Ahmed a. Abbo V. Elam Mbukurta & Ors (1999)

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UMOREN, J.C.A.

The appellant, in an election petition which was subsequently amended questioned the election of the 1st respondent (who was also the 1st respondent in the tribunal below) on the grounds stated in paragraph 16 of the amended petition, that is to say, that he scored the highest number of valid and lawful votes cast at the election and ought to have been returned.

The amended petition is at pages 1 – 5 of the record of proceedings. The replies of the 1st and 2nd – 4th respondents are at pages 9 – 10 and 12 and 13 of the record. There was the petitioner’s reply to 1st respondent’s objection to votes at page 14 of the record.

The lower tribunal after hearing evidence led by the petitioner and his witness and the respondents resting their case on that of the petitioner and the addresses of learned counsel for the parties, refused in its judgment at pages 32 – 57 to avoid or nullify the results of the polling units affected and consequently dismissed the petition.

Dissatisfied with the judgment, the appellant has appealed to this court. The notice and grounds of appeal are at pages 54 – 57 of the record. The grounds of appeal without their particulars are as follows:-

1. The lower tribunal erred in law in finding that the petitioner had not established any case of irregularity in the Boga A. Zangra and Kwanta units of Gombi Local Government despite the abundant and overwhelming evidence adduced during the trial.
2. The lower tribunal erred in law in holding as it did that:-

“Similarly in Zangra those accredited were 513 and the 1st respondent scored 453 to petitioner 5 votes and this was accurately recorded in Exh. A5”.

When such finding was not supported by evidence led at the trial.

3. The lower tribunal erred in law in holding as it did in its judgment as follows:-

“The same thing goes for Kwanta where it was recorded in Exhibit A12 that the petitioner scored 2 votes to 252 for the 1st respondent.”

When such finding is not borne out of evidence before the tribunal.

4. The lower tribunal erred in law in holding as they did that “Suffice it to say however that we are satisified that Exhibit A1, A5 and A13 which in our opinion had been accurately recorded by the presiding officer in respect of Boga, Zangra and Kwanta units in compliance with paragraph 20(2)(e) and 20(3) of Schedule 4 of the Decree.”

When the evidence led at the trial did not support such assertion.

5. The lower tribunal erred in law in holding that the ballot papers in favour of the petitioner, but which were neither stamped nor signed was an act of indiscriminate thumb printing of ballot papers carried out after the conduct of the election when there was no evidence in support of such finding.
6. The lower tribunal erred in law in failing to allow the petitioner’s petition and granting the relief sought by petitioner despite the evidence led pointing to irregularity in the result in Boga A, Zangra and Kwanta polling units.

The appellant’s counsel and counsel for the respondents filed and exchanged briefs of arguments in accordance with the rules of this court.

Certain issues were formulated for determination in the appellant’s brief and the 1st and 2nd – 4th respondent briefs. They are, in my view, as follows:

Whether there was sufficient evidence before the tribunal of malpractices, over-voting, irregularities etc., substantial enough to justify a declaration of the appellant by the tribunal as the person who scored a majority of lawful votes at the chairmanship election.

The main plank of the petitioner’s case is that if votes tainted with irregularities, malpractices and overvoting were discounted from the votes scored by the 1st respondent, he the appellant, would be returned as the person who scored a majority of lawful votes. The petitioner had contended before the tribunal that if votes in Exhibits A2, A3, A4, A7, A8, A9, A10, A11, A13, A15 and VI were cancelled he would win. The petitioner had scored 6826 votes while the 1st respondent scored 9291 votes having a majority of 2465 votes over the petitioner. By the cancellation, the petitioner claimed he would lose 484 votes while the 1st respondent would lose 2385 votes, by simple arithmetic calculation the petitioner would be left with 6342 votes while the 1st respondent would be left with 6906 votes. If the petitioner’s votes of 6342 is subtracted from the 1st respondent’s 6906 the 1st respondent would still be left with a majority of 564 votes over and above that of the petitioner. Under cross-examination, the petition answered “I agree the 1st respondent would still be leading me by 564 votes” see page 28 of the record of the proceedings. By this answer, it would appear the petitioner had added the final nail to this coffin.