Osita O. D. Nwankwo V. Alhaji Yusufu Abdullahi Atta & Ors (1999)

LawGlobal-Hub Lead Judgment Report

OMAGE, J.C.A.

The election into the State Houses of Assembly which took place throughout Nigeria on 9th January, 1999, took place also in Fagge Constituency in Kano, Kano State. After the Election, Alhaji Yusuf Abdullahi Atta was found to have polled 14.079 votes and Mr. Osita O. D. Nwankwo polled 13,398 votes. Dr. A.B. Haruna the returning officer in Fagge Constituency Kano State returned Alhaji Yusuf Abdullahi Atta as the member elected in Kano State House of Assembly for Fagge Constituency.

Mr. Osita O.N. Nwankwo disputed the return of Alhaji Yusuf A. Atta, and filed a petition before the Kano State Governorship and House of Assembly Tribunal. The petition is contained in pages 3-10 of the record filed in this appeal. It is dated 22nd January, 1999.

In it the petitioner cited Alhaji Yusuf A. Atta as the 1st respondent the Fagge L.G. Electoral Officer Alh. A. Gawuna as the 2nd respondent. The Fagge Constituency Returning Officer Dr. A.B. Haruna, 3rd respondent, and the Independent National Electoral Commission; as the 4th respondent. The petitioner alleged that the 1st respondent did not score the majority of valid or lawful votes cast at the election, and that it was he Mr. Osita who obtained majority of valid and lawful votes at the said election and had a right to be returned as the member for Fagge at the House of Assembly. The petitioner averred in the petition that the result of the election at the polling centre Dandali or Women’s Centre Fagge. A ward was implanted in favour of the 1st respondent by the wrongful addition of polling result purportedly from a 9th unit which the petitioner averred did not exist prior to the election and was not previously designated by the 2nd-4th respondents because only 8 units were previously designated for the said Dandali Women Centre. The petitioner averred that in the said centre he was assigned 37 votes and 1st respondent 444 votes. The petitioner also alleged “several electoral malpractices and irregularities by the respondent or their agent.” but for which the petitioner averred. “the petitioner would have scored the highest number of votes scored at the election.” He testified at the hearing of the petition as follows: “polling was still going on when thugs supportive of the 1st respondent charged in on the entire centre and scared away voters and the petitioner’s agents.” The 1st respondent filed a reply to the petition, and testified. He also filed a motion seeking an order of the tribunal to strike out the said petition for non joinder or necessary parties, or alternatively to strike out paragraphs 8(b), 9,10,11,12,14,16,17 and the particulars of each of the paragraphs. The motion is dated 25/2/99. The 2nd and 4th respondents also relied on a motion dated 25/2/90 and sought therein “an order of the tribunal striking out the petition” on the grounds that the agents of the 2nd and 4th respondent whose conduct are at issue are not joined in the petition.

Hearing in the petition commenced according to the record on 25th February, 1999. On 26th February, 1999, in the presence of the petitioner, the motions of both sets of respondent were taken. The issues of non-joinder or necessary parties were canvassed the respondents. The tribunal ruled on the motion as incompetent and dismissed both motion on 1st March, 1999. Hearing in the petition proceeded to judgment.

In the judgment of the lower tribunal on pages 98 – 109, the tribunal found as a fact that there were numerous irregularities, over-voting and falsification of results and cancelled the election in the nine units of Dandali Women Centre. The lower tribunal also set aside votes scored by candidates from the 9 units. In conclusion the lower tribunal directed the 4th respondent the Independent National Electoral Commission to conduct fresh elections. The lower tribunal ruled as follows: “The result of the election in these units will be added to the scores of the candidates 11.622 for APP candidate, 13,193 for PDP candidate and 518 for AD candidate and thereafter the candidate with the highest number of votes shall be declared the winner of the election in Fagge Constituency.” Earlier within the judgment the lower tribunal had ruled after some cancellations as above some auditions and deduction arrived at the following figures AD 51 votes, appellant 13.193 votes and 1st respondent 11.622 votes. Despite the above the lower tribunal ordered a fresh election in Dandali Women Centre. Neither the appellant, the 1st respondent nor the 2-4th respondents was satisfied with the judgment of the lower tribunal. The appellant appealed, filing four grounds and sought relief as follows:-

An order setting aside the decision of the honourable trial tribunal ordering for fresh election at the Women’s Centre.

An order declaring as elected the petitioner on a majority of valid votes cast at the election and as a member elect to Kano State House of Assembly representing Fagge Constituency.

In his brief of argument filed on 15th March, 1999 the petitioner appellant formulated two issues for determination, namely”

Whether having deducted the invalid votes and finding that the appellant had a majority of valid votes cast, the trial tribunal ought not to have declared him as elected in view of section 137(2) of Decree 3 1999. The appellant averred the issue is formulated from ground one of the notice of appeal concerning the finding of the lower tribunal which found on the issue of nine units in Women Centre. The second issue is

“whether the honourable tribunal was not precluded by law and in the state of pleadings from accepting and adding any votes to the correct totals of vote shown on Exhibit No.1.”

The 1st respondent filed a notice of appeal on 16/3/99, upon finding that the petitioner appellant had filed before him a notice of appeal on 15/3/99. The 1st respondent filed a motion dated 19th March, 1999. On 22nd March, 1999 and with the leave of court, the notice of appeal of 16th March, 1999 was deemed a cross-appeal. The two live grounds of appeal are contained in the record and numbered on folios 118 to 120. The 1st respondent is hereafter referred as cross-appellant. In his brief of argument, filed on 22nd March, 1999 they contain issues C.B. and A. in that descending order. The cross-appellant also adopted the issues formulated by the appellant and the following (a) was there sufficient evidence before the lower tribunal to justify the cancellation of the 9 units at Dandali Women Centre at Fagge A Ward in the Fagge Constituency (c) should not the lower tribunal have expunged from the records evidence complaining of the conduct of the presiding officers at Dandali Women Centre who were not parties to the suit. The 2nd, 3rd and 4th respondent filed their brief by leave of court on 22nd March, 1999. In it they averred as follows, “that the proper issues for determination, from the grounds of appeal and those of the cross-appellant, are;

(1) Whether the decision of the trial tribunal ordering for fresh election at Dandali Women Centre polling units was appropriate”

(2) Whether upon the leading and the evidence adduced the trial tribunal was right in holding that Exhibits P & Q were contained in Exhibit M?