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ABUBAKAR SARKI DAHIRU v. HON. (DR.) JOSEPH HARUNA KIGBU & ORS

(2019) LPELR-48787(CA)

In The Court of Appeal of Nigeria

On Friday, the 1st day of November, 2019

CA/MK/EP/HR/34/2019


Before Their Lordships

JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria

ONYEKACHI AJA OTISI Justice of The Court of Appeal of Nigeria

JOSEPH EYO EKANEM Justice of The Court of Appeal of Nigeria


Between

ABUBAKAR SARKI DAHIRU - Appellant(s)

AND

1. HON. (DR.) JOSEPH HARUNA KIGBU
2. PEOPLES DEMOCRATIC PARTY (PDP)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
4. ALL PROGRESSIVES CONGRESS (APC) - Respondent(s)


Other Citations

; ;


Summary

INTRODUCTION:
This appeal borders on Election Petition.
FACTS:
This appeal is against the judgment of the National and State Houses of Assembly Election Petition Tribunal sitting in Lafia (the tribunal) delivered on 12/9/2019 in Petition No. EPT/NSHA/NS/REP/07/2019. 

???The facts of the case which form the background of this appeal, in summary, are that on 23/2/2019, the 3rd respondent conducted elections throughout Nigeria for seats in the National Assembly. In Nasarawa State, the appellant contested for the seat of Member of the House of Representatives, Lafia/Obi Federal Constituency on the platform of the 4th respondent. He contested against 11 other candidates sponsored by other political parties including the 1st respondent who was sponsored by the 2nd respondent. At the end of the exercise, the 3rd respondent declared and returned the appellant as the winner, he having scored 61, 992 votes. The 1st respondent was the runner - up with 52, 392 votes.

Dissatisfied by the return, the 1st and 2nd respondents filed a petition questioning the election and seeking the following reliefs:
"1. That the 2nd Respondent, namely, ABUBAKAR SARKI DAHIRU OF ALL PROGRESSIVES CONGRESS (APC), the 3rd Respondent herein was not duly elected and/or returned.
2.AN ORDER nullifying results of election in respect of Polling Units affected by over - voting, inflation of votes and/or non - compliance with INEC Guidelines with respect to use of Card Reader.
3. A MANDATORY ORDER restoring results of election in 24 Polling Units in Agyaragu Tofa Ward and all other Polling Units whereby results were unlawfully or inappropriately excluded by the 1st Respondent as articulated in the Petition and thereupon adding up the votes scored to the overall result of the election.
4. That the Petitioners, particularly the 1st Petitioner be declared as duly elected or returned as a person with majority of lawful or valid votes cast at the election having scored a total of 64, 364 votes as against the 2nd Respondent who scored overall votes of 45, 892 thereby beating the latter with a wide margin of 18, 472 votes.
5. AN ORDER directing the 1st Respondent to withdraw the Certificate of Return issued to the 2nd Respondent.
6. A CONSEQUENTIAL ORDER directing the 1st Respondent to issue Certificate of Return to the 1st Petitioner.

IN THE ALTERNATIVE
1. AN ORDER declaring the election in Lafia/Obi Federal Constituency held on 23rd February, 2019 as inconclusive on the ground that the margin of votes between the 2nd and 3rd Respondents and the Petitioners as declared by the 1st Respondent is lower than the number of registered voters and/or votes in areas where election results were cancelled and/or excluded.
2. AN ORDER directing the 1st Respondent to conduct a re - run election in respect of all affected Polling Units.

The ground of the petition was that "The said 2nd Respondent was not duly elected by majority of lawful or valid votes cast at the election".

After exchange of pleadings and the holding of pre - hearing session with the issuance of pre - hearing session report, the petition proceeded to hearing. The 1st and 2nd respondents (as petitioners) called 28 witnesses and tendered many exhibits. The 3rd respondent called 1 witness and tendered some exhibits. The appellant (as 2nd respondent) called 3 witnesses and tendered documents. The 4th respondent did not call any witness. The parties filed and exchanged addresses which they adopted before the tribunal.

In its judgment, the tribunal entered judgment in favour of the 1st and 2nd respondents as claimed. Aggrieved by the decision, the appellant appealed to the Court of Appeal.

ISSUES:
The Court determined the appeal on the following issues:
1. Was the tribunal right in assuming jurisdiction to hear the petition in the light of Paragraph 4(1)(c) of the 1st Schedule to the Electoral Act, 2010 (as amended) and also proceeding to deliver judgment in the absence of one member of the tribunal?
2. Was the tribunal right in holding that the 1st and 2nd respondents had established their case and therefore granting their reliefs?
3. Was the tribunal right in granting the alternative reliefs after granting the principal reliefs?

DECISION/HELD:
In the final analysis, the Court in a unanimous decision allowed the appeal.


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