Borno State Independent Electoral Commission (Bosiec) & Ors V. Alhaji Ali Kachala (2005)

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NZEAKO, J.C.A.

On 25th June, 2004, Juddum Mohammed, J., delivered a ruling in favour of the plaintiff who is the respondent in this appeal. The learned trial Judge granted the reliefs sought in the plaintiff’s originating summons. Dissatisfied, the defendants appealed to this court.

Set out hereunder are the questions for determination by the court in the originating summons of the respondent, together with the reliefs sought, the statement of facts and particulars in support of the application.

The application of the plaintiff is for the determination of the following questions:-

“1. Whether having regards to S. 197(i)(b) and paragraphs 3 & 4(a) Part II of the Third Schedule to the Constitution of the Federal Republic of Nigeria, 1999, read together with sections 3 & 4 of the Borno State Local Government Elections and Election Petition Law, 2004, any other person apart from the Borno State Independent Electoral Commission is charged with the conduct of elections to Local Government in Borno State?

2. If question 1 is in the affirmative, whether the Executive Governor of Borno State (sic) the Caretaker Chairman of Mobbar Local Government has powers to direct the cancellation of return of the plaintiff as elected Chairman of Mobbar Local Government at the elections that took place on the 27th March, 2004?
3. Whether the cancellation of the elections in Mobbar Local Government after the return of the plaintiff as elected Chairman for whatever reason is not ultra vires the powers of the Borno State Independent Electoral Commission (BOSIEC) having regard to S. 50(1)(2)(3)(4)(5) & (6) read together with paragraph 18(3)(f), 21(1-4) & 22(a) of the Borno State Local Government Elections & Elections Petition Law, 2004 & the Guidelines for Local Government Council Elections, 2004 respectively?
4. Whether having returned the plaintiff as duly elected, under the relevant laws. (Sections 11(2), 37, 42 & 46(1)(2) of Borno State Local Government Elections and Elections Petition Law, 2004 and paragraph 22(a) of the Guidelines for Local Government Council Elections, 2004), the defendants can annul the plaintiff’s election without presenting an election petition at the Borno State Local Government Elections Tribunal challenging his return on the grounds specified in the law.

And whereof the plaintiffs hereby seek the following reliefs from this court.

1. A declaration that only the Borno State Independent Electoral Commission (BOSIEC) is charged with the responsibility of conducting Local Government Elections in Borno State.
2. A declaration that the 3rd defendant or any other person whatever cannot direct the 1st defendant to cancel the election of Mobbar Local Government, whereas the plaintiff was duly returned elected.
3. A declaration that the cancellation of the Mobbar Local Government held on the 27th March, 2004, by the 1st defendant is ultra vires the powers of the 1st defendant.
4. A declaration that the plaintiff having been duly returned elected by the agents of the 1st defendant as required by law as chairman of Mobbar Local Government on the 28th March, 2004, cannot again cancel or question the return except through an election petition properly presented at the Borno State Local Government Election Petition Tribunal.
5. An order setting aside the purported cancellation of the election into Mobbar Local Government held on the 27th March, 2004, by the 1st defendant.
6. Injunction restraining the defendants their servants and/or agents from conducting another fresh election in Mobbar Local Government or from taking any steps towards the conducting of election for chairmanship position in Mobbar Local Government Borno State.
7. An order directing the 3rd defendant to swear in the plaintiff as the elected chairman of Mobbar Local Government forthwith.

Statement of facts and particulars in support of the application.

1. The plaintiff is a Nigerian citizen and was duly returned elected as the chairman of Mobbar Local Government at the elections held on the 27th March, 2004.
2. The 1st defendant is a creation of the 1999 Constitution charged with the organization and conduct of Local Government elections in Borno State.
3. The 2nd defendant is the Chief Law Officer of Borno State charged with the responsibility of defending the Government in all legal matter and prosecuting action on behalf of the Government.
4. The 3rd defendant is the Executive Governor of Borno State created by the Constitution of Nigeria, 1999.
5. The 1st defendant conducted Local Government elections in Borno State on the 27th March, 2004 and made returns of elected candidates thereof.
6. The plaintiff contested elections conducted on the 27th March, 2004, for the office of Chairman Mobbar Local Government and was duly returned elected on the 28th March, 2004, by the 1st defendant and her agents.
7. The 3rd defendant as Executive Government of Borno State directed the 1st defendant to cancel or annul the return of the plaintiff and ordered fresh election at Mobbar Local Government.
8. The 1st defendant without proper advise (sic) from the 2nd defendant annulled the return of the plaintiff based on the aforesaid directive and other purported reasons ordered fresh election to be held in Mobbar Local Government.
9. The originating summons shall be grounded and verified by affidavit of the plaintiff.

Statutes to be relied upon during the hearing of the suit

1. The Constitution of the Federal Republic of Nigeria, 1999.
2. Borno State Local Government Election Law, 2004.
3. Guidelines for Local Government Council Elections, 2004.
4. Manual for Election Officials, 2004.
5. Other Relevant Statutes”.

The summons was supported by a verifying affidavit of 13 paragraphs sworn to by the plaintiff himself. In paragraphs 2-11 relevant hereto, he deposed as follows:-

“2. That I know as a fact that, registered political parties presented candidates for Local Government Elections in Borno State and I was presented by the Peoples Democratic Party (PDP) for Chairmanship office at Mobbar Local Government.

3. That the 1st defendant is the body charged with the organisation and conduct of Local Government Election in Borno State and had conducted election on the 27th March, 2004, into offices of chairman and councilor for the 27 Local Governments.
4. That on the 27th March, 2004, the day of the elections the 1st defendant secured the assistance of security agents to facilitate peaceful conduct of elections at all the 10 wards in Mobbar Local Government and specifically at all the ward collation centres and Local Government collation centres together with accredited agents of the parties that fielded candidates.
5. That after the close of the polls and collation of all the results at the Local Government collation for Mobbar Local Government, I was returned elected chairman of Mobbar by the 1st defendant and its agents and a declaration Form EC(8E) was given to me dated 28th March, 2004. Now shown to me is a copy of the declaration of result form marked as exhibit ‘A’.
6. That the officers of the 1st defendant also gave my agents a copy of the summary of results from wards for the election of the chairman; Form EC8C, which contains the votes received by the parties dated 2Sth March, 2004, wherein I scored 6,370 to emerge the winner. Now shown to me marked as exhibit ‘B’ is a certified true copy of the form dated 28th March, 2004.
7. That on the 29th March, 2004, at the office of the 1st defendant when I came to their office, I was informed by the chairman of the 1st defendant and I verily believe him to be true that the 3rd defendant had directed through the Chairman, Caretaker Committee of Mobbar Local Government vide a letter dated 27th March, 2004
8. That on the 29th March, 2004, by the 1st defendant, requesting them to cancel the entire election at Mobbar Local Government. Now shown to me marked as exhibit ‘C’ is a copy of the letter.
9. That I briefed the secretary of PDP in Mobbar Local Government on my findings and on the 1st April, 2004, the secretary conveyed the position of the PDP in Mobbar Local Government to the Chairman, Borno State Independent Electoral Commission in a letter dated 1st April, 2004. Now shown to me marked as exhibit ‘D’ to (sic) a copy of the letter.
10. That the 1st defendant purportedly cancelled my return through a letter dated 29th March, 2004, copied to all parties including my party and that a fresh election be held soon. Now shown to me marked as exhibit ‘E’ is a copy of the letter dated 29th March, 2004.
11. That I know as a fact that, there is no election petition challenging my return by anybody at the Borno State Local Government Election Tribunal.
12. That I know as a fact that, election in Mobbar Local Government were conducted in substantial compliance with the principles of the law.”

Form EC(8E) – exhibited as exh. A with the affidavit dated 28th March, 2004, for Mobbar Local Government is entitled “Borno State Independent Electoral Commission Declaration of Result for Election to the Office of the Chairman”. It is shown at the bottom to be issued to Alhaji Ali Kachalla of PDP as, “having satisfied the requirement of the law and scored the highest number of votes hereon declared the winner and is returned elected”.

The respondent was recorded in exh. A as scoring 6,370 votes. Exhibited also is summary of results of the 10 wards collated and signed by Mohammed M. Biu, collation officer and dated 28/3/2004. It was him who also signed exh. A as the returning officer. There are other exhibits to be referred to in due course.

The appellants, by a motion on notice filed on 1/6/2004, applied to the trial court for an order striking out the originating summons on the ground that the High Court lacks jurisdiction to entertain the suit. In paragraph 3, thereof particulars supplied in the accompanying affidavit of 5 paragraphs read as follows:-

“(a) The relief sought by the plaintiff… is in connection with Local Government Election.