According to the Lagos Division of the Court of Appeal, the Independent National Electoral Commission (INEC) is permitted to alter its rules or policies.
The appellate court made the declaration while setting aside the judgment of a Federal High Court, which ordered INEC to directly and electronically upload the election results of the Governorship and State of Assembly elections from the polling units to the IREV.
The appellate court presided over by Justice Abubakar Umar also described the suit, filed by the Labour Party, its governorship candidate, Gbadebo Rhodes-Vivour and 41 Others, as an abuse of the court process.
The court, in the judgment endorsed by the two other members of the panel of justice, Justice Olukayode Bada and Justice Onyekachi Otisi, held that the power to make a regulation or guideline necessarily entails the authority to amend or vary it.
Justice Umar stated, “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”, he held.
Justice Peter Lifu of the lower court had on March 8, 2023 granted an order of mandamus to compel INEC to obey the Electoral Act and its guidelines for the conduct of the elections.
Lifu had also directed the electoral body to comply and enforce the provisions of Clauses 37 & 38 of the Regulations and Guidelines for the Conduct of the Governorship and State Houses of Assembly elections in Lagos State, which mandates presiding officers of all polling units to paste the publication of result posters at the polling unit conspicuously after completing the EC8A result sheet.
The judge had further mandated the presiding officers to electronically transmit/transfer the results of the polling units direct to the collation centre and scanned a copy of the EC8A to INEC’s IREV immediately after completing all the polling units’’ voting and result procedure.
The court had also directed INEC to observe, comply and enforce the provisions of Section 27(1) of the Electoral Act 2022 in distributing electoral materials during the elections by engaging the services of non-partisan, independent and reliable logistics companies.
Apparently dissatisfied with the verdict, the All Progressives Congress (APC) Social Democratic Party (SDP) had approached the upper court as interested parties, to set it aside.
The APC said the Labour Party 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 party further submitted that the decision of Justice Lifu in Lagos has given rise to confusion and uncertainties as to whether INEC has the power to determine the procedure for the conduct of election in the upcoming gubernatorial and State Houses of Assembly elections slated to hold on 18t March 2023, in Lagos State, in light of the two conflicting decisions of the same Federal High Court.
The three-person panel of the Court of Appeal, in its judgment, raised a single issue for determination, and it was, whether Justice Lifu was justified to have granted the order of mandamus in favour of 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 appellate 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 the APC that Section 50(2) and Section 60(5) of the Electoral Act 2022 give INEC “vast 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 allows the commission to “amend or vary” its regulations.
Justice Umar said, “It is my 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 could justify the order of mandamus issued by the lower court “because that is an issue for the election tribunal,” the court held.
The appellate court also averted its mind to the decision of Justice Emeka Nwite of the Federal High Court in 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 judgement, 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 court in Abuja, the appellate court held that the party should not have filed a similar lawsuit bordering on the same issues in Lagos. It subsequently found merit in the appeal and resolved the problems favouring the APC.
“I, at this moment, 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 held.