Jazuli Usman V. Danladi Isa Kademi & Anor (1999)
LawGlobal-Hub Lead Judgment Report
MUNTAKA-COOMASSIE, J.C.A.
There was a nationwide chairmanship election into the Local Governments held on 5/12/98. Gaya Local Government Council of Kano State was held on the same date. That Gaya Local Government has 157 units. After the result was collated and counted. The 1st respondent, Mallam Danladi Isa Kadomi, polled a total sum of 10,413 whilst the appellant was credited with 10,739 votes. Consequently the appellant was declared winner.
Aggrieved by the return of the appellant as the elected Chairman of Gaya Local Government Council by the 2nd respondent, Mallam Danladi Isa Kadomi, filed an election petition at the Local Government Election Tribunal holden at Kano. The appellant, who was the respondent at the tribunal, lost and the respondent herein was held to be the winner. The appellant and the 1st respondent at the tribunal contested under the platforms of All Peoples Party and Peoples Democratic Party respectively.
Election petition was duly filed and served. Hearing commenced in earnest. The petitioner called five (5) witnesses in order to support his claim while the respondent, now appellant, called a total of eight (8) witnesses. The main grouse of the 1st respondent was that election into the chairmanship at Gaya was only held in 10 out of 13 units. Election, according to the petitioner, did not hold in the following three units, namely:
(a) Maimakawa Madakanei;
(b) Maimakawa Cikin Gari; and
(c) Maimakawa Asayaya
A number of exhibits were tendered and admitted by both parties. After addresses by both counsel it was clear that there was no dispute that the election result was announced without the election in the above three units being hold. The petitioner now respondent contended that since the election was not held in three out of 13 units the whole election result as announced by INEC be nullified and a fresh election be ordered. The appellant’s counsel submitted that since the appellant herein scored the majority votes cast at the election, the return of the appellant cannot be set aside by the tribunal. He relied on section 92(2) and paragraph 28 of Schedule 4 of Decree No.36 Local Government (Basic Constitutional and Transitional Provisions) Decree 1998.
The Election Tribunal, hereinafter referred to as tribunal simpliciter, in a considered judgment delivered on 12/2/99 upheld the submissions of the petitioner’ counsel and entered judgment in favour of the petitioner and set aside the return of the appellant as Chairman elect of Gaya Local Government. I reproduce substantially the decision of the tribunal thus:-
“Furthermore, the age old case of Bassey v. Young (1963) 1 All NLR at p.31 the facts that the polls opened late was adjourned an irregularity…
Having made this consideration we are in total agreement with Mr. Tola that the failure of the Commission to hold election substantially affected the results of the election in Gaya Local Government and in turn violated the final return.
We are in final agreement that non-compliance affected the result substantially and we are duty bound to accede to the petitioner’s prayers … Consequently, this petition succeeds. The return of the 1st respondent is hereby set aside. We order the 2nd and 3rd respondent to conduct fresh election at the three units viz, Maimakawa Madakanci; Maimakawa Cikin Gari and Maimakawa Asayaya, and the results therein used to compute the final results or the election in Gaya Local Government, by adding same to Exhibit 1.”
The appellant herein was not satisfied with the above decision and appealed to this court and filed a notice of appeal on 18/2/99 which contains three grounds of appeal. I reproduce same without their particulars thus:
“Ground 1
The trial tribunal erred in law in holding …. we are in total agreement with Mr. Tola that the failure of the Commission to hold elections substantially effected the results of the elections in Gaya Local Government Area and in turn violated the final return’ which error has occasioned a miscarriage of Justice.
Ground 2
The trial tribunal erred in law in ordering the 2nd and 3rd respondents, INEC, to conduct a fresh election at the 3 units of Madakanci; Cikin Gari and Asayaya units when the said relief was not specifically sought for by the petitioner/respondent at the tribunal which error has occasioned a miscarriage of justice.
Ground 3
That trial tribunal misdirected itself when it held that ‘we having studied all the circumstances of this case laid squarely the blame for the elections not holding on the 2nd and 3rd respondents, INEC officials’ which misdirection has led to a miscarriage of justice.”
Based on the Practice Direction, both parties filed their briefs of argument. The appellant’s brief dated 22/2/99 was filed on 4/3/99. Initially three issues were formulated thus:-
“i. Whether the chairmanship election into Gaya Local Government Area or Kano State conducted on 5th December 1998 was in substantial compliance i.e. with the principles and policy of Decree No. 36 of 1998 and the Election Guidelines.
ii. Whether having regards lo the totality of the election in the 10 wards of Gaya Local Government Area, the appellant scored a majority of valid votes cast and was duly returned the Chairman elect.
iii. Whether having regards to the pleadings between the parties, the trial tribunal could suo motu order fresh elections in the 3 units of Madakanci, Cikin Gari and Asayaya units when the said relief was not specifically sought for by the petitioner at the tribunal.
Alternatively, whether the petitioner could alter his prayers as contained in the judgment after expiration of 14 days time limit under section 82 of the Decree.
Whether the refusal to vote by the electorate who manhandled and maltreated the INEC officials in the 3 units is sufficient to set aside the return of the appellant having scored the majority votes cast in 154 units of Gaya Local Government Area.
Or in the alternative whether the tribunal was correct in laying the blame for the elections not holding in the 3 units on INEC officials after it had earlier made findings to the effect that electorates manhandled the INEC officials and refused to proceed with elections:
The 1st respondent in turn reasonably formulated two issues for the determination of this appeal by this court thus:-
(1) Whether the tribunal below can award the 1st respondent less relief proved by him out of a whole relief he prayed for.
(2) Whether the non-conducting of election by the 2nd and 3rd respondents in the three units have substantially affected the election having regards to difference of 326 votes between the appellant and the 1st respondent.
The 2nd respondent, INEC, similarly formulated two issues in their brief. They read thus:-
(a) Whether the order to conduct election in Maimakawa Madakanci, Mnimakawa Cikin Gari and Maimakawa Asayaya was validly made.
(b) Whether the failure to hold election in 3 units was the fault of INEC officials.
At the hearing of the appeal on 15/3/99 learned counsel for the appellant, Anwan Esq, relied and adopted their brief filed on 4/3/99 and urged on us to allow the appeal and set aside the decision of the tribunal. He refrained from further elaborating on the brief. Mr. Aluyu learned counsel for the 1st respondent in adopting their brief sought leave of this court to rely on a fresh authority in respect of issue No.1. The authority is Ike v. Ofokaja (1992) 9 NWLR (Pt.263) 42-47 at p. 58 paragraphs B -D. On issue No.2 he added another case of Bassey v. Youn (1963) 1 SCNLR 61; (1963) 1 All NLR p.31 at 32. He then urged this court to affirm the decision of the tribunal and dismiss the appeal.
Mr. Danaji for the 2nd respondent merely adopted their brief and associated himself with the submissions of the appellant.
We have thoroughly gone through the evidence and arguments before the tribunal. We have also analysed the decision of the same tribunal and discovered that
(1) It is a fact agreed by both parties that election in three units of Gaya Local Government has not taken place. It has not been held at all.
(2) It has not been made clear as to how many polling stations were under these three units.
(3) It is not in evidence as to how many votes after accreditation are expected in those wards.
(4) Nobody can say, with any degree of certainty, as to who among the contestants has strong hold there.
(5) A fortiorari, it will be splitting – hairs for anybody to state categorically whether the failure to conduct an election in those three units substantially affected the results of the election in Gaya Local Government.
It is our candid view that if the election substantially complied with the Decree No. 36 of 1998 there is no cause for the tribunal to nullify the election. See s.85(1) or the Decree supra: Na-Gambo v. NEC (1993) 1 NWLR (Pt.267) 9-1. The question of how many units election was conducted freely and how many units disturbance of any kind occured is that of facts which must be resolved by the tribunal itself as a court of trial.
My Lords, the tribunal made findings of fact in respect of this issue and held that failure of the INEC to include the election results of the said three units in the overall results made the announcement of the winner incompetent and void.
The finding of facts by the tribunal is quite unassailable and can never be perverse. We cannot as an appellant court, interfere with such a finding. Although the principle is fast becoming trite, I think it would not be out of tune if one cites the following cases to buttress the point that it is within the province of the trial court or tribunal, which has seen and heard the witnesses to make its findings based on what it has seen and heard. Pascutto v. Adecentro (Nig.) (1997) 11 NWLR (Pt.529)-167: Abadom v. State (1997) 1 NWLR (Pt.479) 1: Oyetayo v Mosojo (1997) 10 NWLR (Pt.526) 627: Adeyeri v. Okobi (1997) 6 NWLR (Pt.510) 534; and Egbaran v. Akpotor (1997) 7 NWLR (Pt.514) 559.
After a careful revisiting or the stance taken by the appellant and Mr. Danaji learned counsel to the 2nd respondent, and after reading section 92(2) and paragraph 28(1) of Schedule 4 it is manifest that election in those 3 units were threatened by the electorates themselves. They deliberately, and consciously too, decided to disenfranchise themselves. After the postponement of the election by INEC a new date should have been appointed by INEC to conduct a fresh chairmanship election at those three units that election could not hold because of the threatened violence or disturbances.
The tribunal held that the non-election in those three units amounted to non-compliance with the provisions of the Decree No.36 of 1998 supra and nullified the whole result. Its order were not followed by the appellant. INEC was supposed to take into consideration s.92(1) & (5) of Decree No.36 or 1998 supra.
Assuming without conceding that at least one polling station is created in Gaya Local Government Area it stands to reason that a quarter (1/4) of the whole polling stations were made irrelevant by the act of INEC. The electorates there were denied the results of election in 25% of the area. The fairness of the whole matter is what the tribunal decided. Election in Gaya Local Government chairmanship election must be cancelled and nullified. There was, in that Local Government chairmanship election, no victor no vanquished, that is to say, no winner no looser.
The appeal therefore lacks merit and is hereby dismissed. The decision of the tribunal is affirmed and upheld. The orders of the said tribunal are restored and should be complied with by INEC. The respondents are titled to costs which I assessed at N2.500 against the appellant. Appeal dismissed.
Other Citations: (1999)LCN/0631(CA)