Godwin Tsa, Abuja
The Abuja division of the Federal High Court has ordered the Independent National Electoral Commission (INEC), to with immediate effect, issue a certificate of return to former Imo State governor, Rochas Okorocha, as the senator-elect for the Imo West Senatorial District.
The court accordingly ordered, that “INEC shall forthwith, publish and circulate the name of the plaintiff as the senator-elect representing Orlu Imo West senatorial district.
This was the judgment delivered by Justice Okon Abang on Friday on the suit filed by Okorocha to challenge INEC’s decision to withhold his certificate of return after he was declared the winner of February 23, 2019, National Assembly election in the Imo West senatorial district.
The electoral body had withheld the certificate of return based on the report of its Returning Officer that he declared the results under duress.
However, in his judgment that lasted for six hours, Justice Abang held that “once the declaration is made under Section 68(c) of the Electoral Act, INEC has become functus officio and INEC has no lawful authority to withhold the certificate of return for any reason whatsoever.
“Therefore the issue of duress is unknown to both the Electoral Act and the Constitution.”
The court ruled that Okorocha remained elected subject to the outcome of the ongoing proceedings of the National Assembly Election Petition Tribunal.
He, therefore, ordered, “INEC shall forthwith publish and circulate the name of the plaintiff as the senator-elect representing Orlu Imo West senatorial district. Therefore the issue of duress is unknown to both the Electoral Act and the constitution.”
Justice Abang held, that the returning officer Prof. Innocent Ibeawuchi, having declared Okorocha as winner of the senatorial election held on February 23, 2019, for Imo West senatorial district, having polled a total of 97,792 votes, that “the plaintiff remains the senator-elect for Imo West senatorial zone”.
In addition, the court held that in view of section 68(c) of the Electoral Act, the decision of the returning officer of INEC in declaring Okorocha, winner of the Imo West senatorial district “is final”.
The court also declared that in view of Sections 68(c) and 71(1) of the Electoral Act, refusal of INEC to include Okorocha’s name in the list of senators-elect published on its website on March 11, 2019, “is ultra vires, unlawful, null and void.”
The court also declared that in view of Sections 68(c) and 71(5) of the Electoral Act, refusal of INEC to issue a certificate of return to Okorocha “is ultra vires, unlawful, null and void”.
The court noted that though the issue was a post-election matter, however, it was the contention of Justice Abang that the case of the plaintiff solely rested on the administrative action of INEC.
“None of the four questions and seven reliefs raised by the plaintiff challenging the action of INEC relates to or questions the validity of any person going to National Assembly Election Petitions Tribunal.
“I have my doubt as to whether counsel representing the 1st to 8th defendants critically examined the wordings of Section 285(1) of the 1999 Constitution, that confers limited and exclusive jurisdiction on the National Assembly Election Petition Tribunal on post-election issues.
“If the defendants did, they would not have filed objections to this suit” Justice Abang held.
“Though it is a post-election issue but it is not a post-election dispute that the plaintiff cannot take to the National Assembly Election Petition Tribunal, the court said.
“The issue of INEC refusing to issue a Certificate of Return to the plaintiff is not one of the four grounds provided for under Section 138(c) of the Electoral Act that would warrant the plaintiff going to the tribunal.
“INEC’s refusal to issue a certificate of return or publish plaintiff’s name on its website list as winner of the senatorial election for Orlu zone (Imo West) senatorial district is not one of these four grounds.
“Beyond this, the plaintiff was declared winner of the election under the Electoral Act. It is not a winner that goes to election petition tribunals, it is the loser,” Abang stated.
“It is INEC that caused so much problems in this case. The decision of INEC not to issue a Certificate of Return to Okorocha is an administrative decision.
“It is only the 2nd to 8th defendants that would approach the National Assembly Election Petition Tribunal and not the plaintiff with regard to the four grounds provided under Section 138 (c) of the Electoral Act.
Requiring the plaintiff to go to the tribunal since the issue is post election according to the court, “amounts to legal impossibility and you cannot operate democracy in law.
Abang further held that: “This court has exclusive jurisdictions to hear the suit of the plaintiff” adding that, “no section of the Electoral Act allows the plaintiff to go to election petition tribunal.
“Under Section 138(a) of the Electoral Act, election petition tribunal has no jurisdiction to determine questions as to the validity of INEC’s action.
“Jurisdiction of tribunal is restricted and not unlimited,” the court insisted.
Abang lambasted INEC for resorting to self help, stressing that “under Section 68 of the Electoral Act, INEC has become functus officio and has no lawful authority to withhold issuance of certificate of return to the plaintiff.”
The court was of the view that INEC acted ultra vires in view of Section 68(c) of the Electoral Act.
“INEC’s unilateral decision not to issue certificate of return to the plaintiff is unknown to law. INEC arrogated judicial powers to itself.
“Plaintiff’s suit is constitutional under Section 251 of the 1999 Constitution and the plaintiff’s suit is not related to electoral process.”
Consequently, the court dismissed the preliminary objections of the 1st, 2nd and 3rd defendants.
Making pronouncement on the substantive matter, the court said: “Having regards to Section 68(c), of the Electoral Act, the decision not to issue certificate of return to the plaintiff can be taken by a tribunal not INEC.
Consequently, the court held it was mandatory for INEC to include the plaintiff’s name in its website.
However, Abang noted that INEC did not offer any reason as to why it refused to publish the name of the plaintiff as the winner of Imo West senatorial district.
In a bid to resolve the issue, the court asked the question: “Was it lawful for INEC that was expected to be neutral to sit in judgement on an act without calling for evidence from both sides? I think not.
“No law confers that power on INEC to arrive at any decision not to issue certificate of return to the plaintiff.
The court opined that “INEC has no power to withhold Certificate of Return of a person that was declared winner by a returning officer.
“It is only a tribunal that can take evidence from both parties, and take decision from evidence before it; and under Section 40 of the Electoral Act, it can take a decision.
Therefore, “there is no law both statutory and universal that supports the unilateral decision of INEC.”
The court posited that INEC denied the plaintiff fair hearing and allowed it’s personal feeling to affect it’s official duties.
“The electoral body cannot be a judge in its own case because the returning officer is also a staff of INEC.
In addition, the court noted there was a police report that indicated that the election was free and fair, wondering why INEC overlooked the police report.
Justice Abang stated that Nigeria is governed by rule of law and not by myth, pointing out that the “decision of INEC cannot survive a minute.”
The court also insisted it has no jurisdiction to look into the issue of whether or not the result of the senatorial election was released under “duress,” stressing that it was left for determination at the election petition tribunal that has jurisdiction to make findings.
“The claim of the returning officer might be true or false and it is the tribunal that can make such findings.
“The 2nd to 8th defendants had no reason to apply to be joined in this matter because the outcome would not affect them.
“INEC cannot seek to circumvent the law, and the people of Orlu zone must have representation in the Senate. There must not be a vacuum for the zone in the Senate. Therefore, INEC’s action cannot stand in a democratic setting” the court held.
In addition, Abang said: “The electoral body cannot hide under Section 75(2) of Electoral Act to back its action because it does not apply to it upon the plaintiff having been announced the winner of the election.
“There is no right without a remedy because INEC did not announce another winner, nullify the election or declare the election inconclusive to warrant the matter to be heard at the tribunal.
Consequently, Justice Abang ordered INEC to pay Okorocha the sum of N200,000 as cost of going to court.
The court equally ordered each of the seven plaintiffs in the suit to pay Okorocha the sum of N100,000 as cost of litigation.
The judge ordered the defendants to pay the costs personally to Okorocha before taking any further steps in the case.