20 March 2019

Nigeria: Abuja Court Stops Resumption of Collation of Bauchi Governor Election Results

Lagos and Abuja — The Federal High Court in Abuja yesterday stopped the Independent National Electoral Commission (INEC) from resuming the collation of results of the governorship election held in Bauchi State on March 9, 2019.

The order obtained ex parte by the state Governor, Alhaji Mohammed Abubakar, and his party, All Progressives Congress (APC) in the court of Justice Inyang Ekwo, was however, challenged immediately by the Peoples Democratic Party (PDP) which was asked to come back to court to argue its motion on jurisdiction today.

The electoral body was also in court yesterday to challenge the order and its motion to vacate it was adjourned till today.

The PDP and senior lawyers were swift to react to the development yesterday, saying the court acted without jurisdiction, contending that the matter being post-election could only be entertained by an election petition tribunal.

In the exparte motion, the APC and Abubakar had prayed the court for an order of interim injunction restraining INEC from resuming, concluding or announcing the result of the Tafawa Balewa Local Government Area of Bauchi State in respect of the election to the office of Governor of Bauchi State.

Justice Ekwo, while ruling on the exparte ordered INEC to appear before him today to show cause why the order sought by the two plaintiffs ought not to be granted.

But INEC, represented by a Senior Advocate of Nigeria (SAN), Mr. Tanimu Inuwa, at the proceedings approached the court with a motion challenging its jurisdiction.

Counsel to the plaintiffs, Mr. Ahmed Raji SAN, however, objected to the application of INEC, informing the court that the order asking the electoral body to show cause why the requests of the plaintiffs should not be granted had not been obeyed.

Raji told the court that the business before the court was to determine whether the earlier order had been complied with.

He drew the attention of the court to a press statement issued by one Festus Okoye, INEC National Commissioner and Chairman Information and Voter Education Committee, dated March 15, 2019, announcing that the electoral body will resume collation of the Bauchi governorship election, adding that except the court grants the interim order the subject matter of the two plaintiffs would be destroyed.

Responding, Inuwa admitted that the order had not been complied with and requested to address the court orally on the issue.

His request was, however, refused by the judge.

Justice Ekwo held that since the exparte application was in writing and duly served on INEC, it behoves on the defendant to appear before the court with a written or formal response.

In his bench ruling, the judge granted the interim injunction restraining INEC from resuming, concluding and announcing the governorship election result in Bauchi State pending the determination of all issues raised by the plaintiffs in their originating summons.

Justice Ekwo also granted accelerated hearing in the matter and ordered parties to appear before him today to present their positions in the substantive matter.

INEC Moves to Vacate Order

The electoral body moved swiftly to vacate the order yesterday, filing a motion challenging the jurisdiction of the court to entertain the exparte application filed by Abubakar and the APC.

The INEC had earlier fixed March 23, 2019 for the conduct of supplementary elections to conclude the process and make a return in the governorship elections in Adamawa, Sokoto, Bauchi, Benue, Kano and Plateau States, which were declared inconclusive.

However, the commission later reversed itself on Bauchi State as it approved the resumption and conclusion of the collation of results of Tafawa Balewa LGA, after the committee set up by the commission established that the result in polling units and registration areas were available and in safe custody.

The committee also established that the number of cancelled votes for the four polling units in Ningi LGA, which was recorded as 25,330 in form EC40G (1) was incorrect, as the actual figure was 2,533.

But in the ex parte motion, the APC and Abubakar had prayed the court for an order of interim injunction restraining INEC from resuming, concluding or announcing the result of the Tafawa Balewa LGA in respect of the election to the office of the governor of the state.

Reacting to THISDAY enquiry yesterday, INEC National Commissioner and Chairman Voter Education and Publicity Committee, Mr. Festus Okoye, confirmed that the electoral body has suspended the collation of governorship results relating to the Tafawa Balewa LGA, based on the order of a Federal High Court sitting in Abuja.

He added that the collation and declaration of results for Tafawa Balewa State Constituency Election would continue, while the supplementary election relating to other polling units not affected by the court order would continue on Saturday

Okoye stated: "The commission will continue to obey court orders and will take steps to vacate orders that it believes are not in consonance with the law. The commission has filed a motion challenging the jurisdiction of the court and will wait for the determination of the suit."

The commission had always maintained that whenever it is served with a court order, it deliberates on it, satisfies itself that the order is from a properly constituted court of law and relates to the issues within its statutory and constitutional mandate.

The commission also said that it does not sit on appeal over orders from the various courts and it does not pick and choose which order to obey and which one not to obey.

INEC had insisted that it was a matter of common knowledge that the country is now within the orbit of post-election challenges and litigation, adding that no new matter could be filed or adjudicated upon by the various courts arising from the conduct of elections.

The commission stressed: "The Constitution of the Federal Republic of Nigeria,1999 (Fourth Alteration, No. 21) Act, 2017 gives the High Courts of the states, the Federal High Court and the High Court of the Federal Capital Territory, Abuja the exclusive right and jurisdiction to hear and determine matter with pre-election flavour.

"The moment elections are conducted, all matters relating to whether anyone has been validly elected as a member of the National Assembly or whether a Certificate of Return was validly issued to a candidate reverts to the National and State Houses of Assembly, Election Petition Tribunals that are established pursuant to section 285 of the Constitution of the Federal Republic of Nigeria."

PDP Rejects Exparte Order Stopping Final Collation of Bauchi Guber Results

The PDP in it reaction yesterday rejected the order as 'arm-twisting' of the judiciary and the court by the APC to unconstitutionally halt the conclusion of collation of already declared results in the Bauchi State governorship election, which has been won by the PDP.

The party in a statement yesterday by its National Publicity Secretary, Mr. Kola Ologbondiyan, said that it was clear that collation of result is part of the electoral process and that INEC cannot act on a purported exparte order to jettison its independence and halt the collation of results, which is a key component of its statutory electoral duty.

The main opposition party noted that such development, which is akin to the infamous order that derailed the 1993 democratic process, was part of the plot by the APC and certain compromised elements in INEC to escalate crisis and derail the country's electoral process.

The party warned that if this desperate underhand measure by the APC to halt electoral processes is not checked, the country's hard earned democracy would fail and the nation thrown into anarchy.

Ologbondiyan stated: "The power to collate, suspend collation and or to reverse such decision based on obvious circumstances as the case in Bauchi is clearly within the domain of INEC. Until collation is completed and results declared, no one can question the constitutional powers of the electoral body: INEC, in that regard.

"Our party should not be constrained into a situation in which we will have no option than to allow our members to seek similar exparte orders to halt statutory processes including the swearing-in of APC candidates at various levels, particularly President Muhammadu Buhari.

"Section 87 (10) of the Electoral Act is unambiguous in its prescription that nothing in this section shall empower the courts to stop the holding of primaries or general election or the processes thereof under this Act pending the determination of a suit.

"Our party, therefore, charges INEC to be properly guided by the law in this regard."

The PDP also urged the judiciary not to allow the APC to entangle the court in its shenanigans to destroy the nation's hard-earned democracy, stressing that Nigerians in Bauchi State have elected the PDP and nothing can change this reality.

Lawyers Urge INEC to Disregard Order

Meanwhile, senior lawyers have advised INEC to ignore the order of the Federal High Court, saying the court lacked jurisdiction to adjudicate on the matter.

For instance, Mr. Godwin Obla SAN said the suit filed by Abubakar and the APC, leading to the order was an abuse of court process.

Obla added that since the dispute arose as a result of an election that has been conducted, the proper place for the governor to go should have been the Governorship Election Petition Tribunal.

He submitted that the dispute is not a pre-election dispute which the Federal High Court has jurisdiction to hear.

He said: "It is an abuse of court process as far as I am concerned. You can't go to a regular court once an election has been conducted.

"He is in the wrong court. He has no business there. It is not a pre-election matter. The matter has now become a matter for the election petition tribunal.

"The danger in this is that if it is allowed to continue, copy-cats will now take advantage of it to begin to file frivolous suits in courts."

Aligning himself with Obla's submissions, a former president of the Nigerian Bar Association (NBA), Mr. Olisa Agbakoba (SAN), pointedly advised INEC to disregard the order, saying an order made in vain and without jurisdiction is not supposed to be obeyed.

"It is not a pre-election matter and as such the Federal High Court cannot adjudicate on it. INEC should disregard the order.

"An order made in vain and without jurisdiction is not supposed to be obeyed."

Chief Mike Ozekhome SAN likened the order by the Federal High Court to the order which led to the annulment of the June 12, 1993 presidential election, which was acclaimed to have been won by Chief MKO Abiola.

He described that action of the APC and Governor Abubakar as an act of desperation, adding they do not have any ground to go to court since the matter was not a pre-election matter but a dispute arising from an election.

Ozekhome contended that the proper place to seek redress should have been the Governorship Election Petition Tribunal.

He argued: "The order is like the one aborting June 12, 1993 presidential election. The APC does not have any ground to go to the Federal High Court.

"It is an act of desperation. The proper place should have been the Governorship Election Petition Tribunal."

Also, a human rights lawyer, Mr. Femi Falana SAN, referred to Section 285 (2) of the Constitution which confers disputes arising from governorship elections strictly on Governorship Election Petition Tribunal and concluded that Abubakar and APC were supposed to head to the tribunal and not the court.

"By virtue of Section 285 (2) of the Constitution, it is only the Governorship Election Petition Tribunal that has the jurisdiction to hear the matter not the Federal High Court. The Federal High Court's jurisdiction covers pre-election matters," he said.

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