1. On September 20, 2016 the Supreme Court will determine one of the most brazen attempts to violate the Constitution of the Federal Republic of Nigeria when it gives its judgment in the matter of Idris Wada & Others v Yahaya Bello & Others.
2. The facts of this case are clear and as such do not require repetition. However, the legal issues are somewhat murky. While our laws did not envisage the scenario caused by the unfortunate death of late Prince Abubakar Audu and do not stipulate the pathway to follow to resolve the quagmire, they are very clear on what not to do in pursuit of a resolution.
3. In attempting to resolve the issues thrown up by late Audu’s death, the Independent National Electoral Commission (INEC) aided by the ruling All Progressives’ Congress (APC) took the option most prejudicial to democracy in Nigeria by permitting:
i. The substitution of the late APC candidate with Yahaya Bello;
ii. Passing off votes cast for the late APC candidate as votes cast for Yahaya Bello;
iii. Permitting Yahaya Bello to contest for the supplementary elections without a deputy governorship candidate, and
iv. Issuing him a certificate of return in furtherance of (iii) above.
4. Without prejudice to all the legal issues relating to this appeal, two fundamental issues can be distilled from the facts, both of which form the basis of our contention that Yahaya Bello ought to have been removed from office by the Kogi State Election Petition Tribunal and the Court of Appeal.
i. Were the Tribunal & Court of Appeal right to have upheld the election of Yahaya Bello in light of the provision of Section 141 of the Electoral Act?
Section 141 provides that the Tribunal or Court shall not under any circumstance declare any person winner of an election if such a person did not fully participate in all stages of the election.
This provision of law has already been applied and upheld by the apex court in a plethora of cases. These include: CPC v Ombugadu (2013) 18 NWLR (1385) 16; Gbileve v Addingi (2014) 16 NWLR (1433) 56; Eligwe v Okpokiri (2015) 2 NWLR (1443) 348; Jev v Iyortom (2015) 15 NWLR (1483) 484.
The interpretation given to this section was that while Courts listening to intra-party disputes could declare a person who had not participated in all stages of an election winner, an Election Petition Tribunal or the Court of Appeal sitting as a court of first instance cannot do so.
The facts are clear and unambiguous. Yahaya Bello did not participate in the elections of November 21st, 2015 where more than 230,000 votes which were allocated to him were cast.
When the law and the judgments cited above are applied to the facts, it is impossible to reach a conclusion that the Tribunal and the Court of Appeal erred in finding in favour of Yahaya Bello.
ii. Were the Tribunal and Court of Appeal right to have held that Yahaya Bello could validly contest an election without nominating a deputy?
Section 187(1) of the Constitution provides:
“In any election to which the foregoing provisions of this part of this Chapter relate a candidate for the office of Governor of a State SHALL NOT be deemed to have been VALIDLY nominated for such office UNLESS he nominates another candidate as his associate for his running for the office of Governor, who is to occupy the office of Deputy Governor; and that candidate shall be deemed to have been duly elected to the office of Deputy Governor if the candidate who nominated him is duly elected as Governor in accordance with the said provisions.”
The Supreme Court has, on several occasions interpreted that use of the word “SHALL” to connote an obligation that must be observed. In this context, the wording of Section 187(1), places an obligation on a gubernatorial candidate to nominate a running mate or face the risk of not being deemed to have been validly nominated to contest for such office.
It is well known fact that Yahaya Bello did not nominate a running mate for the supplementary election of December 5th, 2015. It is also public knowledge that the person allegedly nominated on his behalf by his party, Hon. James Abiodun Faleke, wrote a letter to INEC & APC stating that he was not running mate to Yahaya Bello. It is public knowledge that Hon. James Abiodun Faleke went further to file a law suit challenging Yahaya Bello’s emergence as Governor.
When the law is applied to the facts, there is no escaping the conclusion that the learned Judges at the Tribunal and the Court of Appeal erred in finding in favour of Yahaya Bello.
To highlight the very contradictory nature of these findings, answers have to be sought for the following questions:
a. If Hon. James Abiodun Faleke was the deputy governorship candidate of the party on the day of the supplementary why was Simon Achuba nominated, screened and sworn in as Deputy Governor?
b. How could Simon Achuba be nominated, screened and sworn in as Deputy Governor without a letter of resignation from Hon. James Abiodun Faleke?
5. In several small gatherings across the State, Yahaya Bello claims to have bought over the learned Justices of the Supreme Court. These claims are as unbelievable as they are worrisome. These claims are also a sign that having analysed the legal issues, particularly the dissenting judgments of Justices Obande Festus Ogbuinya and Tijjani Abubakar, Yahaya Bello is willing to resort to any means, legal or illegal, to win this case.
6. As seen here, even without giving consideration to the issues of inheriting votes cast for one candidate by the other, it is impossible to analyze the legal issues, the applicable laws and the extant facts and reach a conclusion that the provisions of our laws have been complied with in a manner that confirms Yahaya Bello to be validly nominated, elected and duly sworn in as Governor of Kogi State.
7. As the Apex Court of land gives judgment tomorrow, we urge the Court to uphold the sanctity of the Constitution and to stop this brazen rape of our laws and this arrogant violation of our democracy.
8. God bless Nigeria.
– By Deji Adeyanju
