N.E. CON. V. D.P.N. & Ors (1998)
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ATINUKE OMOBONIKE IGE, J.C.A (
When elections were held in March 15th 1997 Nuhu Dogo Makama contested on the platform of the DPN for the post of the Chairman of Chikun Local Govt Area of Kaduna state.
At the end of the election Nuhu Dogo Makama was declared the winner with majority vote of 20,716 over the next candidate who scored 17,680 under the platform of the UNCP.
On 24th of March 1997 when all the duly elected Chairman were to be sworn into office, Nuhu Dogo Makama was not sworn in by the Kaduna state Military Administrator on the ground that the election was annulled due to a boundary adjustment which affected the former Gwagwada Local Govt Area. With the Chairman elect not being sworn in, all his 15 councillors were also not sworn in. Nuhu Dogo Makama and his party the DPN became aggrieved by this refusal of the MILAD to swear in the Chairman elect, and they eventually took out a Petition before the Election Tribunal. In the Petition the Petitioners i.e. the DPN and Nuhu Dogo Makama asked for 7 declarations against 3 Respondents i.e the NECON.
The MILAD and the Attorney General for Kaduna state.
The declarations sought are as follows:-
- A declaration, that the elections of the 15th day of March 1997, in the Chikun Local Government Area of the Kaduna state of the Federal Republic of Nigeria, were done substantially in accordance with the provisions and principles of the Local Government (Basic constitutional & Transitional Provisions) Decree, 1997 and as such are valid.
- A declaration, that the 2nd Petitioner has been validly elected as Chairman of the Chikun Local
Government Council of the Kaduna state of the Federal Republic of Nigeria, by the election hold
on Saturday the 15th day of March, 1997.
- A declaration, that Ibrahim Akawu, Emmanuel B. Sarki, Joshua U. Wafiyo, Adamu Fadason, Simon S. La’ah, Bwans K. Gideon, Martina M. Allahmagani, Dauda K. Akake, Ahmed Jibrin, Abubakar G.M. Buhari, Mataimaki Yahaya, Daniel Yohanna, Magayaki Johnson E., Gambo Mohammed Nasiru, and Tala Musa have been validly elected as Councillors of the Chikun Local Government Council of the Kaduna state of the Federal Republic of Nigeria, by the elections held on Saturday the 15th day of March, 1997.
- A declaration, that the term of office of the 2nd Petitioner as Chairman of the Chikun Local Government Council of the Kaduna state of the Federal Republic of Nigeria, has not ceased.
- An Order, that the failure of the 2nd Respondent to swear-in the 2nd Petitioner, as Chairman of the Chikun Local Government Council of the Kaduna state of the Federal Republic of Nigeria, on the 24th day of March,1997 is unlawful, unconstitutional, void, and of no effect(s) whatsoever.
- An Injunction restraining the 1st Respondent from conducting any fresh elections for the Chairmanship and Councillorship of the Chikun Local Government Council of the Kaduna state of the Federal Republic of Nigeria.
- An Order, that the 2nd Respondent shall forthwith swear in the 2nd petitioner as Chairman of the Chikun Local Government Council of the Kaduna state of the Federal Republic of Nigeria.
The Respondents did not contest or challenge the fairness or otherwise of the election of the 2nd Petitioner held on 15th March 1997. Their contention was that the election conducted was not supposed to be conducted by the 1st Respondent on that day in view of a letter EXD1 which came from the office of the Chief of General Staff showing that Gwagwada Local Government Area has been delimited and a new Chikun Local Government Area has been created to include 5 more Wards namely Gwagwada, Chikun Nasarawa Ward, Kunai and Kuriga.
After taking evidence from parties and after listening to addresses by Counsel in the case, the Lower Tribunal declined to grant an injunction restraining the 1st Respondent i.e. NECON from conducting any fresh election for the chairmanship and Councillorship of Chikun LGA of Kaduna state. The Tribunal however declared that Nuhu Dogo Makama of the DPN is the duly elected Chairman of Chikun Local Government Council of Kaduna state and that his term of office shall commence. The Lower Tribunal also ordered the MILAD Kaduna state to swear in forthwith the 2nd Petitioner Nuhu Dogo Makama as Chairman of Chikun Local Government Council of Kaduna state in compliance with section 12 of Decree number 7. The 3 Respondents in the Petition but now appellants were dissatisfied with the judgment of the Lower Tribunal hence they went on appeal to the Election Appeal Tribunal on 3 grounds which ranged from error of Law and facts.
After hearing the appeal along with the briefs and arguments before it the Election appeal Tribunal allowed the appeal and set aside the decision of the Lower Tribunal.
There was a dissenting judgment which deferred with the leading judgment on the issue of jurisdiction. However she took finally set aside the judgment of the Lower Tribunal.
Aggrieved by the judgment of the Election Appeal Tribunal the 1st Petitioner petitioned the Election Review Panel for a review. After looking into the submissions before it the Panel recommended the affirmation of the Election Appeal Tribunal and ordered that a bye-election be conducted for all the registered political parties according to the Panel EXD1 from the office of the Chief of General Staff vitiated the fact of 2nd Petitioner being duly elected on 15/3/97.
The real bone of contention in this case is exhibit D1 which came into being on the eve of the elections held on 15/3/97 to delimit the wards included in two local government area of Chikun and Gwagwada districts.
I have examined carefully the contents of Exhibit D1 in relation to the enabling laws relating to the elections held on 15/3/97. See Decree 7 and also the supplement to it published as Decree number 2, 3, and 4. I have also considered the brief submitted by the Counsel for the Appellant.
I seem to buy the view held by the Lower Tribunal that Exhibit D1 cannot be taken to have the force or law. If the authorities wanted it to have a force of law they would have come out with an extraordinary gazette with a specific directive that an election should not be conducted by NECON in the areas affected by the delimitation of wards. There was no such thing in this case. A free and fair election cannot and should not be voided by an administrative press release announced a day before the election at around 5 p.m.
The Decree is superior to Exhibit D1 and does not cover the situation which the Respondents portrayed as voiding a free and fair election. At the best Exhibit D1 can be taken as an administrative directive or even a circular to guide the new Chairman as to the extent of his Local Government Area.
The decision made by the Election Appeal Tribunal is hereby set aside and in its place the decision made by the Lower Tribunal on 9th July 1997 is hereby restored in its entirety. In effect the MILAD Kaduna state is to swear in the 2nd Petitioner as the duly elected Chairman of Chikun Local Government Council with immediate effect.
Other Citations: (1998)LCN/0401(CA)
