Danladi Isa Kademi V. Jazuli Usman & Ors (1999)

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VICTOR AIMEPOMO OYELEYE OMAGE, J.C.A. 

This is the second coming of this appeal to the Court of Appeal of the matter in controversy over the seat of the Chairmanship of the Gaya Local Government in Kano State. The first appeal ended in the affirmation of the decision of the lower court that a Bye Election should be conducted in three polling units at Malmakawa ward of Gaya Local Government. In doing so the Court of Appeal in appeal No. CA/K/EPLG/27/99 set aside the return of the 1st Respondent as the Chairman of Gaya Local Government. Following the decision of the court of Appeal, a bye election was held on 20th March, 1999 and the 1st Respondent was again declared the winner.

The petitioner as at the court below, was dissatisfied with the verdict of the election, he filed a petition before the Local Government. Election Tribunal Kano state challenging the return of the 1st Respondent. The 1st Respondent entered a conditional appearance on 13/4/99 and filed a motion against the petition on 19/4/99. The 1st Respondents motion prayed for an order of the lower Tribunal to strike out the petition, on the following grounds:-

(1) That the name of and scores of the 3rd contestant in the election, Isa Shehu of the Alliance for Democracy was not stated in the petition.

(2) That the name of the Occupier of the address of the petitioner for service was not stated at the foot of the petition; and

(3) That the address of the 4th Defendant was not stated on the petition.”

The lower court considered the objection rose by the 1st Respondent in his motion on notice and held that the petitioner/Appellants petition was incompetent and struck out same. It is against the ruling of the lower court that the petitioner, Danladi Isa Kademi has filed this appeal, on 28th April, 1999, the appellant filed three grounds of appeal against the ruling of 22nd April, 1999 of the Local Government Election Tribunal of Kano State. In accordance with the rules of this Court the appellant formulated two issues. The second issue enquired whether the decision of the court was on all fours with the four cases listed on page 3 of the Appellants brief of argument filed on 11/5/99. The first issue is “whether the election petition filed by the appellant complies with the provisions of paragraph 5 of schedule 5, of Decree No. 36, and the Decree.”

Before going into the respondents brief, it is appropriate to recite here under the requirements of Decree No 36 concerning petition on the Local Government election as it relates to the issues raised at the lower tribunal on which the lower court ruled, which provoked this appeal. The issue will be recorded in relation to the objection raised as above. (1) That the name of parties and scores of 3rd contestant was not stated in paragraph 5 (1) (a) and (c) of Schedule 5, to Decree NO 36 Local Government Basic constitutional and Transitional provisions) Decree 1998, under the provision of a general heading titled “Procedure for election petition,” the following is prescribed under paragraph 5-1 a, b, c. “An election petition under this Decree shall (a) specify the parties interested in the election petition (b) … (c) state the holding of the election, the scores of the candidates and the person returned as the winner of the election etc.

The above also relate to complaint No. 3 in the motion of the 1st Respondent on whether or not all the parties in the election were named. In paragraph 4 of the said Schedule 5, to Decree No 36, it is prescribed as follows:-

(4) At the foot of the election petition there shall also be stated an address of the petitioner for service within five Kilometers of a post office in the Judicial Division and the name of the occupier at which address documents intended for the petitioner maybe left.”

(5) If an address for service and its occupier are not stated as specified in sub paragraph 4 of this paragraph the petitioner shall be deemed not to have been filed unless the election Tribunal otherwise orders.”

(6) An election petition which does not compain with sub paragraph 1 of this paragraph or any provision of that sub paragraph is defective and maybe struck out by the election tribunal.”

(7) The form TF002 set out in Schedule 6 to this Decree or one substantially like it shall be sufficient for the purposes of this paragraph.”

Underlining mine for emphasis and comment. In his brief of argument the appellant argued that he had used form TF002 which makes no provision for the name of the occupier of the petitioner’s premises. In another paragraph the appellant argued with the aid of a dictionary that he had stated the address of the occupier of the premises where the petitioner resides. When he wrote on the petition as follows:-