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Jang vs. Dariye

JONAH DAVID JANG

ALL NIGERIA PEOPLES PARTY (ANPP)

V

CHIEF JOSHUA CHIBI DARIYE

INDEPENDENT NATIONAL ELECTORAL

COMMISSION (INEC)

THE CHIEF NATIONAL ELECTORAL OFFICER

CHIEF JACOBI NWAKPA

THE RESIDENT ELECTORAL OFFICER

PLATEAU STATE

THE RETURING OFFICER BASSA L.G. A.

THE RETURNING OFFICER QUA’ AN PAN

L.G.A.

THE RETURNING OFFICER WASE L.G.A.

THE RETURING OFFICER BOKKOS L.G.A

THE RETURNING OFFICER KANAM L.G.A.

THE RETURNING OFFICER JOS NORTH L.G.A.

THE RETURNING OFFICER PANKSHIN L.G.A.

THE RETURNING OFFICER JOS SOUTH L.G.A.

THE RETURNING OFFICER JOS NORTH L.G.A.

THE RETURNING OFFICER MANGU L.G.A.

THE RETURNING OFFICER MIKANG L.G.A.

THE RETURNING OFFICER BWALL WARD

THE RETURNING OFFICER BOKKOS WARD

THE PRESIDING OFFICER MAZAH JUNCTION POLLING STATION

THE PRESIDING OFFICER MAZAH TARSHI POLLING STATION

THE PRESIDING OFFICER MAZAH NAGOHOM

POLLING STATION

THE PRESIDING OFFICER MAZAH UGITIS POLLING STATION

THE PRESIDING OFFICER MAZAH BUHARI POLLING STATION

THE PRESIDING OFFICER MAZAH GINZI POLLING STATION

THE PRESIDING OFFICER MAZAH LIBA

POLLING STATION

THE PRESIDING OFFICER MAZAH YAHOM POLLING STATION

THE PRESIDING OFFICER GYANG GYANG A POLLING STATION

THE PRESIDING OFFICER GYANG GYANG B POLLING STATION

THE PRESIDING OFFICER BUNGUDU POLLING STATION

THE RETURNING OFFICER ZAKAM-PADA PADA POLLING STATION

THE RETURNING OFFICER KADARKO WARD

THE RETURING OFFICER KUNMUR WARD

THE RETURNING OFFICER KUMBWANG WARD

THE RETURNING OFFICER MAVO POLLING STATION

THE RETURNING OFFICER SALUWE WARD

THE RETURNING OFFICER YOLA WAKAT WARD

THE RETURNING OFFICER WASE OFA APOLLINGSTATION

THE RETURNING OFFICER MAHURAM BADE POLLING STATION

THE RETURNING OFFICER PRIMARY SCHOOL TANKUR POLLING STATION

THE PRESIDING OFFICER PRIMARY SCHOOL TANKUR UNIT 009 POLLING STATION

THE PRESIDING OFFICER PRIMARY SCHOOL AMBUL  POLLING STATION

THE PRESIDING OFFICER PRIMARY SCHOOL SIKEN POLLING STATION

THE PRESIDING OFFICER TOFF TANBI POLLING STATION

THE PRESIDING OFFICER KUDDUK POLLING

STATION

THE PRESIDING OFFICER PRIMARY SCHOOL MAIKATAKO POLLING STATION

THE PRESIDING OFFICER MARIN RICHA POLLING STATION

THE PRESIDING OFFICER PRIMARY POLLING STATION

THE PRESIDING OFFICER ROM POLLING STATION

THE RETURNING OFFICER PRIMARY

SCHOOL MUSHERE POLLING STATION

THE PRESIDING OFFICER KOPDIL POLLING STATION

THE PRESIDING OFFICER PRIMARY SCHOOL

KAWEL POLLING STATION

THE PRESIDING OFFICER PRIMARY SCHOOL GARAH UNIT POLLING STATION

THE PRESIDING OFFICER PRIMARY SCHOOL HORROP UNIT POLLING STATION

THE PRESIDING OFFICER PRIMARY SCHOOL UNIT POLLING STATION

THE PRESIDING OFFICER KPARI CHINYE POLLING STATION

THE PRESIDING OFFICER CHINYE POLLING STATION

THE PRESIDING OFFICER KITAGO POLLING STATION

THE PRESIDING OFFICER KITAKO POLLING STATION

THE PRESIDING OFFICER JEBBU MIANGO POLLING STATION

THE PRESIDING OFFICER SHUKUR POLLING STATION

THE PRESIDING OFFICER JOSHO POLLING STATION

THE PRESIDING OFFICER NER POLLING STATION

THE PRESIDING OFFICER NJAK POLLING STATION

THE PRESIDING OFFICER KISSAGHIP POLLING STATION

THE PRESIDING OFFICER KASKADI POLLING STATION

THE PRESIDING OFFICER CHIWA

THE PRESIDING OFFICER CAMP B POLLING STATION

THE PRESIDING OFFICER MANGAR BA POLLING STATION

THE PRESIDING OFFICER MAGI POLLING STATION

THE PRESIDING OFFICER FEGITSA POLLING

STATION

THE PRESIDING OFFICER SHEREISHA POLLING STATION

THE PRESIDING OFFICER SHERE DABO POLLING STATION

THE PRESIDING OFFICER SULWA POLLING STATION

THE PRESIDING OFFICER TAKYILIB POLLING STATION

THE PRESIDING OFFICER BIRWA POLLING STATION

THE PRESIDING OFFICER YAMINI POLLING STATION

THE PRESIDING OFFICER PRIMARY SCHOOL KAGYAL POLLING STATION

THE PRESIDING OFFICER HORROP POLLING STATION

THE PRESIDING OFFICER GOVT. HOUSE POLLING STATION

THE PRESIDING OFFICER MAMMAN BORNU POLLING STATION

THE PRESIDING OFFICER BAUCHI ROAD POLLING STATION

THE ELECTORAL OFFICER, WASE

THE ELECTORAL OFFICER, PANKSHIN

THE RETURNING OFFICER NARAGUTA ‘B’

PEOPLE’S DEMOCRATIC PARTY (PDP)

COURT OF APPEAL

( JOS DIVISION )

SUNDAY A. AKINTAN, JCA ( Presided and Read the Lead Judgment )

SIMEON OSUJI EKPE, JCA

JOHN AFOLABI FABIYI, JCA

WALTER SAMUEL NKANU ONNOGHEN, JCA

ABUBAKAR ABDULAKADIR JEGA, JCA

CA/J/158/2003

THURSDAY, 7TH AUGUST, 2003

APPEAL - Evaluation of evidence - When appellate court will interfere with findings of lower court


CONSTITUTIONAL LAW - Constitution 1999, section 36(1) - Breach of right to fair hearing - Effect on proceedings

ELECTION PETITION - Allegation of crime raised in a petition - Standard of proof of

ELECTION PETITION - Amendment of election petition - When allowed

ELECTION PETITION - Election petition - Content of - Need to conform with provisions of paragraph 4(1) of 1st schedule of the Electoral Act - Attitude of tribunal to petitions not in such conformity

ELECTION PETITION - Election tribunal - Power of - Whether confer authority to handle preliminary issues

ELECTION PETITION - Evidence - Burden and standard of proof in an election petition

ELECTION PETITION - Qualification or otherwise of contestant - Bodies qualified to adjudicate on - Section 21(4) of the Electoral Act 2002 considered

EVIDENCE - Election petition - Burden and standard of proof of

EVIDENCE - Election tribunal - Allegation of crime raised in election petition - Standard of proof of

EVIDENCE - Evaluation of evidence - When appellate court will interfere with findings of lower court

FUNDAMENTAL RIGHTS - Fair hearing - Breach of - Effect on proceedings -  Section 36(1), 1999 Constitution considered

PRACTICE AND PROCEDURE - Pleadings - Amendment of - When will be refused

STATUTE - Electoral Act 2002 - Section 21(4) - Determination of qualification or otherwise of contestant - Bodies qualified to determine

STATUTE - Electoral Act, paragraph 4(1) to 1st schedule - Content of an election petition - Attitude of tribunal to petitions not in such conformity

Issues:

1.             Whether the election tribunal was right in striking out paragraphs 8 and 10 of the petition on the ground that the paragraphs failed to comply with the provisions of section 285(1) & (2) of the 1999 Constitution which restrict the jurisdiction of the tribunal to matters arising from conducted elections.

2.             Whether there was a breach of the provisions of the constitutional right to fair hearing in the treatment given to PW9 and PW15.

3.             Whether the tribunal was right in refusing to grant the petitioners application to amend the petition.

Facts:

The 1st appellant, Jonah David Jang, was a candidate at the

Governorship elections for Plateau State conducted on 19th April, 2003. He contested on the platform of the All Nigeria Peoples Party, the 2nd appellant. The 1st respondent, Chief Joshua Chidi Dariye, was also a candidate at the election. He contested on the platform of the Peoples Democratic Party, the 84th respondent. At the end of the election, the 1st respondent was declared winner of the contest by Independent National Electoral Commission (INEC), having scored the highest votes.

Dissatisfied with INEC’s declaration, the appellants filed a petition at the National Assembly/Governorship and Legislative Houses Election Petition Tribunal for Plateau State. In the course of hearing the petition, the Tribunal delivered four interlocutory rulings. It finally delivered final judgment in favour of the 1st respondent on the 24th of June, 2003. The appellants appealed to the Court of Appeal alleging that there was a breach of their right to fair hearing as their PW9 and PW15 were wrongly precluded from giving evidence, that paragraphs 8 and 10 of their petition which respectively stated the historical and political antecedent of Plateau State and complained of the disqualification of the 1st respondent to contest the election, were wrongfully struck out and that the Tribunal was wrong in refusing their application to amend their election petition.

In determining the appeal, the Court of Appeal considered the following provisions:

Electoral Act 2002, paragraph 4(1) and 14(2) of the 1st Schedule thereto and section 21(1), (2) & (4) thereof which respectively provides as follows:

“4(1) An election petition under this Act shall -

(a)           Specify the parties interested in the election petition;

(b)          Specify the right of the petitioner to present the election

petition;

(c)           State the holding of the election, the scores of the candidates and the person returned as the winner of the election; and

(d)          State clearly the facts of the election petition and the grounds or grounds on which the petition is based and

the relief sought by the petitioner”

14(2) After the expiry of the time limited by -

(a) Section 132 of this Act for presenting the election petition, no amendment shall be made:

(i)            introducing any of the requirements of subparagraph (1) of paragraph 4 of this Schedule not contained in the original election petition filed, or

(ii)          Effecting a substantial alteration of the ground for, or the prayer in, the petition; or

(iii)        Except anything which may be done under the provisions of subparagraph (3) of this paragraph, effecting substantial alteration of or addition to, the statement of facts relied on to support the ground for, or sustain the prayer in the election petition...”

“21(1)Every political party shall not later than 90 days before the date appointed for a general election under the provisions of this Act, submit to the Commission in the prescribed forms the list of the candidates the party proposes to sponsor at the elections.

    (2) The list shall be accompanied by an affidavit sworn to by each candidate at the High Court of a State, indicating that he has fulfilled all the constitutional requirements for election into that office.

     (4) Any person who has reasonable grounds to believe that any information given by a candidate in the affidavit is false may petition the Commission or file a suit at the High Court of a State or Federal High Court against such person seeking a declaration that the information contained in the affidavit is false.”