Chief Bola Ige V. Dr Victor Omololu Olunloyo & Ors (1984)
LawGlobal-Hub Lead Judgment Report
OBASEKI J.S.C.
On the 19th day of October, 1983, after hearing all counsel
appearing in this appeal, I dismissed the appeal and reserved my reasons till today. I now give my reasons for the judgment.
On the 13th day of August, 1983, the Federal Electoral Commission conducted the gubernatorial election in Oyo State to the office of Governor of the State. Following the close of counting of the votes cast at the election, the returning officer appointed by the Federal Electoral Commission for Oyo State gubernatorial election, Mr. S. S. Ajibade, declared Dr. Victor Omololu Olunloyo the first respondent, duly elected. He contested the election under the sponsorship of the National Party of Nigeria (NPN). Chief Bola Ige, the petitioner/appellant, was also a candidate at the election, having been sponsored by the Unity Party of Nigeria (UPN).
There were four other candidates, one each being sponsored by the NPP, the GNPP, the PRP and the NAP respectively. The result of the election declared by the third respondent i.e. the returning officer showed that Dr. Victor Omololu Olunloyo received a total of 1,603,267 votes while Chief Bola Ige received a total of 1,095,877 votes. Chief Bola Ige was not satisfied with the results so declared and decided to challenge the election or return of Dr. Victor Omololu Olunloyo in the Oyo State High Court.
He presented and filed his election petition on the 22nd day of August, 1983. There were four respondents to the petition namely (1) Dr. Victor Omololu Olunloyo, (2) The Chief Electoral Officer for Oyo State (Mr. Stephen Sunmiboye Ajibade); (3) The Returning Officer, Mr. Daniel Adepoju Lapade Laniran and (4) The Federal Electoral Commission (FEDECO). The petition closed with a prayer which reads:
“Wherefore your petitioner prays that it be determined,
(1) that the first respondent, that is to say, the said Dr. Victor Omololu Olunloyo was not duly elected and/or returned and that his election is void.
(2) that your petitioner was duly elected and ought to have been elected and returned.”
The respondents filed their replies to the petition. The first respondent filed his own reply separately while the second, third and fourth responfiled a joint reply.
At the close of evidence on the 9th day of September, 1983, Mr. Chukura, S.A.N., learned counsel for the petitioner/appellant, made an unsuccessful oral application to amend the prayer by adding an alternative prayer to read:
“And in the alternative that the election is void.” The election panel refused the application on the ground that such an amendment is not permissible after 14 days from the date of the announcement of the results. The results were announced on the 16th day of August, 1983. Section 136 (2) of the Electoral Act bars such amendments.
The petition was heard by a panel of 5 judges namely, Olowofoyeku, J.; Chairman; Oloko, J; Ayorinde J.; Alao, J; and Popoola, J. At the close of counsel’s addresses, the panel retired to deliberate on the judgment to give. On the 12th day of September, the court (Olowofoyeku, J. and Oloko, J. dissenting) dismissed the petition in a well considered judgment, the closing paragraphs of which read:
“The third respondent has said he prepared exhibit 102 from exhibits 125 and 125U before he declared the results of the governorship election. The second respondent, like the third respondent and the second witness for the respondent was not shaken under cross-examination…
In the circumstances we accept the evidence of the 2nd and 3rd respondent as supported by the evidence of their 2nd witness, Okelola as true and find proved that the results in Exhibit 102 are authentic and reliable results of the governorship election held in Oyo State on 13th August, 1983.
It follows that by virtue of the said Section 65(1) abvoe, the votes at Ibadan and Ilesha which have not been returned to any of the appropriate agents of the Federal Electoral Commission or to the Commission cannot be counted. In the two areas, it was said that there were violence resulting in murders and and arson. We accept the 2nd respondent’s evidence that there were no returns from these said constituencies. We accept the testimonies of the 1st, 3rd, 4th, 5th, 6th and 7th witnesses for the respondents who testified to the acts of violence and other criminal acts..
On the issues settled in the parties’ pleadings in this petition in view of what we have said, the purported returns from the petitioner which have been weighed against the final returns from where the 3rd respondent collated and declared the results of the election we hold the view that even on the preponderance of evidence the petitioner has not proved he had a majority of votes in the said election of 13th August, 1983. He is a defaulting party as having been unable to bring sufficient evidence to sustain the relief he is asking for. See Imana v. Robinson (1979) 3-4 S.C. 1 at 9 (from last paragraph to page 10)
It is held that the election of 13th August, 1983 on the evidence accepted by us has been held in substantial compliance with the proviosion of the Electoral Act and the result declared is authentic. The judgment this court can give in an election petition is as prescribed in section 149 of the Electoral Act.
It will be necessary to order a fresh election where election in respect of which a petition was brought was voided. We have not voided the election of 13th August, 1983 as no such relief has been claimed in the present petition. We cannot proceed to void that election of 13th August, 1983 in the absence of a prayer to that effect as the court can only consider the relief being claimed and the evidence in support of that relief in my view of the words “as the case may be” in the said section 149 of the Act.’
Being aggrieved by the decision of the election panel of the High Court, the petitioner appealed unsuccessfully to the Federal Court of Appeal. That court, in a unanimous judgment, dismissed the appeal. It is against that judgment that the petitioner filed his appeal in this Court.
It is important to observe that the two judges who dissented from the judgment of the majority were in agreement with the majority that the petitioner’s prayer to return him as the true person duly returned failed. In this regard, I quote the relevant portion of their judgment:
‘Finally, the respondents have given evidence of serious acts of violence shortly before and during the day of the election in many parts of Ibadan Municipal Government and Ilesha Local Government. Evidence in regard thereto shows that on such account there had been no returns from Ibadan and Ilesha collation centers. It is the case of the petitioner that there was voting in the two local government areas amounting on the whole in the case of Ilesha Local Government to 131,860 for him and 182 for the first respondent. should be taken into account. In the case of Ibadan, those votes in his own case amount to 331,218 and for the first respondent 107,091.
There is no doubt that the evidence before the court was one that necessarily warrants a concluthat the situation in those two local government areas was such as to prevent a free and fair election and one could not really say that in the circumstances the elections in these two places were free and fair. The petitioner’s allegation that the elections in those two places were voided was not denied by the second and third respondents but they gave reasons relying among others on the doctrine of necessity.
We do not consider that the action of the second and third respondents in voiding the elections in those two places draw support from any of the provisions of the Electoral Act, nor do we appropriate the need to introduce the doctrine of necessity. On the contrary, we consider that the situation described in the evidence on behalf of those respondents is what could have called for the exercise of powers under the provision of section 60 of the Electoral Act which provides:
‘It is our view that under that provisions the presiding officer may adjourn the proceedings in as many polling stations as are affected and if need be, (Sic) warranting the adjournment in all the polling stations in the constituencies. The total number of registered voters in respect of Ilesha Local Government and Ibadan, and having regard to exhibit 98, is 1,030,935. A cancellation of the voting in those two places albeit without any authority, has disenfranchised about one fifth of the entire voters in Oyo State shown to be 5,179,477 and about one third of the total votes of 3,004,715 cast in the election as recorded by the second and third respondents. We are of the view that such would have been valid ground for voiding the election if there had been a prayer to that effect. See G. B. Adeyemi v. M. E. Ogundare & Anor. (1965) W. N. L. R 71; Morgan v. Simpson (1974) QB. 344.
The votes which we have held ought to be disallowed in the case of Oranmiyan North 1 Constituency cannot affect the result of the election as declared by the third respondent and accordingly the petitioner’s prayer to return him as the true person duly returned fails.”
It was their view, erroneously, in my view, that section 149 (1) of the Electoral Act gave the court power to consider the grant of any alternative prayer whether before the court or not that led them to grant the prayer (that was not in the petition before the court) that the election held on the 13th day of August, 1983 for the office of governor of Oyo State was void.
Being aggrieved by the decision of the election panel of the High Court of Oyo State, the petitioner appealed unsuccessfully to the Federal Court of Appeal. The respondents also appealed against the minority judgment of the Federal Court of Appeal. This was an unusual step and an uncalled for exercise. A dissenting judgment or minority judgment as it is sometimes called is not the judgment of the court under our 1979 Constitution. It is the judgment of the majority that is the judgment of the court. See section 258 (3) of the Constitution of the Federal Republic of Nigeria, 1979. The Federal Court of Appeal quite rightly and properly held that the cross-appeal is incompetent and dismissed it. That section 258 (3) reads”-
“A decision of a court consisting of more than one judge shall be determined by the opinion of the majority of its members.”
There is no right of appeal against the minority or dissenting judgment.
The right of appeal granted by the 1979 Constitution is against the decision of the court which means the opinion of the majority of the judges constituting the court. See section 220 (1) and (2) of the 1979 Constitution. The Federal Court of Appeal unanimously dismissed the petitioner’s appeal. It is against that decision that the petitioner has now appealed to this Court. The petitioner’s dissatisfaction found expression in 4 grounds of appeal filed by him in his notice of appeal. They read as follows:-
‘(1.) The Federal Court of Appeal erred in law in holding that the issue of non-compliance with the Electoral Act, 1982 No.8 was not the basis of the petition, as a result of which it dismissed the appeal when:
(i) The issue was raised and relied on by the respondents (not by the petitioner).
(ii) The court of appeal held that the irregularity complained of was not a trivial one.
(iii) The trial court and the court of appeal accepted the defence of the respondents but failed to apply the statutory sanctions relevant to the accepted defence.
(iv) The respondents did not discharge the onus of proof that shifted on them to establish that the election was conducted substantially in accordance with the provisions of the Act.
(2) The Federal Court of Appeal erred in law in dismissing the appeal when from the reply of the respondents and the evidence tendered by them the third respondent did not make or declare a return of the election as prescribed under section 70 of the Electoral Act and otherwise.
(a) That there was no return;
(b) Exhibit 102 tendered by the second respondent is invalid and cannot be a return of the election.
PARTICULARS:
(3) The Federal Court of Appeal erred in law in endorsing the erroneous findings of fact made by the trial court when:
(i) the petitioner fully discharged the onus of proof which rested on him as required by law;
(ii) the respondents failed to discharge the onus of proof which rested on them to prove the charges of
(a) causing confusion;
(b) deceit;
(c) falsifying election results;
(d) forging signatures of party agents;
(e) forging signatures of FEDECO officers;
(f) obtaining forms and signatories by duress which they leveled against the petitioner.
(iii) The trial court relied for its findings on presumptions when there was otherwise abundant credible oral and documentary legal evidence.
(iv) The court of appeal failed to consider the material facts and the issues of law raised thereon.
(v) The trial court held erroneously and without reflection that the result that would emerge from taking into consideration the figures in exhibits 13 to 13D, 15 to 21, 23 and 24 (page 199) would not make any difference in the result of the election.
(vi) The court of appeal erroneously held that the petitioner made statements in respect of printing of forms EC8 and EC8A and glossed over the legal effect on exhibit 127.
- The court of appeal erred in law in failing to declare the election at Oranmiyan North I constituency void when at the time of the election there was a subsisting order of the High Court restraining the Federal Electoral Commission from conducting election with the register of voters which the Commission used.”
The issues for determination in this appeal are stated in the appellant’s brief to be six in number. They are as follows:
“(i) Where the defence of respondents in an election petition relies on a statutory defence, is the court not under a duty where it rejects the complaints of a petitioner on the basis of the defence to apply the statutory sanction relevant to such defence’ The obvious answer to this question is that a petitioner who fails to establish the complaints in his petition whether his failure arises from the statutory defence set up by the respondent or not loses his claim.
“(ii) Whether a disregard of the provisions of sections 19, 60 and 154 of the Electoral Act by electoral officers does not vitiate an election Failure to postpone polling in an area where widespread violence is evident does not ipso facto vitiate the election. The circumstances of each case have to be considered in the light of the pleadings and evidence.
“(iii) Whether the electoral commission, a presiding officer and/or the Chairman of the Commission on the events stipulated in sections 19, 60 and 154 of the Electoral Act are entitled:
(a) To declare a return when polling has not taken place in some constituencies
The short answer is that by law it is the returning officer that declares a return.
(b) “To refuse or otherwise neglect to appoint a substituted date for holding such election”
The short answer is No if the facts fall within the provisions of those sections.
(c) “In the event of an interruption to refuse or otherwise neglect to adjourn the proceedings and thereafter hold the election” The interruption if really serious will force adjournment of the proceedings. The presiding officer is however the sole judge at the polling station.
“(iv) Whether a returning officer is permitted by the Electoral Act after he has declared a return under section 70 of the Electoral Act to proceed to alter the number of votes cast for the candidates and whether a return so altered is invalid and void
The validity or invalidity of a return depends on the ineffectiveness or the effectiveness of the challenge in the competent High Court of the election or return;
“(v) Whether returning officers have a discretion where voting has taken place in an election to refuse to count such votes and whether an election court should not have ordered such votes to be counted” The circumstances influencing a returning officer’s refusal to count must be examined by the court to decide whether the refusal to count is justified.
“(vi) Whether an election court is not bound to give effect to the evidence of a petitioner who tenders unchallenged returns signed by election officers and supported by primary and secondary returns.”
In my view, the main issue for determination in this appeal is whether, in the absence of a prayer by the petitioner in his petition praying that the election be declared void, the election ought, having regard to the evidence before the court establishing circumstances on which such a relief ought to be granted, to be declared void
The relief sought from this court by the appellant in the terms expressed in his notice of appeal reads:
“An order setting aside the decision of the Federal Court of Appeal and in its place a decree declaring:
(i) that the first respondent was not duly elected;
(ii) that the election of the first respondent is void;
(iii) that the petitioner was duly elected and ought to have been returned;
(iv) in the alternative, that the election is void on the ground that it was not conducted substantially in accordance with the provisions of Part II of the Electoral Act.”
It was conceded by Chief Chukura, S.A.N. learned counsel for the appellant that the prayer that the gubernatorial election held on the 13th day of August, 1983 be declared void was not made in his petition. Chief R. A. O. Akinjide quite properly drew this court’s attention to the oral application made by Chief Chukwura in the High Court for amendment of the petition to include the prayer to void the election. It is on record that the application was refused. As the application was made after the expiration of time for filing the petition the court quite justifiably refused the application.
There was therefore no merit whatsoever in the submission that the Federal Court of Appeal and the trial court erred in refusing to declare the election void.
No court has the power to grant relief’s or remedies not claimed before it. In this case, the restriction is even more apparent in section 136 (3) of the Electoral Act, 1982 which was specific when it provided:-
“The court in the trial and determination of the petition shall confine its inquiry or findings to the issue raised by the petition and reply.”
There being no prayer to the effect that the election be declared void, this Court cannot entertain an appeal seeking such a relief. The appeal being in the main for such a relief, lacked merit. I had no reason to disturb the concurrent findings of fact that ‘on the evidence accepted the petitioner did not get a majority of lawful votes’ arrived at in the High Court and the Federal Court of appeal.
For the above reasons, I dismissed the appeal on the 19th day of October, 1983.
Other Citation: (1984) LCN/2230(SC)
