Mohammed Hassan Hashim Rimi V. Independent National Electoral Commission (Inec) & Anor. (2004)

LawGlobal-Hub Lead Judgment Report

T. MUHAMMAD, J.C.A.

On the 13th day of February, 2004, the Kogi State National, Assembly/Governorship and Legislative Houses Election Tribunal holden at Lokoja (the “tribunal” for short), dismissed the petition of the appellant as petitioner. Dissatisfied, the petitioner appealed to this court against the dismissal of his petition. Facts contained in the printed record of this appeal, revealed that the petitioner along with five others were vying for election into the Kogi State House of Assembly from Lokoja 1 State Constituency under the platform of Peoples Democratic Party (PDP). PDP, towards realization of that objective, conducted primary election for the contestants on the 17th day of December, 2002. At the end of the primaries and based on the result, the name of the 2nd respondent was forwarded to the 1st respondent as candidate for the said constituency. Unhappy with the declaration, the petitioner petitioned the party against forwarding the name of the 2nd respondent which resulted in the withdrawal of the name of the 2nd respondent and substituting it with that of the petitioner.

Since the said substitution, there had been series of correspondences between the party and the 1st respondent withdrawing or substituting either of the two names interchanging one another.

At the end of the election the name of the 2nd respondent was returned as the winner. The petitioner then filed the petition giving rise to this appeal.

The main grouse of the petitioner in his petition before the tribunal was that his name was withdrawn and substituted with that of the 2nd respondent less than 30 days to the date of the election contrary to the provision of section 23 of the Electoral Act, 2002. He therefore urged the tribunal to declare illegal the purported withdrawal of his name and declare him winner being the duly nominated candidate for the party. In support of his case, the petitioner testified in person, called two more witnesses and tendered some exhibits. 2nd respondent called only 1 witness and tendered some exhibits too. The 1st respondent did not file any reply to the petition nor called any evidence. The tribunal dismissed the petition for lack of merit.

Five grounds of appeal were set out in the notice of appeal. In this court, briefs were filed and exchanged. Learned counsel for the appellant distilled the following issues in his brief of argument.

“Issue No.1

Whether the tribunal was in error in holding that the petitioner failed to support his pleading as to non payment of tax by the 2nd respondent by concrete evidence.

Issue No.2

Whether the tribunal was right to hold that it had no jurisdiction to entertain the petitioner’s claim of late substitution as it is an internal affair of the party.

Issue No.3

Whether in the light of the Supreme Court decisions and later decisions of this court the tribunal was right in holding that the word ‘may’ used in the con of section 23 of the Electoral Act, 2002 is discretionary and not mandatory.

Issue No.4

Whether in view of the overwhelming evidence adduced by the appellant the tribunal was not in error to hold that the inescapable and inevitable conclusion is that the petitioner has failed to establish his case. ”