A CRITICAL APPRAISAL OF THE SUPREME COURT’S VERDICT IN THE KOGI STATE GOVERNORSHIP ELECTION

Time and time again has come to show, perchance any little to go by
the splitting dissatisfaction of election results in my dear country,
it is that the aggrieved or grieving party always than not carry their
grievance beyond the doormat of party settlement into the innings of
election tribunals for resolution. It is such in most men’s nature not
to acquiesce defeat, it is prime of them to rev up the propensity
always ever for reprisals, however little.
In our case under review, it cannot be gain said to be good law to
file an action before a competent tribunal to register ones
dissatisfaction or displeasure of electoral results or the outcome of
the election per se. It cannot be said to be blue law as a foregoing
to go at another law and justice upon a perceived or actual assault of
election results. If it be found to be brought under the purview of
Section 133 of the Electoral Act (2010) regarding the 21 days
ultimatum for filing any election petition against the declared
election results, then will one be said equipped with an actionable
cause.

The case of James Faleke and Yahaya Bello stands novel in the history
of election cases in Nigeria as it has helped console the twittery
constitutional crevice as none like ever had in its provisions
regarding the demise of a candidate after nomination but, before the
declaration of election results. One would have traced its tale to the
usual election matters and its attendant trimmings in Nigeria, and
just like flapping a coin it turned its other side, one above the ken
of the Electoral Act and even the Constitution of the Federal Republic
of Nigeria.

It is indeed commendable the rising judgment from such a case as the
verdict came on the heels of a long haul protracted litigation from
the aggrieved petitioner; Mr. James Faleke, who turned appellant after
he picked holes with the judgment of the tribunal when he fell from
grace. No little less than nine (9) months gone by just in time, the
Supreme Court’s verdict was given to lay to rest frayed nerves.
Indeed, this novel circumstance brought to bear the wit of our Supreme
Court judges.

The facts of the case was such that the Independent National Electoral
Commission (INEC) on the 21st of November, 2015 conducted the
Governorship election in Kogi State. It was indeed keenly contested by
various political parties, prominent amongst them was the Peoples
Democratic Party (PDP) that had Captain Idris Wada ostensibly the
incumbent Governor of the state, don the party’s toga ably presented
as the Governorship candidate, and the All Progressive Congress (APC)
who had Prince Abubakar Audu and James Faleke as the party’s flag
bearer for both governorship and deputy respectively.

The election results was declared on the 22nd of November, 2015 by
INEC just a day after the main election. It had the APC polled 240,867
votes as against the 199,514 votes polled by the PDP with a 41,353
votes difference in APC’s favour. That ordinarily would have had INEC
pronounce Prince Abubakar Audu winner of the election but, for the
total number of registered voters in 91 polling units in 18 local
government areas where the election was cancelled, it had to be
declared inconclusive.

The state returning electoral officer Emmanuel Kuchi declared the said
election inconclusive on November  22nd, 2015 and could not have
declared Prince Audu winner because there were still outstanding
registered voters of about 49,983 and the difference between the
initial results notched up by both parties (41,353) could not have
summed up Prince Audu’s victory as Wada still had a chance at the
supplementary.

Upon a rescheduled date of December 5th, 2015 INEC conducted a
supplementary election that produced the APC candidate as winner of
both the supplementary and main elections with votes of 6,885 and
240,867 respectively with the resulting votes of 247,752, whilst the
PDP polled in 5,363 and 199,514 respectively with the resulting votes
of 204,877.

The candidate of the APC after the final results had been declared,
emerged victoriously different in cloth and person as the initial
governorship candidate Prince Audu died shortly after the main
election was conducted and had to be replaced by the runner-up at the
party’s primary, Yahaya Bello.

With Yahaya Bello as the authentic victor of the 2015 Kogi State
governorship elections, the Deputy Governorship candidate who was
nominated by Prince Audu as running mate for the APC could not have
imagined himself dislodged by a Yahaya Bello who came from no where to
be governorship candidate. James Faleke dissatisfied with the process
of Bello’s emergence, challenged the whole process at the tribunal
through to the Supreme Court.

At the Supreme court, the seven man justices headed by Justice
Sylvester Nguta ruled in favour of the respondent and declared him
winner of the Kogi State Governorship election. The ratio decidendi
for the Supreme Court’s decision was that- the appellant having failed
to comply with the provision of Section 141 of the Electoral Act
(2010) made him lose the chance of being declared winner.

The Constitution of the Federal Republic of Nigeria makes provisions
no further regarding a case of the death of a governorship candidate
after nomination at the primaries and, before the declaration of the
election results.

It stifles reason why such an omission was never included nor
contemplated by the legislators for if there is a law that regulates
the demise or incapacitation of a governorship candidate at the
nomination level to have another party primary for the purpose of
nomination, and another that regulates a governor been replaced by the
deputy governor upon the former’s death, after declaration of election
results but before taking and subscribing the Oath of Allegiance and
oath of office pursuant to Section 179 and 181 of the Constitution of
the Federal Republic of Nigeria respectively, how could a median
provision be avoided or not even contemplated?

The death of a governorship candidate before the declaration of
results is no far different from death after nomination and death
after declaration of results to have escaped the detailed particulars
of the Constitution of Nigeria, let alone not been contemplated. The
awfulness of this lacklustre gap is terribly shocking and could not
have and did not give into the hands of the appellant the governorship
status.

The appellant’s stance would have availed much had it the deceased
died shortly after he was pronounced winner. He would have had the
fortress of the law to nominate another candidate as Deputy Governor
upon a simple majority votes of the House of Assembly of Kogi state,
whilst he hops to the status of Governor and not even his party could
have stopped him for the very fact that he is shielded by the law
pursuant to Section 181 (1) of the Constitution of the Federal
Republic of Nigeria as amended in 2011.

The decision of the Supreme Court is indeed laudable. It is such to
the extent that she did not give in to caprices and the bending sways
of circumstances. The said Section 141 of the Electoral Act is to
effect that; “a court or an election tribunal may not declare a
candidate winner of an election if any such candidate has not fully
participated in all the stages of the said election.”

From the onset Prince Audu Abubakar and James Faleke were made both
Governor and Deputy-Governor representatives respectively of the All
Progressive Congress. At the party primary, Prince Audu won the
primary election whilst Mr. Yahaya Bello came as runner-up and it
would not have been expected of the party to have allowed Faleke
Governorship ticket since constitutionally, Prince Audu upon his
victory at the primary would have personally nominated James Faleke
which he did, as his Deputy as mandated by Section 187 (1) of the
Constitution of the Federal Republic of Nigeria.

The very fact that Faleke did not go through the party procedure of
becoming the governorship representative rather cherry-picked as
deputy without any party struggles in a bid to certify the
constitutional linings of said Section 187 (1) CFRN “…for the
governor to be deemed validly nominated, he must take with him an
associate as deputy governor…”, he misfired the procedure to
becoming a governorship candidate.
The details of Section 141 of the Electoral Act is aptly lucid
simpliciter even as the Supreme Court has held. The said section only
mandates appropriateness of procedures and adherence thereto and
nothing more pretentious. In so much as the court has not jurisdiction
to mandate a political party and lead her in the way and manner
candidates are to be chosen, save in cases of contradictions with the
constitution that directly affects the appellant’s right to contest,
it cannot then be said that the Supreme Court burnt the bridges.

In this case, the appellant’s right to contest for the governorship
position was not bereft off him had he returned back to the party for
nomination to claim the governorship ticket but, obviously in tune
with the party’s constitution the adoption of Yahaya Bello as the
governorship candidate was the fulfilling of the procedures, the
condition precedent to becoming a governor as stated in Section 141 of
the Electoral Act. It is in such reasoning that the Supreme Court gave
judgment in favour of the respondents (Yahaya Bello and his party
APC).

The court indeed was devoid of the power to dictate and could not have
decided for the appellant’s party as the law makes judges non-partisan
in nature. Faleke in trying to gain from the roundabouts (court) after
losing at the swings (party) eventually lost everything.

On the other hand, one cannot fully agree with the decision of the
Supreme Court to forbid a person as winner who did not participate in
all stages of an election. For the very fact that the appellant
contested or even chosen as running mate with Audu were simply
procedural stages before Audu’s death and as such the Supreme Court
ought to have given bright-eyed view to the stages fulfilled albeit
marginally by Faleke. The Supreme Court ought to have considered the
fact that the votes gathered before Audu’s death was the combined
votes of Faleke and Audu and as such, for that mere fact that he
contributed squarely to gulping 240,873 votes for his party before
Audu’s death would not have had Faleke’s caution and cry thrown to the
wind.

This point of view however consolidate its standing, I still could not
have agreed less with the Apex court’s assertion that election won by
a candidate is one won for the party as there existed an agency
relationship between the candidate and principal (party). The
appellant who was never adopted as party’s choice could not have
stepped into Audu’s place having failed to meet the condition
precedent, he marred his chances of returning back a soldier of
fortune.

The appellant could have properly wore the dress of Audu if he did
what Audu did. Did Faleke follow the procedure Audu complied with? Was
he nominated as Governorship candidate for the party? Did the people
vote him with the mind set as Governorship representative of APC? If
that was not done, then Faleke has not a moral or legal justification
to take a position not merited. Similarly, had Faleke gone through his
party for nomination and probably got the ticket, he would not have
nurtured palps and made noises of pules.

The appellant would not have missed his golden chance as I call it as
he probably may have been affected by the party factor. Had it been
the constitution of Nigeria guaranteed an individual candidate right
to contest without belonging to a political party, Faleke would simply
have himself become the Governor but, Section 221 of the Constitution
of the Federal Republic of Nigeria (CFRN) says otherwise. It insists
that no one can contest or canvass for votes for any candidate at any
election save he is sponsored by a political party and belongs to the
said party.

It remains a great precedence in our legal annals the Faleke’s case
even as the law contemplates growth as its foremost principle. It is
trite to posit that her growth must be a conscious one assisted by a
deliberate caution as legislators may not all the time have the garb
to incorporate every bit resulting from the circumstances of man’s
action, and so judicial  precedence would not be a bad hat to filling
the crevice.

There is an urgent need for the Nigerian legislators to be very
pedantic with details as there is really no excuse for omissions that
obviously can and could be avoided even in view of the constitution of
the Ken Nnamani Electoral Reform Committee.

The said committee should take into consideration salient
constitutional and electoral matters such as recommending to the
National Assembly the right of an individual candidate to contest
elections in Nigeria without been sponsored by any political party.
Amongst other defects in the Act, to take cue from the Supreme Court
verdict by remedying the crevasse that could not avail the appellant.
©Legal Watchmen

AVST. DAVIDSON .I. OBABUEKI

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