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.

Learned senior counsel, J.B. DAUDU, SAN and A.M. ALIYU, SAN leading other learned counsel on behalf of the 2nd respondent adopted and relied on the 2nd respondent’s brief filed on 02/09/2016 in urging the court to dismiss the appeal. He also adopted the arguments of DR. IZINYON, SAN for the 1st respondent and made same submissions in further adumbration of his brief.

The appellant had distilled 10 issues for determination in this appeal. The 1st respondent formulated 4 issues while the 2nd respondent also formulated 4 issues.

Appellant’s issues:

Having regard to the specific provisions of Sections 179(2) and 181(1) of the Constitution, relevant provisions of the Electoral Act, 2010, as well as the facts and circumstances of this case, whether the lower court did not fall into serious error by dismissing appellant’s case on the ground that the 1ST respondent never made a return at the election of 21/11/15, as a result of which it agreed that the said election was inconclusive.

(Grounds 9 and 10)

Having regard to the fact that the joint ticket of the late Prince Abubakar Audu and the appellant garnered 240,867 votes at the Kogi Governorship election of November 21, 2015 and also complied with the constitutional requirements of Section 179(2) of the Constitution, whether the said joint ticket was not deemed to have been duly elected as Governor and Deputy Governor respectively. (Grounds 1, 3 and 4)

Considering the facts and circumstances of this case, whether Section 181 of the Constitution does not enure in favour of the appellant.

(Ground 2)

Considering the clear constitutional provisions relating to the due election of a Governor and Deputy Governor, whether the lower court did not fall into serious error by relying on an isolated provision of INEC’s Manual for Election Officials (updated) to affirm and approve of both the 1st respondent and trial tribunal’s declaration of the Governorship election of 21/11/15 as inconclusive. (Grounds 5, 6, 7 and 8)

Having regard to the narrow constitutional and legal issues in the petition, as well as the lower court’s finding that appellant’s case was/is straightforward and undisputed, whether the lower court did not fall into very serious error by later holding that the pleadings of the appellant could not sustain the petition.

(Grounds 15, 31, 34 and 36)

Was the lower court not in error by holding that the 2nd respondent could rightly appropriate the votes cast for the joint ticket of the late Prince Abubakar Audu and the appellant at the Governorship election of 21/11/15.

(Grounds 11, 12 and 13)

Having regard to the very clear provisions of Sections 177, 182 and 187 of the Constitution, read together with relevant provisions of the Electoral Act, as well as the evidence on record, whether the lower court was not wrong in holding that the 2nd respondent was qualified to contest the Governorship election in Kogi State and be returned as Governor of Kogi State.

(Grounds 27, 28, 29, 30, 32, 33, 35, 37 and 39)

Considering the judgment of the Federal High Court (per Kolawole, J) in Suit No. FHC/ABJ/CS/977/2015 delivered on 4/12/15, the clear constitutional and legal issues involved in the petition and the circumstances of the petition, whether the lower court was not wrong by affirming the trial Tribunal’s decision which allowed the respondents’ preliminary objections and further holding that the trial Tribunal lacked jurisdiction to entertain the action. (Grounds 14, 22, 23, 24, 25, 26 and 38)

1st Respondent’s issues:

Whether considering the peculiar facts and circumstances surrounding this case, the lower court was not right in refusing to hold that the appellant was elected the Governor of Kogi State on the basis of Sections 179(2)(a) and (b) and 181(1) of the 1999 Constitution (as amended) and affirming the decision of the trial Tribunal which affirmed the 1st respondent’s decision declaring the 2nd respondent the elected Governor of Kogi State.

(Grounds 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13 and 16 of the Notice of Appeal)

Whether the court below was not right in its decision on appellant’s complaint that the trial Tribunal failed to resolve and determine the alleged weighty Constitutional and Statutory issues raised by him before the trial Tribunal (Grounds 17, 18, 19, 20, 21 and 22 of the Notice of Appeal)

Whether the court below was not right in affirming the decision of the trial Tribunal allowing Respondents’ Preliminary Objection on Grounds/Issues of subject matter jurisdiction, cause of action and non joinder of APC. (Grounds 23, 24, 25, 26 and 30 of the Notice of Appeal)

Whether the court below was not right in its decision that the 2nd respondent was not qualified to be returned as the Governor of Kogi State and affirmed the trial Tribunal’s decision that the grounds and reliefs in the appellant’s petition were incompetent at variance with and unsupported by the pleadings.

(Grounds 14, 15, 27, 28, 29, 31, 32, 33, 34, 35, 36, 37 and 38 of the Notice of Appeal)

2nd Respondent’s Issues:

Whether the court below can be faulted when it held that the 1st respondent acted rightly in applying the guidelines in the Manual to resolve the conundrum that had arisen on the 21st of November, 2015 and that the announcement of the election as inconclusive is not contrary to the Constitutional provisions of Section 179(2) and 181(1) of the 1999 Constitution upon which the appellant has hinged his entire case? (Grounds 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 12 and 15)

Whether the court below could be faulted when it affirmed the decision of the trial Governorship Tribunal on the validity of the respondents’ preliminary objections as it relates to the issues of subject matter of jurisdiction, cause of action and non joinder of the appellant’s political party? (Grounds 22, 23, 24 and 25)

Whether the court below could be faulted for affirming the trial Tribunal’s decision votes cast for the joint ticket of the late Prince Abubakar Audu and the appellant in the Governorship Election of November 21, 2015 was transferable to the 2nd respondent as held by the Trial Tribunal?

(Grounds 18, 26, 29, 30, 31, 33, 34 and 35)

From the entire facts and circumstances leading to this appeal whether the court below can be faulted when it affirmed the position of the trial Tribunal that the petition was incompetent ab initio especially when he facts in support of the 2 grounds propping up the petition were unsupportable in law and in fact?

(Issue No. 4)

Having carefully examined all the issues, I am of the view that the 4 issues formulated by the 2ND respondent are adequate to fully resolve all the issues in contention in this appeal. Accordingly I adopt the said issues with slight variations in phraseology. The issues are as follows:

Whether the court below was right when it held that the 1st respondent acted correctly in applying the guidelines in the Manual for Electoral Officers (updated version) to resolve the conundrum that had arisen on the 21st of November 2015 and in holding that the announcement of the election as inconclusive is not contrary to Sections 179(2) and 181(1) of the 1999 Constitution.

Whether the court below was right when it affirmed the decision of the trial Governorship Tribunal on the validity of the respondents’ preliminary objections as it relates to the issues of subject matter, jurisdiction, cause of action and non joinder of the appellant’s political party.

Whether the court below was right in affirming the trial Tribunal’s decision that votes cast for the late Prince Audu and the appellant in the Governorship Election of November 21, 2015 were transferrable to the 2nd respondent.

Whether, from the entire facts and circumstances leading to this appeal, the court below rightly affirmed the decision of the trial Tribunal to the effect that the petition was incompetent ab initio.

Issue 1

This issue covers the appellant’s issues 1, 2, 3, 4, 6 and 10 and the 1st and 2nd respondents’ issue 1 respectively. In order to put the submissions of learned senior counsel for the appellant in proper context, it must be re-iterated that it is the appellant’s contention that the election into the office of Governor of Kogi State held on 21st November 2015 was conclusive with the ticket of the late Prince Abubakar Audu and himself scoring a majority of the votes cast in one quarter of all the Local Government Areas in the State. That by virtue of Section 179(2) of the 1999 Constitution (as amended), the said joint ticket was deemed to have been duly elected. That having regard to the unfortunate demise of the Governorship candidate, Prince Audu, by operation of section 181 of the Constitution, he ought to have been sworn in as the Governor elect.

Appellant’s submissions:

The appellant’s first challenge against the judgment of the court below is its finding that Sections 179(2) and 181 of the Constitution are inapplicable in the circumstances of this case because INEC (1st respondent) did not make a declaration or return of a winner at the 2015 Kogi Governorship election. Chief Wole Olanipekun, SAN submitted that there is nothing in Sections 179 or 181(1) of the Constitution that makes a declaration or return a condition precedent to the application of those sections. He contended that by reading the word “return” into Section 181 the lower court read into the section what is not contained therein and thereby defeated the purpose of its express provisions. Relying on Marwa Vs. Nyako (2012) 6 NWLR (Pt.1296) 199 @ 279 he submitted that a constitutional provision must not be interpreted in such a way as to defeat its purpose.

In his view, the operative part of the provisions is the phrase “duly elected” which refers to the act of the electorate casting their votes. He opined further that the interpretation given to the Sections by the two lower courts has the effect of subjecting the franchise of the electorate to the administrative action or inaction of the returning officer. Relying on the canon of interpretation of constitutional provisions which requires that similar provisions must be” construed together, he submitted that Section 181 of the Constitution should be construed in the light of Section 179(2), thereof, which both deal with “due election” and not Section 156 of the Electoral Act 2010 (as amended), which is a general definition section. Learned senior counsel argued that having regard to the jurisdiction conferred in Election Tribunals pursuant to Section 285(2) of the Constitution to hear and determine questions as to whether any person has been validly elected to the office of Governor or Deputy Governor of a state, it is clear that a declaration by INEC cannot assume the status of finality or being sacrosanct. He cited the following cases to buttress his contention that in appropriate cases, the courts have discountenanced the action or inaction of INEC in respect of its declaration after a Governorship election to pronounce the persons validly elected pursuant to Section 179 of the Constitution: Omoboriowo Vs Ajasin (1984) 1 SCNLR 108: Ngige Vs Obi (2006) 14 NWLR (Pt.999) 1: Agagu Vs Mimiko (2009) 7 NWLR (Pt.1140) 342: INEC Vs Oshiomole (2009) 4 NWLR (Pt.1132) 611: Fayemi Vs Oni (2010) 7 NWLR (Pt.1222) 326 and Aregbesola Vs Oyinlola (2011) 9 NWLR (Pt.1253) 458.

Learned senior counsel argued that Section 69 rather than Section 156 of the Electoral Act is more apposite in relation to Section 179 of the Constitution as, it is specifically confined to and relates to declaration of results and is subject to Section 179 of the Constitution, whereas Section 156 is a general definition section. He also referred to Section 68(l)(c) of the Electoral Act, which makes the declaration of scores and return of a candidate by a returning officer subject to review by a Tribunal or Court in an election petition. Reference was also made to Sections 133(1), 133(2) and 138(l)(c) of the Electoral Act to buttress the point that the declaration or return of a candidate is not a condition precedent to due election under Sections 179(2) and 181(1) of the Constitution but rather what is to be considered in determining due election are the votes cast by the electorate. It is Chief Olanipekun SAN’s position that the lower court having held at pages 1605 – 1606 of the record that the joint ticket of the late Prince Audu and the appellant met the requirements of Section 179(2) and that where any candidate for the office of the Governor meets the said requirements, he should be declared winner and returned as duly elected, the said finding, not having been appealed against constitutes res judicata and is binding on all the parties; that in the circumstances the lower court ought to have determined the appeal in the appellant’s favour. He referred to the announcement by INEC of the votes scored by the respective parties at the close of polls on 21/11/2015 as found by the lower court at pages 1603 – 1604 of the record and submitted that Section 179(2) of the Constitution having been fully satisfied, the lower court ought to have granted the appellant’s reliefs 56(i), (ii), (iii), (iv), (vii), (viii), (ix), (x), (xi) and (xii) of the petition. He maintained that the provisions of Section 179(2) of the Constitution were fully satisfied at the election of 21/11/2015 and that the appellant and Prince Audu were therefore deemed duly elected. On the applicability of Section 181(1) of the Constitution to the facts of this case, learned senior counsel premised his argument on the contention that the appellant and Prince Audu, were already duly elected at the election that took place on 21/11/2015. On the relationship between a Gubernatorial candidate and his running mate, PDP Vs INEC (1999^ 11 NWLR (Pt.626^ 200 @ 240 – 241 was referred to. He submitted that the ticket of the Governorship candidate and his running mate is a joint ticket and remains so up till the conclusion of the election A.G. Federation Vs Abubakar (2007) 10 NWLR fPt.1041) 1 referred to. It is also learned senior counsel’s contention that in affirming the 1st respondent’s declaration that the election was inconclusive based on its guidelines, the two lower courts were wrong as the due election of a Governor and Deputy Governor of a state is exclusively provided for under the Constitution, such that the Constitution does not allow expressly or impliedly for any extra-constitutional legislation in the determination of the “due election” of a Governor. He argued that the Electoral Manual for the training of INEC staff cannot add to, subtract from or defer or regulate the application of the provisions of Section 179(2) of the Constitution in respect of the due election of the Governor of Kogi State, after elections had already held across all the 21 Local Government Areas of the State on 21/11/2015. Chief Olanipekun, SAN submitted further that contrary to the finding of the court below, a conundrum could not have arisen on 21/11/2015 because the provisions of section 179(2) of the Constitution had already been satisfied. Relying on Section 1(2) of the Constitution with emphasis on the word “shall” used therein, he submitted that it means in effect that only the Constitution can determine how control of government in any part of Nigeria can be done and to that extent Sections 179 and 181, 191, 191(2) and 305 of the Constitution provide for the four scenarios in which a person can assume the office of Governor of a state. He argued that having regard to the provisions of Section 179 of the Constitution it was wrong for the lower court to have resorted to any other instrument and/or document in determining whether a candidate was duly elected as Governor on 21/11/2015. Reliance was placed on the case of INEC Vs Musa (2003) 3 NWLR (Pt.806) 72 @ 157 for the principle that “where the constitution sets the condition for doing a thing, no legislation of the National Assembly or of a State House of Assembly can alter those conditions in any way unless …… the Constitution itself as an attribute of its supremacy so allowed.” He rejected the contention of the 1st respondent at the court below that there was a lacuna in the law as regards Section 179(2)(a) of the Constitution and that in any event INECs guidelines cannot amend or augment the provisions of the Constitution. He submitted that in interpreting and applying the provisions of the Constitution resort can only be made to the express content of the Constitution itself. A.C. & Anor. Vs INEC (2007) 12 NWLR (Pt.1048) 220 @ 318 referred to. On the limited scope and application of the Manual for Election Officials reliance was placed on Agbaje Vs Fashola (2008) 6 NWLR (Pt.1082) 90 @ 127 – 128.

Alternatively, it is contended that even if the Manual could have been relied upon, it ought to have been read and applied in conjunction with the Electoral Act, which stipulates that only a person with a voter’s card can vote. He noted that the Manual contains provisions relating to Permanent Voters Card (PVC) and the disentitlement of any person to vote without a permanent voter’s card. He referred to paragraph 2.0 at page 8 of the Manual on page 271 of the record and other relevant paragraphs. He argued that Chapter 3 paragraph 3.11 step 14 of INEC’s Manual ought not to have been read in isolation of its other provisions and the Electoral Act. He noted that INEC declared the election inconclusive for the reason that the margin of win between the two leading candidates was less than the total number of registered voters in the 91 polling units where supplementary elections were scheduled to hold on 5/12/2015. In his view, since only registered voters with PVCs were eligible to vote, the proper construction of the provisions of the Manual is that it is the total number of registered voters who had collected their PVCs in the disputed 91 polling units that should have been considered in reaching a determination as to the margin of win between the two leading candidates. Reference was also made to Sections 53(2) and (4) of the Electoral Act to the effect that where cancelled results (for whatever reason) would not have an impact on the overall results, a return is to be made without a fresh poll. He contended that this was the situation in this case and that the supplementary election was unwarranted.

On the finding of the lower court that the substitution of the 2nd respondent was done pursuant to Section 33 of the Electoral Act and his entitlement to the votes cast on 21/11/2015, Chief Olanipekun, SAN argued that the election of 21/11/2015 had already been concluded and under Section 33 of the Electoral Act, the substitution of a candidate can only arise before an election and not after it has been concluded. Olofu Vs Itodo (2010) 18 NWLR (Pt.1225) 545 @ 587 referred to. He submitted that if, as held by the lower court, the appellant’s right expired with that of Prince Audu upon his demise, Section 181(2) of the Constitution compels a fresh election and in the same vein votes garnered by Prince Audu expired with their candidacies and could not be appropriated by the 2nd respondent. He submitted that under Section 221 of the Constitution, it is the candidate for whom a political party canvasses votes that is eligible to benefit from the said votes and no other person. Relying on the case of Amaechi Vs INEC (supra), he contended that it is the winner of the primary election that should remain as the political party’s candidate and that since the 2nd respondent did not win the primary election nor participate in the election of 21/11/2015, he could not appropriate the votes won by the Audu/Faleke ticket. The appellant’s issue 10 which is subsumed under this issue 1, seeks to advance further reasons based on mathematical calculation of the geographical spread of the votes garnered on 21/11/2015, which constituted results from 96.4% of all the polling units in the state, to contend that the said supplementary election was unnecessary.

1st Respondent’s submissions:

In reaction to the above submissions, Dr. Alex A. Izinyon, SAN disagreed with Chief Olanipekun, SAN’s contention that a return by a Returning Officer at an election is a merely administrative action. He contended that it represents the climax of the exercise of the constitutional powers of INEC to conduct elections. He agreed with the learned senior counsel that the provisions of the Constitution must be read as a whole to determine the intention of the lawmakers. He referred to Section 153(1)(f) thereof which establishes INEC and Section 153(2) which states that the composition and powers of the electoral body are as contained in Part 1 of the Third Schedule to the Constitution. He referred to Section 15(a) and (i) paragraph F of Part 1 thereof and submitted that by its constitutional powers to “organise, undertake and supervise all election to the offices of the President, Vice President, Governor and Deputy Governor of a State……….. “, INEC is the only body to determine when the requirements of Section 179(2) have been met and that it is only after such determination that the said decision can be questioned in an election petition. In other words, that there must be a return or declaration of a winner by INEC before such return can be questioned. Agbaso Vs Ohakim (2008) 1 LRECN 317 @ 359 F – H referred to. That to do otherwise would curtail and interfere with INEC’s constitutional powers, thereby eroding its independence. He submitted that a return or declaration of a winner by INEC is fundamental and that the lower court was right when it held that there being no return or declaration of a winner by INEC in this case, the appellant cannot claim to have won the election on 21/11/2015 along with Prince Audu. On Chief Olanipekun, SAN’s contention that a “return” cannot be the same as “duly elected” as contained in Section 181(1) of the Constitution, he referred to Section 156 of the Electoral Act which defines “return” to mean “the declaration of a Returning Officer of a candidate in an election under this Act as being the winner of that election”. He reiterated that for a person to be duly elected there must have been a declaration by a Returning Officer that the said person was the winner of an election. He submitted further that the casting of votes by the electorate, does not in itself translate to a person being duly elected, as an independent umpire must count the votes cast for each candidate in the election and declare the winner based on the votes cast. He submitted that this is where the Returning Officer comes in and that the declaration of a winner by the said Returning Officer is mandatory. He submitted that the line of cases beginning with Omoboriowo Vs Ajasin (supra) relied upon by Chief Olanipekun, SAN are inapplicable to the circumstances of this case. With regard to learned senior counsel’s contention regarding Section 179(2) of the Constitution, Dr. Izinyon, SAN argued that the provision only states what should guide a Returning Officer when making a return. He submitted further that Sections 68(l)(c) and 69 of the Electoral Act buttress the fact that the declaration of a winner in an election is what gives the legal authority to an Election Tribunal to hear and determine an election petition. Enemuo Vs Duru (2004) 2 LRECN 1 @ 27 D – A. He argued that Sections 133 and 137(2) of the Electoral Act also do not do away with the need for a return in an election but rather that Section 133 emphasises the need for a return before a petition could be filed. He also rejected the contention that Section 138(1)(c) of the Electoral Act could be interpreted to mean that in determining the number of votes cast and who is deemed to have been duly elected under Section 179(2) of the Constitution, a declaration or return by INEC is not a condition precedent. Learned senior counsel argued further that the finding of the two lower courts that a declaration or return of a candidate as winner of an election is a condition precedent to due election under Sections 179(2) and 181 of the Constitution does not amount to subjugation of the said constitutional provisions to a declaration or return by an INEC Returning Officer, as claimed by the appellant but rather that there must first be a declaration and in the process of making a declaration, the provisions of Section 179(2) of the Constitution would be considered. On the submission that the lower court at pages 1605 – 1606 of the record made findings against the respondents, which have not been appealed against, he submitted that the relevant portion of the judgment was not quoted in full and that what the court held was that the application of the provisions of Section 179(2) of the Constitution turns on the peculiar facts and circumstances of this case. He also contended that other portions of the judgment referred to as findings that were not appealed against (pages 1603 – 1604) of the record were in fact narrations of the facts of this case. In paragraph 4.58 page 13 of his brief he reproduced the summation of the lower court and submitted that there was no finding that the appellant and Prince Audu scored the highest number of votes cast and one quarter of all the votes cast in all the Local Government Areas of the State. That the finding of the court was that the conditions in Section 179(2) (a) of the Constitution had not been met because when elections are conducted in the 91 polling units where elections were cancelled, any of the two leading political parties could score the highest number of votes cast.

On the appellant’s contention that having scored the highest number of votes at the election held on 21/11/2015, the joint ticket was deemed to have won the election and upon the demise of Prince Audu the provision of Section 181 of the Constitution became effective, learned senior counsel submitted that as there was no return based solely on the .election conducted on 21/11/2015, the contention is misconceived. He submitted that Section 181(1) of the Constitution and the cases of P.D.P. Vs INEC (supra) and A.G. Federation Vs Abubakar (supra) are inapplicable to the facts and circumstances of this case. On whether the finding of the lower court was contradictory as argued by Chief Olanipekun, SAN when on the one hand it stated that the appellant and the late Prince Audu scored the highest number of votes in the election of 21/11/2015 and on the other hand referred to a conundrum thrown up by the said election, learned senior counsel argued that what the court did was merely to state the political party and its candidates who scored the highest number of votes cast in the areas where elections were conducted on 21/11/2015 and emphasised the fact that the court did not at any point hold that the votes cast were final or that they were in respect of a concluded election. He submitted that a conundrum did arise in respect of the election of 21st November 2015 because the provisions of the Constitution were not satisfied having regard to the fact that the results in 91 polling units were not part of the results declared and the number of registered voters in the said polling units could affect the final outcome of the election as between the two contending political parties. He submitted that Section 1(2) of the Constitution was not violated in the circumstance. He submitted further that the provisions of the INEC Manual relied upon by the lower court which provided specifically for the situation that arose in this case have not been shown to be inconsistent with the provisions of Section 179(2) of the Constitution. He distinguished the cases cited by learned senior counsel for the appellant in support of his contention that the INEC Manual lacked binding force on the ground that in those cases the petitioners sought to rely on the provisions of the Manual as ground for nullifying the elections they participated in, contrary to the provisions of the Electoral Act.

Learned senior counsel for the 1ST respondent submitted that the alternative submission of learned senior counsel for the appellant that the lower court should have been guided by the total number of voters with PVCs rather than the total number of registered voters is misconceived, as it is contrary to the provisions of the Manual. He submitted further that Chapter 3 paragraph 3.11 step 14 of the Manual had adequately provided for the situation that arose in this case and there was therefore no need for recourse to other provisions of the Manual. With regard to the submission that the 2ND respondent could not have been substituted for the deceased Prince Audu having regard to the provisions of Section 33 of the Electoral Act and the appellant’s contention that the election had been concluded on 21/11/2015, learned senior counsel in paragraph 4.42 at pages 10 – 11 of his brief, submitted that by virtue of the said Section 33, the APC had a right to substitute its deceased candidate as a result of force majeure. He noted that the section creates an exceptional circumstance where a candidate dies before the election is concluded. He noted that in the instant case, the substitution of the 2nd respondent took place after the election held on 21/11/2015 was declared inconclusive. That the APC had a legal interest in the 240,867 votes won before its Governorship candidate died. He referred to the judgment of the lower court at page 1614 of the record to the effect that by a combined reading of Section 221 of the Constitution and Section 137(1) of the Electoral Act, the APC had a right to substitute the deceased candidate by virtue of Section 33 of the Electoral Act and that having made the substitution, the votes cast were rightly appropriated to both the substitute candidate and the APC and further that the 2nd respondent adopted the appellant to remain as his associate and Deputy Governorship candidate, thereby doing away with the need to nominate another. In answer to the contention of learned senior counsel for the appellant that the lower court by its findings imposed the appellant on the 2nd respondent as his Deputy Governorship candidate, Dr. Izinyon, SAN submitted that the findings were supported by the evidence of the 2nd respondent as contained in his witness deposition at pages 243, 244 and 246 of volume 1 of the record, which show that this position was endorsed by the APC and further confirmed at pages 107 -110 of volume 1 of the record, which reflect the names of the parties’ candidates at the supplementary election with the name of the appellant as the Deputy Governorship candidate of the 2nd respondent. Furthermore that Exhibits P14, P15 and P16 written directly to the 1st respondent by the appellant are to the effect that he could not be the Deputy Governorship candidate of the 2nd respondent having won the election of 21st November 2015 and that Prince Audu having died, he ought to be declared the Governor elect. Relying on the authorities of Amaechi Vs INEC (supra) and Agbaje Vs INEC (supra), he submitted that the votes won in an election belong to a political party and not the candidate. On the issue of geographical spread and percentage of votes won in the election conducted on 21/11/2015, learned senior counsel submitted that the lower court was right when it affirmed the judgment of the court below to the effect that the outcome of the supplementary election could affect the party with the highest number of votes cast at the election held on 21/11/2015 and thus affect the volume of the entire election. He argued that the eventual outcome of the supplementary election could not be a ground for contending that it ought not to have been held in the first place.

2nd Respondent’s submissions

In reply to the submissions of Chief Olanipekun, SAN on the issue of return and due election, within the meaning of Sections 179(2) and 181(1) of the Constitution, J.B. Daudu, SAN, learned senior counsel for the 2nd respondent, submitted that the trial Tribunal whose decision was affirmed by the court below, was right when it held that Section 187(1) of the Constitution did not confer on the appellant the status of a “candidate”, as being the late Prince Audu’s running mate, he was inextricably tied to Prince Audu’s umbilical cord. He submitted that in the absence of the Governorship candidate, the Deputy Governorship candidate had no rights to enforce. He premised his contention on the fact that no return or election had been determined in favour of the duo before the demise of Prince Audu. He maintained that unless and until there is a return, the candidacy of the appellant is inchoate and cannot crystallise into a right to contest the election. That he could not in the circumstances have been duly elected in fulfilment of Section 179(2) of the Constitution. Ibrahim Vs Shaqari (1983) 1 NSCC 34 referred to. In addressing the various contentions of the appellant on the implication of the volume and geographical spread of the 240,867 votes scored at the election of 21/11/2015 by the joint ticket of Prince Audu/Appellant; the exclusivity of the provisions of the 1999 Constitution in determining the due election of a Governor, the fact that only voters with Permanent Voters Cards could cast their votes and the fact that the total number of voters with PVCs was less than the margin of victory, he made copious references to the judgment of the Tribunal in paragraph 3.6 at pages 18 – 19 of his brief and the various finding of the lower court in respect thereof, which are reproduced in paragraph 3.7 of the brief at pages 19 – 21 thereof. He submitted that the findings of the two lower courts to the effect that (a) at no point in time was the appellant the Gubernatorial candidate for the office of Governor; (b) that sections 179(2)(a) & (b) only apply when the election has been concluded and a winner declared; (c) that the Governorship election of Kogi State was not concluded as at 21/11/2015 and (d) that the issue of the highest scores between APC & PDP will only come into play when the election has been concluded and a winner declared constitute concurrent findings of fact of the two lower courts, which this court would not lightly interfere with. Evelvn Ehwrudie Vs Warri Local Government & Anor. (2016) LPELR – 40052 referred to. He submitted that the provisions of the Election Manual are not only made pursuant to the Constitution, they are also made to fulfil the requirements provided in the Constitution. He submitted that the effect of Section 179(2) of the Constitution is that no candidate shall be declared the winner of a gubernatorial election unless he has fulfilled the two conditions stipulated therein, to wit: that he has the majority of the votes cast at the election and that he has not less than one quarter of the votes cast in each of at least two-thirds of all the local government areas in the state. He submitted that in this case the requirements were not met. Relying on the case of Hon.Ihuoma Vs. Hon Aznhuike & Ors. 2015) LPFLR – 25977 he submitted that the provisions of chapter 3 paragraph 3.11, step 14 of the 1st respondent’s Manual is for the purpose of accomplishing the conditions stipulated in Section 179(2) and 181 of the Constitution. He submitted further that in the conduct of an election, it is the responsibility of the 1st respondent to declare it conclusive or inconclusive depending on the circumstances of the election. Dibiagwu vs INEC (2012) LPELR – 9831 (CA) referred to. He therefore submitted that the 1st respondent acted within its powers when it declared the elections held on 21st November 2015 inconclusive based on the guidelines in the election manual.

Learned senior counsel submitted further that the key words in Sections 179(2) and 181 of the Constitution is the phrase “duly elected”, which means that due election is a condition precedent to the operation of the section. He did not agree with Chief Olanipekun’s contention that the courts below, by importing a ‘return’ as a condition precedent to the operation of Sections 179(2) and 181 of the Constitution had supplanted the operative parts of the provisions. He submitted that a candidate cannot be returned unless he has been duly elected in an election declared conclusive by the 1st respondent.On the meaning of a return in an election, he referred to Ibrahim Vs Shagari (supra). He also referred to Fayemi & Anor. Vs Oni (2010) I PFI R — 4145 (CA). As noted in the introductory part of this judgment, learned senior counsel for the appellant filed Reply Briefs in respect of the 1st and 2nd respondents’ briefs respectively. However it must be reiterated here that the purpose of a Reply brief is to address fresh points raised in a respondent’s brief of argument. It is not for the appellant to raise fresh issues or to re-argue the appeal. See: B.M. Ltd. Vs Woermannr-Line (2009) 13 NWLR (Pt.1157) 149: HarM Air Services (Nig.) Ltd. Vs Kpa7nr Esq. (2011) LPELR – 1353 (SC). I have considered the appellant’s replies to the arguments of learned senior counsel for the 1st and 2nd respondents. The replies in my view have largely re-canvassed the arguments in the appellant’s brief. No new issue raised by the respondents have been brought to the court’s attention. The copious submissions therein are accordingly discountenanced.

RESOLUTION OF ISSUE

The gravamen of all the sub-issues canvassed under this issue and indeed the crux of this appeal lies in the following questions:

(i) Whether the late Prince Abubakar Audu and the appellant, Hon. James Abiodun Faleke met the requirements of section 179(2)(a) and (b) of the 1999 Constitution (as amended) and thus entitled to be deemed the duly elected Governor and Deputy Governor of Kogi State in the Governorship election that was conducted on 21st November 2015;

(ii) Whether the election conducted by the 1st respondent on 21/11/2015 was rightly declared inconclusive;

(iii) whether the appellant, pursuant to section 181(1) of the Constitution was entitled to step into the shoes of the deceased Governorship candidate as the Governor-elect:

(iv) whether, on the other hand, the 2nd respondent was entitled to be substituted for the late Prince Audu as Governorship candidate having regard to the provisions of section 33 of the Electoral Act, and finally

(v) whether the 2nd respondent was entitled to appropriate the votes garnered by the Audu/Faleke ticket at the 21/11/2015 election.

I have at the beginning of the judgment summarized the salient facts that gave rise to this appeal. The parties are all ad idem that the facts are not in dispute. What is in issue is the proper application of the law to these facts. It would be safe to say that the two major factors that have led to the dispute between the parties are the declaration by the 1st respondent that the election conducted on 21/11/2015 was inconclusive and the unfortunate demise of the Governorship candidate, Prince Audu on 22nd November 2015. The first issue to resolve, in my considered view is the status of the election that took place on 21st November 2015. The appellant contends that the entire election to the office of Governor of Kogi State was concluded on that day with the late Prince Audu and the appellant emerging as the clear winners, while the respondents contend that the election was inconclusive having regard to the cancellation of votes in 91 polling units and the fact that the margin of win between the parties was less than the total number of registered voters in the affected units. It is the respondent’s further contention that the election was concluded on 5th December 2015 after the conduct of the supplementary election wherein the 2nd respondent emerged victorious, having been substituted by his party, the APC for the late Prince Audu. It was argued on behalf of the appellant that it is an affront to the supremacy of the Constitution for the 1st respondent to have applied provisions of its Manual for Election Officials to circumvent the provisions of Section 179(2) of the Constitution. I deem it appropriate at this stage to reproduce some of the salient provisions of the Constitution of the Federal Republic of Nigeria 1999 (as amended) that have been referred to in the resolution of this issue. Sections 1(2), 179(2)(a) and (b) and 181 provide as follows:

Section 1(2): “The Federal Republic of Nigeria shall not be governed nor shall any person or group of persons take control of the government of Nigeria or any part thereof, except in accordance with the provisions of this Constitution Section 179(2):

(2) A candidate for an election to the office of Governor of a State shall be deemed to have been duly elected where, there being two or more candidates –

(a) he has the highest number of votes cast at the election; and

(b) he has not less than one-quarter of all the votes cast in each of at least two-thirds of all the local government areas in the State.

Section 181(1):

If the person duly, elected as Governor dies before taking and subscribing the Oath of Allegiance and Oath of Office, or is unable for any reason whatsoever to be sworn in, the person elected with him as Deputy Governor shall be sworn in as Governor and he shall nominate a new Deputy-Governor who shall be appointed by the Governor with the approval of a simple majority of the House of Assembly of the State.” There is no doubt, as rightly submitted by learned senior counsel for the appellant, with reference to Section 1(2) of the Constitution quoted above, that no-one can become the Governor of a State in this country without complying with the relevant Constitutional provisions. The fundamental question is: what do the words “duly elected” mean .n the context of Sections 179(2) and 181(1) of the Constitution? The settled canons of construction of constitutional provisions are, inter alia, that the instrument must be considered as a whole, that the language is to be given a reasonable construction and absurd consequences are to be avoided. See: A.G Bendel State Vs A.G Federation (1981) 10 SC 132 – 134; Ishola Vs Ajiboye (1995) 1 NWLR (Pt.352) 506. It is equally well settled that where words used in the Constitution or in a Statute are clear and unambiguous, they must be given their natural and ordinary meaning, unless to do so would lead to absurdity or inconsistency with the rest of the statute. See: Ojokolobo Vs Alamu (1987) 3 NWLR (Pt.61) 377 @402 F – H; Adisa Vs Oyinlola & Ors (2000) 6 SC (Pt. II) 47; Saraki Vs F.R.N. (2016) LPELR – 40013 SC. The word “duly” is defined in Black’s Law Dictionary, 8th Edition at page 540 as follows: “In a proper manner; in accordance with legal requirements.” A person “duly elected” within the meaning of Sections 179(2) and 181(1) of the Constitution would therefore mean a person elected in accordance with applicable legal requirements. The legal requirements for due election into the Office of Governor of a State have been clearly stated in Section 179(2) reproduced above. The question then arises as to how it can be determined that the said legai requirements have been met? The Constitution in Section 153(1X0 & 0) P™ides f°r the establishment of the Independent National Electoral Commission (INEC), which, pursuant to paragraph 15 of Part 1 of the Third Schedule thereto, has power inter alia to ‘'(a) organise, undertake and supervise all elections to the offices of the President and Vice President, the Governor and Deputy Governor of a State and the membership of the Senate, the House of Representatives and the House of Assembly of each State of the Federation; and (I) to carry out such other functions as be conferred upon it by an Act of the National Assembly.” Pursuant to Section 160(1) of the Constitution, INEC has the power, by rules or otherwise to regulate its own procedure or confer powers and impose duties on any officer or authority for the purpose of discharging its function. The Electoral Act 2010 (as amended), which is an Act of the National Assembly makes elaborate provisions not only for the manner in which elections shall be conducted by INEC right from the pre-election stage to conclusion but also for the manner in which disputes arising therefrom should be ventilated. The culmination of the election process is the declaration of a winner after all the votes have been counted. In Section 156 of the Electoral Act, “Return” is defined as “the declaration by a Returning Officer of a candidate in an election under this Act as being the winner of that election” In other words, the Returning Officer makes a declaration on behalf ofthe Electoral body of the final outcome of the election it conducted, which is in effect a confirmation that the legal requirements for that particular election have been met. I agree with learned senior counsel for the two respondents that there must be a declaration or a return made by INEC before a candidate could be deemed to have been duly elected under Sections 179(2) and 181 of the Constitution. I have considered Sections 68(c) and 69 of the Electoral Act, which learned senior counsel for the appellant contends is more relevant to Section 179(2) of the Constitution than the general interpretation Section 156 of the Act. Section 68(c) of the Act does not advance the appellant’s case. It provides that the decision of any Returning Officer on any question arising from or relating to…… “(c) declaration of scores of rznrliriates and the return of a candidate shall be final, subject to review by a Tribunal or Court in an election petition proceeding under the Act. “It refers to “declaration of scores of candidates”, which accords with the definition of “return” in Section 156. As rightly submitted by learned senior counsel for the respondents, it is the declaration or return that becomes the subject of an election petition. With regard to the reliance on cases such as Omoboriowo Vs Ajasin (1984) 1 SCNLR 108; Ngige Vs Obi (2006) 14 NWLR (Pt.999) 1 and others, I am of the view that the fact that declarations or returns made by INEC were discountenanced in those cases is not a ground for contending that a declaration or return is not a condition precedent to the invocation of Sections 179(2) and 181(1) of the Constitution.

Section 69 of the Constitution provides that:

“In an election to the office of the President or Governor whether or not contested and in any contested election to any other elective office, the result shall be ascertained by counting the votes cast for each candidate and subject to the provisions of Sections 133, 134 and 179 of the Constitution, the candidate that receives the highest number of votes shall be declared elected by the appropriate Returning Officer.” It is evident that a declaration as to who received the highest number of votes cast and who should be declared elected is to be made by the appropriate Returning Officer after the results have been ascertained by counting the votes cast for each candidate. Section 133(1) of the Electoral Act also provides that the only venue to ventilate a complaint of undue election or undue return at an election is before a competent Court or Tribunal in accordance with the provisions of the Constitution or Act. In effect, I agree with the finding of the court below that contrary to the submission of learned senior counsel for the appellant, Sections 179(2) and 181(1) of the Constitution are not self-executing. There must be a declaration or return of a candidate as the winner of an election before the sections become applicable. I agree entirely with learned senior counsel for the 1st respondent that to hold otherwise would lead to a situation where anyone could declare himself as the deemed winner of an election, which would certainly lead to anarchy. The electorate is also entitled to have the results of the election formally declared by an unbiased umpireThis brings me to the next consideration, which is, whether the appellant and the late Prince Audu met the requirements of Section 179(2) of the Constitution. The lower court found, and I entirely agree that there was no declaration or return of any of the candidates who participated in the election of 21/11/2015 as winners having regard to the declaration of INEC that the election was inconclusive. That declaration was made based on the provisions of Chapter 3 paragraph 3.11, step 14 of INEC’s Manual for Election Officials. The argument of learned senior counsel for the appellant is that the provisions of the Manual cannot be employed to amend or augment the provisions of the Constitution. It is not disputed that pursuant to Section 160(1) of the Constitution, INEC has the constitutional power to regulate its own procedure or confer powers and impose duties on its Officers for the purpose of discharging its functions. Sections 73 and 153 of the Electoral Act contain similar provisions to ensure the proper discharge of its functions. Section 73 empowers the Commission to publish in the Gazette, guidelines for elections “which shall make provisions for the step by step recording of the poll in the electoral forms as may be prescribed…. “while Section 153 empowers the Commission to issue regulations, guidelines or manuals for the purpose of giving effect to the provisions of the Electoral Act and for its administration. I agree with the finding of the lower court at page 1608 of the record that the above provisions give statutory backing to the Manual as a subsidiary legislation and that where it is found to be relevant, its provisions must be invoked, applied and enforced. The relevance of INEC’s Manual for Electoral Officers in the proper conduct of elections was acknowledged by this Court in the case of C.P.C Vs INEC (2011) LPELR – 8257 (SC) AT PAGES 54 – 55 F – B per Adekeye, JSC thus:

“By force of law the Independent National Electoral Commission has the duty of conducting elections. Besides the constitutional provisions, it is guided by the Electoral Act 2010 (as amended) and the Election Guidelines and Manual issued for its officials in accordance with the Act. These documents embody all steps to comply with in the conduct of a free, fair and hitch free election.”(Emphasis mine). Having discovered electoral malpractices in 91 polling units in the State, it was proper for the 1st respondent to consult and apply the provisions of its Manual to determine the next course of action in the circumstances. I do not agree with Chief Olanipekun, SAN, with due respect that resort to its manual in the circumstances amounted to a flagrant disregard of the supremacy of the constitutional provisions as contained in Section 179(2).

Chapter 3 paragraph 3.11, step 14 of the Manual for Election Officials (updated version) at page 325 of Volume 1 of the record provides 3.11: Final Collation and Declaration of Governorship Election Results at State Level:

The State Collation/Returning Officer for the Governorship shall: Step 14: “Where the margin of win between the two leading candidates is not in excess of the total number of registered voters of the polling unit(s) where elections were cancelled or not held, decline to make a return until another poll has taken place in the affected polling unit(s) and the results incorporated into a new Form EC8D and subsequently recorded into a new form EC8E for Declaration and Return.” (Emphasis mine) The provision is clear and straight forward and did not require a foray into any other provisions in the Manual for it to be effected. There is no dispute as to the fact that the margin between the votes scored by the late Prince Audu and the appellant on the one hand and Capt. Wada and Arch. Awoniyi, on the other was 41,619, which was less than the total number of registered voters in the 91 polling units where votes were cancelled. I therefore agree with the court below that the 1st respondent was correct to have declared the election inconclusive on the basis of the number of registered voters in the 91 affected polling units. Having regard to the clear provisions of the Election Manual, it would have been wrong for any electoral official to base his decision on any other consideration, such as the number of registered voters who had collected their PVCs,or the geographical spread of the votes already cast. Clear and unambiguous provisions must be given their natural and ordinary meaning. Neither the court nor learned counsel is entitled to read into a provision what it does not contain.

I must at this stage make a brief reference to Chief Olanipekun’s

contention that the lower court made a finding that the appellant and the

late Prince Audu met the requirements of Section 179(2) but failed to give

the proper legal effect to such finding and that there is no appeal against

the said finding. I have carefully examined the portion the judgment

referred to at pages 1605 – 1606 of Volume 3 of the record, which reads:

“In the light of the facts and circumstances of this case, the appellant has contended that the failure of INEC to apply Section 181(1) of the Constitution in declaring the appellant as the duly elected Governor as at 21-11-2015 is an affront to and a disregard of the Constitution. The question which logically rises from Section 179(2) is whether, as at 21-11-2015, the joint ticket of Prince Audu and the appellant met the requirements of the provision. The application of this provision turns on the peculiar facts and circumstances of the instant case. The law is trite that where any candidate to the office of a Governor meets with these requirements, he should be declared winner and returned as the duly elected Governor. This much has been held in a plethora of decided cases such as: Ngige V Obi (2006) 14 NWLR held that in the absence of a return by the 1* respondent declaring the appellant and the late Prince Audu as the duly elected Governor and Deputy Governor respectively, neither of them could be deemed to have been duly elected on 21/11/2015 as required by Section 179(2) of the Constitution. The election conducted on 21/11/2015 was inchoate until after the conduct of the supplementary election on 5/12/2015 which brought the entire process to conclusion. It follows therefore, that as the appellant and Prince Audu were not returned as duly elected, there was no basis for the application of Section 181(1) of the Constitution, which allows a Deputy Governor elected with a duly elected Governor to step into the Governor’s shoes in the event of death or any other factor leading to his inability to subscribe to the Oath of Allegiance and Oath of Office. Finally, under this issue is the contention of the appellant, that having regard to the provisions of Section 33 of the Electoral Act, the APC was not entitled to substitute its deceased Governorship candidate, as the election had already been concluded on 21/11/2015 and also that the 2nd respondent was not entitled to appropriate the votes garnered at the election held on 21/11/2015.

Section 33 of the Electoral Act 2010 (as amended) provides thus: “33. A political party shall not be allowed to change or substitute its candidate whose name has been submitted pursuant to Section 31 of this Act, except in the case of death or withdrawal by the candidate.”

From my earlier findings in the course of this judgment, it must be stated that the election of 21/11/2015 having rightly been declared inconclusive, a consideration of Section 33 cannot commence on the premise that the election was concluded. Therefore, as stated earlier, as at the time of Prince Audu’s demise the election into the Governorship of Kogi State was inchoate. Section 33 of the Electoral Act clearly provides an exception to the provisions of Section 31 of the Act in the case of death or withdrawal by the candidate. In the instant case, the death of the Governorship candidate before the conclusion of the election necessitated his being substituted by another candidate.The bone of contention therefore is, who, as between the appellant and the 2nd respondent was entitled to step into those shoes? While the appellant contends that the votes cast on 21/11/2015 are attributable to the candidates who participated in the election, it is the contention of the respondents that the votes enure in favour of the political party on whose platform the candidates contested.

Section 221 of the Constitution provides: “S.221. No association other than a political party, shall canvass for votes for any candidate at any election or contribute to the funds of any political party or to the election expenses of any candidate at an election.”137(1) (a) and (b) of the Electoral Act provide:

(1) An election petition may be presented by one or more’of the following persons –

(a) a candidate in an election;

(b) a political party which participated in an election.”

This court in Amaechi Vs INEC (2008) 5 NWIR (Pt.1080) 227@ 317 – 318 F – B per Oguntade, JSC interpreted Section 221 of the Constitution as follows: “The above provision effectually removes the possibility of independent candidacy in our elections; and places emphasis and responsibility in elections on political parties. Without a political party a candidate cannot contest. The primary method of contest for elective offices is therefore between the parties. If, as provided in Section 221 above, it is only a party that canvasses for votes, it follows that it is a party that wins an election. A good or bad candidate may enhance or diminish the prospect of his party in winning, but at the end of the day, it is the party that wins or loses an election. I think that the failure of the respondents’ counsel to appreciate the overriding importance of the political party rather than the candidate that has made them lose sight of the fact that whereas candidates may change in an election but the party do not. In mundane or colloquial terms, we say that a candidate has won an election in a particular constituency but in reality and in consonance with Section 221 of the Constitution it is his party that has won the election.” Interestingly, even though learned senior counsel for the appellant also relied on Amaechi’s case, he is of the view that it is the candidate for whom the party canvasses votes that is eligible to benefits from the votes and no other person. It must be remembered that the appellant and the 2nd respondent are both members of the APC. I agree with the concurrent findings of the two lower courts that by virtue of Section 221 of the Constitute and Section 1377(1) of the Electoral Act, the APC being the party that sponsored the appellant and Prince Audu for the election and being the party which would be declared the winner in the event of their success at the polls as per Amaechi Vs INEC (supra), the said APC had a legal ,nt rest ,n t e et cast on 2^,20*5 and was entitled to substitute a candidate of its choice to contest the election to conclusion. I agree with J.B. Daudu, SAN that the votes garnered by the Prince Audu/Hon. Faleke ticket on 21/11/2015 were votes garnered on behalf of the political party and therefore the issue of transfer of votes did not strictly arise. It is settled law that the choice of a candidate in an election is within the exclusive preserve of a political party and non-justiciable, so long as the party acts within its guidelines. See: P.D.P &Anor Vs Sylva (2012) LPELR – 7814 (SC) at 64 – 66 F – B; Onuoha Vs Okafor (1983) 2 SCNJ 244; Dalhatu Vs Turaki (2003) 15 NWLR (PT.843) 310; Ukachukwu Vs PDP (2014) 4 SCNJ (pt. II) [email protected] virtue of Section 177(c) of the 1999 Constitution, a person seeking to contest an election into the office of Governor of a State must be a member of a political party and must be sponsored by that party. Furthermore, he must have participated in the party’s primary elections. See: Section 87(1) of the Electoral Act; Onubugadu Vs C.P.C (2012) LPELR – 8606 (CA). The evidence before the court was that the 2″” respondent participated in the primary election conducted by the APC and came second behind Prince Audu. The conduct of the said primary is not in dispute. It is also not disputed that the appellant did not participate in his party’s primary.

At pages 1613 – 14 of the record, the lower court found as follows: ” with the death of Prince Audu before the election could be completed and a due return made therein, the candidates’ status radically changed. Prince Audu’s right to contest the election as the Governorship candidate of the APC naturally expired upon his demise and by the same token, the appellant’s legal right as the Deputy Governorship candidate of the deceased also followed suit. He was the nominee of the decaag and as a result of the inconclusive elect on coupted with the sudden and unexpected exit of Prince Audu he acquired no legal rights under Section 11) of the Constitution. That being the case a combination reading of Section 221 othe Constitution and Section 1371) of the Electoral Act, the law recognises that the APC has a legal right/interest in the votes cast and as a juristic person it became “the last man standing as it were. It therefore had a right to substitute the deceased Governorship candidate by virtue of Section 33 of the Electoral Act. ……This it subsequently did upon the express invitation to do so by the 1st respondent in its Public Notice, Exhibits P27 and R5.” I am of the view that the above analysis represents the correct position of the law. No doubt the situation would have been different if the lection conducted on 21/11/2015 was conclusive and the joint Prince Audu and the appellant declared and returned as the winner of tb election. The provisions of Section 181(1) of the Constitution would have become applicable. However, in the circumstances of this case, with the election held on 21/11/2015 being declared inconclusive a d the Governorship candidate having died, the appellant could not metamorphose into the Governorship candidate. His status remained that of a Deputy Governorship candidate to a deceased Governorship candidate, particularly as he did not participate in the party’s primaries, which is a pre-condition for anyone seeking elective office. On the whole, I find no merit in this issue. It is accordingly resolved against the appellant.

ISSUE 2

Whether the court below was right when it affirmed the decision of the trial Governorship Tribunal on the validity of the respondents’ preliminary objections as it relates to the issues of subject matter jurisdiction, cause of action and non-joinder of the appellant’s political party. This issue covers the appellant’s issue 8 and the Is respondents issue 3. I shall also consider the appellant’s issue 9 (1st respondent’s issue 2) on whether the appellant’s right to fair hearing was breached by failure of the lower court to properly resolve issue 1 placed before it.

Appellant’s submissions:

It is the appellant’s contention that having successfully challenged the jurisdiction of the Federal High Court in Suit FHC/ABJ/CS/977/2015 on the ground that the complaints therein relate to matters within the exclusive jurisdiction of Election Tribunal, it was inappropriate for the respondents to have then proceeded to raise objections to the jurisdiction of the Tribunal. Chief Olanipekun, SAN relied on the doctrines of issue estoppel and estoppel per rem judicatam. He also relied on the case of ADH Ltd. Vs. A.T. Ltd. (2006) 10 NWLR (pt. 989) 635 @647. He argued that the lower court having found that the trial Tribunal ignored his submissions on issue estoppel and res judicatam ought to have set aside the judgment of the trial Tribunal for breach of the appellant’s right to fair hearing. He submitted further that the lower court raised the issue that estoppel is outside the jurisdiction of the Tribunal suo motu and resolved same without hearing the parties. Relying on Onyebuchi Vs INEC( 2002) 8 NWLR (Pt.769) 417 @438 – 440 he argued that an interlocutory decision striking out a case, which is not appealed against ooerates as estoppel between the same parties if the same issues are religated before a court of competent Jurisdiction. He also relied on Ohakim Vs Agbaso (20190 19 NWLR (Pt.1226) 172 @ 232 – 233. He submitted that the lower court erred in holding that the trial Tribunal lacked jurisdiction. He submitted that every cause of action giving rise to the petition occurred after the election commenced on 21/11/2015 and the 1st respondent declared the election inconclusive, including the substitution of the 2nd respondent for the deceased candidate. He argued further that this is not an intra-party dispute necessitating the joinder of the APC but an issue of law as to whether the 2nd respondent satisfied the constitutional requirement to hold office as Governor of Kogi State. That the issue having arisen after the commencement of polls, it became a post-election matter properly suited for the Tribunal. On whether the APC was a necessary party, learned senior counsel submitted that from the record, in spite of its holding that it was not possible to explore the reasons for the substitution of the 2nd respondent without the APC being a party, it nevertheless was able to determine how and why the substitution occurred even though the APC was not joined in the suit He contended that the petition ought to have been sustained on the basis that there was a cause of action in respect of Section 179 of the Constitution even if the issue of substitution was found not to constitute a cause of action. He submitted further, on the issue of joinder, that a political party is not a statutory respondent to an Election petition. He referred to Sections 137(l).and 137(2) of the Electoral Act and submitted that since a political party, mentioned in Section 137(1) as one of the parties who could file a petition, is not mentioned in Section 137(2) as a statutory respondent, the law is that the express mention of one thing is to the exclusion of the other. Obi Vs INEC (2007) 1 NWLR (Pt.1046) 436 @458; Omoboriwo Vs Ajasin (Supra); Buhari Vs Yusuf (2003) 14 NWLR (Pt.841) 446@499 referred to. He argued that there was no allegation against the APC to warrant its joinder.

Learned senior counsel submitted that the court below was wrong to lay emphasis on the fact that the appellant did not participate in the primaries of the APC. He submitted that nomination of a Governorship candidate is covered by Section 87 of the Electoral Act while nomination of a Deputy Governorship candidate is regulated by Section 187(1) of the Constitution and therefore a Deputy Governorship candidate need not participate in a primary before being qualified as a Deputy Governor and entitled to take benefits of the opportunity to be governor under Section 181 of the Constitution. He submitted that the appellant became a candidate at the election by operation of the Constitution and not on the basis of the holding of primaries. On the failure of the lower court to properly resolve issue 1 argued in the appellant’s brief at pages 1402 – 1405 of the record on alleged breach of his right to fair hearing, Chief Olanipekun, SAN in addition to his earlier submission on the effect of the failure of the trial Tribunal to consider the issue of estoppel and the attitude- of the lower court thereto, contended that even though the lower court reproduced the seven legal issues, which the appellant complained about, in affirming the decision of the Tribunal, it failed to specify where the Tribunal resolved the issues. He was of the view that the holding of the lower court that the trial Tribunal affirmed the constitutionality of the INEC Manual in response to the appellant’s contention that the Constitution is exclusive in determining the due election of a Governor was erroneous and did not properly deal with the issue raised.

1st Respondent’s Submission:

In response to the above submissions, Dr. Alex Izinyon, SAN, submitted on behalf of the 1st respondent that the issue of estoppel M not arise, as in the suit before the Federal High Court the appellant was seeking to be declared “governor elect” while the reliefs claimed in the petition before the Tribunal centred on pre-election matters, to wit: the nomination and sponsorship of the 2nd respondent by the APC in substitution for its deceased Governorship candidate. In other words, that the petition before the Tribunal was based on a different set of facts, issues and reliefs from those before the Federal High Court. He submitted further that the appellant’s right to fair hearing was not breached because the lower court dealt with all the issues raised by him. He submitted that in any event jurisdiction of a Court or Tribunal is determined by the enabling statute and cannot be based on the comment of a Judge that the petitioner’s suit is best suited for a particular Court or Tribunal. He also placed reliance on ADH Ltd. Vs A.T. Ltd. (supra) @ 651D. He distinguished this case from the case of Ohakim Vs Agbaso (supra) cited by Chief Olanipekun, SAN on the ground that the pre-election issues relating to the nomination and sponsorship of a co-party member by one who did not participate in the party’s primaries, did not arise at any level of the courts in Ohakim’s case. Relying on the decisions of this court in Shinkafi Vs Yari (2016) 7 NWLR (Pt.1511) 340@375 – 376 G – H and Alhassan Vs Ishaku (2016) 10 NWLR (Pt. 1520) 230 @301 E – N, he submitted that even though the substitution of the 2nd respondent occurred in the course of the election, it still falls within the realm of a pre election matter and is an intra-party dispute, which the appellant was not entitled to question.

On the issue of non-joinder of the APC, learned senior counsel submitted that having regard to the fact that both the appellant and the r respondent belong to the APC and the fact of the appellant’s contents that having contested the election as the party’s Deputy Governorship candidate, he was entitled to step into the shoes of the deceased Governorship candidate, the APC was in the best position to inform the Tribunal who its candidate was. He noted that in paragraph 56(vii) of the petition, the appellant sought to nullify the victory of his political party without making it a party. He argued that this makes the APC a necessary party. He referred to: Azubuike Vs PDP (2014) 7 NWLR(Pt.1406) 292 @ 316 E – F; 313 D – E and Green Vs Green (2001) FWLR (Pt.76) 795 @ 814 G – H. On the superiority of a political party over a candidate in an election, he relied on Amaechi Vs INEC (supra). On whether there was a cause of action, learned senior counsel submitted that the appellant’s claim before the lower Tribunal was predicated on the premise that he won the election on 21/11/2015, when in fact no declaration to that effect had been made. He argued that Section 179 of the Constitution could not come into play as the cancellation of election in 91 polling units of the State could not be a reflection of the election conducted throughout the State. He submitted that the lower court was right when it held that, although the appellant was held to have the locus standi to ventilate his grievances before the Tribunal, the said locus was not sufficient to confer a right on him to pursue pre-election matters before the Trial Tribunal. He contended further that the appellant failed to bring his petition within the purview of Sections 177 and 182 of the Constitution. in response to the appellant’s contention that his issue 1 was not properly resolved by the lower court, learned senior counsel for the l9 respondent referred to pages 1580 – 1584 and pages 1584 – 1589 of Volume 3 of the record wherein the court below fully considered the various complaints. He submitted that, in any event, when an issue is not expressly determined but is subsumed in an issue that has been determined, it need not be determined again. He relied on Adebajo Vs A.G Ogun State (2008) 7 NWLR (Pt.1085) 201 @ 205 F – H. He maintained the position he took at the lower court to the effect that even if all the issues are not pronounced upon, the appellant did not suffer any miscarriage of justice and there was no basis for setting aside the decision. Kraus Thompson Org. Ltd. Vs UNICAL (2004) 9 NWLR (Pt.879) 631 @ 657 F – G; Amadi Vs N.N.P.C (2000) 10 NWLR (Pt.674) 76 @ 112 B – E.

2nd Respondent’s Submissions:

J.B. Daudu, SAN on behalf of the 2nd respondent argued that the lower court was right in affirming the decision of the trial Tribunal on the preliminary objections because the appellant’s complaints regarding the disqualification of the 2nd respondent were not based on any aspect of Section 182(2)(a), (b), (c) or (d) of the Constitution, which sets out the grounds upon which a Governorship candidate may be disqualified. He relied on several authorities, including Tarzoor Vs Ioraer (2006) 3 NWLR (Pt.1500) 463 @ 498; Ukachukwu Vs P.D.P. (2014) 17 NWLR (Pt.1435) 134 @ 203 A – D and Uzodinmma Vs Izunaso (No.2) (2011) 17 NWLR (Pt.1275) 30. He submitted that the court below was right in affirming the trial Tribunal’s finding that the APC was a necessary party because by virtue of Section 221 of the Constitution, there can be no independent candidate at an election in Nigeria.

Resolution of Issue 2:

As rightly submitted by learned senior counsel for the 1st respondent, there are concurrent findings of fact by the two lower courts on the merit of the preliminary objections raised by the respondents on the issue of jurisdiction, subject matter, joinder and cause of action. It is settled law that this court will not readily interfere with concurrent findings of fact by the two lower court unless such findings are Inter alia perverse, not supported by the evidence on record, or where there is a substantial error on the face of the record or some miscarriage of justice has occurred. See: Tarzoor Vs Ioraer (2016) 3 NWLR (Pt.1500) 463 @ 522 A – D; Akeredolu Vs Akinremi (No.3) (1989) 3 NWLR (Pt.108) 164: Gbadamosi Vs Dairo (2007) 3 NWLR (Pt.1021) 282. It is therefore incumbent on the appellant to satisfy this court that the findings are perverse. I have given careful consideration to the finding of the court below on the issue of estoppel. At pages 1584 to 1589 of Volume 3 of the record, the lower court considered the issues which the appellant contended were not addressed by the lower Tribunal one after the other. At pages 1586 – 1587, it dealt with the failure of the lower Tribunal to consider the issue of estoppel raised before it. The lower court held as follows: “It goes without saying that the jurisdiction of any Court or Election Tribunal is circumscribed by the enabling statute creating such Court or Tribunal. The jurisdiction of Election Tribunals in Governorship elections is circumscribed by Section 285(2) of the Constitution which provides. “2. There shall be established m each State of the Federation one or more election tribunals to be known as the Governorship and Legislative Houses Election Tribunal which shall, to the exclusion of any court or tribunal, have original jurisdiction to hear and determine petitions as to whether any person has been validly elected to the office of Governor or Deputy Governor or as a member of any legislative house.” In the light of this provision, the Tribunal would be over-stepping its bounds of jurisdiction and acting ultra vires in entertaining any other issue not within these limited jurisdictions. An Election Petition Tribunal is clearly not vested with fee power to embark on any collateral proceeding Rather the subject-matter of the Petition must complain about the election or conduct of Actions. The purport of Section 285(2) of the Constitution is that the jurisdiction of the Tribunal is not at large, but specific and limited to the hearing and determination of petitions relating to whether any person has been validly elected to the position of Governor. It is not an inquisitorial Tribunal.” I am of the view that this portion of the judgment fully answered the appellant’s complaint. It cannot be said that the appellant was denied fair hearing in the circumstance. The court held that since by virtue of Section 285(2) of the Constitution, the jurisdiction of the Tribunal is not at large but limited to the determination of petitions relating to whether any person has been validly elected to the position of Governor of a State or not, the appellant did not suffer any miscarriage of justice by the failure of the trial court to pronounce on the issue, being outside its jurisdiction to do so. As rightly submitted by learned senior counsel for the 1st respondent, the claims and reliefs sought in the two matters were not the same. In the suit before the Federal High Court, the appellant sought to pre-empt the substitution of the 2nd respondent for the late Prince Audu pursuant to the 1st respondent’s Public Notice declaring the election inconclusive on the basis that the election held on 21/11/2015 was concluded on that day and that a winner emerged who ought to have been returned by the 1st respondent as duly elected. On the other hand, in the petition filed before the Tribunal, it was the contention of the appellant inter alia that the 2nd respondent was, at the time of the election on 21/11/2015 not qualified to contest the election, that he was not elected by a majority of lawful votes cast, that the return of the 2nd respondent as Governor on 5/12/16 was unconstitutional, illegal, null and void and should be set aside and that he be issued with a certificate of return as the person duly elected as Governor of the State pursuant to the election held on 21/11/2015. I agree with the court below that in view of the very limited jurisdiction of the election Tribunal, it was not a matter it could have considered in any event and the appellant did not suffer any miscarriage of justice in the circumstance. I refer to Kraus Thompson Org. Ltd. Vs UNICAL (2004) 9 NWLR (Pt.879) 631@ 657 F – G where this court, while acknowledging the duty of a court to determine all issues raised before it and the fact that failure to deal with such issues may lead to an order of rehearing, held that such an order would be inappropriate where it is clear that no miscarriage of justice has been occasioned by the failure to deal with the issue canvassed or that the irregularity is not that of a substantial nature so as to prejudice any of the parties. The jurisdiction of Election Tribunals, as held by the court below is clearly provided for in Section 285(2) to the effect that a Governorship Election Tribunal shall have original jurisdiction, to the exclusion of any other court or Tribunal, to hear and determine petitions as to whether any person has been validly elected to the office of Governor or Deputy Governor of a State. Thus, it is the enabling statute that determines the jurisdiction of the Tribunal and not any pronouncement by a court of coordinate jurisdiction. Having regard to the nature of the petition before the lower Tribunal, I am of the view and I hold that the finding of the court below was apt and adequately addressed the issue raised as issue 1 by the appellant before it.

On the issue of subject matter, the lower court upheld the finding of the trial Tribunal to the effect that the issues of nomination and sponsorship of candidates are outside the jurisdiction of the Election Tribunal, while it is contended on behalf of the appellant that the circumstances that gave rise to the petition occurred after the election commenced and were therefore cognisable by the Tribunal. The issue that arises here is whether the two lower courts were right in holding that the appellant’s issues before the Tribunal centred around the sponsorship and nomination of the 2nd respondent to contest the election as substituted by his party, the APC. A careful reading of paragraph 56(i) to (xii) of the petition at page 18 of the record shows that all the appellant’s grievances stem from the nomination and sponsorship of the 2nd respondent by the APC to replace the late Prince Audu on the premise that the 1st respondent acted ultra vires in declaring the election of 21/11/2015 inconclusive when, in the appellant’s opinion, the election was concluded on that day and a winner had emerged. It is however relevant to reiterate the fact that both the appellant and 2nd respondent are members of the same political party. The law is quite settled that the nomination and sponsorship of a candidate at an election is within the internal affairs of a political party and therefore not justiciable, except in the limited circumstances set out in Section 87(9) of the Electoral Act where a co-aspirant alleges that the relevant guidelines of the political party or the provisions of the Electoral Act were not followed, in which case, it is the Federal High Court or the High Court of a State or Federal Capital Territory that would have the necessary jurisdiction to entertain the matter. In other words, they are pre-election issues. Ukachukwu Vs P.D.P. (supra) at 522 – 523; P.D.P. Vs Onwe (2011) 4 NWLR (Pt.1230) 166 @ 172 – 173 F – B; Amaechi Vs INEC (2007) 18 NWLR (Pt.1065) 170 @ 203 A – C. They are issues outside the purview of an Election Tribunal because the nomination and sponsorship of a candidate by his political party must take place before an election can be held. Similarly, where as in this case, a candidate died before the election was concluded, the nomination and sponsorship of a suitable candidate to take his place must also occur before the election can proceed. I am of the view that the case of Ohakim Vs Agbaso (supra) cited by learned senior counsel for the appellant is not applicable to this case. In Ohakim’s case, the 1st respondent, by way of an application for judicial review before the Federal High Court, sought to be returned as the duly elected Governor of Imo State in the election held on 14th April 2007. This court held that pursuant to Section 285(2) of the Constitution, the matter fell within the exclusive jurisdiction of the Governorship and Legislative Houses Election Tribunal. The finding of the lower court in the circumstances has not been shown to be perverse. On the issue of non-joinder of the All Progressives Congress as a party before the Tribunal, it is apposite to consider the factors that make a person a necessary party to an action. The position of the law was eruditely stated in the well-known case of Green Vs Green (1987) 3 NWLR (Pt.6) 481 where this court held that it is necessary to make a person a party to an action so that he should be bound by the result. It also held that a necessary party is one who is not only interested in the subject matter of the proceedings but also one in whose absence, the proceedings could not be fairly dealt with. See also: Azuhuike Vs P.D.P. (2014) 7 NWLR (Pt.1406) 292 (5) 316 E – F and 313 D – E. The question of proper parties has been held to affect the jurisdiction of the court as it goes to the foundation of the suit in limine, in which case the court would lack jurisdiction to hear the suit. See: G. 8i T. Investment I td. Vs Witt ft Bush Ltd. (2niH 8 NWLR (Pt 1750) 500 @ 538 F -H.

The trial Tribunal at pages 1280 – 1281 of the record came to the conclusion that the APC was a necessary party to the petition on the following grounds: (a) that the APC is the political party that sponsored both the petitioner (appellant) and the 2nd respondent; (b) that although the petitioner contends that he has sought no relief or complained against the said political party (APC), he has however urged the Tribunal to declare that the return of the 2nd respondent is unconstitutional, illegal, undemocratic, arbitrary, null and void and ultra vires the powers of the 1st respondent, which relief is indirectly sought against the political party (APC); (c) that the APC is a necessary party being a person likely to be affected by a decision in the matter and whose presence would assist the Tribunal in effectively determining the dispute between the petitioner (appellant) and the 2nd respondent. The lower court agreed with this finding at page 1631 of the record. I am of the view that the concurrent findings accord with the justice of the case and are not perverse. This is because the reliefs in paragraphs 56(viii) & (xi) of the petition which pray “that it may be determined and thus declared that the return of the 2nd respondent by the 1st respondent in December 5, 2015 is unconstitutional, illegal, unlawful, undemocratic, arbitrary, null and void and also ultra vires the powers of the 1st respondent” and for “on order mandating/directing the 1st respondent to issue forthwith to the petitioner a certificate of Return as the person duly elected as Governor of Kogi state pursuant to the ejection held in November 21, 2015,” although do not specifically seek reliefs against the APC, are certainly matters in which the interest of the party is involved, as its right to nominate and sponsor a candidate at the election is being questioned. This is more so, as on the authority or Amechi Vs INEC(supra) and Section 221 of the Constitution, it is the political party that contests elections even though through its candidates and there is no provision in our law for indepent candidates. I see no reason to interfere with the concurrent findings of the two lower courts in this regard. The fact that a political party is not named as a statutory respondent in Section 137(2) of the Electoral Act most not be a bar to joining a political party as a respondent where its interest is involved and where it would be bound by the result of the action.

On the issue of cause of action, I agree with the finding of the court below, which affirmed the decision of the trial Tribunal that the appellant failed to disclose a cause of action having based his claim substantially on pre-election matters and on the premise that the election which took place on 21/11/2015 was conclusive and that by virtue of Section 179(2) of the Constitution he was entitled to be declared Governor elect. Earlier in this judgment, I held that there was no return made by INEC declaring a winner at the election on 21/11/2015. The election was not concluded until 5th December 2015. The substratum of the appellant’s complaint was non-existent. On the whole, I find no merit in this issue. It is accordingly resolved against the appellant.

Issue 3

Whether the court below was right in affirming the trial Tribunal’s decision that votes cast for the late Prince Audu and the appellant in the Governorship election of November 21, 2015 were transferrable to the 2nd respondent. This issue was dealt with in the course of resolving issue 1. It was answered in the affirmative to the effect that the All Progressives Congress, being the party that canvassed for votes in consonance with Section 221 of the Constitution had a legal interest in the votes cast on 21/11/2015 and its nominated and sponsored candidate was entitled to the benefit of those votes at the conclusion of the election process on 5th December 2015. This issue is accordingly resolved against the appellant.

Issue 4

Whether from the entire facts and circumstances leading to t appeal, the court below rightly affirmed the decision of the trial Tribunal the effect that the petition was incompetent ab initio. This issue covers the appellant’s issues 5 and 7 and the respondent’s issue 4.

Appellant’s submissions:

It is contended on behalf of the appellant that the court below erred when it held that although the appellant had the locus standi to file the petition he could not claim any remedy. Chief Olanipekun, SAN submitted that all the necessary requirements to ground a petition under Section 138(l)(c) of the Electoral Act based on Sections 179(2) and 181(1) of the Constitution were met. That the appellant was a candidate at the election pursuant to Section 187(1) of the Constitution and therefore satisfied the condition for eligibility to present a petition under Section 137(2) of the Electoral Act; that the person returned by INEC was made a respondent in compliance with Sections 133 and 137(2) of the Act. He submitted that the appellant was entitled to bring the petition notwithstanding the fact that he and the 2nd respondent were from the same political party as both were asserting competing rights to the office of Governor of Kogi State. He also relied on Section 285(2) of the Constitution. Relying on Okotie-Eboh Vs Manager (2004) 18 NWLP (Pt-904) 242 @ 243. he submitted that any legislation that would take away a party’s right of action must do so explicitly. He submitted that there is nothing in Section 138(l)(c) of the Electoral Act that precludes a member of the same party from bringing a petition. He submitted that what is not expressly prohibited is allowed. A.G. Ondo State Vs A.G. Ekiti State (2001) 17 NWLR (Pt.743) 706 (@) 770 referred to. He submitted that contrary to the finding of the lower court, there was no need for the appellant to prove that the votes cast in favour of the winning candidate were tainted with illegality. He submitted that once the court finds that the election was concluded on 21/11/2015, that requirement would have been satisfied. In support of the contention that electoral malpractices need not be proved, he relied on Omoboriowo Vs Ajasin (supra) where severance of pleading was allowed and the appeal determined on the computation of undisputed votes to sustain the ground of due election. That the complaint of the appellant is that the undisputed 240,867 votes garnered at the election of 21/11/2015 at which the 2nd respondent did not participate constituted the majority of lawful votes that returned him and the late Prince Audu as winners of the election.

Referring to Sections 140(3) and 138(l)(c) of the Electoral Act, learned senior counsel submitted that contrary to the finding of the court below, the Sections do not imply that “majority of lawful votes” must succeed only on proof of unlawful votes. He submitted that what was required of the appellant was to state the score with which he claimed to have won the majority of lawful votes cast. He relied on Mu’azu Vs El-Yakub (20m 7 NWLR (Pt.1245) 181 @ 198 and submitted that the appellant was able to show that by the 240,867 votes which he scored on 21/11/2015, he was already deemed by the Constitution to have won the election, against 6,885 votes scored by the 2nd respondent who was not a candidate at the election and did not satisfy the necessary requirements to contest and assume office as Governor.

Learned senior counsel urged the court to set aside the finding that there was only one election and that the votes at the election of 21/11/2015 cannot be attributable to the appellant, as by virtue of Sections 179 and 181(1) of the Constitution, the votes were in fact attributable to the appellant.

The other complaint of the appellant is that the court, below erred when it held that there was no pleading in proof of the 2nd respondent’s disqualification. He contended that the petition is replete with proven allegations that the 2nd espondent did not nominate a Deputy Governorship candidate. Relying on PDP Vs INEC (1999) 11 NWLR (Pt.626) 200 @ 239 – 240 (also relied on by the lower court), he submitted that since a Governorship candidate cannot be validly nominated-without a Deputy Governorship candidate, it goes without saying that a Governorship candidate has failed to satisfy the provisions of Section 177(c) of the Constitution if he fails to nominate a deputy. He submitted that Sections 177, 182 and 187 of the Constitution are to be jointly interpreted and applied in the determination of a qualified candidate. He spitted that Section 187(2) of the Constitution incorporates Sections 177 &182.- He contended that the record does not support the finding of the court below that the 2nd respondent adopted the appellant as Deputy Governorship candidate. He reproduced relevant portions of the record to buttress his submission on this point. He submitted that findings not based on the evidence on record are perverse and urged this court to so find. On the holding of the court below that the appellant did not withdraw his candidacy in line with Section 33 of the Electoral Act, he submitted that withdrawal of candidature will not arise where there has not been a valid nomination as required under Section 187(1) of the Constitution. He argued that the court below was wrong when it held that the appellant remained the Deputy Governorship candidate throughout the election from 21/11/2015 up to 5/12/2015 and the declaration of result on 7/12/2105. He referred to Exhibits P14, P15 and P16 tendered by the appellant at the Tribunal to the effect that the election was concluded on 21/11/2015 and that having regard to the death of Prince Audu, he was entitled to be sworn in as Governor and that he would not participate in any supplementary election, to buttress the submission that he was never nominated as the Deputy Governorship candidate of the 2nd respondent. He argued further that the appellant could not have been the running mate in the supplementary election of 5/12/2015 having been found by the court below not to have participated therein. It is contended that the 2nd respondent did not participate in all the stages of the election and that the lower court’s finding that he voted at the election is not supported by the record particularly as he was not shown to be a registered voter in Kogi State. Referring to paragraphs 8, 12, 14, 15, 18 and 49 of the petition, he submitted that the appellant’s pleading fully met the conditions for alleging disqualification under Section 177 of the Constitution.

1ST RESPONDENT’S SUBMISSIONS:

In reply to the above submissions, Dr. Alex Izinyon, SAN submitted that in determining the issue of qualification or disqualification of a candidate for election to the office of Governor or Deputy Governor of a State, this court has held in cases such as Tarzoor Vs Ioraer (supra); ANPP Vs Usman (supra); PDP Vs INEC (supra); Shinkafi Vs Yari (supra) and Kubir Vs Dickson (supra) that the election Tribunal is limited to the provisions of Sections 177 and 182 of the 1999 Constitution. He submitted that the lower court was right in holding that there was no aspect of the appellant’s pleading or evidence before the Tribunal to establish that any provision of Sections 177 or 182 of the Constitution had been violated by the 2nd respondent. He referred to paragraphs 8, 9, 18, 21 and 23 to support the contention that the ground of disqualification is not premised on any of the provisions of Sections 177 and 182 of the Constitution. He submitted that not only did the appellant’s pleadings not support the ground of disqualification, the appellant’s witness statement on oath did not advance his case either, while there was documentary evidence before the court which clearly establishes that the 2nd respondent was a candidate at the election and also explained the circumstances that brought him in as a candidate.

In paragraph 4.179 of his brief, Dr. Izinyon, SAN traced the facts and circumstances that led to the substitution of the 2nd respondent and submitted that the 2nd respondent’s nomination was a contingency brought about by the death of the former Governorship candidate of the APC before the election was concluded. He submitted that the replacement was valid in law and there is nothing before the court to show that due process was not followed by the 1st respondent in allowing the APC to replace its deceased candidate. He submitted further that it does not lie in the mouth of the appellant, a member of the same political party to question the qualification of the 2nd respondent, which is a matter within the domestic affairs of the APC and in respect of which the Tribunal lacks jurisdiction. He referred to Gwede Vs INEC 18 NWLR (Pt.1438) 56 @ 126 C – F. He noted that vide the evidence of RW1 and Exhibit P2(8), it was established that the 2nd respondent was the person who came second in the primaries whereas the appellant did not participate therein. He maintained that the appellant was a candidate at the election, duly nominated by his party and that the lower court rightly affirmed the decision of the trial Tribunal.

On the contention that the 2nd respondent was not qualified to contest the election because he did not nominate a running mate, he submitted that the issue does not flow from any of the grounds for qualification of a candidate for the office of Governor as provided for in Sections 177 or 182 of the Constitution nor is it contemplated under Section 138(l)(a) of the Electoral Act.

Learned senior counsel distinguished the case of Balewa Vs Muazu (1999) 5 NWLR (Pt.604) 638 @ 647 – 648 G – B wherein a full panel of the Court of Appeal construed the provisions of Section 98(l)(k) of the State Government (Basic Constitutional and Transitional Provisions) Decree No.3 of 1999 and held that a governorship candidate was disqualified for failure to nominate a running mate, as inapplicable to the facts and circumstances of this case, as Section 91(l)(k) of Decree No.3 of 1999 has no equivalent provision in Sections 177 and 182 of the Constitution. He noted that while adopting Section 96(l)(a) – (j) in Section 182 of the 1999 Constitution, sub-paragraph (k) was deliberately omitted which is a clear indication that there was no intention for it to continue to apply under the 1999 Constitution. He maintained that there is no disqualifying provision in Sections 177 and 182 of the Constitution akin to that found in Section 91(l)(k) of Decree No.3 of 1999. He submitted further that Section 187(1) of the 1999 Constitution is not a ground for the disqualification of a candidate under Section 138(l)(a) of the Electoral Act, as it deals with nomination and sponsorship of a candidate for the office of Governor and Deputy Governor, which is outside the purview of the jurisdiction conferred on the Election Tribunal under Section 285 of the Constitution. He submitted that Section 187 relates to pre-election issues. He referred to Shinkafi Vs Yari (supra) @ 18 – 21. He submitted that not having participated in the primaries the appellant could not seek to bring a petition on the issue of nomination and sponsorship. He argued further that Section 187(1) of the Constitution is outside the purview of Section 138(l)(a) of the Electoral Act. He submitted that Ground 1 of the petition which is anchored on Section 138(l)(a) is bereft of any fact in support of the petition based ,on Sections 177 and 182 of the Constitution.He submitted that the appellant did not lead any evidence to prove that the appellant did not vote at the election. He submitted that the 2nd respondent led evidence video RV1 that he was registered and voted at the election and tendered his voter’s card, Exhibit R2-1. He submitted that where no evidence is led by plaintiff, a defendant is not obliged to call any evidence in rebuttal.

In the averments in paragraphs 16 and 21 of the 1st respondent’s reply on status of the 2nd respondent’s eligibility to vote in Kogi State, he submitted that the pleadings are deemed abandoned since no evidence was led there. He contended that since the appellant seeks declaratory reliefs, his could not be granted on the basis of admission. He referred to severe including CPC Vs INEC (2012) ALL FWLR (pt.617)605 @ 41; Doma & Anor. Vs INEC & Anor. (2012) LRECN 398 @ 415: Yusuf Vs Obasanio (2003) 16 NWLR (Pt.847) 554.

Learned senior counsel maintained that failure to nominate a Deputy Governorship candidate is not a ground for disqualification of a candidate for the office of Governor.

Referring to pages 243, 244 and 246 of Volume 1 of the record, he submitted that there were pleadings and evidence before the Tribunal that the appellant remained the running mate of the 2nd respondent at the election. He noted that it was the appellant who attempted to prove the fact of his withdrawal at the trial Tribunal through Exhibits P14, P15 and P16 and that he was not entitled at this stage to argue that the issue of withdrawal does not arise. He submitted that the appellant remained the Deputy Governorship candidate throughout the election as the said election was not concluded on 21/11/2015. He submitted that t,e appellant did not produce any evidence to show that the 2nd responds voted at Abuja and cannot rely on any evidence not pleaded.

In reference to the case of Yusuf Vs Obasanjo (supra) he maintained that failure to vote at an election is not one of the grounds contemplated under Sections 177 and 182 of the constitution. He submitted further that the court below was right in holding that the reason the 2nd respondent should not participate in the election of 21/11/2015 was because Prince Audu was still alive. He submitted that his finding is subsisting and not applied against and therefore 2nd respondent’s non-participation on 21/11/2016 cannot be ground for disqualification under Section 177 of the constitution. He submitted that Section 141 of the Electoral Act and the case of CPC Vs Ombugadu (supra) are not applicable, as the 2nd respondent took part in all the stages of the election. Learned senior counsel considered the grounds of the petition separately as to whether the lower court was right in holding that the facts pleaded in support of the ground under Section 138(l)(a) of the Electoral Act were at variance with Sections 177 and 182 of the Constitution. He reiterated his earlier position that qualification for the office of Governor could only be challenged with reference to Sections 177 and 182 of the Constitution. He referred to Shinkafi Vs Yari (supra) and Alhassan Vs Ishaku (supra). On ground 2 he agreed with the court below that where a petition is predicated in Section 138(l)(c) of the Constitution, two sets of results must be pleaded as emanating from the same election. He relied on: Nwobodo Vs Onoh (1984) 1 SCNLR 1 @ 34: Abuhakar Vs Yar’Adua (2008) 19 NWLR (Pt.1120) 1 @ 155U. He submitted that failure to plead two sets of results renders the petition incompetent. He referred the court to paragraphs 47 – 52 of the petition at page 16 Volume 1 of the record to substantiate the point that there is no such pleading.

Learned senior counsel submitted that the finding of the court below that Section 138(i)(c) of the Constitution does not envisage a situation where candidates from the same party would be questioning the outcome of the election is in full alignment with the meaning of the section and does not amount to the court reading into the section what it does not contain. He submitted that by a combined reading of Sections 31(1) and 32(2) of the Electoral Act, no political party is permitted by law to nominate two persons for the same political office and therefore it is a correct interpretation of the law to hold that only a member of a different political party is contemplated as being entitled to challenge the return of the winner. HP TPIIPH nn Gwede Vs INEC T2Q14) 18 NWLR fPt.1438) 56 @ 126 C-F. He argued that there is no inconsistency in the court’s finding that the appellant had locus standi to institute the action but did not have pleadings that supported his case, as the issue of locus standi was tied to his nomination as Deputy Governorship candidate in accordance with Section 187 of the 1999 Constitution, which qualified him to participate as such in the election and the eventual finding that his petition could not be sustained under Section 138(l)(c) of the Electoral Act having regard to his pleadings.

Learned senior counsel argued that in the absence of any pleading that he contested the election as a Governorship candidate of his party, by virtue of Sections 31(1), 32(2), 137(2) and 138(l)(c) of the Electoral Act, the appellant was foreclosed from grounding a petition under Section 138(l)(c) of the Act. He argued that contrary to the submission of learned senior counsel for the appellant, even if the election held on 21/11/2015 were concluded, it would not be a ground for holding that the votes cast at the supplementary election held on 5/12/2015 were unlawful. He distinguished Omoboriowo’s case from the facts of this case on the ground that the parties belonged to two different parties and that the appellant in that case was a Governorship candidate and not a Deputy Governorship candidate; and further that the case did not decide that two sets of votes are not necessary to prove the existence of unlawful votes.

On reliance by learned senior counsel for the respondent on Section 140(3) of the Electoral Act, he submitted that the provision can only come into play where there is proper pleading and evidence led on two sets of results at the same election and the candidate claim to have won based on the fact that unlawful votes were given to the respondent. He distinguished the case of Muazu Vs El-Yakubu (supra) on the ground that the provisions of Section 138(l)(c) of the Electoral Act were not considered in that case.

2nd Respondent’s submissions:

Like his brother silk, for the 1st respondent, J.B. Daudu, SAN submitted it is not enough for a petitioner to ground his petition under Section 138 of the Electoral Act without pleading facts in support of the ground. He submitted that further particulars cannot amend a pleading to create a cause of action where none existed. He referred to Ojukwu Vs Yar’Adua & Ors (2009) 12 NWLR (Pt.1154) 50. He submitted that the burden of proving that the 2nd respondent did not fulfil the requirement of the law in Sections 177 and 182 of the Constitution lay on the appellant. He submitted that rather than plead facts to support the grounds of the petition, the appellant’s case is that as at 21st November 2015 he had won the election having scored 240,687 votes as opposed to the 2nd respondent who was substituted as a result of the death of Prince Audu, scored 6,885 votes. In his view, this is akin to contending that two elections were held in respect of the Kogi State Governorship election. He submitted that these facts cannot sustain the petition. On the authority that pleaded facts must have a nexus to the grounds of the petition, he relied on Oshiomole Vs Airihiarvbere & Ors (2013) LPELR – 1976 2(SC). Relying on Kubir Vs Dickson (2013) 4 NWLR (Pt.1345) 534 & 589, he submitted that parties are bound by their pleadings and cannot lead evidence at variance with their pleading. He submitted that not only did the appellant fail to plead facts in support of his pleadings, he failed to plead facts upon which the court would determine who scored the majority of lawful votes cast at the election. He submitted that stating the scores recorded for the candidates without more does not meet the requirement because there is no second set of figures with which to compare what the appellant considers to be lawful votes. On the need to plead two sets of results, he referred to Awuse Vs Odili (2005) 16 NWLR (Pt.952) 416 @ 482 G — 485 B; Nwobodo Vs Onoh (1984) 1 SCNLR 1.

RESOLUTION OF ISSUE 4:

I observe that in commencing his submissions under this issue, learned senior counsel for the appellant has again raised the issue of the competence of the appellant to file his petition at the court below, having met all the requirements under Sections 133(1) and 137(2) of the Electoral Act. This issue was resolved in his favour by the lower court when it overruled the trial Tribunal and held that he had the focus standi to file the petition. However, the fact that a party has the focus standi to institute an action does not mean that the action itself is competent. Its competence will depend on the issues raised, the reliefs sought and the applicable laws.

Section 138 of the Electoral Act provides for the grounds upon which an election may be questioned as follows:

“138(1) An election may be questioned on any of the following grounds, that is to say:

(a) that a person whose election is questioned was at the time of the election, not qualified to contest the election;

(b) that the election was invalid by reason of corrupt practices or non-compliance with the provisions of this Act;

(c) that the respondent was not duly elected by majority of lawful votes cast at the election; or

(d) that the petitioner or its candidate was validly nominated but was unlawfully excluded from the election.”

The appellant predicated his petition in sub-sections (a) and (c). The two lower courts were of the view that where the qualification of a candidate to contest election into the office of Governor of a State is one of the grounds of a petition, the only relevant provisions to be considered are Sections 177 and 182 of the Constitution. The appellant on the other hand contends that Section 187 of the Constitution must also be considered.

For ease of reference the said sections are reproduced below:

“Section 177: 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;

(c) he is a member of a political party; and

(d) he has been educated up to at least School

Certificate level or its equivalent.

Section 182(1): No person shall be qualified for election to the office of Governor of a State if –

(a) subject to the provisions of section 28 of this Constitution, he has voluntarily acquired the citizenship of a country other than Nigeria or, except in such cases as may be prescribed by the National Assembly, he has made a declaration of allegiance to such other country; or

(b) he has been elected to such office at any two previous elections; or

(c) under the law in any part of Nigeria, he is adjudged to be a lunatic or otherwise declares to be of unsound mind; or

(d) he is under a sentence of death imposed by any competent court of law or tribunal in Nigeria or a sentence of imprisonment for any offence involving dishonesty or fraud (by whatever name called) or any other offence imposed on him by any court or tribunal or substituted by a competent authority for any other sentence imposed on him by such a court or tribunal; or

(e) within a period of less than ten years before the date of election to the office of Governor of a State he has been convicted and sentenced for an offence involving dishonesty or he has been found guilty of the contravention of the Code of Conduct; or

(f) he is an undischarged bankrupt, having been adjudged or otherwise declared bankrupt under any law in force in Nigeria; or

(g) being a person employed in the public service of the Federation or of any State, he has not resigned, withdrawn or retired from the employment at least thirty days to the date of the election; or

(h) he is a member of any secret society; or

(i) deleted (2010, No.1)

(j) he has presented a forged certificate to the Independent National Electoral Commission.

Section 187(1): In any election to which the foregoing provisions of this part of this Chapter relate, a 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 the candidate shall be deemed to have been duly elected to the office of Deputy Governor if the candidate who nominated him is duly elected Governor in accordance with the said provisions.” The first issue to consider is whether Section 187(1) of the Constitution can be construed as a provision relating to the qualification of a Governor. As alluded to earlier in this judgment, provisions of the Constitution must be given their natural and ordinary meaning where the words used are clear and unambiguous. See: Ojokolobo Vs Alamu (supra); Saraki Vs F.R.N. (supra) Section 187(1) specifically deals with the issue of nomination. A Governorship candidate will not be deemed to have been validly nominated if he fails to nominate a running mate. The nomination and sponsorship of a candidate, as consistently held in a plethora of decisions by this court, is a matter within the domestic affairs of a political party over which the courts have no jurisdiction except as provided for in Section 87(9) of the Constitution. See: Onuoha Vs Okafor (supra): Daniel Vs INEC (2015) 9 NWLR (1463) 113 @ 155 – 157: P.D.P. Vs Sylva (2012) 13 NWLR (Pt.1316) 85. The qualification of a candidate on the other hand is within the jurisdiction of the Election Tribunal to determine whether, at the time of the election the candidate was qualified to contest the election. This court in Tarzoor Vs Ioraer (supra) at 498 – 499 F – B held that in order to determine whether a person is qualified or disqualified to contest an election in terms of Section 138(l)(a) of the Electoral Act, resort must be had to Sections 177 and 182 of the Constitution. It was therefore incumbent upon the appellant through his pleadings and by evidence to prove that the 2nd respondent was either not qualified to contest, having not fulfilled one of the requirements of Section 177 or that he was disqualified from contesting having fallen foul of one of the provisions of Section 182(1) of the Constitution. See also: P.D.P. Vs INEC (2014) LPELR – 23808 (SO: (2014) 9 SC 141. Tn Shinkafi & Anor. Vs Yari & 2 Ors (2016) 1 SC (Pt.II) 1 @ 35 – 36, this court per Okoro, JSC, held: “Taking the above provisions together i.e. Sections ,. 177 and 182(1) of the 1999 Constitution (as amended) it is seen that both the provision for qualification and that for disqualification are so comprehensive, which makes them exhaustive. Thus the Constitution as the grundnorm (supreme law of the land) having made such elaborate and all encompassing provisions for qualification and disqualification of persons seeking the office of Governor of a State does not leave room for any addition to those conditions already set out.” This no doubt represents the correct position of the law.

Ground 1 of the petition states that the 2nd respondent was at the time of the election not qualified to contest the election.

Paragraphs 8, 9, 18, 21 and 23 of the petition at pages 2, 10 and 11 of Volume 1 of the record pleaded in support of ground 1 read as follows:

“8. Your Petitioner states that the 2nd respondent was not a candidate at the governorship election conducted and concluded by the 1st respondent on Saturday, November 21, 2015.

Despite paragraphs 7 and 8, the 2nd respondent was allowed by the 1st respondent to participate in the supplementary election held on 5th December, 2015, to the office of Governor of Kogi State, and at the end of the supplementary election, was unduly returned as Governor of Kogi State.

Your Petitioner states that the 2nd respondent, Yahaya Bello, who did not register as a voter, who did not vote at the election, who did not present himself to the electorate for votes at the election of November 21, 2015 and who did not nominate another candidate as his associate for his running for the office of Governor, who is to occupy the office of Deputy Governor, was declared the winner of the election by the 1st respondent on December 5, 2015. The Voters Registers used at the 2nd respondent’s ward in the election are hereby pleaded.

Your Petitioner states that, apart from the fact that the 2nd .respondent did not register, vote or seek to be voted for at the election, he did not nominate or submit to the 1st respondent any candidate as his associate for his running [mate] for the office of Governor of Kogi State as mandated by the Constitution.

Your Petitioner states further that the Form CF002B submitted to the 1st respondent in respect of the 2nd respondent on or about November 27, 2015 has no deputy governorship candidate who was to contest along with him. The said Form shall be founded upon at the Trial.” Indeed I have perused the entire petition. I agree entirely with the court below that none of the pleadings relate to the grounds for qualification or disqualification of a candidate for election into office as Governor as provided for in Sections 177 and 182 of the Constitution.

The onus was on the appellant seeking declaratory reliefs to establish his case by his pleadings and by evidence led in support thereof on a preponderance of evidence. Even though the court below proceeded to examine the oral and documentary evidence led by the appellant and concluded that he failed to prove that the 2nd respondent was not qualified or was disqualified from contesting the election in accordance with Sections 177 and 182 of the Constitution, I am of the view that the exercise was done out of an abundance of caution. This is so because evidence led on facts not pleaded goes to no issue. See: Anyafalu Vs Meka & Ors (2014) LPELR – 22336 (SC): Aminu & Ors Vs Hassan & Ors (2014) LPELR – 22008 (SC): Adimora Vs Ajufo (1988) 3 NWLR (Pt.80) 1. On the other hand, the lower court at pages 1641 – 1643 of the record gave a detailed review of the facts and circumstances that led to the 2nd respondent being substituted for the late Prince Audu, as garnered from the record, including the fact that he participated in his party’s primaries whereas the appellant did not, and came to the conclusion, rightly in my view, that there was no feature of the case that established non-qualification or disqualification under Sections 177 and 182 of the Constitution. I therefore agree with the lower court, which affirmed the decision of the court below that there were no pleadings to support Ground 1 of the petition which complained of the non-qualification of the 2nd respondent to contest the election.

The second ground of the petition is that “the 2nd respondent was not duly elected by majority of lawful votes cast at the election. It is important to observe at this stage that the appellant’s contention all along has been that the election was concluded on 21/11/2015 and that he and the late Prince Audu having garnered 240,867 votes were deemed to have won the election by operation of Section 177(2) of the Constitution. Indeed on this basis he refused to participate in the supplementary election that took place on 5/12/2015. As rightly observed by J.B. Daudu, SAN for the 2nd respondent, the appellant’s stance has been to regard the election conducted on 21/11/2015 and the supplementary election conducted on 5/1/2015 as two separate elections where he and the late Prince Audu won by 240,867 votes and the 2nd respondent won 6,885 votes respectively. In the course of this judgment, I have held that the 1st respondent was right when it declared the election conducted on 21/11/2015 inconclusive having regard to the margin of votes of the winning candidates being less than the total number of registered voters in the 91 polling units where election was cancelled. I have also held that the supplementary election conducted on 5/12/2015 was proper and that the APC and its sponsored candidate, the 2nd respondent, was entitled to all the votes cast in its favour at the conclusion of the election on 5/12/2015. I also agree with the court below and with learned senior counsel for the 1st respondent that Section 138(l)(c) of the Electoral Act does not envisage a situation where a member of the same party would challenge the winner of an election. See: Gwede Vs INEC (2014) 18 NWLR (Pt.1438) 56 @ 138.

Section 31(1) of the Electoral Act provides:

“31(1) Every political party shall not later than 60 days before the date appointed for a general election under the provisions of this Act, submit to the Commission in the prescribed forms, the candidates the party proposes to sponsor at the elections

Section 32(2) of the Act also provides:

32(2) “No person shall nominate more than one person for an election to the same office.”

By these provisions it is clear that in relation to election petitions the Electoral Act envisages a dispute between candidates of different political parties. This explains the requirement that where an election is questioned on the ground that the respondent was not duly elected by majority of lawful votes cast under Section 138(1) of the Act, the petitioner is required to plead two sets of figures: the scores announced by INEC and the scores he considers to be correct. See: Awuse Vs Odili (2005V 16 NWLR (952) 416 @ 482 G – B: Nwobodo Vs Onoh (1984) 1 SCNLR 1. Where appropriate he is expected to call witnesses to testify as to the misapplication of the votes. The appellant based his claim of scoring a majority of the votes cast at the election on the figure of 240,867 votes announced by INEC on 21-11-2015 at a stage when the election was inconclusive. He did not plead two sets of results.

On this issue the court below opined thus at page 1656 – 1658 of the record:

“Certainly, from the evidence before the Tribunal, only one election was held for the office of the Governor of Kogi State. Polling commenced on 21-11-2015 and, owing to the declaration of the umpire INEC, that it was inconclusive for reasons which it clearly articulated both to the candidates at the election and the electorate, a supplementary election was subsequently held in order for a clear winner to emerge amongst the different Political Parties sponsoring candidates in the election. The election was concluded on 05-12-2015. It is therefore manifestly incorrect and patently inaccurate to give the impression, as the Appellant has sought to do, that of the two phases/stages of the election, the first set of scores is attributed to him personally as the Deputy Governorship candidate upon the death of the Governorship candidate, and the second is personal to the 2nd respondent. That therefore, from a comparison of the two sets of scores, he (the Appellant) scored say the least, is a creative and ingenious spin on the interpretation of Section 138(l)(c) of the Electoral Act, which however, with the greatest respect to the Appellant, is fallacious and not in tandem with the judicial interpretation of the law as laid down in a host of decisions of Courts issued down the line. For all these reasons, I resolve issue six against the Appellant.” I am entirely in agreement with the lower court in this regard. On the whole I resolve this issue against the appellant.

Having resolved all the issues in this appeal against the appellant, I hold that the appeal lacks merit. It was for this reason that I dismissed it on 20th September 2016 and affirmed the judgment of the lower court delivered on 4/8/2016 which upheld the judgment of the Kogi State Governorship Election Tribunal delivered on 6/6/2016 affirming the return of the 2nd respondent, Yahaya Bello as the duly elected Governor of Kogi State.

Appeal dismissed. Parties to bear their respective costs.

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SC. 648/2016