23rd July, 2023
The Court of Appeal sitting in Lagos has ruled that the Electoral Act gave the Independent National Electoral Commission, INEC “very wide discretionary powers” to determine how it wants to transmit or transfer election results.
The Appeal Court gave the verdict while dismissing a Federal High Court judgment compelling INEC to upload results of the governorship and state of house assembly elections from the polling units directly to the Results Viewing Portal (IReV) in a case filed by Labour Party in Lagos.
The Labour Party and its governorship candidate in Lagos Gbadebo Rhodes-Vivour; and 41 others had obtained the order of mandamus to allegedly compel INEC to obey the Electoral Act and its guidelines for the conduct of the elections by transmitting election results electronically in a judgement delivered by Justice Peter Lifu of the Federal High Court, Lagos.
The clauses mandate 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.
Dissatisfied with the decision, the All Progressives Congress (APC) and Social Democratic Party (SDP) sought leave of the court to appeal the judgement 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 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 Judge had ruled that Clauses 37 & 38 of the Regulations and Guidelines for the Conduct of the Governorship and State Houses of Assembly Elections in Lagos State compelled INEC to transmit the results electronically.
But a three-man panel of the appellate court comprising Justice Abubakar Umar, Justice Olukayode Bada and Justice Onyekachi Otisi dismissed the lower court judgment.
The panel also said the suit filed by the Labour Party (LP) at the lower court, which gave rise to the appeal, was an abuse of the court process.
The Appellate Court in its judgement 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.
In resolving the sole issue for determination, the court agreed with 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.
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 referred to the decision of Justice Emeka Nwite of the Federal High Court, Abuja, filed and lost by the LP and agreed with the APC that the suit in Lagos was an abuse of the court process.
In that suit, Justice Nwite held that INEC was at liberty to specify or pick the method of transmitting election results.
“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.