Dr. Ahmed Mohammed Salik V. Alhassan Uba Idris & Ors (2014)

LAWGLOBAL HUB Lead Judgment Report

KUMAI BAYANG AKA’AHS, J.S.C.

The genesis of this appeal started as an inter party dispute on the candidate the All Nigeria Peoples Party (ANPP) nominated to contest the election for the Dala Federal Constituency seat of the House of Representatives in the General Election which took place on 21st April, 2007. After the conduct of the primaries, the ANPP forwarded the name of Alhassan Uba Idris (now 1st respondent) to INEC who was cleared and his name published to contest the election which he won. The appellant believed he won the highest number of votes at the primaries and felt short – changed on what the

Party did and challenged the action of the Party at the Federal High Court, Abuja in Suit No. FHC/ABJ/CS/70/2007. The Court entered judgment in his favour. Meanwhile the General Election had taken place and when the results for the Dala Federal Constituency was collated by Tijani Abdu Chinade, the Returning officer for Dala Federal Constituency, the 1st respondent who garnered 51,603 (Fifty One Thousand, Six Hundred and Three) votes was set to be declared the winner of the election. It was at this juncture that the Resident Electoral Commissioner for Kano State called the attention of the Returning Officer for Dala Federal Constituency to the judgment of the Federal High Court. He cancelled the name of the 1st respondent from the result sheet and then wrote the name of the appellant and proceeded to declare him as the winner of the election. Following this development, the 1st respondent and the ANPP filed a Petition No. EPT/KNS/HR/23/07 before the National Assembly Election Tribunal of Kano State. The petition was dismissed. The petitioners appealed against the decision to the Court of Appeal which reversed the Tribunal’s judgment. It nullified the election as well as the certificate of return if any that was issued to the 1st respondent and declared that the 1st petitioner/Appellant, Alhassan Uba Idris is the candidate that met the requirement of the law and scored the highest number of votes cast at the election and was declared the winner and returned elected into the Dala Federal Constituency of the House of Representatives. It directed the 2nd, 3rd and 4th respondents to forthwith issue a certificate of return to the 1st petitioner.

The appellant has appealed to this Court and even though he is aware that the life of the National Assembly to which the 2007 election relates has been spent since 2011; he nevertheless is of the view that the appeal is neither stale nor academic and can still be determined by this Court because it is a pre – election matter which was filed in 2009 when the life of the National Assembly was still extant. The Notice of Appeal dated 12th May, 2008 contains four grounds (See: pages 1175 – 1179 vol. 2 of the records) from which three issues were identified for determination. The issues formulated are:-

1. Whether it is today settled law that all pre – election matters including nomination and substitution of candidates and all matters preceding the actual holding of elections are only cognizable within the exclusive jurisdiction of the regular courts and outside the purview of the jurisdiction of Election Tribunal (Ground 1).
2. Whether judging from the records, the Court of Appeal was right in holding that the witnesses that testified gave direct evidence that the 1st Petitioner/Appellant was the candidate sponsored by the 2nd Petitioner/Appellant for Dala Federal Constituency (Grounds 3 and 4).
3. If the instant Election Petition was incompetent ab initio and not cognizable before the Election Tribunal, what is the effect of jurisdiction by the Court of Appeal within the 1999 Constitution of the Federal Republic of Nigeria (Ground 2).

All the respondents with the exception of the 2nd respondent filed Notices of Preliminary Objection to the appeal. Their objection was on the competence of the appeal and the jurisdiction of this Court to entertain the appeal. The 1st respondent prayed that the appeal be dismissed or struck out while the 3rd – 5th respondents asked that the appeal be dismissed. The grounds for the objection are:-

(1) This Honourable Court has no appellate or supervisory jurisdiction over the Court of Appeal in elections connected to the National Assembly under the Electoral Act 2006 and section 246 (1)(b)(i)(3) of the 1999 Constitution.

(2) The appeal has become academic and spent as the legislative tenure for the Dala Federal Constituency from 2007 to 2011 has elapsed by effluxion of time.

This is a threshold issue which has to be decided first before delving into the merit of the appeal if the need arises.

As I earlier stated, it was when the results of the election held on 21st April, 2007 had been compiled and the returning officer for Dala Federal Constituency was about to declare the results and the winner that the Kano State Resident Electoral Commissioner intervened and this led to the cancellation of the 1st respondent’s name and the substitution of the appellant’s name on the result sheet. Section 28 of the Electoral Act 2006 enumerates those charged with responsibility to announce the various election results. Section 28 (2)(e) of the Electoral Act, 2006 assigned the duty to the Returning Officer at the Federal Constituency Collation Centre since the result was for Dala Federal Constituency. The Resident Electoral Commissioner of the Stare is the Returning Officer at the Governorship election. The main defence which the 3rd – 5th respondents put up at the Tribunal for the alteration of the result for Dala Federal Constituency was that there was unlawful substitution of the original candidate for the election which was challenged at the Federal High Court and it was that court which authorised the imposition of the appellant’s name and the removal of the 1st respondent’s name as the winner of the election.

The petitioner’s (1st respondent in this appeal) case is that he was the candidate that was duly recognised by the ANPP (the Party) as well as 3rd – 5th respondents at the election as his name was variously listed and published, and that he contested the election which he won and he was returned both in the Declaration of Result (before the unlawful alteration) as well as INEC List of successful candidates after the election, where at the end of an election, a winner is duly issued by the Independent National Electoral Commission (INEC) Form EC8(1), it confirms the validity and conclusiveness of the election. The form is to show that the person has been duly returned as the winner of the election. See: Sowemimo v. Awobajo (1999) 7 NWLR (Part 610) 335.

In M. H, Okunola v. D. Ogundiran & Anor (1962) ALL NLR 84 the appellant and the cross- appellant and one other person were candidates at a parliamentary election. As a result of an arithmetical error in the counting of the votes, the appellant was declared elected by the Returning Officer, although he was not the candidate having the highest number of votes. Upon discovering the error, the Returning Officer declared the cross – appellant, who, in fact, had the highest number of votes, elected. The appellant then brought a petition praying the court to declare that he was duly elected or returned, or ought to have been returned at the election; and that the cross – appellant was not duly elected or returned, and that the declared election of the cross – appellant, or his purported election was void. The cross – appellant asked for declaration that the appellant was not duly elected or returned and that he, the cross – appellant ought to have been declared properly elected by a majority of the lawful votes, and was duly returned.

At the trial, it was argued for the Appellant that the returning Officer could not revise the return; as the proper way of questioning a Return was by an Election Petition. This submission was upheld by the trial court. On appeal to the Supreme Court it was held that –

(1) Where in the counting of votes cast at an Election, an arithmetical error is discovered after the Return has been made, the Returning Officer cannot make a second Return; any Return made subsequent to the original Return is invalid.

(2) Notwithstanding his ruling as to the validity or invalidity of the return; the Judge in deciding an Election Petition must declare which candidate was duly elected.

Following from this case, it was the Returning Officer for Dala Federal Constituency that had responsibility to make the return but the Resident Electoral Commissioner for Kano State purportedly usurped the power and proceeded to make the alteration of the result by cancelling the 1st respondent’s name and substituting it with the appellant’s name and announcing the appellant as the winner of the election. He had no power to alter the result by cancelling the 1st respondent’s name and inserting that of the appellant. The option opened to the appellant was to question the election of the 1st respondent under section 145(1)(d) of the Electoral Act 2006 which stipulates –

“145 – (1) An election may be questioned on any of the following grounds

(d) that the petitioner or its candidate was validly nominated but unlawfully excluded from the election”.

Since the return was tampered with by the Resident Electoral Commissioner of Kano State, the 1st and 2nd respondents took the right step to present their petition before the National Assembly Election Tribunal Kano State in their petition No. EPT/KN5/HR/23/07 which was heard and determined on 28th February, 2008 and this paved way for appeal No. CA/K/EP/NA/19/2008 that was decided in favour of the 1st and 2nd respondents on 8th May, 2009.

Contrary to the position taken by the appellant that Petition No. EPT/KNS/HR/23/07 ought not to have been filed before the Election Tribunal which consequently robed the Court of Appeal of jurisdiction to entertain appeal No. CA/K/EP/NA/19/2008, the Petition was properly filed before the Tribunal. A fortiori the Court of Appeal is clothed with jurisdiction under section 246 of the 1999 Constitution to hear the appeal and such appeals terminate in the Court of Appeal. Section 246 (1)(b)(i) & (3) 1999 Constitution provides –

“246(i) An appeal to the Court of Appeal shall lie as of right from –

(b) decisions of the National Assembly Election Tribunals and Governorship and Legislative Houses Tribunals on any question as to whether –

(i) any person has been validly elected as a member of the National Assembly or of a House of Assembly of State under this constitution;

(3) The decisions of the Court of Appeal in respect of appeals arising from election petitions shall be final”.

The amendment to this section which allowed appeals to get to the Supreme Court only affected the election of the Governor or Deputy Governor. As the election being questioned is an election to the National Assembly, this Court lacks jurisdiction to entertain the appeal. The preliminary objection filed by the respondents is hereby upheld and the appeal is consequently struck out.

The appellant is fully aware that this appeal is a wild goose chase. If he is not, the learned counsel representing him ought to have known better and advised him accordingly. Alas this is not the case. Knowing fully well that election tenure of all those elected in 2007 ended in 2011 it was senseless for learned counsel to argue that there is still a subsisting benefit to be derived from this appeal.

The appeal is time wasting and the appellant must be mulcted in costs to serve as a deterrent to would be litigants. I wish to say that I will not hesitate to order costs to be personally borne by the counsel if this type of practice re – occurs in future. For the meantime the appellant is to pay costs of N250,000.00 (Two Hundred and Fifty Thousand Naira) to each set of respondents in the appeal.

SC.120/2011