Bala Kokani Kebbe V. Garba Aliyu Maitumbi & Anor (1999)
LawGlobal-Hub Lead Judgment Report
ONNOGHEN, J.C.A.
This is an appeal against the judgment of the Local Government Election Tribunal, Sokoto State holden at Sokoto delivered on 8th February 1999.
The facts of the case are that on the 5th day of December 1998, the 2nd respondent conducted an election to the office of Chairman, Kebbi Local Government Council of Sokoto State. The appellant and 1st respondent contested that election on the platforms of Peoples Democratic Party and All Peoples Party respectively. At the end of the exercise, 2nd respondent declared the 1st respondent as the duly elected Chairman of Kebbi Local Government Council as a result of which the appellant who felt aggrieved filed an election petition before the aforementioned tribunal.
After trial, the tribunal, in a considered judgment delivered on 8th February 1999, dismissed the appellant’s petition.
Dissatisfied with the said judgment, the appellant appealed to this court vide a notice and grounds of appeal filed on 10th February 1999 – see page 67 of record.
The said notice of appeal contains seven grounds of appeal out of which learned counsel for the appellant, Jacob Ochidi Esq., formulated three issues for determination, viz.-
(1) What is the proper order to make when the tribunal discovered that the results of election declared at S/Ruwa polling station 04 and Zugu polling station were inflated.
(2) Was the lower tribunal correct in law when it validated the result declared at Jigawa polling station despite having observed and held that the entries made on the statement of result sheet contains wrong entries and are unreliable.
(3) Was the tribunal correct in law to have validated the result declard at S/Ruwa polling station 03 when the result sheet showed the 297 ballot papers issued out to voters at the said polling station counsel not be accounted for?
In arguing issue No. 1 learned counsel for the appellant, Jacob Ochidi Esq., submitted that the tribunal having found as a fact at page 57 lines 22 to 8 that they agreed with learned counsel, Mr. Ochidi, “that from the entries in Exhibit F, there are 4 unexplained votes”, the tribunal agreed that the votes were inflated by 4 and that the result declared is not authentic and urged that the result or that polling station ought to have been nullified and that and the scores of each candidate at the polling station deducted from the overall result of each candidate. He then urged this court to act accordingly.
The same submission was made in respect of the findings of the tribunal in respect of 3 votes at Zugu polling station as shown on Exhibit D; Sabon Birnin II polling station etc; etc.
On issue No.2, learned counsel referred to page 63 of the record lines 15 – 36 and submitted that the lower tribunal speculated un the issue of the missing 239 ballot papers and urged us to hold that the result declared for Jigawa polling station is therefore unreliable and ought to have been rejected by the lower tribunal.
He then urged us to deduct the respective scores of the candidates and declare the appellant the winner, with lawful votes.
On issue No.3 (which learned counse1 erroneously referred to in his brief of argument as No.4) he went back to the election at S/Ruwa polling station where it was found as a fact that 297 ballot papers were unaccounted for. He then submitted that the 297 ballot papers were suppressed since they were not accounted for in the result. He then urged us to deduct the scores of the candidates recorded in this polling station and declare the appellant the winner
On his part, learned counsel for 1st respondent Y.U. Usman Esq, filed a notice of intention to contend that the judgment be affirmed on grounds other than those relied en by the court below and followed it up with a brief of argument.
On the notice of intention filed on 1/5/99 the grounds for affirming the judgment are stated as follows:-
“(1) There was no election petition legally so called filed before the trial tribunal.
(2) There was no pleading of over-voting in the petition concerning Zugu polling station.
(3) Contrary to the holding of the court below, PW4 (Malam Ahmed) admitted under cross-examination, that there was no single over-voting in Exh. ‘D’ (Zugu polling station),
(4) The holding that there was an over-voting of 3 votes at Zugu polling station is a mere slip and over-sight by the trial tribunal.”
Learned counsel for the 1st respondent formulated 3 issues in his brief of argument for the determination of this court viz:
(1) Was the petition competent.
(2) Even if the answer to the 1st issue were in the affirmative, were the pieces of evidence not contrary to the pleading in respect of S/Ruwa 03,04, Zugu and Jigawa polling stations?
Mr. Usman adopted his brief of argument and also made oral submissions in addition.
He submitted that the failure of the appellant to state the name of the occupier of the premises within 5 kilometres of the post office where the petitioner could be served with the court processes is a fundamental vice which makes the petition incompetent. He referred to para. 5(4) of Schedule 5 to Decree No. 36 of 1998; para.5(5) thereof and the following cases: Madukolu v. Nkemdilim (1962) 2 SCNLR 341 and Opia v. Ibru (1992) 2 NWLR (Pt. 231) 658.
On issues Nos. 2 and 3 counsel submitted that over-voting was not the allegation of the appellant in any of the four polling stations neither was it pleaded.
In any event learned counsel submitted that PW4, Malam Ahmed had admitted under cross-examination that there was no over-voting in any of the polling stations.
In his reply to the brief of argument, the respondent, learned counsel for the appellant, submitted that the issue No. 1 as formulated by learned counsel for the 1st respondent does not arise from the grounds of appeal particularly as there is no cross-appeal before the court. That issues must arise from the grounds of appeal filed relying on Okpala v. Ibeme (1989) 2 NWLR (Pt.102) 208 at 221. learned counsel further submitted that the record of proceedings at page 6 clearly shows the address for service of the petitioner and the name of J.C. Shaka as the occupier. It was further submitted that even if the said petition was defective the 1st respondent had waived his right to complain having taken further steps in the proceedings after becoming aware of the alleged defects, learned counsel also submitted that the 1st respondent having failed to tile a cross-appeal, cannot by a mere notice of intention to confirm judgment, attack the findings of fact made by the court. For this counsel relied on Eliochin Nig. Ltd. v. Mbadiwe (1986) 1 NWLR (Pt.14) 47 at 68.
The 2nd respondent’s counsel Mr. M.S. Sifawa filed a brief of argument in which he adopted the argument of 1st respondent on issue raised. He equally adopted that stand in his oral submissions in court.
I will begin considering this appeal by looking at the issue of competency of the election petition as raised by 1st respondent. While it is true that an issue of jurisdiction can be raised at any time or stage of the proceedings the issue raised by 1st respondent is not one of those to be raised. This is so because the complaint touches and concerns defects as to form. Apart from that, the 1st respondent took part in the proceedings up to judgment without raising any objection.
He is therefore caught by para. 50(2) of Schedule 5 to Decree 36 of 1998. The 1st respondent did not even enter a conditional appearance in the matter.
In any event, it is my considered view that page 6 of the record of proceedings clearly shows that the address for service on the petitioner and the name of the occupier. This is sufficient to meet the requirements of the law and I so hold.
While on this point, I will add that I agree with the submission of learned counsel for the appellant that the issue did not arise from the grounds of appeal filed by the appellant neither has the 1st respondent cross- appealed. See Okpala v. Ibeme (1989) 2 NWLR (Pt.102) 208 at 221.
From the issues raised by both the appellant and the 1st respondent, apart from competency, two basic issues call for determination viz,
(1) whether the Election Tribunal was right in refusing to cancel the election in the polling stations where certain irregularities including over-voting etc. were found by it, and,
(2) whether the appellant pleaded the fact of over-voting so as to ground the finding by the trial tribunal.
On the main issue. No.1, it is true that the trial tribunal at page 59 line 22 to 28 found as a fact that 4 votes were not explained but went on to state that no evidence was led to link the four unexplained votes to any electoral malpractice or act of rigging.
Again at page 61 lines 29-34 the tribunal found as a fact as follows.”
While we agree with Mr Ochidi that there was over-voting by 3 votes at Zugu polling station shown in Exh. D we are of the view that the petitioner failed to adduce evidence … in support of the averment in paragraph 21 of the petition that the presiding officer did not take all the necessary precaution to ensure that the election is fair as required by law.”
These are the two specific findings of fact by the tribunal which the appellant is talking about. It is the contention of the appellant that having found as a fact that there was over-voting the tribunal ought to have nullified the election in the polling stations, cancelled and deduct the respective scores of the candidates from their total scores.
I do not agree with the submissions of learned counsel for the appellant to the effect that the only avenue opened to the tribunal under the circumstances was to nullify the election in the polling stations concerned. This is so because by the provisions of section 85( 1) of Decree No.36 of 1998 the tribunal has the power to hold as it did – that the 4 votes do not affect substantially the result of the election.
The appellant is not contesting the exercise of that discretion: he is not saying that the discretion was not exercised judicially and or judiciously.
This reasoning equally apply to the findings of fact as regards the over-voting of 3 votes in respect of Zugu polling station.
On the issues of the missing, 239 and 297 ballot papers as argued in issues 2 and 3 of the brief of argument of the appellant. I do not agree with learned counsel fur the appellant that this amount to suppression of votes. I agree with the tribunal that it will be absurd to cancel the results in the polling stations concerned because some ballot papers are missing when no evidence was led to show that the ballot papers were used to vote and the vales suppressed. There is also no evidence that a corresponding number of 239 and 297 voters were accredited but did not vole at the election, or if they did their votes cannot be traced. It is my view that the appellant is trying very hard to capitalize on an obvious error in entering the serial numbers of the ballot papers in the documents. There is no evidence that the 239 and 297 missing ballot papers were suppressed votes. It is my view that for votes to be suppressed, they must first and foremost be cast.
I now consider the second issue for consideration, which arises from the brief of argument of the 1st respondent to wit: whether the appellant pleaded the fact of over-voting so as to ground the findings by the trial tribunal. It is trite law that parties are bound by their pleadings and that what is not pleaded goes to no issue.
However, in para. 3(ii) of the petition and relief (i) the petitioner pleaded “irregularities”. It is my considered view that the word “irregularities” is very wide, in fact wide enough to include over-voting as found to have existed by the tribunal.
In conclusion, it is my considered view that the appeal lacks merit and is accordingly dismissed, Judgment of the tribunal is hereby confirmed.
I assess and fix till sum of N1,500.00 as cost to the respondent in this appeal.
Other Citations: (1999)LCN/0619(CA)
