In Section 138(2) of the Electoral Act 2010 as amended it is provided that:
An act or omission which may be contrary to an instruction or directive of the Commission or of an officer appointed for the purpose of the election but which is not contrary to the provisions of this Act shall not of itself be a ground for questioning the election.
In Section 153 of the Electoral Act it is provided that:
The Commission may, subject to the provisions of this Act, issue regulations, guidelines, or manuals for the purpose of giving effect to the provisions of this Act and for its administration thereof.
As already stated, the reasons for the cancellation of elections or results of the elections in the affected units, according to INEC, were non-usage of the card reader, over-voting, ballot snatching, violence and other electoral offences or irregularities. INEC then declared the election inconclusive and declared that it would re-conduct elections in the affected units.
We submit that votes obtained in units where electoral offences, corrupt practices or acts of non-compliance such as over-voting, ballot snatching, violence, etc., take place are invalid or unlawful votes and are excluded in the counting, calculation or computation of majority of valid or lawful votes. We submit that a declaration or return of election is based on majority of valid or lawful votes: see sections 138(1)(c), 140(3) of the Electoral Act 2010; Omoboriowo v. Ajasin, supra; Fayemi v. Oni, supra, Osunbor v. Oshiomhole, supra.
Section 138(1)(c) of the Electoral Act provides:
An election may be questioned on any of the following grounds, that is to say:
(c) That the respondent was not duly elected by majority of lawful votes cast at the election.
Section 140(3) of the Electoral Act provides:
If the Tribunal or the Court determines that a candidate who was returned as elected was not validly elected on the ground that he did not score the majority of valid votes cast at the election, the Tribunal or the Court, as the case may be, shall declare as elected the candidate who scored the highest number of valid votes cast at the election and satisfied the requirements of the Constitution and this Act.
In Fayemi v. Oni (2011) ALL FWLR (PT. 554) 1, Salami, PCA said:
The first appellant, from all that is laid before the court, has satisfied the two constitutional requirements to be returned as the duly elected Governor of Ekiti State. The consequential effect of the foregoing is that the 1st respondent, Olusegun Adebayo Oni who was returned as the elected Governor of Ekiti State by the 3 and 4 respondents was not validly elected on the ground that he did not score the majority of the valid votes cast at the election and therefore, he did not satisfy the provision of section 179(2)(a) of the Constitution of the Federal Republic of Nigeria, 1999. the first appellant, Dr. John Olukayode Fayemi, having been shown to have scored the majority of the lawful votes cast at the election as provided by section 147(2) of the Electoral Act and having also fulfilled the constitutional requirements of section 1 79(2)(a) of the Constitution of the Federal Republic of Nigeria 1999, is hereby declared as the winner of the election held on 14 April 2007.
In Buhari v. Obasanjo (2005) 50 WRN 1 AT 241-242, Ejiwunmi, JSC said:
The purport of section 134(2)(b) of the Constitution of the Federal Republic of Nigeria 1999 (which is mutatis mudandis, in pan materia with section 179(2) thereof) that stipulates that where there are more than two candidates, a candidate shall be deemed to have been elected where he has not less than one-quarter of the votes cast at the election in each of at least two thirds of all the States and the Federal Capital Territory, is that a winning candidate should have the required majority. Therefore, once he has attained that majority it cannot be argued that because there was no election in one State, the election must be voided unless the result in that State, had there been an election there, may have affected the election. It is submitted that the same reasoning must apply where there was election which was voided. The non-compliance was in Ogun State alone.” (Words in brackets supplied)
In Awolowo v. Shagari (1979) 6-9 SC 51, it was argued that the majority required under section 34A of the Electoral Decree No. 73 of 1977 was not attained because of non-compliance in Kano State. The Supreme Court of Nigeria at Page 168 held:
“I think that when the Decree speaks of “affecting the result” it means tilting the result in favour of the petitioner. In the Presidential Election where the whole country constitutes the constituency the onus on the petitioner is enormous and in the absence of any amendment to this provision of section 111 of the Electoral Decree, no Tribunal in any petition by a weak presidential opponent, can justifiably invalidate any election for non-compliance on a minimal scale.
There is no evidence that the non compliance with section 34A (1) (c) (ii) one of the provisions of part ii has affected the result i.e. but for the non-compliance, the petitioner would have won, to enable the Tribunal declare the result invalid. The petitioner pleaded a substantial non-compliance i.e. failure to obtain one-quarter of the votes cast in each of at least two-thirds of all the States in the Federation. But the evidence established this non-compliance in only one State. In other words the evidence established that the 1 respondent obtained in each of the 12 States one-quarter or more of the votes cast but did not in the 13 State — Kano State. The 3 respondent claimed that 1 respondent received 25% of the votes in two-thirds of Kano State. There is no evidence of counting in two-thirds of Kano State.”
PRINCE ABUBAKAR AUDU WAS DULY ELECTED AS GOVERNOR OF KOGI STATE ON NOVEMBER 21, 2015
From the foregoing analysis, we have demonstrated that on law and facts, Prince Abubakar Audu satisfied the constitutional and electoral requirements to be declared or returned elected as Governor of Kogi State in the November 21, 2015 Kogi State Governorship Election under section 179(2) of the Constitution and section 140(3) of the Electoral Act having polled the majority of votes of 240,827 and having won twenty five percent of the total votes cast in two-thirds of the entire LGAs of Kogi State and ought to have been so declared by INEC on November 21, 2015.
Kogi State has 21 LGAs. Prince Audu won in 16 LGAs. Two-thirds of 21
LGAs of Kogi State is 14 LGAs. Captain Idris Wada won in five LGAs.
Prince Audu scored 240, 827 votes while Captain Idris Wada scored 199,514 votes: see Fayemi v. Oni; Osunbor v. Oshiomhole; Omoboriowo v. Ajasin; Awolowo v. Shagari; Buhari v. Obasanjo, supra. INEC was absolutely wrong not to have declared Prince Abubakar Audu elected. The word “duly” in section 179(2) of the Constitution means, among others, “according to legal requirements”: see Black’s Law Dictionary, 6 edition page 501. That is, according to constitutional requirements and not according to INEC Guidelines. Prince Audu had been duly elected as Governor of Kogi State by majority of the people of Kogi State spread across 16 LGAs having satisfied the constitutional requirements under section 179(2) of the Constitution.
The so called supplementary election of December 5, 2015 was a bare surplusage. INEC having failed to carry out its constitutional responsibility to declare and return Prince Abubakar Audu as the “duly elected” governor of Kogi State in the November 21, 2015 Kogi State governorship election, the Election Tribunal and the Courts should posthumously declare and return Prince Abubakar Audu as Governor of Kogi State. This is the correct position of the law and no other.
SUBSTITUTION OF PRINCE ABUBAKAR AUDU WITH YAHAYA BELLO: A TRAVESTY OF THE CONSTITUTION
We have demonstrated that Prince Abubakar Audu, now deceased, was “duly elected” as Governor of Kogi State in the November 21, 2015 governorship election of Kogi State and not in the supplementary election of December 5, 2015. This now brings us to the question of who ought to have replaced or substituted him. We submit straightaway that Yahaya Bello as substitute for late Prince Audu was an error of constitutional electoral law. We had earlier established that by November 22, 2015 when Prince Audu died, the electoral process of the Kogi State governorship election had moved beyond section 33 of the Electoral Act and was now sitting firmly in section 181 of the Constitution having scaled the hurdle of section 179(2) of the Constitution. For emphasis and clarity again, we reproduce section 181 of the Constitution:
Section 181:
(1) If a 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.
(2) Where the persons duly elected as Governor and Deputy Governor of a State die or are for any reason unable to assume office before the inauguration of the House of Assembly, the Independent National Electoral Commission shall immediately conduct an election for a Governor and Deputy Governor of the State.
This was the position we were on the date of the death of Prince Audu notwithstanding INEC prevarification and hallucinations on the matter. Therefore, Mr. James Faleke should be sworn in as the next governor of Kogi State without much legal ado. The governorship ticket of late Prince Abubakar Audu was a joint single ticket with Mr. James Faleke. The legal rationale behind the constitutional requirement of having a running mate or an associate in gubernatorial or presidential election is to ensure that there is no vacuum in situations such as this. The Constitution of the Federal Republic of Nigeria 1999 had in section 187 thereof foresaw such a situation and had forestalled same by enacting the principle of a joint single ticket and single executive in the Constitution by insisting on a running mate for elective executive offices under the Constitution. Therefore, no vacuum was created by the death of Prince Abubakar Audu in the Kogi State governorship election as far as APC was concerned at the date of his death:
see AG Federation v. Abubakar (2007) 10 NWLR (PT. 1041) 1 AT 54. This is because the Constitution and the Electoral Act do not tolerate a legal vacuum: see sections 181, 186, 187, 190, 191 and 193 of the Constitution; Marwa v. Nyako (2012) 6 NWLR 199 at 359.
Section 186 of the Constitution:
There shall be for each State of the Federation a Deputy Governor.
Section 181 of the Constitution:
(1) If a 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.
(2) Where the persons duly elected as Governor and Deputy Governor of a State die or are for any reason unable to assume office before the inauguration of the House of Assembly, the Independent National Electoral Commission shall immediately conduct an election for a Governor and Deputy Governor of the State.
Section 187 of the Constitution:
(1) In any election to which the foregoing provisions of this Part of this Chapter relate, 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.
Section 190 of the Constitution:
(1) Whenever the Governor is proceeding on vacation or is otherwise unable to discharge the functions of is office, he shall transmit a written declaration to the Speaker of the House of Assembly to that effect, and until he transmit a written declaration to the contrary, the Deputy Governor shall perform the functions of the Governor as Acting Governor.
(2) In the event that the Governor is unable or fails to transmit the written declaration mentioned in subsection (1) of this section within 21 days, the House of Assembly shall, by a resolution made by a simple majority of the vote of the House, mandate the Deputy Governor to perform the functions of the office of the Governor as Acting Governor, until the Governor transmits a letter to the Speaker that he is now available to resume his functions as Governor.
Section 191 of the Constitution:
(1) The Deputy Governor of a State shall hold the office of Governor of the State if the office of Governor becomes vacant by reason of death, resignation, impeachment, permanent incapacity or removal of the Governor from office for any other reason in accordance with section 188 or 189 of this Constitution.
(2) Where any vacancy occurs in the circumstances mentioned in subsection (1) of this section during a period when the office of Deputy Governor of the State is also vacant, the Speaker of the House of Assembly of the State shall hold the office of Governor of the State for a period of not more than three months, during which there shall be an election of a new Governor of the State who shall hold office for the unexpired term of office of the last holder of the office.
(3) Where the office of the Deputy Governor becomes vacant-
(a) by reason of death, resignation, impeachment, permanent incapacity or removal in accordance with section 188 or 189 of this Constitution;
(b) by his assumption of the office of Governor of a State in accordance with subsection (1) of this section; or
(c) for any other reason, the Governor shall nominate and with the approval of the House of Assembly of the State, appoint a new Deputy Governor.
(d)
Section 193 of the Constitution:
(1) The Governor of a State may, in his discretion, assign to the Deputy Governor or any Commissioner of the Government of the State, responsibility for any business of the Government of that State, including the administration of any department of Government.
(2) The Governor of a State shall hold regular meetings with the Deputy Governor and all Commissioners of the Government of the State for the purposes of-
(a) determining the general direction of the policies of the Government of the State;
(b) co-ordinating the activities of the Governor, the Deputy Governor and the Commissioners of the Government of the State in the discharge of their executive responsibilities; and
(c) advising the Governor generally in the discharge of is executive functions, other than those functions with respect to which he is required by this Constitution to seek the advice or act on the recommendation of any other person or body.
In Marwa v. Nyako (2012) 6 NWLR 199 AT 359 PARAS C — D, Adekeye, JSC said:
Neither the Electoral Law nor the Constitution can tolerate or envisage a legal vacuum in the office of a Governor. An order of nullification of the election of a governor is always accompanied with an order directing the Speaker of the House to act in a representative capacity until the vacancy of the Governor is filled after the re-run election.
We submit therefore on the strength of the above constitutional provisions that Mr. James Faleke as the running mate or deputy governorship candidate to deceased Prince Audu was the first in the line of succession that ought to have succeeded late Prince Audu as APC governorship candidate as he was the constitutionally designated electoral second-in-command to late Prince Audu in the Kogi State governorship election.
In 1946-47 in the State of Georgia, United States, exactly the scenario currently in Kogi State of Nigeria happened in what was famously called the
“Three Governors Controversy”:
The Facts:
“Georgia’s “Three Governor’s Controversy” of 1946-47, which with the death of governor-elect Eugene Talmadge, was one of the more bizarre political spectacles in the annals of American politics. In the wake of Talmadge’s death, his supporters proposed a plan that allowed the Georgia legislature to elect a governor in January 1947. When the General Assembly elected Talmadge’s son, Herman Talmadge as governor, the newly elected lieutenant governor, Melvin Thompson, claimed the office of governor, and the outgoing governor, Ellis Arnail, refused to leave office. Eventually, the Georgia Supreme Court settled the controversy.
Background
In the summer of 1946 Eugene Talmadge won the Democratic primary for governor for the fourth time. His election was assured because the Republican Party in Georgia was not viable and had no nominee. However, Talmadge was not healthy, and his close friends began to fear that he would not live until the November general election or would die before his inauguration in January 1947.
After a great deal of legal research, Talmadge’s followers found dubious constitutional and statutory precedence for the State’s legislature electing a governor if the governor-elect died before taking office. According to their findings, the General Assembly could choose between the second and third-place vote-getters from the general election. Because no Republican candidate would be running, the Talmadge forces reasoned that a write-in candidate with enough votes state-wide would be second or third behind Talmadge, and the General Assembly could choose that candidate if the situation warranted. The Talmadge stalwarts therefore chose to run Talmadge’s son, Herman, as a secret write-in candidate.
There was one problem with this plan, the new State Constitution created the office of lieutenant governor, which would be filled for the first time in the 1946 election. The lieutenant governor would become chief executive if the governor died in office. The Constitution was not clear about whether the lieutenant governor-elect would succeed if the governor-elect died before he took the oath of office. Melvin Thompson, a member of the anti-Talmadge camp, was elected lieutenant governor in 1946. Naturally, the Talmadge forces were not eager for Thompson to become the next governor.
Two Claimants
Eugene Talmadge died in late December 1946. When the General Assembly convened in January 1947, the immediate order of business was to fill the vacant governorship. The Talmadge forces wanted the legislature to elect Herman Talmadge, while Thompson’s allies lobbied the legislature to declare Thompson the governor. According to the State Constitution, election results were not official until certified by the General Assembly. Thompson wanted the General Assembly to certify the returns so that, as the official lieutenant governor-elect, he would have a stronger claim to the governorship. Talmadge forces, however, won a close vote to delay certifying the vote and to move immediately to select a new governor. On January 15, 1947, the General Assembly elected Herman Talmadge as governor. Meanwhile, Thompson began legal proceedings to appeal to the Georgia Supreme Court.
The Third Claimant
As the legislature was electing Herman Talmadge governor and Thompson was preparing a court fight to dispute Talmadge’s election, the outgoing governor, Ellis Arnail, announced that he would not relinquish the office until it was clear who the new governor was. Arnail’ s actions galvanized Talmadge’ s supporters, who bitterly hated his anti-Talmadge policies. The legislature’s election of Talmadge provoked confrontation between the Talmadge and Arnail camps. Although the two politicians maintained their decorum, fistfights broke out among their followers.
Talmadge asked Arnail to honor the General Assembly’s election, Arnail maintained that the legislature had no right to elect a governor and refused to step aside. Talmadge then ordered State troopers to remove Arnail from the capitol and see that he returned home safely. On January 15, the day of the legislative election, both Herman Talmadge and Ellis Arnail claimed to be governor of Georgia and shared the same offices in the capitol. By the next day Talmadge had seized control of the governor’s office and had the locks on the door changed. Arnail continued to maintain his position as governor and even set up a governor’s office in exile in an information kiosk in the capitol. Ultimately, Arnail relinquished his claim as governor and supported Thompson.
