Ayorinde Oluokun/Abuja

Audu, with his running mate, Abiodun Faleke

The bid by Governor Idris Wada  to be declared the winner of the November 21 Kogi State gubernatorial poll declared as inconclusive by the Independent National Electoral Commission, INEC failed on Friday.

A similar fate befell the All Progressives Congress, APC deputy governorship candidate, James Faleke, who also wanted the court to compel INEC declare him the  beneficiary winner of the election, following the death of his principal, Prince Abubakar Audu.

Justice  Gabriel Kolawole of Federal High Court, Abuja division, who heard all the prayers in the fast-track mode,  simply refused to assume jurisdiction over the suits. The Judge also refused to stop the supplementary polls planned by INEC to be conducted in the 91 polling units across Kogi State on 5 December.

He also declined to comment on the continued validity or otherwise of the 21 November election following the death of Prince Abubakar Audu, the gubernatorial candidate of APC . Audu  died while the results of the election in which he  was leading his closest challenger and candidate of Peoples Democratic Party, Governor Wada by over 40,000 votes,  was being complied.

Justice Kolawole ruled that the various reliefs being sought in the five suits on the issue can only be canvassed at the election petition tribunals, since they are post election matters which the Federal High Court does not have jurisdiction over.

The death of Audu and the subsequent declaration of the gubernatorial poll in which he was leading resulted in legal wrangling as the Electoral Act and the Nigerian Constitution did not anticipate of make provisions for such occurrence.

While the Electoral Act stipulated that the deputy governorship candidate will take over if a validly elected candidate in a gubernatorial poll dies before he assumes office, the law did not anticipate a situation in which the candidate will die and the election will be declared inconclusive. Lawyers were divided on how to respond to the constitutional crisis created by the death of the APC gubernatorial candidate.

While some, who argued that there is no need to declare the elections inconclusive only about 35,000 voters are qualified to vote in the election while the APC is already leading by over 40,000 votes said INEC should declare Faleke the governor elect, others argued that the entire poll should be annulled and a fresh exercise conducted. Others also argued that APC should be allowed to nominate a replacement for Audu who will participate in the supplementary poll with Faleke as his deputy.

On his part, Governor Wada and PDP argued that the votes scored by Audu in the election have died with him. As such, they argued that the PDP candidate should be declared the winner of the election being the person with the highest votes and having satisfied other constitutional requirements necessary for election as a governor.

Last week, INEC toed the path of those arguing that APC should be allowed to nominate a replacement for Audu and continue with its plans for the supplementary poll in a public notice it issued on the Kogi election. The electoral commission asked APC to nominate a replacement for Audu and the party, some days after   decided to select Yahaya Bello, the runner up in party’s primary election to succeed the late Audu as its candidate in the supplementary poll.

Gov Wada: prayer rejected by court

 Faleke who had argued all along that he should be declared the governor-elect promptly rejected the position of the party as well as the offer that he should be the running mate to Yahyah. The PDP and Governor Wada also rejected the position of INEC and promptly headed for court. In the suit, Wada  asked the Court to declare him as winner of the November 21 poll being the surviving candidate with the highest votes.

 Three other suits filed on the matter were consolidated for hearing and the different counsels asked the court to determine: “Whether having regard to the provisions of sections 31(1)(2)(4)(5)(6)(7) and (8), 33, 34, 36, 85 and 87 of the Electoral Act, 2010, as amended, as well as sections 178-181 of the constitution of the Federal Republic of Nigeria, as amended, INEC can lawfully conduct a second/supplementary election into the office of Governor of Kogi State on December 5, 2015, or any other date at all let alone accepting the nomination/substitution by the APC of any candidate on the basis of votes computed and credited to the deceased candidate of the APC when the new or substitute candidate was not part of the original election.”

Wada also specifically prayed the court to determine, “whether in view of the provisions of section 179 (2) (3)(4)(5) of the constitution, and other enabling provisions of the Electoral Act, 2010, as amended, and having regard to the doctrine of necessity, the plaintiff being the only surviving  candidate with the major lawful votes cast at the Kogi State governorship election held on November 21, 2015, ought not to be declared and returned by the INEC as the winner of the election having secured not less than one-quarter of the votes case in two-thirds of all the Local Government Areas in Kogi State.”

In his own suit which was heard yesterday alongside the consolidated suits,  Faleke argued that contrary to claim by INEC, the Kogi State governorship election was conclusive. The APC deputy governorship candidate therefore asked the court to among others made  “A declaration that by  the express provisions of sections 179 (2) (a) and (b) and 187(1) of the constitution, a person who is nominated as an associate of a candidate for the office of governor of a state is duly elected deputy governor of a state when the candidate for the office of the governor scores the highest number of votes at the election and also scored not less than one quarter of all the votes cast in each of at least two-third of all the local government areas in the state.”

Lawyers argued to the different parties adopted and argued their applications for and against the decision of INEC to proceed with the December 5, 2015 supplementary election during the hearing which lasted late into the night on Thursday.

 Emmanuel Idakwo, John Jacob Usman and Hon. Emmanuel Igbokwe, the counsels in the consolidated suits urged the court to compel INEC to conduct fresh election in the state, following the death of the governorship candidate of the APC.

However, in its preliminary objection, INEC asked the court to dismiss the matter on the grounds  that it lacks jurisdiction to hear it.

The electoral commission argued that it has statutory power to conduct elections while aggrieved parties can seek redress before the election petitions tribunal.

This position was supported by A.A Adeniyi, lawyer to Yahaya Bello and Bola Aidi, lawyer to APC who also argued that the court lacked the jurisdiction to adjudicate on the issues raised by the plaintiff. They argued that the appropriate court that can adjudicate on the issues is the election petitions tribunal.

Adegboyega Awomolo- SAN – (for INEC) argued that “it is trite law that any matter related to, connected with or arising from election process, whether concluded or not could only be referred to the election tribunal.”

 The prayer by Wada that he should be declared the winner of the election following the death of Audu was similarly opposed by all the counsels to the other parties. Awomolo noted that the prayers being sought for by Wada is not the interpretation of the Constitution, but the declaration of winner and issuance of certificate of return. He added that the best place to go is the election tribunal created for Kogi State. Lawyers to INEC, APC and Attorney General of the Federation also argued in the same vein.

On the other hand, Chief Wole Olanipekun (SAN), Pius Akubo (SAN) for PDP and Chris Uche (SAN) for Governor Wada argued that since no candidate has been declared winner, the matter cannot be heard by the tribunal. Chief Olanipekun further argued that the case was not one for electoral tribunal because his client is only asking the court to apply constitutional provisions in determining the various questions raised.

Thus, according to him,  what his client wants the court to do was not to announce a winner, but to compel INEC to perform its statutory responsibility by declaring a winner in an election where results have been computed and announced. He further argued that the decision of the electoral commission to declare the election inconclusive was not because Audu died, but because it cancelled elections in some 91 polling units in 18 Local Governments, where it now intends to conduct supplementary election.

 In the same vein, Olanipekun affirmed that INEC lacked the power to issue the “public notice” of November 24, 2015 to the APC to substitute its governorship candidate in the election following the death of  Abubakar Audu, its original candidate. According to him,  Yahaya Bello, who APC has now substituted Audu with, is an interloper, who wishes to usurp the interest of his client. The legal luminary also argued that the prayer of Wada to be declared winner on the ground that he was the first runner up, was an admission that the election was concluded and that there was the person who came first.

Justice Kolawole distilled the issues he was asked to decide upon by the different parties into three, namely, the validity of the election, validity of the supplementary poll as well as power of INEC to allow the APC to substitute its deceased gubernatorial candidate in the supplementary poll.

While agreeing that the Federal High Court lacked jurisdiction to entertain the various issues raised on the inconclusive poll on Friday, Justice Kolawole said the dispute had crossed the “threshold” of matters for the court since results in most of the polling units had been declared.

He noted that the crisis which followed Kogi election was because it was declared inconclusive.

According to him, if the election had been declared conclusive, Faleke would have taken the position of the deceased gubernatorial candidate of APC.  He however said  it is not in the power of the court to decide if election was conclusive or whether a supplementary election should be held.

 He ruled that the suits qualified as a post-election dispute that could only be entertained by the election petition tribunal which would be set up by the President of the Court of Appeal in line with section285 (2) of the Constitution.

The Judge also emphasized that he had not decided the cases on their merit, so “the issues can be re-argued at the election petition tribunal”.

Justice Kolawole noted that the Federal High Court would have created a “judicial anarchy” as all a disgruntled candidate will need to do is to run to the court to determine the validity of any election if he had assumed jurisdiction over the matter.

 While noting that the suits were fallout of the governorship election INEC held in Kogi State on November 21, Justice Kolawole, directed the plaintiffs to go and ventilate their grievances before the Election Petition Tribunal.

He also dismissed arguments that the court is only being asked to exercise its interpretative powers as he contended that such interpretations usually have issues behind them. He also ruled that the court has no power to stop INEC from going ahead with the supplementary election.

However, this magazine gathered that the different parties are already exploring the option of appealing the judgment.