Election and Defection: Who Owns the Votes? (Part 3)

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Introduction 

The New Trend Regarding Defections (Continues)

Last week, we discussed the new order and trend which emphasise that, contrary to the earlier position in Amaechi’s case, votes are now held to belong to the candidates who are natural beings. Votes do not belong to political parties which are an abstraction, agent and mere vehicle that a candidate rides to victory. Political parties campaign, gather and garner votes for the candidates. It is the candidate that is recognised, as the winner and owner of the votes cast at an election. 

The Supreme Court has thus, interpreted Section 141 of the Electoral Act 2010 (as amended), which came into force after Amaechi’s case of 2008, to the effect that votes belong to a candidate; not his political party.

In NWANKWO & ANOR v INEC & ORS (2019) LPELR-48862(CA) the Court of Appeal was even more elaborate and pungent. It held: 

“… It is trite that, it is only a natural person that can be lawfully declared and returned as a winner of an election. The Electoral Act, 2010 (as amended) only contemplates the declaration and return of a candidate in an election, and not a political party…. Submits that a clear reading of Section 156 of the Electoral Act, 2010 (as amended) stipulates that only a candidate can be declared and returned as a winner of an election, and also that the candidate must be one who participated in all the stages of the election, hence the wordings “a candidate in an election”… Furthermore, it is trite that a political party is an abstraction. It has to canvass for votes through its members as agents, in the same way it contests, wins or loses election through a candidate it nominates who acts as its agent. WADA v BELLO (2016) 17 NWLR (PT.1542) 374 at 427-428, PARAS H-A. In the case of NGIGE v AKUNYILI (2012) 15 NWLR (PT.1323) 343 at 357-376, the court held thus: “...it is my considered view that the Appellant in relying on the provision quoted above (Section 211 of the Constitution), has conveniently lost sight of the underlined words which show that a political party canvasses for votes on behalf of the candidate. In other words, that a political party is nothing more than an agent of the candidate in gathering votes for an election. It is my further view that is against the backdrop of this, that the Electoral Act (Supra) requires the candidate (and not the party of the candidate) that has the highest number of votes at an election to be declared as the winner of the said election, and further provides for the means of challenging the return of the candidate (and not his political party)…” Interestingly, PW2 who was the Returning Officer in the election in contest, also admitted that by the provisions of the Electoral Act, 2010 (as amended), INEC Manual and Guidelines, it is a natural person and not an artificial person that can be returned in an election. In Paragraph 13 of his Statement on Oath, he stated thus: “…that I know I was expected to return a natural person and not a political party, as the winner had not been controverted…” That since the 2nd Respondent has no candidate for the election, the position of the law is very clear as to validity of votes cast for a political party who has no candidates. The law is that, such votes are regarded as wasted votes. In the case of APC & ANOR v SENATOR KABIRU GARBA MARAFA & ORS (UNREPORTED DECISION OF SUPREME COURT IN SC/377/2019 DELIVERED ON THE 24TH DAY OF MAY, 2019), the Supreme Court held thus: “….For the avoidance of doubt, a party that has no candidates in an election, cannot be declared the winner of the election. This being so, the votes credited to the alleged candidates of the Appellant in the 2019 general elections in Zamfara State, are wasted votes. For that reason, it is hereby ordered that candidates of parties other than the 1st Appellant with the highest votes and the required spread, stand elected into various offices that were contested for in Zamfara State in the 2019 General Elections…”. The law had earlier been stated by the Supreme Court in AGHEDO v ADENOMO (2018) 13 NWLR (Pt.1636) 264 @ 304 – 305 per EKO JSC thus: “…No political party by virtue of the said Section 106 (d) of the Constitution can be declared winner of any general election conducted by the INEC (3rd Respondent), if it had no candidate qualified to conduct the election. Similarly, a candidate not sponsored by a political party by virtue of Section 106 of the Constitution, cannot win an election. So also, a political party that sponsored no valid or competent candidate in accordance with due process of the law, cannot win an election or votes therefrom…”. See also the case of OZOMGBACHI v AMADI (2018) 7 NWLR (Pt.1647) 171 at 196 where the Supreme Court per PETER-ODILI JSC held as follows: “…I agree with the counsel for the 1st Respondent that the present case is a total departure from the foregoing cases. I believe the Supreme Court has laid to rest, the contention that it is the Political Party to contest and win an election. In CPC v OMBUGADU (2013) 18 NWLR (Pt.1385) 66, the Court was categorical that individuals as candidates win elections, and not political parties…”.  

In the case of HON. SUNDAY AGHEDO v GODWIN O. ADENOMO & ORS (2018) NWLR 13 (PT 1636), the Apex Court, while unanimously dismissing the appeal of the Appellant, held that when a party presents an unqualified candidate, or where the process leading to the nomination of the candidates at the general election is faulty, any votes cast for the candidates are wasted votes, and such a party is considered not to have presented any candidates for the general election. This was the same decision in APC & ORS v SENATOR KABIRU MARAFA & 170 ORS (2020) 6 NWLR (Pt. 1721) 383, which I handled from the Court of Appeal to the Supreme Court.

Furthermore, in the HON. SUNDAY AGHEDO case (supra),the Apex Court held that a candidate not sponsored by a political party can also not win an election. This case, while emphasising the symbiotic relationship between a candidate and his political party, gave primacy to the status of the candidate, since no matter the volume of votes scored in an election, same are considered wasted votes where the candidate was never qualified in the first place. The Apex Court specifically talked about “any votes cast for the candidates”, being wasted votes. It never said “any votes cast for the political party”, because votes do not belong to the political parties, but to candidates they sponsored. The parties are but mere agents of and gatherer of votes for the candidates, as it is the candidates and not the political parties that contest elections.

Similarly, in the case of DR CHRIS NWABUEZE NGIGE v PROFESSOR DORA NKEM AKUNYILI & ORS. (2011) LCN/4951(CA); [2012]15 NWLR PT 1323, the Court of Appeal, coram the Honourable Justice Samuel Oseji JCA (as he then was), reading the lead judgement of the court, followed the new trend that it is a candidate, and not a political party, that owns the votes. The intermediate court luminously dilated as follows:

 “A political party canvasses for votes, on behalf of the candidate. In other words, that a political party is nothing more than an agent of the candidate in gathering votes for an election. It is my further view that it is against the backdrop of this, that the Electoral Act (supra) requires the candidate (and not the party of the candidate) that has the highest number of votes at an election to be declared as the winner of the said election, and further provides for the means of challenging the return of the candidate (and not his political party). It would equally appear that it is against the backdrop of the fact that political parties canvass for votes on behalf of their respective candidates, that while Forms EC8A – ECSE referred to by the Appellant bear the names of political parties, it is still the candidate of the political party (and not the political party itself) that has the highest number of votes against his name that is declared as the winner of an election conducted under the Electoral Act”.

The case of WADA v BELLO (2017) 3 WRN 72, is another case that is also often very misinterpreted and misapplied. It was never a case concerning defection, as happened in the cases of ABUBAKAR, UMAHI, AYADE and MATAWALLE. In this case, the Governorship election had commenced on 21st November, 2015. Before the results were fully collated and announced, the initial candidate of the APC party in the election, Prince Abubakar Audu (my good friend and client; may God rest his noble soul, amen), died. At the end of the collation of results, INEC declared the election inconclusive because the margin of win between the said Prince Abubakar Audu and the 1st Appellant (Governor Wada) was less than the total number of registered voters in 91 polling units where elections had earlier been cancelled. Prince Audu had picked and run with Faleke, who did not take part in the primaries.

Upon receipt of the news of the death of Prince Audu from his party, the INEC, by a public notice, took the decision to conclude the Kogi State Governorship election by conducting supplementary election in the said 91 polling units affected by the said cancellation, and to allow the APC fill the vacancy thus created by the death of Prince Audu, its candidate. At the said supplementary election in the 91 polling units, Bello, the APC’s new candidate, scored 6,885 votes, while Wada of the PDP scored 5,383 votes.

Upon the addition of the results of the aforesaid supplementary election with the result of the elections earlier held, Yahaya Bello (who came second at its primary election), scored the highest number of lawful votes cast in the said election and also met the constitutional requirement of securing one quarter of all the votes cast in each of at least two third of Local Government Areas of Kogi State. Bello and Hon. James Faleke were issued Certificates of Return, which Hon. James Faleke rejected. Based on the Certificate of Return, Bello was sworn in as Governor of Kogi State.

Dissatisfied with the said election and return of Bello, the Appellants filed their petition complaining of sundry infractions. The Supreme Court held that the Tribunal was right, in holding that Bello was rightly returned as the winner of the election. It illuminated thus:

“This is because substitution of a party simply means, a designation of a person or thing to take the place of another or thing. It is the process by which one person or thing takes the place of another or thing etc. See Black’s Law Dictionary page 147 UGWU v ARARUME (2007) 12 NWLR (Part 1048) 365, ATTORNEY-GENERAL OF ANAMBRA v ATTORNEY- GENERAL OF THE FEDERATION (1993) 6 NWLR (part 302) 692.” (To be continued). 

THOUGHT FOR THE WEEK

“Winning or losing of the election is less important than strengthening the country”. (Indira Gandhi)