Home » Nigerian Cases » Court of Appeal » Captain Idris Ichalla Wada & Ors V. Yahaya Bello & Ors (2016) LLJR-CA

Captain Idris Ichalla Wada & Ors V. Yahaya Bello & Ors (2016) LLJR-CA

Captain Idris Ichalla Wada & Ors V. Yahaya Bello & Ors (2016)

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MOJEED ADEKUNLE OWOADE, J.C.A.

This is an appeal against the decision of the Kogi State Governorship Election Tribunal Coram H. S. Mohammed (Chairman), P. L Ajoku and V. E. Ejenu JJ. delivered on 7th June, 2016 in the petition by the Appellants challenging the return of the 1st respondent as winner of the election conducted by the 3rd respondent on 21st November, 2015 and 5th December, 2015 to the office of Governor of Kogi State.

The said Governorship election commenced on 21st November, 2015 and before the results was fully collated announced, the initial candidate of the 3rd Appellant in the election prince Abubakar Audu died. At the end of the collation of results on 22nd November, 2015 the 3rd Respondent declared the Election inconclusive because the margin of win between the said Prince Abubakar Audu and the 1st Appellant was less than the total number of registered voters in 91 polling units where elections was cancelled on 21/11/2016.

After the Election was declared inconclusive by a letter dated 23rd November, 2015 the 2nd Respondent informed the 3rd Respondent that its Governorship candidate Prince Abubakar Audu had

died. Upon receipt of the news of the death of the 2nd Respondent’s candidate by a public notice dated 24th November, 2015 the 3rd Respondent took the decision to conclude the Kogi State Governorship Election by conducting supplementary election on 5th December, 2015 in the said 91 polling units affected by the said cancellation and to allow the 2nd Respondent fill the vacancy created by the death of its candidate. On 5th December, 2015 the said supplementary election was conducted in the 91 polling units where the 2nd Respondent represented by the 1st Respondent scored 6,885 votes where the 1st Appellant scored 5,383 votes.

Upon the addition of the results of the aforesaid supplementary election with the result of the elections held on November 21, 2015 the 2nd Respondent represented by the 1st Respondent scored the highest number of lawful votes cast in the said election and also met the constitutional requirement of securing one quarter of all the votes cast in each of at least two third of Local Government Areas of Kogi State.

?The 1st Respondent and Hon. James Faleke were issued certificates of Return which Hon. James Faleke rejected. Based on

the certificate of Return, the 1st Respondent was sworn in as Governor of Kogi State.

Dissatisfied with the said election and return of the 1st Respondent the Appellants filed their petition on 22nd December, 2015.

In the petition, the Appellants petitioners proceeded on three alternative grounds namely:

(a) That the 1st Respondent was not duly elected by the majority of lawful votes cast at the election, or

(b) That the 1st Respondent was at the time of the election not qualified to contest the election, or

(c) That the election of the 1st Respondent was invalid by reason of non-compliance with the provisions of the Electoral Act 2010 (as amended).

The 2nd, 1st and 3rd Respondents filed their different replies to the Appellants petition respectively, on the 23/01/2016, 12/01/2016 and 01/02/2016.

Each of the Respondents also filed Notice of preliminary objection in respect of which arguments were taken at the prehearing session and rulings therein reserved to be delivered along with the substantive petition.

At the trial of the petition, the Appellants called only three witnesses. The 1st Respondent called one witness.

The 2nd and 3rd Respondents did not call any witness but tendered Exhibits.

The Tribunal delivered its judgment on the 7th day of June, 2016, wherein it dismissed the petition. In the said judgment the Tribunal held, first at page 3658 in the Appellants favour:

“…. It is therefore, the Tribunal’s considered view that even though the issue of nomination and sponsorship is a pre-election matter but same having been done in the course of the 21/11/2015 and the 05/12/2015 gubernatorial election of Kogi State is a post – election issue which could only be presented before an election Tribunal as done in the instant case see Wambai Vs Donatus (supra) 257 paragraph C. The Tribunal therefore finds and holds that the petition is competently before it”.

Second at pages 3658 – 3661 of the record that:

“Having said this, the issue whether the petitioners having the locus standi to challenge the nomination and substitution of the 1st Respondent by the 2nd Respondent for the 05/12/2015 election is an issue which this Tribunal will consider taking note of the following salient features :

1. We find that the petitioners are members of

the PDP which political party is not a member of the 2nd Respondent

2. That none of the petitioners was a candidate in the 2nd respondent’s party primaries as an aspirant nor participated in the same,

3. That the 1st Respondent is a member of the 2nd Respondent’s Political Party.

4. That the 1st Respondent has been shown in exhibit R(1) to have participated in the 2nd Respondent’s primaries for the gubernatorial election of the 21/11/2015.

5. That the 1st Respondent has also been shown to have taken the 2nd position in the said primaries with late Prince Audu as the first,

6. That the sponsorship and substitution of the 1st Respondent for 05/12/2015 gubernatorial election of Kogi State have been shown to have arisen because of the demise of late Prince Audu, the gubernatorial candidate of the 2nd Respondent in the 21/11/2015 election.

It is trite that an Election Tribunal has no power to investigate matters which took place before the conduct of the election. See ANPP Vs Usman (2008) 12 NWLR (part 614) UDAMA Vs ARUNSI (supra) at 131 paragraph F – H. It is also trite that an Election Tribunal has no Jurisdiction to inquire into the

primaries of a political party. See ALHASSAN & ANOR Vs ISHAKU (supra) ADEBUYI Vs APC (2015) 2 NWLR (Part 1441) 1 at 22 Paragraph.

“It is equally trite that the nomination and sponsorship of a candidate by a political party is not the business of non members of that party nor the Court or the Election Tribunal thus it is only a member of the same political party that has a right of action for being wrongly or unlawfully substituted or changed. See the case of Kolawole Vs Folunsho (2009) 8 NWLR (part 1143) 338 at 339 paragraph A-H. Furthermore, it is trite that a complainant must be an aspirant who participated in the primaries that produced the sponsored candidate. See Ukachukwu Vs PDP (2014) 17 NWLR (part 1435) 134 (SC) at 182 paragraphs E – H, 184 paragraphs F – G and 203 paragraphs A – B, From the analysis above and the reasoning of the Court as espoused in the cases already cited, it is the Tribunal’s considered view that the petitioners who have not been shown to be members of the 2nd Respondent’s political party nor participated as an aspirant in the primaries of the 2nd Respondent for the choice of a gubernatorial candidate for the 21/11/2015

and 05/12/2015 elections lack the locus standi to challenge the nomination, sponsorship and substitution of the late gubernatorial candidate of the 2nd Respondent with the 1st Respondent. The Tribunal finds and holds contrary to the contention of the petitioners that their complaint on the nomination of the 1st Respondent borders on the qualification of the 1st Respondent to contest the election by the 2nd Respondent. Consequently, it cannot be said that it is not within the internal affairs of the 2nd Respondent and we so hold.”

Thirdly, at pages 3670 – 3672, that:

“On the petitioners ground C at non-compliance which supporting facts are as contained in paragraphs 67- 84 the Tribunal notes that the facts therein avers amongst others acts of criminal nature or corrupt practices particularly at paragraphs 74 – 88 which they alleged clogged the success of the election.”

The Tribunal notes that from the provisions of Section 138 (1) (b) of the Electoral Act 2010 (as amended) which provides thus:

“An election may be questioned on any of the following grounds:

b) that the election was invalid by reason of corrupt practices or non-compliance

with the provisions of this Act”, The above provisions anticipates two scenarios, that of non-compliance and corrupt practices thus a petitioner can challenge an election either on the basis that the provisions of the Electoral Act has not been complied with or that it was tainted with corrupt practices,

On allegations bordering on corrupt practices, the petitioner is obliged to proof same beyond reasonable doubt while those bordering on non-compliance can be proved on balance of probabilities it is a fact that paragraphs 67 – 80 of the petition deal with allegation of corrupt practices while the grounds deal with non-compliance and we so hold”.

Finally, at pages 3742 – 3743, the Tribunal held as follows:

“In the instant petition, the petitioners have on this ground contended that the 1st Respondent was not qualified to be returned as the governor of Kogi State not having nominated a running mate and not having been validly substituted for the late gubernatorial candidate, The Tribunal observes from the evidence of witnesses for the petitioners did not address any of the qualification under Section 182 of the Electoral Act as no facts were

adduced before it through the petitioners witnesses that the 1st Respondent was so disqualified under the Constitution. The Tribunal also notes that neither the contention that the 1st Respondent failed to nominate a running mate for the election nor the alleged wrongful substitution is within the constitutional provisions for his qualification or disqualification as a Governor of the State”.

Dissatisfied in substance with the decision the Appellants filed their Notice of Appeal on the 24th day of June, 2016.

The relevant briefs of argument for the appeal are as follows:

1. Appellants brief of argument dated 08/07/2016 and filed on the same day – settled by Chief Chris Uche, SAN

2. 1st Respondent’s brief of argument dated 12/07/2016 and filed on the same day – settled by J. B. Daudu SAN.

3. 2nd Respondent’s brief of argument dated 12/07/2016 and filed on the same day served by Chief Akinlolu Olujinmi SAN, CON.

4. 3rd Respondent’s brief of argument dated 11/07/2016 and filed on 12/07/2016 served by Kenneth O. OMORUAN Esq.

5. Appellants Reply brief to the 1st Respondent dated 13/07/2016 and filed on 14/07/2016 settled by Gordy

Uche SAN.

6. Appellants Reply brief to the 2nd Respondent dated 14/07/2016 and filed on 15/07/2016 – settled by Olakunle Lawal Esq.

7. Appellants Reply brief to the 3rd Respondent dated 14/07/2016 and filed on same day settled by chief chris Uche SAN.

8. List of Authorities by 3rd Respondent dated 11/07/2016 by Kenneth O. OMORUAN Esq.

?Learned Senior Counsel for the Appellants nominated six(6) issues for determination, namely:

1. Whether the 1st Respondent was not disqualified to contest the election into the office of Governor of Kogi State not having personally nominated another candidate as his associate for the office of Deputy Governor. (Grounds 2,3, 5, 6,7, 10, and 25 of the Notice of Appeal.

2. Whether in the light of the finding of the Tribunal that there was no provision for replacement of a governorship candidate who dies in the course of an election, whether the Honourable Tribunal was right in holding that the 1st Respondent was duly replaced as candidate to conclude an election wherein polling had commenced. (Grounds 4, 9, and 12).

3. Whether the Honourable Tribunal was right in holding that the 1st Respondent who

did not participate in all the elections and in all the stages of the election was duly returned as the candidate who secured majority of lawful votes cast in the election. (Ground 8, 11, 13, 26 and 29).

4. Whether the Tribunal was right in upholding the Preliminary objections of the Respondents. (Grounds 1, 15, 16, 17, 18 and 19).

5. Whether in the peculiar circumstances of the case, the Tribunal was not wrong in its interpretation of non-compliance with the provisions of the Electoral Act, 2010 as amended. (Grounds 14,20, 21,22, and 24).

6. Whether the Tribunal was right in dismissing the petition as lacking in merit notwithstanding the overwhelming and unchallenged evidence adduced by the Appellants in support of the petition. (Ground 23, 27, 28, and 30).

?Learned Senior Counsel for the 1st Respondent distilled three (3) issues from the Appellants Notice and Grounds of Appeal.

They are:

1. Whether the issue of the 1st Respondent being unqualified or disqualified from participating in the Kogi Governorship elections on account of alleged lack of nomination of a Deputy Governorship candidate as raised by the Appellants is correct

both in law and fact and whether the lower Tribunal could be faulted for resolving the issue against the petitioners? (Grounds 2, 3, 5, 6,7, 10 and 25).

2.Whether the lower Tribunal could be faulted in the way and manner it resolved the issues raised in the preliminary objection of locus standi sponsorship and nomination particularly when it held that the 1st Respondent was properly and lawfully substituted for the deceased Prince Abubakar Audu? (Grounds 1, 8, 11, 13, 15, 16, 17, 18, 19,26 and 29).

3.Having regard to the facts and circumstances of the case whether the lower Tribunal dismissing the petition can be faulted in the way and manner it resolved the substantive claims of the petitioners such as alleged non-compliance with the provisions of the Electoral Act and that the 1st Respondent did not win the election by a majority of lawful votes? (Grounds 14, 20, 21, 22, 23, 24, 27, 28 and 30)

?Learned Senior Counsel for the 2nd Respondent formulated five (5) issues as follows:

1. Whether the Tribunal was not right to have dismissed the petition on the ground that the appellants lacked the locus standi to challenge the

nomination, sponsorship and substitution of the 1st Respondent. (Ground 1, 15, 16, 17 , 18 and 19).

2. Whether the Tribunal was not right when it held that the 1st Respondent was qualified to contest the election into the office of the Governor of Kogi State. (Grounds 2, 3, 5, 6, 7, 10 and 25)

3. Whether the Tribunal was not right when it held that it could not be said that the 1st Respondent did not participate in all the stages of the gubernatorial election in Kogi State. (Grounds 8, 11, 13,26 and 29).

4. Whether the Tribunal was not right in holding that upon the death of Prince Abubakar Audu the 1st Respondent was properly substituted as the candidate of the 2nd Respondent in the said gubernatorial election of Kogi State. (Grounds 4, 9, and 12).

5. Whether the Tribunal was not right in holding that the petitioners failed to prove the provisions of the Constitution and the Electoral Act 2010 and the petitioner’s criminal allegations in the conduct of the election. (Grounds 14, 20, 21, 22, 23, 24, 27, 28, and 30.

?The learned counsel for the 3rd Respondent chose to distill eight (8) issues for determination from the Appellants Notice

of grounds of Appeal. They are:

1. Whether the trial Tribunal’s decision upholding the Respondent’s preliminary objections is not right in law (Grounds 1, 2, 3, 15, 16, 17 and 19).

2. Whether the trial Tribunal’s decision that the 240, 687 and the 6885 votes secured by the late Prince Abubakar Audu and the 1st Respondent belong to the 2nd Respondent, affirming the merging of the said votes the substitution of the 1st Respondent with the late Prince Abubakar Audu and the 3rd Respondent’s declaration of the 1st Respondent as the winner of the Kogi State Governorship election was valid in law. (Grounds 4,8,9, 10, 11, 12,20, 28,29 and 30).

3. Whether considering the peculiar facts and circumstances of this case the trial Tribunal was right in its decision that Hon. James Abiodun Faleke was nominated by the 1st Respondent and was the 1st Respondent’s Deputy Governorship candidate in the Kogi State Governorship Election. (Grounds 5, 6, 7, and 25).

4. Whether the Tribunal below was not right in its decision that the Appellants failed to establish that the votes recorded in the Kogi State Governorship Election held on 21/11/2015 and 05/12/2015

were not valid votes. (Grounds 13, 14 and 26).

5. Whether the trial Tribunal was right in law when it refused to accord any evidential weight to the expert report tendered in evidence by the Appellants. (Grounds 21, and 22).

6. Whether the trial Tribunal was right in law when it held that the Appellants failed to link the various documents tendered by them to the various areas challenged by them in their petition. (Ground 23).

7. Whether the trial Tribunal wrongly imported the issue of corrupt practices into the petition of the Appellants as alleged by the Appellants (Grounds 24).

8. Whether the trial Tribunal failed to determine the issues raised by the Appellants in their petition and assuming without conceding that the Tribunal failed to determine the said issues the Appellants suffered any miscarriage of justice (Ground 27).

?The appeal will be decided on the issues formulated by the Appellants. Also, the arguments and submissions of the Appellants shall be placed on one side of the scale of Justice while those of the 1st, the 2nd and 3rd Respondents shall be considered together as the arguments and submissions of the Respondents.

This is for the reason of the shared common interest in between the three sets of Respondents and also for convenience of treatment.

ISSUE ONE

Learned Senior Counsel for the Appellants submitted on issue one that the crucial issue that resonates in the case of the Appellants before the Tribunal is that the 1st Respondent did not have a running mate as required by law. That paragraphs 15, 54, 55,57,59,62,63, 65 and 67 of the petition dwelt extensively on the fact that the 1st Respondent was not qualified to contest election having not nominated a running mate or an associate.

The issue of not nominating a running mate on the part of the 1st Respondent according to counsel is tied to Ground B of the petition as well as Relief D. That not only did the 1st Respondent not nominate a running mate, but he contested the supplementary election without a running mate and was sworn in without a running mate.

?In support of the factual basis of the above Appellants contention learned senior counsel for the Appellants referred to paragraphs 32, 33 and 40 (f) of the 3rd Respondent’s Reply to the petition where the 3rd Respondent claimed inter alia that

“…Hon, James Faleke was not nominated by the 2nd Respondent as the running mate of the 1st Respondent…?

Appellants counsel then turned to the evidence led and submitted that the evidence of pw1 and pw3 overwhelmingly support the averments in paragraph 15, 55, 57,59,62,63,65 and 67 of the petition to the effect that the 1st Respondent did not have a running mate as required by law.

Appellants counsel also considered that the evidence of DW1 more especially under cross examination at pages 3270 – 3273 of the record, first that, “I will not be surprised that INEC said that James Faleke is not the running mate”. second, that “?.. P23 is the name of the 1st Respondent substituting the late Prince Audu. I have not seen any other form apart from those ones similar to them” as admissions against the interest of the Respondents. Appellants counsel referred to the cases of Iniama vs Akpabio (2008) 17 NWLR (part 116) 255 at 344 and Omisaodu vs Elewuju (2006) 13 NWLR (part 998) 517, 532, and submitted that when the evidence of a witness supports the case of the opponent, the opponent can take advantage of the

evidence to strengthen his case. He argued that in resolving these all important issue the Tribunal regrettably refused to follow binding judicial procedures by coming to the conclusion that the issue of nomination of a running mate for the election on the part of the 1st Respondent is not within the Constitutional provisions for qualification or disqualification as the Governor of a State. The Tribunal held that the Appellants did not address any of the qualification of a candidate under Section 177 of the Constitution or disqualification under Section 182 of the Constitution. He submitted that the Tribunal also trivialized the admission of the 3rd Respondent on the fact that Hon. James Abiodun Faleke ceased to be running mate on the death of Prince Abubakar Audu on the ground that the Appellant could not rely on such admission as the Appellants case is one of declaratory relief. That the Tribunal equally held that Hon. James Faleke did follow the steps prescribed in Section 35 of the Electoral Act on purported withdrawal and there was no valid withdrawal of nomination to INEC.

?Counsel submitted that in all the circumstances of the case, Section 35 of

the Electoral Act (as amended) cannot be binding on Hon. James Abiodun Faleke as he is not a candidate within the con of the said election.

He added that the same Tribunal interestingly had in another petition EPT/KG/GOR/01/2015 between Hon. James Abiodun Faleke Vs INEC and Ors held that said Hon. James Faleke was not a candidate within the contemplation of the Electoral Act and as such had no locus standi to present an election petition. That the Tribunal cannot therefore in another turn hold that the same Hon James Faleke is a candidate who can only withdraw from contest upon 45 days notice to the Electoral body by his political party.

He submitted that the law is trite that a Court of law must be consistent in its findings and should not make findings that are diametrically inconsistent with each other on the same or similar issue.

?After referring on this point to the case of OBU & ORS vs A.V.A. ONIBUDO & Co. Limited & Ors (2009) LPELR (8255 (CA) Appellants counsel submitted further that having not nominated a running mate in compliance with Section 187 (1) of the Constitution, the 1st Respondent could not have been validly

sponsored by any political party to contest the election in compliance with Section 177(c) of the Constitution. At least the 1st Respondent was not a candidate of any Political party in the election as at 21st November, 2015.

Learned counsel for the Appellant frowned on the finding of the Tribunal that the failure to comply with Section 187(1) of the 1999 Constitution (as amended) was not a disqualifying factor. He argued that the cases of Tarzoor Vs Ioraer & 2 Others (2016) 3 NWLR (part 1500) 463 at 498 ANPP vs Usman (2008) 12 NWLR (part 110) at 53, AISHA JUMMAI ALHASSAN vs Mr. Darius Dickson Ishaku & Others SC 46/2016 (Consolidated) delivered on Monday, the 22nd day of February, 2016, Shinkafi vs Yari SC 9071 2015 delivered on 8th January, 2016. Relied upon by the Tribunal bear no similarity to the instant petition. That the point decided in the above cases is that the manner in which a political party conducts its primary elections to select and nominate candidates is a matter solely within the internal affairs of the party. Non-members of the political party were held to be without locus standi to challenge the nomination of such candidates.

That whilst the Supreme Court made pronouncements on Sections 177 and 182 of the Constitution no consideration was made on the implication of the failure to comply with the mandatory provisions of Section 187(1) of the Constitution. The cases are therefore not relevant and nor applicable to the instant appeal. In none of the cases, said counsel did the import and applicability of Section 187(1) of the Constitution arise. He submitted, the Tribunal was in grave error to have relied on those cases as a basis for its finding that Section 187(1) of the Constitution is not a disqualifying provision for Governorship candidates. Counsel submitted that the Tribunal similarly turned a blind eye to two binding decisions of the Court of Appeal and one of the Supreme Court which directly examined Section 187(1) of the Constitution and held that non-compliance with the said provision disqualifies a Governorship candidate from contesting a Governorship election.

?The Appellants contend that contrary to conclusion of the Tribunal the qualifications specified under Section 177 and 182 of the Constitution with respect to the office of Governor of a State are by no means

exhaustive or exclusive. That the clear cut constitutional requirement embedded in Section 197(1) of the Constitution is that the candidate for the office of Governor of a State shall not be deemed to have been validly nominated for such office unless he nominates another candidate as his associate for his running for the office of Governor, who is to occupy the office of Deputy Governor.

Appellants counsel submitted that Sections 177 and 182 did not close the categories of qualifications and disqualifications.

That Section 187(1) is a subsequent provision and cannot be over-ridden by the earlier provisions but is rather complimentary to the earlier provisions.

He submitted that non-compliance by the 1st Respondent with Section 187(1) of the Constitution makes him completely disqualified from contesting the Governorship election and also completely voids his sponsorship by the 2nd Respondent for the Governorship election. Appellants counsel submitted further that Section 187(1) of the Constitution should be read together with Section 177(c) of the Constitution and that Sections 187(1) 177 and 182 are all related dealing with ascension to the

office of Governor of a State and thus Section 187(1) is a precondition to the effectiveness of Sections 177 and 182 of the Constitution.

He referred to the pronouncements of the Supreme Court in the cases of PDP Vs INEC (1999) 11 NWLR (part 626) 200 at 239 and Emenike Onwata Vs INEC (2011) LPELR (9184) for the proposition that the valid nomination of a Governorship candidate is dependent upon a valid nomination of a deputy Governorship candidate. He submitted further that once the provision of Section 187(1) of the Constitution has not been shown to have been complied with by the 1st Respondent his candidature becomes caught up by the disqualifying factor in Section 177(c) of the Constitution since a candidate not validly nominated cannot be validly sponsored. There is no doubt, said counsel that by the tenor of Section 177(c) of the Constitution a person is qualified only and only if he is sponsored by a political party.

Importantly, according to counsel the issue of qualification to contest election is one of the grounds for maintaining an election petition pursuant to Section 138(1) (a) of the Electoral Act 2010 (as amended). Finally on this

score, appellants counsel referred to the decision of the Court of Appeal in Dingyadi vs Wammako (2008) 17 NWLR (part 1116) 395 and submitted that the 1st Respondent was not qualified to contest the said election not having personally nominated a running mate as mandatorily required by the Constitution. He urged us to resolve the issue in favour of the Appellants

In answer to Appellants issue one the Respondents submitted that Sections 177 and 182 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) strictly govern the issue of qualification or disqualification as envisaged by Section 138(1) (a) of the Electoral Act 2010 (as amended). That the Courts have consistently held that for a party to institute an election petition before a Tribunal on the ground of qualification or disqualification as stated in Section 138(1)(a) of the Electoral Act 2010, the claim must apparently be factually based within the parameters ensured in Sections 177 and 182 of the 1999 Constitution (as amended) otherwise any fact not based on the parameters stated in Sections 177 and 182 of the 1999 Constitution will be outside the provision of Section 138(1) (a) of

the Electoral Act 2010 (as amended) and cannot be entertained by the Election Tribunal. For the above statement of law the Respondents relied on the cases of PDP Vs INEC (2014) 17 NWLR (part 1437) 525 at 559 – 560, CPC vs Umar (2012) 12 NWLR (part 1315) 605 at 629 – 631, Tarzoor vs Ioraer (2016) 3 NWLR (part 1500) 463at 498 to 499 and Ucha vs Onwe (2011) 4 NWLR (part 1237) 386 at 427.

The Respondents argued that the provision of Section 187 (1) of the 1999 Constitution (as amended) borders on the issue of nomination and not qualification of the candidate.

The Respondents distinguished the cases of PDP vs INEC (1999) 11 NWLR (part 626) 200 and Dingyadi vs. Wammako (2008) 17 NWLR (part 116) 395. The latter as being per incuriam and as not representing the law as laid down by the Supreme Court. The former (first) as having been based on a previous electoral legislation which is not in pari materia with the present one.

In fact, that the above case of PDP vs INEC (supra) is not applicable to the instant case because the nomination of a Deputy Governor was included in the law as one of disqualifying factors of a gubernatorial candidate in the then

Section 96(1) (k) of the State Government (Basic Constitutional and Transitional Provisions) Decree No. 3 of 1999 whereas in the instant case, the nomination of a Deputy Governorship candidate by a Governorship candidate is not included in the disqualifying provision, that is Section 182 of the 1999 Constitution (as amended).

Apart from the foregoing the Respondents further submitted that it is not required by any provision of the Electoral Act or the Constitution that where a candidate is substituted during the course of an election pursuant to Section 33 of the Electoral Act as a result of the death of the candidate previously nominated, the process is to begin as the poll had not commenced.

He is only required to satisfy the requirements of Section 177 and 182 of the Electoral Act. This, the Respondents submitted is even more so in this petition in which there is an existing running mate which the 1st and 2nd Respondents did not reject and who did not withdraw his candidature in accordance with Section 35 of the Electoral Act before the window of withdrawal created by the Section closed.

The Respondents further submitted that the arguments of

the Appellants that the 3rd Respondent had admitted that the 1st Respondent had no running mate is misconceived. This, they said is because the law is settled that an admission by a defendant is not admissible against a co-defendant. And, also because declaratory reliefs cannot be proved on admission.

RESOLUTION OF ISSUE ONE

The summary of the Appellants argument on issue one is that the nomination and election of the 1st Respondent as Governor of Kogi State via the elections of 21st November, 2015 and 5th December, 2011 is caught up by the provision of Section 187 (1) of the 1999 Constitution (as amended) for the reason that the 1st Respondent did not nominate a running mate for the Governorship elections as stipulated by the said Section 187(1) of the Constitution. Also, that the 3rd Respondent had admitted that the 1st Respondent indeed did not nominate a running mate for the elections.

The respondent on the other hand contended that the provision of Section 187(1) of the Constitution has nothing to do with the qualification or disqualification to the office of an elected Governor of a State but that the provision is rather limited to the

stages of nomination and sponsorship of the Governorship candidate. Consequent on the above argument the Respondents believe that the provision of Section 187(1) of the Constitution deals with intra – party pre-election matter the complaint of which can only be ventilated or entertained in the Federal High Court.

The Respondents insisted that the nomination of the Hon. James Faleke by the late Prince Audu is extant as a matter of law since the 1st Respondent was a substituted candidate pursuant to Section 33 of the Electoral Act. And that the admission by the 3rd Respondent that the 1st Respondent did not nominate a running mate is of no moment in law.

The relevant statutory provisions for the determination of issue one are essentially the provisions of Section 187(1) 177 and 182 of the 1999 Constitution (as amended) Section 187 (1) states:

“In any election to which the foregoing provisions of this part of this Chapter relate, candidate for the office of Governor of a State shall not be deemed to have been validly nominated for such office unless he nominates another candidate as his associate for his running for the office of Governor who is to

occupy the office of Deputy Governor and that candidate shall be deemed to have been duly elected to the office of Deputy Governor if the candidate who nominated him is duly elected as Governor in accordance with the said provision”.

Section 177 of the Constitution deals with the qualification for election as Governor as follows.

“A person shall be qualified for election to the office of Governor of a State if:-

(a) he is a citizen of Nigeria by birth.

(b) he has attained the age of thirty five years.

(d) he has been educated up to at least school certificate level or its equivalent.”

Finally the provision of Section 182(1) (A-J) categorized ten (10) possible disqualifications for election to the office of Governor of a State.

It would be recalled that one of the salient arguments by the learned SAN for the Appellants is that a person who breaches the provision of Section 187(1) of the Constitution could not be said to be validly nominated and/or sponsored by a political party under the provision of Section 177(c) of the Constitution and also that the qualification and the

disqualification ingredients in Section 177 and 182 of the Constitution are not exhaustive.

In pursuing this line of reasoning the appellants placed reliance on two judgments of the Supreme Court that is the cases of PDP vs INEC (1999) II NWLR (part 626) 210 at 239 (per Uwais CJN) and Emenike Onwata & Anor vs INEC (2011) LPELR 9184.

The Respondents have distinguished these cases, in particular they argued that the decision in PDP Vs INEC (supra) is not applicable to the instant case because the nomination of a Deputy Governor was included in the Decree No. 3 at 1999 (Section 96 (1) (k) as one of the disqualifying factors of a gubernatorial candidate whereas in the instant case, the nomination of a Deputy Governorship candidate by a Governorship candidate is not included in the disqualifying provision that is Section 182 of the 1999 Constitution. They (Respondents) also submitted that the case of Onwata Vs INEC (supra) is of no moment to the instant case as the authority itself recognizes the fact that complying with the provision of Section 187(1) of the 1999 Constitution is an issue of nomination.

?I think that the draftsman of the

Constitution deliberately separated the provision of Section 187(1) as a nomination issue from the provisions of Sections 177 and 182 which specifically deal with qualification and disqualification of a person to be elected as Governor. For this reason I am in agreement with the learned senior counsel to the Respondents and in line with the recent decisions of the Supreme Court in the cases of Tarzoor Vs Ioraer (2014) 3 NWLR (part 150) 483 at 498 to 499 and PDP Vs INEC (2014) 17 NWLR (part 1137) 525 at 559 – 560 that the issue of qualification and disqualification, once raised as per Section 138(1) of the Electoral Act is determined with reference to Section 177 of the Constitution in case of qualification and Section 182(1) in case of disqualification. See also Ucha vs Onwe (2011) 4 NWLR (part 1237) 386 at 427 and CPC v Umar (2012) 12 NWLR (part 1315) 605 at 629 – 631.

I therefore agree with the Tribunal on this issue as a matter of law when it held at pages 3742 – 3743 of the printed record that:

“… in the instant petition the petitioners have on this ground contended that the 1st Respondent was not qualified to be returned as the governor of

Kogi State not having nominated a running mate and not having been validly substituted for the late gubernatorial candidate. The Tribunal observes from the evidence of witnesses for the petitioners did not address any of the qualification of a candidate under Section 177 of the Constitution or disqualification under Section 182 of the Electoral Act (sic) Constitution as no facts were adduced before it through the petitioner’s witnesses that the 1st Respondent was so disqualified under the Constitution. The Tribunal also notes that neither the contention that the 1st Respondent failed to nominate a running mate for the election nor the alleged wrongful substitution is within the Constitutional provisions for his qualification or disqualification as a Governor of State.”

Issue one is resolved against the Appellant.

ISSUE TWO

Learned counsel for the Appellants noted on issue two that it is intrinsically linked to Ground A of the petition as well as reliefs a, b, and c in the petition and submitted that it is also closely connected to the issue of non – qualification of the 1st Respondent to participate in the election.

?He submitted that the

petition challenged the lawfulness of the votes ascribed to the 1st Respondent on the basis that the purported substitution of late Prince Abubakar Audu with the 1st Respondent after election had commenced and almost concluded, with over 95% of votes already cast and collated is alien to our electoral laws.

He submitted that the Tribunal in its judgment delivered on 7th day of June, 2016 made an important finding of fact to the effect that there is no provision either in the Constitution or in the Electoral Act for replacement of a Governorship candidate who dies after voting has commenced in an election.

?He noted that no appeal has been lodged against the above finding and as such, the finding is binding on all the parties to this appeal. Appellants counsel submitted that Section 36 of the Electoral Act does not permit the substitution of a candidate who dies after the commencement of the polls as arbitrarily done in this case and submitted further that having found that there is no provision in the Constitution or Electoral Act for the replacement of a governorship candidate who dies before the election is concluded, the Tribunal was clearly wrong

to have turned around to validate the replacement of 2nd Respondent’s deceased candidate with the 1st Respondent.

He submitted that the decision of the Tribunal in returning the 1st Respondent as duly elected was with respect inconsistent with binding Constitutional and statutory provisions and its own earlier finding that there is no law permitting replacement of candidates who dies after polls have commenced in an election. He referred to the decision of the Court of Appeal in ABDULLAHI AHMAN & ANOR Vs ABUBAKAR TANKO AYUBA & ORS (2008) LPELR where the provision of Sections 33 – 36 of the Electoral Act 2010 was interpreted to mean that the right to substitute or replace a candidate exists only where the candidate dies before the commencement of the poll.

?That there is no provision whatsoever either in the Constitution or Electoral Act to justify, the idea of the closest alternative candidate as a suitable replacement to a deceased candidate after the commencement of polls as preferred by the Tribunal at page 3755 of the printed record, just as there is no provision for a runner-up in party primary as replacement for a deceased candidate upon

the commencement of polls.

He concluded on this score that it is beyond contest that since the 1st Respondent was not substituted in accordance with any laws, his participation in the election was unlawful and cannot take benefit from any votes(s) ascribed to him.

?The Respondents reacted to issue two and submitted that the holding of the Tribunal that upon the death of Prince Abubakar Audu, the 1st Respondent was properly substituted as the candidate of the 2nd Respondent is valid and well grounded in law.

They reiterated the salient facts of the case as follows:

i) Prince Abubakar Audu was the candidate of the 2nd Respondent in the 2015 Kogi State gubernatorial election until his death before the conclusion of the election.

ii) That upon the 2nd Respondent communication of late Prince Abubakar Audu’s death to the 3rd Respondent directed the 2nd Respondent to substitute the late Prince Abubakar Audu with a new candidate for the supplementary election which was slated for December 5, 2015 which would mark the conclusion of the Kogi State gubernatorial election.

iii) It was in accordance with the directive of the 3rd Respondent that

the 2nd Respondent submitted the name of the 1st Respondent (the 1st runner-up in the 2nd Respondent’s Kogi State gubernatorial primary election wherein the late Prince Abubakar Audu emerged as the winner and candidate of the 2nd Respondent) as the substitute candidate replacing the late Prince Abubakar Audu.

The respondents submitted that the Tribunal was right when it held at page 3760 of the record that:

“… it is the considered view of the Tribunal that the 1st Respondent was qualified to contest in the election into the office of Governor of Kogi State and be returned as duly elected as done in the instant case and we so hold.”

The Respondents submitted that by this the Tribunal affirmed the validity of the substitution of late Prince Abubakar Audu with the 1st Respondent.

?They argued that even if there is no provision specifically on the replacement of a candidate who dies before the election is concluded, the conclusion of the Tribunal that the 1st Respondent was qualified and duly returned is supported by the law. According to the Respondents the peculiarity of the case can only be situated within the parameters of

Section 33 of the Electoral Act 2010 (as amended) which enables a political party to substitute a candidate in the case of death. The Respondents referred to the cases of Ugwu vs PDP (2015) 7 NWLR (part 1459) 478 at 500 ? 501 and Dr. Abdullahi Baba Abdul Vs Congress for Progressive Change (CPC) 2 ORS (2012) LPELR – 9283 (CA) noted that there is no time limit as to when a political party can change its candidate in the case of death of the candidate or withdrawal by the candidate. In effect, that Section 33 of the Electoral Act 2010 (as amended) allows a political party to substitute a deceased candidate with another candidate at any time before the conclusion of the election.

This according to Respondents means that the replacement can be done even where the candidate dies after the commencement of the poll but before the conclusion of the election (as was done in the instant case).

?The Respondents further submitted that the fact there is no time limit for the replacement of a dead candidate is not novel as this was also the position under Section 34(3) of the Electoral Act, 2006. Also that in this respect the provision of Section 36(1) of the

Electoral Act 2010 (as amended) is absolutely inapplicable as Section 36(1) is only applicable where the candidate dies upon the delivery of nomination paper and before the commencement of the poll.

It was further submitted for the Respondents that there is absolutely no provision of the law either directly or inversely that says where the candidate of a political party leading in the majority of lawful votes dies after the commencement of the poll but before its conclusion, the person or political party which scores highest number of votes should be declared the winner of the election. Respondents counsel distinguished the facts of the case of Abdullahi Ahman & Anor vs Abubakar Tanko Ayuba & ORS (2008) LPRLR – 3659 (CA) referred to on this issue by the Learned Senior Counsel for the Appellants from facts of this case.

In particular that the provision of Section 34 of the Electoral Act 2006 considered in that case are not the same as the provision of Section 33 of the Electoral Act 2010 (as amended). And that unlike the instant case the death of the candidate in the Abdullahi Ahman & Anor vs Abubakar Tanko Ayuba case (supra) occurred

before the commencement of the poll. That indeed the leading judgment of Oredola JCA in the Abdullahi Ahman & Anor vs Abubakar Tanko Ayuba case (supra) though decided under the Electoral Act 2006 recognized the fact that there is no limitation whatsoever as to the time to replace a deceased candidate.

More particularly, the 2nd Respondent referred to paragraph 25 of its Reply to the petition at page 1453 of the record to demonstrate that the finding of the Tribunal that the 1st Respondent was in the circumstance the closest alternative to replacing the late Prince Abubakar Audu was dictated by pleadings and not manufactured or merely suggested by the Tribunal from the blues. Rather that the exigency of the situation dictated that the 1st Respondent was the lawful replacement of the late prince Abubakar Audu. They urged us to resolve the issue against the Appellants.

RESOLUTION OF ISSUE TWO

It seems to me that the argument of the learned senior counsel for the Appellants that the decision of the Tribunal in returning the 1st Respondent as duly elected was inconsistent with its own earlier finding that there is no law permitting

replacement of candidates who die after polls have commenced in an election counters one basic principle, that is an Appeal Court should concern itself with the rightness or otherwise of a decision rather than the reasons for coming to such a conclusion.

Beyond this, the pleadings, the evidence of the parties and more particularly the directive of the 3rd Respondent to the 2nd Respondent dictated that the 2nd Respondent (the 1st runner-up in the 2nd Respondent’s Kogi State gubernatorial primary election emerge as the substitute candidate replacing the late prince Abubakar Audu.

Perhaps, there is no provision of the law specifically on the replacement of a candidate who dies before the election is concluded, however I do agree with the Respondents that the conclusion of the Tribunal that the 1st Respondent was qualified and duly returned is supported by law.

In this respect, Section 33 of the Electoral Act 2010 (as amended) provides thus:

?A political party shall not be allowed to change or substitute its candidate whose name has been submitted pursuant to Section 37 of this Act except in the case of death or withdrawal by the

candidate.”

Indeed, it is evident from the wordings of Section 33 above that there are two arms in this Section which are the general principle and the exception of the general principle that is:

1. the general principle: once a political party submits the name of a person as its candidate that political party shall not be allowed to change such candidate.

2. the exception: a political party shall only be allowed to substitute a candidate only if:

i) the candidate dies;

ii) the candidate by himself withdraws his candidacy.

Clearly Section 33 of the Electoral Act 2010 (as amended) allows a political party to substitute a deceased candidate with another candidate at any time before the conclusion of the election.

Again, the situation envisaged in Section 36 of the Electoral Act where a poll can be countermanded does not arise in the instant case as polls had already commenced.

?Based on the above, I agree with the Tribunal and the Respondents that where the candidate dies, his political party his vested with authority under Section 33 of the Electoral Act to replace the deceased candidate with another candidate and that the

Tribunal was right in holding that the 1st Respondent was rightly returned as the winner of the election. This is because substitution of a party simply means a designation of a person or thing to take place of another or thing. It is the process by which one person or thing takes the place of another or thing etc. See Black’s Law Dictionary page 147 Ugwu vs Ararume (2007) 12 NWLR (part 1048) 365, Attorney General of Anambra vs Attorney General of the Federation (1993) 6 NWLR (part 302) 692.

It is needless to add that the Respondents clearly distinguished the case of Abdullahi Ahman & Anor vs Abubakar Tanko Ayuba (supra) referred to by the learned senior counsel for the Appellants from the facts and circumstances of the instant case. In the first place the Abdullahi Ahman case (supra) was decided on the provisions of Sections 34(3) and 37(1) of the Electoral Act 2006 which are not in pari materia with the provision of Section 33 of the Electoral Act 2010 (as amended).

Secondly the death of the candidate in the Abdullahi Ahman case (supra) unlike the instant case occurred before the commencement of the poll.

Meanwhile the judgment of Oredola

JCA in the Abdullahi Ahman case (supra) recognized that there is no limitation whatsoever as to the time to replace a deceased candidate as:

“… the issue will be taken or considered as the exigency of the situation dictated. This is moreso, since the monumental event of death does not serve any notice on either the healthy or the ailing …”

Finally on this score the Tribunal cannot be faulted having regard to pleadings, evidence and the state of the law for holding at page 3755 of the printed record that:

“…… the 1st Respondent having participated in the primaries that produced the late gubernatorial candidate can be said to be the closest alternative to replace the deceased gubernatorial candidate having come second in the primaries, That because of time it would not have been possible for the 2nd Respondent APC to conduct another primary election for the purposes of electing a gubernatorial candidate to replace the deceased candidate.”

Issue two is resolved against the Appellants.

ISSUE THREE

Learned senior counsel for the Appellants noted that issue three is equally an integral part of the petition of the

Appellants before the Tribunal and that it is linked to Ground A of the petition as well as reliefs a, b and c in the petition. He submitted that it is closely connected to the issue of non qualification of the 1st Respondent to participate in the election.

Appellants counsel submitted that in the petition filed before the Tribunal, the issue of non-participation of the 1st Respondent in all the stages of the election and the fact of his having scored only 6,885 votes in the supplementary election of 5th December, 2015 and as such incapable of securing majority of lawful votes cast at the election features prominently in the case before the lower Tribunal specifically, at paragraph 25 of the petition, the Appellants averred thus:

“25 The 1st Respondent neither campaigned nor presented himself for election of the 21st day of November, 2015 and the said 1st Respondent never voted in either the 21st of November, 2015 or 5th, December, 2015.”

Also, that at paragraph 17(c) of petitioners Reply to 1st Respondent’s Reply dated and filed 5th February, 2016, the Appellants averred thus:

“17(c) the 1st Respondent was not a candidate at nor

participated in the election of 21st November, 2015 and cannot presumptuously be deemed to have participated in the election and cannot take any benefit from the election.?

That in the same vein, the Appellants in their Reply to 2nd Respondent’s Reply dated and filed 28th day of January, 2016 raised the matter of the 1st Respondent not having participated in the election of 21st November, 2015. The paragraph reads:

“15 The petitioners shall also contend that the 1st Respondent was not a candidate at, never participated in the election of 21st November, 2015 and cannot presumptuously be deemed to have participated in the election and cannot take any benefit from the election.”

It was submitted that the sum total of the Appellants averments in their various pleadings impugns the return of the 1st Respondent as Governor of Kogi State having not participated in all the stages of the said election and in particular, not having been a candidate at the election of 21st November, 2015. On this score, Appellants counsel referred to the provision of Section 141 of the Electoral Act 2010 (as amended) on the need to fully participate in all the

stages of the election. They submitted that in evidence even DW1 who testified for the 1st Respondent agreed with PW1 that the 1st Respondent was not a candidate at the Governorship election on 21st November, 2015.

Appellants counsel referred to the cases of OMBUGADU Vs CPC (2013) 18 NWLR (part 1340) 31 at 75 – 76, ELIGWE vs OKPOKIRI (2015) 2 NWLR (part 1443) 348 at 377 and JEV & ANOR vs IYORTYOM & ORS (2014) LPELR ? 23000 (SC) to show that a candidate in an election is obliged to participate in all stages of the election before he can be duly returned.

The Appellants submitted that having not fully participated in all the stages of the election, particularly the main election of 21st November 2015, either as a candidate or a voter for that matter the 1st Respondent was not qualified let alone being returned as the winner. By implication, the return of the 1st Respondent by the 3rd Respondent as the winner of the Governorship election in Kogi State vide Exhibits P4 and P5 is unlawful.

?On the issue of majority of lawful votes cast, the Appellants submitted that the 1st Respondent who only participated in the election of 5th December, 2015

and received 6,885 votes did not and could not secure more votes than the 1st Appellant who polled 204,877 votes and scored more than 1/4 votes cast in every Local Government Area of Kogi State. That the act of amalgamating the 240,867 votes of a deceased person who was hitherto candidate of the 2nd Respondent to the 6,885 votes scored by the 1st Respondent in declaring the 1st Respondent returned was an inherent vice that rendered the said votes of 240,867 unlawful. This, the Appellants said is particularly so as there is no provision either in the Constitution or in the Electoral Act justifying such amalgamation of votes.

?The Appellants submitted further that contrary to the conclusion reached by the Tribunal, upon the death of prince Abubakar Audu the votes cast for him ceased to be valid for purposes of collation or reckoning in the election under Section 69 of the Electoral Act 2010 and Section 179 of the Constitution of the Federal Republic of Nigeria. By implication said counsel, the 240,887 votes scored by the Prince Abubakar Audu became nonexisting upon his death.

?Learned senior counsel for the Appellants further submitted that besides

taking irrelevant factors into consideration, the Tribunal pointedly ignored the provisions of Section 69 of the Electoral Act 2010 (as amended) which was cited to it and which shows that votes are cast for candidates and not political parties. He argued that in the whole of Section 69 of the Electoral Act that governs how the winner of an election is determined, the term political party is not used at all. The provisions show that the votes are scored by the candidates and not political parties. This he said is in tandem with Section 179 of the Constitution which is incorporated by reference into Section 69 of the Electoral Act.

He submitted in the light of the above there was no law or precedent that could have formed the basis of amalgamation of votes which the Tribunal found that the 3rd Respondent was entitled to do. In making such a finding the Tribunal held that votes belong to political parties and as such it could be ascribed to any person the political party desires.

He submitted that not even Section 221 of the Constitution did in any manner confer proprietary right in the votes to the political parties. As is manifest from the afore said

provision is the use of the term “for the candidate” in relation to the votes.

Appellants submitted that the Tribunal wrongly relied on Amaechi Vs INEC (2008) 5 NWLR (part 1080) 227 in arriving at a decision that the 2nd Respondent owned the votes and had the prerogative of assigning same to whosoever it desires. And, that the case of Amaechi Vs INEC (supra) is not authority for amalgamation of votes.

He submitted that the ratio decidendi of Amaechi Vs INECis to the effect that at all material times, Rotimi Amaechi was the candidate of the Peoples Democratic Party (PDP) and not that a political party can go into elections with one candidate and later ascribe votes to another person as was sought to be done in the instant case.

He submitted that Section 221 of the Constitution supports the position of the Appellants that votes are meant for candidates and not for political parties who at best canvassed votes for candidates. On this he referred to the case of Ngige vs Akinyuli (2012) 15 NWLR (part 1323) 343 at 375 – 376 and urged us to resolve the issue in favour of the Appellants.

?In answer to Appellants issue three, the Respondents

referred to the provision of Section 141 of the Electoral Act to wit:

“An Election Tribunal or Court shall not under any circumstance declare any person a winner of an Election in which such person has not fully participated in all stages of the said election.”

?This they (Respondents) followed up with the question:

Who is seeking to be declared winner of the election in this petition? They (Respondents) answered that it is the Appellants that are seeking a declaration as winner of the election which held on November, 21 and December, 5, 2015 and not the Respondents. It is the Appellant that cannot be declared the winner of an election by the Court or Tribunal if they have not participated in all the stages of the election. That the Respondents are not here to seek an order of the Tribunal to be declared winner of the election. They did not also file a cross – petition by which they could make such a prayer and they have none. In fact, that the 1st and 2nd Respondents were declared winner by INEC the 3rd Respondent and not the Tribunal. The provision of Section 141 does not apply to the 1st and 2nd Respondents but the Appellants who are the ones

seeking an order declaring them winner by the Tribunal. On this, counsel to the Respondents referred to the cases of Jev vs Iyortom (2015) LPELR – 24420 (SC) page 22 and Ntiero vs N.P.A (2008) 10 NWLR (part 1094) 129 at 147 – 148.

Respondents submitted further that another ground upon which the fallacy in the argument of the Appellants becomes more obvious with respect to the issue whether the 1st Respondent participated in all the stages of the election is that it is parties that contest elections and not candidates who are just mere standard bearers of their political parties.

On this score, the Respondents referred to Section 221 of the Constitution and the judgment of the Supreme Court per Oguntade JSC in Amaechi Vs INEC (2008) 5 NWLR (part 1080) 227 at 317 – 318 to the effect that the primary method of contest for elective offices is between parties.

That candidate may change in an election but the parties do not and that in reality in consonance with Section 221 of the Constitution “it is his party that has won the election”.

The Respondents also referred to the recent decision of the Supreme Court in the case of Agbaje vs Ambode

(2016) 4 NWLR (part 1501) 151 at 166 and submitted that the Supreme Court felt bound in that case by the logic of the decision in Amaechi’s case and therefore reiterated the position of the law to the effect that no individual candidate can contest an election without its political party and votes cast thereat belong to the party.

The Respondents submitted that in the circumstances it is clear that the votes cast for APC during the November 21 election cannot be buried with Abubakar Audu but enured to the benefit of the party that sponsored him. it is also the law that at the death of Abubakar Audu APC had the right to substitute him and that by Section 33 of the Electoral Act, 2010 a political party shall substitute its candidate only upon withdrawal by the candidate or death.

It was further submitted on behalf of the Respondents that the cases of Ombugudu Vs CPC (supra) and Eligwe Vs Okpokiri (supra) cited by the Appellants are distinguishable from the facts of the instant case. That the two cases are concerned with petitioner’s who have not participated in all the stages of an election and forbids the Tribunal or Court from declaring such a

person as winner. The cases are therefore supportive of the position of the 2nd Respondent and not the Appellants who are asking to be declared winner of the election as Section 141 is against the Appellants in this regard. Finally on this score the Respondents submitted that the 1st Respondent participated in the entire election from the beginning based on participation and accrued interest of his political party.

RESOLUTION OF ISSUE THREE

Appellants issue three could be considered from the point of view of the pleadings, the evidence, the circumstances as well as the position of the law on the ensuing issues of facts. For example, it is not in dispute between the parties that INEC the electoral body asked the 2nd Respondent to substitute its candidate on the death of Prince Abubakar Audu even as it declared the gubernatorial election in Kogi State inconclusive.

Meanwhile, none of the parties ever challenged the decision of INEC, the electoral body which asked the 2nd Respondent to substitute its candidate in the election.

?The decision of INEC to substitute the candidate of the 2nd Respondent rightly or wrongly was the beginning of the

legal conundrum which culminated into this appeal. The real question in this issue is whether the ensuing factual circumstances could be sustained by the law.

The Appellants insisted that it was wrong to merge the 240,867 votes of the late Prince Abubakar Audu who was hitherto candidate of the 2nd Respondent to the 6,885 votes scored by the 1st Respondent in declaring the 1st Respondent the winner in the election. They argued that votes are meant for candidates and not political parties and that the decision of the Tribunal was in breach of Sections 179 and 221 of the 1999 Constitution (as amended) as well as Sections 69 and 141 of the Electoral Act 2010 (as amended). By the Constitutional provisions on the ground that the votes enure only in favour of particular candidates and not the parties and by Section 141 of the Electoral Act that the 1st Respondent did not fully participate in all the stages of the election.

?The Respondents on the other hand insisted that Section 33 of the Electoral Act provides a valid window of substitution of candidate consequent on the withdrawal or death of a candidate without any time limit as contained in Section 36 of

the Electoral Act.

That Section 221 of the Constitution of the FRN 1999 (as amended) indeed makes it clear that votes cast at elections belong to the political parties that sponsored candidates and that it was in the spirit of Section 221 of the Constitution that the Supreme Court decided the landmark case of Amaechi vs INEC (2008) 5 NWLR (part 1080) 227 at 317 – 318 and the recent decision in the case of Agbaje vs Ambode (2016) 4 NWLR (part 1501) 151 at 166.

The Respondents contended further that the provision of Section 147 of the Electoral Act is not applicable to the facts and circumstances of the present case. This according to them is not just because of the window of substitution under Section 33 of the Electoral Act but also because they as Respondents in the Tribunal and in this Court are not seeking any order to be declared winner of the election.

?In the instant case I do agree with the Respondents that the provision of Section 33 of the Electoral Act 2010 (as amended) indeed provides a window for substitution on the death of the then gubernatorial candidate of the APC and that the choice of the 1st Respondent as substitute candidate

not only belongs to the 2nd Respondent but also constitutes an intra-party matter of the 2nd Respondent.

Furthermore and in relation to Section 141 of the Electoral Act the decision of the Supreme Court in the case of Jev. Vs Iyortom (2015) LPELR – 24420 (SC) page 22. Supported the Respondents case to the extent that the provision of Section 141 is directed at an Election Tribunal or Court engaged in the hearing and determination of election petitions arising from elections conducted by INEC. Indeed it is the Tribunal that cannot declare winner a petitioner who is seeking a declaration as winner if he had not participated in all the stages of the election.

The Section is not directed at a Respondent who is not seeking any such order having been declared winner by INEC.

The next important point to consider here is who owns the votes?

Learned senior counsel for the Appellants strenuously canvassed the position that only the word ‘candidate’ was used and is relevant to the exclusion of the words.

‘Political party’ in Section 179 of the 1999 Constitution and in Section 69 of the Electoral Act. Also that even though Section 221 of the

Constitution recognizes that votes can only be canvassed by political parties the votes would only enure in favour of the candidate.

In this respect, the Respondents rightly in my view held on to the judicial interpretation of the same Section 221 of the Constitution in the cases of Amaechi Vs INEC (supra) and Agbaje Vs Ambode (supra) that “without a political Party, a candidate cannot contest. The primary method of contest for elective offices is therefore between parties. If as provided in Section 221 of the Constitution it is only a party that canvasses for votes, it follows that it is a party that wins an election. Whereas candidate may change in an election but the parties do not.

It is within reason and contemplation of Section 221 of the Constitution therefore that Section 44 of the Electoral Act 2010 (as amended) has mandatorily prescribed that the format of ballot papers shall include the symbol adopted by the political party……”.

The Tribunal was therefore right when it held at pages 3758 – 3760 Vol. V of the printed record as follows:

“It is true that the political party that canvasses for votes through the instrumentality

of its candidate.

It is not in any doubt that the 1st Respondent was sponsored for the 05/12/2015 election by the 2nd respondent within meaning of Section 31 (1) of the Electoral Act, and equally that the late prince Audu was sponsored by APC, the 2nd Respondent.

Also pertinent is the fact that the ballot paper used for the election contains the names of only political parties and their logos and not the name of candidates.

It is therefore safe to conclude that the votes of 240,867 scored by Prince Audu in the 21/11/2015 election belongs to the APC (2nd Respondent) on whose Platform the votes were secured as well as the 6885 votes scored by the 1st respondent in the Supplementary election of 5/12/2015, hence making a total number of votes to be 242,782 against 204,877 scored by PDP through Captain Idris Wada in both the 21/11/2015 and 5/12/2015 election.

There is therefore no doubt in the mind of this Tribunal that the 3rd respondent was legally in order in collating the votes of the late prince Audu in the inconclusive election and merging same with that of the 1st respondent to arrive at the total votes scored for the 2nd respondent APC.

There is equally no doubt in the mind of this Tribunal that the total number of 247,782 scored by APC through its candidate Yahaya Bello as against the 204,877 scores by the PDP through its candidate captain wada, belong to APC and PDP respectively.

To that end it is considered view of the Tribunal that the 1st respondent was qualified to contest in the election to the office of governor of Kogi State and returned as duly elected as done in the instant case and we so hold.”

Indeed in civil matters (including Election matters)

“Substitution of a party simply means a designation of a person or thing to take the place of another or thing. It is the process by which one person or thing takes the place of another person or thing etc.”

See Black’s Law Dictionary page 147, UGWU V. ARARUME (2007)12 NWLR (pt. 1048) 365, A-G ANAMBRA V. A-G FED. (1993) 6 NWLR (Pt.302) 692.

?The authorities are agreed that in every situation on where there is a substitution the party being brought in inherits all rights privileges, liabilities and encumbrances accumulated or accomplished by the previous representative.

See also,MOON v. ANTHERTON. (1972)

& QB 432 at 441 (pp Denning LJ). OPEBI v. OSHOBOJA 9-10 SC 195.

Clearly, therefore the 1st Respondent participated in the entire election from the beginning based on participated and accrued interests of his political party, the 2nd Respondent. Issue three is resolved against the Appellant.

ISSUE FOUR

Learned Senior Counsel for the Appellants submitted that in their respective Replies to the petition of the Appellants, each of the three Respondents incorporated Preliminary Objections therein. In addition that each of the three Respondents filed Notices of Preliminary objections and/or Motions challenging the petition in limine.

He submitted that the main thrust of the Preliminary Objections and/or motions were that the Appellants did not have the locus standi to maintain the Petition on the pre that the issues raised bothered on internal affairs of the 2nd Respondent and that the Tribunal did not have the jurisdiction to entertain the petition.

?The Tribunal, said counsel, upheld the preliminary objections of the Respondents in Part and came to the conclusion that the complaint of the Appellants regarding the nomination of the

1st Respondent which borders on his qualification to contest the election cannot be said not to be within the internal affairs. That the Tribunal premised its decision on the ground that the Appellants who are not members of the 2nd Respondent and who did not participate in the party primaries organized by the 2nd Respondent for the choice of its gubernatorial candidate in respect of the election of 21st November, 2015 and 5th December, 2015 lacks the locus standi to challenge the nomination, sponsorship and substitution of the late gubernatorial candidate of the 2nd Respondent with the 1st Respondent.

Counsel submitted that the main thrust of the Appellants petition was a direct challenge on the qualification of the 1st Respondent to contest governorship election in Kogi State particularly having not personally nominated a running mate for the said election as required by Section 187 (1) of the Constitution and having not participated in all the stages of the said election as required by Section 141 of the Electoral Act 2010 (as amended).

?That the said issue of qualification to contest election was by no means an internal affair of the 2nd

Respondent but a matter of Constitutional disqualification. That the issue of qualification to contest the election is one of the recognized grounds for maintaining an Election petition under Section 138 (1) (a) of the Electoral Act. Thus, the complaint of the Appellant regarding the non-qualification of the 1st Respondent to contest the Kogi State Governorship Election falls squarely within the purview of Section 138 (1) (a) of the Electoral Act.

?Learned Senior Counsel for the Appellants also complained that the Tribunal further held in respect of Respondents preliminary objections.

1. That the grounds of the petition of the Appellants as couched were not supported by relevant pleadings/facts and as such vague and raise no reasonable cause of action.

2. That Paragraphs 67 (b) (c) (d) (e) (f) (b) and (k) of the Petition border on internal affair of political party hence non-justiciable and that the ground of non-compliance with the Electoral Act as raised by the Appellant in paragraph 67 of the petition has not been proved.

3. That the Preliminary objection of the Respondents to the effect that the Appellants did not plead facts in support of

their Ground A of the petition, that is to say, that the 1st Respondent did not secure the majority of lawful votes.

4. That Ground B of the Petition which dealt with non qualification of the 1st Respondent was not supported by facts relevant to qualification.

On (1) above, Learned Senior Counsel for the Appellants submitted that the Petition was predicated on three (3) grounds in the framed alternative. That the Appellants isolate each of the three grounds under separate heads with corresponding issues or averments relevant to each ground. Ground A bordering on majority of lawful votes, Ground B bordering on the qualification of the 1st Respondent to contest the election and Ground C of the Petition which centres on non-compliance with the provisions of the Electoral Act, 2010 (as Amended). He submitted that contrary to the holding of the Tribunal, the Grounds of the Petition are undisputedly supported by relevant pleadings and facts in the Petition.

On (2) above, Appellants submitted that issues raised in Paragraphs 67 (b) (c) (d) (e) (f) (h) and (k) of the Petition relate to Respondents non-compliance with several Sections of the Electoral Act

2010. That the Appellants led sufficient evidence in support of the said sub-paragraphs of Paragraph 67 of the Petition on non-compliance with the Electoral Act, 2010 (as Amended). That the acts of non-compliance with several provisions of the Electoral Act as pleaded and proved by the Appellants transcend the internal affairs of the 2nd Respondent. It follows, that the acts of non-compliance in question are justiciable. Also, that the decision of the Tribunal in considering the Preliminary Objection that Paragraphs 67 (b) (c) (d) (e) (f) (h) and (k) had not been proved was a Pre-determination of the case at the preliminary stage.

?Counsel submitted further that in interpreting and applying Paragraph 4 (1) (a) of the First Schedule to the Electoral Act, 2010 (as Amended) vis-a- vis paragraph 7 of the petition, the Tribunal at page 3665 of the Record came to the conclusion that the conclusion that the description of the 1st Respondent as a stranger in Paragraph 7 of the Petition meant that he is an unknown party to the Petition. That Paragraph 4 (1) (a) of the First Schedule to the Electoral Act, 2010 (as Amended) only requires that an Election Petition

shall specify the parties interested in the Election Petition. Paragraphs 7 and 10 of the Petition, when taken together, sufficiently meet the requirements of Paragraph 4 (1) (a) of the First Schedule to the Electoral Act 2010 (as Amended).

In essence, said counsel, the 1st Respondent was properly, appropriately and legitimately described in Paragraphs 7 and 10 of the Petition, given the peculiarity and novelty of this case. The Tribunal, according to counsel, was therefore wrong in its interpretation and application of the provisions of Paragraph 4 (1) (a) of the First Schedule to the Electoral Act 2010 (as Amended) vis-a-vis paragraph 7 of the Petition.

?On (3) above, the Appellants submitted that the unlawful combination of votes cast for a dead candidate with those of a living candidate in order to return the 1st Respondent as elected Governor of Kogi State is an abomination which tainted the votes with illegality and which has no constitutional, statutory and judicial backing. The totality of the facts pleaded by the Appellant in respect of Ground A of the Petition was that the 1st Respondent who only participated in the supplementary election of 5th

December, 2015 and received 6,885 votes did not and could not have secured majority of lawful votes cast in comparison to the 204, 877 votes secured by the 1st Appellant. The Tribunal, said counsel, found as a fact that the 1st Respondent did not participate in the election of 21st November, 2015, it ought not to have considered the facts in support of Ground A at the Preliminary stage when the same facts were germane in the final determination of the substantive petition.

On (4) above Appellants counsel submitted that the summary of the facts in Ground B is that having failed to personally nominate a running mate in the election in compliance with the special provision in Section 187(1) of the Constitution (supra), the 1st Respondent was not qualified to contest the election. This was a central issue for determination in the main Petition and the Tribunal, said counsel, ought to have considered same in the final determination of the substantive petition.

?The Respondents submitted on issue Four that Tribunal was right when it upheld the preliminary objection of the Respondents on the ground that the Appellants lacks the locus standi to challenge the

nomination, sponsorship and substitution of the 1st Respondent.

They argued that it is trite law that issue of nomination, sponsorship and substitution are Pre-election matters in respect of which the Appellants have no locus standi to make a complaint before the Tribunal more so when the Appellants did not participate in the primary election of the 2nd Respondent and did not claim membership of the 2nd Respondent.

The Respondents submitted that when one takes a proper look at Paragraphs 7,8,11,12,13,14,15,16, 19,21,23,24,25,26,27,28,29,31,32,33,34,36,37,38,39,40,41,42,43,45,47,48,49,50,51,53,54,55,56,57,58,59,62,63,64,65,66 and 67 of the Petition, it is without doubt that the petition obviously and strictly borders on the issue of nomination, sponsorship and substitution of the 1st Respondent as candidate of the 2nd Respondent.

They submitted that principal in this regard is paragraph 7 of the petition where the Appellants asserted as follows:

“The 1st Respondent is a businessman/politician from Kogi State, and is a stranger on the above-said election, and was not a candidate validly nominated by any political party for participation

in the said election.”

That the Appellants in Paragraph 62 of the Petition made issues bordering on Pre-election matters of sponsorship, nomination and substitution of candidates the Principal bases upon which they are challenging the qualification of the 1st Respondent to contest the election and be declared winner.

The Respondents further submitted that in the circumstance of the Appellants pleading in their Petition that the 1st Respondent was not a candidate at the said gubernatorial election, the Appellants have failed to disclose to the Tribunal that they have brought the candidate returned at the election before the Tribunal. Rather that the intention of Section 285 (2) of the 1999 Constitution (as amended) is to rest jurisdiction on the Tribunal over a candidate who took part in an election.

They relied on the cases of UDONFE v. BASSEY (1999) 5 NWLR (Pt. 604) 610, Ibrahim v. Sheriff (2004) 4 NWLR (pt. 892) 43 at 74 to further buttress the fact that the jurisdiction of the Tribunal in election petition can only be ignited by compliance with the provision of Paragraph 4(1)(a) of the First Schedule to the Electoral Act 2010.

?On the

finding of the Tribunal that the facts pleaded by the Appellants in support of each of the three (3) grounds of their petition did not relate or had nexus with the grounds of the petition, the respondents referred to the case of GOYOS v. INEC (No. 2) (2012) 11 NWLR (Pt. 1311) 218 at 230 and submitted that it is settled law that every ground of an election petition must be supported by the relevant facts or particulars duly pleaded. Also, that it is one thing to allege facts in support of the grounds of a petition and it is another thing for the said facts to have any nexus with the grounds of the petition. This, the respondents said is because the grounds that can constitute a petition are statutorily prescribed and the limits of the manner of facts that are relevant to those grounds have also been judicially determined.

On Ground “A” of the petition, the respondents referred to the cases of AWUSE V. ODILI (2005) 16 NWLR (Pt. 952) 416 at 482-485, NWOBODO V. ONOH (1994) 1 SCNLR 1 and OKE v. AGUNBIADE (2011) LPELER ? CA/AK/EPT/HR/5/2011 and submitted that the failure of the appellants to plead the existence of two sets of results from the said election

in their petition, particularly in paragraphs 20-41 thereof in support of the said ground, was fatal to the petition as there was no nexus between the facts in paragraphs 20-41 of the petition and the said Ground A of the petition.

They submitted that the allegations of the appellants in paragraphs 20-41 of the petition that the 1st respondent was not a candidate at the election is clearly not the contemplation of Section 138 (1)(c) of the Electoral Act, 2010 (as amended) and has no nexus whatsoever with the said ground. The effect, according to respondents is that Ground ?A? of the petition had no facts supporting it. They submitted on this score that the Tribunal was therefore right when it found that the said Ground ?A? of the petition was bereft of relevant facts.

?On Ground ‘B’ of the petition, the respondents submitted that the facts as pleaded in paragraphs 42-66 of the record do not relate to the said ground B, have no nexus thereto and are alien to the provision of Section 138(1)(a) of the Electoral Act (as amended). That in fact the facts pleaded in paragraphs 42-66 of the petition relate to the pre-election issues

of nomination and sponsorship of the 1st respondent or nomination of a Deputy Governorship candidate.

Respondents referred to the cases of SHINKAFI v. YARI (2016) 7 NWLR (Pt. 1511) 340 at 378-379 and ALHASSAN & ANOR v. ISHAKU & ORS (2016) LPELR (SC) (consolidated) at 27 and submitted that the ground of non-qualification in Ground “B” (particularly paragraphs 42-66) is not premised on any of the facts as set out in Sections 177 and 182 of the 1999 Constitution as applicable to persons contesting election into the office of Governor of a State.

Also that the allegation that the 1st respondent failed to nominate a running mate is also not one contemplated under Section 138(1) (a) of the Electoral Act.

The Respondents submitted that paragraphs 42-66 of the petition have no nexus whatsoever with ground ‘B’ of the petition that complains about the non-qualification of the 2nd respondent, particularly as none of the facts relied upon by the appellants are well domiciled within the provision of Sections 177 and 182 of the 1999 Constitution. That the Tribunal therefore rightly upheld the objection at page 3666 of Vol. V of the record.

?On

Ground ?C’ of the said petition, respondents submitted that the facts deposed to in paragraphs 67-83 of the petition, do not support the said alternative ground ‘C’ the said facts as deposed in paragraphs 67-83 of the petition relate to, the holding of primaries of the 2nd respondent and the nomination and sponsorship of the 1st respondent; the failure of the 2nd respondent to give 21 days Notice of governorship primaries to the 3rd respondent and there was over voting across 18 Local Government Areas because the total number of votes cast exceeded the persons accredited by the card reader.

The Respondents again referred to the cases of SHINKAFI v. YARI (supra) and ALHASSAN & AN0R. v. ISHAKU & OTHERS (supra) and submitted with respect to the issues of the non-giving of 21 days notice of the 2nd respondent’s primaries to the 3rd respondent, the holding of the said primaries and the nomination and sponsorship of the 1st respondent that the Tribunal lacked jurisdiction to entertain thereon.

?Also that the Tribunal lacked jurisdiction to adjudicate over the facts as set out in paragraphs 67-68 and rightly acclaimed jurisdiction and struck

out the said paragraphs because the said paragraphs 69-83 of the petition are unknown to the Electoral Act and are not in any way connected to the provisions of Section 138(1)(b) of the Electoral Act 2010 which is the basis of the petitioners alternative Ground C of the petition.

On this, the respondents referred to the cases of NYESOM V. PETERSIDE (unreported) SC 1002/2015 delivered on 12th February 2016; GREAT OVEDJE OGBORU (unreported) SC.24/2016 and SC 25/2016 (consolidated) delivered on 15th day of February 2016 at page 34. Also, OGHENETEGA GERMANSON EMERHOR & ANOR V. SENATOR (DR) IFEANYI ARTHUR OKOWA (unreported) SC. 23/2016, 27/2016 add 28/2016 (consolidated) delivered on 15th February 2016 page 23.

They submitted that flowing from the above decisions of the Supreme Court, the facts contained at paragraphs 69-83 of the petition in so far as they are predicated on the purported authentication by the card reader are outside the scope and intendment of Section 138(1)(b) of the Electoral Act 2010 (as amended). The appellants have not predicated their complaint regarding ground ‘C’ of their petition on the voters registers but have limited their

pleadings in that regard to the card reader which is not within the ambit of the Electoral Act 2010.

They (Respondents) submitted that the Tribunal rightly upheld the objection and struck out the said paragraphs of the petition. The respondents noted that the Tribunal DID NOT SAY in any part of its determination of the preliminary objections that

“the ground of non-compliance with the Electoral Act as raised by the Appellants in paragraph 67 of the petition has not been proved.”

That the appellant in a bid to mislead this Court has canvassed the said argument at paragraphs 7.07 – 7.08 of their brief of argument to create an impression that the Tribunal had determined the substantive issue at an interlocutory stage.

They submitted that the resolution of all issues raised by the preliminary objection was concluded at page 69 of the judgment and from page 70 of the judgment the Tribunal proceeded to consider the merits of the petition and no such finding can be seen from pages 1-69 of the judgment (pages 3604 to 3672 of Vol. V of the Record).

?The respondents added that the appellants have not sought and obtained leave of Court before

canvassing the argument at paragraph 7.10 – 7.11 of their brief that the Tribunal ought not to have considered the issue relating to facts in support of the grounds of their petition at the preliminary stage. They (respondents) urged us to affirm the finding of the Tribunal on the preliminary objections.

RESOLUTION OF ISSUE FOUR

Appellants issue four could be resolved on either of two related scores. The first is whether the Tribunal was not right to have dismissed the petition on the ground that the appellant lacked the locus standi to challenge the nomination, sponsorship and substitution of the 1st respondent or on whether the Tribunal was not right in upholding the preliminary objections of the Respondents. These two are related and perhaps inseparable because both questions expose the fundamental defects in the Petition or perhaps the dilemma of the Appellants on the factual circumstances on which they find themselves. In the first place the Appellants are not of the same political party with the 1st Respondent, yet in essence the complaints in their petition border on the nomination, sponsorship and substitution of the 1st Respondent within his

own political Party, the 2nd Respondent. Given this scenario, the first major source of incompetence of the Appellants Petition lies in the trite position of the law that an Election Tribunal has no jurisdiction to inquire into the primaries of a political party ALHASSAN & Anor v. ISHAKU (supra) ADEBUYI v. APC (2015) 2 NWLR (pt. 1441)1 at 22. And the equally trite law that the nomination and sponsorship of a candidate by a political party is not the business of non-members of that party nor the Court or the Election Tribunal, thus it is only a member of the same political party that has a right of action for being wrongly or unlawfully substituted or changed.

see KOLAWOLE v. FOLUNSHO (2009) 8 NWLR (pt. 1143) 338 at 339.

Furthermore, it is trite that a complainant must be an aspirant who participated in the primaries that produced the sponsored candidate see UKACHUKWU v. PDP (2014) 17 NWLR (Pt.1435)134 at 182.

?A second but related form of incompetence of the Appellants Petition arose from the inability of the Appellants to properly and appropriately describe the 1st Respondent as ‘Respondent’ as contemplated by the law. The Petition settled

with the description of the 1st Respondent as a ‘stranger’ who was not validly nominated by any political party for participation in the said election.

The implication of the above description of the 1st Respondent is the failure of the Appellants to ignite the jurisdiction of the Tribunal against an unknown party to the Petition – a description which offends the spirit and intent of the Provision of Paragraph 4 (1) (a) of the First Schedule to the Electoral Act 2010 (as amended) as well as Section 285 (2) of the 1999 Constitution (as amended).

A third and equally related form of incompetence of the Petition is that the case of the Appellants upon which they are challenging the qualification of the 1st Respondent is which is also premised on nomination, sponsorship and substitution of the 1st Respondent by the 2nd Respondent.

Yet it would be recalled that in the leading Judgment of RHODES-VIVOUR JSC in the recent case of AISHA JUMMAI ALHASSAN & Anor V. MR. DARIUS DICKSON ISHAKU SC 46/2016 delivered on Monday the 22nd February, 2016 the Supreme Court maintained that:

?by virtue of the provision of Section 138 (1) (a) of the

Electoral Act a Tribunal?s power to decide whether a person is qualified to contest an election is restricted to establishing the requirements of Section 177 and 182 of the Constitution against the adverse party, An election Tribunal has no jurisdiction to inquire into the primaries of a political party”

Fourthly, it is trite that every ground of an election petition must be supported by the relevant facts or particulars duly pleaded.

See GOYOL V. INEC(No.2) (Supra).

?In relation to Ground A of the Petition, the Appellants failed to plead the existence of two sets of results from the said election in their petition, particularly in paragraphs 20-41 thereof in support of the said ground. Again, the allegations in paragraphs 20-41 of the Petition that the 1st Respondent was not a candidate at the election is not in contemplation of Section 138 (1) (c) of the Electoral Act, 2010 (as amended). By these, the Tribunal was right to have found that there was no nexus between the facts and paragraphs 20-41 of the petition and the said Ground A of the petition to wit ‘That the 1st Respondent was not elected by the majority of lawful votes cast

at the election.

On Ground B, the Respondents were right to say that the facts pleaded in paragraph 42-66 of the Petition as purportedly supporting the said ground B of the petition do not relate and do not have any nexus to the ground as they are alien to the provisions of Section 138 (1) (a) of the Electoral Act 2010 (as amended).

It is clear from the petition, particularly ground ‘B’ thereof and Paragraphs 42-66 of the Petition following, that the said ground of non-qualification is not premised on any of the facts as set out in Section 177 and 182 of the 1999 Constitution as applicable to persons contesting election into the office of Governor of a State.

So it is that the allegation that the 1st Respondent failed to nominate a running mate is also not one contemplated under Section 138 (1) (a) of the Electoral Act.

See again, ALHASSAN & Another v. ISIYAKU & Ors (supra)

?Finally on this issue I do agree with the Respondents that the facts relating to Ground ‘C’ do not support the said Ground ‘C’ as again they relate in substance to holding of primaries of the 2nd Respondent and the nomination and sponsorship of the 1st

Respondent.

In conclusion, the Tribunal was right to hold that the Appellants lacked the locus standi to challenge the nomination, sponsorship and substitution of the 1st Respondent and was equally right to have upheld the Preliminary Objection of the Respondents. Issue Four is resolved against the Appellants.

ISSUE FIVE AND SIX

Learned Senior Counsel for the Appellants reminded us that the Appellants in their Petition presented a third ground on which the return of the 1st Respondent was challenged which was that the election of the 1st Respondent was invalid by reason of non-compliance with the provisions of the Electoral Act 2010 (as amended). That several acts of non-compliance were set out in the Petition which spanned from paragraphs 67-81 of the petition. Appellants counsel submitted that the Tribunal held that the compliant of non-compliance had not been made out by the Appellants. He referred to the case of HON. BASHIR ADEYELA v. OLAJIDE ADEYEYE & Ors (2010) LPELR – 3618 (CA) for the definition of non-compliance. He submitted that the Appellants led un-contradicted evidence to show that the 3rd Respondent failed in several aspects to

comply with the Electoral Laws, which non-compliance substantially affected the outcome of the election.

Appellants categorized the replacement of late prince Abubakar Audu with the 1st Respondent and the transfer of Audu?s vote to the 1st Respondent as acts of non-compliance. Another act of non-compliance according to the Appellants was the declaration of the 1st Respondent who did not participate in all the stages of the election as returned by the 3rd Respondent contrary to the provision of Section 141 of the Electoral Act 2010 (as amended).

With respect to irregularities in the conduct of the election, the Appellants submitted that they called an expert witness (PW2). But, that surprisingly the Tribunal rejected the evidence of pW2 as well as Exhibits P41 and P42 on ground of hearsay.

Appellants submitted that having personally testified on what he did and giving ample evidence of his qualification and specialized knowledge of prescriptive statistical analysis, the evidence of PW2 ought to have been utilized by the Tribunal.

He referred to the cases of ANPP v. USMAN (2008) 12 NWLR (Pt.1100) 1 at 72 and OWALE v. SHELL Petroleum

Development Company Ltd (1987) NWLR (pt.480) 148 at 183.

He submitted that the Respondents did not call any expert to challenge the testimony of PW2 but that the Tribunal found that because PW2 did not participate in the collation process on the day of election, his evidence was hearsay. Counsel referred to the cases of NGIGE V. OBI (2006) 14 NWLR (pt. 999).

I and JOHN EBEH UZU & Anor v. ANTHONY IKECHUKWU OGBU & ORS (2012) LPELR – 9775 (CA) and submitted that in an election petition, once electoral forms are tendered, the Tribunal or Court is enjoined to scrutinize them to determine the case without specifically calling any witness.

He submitted that the Tribunal also held incorrectly that the Appellants did not link the documents tendered with the area challenged.

He submitted that none of the Respondents produced any form of evidence whether oral or documentary to contradict the evidence of PW2 or Exhibits P41 and P42 for that matter despite the fact that they all participated in the inspection.

?On issue 5, counsel concluded that the Appellants having led credible evidence in support of their case and called evidence of an

expert, the failure of the Respondent to call rebuttal evidence meant the appellants had discharged their burden and proved their case.

By issue six, Appellants submitted that the Tribunal needlessly resorted to speculation and unnecessarily descended into the arena of conflict and ended up not resolving vital issues in contention between the parties. That no attempt was made to evaluate the evidence of PW2 and the documents tendered. That the judgment is against the weight of evidence and is perverse.

He urged that the issue be resolved in favour of the Appellants.

The Respondents submitted on Appellants issues five and six that the Tribunal was right when it held that the Appellants failed to prove non-compliance with the provisions of the Constitution and Electoral Act. They referred to the case of AWUSE V. ODILI (2005) 16 NWLR (Pt.952) 416 at 503-504 and submitted that the decision was based on the elementary principle of law that the burden is on him who asserts to adduce evidence in proof of that asserted.

?They (Respondents) submitted that Ground 3 of the petition is to the effect that the election was invalid by reason of

non-compliance with the provisions of the Electoral Act. However, that the Appellants made nonsense of the Petition when in paragraph 67 they detailed out issues of invalid nomination, sponsorship substitution as the grounds of non-compliance with the Electoral Act.

The Appellants also in Paragraph 73 made a mixture of allegations relating to over-voting, votes being in excess of permanent voters cards (PVC) PVC’s being in excess of registered voters alteration on certified true copies of result sheets not on duplicate copies given to polling agents.

?That in purported proof of these allegations, the Appellants called only PW1 and PW2 and tendered several bundles of documents. The Respondents submitted that the testimonies of PW1 and Pw2 relating to invalid nomination or substitution of the 1st Respondent paled into insignificance because they are not members of the 2nd Respondent neither did they participate in the primary election of the party (APC) to enjoy locus standi to challenge the result based on this. The only ground upon which the Appellants could challenge nomination of the 1st Respondent is under Section 138 (1) (d) of the Electoral Act

by complaining that they were validly nominated but unlawfully excluded. But this is not available to the Appellants.

Furthermore, said the Respondents, All the electoral documents tendered by the Appellants were dumped on the Tribunal as no competent witness testified with respect thereto. No witness, present at the various polling units where the Appellants were alleging over voting or any other form of substantial non-compliance came out to testify orally or on the documents as required by the extant electoral laws.

They submitted that to prove such allegations, it is necessary for the Appellants to demonstrate what constitutes the malpractices, irregularities and manipulations. But, that the Appellants have only tendered forms EC8A and voters registers for thousands of polling units across the Local Government Areas in bundles without relating same to the various parts of their cases, without narrating or giving evidence of how the documents affected the scores of the parties or how the documents relate to the various parts of the petition.

?They (Respondents) referred to the case of EDE v. INEC (2012) LPELR 8369 (CA) pp. 17-18 BABAN-LUNGU

v. ZAREWA’ (2013) LPELR – 20726 pages 43-46 to the effect that documents dumped on Tribunals or Courts are useless in evidence.

It was further submitted for the Respondents that what is required of the Appellants is to call witnesses who can testify in relation to the facts pleaded and showing the anomalies contained in any of the forms EC8A which would establish their allegations.

The Respondents also pointed out the need to call makers of documents to tender them and to give evidence. As regards the duplicate copies of EC8A’s, they argued it was indisputable that those documents were not tendered through their makers. That neither PW1, PW2 nor PW3 was a polling agent who signed the documents. They all admitted that they were not only present in their polling unit on the day of the election but that they were in their respective polling units from morning till evening on the day of election. They did not join in the execution of the documents. They definitely were not the makers of the documents and none of the polling agents of the 3rd Petitioner who signed the documents was called to testify in relation thereto.

?On this, the Respondents

referred to the case of MIMASA v. ITENSMOR (Nig.) Ltd. (2015) 5 NWLR (Pt.1452) 278 at 312-313.

The Respondents then referred to the case of ABUBAKAR v. YAR?ADUA (2008) 19 NWLR (pt.1120) 1 at 155 and UCHA v. ELECHI (2012)13 NWLR (Pt.1317) 330 at 363 to demonstrate that a Petitioner who alleges non-compliance with the provisions of the Electoral Act has a duty not only to prove the non-compliance but also that the irregularity or unlawfulness substantially affected the results of the election. And that in election Petition trials, the standard of proof is beyond reasonable ground where the Petition is brought on grounds of a criminal nature.

They added that even when the Petition is purely of a civil nature, it must succeed on its own strength and not on the weakness of the opponent’s case.

The Respondents noted in relation to PW2 that from his depositions and the challenged evidence in Court on cross-examination, his evidence his bereft of ideas as an expert as his evidence have been controverted thus exhibits P41 and P42 are of no evidential value.

On this, they referred to the cases of ADELEKUN v. ORUBU (2006). ALL FWLR (Pt.308)1360

at 1373, NGIGE v. OBI (2006) ALL FWLR (Pt. 330) 1041 at 1123-1124.

RESOLUTION OF ISSUES FIVE AND SIX

It seems to me that two important but common factors militated against the case of the Appellants in the proof of alleged non-compliance with the provisions of the Electoral Act.

The first is the need to call witnesses who have first hand knowledge of that which they testify to. Such a witness must in other words be a witness who saw or heard or took part in the transaction upon which he was giving evidence. For where a witness gives an account of information which is not within his personal knowledge he would not be accredited as a competent witness See GUNDIRI v. NYAKO (2014) 2 NWLR (pt. 1391) 211 at 240 ACN V. NYAKO (2012)12 SCM (pt.3) 345.

In the instant case neither pw1, pw2 nor pw3 was a polling agent who signed the documents. They all admitted that they were not only present in their polling unit on the day of election, they further testified that they were in their respective polling units from morning till evening on the day of election. They did not join in the execution of the documents tendered in evidence. They definitely were not

makers of the documents and none of the polling agents or the 3rd Respondent who signed the documents were called to testify in relation thereto.

The testimonies of PW1, PW2 and PW3 in relation to the said documents are nothing but hearsay as they were not the makers of the documents and there was no explanation as to why the makers of the documents were not called.

The trial Tribunal was right in the circumstances not to accord any probative value on this account to the testimonies of PW1, PW2 and PW3. See HARUNA v. MODIBBO (2004)16 NWLR (pt.900) 487 at 544-545. ABDULMALIK v. TIJANI (2012) 7 NWLR (Pt.1298) 24 at 47. NIMASA v. HENSMOR (Nig.) Ltd. (2015) 5 NWLR (Pt.1452) 278 at 312-313. Apart from the irrelevant testimonies of PW1 and PW2, the second major pitfall in the Appellants case on the proof of alleged non-compliance with the provisions of the Electoral Act is the undeniable fact that the document tendered by Appellants were merely dumped on the Tribunal without any attempt to link or tie the documents with various aspects of the pleadings in the Petition.

?Perhaps the Courts have said for the umpteenth time that documents must not

only be tendered but should be related specifically to areas of complaint through witnesses. This is because it is an established principle of law that documentary evidence cannot serve any useful purpose in a trial where there is no oral evidence led by any of the parties explaining its essence.

See. ADIKE v. OBIARERI (2002) 4 NWLR (Pt.758) 537 pages 572-573. INEC v. ABUBAKAR & Anor (2009) 1 NWLR (Pt.143) 259 at 294. PDP v. INEC (2012) LPELR – 8369 (CA) PP. 17-18. BABAN – LUNGU V. ZAREWA (2013) LPELR – 20726 pages 43-46. UCHA v. ELECHI (2012) 13 NWLR (pt.1317)330 at 360.

The reason for this position of the law as was long explained in the case of DURUMINIYA v. COMMISSIONER OF POLICE (1961) NWLR 70 at 74 is that a trial is not an investigation and investigation is not the function of a Court. The function of a Judge is to decide between the parties on the basis of what has been demonstrated and tested by examination and cross-examination of the witness.

The Court in the DURUMINIYA CASE went on to say that:

“It is not part of his duty to do cloistered justice by making an enquiry into the case outside Court not even by

the examination of documents which were in evidence, when the documents had not been examined in Court and the Magistrate?s examination disclosed things that had not been brought out and exposed to test in Court, or were not things that at least, must have been noticed in Court”

The above ……… was approved by the Supreme Court in The QUEEN v. WILCOX (1961) SCMLR 296 and later applied in BORNU HOLDING CO. LTD v. BOGOCO (1971) 1 all NLR 324 ADESOYE v. GARDNER (1977) NWLR 136 and ONIBUDO v. AKIBU (1952) 12 NSCC 199.

Subsequent decisions acknowledged the fact that the Principle evolved by the above mentioned cases underscores the distinction between producing evidence at trial the contents of which must be brought by oral evidence that is subjected to Cross-examination and dumping a document on proceedings without examining the contents in open Court. see: ADIKE v. OBIARERI (supra) BABAN – LUNGU v. AREWA (Supra).

?In the instant case, notwithstanding the fact that forms EC8A and voters registers tendered by the Appellants were administered without objection from the Respondents, the law is clear that the Appellants ought to have

related each document to specific parts of their pleadings by which they are challenging the validity of the election. The Tribunal was right when it held at page 3768 vol. v. of the record

” In an allegation of non-compliance with the provisions of the Constitution and the Electoral Act as in the instance case the Petitioners are expected to link the various documents tendered with the various areas in which there are challenges as it is not for the Tribunal to do so; that we must say is lacking in the given case”.

As for the Appellants expert witness PW2 the Tribunal rightly found him wanting in his expertise or perhaps to say that he could not do more than the Tribunal itself could do.

In any event, the evidence of an expert as a matter of law is only a part of the evidence a Tribunal or Court will need to appraise and test other documents and evidence surrounding the case to arrive at a decision.

The Tribunal observed copiously and rightly too on the testimony of PW2. (Pages 3761-3767, vol. V. Record of Appeal).

This Tribunal will briefly observe on the exhibits 41 and 42 and the evidence of PW2 being the expert/statistician

invited to give evidence and to tender the said report by the Petitioners. This Tribunal notes that the witness admitted under cross-examination that part of his report is a replica of some paragraphs of the petition. If this Tribunal may ask who copied who whence

Then is the expertise?

…

From the depositions of pw2 and the challenged evidence in Court on cross-examination, we find his evidence bereft of ideas as an expert as his evidence have been controverted, thus exhibits P41 and 42 are of no evidential value to this case See ADELEKUN V. ORUBU (2006) ALL FWLR (Pt. 308)1360 at 1373 paragraphs A-G, NGIGE V. OBI (2006) ALL FWLR (Pt.336)1041 at 1123-1124 Paragraphs G-A.”

Finally, in relation to issues five and six, the Appellants must be reminded that it is settled law that a Petitioner who alleges non-compliance with the provisions of the Electoral Act has a duty not only to prove the non-compliance but also the substantiality of the non-compliance in relation to the results declared.

?In other words, non-compliance with the provisions of the Electoral Act without more is not sufficient to invalidate an election. It follows that where

insufficient facts or none at all are pleaded to establish substantial effect of the non-compliance with the provisions of the Electoral Act on the result of the election as in the instant case, no reasonable cause of action has been made out.

See OJUKWU v. YAR’ADUA (2008) 4 NWLR (pt.1078) 435 at PP 458-459.

BUHARI v. OBASANJO (2005) 2 NWLR (pt.910) 241.

YUSUF v. OBASANJO (2005) 18 NWLR (pt.956) 96.

Furthermore, in the case of UCHA v. ELECHI (2012)13 NWLR (Pt.1317) 330 at 363, the Supreme Court held that where allegations contained in a petition are brought on grounds of criminality the standard of proof is beyond reasonable doubt.

In the instant case, the Tribunal noted at page 3671 Vol.V. of the Record that

“On the Petitioners’ ground C of non-compliance which supporting facts are as contained in Paragraphs 67-80, the Tribunal notes that the facts therein arises amongst other acts of criminal nature or corrupt practices particularly at paragraphs 74-80 which facts they alleged dogged the success of the election.”

And at page 3764 of the same volume five of the record held that:

“On the contention that the petitioners

have by their pleadings alleged electoral malpractice, some of which acts amounts to criminal allegations, it is trite that in an election petition where the Petitioner makes commission of a crime a ground or particulars of his petition, the burden on the Petitioner is to prove the allegations beyond reasonable doubt where he fails to discharge the burden the petition with fail.”

I do agree with the trial Tribunal and the Respondents in this appeal that the Appellant failed to prove the alleged non compliance with the provisions of the Constitution and the Electoral Act contained in their petition.

Issues five and six are accordingly resolved against the Appellants.

In this appeal the Appellants formulated six (6) issues for determination, having resolved the six (6) issues against the Appellants, the appeal lacks merit and it is accordingly dismissed.

Parties are to bear their respective costs.

Other Citations: (2016)LCN/8971(CA)

Captain Idris Ichalla Wada & Ors V. Yahaya Bello & Ors (2016) LLJR-CA

Captain Idris Ichalla Wada & Ors V. Yahaya Bello & Ors (2016)

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