Kogi Gov Polls: How and Where The Supreme Court Erred

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The Supreme Court last month decided the Kogi governorship election petition in favour of Governor Yahaya Bello. The apex court may be final, says Bimbo Adewale, LL.M, but it is not infallible, quoting Chukwudifu Oputa, JSC. In the following analysis, the guest writer shows why and where the apex court got it so disastrously wrong.

The case: Hon. James Abiodun Faleke v. INEC & Anor (SC. 648/2016, unreported), was one of the four cases in which the Supreme Court of Nigeria recently affirmed the election and return of Alhaji Yahaya Bello as the Governor of Kogi State of Nigeria. Factual Setting

On 21st November 2015, the Independent National Electoral Commission (INEC) organized the Kogi State governorship election. The election was a straight contest between Prince Abubakar Audu and Hon. James Abiodun Faleke, as governorship and deputy governorship candidates respectively for All Progressives Congress (APC) on the one hand and Captain Idris Wada and Architect Abayomi Awoniyi as governorship and deputy-governorship candidates respectively under the platform of Peoples Democratic Party (PDP), on the other hand. At the end of the polls, the results of all the local government areas of the State were announced. Prince Abubakar Audu of the All Progressive Congress (APC) scored 240,867 votes while Idris Wada of the People’s Democratic Party scored 199,514 votes. Nevertheless, the election was declared inconclusive. Shortly after the announcement of the results on November 22nd 2016, tragedy struck, as Prince Abubakar Audu died.

Significantly, the reason given by INEC for the inconclusiveness of the November 21 election was that there were 49,000 voters in the registers of some 91 polling units, which figure exceeded the 41,000 votes with which the late Prince Abubakar Audu and Hon. James Abiodun Faleke defeated Capt. Idris Wada and Arch. Yomi Awoniyi.

The electoral body, thereafter, arranged for the conduct of a supplementary election that held on 5th December, 2015, at the end of which less than 13,000 votes were recorded. It is noteworthy that the name of Alhaji Yahaya Bello did not feature in the main election of November 21. It only came up in the supplementary election upon being substituted with the late Prince Abubakar Audu by APC. At the end of the day, Alhaji Yahaya Bello scored only 6,000 votes. INEC, nevertheless, announced him the winner and returned him elected as governor of Kogi State.

Being convinced that the election of November 21, 2015 had already been concluded on the basis that the Constitution, particularly Section 179(2) thereof, already deemed Prince Abubakar Audu and himself as duly elected, Hon James Abiodun Faleke, hereinafter referred to as the appellant, filed a petition at the Kogi State Governorship Election Petitions Tribunal. Essentially, he challenged the declaration of INEC that the election of 21st November, 2015 was inconclusive. The Tribunal affirmed the declaration of INEC. The appellant felt dissatisfied and appealed to the Court of Appeal which court also affirmed the decision of the trial Tribunal. The case ultimately found its way to the Supreme Court.

The apex court, on 20th September, 2016 heard and dismissed the appeal ex tempore and rendered its reasons for dismissal on 30th September 2016. Given the time within which the briefs of learned counsel for the parties were concluded and filed, it was apparent that, as at 20th September, 2016 when the case was dismissed, the Honourable Justices would not have had sufficient time to properly read, digest and reflect on the voluminous briefs of learned counsel. This brings into focus, the propriety or otherwise of a court delivering its verdict on a particular day and adjourning its reasons to a later day. The danger in this practice is, once a verdict is delivered, the court must, willy nilly, scout for reasons to justify it, however unjustifiable it may be. This practice introduces rigidity, haphazardness and sloppiness into judgment writing which often lead to injustice. It also removes elements of discretion and flexibility, which are the hallmarks of justice. Reading through the judgment, it is glaring that the court had to stress and strain itself to arrive at a pre-conceived conclusion.

There is no doubt that the decision of the Supreme Court of Nigeria in affirming Alhaji Yahaya Bello as Governor of Kogi State shocked the legal community in Nigeria and indeed the democratic world. In the midst of the shock and controversies that trailed the decision, there is, undeniably, one point of consensus. It is that the robust public image the Supreme Court enjoyed in the past has diminished, if not vanished. The Supreme Court, in the past was able to earn the respect and confidence of the people as a result of its ability to produce largely acceptable decisions. The court then was perceived as free from direct or indirect political influence, pressure and lobbying. The men that constituted the court then were, indeed, honourable, brilliant, reflective, honest and industrious. They were imbued with deep learning, courage and uprightness. Their decisions were convincing even to the unlearned, and unassailable to the learned; philosophical and predictable, as they were in consonance with good sense and established principles. Above all, their Lordships, in the past, built a concrete and an impregnable wall of integrity around themselves. And, they walked around with dignity and respect.

The Supreme Court today, regrettably, has lost some of these sterling qualities and attributes. Only last week, the Department of State Services (DSS) exposed a little of the stench that has overwhelmed the Supreme Court of Nigeria in an operation that has left the public image of the court thoroughly battered. The outcome of the operation is disgusting as it is contemptible. The two Justices of the court, whose houses were raided by the men of DSS, Justices Nwali Sylvester Ngwuata and John Inyang Okoro, where huge sums of money in local and foreign currencies were allegedly found, were part of the panel that heard the Kogi polls appeals. As a matter of fact, Justice Nwali Sylvester Ngwuta presided over the panel. The despondency of the Nigerian populace and their new perception about the Supreme Court has been ably captured by Professor Itse Sagay as a place where cash dictates justice. This is sad.

The Supreme Court & Its Pre-Eminence.

The Supreme Court of Nigeria is the ultimate court in the land. Its decision is virtually final and can be altered only through legislative intervention or another judgment of the court. The power of finality of the court over cases derives from section 235 of the constitution which provides in part that “… no appeal shall lie to any other body or person from the determination of the Supreme Court” I must hasten to add here, however, that because the decision of the Supreme Court is final does not mean that it is correct. Oputa, JSC., (of blessed memory) puts it more succinctly in Adegoke Motors Ltd v. Adesanya & Anor (1989) where he said:

“We are not final because we are infallible; rather we are infallible because we are final. Justices of this court are human beings capable of erring. It will be short-sighted arrogance not to accept this obvious truth”
Observation

To say the least, the Supreme Court judgment in Faleke’s case is most boring and platitudinous. There are more than enough horrendous pronouncements to fill a book. The first point a scholarly mind will observe in the judgment is the colorlessness of its language. There is nothing inspiring in the language of the court to suggest that it is a judgment of a final court. The reasoning of the court is equally flaccid. The judgment either adopted the submissions of learned counsel for the respondents or the findings of the lower court. Consequently, what we find is a judgment that is inundated with the cliché “I agree with learned counsel for the respondents” or “I agree with the lower court”.

In deciding the four issues it formulated, the words “I agree” appear not less than 15 times! Apparently, the court forgot that it was the Supreme Court and the final court for that matter, where authoritative pronouncements, exposition of law and pontifications are required to advance Nigeria’s electoral jurisprudence. Unfortunately, the court subjugated this sacred duty to the reasoning of learned counsel for the respondents and that of the lower court.

It is apposite at this point to examine some of the decisions of the apex court and demonstrate how the court jeopardized the cause of democracy and altered some fundamental and well-entrenched principles of our law on the altar of expediency.

When is a governorship candidate deemed to have been duly elected? (Sections 172 (2) and 181 (1) of the 199 Constitution

This was the most fundamental question that was put before the Supreme Court for determination. A decision of the Supreme Court on this point would surely have enriched Nigeria’s jurisprudence for its reconditeness. The determination of it necessarily revolves around the interpretation of sections 179(2) and 181(1) of the 1990 Constitution of the Federal Republic of Nigeria (as amended). The two sections state:
279 (2). A candidate for an election to the office of Governor of a State shall be deemed to have been duty elected. Where, there being two 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.
S. 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”.

The facts before the courts (from the trial tribunal to the Supreme Court) were that the joint ticket of Audu/Faleke scored the highest number of votes of 240,867 votes and had a minimum of one-quarter of the votes cast at the election in all the local government areas in the State. It was, therefore, the contention of Faleke that the joint/ticket of Audu/Faleke satisfied the constitutional provisions. The trial Tribunal avoided the question like a plague. This was attributed to a misapprehension on its part. The Court of Appeal appreciated the point and virtually determined the question but lacked the courage to make the necessary pronouncement. In a way to demonstrate that the Appeal Court appreciated the case presented before it, the court had adumbrated,:

“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 court then provided the legal basis for the determination of the question when it boldly held:

“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 cases such as Ngige v. Obi (2006) 14 NNLR (Pt 999) I. Agagu v. Mimiko (2009) INWLR (Pt 1140; INEC v. Oshimole (2009) 4NWLR (Pt 1132) 611; Fayemi v. Oni (2010) 9 NWLR (Pt 1223) 326; & Aregbesola v. Oyinlola (2011) 9 (Pt. 1253) 458”.

Rather than proceed to apply the law enunciated to the facts of the case, the Court of Appeal summersaulted and went on another course entirely, looking for the definition of “return,” thereby demonstrating timidity and timorousness.

The approach adopted by the Supreme Court in treating the most fundamental question in Hon. Faleke’s case is baffling. First and foremost it strangely held that the view expressed by the Court of Appeal, quoted above, was not a finding but review of the contentions arising from the interpretation of section (2) 179(2) and 181(1). Nothing can be further from the truth. The pronouncement of the Court Appeal in the passage was authoritative. The said court even proceeded to buttress its position with five judicial authorities. Clearly, the Supreme Court erred in pronouncing the passage a review.

Secondly the Supreme Court abandoned the fundamental question put before it and formulated a completely different question. Rather than interpret “deemed to have been duly elected”, the apex court only interpreted “duly elected”. At page 30 of the judgment it stated:

“The fundamental question is what do the words “duly elected” mean in the context of section 179(2) and 181 of the constitution?”

Nobody asked the court to interpret the words “duly elected”. The apex court cleverly left out the words ‘deemed to have been duly elected’ contained in section 179 (2), which were in contention, thereby abandoning the complaint of the appellant and the course charted by him. This, of course, dealt a devastating blow to the case of the appellant as it led the Supreme Court to reach the wrong conclusion that there must be a declaration or return before a candidate can be said to have been duly elected.

The error of the Supreme Court knocks out the foundational basis of the appellant’s case and rendered the case awkward. If this was deliberate, it is unjust, wrongful and unrighteous. If it was done out of ignorance, then it is calamitous and lamentable for this country. The consideration and determination of ‘when a candidate is deemed to have been duly elected’ formed the main thrust and crux of the entire complaint of the appellant. The failure of the Supreme Court to pronounce on the crucial point smacks of gross injustice as it has led to a miscarriage of justice.

More disturbing and regrettable is the treatment of the authoritative pronouncement of the Court of Appeal on section on 179 (2) upon which no cross-appeal was lodged by the respondents. The Court of Appeal clearly stated the correct position of the law as regards the interpretation of section 179 (2). By that construction, the late Alhaji Abubakar Audu, having scored the majority of votes and secured the requisite percentage of votes in all the local government areas, by the operation of section 179 (2) ought to have been declared duly elected and returned before his demise. Consequently, upon his demise, the appellant would also have taken the benefit of section 181 (1).

The meaning ascribed to the words: ‘duly elected’ by the Supreme Court is shocking. It is found on pages 31 and 32 of the judgment. The position of the Supreme Court is that once a returning officer makes a declaration, the requirements stipulated in section 179 (2) are fulfilled. The apex court held:

“… 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” (Pp 31-32).

Is that so? This is serious!!! How did the court come to this conclusion? It was this line of reasoning that led the apex court to finally hold that the election of 21/11/2015 was inconclusive.

There is clear evidence that the Supreme Court, for reasons best known to it, was scared in interpreting or giving effect to section 179 (2) of the Constitution. In the times of old, whenever the apex court found any difficulty in interpreting a section of the constitution, it had a practice of inviting eminent scholars and legal luminaries, as amicus curiae, (friends of the court) to shed light on the meaning of such a section. Of course, that was when the apex court was interested in dispensing justice. Surely, barring old age, that has come upon them, prominently scholars and legal practitioners such as Professor Ben Nwabueze, SAN; Chief Richard Akinjinde, SAN and Chief AfeBabalola, SAN, would readily have made their services available as friends of the court to advance the cause of justice.

Where comes the words “Return” or “Declaration” in sections 179 (2) and 181(2) of the constitution?

Still on the interpretation of sections 179 (2) and 181 (1) of the Constitution, it is alarming to see how the Supreme Court transposed the position of learned counsel for the respondents to that of the court. Learned counsel for the respondents had submitted that before a candidate is deemed to have been duly elected under section 179 (2) a declaration and return by INEC must have been made. The apex court, without any further exposition or enunciation of the law adopted, hook, line and sinker, the submissions of learned senior counsel for the respondents. The court held:

“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 section 179 (2) and 181 of the constitution.(pp. 31-32).

This position, taken by the Supreme Court, led it to proceed to hold, albeit wrongly, that the election of 21/12/2016 was ‘inchoate.’ (p.38). The court concluded:

“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.

With due respect, the conclusion of the Supreme Court on this point can be faulted in two ways. First, the reading of the words “declaration” and “return” into sections 179 (2) and 181 (1) clearly subverts the age-long principle of construction of constitutional provisions and statutes, that neither the court nor learned counsel is entitled to read into a provision what it does not contain. In Action Congress & Anor v. INEC (200) the same Supreme Court held that the basic duty of a judge “is to interpret the clear and unambiguous words according to their ordinary, natural and grammatical meanings and must not add or remove any words therefrom; no onerous weight or burden must be foisted on an otherwise clear and unambiguous provision.” . It is, therefore, a grave error on the part of the Supreme Court to have read and added words into the provisions of Sections 179 (2) and 181 (1) that are not contained therein.

Second, from the clear and unambiguous provisions of sections 179 (2) and 181 (2), what the Constitution emphasizes are the votes of the electorate: i.e., majority of the votes cast and one-quarter of the votes scored in two-thirds of the local government areas, not declaration or return made by INEC. In any event, declaration or return made by an electoral body has never been held by the court to be sacrosanct as same had been successfully challenged in the past and continued to be challenged till date. Governors can be removed and elections can be nullified.

INEC GUIDELINES V. 1999 CONSTITUTION.
The contention of the appellant on this point was that the case of the appellant fell squarely within the purview of section 179 of the Constitution which ought to have been applied. It was further argued that unfortunately, instead of giving effect to the said provision, INEC resorted to Election Guidelines instead of the Constitution in declaring the election of 21/11/2015 inconclusive. Appellant’s counsel buttressed this argument with Supreme Court authorities, particularly INEC vs Musa (2003) where the Supreme Court held:

“…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 directly or indirectly, unless, of course the constitution itself as an attribute of its supremacy expressly so allowed… Howsoever it is described, when the Constitution has covered the field as to the law governing any conduct, the provision of the constitution is the authoritative statement of the law on the subject…”

In resolving this issue, Supreme Court simply approved INEC Manual for use where it is found relevant. The court held:

“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 and that where it is found to be relevant, its provisions must be invoked, applied and enforced”. (P. 34).

The court cited CPC v. INEC (2011) but made no reference to INEC v. Musa (2003) let alone distinguishing it from the case before it.

The Choice between Faleke and Bello

In the course of the judgment, the Supreme Court asked a pertinent question:

“The bone of contention therefore is, who, as between the appellant and the 2nd respondent was entitled to step into those shoes?”

The “shoes” here refers to Prince Audu’s shoes. The first reason why the apex court preferred the 2nd respondent to the appellant is predicated on the right of a political party to nominate a candidate of its own choice to contest an election to conclusion. The court held:

“I agree with the concurrent findings of the lower courts that by virtue of section 221 of the Constitution and section 137 (1) of the Electoral Act, the APC being the party which would be declared the winner in the event of their success at the polls as per Amaechi v. INEC (supra), the said APC had a legal interest in the votes cast on 21/11/2015 and was entitled to substitute a candidate of its own choice to contest the election to conclusion”. (P. 40-41).

The right of a political party to choose a candidate to contest election is not in doubt. There is a plethora of authorities that have settled this exclusive right of parties in this regard. See PDP & Anor v. Sylva (2012) Onuoha v. Okafor (1983) Dalhatu v. Turaki (2003). The point must be made here, however, that there is a caveat. Political parties in exercising their rights must operate within the parameter of the law. The question that arises here is, is it just anybody that a political party can present?

One of the points established against the 2nd respondent on record is that he is not a registered voter in Kogi State.

In other words, he does not belong to the electoral community of Kogi State. In Yusuf v. Obasanjo (2005) it was held that for a person to be nominated to contest election such a candidate must be a registered elector within the constituency. The Supreme Court did not look into this point. It is indeed a travesty of democracy that a person who does not belong to the electoral community of a constituency would be made to win an election in the same constituency.

The second reason why the Supreme Court preferred the 2nd respondent relates to the fact that the 2nd respondent contested the primary election and took a second position. The apex court held:

“The evidence before us was that the 2nd respondent participated in the primary election conducted by the APC and came second behind Audu”

In respect of the appellant, the Supreme Court stated that “his status remained that of a Deputy Governorship candidate to a deceased Governorship candidate, particularly as he did not participate in the party primaries, which is a pre-condition for anyone seeking elective office”. There is no doubt that these reasons, with due respect, are most untenable as they fly in the face of the law and well-entrenched principles of our law which the Supreme Court failed to consider.

It is true that the 2nd respondent (Alhaji Yahaya Bell) contested the APC primaries but he lost to Prince Audu. A primary election is not valid for all purposes and at all times. It is circumscribed in scope in purpose. The same Supreme Court was categorical on this point when it held in CPC v. Ombugadu that “the sole purpose of a party’s primary is the emergence of a one of the contestants as the party’s candidate at the election”. It follows therefore, that once the primary election of a political party has produced a candidate, its purpose is served. There is no law which permits a political party, under any guise or circumstance (death of a candidate inclusive), to revert back to the result of a primary election that had produced a candidate. And, the Supreme Court never referred to the existence of any such law or authority. The decision of the Supreme Court in validating the nomination of the 2nd respondent on the score that he took second position as the primary election of his political party is contrary to the earlier pronouncement of the court in CPC v. Ombugadu (supra).

As regards the fact of the appellant not participating in the party primaries, he ought not to have been made to suffer any detriment for that reason as the constitution does not require a Deputy Governorship candidate to participate in primaries. Prince Abuabkar Audu, it was, who, in compliance with the provisions of Section 187(1) of the Constitution, nominated the appellant as his running mate. The names of the duo were presented to their political party (APC) that subsequently presented same to INEC for the governorship election of 21/11/2015. It is, therefore, not clear how the Supreme Court came about the principle of independent candidacy that it tried to clothe the appellant with. One question arises from the foregoing: Does it mean whenever a party candidate dies his running mate becomes an independent candidate? If the decision of the Supreme Court is taken to its logical conclusion, it may be difficult for a Deputy-Governor or a Vice-President who did not participate in the primary election of his party to succeed the Governor or the President.

NON-JOINDER OF APC.
One of the reasons why the action of the appellant failed, according to the Supreme Court, was his failure to join APC. The appellant had argued that he sought no relief against his party and therefore did not consider his party a necessary party. The Supreme Court agreed but added that there “are certain matters in which the interest of party is involved…”. The Supreme Court by this decision has introduced another dimension into Nigeria’s electoral jurisprudence as it said:

“The fact that a political party is not named as a statutory respondent in Section 137(2) of the Electoral Act cannot 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”. (P. 56).

I hasten to interject here, with due respect, that there is no election petition that is filed in which the interest of a political party that sponsored the candidate whose return is being challenged will not be involved. There is also no election petition that is prosecuted that a political would not be bound by the result of the action. These are not novel facts or facts peculiar to the appellant’s case. The law has remained the same, that a political party is not a necessary party in an election petition.

In Buhari v. Yusuf (2003), the Supreme Court held thus:

“Section 131(2) of the Act requires that the person elected or returned be joined as a party. Section 133 which I earlier reproduced provides in subsection (1) for persons who may present a petition. It is either one or both of (a) a candidate at an election; (b) a political party which participated at the election. No other person may do so. In the same vein, those who shall be joined to defend the petition in accordance with subsection (2) are the person whose election (or return) is complained of, referred to as the respondent and any of the INEC officials mentioned in the subsection or any other person who took part in the conduct of the election, and in either case the petition complains of their conduct of the election. All such persons are regarded as the statutory respondents, and who only, in my view, qualify as the necessary parties. (Underlining mine for emphasis). This remained the position of the law until the decision in this case.

Conclusion
There is so much to lament about in the judgment under discussion but time and space will not permit. It is sufficient to conclude that the primary duty of any court at any level is to do justice, without fear or favour. Judgments given by a court in a case must often be in the overall interest of the society. It is pertinent to bear in mind that a judicial system thrives when by its judgment it instils confidence in the larger society. Such judgments must be fair, impartial and corruption-free. It may be a strong point to make, but it is a truism that a judiciary that is unjust, corrupt and unreflective of the people’s aspirations becomes irrelevant to the people and is doomed to collapse with time.

It is also important to bear in mind that the world we live in today has become global palm. We live in a world of Internet and advanced modern technology in which the judgments given in a national court are in question of minutes being disseminated all over the world. A fair and sound judgment which is free from corruptive influence edifies a country and its global standing. On the other hand, a weak and unsound judgment reflects the state of the judicial process in a country.

For all the majority of Kogites and all democrats of this world care, Alhaji Yahaya Bello may have won all the cases, but he did not win the election.


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