Alhaji Yusuf Ibrahim Na-bature V. Alhaji Isa Aliyu Mahuta & Ors (1992)

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TOBI, J.C.A.

The appellant and the 1st respondent contested the election into the House of Representatives in the Funtua Federal Constituency on the 4th of July 1992. While the appellant contested the election under the platform of the Social Democratic Party (S.D.P.), the 1st respondent contested the election under the platform of the National Republican Convention (N.R.C.). By the official results, the appellant scored 11,507 votes while the 1st respondent scored 23,736 votes. The 1st respondent was accordingly declared duly elected by the 4th respondent.

The appellant filed a petition at the National Assembly Election Tribunal, Katsina contesting the election result. He averred in his petition that “the 1st respondent obtained an apparent and colourable majority over the petitioner whereas in truth and in fact your petitioner had a majority of lawful votes of the electors in Funtua Federal Constituency.” The appellant also claimed in his petition as follows:

(1) The votes cast in a number of polling stations were not correctly added up or counted at the ward and Local Government collating centres.

(2) The votes cast at a number of polling stations exceeded the total number of persons accredited to vote at those polling stations.

(3) The entire election was invalid by reason of corrupt practices and offences against the provisions of the National Assembly (Basic Constitutional and Transitional Provisions) Decree No.18 of 1992.

Both parties gave evidence at the hearing. After a careful consideration of the evidence before it as well as submissions of counsel, the Tribunal dismissed the petition. In the concluding paragraph of the judgment, the Chairman of the Tribunal. Mrs. Ifeyinwa C. Nzeako, (Coram, Daniel A.S. Olorunfemi, Alhaji Hussein Mukhtar, Alhaji Hanafi Sa’adu and Dr. D.A. Adekilekun Tijani,) said:

“The petitioner in this case has failed to discharge the burden that rests on him to prove that there was substantial non-compliance with the Decree which affects the result of the election substantially. The result of the election cannot be said to have been substantially affected unless it could have been different substantially but for the irregularity or non-compliance complained of. The Petitioner therefore does not suffer any disadvantage and the 1st Respondent has undoubtedly scored a majority of the lawful votes cast at the election and was rightly returned elected by the 4th respondent.”

Dissatisfied with the decision of the Tribunal, the appellant has come to us. Briefs were filed and duly exchanged. The appellant formulated the following issues for determination:

“1. Whether there was free and fair election and/or whether the election was conducted substantially in accordance with the principle of Decree No.18.

(i) Whether it is always necessary to prove that non-compliance with the principle of Decree No.18 of 1992 affected the result in the election before an election result is invalidated.

(ii) What is the correct interpretation of section 42(1) of National Assembly (Basic Constitutional and Transitional Provisions) (Decree No.18) 1992.

(iii) Whether the Honourable Election Tribunal was correct to holding that Form EC8A can be given to any other person beside polling agents and at any other place beside polling stations.

2. Whether the allegations of bribery and inflation of figures has been proved in this case and whether the election for Dukke/Makera ward can be nullified on this ground.”

The 1st respondent adopted the above issues in his brief of argument. The 2nd to 4th respondents however formulated the following issues for determination: