2023: Court of Appeal rules on INEC discretion to transmit result to IReV

The Court of Appeal, Lagos division has voided a Federal High Court decision that mandated the Independent National Electoral Commission (INEC) to electronically upload results of the governorship and state of assembly elections from the polling units directly to the Results Viewing Portal (IReV).


A three-man panel, comprising Justice Abubakar Umar, Justice Olukayode Bada and Justice Onyekachi Otisi held that the law gave INEC very wide discretionary powers to determine how it transmits or transfers election results.

The judgment delivered by the panel on July 19 and obtained by The Guardian yesterday, described the suit filed by the Labour Party (LP) at the lower court, which gave rise to the appeal, as an abuse of court process.

On March 8, 2023, the LP, its governorship candidate in Lagos, Gbadebo Rhodes-Vivour; and 41 others obtained the order of mandamus from Justice Peter Lifu of the Federal High Court, Lagos, to compel INEC to obey the Electoral Act and its guidelines for the conduct of the elections.

Justice Lifu directed INEC to comply with and enforce Clauses 37 & 38 of the Regulations and Guidelines for the Conduct of the Governorship and State Houses of Assembly Elections in Lagos State.

The clauses mandated presiding officers of all polling units to paste the publication of result posters at the polling units conspicuously after completing the EC8A result sheet.

The order also mandated the presiding officers to electronically transmit/transfer the results of the polling units directly to the collation centre and a scanned copy of the EC8A to INEC’s IReV immediately after the completion of all the polling units voting and result procedure.

Justice Lifu’s judgment also directed INEC to observe, comply and enforce the provisions of Section 27(1) of the Electoral Act 2022 in the distribution of electoral materials during the elections by engaging the services of non-partisan, independent and reliable logistics companies.

Dissatisfied with the decision, the All Progressives Congress (APC) and Social Democratic Party (SDP) sought leave of the court to appeal the judgment and eventually filed their notices of appeal as interested parties.

The APC in its written address filed by its team of lawyers led by Chief Wole Olanipekun (SAN) said despite not being joined in the suit, it had deemed it fit to appeal the judgment because it was aggrieved by the decision, which it said would affect its interest as a sponsor in the same elections as the SDP.

The 1st and 2nd respondents in the suit were LP and Rhodes-Vivour, while INEC was the 43rd Respondent.

The APC noted that the LP had earlier filed a suit against INEC at the Federal High Court, Abuja where it raised the same issues and sought similar reliefs which it re-litigated and re-sought at the Lagos division of the court.

The Appellate Court in its judgment noted that the LP, its governorship candidate and all the other respondents did not file any brief to join issues with the APC despite being served with the briefs.

Specifically, the APC asked the court to determine four issues:

“Whether by sections 50 (2) & 148 of the Electoral Act, 2022 and Clauses 37 and 38 of the Regulations and Guidelines for the Conduct of elections 2022, the lower court was right when it held that the presiding officers must electronically transmit the figures of election results from various polling units and thereafter proceeded to grant an order of mandamus compelling the 43d Respondent (INEC) to comply, enforce and abide by the provisions of clauses 37 and 38 of the Regulations And Guidelines For the Conduct Of Elections 2022 for the conduct of the Governorship and House of Assembly elections in Lagos State, when the substantive law pursuant to which it was issued grants unqualified discretion to INEC to determine and prescribe the mode by which election results at polling units may be transmitted including options of manual or physical transfer of results.

“Whether the learned judge of the lower court misdirected himself and acted without jurisdiction when his lordship proceeded to hear and determine the originating summons filed by the respondents at the Lagos Division of the Federal High Court, on matters hinging on the conduct of the 2023 general election as opposed to the Abuja Division of the Federal High Court.

“Whether considering the weight of evidence before the lower court, the judgment of the learned judge of the lower court is not a nullity considering the absence of all other necessary parties in the suit.

“Whether the action of the 1st respondent having earlier litigated suit No: FHC/ABJ/CS/1454/2022, the issues which it thereafter litigated with the 2nd -42nd respondents at the lower court in Suit No: FHC/L/CS/370/ 2023 is not an abuse of court process.”

On issue one, the appellant submitted that by the provisions of sections 50(2), 27(2), 60(5), and 148 Electoral Act, 2022, as well as paragraph 15(a) of the third schedule to the 1999 Constitution, the 43rd respondent (INEC) has unfettered discretion to determine how to transmit result either by uploading the scanned copies of Form ECS8A to its IREV or to manually transmit the result and the discretion is not subject to an order of court.

“The lower court was, therefore, wrong to have held that presiding officers must electronically transmit the figures of election results from various polling units and thereafter proceeded to grant an order of mandamus compelling the 43rd respondent to comply, enforce and abide by the provisions of Clauses 37 and 38 of Regulations and Guidelines for the Conduct of Elections 2022,” APC maintained.

The appellant added that Clauses 37 and 38 Regulations and Guidelines for the Conduct of Elections 2022 are subsidiary legislation and cannot override the principal Act, which grants INEC discretion.

Counsel further submitted that an order of mandamus cannot be granted to fetter discretion relying on DODODO VS. EFCC (2013) 1 NWLR (PT 1336) 468 para D-E, adding that INEC’s decisions enjoy presumption of correctness and the onus of proving the contrary is that of the 1st-42rd respondents.

The appellants argued that the lower court relied on the Presidential and National Assembly elections 2023 guidelines to make its order when the appellants are not candidates in the election.

“Relying on MACFOY VS. UAC (2013) Ltd (1962)150 at 160, counsel contends that the order of mandamus granted by the lower court has no pedestal to stand on and cannot therefore stand,” APC declared, among other prayers.

In its decision, the Court of Appeal noted that the LP, its governorship candidate and all the other respondents did not file any brief to join issues with the APC despite being served.

The court held that Section 50(2) and Section 60(5) of the Electoral Act 2022 give INEC very wide discretionary powers to determine how it carries out its assignment including the manner it transmits or transfers election results from the polling units to the collation centre.

The appellate court held that although Justice Lifu premised his decision on Clauses 37 and 38 of INEC’s Regulation and Guidelines, the Electoral Act gives the commission flexibility to “amend or vary” its regulations.

Justice Umar said: “It is my considered view that the power to make a regulation or guideline necessarily entails the power to amend or vary it, especially if it deems it necessary or exigencies warrant such.

“With due respect to the learned judge, an order of mandamus cannot be granted to fetter the discretion.”
The judge also held that not even the allegation that INEC breached its regulations during the conduct of the presidential poll can justify the order of mandamus issued by the lower court “because that is an issue for the election tribunal”.

The appellate court also averted its mind to the decision of Justice Emeka Nwite of the Federal High Court, Abuja and agreed with the APC that the suit in Lagos was an abuse of the court process.

In the suit, Justice Nwite, while delivering judgment, held that INEC was at liberty to specify or pick the method of transmitting election results.

The Appeal Court said it found merit in the appeal and therefore, resolved the issues in favour of the APC.