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Kere v. Kalba

HON. KILIYOBAS AUDU KERE

PEOPLES DEMOCRATIC PARTY

V

ADAMU GORA KALBA

INDEPENDENT NATIONAL ELECTORAL COMMISSION

THE RESIDENT ELECTORAL COMMISSIONER OF INEC, GOMBE STATE

CONSTITUENCY RETURNING OFFICER, KALTUNGO/SHONGOM FEDERAL CONSTITUENCY (KELLE, YUNAH BULA)

THE ELECTORAL OFFICERS, KALTUNGO/ SHONGOM FEDERAL CONSTITUENCY

THE PRESIDING OFFICER, MANGO POLLING UNIT OF LAPAN  WARD OF SHONGOM LOCAL GOVERNMENT AREA

THE PRESIDING OFFICER, KOFAR JAURO HARUNA POLLING UNIT OF GUNDALE WARD OF SHONGOM LOCAL GOVERNMENT

AREA

THE PRESIDING OFFICER, ANKOMBI FADAN KASA FADAN JAURO DAMBURAM OF FILIYA WARD OF SHONGOM LOCAL

GOVERNMENT AREA

THE PRESIDING OFFICER, JAURO SAJO ASABBOLE OF FILYA WARD OF SHONGOM OCAL GOVERNMENT AREA

THE PRESIDING OFFICER, LATATAR POLLING UNIT OF LALAIPIDO WARD HONGOM LOCAL GOVERNMENT AREA

THE PRESIDING OFFICER, UBANDOMA PRIMARY SCHOOL POLLING UNIT OF KALTUNGO LOCAL GOVERNMENT AREA

THE PRESIDING OFFICER, WULI ‘A’ POLLING UNIT OF TUNGO WARD OF  KALTUNGO LOCAL GOVERNMENT AREA

THE PRESIDING OFFICER, LASADAR POLLING UNIT OF LALAIPIDO WARD OF SHONGOM LOCAL GOVERNMENT AREA

THE PRESIDING OFFICER, MARARABA POLLING UNIT OF WANGE WARD OF

KALTUNGO LOCAL GOVERNMENT AREA

THE PRESIDING OFFICER, BAYAM UP POLLING UNIT OF WANGE WARD OF KALTUNGO LOCAL GOVERNMENT AREA

THE PRESIDING OFFICER, BEKUNTIN POLLING UNIT OF WANGE WARD OF KALTUNGO LOCAL GOVERNMENT AREA

THE PRESIDING OFFICER, PANTAMI POLLING UNIT OF WANGE WARD OF KALTUNGO LOCAL GOVERNMENT AREA

THE PRESIDING OFFICER, BAYAM DOWN POLLING UNIT OF WANGE WARD OF KALTUNGO LOCAL GOVERNMENT AREA

THE PRESIDING OFFICER, SHURKWAM POLLING UNIT OF WANGE WARD OF KALTUNGO LOCAL GOVERNMENT AREA

THE PRESIDING OFFICER, FALANG POLLING UNIT OF WANGE WARD OF KALTUNGO LOCAL GOVERNMENT AREA

THE PRESIDING OFFICER, BEKWALINE POLLING UNIT OF WANGE WARD OF

KALTUNGO LOCAL GOVERNMENT AREA

THE PRESIDING OFFICER, BWABIAJAM ‘K’ POLLING UNIT OF WANGE WARD OF

KALTUNGO LOCAL GOVERNMENT AREA

THE PRESIDING OFFICER, J. KUTUBE 1 POLLING UNIT OF WANGE WARD OF

KALTUNGO LOCAL GOVERNMENT AREA

THE WARD RETURNING OFFICER OF FILYA WARD OF SHONGOM LOCAL GOVERNMENT AREA

THE WARD RETURNING OFFICER OF AWAK WARD OF KALTUNGO LOCAL GOVERNMENT AREA

THE WARD RETURNING OFFICER OF TULA BAULE WARD OF KALTUNGO LOCAL GOVERNMENT AREA

THE WARD RETURNING OFFICER OF BOH WARD OF SHONGOM LOCAL GOVERNMENT AREA

THE WARD RETURNING OFFICER OF KUSHI WARD OF SHONGOM LOCAL GOVERNMENT

AREA

THE ALL NIGERIA PEOPLES PARTY (ANPP)

COURT OF APPEAL

( JOS DIVISION )

ALOMA MARIAM MUKHTAR, JCA ( Presided )

OLUDADE OLADAPO OBADINA, JCA

IFEYINWA CECILIA NZEAKO, JCA ( Read the Lead Judgment )

CA/J/160/2003

TUESDAY, 11TH NOVEMBER, 2003

APPEAL - Grounds of appeal - Ground alleging misdirection or error in law - Need for particulars of misdirection or error in law Contents of particulars

COURT - Commencement of claim - Conditions precedent to valid commencement or presentation of claim contained in statutes Attitude of court to

ELECTION PETITION - Non-compliance with provisions of Electoral Act in respect of petitioner’s address for service - Effect of

ELECTION PETITION - Petitioner - Compliance with relevant statutory provisions in presentation of petition - Propriety of

JUDGMENT AND ORDERS - Error or slip in judgment - When will result in setting aside of the judgment

JURISDICTION - Issue of - When can be raised

JURISDICTION - Jurisdictional issue - Waiver of - Impossibility of

WORDS AND PHRASES - ‘Shall’ used in statutes - Connotation of

Issues:

1.              Whether on the facts and circumstances of the case, the trial Tribunal was not in error when it held that the omission of the appellants to sign the petition by themselves, insert their address in it and state the occupier of that address, was fatal to the petition.

2.              Whether the trial Tribunal was right in law and upon the facts to have refused to consider the issue of the 1st respondent’s waiver of his right to apply for the striking out of the petition. And whether the 1st respondent did not in fact and in law waive that right.

3.              Whether in the light of the totality of affidavit evidence adduced as well as the facts borne out from the record of the court, the trial Tribunal was not in error in striking out the petition.

Facts:

1 st appellant and the 1st respondent were candidates at an election conducted on 12th April, 2003 for the Kaltungo/Shongom Federal Constituency seat into the House of Representatives. The 1st respondent, a candidate of the All Nigeria People’s Party (ANPP), the 28th respondent herein was returned elected, having been adjudged to have scored the highest number of valid votes cast. The 1st appellant, a candidate of the People’s Democratic Party (P.D.P.) who had the next highest votes petitioned the Legislative Houses/National Assembly Election Tribunal, challenging the return of the 1st respondent.

In accordance with the provisions of the Electoral Act, 2002, the 1st respondent entered a conditional appearance on 21/5/2003 upon service of the petition on him, and followed up on 2/6/2003 with his reply to the petition. He also filed on 17th June, 2003 a motion seeking an order of the Tribunal to strike out the petition for non-compliance with certain provisions of the Electoral Act 2002, for which reason the Tribunal lacked jurisdiction to entertain the petition. The 1st petitioner filed a counter-affidavit and opposed the motion. The Tribunal took argument of parties and in a considered ruling upheld the objection of the 1st respondent and struck out the petition.

Dissatisfied with the ruling, the appellant appealed to the Court of Appeal.