Danladi Isa Kademi V. Jazuli Usman & Ors (1999)

LawGlobal-Hub Lead Judgment Report

VICTOR AIMEPOMO OYELEYE OMAGE, J.C.A. 

This is the second coming of this appeal to the Court of Appeal of the matter in controversy over the seat of the Chairmanship of the Gaya Local Government in Kano State. The first appeal ended in the affirmation of the decision of the lower court that a Bye Election should be conducted in three polling units at Malmakawa ward of Gaya Local Government. In doing so the Court of Appeal in appeal No. CA/K/EPLG/27/99 set aside the return of the 1st Respondent as the Chairman of Gaya Local Government. Following the decision of the court of Appeal, a bye election was held on 20th March, 1999 and the 1st Respondent was again declared the winner.

The petitioner as at the court below, was dissatisfied with the verdict of the election, he filed a petition before the Local Government. Election Tribunal Kano state challenging the return of the 1st Respondent. The 1st Respondent entered a conditional appearance on 13/4/99 and filed a motion against the petition on 19/4/99. The 1st Respondents motion prayed for an order of the lower Tribunal to strike out the petition, on the following grounds:-

(1) That the name of and scores of the 3rd contestant in the election, Isa Shehu of the Alliance for Democracy was not stated in the petition.

(2) That the name of the Occupier of the address of the petitioner for service was not stated at the foot of the petition; and

(3) That the address of the 4th Defendant was not stated on the petition.”

The lower court considered the objection rose by the 1st Respondent in his motion on notice and held that the petitioner/Appellants petition was incompetent and struck out same. It is against the ruling of the lower court that the petitioner, Danladi Isa Kademi has filed this appeal, on 28th April, 1999, the appellant filed three grounds of appeal against the ruling of 22nd April, 1999 of the Local Government Election Tribunal of Kano State. In accordance with the rules of this Court the appellant formulated two issues. The second issue enquired whether the decision of the court was on all fours with the four cases listed on page 3 of the Appellants brief of argument filed on 11/5/99. The first issue is “whether the election petition filed by the appellant complies with the provisions of paragraph 5 of schedule 5, of Decree No. 36, and the Decree.”

Before going into the respondents brief, it is appropriate to recite here under the requirements of Decree No 36 concerning petition on the Local Government election as it relates to the issues raised at the lower tribunal on which the lower court ruled, which provoked this appeal. The issue will be recorded in relation to the objection raised as above. (1) That the name of parties and scores of 3rd contestant was not stated in paragraph 5 (1) (a) and (c) of Schedule 5, to Decree NO 36 Local Government Basic constitutional and Transitional provisions) Decree 1998, under the provision of a general heading titled “Procedure for election petition,” the following is prescribed under paragraph 5-1 a, b, c. “An election petition under this Decree shall (a) specify the parties interested in the election petition (b) … (c) state the holding of the election, the scores of the candidates and the person returned as the winner of the election etc.

The above also relate to complaint No. 3 in the motion of the 1st Respondent on whether or not all the parties in the election were named. In paragraph 4 of the said Schedule 5, to Decree No 36, it is prescribed as follows:-

(4) At the foot of the election petition there shall also be stated an address of the petitioner for service within five Kilometers of a post office in the Judicial Division and the name of the occupier at which address documents intended for the petitioner maybe left.”

(5) If an address for service and its occupier are not stated as specified in sub paragraph 4 of this paragraph the petitioner shall be deemed not to have been filed unless the election Tribunal otherwise orders.”

(6) An election petition which does not compain with sub paragraph 1 of this paragraph or any provision of that sub paragraph is defective and maybe struck out by the election tribunal.”

(7) The form TF002 set out in Schedule 6 to this Decree or one substantially like it shall be sufficient for the purposes of this paragraph.”

Underlining mine for emphasis and comment. In his brief of argument the appellant argued that he had used form TF002 which makes no provision for the name of the occupier of the petitioner’s premises. In another paragraph the appellant argued with the aid of a dictionary that he had stated the address of the occupier of the premises where the petitioner resides. When he wrote on the petition as follows:-

“The name of my solicitors is A.A. Umar Co. Legal petitioners No. 17 Zaria Road, Kano.”

The above, the appellant argued is sufficient to meet the requirements of paragraph 5 (1) c, to Schedule 5, Decree 36 of 1998 and paragraph 5 (4) (5) supra. On the issue as to whether the petition at the lower court stated the name of all the parties interested in the election as required in par (5 (1) a, appellant said the finding that the name of 4th Respondent was not stated was a finding of fact and inference maybe drawn from the physical petition. Appellant submitted that only the two of the contested the bye election, and that the other contestants had withdrawn. Appellant urged the Court of Appeal to set aside the decision of the Local Government Byes Election Tribunal of Kano State. In the brief of arguments of the 2nd, 3rd and 4th Respondents, having with “tongue in the cheek” adopted the introductory part the appellants brief, the said respondents denied that other contestants besides the appellant and the 1st Respondent dropped out of the bye election.

They said a 3rd contestant sponsored by Alliance for Democracy participated in the election. In the submission of counsel to the 2nd, 3rd and 4th Respondents the proper issues for determination are “whether the petition of the appellant contained at its foot the name of the occupant of the place of service for the petitioners as required in paragraphs 5 (4) and 5, Scheduled 5 to Decree No 36 of 1998. The above issues he said flow from ground 3 of appellants appeal.

(11) Whether there were only two candidates at the bye election on 20th March, 1999 for 3 units for the office of Chairman of Gaya Local Government Council.”

I am in agreement with the two issues formulated by the counsel to 2nd, 3rd and 4th Respondents in this appeal; and rule that the above two issues deal precisely with the salient issues in this appeal. I shall deal with them presently.

The 1st Respondent did not file his brief of argument in this appeal within time. He filed a motion for enlargement of time which was not duly and adequately served on the Appellant. The motion was struck out for inadequate service consequently the 1st Respondent has no brief before the court. Nevertheless, its is upon the motion brought by 1st Respondent to the court below that the petition of the petitioner “‘as struck out which necessitated this appeal. The issues to be determined are (1) Did the petition of the appellant comply with the rules prescribed in Decree No 36 of 1998 out of this arises the following:-

(a) In considering the above did appellant state in the petition in the court below, the names of all the parties who are interested in the election.

(b) Old the petition states the address of the 4th Respondent.

(c) Did the petition state at its foot, the name of the occupier of the premises of the petitioners. The answer to all the above a, b, c, is No. The petitioner did not comply with the rules as contained in Schedule 5, paragraph 5 a, paragraph 4 & 5.

The requirement that the prescriptions on a, b, c above be stated is conveyed in the word shall which in the context is directing, indeed mandatory because it provides in sub paragraph 5, of paragraph 5, of schedule 5 penalty for non compliance with the sub paragraph.” It says. “The petition shall be deemed not to have been filed.” unless “the election Tribunal, Not the appellate court, “otherwise orders.” Now the election Tribunal did not order otherwise. That closes the issue. In sub paragraph 6 of par 5, Schedule 5 of Decree 36 of 1998.

The provision is that “any petition which does not conform is defective and a defective petition shall be struck out.” This is what the lower court did. “It is now an accepted interpretation of the law, that “Where a statute provides for a particular method to perform an act no other must be adopted.” Vide cooperative Commerce Bank Nigeria Plc. v Attorney General of Anambra State and anr. 1992 10 S.C.N.J. 137 at page 163 per Nnaemeka Agu JSC. The sub heading of Schedule 5 of Decree No 36 of 1998 is as follows:-

“procedure for election petitions.”

The procedure must be complied with; and in my view the lower court was not remiss in its duty, when it required compliance with the provisions of Decree 36 of 1998.

The appellant has argued that the form TF002 in Schedule 6 does not provide for the name of the occupier of the premises, and that any form which is substantially the same would have been adequate as provided in schedule 5, paragraph 5, and sub paragraph 7 of the Decree No 36. I have held in a previous decision on this issue that the provision in one schedule in a statute cannot contradict the expressed provision of the law in another schedule in the same Decree.”

‘The purpose of a schedule is to construe the provisions in the body of the act, in the light of what is enacted in the body of the act. See Maxwell on Interpretation of statutes 12th Edition, on page 12. par 2 on schedules. In the given case, the provisions in schedule 5, paragraphs 1-6 are very clear, the provisions of sub paragraph 7 appear to refer to what is contained in schedule 6, which by its wordings appear to nullify the penalty provision in paragraph 5 for non compliance with its provisions Maxwell’s solution is as follows:-

“Within a schedule ambiguous words may be construed by reference to the sub heading.”

I held that the contents of sub paragraph 7 of paragraph 5 to schedule 5, is ambiguous and inconsistent with the sub heading in schedule 5, which makes provision” for procedure for election petitions “and provides in sub paragraph 5 of the same schedule that non compliance with sub par 4 shall deem the petition not to have been filed.”

In sub par 6 of the same par 5 that non compliance with the prescriptions in schedule 5 makes a petition defective and to be struck out. Sub par 7 of same schedule 5 which requires the use of farm TF002 as adequate is inconsistent and contradictory to the prior provision in the same schedule, if it does not conform to the earlier provision. I view it as an ambiguity. The use of form TF002 must also comply with the provisions of schedule 5 paragraph 5, (1) c and paragraph 4. Failure to so comply will earn the petition the penalties imposed in sub paragraph 5, and 6 of schedule 5 in Decree No 36 of the Local Government Basic Constitutional and Transitional provision Decree 1998. In conclusion, I find no reason to disturb the ruling of the local Government bye election tribunal in Kano State and the appeal fails. It is hereby dismissed. I affirm the judgment of the lower court; there will be costs in favour of the 2nd,3rd and 4th Respondents of N1000 each.

Other Citations: (1999)LCN/0595(CA)