M.tukur Abba & Anor V. M.ahmed Hassan Jumare & Ors (1999)

LawGlobal-Hub Lead Judgment Report

I.T. MUHAMMAD, J.C.A.

At the local government elections conducted on the 5th or December. 1998. the 1st appellant and the 1st respondent contested for the chairmanship of Makarfi Local Government Council. 1st respondent was declared winner by the 4th respondent when he scored the highest number of votes 19.361 as against 14.244 scored by the 1st appellant 1st appellant and his party All People’s Party (APP) as 2nd appellant were dissatisfied with the result declaration and they riled a petition at the Local Government Council Election Petition Tribunal or Kaduna State (the tribunal).

The appellants as petitioners alleged that the 1st respondent was not qualified to contest the election by virtue of the fact that his nominated vice chairman (not a party in the petition), was in the employment of Makarfi Local Government Education Authority upto and including the 22nd of November, 1998, and that he did not resign his appointment 30 days before the election which contravened the provisions of Decree 36, of 1998. It was further alleged that the 1st respondent and his party agents were involved in corrupt practices prior to the election and on the election day by the use of money to induce voters to elect him and the party.

In their joint reply, 1st and 3rd respondents denied all the allegations. The 4th and 5th respondents, too, denied the allegations.

At the hearing, the petitioners called 3 witnesses. The 1st & 3rd respondents failed a witness. The learned counsel for the 1st & 3rd respondents filed a written address for the tribunal’ s consideration whereas learned counsel for the appellants made oral submissions. After having considered the evidence before it, the lower tribunal found that the petitioners had failed to prove the allegations in paragraph 4(a) & (b) of their petition and it accordingly dismissed all the reliefs including the alternative relief in the petition.

Dissatisfied, the appellants appealed to this court on three grounds. They prayed this court to among other things, set aside the judgment of the lower tribunal and enter judgment in favour or the appellants by ordering the 4th respondent to conduct a fresh election for the chairmanship of Makarfi Local Government.

In the brief of argument filed by the appellants, their learned counsel formulated the following issues:-

“(a) Whether the lower tribunal was right by holding that it was essential for the petitioners to tender the receipt PW3 issued to the nominated vice-chairman for the payment of the one month salary in lieu of notice.

(b) Whether the effect of insufficient denial or traverse was not an admission.

(c) Whether there was any basis for rejecting the evidence of the 3 witnesses called by the petitioner as incredible and worthless.”

Learned counsel for the 1st and 3rd respondents filed a brief on their behalf.

Below are the issues he formulated:

“(a) Whether the petitioners at the trial adduced credible evidence in proof of the allegation that Dan Asabe Aliyu Umar, the running mate of the 1st respondent, who was not in any even made a party to the petition, did not resign from the employment of Makarfi Local Government Education Authority 30 days before 5th December. 1999, the date the local government election was held throughout the Federation, as required by S.11(i)(f) of Decree No. 36 of 1998.

(b) In particular whether the non-tendering of the official receipt as evidence of payment of one month’s salary in lieu or 30 days notice, which was issued by PW3 to Dan Asabe Aliyu Umar, is fatal to the appellant’s case.”