Alhaji Akanni Adulrahman Jimoh V. Hassan Garuba & Ors (1998)
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JAMES OGENYI OGEBE, J.C.A.
The petitioner and-the 1st respondent along with other candidates contested the chairmanship election of Ifelodun Local Government Council on the 15th of March, 1997. The petitioner had 23,884 votes while the 1st respondent who had 24,561 votes was returned as duly elected. The petitioner was not satisfied with the result and filed an election petition before the Election petition Tribunal of Kwara State alleging irregularities in the conduct of the election. The trial Tribunal dismissed the petition and affirmed the election of Hassan Garuba as the duly elected Chairman. The petitioner was still dissatisfied and went before the Election Appeal Tribunal. The Appeal Tribunal after taking arguments from counsel on either side cancelled the votes cast in Jimba Oja and Gatta polling stations on the ground that there was over-voting in those stations. It then added the votes in the remaining stations and the 1st respondent was left with 23,711 votes while the petitioner was left with 23,884 votes. The Appeal Tribunal then declared the petitioner as duly elected by majority of lawful votes.
One Mr. Adebayo Adetoro the Chairman of congress for National Consensus (GNC) for the Local Government sent a petition to the Chairman of the Transitional Implementation Committee for a review of the case.
The learned Attorney-General of the Federation wrote a brief of argument and identified two Issues for determination as follows:-
i) “Whether going by the pleading of the petitioner alleging various and numerous crimes in the conduct of the election and the evidence adduced in support of same, the petitioner/appellant proved his case beyond reasonable doubt as required by law – grounds 1, 4, 5, 6, 7, 8, and 10.
ii) Having regard to the relevant provisions of Decree 7 of 1997 coupled with the evidence adduced before the lower Tribunal whether or not the appellant made sufficient or any case at all to warrant the upturn of the electorates in voting him as their chairman – grounds 2, 3, 9, 11, 12, 13 and 14.”
The substance of his argument is that the Appeal Tribunal was right in cancelling the votes for Jimba Oja and Gatta polling stations and subtracting same from the scores of the parties with the result that the petitioner Alh. Akanni Jimoh was properly declared the chairman of the Local Government.
There is a brief on behalf of the petitioner which argued in support of the decision of the Appeal Tribunal that Alh. Abdulrahman Jimoh be sworn in as the duly elected chairman of the Local Government. There is also a brief on behalf of the respondent Hassan Garuba urging the Court to set aside the decision of the Appeal Tribunal and restore the decision of the trial Tribunal which dismissed the petition and confirmed Hassan Garuba as the duly elected chairman. The substance of the argument is that there is no over-voting in the two polling stations that were cancelled by the Appeal Tribunal i.e. Jimba Oja and Gatta. The learned senior Advocate for the respondents submitted that others over-voting means that more people than the number registered voters but what happened in the two polling stations was that more people voted than the supply of election voting materials of 84% allegedly delivered to the stations.
The only Issue that calls for determination in this review is whether or not the Appeal Tribunal was right in cancelling the votes for Jimba Oja and Gatta polling stations for over-voting. It was averred in the petition and admitted in the reply that only 84% of materials was supplied to the stations. In other words they did not supply enough materials for all registered voters to vote. There were 500 registered voters in Jimba and 4917 registered voters in Gatta. The votes cast at Jimba were 437 and the voter case at Gatta were 423. In both polling stations the votes cast were below the number of registered voters. The Appeal Tribunal reasoned that in Jimba 17 votes above the 84% of materials supplied were cast while six votes above the supply of 84% were cast in Gatta. It then held that there was over-voting in these stations and cancelled the results in the two stations altogether.
With the greatest respect I do not accept the reasoning of the Appeal Tribunal, over-voting can only arise when more votes than the registered number of voters are cast in a polling station. See the cases of S.O. Lasebikan v. G.K. Dada & Anor (1960) NWLR 121 at 124; Samson Oshodin v. Ben Osagie & ors (1961) WRNLR 76 at 79. It was an administrative blunder for NECON to have supplied less voting cards than the number of registered voters in the various stations. Its duty in organising the election was to ensure the conduct of free and fair election devoid of cheating and manipulation. It was not its duty to disenfranchise sane of the electorate by under-supply of voting cards.
Be that as it may, in an exercise of this nature, it was not possible to have exact figures of supply of 847 in every station. It meant therefore that in Jimba Oja and Gatta polling stations NECON supplied more than 84% voting cards. The trial Tribunal in fairness to all the parties took out the extra votes which amounted to only 23 from the votes of the 1st respondent and that exercise still left him with the majority of lawful votes.
It is my firm view that the decision of the trial Tribunal met the justice of this case. Accordingly I hereby set aside the decision of the Election Appeal Tribunal and restore the decision of the trial Tribunal, by confirming that Hassan Garuba is the duly elected chairman of Ifelodun Local Government with the majority of the lawful votes cast in the election.
Other Citations: (1998)LCN/0412(CA)
