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Declare me Elected, Faleke Tells Court

The deputy governorship candidate of the All Progressives Congress (APC) in the November 21 election in Kogi State, James Faleke, has asked the Federal High Court in Abuja to declare the election conclusive.

In a suit filed yesterday by his lawyers, including Wole Olanipekun (SAN) and Femi Falana (SAN), Faleke faulted the decision of the Independent National Electoral Commission (INEC) that the election was inconclusive and asked the court to restrain it from proceeding with its planned supplementary election.

Faleke named INEC and APC as defendants in the suit.

He argued that by the results announced by INEC, the election was conclusive and that INEC was wrong to have refused to announce the candidate of the APC, who scored the highest votes) winner.

He also faulted INEC’s directive (as contained in its “public notice” of November 24, 2015) to the APC to substitute its governorship candidate in the election, following the death of its earlier candidate, Abubakar Audu and that it would hold a supplementary election on December 5.

Faleke, who raised nine questions for the court’s determination, is seeking 16 reliefs, including an order directing INEC to “make a return following the already announced results in the governorship election held in Kogi on November 21, 2015” and an injunction restraining INEC, APC and their agents from “giving effect to or further acting on the decisions or directives contained in the November 24 public notice.

He urged the court to declare that by the provision of Section 179 of the Constitution, INEC was bound to declare a candidate in a state governorship election, who scored the highest votes and one quarter of all votes in at least two-third of all local governments  in a state, as duly elected.

Faleke stated, in a  supporting affidavit, “that from the results released and also from the Forms ECBC issued, the joint ticket shared by Prince Abubakar Audu and myself, not only produed the highest votes cast in each of at least two-third of all the Local Government Areas in Kogi State.

“By the 1st defendant’s (INEC’s) showing, only about 41,000 registered voters are reflected in the 91 polling units and out of the 41,000 registered voters, only about 35,000 of them have permanent voters cards (PVC). It is only people with PVCs that were allowed by the 1st defendant to cast their votes on the day of election.

“The total number of people accredited in the 91 polling units where the 1st defendant cancelled election and ordered a supplementary election was 19,178. The margin of victory between the joint ticket shared by Prince Abubakar Audu and myself for the 2nd defendant and the joint ticket shared by Idris Wada and Yomi Awoniyi.

“As the candidate sharing the same joint ticket of the 2nd defendant with the late Prince Abubakar Audu, I campaigned with him throughout the nooks and crannies of Kogi State, day and night, for over two months, canvassing for votes and selling to the electorate our joint manifesto.”

Faleke is also seeking a declaration that:

  • election to the office of governor of a state can only be conducted in a manner expressly stipulated in section 179(2)(a),(b), (3)(a),(b), (4)(a),(b) and (5) of the Constitution;
  • by the express provisions of sections 1(2) and 179(2)(a),(b), (3)(a),(b), (4)(a),(b) and (5) of the Constitution, the 1st defendant (INEC) is constitutionally bound to declare a candidate as duly elected to the office of governor of a state, who scores the highest number of votes cast at the election to such office, who also scores not less than one-quarter of all the votes cast in each of at least two-third of all the Local Governments Areas in the state; and a declaration that
  • by the clear provisions of sections 1(2), 179(2)(a) and (b) and Paragraph 15(a) of the Third Schedule of the Constitution, read together with sections 27, 69 and 75 of the Electoral Act, the 1st defendant is bound to make a return on an election to the office of governor of a state where a candidate (a) scored the highest votes cast at the election and (b) 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.

Faleke is also seeking an order setting aside the:

  • 1st defendant’s decision that the governorship election held in Kogi on 21st November 2015 is inconclusive;
  • ‘public notice’ issued by the 1st defendant on the 24th day of November 2015 titled: ‘Kogi governorship election 2015; and
  • an order setting aside the directive contained in the ‘public notice’ issued by the 1st defendant on the 24th day of Novemeber 2015 and title: ‘Kogi governorship election 2015’, requesting the 2nd defendant (APC) ‘to fill the vacancy’ created by the death of its candidate.

The case is yet to be assigned for hearing.

Justice Gabriel Kolawole of the Federal High Court, Abuja yesterday gave indication that he will give judgments on Friday in four other cases filed in relation to the dispute created by the election.

The judge gave the indication yesterday after consolidating/merging the suits (filed between Thursday and Friday last week) and adjourning till Thursday for parties to adopt their final written addresses, which they were expected to have filed and served before the next date.

The suits include the one by the governor and candidate of the Peoples Democratic Party (PDP), Idris Wada. In the suit filed last Thursday, Wada and his party want the court to compel the INEC to declare Wada winner of the inconclusive governorship election, on the ground that he is the only surviving candidate in the election  who scored the second highest votes after the deceased candidate of the APC.

They also seek to restrain INEC from proceeding with its planned supplementary election. It has INEC, the Attorney general of the Federation (AGF) and APC as defendants.

The other suit filed by Emanuel Daiko, who claimed to have contested the election as a candidate of the People for Democratic Change (PDC), is pleading with the court to, among others, hold the supplementary election is illegal, prevent APC from substituting its deceased candidate and prevent APC from participating in the election on the ground that it no longer has a candidate. It has INEC, AGF and APC as defendants.

The third suit was filed by Raphael Igbokwe (a PDP member of the House of Representatives from Imo State) and Stephen Wada Omaye. They are pleading with the court to annul the election and conduct a fresh one. It has INEC and APC as defendants.

The fourth suit was filed by Johnson Jacob Usman (who claimed to be an indigene of the state, a registered voter and a lawyer). He is seeking, among others, to compel INEC to suspend all actions in relation to the election pending the determination of the suit and a declaration that the election ought to be cancelled. It has the AGF and INEC as defendants.

Yesterday, lawyers representing all the plaintiffs agreed that the APC, which is listed as a defendant in all the cases, was yet to be served. They said service could not be effected because of the violent clash at the party’s national secretariat in Abuja. The party was also not represented in court.

Justice Kolawole, upon an agreement by lawyers in the case, including Goddy Uche (SAN) for Wada, T. M. Inuwa for INEC and Mrs. Memuna Lamin Shiru for the AGF that the suits be consolidated, elected to hear all the cases together.

The judge refused to grant the plaintiffs’ request for an abridgment of time within which the defendants could respond to the suit. He said in view of the fact that time was of essence, he would not bother with the facts of the cases and other preliminary issues, but would concentrate on the resolution of issues of law to be raised by parties.

In a brief ruling, the judge said parties had agreed to file written addresses to be adopted on Novemeber 3, to enable the court give its decision on Friday (November 4). He said it was necessary for the court to pronounce on the questions of law raised so that the supplementary election scheduled for December 5 will not be conducted under an atmosphere of “doubt about its constitutional validity”.

The judge later stood down proceedings for about one hour to enable the lawyers agree on the questions of law for the court to decide.

When the court later reconvened at about 1.40pm, three questions were submitted to it by the lawyers. The questions include:

*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 (as amended) as well as sections 178 – 181 of the Constitution, INEC can lawfully conduct a second/supplementary election into the office of governor of Kogi State on 5th day of December 2015 or any other date at all let alone accepting the nomination/substitution by the All Progressives Congress (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.

*Whether in view of the provision of Section 179(2)(3)(4)(5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) 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 majority of lawful votes case at the Kogi State governorship election held on 20th day of November 2015 ought not to be declared and returned by INEC as the winner of the election having secured not less than one quarter of the votes cast in two-third (2/3) of all the Local Government Areas in Kogi State.

*Whether in view of Section 181 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) INEC ought to conduct a fresh governorship election in Kogi State.

Source: The Nation


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