- HR|Participate in government
(DELIVERED BY KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, JSC)
This appeal was heard on Tuesday 20TH September 2016. On that day I dismissed the appeal and promised to give my reasons for doing so today. Facts: In preparation for the Kogi State Governorship Election scheduled for 21st November 2015, the All Progressives Congress (APC) held primary elections on 29th August 2015 to choose its flag bearer. Several members of the party, including the late Prince Abubakar Audu and the 2nd respondent, Yahaya Bello, contested the said primary whereat the late Prince Audu emerged the winner while the 2nd respondent came second. The appellant herein did not take part in the primary election.
Having won the primary election, the late Prince Audu nominated the appellant, Hon. Abiodun Faleke as his running mate and both names were submitted to the Independent National Electoral Commission (INEC), the 1st respondent herein, by the APC as its candidates for the Governorship Election. The election was held as scheduled on 21/11/2015. At the close of the polls, the late Prince Audu/Faleke ticket was leading with 240,867 votes while the Peoples Democratic Party (PDP) was in second place with 199,248 votes. However, as a result of certain electoral malpractices discovered to have occurred in 91 polling units, the 1ST respondent, relying on its Manual for Election Officials (updated version) by a Public Notice issued on 22nd November 2016 declared the results of the election inconclusive on the ground that the total number of registered voters in the disputed 91 polling units where elections had been cancelled, which was 49,953, exceeded the margin of votes between the APC and the PDP, which was 41,353 votes and could therefore affect the final outcome of the election.
Unfortunately, Prince Abubakar Audu passed on, on 22nd November 2015 before the conduct of the supplementary election. The news of his demise was communicated to the 1st respondent (INEC) vide a letter dated 23rd November 2015 (Exhibit R2-(4). By a letter dated 24th November 2015 (Exhibit R1-(5), the 1st respondent requested the APC to substitute the deceased with a suitably qualified candidate. The APC substituted the deceased with the 2nd respondent, Yahaya Bello, who had come second in the party's primaries and notified the 1st respondent accordingly.
The supplementary election took place on 5th December 2015 in the 91 polling units. The APC, with the 2nd respondent as its new candidate, scored 6,885 votes as against 5,363 votes scored by the PDP, its closest rival. The votes were added to the votes earlier scored by the respective parties on 21st November 2015 and the 2nd respondent was declared the winner of the election and returned as the duly elected Governor of Kogi State.
However, before the conduct of the supplementary election and upon the declaration by the 1st respondent that the election was inconclusive, followed by the death of Prince Audu, the appellant instituted an action before the Federal High Court in Suit No. FHC/ABJ/CS/977/2015 vide an originating summons seeking an interpretation of Sections 1(2), 179(2) (a) & (b) and 181 of the 1999 Constitution (as amended). He also sought the setting aside of the declaration of the 1st respondent that the election of 21st November 2015 was inconclusive and an order directing the 1st respondent to make a return on the already concluded Governorship Election. His contention was that the joint ticket of late Prince Audu and himself having scored 240,867 votes, which constituted a majority of the lawful votes cast and also constituted one quarter of the votes cast in each of the 21 Local Government Areas of the State, by virtue of Section 179(2) (a) & (b) of the 1999 Constitution (as amended), the election was concluded and the late Prince Audu and himself were deemed to have been duly elected. It was also his contention that by virtue of Section 181 (1) of the Constitution, he was entitled to step into the shoes of late Prince Audu as the Governor elect. The suit was however struck out upon successful objections thereto by the respondents on the ground that by virtue of Section 285 of the
Constitution, only an Election Petition Tribunal had the jurisdiction to look into his complaints.
As stated above, the supplementary election subsequently took place on 5th December 2015 and the 2nd respondent was declared the winner. He was accordingly issued with a certificate of return on 7th December 2015.
Being dissatisfied with the return of the 2nd respondent by the 1st respondent, the appellant filed a petition before the Kogi State Governorship and State Houses of Assembly Election Tribunal on 21st December 2015. The petition was anchored mainly on the construction of Sections 179(2) and 181(1) of the Constitution. The respondents again raised preliminary objections to the competence of the petition. The lower Tribunal took the objections along with the petition.
At the conclusion of the trial, and after considering the respective written addresses of learned counsel, the Tribunal in a considered judgment delivered on 6th June 2016 upheld the preliminary objections. However, not being the final court and in accordance with established practice, the Tribunal proceeded to consider the petition on its merits in the event that it was found to have erred in sustaining the objections. It found that the petition lacked merit and dismissed it accordingly.
Being dissatisfied with the judgment, the appellant appealed to the Court of Appeal, Abuja Division. In a considered judgment delivered on 4th August 2016, the lower court dismissed the appeal. The appellant is still dissatisfied and has further appealed to this court vide his Notice of Appeal dated 8th August 2016. The part of the decision of the lower court complained of is as follows:
"The entire decision of the lower court except the portions where it found that:
a. The appellant had the locus standi to file the petition;
b. The petition was not statute barred;
c. Where any candidate meets with the requirements of Section 179 (2) of the Constitution of the Federal Republic of Nigeria (1999) (as amended) (1999 Constitution), he should be declared winner and returned as duly elected;
d. The appellant and Prince Abubakar Audu won one-quarter of votes cast in each of the Local Government Areas of Kogi State and also led the nearest contender, Captain Inuwa Wada;
e. For the purpose of nomination and contest at an election into the office of Governor of a State in Nigeria, there can be no validly nominated Governorship candidate without a Deputy Governorship candidate; and
f. Late Prince Abubakar Audu nominated the appellant as Deputy Governor pursuant to Section 187 of the 1999 Constitution in order to validate the former's candidacy."
In compliance with the Rules of this court, the parties duly filed and exchanged their respective briefs of argument. At the hearing of the appeal on 20th September 2016, CHIEF WOLE OLANIPEKUN, SAN, CHIEF BOLAJI AYORINDE, SAN DELE ADESINA, SAN and AJ. OWONIKOKO, SAN leading a retinue of other learned counsel adopted and relied on the appellant's brief filed on 18/8/2016, the appellant's Reply Brief to 1st respondent's brief filed on 01/09/2016 and the appellant's Reply Brief to 2nd respondent's brief filed on 07/09/2016 and urged the court to allow the appeal. He also made oral submissions in further adumbration of the arguments in the said briefs.
Learned senior counsel for the 1st respondent, DR. ALEX IZINYON, SAN and AHMED RAJ I, SAN leading a team of other learned counsel adopted and relied on the 1st respondent's brief filed on 26/8/2016 and a separate list of authorities filed the same day. He also addressed the court in oral amplification of the submissions therein.
Learned senior counsel, J.B. DAUDU, SAN and A.M. ALIYU, SAN leading other learned counsel on behalf of the 2nd respondent adopted and relied on the 2nd respondent's brief filed on 02/09/2016 in urging the court to dismiss the appeal. He also adopted the arguments of DR. IZINYON, SAN for the 1st respondent and made same submissions in further adumbration of his brief.
The appellant had distilled 10 issues for determination in this appeal. The 1st respondent formulated 4 issues while the 2nd respondent also formulated 4 issues.
1. Having regard to the specific provisions of Sections 179(2) and 181(1) of the Constitution, relevant provisions of the Electoral Act, 2010, as well as the facts and circumstances of this case, whether the lower court did not fall into serious error by dismissing appellant's case on the ground that the 1ST respondent never made a return at the election of 21/11/15, as a result of which it agreed that the said election was inconclusive.
(Grounds 9 and 10)
2. Having regard to the fact that the joint ticket of the late Prince Abubakar Audu and the appellant garnered 240,867 votes at the Kogi Governorship election of November 21, 2015 and also complied with the constitutional requirements of Section 179(2) of the Constitution, whether the said joint ticket was not deemed to have been duly elected as Governor and Deputy Governor respectively. (Grounds 1, 3 and 4)
3. Considering the facts and circumstances of this case, whether Section 181 of the Constitution does not enure in favour of the appellant.
4. Considering the clear constitutional provisions relating to the due election of a Governor and Deputy Governor, whether the lower court did not fall into serious error by relying on an isolated provision of INEC's Manual for Election Officials (updated) to affirm and approve of both the 1st respondent and trial tribunal's declaration of the Governorship election of 21/11/15 as inconclusive. (Grounds 5, 6, 7 and 8)
5. Having regard to the narrow constitutional and legal issues in the petition, as well as the lower court's finding that appellant's case was/is straightforward and undisputed, whether the lower court did not fall into very serious error by later holding that the pleadings of the appellant could not sustain the petition.
(Grounds 15, 31, 34 and 36)
6. Was the lower court not in error by holding that the 2nd respondent could rightly appropriate the votes cast for the joint ticket of the late Prince Abubakar Audu and the appellant at the Governorship election of 21/11/15.
(Grounds 11, 12 and 13)
7. Having regard to the very clear provisions of Sections 177, 182 and 187 of the Constitution, read together with relevant provisions of the Electoral Act, as well as the evidence on record, whether the lower court was not wrong in holding that the 2nd respondent was qualified to contest the Governorship election in Kogi State and be returned as Governor of Kogi State.
(Grounds 27, 28, 29, 30, 32, 33, 35, 37 and 39)
8. Considering the judgment of the Federal High Court (per Kolawole, J) in Suit No. FHC/ABJ/CS/977/2015 delivered on 4/12/15, the clear constitutional and legal issues involved in the petition and the circumstances of the petition, whether the lower court was not wrong by affirming the trial Tribunal's decision which allowed the respondents' preliminary objections and further holding that the trial Tribunal lacked jurisdiction to entertain the action. (Grounds 14, 22, 23, 24, 25, 26 and 38)
1st Respondent's issues:
1. Whether considering the peculiar facts and circumstances surrounding this case, the lower court was not right in refusing to hold that the appellant was elected the Governor of Kogi State on the basis of Sections 179(2)(a) and (b) and 181(1) of the 1999 Constitution (as amended) and affirming the decision of the trial Tribunal which affirmed the 1st respondent's decision declaring the 2nd respondent the elected Governor of Kogi State.
(Grounds 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13 and 16 of the Notice of Appeal)
2. Whether the court below was not right in its decision on appellant's complaint that the trial Tribunal failed to resolve and determine the alleged weighty Constitutional and Statutory issues raised by him before the trial Tribunal (Grounds 17, 18, 19, 20, 21 and 22 of the Notice of Appeal)
3. Whether the court below was not right in affirming the decision of the trial Tribunal allowing Respondents' Preliminary Objection on Grounds/Issues of subject matter jurisdiction, cause of action and non joinder of APC. (Grounds 23, 24, 25, 26 and 30 of the Notice of Appeal)
4. Whether the court below was not right in its decision that the 2nd respondent was not qualified to be returned as the Governor of Kogi State and affirmed the trial Tribunal's decision that the grounds and reliefs in the appellant's petition were incompetent at variance with and unsupported by the pleadings.
(Grounds 14, 15, 27, 28, 29, 31, 32, 33, 34, 35, 36, 37 and 38 of the Notice of Appeal)
2nd Respondent's Issues:
1. Whether the court below can be faulted when it held that the 1st respondent acted rightly in applying the guidelines in the Manual to resolve the conundrum that had arisen on the 21st of November, 2015 and that the announcement of the election as inconclusive is not contrary to the Constitutional provisions of Section 179(2) and 181(1) of the 1999 Constitution upon which the appellant has hinged his entire case? (Grounds 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 12 and 15)
2. Whether the court below could be faulted when it affirmed the decision of the trial Governorship Tribunal on the validity of the respondents' preliminary objections as it relates to the issues of subject matter of jurisdiction, cause of action and non joinder of the appellant's political party? (Grounds 22, 23, 24 and 25)
3. Whether the court below could be faulted for affirming the trial Tribunal's decision votes cast for the joint ticket of the late Prince Abubakar Audu and the appellant in the Governorship Election of November 21, 2015 was transferable to the 2nd respondent as held by the Trial Tribunal?
(Grounds 18, 26, 29, 30, 31, 33, 34 and 35)
4. From the entire facts and circumstances leading to this appeal whether the court below can be faulted when it affirmed the position of the trial Tribunal that the petition was incompetent ab initio especially when he facts in support of the 2 grounds propping up the petition were unsupportable in law and in fact?
(Issue No. 4)
Having carefully examined all the issues, I am of the view that the 4 issues formulated by the 2ND respondent are adequate to fully resolve all the issues in contention in this appeal. Accordingly I adopt the said issues with slight variations in phraseology. The issues are as follows:
1. Whether the court below was right when it held that the 1st respondent acted correctly in applying the guidelines in the Manual for Electoral Officers (updated version) to resolve the conundrum that had arisen on the 21st of November 2015 and in holding that the announcement of the election as inconclusive is not contrary to Sections 179(2) and 181(1) of the 1999 Constitution.
2. Whether the court below was right when it affirmed the decision of the trial Governorship Tribunal on the validity of the respondents' preliminary objections as it relates to the issues of subject matter, jurisdiction, cause of action and non joinder of the appellant's political party.
3. Whether the court below was right in affirming the trial Tribunal's decision that votes cast for the late Prince Audu and the appellant in the Governorship Election of November 21, 2015 were transferrable to the 2nd respondent.
4. Whether, from the entire facts and circumstances leading to this appeal, the court below rightly affirmed the decision of the trial Tribunal to the effect that the petition was incompetent ab initio.
This issue covers the appellant's issues 1, 2, 3, 4, 6 and 10 and the 1st and 2nd respondents' issue 1 respectively.
In order to put the submissions of learned senior counsel for the appellant in proper context, it must be re-iterated that it is the appellant's contention that the election into the office of Governor of Kogi State held on 21st November 2015 was conclusive with the ticket of the late Prince Abubakar Audu and himself scoring a majority of the votes cast in one quarter of all the Local Government Areas in the State. That by virtue of Section 179(2) of the 1999 Constitution (as amended), the said joint ticket was deemed to have been duly elected. That having regard to the unfortunate demise of the Governorship candidate, Prince Audu, by operation of section 181 of the Constitution, he ought to have been sworn in as the Governor elect.
The appellant's first challenge against the judgment of the court below is its finding that Sections 179(2) and 181 of the Constitution are inapplicable in the circumstances of this case because INEC (1st respondent) did not make a declaration or return of a winner at the 2015 Kogi Governorship election. Chief Wole Olanipekun, SAN submitted that there is nothing in Sections 179 or 181(1) of the Constitution that makes a declaration or return a condition precedent to the application of those sections. He contended that by reading the word "return" into Section 181 the lower court read into the section what is not contained therein and thereby defeated the purpose of its express provisions.
Relying on Marwa Vs. Nyako (2012) 6 NWLR (Pt.1296) 199 @
279 he submitted that a constitutional provision must not be interpreted in such a way as to defeat its purpose.
In his view, the operative part of the provisions is the phrase "duly elected" which refers to the act of the electorate casting their votes. He opined further that the interpretation given to the Sections by the two lower courts has the effect of subjecting the franchise of the electorate to the administrative action or inaction of the returning officer. Relying on the canon of interpretation of constitutional provisions which requires that similar provisions must be" construed together, he submitted that Section 181 of the Constitution should be construed in the light of Section 179(2), thereof, which both deal with "due election" and not Section 156 of the Electoral Act 2010 (as amended), which is a general definition section.
Learned senior counsel argued that having regard to the jurisdiction conferred in Election Tribunals pursuant to Section 285(2) of the Constitution to hear and determine questions as to whether any person has been validly elected to the office of Governor or Deputy Governor of a state, it is clear that a declaration by INEC cannot assume the status of finality or being sacrosanct. He cited the following cases to buttress his contention that in appropriate cases, the courts have discountenanced the action or inaction of INEC in respect of its declaration after a Governorship election to pronounce the persons validly elected pursuant to Section 179 of the Constitution: Omoboriowo Vs Ajasin (1984) 1 SCNLR 108: Ngige Vs Obi (2006) 14 NWLR (Pt.999) 1: Agagu Vs Mimiko (2009) 7 NWLR (Pt.1140) 342: INEC Vs Oshiomole (2009) 4 NWLR (Pt.1132) 611: Fayemi Vs Oni (2010) 7 NWLR (Pt.1222) 326 and Aregbesola Vs Oyinlola (2011) 9 NWLR (Pt.1253) 458.
Learned senior counsel argued that Section 69 rather than Section 156 of the Electoral Act is more apposite in relation to Section 179 of the Constitution as, it is specifically confined to and relates to declaration of results and is subject to Section 179 of the Constitution, whereas Section 156 is a general definition section. He also referred to Section 68(l)(c) of the Electoral Act, which makes the declaration of scores and return of a candidate by a returning officer subject to review by a Tribunal or Court in an election petition. Reference was also made to Sections 133(1), 133(2) and 138(l)(c) of the Electoral Act to buttress the point that the declaration or return of a candidate is not a condition precedent to due election under Sections 179(2) and 181(1) of the Constitution but rather what is to be considered in determining due election are the votes cast by the electorate.
It is Chief Olanipekun SAN's position that the lower court having held at pages 1605 - 1606 of the record that the joint ticket of the late Prince Audu and the appellant met the requirements of Section 179(2) and that where any candidate for the office of the Governor meets the said requirements, he should be declared winner and returned as duly elected, the said finding, not having been appealed against constitutes res judicata and is binding on all the parties; that in the circumstances the lower court ought to have determined the appeal in the appellant's favour. He referred to the announcement by INEC of the votes scored by the respective parties at the close of polls on 21/11/2015 as found by the lower court at pages 1603 - 1604 of the record and submitted that Section 179(2) of the Constitution having been fully satisfied, the lower court ought to have granted the appellant's reliefs 56(i), (ii), (iii), (iv), (vii), (viii), (ix), (x), (xi) and (xii) of the petition. He maintained that the provisions of Section 179(2) of the Constitution were fully satisfied at the election of 21/11/2015 and that the appellant and Prince Audu were therefore deemed duly elected.
On the applicability of Section 181(1) of the Constitution to the facts of this case, learned senior counsel premised his argument on the contention that the appellant and Prince Audu, were already duly elected at the election that took place on 21/11/2015. On the relationship between a Gubernatorial candidate and his running mate, PDP Vs INEC (1999^ 11 NWLR (Pt.626^ 200 @ 240 - 241 was referred to. He submitted that the ticket of the Governorship candidate and his running mate is a joint ticket and remains so up till the conclusion of the election A.G. Federation Vs Abubakar (2007) 10 NWLR fPt.1041) 1 referred to.
It is also learned senior counsel's contention that in affirming the 1st respondent's declaration that the election was inconclusive based on its guidelines, the two lower courts were wrong as the due election of a Governor and Deputy Governor of a state is exclusively provided for under the Constitution, such that the Constitution does not allow expressly or impliedly for any extra-constitutional legislation in the determination of the "due election" of a Governor. He argued that the Electoral Manual for the training of INEC staff cannot add to, subtract from or defer or regulate the application of the provisions of Section 179(2) of the Constitution in respect of the due election of the Governor of Kogi State, after elections had already held across all the 21 Local Government Areas of the State on 21/11/2015.
Chief Olanipekun, SAN submitted further that contrary to the finding of the court below, a conundrum could not have arisen on 21/11/2015 because the provisions of section 179(2) of the Constitution had already been satisfied. Relying on Section 1(2) of the Constitution with emphasis on the word "shall" used therein, he submitted that it means in effect that only the Constitution can determine how control of government in any part of Nigeria can be done and to that extent Sections 179 and 181, 191, 191(2) and 305 of the Constitution provide for the four scenarios in which a person can assume the office of Governor of a state. He argued that having regard to the provisions of Section 179 of the Constitution it was wrong for the lower court to have resorted to any other instrument and/or document in determining whether a candidate was duly elected as Governor on 21/11/2015. Reliance was placed on the case of INEC Vs Musa (2003) 3 NWLR (Pt.806) 72 @ 157 for the principle that "where the constitution sets the condition for doing a thing, no legislation of the National Assembly or of a State House of Assembly can alter those conditions in any way unless
the Constitution itself as an attribute of its supremacy so allowed."
He rejected the contention of the 1st respondent at the court below that there was a lacuna in the law as regards Section 179(2)(a) of the Constitution and that in any event INECs guidelines cannot amend or augment the provisions of the Constitution.
He submitted that in interpreting and applying the provisions of the Constitution resort can only be made to the express content of the Constitution itself. A.C. & Anor. Vs INEC (2007) 12 NWLR (Pt.1048) 220 @ 318 referred to. On the limited scope and application of the Manual for Election Officials reliance was placed on Agbaje Vs Fashola (2008) 6 NWLR (Pt.1082) 90 @ 127 - 128.
Alternatively, it is contended that even if the Manual could have been relied upon, it ought to have been read and applied in conjunction with the Electoral Act, which stipulates that only a person with a voter's card can vote. He noted that the Manual contains provisions relating to Permanent Voters Card (PVC) and the disentitlement of any person to vote without a permanent voters card. He referred to paragraph 2.0 at page 8 of the Manual on page 271 of the record and other relevant paragraphs. He argued that Chapter 3 paragraph 3.11 step 14 of INEC's Manual ought not to have been read in isolation of its other provisions and the Electoral Act. He noted that INEC declared the election inconclusive for the reason that the margin of win between the two leading candidates was less than the total number of registered voters in the 91 polling units where supplementary elections were scheduled to hold on 5/12/2015. In his view, since only registered voters with PVCs were eligible to vote, the proper construction of the provisions of the Manual is that it is the total number of registered voters who had collected their PVCs in the disputed 91 polling units that should have been considered in reaching a determination as to the margin of win between the two leading candidates. Reference was also made to Sections 53(2) and (4) of the Electoral Act to the effect that where cancelled results (for whatever reason) would not have an impact on the overall results, a return is to be made without a fresh poll. He contended that this was the situation in this case and that the supplementary election was unwarranted.
On the finding of the lower court that the substitution of the 2nd respondent was done pursuant to Section 33 of the Electoral Act and his entitlement to the votes cast on 21/11/2015, Chief Olanipekun, SAN argued that the election of 21/11/2015 had already been concluded and under Section 33 of the Electoral Act, the substitution of a candidate can only arise before an election and not after it has been concluded. Olofu Vs Itodo (2010) 18 NWLR (Pt.1225) 545 @ 587 referred to. He submitted that if, as held by the lower court, the appellant's right expired with that of Prince Audu upon his demise, Section 181(2) of the Constitution compels a fresh election and in the same vein votes garnered by Prince Audu expired with their candidacies and could not be appropriated by the 2nd respondent. He submitted that under Section 221 of the Constitution, it is the candidate for whom a political party canvasses votes that is eligible to benefit from the said votes and no other person. Relying on the case of Amaechi Vs INEC (supra), he contended that it is the winner of the primary election that should remain as the political party's candidate and that since the 2nd respondent did not win the primary election nor participate in the election of 21/11/2015, he could not appropriate the votes won by the Audu/Faleke ticket. The appellant's issue 10 which is subsumed under this issue 1, seeks to advance further reasons based on mathematical calculation of the geographical spread of the votes garnered on 21/11/2015, which constituted results from 96.4% of all the polling units in the state, to contend that the said supplementary election was unnecessary.
1st Respondent's submissions:
In reaction to the above submissions, Dr. Alex A. Izinyon, SAN disagreed with Chief Olanipekun, SAN's contention that a return by a Returning Officer at an election is a merely administrative action. He contended that it represents the climax of the exercise of the constitutional powers of INEC to conduct elections. He agreed with the learned senior counsel that the provisions of the Constitution must be read as a whole to determine the intention of the lawmakers. He referred to Section 153(1)(f) thereof which establishes INEC and Section 153(2) which states that the composition and powers of the electoral body are as contained in Part 1 of the Third Schedule to the Constitution. He referred to Section 15(a) and (i) paragraph F of Part 1 thereof and submitted that by its constitutional powers to "organise, undertake and supervise all election to the offices of the President, Vice President, Governor and Deputy Governor of a State
.. ", INEC is the only body to determine when the requirements of Section
179(2) have been met and that it is only after such determination that the said decision can be questioned in an election petition. In other words, that there must be a return or declaration of a winner by INEC before such return can be questioned. Agbaso Vs Ohakim (2008) 1 LRECN 317 @ 359 F - H referred to. That to do otherwise would curtail and interfere with INEC's constitutional powers, thereby eroding its independence. He submitted that a return or declaration of a winner by INEC is fundamental and that the lower court was right when it held that there being no return or declaration of a winner by INEC in this case, the appellant cannot claim to have won the election on 21/11/2015 along with Prince Audu. On Chief Olanipekun, SAN's contention that a "return" cannot be the same as "duly elected" as contained in Section 181(1) of the Constitution, he referred to Section 156 of the Electoral Act which defines "return" to mean "the declaration of a Returning Officer of a candidate in an election under this Act as being the winner of that election". He reiterated that for a person to be duly elected there must have been a declaration by a Returning Officer that the said person was the winner of an election. He submitted further that the casting of votes by the electorate, does not in itself translate to a person being duly elected, as an independent umpire must count the votes cast for each candidate in the election and declare the winner based on the votes cast. He submitted that this is where the Returning Officer comes in and that the declaration of a winner by the said Returning Officer is mandatory. He submitted that the line of cases beginning with Omoboriowo Vs Ajasin (supra) relied upon by Chief Olanipekun, SAN are inapplicable to the circumstances of this case.
With regard to learned senior counsel's contention regarding Section 179(2) of the Constitution, Dr. Izinyon, SAN argued that the provision only states what should guide a Returning Officer when making a return. He submitted further that Sections 68(l)(c) and 69 of the Electoral Act buttress the fact that the declaration of a winner in an election is what gives the legal authority to an Election Tribunal to hear and determine an election petition. Enemuo Vs Duru (2004) 2 LRECN 1 @ 27 D - A. He argued that Sections 133 and 137(2) of the Electoral Act also do not do away with the need for a return in an election but rather that Section 133 emphasises the need for a return before a petition could be filed. He also rejected the contention that Section 138(1)(c) of the Electoral Act could be interpreted to mean that in determining the number of votes cast and who is deemed to have been duly elected under Section 179(2) of the Constitution, a declaration or return by INEC is not a condition precedent. Learned senior counsel argued further that the finding of the two lower courts that a declaration or return of a candidate as winner of an election is a condition precedent to due election under Sections 179(2) and 181 of the Constitution does not amount to subjugation of the said const