Musa Salihu Ankpa & Ors V. John Ibrahim Maikarfi & Anor (2008)

LawGlobal-Hub Lead Judgment Report

ABDU ABOKI, J.C.A.

This is an appeal against the decision of the Niger State Governorship and Legislative Houses election petition tribunal, Minna delivered on the 4th day of October, 2007.

The facts leading to this Appeal are that on the 14th April 2007 elections were held into the various States House of Assembly throughout Nigeria.

The 1st Appellant was returned by the 3rd Appellant as the winner of the Election in Paikoro Local Government Constituency.

The 1st Respondent as a Petitioner challenged the return of the 1st Appellant alleging that the results from three (3) polling units in two Wards were not counted because agents of the 2nd Appellant snatched the ballot boxes containing votes cast at those units and ran away with them.

On the 12th day of May 2007, the Respondents as Petitioners filed a petition before the Niger State Governorship and Legislative Houses Election Petition Tribunal sitting in Minna, praying for the following reliefs:

(a) That the snatching of three (3) ballot boxes by the agents of the 2nd Respondent were unlawful.

(b) That the ballot boxes then in the custody of the Police and 4th Respondent be produced and the votes therein counted.

(c) That the election was invalid by reason of non-compliance with the provision of the law

(d) That the 1st Respolldent was not duly elected by majority of lawful votes cast at the election.

(e) That the 1st petitioner be duly returned as the candidate with the highest number of votes.”

The Petitioners main complaints were as follows:

“1. That the results in paragraph 5 of the Petition were arrived at after the 3rd Respondent counted only the vote cast in nine (9) out of the eleven wards of the local Government (Constituency).

2. That result from the three (3) polling Units in two wards were not counted because agents of the 2nd Respondent snatched the ballot boxes (containing votes cast) from those Stations or Units and ran away with them. ”

The 1st and 2nd Respondents/Appellants filed a 16 paragraph reply before the Tribunal, wherein they contended as follows:

That the votes in Ibrahim Sabo, Sala find Anguwan Sarkin Koro Polling Units were not Counted because the election in those units were cancelled as a result of electoral malpractice perpetrated by supporters and members of the 2nd Petitioner/Respondent.

b. That no election or voting took place in both Ibrahim Sabo and Sala polling Units of Farin Doki town and no ballot papers were inside the two ballot boxes.

c. That the ballot boxes in Anguwan Sarkin Koro Polling Unit were seized by the Police because of acts of malpractice committed by agents and supporters of the Petitioners/Respondents.

d. That the results of the polls in all the 11 Wards of the Local Government were counted before the 1st Respondent/Appellant was returned as winner. n

e. That the 1st Respondent/Appellant scored 12,828 votes as against 12,481 scored by the 1st Petitioner/Respondent and was therefore duly returned.”

All the parties to the petition accepted the votes scored by each of the candidates in the election, less those from the three polling units which were in contention.

The trial Tribunal in its Judgment found the Respondents/Appellants story more credible and held that election in two of the three polling Units did not take place and the one in Anguwan Sarkin Koro polling unit was inconclusive.

The Tribunal consequently on those finding of fact ordered that fresh election be conducted by the 4th Respondent/Appellant in the three affected polling units, viz Ibrahim Sabo, Sala and Anguwan Sarkin Koro.

Dissatisfied with the decision the Respondents/Appellants appealed to this Court. The 1st and 2nd Appellants filed by leave of the Court a Notice of Appeal on 8/11/2007. Their brief of argument filed on 5/2/2008 was adopted. They urged the Court to set aside the judgment of the trial Tribunal and confirm the return of the 1st Appellant as declared by the 3rd and 4th Appellants. They also adopted their reply brief filed on 8/11/2007.

The 3rd and 4th Appellants filed a joint brief pursuant to the leave granted them. They adopted their joint brief filed on 4/1/2008 and urged the Court to allow the Appeal.

The Respondents on their part filed a joint Respondent brief dated and filed on 5/11/2007. The Respondent joint brief also contains a notice of Preliminary objection. The Respondents adopted their brief of argument and urged the Court to dismiss the Appeal.

The 1st and 2nd Appellants Notice of Appeal contains three grounds of Appeal and they are reproduced thus:

“GROUND 1

The election petition tribunal erred in law when it ordered fresh election in the Ibrahim Sabo, Sala, and Anguwan Koro polling Units of Paikoro Local Government Constituency of Niger State

House of Assembly.

PARTICULARS

a. The Court held:

That since the votes credited to each party in paragraph 5 of the petition have been admitted by the Respondents; those votes subsist and remain valid.

b. The votes credited to each party in this petition shows that the 1st Respondent (1st Appellant) had the majority of lawful votes cast at the election Paikoro Local Government Constituency of Niger State House of Assembly in the election of 14th April, 2007.

c. For the 3rd and 4th respondents to have returned the 1st Respondent as the winner of the 4th April, 2007 election on the basis of the scores in para. 5 of the petition raises the presumption that the election was conducted substantially in accordance with the principle of the act and that the lack of results and or the non election in three (3) disputed units did not affect substantially the result of the election.

d. No register of voters was tendered in respect of the three disputed units to show the number of eligible and willing voters disenfranchised in the said election.

e. There is no admissible evidence before the tribunal in proof that the non election in Ibrahim Sabo and Sala polling units respectively was caused by 1st and 2nd Appellants agents, neither was the non conclusiveness of election in Anguwan Sarkin Koro polling unit also traceable to the agents of 1st and 3rd Appellants.

f. No reason was offered by the tribunal for the conduct of fresh election.

GROUND 2

The election petition tribunal erred in law when it reviewed the return of 1st Respondent as winner of the election into the office in contention by setting aside his return.

PARTICULARS

a. The tribunal set aside the return of the 1st Appellant pending the outcome of fresh election to be conducted in the three (3) polling units.

b. There is the presumption of regularity and correctness of return in favour of a candidate as made by INEC and its officers in an election.

c. 1st Appellant was declared by the 3rd Appellant as the winner in that election having polled 12,828 votes which represented the majority of lawful votes at the election.

d. No evidence was led before the tribunal in proof that the lion election or inconclusiveness of election in the three polling units respectively in the constituency under reference affected the return of the 1st Appellant.

GROUND3

The learned Judges of the Tribunal erred in law when they directed the holding of fresh election in the three polling units subject of dispute without such relief being specifically prayed for by the parties.

PARTICULARS

a. A grant of relief by a court is not a matter of court’s discretion.

b. The petitioners’ relief as contained at pages 3-4 of the record seeks no prayer for the conduct of fresh election into three (3) polling units of the constituency.

C. Petitioners were unable to prove invalidity of the result of the election by reason of non compliance with the provisions of the law.

d. A court or tribunal does not make gratuitous award to parties.”

The 1st and 2nd Appellants formulated two issues for determination in this Appeal from their three grounds of Appeal and they are adumbrated as follows:

“1 Whether the tribunal is right in setting aside and or polling on hold the return of the 1st Appellant pending the outcome of result of fresh election ordered by it.

2 Whether the tribunal is right in ordering a fresh election without specific prayer by parties to that effect.”

I have earlier said in the judgment that the Respondent raised a point of Preliminary objection along with his brief of argument. I will attend to the preliminary objection first before delving into the issues for determination. It is the law that where a preliminary objection is raised in any appeal it must be given priority consideration and resolved or determined at the initial stage before going into the merits of the Appeal. See Nigeria Navy v. Garrick (2006) 4 NWLR Pt. 696 page 64 at 94 – 95; NNBC Plc. V. Imokrukhe (2000) 5 NWLR Pt. 760 page 294; Goji v. Ewete (2000) 15 NWLR Pt. 736 page 273; Onyekwuluje v. Animashaun (1996) 3 NWLR Pt. 439 page 637.

The notice of Preliminary objection was brought pursuant to Order 15 rule 15(1) of the Court of Appeal Rules. The Court of Appeal Rules 2007 which came into force on 1st September 2007, has its Order 15 titled Death of Party to an Appeal. It also has no role 15(1). The said Order 15 has only rules 1, 2 and 3.

The said Order 15 has nothing to do with Notice of Preliminary objection. It is clear that the application is brought under a wrong order. The present mood of the Court is to give prominence to doing substantial justice and to suppress justice based on technicality. See Ezekiel Nnejo & Ors v. Chief Nwankwo Chukwu & Ors. (1988) 6 SCNJ 132 at Dr. Isaac M. Okonjo v. Dr. Mudiaga Odie & Ors. (985) 10 SC. 267 at 270; Aliu Bello & Ors. v. Attorney-General of Oyo State (1986) 12 SC 1 at 111.

It is for this reason that I will proceed to entertain the point of preliminary objection and ignore the fact that the objection is brought under a wrong order. The notice of Preliminary objection raised on behalf of the Respondent reads:

“1. The grounds of appeal, particularly grounds 2 and 3 raise issues of mixed law and fact for which leave of the Court or the Tribunal was required before they can be filed and argued.

2 The grounds of appeal question the exercise of discretion by the lower Tribunal, and are therefore grounds of mixed law and fact for which leave is required.”

On the first point of preliminary objection learned Counsel for the Respondent argued that even though the Tribunal was said to have erred in law, the question whether election took place in three polling units or not, or the review of the return of the 1st Respondent as winner of the election or the issue whether the Respondents petition contained particular prayer or not, are all issues of mixed law and fact. It was submitted that Section 242 of the 1999 Constitution makes leave mandatory in the circumstances.

In their response to the first point of Preliminary objection, the 1st and 2nd Appellants in their joint Reply brief to the Respondent Brief of Argument submitted that Grounds of Appeal need to embrace their particulars to make them complete. He referred the Court to the cases of:

Oriodu v. Duke No.2 (2005) 10 NWLR Pt. 932 page 105 at 143; Ibrahim v. Mohammed (2003) FWLR Pt. 156 page 902 at 919.

Learned Counsel contended that to determine whether grounds 2 and 3 of the notice of Appeal are grounds of mixed law, and fact, those grounds must be read together with their particulars. He referred the Court to the cases of Uka Chukwu & sons Ltd. v. Okeke (2001) FWLR Pt. 71, page 1791 at 1802- 1803; P.N. Udoh Trading Co. Ltd. v. B.S. Abere (2001) FWLR Pt. 57 page 900 at 933; Abidoye v. Alawode (2001) FWLR Pt. 443 page 322 at 331; Bamgboye v. University of Ilorin (2001) FWLR Pt.32 page 12 at 43 – 44.

Learned Counsel submitted that grounds 2 and 3 of Appeal read together with their particulars reveals that they are grounds of law and thus competent.

The Respondent/Applicant to the notice of Preliminary objection has referred this Court to Section 242 of the 1999 Constitution which he said makes leave mandatory in the circumstances.

-The provisions of the said Section of the Constitution are hereby adumbrated as follows:

“242.-(1) Subject to the provisions of section 241 of this Constitution, an appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal with the leave of the Federal High Court or that High Court or the Court of Appeal.

(2) The Court of Appeal may dispose of any application for leave to appeal from any decision of the Federal High Court or a High Court in respect of any civil or criminal proceedings in which an appeal has been brought to the Federal High Court or a High Court from any other court after consideration of the record of proceedings, if the Court of Appeal is of the opinion that the interests of justice do not require an oral hearing of the application.”

The constitutional provision reproduced above refers to appeal to the Court of Appeal from either the Federal High Court or a High Court; it has nothing to do with the Election Petition Tribunal. The said Section 242 of the Constitution of the Federal Republic of Nigeria 1999 did not state that leave is mandatory when there is appeal to the Court of Appeal on grounds of mixed law and fact. In P. N. Udoh Trading Co. Ltd. v. Abere (supra) at Page 933″ the Supreme Court held:

“It is always difficult to distinguish a ground of law from a ground of fact but what is required is to examine thoroughly the grounds of Appeal in the case in point to see whether the grounds revealed a misunderstanding by the lower tribunal of the law or misapplication of law to the facts already admitted in which case it would be question of law, or one that would require questioning the evaluation of facts by the lower tribunal before the application of the law, in which case it would amount to question of mixed law and fact The issue of pure fact is easier to determine.”

In determining whether a Ground of Appeal is of fact, the Court is to examine critically the Ground of Appeal in the particular case to see whether the ground discloses a misunderstanding by the trial Court or tribunal of the law or a misapplication of law to the fact already proved or admitted by the parties, in that case it will be a question of law, but where the appeal is one that questions the evaluation of facts by the trial Court or Tribunal before the application of law, in such a circumstance it would amount to mixed law and fact. See Uka Chukwu & Sons Ltd. v. Okeke (supra) at 1802 -1803.

On the second point of Preliminary objection, learned Counsel for the Respondent submitted that the Respondent’s case at the Tribunal was for the votes in the three polling units to be counted. He argued that the Appellants’ reply was that elections in those units did not take place. Learned Counsel submitted that the Tribunal in exercise of its discretion believed the story of the Appellants and disbelieved the Respondents. Learned Counsel referred the Court to the case of Trust Fuel Ltd. v. NNPC & Anor (2007) 4 WRN 121 where it has been held that where an exercise of the lower Court’s order is being questioned, then that ground is a “mixture of law and fact which required mandatory leave before that matter can be appealed against competently. Section 242(1) of the 1999 Constitution of the Federal Republic of Nigeria was cited in support of the decision.

I have searched carefully and critically the provisions of the Constitution particularly Section 285 which establishes and confers jurisdiction on the Election Tribunals and the Sixth Schedule which stipulates the composition of membership of both the National Assembly Election Tribunal and the Governorship and Legislative Houses Election Tribunal. I have also perused the provisions of the Electoral Act 2006 particularly Section 151 which provides that the rules of procedure to be adopted for election petitions and appeals arising therefrom shall be those set out in the First Schedule to the Act.

The First Schedules in paragraph 1 the interpretation part defines “Civil Procedure Rules” to mean the civil procedure Rules of the Federal High Court or the laws being in force, while paragraph 50 of the First Schedule titled ‘Application of rules of Court’ states thus:

“50. Subject to the express provisions of this Act the practice and procedure of the Tribunal or the Court in relation to all election petition shall be as nearly as possible, similar to the practice and procedure of the Federal High Court in the exercise of its civil jurisdiction, and the civil procedure Rules shall apply with such modifications as may be necessary to render them applicable having regard to the provisions of this Act, as if the petitioner and the respondent were respectively the plaintiff and the defendant in an ordinary civil action.”

Paragraph 51 titled ‘Practice and Procedure of Court of Appeal and Supreme Court’ states as follows:

“51. Subject to the provisions of the Act, an appeal to the Court of Appeal or to the Supreme Court shall be determined in accordance with the practice and procedure relating to appeals in the Court of Appeal or the Supreme court, as the case may be, regard being had to the need for urgency in electoral matters.”

I am unable to see where it has been stated that an Appellant in the Court of Appeal on Election Matters would need leave to appeal on any aspect of the appeal particularly where the ground of appeal is on mixed law and fact.

I would like to point out that Election Matters are said to be of a special kind, sui generis and that time is of essence in their disposal. I am of the opinion that a procedure either in the Rules of Court or in a Statute which requires that Appeals from the Election Petition Tribunal to the Court of Appeal or from the Court of Appeal to the Supreme Court in the case of Presidential Election which requires leave to appeal to either the Court of Appeal or the Supreme Court before it can be competent will definitely result in delay in disposal of such cases, which is what an election petition by its tenor seeks to prevent or avoid.

This opinion of mine is supported by the provision of Section 246(1)(b) of the Constitution of the Federal Republic of Nigeria 1999. It is adumbrated as follows:

“246.-(1) An appeal to the Court of Appeal shall lie as of right from-

(a) ….

(b) decisions of the National Assembly Election Tribunals and Governorship and Legislative Houses Election Tribunals on any question as to whether-

i. Any person has been validly elected as a member of the National Assembly or of a House of Assembly o/a State under this Constitution,

ii. Any person has been validly elected to the office of Governor or Deputy Governor, or

iii. The term of office of any person has ceased or the seat of any such person has become vacant.”(underline mine)

It is trite that it is an act of violence to read into an enactment what it does not contain. See

Salami v. Chairman L.E.D.B. (1985) 5 NWLR Pt. 123 page 539 at 555; Osondu v. FRN (2000) 12 NWLR Pt. 682 page 483 at 500; UTB (Nig.) Ltd. v. Akpabio (2000) 8 NWLR Pt. 670 page 570 at 580 Kyani Thompson Organisation v. NIPSS (2004) 17 NWLR Pt. 901 page 44 at 61.

Since by virtue of the provisions of Section 246(1)(b) an Appeal to the Court of Appeal from the decision of the Governorship and Legislative Houses Election Tribunal lie as of right, it follows therefore that an Appellant appealing from the decision of an Election Petition Tribunal on what may seem in the ordinary civil action to be a ground of mixed fact and law and thus requiring leave of the trial Court or the Appellate Court, the constitutional provision has made the requirement of such leave unnecessary where it is an appeal from the decision of the Election Petition Tribunal. It follows also that the distinction on grounds of Appeal being on law alone or ground of mixed law and fact does not exist in Appeals from the decisions of the Election Petition Tribunals.

It is the law that no provision of any enactment is capable of expanding or subtracting from the elaborate provisions of the Constitution on any subject matter dealt with by the Constitution, this is so because the Constitution is the ground norm. In Attorney-General Abia State v. Attorney-General of the Federation (2002) 6 NWLR Pt. 763 page 264 at 369, Kutigi JSC put it succinctly as follows:

“Where the provision in the Act is within the legislative powers of the National Assembly but the Constitution is found to have already made the same or similar provision, then the new provision will he regarded as invalid for duplication and or inconsistency and therefore inoperative The same fate will befall any provision of the Act which seeks to enlarge, curtail or alter any existing provision of the Constitution. The provision or provisions will be treated as unconstitutional and therefore null and void.”

In the circumstances the two points of Preliminary objection raised by the Respondents in this Appeal are incompetent and they are dismissed.

Now that the Preliminary objection has been disposed of, attention will be directed at the two issues formulated for determination in this Appeal.

ISSUE NO. 1

“Whether the Tribunal is right in setting aside or putting on hold the return of the 1st Appellant pending the outcome of result of fresh election ordered by it.”

It was submitted on behalf of the 1st and 2nd Appellant that from the pleadings before the Court and evidence adduced the dispute between the parties relates to three (3) polling units in Farin Doki and Adunu Wards respectively. It was contended that while the Petitioners/Respondents wanted the boxes in those polling units to be produced so that the votes allegedly contained in them can be counted, the Appellants objected to the production of the said boxes on the ground that the result of those polling units were cancelled as a result of malpractice committed by agents and supporters of the Petitioners/Respondents.

Learned Counsel for the 1st and 2nd Appellants maintained that it is clear from the Tribunal’s finding that the petitioner could not establish that the agents of the 2nd Respondent/Appellant were responsible for the snatching and or disruption of the ejection in the three units in Constituency. It is the Tribunals finding also that no election took place in two (2) of the three units in contention while election was inconclusive in the third Unit.

The Tribunal in its Judgment on page 208 of the Record of Appeal, it was submitted validated the scores of the respective parties.

Learned Counsel maintained that the votes credited to the 1st Appellant is 12,828 while that of the petitioner/1st Respondent is 12,481 votes thus putting a lie to the contention in prayer (d) of the petition that the 1st Respondent! Appellant was not elected by a majority of lawful votes and the same breath depriving the petitioners relief in prayer (e) that they be returned. Learned Counsel referred the Court to the case of Yusuf v. Obasanjo (2006) All FWLR pt. 294 page 387 at 468.

He submitted that where allegation of non compliance with the provisions of the Electoral Act as regards the conduct of an election is not established and or is not shown to have substantially affected the election, such election remain valid.

Learned Counsel argued that in paragraph 5 of the petition, the Petitioners/Respondents had given the scores of the respective parties in the election but failed in their duty as required by law to lead admissible evidence before the tribunal in proof that the non election in the 3 respective polling units subject of their complaint affected substantially the result of this election as declared by the 3rd and 4th Respondents/Appellants which they had graciously provided in paragraph 5 of the petition on page 2 of the record of Appeal as 12,828 for the 1st Appellant as against 12,481 for the 1st Respondent Learned Counsel contended that in spite of its well placed finding and its refusal to grant prayers (a),(b),(c),(d) and (e), the Tribunal proceeded without offering any reason to set aside the return of the 1st Respondent/1st Appellant and ordered the conduct of fresh election in the three (3) polling units. There is also the absence of evidence to show that the non ejection in those polling units was substantial and had substantially affected the result of that election.

He argued that since the Tribunal had not provided reasons why it was setting aside the return of the 1st Appellant and ordering a fresh election, the Appellants are left with the only option of drawing all manner of presumption to see whether the Tribunal was right in its decision. Learned Counsel for the 1st and 2nd Appellant referred the Court to the provisions of Section 146(1) of the Electoral Act 2006. He submitted that what constitutes a substantial non compliance and what substantially affects the result of an election is not defined by the Electoral 2006, he argued that this will therefore means that they can only assume them as issues of fact from the totality of direct and inferential evidence and from the circumstances of any particular case including the state of pleadings. He referred the Court to the case of Ray v. Maduabu (2006) All FWLR Pt. 310 page 310 page 1637 at 1666.

Learned Counsel submitted that for the non compliance to be said to have affected “the result” means titling the result in favour of the petitioner. He cited the case of Awolowo v. Shagari (2001) FWLR Pt. 73 page 53 at 116. He contended that it would appear that the evidence available to the Courts based on the state of pleadings have always influenced the Courts in their various decisions in respect of their interpretation of provisions of Statutes similarly worded as Section 246 of the Electoral Act 2006.

Learned Counsel referred the Court to the cases of Ezike v. Ezeugwu (1992) 4 NWLR Pt. 236 page 462 at 474; Oputeh v. Ishida (1993) 3 NWLR Pt. 279 page 34 at 52; Ige v. Olunloyo 3 EPR page 395 at 398; Adudu v. Okafor (2004) 12 WRN page 102 at 118; C.B. Adeyemi v. M.E. Ogundade (1965) WNLR 7; Morgan v. Simpson (1974) Q.B. 344; Yusuf v. Obasanjo (2006) All FWLLR Pt. 294 page 387; Buhari v. Obasanjo (2005) All FWLR Pt. 273 page 1 at 145; Sorunke v. Odebunmi (1990) 5 FSC 175.

Learned Counsel for the 1st and 2nd Appellant argued that to determine the substantiality of the non compliance in the instant appeal, there must have been established before the tribunal the number of registered voters in these units where election did not take place. This is necessary because it is only then that the Tribunal will be placed in a position to consider whether if the number of the people in the register of voters had been allowed to vote, the result would have been capable of up setting the return of the 1st Appellant.

He contended that there is no provision in the Electoral Act 2006 or the guideline subject of the election in contention as to the minimum number of people the register of voters in a polling unit should contain. Learned Counsel argued that since there is no minimum number of people a register of voters in a polling unit will contain. It follows that the petitioners have a binding duty to tender the Register of voters in these three units in controversy to help in determining whether the votes of those allegedly disenfranchised as a result of the non election was capable of substantially affecting the result of the election.

Learned Counsel submitted that from the finding and conclusion of the tribunal there was no Register of voters tendered and the implication is that to set aside the return of the 1st Appellant and order a fresh election in those three (3) units on the premise, (if that was the reasoning), that the result of the fresh ejection will upset the return- of the 1st Appellant, amounted to assumption and or speculation.

Judgments of Court learned Counsel maintained must be based on legal evidence and not on assumption or speculation, He referred the Court to the case of Obulor v. Oboro (2001) FWLR Pt. 47 page 1004 at 1010.

Learned Counsel for the 1st and 2nd Appellants referred the Court to the provisions of Section 27(4) of the Electoral Act 2006 which provides that the Electoral Commission if satisfied that the result of an election will not be affected by voting in the area or areas, direct that the return of a candidate who has the majority of votes scored be made. He maintained that the power can be exercised by a returning officer by virtue of Section 160 of the Electoral Act 2006. He further said that Section 4(8) of the INEC Guidelines and Regulations 2007 in respect of the election require a win by simple majority.

Learned Counsel contended that, for the returning officer of Paikoro Local Government Constituency to have proceeded to “return” the 1st Appellant as the winner of the 14th April, 2007 election to the office in contention irrespective of the outcome of the results of the respective 3 polling units, raises the presumption that the non voting in those units will not affect the result and return of the 1st Appellant.

Learned Counsel submitted that where at the end of an election a winner is issued with a certificate of return as duly elected by the electoral body the presumption of validity, conclusiveness and regularity of the said election can be drawn in favour of the winner. He referred the Court to the cases of: Ogu v. Ekweremadu (2005) All FWLSR Pt. 260 page 1 at 23 – 24; Obun v. Ebu (2006) All FWLSR Pt. 327 page 419 at 442 -441; Nnaji v. Agbo (2006) All FWLR Pt. 305 page 736 at 757 – 759; INEC v. Ray (2005) All FWLR Pt. 265 page 1047 at 1077.

He argued that by parity of reasoning since the result of polls in more than 100 (see page 126 of the record of Appeal lines 4 – 8) polling units in the Constituency was not vitiated by the tribunal or found wanting, the burden was on the petitioner to prove that the non voting in these 3 polling units in contention substantially affected the result and return of the 1st appellant. Learned Counsel maintained that the petitioners/respondents have failed to rebut this presumption.

He submitted that the tribunal erred when it set aside the return of the 1st Appellant and ordered fresh election in the three (3) polling units, as there was no legal basis for such an order.

The arguments of the 3rd and 4th Appellants as contained in their joint brief are essentially the same with those of the Island 2nd Appellants which I have recounted in this judgment.

The 3rd and 4th Appellants submitted further that the Petitioners/Respondents have failed to prove that the non-compliance has affected the result of the election substantially. The Court was referred to the cases of: Muhammadu Buhari & Anor. V. Chief Olusegun A. Obasanjo & 268 ors. (2005)2 NWLR Pt. 910 page 241 at 417 – 418; Awolowo v. Shagari (1979) 6 – 9 SC 73; Alhaji Ibrahim Waziri v. Alhaji Shehu Sliagari (1983) 9 SC 59 at 66.

It was contended on behalf of the 3rd and 4th Appellants that since the Petitioners have failed to prove that the non-compliance did affect or might have affected the majority of the voters or in other words the result of the election, it was submitted that the Tribunal erred when it ordered fresh elections in the 3 polling units.

It was argued on behalf of the Respondents that the judgment of the trial Tribunal on pages 194 – 209 of the Record of Appeal was based on findings of fact. The Appellants themselves contended that elections in the three affected polling units, (Ibrahim Sabo, Sala and Anguwan Sarkin Koro) were either cancelled or voting did not take place in the units at all. The Court was referred to paragraphs 2, 5,9,10 and 13 of the Joint Reply by the 1st and 2nd Respondents contained on pages 43-46 of the Record of Appeal. It was argued on behalf of the 1st and 2nd Respondents that the 1st Appellant himself at page 48 paragraphs 7 and 8 of the Record of Appeal stated emphatically that as a result of malpractices the INEC Electoral Officer cancelled the election results of Ibrahim Sabo, Sala and Anguwan Sarkin Koro polling units.

Learned Counsel for the Respondents submitted that the law is settled that there is a presumption of correctness in favour of a decision of a trial Court on issues of fact. An appellate Court ought therefore, not to substitute its own views of fact for those of the trial Court, which heard evidence and watched the demeanor of witnesses. He referred the Court to the case of Dada v. Falaye (2007) 17 WRN 118. Learned Counsel contended that it is only when the Court of Appeal is of the view that the trial Court did not properly make use of its opportunity of seeing and hearing the witnesses before it, that it can interfere and substitute. He cited the ease of Petgas Resources Ltd. v. Mbanefo (2007) 35. WRN 34.

Learned Counsel for the Respondent argued that since there were two conflicting versions of the events at the three polling units the trial Tribunal was only involved in an exercise of discretion when it chose to believe one side, and disbelieve the other. He contended that to that extent, the judgment it delivered on 4/10/07 was within the province of the Tribunal’s discretionary powers, exercised judicially, bona fide, uninfluenced by irrelevant consideration and not arbitrarily or – illegally. Learned Counsel urged this Court not to interfere with that judgment.

He referred the Court to the case of: Nigeria-American Bank Ltd. v. Samuel (2007) 34 WRN 135; Jimoh v. C.O.P. (2006) 22 WRN 77; Chedi v. A.G. Federation (2006) 48 WRN 149; Ogboru v. Ibori (2007) 34 WRN 52.

He contended that a trial Judge’s greatest weapon is in doing justice between the parties and that he is the best Judge of his own domain. He cited the case of Petgas Resources Ltd. v. Mbanefo (supra).

Learned Counsel submitted that the production of a voters register is not a sine qua non in proving whether election took place or did not take place in a particular polling unit. He referred the Court to the case of Adudu v. Okafor supra).

He argued that the difference between the scores of the 1st Appellant and the 1st Respondent is only 346 votes and that the claim in paragraph 11 of the petition.

The 1st Respondent stated that the three polling units where the result were not counted were is stronghold, was not denied by the Respondents. Learned Counsel argued that the difference of 347 votes only from three polling units is indeed narrow. He maintained that the election was so strongly contested that voters in three polling units should be given the opportunity to exercise their democratic right, instead of being disenfranchised.

He submitted that where the allegation is one of malpractice, or non compliance with the electoral law, the proper order is to direct that fresh elections be here in the affected units. Learned Counsel urged the Court to affirm the decision of the trial Tribunal on this score.

The Electoral Act 2006 stipulates the grounds upon which an election may be questioned in Section 145(1) and it is hereby adumbrated as follows:

“145.-(1) An election may be questioned on any of the following grounds:

a. That a person whose election is questioned was, at the time of the election, not qualified to contest the election;

b. That the election was invalid by reason of corrupt practices or non-compliance with the provisions of this Act;

c. That the respondent was not duly elected by majority of lawful votes cast at the election; or

d. That the petitioner or its candidate was validly nominated but was unlawfully excluded from the election.”

In the instant case, from the pleadings of the Petitioner/Respondent the return of the Respondent/Appellant was questioned on the grounds:

1. That the election was invalid by reason of corrupt practices or non-compliance with the provisions of the Act;
2. That the respondent was not duly elected by majority of lawful votes cast at the election.

The gist of the complaint of the Petitioner/Respondent are to be found in paragraphs 5, 6, 7, 8, 9, 10, 11 and 12 of the petition and the reliefs claimed are adumbrated as follows:

“5. After the election, the third respondent declared, the following results for the candidates that contested the election:

S/NO NAME OF CANDIDATE PARTY RESULT

1. Musa Salihu Akpa ANPP 12,828
2. John Ibrahim Maikarfi PDP 12,481
3. John Wdamadu AC 4,860
4. Your Petitioner avers that there are 11 (eleven) wards in the Paikoro Local Government constituency.
5. The results in paragraph 5 above were arrived at after the third respondent counted only the votes cast in 9 (nine), out of the 11 wards.

The Petitioner pleads, and shall rely on the Summary Results (issued by INEC) for Paikoro Local Government during trial.

a. The results from three polling stations in two wards were not counted, because agents of the second respondent snatched the ballot boxes, (containing votes cast), from those stations or units, and ran away with them.

9. The three polling units are:

i. Ibrahim Sabo unit in Farin Doki ward;

ii. Sala unit in Farin Doki ward; and

iii. Anguwan Sarki Koro unit Adunu ward.

The votes or ballot papers in the boxes in the three units were not counted by the third respondent.

10. Your Petitioner states that the three ballot boxes were later recovered by the security agents, and two of them are now in the INEC office in Paiko town, while the remaining one is with the Police also in Paiko.

Your Petitioner avers further that the three polling writs affected by the acts of the supporters of the third respondent are the strong-holds of the second petitioner, the party under which he contested the election.

12. Retrieving and counting the three ballot boxes of the affected units will definitely stand the petitioner out from the crowd.

WHEREOF, the petitioner prays that it may he determined:

a) That the snatching of three boxes by the agents of the second respondent is unlawful.

b) That the ballot boxes now in the custody of the Police and the fourth respondent be produced, and the votes therein counted.

c) That the election was invalid by reason of non-compliance with the provisions of the law.

d) That the first respondent was not duly elected by majority of lawful votes cast at the election

e) That the first petitioner be duly returned as the candidate with the highest number of valid votes.”

The trial Tribunal after critically examining the evidence placed before it and listening to the address of Counsel made the following finding of fact on the three polling units in controversy:

“a. In paragraphs 5,7, and 8 of his statement on oath, the 1st petitioner stated that votes cast in the three polling units in controversy between the parties were not counted because agents of the 2nd respondent snatched away ballot boxes from the polling units which happen to be the stronghold of the petitioners. This piece of evidence by the 1st petitioner was shown to be without foundation where he said under cross examination that he did not vote and was not present physically in any of the three polling units in controversy between the parties.” (pg 204 of the record).

The tribunal thus concluded on the evidence adduced before it in respect of the complaint of the petitioners and the respondents defence as follows:

‘Since the petitioners failed to tender a voters register as evidence that people voted or colt any witness who voted, we accept the consistent evidence of RWI RW2 and RW3 which was never shaken under cross examination that election did not take place on 14th April, 2007 at Ibrahim Sabo polling units.’ Pg. 205-206 lines 21 – 1.

b. SALA POLLING UNIT. Although under cross examination P.W.3 said he marked the register of voters who voted before the election was disrupted and wrote a report of happenings at the polling unit, both the voter register and report were never tendered before us and no reason was given for this failure. Again no person who voted in the election at the polling unit was called as a witness. There is therefore no evidence before us that election took place at Sala polling unit on 14th April, 2007″ Pg 206 – 207 of the record.

c. Anguwan Sarkin Koro Polling Unit ………. from the evidence led by the parties we are satisfied that the ballot box was not snatched by the agents or supporters of any of the parties to this petition. This is the only ways we can explain the failure of both parties and the police in particular to furnish the tribunal with the details of the arrest of the alleged ballot box snatcher, such as his name, the offence he allegedly committed and whether or not he is currently facing trial.”

(Pg. 208 lines 3-8).

The petitioners before the tribunal sought for 4 reliefs viz:

a. That the snatching of the three ballot boxes by the agents of the second respondent is unlawful.

b. That the ballot boxes now in the custody of the police and the fourth respondent be produced and the votes therein counted.

c. That the election was invalid by reason of non compliance with the provisions of the law.

d. That the respondent was not duly elected by majority of lawful votes cast at the election.

e. That the first respondent be duly returned as the candidate with the highest number of valid votes. ”

The trial Tribunal concluded its finding in its words on page 208 of the Record of Appeal as follows:

“1. That since the votes credited to each party in paragraph 5 of the petition have been admitted by the Respondents, those votes subsist and remained valid.”

The sum total of the finding of the trial Tribunal is that the Petitioners/Respondents were unable to establish their allegation of electoral malpractices against the 1st Respondent/Appellant.

Since no malpractice has been established it follows therefore that there is a substantial compliance with the Electoral Act 2006 and that the election was free and fair. However despite its finding of fact on the red spots complained of, the trial Tribunal without giving any reasons for its decision made the following orders contained on page 209 of the Record of Appeal:

“2. That INEC the 4th Respondent in this petition should conduct fresh elections in Ibrahim Sabo, Sala and Anguwan Sarkin Kara polling units of Paikoro Local Government Constituency where election either did not take place or was inconclusive between the 1st petitioner and the 1st Respondent and the votes scored by the candidates should be added to their votes pleaded in paragraph 5 of the petition.

13. Under Section 69(4) Electoral Act, 2006, we hereby review the return of the 1st Respondent by the 3MRespondent as winner of the election into Paikoro Local Government Constituency of Niger State House of Assembly by setting aside that return, pending the outcome of the fresh elections to be conducted in the three polling units of Ibrahim Sabo, Sala and Anguwan Sorkin Koro.”

The trial Tribunal said it was reviewing the return of the 1st Respondent/Appellant under Section 69(4) of the Electoral Act 2006.

The provisions of the said Section are reproduced for ease of reference;

“69. The decision of the Returning Officer on any question arising from or relating to;

a. unmarked ballot paper,

b. rejected ballot paper, and

c. declaration scores of candidates and the return of a candidate, shall be final subjects to review by a tribunal or court in an election petition proceedings under this Act. ”

I have critically perused and examined the provisions of Section 69 of the Electoral Act. I am unable to see Section 69(4). I am satisfied that there is no provision in the Act as Section 69(4). I think it is a typographical error. There is however a Section 69(c) which alluded to a power of review by a Tribunal or Court in an election petition proceedings under the Act.There is nothing on record to show that the non inclusion of result in three out of the 100 polling units in the Constituency as a result of violent disruption amounted to substantial non-compliance. As I have said earlier in the Judgment the finding of fact of the trial Tribunal indicate that the election in question was conducted in substantial compliance with the provisions of the Electoral Act.

The question to ask is can the election of the 1st Appellant be reviewed by way of setting aside his return pending the outcome of the fresh election to be Conducted in the three polling units, when no allegation of malpractice or irregularity has been established against the Appellant? To answer this question, recourse must be had to the provisions of Section 146(1) of the Electoral Act, 2006, which recognize the fact that in the conduct of an election, there may be some infractions of the Act, but despite that fact, the election will not be invalidated if such infraction does not substantially affect the result of the election.

For ease of reference the said Section 146(1) is adumbrated as follows:

“An election shall not be liable to be invalidated by reason of noncompliance with the provisions of this Act if it appears to the Electoral Tribunal or Court that the election was conducted substantially in accordance with the principles of this Act and that the non-compliance did not affect substantially the result of the election.”

I am of the opinion that from the clear provisions of the Electoral Act quoted above, it is clear that even if there is any non compliance or infractions of the Act, as allegedly claimed by the Petitioner/Respondents, but which the trial Tribunal has debunked, such will not invalidate the election of the 1st Respondent/Appellant, where it does not substantially affect the result of the election. See Buhari v. Obasanjo (2005) 13 NWLR Pt. 941 page 1 at 182.

In Adun v. Osunde (2003) 16 NWLR Pt. 847 page 634 at 670, the Court of Appeal held that even if votes are wrongly computed or miscalculated, they are not substantial enough to lead to the voidance of an election result if they are not inflated. See Na-bature v. Mahuta (1992) 9 NWLR Pi. 263 page 85.

In the light of the foregoing, I am of the opinion that the order of the trial Tribunal which seeks to review the return of the 1st Respondent/Appellant by the 3rd Respondent/Appellant as winner of the election into Paikoro Local Government Constituency of Nigeria State House of Assembly by setting aside that return pending the outcome of fresh election to be conducted in the three polling units of Ibrahim Sabo, Sala and Anguwan Koro is perverse.

This issue is resolved in favour of the Appellants.

ISSUE NO.2

“Whether the Tribunal is right in ordering a fresh election without specific prayer by parties to that effect.”

Learned Counsel for the Appellants had argued that the Tribunal made an order for fresh election to be conducted in spite of its findings and conclusion which showed that there existed no evidence in support of any of the prayers sought. He contended that the order granted by the Tribunal was against the succinct prayers and or relief sought or contemplated by all the parties to the petition subject to appeal. He referred the Court to the case of Awoniyi v. Amore (2000) 6 SCNJ 141 at 155.

Learned Counsel submitted that there is no such provision in the Electoral Act 2006 as Section 69(4) and that it is Section 69(c) of the Electoral Act 2006 that empowers the Tribunal to review the return made by a returning officer in an election. He argued that the exercise of such power must be by a rule of the thumb but must be based on evidence adduced which will show that there had been a substantial flaw in the election which had substantially affected the result of the election. Learned Counsel maintained that a Court or Tribunal must confine itself to relief claimed in the pleading. He referred the Court to the cases of: Abiodun Adelaja v. Yusuf Alade & ors (1999) 4-5 SCNJ 225 Awoniyi v. Amore (supra),

He submitted that the position of the law is that a Court cannot award a relief not claimed. He cited the cases of: Adeye v. Adesanya (2001) 2 SCNJ 79 at 87; Ajayi v. Ashipa (2006) All FWLR Pt. 306 page 912 at 926; Chianson v. Igba (2004) All FWLR Pt.224 PAGE 1997 at 2028.

Learned Counsel for the 1st and 2nd Appellants urged the Court to resolve issues 1 and 2 in favour of the Appellants and allow the appeal, set aside the orders made by the Tribunal and restore the election and return of the 1st Appellant as member representing Paikoro Local Government Constituency in the Niger State House of Assembly in the election held on 14th April, 2007.

The 1st and 4th Appellants in the argument made on their behalf by their Counsel maintained that it is settled principle of law that a Court of law has no power to grant a relief to a claimant who did not claim or what he did not ask for.

He referred the Court to the cases of: Anyaegbunam Ndika & 6 ors v. M.D. Chiejina (2003) 1 NWLR Pt. 802 page 451 at 482; – Kalia v. Kalio (1975) 2 SC.15 at 18-21; Ekpeyang v. Nyong (1975) 2 SC 71 at 80-81.

He contended that it is settled principle of law that an appellate Court will not disturb the findings of a trial Court unless the finding is vitiated by inadmissible evidence, or is perverse or not supported by evidence.

It was argued that in the instant case 1st and 2nd Respondents did not tender register of votes to enable the Court ascertain the number of voters that were disenfranchised that would have warranted ordering the 4th Respondent to conduct fresh election in the 3 polling units. He cited the case of Muhammadu Buhari & 1 or. v. Obasanjo & ors (supra) at page 195.

Learned Counsel for the 3rd and 4th Appellants contended that since the -findings of the Tribunal was not supported by evidence or perverse. He urged the Court to set aside the decision of the Tribunal, allow the appeal and declare the 1st Appellant as the member of the Niger State House of Assembly representing Paikoro Constituency having scored the majority of lawful votes cast on 14/4/2007.

Learned Counsel for the 3rd and 4th Appellants submitted that there is nothing like Section 69(4) of the Electoral Act 2006 but Section 69(c) of the Electoral Act 2006, which empowers the Tribunal to review the return made by the 3rd Respondent, if only it is supported by evidence.

He argued that the review was not supported by evidence tending to show that the election was not substantially conducted in accordance with the Electoral Act 2006 nor the result of the election was substantially affected. Learned Counsel urged the Court to allow the appeal and uphold the election of the 1st Appellant as the winner of the election into the Niger State House of Assembly representing Paikoro Constituency.

It has been argued on this second issue on behalf of the Respondents that Election Petitions are “sui generis”, they are peculiar in nature and in a class of their own. He contended that though it is true that, generally, reliefs are not granted “ex-gratia”, what the law requires in an election petition, is that there must – be a prayer in a petition, not necessarily any particular type of prayer. He referred the Court to the case of Oputeh v. Ishida (1993) 3 NWLR Pt. 279 page 54.

Learned Counsel for the Respondents argued that the Tribunal has satisfied the requirement of Section 69 and paragraph 27 of the 1st Schedule to the Electoral Act 2006 in this case. He cited the case of Tanko v. Caleb (1999) 8 NWLR Pt. 615 page 606 where it was held that even though a Court or Tribunal was not a Father Christmas, it had to nullify the election, though it was not sought for, because everything point towards the fact that there was substantial noncompliance with the provisions of the law.

Learned Counsel urged the Court to hold that, in election petitions, Courts or Tribunals can make consequential order irrespective of any particular type of prayers contained in the petitions, provided there is a prayer at all.

It is trite law that a Court has no power to grant to a party a relief, which he has not sought or which is more than he has claimed.

Gomwalk v. Okwosa (1999) 1 NWLR Pt. 586 page 225; Bello v. Aruwa (1999) 8 NWLR Pt. 615 page 454; Tanko v. Caleb (1999) 8 NWLR Pt. 616 page 606; WR & PC Ltd. v. Onwo (1999) 12 NWLR Pt. 630 page 312; Awoniyi v. Amore (2000) 6 SC (Pt.1) page 103; Afrotech Technical Services (Nig.) Ltd. v. MIA & Sons. Ltd. (2000) 12 SC (Pt.11) page 1; Simton v. Pamal (2001) 13 WRN 55.

In the instant Appeal the Petitioner/Respondent in paragraph 12 of his petition at page 3 of the Record of Appeal prayed as follows:

“WHEREOF, the petitioner prays that it may be determined-

That the snatching of three boxes by the agents of the second respondent is unlawful.

b. That the ballot boxes now in the custody of the police and the fourth respondents be produced, and the votes therein counted.

c. That the election was invalid by reason of non-compliance with the provision of the law.

d. That the first respondent was not duly elected by majority of lawful votes cast at the election.

e. That the first petitioner be duly returned as the candidate with the highest number of valid votes.”

The 1st and 2nd Respondents/Appellants in paragraph 16 of their joint reply on page 45 of the Record of Appeal prayed thus:

“IN CONSEQUENCE WHEREOF the 1stand 2nd Respondents pray that:

1. That the declaration of Alhaji Ahmed Salihu Akpa as the winner of the election into Niger State House of Assembly, Paikoro Constituency was valid and subsisting same having scored the highest number of lawful votes cast i.e. 12828 votes.
2. The ballot papers in respect of Ibrahim Sabo, Sala and Anguwan Sarkin Kayo, Adunu polling Units cancelled by the Electoral Officer for electoral malpractice remained cancelled.
3. The election of Alhaji Ahmed Salihu Akpa as the honourable member Niger State House of Assembly, Paikoro Constituency on 14th April, 2007 and declared as such on 15th April, 2007 was valid and subsisting same being in compliance with the electoral Act, 2006.
4. The Alhaji Ahmed Salihu Akpa was duly elected by majority of lawful votes cast.
5. The 1st Petitioner cannot be returned as duly elected because he did not score the majority of lawful votes cast but rather 12,481 votes as against 12,828 votes of Alhaji Ahmed Salihu Akpa.
6. That the Petition be dismissed with substantial cost in favour of the Respondent.”

The 3rd and 4th Respondents/Appellants in paragraph 9 on page 88 of the Record of Appeal prayed as follows:

“9. WHEREOF the 3rd and 4th Respondents state that the petition is frivolous devoid of merit and pray that it he dismissed with substantial costs.”

I have earlier said in this Judgment that the order made by the trial Tribunal is against its finding of fact and it is therefore in my opinion perverse. A Court is not a charitable institution and a party must prove his claim to be entitled to the Judgment of the Court. See Ekpenyon v. Nyong (1975) 2 SC 1; Dr. Sola Saraki v. N.A.B. Kotoye (1990) 6 SCNJ 1 at 51, 52.

The finding of the Tribunal in respect of each of the polling units in controversy are as follows:

“1. Ibrahim Saba Polling Unit

The Tribunal at page 205-206 of tile record of Appeal said on the evidence produced before it thus:

‘Since the petitioners failed to tender a voters register as evidence that people voted or called any witness who voted, we accept the consistent evidence of RW1, RW2 and RW3 which was never shaken under cross-examination that election did not take place on 14th April, 2007 at Ibrahim Sabo Polling Unit.

2. Sala Polling Unit

On pages 206-207 of ,the Record of Appeal the Tribunal in its Judgment said of the Sala Polling Unit thus:

‘Although under cross examination PW3 said he marked the register of voters who voted before the election was disrupted and wrote a report of happenings at the polling unit, both the voter register and report were never tendered before us and no reason was given for the failure. Again no person who voted in the election at the polling unit was called as a witness.

There is therefore no evidence before us that election took place at Sala polling, unit on 14th April, 2007.’

3. Anguwan Sarkin Koro Polling Unit

The Tribunal said of this polling unit on page 208 of the Record of Appeal as follows:

‘From the evidence led by the parties we are satisfied that the ballot box was not snatched by the agents or supporters of any of the parties to this petition.’

It is clear from these findings of the trial Tribunal on each of the three polling units in controversy that the Petitioner’s/Respondent has failed to establish his complaint of malpractice, irregularity and lack of substantial compliance with the Electoral Act against the Respondent/1st Appellant. Since he cannot establish his allegation he is equally not entitled to the reliefs he had sought from the Court.

In the instant case the trial Tribunal refused to grant him any of the relief (a), (b), (c),(d) and (e) in paragraph 12 of his petition. The trial Tribunal was correct in refusing the said reliefs.

The Tribunal however proceeded to make the following orders:

“Having regard to our finding, we ward (sic) as follows:

(1) That since the votes credited to each party in paragraph 5 of the petition have been admitted by the Respondents; those votes subsist and remained valid.”

It is clear by this pronouncement that the trial Tribunal has taken cognizance that the Appellant scored by simple majority the high number of votes cast at the Election for the Paikoro Local Government Constituency of the Niger State House of Assembly and his return by the Returning Officer of the Local Government Constituency.

Section 70 of the Electoral Act 2006 stipulates that in any contested election to any elective office, the result shall be ascertained by counting the votes for each candidate and that the candidate that receives the highest number of votes should he declared elected by the appropriate Returning officer. Section 4(8) of the INEC Guidelines and Regulation 2007 provides that a candidate will be deemed elected where he leads by a simple majority of votes cast.

The Tribunal made the following orders which seem to be pursuant to its powers to make consequential orders after it has determined the Election Petition. The position of the law is that a consequential order made subsequent to a judgment which detracts from the judgment or contains extraneous matters is not an order made within jurisdiction See The Registered Trustees of the Apostolic Church v. Mrs. Emmanuel A.I. Olowoleni (1990) 10 SCNJ 69 at 78 to 79.

A consequential order cannot properly be made to give a party entitlements to a relief he has not established in his favour. A proper consequential order need not be claimed but a substantive order must be claimed and sustained from the facts before the Court. See F.A. Akinbobola v. Plisson Fisko Nigeria Ltd. & Ors (1991) 1 SCNJ 129 at 142 -143.

The Tribunal in its Judgment at page 209 of the Record of Appeal made the following orders:

“(2) That INEC the 1st Respondent in this petition should conduct fresh election in Ibrahim Saba, Sala, Anguwan Sarkin Koro Polling Units of Paikoro Local Government Constituency where election either did not take place or was inconclusive between the 1st petitioner and the 1st Respondent and the votes scored by the candidates should be added to their votes pleaded in paragraph 5 of the petition.

(3) Under Section 69(4) Electoral Act 1006, we hereby review the return of the 1st Respondent by the 3rd Respondent as winner of the election into Paikoro Local Government Constituency of Niger State House of Assembly by setting aside that return, pending the outcome of the fresh election to be conducted in the three polling units of Ibrahim Saba, Sala and Anguwan Sarkin Koro.

The result of the election in these polling units should be added to the votes of the parties pleaded in paragraph 5 of the petition and used by the Returning officer of the Constituency, in deciding a winner of Paikoro Local Government Constituency of Niger State House of Assembly.”

It is clear from the prayers of the Petitioner/Respondent in paragraph 12 of his petition at page 3 of the Record of Appeal earlier reproduced in the Judgment that the Petitioner/Respondent had not prayed the Tribunal to review the return of the Appellant, or set aside the return pending the outcome of fresh election in the three polling units in controversy. In fact the Petitioner has not prayed the Tribunal to conduct fresh election in those three polling units in controversy.

The Petitioner will relish to see happen the return of the Appellant being put on hold and this he has got without establishing a case for it. The Tribunal had deprived the Appellant the fruit of his well earned success at the poll conducted on 14/4/2007. The benefit granted to the Petitioner is unfair, unearned and unjust.

In the case of Umokoro Usikaro v. Itshekiri Communal Land Trustees & Ors. (1991) 2 SCNJ 75 at 91 Nnaemeka-Agu J.S.C. said:

“Indeed for a Court to make an order which no party has asked for and to which the parties were not heard is a breach of the party’s constitutional right to fair hearing.”

My view for saying ,that the trials Tribunal ought not to have made those orders has been informed by the evidence on the printed records of Appeal and Section 4(8) of INEC Guidelines and Regulations 2007 which allows a candidate to be deemed elected where he leads by simple majority of votes cast. In the instant case the 1st Respondent/Appellant scored 12828 votes as against the Petitioners/Respondents 12481 votes scored.

The Tribunal did not find that the 1st Respondent/Appellant had breached or violated any provision of the Electoral Act 2006. The trial Tribunal did not find that there was non-substantial compliance with the Electoral Act 2006. The allegation of malpractice complained by the Petitioner has been found by the trial Tribunal not proved.

In more than 100 polling units in the Constituency, elections were conducted in a free and fair atmosphere except in the three polling units in controversy.

It is in evidence that the Petitioner/Respondent failed to tender the Voters Register in the three polling units in controversy, where he claimed that there was election and that his agents marked the names of those that voted on the Voters Register in those polling units.

The Tribunal has no evidence before it of the number of voters in those three polling units and whether it is capable of upsetting the result returned. I am of the opinion that the decision to set aside the return of the 1st Appellant and order a fresh election in the three polling units in controversy, if made on the assumption that the result of the fresh election will upset the return of the 1st Appellant, that will amount to speculation.

It is trite that Judgment of Courts must not be based on assumptions or speculations but on legal evidence. See Obulor v. Oboro (2001) All FWLR Pt.47 Page 1004 at 1010.

The Tribunal in my opinion was wrong when it reviewed the “return” of the 1st Appellant and order for a fresh election, when there was no specific prayer by the parties to that effect, and most especially when the petitioner has failed to establish infraction of any of the provisions of the Electoral Act 2006 by the 1st Respondent/1st Appellant. The Petitioner/Respondent could- not prove the allegation of malpractice contained in his petition against the 1st Respondent/1st Appellant.

The second issue for determination is resolved in favour of the Appellants.

Consequently, the review of the return of the 1st Respondent/1st Appellant made by the Tribunal pursuant to Section 69(c) of the Electoral Act 2006 and the subsequent order directing 4th Respondent/4th Appellant to conduct fresh Election in Ibrahim Sabo, Sala, and Anguwan Sarkin-Koro polling units are set aside.

The return of the 1st Respondent/1st Appellant made by the 3rd and 4th Respondents/Appellants as the winner of the 14th April 2007 Election into the Paikoro Local Government Constituency of the Niger State House of Assembly having scored the majority of lawful votes cast is affirmed.

The 1st Respondent/1st Appellant remains the duly elected candidate representing the Paikoro Local Government constituency in the Niger State House of Assembly and I so hold.

There is merit in this Appeal and it succeeds. There will however be no order as to costs. Each party is to bear its cost of prosecuting this Appeal.

---

Other Citations: (2008)LCN/2708(CA)