Ige Felix Oyebisi V. Hon. Tijani Tunde Suleiman & Ors (2008)
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JOHN AFOLABI FABIYI, J. C. A.
This is an appeal against the judgment handed out by the Election Tribunal on 2nd of October, 2007. The Chairman and Members of the Governorship and Legislative Houses Election Petition Tribunal nullified the election of the appellant and ordered a bye-election in all the 124 units which make up the Kajola State Constituency of Oyo State of Nigeria.
The facts of this matter are very crucial I need to assemble same briefly to enable me properly address the issues strenuously canvassed by the parties in this appeal The 1st Respondent who petitioned at the Tribunal was a candidate of the Peoples Democratic Party (PDP for short) while the appellant herein was a candidate under the banner of Action Congress (A.C. for short). At the general election conducted by the 3rd respondent into the Kajola State Constituency of Oyo State House of Assembly on 14-04-07, elections were held in 123 units out of the 124 units in the constituency. After the votes were counted, the appellant scored 11,993 votes and he was declared the winner of the election and returned by the 3rd respondent. The petitioner at the Tribunal who is the 1st respondent herein scored 11,931 votes. It was, no doubt, a very close race as the difference in the votes scored by the contending parties was 62 votes.
The 1st respondent was not satisfied with the outcome of the election. He decided to challenge the result at the Tribunal by filing a petition on 11-5-07. The grounds for the petition, as contained in paragraph 5 of same are:-
“(i) That the appellant did not resign his appointment at least 30 days before the date of the election of 14-4-07.
(ii) That election did not hold in units 011 and 012 of ward 5 and unit 007 of ward 10 which units are strongholds of the petitioner,”
The prayers of the petitioner at the Tribunal as manifest in paragraph 7 of the petition are as follows:-
“1. That the 1st respondent at the Tribunal and appellant herein was not validly elected.
- That he (petitioner) was validly elected having scored the highest number of votes validly cast at the election;
Or in the alternative,
- An order that election be held in units 011 and 012 ward 5 and unit 007 of ward 10 in order to determine the real winner of the election.”
The Tribunal garnered evidence from the parties and their respective witnesses. Learned counsel for the parties filed written addresses as directed by the Tribunal and adopted same orally. The Tribunal applied the law to the facts to the best of its ability in a bid to resolve the keenly contested issues. The Tribunal, in sum, found as follows:-
- That the appellant validly resigned his appointment before the election of 14-4-07.
- That the election was conducted in 123 units out of the 124 units of the Kajola Slate Constituency.
- That there was no unit known as unit 012 of ward 5.
- That election was not conducted in unit 007 of ward 10 and the number of the registered voters in the unit is 64 while the appellant won with 62 votes in the 123 units. The result declared by the 3rd respondent was nullified and a fresh election was ordered for the whole constituency.
Surprisingly, before making the order of a fresh election in the whole constituency, the Tribunal observed at pages 246-247 of the transcript record of appeal as follows:-
“It is pertinent to point out that in such circumstance as occurred in this case where due to no fault of the voters, polling could not take place in a polling unit and the number of such registered voters exceeds the number of votes scored by which the winning candidate won the petitioner, Independent national Electoral Commission (INEC) should pursuant to section 27(1) of the Electoral Act, 2006 appoint a fresh date to conduct election in that or those units so that the wishes of the majority of registered voters is reflected in the outcome of the overall result of the election.”
The above stance of the Tribunal points to the direction that where the result declared is not conclusive, as in this case, fresh election should be conducted in the unit or units where election did not hold so as to know the outcome of the overall result of the election. The Tribunal appreciated this point but went ahead to get itself derailed by ordering a bye-election in the whole constituency made up of 124 units instead of in just one unit where it found that election did not take place. I shall deal with this point later on at a reasonable length in this judgment.
The appellant felt irked with the stance posed by the Tribunal and appealed to this Court vide the Notice of Appeal filed on 23-10-07. The complaint therein relates to part of the decision which nullified the election result based on non-voting at unit 7 of ward to Kajola State Constituency.
The Notice of Appeal was accompanied by eight (8) grounds of appeal. The reliefs contained at page 252 of the record of appeal read as follows:
“(i) An order allowing the appeal and setting aside the judgment of the Tribunal that nullified the election result of the 1st respondent/appellant based on the non-voting at unit 7 ward 10 of Kajola State Constituency of Oyo State house of Assembly.
(ii)An order declaring that the 1st respondent/appellant was validly elected having polled the majority of valid votes cast at the election.
In the alternative:
(iii) An order directing INEC to conduct election in only unit 7 of ward 10 of Kajola State Constituency of Oyo State House of Assembly.
(iv) Any further orders.”
From the eight grounds of appeal, the appellant formulated three issues for determination. They read as follows:-
“(i) Whether in the absence of a prayer by the petitioner in his petition praying that the election be declared void/nullified, the lower court/tribunal can void and/or nullify such an election and order bye-election for the whole constituency instead of unit 7 ward 10 prayed for by the petitioner.
(ii) Whether the non-resolution of the issues joined between the petitioner and the 1st respondent by the tribunal was fatal to the decision of the tribunal.
(iii) Whether or not a successful candidate’s election, such as the appellant’s, can be nullified and the whole constituency plunged into a bye-election by reason of non-voting in unit 7 of ward 10 having regard to the evidence before the tribunal or circumstances of the case.”
On his own part, the 1st respondent in his brief couched two issues for determination in this appeal. They read as follows:-
“1. Whether the issue of who was responsible for failure to hold election at the polling unit 7 of ward 10 Kajola State Constituency was material in the just determination of the petition.
- Whether the lower tribunal could validly nullify the election of the appellant and order a fresh election in the whole constituency:’
In arguing the three issues which dove-tail into one another, learned counsel for the appellant submitted that a court is bound by the prayers before it. He cited the case of Omoboriowo v. Ajasin (1984) 1 SC 206 a1246. Learned counsel observed that the prayer before the Tribunal was for bye-election in the alleged units where election did not take place. He contended that the Tribunal ought not to have granted a prayer which the petitioner did not seek by nullifying votes of the entire constituency whereas the Tribunal found that election was conducted in 123 units out of 124. He cited Bola Ige v. V. O. Olunloyo & on (1984) 1 SC 258.
Learned counsel urged that the order of the Tribunal be set aside for exceeding the prayer of the petitioner. He cited the case of Bello v. Att-Gen, Lagos State (2006) All F.W.L.R. (Pt. 324) 1954 at 1977. He contended that the Tribunal wrongly placed heavy reliance on the case of Oputeh v. Ischida (1993) 3 NWLR (Pt. 279) 34 in which the provision of section 92(4) of Decree No. 18 of 1992 was considered. He observed that section 147 of the Electoral Act, 2006 did not make similar provision for ‘bye-election and no more as statutorily provided in section 92(4) of Decree No. 18 of 1992.
Learned counsel cited the case of INEC v. Ray (2004) 14 NWLR (Pt. 892) 92 at 139-140 and maintained that it is relevant and applicable to this case in hand. He felt that in appropriate circumstances, the court can order bye-election for units or wards affected alone. He finally urged that the decision of the tribunal be set aside on the ground that it granted what the petitioner did not pray for.
Learned counsel for the 1st respondent felt that the result of the election could be substantially affected by non-holding of election in unit 7 of ward 10 Kajola State Constituency. Learned counsel cited Ebu v. Obun (2004) 14 NWLR (Pt. 892) 76 at 90-91.
Learned counsel maintained that the case of INEC v. Ray cited by the appellant’s counsel did not establish that the Tribunal cannot order fresh election. She observed that the case only showed that the Tribunal had the power to order fresh election in appropriate cases in the areas where there were no election.
The 2nd and 3rd Respondents did not file any brief of argument. Though served with hearing notice, they were not represented by counsel on 24.4.08 when the appeal was heard.
IIt is beyond contention that a court or tribunal will not grant a prayer outside the ones set down in the petition. Refer to Omoboriowo v. Ajasin (supra) at p. 246. In Bola Ige v. V. O. Olunloyo (supra) the apex court pointedly maintained that no court has the power to grant reliefs or remedies not claimed before it. It was pronounced that there being no prayer to the effect that the election be declared void at the lower court, the Supreme Court cannot entertain an appeal seeking such a relief.
It must be pointed out further that the usual stance of courts is that a relief or prayer that is not sought should not be granted. This is because the court or tribunal is not a charitable organisation. See Ekpenyong v. Nyong (1975) 2 SC 71 at p. 80; Egonu v. Egonu (1978) 11-12 SC 111 at p. 133; Babatunde Ajayi v. Texaco Nig. Ltd. (1978) 9-10 SC 1 at 131.
In sum, it was wrong for the Tribunal to nullify or void outrightly the election conducted for the whole of Kajola State Constituency when it found that elections in 123 out of 124 wards in the constituency went on well. The relevant alternative prayer is that a bye-election should be ordered in only unit 7 of ward 10 so as to determine the real winner of the election between the appellant and 1st respondent herein. The Tribunal had no vires to void the whole election in the constituency for the mere reason that the election was inconclusive. Such an order had no basis in law or even in logic as same will lead to undeserved waste of human and financial resources.
I need to point it out that the tribunal placed undue reliance on the case of Oputeh v. Tschida (supra) This is because there is no provision for ‘bye-election and no more’ in section 147 of the Electoral Act 2006 as contained in section 92(4) of Decree No. 18 of 1992 applied in Oputeh v. Ischida (supra).
It is my firm view that this is a clear case where the election was inconclusive. Elections were held in 123 out of 124 wards that make up Kajola State Constituency. The appellant scored 11,993 votes while the 1st respondent scored 11,931 votes. The difference in scores of the parties is 62 votes. The Register of voters in unit 007 of ward 10 has 64 voters therein. The official of the 3m respondent, for no justifiable cause shown, failed to conduct election thereat. The 64 votes at unit 007 ward 10 could tilt the result either way. The Baale of the area where the crucial ward was located complained that they were not allowed to vote. They were disenfranchised.
I need to say it with force that in this case where due to no fault of the voters, polling could not take place in unit 007 of ward to and the number of registered voters thereat exceeds the number of votes scored by the appellant to ‘win’, INEC should pursuant to section 27(1) of the Electoral Act, 2006 appoint a fresh date to conduct election in that unit. This must be so to ensure that the wish of the majority of registered voters is reflected in the outcome of the overall result of the election. That was what was done in INEC v. Ray (supra). The rationale for same is in tandem with law and even logic in my respectful opinion. The tribunal should have followed the decision in that cases as it was bound by same vide the doctrine of stare decisis. The doctrine stipulates that a point of law that has been settled by a superior court should be followed. There is sense in it to avoid confusion. See Royal Exchange Assurance Nig. Ltd. v. Aswani iles Ind. Ltd. (1991) 2 NWLR (Pt. 176) 639 at 672. It is not proper to refuse to follow the decision of a superior court. A lower court or tribunal should tow the line. See Atolagbe v. Awuni & ors (1997) 7 SCNJ 1 at pp. 20, 24 & 35.
Election in the constituency, as between the appellant and the 1st respondent, was keenly contested. The race was too close to call. Every single vote counted heavily. Non-voting in unit 007 of ward 10 was so material that it actually affected the result of the election. The votes thereat would now serve as the ‘joker’ to determine the real winner of the election.
The petitioner did not pray for nullification and bye-election in the whole constituency. No doubt, the tribunal, in a contrary manner granted what was not prayed for. The order made by the tribunal was unwarranted. And same is hereby set aside. In its place, the 3rd respondent, INEC is hereby ordered to conduct a bye-election in unit 007 of ward 10 Kajola State Constituency within 90 days to determine the real winner of the inconclusive election.
The end result is that the appeal is allowed. With the order of a bye-election in the affected Unit 007 Ward 10 Kajola State Constituency, I feel I am done. The appellant is entitled to costs. The 1st Respondent shall pay N10, 000 costs to the appellant.
Other Citations: (2008)LCN/2759(CA)
