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Maikudi v. Musa

MUSA MAIKUDI

V

ABDULLAHI MUSA

INEC RESIDENT COMMISSIONER FOR NIGER STATE

RETURNING OFFICER CHACHANGA CONSTITUENCY

PRESIDING OFFICER KOFAR BANUNGME POLLING UNIT

PRESIDING OFFICER - KOFAR DALATU

PRESIDING OFFICER AROMA PRIMARY SCHOOL POLLING UNIT

PRESIDING OFFICER POLICE BARRACKS POLLING UNIT

PRESIDING OFFICER PTT POLLING UNIT KPAGUNGU

COURT OF APPEAL

( ABUJA DIVISION )

GEORGE ADESOLA OGUNTADE, JCA ( Presided )

ZAINAB BULKACHUWA , JCA ( Read the Lead Judgment )

ALBERT GBADEBO ODUYEMI, JCA

CA/A/EP/159/2003

THURSDAY, 13TH MAY, 2004

APPEAL - Brief writing - Bad, faulty, inelegant and defective brief Consideration of by appeal court - Propriety of in the interest of justice

APPEAL - Election petitions - Judgments of Election Tribunals on Appeal against as of right - Section 246(1)(b), 1999 Constitution considered


APPEAL - Findings of fact by trial court - Impropriety of appeal court interfering with correct findings of fact

COURT - Resolution of conflicts in evidence and making specific findings on issues joined by parties - Need for trial court to be fair and just in undertaking

COURT - Trial court - Duty of to evaluate and ascribe probative value to evidence

ELECTION PETITION - Non-compliance with Electoral Law and/or election malpractices and irregularities in conduct of elections Burden of proof of - On whom lies

EVIDENCE - Burden of proof of allegations of non compliance with electoral law, election malpractices and irregularities in conduct of elections - On whom lies

EVIDENCE - Evaluation and ascription of probative value to evidence Duty of trial court to do

EVIDENCE - Resolution of conflicts in evidence and making specific findings on issues joined by parties - Need for trial court to be fair and just in undertaking

FAIR HEARING - Infringement of a party’s right to fair hearing by court Effect

FAIR HEARING - Infringement of right to fair hearing - When occurs

PRACTICE AND PROCEDURE - Address of counsel - Usefulness of to court - Need for court to decide cases based on evidence and not address of counsel

STATUTE - Constitution 1999, section 246(1)(b) - Provision for appeal as of right against judgment of Election Tribunal

Issues:

1.              Whether the non-consideration of counsel’s final address by the tribunal denied the petitioner right to fair hearing.

2.              Whether having regard to the evidence before the trial

Tribunal, the petitioner has proved his allegation of Electoral

malpractices and/or irregularities.

3.              Whether the petitioner/appellant had established his allegation that the 1st respondent was not qualified to contest the election.

Facts:

The appellant as the petitioner filed a petition dated 2/7/03 before the National Assembly, Governorship/Legislative Houses Election Tribunal Minna, Niger State challenging the return of the 1st respondent as the member representing Chanchaga Constituency in the Niger State House of Assembly on the platform of the PDP. The appellant who contested the election on the platform of the PRP and scored 4,824 votes as against the 1 st respondent’s 19,679 votes challenged the said election on the following grounds:-

1.              That the 1st respondent was at the time of the election not qualified to stand for the said election, in that he did not possess school certificate and/or was not educated to school certificate level.

2.              The assertion that the 1st respondent obtained his first school leaving certificate from Giwa Gbada Primary School in 1989, could not be true for by the said date the school either was not in existence or had not started graduating primary six pupils.

3.              That the 1 st respondent does not have an NCE certificate from the Niger State College of education as claimed.

4.              That the 1st respondent did not pay his tax in the 3 years immediately preceding the date of the election as at when due.

5.              That the 1st respondent did not resign from his employment at NAPEP one month before the election having collected his March Salary.

6.              That the 1st respondent was not elected by a majority of lawful votes cast at the election or in the alternative, his election was invalid by reason of corrupt practices, and or noncompliance with the Electoral Act in a manner which substantially affected the outcome of the election.

The Tribunal in a considered judgment dismissed the petition.

Dissatisfied with the judgment, petitioner/appellant appealed to the Court of Appeal.