Stephen Kwaptoe V. Victor M. Tsenyil & Ors (1999)

LawGlobal-Hub Lead Judgment Report

MANGAJI, J.C.A.

This is an appeal against the judgment of the Local Government Election Petition Tribunal sitting in Jos, Plateau State wherein the appellant’s petition was dismissed on 12th February, 1999. Dissatisfied with the decision, the appellant appealed to this court.

The notice and grounds of appeal contain three grounds and it was filed on February 19, 1999.

On 15th March, 1999 and in accordance with the practice of this court the appellant filed his brief of argument. The 2nd, 3rd and 4th respondents who were not served in good time, filed their joint brief of argument on 19th March, 1999 and this court, just like counsel on the other side, were served in court. I appreciate learned counsel’s predicament in that he received no service in good time. The practice that has now become the vogue by counsel should stop and it is that learned counsel – especially those representing appellants or cross-appellants as the case may be – form the habit of rushing documents to this court usually one day before the date stipulated for filing the document. Thus the court, just like the opposing side, is presented with a fait accompli in that the Justices in the panel have to strain themselves in order to grasp the contents of the rushed documents bearing in mind

the period of limitation in appeals in election petition matters. It is not a good habit and it is more likely to inspire disrespect to the counsel concerned for parties come to court for the settlement of their disputes arming themselves with the evidence they have which depend so much on the time factor stipulated by statute.

To withhold filing the necessary documents hoping as it seems that the opposing side would have little or no time to respond, to my mind is unfair and may even amount to dishonesty. It is hoped that this practice will forthwith stop so that together, we shall march ahead in the attainment of justice according to law.

Be that as it may and as I earlier on pointed out, parties filed and exchanged briefs of argument. The appellant formulated two issues for determination from the three grounds of appeal he filed. The issues are couched thus:-

“(2) Whether or not the petitioner/appellant proved that the elections at Ungwa-Zam 15A and 15 polling units were tainted with irregularities substantially enough to warrant the cancellation of the results.

(22) Whether or not the appellant scored the majority of lawful votes cast at the election, if either of the results in Ungwa-Zam 15A and 15 polling units is nullified to warrant the return of the appellant as the councillor elected to represent Kalong Ward of Shendam Local Government.”

I should perhaps point out that the 1st respondent filed no brief of argument and appeared not interested in doing so. His only reaction when he appeared before us was that he would adopt the joint brief of argument filed for and on behalf of the 2nd, 3rd and 4th respondents. I have my sympathy for the 1st respondent in not appreciating the working of this court but I feel so strongly and quite unfortunately that his counsel told him as he reported before this court that he should appear and tell the court that he was adopting the said joint brief for 2nd, 3rd and 4th respondents. I hope such an advice was never handed to the 1st respondent. I therefore say no more on it.

In the event it was the joint brief of 2nd, 3rd and 4th respondents that was filed on the other side of the appeal. They identified three issues for determination all of which are similar to the two issues formulated by the appellant. I therefore prefer the issues formulated by the appellant. I shall as well consider both issues for determination as formulated by the appellant together in the manner learned counsel for the appellant did in arguing his client’s case in his brief.

Learned counsel submitted as can be gathered from his brief of argument that the tribunal erred in its finding as reflected at page 65 of the record of appeal. That having found that four extra votes were contained in the result in respect of Ungwa-Zam 15A polling unit it was prudent for the tribunal to have held that there was malpractice or irregularity. While relying on the case of Terab v. Lawan (1992) 3 NWLR (Pt. 231) 569 at 587-588 learned counsel submitted that there is irregularity where the results of the election exceed the total number of registered voters for the unit. He urged us to allow the appeal on this ground.

Further in submission, learned counsel said that having found four extra votes in the results of Ungwa-Zam 15A polling station the proper finding ought to be that the election was not free from irregularities. He submitted that in consequence of the over-voting the tribunal should have nullified the election. He cited Solomon Wuyeb v. Aliyu Ndungpunghai & ors PS/LGET/J28/97 an unreported case of the Plateau State Local Government Election Tribunal dated 9th June, 1997 in support.

Continuing, learned counsel submitted that if the votes cast in Ungwa-Zam 15A polling unit are deducted from the overall results, the appellant would have won by the majority of valid votes.