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Kabir v. Action Congress

ALH. BADAMASI KABIR

PEOPLES’ DEMOCRATIC PARTY (PDP)

V

ACTION CONGRESS (AC) AND 283 ORS.

COURT OF APPEAL

( KADUNA DIVISION )

MARY PETER-ODILI JCA ( Presided )

JOSEPH TINE TUR JCA (Read the Lead Judgment)

OBANDE F. OGBUINYA JCA

CA/K/EP/NA/35/2008

MONDAY, 18 APRIL 2011

ACTION - Statute-bar - How courts determine whether a matter is statutebarred

APPEAL - Respondent - Role of in an appeal

DOCUMENT - Document tendered before court - Ambiguity therein Against whom resolved

ELECTION PETITION - Computation of time for filing of - When time begins to run for - Whether includes the day election petition was declared and the last day that falls on public holiday

ELECTION PETITION - Nature of vis-a-vis civil proceedings

ELECTORAL MATTERS - ‘The petitioner shall set out the grounds for questioning an election’ - Meaning of

ELECTORAL MATTERS - Election petition - Determination of - Tribunal having recourse to entire fact therein - Propriety thereof

ELECTORAL MATTERS - Electoral malpractice - Onus of proof of On whom lies - Standard of proof therein - On whom lies

EVIDENCE - Document tendered before court - Ambiguity therein Against whom resolved

EVIDENCE - Rejected evidence - Court resorting to use of - Impropriety of

PRACTICE AND PROCEDURE - Respondent - Role of in an appeal

PRACTICE AND PROCEDURE - Statute-bar - How courts determine whether a matter is statute-barred

PRACTICE AND PROCEDURE - Technicalities - Attitude of court thereto

WORDS AND PHRASES - ‘The petitioner shall set out the grounds for questioning an election’ - Meaning of

Issues:

  1. Whether it was right for the tribunal to have distilled and ascertained for itself, the grounds for the petition under the guise of doing substantial justice when no ground was stated therein.
  2. Whether it was right for the tribunal to have relied on or attached probative value to the register of voters for 11 registration areas in the constituency (exhibit P1 (a-v) - P11 ( a-q)) and the depositions in paragraphs 1(1) - (13), 14 -17, 18 , 20, 22, 25-27, 32-34 of the 1st respondent’s additional witness statement on oath (exhibit P40) after properly evaluating and rejecting or discrediting the said register and witness statement.
  3. Whether it was right for the tribunal to have admitted in evidence and rely on the depositions in paragraphs 1(1) - (13), 14  - 17, 18, 20, 22, 25 - 27, 32-34 of exhibit P40 (the 1st petitioner’s additional witness statement on oath) having regard of the state of the pleadings and the tribunal’s earlier refusal of the petitioner’s application to amend their petition.
  4. Whether there is any admissible and probative evidence in support of the finding of the tribunal that non-accreditation or proper accreditation affected not less than 70 polling units in the eleven registration areas complained of by the 1st and 2nd petitioners regard being had of the fact that no voters, electoral officials, polling or collation agents testified in respect of the election.
  5. Whether the nullification of the election of the 1st appellant by the tribunal can be justified regard being had of the admissible and probative evidence before the tribunal and its finding that the unlawful votes credited to the parties could not be ascertained.
  6. Whether having regard to the provision of section 141 of the Electoral Act, 2006, the petition as filed was not incompetent and the lower tribunal disrobed of the jurisdiction to entertain same.

Facts:

At the conclusion of elections into the House of Representatives, Katsina Central Federal Constituency on 21 April 2007, the Independent National Electoral Commission (INEC) returned the 1st appellant (who contested on the platform of the Peoples Democratic Party) as the winner of the election. Dissatisfied with the outcome of the elections, the 1st respondent who contested on the platform of the Action Congress, filed a petition before the election tribunal, seeking a nullification of the election and an order directing the Independent National Electoral Commission to conduct fresh election throughout Katsina Central Federal Constituency.

The trial tribunal found merit in the petition, and annulled the elections held on 21 April 2007. It also ordered fresh elections to be conducted within 60  days of the judgment.

Aggrieved by the results, the appellants filed a joint notice of appeal before the Court of Appeal.