M.tukur Abba & Anor V. M.ahmed Hassan Jumare & Ors (1999)
LawGlobal-Hub Lead Judgment Report
I.T. MUHAMMAD, J.C.A.
At the local government elections conducted on the 5th or December. 1998. the 1st appellant and the 1st respondent contested for the chairmanship of Makarfi Local Government Council. 1st respondent was declared winner by the 4th respondent when he scored the highest number of votes 19.361 as against 14.244 scored by the 1st appellant 1st appellant and his party All People’s Party (APP) as 2nd appellant were dissatisfied with the result declaration and they riled a petition at the Local Government Council Election Petition Tribunal or Kaduna State (the tribunal).
The appellants as petitioners alleged that the 1st respondent was not qualified to contest the election by virtue of the fact that his nominated vice chairman (not a party in the petition), was in the employment of Makarfi Local Government Education Authority upto and including the 22nd of November, 1998, and that he did not resign his appointment 30 days before the election which contravened the provisions of Decree 36, of 1998. It was further alleged that the 1st respondent and his party agents were involved in corrupt practices prior to the election and on the election day by the use of money to induce voters to elect him and the party.
In their joint reply, 1st and 3rd respondents denied all the allegations. The 4th and 5th respondents, too, denied the allegations.
At the hearing, the petitioners called 3 witnesses. The 1st & 3rd respondents failed a witness. The learned counsel for the 1st & 3rd respondents filed a written address for the tribunal’ s consideration whereas learned counsel for the appellants made oral submissions. After having considered the evidence before it, the lower tribunal found that the petitioners had failed to prove the allegations in paragraph 4(a) & (b) of their petition and it accordingly dismissed all the reliefs including the alternative relief in the petition.
Dissatisfied, the appellants appealed to this court on three grounds. They prayed this court to among other things, set aside the judgment of the lower tribunal and enter judgment in favour or the appellants by ordering the 4th respondent to conduct a fresh election for the chairmanship of Makarfi Local Government.
In the brief of argument filed by the appellants, their learned counsel formulated the following issues:-
“(a) Whether the lower tribunal was right by holding that it was essential for the petitioners to tender the receipt PW3 issued to the nominated vice-chairman for the payment of the one month salary in lieu of notice.
(b) Whether the effect of insufficient denial or traverse was not an admission.
(c) Whether there was any basis for rejecting the evidence of the 3 witnesses called by the petitioner as incredible and worthless.”
Learned counsel for the 1st and 3rd respondents filed a brief on their behalf.
Below are the issues he formulated:
“(a) Whether the petitioners at the trial adduced credible evidence in proof of the allegation that Dan Asabe Aliyu Umar, the running mate of the 1st respondent, who was not in any even made a party to the petition, did not resign from the employment of Makarfi Local Government Education Authority 30 days before 5th December. 1999, the date the local government election was held throughout the Federation, as required by S.11(i)(f) of Decree No. 36 of 1998.
(b) In particular whether the non-tendering of the official receipt as evidence of payment of one month’s salary in lieu or 30 days notice, which was issued by PW3 to Dan Asabe Aliyu Umar, is fatal to the appellant’s case.”
No brief was filed by the remaining respondents, After adopting the brief, the learned counsel for the appellants submitted on issue No. I that it was wrong for the lower tribunal to hold that the petitioners were under a duty to tender the receipt in respect of payment or salary in lieu of notice in view or the pleadings and the evidence of PW3. Further, there was nothing in the respondents’ pleadings and the evidence or DW1 denying the fact that the nominated running male to 1st petitioner resigned on 23/11/98 less than 30 days to the date of the election. On the 2nd issue, learned counsel argued that throughout the pleadings and the evidence of DW 1 and counsel’ s address there was no specific denial of the fact that the nominated vice-chairman resigned on 23/11/98 less than 30 days before the election and that the law is that where specific allegations in Pleadings are not denied and are supported by evidence the court is bound to accept it. Learned counsel argued on issue 3 that the tribunal was in error in rejecting the unchallenged evidence of the 3 witnesses who testified in favour of the petitioners.
He urged this court to grant the reliefs contained in their notice and grounds of appeal.
Learned counsel for the 1st & 3rd respondents adopted his brief. He argued his two issues together in the brief. His prime submissions are that the appellants failed to adduce evidence to the effect that the running mate to the 1st respondent, had resigned 30 days before the date or election (5/12/98) and that the failure to tender receipt of payment of “money” in lieu of the 30 days notice is fatal to their petition. He filed sections 135 & 137 of the Evidence Act. He finally urged the court to dismiss the appeal and affirm the tribunal’s decision of 28/1/99.
I have considered the record of proceedings in this appeal, submissions of the counsel for the respective parties and the prevailing law. I have observed from the judgment of the tribunal below that as a result of abandonment of reliefs (5(c)(1).
(d) & (e) of the petition, same were struck out by the tribunal.
In treating the issues formulated by the parties. I feel a marriage of convenience is inevitable. Thus, issue (b) or the 1st & 3rd respondents falls into issue (a) of the appellant. Equally, issue (a) of the 1st & 3rd respondents fib into issue (c) or the appellants.
The crux or issue (a)is whether the running mate to the 1st respondent who was returned as the elected Chairman of Makarfi Local Government Council did resign his appointment before contesting the election as required by law. The provision of the law that made this stipulation is section 11 (1)(f) of the Local Government (Basic Constitutional and Transitional Provisions) Decree No. 36 of 1998 (the Decree). It states:-
“(1) A person shall not be qualified to hold the office of chairman if-
(f) he is a person employed in the public service or civil service of the Federation or of any State, or of any Local Government Councilor Area Council and has not resigned, withdrawn or retired from such employment days before the date of election.”
The electoral laws under which the elections of the 5th December were conducted have provided that before a candidate could qualify to contest election for chairmanship of a local government councilor area council he must nominate from a ward other than his own ward another candidate who shall run as his associate candidate for the office of vice-chairman. See section 51(1) of the Decree. It is only then that he can be deemed to have been validly nominated for the office of chairman. In selecting his running mate, the candidate for chairmanship election, as a matter of policy, must exercise due care and attention that he selects a person who has scaled through all the qualification tests set by the Decree. This is very necessary as both the chairmanship candidate and his running mate are inseparable twins that must rise and fall together. By the provisions of section 13(2) of the Decree, the provisions relating to qualifications for election etc. other than section 51 (d) & (f) shall apply in relation to the office of the vice-chairman as if references to chairman were reference to vice-chairman. It is mandatory therefore that the qualification required by section 11(I)(f) must also be attainable by the chairman.
As it was the assertion of the petitioners/appellants that the 1st respondent was not qualified to contest the election by virtue of the fact that his nominated vice-chairman, Dan Asabe Umar, was in the employment of Makarfi Local Government Education Authority upto and including the 22nd of November, 1999 and that he only resigned his appointment on 23rd of November, 1998, less than 30 days to the date of the election – 5th December. 1998 (see paragraph 4(a) & (b) of the petition). These sub-paragraphs were one or the live grounds before the tribunal. And among the reliefs sought was a declaration that the 1st respondent was not qualified to contest the said election. (In their joint reply to the petition.
1st & 3rd respondents stated in paragraph 5 thereof:-
“5. In answer to paragraphs 4(a),4( b), 4(c), 4(d) and 4(c) the respondent says as follows:-
- The 1st respondent and his nominated view-chairman were qualified to contest the election. The latter had properly resigned from his employment with Makarfi Local Government Education Authority before contesting the election.”
After the evaluation of evidence called by the parties, the tribunal found as follows:-
“In order to succeed, in their claim that Dan Asabe Aliyu Umar resigned his appointment on 23/11/98, the day PW 1and PW3 claimed he paid one month’s salary in lieu of notice and which Mr. Mahmood claimed was less than one month before election there must be a receipt tendered as exhibit which PW3 claimed in his evidence-in-chief he issued to him when he paid … At that stage the tribunal expected Mr. Mahmood to tender through PW3 the said receipt to substantiate the claim that Dan Asabe Aliyu Umar resigned on 23/11/98 which would not have been 30 days before election. But this was not done. The tendering of the said receipt would have established this material fact and would have enabled the tribunal to determine whether Dan Asabe did not resign his appointment before 30 days to the election or whether he resigned properly or improperly. Since the petitioners are alleging this material fact, they are in law expected to prove it.”
The trite law is that where there is an allegation of the existence of a particular fact, it is the duty or the person who alleges to prove his allegation. S.135(1) of the Evidence Act states:-
“Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.
Thus since the appellants asserted non-compliance with the provision of section 11 (1) (f) of the Decree, they ought to have proved payment or salary in lieu of resignation 30 days before the election date. I agree with the tribunal that the non-production or the receipt PW3 stated in his evidence in chief he issued to the 1st respondent on 23/11/98, as exhibit at the trial is indeed fatal to the petition.
Further, where a party refused to produce evidence that is material which is required to prove certain facts which are within the knowledge of a witness as is the case here, it is presumed that such evidence if adduced will be unfavourable to the person withholding it. See: Section 141(d) of The Evidence Act Habib Bank (Nig.) Ltd. v. Kora (1992) 7 NWLR (Pt. 251) P. 43; Awosile v. Sotunbo (1986) 3 NWLR (Pt. 21)) 471. The tribunal was quite right in my view to have held that section 11(1)(1) of the Decree has not been established to have been violated.
Issue (b) seems to place reliance on the weakness of 1st respondent’s case.
However, in a civil suit, a plaintiff (petitioner) in this case) must succeed on the strength of his case and not on the weakness of the case of the defendant (respondent). See; Aja v. Okoro (1991) 7 NWLR (Pt. 203) 260. It is clear from the record that the petitioners/appellants have failed to prove their allegations. They have therefore lost the strength of their battle. The weakness of the defendants (respondents) if any, could nut have availed them success.
It is no gain saying that the basis upon which the tribunal rejected the evidence of the 3 witnesses called by the petitioners was because the totality of the evidence adduced by the petitioners could not sustain the allegations in paragraphs 4(a) & (b) of the petition. And where the plaintiffs’ (petitioners) evidence failed, there shall remain nothing for the defendants (respondents) to defend. See: Efetiroroje v. Okpalefe II (1991) 5 NWLR (Pt. 193) 517. I think what learned counsel for the appellants wants this court to do is to re-value the evidence taken and assessed by the trial tribunal.The position of this court as an appellate court is that we seldom interfere with the valuation of evidence done by the trial court as that province is specially reserved for the trial court. It is the trial court that heard, saw and assessed the evidence and demeanour of the witness. The trial court speaks better on these aspects. See Williams v. The Suite (191)2) 8 NWLR (Pt.261) 515; Retduwas v. Jwan (1992) 8 NWLR 358 (Pt. 259) 358; Kwasalba (Nig.) Ltd. v. Okonkwo (1992) 1 NWLR (Pt.218) 407.
I am satisfied with the evaluation of evidence done by the tribunal. I find no perversity in it. I have no right to tamper with the valuation.
Accordingly. I find no merit in this appeal and it is hereby dismissed. I affirm the decision of the lower tribunal. The 1st and 3rd respondents are entitled to N2,000.00 the appellants.
Other Citations: (1999)LCN/0608(CA)