IN THE COURT OF APPEAL OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
ON FRIDAY, THE 20TH DAY OF OCTOBER, 2023
BEFORE THEIR LORDSHIPS:
CHIOMA E. NWOSU-IHEME, Ph.D JUSTICE, COURT OF APPEAL
MUHAMMAD IBRAHIM SIRAJO JUSTICE, COURT OF APPEAL OLABODE A ADEGBEHINGBE JUSTICE, COURT OF APPEAL
APPEAL NO. CA/G/EP/HR/BR/01/2023
BETWEEN:
AND
COMMISSION (INEC)
JUDGMENT
(DELIVERED BY MUHAMMAD IBRAHIM SIRAJO, JCA)
Following the conclusion of the National Assembly election conducted on 25/02/2023, the electoral umpire, the Independent National Electoral Commission (the 3rd Respondent), declared Midala Usman Balami (the 2nd Respondent) of the Peoples Democratic Party (the 1st Respondent), the winner of the election for Askira-Uba/Hawul Federal Constituency of Borno State and returned him elected, having polled 28,203 votes to beat his closest rival, Asarya Tarpaya (the 2nd Appellant) of the All Progressives Congress (the 1st Appellant), who scored 25,383 votes.
The 1st and 2nd Appellants, as Petitioners, challenged the declaration and return of the 2nd Respondent before the National and State Assembly Election Petition Tribunal, Borno State (the trial Tribunal), by filing a Petition, predicated on three grounds, thus:
The Petitioners/Appellants pleaded facts in support of their petition and sought for reliefs before the trial Tribunal, as follows:
IN ALTERNATIVE
All the Respondents filed separate Replies to the Petition, and after a full-dress trial, the trial Tribunal dismissed the petition in a judgment delivered on 25/08/2023.
The Appellants approached this Court to ventilate their grievances with the judgment of the Tribunal by filing a Notice of Appeal on 12/09/2023, anchored on 15 grounds of appeal.
Briefs of Argument were filed and exchanged by the parties. Appellants’ Brief of Argument was filed on 16/09/2023 and settled by Yusuf Ali, SAN, leading eleven (11) other counsel. Tale Alabi, Esq, with nine (9) other counsel, settled the 1st Respondent’s Brief of Argument filed on 23/09/2023. On that same date, the 2nd Respondent’s Brief of Argument, prepared by Gbenga A. Ashaolu, Esq, leading nine (9) other counsel, was filed. Earlier on 21/09/2023, M.S. Diri, SAN, settles and filed the 3rd Respondent’s Brief of Argument. He leads six other counsel. Appellants filed Reply Briefs to the Briefs of Argument of all the three Respondents.
In their Brief, the Appellants formulated the following issues for the determination of the appeal:
Issues for determination formulated by the 1st Respondent reads:
For the 2nd Respondent, the following issues were presented for determination:
Finally, the 3rd Respondent couched its own issues for determination, thus:
At the hearing of the appeal on 12/10/2023, counsel for the parties adopted the arguments on the issues variously canvassed by them in their respective Briefs. Upon a careful reading of all the issues formulated by the parties in this appeal, I have decided to adopt the four issues formulated by the Appellants in the determination of the appeal. While issues 1 and 4 would be treated separately as independent issues, issues 2 and 3 would be considered together. I will consider the relevant arguments of parties as I proceed to resolve the issues. This approach will save precious judicial time and space. Before going into the merits of the issues, however, I will determine the objection of the 2nd Respondent to the competence of the extant Notice of Appeal filed on 12/09/2023. The objection was brought by way of motion on notice filed on 11/10/2023. The 2nd Respondent’s contention is that he was never served with any process in this appeal. It is on record that the 2nd Respondent has joined issues with the Appellant by filing his Brief of Argument in this appeal within time. This shows that the 2nd Respondent is seised with the Notice of Appeal and the Appellant’s Brief of Argument. How he became aware is now immaterial. What matters is that the 2nd Respondent has shown by his conduct either that he was served with the Notice of Appeal personally or he became aware of it through a 3rd party. See Akande vs. Jegede (2022) LPELR-58911 (SC) @ 42-43. Having been aware of these processes and having taken positive steps by filing all relevant processes in opposition to the appeal, the 2nd Respondent cannot at this stage ask the Court to strike out the Notice of Appeal on the ground that he has not been served with same. The application of the 2nd Respondent has no merit and is dismissed accordingly.
RESOLUTION OF ISSUE 1
I will commence the resolution of this issue by taking a short detour into its background facts as gleaned from Exhibits A1, A2, B1, B2 and C1-C5. The 2nd Respondent had, in a pre-election suit, challenged the primary election of his political party, the 1st Respondent, held on 22/05/2022 for the nomination of candidate for the House of Representatives election for Askira-Uba/Hawul Federal Constituency before the Federal High Court, Maiduguri. The Federal High Court set aside the purported primary election that produced one Muktari Adamu Yarima as the candidate of the PDP and ordered the party to conduct fresh primary election within 14 days of the judgment. On appeal by Muktari Adamu Yarima, the Court of Appeal as well as the Supreme Court affirmed the judgment of the Federal High Court. The judgment of the Supreme on the matter was delivered on 06/01/2023. The notice of fresh primary election that produced the 2nd Respondent as the candidate of the 1st Respondent was given to INEC by the 1st Respondent vide a letter dated 17/02/2023, more than 14 days after the decision of the Supreme Court delivered on 06/01/2023.
Learned senior counsel for the Appellant, Yusuf Ali, SAN, submitted that the 1st Respondent has disobeyed the order of the Court by conducting the primary election outside the 14 days period, thereby rendering the said primary election, which produced the 2nd Respondent as candidate of the 1st Respondent, invalid. Learned senior counsel faulted the judgment of the trial Tribunal for declining jurisdiction to inquire into the nomination and qualification of the 2nd Respondent to contest the election, in the face of defiance of the order of competent Court, which the trial Tribunal owe a duty to enforce, citing Elbarakat Global Resource Ltd vs. Governor, Sokoto State & Ors (2020) LPELR-50916 and section 287 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). He argued that even though the trial Tribunal has no power to inquire into primary election conducted by a political party, it has the jurisdiction to inquire into and ensure the enforcement of Court ordered primary election. The Court was urged to resolve this issue in favour of the Appellant and hold that the 1st Respondent has no candidate in the election in the absence of valid primary election, relying on Mcfoy vs. UAC (1961) 3 ALL ER 169 @ 172; APC vs. Marafa (Unreported) SC. 377?2019; Odey vs. APC & Ors (2023) LPELR-60044 (SC).
Tale Alabi, Esq, submitted on behalf of the 2nd Respondent that an Election Tribunal lacks the power to investigate matters which took place before the conduct of election, particularly the validity of the nomination of candidates which is a pre-election matter. The Court was referred to the evidence of RW1, the Chairman of the 1st Respondent who confirmed the nomination of the 2nd Respondent as the candidate of the 1st Respondent. Counsel further submitted that a political party lacks the power to challenge the activities of another party or the actions of INEC in relation to another political party. Reliance was placed on PDP vs. INEC & Ors (2023) LPELR-60457 (SC).
The argument of the 2nd Respondent on this issue is contained under his issue 2. Learned counsel for the 2nd Respondent, Gbenga Ashaolu, Esq, contended that the 2nd Respondent is qualified to contest the election having proved by credible evidence that he Is a member of the 1st Respondent and was duly nominated by the 1st Respondent. to contest the election. H e posited that the letter by the National Chairman of the 1st Respondent to INEC, submitting the name of the 2nd Respondent as its candidate for the election in question, has not been discredited in any way., citing in aid the case of INEC vs. Jegede & Ors (2021) LPELR-54938 (CA). Counsel also restated the law that no political party can challenge the nomination of the candidate of another political party, relying on PDP vs. INEC & Ors (supra).
At page 12 of the 3rd Respondent’s Brief, senior counsel, M.S. Diri, SAN, responded to this issue that the Petitioners are meddlesome interlopers as they lack the locus standi to challenge the nomination of the 2nd Respondent by the 1st Respondent, not being members of the same political parties. The 3rd Respondent submitted that the name of the 2nd Respondent was submitted to it as the candidate of the 1st Respondent and it acted on the submission accordingly. Senior counsel contended that, not being card carrying members of the 1st Respondent and having not participated in the primary election that produced the 2nd Respondents, the Appellants lack the locus standi to challenge his nomination.
On the basis of the summarized facts behind this issue, the trial Tribunal declined jurisdiction to entertain the Appellants’ complaint on the nomination of the 2nd Respondent on the ground that it is a pre-election matter outside the scope of the powers of Election Petition Tribunal. The trial Tribunal held in its judgment that it cannot inquire into the validity of the process that produced the candidate once there is proof that the candidate was nominated by his political party. Election Petition Tribunal is a Tribunal statutorily created and conferred with special jurisdiction. Section 285 (1) of the Constitution provides:
(1) There shall be established for each State of the Federation and the Federal Capital Territory, one or more election tribunals to be known as the National and State Houses of Assembly Election Tribunals which shall, to the exclusion of any Court or Tribunal, have original jurisdiction to hear and determine petitions as to whether-
(a) any person has been validly elected as a member of the National Assembly; or
(b) any person has been validly elected as member of the House of Assembly of a State
It can be glaringly seen from the above-quoted constitutional provisions that the jurisdiction of the trial Tribunal is clearly explicit, unambiguous and cannot be expanded by any rule of interpretation. See Dankwambo vs. Abubakar & Ors (2015) LPELR-25716 (SC). The jurisdiction of the Tribunal is limited to determining whether any person has been validly elected as a member of the National Assembly or House of Assembly of a State. The Constitution did not confer on the trial Tribunal the jurisdiction to determine whether any candidate has been validly nominated by his political party vide a properly conducted primary election. The power of the trial Tribunal concerning any matter that occur before the actual conduct of election is completely ousted. It is only the Federal High Court that has exclusive original jurisdiction over dispute related to or connected with election but which occur before the actual conduct of the election. It makes no difference whether the process of nomination of candidate, i.e., the primary election, is court-ordered primary. Once a dispute arises before the actual conduct of election, it becomes a pre-election matter that can only be ventilated before the regular Court, not before an Election Petition Tribunal. I am not unmindful of the law that qualification of candidate to contest election is both pre-election and post-election matter, but issues bordering on conduct of primary election cannot be dressed or disguised in the garb of qualification with the sole aim of conferring jurisdiction on Election Petition Tribunal. That was precisely what the Appellants attempted to do before the trial Tribunal and before this Court. The jurisdiction of Election Tribunal is sacrosanct and strictly limited. The Appellants appeared to have chosen a wrong venue for the ventilation of their grievances with the fresh primaries that produced the 2nd Respondent as the candidate of the 1st Respondent. The Appellants actually found themselves in a tight corner, for even if they had approached the regular Court with their complaint, they would still have been shut out by the provision of section 285 (14) of the Constitution and section 84 (14) of the Electoral Act, 2022, as they are neither members of the 1st Respondent nor were they aspirants in the 1st Respondent’s primary election for the selection/election of 1st Respondent’s candidate for election to the House of Representatives for Askira-Uba/Hawul Federal Constituency. The finding of the trial Tribunal that in view of the abundance of credible evidence of nomination of the 2nd Respondent by the 1st Respondent, it lacks jurisdiction to inquire into the validity or otherwise of the primary election leading to the said nomination, is supported by the extant law and therefore cannot be faulted. I endorse that finding and consequently resolve the 1st issue against the Appellants.
ISSUES 2 & 3
These two issues concern the question of proof, hence my decision to treat them together. Here, counsel for the Appellants is questioning the decision of the trial Tribunal in refusing to declare the election inconclusive in view of the non-holding and cancellation of election in eleven (11) wards (polling units?) of the Askira-Uba/Hawul Federal Constituency of Borno State despite the admission of INEC, the 3rd Respondent. It was argued for the Appellants that there was evidence in support of the pleading that the total number of registered voters in the 11 polling units in which election was not held and/or cancelled is 5791, while the margin of lead in favour of the 2nd Respondent is 2,820 votes, a fact which ought to have necessitated the declaration of the election as inconclusive with an order for a rerun election in the affected polling units. Learned senior counsel posited that the trial Tribunal erred in law not to have declared the election inconclusive when it is obvious from the evidence on record that the margin of lead principle ought to have applied. Counsel referred the Court to the Forms EC40G’s tendered in evidence which shows the number of registered voters and collected PVC’s in each of the 11 polling units were election was not held or cancelled, and submitted that the margin of lead between the 2nd Respondent and the 2nd Appellant is less than the total number of registered voters and PVC’s collected. Counsel cited the cases of Osakwe vs. Obiefule & Ors (2019) LPELR-4891 (CA); PDP vs. Okogbuo & Ors (2019) LPELR-48989) (CA); Effiom vs. Bassey & Ors (2022) LPELR-58652(CA); Adeleke & Anor vs. INEC & Ors (2020) 11 NWLR (Pt.1734) 17 @ 43-44 and accused the trial Tribunal of derailing from these authorities by inventing the principle that the number of collected PVC’s must be pleaded. It was argued that the voters in the affected polling units are entitled to the right to vote and be voted for. He also accused the trial Tribunal of failure to properly evaluate the evidence led and ascribe probative value to same. After copious references to the evidence led on the number of registered voters in the 11 poling units that forms the fulcrum of the Petitioners’ case at the trial Tribunal, learned senior counsel for the Appellants submitted that had the Tribunal properly evaluated the evidence, it would have come to the conclusion that in view of the disenfranchisement of 5,761 voters, a rerun election in the affected polling units is inevitable. The Court was urged to resolve these issues in favour of the Appellants.
On his part, counsel to the 1st Respondent argued that contrary to the submission of the Appellants with respect to the margin of lead principle, the trial Tribunal’s decision was in line with an already existing statutory provision of the law as encapsulated by sections 24 (2) (3) (5) and section 47 (3) of the Electoral Act, 2022. He submitted that the Appellants have failed to plead and tender summary of PVC’s collected as well as the BVAS report, and that only 5 Forms EC40G were tendered to prove cancellation of election in 10 polling units and non-holding of election in one unit. That the lacuna in proof of the petition renders the judgment challenged incontestable as the Petitioners failed to proof that the total number of PVC’s collected is more than the margin of lead in the result declared by the 3rd Respondent. The 1st Respondent maintained that the trial Tribunal has properly weighed and considered all the evidence adduced in arriving at its judgment.
The argument of the 2nd and 3rd Respondents on these two issues are not dissimilar to the argument canvassed by the 1st Respondent, save for semantics and style of presentation. They also accused the Appellants of dumping documents on the Tribunal without speaking to them and explaining their purport. Reliance was placed on Tumbido vs. INEC & Ors (2023) LPELR-60004 (SC); Abia vs. INEC & Ors (2019) LPELR-48951. It was contended that the Tribunal fully considered, evaluated and properly appraised all the testimonies, exhibits and arguments of all the parties before arriving at its decision.
The grouse of the Appellants on issue 2 has its root in paragraph 28 (c) of the Petition, under ‘Grounds for challenging the election’ couched thus:
The 2nd Respondent was not duly elected by majority of lawful votes cast at the election as the number of voters in the 11 registered Polling Booths/Units where elections were not conducted or cancelled is greater than the number of purported votes (margin) between the 2nd Petitioner and the 2nd Respondent.
The Petitioners pleaded in paragraphs 58-65 of the Petition that election did not hold in one polling unit of Harang 1 in Kwajafa Ward of Hawul Local Government while election, was cancelled in 10 polling units across the two Local Governments that made up the Akira-Uba/Hawul Federal Constituency due to BVAS malfunction, BVAS broken/destruction and disruption of election. Petitioners pleaded the total number of registered voters in the affected 11 polling units as 6,220, which is higher than the margin of lead of 2,820 votes in the result declared by the 3rd Respondent. In its own pleading, the 3rd Respondent, the umpire that conducted the election, admitted in its Reply to the Petition that indeed election did not hold in one (1) polling unit, to wit; Moram polling unit in Kwaya Bura Ward of Hawul Local Government because there were no registered voters in the unit. The 3rd Respondent also admitted that election was cancelled in only five (5) polling units and not 10, as follows: Dauda Agadi I polling unit, Uba Ward with 538 registered voters; Dauda Agadi II, Uba Ward with 413 registered voters; Bakin Kasuwa Unit 015, Chul/Rumuirgo Ward with 608 registered voters; Malang unit of Sakwa Ward and Harang 1 unit, Kwajafa Ward with 519 registered voters.
In the course of trial, and in an attempt to prove cancellation and non-holding of election, the Appellant tendered from the Bar 3 Forms EC40G for 3 Wards in Askira-Uba Local Government and 4 Forms EC40G from 4 Wards of Hawul Local Government and same were admitted and marked as Exhibits Z1, Z2, Z3 and AA1, AA2, AA3, AA4 respectively. From the Record of Appeal, PW1, Daniel Musa Malang, the Local Government Collation Agent of the Appellants, whose adopted deposition is contained at pages 42-46 thereof, gave evidence with respect to Exhibits A1-A3 and Z1-Z4, the Forms EC40G for seven Wards of the Constituency. He testified that while the 2nd Respondent scored 28,203 votes, the 2nd Appellant scored 25,383 votes and that the difference in the scores of the two leading candidates is 2,820 votes. He testified at paragraphs 18 and 19 of his evidence, copied at pages 44-45 of the Record that the number of registered voters in the 7 polling booths where election either did not hold or was cancelled in Hawul Local Government is 4,235. Just as there was no pleading on the number of permanent voters’ card that were collected in the affected polling units, PW1 also did not testify on the number of PVC’s collected in the affected 7 polling units. He only gave evidence on the number of registered voters. The second witness that testified on cancellation of election is PW2, the Returning Officer of the 1st Appellant in the election, whose adopted witness deposition can be found at pages 36-41 of the Record. He testified that election was cancelled in 4 polling units of Askira-Uba Local Government with 1,985 total registered voters. This witness, like PW1, did not tell the trial Tribunal the number of PVC’s that were collected from these 4 cancelled polling units. PW3, the 2nd Appellant, confirmed under cross-examination by G.A. Ashaolu that the Appellants had Agents in all the 11 affected polling units and that he does not know the total number of PVC’s collected at the 11 polling units. PW3 also did not testify with respect to the number of PVC’s collected.
Despite the fact that none of the witnesses of the Appellants attempted to tie each of the Exhibits Z1-Z3 and AA1-AA4 to specific polling units, the trial Tribunal, in compliance with the dictates of section 137 of the Electoral Act, made conscious effort to peruse the said Exhibits and arrived at the conclusion that the Appellants have established a case of cancellation and non-holding of election in some of the affected polling units, without showing how the cancellation substantially affected the result of the election.
Now, section 24 of the Electoral Act provides instances when election may be cancelled or postponed and a date appointed for the holding of the cancelled or postponed election. However, where the result of the election will not be affected by voting in the areas cancelled, a declaration of result and return shall be made. The question now is, how does the Independent National Electoral Commission determine how and when the result of an election will or will not be substantially affected by a fresh ballot in polling units were election either did not hold or were cancelled? The answer is the “margin of lead” principle, as provided for in paragraph 62 of the Regulations and Guidelines for the Conduct of Elections, 2022, made by the 3rd Respondent. it states:
Where the margin of lead between the two leading candidates in an election is not in excess of the total number of voters who collected their permanent Voters Cards (PVCs) in polling Units where election are postponed, voided or not held in line with section 24 (2 & 3) 47 (3) and 51 (2) of the Electoral Act 2022, the Returning Officer shall decline to make a return for the constituency until polls have been conducted in the affected polling Units and the results collated into the relevant forms for declaration and Return. This is the Margin of Lead principle and shall apply wherever necessary in making returns for all elections in accordance with these Regulations and GuideLines.
After explaining what the margin of lead principle means, the Regulations and Guidelines proceeded to make provision for practical application of the margin of lead principle in paragraph 75 thereof, as follows:
Where the margin of Lead between the two leading candidates is not in excess of the total number of collected PVCs of the polling Units) where election was not held or was cancelled in line with Section 24, 47 and 51 of the Electoral Act, the Returning Officer shall decline to make a return until polls have been conducted in the affected polling units and the results incorporated into a new form EC8D(I) and subsequently recorded into Form EC8E(I) for Declaration and Return.
The net result of the above provisions of the Regulations and Guidelines is that where the difference in the votes scored by the two leading candidates is in excess of the total number of collected PVC’s in the cancelled polling units or units where election did not hold, the result of the election shall be declared and a return made without the necessity of conducting fresh election in the affected polling units. It is important to note that the Regulations and Guidelines for the Conduct of Elections, 2022, has introduced a new legal regime in Nigeria’s electoral jurisprudence in the determination of the margin of lead principle. The determining factor now is the total number of PVC’s collected, not the total number of registered voters, as was hitherto the case. This is the finest point that was missing in the Appellants quest to upturn the declaration and return made by the 3rd Respondent. The Appellants neither pleaded nor proved the total number of collected PVC’s in the areas they alleged election was either cancelled or did not hold. They wrongly built their case on the number of registered voters, which was the old legal regime, and in the process failed to make a case that the election was inconclusive. In the result, I resolve issue 2 against the Appellants. With the resolution of issue 2 the way I did, it follows that the trial Tribunal was right in holding that the Appellants have failed to rebut the correctness of the election result that was declared having failed to show that the cancellation and non-holding of election in 11 polling units has substantially affected the declared result as to warrant the conduct of fresh election in the affected units. Consequently, issue 3 is also resolved against the Appellants.
ISSUE 4
Whether the trial Tribunal was right when without invitation from any of the parties raised the issue of substantiality of the conduct of election and did not afford the appellants the opportunity to address on the point but went ahead to use the issue so raised to determine the petition against the appellants contrary to the rules of Natural Justice and fair hearing.
I have read the argument of the Appellant on this issue and the response by the Respondents. Without much ado, I will go straight into the merit of the issue.
The function of a Court in the adjudication process does not extend to raising new issue of law or fact on its own motion and deciding such new issue without calling on the parties to address it thereon. Doing so will tantamount to the Court descending into the arena of dispute by making a case for one of the parties at the detriment of the other, which will lead to miscarriage of justice. Timely warnings against such unwholesome practices have been given by the Apex Court in many decisions, such as Mojekwu vs. Iwuchukwu (2004) LPELR-1903 (SC). In the case of Stirling Civil Engineering (Nig.) Ltd vs. Yahaya (2005) LPELR-3118 (SC), the Supreme Court, per Niki Tobi, JSC, stated the law at pages 32-33 of the Report, thusly:
"In our adversarial system of adjudication, Courts should be reluctant or loath to raise issues suo motu. This is because the litigation is not theirs but that of the parties. If a Court raises an issue suo motu it has removed itself from its exalted position to flirt with the parties and in the course get itself soiled in the litigation. This does not mean that a Court of law is totally inhibited from raising issues suo motu. It can and in relevant circumstances. For instance, a Court of law can raise issue suo motu, if it is in the interest of justice to do so. Where the issue raised will determine the fortunes of the case one way or the other, a Court of law is entitled to raise it. There could be a situation where the case cannot be determined one way or the other without resolving the issue. In such a situation, a Court is competent to raise it to enable it determine the case. Though Court has the jurisdiction to raise an issue suo motu, it has not the jurisdiction to resolve the issue suo motu. The Court must give an opportunity to the parties to react to the issue by way of address. On no account should a Court of law raise an issue suo motu and resolve it suo motu. That is unjust and a party aggrieved has the right to complain in the way the appellant has complained in this Court. The case law is in great proliferation. Let us take a few cases. In Chief Oje v. Chief Babalola (1991) 4 NWLR (Pt. 185) 267, this Court held that on no account should a Court raise a point suo motu, no matter how clear it may appear to be, and proceed to resolve it one way or the other without hearing the parties."
The takeaway from the above postulation of the Apex Court is that a Court must never raise an issue suo motu and base its decision on the said issue without inviting the parties in the litigation to address it on the point. After all, the litigation does not belong to the Court, it belongs to the parties, who shall be at liberty to nominate the issues for determination by the Court. Where the Court however considers that an issue not raised by the parties is of paramount importance to the effectual determination of the controversy before it, the input or views of the parties on the issue must be sought before a decision can be rightfully based on it. Where that is not done, the party adversely affected by the decision founded on the issue raised suo motu by the Court can find shelter under the fair hearing principle and have the decision set aside on ground of nullity for denying him a fair hearing. See Dairo vs. Union Bank of Nigeria Plc (2007) LPELR-913 (SC).
The question in the instant appeal is whether the issue of substantiality of the conduct of election was raised suo motu by the trial Tribunal and resolved against the Appellant without inviting parties to address the Tribunal before its resolution. In the 3rd ground of the Petition, the Petitioners raised the issue of margin of lead in the scores of the two leading candidates vis-à-vis the total number of registered voters in the polling units where election did not hold or was cancelled. That issue cannot be resolved without considering the substantiality of the effect of the non-holding or cancellation of the election in some polling units on the overall result of the election. Furthermore, the Petitioners alleged non-compliance with the provision of the Electoral Act in ground 2 of the Petition. This is a specie of allegation that cannot be effectually determined without linking it to the principle of substantiality, because it is the law that for a non-compliance to affect the result of an election, the non-compliance must be substantial and must have substantially affected the result of the election. Therefore, allegation of non-compliance with the Electoral Act connotes the application of the principle of ‘double substantial’ as encapsulated in section 135 of the Electoral Act, 2022. Substantial compliance or non-compliance is inherent in the ground of non-compliance in section 134 of the Electoral Act. The two cannot be divorced. For the avoidance of doubt, I reproduce the provision of section 135 of the Electoral Act, 2022:
The above provision is self-explanatory. It is the same law relied upon by the Appellants in grounding their petition that provides that the ground of a petition alleging non-compliance with the Electoral Act cannot be dealt with without reference to how substantial the non-compliance is, and how it substantially affected the result of the election. It is therefore a grave misconception on the part of the Appellants to accuse the trial Tribunal of raising the issue of substantiality when it is the Appellants themselves who introduced it by making non-compliance with the Electoral Act one of the grounds of their Petition. For the above reasons, I hereby resolve issue 4 against the Appellants.
Having resolved all the issues in this appeal against the Appellants, the destiny of the appeal is clear. The appeal is unmeritorious and is hereby dismissed. The judgment of the trial Tribunal affirming the declaration and return of the 2nd Respondent as Member, House of Representatives for Askira-Uba/Hawul Federal Constituency of Borno State is hereby affirmed.
I make no order as to cost.
MUHAMMAD IBRAHIM SIRAJO
JUSTICE, COURT OF APPEAL
APPEARANCES:
YUSUF ALI, SAN, WITH AYO OLANREWAJU, ESQ., MAS’UD ALABELEWE, ESQ., YAKUB DAUDA ESQ., ADAM OLORI-AJE ESQ., ABDULWASIU ALFA, ESQ., ZANNA HAMZA, ESQ., ABDULKADIR ORIRE, ESQ., IBRAHIM ALABIDUN, ESQ., A. O. OBAYOMI ESQ., A.M. SALIMAN, ESQ., A.O. ABDUL, ESQ., MOHAMMED SULEIMAN, ESQ. AND OLUWAFUNKE AISHA AKEJU ESQ. FOR THE APPELLANTS.
TALE ALABI, ESQ., WITH IBRAHIM HARUNA NGADA, ESQ., B.F FOLORUNSHO ESQ., BUNMI COMFORT ASHAOLU, ESQ. (MRS), FLORENCE F. AREMU, ESQ., MUSTAPHA TIJJANI MAINA, ESQ., ISHAKU MAINA YAGA, ESQ., IGHO OGEDEGBE, ESQ., AGIRAWA PINDAR, (MISS) AND HALIMA THLAMA SAJOU (MISS) FOR THEV 1ST RESPONDENT.
GBENGA A. ASHAOLU, ESQ., LEADING ALABI OLAWALE, ESQ., FATIMA A. SHEHU, ESQ., ODEH M. ODEH, ESQ., CHRISTOPHER O. RICHARD ESQ., AYENI JOY, ESQ., VICTORY I. MIDUADOR ESQ., JOYCE O. ODAH ESQ., BENJAMIN A. DINA ESQ AND IGHODALO A, AIGBOBO ESQ. FOR THE 2ND RESPONDENT.
M.S. DIRI SAN, WITH UMAR RISKUWA ESQ., SELVIS A. EDAH, ESQ., YAKUBU BAKO, ESQ., B.K. BARIKPOA ESQ., ABDULRAHAMAN DAHIRU ESQ., AND ABDULRAHAMAN DIRI ESQ., FOR THE 3RD RESPONDENT
