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ENGR. MUSTAPHA YUNUSA MAIHAJA v. ALHAJI IBRAHIM GAIDAM & ORS

(2017) LPELR-42474(SC)

In The Supreme Court of Nigeria

On Friday, the 2nd day of June, 2017

SC.758/2016


Before Their Lordships

WALTER SAMUEL NKANU ONNOGHEN Justice of The Supreme Court of Nigeria

MUSA DATTIJO MUHAMMAD Justice of The Supreme Court of Nigeria

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Supreme Court of Nigeria

EJEMBI EKO Justice of The Supreme Court of Nigeria

SIDI DAUDA BAGE Justice of The Supreme Court of Nigeria


Between

ENGR. MUSTAPHA YUNUSA MAIHAJA - Appellant(s)

AND

1. ALHAJI IBRAHIM GAIDAM
2. ALL PROGRESSIVE CONGRESS (APC)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) - Respondent(s)


Summary

INTRODUCTION:
This appeal borders on Electoral Matter.

FACTS:
This appeal emanates from the judgment of the Court below, that is the Court of Appeal, Abuja Judicial Division.
The Appellant was the plaintiff in an Originating Summons filed in Suit No. FHC/ABJ/CS/220/2015, ENGR, MUSTAPHA YUNUSA MAIHAJA V. ALHAJI IBRAHIM GAIDAM & 2 ORS dated 19th day of March, 2015 and filed at the Registry of the Federal High Court, Abuja. The suit sought a number of declaratory reliefs and sundry orders including nullification of the nomination of the 1st Respondent as the candidate of the 2nd Respondent in the 2015 Governorship election of Yobe State.

The grouses of the Appellant, from the inception of the political tussle, are summarised thus; that:
i) The 1st Respondent made false information in his Form CF001, Affidavit of Personal Particulars (Exhibit MAIHAJA 1 attached to the Originating Summons) by annexing a primary Leaving Testimonial dated 22nd day of December, 1969 issued by Yunusari Local Education Authority (LEA) of Borno State of Nigeria.
ii) The Appellant also alleged that the 1st Respondent submitted the said Primary School Leaving Testimonial to the 3rd Respondent knowing same to be a forged Certificate contrary to Section 182(1)(J) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and pursuant to Section 31(5) of the Electoral Act 2010 (as amended).
iii) The Appellant also claimed that the 1st Respondent ought to be disqualified from contesting for the office of the Governor of Yobe State on the grounds of false declaration in Form CF001 and for allegedly presenting a forged Certificate to the 3rd Respondent contrary to the provision of Section 182(1)(J) of the Constitution (Supra) and pursuant to Section 31(5) of the Electoral Act 2010 (as amended).
iv) The 1st Respondent was also alleged to have furnished some other documents along with Form CF001 and which documents bear some other dates of birth different from 15th September, 1956 contained in Form CF001 and the birth certificate Exhibit MAIHAJA 13A issued by the National Population Commission to the 1st Respondent.
v. The 1st Respondent was alleged not to be eligible to contest the 11th April, 2015 Governorship election of Yobe State on the ground that by virtue of the combined effects of Sections 180(2)(a), 181(1), 182(1)(b) and 185(1) of the Constitution (Supra) he had been twice elected into the office of the Governor of Yobe State, and.
vi) The Appellant's position is that, being the only other aspirant for the office of Governor of Yobe State in respect of the 11th April, 2015 Governorship election under the platform of the 2nd Respondent, he was entitled to take the place of the 1st Respondent.

The case of the 1st and 2nd Respondents on the Originating Summons as canvassed at the trial stage was that:
i) The Appellant did not submit his forms as required by the Guidelines of the 2nd Respondent and because of the said failure, he could not participate in the screening of the aspirants on 30th of November, 2014.
ii) The Appellant therefore was not an aspirant at the primary election where the 1st Respondent emerged as the winner.
iii) The 1st and 2nd Respondents also state that prior to the election of 11th April 2015, the 1st Respondent had only been elected as the Governor of Yobe State once and that was in the election of April 2011.
iv) It was also the case of 1st and 2nd Respondents that the 1st Respondent was born on the 15th September, 1956 as shown in his birth certificate issued by the National Population Commission (Exhibit A) and the 1st Respondent only noticed the discrepancy in the date and month of his birth wrongly stated in 1st Respondent's National Youth Service Corp Exemption Certificate and in his Voters Card when he read the affidavit in support of the Originating Summons.
v) It was also contended that there was no time the 1st Respondent gave any information that he was born on any other date other than 15th September, 1956 to the National Youth Service Corps and/or the 3rd Respondent and that his School Leaving Testimonial of Primary Education was issued to the 1st Respondent by the relevant authority long after he left the school."

The originating Summons was heard by the trial Court on 21st May, 2015 along with the Notice of Preliminary objection of the 1st & 2nd Respondents and judgment was delivered by the trial Court on the 16 November, 2016 upholding the Preliminary Objection of the 1st & 2nd Respondents and striking out the entire suit of the Appellant for want of jurisdiction.
Aggrieved by the decision of the trial Court, the Appellant filed an appeal at the lower Court which appeal was heard on 31st May, 2016 and judgment delivered on 28th day of July, 2016 as earlier indicated above. The lower Court allowed the appeal in part while it substantially dismissed the appeal of the Appellant. The lower Court after dismissing the Preliminary Objection filed by the 1st and 2nd Respondents to the appeal partially resolved in favour of the Appellant Issue No. 1 on the question of the jurisdiction of the Federal High Court to entertain the Appellant%u2019s Originating Summons and duty of the trial Court to express its opinion or decision on all issues canvassed before it even if the preliminary objection succeeded.
%u200BThe Court of Appeal resolved issues No. 2 and 3 in the appeal in favour of the Respondents and also dismissed the Appeal with costs. But, being dissatisfied with the judgment of the Court of Appeal the Appellant appealed to the Supreme Court.



ISSUES:
The appeal was decided on the following re-formulated issues by the Court:
"1) Whether the lower Court was right to have held that the Appellant was not an aspirant in the 2nd Respondent's primaries dated 4th December, 2014 culminating in this appeal for the purpose of invoking the provisions of Section 87(9) of the Electoral Act (as amended).
2) Whether the lower Court was right in holding that the Appellant has not established the allegation of forged documents and declaration regarding the 1st Respondent's INEC Form CF 001 bordering his certificate and date of birth.
3) Whether the lower Court was right in holding that the 1st Respondent had not been elected into office as Governor of Yobe State more than twice in two previous elections prior to the April 2015 Governorship election."



DECISION/HELD:
In a unanimous decision, the appeal failed and was therefore dismissed. The judgment of the lower Court was affirmed.


Read Full Judgment