Tijjani Sani & Anor V. Haliru Sambo & Ors (1998)
LawGlobal-Hub Lead Judgment Report
IBRAHIM TANKO MUHAMMAD, J.C.A.
The complaint of the petitioners before the Kaduna state Election Tribunal was that the 1st petitioner contested the Chairmanship Election for Ikara Local Government of Kaduna State along with two other candidates. He contested under the banner of the United Nigeria Congress Party (UNCP). At the end of the election, the 1st and 2nd respondents were returned by the 4th respondent as Chairman and Vice Chairman of Ikara Local Government Council respectively. The grounds upon which they rested the petition are as follows:
“A. That the 1st respondent was at the time of the election not qualified to be elected as Chairman of the Ikara Local Government as the said 1st respondent did not lawfully resign his appointment from office as a Civil/Public Servant within the period or manner prescribed by the Civil Service rules and the relevant electoral laws in force.
B. That the 1st respondent was not and is not qualified to contest the election on the ground of being under 35 years of age as stipulated by the relevant electoral laws.
c. That the 2nd respondents (sic) was not qualified to be nominated and elected as vice-Chairman Of the Ikara/Local Government Council Chairman (sic) along with the 1st respondent on the ground of being under the age of 35 years contrary to the relevant election laws.
D. That the 2nd respondent declared a false ages (sic) at various times purporting it to caver up.”
At the end of the petition, the following reliefs were asked:
“1. An order nullifying the election of the 1st and 2nd respondents as Chairman/Vice Chairman of the Ikara Local Government Council of Kaduna State.
- An oat (sic) declaring that the 1st and 2nd respondents were not competent to contest the election on the ground of being under age and that the 1st respondent did not resign his appointment within the stipulated period.
- An order declaring the 1st petitioner as the duly elected Chairman of the Ikara Local Government Council alongside his vice and they be sworn to the effect.”
After taking evidence from the parties, the Election Tribunal delivered its decision on the 14th day of July, 1997 in which it declared the 1st and 2nd respondents unqualified to contest for the election as Chairman and Vice-Chairman respectively because they were found to be under aged. The election conducted on 15th March, in respect of Chairman and Vice Chairman for Ikara Local Government was accordingly nullified under section 95(1) of Decree No. 7 of 1997.
Dissatisfied, the 1st and 2nd respondents and the Democratic Party of Nigeria (DPN) (as appellants) appealed to the Kaduna State Election Appeal Tribunal on three grounds. After considering the grounds of appeal and the submission of learned counsel for the respective parties, the Appeal Tribunal dismissed the appeal and affirmed the decision of the Election Tribunal in its entirety.
Dissatisfied further, the appellant filed their petition to the Government for a review. In compliance with section 91(b) of the Local Government (Basic Constitutional and Transitional Provisions) (Amendment) Decree No. 2 of 1998, the Hon. Attorney General of the Federation filed a written brief of argument.
two issues were formulated for our consideration.
They read as follows:
“1. Whether the judgments of the election Tribunal and the elections Appeal tribunal are supported by evidence.
- Whether the orders made returning the 1st respondent/petitioner as the duly elected Chairman is a proper order to make in law.”
In his submission, the Hon. Attorney General argued that there was no doubt from the evidence led that both the 1st and 2nd respondents/appellants were not upto the statutory age of 35 years as at the time of the election.
On the second issue formulated, it was submitted that the disqualification of the candidate with the highest votes does not automatically qualify the candidate who had the second highest votes to be returned as the winner. He urged us to affirm both Tribunals decision on age of the 1st and 2nd respondents and set aside the order made by the Tribunals on returning the candidate who had the second highest votes as Ikara Local Government Chairman.
A brief of argument was filed on behalf of the appellants by Chief A.T. Ajala (S.A.N) on 17/4/98.
He formulated three issues as follows:
“1. FIRST ISSUE: GROUND 2 OF APPEAL
Whether the election Tribunal was in error in its decision that the 1st and 2nd appellants have not attained the age of 35 years at the time of the election and consequently were not duly qualified to contest the election.
- SECOND ISSUE: GROUND 3 OF APPEAL
Was the election Tribunal not in error when it admitted in evidence Exhibits P1 P2 P5 – page 20 P6 P11 (a) – (d) P12(a) – (f) P14(a)(b)(c) and made use of same in arriving at its decision when the said Exhibits are inadmissible in law.
- THIRD ISSUE. GROUND 1 OF APPEAL
Whether the decision of the election Tribunal is perverse.”
Learned counsel for the respondents I. Ibrahim Esq. filed a brief on respondents’ behalf on 17/04/98. He formulated the following issues:
“1. Whether Exh. P1 (the age declaration of the 1st Appellant deposed in 1997 could be given any weight in view of the fact that the deponent Alhaji Samba Bamballe – Father of the 1st appellant has been shown to have died since 1990?
- Whether the Deponent in Exh P1 is the father or the purported uncle of the 1st appellant?
- Whether there-was sufficient evidence to show that the second appellant was born in 1964 and not 1960 which makes him less than 35 years of age?
- Whether the findings of the trial court was perverse?
- Whether the concurrent findings of the trial court and that of the Appeals Tribunal could be disturbed if supported by evidence?
- Whether there was evidence to show that the 1st appellant was born on the 12/12/63 and therefore less than 35 years of age as held by the trial court?
- Whether there was sufficient evidence on the printed record which sufficiently identified Exh P12 with the 2nd appellant?”
I have perused through the printed record of both Tribunals, the submissions of the Hon. Attorney General and the learned S.A.N. and his opponent and the prevailing law.
I am satisfied that there was ample evidence that the 1st and 2nd respondents as at the 15th day of March, 1997, did not meet up the statutory Age requirement of 35 years which contestants of such offices MUST fulfil.
(See section 10(b) of the Local Government (Basic Constitutional and Transitional Provisions) Decree No.7 of 1997. The decision of both Tribunals on this issue in respect of issue No. 2
it is trite law that where a candidate who contested an election has been declared disqualified by a court upon any of the disqualifying grounds such as non attainment of the statutory age, the candidate who had the second highest votes cannot be declared elected. See: Danshe and Org v. Bawa (1989) 1 NEPLR 71. Accordingly the decision of the Election Tribunal declaring the 1st petitioner to be the duly elected Chairman of Ikara Local Government Council as he had the next highest votes, and which decision was affirmed by the Appeal Tribunal is in my view perverse. Accordingly, I hereby set aside that decision. The National Electoral Commission (NECON) is to conduct a fresh election to fill the vacant office of the Chairman, Ikara Local Government Council.
Other Citations: (1998)LCN/0395(CA)
