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Khalil v. Yar’adua

ENGINEER NURA KHALIL

V

ALHAJI UMARU MUSA YAR’ADUA & & ORS

COURT OF APPEAL

( KADUNA DIVISION )

ALOMA MARIAM MUKHTAR, JCA ( Presided )

IBRAHIM TANKO MUHAMMAD, JCA (Read the Lead Judgment)

OLUDADE OLADAPO OBADINA, JCA

ISTIFANUS THOMAS, JCA

IKECHI FRANCIS OGBUAGU, JCA

CA/K/EP/GOV/5/2003

WEDNESDAY, 30TH JULY, 2003

APPEAL - Ground of appeal - Incompetent ground of appeal - How treated

APPEAL - Ground of appeal - Where not covered by issue for determination - Effect of

APPEAL - Grounds of appeal - Importance of and effect of successful challenge of

APPEAL - Grounds of appeal - Nature and contents of - Need for particulars in support of

APPEAL - Grounds of appeal - When classified as grounds of mixed law and fact


APPEAL - Issues for determination - Formulation of more than one issue from one ground of appeal - Effect of

APPEAL - Notice of appeal - Invalid notice - Power of appeal court to strike out

APPEAL - Notice of appeal - When mandatory to seek and obtain leave of court before filing

APPEAL - Notice of appeal - Where contains no valid ground of appeal -  Effect of

APPEAL - Particulars - Relationship of to an appeal

APPEAL - Reply brief - Where filed in an election petition out of 3 days after service of respondent’s brief - Effect of

COURT - Election tribunal - Duty on to hear and determine objection challenging the regularity or competence of an election petition first

COURT - Election tribunal - Party not properly before - Effect

ELECTION PETITION - Election tribunal - Duty on to hear and determine objection challenging the regularity or competence of an election petition first

ELECTION PETITION - Election tribunal - Party not properly before Effect

ELECTION PETITION - Electoral commissioner - Resident and Resident Electoral Officer - Difference between

ELECTION PETITION - Objection challenging the regularity or competence of - Duty on election tribunal to hear and determine

first

ELECTION PETITION - Particulars pursuant to paragraph 4(1) First Schedule to Electoral Act, 2002 - Failure to supply - Effect of

ELECTION PETITION - Parties to - Amalgamation of persons to one juristic personality without leave of court - Effect

ELECTION PETITION - Reply brief filed therein - Where filed out of 3 days after service of respondents brief - Effect of

ELECTION PETITION - Required contents of

ELECTION PETITION - Statutory provisions to be complied with in presenting election petition/appeal - Electoral Act, 2002; Court of Appeal Rules, Practice Direction pursuant to section 285, 1999 Constitution and section 137 of Electoral Act, 2002 , referred to

EVIDENCE - Admission - Admitted facts - Effect of

PRACTICE AND PROCEDURE - Rules of court - Compliance with Mandatoriness of

STATUTE - Electoral Act, 2002 - Effect of amalgamation of persons to one juristic personality without leave of court

STATUTE - Electoral Act, 2002, Court of Appeal Rules, Practice Direction pursuant to section 285, 1999 Constitution and section 137  Electoral Act, 2002 - Need to comply with in presentation of election petition/appeal

WORDS AND PHRASES - ‘Resident electoral commissioner’ and

‘resident electoral officer’ - Difference between

Issues:

1.              Whether the Tribunal was not wrong in admitting inadmissible evidence, excluding admissible evidence and failing to make necessary or adequate findings which resulted in perverse conclusions.

2.              Whether the lower Tribunal was not wrong in holding that the petition was rendered incurably defective not being in substantial compliance with the provisions of the Electoral Act which left it without any power or discretion in respect thereof other than to strike out or dismiss the entire petition.

3.              Whether the 1st respondent’s motion on notice dated 27th May, 2003 praying that the petition of 20th May be struck out or dismissed by the Katsina Governorship Election Tribunal was not incompetent before the Tribunal, which rendered all proceedings connected therewith equally incompetent.

4.              Whether the Tribunal members were not rendered incompetent

to hear the petition and any issues connected therewith on ground of failure to observe the principle of fair hearing as regard  their conduct and utterances during their inaugural sitting and as regard their conduct of the proceedings as well as decisions made in excess of jurisdiction.

Facts:

This appeal emanated from the National Assembly/Governorship and Legislative House Election Tribunal for Katsina State. The petitioner/ appellant was a candidate sponsored by All Nigeria Peoples Party (ANPP) at the Katsina State Governorship election conducted on the 19th day of April, 2003. The 1st respondent was fielded by the Peoples Democratic Party (PDP) to contest for the same office. The latter was declared the winner of the election. The appellant, aggrieved by the declaration, filed a petition at the Tribunal challenging the results. The electoral officers were also sued as co-respondents. The appellant prayed the Tribunal to declare him as winner with the highest number of required votes or in the alternative for the nullification of the results in the whole or parts of Katsina State where the elections were voided for non-compliance with the law. The 1st respondent entered a conditional appearance on 23rd May, 2003. 2nd to 8th respondents entered conditional appearance on 26/5/2003. On 27th May, 2003 , 1st respondent filed a reply which contained a preliminary objection and a motion challenging the competence of the petition. On 2nd June, 2003 , the petitioner filed a reply to the reply of the 1st respondent. On the same date also, 2nd to 8th respondents filed a reply in which they raised objection to the petition. A notice of objection against the competence of the 1st respondent’s appearance/reply/motion on notice dated 28/5/03 was filed by the petitioner on the same 2/6/03.

The 1st respondent’s preliminary objection was taken first. The tribunal upheld the objection and dismissed the petition on the grounds of non-compliance with the conditions precedent to the filing of an election petition. Dissatisfied, the petitioner appealed to the Court of Appeal.