Alhaji Muhammed Nasir Idris & Anor V. Alhaji Mohammed Saleh & Ors. (1998)
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JAMES OGENYI OGEBE, J.C.A.
The 1st petitioner contested the 15th March 1997 Local Government election for the chairmanship of Sabon-Gari Local Government of Kaduna State. At the end of the election the 1st respondent was declared duly elected as the chairman of the Local Government with 19,223 votes. Dissatisfied will the outcome, the petitioner filed a petition before the Local Government Election Tribunal of Kaduna State challenging the election of the 1st respondent on the ground that his running mate was not qualified to contest for failure to pay taxes as and when due, among other allegations. He prayed finally that the 1st and 2nd respondents be declared not duly elected and a fresh election conducted. The Tribunal nullified the election of the 1st and 2nd respondents and returned the 1st petitioner as duly elected.
Dissatisfied with that decision the respondents appealed to the Election Appeal Tribunal of Kaduna State. The Appeal Tribunal allowed the appeal and quashed the decision of the lower Tribunal on the ground that it was perverse. The petitioner then wrote a letter to the Government for a review of the judgment of the Appeal Tribunal.
The learned Attorney-General of the Federation filed a brief in which he identified two Issues for determination as follows:-
- Whether the Appeal Tribunal was right in quashing the decision of the lower Tribunal having regard to the evidence adduced in respect of the 2nd respondent’s non-payment of tax “as and when due”
- Whether the Appeal Tribunal was right to have nullified the order of the lower Tribunal to the effect that the Petitioner be declared the chairman of Sabon-Gari Local Government having scored the 2nd highest number of votes.”
The learned Attorney-General submitted that the decision of the Appeal Tribunal returning the 1st and 2nd respondents as chairman and vice chairman was wrong since there was clear evidence that the 2nd respondent did not pay his taxes as and when due.
There is a brief on behalf of the 1st – 3rd respondents urging the Court to support the decision of the Appeal Tribunal in returning 1st and 2nd respondents as duly elected because 2nd respondent paid his taxes as and when due.
There is also a second brief on behalf of the 1st – 3rd respondents by Chief A. T. Ajala (Senior Advocate) urging this Court to set aside the decision of the Election Tribunal and dismiss the petition in the trial Tribunal.
I have given very serious thought to all the issues and arguments canvassed in this appeal and I have also studied the records of this case carefully and it is my view that the critical issue in this appeal is whether or not the 2nd respondent paid his taxes as and when due. There was clear evidence before the trial Tribunal that he paid the three years taxes at once when he should have paid his tax yearly. This showed clearly that he did not pay his taxes as and when due. I am therefore of the view that the trial Tribunal was right in nullifying the election of 1st and 2nd respondents and the Appeal Tribunal was wrong in interfering with that decision.
However, the trial Tribunal was wrong to have returned the petitioners as duly elected because the petitioners did not seek that they should be returned. Their main relief before the trial Tribunal was that the 1st and 2nd respondents should be declared not duly elected and a fresh election conducted.It is trite law that you cannot give to a party what he does not ask for. See the cases of Chief A. D. Green v. Chief E.T. Green (1987) 3 NWLR (Pt.61) 480 at 516 and Professor Erica A. Opia v. Chief Felix O. Ibru and 2 Ors. (1992) 3 NWLR(Pt. 231) 658 at 692.
Apart from that, by virtue of Section 95(1) of the Local Government (Basic Constitutional and Transitional Provisions) Decree No.7 of 1997, if a Tribunal determines that a candidate returned was not duly elected on any ground, the Tribunal shall nullify the election, not just the return. This means that a fresh election must be ordered.
Accordingly, I set aside the decision of the Election Appeal Tribunal and the decision of the trial Tribunal returning the petitioners. In their place it is hereby ordered that NECON shall conduct a fresh election for the election of a Chairman and Vice-Chairman for the Sabon-Gari Local Government Council.
Other Citations: (1998)LCN/0413(CA)
