Rabiu Hali V. Bishir Atiku & Ors (1999)
LawGlobal-Hub Lead Judgment Report
ROWLAND, J.C.A.
This is an appeal against the judgment of the Local Government Council Election Petition Tribunal of Katsina State given on 8th day of February. 1999. In its judgment, the tribunal confirmed that the Councillorship election held on the 5th of December, 1988 at Maidabino ‘A’ Ward of Danmusa Local Government Area of Katsina State was conducted substantially in accordance with the provisions of Decree No, 36 of 1998. The tribunal also confirmed that the 1st respondent Bahir Atiku was duly elected and returned by majority of votes cast at election having scored a total votes of 792 as against 345 scored by the petitioner. The tribunal also held that the 4th respondent acted within the law by declaring the 1st respondent as the winner of that election through the 2nd and 3rd respondents. Dissatisfied with the judgment of the tribunal, the petitioner/appellant has appealed to this court. The notice of appeal contains three grounds of appeal. From the grounds of appeal the appellant raised three issues for determination. The issues run thus:-
“1. What is the correct interpretation of section 61 (1) (11), 2 and 3 of Decree No.36 of 1998 read in conjunction.
- If the answer 4:1 above, is positive, has appellant proved his case against the 1st respondent beyond reasonable doubt to warrant a judgment in his favour?
- Whether in view of paragraph 50) (a) of Schedule 5 to Decree No.36 of 1999, appellant’s prayers as contained in paragraph 3 (2F) (i) (ii) and (iii) of the petition are void and unsupportive or the grounds of petition,”
I must say straightaway that the above three issues formulated in the appellant’s brief are to say the least meaningless. They cannot be comprehended and are therefore useless. The learned counsel for the appellant is advised to pick up a good book on brief writing and read it properly before coming back to this court to argue any appeal again. Having said that, it should be noted that the learned counsel for the 1st respondent slovenly adopted the meaningless issues formulated by the learned counsel for the appellant in appellant’s brief.
“Mrs. R.B. Dandu for the 1st respondent submitted that the record of appeal is not complete. She contended that the reply of 2nd to 4th respondents at the lower tribunal is not in the record. She however filed a reply brief on 8th day of March. 1999. They adopt and rely on the brief, she urged this court to dismiss this appeal. Ahmed Abdu Senior State Counsel at the Katsina State Ministry of Justice for 2nd to 4th respondents, submitted that he did not file any brief because their reply at the lower tribunal is not in the record. It is his contention that the record is not complete.”
He submitted that the 2nd and 4th respondents are adopting the judgment of the lower tribunal.
It must be noted that the learned counsel for the appellant was not helpful to this court as to whether or not the record of proceedings is complete. In view of the nature of this case of which time is of essence, we shall make the best use or the documents before us to dispose of it.
At page 4 of the judgment of the lower tribunal the learned counsel for the appellant submitted before the tribunal that there is only one issue that calls for determination, which is:-
“Whether there was corrupt practices in the election conducted in Maidahino ‘A’ Ward in Danmusa Local Government Area on 5th December, 1999 and if so, whether it can be said that the election was conducted substantially in accordance with” Decree No.16 of 1998.”
I agree that the only issue that calls for determination in this appeal is as framed above. As borne by the record the learned counsel for the 1st respondent also agreed that the above lone issue for determination framed by the learned counsel for the appellant is the only issue that calls for determination. The final tribunal also agreed at page 4 of its judgment that the only issue for determination is the lone one framed before it by the learned counsel for the appellant. The lower tribunal also observed that the petitioner now appellant apparently abandoned the first ground of his petition and led no evidence whatsoever in support. The sum total of the submissions of the appellant by his counsel in appellant’s brief is that from the evidence adduced by the petitioner/appellant which stands unchallenged and uncontroverted according to him, it is clear that allegations of undue influence against voters by ward heads and 1st respondent’s pending agents has been proved.
Reliance was placed on the case of
- Nigerian Maritime Service Ltd v. Afolabi (1978) 2 SC. 79
- Omoregbe v. Lawani (1980) 3-4 SC 108.
For the 1st respondent it was submitted that the allegations being criminal in nature they have to be proved beyond reasonable doubt. That there must be some corroborative evidence linking the crimes to the 1st respondent and that the petitioner/appellant is duty bound to establish how the malpractice affected the result of the election. Reference was made to the cases of Ogunbiyi v. Ogundipe & 3 ors (1992) 9 NWLR (Pt.263) 24 at 37. Yaba v. Ibramin A. Alaikun (1998) 6 NWLR (Pt.554) 430 a,434. The learned counsel for the appellant in appellant’s brief made heavy weather of the provisions of section 61(1) of Decree No.36 of 1998. Section 61 (1) reads:-
“61 (1) A candidate is guilty of corrupt practices if he commits any of the offences defined as a corrupt practice under subsection (3) of this section or if any of those offences is committed with-
(a) his knowledge or consent: or
(b) the knowledge or consent of a person who is acting under the general or special authority of the candidate with reference to the election.
(2) If a corrupt practice as defined in subsection (3) or this section is committed by any candidate at an election held under this Decree, the election of that candidate shall be invalid.
(3) The expression ‘corrupt practice’ as used in this Decree, means any of the following offences, that is –
(a) personation; or
(b) treating: or
(c) undue influence; or
(d) bribery: or
(e) aiding, abetting, counseling or procuring the commission of any of the offences specified in paragraphs (a) to (d) or this subsection.”
It seems to me that the question that should now flow from section 61 of Decree No. 36 of 1998 is whether or not the 1st respondent knew or consented to any crime directly or indirectly during the election in Maidabino ‘A’ Ward in Danmusa Local Government Area on 5th December. 1998. I hasten to add that the allegations covered by section 61 (3) of Decree NO.16 of 1998 are criminal in nature and must be proved against the 1st respondent by the appellant beyond reasonable doubt.
See section 108 of the Evidence Act Cap. 112 of the Laws of the Federation of Nigeria, 1990. In the case of Ogunbiyi v. Ogundipe (1992) 9 NWLR (Pt.263) 24 at 37. Kolawole, J.S.C. said:
“Nowhere did the appellant plead in the petition that the 1st respondent by himself committed any of the criminal offences alleged. It therefore means that the appellant was obliged to prove – (1) that Dr. M.O. Soremi as Director General of the Directorate of Food, Roads and Rural Infrastructure in Ogun State, claimed to be the agent of the 1st respondent or that the offences were committed in favour of the 1st respondent with his knowledge or consent of a person who is acting under the general or special authority or such candidate with reference to the election.”
In the case in hand there is nowhere that the appellant plead in the petition that the 1st respondent by himself committed any of the criminal offences alleged or that any criminal offence was committed with his knowledge or consent. The offence of undue influence comes under section 61(3) (c) of Decree No.36 of 1998. Just like Ogunbiyi’s case supra, the petitioner/appellant did not allege the crime of undue influence against the 1st respondent on that day for the purposes of the election.
As shown by the record, P.W.1 by name Abdul Mommoh said about the 1st respondents party agents was that they each of them had a foolscap and a biro prepared to write down the name of people who refused to vote for APP, the 1st respondent’s party.
During cross-examination, P.W.1 said:-
“I was not surprised to see APP agents with biro and foolscap on that day because at that lime I did not know what they meant.”
It means therefore that even P. W.1 himself did not court it as an electoral offence nor saw any danger in it for APP agents to hold foolscap and biro at the polling stations at that material time. I hold the view therefore that the trial tribunal was not in error when it held at page 9 of its judgment that by the APP agents holding biro and foolscap during the election simpliciter does not amount to any electoral offence or undue influence under section 64 of Decree No.36 of 1998 and I so hold.
The trial tribunal decided in part of its judgment in respect of the offence of undue influence. It held that the offence of undue influence was committed on that day of that election by the ward heads, village heads and the district heads. The lower tribunal held further that there was however no evidence before it to show that the 1st respondent consented to what they did for him on that day. I agree with this finding of the trial tribunal as it is supported by the credible evidence before it.
At pages 10 and 11 of its judgment the lower tribunal said in part:-
Again, the petitioner’s prayers, in this petition as read out earlier in this judgment, he is not praying for nullification of the 1st respondent’s election on ground of undue influence.
If even this ground had succeeded it would not have had any effect on the position of the case. This is because this honourable tribunal is not a Father Christmas that will descend into the arena of giving a party what he has not prayed for.”
The above finding of the trial tribunal is sound in law and we here cannot disturb it.
From the totality of the evidence adduced by the appellant vis-a-vis his petition, it is my well considered view that the councillorship election held on the 5th of December. 1998 at Maidabine ‘A’ Ward in Danmusa Local Government Area of Katsina State was conducted substantially in accordance with the provisions of Decree No. 36 of 1998. That being so, this appeal fails and it is dismissed. I affirm the judgment of the trial tribunal given on 8/2/99 in which the 1st respondent Dashir Atiku was duly elected and returned by majority votes cast at the election having scored a total of 792 votes as against 345 votes scored by the petitioner/appellant.
It must be said also that the 4th respondent acted within the law by declaring the 1st respondent as the winner of the election through the 2nd and 3rd respondents.
The respondent are entitled to their costs which I appraised at N1,500.00 against the appellant.
Other Citations: (1999)LCN/0541(CA)
