PARTICULARS OF SPECULATION
(i) INEC speculated that the entire voters in the affected units elections or results of elections were cancelled will all turn out to vote in the second election in the units. But in the subsequent so called supplementary election conducted by INEC on December 5, 2015, only 13,227 voters of the 49,000 total registered voters in the affected polling units turned out to vote.
(ii) INEC speculated that the entire votes in the second election in the affected units will be cast in favour of the PDP Candidate and will be more than enough to swing the electoral pendulum to his favour. Otherwise, INEC would have relied on sections 53(4) and 139(1) of the Electoral Act to make a declaration of election or return on November 21, 2015.
(iii) INEC speculated that the APC will not get any further votes apart from those it already got forgetting that at least the Party has members and supporters in the affected units who will vote in the second election for their Party.
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.
In point of law, it is clear now that INEC based its decision that the November 21, 2015 Kogi governorship election was inconclusive on the provisions of its Guidelines which, we have demonstrated here, is an inferior delegated legislation which is subject, subordinate and subservient to the provisions of the Electoral Act and the Nigerian Constitution.
In point of fact, it is also clear that APC (Prince Abubakar Audu) scored 240, 827 votes while PDP (Captain Idris Wada) scored 199,514 votes. It is also clear that APC by its total score so far won in sixteen of the 21 LGAs while PDP by its total score so far won in five of the 21 LGAs of Kogi State.
Despite these facts, INEC declared the election inconclusive on the ground that the total number of registered voters in the units in which elections or results of elections were cancelled of 49,953 for reasons of non-usage of the card reader, over-voting, ballot snatching and violence was more than the 41,353 votes difference between the APC Candidate and the PDP Candidate under and by virtue of paragraph 44(n) of the Guidelines and ordered that a supplementary poll should be conducted.
We submit that there are only two principal statutes governing the conduct of elections in Nigeria namely, the Constitution of the Federal Republic of Nigeria 1999 as amended and the Electoral Act 2010 as amended. We submit that INEC Guidelines and Regulations are not legal instruments or statutes governing the conduct of election as INEC does not possess law making or legislative powers. The Guidelines or Regulations are merely to administer and effectuate the provisions of the Electoral Act and not to negate, clog, obstruct or frustrate the provisions of the Act and is subject thereto: see section 153 of the Act.
Under the Constitution and the Electoral Act, in the case of a governorship election, there are only two constitutional conditions or requirements a candidate must satisfy to be declared or returned elected which said requirements Prince Abubakar Audu of the APC met in the November 21, 2015 Governorship Election of Kogi State and so ought to have been declared or returned elected by INEC and not to resort to a void provision in its Guidelines to declare the election inconclusive because elections or results of elections were cancelled in some units in a governorship election in which the entire State is regarded as one constituency under section 178(4) of the Constitution: see section 179(2) of the Constitution; section 140(3) of the Electoral Act 2010; Fayemi v. Oni (2011) ALL FWLR (PT.
554) 1; Omoboriowo v. Ajasin (1984) 1 SCNLR 108; Osunbor v. Oshiomhole (2009) ALL FWLR (PT. 463) 1363; Buhari v. Obasanjo (2005) 50 WRN 1 AT 241-242; Awolowo v. Shagari (1979) 6-9 SC 51.
There is no section in the Electoral Act or the Constitution that it is provided that a governorship candidate or any election candidate shall satisfy the provisions of INEC Guidelines or Regulations before being declared returned or elected. 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 1 respondent, Olusegun Adebayo Oni who was returned as the elected Governor of Ekiti State by the 3t 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 1 79(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 constitute 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 1 3 State — Kano State. The 3 respondent claimed that respondent received 25% of the votes in two-thirds of Kano State. There is no evidence of counting in two-thirds of Kano State.”
We submit that the law is settled that where a statute or a Constitution has provided or prescribed procedures, conditions or requirements for the doing of any thing, only and only those procedures, requirements and conditions and no others shall be followed or satisfied: see INEC V. MUSA (2003) 3 NWLR (PT. 806) 72 where Ayoola, JSC said:
Some interrelated propositions flow from the acknowledged supremacy of the Constitution. First, all powers, legislative, executive and judicial must be ultimately traced to the Constitution. Secondly, the legislative powers of the legislature cannot be exercised inconsistently with the Constitution. Where it is so exercised, it is invalid to the extent of the inconsistency. Thirdly, where the Constitution has enacted exhaustively in respect of any situation, conduct or subject, a body that claims to legislate in addition to what the Constitution had enacted must show that it has derived the legislative authority to do so from the Constitution. Fourthly, where the Constitution sets the condition for doing a thing, no legislation of the National 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 authorized.
In section 179(2) of the Constitution, the conjunctive word “and” was used to indicate that both requirements of “highest number of votes” and “at least one-quarter of all the votes cast in each of at least two-thirds of all the local government areas in the State”, cohere and are closed. That is, it admits of no other requirements for a governorship candidate who satisfied the requirements in the election to be declared as elected. This point is re emphasised by section 140(3) of the Electoral Act when it provides therein “satisfied the requirements of the Constitution and this Act.”
In the case of the “requirements of the Electoral Act”, we submit that where such requirements are contrary to or inconsistent with the “requirements of the Constitution” as already prescribed in section 179(2) of the Constitution, the “contrary or inconsistent requirements” of the Electoral Act as an Act of the National Assembly will be void to the extent of the inconsistency or contrariness: see section 1(3) of the Constitution: PDP V. CPC (2011) 17 NWLR (PT. 1277) 485 AT 511; AG ABIA STATE V. AG FEDERRATION (2006) 16 NWLR (PT. 1005) 265; ITSUEDI V. SEC (2012) 2 NWLR (PT.1284) 329 AT 362; TROUSSEAU INVESTMENT LTD V. EYO (2011) 6 NWLR (PT. 1242) 195.
Where in the purported exercise of the legislative powers of the National Assembly or a State House of Assembly, a law is enacted which the Constitution has already made provisions covering the subject matter of the Federal Act or State Law, that law must give way to the provision of the Constitution. This is known as the doctrine of covering the field. The doctrine of covering the field also extends to any inconsistency that may arise between an Act of the National Assembly or a law of the House of Assembly of a State and any of the provisions of the Constitution. Thus where the Constitution has enacted, expressly or impliedly, exhaustively on any subject matter neither the National Assembly nor the House of Assembly of State can validly legislate on the same subject matter let alone an executive body like INEC.
Although the Constitution does not expressly state that an Act of the National Assembly may not duplicate the provisions of the Constitution, by judicial interpretation verging on policy, the consequence of such duplication has been variously described as “inoperative”, “in abeyance”, “suspended”.: See AG OGUN STATE V. AG FEDERATION; INEC V. MUSA (2003) 3 NWLR (PT.806) 72.
However it is described, where the Constitution has covered the field as to the law governing any conduct, the provision of the Constitution is the authoritative statement of law on the subject. The Constitution would not have “covered the field” where it had expressly reserved to the National Assembly or other legislative body the power to expand or to add to its provisions in regard to the particular subject. Where the Constitution has provided exhaustively for any situation and on any subject, a legislative authority that claims to legislate in addition to what the Constitution had enacted must show that, and how, it has derived its legislative authority to do so from the Constitution itself: see PDP V. CPC (2011) 17 NWLR (PT. 1277) 485; AG OGUN STATE V. AG FEDERATION (2003) FWLR (PT. 143) 206; INEC V. MUSA (2003) 3 NWLR (PT. 806) 72.
We submit that the only situation where the Constitution provides for the conduct or holding of a second election is where none of the contesting candidates scored the highest number of votes and one-quarter of all the votes cast in each of at least two-thirds of all the local government areas of the State: see sections 179(3), (4) and (5) of the Constitution.
Section 179(3) of the Constitution
In default of a candidate duly elected in accordance with subsection (2) of this section, there shall be a second election in accordance with subsection (4) of this section at which the only candidates shall be —
(a) the candidate who secured the highest number of votes cast at the election, and
(b) one among the remaining candidates who secured majority of votes in the highest number of local government areas in the State, so however that where there are more than one candidate with a majority of votes in the highest number of local government areas, the candidate among them with the next highest total of votes cast at the election shall be the second candidate.
Section 179(4) of the Constitution
In default of a candidate duly elected under subsection (2) of this section the Independent National Electoral Commission shall within seven days of the election held under that subsection arrange for an election between the two candidates and a candidate at such election shall be deemed to have been duly elected to the office of Governor of a State if-
(a) he has a majority of the votes cast at the election; and
(b) he has not less than one-quarter of the votes cast at the election in each of at least two-thirds of all the local government areas in the State.
Section 179(5) of the Constitution
In default of a candidate duly elected under subsection (4) of this section, the Independent National Electoral Commission shall within seven days of the result of the election held under that subsection, arrange for another election between the two candidates to which that sub-paragraph relates and a candidate at such election shall be deemed to have been duly elected to the office of Governor of a State if he has a majority of the votes cast at the election.
ISSUE OF VOTES DIFFERENCE BETWEEN THE CANDIDATES AND THE TOTAL NUMBER OF REGISTERED VOTERS IN THE AFFECTED UNITS
The INEC Returning Officer for the election, Prof. Emmanuel Kucha of the Federal University of Agriculture, Makurdi declared the Kogi governorship election inconclusive on the ground that the 49,953 cancelled votes across various polling units in the State were more than the votes difference of 41,353 between the APC Candidate and the PDP Candidate. He premised his conclusion on the provisions of INEC Guidelines at Pages 22-23 Paragraph 44(n) thereof for the election. According to him: “Since the number of cancelled votes was 49,953 while the difference between the votes scored by the APC and PDP candidates stood at 41,353, the election could not yet be declared as conclusive. Applying provision of INEC guideline, pages 22-23 paragraph 44(n), the election will be re-conducted in 59 polling units across 18 LGAs”
INEC Approved Guidelines and Regulations for the Conduct of 2015
General Elections as contained in Paragraph 44 Subparagraph (n) at Page 22
thereof provides thus:
The State Collation/Returning Officer for the Governorship election shall:
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 EC 8D and subsequently recorded into form EC 8E for Declaration and Return.
We submit that the Guideline as it relates to declaration and return is ultra vires INEC and INEC far exceeded the limits of the amplitude granted to it by section 153 of the Electoral Act to make guidelines or regulations for administering and giving effect to the provisions of the Electoral Act. As already submitted above, issuance of electoral Guidelines by INEC enabled by section 153 of the Electoral Act is a subsidiary delegated legislation in the nature of a Schedule, Table, Addendum or Form to the principal legislation which must be in conformity with the principles and provisions of the principle legislation. The provisions of such Guidelines, Regulations, Manuals, Schedules, Tables or Forms must not overrule, contradict or conflict with the substantive provisions of the enabling principal legislation. In this case, we submit that paragraph 44(n) of the INEC Approved Guidelines and Regulations for the Conduct of 2015 General Elections is inconsistent with section 140(3) of the Electoral Act and section 179(2) of the Constitution of the Federal Republic of Nigeria 1999 as amended and is therefore null and void and of no effect whatsoever: see section 1(3) of the Constitution; PDP V. CPC (2011) 17 NWLR (PT. 1277) 485 AT 511; AG ABIA STATE V. AG FEDERRATION (2006) 16 NWLR (PT. 1005) 265; ITSUEDI V. SEC (2012) 2 NWLR (PT.1284) 329 AT 362; TROUSSEAU INVESTMENT LTD V. EYO (2011) 6 NWLR (PT. 1242) 195.
In Buhari v. Obasanjo (2005) 8 MJSC 1 AT 329-331, Akintan, JSC said:
The point raised in the Cross-Appellants’ Issue 3 is whether the Court below was right to have voided some provisions of the Manual of Election Officials admitted in evidence at the hearing as Exhibit 0.
The Manual was prepared by INEC under the powers conferred on INEC in section 149 of the Act. That section provides as follows :
“149. 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 the due administration thereof”
The powers conferred on INEC in the Section enable the Commission to make what is sometimes called by-laws or subsidiary legislation. The Manual (Exhibit 0) in the instant case, was issued as a working guide to the INEC officials. The Section does not or is not expected to confer on the Commission or any of its officials any power beyond what the principal Act conferred on the Commission or any of its officials. Similarly, the powers conferred on the Commission in the said Section 149 do not authorize the Commission to amend any of the provisions of the principal Act. It follows, therefore, that if any of the provisions contained in the Manual (Exhibit 0) is in conflict with the mandatory provisions of the Electoral Act, such provision will be ultra vires, null and void and may be so declared by the Court since such provision would be outside the powers conferred on the Commission. See Psychiatric Hospital Management Board v. Ejitagha (2000) 11 NWLR (Pt. 677) 154; and Mayor of Westminster v. London & North – Western Railway Co. (1905) A. C 426 at 430.
In the instant case, the spec provision in the Manual (Exhibit 0) which was the subject of the Appellants/Cross- Respondents’ complaint is the one which authorized those whose names appear on the register of voters but had no voters cards to vote during election. That directive is said to be contrary to the mandatory provisions of Section 40(1) of the Act. That Section reads thus:
“40-(1) Every person intending to vote shall present himself to a Presiding Officer at the polling unit
in the Constituency in which his name is registered with his voter’s card.
(2) The Presiding officer shall, on being satisfied that the name of the person is on the register of voters, issue him a ballot paper; and indicate on the register that the person had voted.”
The Section authorized every Presiding Officer with power and duty to ensure and be satisfied with the identity of every person who presents himself to him as a registered voter intending to vote before issuing him with a ballot paper. This is required to be done by the Presiding Officer comparing the names on the voter ‘s card presented to him with the names on the register of voters in his possession. That is what is required of him in Section 40 of the Act. Any regulation or directive made by INEC which precludes the Presiding Officer from cross-checking the names on the voter ‘s card with that on the register of voters or which permits either someone with voter ‘s card alone to vote or as alleged in the instant case, which permits anyone without voters cards but whose names appear on the register of voters to vote, will be acting contrary to the mandatory provisions of Section 40 of the Act. The relevant provision of the Manual (Exhibit 0) is therefore in conflict with the mandatory provision of the Act and it is accordingly ultra vires, null and void. The Court below was therefore quite right in declaring the said provision in the Manual (Exhibit 0) as altra vires, null and void.
In TSOHO V. YAHAYA (2007) 3 ELECTION PETITION REPORT 156 at 175 and 176, Mohammad, JCA (as he then was) said:
It should be noted that paragraph 6(3) belongs to the schedule to the Decree while section 134 is part of the body of the Decree. Even though schedules, tables and forms are useful in construing the provisions in the body of a statute, they will not overrule the plain words of the statute.
As I have earlier stated, the provision of section 134 of Decree No. 3 of 1999 is clear and unambiguous. Its operation cannot be restrained 20 by reference to the provisions of Schedule 5. It is therefore my considered opinion that the qualification of a person can be challenged in an election petition despite the provision of paragraph 6(3) of Schedule 5 to Decree No. 3 of 1999.
FCSC V. LAOYE (1989) 2 NWLR (PT. 106) 652 AT 711, the
Supreme Court said:
Schedules, tables and forms are useful in construing the provisions in the body of a statute. In cases of ambiguity, they become handmaid to interpretation. But they will not overrule the plain words of the statute. If there is any contradiction, the enacting clause will prevail. It would be quite contrary to recognized principles of construction of statutes to restrain the operation of clear and unambiguous words or sections by reference to what appears in a schedule, table or form.
EGOLUM V. OBASANJO (2007) 3 ELECTION PETITION REPORT 601 AT 674-675, Achike, JSC said:
Where, therefore, as it may happen that there is a contradiction between the main provision of a statute and the form in the schedule, that should present no difficulty; upon principle, the form which is expected to conform with the main provisions of the enactment would give way to the main provision of the enactment. And as Lord Cottenham put it pointedly in Re Baines (supra):
“If the enacting part of the statute cannot be made to correspond with the schedule, the latter must yield to the former”