PLATEAU: PKK: HON. TIMOTHY GOLU’S APPEAL AND HON. GAGDI’S CROSS-APPEAL, RESERVED FOR JUDGMENT BY COURT OF APPEAL. THE DETAILS

By: Valentine Adese (JP) and Eunice Maina,

The Court of Appeal, Jos Division has reserved Judgments in the Appeal and Cross-Appeal, filed by Hon. Timothy Golu and the PDP and Hon. Yusuf Gagdi, respectively, with respect to the judgment of National and State Houses of Assembly Tribunal, which sat in Jos, Plateau State, over the election for member House of Representatives for Pankshin/ Kanke/Kanam Federal Constituency Plateau State.

HON. GAGDI

Hon. Timothy Golu and the Peoples Democratic Party (PDP), Hon. Yusuf Adamu Gagdi and the All Progressives Congress (APC) having being dissatisfied with the decision of the National and State Houses of Assembly Election Petition Tribunal that sat in Jos, Plateau State, with respect to the election for member, representing Pankshin/Kaknke/kanam Federal Constituency of Plateau State delivered on the 10th of September, 2019, in petition No. EPT/PL/NA/HR/10/2019, have approached the Court of Appeal with their Appeals.

While Timothy Golu and the Peoples Democratic Party (PDP), file the Main Appeal No. CA/J/EPT/PL/NA/HR/384/2019, Hon. Yusuf Adamu Gagdi, and the All Progressives Congress (APC), filed Cross Appeals No. CA/J/EPT/PL/NA/HR/380/2019 and CA/J/EPT/PL/NA/HR/379/2019, respectively.

HON. TIMOTHY GOLU

From the face value and stamp, the Appellants (Hon. Golu and the PDP) Brief of Argument, Prepared by Solomon Umoh (SAN), was received by the Court of Appeal, Jos Division, on the 10th of October, 2019.

The Appeal, No. CA/J/EPT/PL/NA/HR/384/2019, filed by Hon. Timothy Golu and the PDP, challenging the decision of the 3-man panel Tribunal, led by Hon. Justice Joy Isaiah Unwana, as Chairman and Hon. Justice Ikechi Gerald Nweneka; and Hon. Umar Abdul Nasir, wherein judgment was delivered in favour of the Respondents, (Hon. Yusuf Adamu Gagdi, INEC and the APC) contain 10 grounds of Appeal.

You would recall that, Solomon E. Umoh (SAN), the Appellant’s Counsel, leading other 8 Lawyers, had earlier filed a Notice of Appeal on the 27th of September, 2019.

Aggrieved also by part of the decision of the trial Tribunal, the Cross Appellants also filed a Notice of Cross-Appeal on the 29th of September, 2019, containing Eight (8) Grounds.

However, the 1st and 2nd Respondents/Objectors (Hon. Golu and the PDP), have also filed a Notice of Preliminary Objection (P.O), challenging the jurisdiction of the Court to hear the Cross Appeal of the Cross Appellant, Hon. Yusuf Adamu Gagdi.

The Respondents/Objectors (Hon. Golu and the PDP) have argued that, the Court of Appeal lacks the requisite jurisdiction to entertain the Cross-Appeal of Yusuf Gagdi, on the ground that, “the Cross-Appellant failed to serve the Notice of Cross-Appeal and the Record of Appeal, the Cross-Appellants intend to rely on the 1st Cross-Respondent, as required by Law”.

Adumbrating on the objection raised today, at the hearing of the Cross-Appeal filed by Hon. Gagdi, Solomon Umoh, Counsel to Hon. Golu and the PDP, said, “We have a Preliminary Objection (PO) to this Appeal, as the 1st Cross-Respondent was never served.

“This non-service is fatal to the 1st Cross-Respondent alone. The Law must take its course and bound of flesh, as issues have been joined.

From the Ten (10) Grounds of Appeal filed by the Appellants, the Appellants have nominated the following issues for the Court of Appeal to determine to wit:

  1. Was the trial Tribunal right in striking out paragraphs 22, 23, and 24 of the Petition as well as Relief i, ii, iv, v and vi of the petition having regards to the facts and circumstances of this case?

(Distilled from Ground 1 and 2 of the Notice of Appeal).

  1. Was the trial tribunal right in striking out the sole ground of the Petition OR is the sole ground of the Petition a competent ground for presenting an election petition?

(Distilled from Ground 3 and 4).

  1. Having found that the election in Kanam LGA was declared inconclusive by the 3rd Respondent, was it proper for the Trial Tribunal to decline the grant of the reliefs sought by the petitioner having regards to the peculiar facts and circumstances of this case?

(Distilled from Grounds 5 and 6 of the Notice of Appeal).

  1. Did the Petitioner prove substantial non compliance on the part of the 3rd Respondent and how the said non compliance affected the

result of the election? (Grounds 7, 8, 9 and 10).

We have formulated Four (4) Issues for determination and we have extensively canvassed argument on the said issues, we urge Your Lordships to resolve the Four Issues (4) issues formulated by the Appellants in the Appellants’ favour, allow the Appellants Appeal, set aside the decision of the Trial Tribunal delivered 10th day of September, 2019 and in its place enter judgment for the Appellants/Petitioners in terms of the Relief sought hereunder:

  1. An Order nullifying the declaration of the 1st Respondent as the winner of the election into the office of member of the House of Representatives for Pankshin/Kanke/Kanam Federal Constituency of Plateau State held on the 23rd day of February, 2019.
  2. An Order declaring the Appellant as the winner of the election into the office of the member of the House of Representatives for Pankshin/Kanke/Kanam Federal Constituency of Plateau State held on the 23rd day of February, 2019 by majority of lawful votes cast and collated in compliance with the provisions of the Electoral Act (2010) as amended.
  3. An Order directing the 3rd Respondent to issue the 1st Appellant with his Certificate of Return as the elected member of the House of Representatives for Pankshin/Kanke/Kanam Federal Constituency of Plateau State held on the 23rd day of February, 2019 by majority of lawful votes cast.

ALTERNATIVELY:

  1. An Order nullifying the election into the office of member of the House of Representatives for Pankshin/Kanke/Kanam Federal Constituency of Plateau State held on the 23rd day of February, 2019 and ordering for a fresh election in Kanam Local Government Area, the 3rd Respondent having declared the election in Kanam Local Government Area as inconclusive.

For the reasons summarized hereunder:

  1. The trial Tribunal was wrong when it struck out Paragraphs 22, 23, and 24 of the Petition as well as Reliefs i, ii, iv, v and vi of the petition having regards to the facts and circumstances of this case.
  2. The Learned Judges of the Trial Tribunal were wrong when they struck out the sole ground of the Appellants/Petitioners’ Petition having regards to the peculiar circumstances of this case.
  • Indeed, the Learned Justices of the Trial Tribunal were wrong when they struck out the sole ground of the Appellants/Petitioners’ having regards to the peculiar circumstances of this case. The Trial Tribunal was wrong to have struck out the Petition for want of a valid ground and we submit without mincing words that the sole ground of the Petitioners’ Petition was competent and valid ground for presenting an election petition.
  1. The Trial Tribunal was wrong to have struck out the Petition for want of a valid ground and the sole ground of the Petitioners’ Petition was a competent and valid ground for presenting an election petition.
  2. The Appellants have proven that on the 23rd day of February, 2019 election into the office of Member of the House of Representatives for Pankshin/Kanke/Kanam Federal Constituency of Plateau State, there was non-compliance with the provisions of the Electoral Act; and (b) that the said non-compliance substantially affected the results of the election.
  3. Upon evaluating the evidence of the parties on an imaginary scale of justice, the Learned Judges of the Trial Tribunal found same to preponderate in favour of the Appellants herein to the effect that the election Kanam L.G.A was declared inconclusive by PW5, the Returning Officer for Pankshin/Kanke/Kanam Federal Constituency of the Plateau State yet declined to grant relief (vii) sought by the Appellants.
  • A ground of a petition which is within the ambit of the provisions of the said S 138 (1) of the Act cannot in any way be deemed to be incompetent.
  • The Appellants’ sole ground of the petition is competent to sustain the reliefs sought in the Petition.
  1. It is apparent as admitted by Dw 2 under cross-examination which is borne out from the records that the Petitioners’ received 374 votes in Bwarak Polling Unit as contained in Form EC8A (II), i.e Exhibit “P1” but same was shortchanged at the point of entry into Form EC8B(II) i.e Exhibit R2X as only 324 votes was recorded for him leaving a difference of 50 votes.
  2. In another vein, the Petitioners received 303 votes at Kururuwa Polling Unit, Code 004 as contained in Exhibit EC8A(ii) I.E Exhibit “P3” but same was shortchanged at the point of entry into Form EC8B(II) i.e Exhibit “R2X” as no vote was recorded as received by him in Exhibit EC8B(ii) leaving a differential of 303 votes. Please see page 815 of the records.
  3. The failure to record the scores properly as received by the parties in the relevant forms constitutes non-compliance with the provisions of the Electoral Act, 2010 (as amended).
  • When the votes received by the Appellants are properly collated, it is clear that he won the election as per the majority of lawful votes cast.
  • The entries in Exhibit “P6”, i.e EC8C (II) as collated shortchanged the Appellants by 1094 as apparent on the face of the document.
  • The entries in Exhibit R2X shortchanged the Appellants by 50 votes in respect of Bwarak Polling Unit and 303 votes in respect of Kururuwa I.
  1. Accordingly, but for the non-compliance as apparent in the recording of the result, the Appellant was entitled to be recorded as having received 1094 + 303+50=1447 VOTES.
  • It is clear from the foregoing that had the 1447 valid votes been added to the Appellants’ results, the result of the election would have been different as the margin of the 2nd Respondent’s victory was only 1,386 votes.
  • Therefore, the proper result ought to be 1447-1386=61 votes.
  • Surely, the Appellants had won the election with at least 61 votes as apparent from records.

TO BE CONTINUED………..

 

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