Overview of the Supreme Court Decision in Hon James Abiodun Faleke v INEC & Anor
An overview of the ruling of the Supreme court in the matter of Hon James Abiodun Faleke v Independent National Electoral Commission & Anor with the appeal no: SC. 648/2016 delivered in September 2016.
SUMMARY OF FACTS
The All Progressive Congress (APC) fielded some members to contest in the primary election held on the 29th August 2015 to choose its flag bearer in preparation for the Kogi State Governorship Election scheduled for 21st November 2015. The members included the late Prince Abubakar Audu who later emerged as winner and the 2nd Respondent Yahaya Bello.
The late Prince Audu consequently nominated the Appellant, Hon. Abiodun Faleke as his running mate and both names were submitted by the APC as its candidates for the Governorship election to the Independent National Electoral Commission (INEC), the 1st Respondent.
At the close of the polls which was held on the 21st of November, 2015, the late Prince Audu had the highest number of votes while the Peoples Democratic Party was in second place.
Following the 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 the 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 unit 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.
Before the conduct of a supplementary election, Prince Abubakar Audu passed on and same was communicated to the 1st Respondent. The 1st Respondent by a letter requested the APC to substitute the deceased with a suitably qualified candidate. The deceased was substituted with the 2nd Respondent and the supplementary election was held on the 5th of December in the 91 polling units.
The APC scored the highest number of votes which votes were added to the votes earlier scored by the respective parties and the 2nd Respondent was declared the winner of the election and returned as the duly elected Governor of Kogi State. The Appellant instituted an action before the Federal High Court before the conduct of the supplementary election via an originating summons seeking an interpretation of Section 1(2), 179(2)(a) &(b) and 181 of the 1999 Constitution (as amended), 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 concluded Governorship election.
The suit was struck out upon successful objections by the Respondents on grounds that by virtue of Section 285 of the Constitution, only an Election Petition Tribunal had jurisdiction to entertain his complaint.
Being dissatisfied with the return of the 2nd Respondent, the Appellant filed a petition before the tribunal on the construction of section 179(2) & 181(1) of the Constitution. The Respondents raised preliminary objections to the competence of the petition which was upheld but dismissed the petition. The Appellant’s appeal to the lower court was unsuccessful; hence a further appeal has been lodged before this court.
ISSUES FOR DETERMINATION
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 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.
RESOLUTION OF ISSUE 1
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 summarised 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:
"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
(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.
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 within 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(1)(f) & (i) provides for 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) organize, 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 of the 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 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 umpire.
This 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 INECs 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."
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).
Re: Supreme Court Judgement that Upheld INEC Power to Declare Election Inconclusive by kahal29: 8:32pm On Sep 24
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 inconclusive 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.