In The Court of Appeal

(Kaduna Judicial Division)

On Thursday, the 23rd day of April, 1998

Suit No: CA/K/EPLG/16/98

Before Their Lordships

 Between

 And

JAMES-OGENYI OGEBE, J. C. A. (Delivering the Leading Judgment): The parties to this case contested the Local Government council Chairmanship election of Bukkuyum Local Government council of Zamfara state on the 15th of March, 1997. The 1st and 2nd respondents were returned as Chairman and Vice-chairman respectively, having won the highest number of votes cast at the election. Dissatisfied with the results the petitioners filed a petition before the Election Tribunal of zamfara state complaining that the 2nd respondent was not qualified educationally to contest the election.

At the trial another petition filed by 3rd and 4th respondents was consolidated with the earlier one. At the conclusion of trial the Election Tribunal entered judgment in favour of the 1st and 2nd respondents and declared them duly elected Chairman and Vice chairman. The 4th respondent appealed to the Appeal Tribunal of zamfara state and the Appeal Tribunal dismissed the appeal for lack of merit. The 4th respondent's party, the Grassroots Democratic Movement (GDM) then petitioned the Federal Government for a review of the matter.

The learned Attorney-General of the Federation filed a brief before this court and identified two Issues for determination as follows:-

"1. Whether the lower Tribunal was right when it held that the Exhibits q-q137 were wrongly admitted in the absence of a list of votes intended to be objected to; and,

2. Whether having admitted Exhibits q-q137 the Tribunal was bound to examine such Exhibits in relation to the allegations contained in the Petition."

In support of his brief the learned Attorney-General submitted that the petitioners failed to prove their allegation that the winners' votes were inflated while their own votes were deflated. They also failed to file a list of votes intended to be objected to by them as required by S. 16(1) of Schedule 5 of Decree No.7 of 1997. He said that since the petitioners did not submit the list the trial Tribunal was right in refusing to look at the ballot boxes and their contents tendered before it. He urged the Court to support the judgments of the two lower Tribunals.

A brief has been submitted on behalf of the first two petitioners. In that brief the learned counsel for the petitioners submitted that the Appeal Tribunal did not properly consider the appeal of his clients but merely supported the decision of the trial Tribunal and urged this Court to do that exercise.

Paragraph 16(1) and (2) of the Schedule to Decree No.1 of 1997 reads,-

"16. (1) When a petitioner claims the seat or office for an unsuccessful candidate, alleging that he had a majority of lawful votes, a party complaining of and a party defending the election or return shall -

(a) Within 3 days after the filing of the reply; or

(b) where no appearance is entered, not less than 6 days before the day fixed for hearing, file in the Registry a list of the votes intended to be objected to by him and of the heads of objection to each vote.

(2) No evidence shall be given against the validity of a vote or on a head of objection not specified in the list filed pursuant to sub-paragraph (1) of this paragraph except by leave of the Election Tribunal which may be given on such terms as to the amendment of the list, postponement of the hearing and payment of costs as may be ordered."

The provisions of this Section are mandatory and can only be waived with the leave of the Tribunal. Without filing a list of the votes intended to be objected to and the heads of objection, the trial Tribunal could not be dumped with all the ballot boxes and be expected to do the counting.

I am satisfied from the reading of the record and all the arguments advanced before me that the trial Tribunal was right in dismissing the petition and the Appeal Tribunal was also right in dismissing the appeal of the 4th respondent. The decisions of the two lower Tribunals are hereby confirmed by me.

ATINUKE OMOBONIKE, J. C. A.: I have had the privilege of reading in advance the decision just delivered by my learned brother Ogebe, JCA. 

I also see no reason why the concurrent decisions of the two Lower Tribunals should be disturbed. The petition stands dismissed, 1st and 2nd Respondents are duly elected Chairman and Vice Chairman respectively of Bukkuyum Local Govt Council.

TANKO MUHAMMAD, J. C. A.: I read in advance the decision of my learned brother Ogebe, JCA. I concur with him.

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