Supreme Court on Death of Candidate: Does Running Mate Assume Position?

Who as between candidate(s) and the political party contests an election?

In the Supreme Court of Nigeria Holden at Abuja On Friday the 30th Day of September 2016

Before Their Lordships
Nwali Sylvester Ngwuta Olukayode Ariwoola Musa Dattijo Muhammad Clara Bata Ogunbiyi Kudirat Motonmori Olatokunbo Kekere-Ekun John Inyang Okoro Amiru Sanusi Justices, Supreme Court SC.648/2016

Between
Hon. James Abiodun Faleke……………… Appellant

And
1.Independent National Electoral Commission (NEC) 2. Yahaya Bello ……Respondents

Judgment Delivered By Kudirat Motonmori Olatokunbo Keker-Ekun, JSC

Facts
Preceding the Kogi State gubernatorial election on November 21st, 2015, APC held primaries to choose its flag bearer. The late Prince Abubakar Audu and the second respondent – Yahaya Bello, emerged as the winner and first runner-up of the primaries, respectively. APC therefore nominated Prince Audu and his running mate – Hon. Abiodun Faleke (the appellant) and submitted their names to INEC (first respondent). At the close of the polls, the late Prince Audu/Faleke ticket was leading with 240,867 to the PDP’s 199,248 votes.

However, owing to some electoral malpractices discovered in 91 polling units, INEC relied on its Manual for Election Officials (updated version) by a Public Notice issued on November 22nd, 2016 to declare the election inconclusive, on the ground that the total number of registered voters in the disputed 91 polling units in question, amounting to 49,953 exceeded the margin of votes between the APC and the PDP, which was 41,353. Sadly, Prince Audu died before the conduct of supplementary election to determine the winner of the election. His demise was communicated to INEC by APC, further to which INEC requested that APC substitute the deceased with another candidate. APC substituted the deceased with the 2nd respondent, who was the first runner-up at the party’s primaries. The supplementary election was conducted and APC scored 6,885 , PDP 5,363.

The votes were added to the previous scores of the parties and the second respondent was declared winner of the election and returned as the duly elected Governor of Kogi State. Before the conduct of the supplementary election however, the appellant had approached the Federal High Court vide an originating summons, seeking the interpretation of the provisions of sections 179(2)(a) & (b) and 181 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). He sought an order setting aside the declaration by INEC that the election was inconclusive, and an order that INEC makes a return of the concluded election as having been won by the joint ticket of late Prince Audu and himself, having scored the majority of lawful votes cast at the election, which votes constituted one quarter of the votes cast in each of the 21 Local Government Areas in the state.

The respondents successfully raised objections challenging the jurisdiction of the court to adjudicate on the matter, in view of the provisions of section 285 of the Constitution and the suit was struck out by the Federal High Court, which held that the Election Tribunal was the appropriate forum for adjudication on the matter. After the supplementary election had held and the 2nd respondent returned by INEC as the Governor-elect, the appellant filed a petition before the Kogi State Governorship and States Houses of Assembly Election Tribunal.

The petition was hinged on the construction of sections 179(2)(a) & (b) and 181 of the Constitution. The respondents, once more, raised preliminary objections to the competence of the petition, which objections the tribunal considered along with the petition. At the end of trial, the tribunal upheld the objections, but also went ahead to pronounce on the merits of the petition. The tribunal found that the petition lacked merit and dismissed same. Dissatisfied, the appellant appealed to the Court of Appeal, which also dismissed the appeal. The appellant further appealed to the Supreme Court.

Issues for Determination
The court adopted the four issues formulated by the second respondent, with slight modifications. “(1) 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 November 21st, 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; (2) Whether the court below was right when it affirmed the decision of the 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; (3) Whether the court below was right in affirming the Tribunal’s decision that votes cast for the late Prince Audu and the appellant in the Governorship Election of November 21, 2015 were transferable to the 2nd respondent; and (4) Whether from the entire facts and circumstances leading to this appeal, the court below rightly affirmed the decision of the Tribunal to the effect that the petition was incompetent ab initio.”

Submissions on Issues
On issue one (considered along with issue three), the appellant submitted that the election held on 21/11/2015 was conclusive, with the ticket of late Prince Audu and himself scoring the majority of lawful votes cast. Thus, by virtue of section 179(2) of the 1999 Constitution and operation of section 181 thereof, he ought to have been sworn in as the Governor-elect following the demise of Prince Audu. The appellant contended that the lower court read into the provisions of section 181 what was not contained therein, by reading the word “return” into the section. For him, there was nothing in sections 179 and 181 that makes declaration or return, a condition precedent to the application of the sections. He posited further that election of a Governor and Deputy Governor is exclusively provided for in the Constitution and does not admit of any extra-constitutional legislation in the determination of “due election” of a Governor.
He noted that even if the INEC Manual could have been relied on, it ought to have been read and applied in conjunction with the Electoral Act, which provides that only persons with permanent voters card (PVC) can vote, since it is only people with PVCs in the disputed polling units that should have been considered in reaching a determination as to the margin between the leading candidates. He submitted that going by the decision of the lower court, the rights of the appellant expired with that of the deceased; hence, going by section 181(2), fresh election ought to have been conducted as votes garnered by the deceased expired with their candidacies and could not have been appropriated to the 2nd respondent.

The 1st respondent on its part submitted that INEC is the only body to determine when the requirements of section 179(2) have been met and it is only after such determination that the decision can be challenged in an election petition. Counsel for the 1st respondent argued that the return and declaration of a winner by INEC is fundamental and the court below rightly held that there being no return or declaration of a winner, the appellant cannot claim to have won the election along with the deceased. Counsel noted that the appellant’s submission about taking cognisance of total number of voters with PVCs rather than the total number of registered voters is contrary to the provisions of the Manual. He submitted further that by virtue of section 33 of the Electoral Act, the APC has the right to substitute its deceased candidate as a result of force majeure. The 2nd respondent agreed with the decision of the lower court to the effect that section 187(1) of the Constitution does not confer on the appellant the status of a “candidate” and that being the deceased’s running mate, he was inextricably tied to his umbilical cord. He maintained that the candidacy of the appellant is inchoate and cannot crystallise into a right to contest the election, unless and until there is a return and he could not have been duly elected in the circumstances. He opined that the provisions of the Manual relied on by INEC was made pursuant to the constitution, and that it is the responsibility of INEC to declare an election conclusive or otherwise. He submitted that the key word in the provisions relied on by the appellant is “duly elected” which makes due election a condition precedent to the operation of the section. On issue two, the appellant contended that having successfully challenged the jurisdiction of the Federal High Court in the first suit filed by the appellant on the ground that the complaints relate

“…. 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 umpire”

to matters within the exclusive jurisdiction of the Election Petition Tribunal, it was inappropriate for the respondents to raise objections to the jurisdiction of the tribunal. He submitted further that the lower court having found that the tribunal ignored the submissions on the issues of estoppel and res judicatam, ought to have set aside the judgment. He argued that the lower court raised the issue that estoppel is outside the jurisdiction of the tribunal suo motu and resolved same without hearing parties. He submitted that the issue is not an intra-party dispute necessitating the joinder of APC as a party, but an issue of law as to whether the second respondent satisfied the constitutional requirements to hold office as Governor of Kogi State.
The first respondent on its part submitted that the appellant approached the Federal High Court seeking to be declared “governor elect” while the reliefs before the election tribunal centred on pre-election matters relating to nomination and sponsorship of the second respondent by the APC. It argued that the right of the appellant to fair hearing was not breached, in that jurisdiction of a court or tribunal is determined by the enabling Statute.

It noted on the issue of failure to join the APC as a party to the petition, that APC was in the best position to inform the tribunal who its candidate was. For the second respondent, it was submitted that the lower court was right to affirm the decision of the tribunal on the preliminary objections because the complaints of the appellant regarding the disqualification of the 2nd respondent were not based on any aspect of section 182 of the Constitution. On issue four, the appellant contended that the lower court erred when it held that though the appellant had locus standi to file the petition, he could not claim any remedy.

He asserted that he was a candidate at the election and thus, satisfied the condition for eligibility to present a petition. He submitted that section 138(1) of the Electoral Act does not preclude a member of the same party from bringing a petition. In its reply, the 1st respondent argued that in the absence of any pleading that the appellant contested the election as a governorship candidate of his party, the appellant was foreclosed from bringing a petition under section 138 of the Act. Counsel for the second respondent argued along the line of submissions of the first respondent.

Court’s judgment and rationale On the first issue, the court employed the legal definition of the word “return” in section 156 of the Electoral Act as “the declaration by a Returning Officer of a candidate in an election under this Act as being the winner of that election” to hold that sections 179(2) and 181(1) of the Constitution are not self-executing.
The court held that there must be a declaration or return of a candidate as the winner of an election, before the sections become applicable and that to hold otherwise would lead to anarchy. Since the deceased was not returned as duly elected, there was no basis for the application of section 181 of the Constitution, which allows a Deputy-Governor elected with a duly elected Governor to step into the Governor’s shoes.

The court held further that considering that the margin between the two front runners at the election was less than the total number of registered voters in the 91 affected polling units where elections were cancelled, INEC was right to have declared the election inconclusive. Relying on section 221 of the Constitution and section 137(1) of the Electoral Act, the court held that 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, the said party has the legal interest in the votes cast on 21/11/2015 and was entitled to substitute a candidate of its choice to contest the election to conclusion.

The situation would have been different if the election of 21/11/2015 was conclusive and the appellant along with the deceased declared and returned as the winner of the election. On issue two, the court held that it is the enabling statute (section 285) that determines the jurisdiction of the tribunal and not the pronouncement of courts of co-ordinate jurisdiction. 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 co-aspirant allege that the electoral guidelines of the party or the provisions of the Electoral Act were not adhered to.
Where as in this case, a candidate dies before the election was concluded, the nomination and sponsorship of a suitable candidate to take his place must occur before the election proceeds. On the sub-issue of non-joinder of APC as a necessary party, the court held that APC is a necessary party which is likely to be affected by a decision in the matter and whose presence would assist the tribunal in effectively determining the dispute between parties.

This is more so as it is the political party that contests an election though through its candidates. Deciding the last issue, the court held that qualification of a candidate is within the jurisdiction of the Election Tribunal to determine and in determining whether a person is qualified to contest under section 138 of the Electoral Act, resort must be had to the provisions of sections 177 and 182 of the Constitution.

It was therefore incumbent on the appellant to establish by his pleadings and evidence that the second respondent was not qualified to contest the election. The onus was on the appellant seeking declaratory reliefs to establish his case. The court resolved all the issues against the appellant and dismissed the appeal.

Representation: For the Appellant: Chief Wole Olanipekun SAN with Chief Bolaji Ayorinde, SAN, Dele Adesina, SAN, A.J. Owonikoko, SAN, & 14 other Counsel For the 1st Respondent: Dr. Alex Izinyon, SAN with Ahmed Raji, SAN, & 21 other Counsel For the 2nd Respondent: J.B. Daudu, SAN with A.M. Aliyu, SAN, & 28 other Counsel

Reported by Optimum Publishers Limited (Publishers of Nigerian Monthly Law Reports (NMLR)