Melah Haruna Tanko V. Elisha Caleb & Ors (1999)

LawGlobal-Hub Lead Judgment Report

EDOZIE, J.C.A. 

The 1st Respondent and the Appellant were candidates in the Billiri Local Government Council election for Tanglang Ward conducted by the Independent National Election Commission (INEC for short) on 5th December, 1998. The former contested under the platform of All Peoples Party (APP) while the latter was fielded by the Peoples Democratic Party (PDP). At the end of the poll, the 1st Respondent was declared the winner with a total of 883 votes as against 743 votes scored by the Appellant. In consequence, the Appellant as petitioner filed a petition before the Local Government Council Election Tribunal for Gombe seeking in paragraph 11 thereof the following reliefs:

“(a) A declaration that the 1st Respondent did not score the majority of lawful votes cast at the election.

(b) A declaration that the 1st Respondent is disqualified to contest the said election having impersonated somebody else.

(c) An order that the authentic election results of Poyali and Bassa be collated and declare (sic) the Petitioner as the winner of Tanglang Councillorship election having scored the majority of the lawful votes cast.

The grounds relied upon for the petition as set out in paragraph 6 thereof are: And your petitioner states:

Grounds upon which your petitioner relies:

(a) That the collation of Tanglang Ward Councillorship election results was inconclusive.

(b) The 1st Respondent was not duly elected by the majority of the lawful votes cast at the election.

(c) The 1st Respondent stand disqualified as the documents and the names he uses belong to someone else.

(d) The election was voided by non-compliance, corrupt practices and offences against electoral Decrees.”

The 1st Respondent filed a Reply denying the material allegations in the petition and so too did the 2nd to 4th Respondent in their joint reply. In the course of the trial that followed in which the Appellant called six witnesses and the 1st Respondent two with 2nd to 4th Respondent calling none; learned counsel for the Appellant abandoned ground 6(c) of the petition which was accordingly struck out by the Election Tribunal along with prayer 11 (b) on which it was predicated. The grounds of the petition was thus narrowed down to two, that is, grounds 6(c) and 6(d) both of which allege inconclusiveness of the result of the election of Tangland Ward due to non-compliance with the electoral law and ground (b) which complains that the 1st Respondent was not elected by the majority of the lawful votes cast at the election.

The facts of the case are that there were 9 polling units in Tanglang Ward where the electorates cast their votes. At the end of polling the results of the poll were collated in only six polling units, leaving out the results in 3 of the polling units, namely Poyali, Bassa and Kulgul Polling Units. It was the Appellant’s case that the agents of the 1st Respondent destroyed the result from Kulgul Polling Unit while results from Poyali and Bassa Polling Units were not collated for unknown reasons. The 1st Respondent stated that he was informed by the PDP Returning Officer that the results of the election at the 3 polling stations in question were not returned in the summary of result sheets.

In its judgment delivered on 5th February, 1999, the Election Tribunal in a unanimous decision held that the Appellant had made out a case of non compliance with the provisions of Decree No. 36 of 1998, in that there was no proper collation of the results of the Election in respect of Poyali, Bassa and Kulgul Polling Stations of Tanglang Ward and that the non compliance was substantial and has affected the result of the election. It accordingly nullified the election in the Tanglang Ward or Billiri Local Government Area of Gombe State with N1,000.00 costs to the Appellant against the 1st Respondent. Against that judgment, the Appellant has lodged the instant appeal predicated on three grounds of appeal from which in his brief of argument, he identified the following two issues for determination:

“Whether in the absence of a prayer by the petitioner in the petition praying that the election be nullified, the Tribunal was in the circumstances right in nullifying the election.

(2) Whether the Petitioner has proved his petition.

The 1st Respondent by his counsel filed a brief of argument wherein were identified three issues for determination but as these are adequately covered by the two issues in the appellant’s brief it is not necessary to reproduce them.

On 9/3/99 when the appeal came up for hearing, Mr. H. H. Kereng Principal State Counsel, Ministry of Justice, Gombe who represented the 2nd – 4th Respondents stated that no brief was filed on their behalf as he was not opposing the appeal. Learned counsel for the Appellant and 1st Respondent each adopted his brief of argument in the consideration of the appeal.

I think that the main issue in controversy is whether in the absence of a prayer for nullification of the election in question, the Election Tribunal could grant that relief and if so whether the circumstances justifies the nullification of the result.

Admittedly, the Appellant did not in his petition pray for the nullification of the election question. The general rule is that the Court and by extension a Tribunal is not a Father Christmas and cannot grant to a party a relief he has not asked for. Our Law Reports are replete with authorities to that effect: See Nwanya v. Nwanya (1987) 3 NWLR (Pt.62) 697, Odofin v. Agu (1992) 3 NWLR (Pt.229) 350 at 372, Ilodibia v. Nigerian Cement Co. Ltd. (1997) 7 NWLR (Pt.512) 174 at 191, to mention but a few. In the instant case, in nullifying the election, the Tribunal at Pp.41 to 42 of the record of appeal said:

“The petitioner has succeeded in proving non-compliance with provisions of the Decree as it relates to the collation of results. We are of the view that the non-compliance is substantial and it has affected the results. …The only consequential order we can make is to nullify the election. We accordingly invoke the provisions of Section 87(1) of Decree No. 36 of 1978. The Councillorship Election of Tanglang Ward Billiri Local Government Area of Gombe State is hereby nullified…”

An election petition is a proceeding sui generic: Orubu v. NEC & Ors. (1988) 5 NWLR (PT.94) 323 at 389.

The election under consideration is governed by the Local Government (Basic Constitutional and Transitional Provisions) Decree No. 36 of 1998. Section 87(1) of the said Decree relied upon by the Tribunal provides thus:

“87(1) Subject to sub section (2) of this section, 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.” (Italics mine)

Generally, the word “shall” is a word of command and denotes obligation and gives no room for discretion. It imposes a duty: See Katto v. CBN (1991) 9 NWLR (Pt.114) 126. By Section 87(1) of Decree 36 of 1978 the Tribunal has an obligation subject to sub section 2 of the Section which is not applicable in this case to nullify an election if it determines that the person returned as elected was not validly elected. The Tribunal in this case found as a fact that in line with the Appellant’s case that as a result of non-compliance with Decree No. 36 which had substantially affected the result of the election that the 1st Respondent was not validly elected. It is my judgment that the Tribunal had no alternative than to nullify the election.

In the light of the above, this appeal lacks substance and is accordingly dismissed with the sum of N2.000.00 costs against the Appellant and in favour of the 1st Respondent.

Other Citations: (1999)LCN/0523(CA)