CORAM
YEKINI OLAYIWOLA ADIO JUSTICE, COURT OF APPEAL.
OBINNAYA ANUNOBI OKEZIE, JUSTICE, COURT OF APPEAL.
ALOYSIUS IYORGYER KATSINA-ALU JUSTICE, COURT OF APPEAL, (Presided)
DENNIS ONYEJIFE EDOZIE JUSTICE, COURT OF APPEAL.
PARTIES
TIMOTHY AONDOAKAA APPELLANTS
1. EMMANUEL AJO2. THE RETURNING OFFICER, VANDEIKYA LOCAL GOVERNMENT AREA3. THE STATE CHIEF RETURNING OFFICER, BENUE STATE4. THE RESIDENT COMMISSIONER, INEC, MAKURDI, BENUE STATE5. THE INDEPENDENT NATIONAL ELECTORAL COMMISSION6. TERKAR YAJI RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
The Petitioner/Appellant was a candidate for Chairmanship for the Local Government Council held on the 5th of December, 1988, the 2nd -5th Respondents are the Independent Electoral Commission and its officials responsible for conducting the elections and the 6th Respondent was the associate of the 1st Respondent to become the Vice Chairman of the council should the 1st Respondent be elected Chairman. At the conclusion of the election, the 1st Respondent was declared the winner by the 2nd-5th Respondents. Consequently, the Petitioner/Appellant presented this petition praying the tribunal to declare the election a nullity on grounds that the 1st Respondent wrongfully returned as the winner, that the election was invalidated by non compliance with section 13(1) and 51 of Decree 36 of 1998, that the 6th Respondent was not qualified to contest having been dismissed from public service of the Federation.
HELD
Appeal Allowed, Cross Appeal Dismissed
ISSUES
Whether the Election Tribunal was right in holding that the 6th respondent was not dismissed but rather retrenched from his former employment. Whether the Election Tribunal ought to have ordered fresh elections in the whole local government after it nullified the elections in only two polling units for non-compliance with the law.Whether the Election Tribunal was right in admitting in evidence Exhs R1, R/A 1-R/A19, having regard to the state of the pleadings.
RATIONES DECIDENDI
NULLIFICATION OF ELECTION – DUTY OF THE ELECTION TRIBUNAL TO NULLIFY THE ELECTION WHERE IT DETERMINES THAT A CANDIDATE WHO WAS RETURNED AS ELECTED WAS NOT VALIDLY ELECTED ON ANY GROUND – SECTION 87 (1) AND (2) OF THE LOCAL GOVERNMENT (BASIC CONSTITUTIONAL
“if the Election Tribunal determines that a candidate who was returned as elected was not validly elected on any ground, the Election Tribunal shall nullify the election. If the Election Tribunal determines that a candidate who was returned as elected was not validly elected on the ground that he did not score the majority of valid votes cast at the election, the Election Tribunal shall declare as elected the candidate who scored the majority of votes cast at the election.” PER NZEAKO, J.C.A
APPEAL IN RESPECT OF AN ELECTION PETITION – TIME FRAME FOR APPEALING TO THE CONSTITUTIONAL COURT
“Notice of appeal to the Constitutional Court, on an election petition shall be given within 7 days from the date of the decision appealed against”. PER NZEAKO, J.C.A
CANCELLATION OF ELECTION – WHETHER THE COMMISSION CANCEL AN ELECTION WHERE SAME WAS DISTURBED BEFORE CONCLUSION – THE LOCAL GOVERNMENT (BASIC CONSTITUTIONAL AND TRANSITIONAL PROVISIONS) DECREE 36 OF 1998
“Where an election was started on the appointed date but is before Conclusion, substantially disturbed by any intervening cause, the election may be cancelled, and the commission shall appoint a new date for a fresh election.” PER NZEAKO, J.C.A
APPEAL IN RESPECT OF AN ELECTION PETITION – APPEAL IN RESPECT OF ELECTION PETITION UNDER THE LOCAL GOVERNMENT (BASIC CONSTITUTIONAL AND TRANSITIONAL PROVISIONS) DECREE SHALL LIE TO THE CONSTITUTIONAL COURT – SECTION 86(1) OF DECREE 36 of 1998
“An appeal arising in respect of an election petition under this Decree shall lie to the Constitutional Court”. PER NZEAKO, J.C.A
PROOF OF FACT –WHETHER MERE ASSERTIONS DURING THE TESTIMONY OF DEFENCE WITNESSES OF A PURPORTED STATEMENT OF FACT ENTIRELY NEW AND NOT PUT TO THE PARTY CHARGED DURING HIS EARLIER TESTIMONY CONSTITUTES NO PROOF OF THE FACT
“The mere assertion during the testimony of defence witnesses of a purported statement of fact, entirely new and not put to the party charged during his earlier testimony constitutes no proof of the fact. No party is allowed under our principles of jurisprudence to take the opposite party by surprise”. PER NZEAKO, J.C.A
“DECISION” – MEANING OF DECISION UNDER SECTION 99 OF THE LOCAL GOVERNMENT (BASIC CONSTITUTIONAL AND TRANSITIONAL PROVISIONS) DECREE
“Decision” means in relation to the court or tribunal and includes judgment, decree, conviction, sentence or order or recommendation”. PER NZEAKO, J.C.A
ORDERS OF COURT – DUTY OF THE COURT TO MAKE ORDERS WHERE A STATUTE HAS SPECIFICALLY PROVIDED WHAT ORDERS A COURT MUST MAKE IN A MATTER PROPERLY BROUGHT BEFORE IT
“Where a statute has specifically provided what orders a court must make upon specific findings made in a matter properly brought before it, I should think that the court is obliged to exercise the powers to make such orders”. PER NZEAKO, J.C.A
CASES CITED
None
STATUTES REFERRED TO
Local Government (Basic Constitutional and Transitional Provisions) Decree No. 36 of 1998