the Petitioner the right to stab the Respondents at the back when they would have lost the right and opportunity to react and reply. ”

Learned Senior Counsel for theist and 2nd respondents has rightly stated that the petitioners’ reply to their own reply was not produced as part of the record herein, but at page 559, the tribunal quoted verbatim, paragraphs 1, 2 and 3 of the reply in question. It runs thus: – “Paragraph 1:-

In reply to paragraph 5(1) of the 1st and 3rd Respondents’ reply the Petitioners states that the fact relied upon in paragraph 9(i), 11(1) (viii) and 12(iii) of the petition and the particulars supplied thereunder are matters which this tribunal has the jurisdiction to entertain by virtue of the Constitution of the Federal Republic of Nigeria, 1999 and the Electoral Act. Paragraph 2:-

Your Petitioner denies paragraph 5(ii) & (iii) of the 1st and 2nd Respondents reply and states that the Chairman of the 2nd respondent on the 19th February, 2007 wrote a letter to the r Respondent wherein he specifically denied signing any letters by the rd respondent withdrawing the original submitted by candidates of the party including the 1st respondent. Paragraph 3: –

Your Petitioner states that paragraph 5 (iii), 6, 7, 8, 9, 11, 13 and 14 of the 1st and 3rd Respondents reply are full of blatant falsehood and concoction, and in disproof thereof repeat the averments in paragraph (sic) 1-15 of the petition.”

It is noteworthy that the tribunal in its assessment of the pleadings of the respective parties left out the documents pleaded. Most of these documents are public documents duly certified by different public institutions that have the custody of their originals. Among these documents are form Cf. 001 deposed to by Mukhtari Shehu Shagari on the 14th day of December, 2006; form E.C.46 (iv) completed by the 1st respondent for nomination as a candidate for gubernatorial election for Sokoto State; form C.F. 001 deposed to by the 1st respondent on the 13th day of February, 2007; two letters dated February 5, 2007 addressed to the INEC Chairman and jointly signed by the PDP National Secretary and an unspecified person for PDP National Chairman: The two letters are respectively entitled: –

SUBSTITUTION OF PDP GOVERNORSHIP CANDIDATE, SOKOTO STATE And SUBSTITUTION OF PDP DEPUTY GOVERNORSHIP CANDIDATE, SOKOTO STATE

two forms Cf. 0046, one for the 1st respondent and the other for Mukhtari Shehu Shagari and were respectively dated the 13th day of February, 2007. All these documents were attached to the petition as the documents to be relied upon. Attached to the 1st and 2nd respondents reply are the following documents –

1. PDP membership card of the 1st respondent
2. A letter on letterhead of the 1st respondent dated 31st January, 2007, addressed the Chairman of ANPP, Sokoto State whereby the 1st respondent conveyed his decision to renounce his membership of the party;
3. PDP letter signed by its National Chairman conveying the committee waiving the restriction on right to contest election as a party member under its Constitution;
4. INEC forms E.C8D and Ec8E; and
5. Form Cf.001 in respect of Deputy Governor for Sokoto State deposed to by Mukhtari Shehu shagari on the 12th day of February, 2007 with revenue collection’s receipt number 002197251.

In respect of the petitioner’s reply, the following documents were attached –

1. PDP National Chairman’s letter of 19th February, 2007 to Head of Legal Department of the INEC in Abuja titled- RE: WITHDRAWAL LETTERS
2. Certified true copy of Nasarawa State Government Revenue Collector’s Receipt No. 002187251 issued on 27-4-07.
3. ANPP National Secretary’s letter of June 9, 2007 addressed to Rickey Tarfa & Co., Abuja titled – RE: REQUEST FOR DETAILS OF PARTY FUNCTION ATTENDED OR PARTICIPATED IN BY ALIYU MAGATAKARDA WAMAKO AFTER 31ST JANUARY, 2007:
4. ANPP MINUTES OF NATIONAL CAUCUS MEETING OF THE ALL NIGERIA PEOPLES PARTY HELD ON 7TH FEBRUARY, 2007 AT THE NATIONAL CHAIRMAN’S RESIDENCE, ASOKORO-ABUJA;
5. LEADERSHIP Newspaper No. 340 of February 13, 2007.

These were the documents attached to the respective pleadings of the parties.

At the stage of addresses of counsel, the 1st and 2nd respondents took objection to petitioner’s reply and it was upheld by the tribunal. I have earlier on stated the finding and decision of the tribunal on this.

What remains now is to consider the appropriateness of striking out the reply in the light of what has been brought to fore vis-a-vis the pleadings of the parties and the documents attached to them.

The foundation of this issue is paragraph 16(1)(a) of the First Schedule to the Electoral Act, 2006 which provides thus: – “16.(1) If a person in his reply to the election petition raises new issues of facts in defence of his cause which the petitioner has not dealt with, the petitioner shall be entitle to file in the Registry, within 5 days from the receipt of the respondents reply, a petitioner’s reply in answer to the new issues of fact, so however that:

(a) the petitioner shall not at this stage entitled to bring in new facts, grounds or prayers tending to amend or add to the contents of the petition filed by him’ and

(b) …………………………………………… ”

What paragraphs 16 of the First Schedule is saying is that the petitioner shall be entitled to file a reply where the respondent’s reply raises new issues of fact and it is not open to the petitioner at this stage to bring in new facts, grounds or prayers tending to amend or add to the contents of the petition filed by him. Similar provision in the earlier electoral laws has been interpreted by our courts. There are also decisions on similar provisions in relation to civil proceedings in our courts.

In AZEEZ AKEREDOLU & 3 ORS v. LASISI AKINRENI & 8 ORS. (1989) 3 NWLR (PT. 107) 164, 172, it was held that- ” The proper function of a reply is to raise in answer to the defence any matters which must be specifically pleaded which make the defence not maintainable or which otherwise might take the defence by surprise or which raises issues of fact not arising out of the defence.”

In Mr. G.A ADEPOJU v. CHIEF FOLORUNSO AWODUYILEMI (1999) 5 NWLR (PT. 603) 364, it was held at pages 382 to 383 that –

“By virtue of paragraphs 5(1), 15 and 17 of Schedules to Decree No. 36 of 1998, if new facts shall be introduced into an election petition they should be done by way of an amendment of the original petition provided such application is made within fourteen days from the date on which the result of the election is declared by virtue of section 82 of Decree No. 36 of 1998. A petitioner cannot after 14 days raise in his reply to a respondents answer to his petition a new issue which was not raised in his petition as by doing so it will amount to a departure from the prescription of Decree No. 36 of 1998 and such averment will take the respondent by surprise as he will no longer be in a position to react to the new issue…….

A reply to statement of defence is generally unnecessary if its sole purpose is to deny allegations contained in the statement of defence. A reply may however be filed to show facts which will make the defence untenable. For example where the defence has pleaded statute of limitation or defence of confession and avoidance.”

In OLABANJO v. AJIBOYE (1992) 1 NWLR (PT. 218) 473, it was held that the aim of a reply –

“(I)s not merely to deny the respondents averments in their amended statement of defence. This is so because even if no reply is filed there is an implied joinder of issue wherein all material averments of fact in the amended statement of defence will be deemed to have been denied, and put in issue. The primary role of a reply is first to raise in answer to the amended statement of defence any matter which must be pleaded by way of confession and avoidance for it is not necessary for the appellant in their statement of claim to anticipate their opponent’s defence.”

From these authorities, it is crystal clear that a petitioner’s reply is not a licence for the petitioner to rake in new issues, grounds or prayers tending to amend or add to the contents of his petition. If he is seised of new facts after filing his petition, the option open to him is to amend the petition within the framework of the provisions of the Electoral Act, 2006. Applying these authorities to the facts of this case, it is my firm view that the tribunal was a little bit iron-handed in the way it treated the issue. The tribunal completely lost sight of the fact that the 1st and 2nd respondents have attached to their reply certain documents which if not responded to were capable of completely knocking off the very foundation of the appellant’s claim. Where the issues of improper withdrawal of candidature and of double nomination are being alleged as basis of the 1st respondent not being qualified to contest the election and the respondents attached such documents as form Cf.001 deposed to by Mukhtari Shehu Shagari and a letter purportedly written by the 1st respondent to Sokoto Chapter of ANPP, in what other way were the appellants expected to respond? The only option open to them was to tender such evidence as would make such defence untenable and not being maintainable.

The tribunal found it convenient to look casually at the averments in the pleadings shorn of the documents attached to them. This is contrary to the rule which states that any document referred to in a pleading becomes part of the pleading. The pleadings and the document cannot be separated by the court and the law does not so permit. See SEATRADE v. FLOGRET LTD (1983) 3 NSCC 453; ENOLOR v. IDAHOSA (1992) 2 NWLR (PT. 223) 323; IFUADI v. ATEDZE (1998) 3 NWLR (PT. 581)205.

These authorities were cited by the learned Senior Counsel for the 1st and 2nd respondent at page 20 of his brief. The tribunal has lost sight of the fact that all the respondents have tendered documents based on the same reply they are now attacking. Parties must not be allowed to approbate and reprobate at the same time.

In the premise, I hold that the petitioner’s reply in this case has not raised any new issues, grounds or prayers to warrant its being struck out. I also hold that the tribunal was in grave error to have struck it out. The order of the tribunal striking out the petitioner’s reply is hereby set aside. Both the reply and the exhibits admitted based on it are hereby reinstated.

The appellants next treaded issues 3 and 4 of their brief together, while the 1st and 2nd respondents treat issues 2 and 3 of their brief together.

It is the contention of the appellants that the 1st respondent did not withdraw his candidature as gubernatorial candidate of ANPP before being nominated by the PDP for the same position. It is also the contention of the appellants that the 1st respondent nominated are Senator Bello Jibril Gada as his running mate under the plat form of ANPP and when he allowed himself to be nominated by the PDP, he still nominated the same Senator Bello Jibril Gada as his running mate. It is argued that the PDP’s candidate for the election was Mukhtari Shehu Shagari who nominated one Aliyu Mohammed as his running mate. By reasons of the facts stated above, it is contended that the 1st respondent was not qualified to contest the election of the 14th April, 2007.

For the respondents, it is contended that the 1st respondent was qualified as he was validly nominated by PDP of which he is a member. It is further contended that the 1st respondent properly withdrew his membership of ANPP and his candidature for the office of the Governor of Sokoto under the banner of ANPP.

To establish that the 1st respondent is not qualified to contest the election, the appellants attached Form E.C.4B(iv) to their petition. It is the form for nomination of Governor completed by the 1st respondent wherein he nominated, at page 2 column 5, one Senator Bello J. Gada as his Deputy Governor for the purpose of contesting the election. This was admitted in evidence as Exhibit P1(1). Also tendered is Form Cf.001 being an affidavit in support of personal particulars of persons seeking election to the office of Governor of Sakata State under the flag of PDP. It was deposed to by Mukhtari Shehu Shagari on the 14th day of December, 2006. This was admitted in evidence as exhibit P1. Exhibit P1(2) Form Cf. 001 deposed to by the 1st respondent on the 13th day of February, 2007 in support of his personal particular for seeking the office of Governor of Sakata State under the banner of PDP. Also attached to the petition are the letters of Withdrawal/Substitution of both the candidates for the Governorship and Deputy Governorship by PDP respectively dated February 5, 2007. They are Exhibits P1(3) and P1(5) respectively. Two copies of form CF004B also attached to the petition are Exhibits P1(4) and P1(6) respectively.

Upon seeing these documents, the 1st and 2nd respondents in their reply attached the following documents: a letter under the hand of the 1st respondent on his letterhead titled “MEMBERSHIP OF THE PARTY”. It was dated 31st January, 2007 and addressed to the Sokoto Chairman of ANPP denouncing his membership of the party. It is Exhibit R4; membership Card No. 3632784 issued by PDP to the 1st respondent; a letter signed by Sakata State Chairman of PDP dated 03-02-07 and addressed to the PDP National Chairman. It is titled: “RE: NOMINATION OF CANDIDATE FOR ELECTION INTO PUBLIC OFFICE”. It is Exhibit R6; a letter signed by PDP National Chairman on February 20, 2007 and addressed to the 1st respondent. It is exhibit R7 it is titled “RE: APPLICATION FOR WAIVER”; Form EC.8E, being the declaration of results of election to the office of GOVERNOR for Sokoto admitted as Exhibit R8; Form EC.80 was attached but was not tendered in evidence; Form Cf. 001 deposed to by Mukhtari Shehu Shagari on the 12th day of February, 2007 and the acknowledge receipt by INEC attached thereto were not tendered in evidence.

It is noteworthy to observe that all the documents attached to the petition and all of which were tendered came from the custody of and were duly certified by the INEC.

When the 1st and 2nd respondents’ reply was filed together with the documents and statements on oath of witnesses, the appellants were compelled to file petitioner’s reply to which were attached certain documents which frontally attacked the truthfulness of certain documents attached to the respondents’ reply. It was that petitioner’s reply together with the documents and additional statement attached thereto that was erroneously struck out by the tribunal. For instance, Form Cf. 001 attached to the 1st and 2nd respondents’ reply was allegedly deposed to by Mukhtari Shehu Shagari on the 12th day of February, 2007 upon a revenue collector’s receipt No. 002187251. Upon the production by the appellant of a certified true copy each of the duplicate and triplicate of the said receipt, it became apparent that the same receipt was issued to Mukhtari Shehu Shagari on the 27th day of April, 2007, some 13 days after the election of the 14th day of April, 2007 in respect of which the affidavit was allegedly deposed to on the 12th day of February, 2007. Another document attached to the petitioners’ reply for similar purpose is Exhibit P2 where Senator Amadu A. Ali, National Chairman of PDP dissociated himself from various letters of withdrawal signed for him. He even alleged that some of the signatures were forged. It is Exhibit P2 and it came from the custody of and certified by INEC.

The other documents brought in through the petitioners’ reply are the letter signed by the National Secretary of ANPP denying knowledge at national level of the alleged withdrawal of the 1st respondent as a member and gubernatorial candidate, of the party at the election. This letter constitutes an affront to the truthfulness of Exhibit R4 allegedly written by the 1st respondent on 31st January, 2007. That letter and the minute of the National Caucus Meeting of ANPP held on the 7th day of February, 2007 were not allowed to be tendered in evidence. In fact the minute of the meeting was ordered to be marked as Tendered But Rejected. However, the Attendance List of that meeting is Exhibit P4 while the list of the All Nigeria Peoples Party’s candidates for the posts of Governors and Deputy Governors for the 14th April, 2007 election as produced and certified by INEC are Exhibit P4 and P5 respectively. It is against these backgrounds that I have to consider whether the 1st respondent was qualified to contest the 14th April, 2007 election and to consider whether the issue is justiciable before the tribunal.

As it was earlier observed in this judgment, certain documents were not tendered in evidence from the pleading of the 1st and 2nd respondents, especially, form Cf. 001 for Mukhtari Shehu Shagari. This is quite understandable but it amounts to withholding evidence in accordance with section 149 of the Evidence Act. As the pleadings and evidence stand now, there is the dire need for the 1st and 2nd respondents to explain certain parts of their evidence in the light of the clear provision of section 36 (1) of the Electoral Act, 2007 and Article 8 of the Regulations made by INEC. Section 36(1) of the Act provides as follows: –

“36.(1) A candidate may withdraw his candidature by a notice in writing signed by him and delivered by him to the Political Party that nominated him for the election and the Political Party shall convey such withdrawal to the commission and shall only be allowed not later than 70 days to the election. ”

And, Article 8 of the INEC Regulations concerning withdrawal of candidature provides as follows: –

“Article 8.A candidate may withdraw his candidacy by a letter of withdrawal to the commission through his political party and witnessed by the principal officers of the party at National level.”

By these provisions, there is the compelling reason for the respondents to show-

1. that the 1st respondent delivered to the ANPP, a notice in writing of the withdrawal of his candidature
2. that the notice is given at national level of his party
3. that the delivery was witnessed by the principal officers of the party at national level
4. that his party conveyed the notice of withdraw to the INEC.

All that we have are the following:-

1. Exhibit R4 written by the 1st respondent and addressed to the Chairman, ANPP, Sokoto State and dated 31st January, 2007. There is nothing to show on the face of the letter that it was ever received by ANPP at national level. DW1, through whom R4 was tendered, did not say that the exhibit was forwarded to the National Head Quarters of the Party and if he had said so, such evidence would be of no assistance since it is the 1st respondent who is expected to deliver it.
2. Exhibit P1(3), P1(4), P1(S)and P1(6) which were denounced by the PDP National Chairman and classified by him as forgery.
3. Exhibit P4 bearing the 1st respondent’s signature which he has not refuted, because it beats one’s imagination how the ANPP would allow him to attend their National Caucus Meeting on the 7th February, 2007 after giving the party notice of withdrawal of his membership of the party and of his candidature under the party on 31st January, 2007.

By paragraph 12 of their reply, 1st and 2nd respondent averred as follows:-

“12. The 1st and 2nd Respondents contend that the 1st Respondent was qualified to contest the election being a registered member of the 2nd respondent and was duly sponsored by the said 2nd respondent.”

In proof of this averment, the respondents have tendered Exhibits R5 and R7 which are the PDP membership Card No. 3632784 in the name of the 1st respondent and the approval of waiver granted by the PDP National Executive Committee under the hand of Dr. Amadu A. Ali (GCON), National Chairman. It was dated February 20, 2007.

This also requires some explanation because it is very apparent, on the face of Exhibit R7 that it was issued 7 days after the nomination form of the 1st respondent was completed.

It has been submitted by Learned Senior Counsel for the 1st and 2nd respondents that the issue of nomination is a pre-election issue justiciable only before a State of Federal High Court. That is not far from the truth but this is not a claim against nomination per se: the issue involved is that the 1st respondent not being qualified to contest the election of the 14th April, 2007 on the bases of double or multiple nominations contrary to Section 38 of the Electoral Act and of.

Another dimension to this case is that by Exhibit P1(1) at page 2, column 5, one Senator Bello J. Gada was the person the 1st respondent had nominated to run with him in the election as Deputy Governor but it was one Mukhtari Shehu Shagari that was returned with him as Deputy Governor. This also begs for explanations, but none was forthcoming.

The defence has been based on the ground that the issue of qualification is distinct from that of nomination. That is true, but by Section 28 of the Electoral Act 2006 and Section 187(1) of the Constitution of the Federal Republic of Nigeria, 1999 and in view of the evidence of the appellants which remains largely undenied, can it be said that the 1st respondent was qualified to contest the election on 14th April, 2007? The answer is certainly in the negative.

The 1st and 2nd respondent have been guilty of non-compliance with the provisions of the Electoral Act and the Constitution and no court of law or a reasonable tribunal will close its eye to such flagrant, abuse of privilege as arrogantly exhibited by the respondents in this case.

I hold that the issue of multiple nominations touches on the qualification of a candidate to contest an election under the Electoral Act and it is justiciable before an election tribunal. I also hold that the nomination of the 1st respondent is in clear breach of the provision of Section 187(1) of the Constitution.

As I have stated earlier in this judgment, failure by the 3rd to 43rd respondents to adduce evidence in support of their pleadings amounts to an admission of the claims of the appellants as stated in paragraph 9(ii) of the petition. The officers of INEC have in this case, portrayed the Commission as an irresponsible organization which is ready to perpetrate illegality and scuttle the nascent democracy for whatever reason best known to them. It is very clear from the circumstances of this case that the INEC was working with gloves in hand along with some political parties in Sokoto to pervert the cause of Justice. The electorate are taken for granted. This is most unfortunate.

Issue One is answered in the negative. The tribunal was not right when it struck out the appellants’ reply and discountenanced all the evidence adduced in respect thereof. Issue Two is answered in the positive. The tribunal had jurisdiction to re-visit the issue of propriety and

The appellants argued issues 3 and 4 together. Likewise, the 1st and 2nd respondents argued together Issues 2 and 3 of their brief.

The point here is whether the 1st respondent validly withdrew his candidature under the banner of ANPP before allowing himself to be nominated by PDP for the same office of the governorship of Sokoto State. While the appellant contend that the 1st respondent did not validly withdraw his candidature sponsored by ANPP in accordance with the provisions of the Electoral Act, the 1st and 2nd respondents argued that the issue of qualification or disqualification can only be found under Sections 109 and 110 of the Electoral Act dealing with the qualification and disqualification to the Area Council. They argued that the Act does not make provision for such subject and that the issue of qualification or disqualification in relation to the office of a Governor are constitutional. Sections 177 and 182 of the Constitution were referred to. The appellants in their argument also affirmed that the issue of qualification is constitutional and that any law other than the Constitution is subsidiary to the Constitution. The appellants placed reliance on Section 36(1) of the Electoral Act and submitted that on the authority of ATTORNEY GENERAL OF OYO STATE V. FAIRLAKES HOTELS LTD (1989) S NWLR (Pt.121) 255 at 292, the tribunal was under a duty to look at the entire surrounding circumstances of the documents disputed and satisfy itself whether or not there is basis for it to place any weight on them. Specific reference was made to Exhibit R4 with the submission that the document having been disputed and shown not to be in compliance with the requirement of the Electoral Act and Regulations the tribunal should have held that it was a worthless piece of paper which cannot be a basis of a valid withdrawal of a candidature. It was further submitted that this is an incontrovertible evidence of double nomination contrary to Section 28 of the Electoral Act, 2006 which renders the nomination of the 1st respondent void. It was submitted that where an act is void ab initio, it cannot and will never be made valid by a subsequent act, even if such subsequent act is valid. Reliance was placed on MILAD OF BENUE STATE V. ULEGEDE (2801) 17 NWLR (Pt.741) 194. It is further submitted that Exhibit P4 which is the Attendance List of ANPP National Caucus Meeting held on 7/2/2007 where the 1st respondent signed against his name is a clear pointer that Exhibit R4 the purported letter of resignation of his membership of ANPP on 31st January, 2007 is a concocted lie. Also there is no evidence of its delivery as required by the law. It was submitted for the appellants that, within the con of Sections 40 and 41 of the Electoral Act, a poll can only be taken amongst persons who “remain validly nominated” candidates. It was also submitted that where a candidate has not been validly nominated, he cannot stand for an election and if he contests an election, it will amount to noncompliance with Sections 38 and 41 of the Electoral Act; and where that candidate is returned as the winner of the election, the noncompliance become substantial enough to warrant a nullification of the election. It is further submitted that inference of withdrawal of candidature cannot be drawn by implication or conduct. Reliance was placed on Section 36(1) of the Act which imposes a duty on the candidate to withdraw in writing which must be delivered in the manner prescribed. In order to appreciate the relevance of valid nomination in determining the qualification to contest an election, the Court is invited to read together the provisions of Sections 40, 41 and 145 of the Act. Section 40 provides for recognised candidate in “contested elections”; the second stipulates the occasions at which poll is required for the purpose of election; while the third recognises as a valid ground for election petition, the fact that the candidate returned as winner thereof was

“at the time of the election not qualified to contest the election.”

It was submitted that the emphasis here is placed on “at the time of the election”. It was submitted that all the hurdles set by the Constitution and the Electoral Act must be surmounted by all candidates because if a person meets the entire constitutional requirements, but is not validly nominated, Section 40 of the Act does not recognize such a person as a qualified contestant. It was submitted that election is a process not limited to poll and Part IV of the Electoral Act 2006 from Sections 26 – 77 is not limited to the polling day alone. Reference was made to the case of P.D.P. v. INEC (1999) 11 NWLR (Pt.626) 200, 240 while submitting that the expression-

“at the time of election, not qualified to contest the election”

refers to both constitutional qualification to be elected, and statutory qualification of a person contesting election to be placed on the ballot under Section 40 of the Electoral Act. It was submitted that no otherwise qualified candidate under the provisions of the Constitution may become disqualified from contesting as a result of the clear provision of the Electoral Act as witnessed in the cases of Charles Ugwu and Celestine Omehia in UGWU V. ARARUME and AMAECHI v. INEC respectively. It is for this reason that Section 145(1)(a) is provided and misconstruction of the Electoral Act has occasioned miscarriage of justice. It was finally submitted that the 1st respondent did not validly withdraw his candidature under ANPP and therefore not qualified to be nominated by the PDP when it was purportedly done which is an infraction of the Electoral Act.

For the 1st and 2nd respondents, it was submitted that the requirements of qualification of any candidate into any elective office in Nigeria are constitutional and it is the yardstick by which the qualification of a candidate to contest an election will be measured. It was submitted that all a candidate has to do is to satisfy the provisions of Section 177 and 182 of the Constitution and he is qualified. It was submitted that there is no paragraph in the entire petition that contains the qualification of the 1st respondent in accordance with Sections 177 and 182 of the Constitution. It was also submitted that the appellants are anchoring their challenge to the qualification of the 1st respondent on Section 187(1) of the Constitution. Reliance was placed on UGWU V. ARARUME (2007) 12 NWLR (Pt.1048) 367, 477 – 488(sic). It was argued that the challenge here is not on qualification, but nomination which is a pre-election issue, citing PDP V. HARUNA (2004) 14 NWLR (Pt.900) 597, 611 – 612. It was submitted that the 1st respondent was qualified to contest the election as he was sponsored by PDP as Governorship candidate for Sokoto State which sponsorship was not withdrawn.

It was further submitted for the respondents that if a candidate satisfied the requirements in Section 177 of the Constitution and emerged as victorious in the election, a petition challenging him on the issue of disqualification compulsorily must be rooted or located within any of the grounds provided under Section 182 of the Constitution and the failure by the appellants to root their challenge under any of the provisions of Section 182 renders the petition to be incompetent. It was then submitted that the tribunal lacks jurisdiction to entertain the petition.

On the issue of nomination it was submitted for the respondents that it is late in the day for the appellants to take up that issue and that the appropriate time was before the election before a State or Federal High Court. Section 32 of the Electoral Act, 2006 and ONIFADE V. OYEDEMI (1999) 5 NWLR (Pt.601) 54, 68 were cited.

As to the fact that the appellants are not members of PDP, it was submitted that since the issues of nomination or substitution are intra-party issues, the appellants have no locus to bring the petition. Reliance was placed on ZIMIT V. MAHMOUD (1993) 1 NWLR (Pt.267) 71, 89; USA V. ENEMUO (2006) ALL FWLR (Pt.311) 1951, 1962 AND 1963; and UKPO V. ADEDE (2001) FWLR (Pt.77) 85.

A distinction was then drawn between this case and the duo of ARARUME and AMAECHI. Learned senior counsel for the 1st and 2nd respondents pin-pointed eight distinguishing features between those two cases and the instant case and submitted that the two cases support the case of the 1st and 2nd respondents. It was submitted that the issue of validity or otherwise of nomination of the 1st respondent is not cognizable under Section 145(1) of the Electoral Act, 2006. Reliance was placed on PDP V. HARUNA (supra); ANPP V. INEC (2004) 7 NWLR (Pt.871) 31 and JANG V. DARIYE (2003) 15 NWLR (Pt.843) 430.

The main plank of the appellants’ complaint before this Court on this issues could be traced to the finding of the tribunal at page 585 of the record as captured by the 1st and 2nd respondents at page 30 of their brief that-

“In the absence of anything to the contrary, it is prima facie established that the 1st Respondent left ANPP and joined PDP. That is to say that he is a member of PDP. That answers the first leg of the condition(sic) Under Section 177 of the Constitution.” The expression- “in the absence of anything to the contrary”

was arrived at by the tribunal after having erroneously struck out the petitioners reply to which was attached the documents pointing to the falsity of documents relied upon by the 1st and 2nd respondents to prove that the 1st respondent validly withdrew his candidate for the Governorship of Sokoto State under the platform of ANPP before joining PDP who subsequently nominated him for the same office.

The documents attached to the said reply also established beyond peradventure that the form C.F. 001 purportedly filled by Mukhtari Shehu Shagari and deposed to on the 12th day of February, 2007 was manufactured purposely to meet the challenge of the election petition. Exhibit P3, the certified true copy of the duplicate of the revenue collector’s receipt No. 002187251, upon which Form C.F. 001 was deposed, showed clearly that Mukhtari Shehu Shagari paid for the form on the 12th day of April, 2007 and not 12th day of February, 2007 as alleged. The form was deposed to, if ever, two weeks after the election of the 14th day of April, 2007.

The 1st and 2nd respondents, on their own, agree that the appellants case, at the tribunal, was also anchored on Section 187 of the Constitution. The Sections provides as follows:-

“187.(1) In any election to which the foregoing provisions of this part of this chapter relate, a candidate for the office of Governor of a state shall not be deemed to have been validly nominated for such office unless he nominates another candidate as his associate for his running for the office of Governor, who is to occupy the office of Deputy governor; and that candidate shall be deemed to have been duly elected to the office of Deputy Governor if the candidate who nominated him is duly elected as Governor in accordance with the said provisions. ”

It is unthinkable that the issue of the jurisdiction will. Be contested in the light of the evidence in this case. Exhibit P1(1) at page 2, columns 5 indicated that the 1st respondent had nominated one Senator Bello J. Gada as his running mate to occupy the office of Deputy governor, but one Mukhtari Shehu Shagari was returned as Deputy Governor. The pertinent question is-

“Where else were the appellants to ventilate their grievances if not before the tribunal, especially as this fact manifested itself after the conduct of the election?”

By any stretch of imagination, how can this be characterised as a pre-election issue? It is a flagrant rape of democracy and an arrogant and irresponsible disregard for the Constitution of this country.

This brings me to the issue of respect for the Constitution. In this case, PDP members at their various Secretariats have shown utter disrespect for the party’s Constitution as to qualification/eligibility of its members to contest elective public offices. By Article 17.2(g) of the Constitution of the Peoples Democratic Party, 2006 (as amended), a member is not eligible to stand for election into any party or public office until he attains a minimum of 2 years membership unless a waiver is granted by the appropriate executive committee and which must be approved by the immediate higher executive committee and the National Executive Committee is the final authority. In this regard, Exhibit R6 makes a mockery of itself and the tribunal turned a bind eye to it. The letter is in its original form and there is no indication that it was ever delivered to the National Headquarters of the party as there is no form of acknowledgement on the letter and DW2 through whom it was tendered did not state how the letter returned to him to be tendered in evidence. Exhibit R7 does not lend credence to Exhibit R6. While Exhibit R6 tries to give the impression that a waiver had been granted to the 1st respondent at Local Government level and that the State Executive Committee was conveying its agreement to the National Executive Committee: the letter was dated 03-02-07; the contents of Exhibit R7 was issued by the party’s National Executive Committee in different terms. To make the point clearer, I reproduce Exhibit R7 hereunder:

“Office of the National Chairman

February 20, 2007

Alhaji Aliyu Magatakarda Wamakko

Sarkin-Yamma Sokoto

Gubernatorial Candidate

Sokoto

RE: APPLICATION FOR WAIVER

I wish to refer to your application for waiver as provided for under article 17.2G of the 3rd February 2007 to convey approval of the National Executive Committee of our Party at it’s(sic) last NEC meeting.

Accept my congratulations and best regards

(Signed)

DR. AMADU A. ALI (GCON)

NATIONAL CHAIRMAN”

By the tenure of this letter, Exhibit R7, it is crystal clear that it was the 1st respondent, himself, who applied to the PDP NEC for waiver on the 3rd day of February, 2007 and not the State Executive Committee as Exhibit R6 wants us to believe. The fact of non-compliance with the party’s Constitution by its members is very apparent on the face of these two exhibits. Exhibit R7 was written on February 20, 2007 which date must be taken to be the date of the grant of waiver since the date of approval is conspicuously absent on the exhibit. The implication of this is that the waiver was given fifteen (15) days after the after the PDP notified the INEC that 1st respondent was its candidate for election into the office of Governor of Sokoto State and seven(7) days after Nomination of the 1st respondent was completed. There is no provision in the PDP Constitution allowing the waiver to be granted in retrospect. Those who disrespect their own party’s constitution with impunity should not be expected to be true or serious protectors and defenders of the Constitution of the Federal Republic of Nigeria.

It was under this situation that the INEC allowed the. 1st respondent to be presented to it as PDP candidate. As in AMAECHI V. INEC, the INEC, by acceding to the request of PDP at the stage it did in this case, has painted a picture of itself as a spineless body whose pre-occupation is dissemination of injustice. It has forgotten or it has thrown into the winds the position carved for it by the Constitution of the land – AN UNBIASED UMPIRE.

In the light of the foregoing, these two issues are resolved in favour of the appellants. Issues 2 and 3 of the 1st and 2nd respondents’ brief are answered in the negative and the treatment of these issues has sufficiently answered Issues 4 and 5 of the respondents’ brief.

The two issues just considered adequately answer Issues Five, Six, and Seven in the brief of the appellants.

What remain for me to resolve is Issue Eight of the appellants’ brief and Issue 6 of the 1st and 2ndrespondents’ brief. Although I have held earlier in this judgment that the tribunal having found that the 3rd to 43rd respondents have abandoned their pleadings, they can no longer be heard in the case since they have nothing to urge, that does not automatically entitle the appellants to judgment against them where no prima facie evidence of substantial irregularities have been established. Against this background, Exhibits P7 to P14 which the tribunal has found to contain evidence of allocation of votes to fourteen political parties instead of only the ten that contested the election is relevant. As I have said earlier on, the proof required of the appellants in this case is minimal since the 3rd to 43rd respondents are, by law, deemed to have admitted the claim of the appellants.

The 1st appellant having challenged the regularity of the conduct of the election is not entitled to be returned as the candidate duly elected with the majority of the valid and lawful votes cast at the election of the 14th day of April, 2007.

In sum, this appeal succeeds and the same is accordingly hereby allowed.

IT IS HEREBY ORDERED as follows:

1. That judgment of the Governorship and Legislative Houses Election Tribunal sitting in Sokoto delivered on the 29th day of October, 2007 in Election Petition No. SS/EPT/GOV /1/2007 is hereby set aside.
2. The Sokoto State Governorship election held on the 14th day of April, 2007 is hereby annulled for substantial irregularities in the conduct of the election and on the ground that the 1st respondent was not qualified to contest the election as at the 14th day of April, 2007.
3. The Independent National Electoral Commission shall conduct fresh Governorship Election for Sokoto State within 90 days of the date hereof
4. The fresh election herein ordered shall be between the same parties and candidates as appear on Exhibit R8.
5. The Speaker of the Sokoto State House of Assembly shall be sworn-in, immediately, as the Acting Governor of Sokoto State pending the outcome of the fresh election herein ordered.
6. Costs assessed at N50,000.00 is awarded against the 1st and 2nd Respondents.

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Other Citations: (2008)LCN/3042(CA)