Mr. Bright Osayande V. Hon. Edoba Aikpitanyi (PDP candidate) & Ors
In The Court of Appeal of Nigeria
On Tuesday, the 29th day of June, 2010
AMINA ADAMU AUGIE Justice of The Court of Appeal of Nigeria
GEORGE OLADEINDE SHOREMI Justice of The Court of Appeal of Nigeria
ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria
Mr. Bright Osayande Appellant(s)
1. Hon. Edoba Aikpitanyi (PDP candidate)
2. Austin Ajayi (Oghede Ward) (Electoral Supervisor for Oghede Ward in Ovia North East LGA)
3. The Returning Officer for Ovia North East LGA Constituency II
4. The Electoral Officer for Ovia North East LGA
5. Independent National Electoral Commission (INEC) Respondent(s)
AMINA ADAMU AUGIE, J.C.A (Delivering the Leading Judgment): The Appellant and 1st Respondent were candidates at the election into the Edo State House of Assembly for Member representing Ovia North-East Constituency 11. Aggrieved by the fact that the Appellant, a candidate of the Action Congress [AC], was declared winner, the 1st Respondent, who was the candidate of the Peoples Democratic Party [PDP], filed an Election Petition at the Edo State National Assembly, Governorship and Legislative Houses Election Petition Tribunal, wherein he asked that it be determined that-
(a) (The Appellant herein) was not elected and/or declared returned by a majority of valid votes at the election in that without the election at Oghede Ward, the overall result of the election in the Constituency is inconclusive. There can be no majority of lawful votes from an inconclusive election. (Highlight his)
(b) The election was not conducted substantially in accordance with the provisions of the Electoral Act. Guidelines and Regulations with particular reference to the denial of the voters in the Petitioners’ home ward “Oghede” and that the said non-compliance substantially affected the results of the election. (Highlight his)
(2) In the interest of justice, this Hon. Tribunal orders that an election be conducted in Oghede Ward to enable the deprived voters in the ward (including the Petitioner and his family or kinsmen) the opportunity to vote to determine the winner in the inconclusive election.
The 1st Respondent further prayed the Tribunal for the following
(a) That the election/Return of (the Appellant herein) is invalid by reason of corrupt practices or substantial non-compliance with the provisions of the Electoral Act or Guidelines by reasons of the denial of registered voters of Oghede Ward from exercising the franchise to vote for a candidate of their choice.
(b) That a Bye-Election in the Constituency (particularly in Oghede Ward) be held or ordered due to the facts pleaded above.
(c) That the election held in Ovia North – East LGA, Edo State House of assembly Constituency II ought to be nullified and fresh election conducted particularly in the affected ward to determine the overall results and winner of the Election in the Constituency.
(d) The election as it stands is inconclusive without the election and results in Ogbede Ward.
The Grounds on which the election was being questioned are-
(a) That the election was invalid by reason of corrupt practices or non-compliance with the provision of the Electoral Act.
(b) That (the Appellant herein) was duly elected by majority of lawful votes cast at the election.
(c) That the Election conducted in Constituency was inconclusive by reason of the failure of INEC to conduct the Election in the Petitioner’s home ward, Oghede which failure or omission has substantially affected the outcome of the whole election.
In addition to the Returning Officer for Ovia North-East LGA Constituency 11, the Electoral Officer for Ovia North-East LGA, and the Independent National Electoral commission [INEC], who were sued like that as the 3rd to 5th Respondents respectively, the 2nd Respondent was listed by name in the Petition, as follows-
“Austine Ajayi (Oghede Ward Electoral supervisor for Oghede Ward in Ovia North-East Constituency II”.
Allegations were made against him in paragraphs 12 & 13, thus-
11. The irregularity occasioned by the deprivation of registered voters of Oghede Ward by the acts or omissions of the 2nd, 3rd, 4th Respondents who are agents of the 5th Respondent have substantially affected the overall result of the election such that the results of the election was inconclusive without the election and result from Ogbede Ward… having regards to the slim margin of 401 as against 5,460 deprived voters from Ogbede Ward.
12. The 2nd Respondent because of his acts or omissions was handed over to the Police for investigation on electoral malpractices and possible trial. He has in fact been charged to Court by the Police. Detailed evidence will be led at the trial. The Petitioner will also tender and rely on Police Abstract on the arrest of the 2nd Respondent with respect to this matter.
At that stage, the 2nd to 5th Respondents were represented by their solicitor, Miss Ayi Obaseki, who prepared a joint Reply to the Petition, wherein it was averred as follows in paragraphs 5 to 9-
5. The 2nd – 5th Respondents aver that it did not award any vote to the 1st respondent or at all but rather declared the results returned from the wards where election was held save Oghede-Ward where election could not hold owing to the arrest of the 2nd Respondent by the Police.
6. The 2nd – 5th Respondent deny the averment … and state instead that its inability to conduct the elections was not due to its acts or omission but due to the arrest of the 2nd Respondent by the Police based on a frivolous allegation made against the 2nd Respondent by some persons in Oghede Ward. That Oghede Ward is the Petitioner’s home. But this is a fact not known to the 2nd – 5th Respondents whose sole responsibility was to conduct elections in accordance with the Electoral Act 2006.
7. The 2nd – 5th Respondents … aver that it was frustrated from conducting the election in Oghede ward by the police who arrested the 2nd Respondent who was saddled with the responsibility of distributing electoral materials.
8. The 2nd – 5th Respondents deny paragraph 11 of the Petition in so far as it insinuates to them the 2nd – 5th Respondents aver that the results or figure declared was obtained only from the wards were election was conducted.
9. In answer to paragraph 12 and 13 of the petition, the 2nd Respondent avers that his arrest and subsequent arraignment was orchestrated by some persons in the ward who instigated the police to
Oddly, the proceedings of the Tribunal on 12th June, 2007, reads –
“Mr. A. O. Edeki appears with … for the petitioner/Applicant 1st Respondent present. Mr. Wole Iyamu appears for him … 2nd Respondent absent. No appearance for him.
3rd-5th Respondent absent. Miss Ayi Obaseki appears for them MR. EDEKI: The 2nd Respondent has not been served. He is the Electoral supervisor for Ovia North-East Local Government and not a necessary party to the Motion before the Tribunal. I apply to withdraw his name from the Motion. I urge the Tribunal to strike out his name out (sic) from the Motion only. (Highlight mine)
MR. IYAMU: I have no objection.
MISS OBASEKI: I have no objection.
ORDER: The Motion on Notice is with the leave of the Tribunal withdrawn against the 2nd Respondent. His name is accordingly struck out from the motion paper”.
At the proceedings on the 20th June, 2007, the Tribunal recorded -“No appearance for the 2nd Respondent. Miss Ayi Obaseki appears for the 3rd – 5th Respondents”, and for sitting of 26th of June, 2007, it was the other way – “Miss Ayi Obaseki appears for the 3rd – 5th Respondents. No appearance for the 2nd Respondent”.
Its record of appearances for the 2nd Respondent read as follows –
– 6th July, 2007 – Miss R. Emwindomwanfo appeared for “the 2nd, 3rd, 4th and 5th Respondents/Applicants”, and moved an Application “for extension of time within which the 2nd – 5th Respondents/Applicants shall file and serve their answers to the pre-hearing information sheet since the time allowed has lapsed”.
– 17th July, 2007 – Mr. P. O. Osemwenkha appeared “for the 2nd – 5th Respondents”.
– 23rd July, 2007 – Mr. P. O. Osemwenkha appeared with “Miss Ayi Obaseki and Mr. R. Emwindonwan for the 3rd – 5th Respondents” There was no mention of the 2nd Respondent.
– 24th July, 2007 – 3rd August 2007, Mr. P. O. Osemwenkha appeared for “the 3rd – 5th Respondents” 2nd Respondent not mentioned at all.
– 3rd August, 2007 – Mr. P. O. Osemwenkha appeared for “the 3rd – 5th Respondents”‘ with no mention of the 2nd Respondent
– 7th August, 2007 – Mr. O. Igbinoba appeared for “2nd – 5th Respondents”.
– 16th August, 2007 – Mr. P. O. Osemwenkha appeared with Messrs O. Igbinoba and R. Emwindonwan for the 3rd – 5th Respondents”, and there was no mention of the 2nd Respondent.
– 21st August, 2007 – Mr. P. O. Osemwenkha appeared with “Messrs Ayi Obaseki, O. Igbinoba and Rachael Emwindonwan for the 3rd – 5th Respondents”. There was no mention of the 2nd Respondent
– 14th September, 2007 – Mr. P. O. Osemwenkha appeared with Messrs O. Igbinoba and E. N. Eguasa for the 3rd – 5th Respondents”. There was no reference to the 2nd Respondent. (written Addresses adopted)
– 28th September, 2007 – Mr. P. O. Osemwenkha appeared with Messrs O. Igbinoba and E. N. Eguasa for the 3rd – 5th Respondents”. There was no reference to the 2nd Respondent (Judgment delivered).
Be that as it may, the Tribunal’s Report on pie-Hearing session, is dated 7th August, 2007, and therein the Tribunal stated as follows –
The issue for determination is whether the 1st Respondent (Appellant herein) can be declared as the winner and returned by INEC (5th Respondent herein) as the member elected into the Edo State House of Assembly from constituency 11 of Ovia North East LGA when the 5th Respondent did not conduct election in Oghede ward which is one of the 7 wards that make up that Constituency”.
At the trial that followed, the 1st Respondent herein testified and called two other witnesses. His case was that the election was conducted in 6 out of the 7 Wards that make up their Constituency; that the Appellant herein polled 5, 139 votes as against his 4, 738 votes; and that election was not conducted in Oghede ward, where 5, 460 eligible voters were denied the right to cast their votes,
The Appellant testified, and called two witnesses, while the 3rd – 5th Respondents called only RW4, Audu Umoru, the Electoral officer and Returning officer, who replied under cross-examination –
“The 2nd Respondent – Mr. Augustine Ajayi was the INEC supervisor for Oghede ward. He was to conduct the election for Oghede ward. I supplied him with 5400 ballot papers … The voters in Oghede Ward insisted that they would not allow any election to be held in Oghede until the Governorship ballot papers were complete… It is because the supervisor could not account for the 4000 ballot papers out of 5400 earlier supplied to him. The policemen took the supervisor away but did not tell me he was arresting him”.
In its Judgment delivered on 28th September, 2007, the Tribunal commented as follows on the alleged role of the 2nd Respondent –
“… We find that it was the spontaneous reaction of the electorates and party agents that the election would not hold unless the 2nd Respondent accounted for the 4000 missing ballot papers that caused the election not to hold… We find that the election in Oghede Ward did not hold because the 2nd Respondent who was saddled with the responsibility of conducting the election was arrested by the Police for being unable to account for 4000 ballot papers out of the 5400 he collected –
At the end of the day, the Tribunal held as follows –
“… The Petitioner has shown non compliance with the Electoral Act, 2006 by the credible evidence of non holding of election in Oghede Ward as well as by the figure of 5460 registered voters which the non compliance has deprived of the opportunity to cast their votes that if voting had taken place in Oghede Ward the 1st Respondent’s majority of 615 votes was likely to be upset. We are satisfied that the petition has been proved and it is upheld. We nullify the election held on 14th April, 2007 into the Edo State House of Assemblt in Ovia North-East Constituency II and order that a bye election be conducted in that constituency within the next tree months by the 5th Respondent”.
Dissatisfied, the Appellant filed a Notice of Appeal in this court that was amended and further amended. The Further Amended Notice of Appeal with ten Grounds of Appeal was deemed filed by this court on the 4th June, 2009. After the parties had filed their briefs, the 1st Respondent filed a Notice of Discontinuance that reads –
“NOTICE OF DISCONTINUANCE OF MY INTEREST IN OPPOSITION TO THE APPEAL NO CA/B/EPT/327/2007 BETWEEN MR. BRIGHT OSAYANDE – THE APPELLANT AND ME, HON. EDOBA AIKPITANYI AND FOUR OTHER NOMINAL RESPONDENTS, BROUGH UNDER THE INHERENT JURISDICTION OF THIS HONOURABLE COURT TAKE NOTICE that I, Honourable EDOBA AIKPITANYI (PDP Candidate) and the First Respondent in the above-named appeal do hereby wish to discontinue my interests and/or further opposition to the said Appeal forthwith which Appeal is now pending hearing and determination before his Lordships.
I have come to this irreversible decision for personal reasons and after holding meetings and consultations with members of my family. For the avoidance of doubts, I am no longer interested in contesting the appeal.
Accordingly, I have by this notice instructed or directed my Counsel Barr. J. O. Aghimien (SAN), to give full effect and compliance to this Notice and stop appearing for me in the Appeal.
Dated this 20th day of October 2009” (Highlights his)
The 1st Respondent could not have made it any clearer that he is opting out of this appeal. In effect, he is not a party to this appeal. The arguments in his brief will be discountenanced, and the appeal will be determined on the briefs filed by the other parties. In the Amended Appellant’s brief prepared by F.T. Ezeokafor, Esq., it was submitted that the following Issues arise for determination –
1. In view of the various defects on the face of the petition, witness statements and non-service of the Petition and hearing notices on the 2nd Respondent, whether the Tribunal was right to assume jurisdiction to hear and determine same.
2. Whether the Honourable Tribunal was right in the issues it formulated in its Pre-Hearing Report and to base its Judgment solely on same without considering the issues raised by both counsel to the two sets of Respondents.
3. Whether from the totality of pleadings and evidence, the Tribunal was right to grant the 1st Respondent a relief not claimed by him and nullifying the entire Election of 14th April, 2007 held in Ovia North East Constituency 11 instead of only Oghede ward.
4. Whether the Honourable Tribunal was right in its evaluation of the evidence led at the trial to arrive at its decision to nullify the entire election in Ovia North East Constituency 11.
The 2nd Respondent’s brief was prepared by R.I.D. Okezie, Esq., and two Issues for Determination were formulated, as follows –
1. Was the Tribunal right to assume jurisdiction to entertain the petition of the 1st Respondent despite the non-service or processes filed in the Petition on the 2nd Respondent particularly from 12th of June, 2007 and his consequent non representation throughout the trial thereat.
2. Was the Tribunal right to have nullified the result of the election in the entire Ovia North East Constituency II when complaint was only laid by the 1st Respondent against the non conduct of election in Oghede ward?
The 3rd to 5th Respondents formulated the following three Issues in their own Amended brief prepared by P. O. Osemwenkha, Esq.-
(i) Whether the Tribunal was right in assuming jurisdiction to hear the Petition in view of the alleged non-service of the processes personally on the 2nd Respondent?
(ii) Whether the Election Petition Tribunal was right in nullifying the entire election held on 14th April, 2007 into the Edo State House of Assembly in Ovia North-East constituency II and ordering a bye election in the entire Constituency in view of the evidence on record and reliefs claimed?
(iii)Whether the Honourable Tribunal was right in discountenancing the issues formulated and the written addresses of the Respondents and predicating its Judgment on the singular issue formulated in its Pre-hearing Report without any consideration whatsoever of the germane issues formulated in the written addresses of the Respondents?
As I said earlier, the 1st Respondent withdrew from this appeal, and since he was the Petitioner who complained against the election, it goes without saying that his non-involvement with the appeal will affect some of the Issues canvassed by the parties thereto, thus, some of the Issues have, as we say, “been overtaken by events”.
Nonetheless, the Issues formulated by the 2nd Respondent appear to capture the areas of concern that will resolve this appeal one way or the other, and I will adopt them in dealing with the appeal.
As regards the issue of service, the Appellant submitted that the Tribunal erred when it assumed jurisdiction to adjudicate over allegations against the 2nd Respondent, when it was obvious that the Petition and other court processes were not served on him, and despite the fact that all the allegations in respect of Oghede Ward were leveled solely against him by the other parties. It was submitted that personal service of originating processes is a condition precedent to the exercise of jurisdiction and failure to effect such service according to and as stipulated by law renders the whole proceedings a nullity no matter how well conducted. This court was referred to a number of authorities on the issue.
They are as follows – Madukolu v. Nkemdilim (1962) 2 SCNLR 341 Tubonemi v. Dikibo (2000) 5 NWLR (Pt. 974) 565, Oke v. Aiyedum (1986) 2 NWLR (Pt. 23) 548, Skenconsult v. Ukey (1981) SC 6, Adigun v. A.G. Oyo State (1987) 2 NWLR (pt. 56) 197, Tsokna Motors Ltd. v. U.B.A. (2008) 2 NWLR (pt. 1071) 347, New Nigeria Newspapers v. Otteh (1992) 4 NWLR (pt. 237) 626, Orugbo v. Una (1997) 8 NWLR (Pt. 516) 255, Kida v. Ogunmola (2006) 13 NWLR (Pt. 997) 377, Mbadinuju v. Ezuka (1994) 1 NWLR (pt. 364) 535, N.A.G.B. v. O.F. Dev. co. (2006) 9 NWLR (pt. 985) 323, and the case of Nigerian Navy v. Garrick (2006) 4 NWLR (pt. 969) 69.
The 2nd Respondent submitted that once a person is listed on a process as a party, he is entitled to the protection offered by section 36 (1) & (2) of the 1999 constitution; that the court or Tribunal has a sacred duty to insist that all such parties be served with all the court processes filed, as service of such court processes is crucial to the exercise of jurisdiction by the Court, citing Kida v. Ogunmola (supra), Tubonemi v. Dikibo (supra), that he was not served with any processes or represented by counsel, after Miss Ayi Obaseki inexplicably stopped appearing for him; that abandoned by INEC, he needed to pursue his case irrespective of the statutory provisions requiring same counsel to represent both INEC and himself, but that he could not so represent himself in the absence of the service of processes filed in Tribunal. Furthermore, that the Tribunal placed heavy reliance on evidence that is in contrast with pleadings; that failure to order service of the processes on him amounted to denial of fair hearing, and robbed the Tribunal of jurisdiction to make pronouncements against him, citing Ogundoyin v. Adeyemi (2001) 7 S.C. (Pt. 11) 98, Kotoye v. C.B.N. (1989) 2 S.C. 1; (1989) 1 NWLR (pt. 98) 419.
The 3rd – 5th Respondents, however, submitted that this issue is “incompetent and a subterfuge by the Appellant to lure this court into reversing itself’, as this court in its Ruling of 17th of July, 2008, had dismissed the 2nd Respondent’s Application for leave to appeal against the Tribunal’s Judgment as an “interested party”, and our finding on the issue is conclusive, so it is caught by the doctrine of issue estoppels, citing Cardoso V. Daniel (1986) 2 NWLR (pt.20) 1, Adighije V. Nwaogu (2009) 2 NWLR (pt. 1125) 231, and Omnia (Nig.) Ltd. V. Dyktrade Ltd. (2007) 15 NWLR (pt. 1058) 576.
They also argued that the processes were served on INEC – the body statutorily vested with the responsibility of conducting the election, which is good service in law on the 2nd Respondent who cannot be heard to contend that service on his principal is not service on him being a subordinate and an ad-hoc staff of INEC; thus, the issue of non-service of processes on the 2nd Respondent, and the alleged denial of the right of fair hearing as canvassed by the Appellant, who is not the party in any way affected by the so called acts complained of, is otiose and nothing but a red herring, citing Adebayo V. A.G. Ogun State (2005) 20 WRN 1 at 19.
The Appellant filed a Reply Brief, wherein he submitted that the said Ruling of this Court does not constitute issue estoppel, and it did not touch on the effects of denial of the 2nd Respondent’s right of fair hearing on the Tribunal’s proceedings. He conceded that service on INEC is good service in law on the 2nd Respondent, but argued that having abandoned him midstream, INEC ought to have informed him to enable him defend himself; and that the Tribunal ought to have adjourned the matter and ordered fresh hearing notice to be served on him, citing Olafemi V. Ayo (2009) 19 WRN 30, and Tamti B. N.C.S.B. (2009) 7 NWLR (pt. 1141 631 at 663.
Yes, INEC should not have withdrawn its representation and abandoned the 2nd Respondent without notifying him, and the Tribunal should have adjourned the matter and ordered service of court processes on him, after it became obvious that INEC had dropped him like a hot potato, but the question here is – what is the effect of INEC’s action and the Tribunal’s omission in this matter?
It is well settled that it is not every error committed by a court that will result in the proceedings being declared a nullity, which is the expected outcome if the 2nd Respondent is denied fair hearing. To end that way, it must be shown that the error has occasioned a miscarriage of justice. In the same vein, it is not every time a party cries lack of fair hearing that this Court will respond to rescue him – see Adebayo V. A.G. Ogun State (supra), where Tobi, JSC said –
“I have seen in recent times that parties who have bad cases embrace and make use of the Constitutional provision of fair hearing to bamboozle the adverse party and the court, with a view to moving the court away from the live issues in litigation. They make so much heavy weather and sing the familiar song that the Constitutional Provision is violated or contravened. They do not stop there. They make the defence in most inappropriate cases because they have nothing to canvass in their favour in the case. The fair hearing Provision in the constitution is the machinery or locomotive of justice; not a spare part to propel or invigorate the case of the user. It is not a casual principle of law available to a party to be picked up at will in a case and force the court to apply it to his advantage. On the contrary, it is a formidable and fundamental Constitutional provision available to a party who is really denied a fair hearing because he was not heard or that he was not properly heard in the case. Let litigants who have nothing useful to advocate in favour of their cases, leave the fair hearing Constitutional Provision alone because it is not available to them just for the asking.”
To resolve this issue, we will have to draw up parameters from the basic or acknowledged facts in this case. Firstly, this is an election matter, and the 2nd Respondent is not an Appellant in this appeal or any other appeal. Secondly, as far as this appeal is concerned, INEC, the 5th Respondent, is the body responsible for the conduct of any election in Nigeria, and the return of any person as winner.
INEC was served with the Court processes, and as the Appellant conceded, this is in fact good service in law on the 2nd Respondent. Apart from that, Section 150 (1) and (2) of the Electoral Act 2006, dealing with “Legal representation of Commission etc”, provides-
(1)Where the Commission [INEC], an Electoral Officer, Returning Officer or any other official of the Commission has been joined as Respondent in an election petition, a Legal Officer of the Commission or a Legal Practitioner engaged by the Commission, shall represent the Commission, Electoral Officer, Presiding Officer, Returning Officer or other official of the commission at the Tribunal or Court.
(2) The Attorney-General of the State concerned (acting in person or through any of his Legal Officers) or the Attorney-General of the Federation (acting in person or through any of his Legal Officers) may represent the commission and the officers referred to in subsection (1) of this Section with the written consent or authority of the Commission.
In other words, INEC had a statutory responsibility to provide legal representation for the 2nd Respondent, who was employed by INEC and deployed by it to Oghede Ward as Electoral Supervisor. Thus, any grouse the 2nd Respondent may have about being abandoned or rejected by INEC, is between him and INEC itself. It has nothing to do with the bone of contention in this appeal, which is that the Tribunal nullified the entire election held in Ovia North-East Constituency II instead of only in Oghede Ward, where the parties are ad idem that elections did not hold on 14/4/2007.
At this stage, I must comment on the issue canvassed by the Appellant that the Tribunal erred when it limited itself to the sole issue formulated in its Pre-Hearing Report, which he argued was “too narrow and restrictive to allow for a full discourse of the case as presented by – the Petitioner and Respondents”. It is the Appellant’s contention that the Tribunal should have “broadened its issues for determination to include and accommodate an enquiry into why the election in Oghede ward was cancelled and who or what was responsible, or the cause”, and that having not done that, this has occasioned a serious miscarriage of justice against him.
I must thank the Appellant for this argument because it brings out the point I am trying to put across, which is that the Tribunal did not consider “why the election in Oghede Ward was cancelled and who or what was responsible”, therefore the contention that the 2nd Respondent was denied a fair hearing has no legs to stand on, because it is only if the Tribunal had considered that issue that his not being served or represented will have serious consequences. In other words, if the Tribunal had considered the issue, it would have had to make findings on the 2nd Respondent’s role thereon.
It is settled law, as the Supreme Court held in N.D.I.C. V. Okem Ent. Ltd. (2004) 10 NWLR (pt.880) 107 SC, that an appeal is usually against a ratio and not against an obiter except in cases where the obiter is so closely linked with the ratio as to be deemed to have radically influenced the ratio.
“Obiter dictum” is Latin for “something said in passing”, and it is a remark made or an opinion expressed by a Judge, in his decision upon a cause, “by the way” -that is, incidentally or collaterally, and not directly upon the question before the Court. – see Black’s Law Dictionary: 7th Ed. “Ratio Decidendi” on the other hand is Latin for “the reason for deciding”, and as Rupert Cross & J. W. Harris explained –
“There are … two steps involved in the ascertainment of the ratio decidendi… First, it is necessary to determine all the facts of the case as seen by the Judge; secondly, it is necessary to discover which of those facts were treated as material by the Judge”. See Black’s Law Dictionary: 7th Ed.
In this case, the Appellant tried to blame the 1st Respondent for the election not holding in Oghede Ward, and his witness, RW1, Hon. O. O. Vincent replied as follows under cross-examination –
“The Petitioner and his children objected and said the election will not hold unless all the materials were available. When the electorate discovered that the Governorship ballot papers were short by 4000, they were not happy and there was spontaneous reaction. It was not true that the electorate want to lynch the Supervisor”.
In its Judgment, the Tribunal reproduced this reply, and added –
“The fanciful story narrated by RW1 for the non holding of the election, which he attributed to the petitioner does not tally with the version of RW2 on the same issue. In fact, in his deposition on oath, RW2 said nothing at all about the petitioner, his children or family members. We find that it was only in his evidence at the Tribunal and under cross- examination that RW2 made a feeble attempt to rope in the petitioner by saying he was responsible for non holding of election in Oghede Ward. We find that it was the spontaneous reaction of the electorates and party agents that the election would not hold unless the 2nd Respondent accounted for the 4000 missing ballot papers that caused the election not to hold. We, therefore do not believe the evidence of RW1 and RW2 that it was the Petitioner, his children and family members who did not allow the election to hold … at Oghede. The spurious and contradictory evidence, their stories and sequence of events as narrated by both RW1 and RW2 are nothing but a ruse. We find that the election in Oghede Ward did not hold because the 2nd Respondent who was saddled with the responsibility of conducting the election was arrested by the Police for being unable to account for 4000 ballot papers out of the 5400 he collected…”
The Tribunal’s comment about the 2nd Respondent is clearly obiter. The Tribunal was merely trying to clarify why it did not believe the Appellant that the 1st Respondent was to blame for the election not holding in Oghede ward. In any case, the 2nd Respondent is not denying the fact that he was arrested for not being able to account for some ballot papers. He explained in his brief that he was charged to court and discharged because INEC “failed to produce any evidence to show that he was issued with 5000 ballot papers”.
In other words, INEC’s action, which I must say is deplorable, and the Tribunal’s lack of judgment in failing to order that the 2nd Respondent be served, did not occasion a miscarriage of justice, and is therefore of no moment in this appeal. What is in issue is whether or not the Tribunal was right to nullify the entire election.
On this score, the Appellant submitted that the Tribunal erred when it nullified the election in the entire constituency comprising 7 wards, instead of the Oghede ward that was in issue, and thereby granted the 1st Respondent a relief he did not ask for or which was more than what he asked for, citing a number of authorities.
The 2nd Respondent argued in the same vein, adding that it is even contrary to public policy as it will amount to an unnecessarily wastage of public fund to conduct fresh elections in 6 wards where voters had earlier made their preferences as to their choices for representation in the House of Assembly without any complaint.
The 3rd – 5th Respondent also argued that the order nullifying the election in the entire Constituency is perverse and cannot be supported having regard to the state of the pleadings, reliefs claimed and the evidence on record, and this Court was urged to reverse same and order a bye-election only in Oghede Ward.
The Respondents are right; it is an elementary principle in the determination of actions that the adjudicating body is bound to limit itself to the claim before it.
A Court may make incidental orders, which flow naturally from the relief claimed. However, a Court has no power and cannot award a relief not claimed by the party in the Writ of Summons and Statement of Claim – see Dumez Nig. Ltd. Nwakhoba (2008) 18 NWLR (Pt. 1119) 361, SC & Haruna v. Modibbo (2004) 16 NWLR (Pt. 900) 487, wherein it was held –
“A Court of Law may award less, but certainly not more than what the parties claimed. Afortiori, a Court of law should never award that which was never claimed or pleaded by either party. Let it be said that a Court of law is not a charitable institution. Its duty is to render unto everyone according to his proven claim.”
See also Ativie V. Kabelmetal Nig. Ltd. (2008) 10 NWLR (Pt. 1095) 399 SC, where the Supreme Court per Tabai, JSC observed that –
“A claim is” circumscribed by the reliefs claimed. The duty of the Plaintiff – is to plead only such facts and materials as are necessary to sustain the reliefs and adduce evidence to prove same. He may, at the end of the day obtain all the reliefs he claimed or less. He never gets more. Nor does he obtain reliefs not claimed. A Court is … bound to grant only the reliefs claimed. It cannot grant reliefs not claimed”.
In this case, it is quite apparent from the reliefs claimed that the 1st Respondent, as Petitioner, never made a case for the cancellation of the entire elections in Ovia North-East Constituency II.
His prayers in reliefs (b) and (c) relate to Oghede ward, as follows.
(b) That a Bye-Election in the Constituency (particularly in Oghede Ward) be held or ordered due to the facts pleaded above.
(c) That the election held in Ovia North-East Local Government Area, Edo State House of Assembly Constituency II ought to be nullified and fresh election conducted particularly in the affected Ward to determine the overall results and winner of the election in the Constituency.
In his evidence in chief as PW3, the 1st Respondent said clearly –
“I urge the Tribunal to order a bye – election in Oghede Ward where no election was held on the 14th of April, 2007”.
In its Judgment at page 375 of the record, the Tribunal said-
“… We believe the uncontradicted evidence of the Petitioner’s and Respondents’ witnesses that election did not hold in Oghede Ward on 14 April, 2007 and that the declaration and return of the 1st Respondent was based on the result of the election from 6 out of the 7 Wards that makes up Ovia North-East Constituency II”.
It makes no sense, but the Tribunal went to nullify the election and ordered a bye-election in the entire Constituency. I am at a loss as why the Tribunal did such a Somersault at the end of its Judgment and ended up falling into serious error when it granted a relief that was far more than what was claimed. I cannot speculate as to whether it was a genuine mistake or due to inadvertence, but the end result is that the Tribunal’s order cannot be allowed to stand.
In the final analysis, the appeal succeeds and is allowed.
The Tribunal’s order nullifying the election in the Ovia North-East constituency is set aside. The 5h Respondent [INEC] is hereby ordered to conduct a bye-election in Oghede Ward only within 30 days from today. There will be no order as to costs.
GEORGE OLADEINDE SHOREMI, (J.C.A): I agree
ALI ABUBAKAR BABANDI GUMEL, J.C.A: I have had the privilege of reading in draft the judgment just delivered by my learned brother, AUGIE, JCA, I agree with all the reasonings and conclusions very ably set out therein. I too see that there is merit in this appeal and would allow it. I also abide by all the consequential orders in the lead judgment.
G. C. Igbokwe, Esq.
T. A. Emenike, Esq
A. N. UzorFor Appellant
R.I.D. Okezie, Esq.,
Mrs. N. N. Odabi
P. O. OsenwenkhaFor Respondent