The Court of Appeal sitting in Lagos on July 19 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). ROBERT EGBE reviews the verdict.
The Court of Appeal sitting in Lagos on July 19 voided a Federal High Court judgment that ordered 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 of the court, 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 panel described the suit filed by the Labour Party (LP) at the lower court, which gave rise to the appeal, as an abuse of the court process.
On March 8, 2023, the Labour Party; its governorship candidate, Gbadebo Rhodes-Vivour; and 41 others obtained the order of mandamus to compel INEC to obey the Electoral Act and its guidelines for the conduct of the elections, in a judgment delivered by Justice Peter Lifu of the Federal High Court, Lagos.
Justice Lifu compelled 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 unit’s 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.
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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 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 Labour Party 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.
(1) 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.
(2) 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.
(3) 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.
(4) Whether the action of the 1st Respondent having earlier litigated Suit No: FCH/ABJ/CS/1454/2022 the issues which it thereafter litigated with the 2nd -42nd Respondents at the lower court in Suit No: FCH/L/CS/370/ 2023 is not an abuse of court process.
Issue 1: It is the Appellant’s submission on issue no. 1 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 as amended, the 43rd Respondent INEC has unfettered discretion to determine how to transmit result either by uploading the scanned copies of Form ECS8A to its INEC Result viewing Portal (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.
The Appellant adds 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.
Counsel contends that INEC decisions enjoy presumption of correctness and the onus of proving the contrary is that of the 1st-42rd Respondents.
It was also submitted 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.
Issue 2: Counsel argued that by the provisions of the Federal High Court (Pre-Election) Practice Direction 2022 and directive 2 (a) & (b) of National Judicial Council Policy direction NO.1/2022, the originating summons in respect of the matter seeking reliefs with effect or potential effect outside the territorial jurisdiction of any one state (i.e. making an order or declaration against a person outside the territory of one state) should be filed in Abuja for assignment by the Chief Judge of the Federal High Court.
Counsel contends that the 1st-42nd Respondents’ suit should have been filed at Abuja and failure to do so robs the lower court of requisite jurisdiction to entertain the suit. The learned judge of the lower court, counsel submits, therefore misdirected himself by assuming jurisdiction over the matter.
The Appellant contends that the orders of mandamus made by the lower court pursuant to the 1st-42rd Respondent’s suit was to supervise the manner polling agents at polling units may carry out their electoral duty on the day of the election.
Counsel contends that such a prohibitive order limiting the 43° Respondent to a particular means of transmitting election results preferred by a particular political party (1% Respondent) as against the interest of all registered political parties is unwarranted.
Issue3: Counsel drew the attention of this court to pages 189-209 of the Record of Appeal wherein the learned judge of the lower court refused the application for joinder made by the Social Democratic Party (SDP), one of the registered political parties in Nigeria, contending that based on the weight of evidence and the far-reaching effect of the orders made by the lower court on all other political parties including the Appellant, the lower court ought not to have declined the application for joinder of SDP and should not have granted an order of such nature in favour of one political party in the absence of other political parties which are stakeholders in the election process.
Counsel argues that the 1st -42nd Respondents’ suit has an overreaching effect on other political parties.
Counsel contends that the Appellant’s right to a fair-hearing guaranteed under section 36(1) of the constitution was breached by the refusal of the lower court to ensure that all necessary parties are before the court and the Appellant’s opportunity to be heard was infringed.
Counsel relies on OKUKUJE V. AKWIDO (2001) 3 NWLR (PT 700) 261, BANI AKAR ENTERPRISES LTD VS. INDO NIGERIA MERCHANT BANK LTD among others in urging this court to resolve this issue in favour of the Appellant.
Issue 4: Appellant’s counsel argues that the 1st Respondent having earlier litigated Suit No: FCH/ABJ/CS/1454/2022 in which the Abuja division of the lower court dismissed the 1st Respondent’s suit holding that on the interpretation of the provisions of sections 60(5) and 62(2) of the Electoral Act, 2022, INEC the 43rd Respondent herein is at liberty to prescribe or choose the manner in which election result shall be transmitted, cannot thereafter litigate with the 2nd -42nd Respondents at the lower court Suit No: FCH/L/CS/370/2023 the same issue of transmission of election results as the learned judge of lower court P.O. cannot sit on appeal on the earlier decision in suit FCH/ABJ/CS/1454/2022. Counsel contends that the action of the 1st Respondent amounts to forum shopping and Suit FCH/L/CS/370/2023 is an abuse of court process.
In conclusion, counsel urged the court to allow this appeal and in the language of the counsel, ‘order the judgment of the lower court dismissed.
Judgment
The three-man panel of the Court of Appeal in its judgment raised a single issue for determination, and it was whether Justice Lifu was right to have granted the order of mandamus against all 43 respondents in the suit.
The court also noted that the Labour Party, 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.
The court held that contrary to the position of the counsel for the Labour Party and its governorship candidate, there was proof that the notice of appeal was served on all the respondents by the court bailiff.
In resolving the sole issue for determination, the court agreed with Sanwo-Olu, Hamzat and the APC 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 a discretion”, the appeal court held.
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.
Having previously filed a suit and obtained judgment at the Abuja federal high court, the appellate court held that the party ought not to have filed a similar suit bordering on the same issues in Lagos. It subsequently found merit in the appeal and resolved the issues in favour of the APC.
“I hereby make an order setting aside the judgment of P.O. Lifu delivered on the 8th March 2023 in Suit No: FHC/L/CS/370/2023. In its place, I make an order dismissing the suit, i.e. Suit No: FHC/L/CS/370/2023 in its entirety for being an abuse of the court process. Parties shall bear their respective costs”, the appeal court concluded.
Robert Egbe/The Nation
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