HON. OKOTO FOSTER BRUCE v. MR. EBIKEME FRANK ERE & ORS.(2004)
(2014)LCN/7612(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 8th day of December, 2004
CA/PH/EPT/147/2004
RATIO
APPEAL: ISSUES FOR DETERMINATION; WHETHER ISSUES ON APPEAL SHOULD DERIVE FROM DECISION MADE BY THE TRIAL COURT
Further it is settled law that issues on appeal should derive from decision made by the court below. An appeal will not be allowed on an issue which was not canvassed and or covered by the judgment of the court below; except where fresh evidence is allowed by the leave of court; which is not so in the instant case. see Momodu v. Momodu (1991) 1 NWLR (pt 169) 608 (ii) Bennet Ifediora &,4 ors v. Ben Ume & ors (1988) 2 NWLR (pt.74) 5 at 16. (iii) Labiyi v. Amretiela & ors (1992) 8 NWLR (pt.258) 139. (iv) Omagbean v. Guinness Nig. Ltd (1995) 2 NWLR (Pt.377) 28 at 206, 268. Issues 1 & 4 in the cross appeal of the 3rd – 22nd respondent are hereby struck out. per. VICTOR AIMEPOMO OYELEYE OMAGE, J.C.A.
ELECTION PETITION; ELECTION WHETHER IT IS NOT IN EVERY CASE THAT THERE IS A DISCREPANCY IN A UNIT VOTE OF A MALPRACTICE THAT AN ELECTION SHOULD BE VOIDED OR RESULT IN CANCELLATION OF VOTES
It is trite to note that it is not in every case that there is a discrepancy in a unit vote of a malpractice that an election should be voided or result in cancellation of votes. See Opia v. Ibru (1992) 3 NWLR (pt.231) 658 at 708 where the shortage of votes cast can still sustain the election; the election should not be set aside. per. VICTOR AIMEPOMO OYELEYE OMAGE, J.C.A.
JUSTICES
VICTOR AIMEPOMO OYELEYE OMAGE Justice of The Court of Appeal of Nigeria
JOHN AFOLABI FABIYI Justice of The Court of Appeal of Nigeria
MONICA BOLNA’AN DONGBAN-MENSEM Justice of The Court of Appeal of Nigeria
Between
HON. OKOTO FOSTER BRUCE Appellant(s)
AND
1. MR. EBIKEME FRANK ERE
2. MR. P. M. ORUTUA
(Electoral Officer, Southern, Ijaw Local Government Area)
3. MIEBI NELSON
(Ward Returning Officer)
4. AKPEKI NELSON
(Ward Returning Officer)
5. DIGIENEN OSAISAI
(Ward Returning Officer)
6. MARSHALL LEIGHE
(Ward Returning Officer)
7. SIPON NATHANIEL A.
(Ward Returning Officer)
8. EGBERIBIN MANSON
(Ward Returning Officer)
9. MICHAEL AMAEBERI
(Ward Returning Officer)
10. THANKGOD BUNAFAGHE
(Ward Returning Officer)
11. PRINCE K. EBI
(Ward Returning Officer)
12. ADULPHUS YAGBA
(Ward Returning Officer)
13. STEPHEN P. ILEGHA
(Ward Returning Officer)
14. INNOCENT OPUTU
(Ward Returning Officer)
15. PREYE OSEKE
(Ward Returning Officer)
16. ALLEN RICHARD
(Ward Returning Officer)
17. OSIKA, P. O.
(Ward Returning Officer)
18. BOBOU OBOLO
(Ward Returning Officer)
19. DIETE OLOTU
(Ward Returning Officer)
20.MR. AKPOEBIDO HENDY EGBEDE
(Returning Officer, Southern Ijaw Federal Constituency)
21. DR. JOHNSON A. DAGANA
(Collation Officer, Southern Ijaw Federal Constituency)
22. INDEPENDENT ANTIONAL ELECTORAL COMMISSION Respondent(s)
VICTOR AIMEPOMO OYELEYE OMAGE, J.C.A.: In this appeal, the appellant has appealed against the judgment of the Election Tribunal for Southern Ijaw Federal Constituency, which sat in Yenagoa in the National Assembly Governorship and Legislative Houses election for Ijaw Federal Constituency; for the House of Representative of the National Assembly.
Here are the facts preceding the appeal. In the election for southern Ijaw Federal constituency, held on 12th April 2003, Mr. Ebikeme Frank Ere was declared elected for the area. The petitioner herein was aggrieved by the decision, he filed a petition. In the petition before the election Tribunal, the following issues were submitted for consideration.
(1) That the result of the election into the southern Ijaw Federal constituency as declared by the respondent is baseless, null and void and of no effect whatsoever.
(2) That Mr. Ebikeme Frank Ere the 1st Respondent was not duly elected on the basis of number of valid votes cast in the election,
(3) That Hon. Okoto Foster Bruce was duly elected and ought to and should accordingly be returned.”
After distilling the issues formulated by the respondents, see page 217 of the record; with the issues above, the Tribunal determined that the issues to be considered are as follows:
(1) Whether the elections were held into the House of Representative Southern Ijaw Federal Constituency of Bayelsa State on 12th day of April 2003 and if so whether the results of the various polling units from each of the wards of the said constituency were duly collated.
(2) Has the petitioner, established the falsification of the results of the election in favour of the 1st respondent.
(3) Whether Hon. Okoto Foster Bruce (the petitioner) was duly elected and ought to and should be accordingly returned.”
The learned tribunal viewed the exhibits tendered, considered the evidence of the parties and their witnesses, and the address of counsel, and came to conclusion on the issues as follows: On issue one, it held as follows –
“From what we have adumbrated above, we are of the considered view that the unit result were not collated by the ward collating officers and we so held.”
See page 230 of the record of proceedings.
On issue 2, the tribunal held thus:
“The only documentary evidence before the Tribunal are the unit results – exhibit; P3-P14 and P20-P33 admitted through the petitioner and which clearly shows that the petitioner has the majority of the lawful votes cast at the election and we so held.”
On issue 3, the tribunal held –
“The Electoral Act 2002 Part II and the 1st Schedule to the Act are in pari materia with Decree No.36 of 1988, referred to in that case relating to the conduct of the election. Without the results of the three wards, Amassoma Ward 9, 10 and 11 not placed before the Tribunal, we held that the election was inconclusive. The resultant effect is that the election conducted on 12th day of April 2003 into southern Ijaw Federal Constituency Bayelsa State is hereby nullified. We accordingly order the 22nd respondent Independent National Electoral Commission (INEC) to conduct fresh election into the Southern Ijaw Federal Constituency forthwith.”
It is against the above decision that the petitioner Hon. Foster Bruce has filed this appeal and formulated the following issues from his eight grounds of appeal filed; the issues are:
1. Whether the trial Tribunal was right in rejecting the authentic list of SPO & INEC form EC 25B and the Electoral Officer’s report.
2. Whether the petitioner/Appellant can rely on exhibit P2 to prove the total number of registered votes in Amassoma I, II & III Wards 9, 10 and 11 of the southern Ijaw Federal Constituency having alleged and proved the scores of the candidates as recorded therein as false and baseless.
3. Whether in the circumstances of this case the trial Tribunal was right when it nullified the election of 12th April 2003, held in southern Ijaw Federal Constituency and consequently made order for a fresh election.
(4) Whether the petitioner/appellant successfully rebutted the presumption of correctness in favour of the scores of the candidates for the three Amassoma wards as contained in exhibits P2, when he tendered no polling unit results with regard to same and if the answer is in the negative whether the trial Tribunal was not entitled to rely on the said scores to determine the winner in addition to exhibits P20 to P33?”
The 2nd – 22nd respondents could not and did not file any reply at the Tribunal below for failure to file same within time. The 1st respondent not only file a brief in response to the appellant brief, he filed a cross appeal of 9 grounds and formulated thereon six issues. In the 1st respondent brief, besides the three issues formulated, the 1st respondent raised therein a preliminary objection to the appeal on the ruling made by the Tribunal below on 20th April 2004. The content of the preliminary objection to the appeal is that it was filed after the 21 days prescribed by the rules of court. That the appeal was filed after the court’s ruling was made on 20/4/2004, but the appeal was filed on 27/5/04. The ruling of the Tribunal allowing in evidence the exhibit and evidence introduced by the SPO. The 1st respondent submitted that the petitioner appellant failed to obtain leave of court being in breach of the prescribed period, the petition should not have been entertained and it should have failed on that ground alone.
It is necessary to deal here first with the preliminary objection of the 1st respondent. As recorded by the 1st respondent the time to object to the appeal is at the commencement of the hearing. The objection in my view is no longer preliminary when the 1st respondent has filed his brief predicating his objection to the appeal on other issues.
In the absence of the provisions for raising preliminary objection under the Electoral Act 2002, we fall on the provisions contained in the Court of Appeal Rules, order 3, rule 15(1) & 3 require that a notice of the preliminary objection proposed should be served on the adverse party at least three clear days before the hearing. It has been held that the failure to serve the notice as required, renders the preliminary objections incompetent and unenforceable. See Chief Harold Sodipo v. Lemihamien Oy 1 (1986) 1 NWLR pt.15-220 at page 228/para H. See NSIRIM v. NSIRIM S.C. 101 (1988) or (2004) 24 WRN at P.28 lines 30-40, in the result the preliminary objection is dismissed.
I proceed now to state the issue formulated by the 1st respondent for determination of the appeal filed by the appellant. It reads:
(1) Was the lower court right in rejecting the authentic list of SPOS, INEC Forms and letters written by the Electoral Officer PW2?
(2) Was the Tribunal right in subjecting the petitioners contention in his written address to use part of exhibit P2, to prove the registered voters in the election?
(3) Was the Tribunal right in holding the election to be conclusive thereby ordering fresh election and if the answer is in the negative what was the proper order the tribunal ought to make?
(4) Was there any basis for the tribunal to hold that the petitioner scored majority of the lawful votes cast at the election without first collating the results of all the units and which said findings was contrary to the Tribunal, refusal to collate the results and declare the petitioner elected?”
The issues of the appellant; and of the 1st respondent in issue one are the same and will be treated together. The theme of their issue two is the same; that is,
“Whether exhibit P2 can approbate and reprobate on the registered votes cast at the election.”
The issue 3 formulated by both parties are the same on:
“Whether the court is correct to nullify and order a fresh election when neither party has asked for such a relief and on the correct prayers to make in the event of alleged failure of the appellant to prove the complaint in his appeal.”
Since a cross appeal is also an appeal, I shall refer to the cross appeal filed in this proceedings by the 1st respondent. Incidentally the cross appeal of the 1st respondent was filed like the petitioner/appellant’s brief on 30/6/04, but the latter being adopted in this court on 2/11/04. In it the 1st respondent protested against the judgment of the National Assembly Election Tribunal, which held in Yenagoa and delivered its judgment on 18th May 2004. The appeal therefore operates herein as a cross appeal to the appellant’s appeal filed within time.
In the cross appeal, the 1st respondent formulated six issues on the nine grounds of appeal filed by the 1st respondent. The issues are –
(1) Having rightly found that the Tribunal could not collate the results of the election since all the results were not before it, was the tribunal right in making the order for fresh election instead of dismissing the petition, a prayer that was never asked for nor canvassed by any of the parties coupled with the fact that the order was in conflict and inconsistent with the petitioner’s prayers to return him as elected in a concluded election.
(2) Was the Tribunal right in its finding that the petitioner from the unit results tendered by him has majority of the lawful votes cast at the election without the tribunal first collating the results which the Tribunal later refused to do on the ground that not all the results were before the court.
(3) Was the tribunal right in holding that there was no collation of results for the election without a proper evaluation of the entire evidence as presented by all the parties particularly evidence concerning collation of senate result which the tribunal refused to act on?
(4) Did the Honourable Tribunal not place a higher burden of proof on respondents by requiring them to tender unit results being the basis of the ward collated results while the petitioner did not produce the basis of the unit results be tendered and relied on by the Tribunal.
(5) Was the Tribunal right in relying in the unit results tendered by the petitioner without proper evaluation when on the face of the results no reasonable tribunal could rely on such document in proof of the result for the election and was the tribunal right in holding that the respondents could not question the said result.
(6) Was the Tribunal right in not making any pronouncement on the preliminary points capable of leading to a dismissal of the petition to wit there being no two results tendered to determine falsification. No prayer to sustain the petition and proof of the list of supervising presiding officials SPO.”
The 3rd-22nd respondents filed a respondents’ brief; and a cross appellants’ brief with the leave of the court; however the brief of the 3rd – 22nd respondent on the decision in the court below cannot be countenanced since the 3rd – 22nd respondent did not file any brief in that Tribunal for reason of lateness in filing its brief. The 3rd – 22nd respondents has purported to file an appeal against the ruling of the Court below which excluded it from the proceedings in the court below. This unfortunately cannot reverse the position of the 3rd – 22nd respondents in the court below. It had no brief before the Tribunal and the proceedings in the court below has been concluded; and the judgment of the court below does not include decision on the 3rd – 22nd respondents issues. The appellate court therefore has no jurisdiction to take an appeal from decision or matters not canvassed in the court below. See Court of Appeal Act 1985 and Tukur v. Taraba State (1997) 6 SCNJ 81 at 99, lines 14-18. In this case, it is not possible for leave of the court to enable the 3rd – 22nd respondents to file issues on appeal here on matters on which the Tribunal below has made no decisions because the said respondents did not participate in the proceedings in that Tribunal. The brief filed by the 3rd – 22nd respondents in its section A in its appeal filed on 26/7/04 is incompetent, and it is struck out. In its section B, the 3rd – 22nd respondents filed a cross appeal to the appellant’s brief, and formulated nine issues for consideration. The court had earlier granted leave to the cross appellants 3rd – 22nd respondents to file its appeal out of time. The nine issues formulated by 3rd – 22nd respondents are –
(1) Whether having regard to the facts and circumstances of the case, the trial Tribunal’s refusal of the 3rd – 22nd cross appellant application for an extension of time within which to file their rely to the petition was judicious and thus justifiable in law.
(2) Whether the Trial Tribunal was right in attaching full weight or any weight probative value for that matter to exhibit P3-P14 and P20-P33.
(3) Whether evidence concerning the senate election was relevant, admissible and ought to have been evaluated by the Trial Tribunal.
(4) Whether the Trial Tribunal ought to have satisfied itself that the petitioner had proved the criminal allegation of fraud beyond all reasonable doubt.
(5) Whether the entirety of the evidence of PW1, PW2 and PW3 particularly as they relate to the scores of candidates issue of non-collation of unit results and falsification of the results declared by the electoral officials are hearsay and therefore attract no probative value.
(6) Whether the Trial Tribunal was right in discountenancing the evidence and counsel’s address concerning the issue of the genuiness of the purported results claimed and relied upon by the petitioner.”
In the appeal by the, appellant there are two cross appeals, one cross appeal by the 1st respondent and another by the 3rd – 22nd respondents. The appellant as a cross respondent included in his appellant’s brief the response to the cross appeal of the 1st cross appellant; but made no submissions in respect of the cross appeal of the 3rd – 22nd respondents/Cross appellants. Except for the 1st issue formulated in the cross appeal of the 3rd -22nd respondents and issue four of the same parties, the issues formulated in the appellant’s brief in the response by the 1st respondent to the appellants brief. The cross appeal of the 1st respondent and the cross appeal of the 3rd -22nd respondents are founded in the issues determined by the tribunal below, and can be distilled as I will write below in this judgment.
Before I come to it I wish first to deal with issues No.1 and four in the cross appeal of the 3rd – 22nd respondent. Issue one therein deals with the refusal of the Tribunal below to allow the cross appellants prayer to file the said respondents brief out of time. While it is true that the occasion offers a first opportunity to the 3rd -22nd respondent to appeal on the issue, the issue involved is one of mixed fact and law and the appellant has sought the leave of court herein to appeal against the interlocutory decision. It is however true that the issue on appeal has been overtaken by event, because the tribunal has concluded its functions and has delivered judgment in the complaint brought before it. An appeal filed should be to the purpose of seeking a rectification of the error made in the court below. Where the appeal has been overtaken by subsequent events it will serve no reasonable purpose in my view to adjudicate or make a pronouncement on it. The Court does not act in vain. I therefore refrain from pronouncing on the effect of the alleged error of the Tribunal in refusing to allow extension of time in the Tribunal below to the 3rd – 22nd respondents. As a general rule, while it is right to say that rules of Court in the prescribed time to file process in court must be obeyed; a court must consider that the rules of court are made to oil the process of law in court. A judicious decision of direction must prevent the rules from defeating the law.
The second issue in the cross appeal of the 3rd -22nd respondent is issue 4 in the brief. This issue purports to raise the issue of proof by the Tribunal in criminal allegations on which the 3rd – 22nd appellants said the Tribunal did not satisfy itself I have read and examined with care the entire pages in which the judgment of the Tribunal is recorded. I see no issue on which the Tribunal needed to make a ruling on an issue, which requires proof beyond reasonable doubt as obtained in Section 138 of the Evidence Act. What the Tribunal said was that the current issue is severable and did so. The issue therefore did not arise from the decision of the court below. It cannot be countenanced in this appeal. Issue 1 and 4 in the appeal of 3rd – 22nd respondents are incompetent and are struck out.
Further it is settled law that issues on appeal should derive from decision made by the court below. An appeal will not be allowed on an issue which was not canvassed and or covered by the judgment of the court below; except where fresh evidence is allowed by the leave of court; which is not so in the instant case. see Momodu v. Momodu (1991) 1 NWLR (pt 169) 608 (ii) Bennet Ifediora &,4 ors v. Ben Ume & ors (1988) 2 NWLR (pt.74) 5 at 16. (iii) Labiyi v. Amretiela & ors (1992) 8 NWLR (pt.258) 139. (iv) Omagbean v. Guinness Nig. Ltd (1995) 2 NWLR (Pt.377) 28 at 206, 268. Issues 1 & 4 in the cross appeal of the 3rd – 22nd respondent are hereby struck out.
In this part of the judgment I wish to collate as written above and congeal the various issues formulated in this appeal by the appellants, and to include the response to the appeal by the 1st respondent, the cross appeal of the 1st respondent and the cross appeal in issues 2, 3, 5, 6 and 7 of the 3rd-22nd respondent. Prior to this I wish to make the following observations, as I did in a judgment delivered in Jos in 2004 in the governorship election of Boni Haruna v. Modibo. There I have remarked that the function of the electoral officers with INEC is to conduct an election and to declare its results; not to commence proceedings or to go on appeal against parties to the election to determine who should lose or win. Certainly the INEC and its officials are entitled to respond to any allegations made against them, but it appears to me that the institution of proceedings to determine who may or may not win as to institute action or appeal detracts from INEC impartial posture. It is not part of its functions, though it has a statutory right to be in court to defend itself.
The issues formulated by the appellant and the 1st respondent in this appeal are the same in issue one of both parties, that is, the appellant and the 1st respondent in the respondent’s brief and in the cross appeal and issue 5 & 6 of the cross appeal of the 3rd – 22nd respondent. The theme of the issues when they are all placed together I distil as issue one on –
The propriety or justification of the rejection of the authentic list by the Tribunal and whether or not the testimonies of the SPO were properly received at the Tribunal below.
2. Whether the appellant cannot properly rely on exhibit P2 to prove the total number of registered votes in Amasoma (i), (ii), (iii), Ward 9, 10 and 11 of the southern Ijaw Federal Constituency.
On the decision of the Tribunal to order fresh election, this includes issue 4 of the appellant’s appeal and, see issues 2, 5 and 6 of the 3rd -22nd respondents’ cross appeal, and issues 2 and 4 & 5 of the cross appeal of the 1st respondent; and issue 2 of the 1st respondent’s brief; which is better stated thus –
3. Whether in the circumstances of this case the that tribunal was right when it nullified the election of 12th April 2003 held in the South Ijaw Federal Constituency, and consequently made order for a fresh election, see issue 4 of the 1st respondent’s brief. Issue 1 of cross appeal of the respondent, issue 7 of the cross appeal of the 3rd – 22nd respondents brief.
The above distilled issues encapsulate in my view all the so far untreated issues in the appeal of the appellant, the response of the 1st respondent and the cross respondent, in the cross appeal of the 1st respondent and the cross appeal of the 3rd – 22nd respondent. I will in this judgment treat the rest as follows: It is noteworthy that in this appeal no process was filed by the 2nd respondent.
I now proceed to treat the issues as distilled above. In issues one and 2 together in my view, the crux of the issues in the entire appeal depend on complaints of appellant on the admissibility of or the rejection of the INEC form EC 25 B tendered by PW2, at the hearing of the petition in the court below. PW2, is a staff of INEC; and exhibit EC 258 is a document produced at the hearing. An electoral officer is the person charged with the conduct of an election. Generally before he testifies on an election matter he must by provision of the Electoral Act seek the consent of the Attorney General. See Ike v. Ofokaja (1992) 9 NWLR (Pt 263) 42 at 61. However if an electoral officer testifies in court under a subpoena no such consent is required. See supra. The document sought to be tendered, is Federal Form EC 25B. It is the document, which itemise the list of electoral officers in the election. The Tribunal rightly describes it as a public document but failed to appreciate that its contents can only be proved by primary evidence, and the person who tendered it need not be its maker. See Ali v. Obander (1999) 9 NWLR (Pt 620) 363 at 516. The document sought to be tendered before the tribunal is the best evidence. See the provisions of Section 109 Evidence Act; and it should have been admitted. The tribunal was therefore in error for failing to admit it. I direct its admissibility for the purpose of proving the legitimate senior electoral officers and identifying the officers in the election.
In this connection, the question may be put- was the tribunal right to disallow the admission of exhibit P2 in part to enable the appellant to use same in part as submitted by the appellant? Exhibit P2, he submits, is a certified copy of exhibit D. The exhibit shows the contents of the collated results of the election which include the unit reports in wards Amasoma (i), (ii), (iii) Wards 9, 10 and 11 of southern Ijaw the results of which the petitioner submitted that the SPOs did not receive from the stated wards. It is the submission of the appellant that the inclusion of the results from the wards, which are collated to give a favourable result to the 1st respondent as duly elected is fraudulent because the SPOs did not meet. In the said wards the polling officers and the supervising Presiding Officers were in error, which made the form EC 80(1) fraudulent for its inclusion in the collated results.
Exhibit P2 is the document tendered before the Tribunal, which proves the fraud contained in the false, declaration of results made by 20th-21st respondent concerning Oporoma Centre.
In the proceedings, the appellant herein relied on exhibit P2, while the 1st respondent relied on Exhibit D1. Exhibit P2, is a duplicate copy of exhibit D1. The document shows the deduction of results in Ijaw Federal constituency since the document had been admitted after a spirited argument, either party may use the document tendered for the purpose for which he made his submissions. The 1st respondent in his brief, and in his cross appeal submitted that exhibit P2 is not a certified copy before the court and that in any case did not come from a proper custody. In the cross appeal of the 3rd -22nd respondent, which submission is on all fours with the submissions of the 1st cross appellant, they urged the court to refuse the admissibility of P2, because the collated results therein is of 14 ward results but not of 180 unit results, which include the 3 unit result, it cannot counsel submitted represent collated results which the appellant submitted gave him overall majority votes at the election.
I have considered in this judgment the propriety of the admissibility of form EC 25B, and exhibit P2. I have written above my view that the Tribunal below was in error in rejecting exhibit EC 25B, since it is a public document, and it is unnecessary that the party rendering it should be the maker. In respect of the multi purpose use of exhibit P2, which as a copy of exhibit D1 it is admissible to show the collated results of the election and in contrast to reliance placed on the duplicate by the appellant to expose the absence of collated results in Amasoma (i), (ii), (iii) Wards 9, 10 and 11.
I am of the view and so hold that the said exhibit P2, despite the ruling of the respondent and cross appellant is admissible and can be relied upon by the appellants, particularly because it exposes the basic lack of or the absence of collation in the relevant wards. Unit results are the building blocks on which an election pyramid results are founded. However its exclusion in some wards will not necessarily void an election: In this case the exhibits P3-P14; and P20-33, having been admitted through a competent witness PW2, the electoral officer. The PW1 himself tendered the agent copies of the unit result. On the basis of the complaints of the appellant that when the electoral officer went to the relevant wards they, found there no polls officer in the various wards for which the appellants agent copies were tendered. The complaint was that there was no collation of the results in those wards. On the strength of the testimony of the appellant, and of his witness, the subpoenaed electoral officer who had the overall supervision of the election into the southern Ijaw Local Government Area the onus shifts on the respondent to disprove the appellant testimony. The response of the 1st respondent is that his result tendered is full of unproved allegation of fraud. The appellant had submitted. The preponderance of evidence results in favour of the appellant, see Omoboriowo & Anor v. Ajasin (1984) NWLR P.105; (ii) Onye v. Kema (1999) 4 NWLR (pt.598) 198. Additionally the Tribunal held and I agree there the relevant issue being that the allegation of fraud is not proved; and that the appellant need not prove any fraud even if it exists it is severable from the proof made by the appellant and the effect thereof may not necessarily affect the result of the election. See Wnam v. Ako (1999) 5 NWLR (Pt.601) at 150.
In this appeal upon the admissibility of the court below of form EC 25B the authentic list of supervisory Presiding officers, and the admissibility of exhibit P2 in favour of the appellant. Exhibit P1 in form EC8E (1) is incorrect. I therefore have no reason to disturb the findings of the tribunal below when it held
(i) that the unit results were not collated by the ward officers.
(ii) that upon the admissibility of exhibit P3, P14, P20-P33, the appellant has the majority of lawful votes cast at the election held on 12th April, 2003.
Consequently I do not hold the tribunal wrong in relying on the unit results tendered by the appellant in the court below. I fail to see the nexus in the respondents/appellants’ conclusion that if in the Senate results the officers were in the ward they should have been in the ward when the subsequent election took place, I refuse to dismiss the issue raised on the above in the cross appeal of the 1st respondent, and of the 3rd- 22nd respondent; and dismiss the said two issues in the cross appeal of 1st respondent and of the 3rd – 22nd respondents.
I now proceed to consider the 3rd issue raised in the three distilled issues with appeals before the court; it is whether the tribunal was wrong to have ordered a fresh election, when its findings show that one party in the election has all things considered the majority of lawful votes in the election. As recorded above, I want here to reiterate that all the three appellants formulated issue on the error of the Tribunal below in their appeals. In the cross appeal of the 1st respondent, he has submitted that the proper order to be made in the event is to dismiss the appeal; so did the 3rd -22nd respondent in their cross appeal. I have considered in this appeal the submissions of all the parties contained in their separate briefs.
At the hearing before the Tribunal below, one of the appellants asked in his prayer for a nullification of the election held on 12/4/03. It is settled law that a court will not and should not award to parties relief they have not asked for particularly when the relief granted by the court is not incidental to the prayers before the court. see Ogbe v. Esi (1943) WACA 76 (ii) Ekpenyong v. Nyong (1975) 2 SC 71 313-317.
The reason by the Tribunal below for ordering a fresh election is because the election results are inconclusive but how much more conclusive can it be when it found that without collated results one party has majority of lawful voters cast at the election which is sought to be upset by technicality.
It is trite to note that it is not in every case that there is a discrepancy in a unit vote of a malpractice that an election should be voided or result in cancellation of votes. See Opia v. Ibru (1992) 3 NWLR (pt.231) 658 at 708 where the shortage of votes cast can still sustain the election; the election should not be set aside.
In this case clearly there was no collation of the votes in the wards unit 1-3, the overall effect when excluded gives overall casting votes in favour of the appellant, he should be returned as elected. The reverse is the case in Inukan v. Jubel (1998) 12 NWLR (Pt.579) 587 where it was necessary to nullify an election and order a fresh one because the person returned was not elected. Where the person who got overall votes cast in the election is identified he should be elected.
The interest of the electorate in an election should be considered. The failure to count on the uncollated votes in such areas should not be seen as disenfranchising the constituency in issue in which event, the person now found to have overall votes cast at the election should be returned as elected. It is not expedient or right to order a fresh election. see Basher v. Same (1992) 4 NWLR (Pt 236) 491 at 508.
The appeal of the appellant has merit. It is allowed. I affirm the judgment of the Tribunal in part and dismiss its order for a fresh election. I dismiss in its entirety in each case, the cross appeal of the 1st defendant’s/cross appellant; and the cross appeal of the 3rd – 22nd respondent. I make no order for costs.
JOHN AFOLABI FABIYI, J.C.A.: I have had a preview of the judgment just delivered by my learned brother – Omage, J.C.A. I agree with the reasons advanced therein to arrive at the conclusion that the main appeal is meritorious and should be allowed while the order for fresh election made by the Tribunal is set aside. The cross-appeals of the 1st Respondent/Cross-Appellant and the 3rd -22nd Respondents/Cross-Appellants are devoid of merit and are respectively dismissed.
Let me make one point on the fact that the Tribunal made an order for a fresh election. I have perused the petition carefully and I am unable to trace any prayer for an order for a fresh election. I must reiterate the point that a court or Tribunal should not award that which was not claimed since it is not a charitable organisation or a Father Christmas. Refer to the cases of EGONU v EGONU (1978) 11-12 SC 111 at p.133; BABATUNDE AJAYI v. TEXACO NIG. LTD (1978) 9-10 SC 1 at 27; ETIM EKPENYONG v. INYANG NYONG cited in the lead judgment at p.80. The only exception is if an order appears warranted, incidental and necessary for a proper and just determination of the matter or cause, it could be made in a deserving case. Refer to the case of NNEJI v CHUKWU (1988) 3 NWLR (Pt.478) 184 at 208. I strongly feel that this is not of moment in this appeal.
Fresh election should not be ordered at random. In ordering it, a court or Tribunal should be circumspect and wary. Adequate discretion should be the watch words. Same should be done judicially and judiciously. This is because, election in a democratic set up is not an easy assignment in terms of logistics touching on human, material and financial factors.
It is for this reason that I feel that the unsolicited order of fresh election dished out by the Tribunal must be set aside. And I order accordingly.
I agree with the judgment of my learned brother. The Appellant herein, and Petitioner before the Tribunal is hereby declared as duly elected and returned. I endorse the other consequential orders contained in the lead judgment.
MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A.: An election process is a human activity which must come with some errors, the INEC officials not being infallible. Where non-deliberated errors are made and identified, such need not turn back the hand of the clock unless good and substantial reason exist to impute impropriety and such is shown to substantially affect the results.
This is the spirit of the substantial compliance principles of the electoral process (Refers Opia v. Ibru (1992) 3 NWLR (Pt.321) 658 at 708.
I agree with my learned brother, Omage (J.C.A) in the lead judgment and adopt same as mine. The impute of the judgment is that the Appellant is hereby declared as having been duly elected and returned. No fresh elections shall hold.
Appearances
Preye Agedah, Esq. with him C. A. J. Chinwo & C. AnosikeFor Appellant
AND
A. Akpomufie (SAN) with him D. O. Okoro Esq.
A. E. OkorodasFor Respondent
