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?
- 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.
The learned counsel submitted that even if all the accredited voters voted in favour of the 1st respondent, the appellant would still be the winner.
In reply to the 1st issue, the learned counsel to the 1st respondent submitted that the petition was filed on the 19th December 1998, when no secretary to the tribunal had arrived in Yobe State. On the 30th December 1998, the secretary completed the filling formalities and signed the petition. The learned counsel therefore submitted that it was not filed out of time.
On the 2nd issue it was the contention of the learned counsel that the trial tribunal was right in ordering fresh election because about 6,000 voters did not vote and the difference between the votes of appellant and the 1st respondent numbered only 1,681.
I have given very serious thought to the submissions of counsel on both sides.
It is trite law that when a statute provides a particular method of performing a duty, that method alone and no other must be adopted. See Co-operative and Commerce Bank Nig. Plc. v. Attorney, General of Enugu State (1992) 7 NWLR (Pt.261) 528.
Section 82 of Decree No. 36 of 1998 reads:
“An election petition under this Decree shall be presented within fourteen days from the date on which the result of the election is declared.”
This section is mandatory.
Paragraph 3 sub 1-4 of the 5th schedule to Decree No. 36 of 1998 is reproduced hereunder in full:
“1. At the time of presenting an election petition, the petitioner shall give security for all costs which may become payable by him to a witness summoned on his behalf or to a respondent.
- The security shall be of such amount not less than N3,000 as the Election Tribunal may order and shall be given by depositing the amount with the Election Tribunal.
- Where two or more persons join in an election petition, a deposit as may be ordered under sub-paragraph (2) of this paragraph of this schedule shall be sufficient.
- If no security is given as required by this paragraph, there shall be no further proceedings on the election petition though the time prescribed under sub-paragraphs (1) and (3) of paragraph 2 of this schedule shall continue to run.”
From this paragraph it is clear that on the presentation of an election petition not less than N3,000.00 shall be given by depositing the amount with Election Tribunal. If no security is given, there shall be no further proceedings on the election petition. What the 1st respondent did when he presented his petition to the Chief Registrar of Yobe State High Court was to pay a sum of N200.00. Even the amount he paid on the 30th December 1998 to the secretary of the tribunal on receipt No. 7539701 is not stated.
It would appear that the 1st respondent encountered administrative problems in the presentation of his petition. However, administrative difficulties cannot over ride the express provisions of the law.
I am therefore of the firm view that when the petition was perfected on the 30th December, 1998, it was clearly out of time and should not have been entertained by the Election Tribunal.
On the 2nd issue, it is my view that only 1,553 voters in Goniri Ward were accredited to vote and if you take this number away from the appellant’s vote, he will still be the winner. The trial tribunal was wrong in using the figure of 6,000 in the ward because there was no evidence before it that all the voters in the ward would have voted.
Consequently, I allow the appeal and set aside the judgment of the Election Tribunal and strike out the 1st respondent’s petition before that tribunal. Even on the merit the petition ought to have been dismissed. In the result the appellant is declared as the duly elected chairman of Gujba Local Government Council of Yobe State.
Other Citations: (1999)LCN/0609(CA)