Abba Imar V. Baragana Malarima & Ors. (1999)
LawGlobal-Hub Lead Judgment Report
UMOREN, J.C.A.
The appellant contested the December 5, 1998 Local Government election for the chairmanship of Kala Balge Local Government Council, in Borno State on the plalform of the Peoples Democratic Party (P.D.P.). The 1st respondent was also a candidate at the election for chairmanship of the council on the platform of the All Peoples Party (A.P.P.).
At the conclusion of the election, the 1st respondent was returned as duly elected by the 2nd, 3rd and 4th respondents.
Dissatisfied with the result declared by the 2nd – 4th respondents, the appellant filed a petition questioning the election on the ground:
“That the election was voided by corrupt practices, irregularities and/or offences against the Local Government (Basic Constitutional and Transitional Provisions) Decree No. 36 of 1998 and the guidelines issued by the 2nd defendant for the conduct of the election”.
The petition was heard and on the 27th January, 1999, the tribunal dismissed the petition. It is against this decision of the Local Government Election Tribunal that the petitioner is now appealing to this court on three grounds of appeal which without their particulars, read as follows:-
“1 The tribunal was in error and came to a wrong conclusion when it dismissed the appellant’s petition on the ground that the appellant had not proved that the non-compliance with the provisions of the Local Government (Basic Constitutional and Transitional Provisions) Decree 1998 complained of by the appellant did affect substantially the result of the election”.
- The tribunal was in error in failing to evaluate and to make findings of facts regarding the evidence adduced in support of the complaint of the appellant relating to non-compliance with the Decree as affecting substantially the result of the election”.
- The decision is against the weight of evidence”,.
Briefs of arguments were filed and exchanged. At the hearing, counsel for the parties relied on and adopted their briefs. It is worth noting that at the hearing of the appeal, the learned counsel for the appellant pointed out that he had in his brief urged the court to strike out particular (b) in ground 2 as the same was included in error.
The appellant formulated one issue for determination which reads:
“It is respectfully submitted the issue for determination is whether having regard to the petition complaining of non-compliance with the provisions of the Decree and the totality of the evidence before the tribunal, the tribunal was right in dismissing the petition”.
In arguing this issue the learned counsel for the appellant called in aid S.84(1) and 85(1) of the Decree No. 36 of 1998.
S. 84(1) of the Decree states inter alia as follows:-
84(1) An election may be questioned on any of the following grounds; that is:
“(b) That the election was voided by corrupt practices or offences or non-compliance with the provisions of this Decree”.
S.85(1) states inter alia as follows –
“(1) 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”.
The 1st respondent raised issues 1 or 2; while the 2nd-4th respondents raised one issue for determination.
With due respect, I think I can say that all the issues raised centre around whether the petitioner proved that there were malpractices, irregularities or offences against the Decree or non-compliance with the Decree and that they substantially affected the result of the election.
The tribunal that heard the facts of the case, watched the demeanour of witnesses and came to the conclusion that the petitioner now appellant had alleged that there were irregularities, malpractices, non-compliance with the provisions of the Decree but did not prove them nor that they were substantial enough to vitiate the result of the election. He relied on NA-Gambo & ors. v. NEC & ors. (1993) 1 NWLR (Pt. 267) 94; particularly Salami J.C.A. (as he then was). In that case, Salami, J.C.A. interpreted the provision of S.42(1) of Decree No. 18 of 1992 thus:-
“The consideration at all times is whether the infringement was substantial and such infringement and non-compliance affects the result of the elections. The mere fact that a section of a constituency is disenfranchised will not operate to nullify the election. The person alleging non-compliance has the burden to establish, after he has shown that there was substantial non-compliance, that it affected the result of the election”.
It was necessary for the petitioner/appellant to go further to give the number of polling units in each ward and how many were affected by the malpractices and those not affected. The number of registered voters in each unit was not known. These and more should have been proved by the petitioner/appellant in order to show that the malpractices in any given number of polling stations will substantially affect the entire wards in the Local Government Area.
I find myself unable to come to a different conclusion from that reached by the tribunal. I agree with the tribunal and hereby dismiss this appeal with costs assessed at N2,000.00 in favour of the 1st respondent, and N2,000.00 costs in favour of the 2nd – 4th respondents.
Other Citations: (1999)LCN/0603(CA)
