Ige Felix Oyebisi V. Hon. Tijani Tunde Suleiman & Ors (2008)

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JOHN AFOLABI FABIYI, J. C. A.

This is an appeal against the judgment handed out by the Election Tribunal on 2nd of October, 2007. The Chairman and Members of the Governorship and Legislative Houses Election Petition Tribunal nullified the election of the appellant and ordered a bye-election in all the 124 units which make up the Kajola State Constituency of Oyo State of Nigeria.

The facts of this matter are very crucial I need to assemble same briefly to enable me properly address the issues strenuously canvassed by the parties in this appeal The 1st Respondent who petitioned at the Tribunal was a candidate of the Peoples Democratic Party (PDP for short) while the appellant herein was a candidate under the banner of Action Congress (A.C. for short). At the general election conducted by the 3rd respondent into the Kajola State Constituency of Oyo State House of Assembly on 14-04-07, elections were held in 123 units out of the 124 units in the constituency. After the votes were counted, the appellant scored 11,993 votes and he was declared the winner of the election and returned by the 3rd respondent. The petitioner at the Tribunal who is the 1st respondent herein scored 11,931 votes. It was, no doubt, a very close race as the difference in the votes scored by the contending parties was 62 votes.

The 1st respondent was not satisfied with the outcome of the election. He decided to challenge the result at the Tribunal by filing a petition on 11-5-07. The grounds for the petition, as contained in paragraph 5 of same are:-

“(i) That the appellant did not resign his appointment at least 30 days before the date of the election of 14-4-07.

(ii) That election did not hold in units 011 and 012 of ward 5 and unit 007 of ward 10 which units are strongholds of the petitioner,”

The prayers of the petitioner at the Tribunal as manifest in paragraph 7 of the petition are as follows:-

“1. That the 1st respondent at the Tribunal and appellant herein was not validly elected.

2. That he (petitioner) was validly elected having scored the highest number of votes validly cast at the election;

Or in the alternative,

3. An order that election be held in units 011 and 012 ward 5 and unit 007 of ward 10 in order to determine the real winner of the election.”

The Tribunal garnered evidence from the parties and their respective witnesses. Learned counsel for the parties filed written addresses as directed by the Tribunal and adopted same orally. The Tribunal applied the law to the facts to the best of its ability in a bid to resolve the keenly contested issues. The Tribunal, in sum, found as follows:-

1. That the appellant validly resigned his appointment before the election of 14-4-07.
2. That the election was conducted in 123 units out of the 124 units of the Kajola Slate Constituency.
3. That there was no unit known as unit 012 of ward 5.
4. That election was not conducted in unit 007 of ward 10 and the number of the registered voters in the unit is 64 while the appellant won with 62 votes in the 123 units. The result declared by the 3rd respondent was nullified and a fresh election was ordered for the whole constituency.

Surprisingly, before making the order of a fresh election in the whole constituency, the Tribunal observed at pages 246-247 of the transcript record of appeal as follows:-

“It is pertinent to point out that in such circumstance as occurred in this case where due to no fault of the voters, polling could not take place in a polling unit and the number of such registered voters exceeds the number of votes scored by which the winning candidate won the petitioner, Independent national Electoral Commission (INEC) should pursuant to section 27(1) of the Electoral Act, 2006 appoint a fresh date to conduct election in that or those units so that the wishes of the majority of registered voters is reflected in the outcome of the overall result of the election.”

The above stance of the Tribunal points to the direction that where the result declared is not conclusive, as in this case, fresh election should be conducted in the unit or units where election did not hold so as to know the outcome of the overall result of the election. The Tribunal appreciated this point but went ahead to get itself derailed by ordering a bye-election in the whole constituency made up of 124 units instead of in just one unit where it found that election did not take place. I shall deal with this point later on at a reasonable length in this judgment.

The appellant felt irked with the stance posed by the Tribunal and appealed to this Court vide the Notice of Appeal filed on 23-10-07. The complaint therein relates to part of the decision which nullified the election result based on non-voting at unit 7 of ward to Kajola State Constituency.