Godwin Tsa, Abuja And Stanley Uzoaru, Owerri
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 beleaguered 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.”
Justice Okon Abang delivered the judgment on Friday, June 7, 2019, 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.
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 ceased to have any lawful authority to withhold Certificate of Return for any reason whatsoever.
“Therefore, the issue of duress is unknown to both the Electoral Act and the Constitution,” the court affirmed.
Justice Abang held that Returning Officer, Prof. Innocent Ibeawuchi’s declaration of Okorocha, who polled a total of 97,792 votes as the winner of the senatorial election, “is final” and “the plaintiff remains the Senator-elect for Imo West senatorial zone”.
He observed that 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. INEC refusing to issue a Certificate of Return to the plaintiff, Justice Abang noted, 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,” Abang stated. “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.” 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 it is not a post-election dispute that the plaintiff cannot take to the National Assembly Election Petition Tribunal,” the court affirmed. The court held that “It is INEC that caused so much problem in this case,” referring to its withholding of Okorocha’s Certificate of Return as an “administrative decision.” Requiring the plaintiff to go to the tribunal since the issue is post-election, according to the court, “amounts to legal impossibility.”
It noted: “It is only the 2nd to 8th defendants that would approach the National Assembly Election Petition Tribunal and not the plaintiff with regards to the four grounds provided under section 138 (c) of the Electoral Act.” Abang further held: “This court has exclusive jurisdictions to hear the suit of the plaintiff…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.”
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,” the court said, noting that INEC by its action arrogated judicial powers to itself. No law confers that power on INEC to arrive at any decision not to issue certificate of return to the plaintiff. 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. There is no law both statutory and universal that supports the unilateral decision of INEC”.
The court, further declared the Plaintiff’s suit constitutional under Section 251 of the 1999 constitution, and while clarifying that the plaintiff’s suit is not related to electoral process, wondered why INEC failed to offer reasons for its refusal to publish the name of the plaintiff as the winner of Imo West Senatorial district. The court also noted there was a police report that indicated that the election was free and fair, wondering why INEC overlooked the police report.
Justice Abang posited that INEC denied the plaintiff fair hearing and allowed it’s personal feeling to affect its official duties.
“The electoral body cannot be a judge in its own case because the returning officer is also a staff of INEC,” he stated, pointing out that Nigeria is governed by rule of law and that “decision of INEC cannot survive a minute”.
Consequently, the court dismissed the preliminary objections of the 1st, 2nd and 3rd defendants, pointing out that the decision not to issue certificate of return to the plaintiff can be taken by a tribunal and not INEC. Consequently, INEC was mandated to include the plaintiff’s name on its website.
Reacting to the favourable court ruling, Okorocha hailed the judgment describing the judiciary in Nigeria as the Daniel that has always come to Judgment and also describing Justice Abang as not only a model but also one of the exemplary ambassadors of the judiciary in Nigeria.
Meanwhile, the Independent National Electoral Commission (INEC) has reluctantly agreed to ‘meet as soon as practicable’ to issue the immediate past governor of Imo state, Owelle Rochas Okorocha certificate of return as the senator-elect for Imo West senatorial district.
The commission in the state signed by National Commissioner and chairman Information and Voter Education committee, Festus Okoye, however expressed concern and worry that if electoral impunity is allowed to flourish, any individual can harass, intimidate and put the Commission’s officers under duress, procure a favourable declaration and be rewarded with a Certificate of Return.