CORAM

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MUSA DATTITO MUHAMMAD

NWALI  SYLVESTER  NGWUTA

MUSA DATTITO MUHAMMAD

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PARTIES

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HON. JAMES ABIODUN FALEKE APPELLANTS

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RESPONDENTS

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AREA(S) OF LAW

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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.

 

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HELD

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Appeal Dismissed

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ISSUES

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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.?

2. Whether the court below was right when it affirmed the decision of the trial 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 trial Tribunal’s decision that votes cast for the late Prince Audu and the appellant in the Governorship Election of November 21, 2015 were transferrable to the 2nd respondent.?

4. Whether, from the entire facts and circumstances leading to this appeal, the court below rightly affirmed the decision of the trial Tribunal to the effect that the petition was incompetent ab initio. ?

 

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RATIONES DECIDENDI

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CASES CITED

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STATUTES REFERRED TO

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1. Constitution of the Federal Republic of Nigeria 1999 (as amended)

2. Electoral Act 2010 (as amended)

 

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