Hon. James Abiodun Faleke Vs Independent National Electoral Commission (Inec) & Anor (2016)

LAWGLOBAL HUB Lead Judgment Report

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, JSC

This appeal was heard on Tuesday 20TH September 2016. On that day I dismissed the appeal and promised to give my reasons for doing so today. Facts: In preparation for the Kogi State Governorship Election scheduled for 21st November 2015, the All Progressives Congress (APC) held primary elections on 29th August 2015 to choose its flag bearer. Several members of the party, including the late Prince Abubakar Audu and the 2nd respondent, Yahaya Bello, contested the said primary whereat the late Prince Audu emerged the winner while the 2nd respondent came second. The appellant herein did not take part in the primary election. Having won the primary election, the late Prince Audu nominated the appellant, Hon. Abiodun Faleke as his running mate and both names were submitted to the Independent National Electoral Commission (INEC), the 1st respondent herein, by the APC as its candidates for the Governorship Election. The election was held as scheduled on 21/11/2015. At the close of the polls, the late Prince Audu/Faleke ticket was leading with 240,867 votes while the Peoples Democratic Party (PDP) was in second place with 199,248 votes. However, as a result of certain electoral malpractices discovered to have occurred in 91 polling units, the 1ST respondent, relying on its Manual for Election Officials (updated version) by a Public Notice issued on 22nd November 2016 declared the results of the election inconclusive on the ground that the total number of registered voters in the disputed 91 polling units where elections had been cancelled, which was 49,953, exceeded the margin of votes between the APC and the PDP, which was 41,353 votes and could therefore affect the final outcome of the election. Unfortunately, Prince Abubakar Audu passed on, on 22nd November 2015 before the conduct of the supplementary election. The news of his demise was communicated to the 1st respondent (INEC) vide a letter dated 23rd November 2015 (Exhibit R2-(4). By a letter dated 24th November 2015 (Exhibit R1-(5), the 1st respondent requested the APC to substitute the deceased with a suitably qualified candidate. The APC substituted the deceased with the 2nd respondent, Yahaya Bello, who had come second in the party’s primaries and notified the 1st respondent accordingly. The supplementary election took place on 5th December 2015 in the 91 polling units. The APC, with the 2nd respondent as its new candidate, scored 6,885 votes as against 5,363 votes scored by the PDP, its closest rival. The votes were added to the votes earlier scored by the respective parties on 21st November 2015 and the 2nd respondent was declared the winner of the election and returned as the duly elected Governor of Kogi State. However, before the conduct of the supplementary election and upon the declaration by the 1st respondent that the election was inconclusive, followed by the death of Prince Audu, the appellant instituted an action before the Federal High Court in Suit No. FHC/ABJ/CS/977/2015 vide an originating summons seeking an interpretation of Sections 1(2), 179(2) (a) & (b) and 181 of the 1999 Constitution (as amended). He also sought the setting aside of the declaration of the 1st respondent that the election of 21st November 2015 was inconclusive and an order directing the 1st respondent to make a return on the already concluded Governorship Election. His contention was that the joint ticket of late Prince Audu and himself having scored 240,867 votes, which constituted a majority of the lawful votes cast and also constituted one quarter of the votes cast in each of the 21 Local Government Areas of the State, by virtue of Section 179(2) (a) & (b) of the 1999 Constitution (as amended), the election was concluded and the late Prince Audu and himself were deemed to have been duly elected. It was also his contention that by virtue of Section 181 (1) of the Constitution, he was entitled to step into the shoes of late Prince Audu as the Governor elect. The suit was however struck out upon successful objections thereto by the respondents on the ground that by virtue of Section 285 of the Constitution, only an Election Petition Tribunal had the jurisdiction to look into his complaints.

As stated above, the supplementary election subsequently took place on 5th December 2015 and the 2nd respondent was declared the winner. He was accordingly issued with a certificate of return on 7th December 2015.

Being dissatisfied with the return of the 2nd respondent by the 1st respondent, the appellant filed a petition before the Kogi State Governorship and State Houses of Assembly Election Tribunal on 21st December 2015. The petition was anchored mainly on the construction of Sections 179(2) and 181(1) of the Constitution. The respondents again raised preliminary objections to the competence of the petition. The lower Tribunal took the objections along with the petition. At the conclusion of the trial, and after considering the respective written addresses of learned counsel, the Tribunal in a considered judgment delivered on 6th June 2016 upheld the preliminary objections. However, not being the final court and in accordance with established practice, the Tribunal proceeded to consider the petition on its merits in the event that it was found to have erred in sustaining the objections. It found that the petition lacked merit and dismissed it accordingly.

Being dissatisfied with the judgment, the appellant appealed to the Court of Appeal, Abuja Division. In a considered judgment delivered on 4th August 2016, the lower court dismissed the appeal. The appellant is still dissatisfied and has further appealed to this court vide his Notice of Appeal dated 8th August 2016. The part of the decision of the lower court complained of is as follows:

“The entire decision of the lower court except the portions where it found that:

The appellant had the locus standi to file the petition;

The petition was not statute barred;

Where any candidate meets with the requirements of Section 179 (2) of the Constitution of the Federal Republic of Nigeria (1999) (as amended) (1999 Constitution), he should be declared winner and returned as duly elected;

The appellant and Prince Abubakar Audu won one-quarter of votes cast in each of the Local Government Areas of Kogi State and also led the nearest contender, Captain Inuwa Wada;

For the purpose of nomination and contest at an election into the office of Governor of a State in Nigeria, there can be no validly nominated Governorship candidate without a Deputy Governorship candidate; and

Late Prince Abubakar Audu nominated the appellant as Deputy Governor pursuant to Section 187 of the 1999 Constitution in order to validate the former’s candidacy.”

In compliance with the Rules of this court, the parties duly filed and exchanged their respective briefs of argument. At the hearing of the appeal on 20th September 2016, CHIEF WOLE OLANIPEKUN, SAN, CHIEF BOLAJI AYORINDE, SAN DELE ADESINA, SAN and AJ. OWONIKOKO, SAN leading a retinue of other learned counsel adopted and relied on the appellant’s brief filed on 18/8/2016, the appellant’s Reply Brief to 1st respondent’s brief filed on 01/09/2016 and the appellant’s Reply Brief to 2nd respondent’s brief filed on 07/09/2016 and urged the court to allow the appeal. He also made oral submissions in further adumbration of the arguments in the said briefs.

Learned senior counsel for the 1st respondent, DR. ALEX IZINYON, SAN and AHMED RAJ I, SAN leading a team of other learned counsel adopted and relied on the 1st respondent’s brief filed on 26/8/2016 and a separate list of authorities filed the same day. He also addressed the court in oral amplification of the submissions therein.