The Court of Appeal has set aside the ruling of a Federal High Court in Lagos which ordered the Independent National Electoral Commission, INEC, to electronically transmit election results in the state.
A three-member panel of the court led by Abubakar Umar agreed with the submissions of the All Progressives Congress, APC, that INEC has discretionary powers to determine the mode of transmitting election results.
In March, the Labour Party, LP, its governorship candidate in Lagos, Gbadebo Rhodes-Vivour, and 42 others filed a suit marked FHC/L/CS/370/2023, seeking an order of mandamus compelling INEC to comply with its regulations and guidelines which made provision for electronic transmission of results.
Justice Peter Lifu of the Federal High Court, Lagos, granted the reliefs sought and ompelled INEC to hire impartial, qualified, and dependable logistic companies that are not partisan in the distribution of election materials.
Aggrieved by the decisipn, the APC sought leave to appeal the ruling.
In its appeal, the APC submitted that INEC has discretionary powers to determine the mode of transmitting election results.
The party also submitted that the judge wrongly assumed jurisdiction to hear the matter as the suit ought to have been filed before the Federal High Court in Abuja.
It also argued that the court was wrong to have refused an application for joinder filed by the Social Democratic Party adding that the matter before the lower court had far-reaching consequences that affect all registered political parties involved in the 2023 general election.
In delevering judgment, the court held that Section 50(2) and Section 60(5) gave INEC “very wide discretionary powers” to determine how it transmits or transfers election results.
“As I had demonstrated earlier in this judgment, the Electoral Act gives the 43rd respondent (INEC) discretion on how it carries out its assignment including how it transmits or transfers the result of election from polling units.
“With due respect to the learned judge, an order of mandamus cannot be granted to fetter a discretion,” the judge stated.
The appellate court held that although the lower court premised its decision on the provisions of Clauses 37 and 38 of INEC Regulation and Guidelines, the Electoral Act gives the commission flexibility to “amend or vary” its regulations.
“It is my considered view that the power to make a regulation or guideline necessarily entails the power to amend or vary it,” Umar said.
The judge 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 described the suit as an abuse of the court process.
The justices said they took cognisance of a judgment in a suit marked FHC/ABJ/CS/1454/2022, delivered in January by Emeka Nwite, a Federal High Court judge in Abuja.
In the suit, Nwite held that INEC is 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 is difficult for Suit No: FHC/L/CS/370/2023, which gave to this appeal, to escape the label of abuse of court process.
“I said so because the objective of the suit is to compel the 43rd respondent (INEC) to adopt a particular way of transmitting or transferring the result of election in Lagos state.
“This objective is not in any way different from what the objective the 1st respondent wanted to achieve in Suit No: FHC/A133/CS/1454/2022,” the judge said.
Consequently, the appellate court 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 court process. Parties shall bear their respective costs,” Umar held.
Meanwhile, the appellate court noted that the respondents did not file any brief or join issues in the appeal despite proof that they were served with the appellant’s brief.
