Muhammadu Dangi Juli & Anor V. Alh. Yahaya Moh’d & Ors (1999)
LawGlobal-Hub Lead Judgment Report
PATRICK IBE AMAIZU, J.C.A.
The Independent National Electoral Commission-(INEC for short), a body established by the Independent National Electoral Commission Decree, 1998, and charged with the responsibility of organizing elections in the country, held throughout Nigeria on the 5th of December, 1998, elections for Chairmen and Vice Chairmen of Local Government Councils.
In Kebbi State, Muhammadu Dangi Juli and Abubakar Labbo Gwandu (hereinafter referred to as the Appellants) contested the Chairmanship and Vice Chairmanship respectively of Gwandu Local Government Area under the platform of Peoples Democratic party (PDP).
Their opponents Alhaji Yahaya Mohammed and Bala Ahmed Gwandu (hereinafter referred to as the 1st and 2nd respondents) contested on the platform of All Peoples Party (APP). At the end of the election, the 1st and 2nd respondents were returned as duly elected candidates having scored 8,903 votes as against 8,441 votes declared for the Appellants.
The Appellants were dissatisfied with the result. They filed a petition before the Local Government Election Tribunal Kebbi State (hereinafter referred the Tribunal). The Petition was later amended with the leave of the Tribunal. In the said amended petition, the Appellants challenged the return of the 1st and 2nd Respondents as the duly elected Chairman and Vice Chairman of Gwandu Local Government. The grounds on which they made the challenge were among others.
(1) The conducts of the Respondents, particularly the INEC officials who were joined as 3rd to 6th Respondent in the collation, compilation, and the recording of the election results at Filin Kasuwa, Fulani and Damamjoro polling stations of Kambazu robbed the Appellants 266 votes.
(ii) The election’ in Waratin Magaji and Rango polling stations of Ceberu ward was voided by corrupt practices or offences.
(iii) The non compliance with the provisions of Decree No 36 of 1998 affected the result of the election in favour of the 1st and 2nd Respondents.
(iv) Discrepancies in the result of the election in Yalango polling station as recorded by the 3rd to 6th Respondents in forms EC8A and EC8B etc.
The Appellants as a result of the above claimed as follows-
“It may be determined
(i) that the petitioners be credited with the 266 lawful votes it scored in the Kambazu ward and APP be shorn of the 31 votes gratuitously but unlawfully credited to them at the Dodoru ward and Filin Kasuwa polling stations of Kambazu ward.
(ii) that the elections at the Masama ward Yalango and Garken Noma polling stations and Dalijan ward (the eight polling stations) mentioned, Meruda ward, Wararin Magaji of Ceberu ward(Rugardawa polling station) and (sic) be cancelled for flagrant disregard to the provisions and principles of Decree No.36 of 1998, offences against the said Decree and absence of free and fair election.
(iii) That the said Alhaji Yahaya Moh’d and Bala Ahmed Gwandu were not duly elected or returned and that their election was void that the said Muhammadu Dangi Juli and Abubakar Labbo Gwandu were elected and ought to have been returned.”
The 1st and 2nd Respondents, and 3rd to 6th Respondents filed their replies in which they denied the allegations contained in the Petition. The Tribunal heard the parties and their witnesses.
In a considered judgment the Tribunal held-
“…In the given circumstances, the Petitioners position will be 8,533 votes while the 1st and 2nd Respondents will have 8,871 votes. We have made necessary correction by rectification of obviously wrong posting or compilation of results. This is more so, when the errors as per the evidence adduced applied just to two polling stations out of 160 polling stations. We have recorded equal treatment to both disputing parties -petitioner’s abd 1st abd 2nd Respondents respectively. A few rotten onions should not be allowed to contaminate the good ones.
By this simple arithmetic, the 1st and 2nd Respondents have emerged with an edge or difference of 338 votes and therefore are entitled to be returned/declared as the winner of the election”.
The Appellants were dissatisfied with the judgment. They have appealed to this court. They filed five grounds of appeal.
The grounds of appeal shorn of their particulars are as follows-
“‘(1) The decision of the Tribunal below is unreasonable unwarranted and cannot be supported having regard to the weight of evidence.
(ii) The decision of the Tribunal below that the 1st and 2nd Respondents scored the majority of lawful votes and were duly returned is perverse.
(iii) The Tribunal below fell into error when it held we have carefully considered the evidence placed before us, both oral and documentary in this regard and on this point we accept the explanation of DW1 for the 3rd to 6th Respondents in respect of exhibits R2 vis a vis exhibit p4.
We accordingly prefer the result contained in exhibit R2 and disregard the result entered as S/No 2 with code 02 on Ex9 as being unreliable. Consequently, we disagree with the contention that the
result should be cancelled or ignored.”
(1v) The Tribunal below fell into grave error when it held that “it should be noted that accreditation of votes is one thing or stage in the election process while actual voting is another distinct segment.
The two need not dovetail with the precision of a stop watch. Between P1 and P8 only 3 votes remained unaccounted for while in essence, only 6 ballot papers are involved. We do not find this to be substantial enough to raise eyebrow and warrant the cancellation of the result returned in the aforesaid polling stations and accordingly so hold.”
(v) The Tribunal below erred in law in leaving unresolved In its judgment the issue of irregularities or non compliance resulting in under aged persons etc being allowed to vote at Gwabbare, Sekket Filintro and Gwanyel polling stations.”
In my view, the above grounds of appeal need retouching in order to make them more meaningful. Further, the learned Counsel for the Appellants should have stated the part of the Tribunals decision that is perverse in Ground 2 above.
Having made the above observations, I now refer to the issues formulated for determination by the learned Counsel for the Appellants.
They are as follows
“(a) Whether upon a proper evaluation of all the evidence led, the Tribunal was entitled to hold that at various polling stations complained(namely Yalango and Filin Kasuwa )? was free and fair and the votes returned there at (sic) lawful (the issue relates to grounds 1 – 4)
(b) Whether or not the Tribunal was under obligation to resolve one way or the other the issue of
irregularities complained of in relation to Filin and Takarin Fulani stations. In other words, whether or not the parties were entitled to have these issues resolved by the Tribunal below.
(The issue relates to ground 5)”
Both the learned Counsel for the 1st and 2nd Respondents and 3rd to 6th Respondents adopted the above issues in their briefs of arguments.
Before us, the learned Counsel for the Appellants and the 3rd to 6th Respondents adopted their briefs of arguments and relied on them.
The learned Counsel for the 1st and 2nd Respondents also adopted his brief of argument. He submitted that issue No 2 which relates to ground 5 is at variance with the relief sought by the Appellant before the Tribunal. He referred to part of the evidence of PW7 as contained in pages 29 & 30 of the record of proceedings to the effect that PW7 scored 181 votes cast in Takar Fulani and submitted that the fact was not pleaded in the petition.
The submission was conceded by the learned Counsel for the Appellant.
It is trite law that parties are bound by their pleadings and any matter which a party wishes to rely on in his case must be pleaded. It follows that evidence which is adduced contrary to a party’s pleading should be ignored. Accordingly I will ignore any reference to 181 votes cast for the Appellant at Takar Fulani polling station in this judgment.
It is necessary at this stage to refer to another concession made by the Counsel for the Appellants’ because of its wide implication’.
This time the concession was made before the Tribunal.
The learned Counsel in his written address stated (see page 47 of the record of proceedings) –
“For issue (a) we concede from the on set that evidence led in this petition fell short of establishing the allegation of crime in paragraph 5 of the petition beyond reasonable doubt. We therefore urge this Tribunal to resolve this issue against the petitioner and to hold that the ground relating thereto has not been proved.”
The Tribunal in its judgment (see P72 of the records) accepted the above. The implication is that any allegation made in the petition which is founded crime is to be ignored in this judgment. I agree with the learned Counsel that the two issues as formulated by the Appellant will dispose of this suit one way or the other. I now deal with the merits of this appeal.
I start with issue one. Under this, the learned Counsel referred to
(a) Yalango polling station He referred to the evidence of PW5, Ex P1 and a passage in the judgment of the Tribunal i.e. page 73 of the record and submitted that the inference to be drawn from that passage is that the Tribunal accepted as proved the evidence that there were irregularities at Yalango polling station. The Tribunal felt, Counsel continued that the level of the irregularities is not substantial enough to warrant the cancellation of the result.
He submitted that the Tribunal was wrong in reaching that conclusion and urged this court to reverse it.
I start by referring to the case of the Appellants in the Tribunal. In paragraph 4 of the Petition the Appellants averred as follows –
“(v) The election at the Yalango and Garkan Noma polling station in Manama ward was voided by corrupt practices and offences and non-compliance with the provisions and principles of Decree No36 (Local Government) (Basic Constitional and Transitional Provisions) Decree 1998 which substantially affected the result of the election and prejudiced the petitioners.
(a) At Yalango polling station the presiding officer deliberately refused to fill in the serial numbers of the ballot papers issued to voters in form EC8A in order to give room to manipulate the election in favour of the 1st and 2nd Respondents.
There were material discrepancies between the entries in Forms EC8 A and ECBB.
(b) There is a discrepancy in the result of the election in Yalango polling station as recorded by the 3rd Respondent in Forms EC8A and ECBB”
I observe that the averments in paragraphs 4(v) &(va)above are allegations of commission of crime. In the light of the submission of the learned Counsel for the Appellant that he has not established the allegation of commission of a crime, before the Tribunal, should the issue be reponed before this Court?
The above observation not withstanding, the provisions of section 85 of Decree No 36 of 1998 are clear. They read an election shall not be invalidated by reason of non compliance with the provisions of this Decree if it appears to the Election Tribunal that the Election was conducted substantially in accordance with the principles of this Decree and that the non compliance did not affect substantially the result of the election.
I agree with the Tribunal that there was nothing wrong with accredited voters outnumbering actual voters, for it could mean that some accredited voters did not wait to vote. The other complaint of the Appellant is that the Tribunal believed PW5 that he was not the maker of Exh. 8. There is nothing in the printed record to show that the Tribunal was wrong in believing PW5. The decision of the Tribunal should therefore not be disturbed.
(b) Filin Ibro polling station
The learned Counsel for the Appellant referred to the evidence of PW3 that under aged boys and girls were allowed to vote. This was denied by witnesses called by the Respondents. PW3’s evidence was confirmed by PW1. The latter came to the conclusion that the boys and girls were under aged because –
“the girls -they have not developed breasts.
The boys are not attending school and are small.”
Dw2 whose evidence is at page 41 of the record of proceedings said that.-
“Despite the complaint by PDP agent once the card and register indicate above 18 years 1 will accredit and allow the voter to vote.”
I hold that there is nothing from the record of proceedings to show that under aged boys and girls were allowed to vote in that polling station. The evidence as to age should be proved either scientifically or by production of documents like birth certificates.
The Tribunal was therefore right in its decision.
(c) Filin Kasuwa(K/Hausawa Filin Kasuwa) Polling station.
The Appellants’ complaint in respect of the above is as stated in paragraph 4(1) of the Amended petition.
PW7 gave evidence in support of the above averment.
He also tendered Exhibits P3 to P9 i.e. Forms EC8A. In cross examination PWT answered as follows:-
“I have seen Exh. 5. It is a duplicate copy.
There is a reprint with blue biro pen on it.
I have seen Exh.3 too has a reprint with blue ink. I have also seen Exh.8 where there are some ticks thereon. I do not know whether they will be found on the originals.”
The Presiding Officer in the polling station Labo Maccido gave evidence as DW-3. He tendered – the originals of Form EC8As as Exh. R2. It is further his evidence that the averment in the petition as it affects his poling station is not true.
The evidence of pw1 is also not true.
The Tribunal in considering the conflicting evidence observed (pages 76 and 77).-
“Labbor Maccido aforesaid testified regarding his conduct of election at the said polling station and how initially results were entered on plain sheets duly signed by himself and party agents before the same was transferred in Exs R2. He admitted that both exhibits P4 and R2 have the same serial numbers but contained separate or different results.
His explanation was that the Chairmanship and Councillorship elections simultaneously (sic) and due to shortage of Forms EC8A the results were split into the available Form.. Ex R2 was the Chairman election result while Ex p4 was amended for the Councillorship election result we accept the explanation of VW1 for 3rd to 6th Respondents In respect of Exhibit R2 vis a vis Ex p4”
From the printed record, the Tribunal was right in preferring Ex R2 an original document, to a photocopy tendered by PW7 I have no reason therefore to disturb their decision.
I observe that the role of an appellate court is not to try cases. An appellate court does not evaluate evidence.
If however the finding of a trial court is perverse and cannot be justified by the evidence adduced before the court, an appellate court then will intervene and interpret such finding of fact or facts. This is not the case in this appeal.
In the resit, this appeal lacks merit and is hereby dismissed. The decision of the Local Government Council Tribunal Kebbi state dated 14th day of February, 1999 is accordingly affirmed. I award costs assessed and fixed at N2000.00 to the Respondents.
Other Citations: (1999)LCN/0559(CA)
