Usman Umar Yaba V. Alh. Ibrahim Assalamu Alaikum & Ors (1998)
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UMARU ABDULLAHI, J.C.A.
At an election conducted by-the-National Electoral Commission of Nigeria (NECON) on 15th March, 1997. The appellant, herein, Usman Umar Yaba contested the election for the post of the chairmanship of Malumfashi Local Government council in Katsina state on the platform of the UNCP, while Alh. Ibrahim Assalamu Alaikum, 1st respondent herein, also contested for the same position under the platform of the DPN.
At the conclusion of the poll, the 4th Respondent (NECON) declared and returned Alh. Ibrahim Assalamu Alaikum, 1st respondent as the duly elected Chairman of Malumfashi Local Government Council.
The appellant, Usman Umar Yaba was not happy with the development, he filed a petition before the Election Tribunal on the grounds that:-
- 1st respondent was not qualified to contest the election.
- That the election was voided by corrupt practices, irregularities and offences against Decree No. 7 of 1997. The Election Tribunal dismissed the petition on all the grounds and held that Alh. Ibrahim Assalamu Alaikum was qualified to contest the election and that no malpractices were proved to have been committed at the election.
The appellant was not happy with the decision of the Election Tribunal. He appealed to the Election Appeal Tribunal.
The Election Appeal Tribunal after, considering the appeal, allowed it and found that the 1st respondent was not qualified to contest the election on the ground that he, 1st respondent was elected as Chairman on party bases immediately preceding the election in question. Also that the allegations of malpractices were proved.
It is against this decision of the Election Appeal Tribunal that the political party (DPN) of the 1st respondent made representation to the Review panel.
Arising from the work of the Review panel, the Attorney-General of the Federation filed a brief of argument. In the brief, two issues were formulated.
They read as follows.
- Whether Alhaji Ibrahim Assalamu Alaikum was qualified to contest the Local Government Election as Chairman Malumfashi Local Government council.
- whether the allegation of electoral malpractices/irregularities were proved.
Another brief of argument was filed on 15/4/98 by counsel for and on behalf of the 1st respondent.
Some six issues were formulated for determination.
They are as follows:-
“1. whether the Election Appeals Tribunal was right in granting the motion to adduce new and or further evidence of the election of the said Ibrahim Assalamu-Alaikum on party basis in an election prior to the one of March 15, 1997?
- Whether the dispute of the said election could have been tried by motion as was done by the Election Appeals Tribunal?
- whether the Election Appeals Tribunal was right to have tried the case as if it were the Trial Tribunal?
- whether the documents annexed to the said motion papers being uncertified public documents were admissible In Law?
- Whether the Lower Tribunal (Election Appeals Tribunal) was right when it allowed the appeal and ordered for the removal of Ibrahim Assalamu-Alaikum as it did?
- Whether Ibrahim Assalamu Alaikum was given a fair hearing.”
Let me quickly mention that this brief and all the issues formulated did not actually relate to the main issue of the petition before the Election Tribunal.
The issue arose at the proceeding before the Election Appeal Tribunal. It relates to an application filed before the Appeal Tribunal for leave to adduce new and/or further evidence on an issue not raised at the Election Tribunal. The Election Appeal Tribunal granted the application.
One of the new issues raised arising from this application was the issue re-emphasising that 1st respondent was once elected Chairman of the Local Government on party bases
The rest of the argument and submissions made by learned counsel for 1st respondent relate solely to that application and not to the issues dealt with by the Election Tribunal.
There is no dispute that the main issue that commends itself for the determination of this matter is whether the 1st respondent was qualified to contest this election. In other words was the 1st respondent caught up by the provisions of section 11 (1) (h) of Decree 7 of 1997; which reads thus:-
“11-( 1) A person shall not be qualified to hold the office of Chairman if –
(h) he has been elected to the office of Chairman on party bases at the election immediately preceding the election in question.”
This provision is very clear. It requires no expantiation.
Has there been an election on party bases in which the 1st respondent was elected as Chairman of Malumfashi Local Government Council.
My answer here will definitely be in the negative.
The last Election held immediately preceding this particular election was conducted on a non-party bases in my view, it would not disqualify the 1st respondent to contest this election. What puzzles me here is that even the Appeal Tribunal itself made the following finding in its judgment:
“We however find it difficult to agree with the submissions of the learned counsel and virtue (sic) of para 15(3) we have studied all legislation (sic) backwards from the time of the promulgation of Decree 7 of 1997 and we have seen that one election was held on non party basis (sic) under the Local Government Election Decree No. 6 of 1996.” (underlining provided).
I can not see how the Appeal Tribunal can turn round at the end of the day to also hold that:-
“From the totality of the foregoing we must find that the appellant has established that the 1st respondent was a chairman on party basis (sic) at the election immediately preceding this election.”
I do not know what the Appeal Tribunal totaled up to arrive at this conclusion.
I have no doubt in my mind that the Election Appeal Tribunal was in grave error, to reach this conclusion.
Clearly, the Election Appeal Tribunal misconstrued the provisions of 5.11 (1) (h) of Decree No.7 of 1997 to arrive at this decision. If the Appeal Tribunal had adopted a correct approach to the provision of section 11 (1) (h) of Decree 7 of 1997, it would not have regarded a non party election as the same as an election held on a party bases. I may even go further to say that the provisions of section 11 (1) (h) of Decree 7 of 1997 intended to address the next Local Government council Chairmanship Election coming up after this election of 15/3/97 since the last election preceding this one was held on nonparty bases.
On the 2nd issue dealing with the allegation of malpractices and irregularities, I agree with the submissions of the Attorney-General of the Federation that no sufficient evidence was adduced to support the allegations.
Listing of acts of irregularities without corresponding evidence to support same is non starter. I agree that the appellant has failed to state how the irregularities affected the result of the election.
On the whole it is my judgment that the decision of the Election Appeal Tribunal can not be allowed to stand. It is accordingly set aside.
It is also my judgment that the election and return of Alh. Ibrahim Assalamu Alaikum as the Chairman of Malumfashi Local Government council by NECON be and is hereby affirmed.
Other Citations: (1998)LCN/0466(CA)