Alhaji Ibrahim Saidu Malumfashi V. Alhaji Usman Yaba & Ors (1999)
LawGlobal-Hub Lead Judgment Report
ROWLAND, J.C.A.
The petitioner now appellant and the 1st respondent were candidates at the Local Government Council Election, Malumfashi Constituency held on the 5th day of December, 1998. They contested for the chairmanship seat variously under the platform of the Peoples Democratic Party (hereinafter called “the PDP”) and All Peoples Party (hereinafter called “the APP”) respectively. Consequent to the said election, the 1st respondent Alhaji Usman Umar Yaba was declared as having scored 16,931 votes and that the petitioner received a total of 15,567 votes and the 1st respondent was declared to be duly elected. The appellant being dissatisfied with that declaration filed an Election Petition on the 18th day of December. 1998, in the Local Government Council Election Tribunal Katsina State holden at Katsina, upon the grounds that the 1st respondent was not duly elected by majority of valid votes cast at the election.
The appellant further averred that the election was voided by corrupt practices, irregularities and non-compliance with the provisions of Decree No. 36, 1998 or the relevant laws.
The trial tribunal at the close of the case of the parties and the address or counsel considered the evidence adduced by the parties and the documentary evidence tendered and then came to the decision that the petition should fail in its entirety and it was accordingly dismissed.
Dissatisfied and aggrieved by the decision of the trial tribunal, the petitioner has now appealed to this court. The notice of appeal contains five grounds of appeal. From the grounds of appeal the appellant raised five issues for determination.
They read as follows:-
“2.1. The appellant humbly submits that the issues arising for determination as contained in the notice of appeal are as follows:
2.2. Whether the election in Yaba Ward of Malumfashi Local Government was conducted in substantial compliance with the principles of Decree No. 36, 1998.
2.3. Whether having regards to the state of the pleadings and the evidence adduced, the content of Form EC8A (as regards actual number of registered and accredited voters) overrides or is more authentic than the voters’ registers.
2.3(i) OR: In the alternative whether having regards to the state of the pleading and the evidence adduced, more weight ought to be given to Forms EC8A over voters registers in determining the actual number of accredited and/or registered voters.
2.4. Whether the 1st respondent was elected by majority of valid votes cast, having regard to the state of pleadings and the evidence adduced.
OR:
2.4(1) Whether the appellant proved his allegations as contained in paragraphs 3A-F of his petition.
2.5. Whether the judgment is against the weight of evidence.”
The 1st respondent adopted the issues formulated by the appellant. It must be mentioned at this point in time that the appellant also filed appellant’s reply brief dated 9th day of March, 1999.
The 2nd-5th respondents brief dated 9/3/99 was filed the same date. In it the 2nd-5th respondents raised three issues for determination. They read:-
“1. Whether the election in Yobe Ward Malumfashi Local Government was conducted in substantial compliance with Decree No. 36 of 1998.
- Whether the 1st respondent was duly elected by a majority of lawful votes cast at the election.
- Whether the contents of Forms EC8AS, with records to actual number of registered and accredited voters overrides or is more authentic than the voters registers.
OR
- Whether more weight ought to be attached to Forms EC8AS over voters registers in determining the actual number of accredited and or registered voters.
- Whether the number of ballot papers issued to accredited voters in a polling station, may be determined by the serial numbers of the ballot papers as recorded in Forms EC8AS of the polling station.”
I have gone through the issues formulated by the parties and it seems to me that some of them are verbose, repetitive and have no direct bearing to the issues that are germane to the just determination of this appeal. Having said that, it does seem to me that this is a proper case in which I should frame my own issues to avoid rigmarole. I suppose the following two issues are the ones that call for determination of this appeal. They read:-
- Whether or not the 1st respondent was duly elected, by a majority of lawful votes cast at the election.
- Whether Of not the election can be said to have been conducted substantially in accordance with Decree No. 36 of 1998.
To fully appreciate the two issues I have formulated above, I consider it pertinent to give a summary of the evidence adduced before the trial tribunal. It should be noted that the petitioner now appellant called four witnesses in support of his petition. He also testified for himself. As borne by the record P.W.1 Mohammed Bawa Ibrahim, was petitioner’s agent for Yaba Ward. His evidence is to the effect that he received reports from petitioner’s agents in the polling stations at Yaba to the effect that they all refused to sign the results sheets or Form EC8AS for the various polling stations, in that ward. He went further to testify that neither himself nor P.D.P. agents at Yaba had anything to do with collection of results at this ward, as they were prevented from getting near the collection centre.
PW2 Abdullahi Mikaihu was petitioner’s agent at Karfi ward. His evidence was that some of petitioner’s agents reported to him that in some of the polling stations in this ward, the number of voters who cast their vote was more than accredited voters for those polling stations. He listed the following polling stations as the ones infested with this irregularity:-
(1) Tasher Fulani polling station
(2) Bakin Hanya polling station
(3) Gidin Tsamiya polling station
(4) 2 polling stations at Makaranta Primary School.
Being satisfied with the truth of these allegations PW2 claimed he reported same to Alhaji Kabiru Gamba – petitioners over all agent for Malumfashi Local Government. Petitioner’s witness No.3 was the electoral officer Malumfashi Local Government Area. He was subpoened to produce all the electoral forms including register of voters for Yaba, Na-Alma, Gora, Karfi, and Borindawa Wards. Accordingly Forms EC8AS, EC8BS and voters. Registers of all the polling stations in the said wards were tendered and admitted in evidence. In the course of the proceedings, upon an objection raised by 1st respondent’s counsel, all evidence adduced in respect of the 13 polling stations of Yaba Ward which had earlier been cancelled by the 4th respondent (INEC) were expunged from the records of the lower tribunal.
PW4 Kabir Gamba was petitioner’s overall agent. It was to him that reports from ward agents were directed. He testified to the effect that he received complaints of corrupt practices, intimidation of petitioner’s agents and falsification of election results in favour of the 1st respondent. He also claimed that in some polling stations in Gora, BorindawaNa-Alma and Kurfi, and all the polling stations in Yaba Ward, number of votes cast exceeded number of accredited voters.
He testified further that in those polling stations in Yaba Ward, number of votes cast, exceeded number of ballot papers issues to those polling stations. And finally, that the votes cast, exceeded both the valid and the invalid ballot paper. At the close of petitioner’s case, 1st respondent testified in his defence. He gave evidence to the effect that the petitioner at the close of voting for the chairmanship election at Malumfashi on the 5th of December, 1998, protested to the 4th respondent about the conduct of the election in 13 polling stations in Yaba Ward. 1st respondent was invited by 4th respondents to their head office at Katsina. Petitioner was also invited. That after a careful examination of petitioner’s complaints, results from these 13 polling stations were cancelled. That being satisfied with the action taken by the 4th respondent, the petitioner was given Form EC8C, which is the form that contains the summary of the results from all the polling stations in the ward to sign. Petitioner signed it and went ahead to congratulate the 1st respondent for his victory? At the close of the case for the 1st respondent, 2nd-5th respondents announced through their counsel that they were resting their case on that of the 1st respondent.
It is manifest from the state of petitioner’s pleading and evidence adduced in support, the link of his petition can be summarised as follows:
- That 1st respondent was not elected by majority of lawful votes because;
(a) In some polling stations in Yaba, Na-Alma, Karfi, Borindawa and Gora Wards of Malumfashi Local Government Area total votes cast exceeded number of accredited voters.
(b) Total number of votes cast exceeded number of ballot papers issued to those polling stations.
- That the election of the 1st respondent was voided by corrupt practices, intimidation and other electoral offences by electoral officers.
I should now at this point in time consider the two issues I have formulated above which I had earlier said should take care of the complaint of the appellant as borne by his grounds of appeal contained in his notice of appeal. On the 1st issue which is whether or not the 1st respondent was duly elected, by a majority of lawful votes cast at the election, it was contended by the appellant in his brief and the oral submissions of his counsel before us that the 1st respondent was not duly elected by a majority of lawful votes cast at the election. On the other hand it was submitted for the 1st respondent that he (the 1st respondent) was duly elected by a majority of lawful votes cast at the election, for the 2nd-5th respondents, it was submitted that from the totality of the evidence adduced and the documents tendered particularly. Forms EC8AS of the wards complained of by the petitioner, it is clear that the election was conducted in substantial compliance with the provision of Decree 36 of 1998. It was contended that the petitioner failed to establish any of the alleged malpractices or irregularities that substantially affected the result of the election in his favour.
I consider it germane and pertinent to start with the provisions of section 84(1)(c) of Decree No. 16 of 1998. The section reads:- “An election may be questioned on any of the following grounds, that is
(c) That the respondent was not duly elected by a majority of valid votes cast at the election.”
In the case in hand, the appellant in his petition before the trial tribunal raised allegations that the votes cast in all the polling stations in Yaba, Karfi, Na-Alma, Gora and Barindawa Wards exceeded the number of voters accredited to vote. However, at the hearing as borne by the record of proceedings, the appellant led evidence in respect of only 8 polling stations in the above mentioned wards. It is manifest from the record that there is no credible evidence to substantiate the appellant’s allegations made in his petition. It was shown at the hearing that the result of 13 polling stations out of the 19 in Yaba Ward were cancelled and therefore not included in the overall result. As borne by the record, it was never the contention of the appellant at the trial that the result of the election of the remaining 6 polling stations in Yaba Ward be cancelled. The appellant did not adduce evidence before the trial tribunal to establish that the results of the remaining 6 polling stations in Yaba Ward were vitiated by irregularities or non-compliance and which affected the result in favour of the appellant. At page 94 (the last paragraph) and page 95 (1st paragraph) the trial tribunal held as follows:-
“Since 4th respondent carried out thorough investigations of allegations contained in the petition’s written complaint and cancelled those 13 polling stations, we can follow suit and cancel the remaining 6 if we are satisfied that the petitioner has proved that what happened at the 13 cancelled polling stations also happened at these remaining 6. There was no such evidence what we have instead is Exhibit “M” which is Form EC8C (Summary of results from wards) form. This exhibit has the signature of both petitioners and 1st respondent. Petitioner admitted before us, that he signed it at INEC head office after his protest had been looked into. This exhibit contains result from remaining 6 polling stations of Yaba Ward we cannot now, in the absence of new and compelling evidence, to the contrary, order that results from these remaining 6 polling stations of Yaba Ward be cancelled.”
I hold the view that the above finding of the trial tribunal cannot be faulted as it is supported by the totality of the evidence before that being so, it should not be disturbed.
It must be noted that the only way one can question the lawfulness or otherwise of some of the votes is to tender in evidence all the forms used and call witnesses to testify as to the misapplication of the votes scored by individuals see Yar’adua v. Banda (1992) 3 NWLR (Pt. 231) page 638 at 642.
It must be mentioned also that electoral malpractices can occur in a situation where the votes scored by parties exceeded the number of the accredited voters. See Terab v. Lawan (1992) 3 NWLR (Pt. 231) 569 at 587.
Without much ado, it is manifest from the totality of the evidence placed before the trial tribunal as contained in the record of proceedings, the 1st respondent was duly elected by a majority of lawful votes cast at the election and I so hold.
The last and final issue for determination is whether or not the election the subject of this appeal can be said to have been conducted substantially in accordance with Decree No. 36 of 1998. The sum total of the submissions of the appellant in his brief is to the effect that the election was not conducted substantially in accordance with Decree No. 36 of 1998.
For the 1st respondent it was submitted that the election held in Malumfashi Local Government Council was conducted in substantial compliance with the provisions of Decree No. 36 of 1998 and the 1st respondent was duly elected by a majority of lawful votes of the electors who voted at the said election and who were at the time thereof duly qualified by law to vote. For the 2nd to 5th respondents it was submitted that from the totality of the evidence adduced and the documents tendered particularly Form EC8AS of the wards complained of by the petitioner/appellant. it is clear that the election was conducted in substantial compliance with the provisions of Decree 36 of 1998.
I must say that issues Nos. I and 2 are interwoven section 85(1) of Decree No. 36 of 1998 reads:-
“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.”
It seems to me from the totality of the evidence adduced both oral and documentary, one is not left in doubt that the election the subject of this petition/appeal was conducted in substantial compliance with the provisions of the Decree as rightly held by the trial tribunal. It must be pointed out that the appellant failed to prove substantial non-compliance with the provisions of the Decree as the onus is on him to do so, which substantially affected the result in his favour. See Maduekwe v. Okoroafor (1992) 9 NWLR (Pt. 263) 69 at 72.
In the result, all the two issues formulated above by me having been resolved against the appellant, this appeal fails in toto and it is therefore dismissed. I affirm the judgment of the Local Government Election Tribunal of Katsina State given on 13th February, 1999. For the avoidance of doubt, I confirm the election of the 1st respondent Alhaji Usman Yaba as duly elected Chairman of Malumfashi Local Government.
I award N2,000.00 costs in favour of the respondents against the appellant.
Other Citations: (1999)LCN/0540(CA)
