Appeal Court in Lagos has set aside an order requiring electronic transmission of election results

On March 8, 2023, the Labour Party, its governorship candidate, Gbadebo Rhodes-Vivour, and 41 others got a mandamus ruling compelling INEC to follow the Electoral Act and its election rules.

The Lagos Division of the Court of Appeal has overturned a Federal High Court decision ordering the Independent National Electoral Commission (INEC) to directly and electronically upload election results from polling units to the INEC Results Viewing Portal (IReV) from polling units.

Channels Television got a copy of the 28-page Court of Appeal decision delivered on Wednesday, July 19, by Justice Abubakar Umar.

Justice Olukayode Bada and Justice Onyekachi Otisi were the other two justices on the bench who agreed with the lead ruling.

In a judgement delivered by Justice Peter Lifu of the Federal High Court in Lagos on March 8, 2023, the Labour Party; its governorship candidate, Gbadebo Rhodes-Vivour; and 41 others obtained an order of mandamus compelling INEC to obey the Electoral Act and its guidelines for the conduct of elections.

Justice Lifu ordered INEC to comply with and enforce the provisions of Clauses 37 and 38 of the Regulations and Guidelines for the Conduct of the Governorship and State Houses of Assembly Elections in Lagos State, which require presiding officers of all polling units to prominently display the publication of result posters after completing the EC8A result sheet.

The order also directed the presiding officers to electronically transmit/transfer the polling unit results and a scanned copy of the EC8A to INEC’s IReV immediately following the completion of all polling unit voting and result procedures.

In addition, Justice Lifu’s decision required INEC to observe, comply with, and enforce the provisions of Section 27(1) of the Electoral Act 2022 in the distribution of electoral materials during the elections by contracting the services of non-partisan, independent, and dependable logistical firms.

Dissatisfied with the verdict, the All Progressives Congress (APC) and Social Democratic Party (SDP) asked the court for permission to appeal and eventually filed notices of appeal as interested parties.

In documents filed with the court, the APC stated that, while not being a party to the complaint, it thought it appropriate to appeal the decision because it was offended by the ruling, which it claimed would jeopardise its interest as a sponsor in the same elections as the SDP.

The APC observed that the Labour Party had already filed a complaint against INEC at the Federal High Court in Abuja, raising the same grounds and seeking similar reliefs, which it re-litigated and re-sought at the court’s Lagos division.

The APC further observed that, pursuant to sections 50(2) and 60(5) of the Electoral Act, 2022, INEC was free to dictate the way in which election results might or should be conveyed by the Abuja court on January 23, 2023.

The party claims that “the said decision of the Federal High Court in Suit No.: FHC/ABJ/CS/1454/2022 between Labour Party v. INEC is valid and subsisting having not been appealed against by any person.”

According to the APC, Justice Lifu’s decision 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 18th March, 2023, in Lagos State, in light of the two conflicting decisions of the same Federal High Court.”

The party also claimed that the court erred in rejecting the SDP’s plea for a joinder, claiming that the case before the Lagos court has far-reaching implications for all registered political parties participating in the 2023 general election.

In its decision, the three-member Court of Appeal panel addressed only one issue: whether Justice Lifu was correct to award the order of mandamus against all 43 respondents in the claim.

The court further noted that, despite being served with the briefs, the Labour Party, its governorship candidate, and all other respondents did not file any papers to join issues with the APC. Contrary to the counsel for the Labour Party and its gubernatorial candidate, the court stated that there was proof that the notice of appeal was delivered on all respondents by the court bailiff.

In resolving the sole issue for determination, the court agreed with the APC that Sections 50(2) and 60(5) of the Electoral Act 2022 give INEC “very wide discretionary powers” to determine how it carries out its assignment, including the manner in which election results are transmitted or transferred from polling units to the collation centre.

Although Justice Lifu based his ruling on Clauses 37 and 38 of INEC’s Regulation and Guidelines, the appellate court found that the Electoral Act allows the commission 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,” Justice Umar stated, especially if it thinks it necessary or exigencies demand it.

“With due respect to the learned judge,” the appeal court stated, “an order of mandamus cannot be granted to fetter a discretion.”

The judge further stated that the accusation that INEC violated its regulations during the conduct of the presidential election cannot justify the lower court’s order of mandamus “because that is an issue for the election tribunal.”

The appellate court also ignored Justice Emeka Nwite’s decision of the Federal High Court in Abuja and agreed with the APC that the litigation in Lagos is an abuse of the justice process.

In the suit, Justice Nwite ruled that INEC has the authority to stipulate or choose the mode of disseminating election results.

Having already filed and gained judgement in the Abuja federal high court, the appellate court ruled that the party should not have launched a similar claim in Lagos over the identical problems. It later deemed the appeal to be valid and addressed the arguments in favour of the APC.

“I hereby set aside the judgement of P.O. Lifu delivered on March 8, 2023 in Suit No: FHC/L/CS/370/2023.” In its place, I issue an order dismissing the entire suit, i.e. Suit No: FHC/L/CS/370/2023, for misuse of the court process. “The parties must bear their own costs,” the appeal court concluded.