MAMMOUD ILLU & ANOR v. GARBA ATTAHIRU & ORS
(1999)LCN/0558(CA)
In The Court of Appeal of Nigeria
On Thursday, the 18th day of March, 1999
CA/K/EPLG/18/98
JUSTICES:
UMARU ABDULLAHI Justice of The Court of Appeal of Nigeria
JAMES OGENYI OGEBE Justice of The Court of Appeal of Nigeria
IBRAHIM TANKO MUHAMMAD Justice of The Court of Appeal of Nigeria
Between
- MAMMOUD ILLU
2. UNITED NIGERIA CONGRESS Appellant(s)
AND
- GARBA ATTAHIRU
2. DEMOCRATIC PARTY OF NIGERIA
3. NATIONAL ELECTORAL COMMISSION OF NIGERIA
4. MR. LEKWOT ABRAKSON Respondent(s)
RATIO
WHETHER OR NOT THE APPEAL COURT CAN INTERFERE WITH THE FINDINGS OF FACTS BY THE TRIAL COURT
The proper law has for long been settled that decision on issues of fact is an exclusive preserve of the trial court/tribunal that saw, heard and assessed the witnesses and the subject matter in dispute. It is the trial court/tribunal’s preserve also to believe or disbelieve such evidence laid before it. An Appeal Court rarely interferes with such a finding unless where it is found to be perverse. See: Mboni v. Nwoti (1991) 7 NWLR (pt 206) 737; Ezike v. Ezeugwu (1992) 4 NWLR (pt 236) 466 and Ehiemma vs. National Oil and Chemical Marketing Co. Ltd. (1995) 5 NWLR (Pt 398) 642. PER MUHAMMAD, J.C.A.
IBRAHIM TANKO MUHAMMAD, J.C.A.(Delivering the Leading Judgment): At the end of the Local Government Election of 15th March, 1991, 1st and 4th respondents were returned as Chairman and Vice-Chairman respectively of the Kaduna South Local Government Council. They contested on the platform of the Democratic Party of Nigeria (D.P.N.) the 2nd respondent. The 1st petitioner contested for the Chairmanship of the same Local Government Council under the banner of the United Nigeria Congress Party (UNCP), the 2nd petitioner. He lost to the 1st respondent. Dissatisfied with the Election results, 1st and 2nd petitioners filed their petition before the Election Tribunal for Kaduna. After hearing the parties the Election Tribunal dismissed the petition and confirmed the election of the 1st and 4th respondents. Dissatisfied further the petitioners appealed to the Kaduna state Election Appeal Tribunal. The Appeal Tribunal affirmed the decision of the Election Tribunal. Aggrieved again the petitioners petitioned Government for a review. In his brief filed on behalf of the parties, the Federal Attorney General formulated the following issues for determination:
“(i) Whether the Election Appeal Tribunal was correct in dismissing the petitioners/appellants appeal on the ground that they failed to prove the allegations, alleged, in their petition.
(ii) Whether the Election Appeal Tribunal was biased against the petitioner/appellant.
(iii) Whether the Election Appeal Tribunal was correct in affirming the election of the 1st and 4th respondents as the duly elected Chairman and Vice-Chairman of Kaduna South Local Government Area of Kaduna state.”
A brief was also filed on behalf of the 1st, 2nd and 4th respondents by Mr. Udega. An issue was formulated which is adequately covered by the issues formulated by the Hon. Attorney General. Both the Federal Attorney General and Mr. Udega. adopted almost same line of argument: that, the decisions of the lower Tribunals were correct and not perverse, the petitioners had failed to discharge the onus of proof placed on them by law; the evidence of PW1 (1st have petitioner) was found to have contained some areas of deviation from the averments of the petition, it also contained a lot of contradictions and hearsay evidence, it was also discreted under cross examination when he made certain positive admissions. There was no evidence to establish the election malpractices alleged. On issue No.2, it was submitted that throughout the record, no evidence of bias against the petitioners was found. On issue No.3, it was submitted that the lower Tribunals did the right thing by confirming the elections of the 1st and 4th respondents as Chairman and Vice Chairman of Kaduna South Local Government Council.
After having carefully considered the printed record placed before this Court and the submission of counsel and the prevailing law, I, must say that I am contented with the decision of the lower Tribunals. The proper law has for long been settled that decision on issues of fact is an exclusive preserve of the trial court/tribunal that saw, heard and assessed the witnesses and the subject matter in dispute. It is the trial court/tribunal’s preserve also to believe or disbelieve such evidence laid before it. An Appeal Court rarely interferes with such a finding unless where it is found to be perverse. See: Mboni v. Nwoti (1991) 7 NWLR (pt 206) 737; Ezike v. Ezeugwu (1992) 4 NWLR (pt 236) 466 and Ehiemma vs. National Oil and Chemical Marketing Co. Ltd. (1995) 5 NWLR (Pt 398) 642. The decisions of the lower tribunals are, in my view, free from any perversity. I cannot fault the decisions.
Accordingly, the petition before this Court lacks merit and is hereby dismissed. I affirm the decisions of the lower tribunals which confirmed the election of the 1st and 4th respondents as Chairman and Vice-Chairman respectively of the Kaduna South Local Government council of Kaduna State.
UMARU ABDULLAHI, J.C.A: I agree.
JAMES O. OGEBE, J.C.A: I read before now the decision of my learned brother Tanko Muhammad, JCA just delivered and I agree with his reasoning and conclusion. The two lower Tribunals were right in confirming the 1st and 4th respondents as duly elected Chairman and Vice-Chairman of Kaduna south Local Government and I hereby affirm their decisions.
Appearances
For Appellant
AND
Mr. S.A. Udaga for the 1st, 2nd and 4th respondents. For Respondent
