IN THE NATIONAL ASSEMBLY ELECTION PETITION TRIBUNAL

HOLDEN AT BAUCHI

PETITION NO:NA/R/EPT/BAU/05/2011

THE ELECTION TO THE HOUSE OF REPRESENTATIVES FOR

KATAGUM FEDERAL CONSTITUENCY HELD ON

9TH DAY OF APRIL 2011.

BETWEEN:

1. HON AUWALU ABDU

2.PEOPLES DEMOCRATIC PARTY (PDP) -----------------PETITIONERS

AND

1. AUWAL DAHIRU SALE

2. CONGRESS FOR PROGRESSIVE CHANGE ----------------RESPONDENTS

3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)

1ST AND 2ND PETITIONERS FINAL ADDRESS

1.1 INTRODUCTION

1.00 Election into the Federal House of Representative was held on the 9th April 2011

to elect a representative for Katagum Federal Constituency of Bauchi State. The 15t

Petitioner was the candidate of Peoples Democratic Party (PDP) while the15t Respondent

was the candidate of Congress for Progressive Change (CPC). At the end of the election,

the 3rd Respondent INEC declared the 1st Respondent as the winner and duly returned.
1.01 Being aggrieved by a Petition dated the 29th April 2011 filed on the same day

election Petition Tribunal before the National Assembly and House of Assembly, the

Petitioners challenged the election and

return of the 1st and 2nd Respondents by the 3rd Respondents as the winners of the 9th

April 2011 House of Representatives election for Katagum Federal Constituency of Bauchi

State.

1.02 The Respondents were duly served with the Court processes, and the 1st and 3rd

Respondents properly entered appearance and filed their respective replies to the Petition

(though the 3rd Respondent applied for and obtained leave to file his reply out of time).

1.03 The Petitioners thereafter applied for and the Petition was set down for pre-trial

session, which was duly conducted. At the end thereof, a pre-trial report was issued by

the Honourable Tribunal.

1.04 Upon the issuance of the pre-trial report, the Tribunal ordered and the Petition

was set down for trial.

2. STATEMENT OF MATERIAL FACTS:

2.01 The 1st Petitioner, 1st Respondent and 3-other persons contested the House of

Representatives election for Katagum Federal Constituency of Bauchi State which took

place nationwide on the 9th April 2011.

2.02 At the end of the election, the 3rd Respondent declared and returned the

1stRespondent of the CPC as the winner of the election for having allegedly polled 20,417

votes being the highest lawful votes cast at the election; and consequently issued him with

a certificate of return.
 2.03 The 1st Petitioner of the PDP polled second highest with18, 146votes. Alhaji

Mohammed Hassan of ACN polled 9,188votes; Adamu Muazu (Bayoji) of the ANPP scored

2,786 votes, while Garba Alhaji Mohammed of Kowa Party had 280 votes.

2.04 The Petitioners dissatisfied with the declaration and return of the 1st and 2nd

Respondents as the winners of the election filed this Petition, on the following ground:

10(a) "That the election conducted in all the Polling Units of Nasarawa/Bakin

Kasuwa ward was invalid by reason of non-compliance with the provisions of the Electoral

Act 2010 (as amended), Manual for Election Officials 2011 and other regulations, in that

accreditation of voters was not done before voting or the time of voting."

The Petitioners sought the following reliefs:

16. a) That it may be determined that the purported election and return of the ft

Respondent as the winner of 8th April, 2011 election into the House of Representatives

for katagum Federal Constituency is null and void as he did not poll the highest number of

lawful and valid votes cast at the election.

b) A declaration that the purported election conducted in Nasarawa/Bakin

Kasuwa ward of Katagum Federal Constituency on the 8th April 2011 for the
House of Representative is null and void for non-compliance with the
provisions of the Electoral Act 2010(as amended) and other enabling
guidelines, and the votes allegedly scored by the political parties and their
candidates be annulled.

c) An order that votes purportedly scored by each of the candidates at the said
election for Nasarawa/Bakin Kasuwa be deducted from the total votes scored
by each of the candidates afortio: Kowa Party-57, ANPP -1029, ACN- 2049,
 PDP -3972 and CPC -7917; and the lawful and valid votes for the candidates
shall then be Kowa-223, ANPP-1757, ACN-7139, PDP-14, 174 and CPC-12, 500.

d) A declaration that the It Petitioner having polled the highest lawful and valid
votes of 14,174 from the 10 of the 11 electoral wards of Katagum Federal
Constituency be returned as winner of the election.

e) An order directing the 3'd Respondent to issue the Ft Petitioner with the
certificate of return, having won the election when he polled the highest
number of lawful and valid votes cast at Katagum Federal Constituency.

2.05 The Petitioners contend that the election in Nasarawa/Bakin Kasuwa ward was

invalid because there was no accreditation of voters prior to the election as required by

the Electoral Act 2010; and as a result, the people who were not eligible to vote voted, and

indeed a dead man allegedly voted; people who had invalid voters card voted, while others

whose photograph appeared twice, voted twice etc.

2.06 The Petitioners further contends that lack of accreditation of voters before voting

compromised the integrity of the election which invalidated the votes cast in this ward,

and this substantially affected the result of the election.

2.07 The 1st and 3rd Respondents denied this allegation, and contended that the

election in Nasarawa/Bakin Kasuwa ward on the 9/4/2011was free and fair and that all the

voters were properly and duly accredited prior to voting. They further claimed that the

votes scored by the Candidates in Nasarawa/Bakin Kasuwa ward were lawful and valid

votes. They argued that the 3rd Respondent properly declared the 1st and 2nd

Respondents as the winners of the election.

2.08 The Petitioners in proof of their petition called 20-witnesses and tendered 14
Exhibits, while the 1st Respondent called 16-witnesses and tendered about 8-Exhibits. The
3rd Respondent did not call any witness.
2.09 The 2nd Respondent who was duly and properly served with the Petition and other
accompanying Tribunal processes failed or refused to participate in the proceedings. The
2nd Respondent did not file any process in reaction to the petition.

2.01 The following are the Exhibits that were tendered and most of which were by
consent of Counsel and therefore across the bar. The Exhibits are:
(i) EXHIBIT A1-A51 - Voters Register for Nasarawa/Bakin Kasuwa ward
(ii) EXHIBIT B1-INEC Manual for Election Officials 2011.
(iii) EXHIBIT B2-INEC Form EC 8 B (1)
(iv) EXHIBIT B3-INEC Form EC 8
(v) EXHIBIT C1- Letter of Complaint to Police Area Commander, Azare
(vi) EXHIBIT C2-Police Report based on Complaint
(vii) EXHIBIT D1-General Affidavit Form for Death
(viii) EXHIBIT D2- Death Certificate for late Iliya Ibrahim
(ix) EXHIBIT E1-Punch Newspaper - 21/1/11
(x) EXHIBIT E2- Punch Newspaper 28/3/11
(xi) EXHIBIT F-Subpoena to the Police
(xii) EXHIBIT G-Specimen signature of PW 3
(xiii)EXHIBIT H-Specimen signature of PW 7
(xiv) EXHIBIT I- Specimen Signature of PW 11
(xv) EXHIBIT J1-J51-orms EC 8 A (1) for 51 Polling units in Nasarawa/Bakin Kasuwa Ward.
(xvi) EXHIBIT K- Summary of results for Nasarawa/Bakin Kasuwa Ward.
(xvii)EXHIBIT L-Summary of results for all the Wards in Katagum Federal Constituency
(xviii)EXHIBIT M- Specimen Signature of DW 2
(xix)EXHIBITN
(xx) EXHIBIT O- List of polling units in Nasarawa/Bakin
Kasuwa ward.

3.0 ISSUES FOR DETERMINANTION

3.01 The Petitioners filed 3-issues for determination on 20/6/11 as thus:

1) Whether or not the election in Nasarawa/Bakin Kasuwa ward of Katagum Federal

Constituency on 9/4/11 is declared null and void, the final scores of the candidate
will not be affected by the nullification.

2) Whether the election and return of the 1st Respondent on the 9/4/11 into the
Katagum Federal Constituency of the House of Representative is valid.
 3) Whether the Petitioner has proved his case to entitle him to the reliefs claimed.

3.02 The 1st Respondent also filed three issues for determination. They are:

1. Whether or not the Petitioners have proved their allegations of no-compliance with
the Electoral Act, 2010 (as amended) and the Guidelines for the elections relating
to the conduct of the election held on the 9th April, 2011 in Nasarawa/Bakin
Kasuwa ward of Katagum Federal Constituency of the House of Representatives on
the preponderance of evidence to be entitled to the reliefs sought in the petition.

2. Whether or not the elections conducted on the 9th April, 2011 in the
Nasarawa/Bakin Kasuwa ward of the Katagum Federal Constituency for the House
ofRepresentatives was done in substantial compliance with the provisions of the
Electoral Act, 2010 (as amended) and the Guidelines for the elections issued by the
3rd Respondent.

3. Whether or not the 15t Respondent scored the majority of lawful votes cast to
justify his declaration as the winner of the Katagum Federal Constituency of the
House of Representatives in the General Elections held on the 9th April, 2011 by
the3rd Respondent.

3.03 The 3rd Respondent filed only one issue thus:

(a) Whether the election as conducted by the 3rd Respondent on the 19th April
2011 in Nasarawa/Bakin Kasuwa of Katagum Federal Constituency was done
insubstantial compliance with the Electoral Act 2010 (as amended) all other
enable Laws/Rules.

4.0 LEGAL ARGUMENTS

4.01.1 ISSUES ONE AND TWO

4.01.2 The case of the Petitioners is that the votes allegedly scored by all the
candidates in Nasarawa/ Bakin Kasuwa wards of Katagum Federal Constituency were invalid
and should therefore be declared null and void, as the purported election in this ward was
in breach of the provisions of the Electoral Act 2010 (as amended).
 The Petitioners argued that these unlawful votes be deducted or subtracted from the
results of the Constituency; and if this is done, the result of the election will be
substantially affected.

4.01.3 In order to substantiate this claim, the Petitioners submit that there was no
accreditation of the voters prior to the purported voting as required by law. It is further
contended that lack of accreditation of voters undermined the integrity of the election,
which consequently rendered the election a nullity.

My Lords, in election matters, the law is settled that where a Petitioner in an election
Petition makes non-compliance with the provisions of the Electoral Law, as the
underpinning of his complaint, then he has a heavy burden of proof to discharge. This was
eloquently stated by Sankey, JCA in the case of LAWAL Vs. MAGAJI(2010)8WRN
102@102,where she stated the law thus:

"The position of the law is that for an allegation of non-compliance

with the Electoral provisions to sustain an Election Petition, the onus lies
on the Petitioner to first, establish the existence of the non-
compliance, and secondly to show that it did or could have affected the
results of the election. It is also beyond argument that a candidate in
an election who alleges