Is INEC Two-faced?

Chairman of INEC, Prof. Mahmood Yakubu

How neutral was the Independent National Electoral Commission, when it withdrew the certificate of return it issued to Peter Nwaoboshi and gave same to Ned Nwoko, despite a pending appeal before the Court of Appeal and stay of execution on the judgment of the Federal High Court? Davidson Iriekpen asks

The Independent National Electoral Commission (INEC) penultimate Friday stirred a controversy, when it withdrew the certificate of return it earlier issued to Senator Peter Nwaoboshi and presented same to Hon. Ned Nwoko. The commission predicated its decision on a court ruling that recognised Nwoko as the candidate of the Peoples Democratic Party (PDP) in Delta North senatorial district election held on February 23.

Recall that after the primary election held on October 2, 2018, Nwoko rejected the outcome. Through his counsel, Mr. Ahmed Raji, SAN, he sued INEC, PDP and Nwaoboshi at the Federal High Court in Abuja, praying for an order to bar the electoral umpire from publishing the name of Nwaoboshi as the candidate of the PDP for Delta North senatorial district.

He also asked for a separate order compelling PDP to forward his name to INEC as the authentic candidate of the party for the senatorial area.
In his suit predicated on seven grounds, 20-paragraph affidavit and five exhibits, the former member of the House of Representatives claimed that he was screened and cleared to contest the primary election by the PDP electoral committee.

He further claimed that at the end of the election, he scored 453 votes to beat Nwaoboshi to second position, having scored 405 votes; while another contestant, Paul Osaji, came third with 216 votes. He told the court that he was surprised that the PDP jettisoned the result of the primary election and forwarded the name of Nwaoboshi to INEC as its candidate for the senatorial district. He stated that all efforts to redress the injustice through the PDP appeal panel proved abortive.

THISDAY checks revealed that the Federal High Court was not where Nwoko first approached to seek redress. It was gathered immediately after the primaries, he first went to an FCT High Court in Kubwa, a court that lacked territorial jurisdiction over the matter.

On December 10, 2018, the date fixed for judgment, the plaintiff, having realised that he erred on the issue of jurisdiction, through his lawyers, filed a notice of withdrawal and discontinuation of the suit. The case was eventually struck out in open court by the trial judge. However, on December 11, 2018, he quickly filed the case again at the Federal High Court in Abuja, which was clearly 56 days out of time.

Nevertheless, in their defence, the three respondents – INEC, PDP and Nwaoboshi – urged the court to dismiss the suit on the grounds that it was not filed within the time allowed by law. They argued on the grounds that the suit was statue-barred and also constituted an abuse of court process, due to the fact that the plaintiff filed a similar suit at the FCT High Court, which was struck out upon its withdrawal.

In his judgment, Justice Ahmed Mohammed held that Nwaoboshi was not the duly elected candidate of the PDP in the primary election. The judge ordered INEC to publish the name of Nwoko as PDP candidate, having established before the court that he scored the highest number of votes in the said primary election. He held that Nwoko scored 453 votes to beat Nwaoboshi, who came second with 405 votes.

Justice Mohammed also barred Nwaoboshi from parading himself as the candidate of the PDP for the senatorial zone. He held that the case of the plaintiff was not statue-barred and did not also amount to “forum shopping” as alleged by the defendants. He said the plaintiff was entitled to his claims and prayers, having established that he emerged victorious at the PDP Delta North senatorial primary election of October 2, 2018.

Following the delivery of the judgment, Nwaoboshi, who was first elected to the Senate in 2015, proceeded to the Court of Appeal, specifically, on the grounds that the court had no jurisdiction to have even entertained Nwoko’s action in the first place. He equally brought a motion before the Court of Appeal for the stay of the order for the publication of the name of Nwoko as a candidate. By this time, the 2019 general election had held and Nwaoboshi declared the winner and a Certificate of Return issued to him by INEC.

Besides, the senator contended that at no time did the judgment of the Federal High Court give any consequential order to the commission to issue a certificate of return to Nwoko, nor did it give it such an order in view of the extant constitutional provisions and those of the Electoral Act, which specifically state that no court or tribunal shall declare as returned, any person who did not participate in all the stages of the electoral processes in any election.

THISDAY gathered that the commission was not only aware of all these, it was equally served with all the court processes in the appeal. As a party to both the action at the Federal High Court and both the pending appeal and the application for stay, the electoral umpire had continued to participate in all the proceedings, where it was fully represented by its lawyers.

What then went wrong? This is the question many observers are now asking the commission? They wondered why the commission, which supervised and certified the primary election and defended it in court as one of the respondents would turnaround against it? They equally questioned the time Nwoko wasted before filing the case at the FCT High Court.

The law makes it clear that you cannot take a pre-election matter from one state to another state’s court. It has been argued that at the court, Nwoko did not only file his case out of time, he filed it on October 19, 2019; three days out of time. The 1999 Constitution allows the challenge of all primary elections to be brought before any court of competent jurisdiction within 14 days after the conduct of the election.

Perhaps, what is instructive to note is the argument that the case also came by way of originating summons, which implies that everything in connection with the case must be done via sworn affidavits. This also meant that the trial judge did not have the right to ask any of the parties to give evidence on any material since the case came by way of originating summon.

Last Tuesday, following an application for accelerated hearing of the two appeals filed by Nwaoboshi and the PDP against the decision of the Federal High Court, the Court of Appeal ordered Nwoko to respond within six days.

When the matter was called, the senator’s lawyer, Anthony Idigbe SAN, informed the court that they had filed an application to abridge time within which the appeal should be heard because the respondent refused to respond to the appellant briefs of argument.

He said that the judgment being challenged was delivered on April 3, 2019 and that by the constitutional provision, the appeal will expire on June 3, 2019, therefore the court should limit the time allowed for the respondent to respond to five days.

Nwoko’s lawyer, Ahmed Raji, SAN, on the other hand, did not oppose the application but sought seven days to file his response. INEC and the PDP lawyers, Anthony Onyere and Emmanuel Enoidem did not also oppose the application.

In a short ruling, presiding judge of the three-man panel of the Court of Appeal, Justice Adamu Jauro, adjourned till May 22 for hearing of the appeal and ordered Nwoko and INEC to file their responses within the next six days while Nwaoboshi has just one day to reply. While analysts are waiting to see how the Court of Appeal will handle the dispute, they are wondering if INEC was not already partial. They wonder why the commission was in a hurry to issue a certificate of return to Nwoko?

They also wondered why it could not wait till the legal process is exhausted at the Supreme Court, which is the highest court in the land like other cases? They are demanding to know what makes the case special and if it is the only one where only person would be sacked by a court of first instance?

They pointed to a plethora of cases that are pending at the Appeal Court and Supreme Court, where the winners are still in possession of their certificates of return. One example is the case of Zamfara.

In the state, INEC had said the candidates of the All Progressives Congress (APC) would not participate in the general election, because it did not conduct primaries at the scheduled time. After all said, the Court of Appeal in Abuja upheld the decision of the state High Court to include the APC.

Soon after the elections and the winners declared, the Court of Appeal in Sokoto ruled that the APC candidates were not supposed to participate in the election. At this point, the commission had already issued certificates of return to all APC candidates. Instead of withdrawing the certificates, INEC proceeded to the Supreme Court.

The observers are wondering why the same INEC did not pursue Nwaoboshi’s case to the Court of Appeal and ultimately to the Supreme Court? Or in the alternative, allow him to pursue and conclude the case himself before withdrawing the certificate of return from him.
While both parties are anxiously waiting for the decision of the Court of Appeal, they have equally enjoined their teeming supporters not to panic but remain steadfast.

Instant case…

On April 20, a Federal High Court in Katsina sacked APC House of Representatives member representing Bakori/ Danja Federal Constituency, Amiru Idris as the party’s candidate in the February, 23, 2019 election. The judge ruled that Yakubu Danja is the party’s rightful candidate for the election since he scored the highest votes at the October 5, 2018 party’s primaries. Idris is on appeal and maintains his certificate of return

After a Court of Appeal in Abuja had directed INEC to include all APC candidate in the 2019 general election, the Sokoto Division of the Court of Appeal last March sacked governor-elect and all APC candidates in the state. The appeal by INEC is currently at the Supreme Court the certificates of return of the candidates have not been withdrawn.

A few days ago, an Ondo State High Court in Akure sacked an APC state lawmaker-elect, Mr. Sina Akinwumi over his ineligibility to contest the last house of Assembly election in Okitipupa Constituency 2. The court declared Mr. James Ololade-Gbegudu of the same party as the winner of the primary. Akinwumi has proceeded to Appeal Court

On May 2, Federal High Court in Abuja sacked Abdulrauf Modibbo as member-elect representing Yola South/Yola North/Girei Federal Constituency of Adamawa in the National Assembly. The court ordered INEC to replace Modibbo with Mustapha Usman and declare the latter as the Rep-elect. While Modibbo is at the Court of Appeal, his certificate of return is still intact.

After a Federal High Court in Asaba on March 18 sacked Senate Ovie Omo-Agege, his certificate of return was not withdrawn until last Friday when the Appeal Court affirmed his reelection. The respondents have gone to the Supreme Court