In The Court of Appeal

(Kaduna Judicial Division)

On Friday, the 24th day of April, 1998

Suit No: CA/K/EPLG/13/98

Before Their Lordships

 Between

 And

JAMES OGENYI OGEBE, J.C.A., (Delivering the Leading Judgment): The petitioners contested the Local Government election for chairmanship and vice-chairmanship of Gwadabawa Local Government of Sokoto state on the 15th of March 1997 and lost to the 1st and 2nd respondents who were declared chairman and vice-chairman respectively by NECON. The petitioners filed a petition before the Sokoto state Election Tribunal challenging the election of the respondents and the petition was dismissed for fact of merit. The petitioners then appealed to the Sokoto state Appeal Tribunal which set aside the judgments of the trial Tribunal and returned the petitioners as duly elected chairman and vice-chairman of the Local Government. The Military Administrator of Sokoto state petitioned the Federal Government on the outcome of the appeal to the Appeal Tribunal which was likely to cause a breach of security in the state and the matter was accordingly referred to this Court for review.

The Federal Attorney-General has submitted a brief to this Court and identified the following issues for determination:-

1. "Whether or not the first respondent validly resigned his appointment before contesting the said election of 15th March, 1997.

2. Whether or not the lest petitioner and not the 1st respondent that had the majority of lawful votes cast at the said election.

3. Whether or not the election of the 1st and 2nd respondents was vitiated by corrupt practices.

4. Whether or not the Appeal Tribunal was right to have declared the petitioner as the new chairman."

Arguing the brief the learned Attorney-General submitted that even though the 1st respondent resigned properly from his appointment there was clear evidence of electoral malpractices to vitiate his election. He argued further that the proper order to make was to order a fresh election into the chairmanship of the Local Government Council and not to return the petitioners as duly elected when they did not have the majority of lawful votes cast at the election.

A brief was filed on behalf of the petitioners in which it was argued that the Appeal Tribunal was right in returning -the petitioners as duly elected because the 1st respondent did not properly resign his appointment before contesting the election.

There is a brief also on behalf of the 2nd respondent which urges the Court to confirm the election of the 1st and 2nd respondents as the trial tribunal did.

I have examined the record of this case and considered all the arguments contained in the briefs filed before this court, and it is my view that the trial Tribunal was wrong in returning the petitioners as duly elected chairman and vice-chairman respectively in the disputed election because they did not score the majority of lawful votes cast at the election. The respondents scored the majority of lawful votes but because of electoral malpractices their election was nullified. 

In a situation where the candidate who scored the majority of lawful votes is disqualified for one reason or the other, the proper order to make is not the return of the next person in line of the votes cast.By virtue of Section 95 (1) of the Local Government (Basic constitutional and Transitional Provisions) Decree No.7 of 1997 which reads:-

"95.-(1) Subject to subsection (2) of this section, if the Tribunal determines that a candidate returned as elected was not duly elected on any ground, the Tribunal shall nullify the election."the only thing a Tribunal faced with a situation stated above can do is to nullify the election and call for a fresh election.

  The primary purpose of an election is to determine the true wishes of the majority of the electorate. Since the respondents who scored the highest votes have been found not to be duly elected, the proper order to make is to give the electorate a chance to vote again by ordering a fresh election.

Accordingly I set aside the decision of the Appeal Tribunal of Sokoto state as well as the decision of the trial Tribunal dismissing the petition. In their place I hereby order that the National Electoral Commission of Nigeria (NECON) should conduct a fresh election to elect a chairman and vice-chairman for the Local Government council. 

UMARU ABDULLAHI, J.C.A.: I agree.

IBRAHIM TANKO MUHAMMAD, J.C.A.: I read in advance the decision just delivered by my learned brother Ogebe, JCA. I am in agreement with his reasoning and conclusion that there is need for NECON to conduct a fresh election to fill the vacant seats of Chairman and Vice Chairman of Gwadabawa Local Government Council of Sokoto State.

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