Garba Moh’d Tambari V. Yusuf M. S. Bango & Ors (1999)

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OMAGE, J.C.A.

This is an appeal against the decision of the Governorship and Legislative Houses Election Tribunal, sitting in Gusau Zamfara State. The decision is on the Zamfara State House of Assembly election which took place on 9th day of January, 1999. At the close of the election, that 1st respondent was declared the winner because he scored 4,438 votes and the petitioner at the lower tribunal scored 4,256 votes. In the petition the petitioner has alleged:

(i) That the election of the 1st respondent was vitiated by corrupt practices.

(ii) That the 1st respondent was not duly elected by majority of lawful votes.

(iii) That the result of the election was substantially affected by serious electoral malpractices bordering on inflation of votes, use of fake ballot papers falsification of result and mutilation of voting materials in some named polling units.

The 1st respondent at the lower tribunal denied the averments of the petitioner and called six witnesses against the nine witnesses called by the petitioner. The 2-4th respondents also called witnesses and denied stoutly the complaints of the petitioner. In its ruling on the case, the tribunal declared the election void in the whole maradun 1 constituency of Zamfara State.

The 1st respondent was not satisfied with the decision and filed an appeal therein, as it transpired the petitioner at the lower tribunal was also dissatisfied with the decision of the lower court and filed a cross appeal. The appellant and the cross appellant filed their briefs separately. Each filed a reply to the brief of other. There is also 1st respondent’s brief to the appellants brief, and reply to cross appellant brief. The cross appellant who was the petitioner at the lower court included in his 1st respondents brief to the appeal, notice of preliminary objection. The 2nd-4th respondent also filed their respondent’s briefs.

In the appellant brief, filed on 23/3/99 following the six grounds of appeal filed on 15th March, 1999, and in compliance with the rules of this court the appellant who was the 1st respondent In the court below, formulated in his appellants brief three issues for determination thus:-

(1) Whether having regard to the combined provisions of section 133

(2) and paragraph 48(1) to schedule 67 of Decree No.3 of 1999.

The trial tribunal was right in entertaining evidence and relying on same to void the election when his presiding officer whose conduct was complained of was not joined as a party to the petition.

(2) Whether in the practical 2 circumstances of the petition the trial tribunal was not wrong in (a) making findings of facts that was no basis for the corrections effected on Exhibits CII and D regard being had to the evidence led before the tribunal vis-a-vis the provisions of paragraphs 30 (3) 36 and 37 to schedule 5 of Decree No.3 of 1999(8). In record its holding that the facts had been sufficiently pleaded having regard to 1st respondents, averment in paragraphs 4 and 5 of his petition.

(3) Whether in the light of the pleadings and on the preponderance of evidence, the tribunal was right in holding that the 1st respondent had discharged the burden of proof on him that non compliance has substantially affected the result of the election and thereby voided the election:?”

In his 1st respondents brief to the appeal field by the cross appellant on 29th March, 1999. The petitioner in the lower court Yusuf M. S. Bango raised preliminary objection on the clerical error in writing the appellant’s name as Tambari and that the names of all the respondents were not adequately stated as written on the petition. The 1st respondent also found error upon which he objected to the date written sic 12/2/99 when the judgment of the court below was delivered; and not 12th February, 1999 as recorded in the brief of argument of the appellant.