Sa’ad Mohammed Madomawa & Anor V. Alhaji Dahiru Zubairu & Anor (1998)8)
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UMARU ABDULLAHI, J.C.A.
In the election conducted on 15th March, 1997 for the Chairmanship position in Birnin Magaji Local Government council of Zamfara state, the appellants contested for the post of Chairman and Vice-chairman of the Local Government council. The 1st and 2nd respondents also contested for the same posts in the same Local Government council in the same election under the platform of another political party. (DPN).
The 3rd respondent, who conducted the election declared and returned the appellants as the duly elected Chairman and vice-Chairman of the Council having scored the majority of lawful votes cast at the election.
1st and 2nd respondents were not happy with the development, they filed an election petition before an Election Tribunal alleging the following:-
“a) that the 1st Appellant was at the time of the election not qualified to contest the said election as he was not a citizen of Nigeria
b) that the 2nd Appellant was at the time of the election not qualified to contest the said election as he was not educated up to at least the senior secondary school level or its equivalent and that he had not resigned his appointment or withdrawn from the civil service.
They prayed the Tribunal to nullify the election and return of the Appellants and to declare them as the duly elected Chairman and Vice-Chairman of the Local Government council.”
Issues were joined by the parties and each one called witnesses at the trial. At the end of the day, the Election Tribunal held that the 1st appellant was not a citizen of Nigeria and the 2nd appellant did not properly resign his appointment. The Election Tribunal nullified the election and ordered the 3rd respondent to conduct a fresh election in Birnin Magaji Local Government.
The appellants were not happy with the decision of the Election Tribunal and they appealed to the Election Appeal Tribunal.
The Election Appeal Tribunal reviewed the decision of the Election Tribunal and came to the conclusion that the decision arrived at by the Election Tribunal was in error. The Election Appeal Tribunal reversed the findings of the Election Tribunal, dismissed the petition and confirmed the election and return of the 1st and 2nd appellants as was done by the 3rd respondent.
The 1st respondent was not happy, with the decision of the Appeal Tribunal and he petitioned for a review.
Arising from the review, the Attorney-General of the Federation filed a brief of argument.
Some kind of a brief was filed by the appellants, which was substantially in support of the brief filed by the Attorney-General of the Federation.
One issue was identified for determination by the Attorney-General of the Federation, which reads as follows:-
“The only issue for determination in this case is whether the Respondent led credible evidence to show that the 1st and 2nd Appellants were disqualified from contesting the local government election.”
It is submitted that the law is clear that he who asserts the existence of any fact must prove it. Section 137 Evidence Act. It was contended that the allegation that the 1st appellant was not a Nigerian citizen was not proved. The evidence adduced on this issue was scanty, inconclusive and unreliable. The 1st appellant gave a more credible evidence that he is a Nigerian citizen born in Nigeria. Infact investigations conducted by Immigration Officials in Zamfara state confirmed that 1st appellant is a citizen of Nigeria.
With regard to the issue of resignation from service of 2nd appellant, there is credible evidence that he resigned his appointment before he contested the election.
It was contended that the approach to the issues by the Election Tribunal, who placed the burden of proof on the appellants was wrong in law. That the Appeal Election Tribunal took the correct approach in dealing with the issues thereby reaching the correct conclusion and setting aside the decision of the Election Tribunal.
I agree with this submission of the Attorney-General of the Federation. The evidence adduced before the Election Tribunal is so scanty and fishy that no reasonable Tribunal can use it as sufficient to prove the allegations made against the appellants. Worst of all, the Election Tribunal placed the burden of proof on the appellants contrary to the legal principle that, he, who asserts must prove what he asserts.
In the circumstances I agree with the decision of the Election Appeal Tribunal that the appellants were qualified to contest the election and were properly returned as the Chairman and Vice-Chairman respectively for Birnin Magaji Local Government council. I so confirm.
Other Citations: (1998)LCN/0458(CA)
