Alhaji Abdullahi Abdullahi V. Alhaji Ya’u Isa Mai Alewa & Anor (1999)
LawGlobal-Hub Lead Judgment Report
I.T. MUHAMMAD, J.C.A.
Abdullahi Abdullahi, the appellant was the 1st respondent at the Local Government Council Election Tribunal for Sokoto State (the tribunal). He was fielded by the All Peoples Party (APP) to contest the election for the Chairman of Goronyo Local Government Council of Sokoto State. Alhaji Ya’u Isa Mai Alewa the 1st respondent (in this appeal) who was one of the petitioners at the tribunal, was fielded by the Peoples Democratic Party (PDP). At the end of the election processes, the appellant was returned as winner of the election with the highest number of votes. The respondents herein, were dissatisfied with the election result and they filed their petition at the tribunal. Some of the grounds upon which they premised their petitions are:
“3(1) The 1st and 2nd respondent were not duly elected as Chairman and Vice Chairman respectively of Goronyo Local Government by majority of lawful votes casts at the election of 5th December, 1998.
(ii) The 1st respondent was not qualified by reason of having obtained the prescribed minimum educational qualification to contest and be elected as Chairman of a Local Government Council. (sic).
(iii) Conduct of the election at Illela Dawagare and Shiyar Uhan-Dawaki polling stations in Kagara’- anti Giyawa Wards respectively, was marred by irregularities and malpractices that rendered the same unfair and not in substantial compliance with the law and electoral guidelines.
(iv) That the 1st and 2nd respondents are not entitled to be declared the winner of the said election having not scored at least 1/2 of votes cast in at least 2/5 of the wards that make up Goronyo Local Government
(v) The 1st and 2nd respondents were not qualified to contest the election by reason or non payment of tax.
- At the conclusion of the said election the 3rd respondent declared that the 1st and 2nd respondents were the elected with a purported majority of 6,049 votes followed by the petitioners with 5,791 votes.”
There were further complaints of impersonation of name in a certificate, non-compliance and observance of the electoral laws, and other election malpractices levied against the presiding officer in charge of some of the wards in the Local Government. At the end of their petition, the petitioners/respondents prayed the tribunal for the following reliefs:
“Whereas your petitioners pray that it be determined as follows:
(i) That the 1st and 2nd respondents are not qualified to contest the said election.
(ii) That the 1st and 2nd respondents were not duly elected by majority or lawful votes cast at the said election,
(iii) That the result or the election at Tuluttu Illela Dawagare and Shiyar Ubandawaki polling stations are not reliable and ought to be cancelled.
(iv) That the petitioners are the persons duly elected by majority of lawful votes as the Chairman and Vice Chairman or Goronyo Local Government Council,”
1st & 2nd respondents at the tribunal filed their respective replies to the petition in which each denied the legations levied against each of them. Indeed the 1st respondent/appellant incorporated a counter claim in his reply. The petitioner/respondent filed petitioner’s reply to the counter claim. From the printed record before this court, 7 witnesses testified in favour of the petitioner. The 1st respondent/appellant called 9 witnesses, Learned counsel for the respective panics addressed the tribunal at length. At the end of hearing. the tribunal declared the petitioner/1st respondent the elected Chairman or Goronyo Local Government Council of Sokoto State. The tribunal declared the counter claim as incompetent and struck same out.
Dissatisfied with the tribunal’s decision, the respondents appealed to this court. They filed their notice of appeal which contained eight grounds of appeal.
In compliance with our practice directions, the appellant and 1st respondent filed and exchanged briefs of arguments. Learned counsel for the appellant formulated 2 issues viz:-
“1. Whether the tribunal below had jurisdiction to hear and determine the petition when the conditions precedent to give the court the competence to hear the petition was not fulfilled?
- Whether the tribunal below was right to have canceled the results of the election in Tuluttu polling station (when no list of objection to the head of votes was filed by the 1st respondent, pleading and evidence contradictory, judgment contrary to the pleading).”
Learned counsel for the 1st respondent formulated an issue which reads:-
Whether or not the lower tribunal was justified in law when it canceled the result of the election declared at Tuluttu polling station,”
On the hearing date. i.e 9th of March, 1999 and before adopting and relying on his brief, learned counsel for the appellant abandoned the first issue or his brief and all arguments connected there with in the brief. He then adopted and relied solely on the brief. He urged this court to allow his appeal. Learned counsel for the 1st respondent, after having adopted and relied on his brief, drew this court’s attention that the first part of appellant’s issue No.2 which he quoted as follows:
Whether the tribunal below was right to have cancelled the results of the election in Tuluttu polling station; (when no list of objection to the head of votes was filed by the 1st respondent.”
is not covered by any ground or appeal, should be discountenanced. Arguments on same contained on page 7 of the appellant’s brief should also be discountenanced. He finally urged the court to dismiss the appeal. Mr. Sifawa for the 2nd respondent told the court that he did not file any brief.
In reply to the point of law raised above by learned counsel for the 1st respondent in connection with Issue No.2 and its arguments in the appellant’s brief, learned counsel for the appellant, Yunus Ustas Usman referred us to page 7 of the appellants brief which referred the list of objections not filed by 1st respondent.
Let me quickly disposed of this issue No.2 of the appellants issues part of which is being challenged. I do not agree with Mr. Ochidi, learned counsel for the 1st respondent that the part of issue No.2 of the appellant’s issues he is complaining about is not covered by any ground of appeal. I have carefully studied all the grounds of appeal filed. I found as a fact that grounds (iii) and (vii) have adequately covered pan of issue 2 of the appellant’s issues. Issue 2 is in my view well framed by the appellant and well related to the grounds of appeal. It is trite law that an issue or issues formulated must relate to a ground or grounds of appeal.
If the issues are not related to any ground of appeal, then they become irrelevant
and go to no issues. Consequently, any argument in the brief in support of such issues will be discountenanced. See, Onifade v. olayiwola (1990) 7 NWLR (pt.161) 130; Anakwua v. Ohia (1986) 5 NWLR (pt.40) 150; Aladetoyinbo v. Adewunmi (1990) 6 NWLR (pt.154) 98; Dibiamaka v. Osakwe (1989) 3 NWLR (pt.107) 101.
While arguing the only live issue, that is Issue NO.2 of his brief, learned counsel for the appellant submitted that the tribunal was wrong to have cancelled the election result for Tuluttu polling station because the evidence and findings were contrary to the pleading, while the pleading was merely talking of supposition (a ground unknown to election petition), the tribunal based its findings on falsification, alteration and or election malpractices and over voting. He submitted further that it was wrong of the tribunal to hold that the presiding officer did not comply or conform with the provisions of paragraphs 20(2)(e), (3) and 30(i) of the Schedule.
The tribunal he argued, made a finding on an unpleaded fact i.e. the issue of counting or not counting the votes at the polling station. Learned counsel cited in support the case or Opia v. Ibru (1992) 1 NWLR (Pt. 231) 658 at 692 F. He urged us to set aside the order of trial tribunal cancelling the votes scored by both parties at Tuluttu polling station as the total number of those who were accredited outnumbered the total number of those who actually voted in Tuluttu polling station and that there could not have been over voting at Tuluttu polling station which was contrary to the tribunal’s findings. Learned counsel submitted further that cancellation or alterations of votes could not invalidate the result of an election.
In his submission, learned counsel for the 1st respondent argued that the result declared at Tuluttu polling station was unreliable in view of the fact that only 3 votes were scored by the appellant but was inflated to 302 votes. He cited the evidence of PWs 1 & 3 and Exhibit “C” Form EC 8A, in support. Learned counsel stated further that there were evidence that the presiding officer did not complete the statement of result for that polling station at the polling station as required by paragraph 30(1) or Schedule 4 to Decree No. 36 of 1998, He argued that the 302 ballot papers if compared with the serial number of those issued al the station would appear different. The lower tribunal therefore did the correct thing by nullifying the result declared at Tuluttu polling station. By this declaration, he concluded, the 1st respondent scored the majority of the lawful votes in the constituency.
The live issue now posed by both learned counsel for the respective parties is the one concerning the cancellation of the election results of Tuluttu polling station. After having collated and comprehended the various arguments put forward by the parties and the tribunal’s decision, I must pose this question; why did the tribunal cancel or nullify the election of that polling station? While examining the printed record of appeal before me. I found what I take to be the answer to the above question where the tribunal stated:
“We have examined the serial Nos. of the ballot papers issued to the presiding officer at Tuluttu polling station, the serial Nos. of ballot papers used and unused. We have also examined Exhibits P2 – P302.
We think that Exhibits P1 – P302 have dealt a devastating (sic) blow to the submission of Mal Mahmud that the said Exhibits P1 – P302 were the ballot papers used at Tuluttu polling station.
Where the APP scored 302 votes. In our view Exhibilts P1 – P302 cannot be related to Tuluttu polling station having regard to the serial numbers of ballot papers issued and used per Exhibit “C”.
In the result, we hold that Exhibits ‘C’ and ‘O’ are not reliable documents to be considered in collecting the votes for the election held on 5/12/98 in Goronyo Local Government Area for the determination (sic) of who won the Chairmanship election.
Accordingly we hereby cancel and nullify the election conducted at Tuluttu polling station. The result for the said polling station ought not and shall not be used in collating. The final result of the election held in Goronyo Local Government Area to determine who won the chairmanship seat of the Local Government Council.”
In amplification of the above findings and holdings, the tribunal made some other startling findings among which are:
“The votes scored by the petitioner and the 1st respondent at the Tuluttu polling station per Exhibit ‘C’ is 3 for the petitioner and 302 for the 1st respondent. Having canceled and nullified the result for the said polling station the votes scored by the two candidates must be subtracted from Exhibits ‘E’ and ‘V’. On Exhibit ‘E’ the petitioner has 237 votes. The 1st respondent has 734 votes. On Exhibit ‘V’ the petitioner has 5971 whereas the 1st respondent has 6049 votes, if 3 votes is (sic) deducted from the 5971 votes of the petitioner he would have 5968 votes. If 302 votes is (sic) subtracted from 6049 votes of the 1st respondent he would have 5747 votes.
The petitioner has the majority of lawful votes cast at the Election held on 5/12/98. Therefore he was the candidate with the majority of lawful votes cast at the election. The return of the 1st respondent was not proper. We hereby hold that the 1st respondent was not duly elected by majority of lawful votes by the 2nd respondent … and also having held that the petitioner had the majority of lawful votes of 5768 he ought to have been returned as the elected Chairman of Goronyo Local Government Council. We therefore hold that the petitioner was duly elected by the majority of lawful votes as the Chairman of Goronyo Local Government.”
it is very necessary to quote the tribunal in extense in order to make clearer the ratio decidendi of the tribunal’s decision. Because, among the potent submissions of learned counsel for the appellant is that the findings or the tribunal are contrary to pleaded facts. I tend to disagree with that submission. This is because, firstly, the above findings, as is clear from the record, were based on pleaded facts upon which valid evidence was led before the tribunal. Let me, for the avoidance of doubt cite an instance. In paragraphs 5 and 6 of the petition the petitioners sated:-
“5. The petitioners aver that in reaching conclusion above the 3rd respondent relied partly on the supposition that the 1st and 2nd respondents scored 302 votes at Tuluttu polling station in Birginjo Ward instead of only 3 votes actually scored by them as shown by Forms EC8A and EC88 (sic) issued by servants of the 3rd respondent in respect of the same station.
- The petitioners aver that if the 1st and 2nd respondents are credited with the only 3 votes scored by them at Tuluttu polling station the petitioners would be the persons leading and entitled to be declared as winners by the 3rd respondent with the majority of 5791 lawful votes cast as against 5749 votes for the 1st and 2nd respondents.”
There were ample evidence in support of these averments upon which the lower tribunal relied, examples are the evidence of DW2, DW3, DW5 DW4., etc.
Secondly, granted that the findings of facts were based on unpleaded and unsubstantiated facts, election petitions being special in nature, are always considered with some degree of liberality. See Obi v. Nbakwe (1984) 1 SCNLR In. For instance, paragraph 15(3) of Schedule 5 to Decree 36 of 1998, has enjoined the tribunal not to feel obliged to confine its inquiries to issues raised in the pleadings only but empowered to inquires into other issues otherwise raised or apparent as it may deem necessary for the purpose of the full and proper inquiry into and determination of the election petition.
Thirdly, it is trite law that an appeal court cannot interfere in the lower court’s or tribunal findings of facts and evaluation of evidence which are so clear and so fair and impeccable. But the Appeal Court will interfere where the findings are not supported by evidence. See Obisanya v. Nwoko (1974) 6 SC 53: Abubakar v. Nana (1974) 5 SC 83; T.A.S.A Ltd. v. L.A.S. Cargo Airlines (Nig) Ltd. (1991) 7 NWLR (Pt.202) 156; Ayua v. Adasu (1991) 3 NWLR (Pt.231) 598.
Accordingly, I have no reason to doubt the finding and holdings of the lower tribunal on these facts.
In conclusion, I sum up by stating that the combined effect or section 87 (1) and (2) of Decree 36 of 1999 has vested the tribunal with powers to annul an election and make consequential declarations. The section states:-
“87(1) Subject to subsection (2) of this section, if the Election Tribunal determines that a candidate who was returned as elected was not validly elected on any ground, the Election Tribunal shall nullify the election.
(2) If the Election Tribunal determines that a candidate who was returned as elected was not validly elected on the ground that he did not score the majority of valid votes cast at the election, the Election Tribunal shall declare as elected the candidate who scored the majority of valid votes cast at the election:”
The allegations in the petition as seem earlier were multi-faceted. Each allegation was carefully diagnosed and effectively treated by the tribunal which culminated into the mortification of the election conducted at Tuluttu polling station and the declaration of the petitioner/1st respondent as the duly elected Chairman by the majority of lawful overall votes, of Goronyo Local Government Council of Sokoto State. I am therefore in complete agreement with the decision of the tribunal.
Accordingly, this appeal lacks merit and it is hereby dismissed. Appellant is to pay N2,000.00 costs to the 1st respondent.
Other Citations: (1999)LCN/0618(CA)