Dallah Malah V. Suleiman Kachalla & Ors (1999)

LawGlobal-Hub Lead Judgment Report

OGEBE, J.C.A.

In the Local Government Election for the chairmanship of Gujba Local Government Council of Yobe State held on the 5th day of December, 1998, the 1st respondent in this appeal, contested the election on the platform of the All People’s Party against the appellant who was sponsored by the People’s Democratic Party. The appellant won the election scoring 6,850 votes as against 5,169 votes scored by the 1st respondent i.e. a difference of 1,681 votes.

The 1st respondent filed a petition at the tribunal signed on 30th December, 1998 praying that it be determined that the appellant was not duly returned and that his election was void and for a declaration that a bye-election be conducted at the said Goniri Ward.

His ground for the petition was that no election was held at Goniri Ward alleging that supporters of the appellant refused to allow the 2nd respondent’s staff to conduct the election.

The tribunal declared the election to be void and ordered bye-election in Gujba Local Government.

The appellant dissatisfied with the decision appealed to the Court of Appeal and filed three grounds of appeal.

The learned counsel for the appellant formulated 2 issues for determination.

They read thus:

“1. Was the tribunal right to have entertained the petition?

2. Having regard to the petition, the evidence and the circumstances, was the tribunal right in nullifying the election?”

The learned counsel for the 1st respondent also filed a brief of argument and adopted the issues formulated by the appellant.

The learned counsel for the appellant submitted that the petition of the 1st respondent was filed and receipted for on the 30th of December, 1998, a period of more than 14 days after the declaration of the result of the election on the 6th December 1998. He said that section 82 of the Local Government (Basic Constitutional and Transitional Provisions) Decree No. 36 of 1998 provides that “an election petition shall be presented within 14 days from the date from which the result is declared.”

The learned counsel pointed out that the payments required by para 3 sub paras 1, 2 and 4 and para 4(1) and (4) were made on the 30th December 1998, thus rendering the petition incompetent and the Election Tribunal should not have entertained it.

He submitted that when a statute provides a particular method of performing a duty regulated by the statute, that method and no other must be adopted. He relied on the case of Co-operative and Commerce Bank Nig. Plc. v. Attorney-General of Enugu State (1992) 8 NWLR (Pt.261) 528.

On the 2nd issue, the learned counsel for the appellant, submitted that the finding of the tribunal that about 6,000 voters from Goniri Ward of Gujba Local Government Council could not vote and therefore, there should be a bye-election was wrong as there was clear evidence that only 1,553 voters were accredited in the ward to vote.