Supreme Court

The Supreme Court Friday proffered reasons why it upheld the election of Yahaya Bello as Governor of Kogi State. It said it could not do otherwise because neither James Faleke (running mate to the late Abubakar Audu) nor Idris Wada (the candidate of the People’s Democratic Party – PDP) was qualified to be made governor. Justice Kudirat Kekere-Ekun, who read the reasons for the lead judgment in the appeal
by Faleke, said that the All Progressives Congress (APC) was right in substituting the late Audu with Bello. She further said the Independent National Electoral Commission (INEC) was also in order to allow the substitution and allowing Bello to inherit the votes scored by the Audu/Faleke joint ticket in the November 21 election.

Justice Kekere-Ekun said since it is the party that contests elections, with candidates as agents, it has power to substitute a deceased candidate once it is done within the law. She held that Falake was not qualified to be made a replacement for the deceased
candidate because he did not obtain nomination form and did not participate in the
primary election.

Justic Kekere-Ekun said since there was no return and declaration made by INEC in respect of November 21 election, it was wrong
to conclude that the Audu/Faleke ticket had won the election before the December 5 supplementary election. She said that before the sudden death of Audu, after the November 21 governorship election, INEC had already declared the election inconclusive and that since the election was not completed and the final result issued by INEC, Faleke, as a running mate,could not seek to inherit victory in the election.

In upholding the substitution Audu with Bello, the court said, in the face of the law, Bello was the appropriate substitute having obtained nomination form, taken part in the primary election and came second, as against Faleke who did not meet that condition.
The court further said that by virtue of Section 221 of the Constitution, Bello, having become candidate of APC, and legally
sponsored by the party, he was qualified to claim the 240,867 votes earned by the Audu/ Faleke ticket on behalf of the party in the
November 21 election.

The court further held that by virtue of the provision of Section 221, political parties canvass for votes and are voted for. It added
that it was only the candidates duly sponsored by political parties, that can lay claim to the votes earned by the party. Justice Sylvester Ngwuta, who read the reasons in the lead judgment in the appeal by Wada, said the ex-governorfailed to prove his
allegation that the election was held in violation of the Electoral Act.

He also upheld the choice of Bello as a replacement for Audu as against Faleke. “While Section 36(1) of the Electoral Act (EA)
made provision for what should be done in the event of the death of a nominated candidate after the delivery of nomination paper, but
before the commencement of the poll, neither the EA (2010) nor the Constitution provided for what to do in the event of the death of a candidate after the commencement of the poll as in the case at hand. “The death of the original candidate of the 2nd respondent (APC) after the commencement of the poll in November 21st election in Kogi State left a yawning gap in the nation’s electoral process without any provision for filling the gap.

“In the situation such as this, it amounts to abdication of duty for the electoral umpire and the tribunal and court to fold their hands and bemoan the fact that the Legislature failed to do the impossible – providing for all exigencies both in the present and the future in their legislative duties.

“The 2nd respondent and INEC rightly resorted to substitution of the deceased candidate with the 1st respondent (Bello). I think that the decision of this court in Amaechi v. INEC (2008) 5 NWLR (pt. 1080) 227 at 296 encompasses the situation created by the death of the 2nd respondent’s candidate. The decision finds support in Section 221 of the Constitution. “A political party is an abstraction. It has to canvass for votes through its members as agents, in the same way it contests, wins or loses elections through a candidate it nominates, who acts as its agent.

“There is no provision for independent candidates. The candidate nominated to contest at an election by his party acts as an
agent of his party. He is, as it were, an agent of a disclosed principal and as far as third parties are involved, benefits and liabilities accruing to the candidate (as agent) belong to his party (the disclosed principal. “If an agent (candidate) of the party dies, or withdraws from the contest, the political party can substitute the dead candidate or the candidate, who withdraw from the election with another candidate (agent) subject to the provisions of the Act. There is continuity as the new candidate starts and continues from where the previous candidate stopped. ” the court said.

In resolving the question whether or not Bello contested the election without a running mate, the court held that it could not be said that he ran without a running mate as required under the law.

“Now if the court below (Court of Appeal) did not pronounce on the appellant’s contention that Hon. Faleke was not adopted as the
running mate of the 1st respondent, it is because the matter had become academic as the issue of nomination of running mate is not
within the jurisdiction of the tribunal and ipso facto, the court below cannot pronounce on it.

“But that notwithstanding, did Hon. Faleke withdraw his nomination in accordance with Section 35 of the Act? The answer is in the
negative for the simple reason that the purported withdrawal was wrongly addressed to the 3rd respondent (INEC) and not to the
political party that nominated him.

“For all intents and purposes, he remained the running mate to the 1st respondent at all material times,” the court said.

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