United Nigeria Congress Party & Ors V. Democratic Party of Nigeria & Anor (1998)

LawGlobal-Hub Lead Judgment Report

IBRAHIM TANKO MUHAMMAD, J.C.A.

At the end of the election into the Kagarko Local Government Council for the Chairman seat, 2nd petitioner, Mr. Eric Y. Abubakar, who contested under the banner of the United Nigeria Congress Party (UNCP) was declared Chairman, having won with the highest votes. 2nd respondent Mr. Daniel J. Madaki, who contested for same seat under the banner of the Democratic Party of Nigeria (DPN) came next to 2nd petitioner in votes. 2nd respondent was dissatisfied with the election result and he filed his petition to the Kaduna State Election Tribunal. After hearing the parties, the Election Tribunal dismissed the petition and confirmed the result declared by NECON in favour of the 2nd petitioner. Dissatisfied further, the respondents appealed to the Kaduna state Election Appeal Tribunal on two grounds. The Appeal Tribunal reviewed the record of the Election Tribunal, submission of counsel on the grounds and at the end, held that the Election Tribunal erred in law when it excluded the votes cast at Sabon Ice Polling Station. It allowed the appeal and declared the 2nd respondent won the election on the majority of lawful votes. The (U.N.C.P.) 1st petitioner petitioned Government for a review.

The office of the Federal Attorney General filed a brief of argument. One issue was formulated by the Attorney General for consideration. The issue reads:

“Whether the Tribunal properly evaluated the evidence adduced before it in relation to the election results of Sabon Ice Polling Station, particularly Exh. P1, and whether, having regards to the evidence adduced, the Tribunal was right in excluding Exh. P1 from the results of the elections of Kagarko Local Government Council Chairman.”

Mr. J.B. Daudu (S.A.N) for the petitioners filed his brief of argument. Mr. S.A. Udaga for the respondents filed his brief too. Each brief contained its issue for determination which appears identical with the one above. From the arguments of learned counsel, I infer that three main issues dominated the controversy in this petition, viz:

(1) The free gift of votes to 4 parties by the Presiding Officer (P.O.).

(2) The existence of two results in respect of Saban Ice Polling Unit.

(3) The cancellation of Saban Ice Polling result.

On the first point, the twenty five ‘bonus votes’ given to each of the parties except C.N.C. ought to and must be discontenanced. From the result contained in Exh P1, 2nd respondent still had the highest votes and by the provision of sections 11 and 95(2) of Decree No.7 of 1997, he ought to be declared winner of the election.

On the issue of presentation of two results to the Returning Officer; one by the D.P.N. agent, DW3 and the other by the Presiding Officer of Saban Ice polling Station, section 30(4) of Schedule 4 of the Decree requires the Presiding Officer to take the original copy to the Returning Officer at the Ward Collation Centre. In law, this must be accepted as the authentic and valid result as any result tendered by any other person has no force of law.

In connection with the issue of cancellation of results of Sabon Ice polling Station by the Election Officer, section 33 of Schedule 4 of the Decree states:

“33. The decision of the Returning Officer to a question arising in respect of a ballot paper shall be final, and shall be subject to review only on an election petition questioning the election.”This simply means that any decision taken by the Returning Officer in respect of a ballot paper is final only pending determination of that decision by a Tribuna

  There was a petition to the Election Tribunal on whether the Electoral Officer had any power to cancel any vote. The Election Tribunal held, inter alia:

“(a) no satisfactory submission has been given to satisfy the Tribunal that the Returning Officer had a right to nullify the results of the election.”

This piece of holding by the Election Tribunal was upheld by the Appeal Tribunal. The Electoral Officer who testified as DW5 stated his duties which comprised of cancellation of election results where necessary. He later said in evidence that he was not the one who cancelled the Saban Ice Polling station results. It was the Ward Returning Officer. The Returning Officer, DW4, in his evidence denied having cancelled the result. This is what he said:

“The Presiding Officer said he will tell the truth.

5th respondent narrated that immediately the voting was completed at Sabon Ice Polling Station there was a ballot remaining in respect of the Chairmanship election. He and the agents of the political parties decided to share the ballot papers equally amongst them, with this report the Electoral Officer decided to cancel the result of the election for Sabon Ice Polling Station.”

From the pieces of evidence quoted above, it is now clear that:

(1) the specific officer who cancelled the result in respect of Sabon Ice Polling Station is not yet known because of the denials by the DW4 and 5.

(2) the election result was cancelled because of the addition of the ‘bonus votes’ of 25 votes to each of the 4 parties.

(3) provision of the enabling law that empowers for such cancellation by a NECON officer has not been revealed.

It must be noted that whoever must have cancelled the result in respect of a Polling stations must, ipso facto, have a the power to do so. The enabling Decree, No. 7 of 1997 has certainly made no provision for that. Accordingly, I am in agreement with the decision of the Appeal Tribunal that the cancellation of the results of the Chairmanship election in respect of Sabon Ice Polling station had no base in law. After all almost all the witnesses testified that the election at that Polling Station was peaceful, free and fair. The allegation of diversion of ballot box and the soiling of the result could not be established. He who alleges must prove. See: section 137 of the Evidence Act. Anyanwu v. Bara (1992) 5 NWLR (pt 242) 386.

In conclusion, this petition lacks merit and is hereby dismissed. I affirm the decision of the Appeal Tribunal which declared second respondent as the validly elected Chairman of Kagarko Local Government Council of Kaduna State.

Other Citations: (1998)LCN/0414(CA)