After losing a suit against the Independent National Electoral Commission (INEC) on electronic transmission of results at the Federal High Court in Abuja, the Labour Party (LP) filed and, on March 8, won a near identical suit at the court’s Lagos division, raising questions of forum shopping, described by lawyers as an abuse of court process. ROBERT EGBE reports.
Lagos case
When news broke on March 8 that the Federal High Court in Lagos had ordered the Independent National Electoral Commission (INEC) to comply with electronic transfer of results for the March 11, 2023 elections in Lagos State, it sparked a frenzy of excitement among the 42 other applicants that filed the suit including the Labour Party (LP) and its governorship candidate Gbadebo Rhodes-Vivour.
The order, made by Justice Peter Lifu, compelled INEC to upload all results of the Governorship and State House of Assembly elections in Lagos State to its Result Viewing Portal (IReV) after collation by presiding officers in each polling unit.
The judge held that contrary to INEC’s argument, the court had jurisdiction to entertain the suit because it was commenced in accordance with the provisions of the law.
Justice Lifu also held that the subject matter of the suit was not a pre-election issue, as argued by INEC, because the reliefs sought by the applicants dealt with the preparation of the elections and not the conduct of the elections.
He reasoned that all the applicants were trying to do was to compel the electoral body to comply with the Constitution, its regulations and guidelines following its failure to do so during the Presidential and National Assembly elections held on February 25, 2023.
Specifically, the court granted the applicants an order of mandamus directing and compelling the defendant and all its agents to comply with and enforce the provision of clause 37 of the Regulations and Guidelines for the Conduct Of Elections, 2022 for the conduct of the elections on 11 March 2023 to wit:
“Mandating the Presiding Officer of all Polling Units to paste the Publication of Result Poster EC60(E) at the Polling Units conspicuously after completing the EC8A result sheet.”
The judge also mandated “the Presiding Officer of all polling units to transmit or transfer the result of the Polling Units electronically, direct to the collation system and use the Bimodal Voter Accreditation System (BVAS) to upload a scanned copy of the EC8A to INEC Result Viewing Portal (IReV) immediately after the completion of all the Polling Units voting and results procedures.”
At a first glance, the judgment seemed to put to rest the question whether e-transmission of results is mandatory or discretionary under the Electoral Act, 2022 and the INEC Guidelines.
Section 60(5) of the Electoral Act 2022 provides that “The presiding officer shall transfer the results including the total number of accredited voters and the results of the ballot in a manner prescribed by the Commission”.
Paragraph 38 of the Regulations and Guidelines, 2023 states: “On completion of all the Polling Unit voting and results procedures, the Presiding Officer shall:
“(i) Electronically transmit or transfer the result of the Polling Unit, direct to the collation system as prescribed by the Commission.
“(ii) Use the BVAS to upload a scanned copy of the EC8A to the INEC Result Viewing Portal (IReV), as prescribed by the Commission.
“(iii) Take the BVAS and the original copy of each of the forms in a tamper-evident envelope to the Registration Area/Ward Collation Officer, in the company of Security Agents. The Polling Agents may accompany the Presiding Officer to the RA/Ward Collation Centre.”
Thus, the Regulations and Guidelines seem to require that the presiding officer must electronically transmit the results from the polling units, after which the results would then be taken manually to the collation centres.
Some lawyers had argued, based on the above, that e-transmission of results is mandatory.
But other senior lawyers disagreed.
For instance, Chief Adeniyi Akintola, SAN, argued that non-compliance with the e-transmission of results is not a ground for cancellation of such results, because e-transmission is discretionary.
He described the controversy as “the shenanigans of the oppositions on the issue of transmission of results and server.”
Akintola said: “Section 38 of the Electoral Act, 2022 referred to by Dino Melaye and their political parties has nothing to do with the transmission of election results.
“Section 60 (2) of the Electoral Act 2022 that deals with the transmission of results is at the discretion of the INEC; there is no mandatory provision regarding the transmission of results. In other words, the mode of transmission of the results is discretionary.”
“For the avoidance of doubt, Section 60 (2) reads ‘Subject to Section 63 of this ACT, voting at an election and transmission of results under this ACT shall be in accordance with the procedure determined by the Commission ‘.”
The senior lawyer explained that the rules and regulations made for the election by the INEC are “subject to the Electoral Act. The rules of procedure remain what it is, it is simply a rule. Election is a process and the Electoral Act 2022, has made provisions for the steps to take including resort to the judiciary for intervention.”
Abuja case
Unknown to many Nigerians, the Federal High Court in Abuja had already dismissed a similar suit by the Labour Party seeking to compel INEC to adopt electronic method in transmitting 2023 election results.
Justice Emeka Nwite, in a judgment, held that Section 52(2) of the Electoral Act, 2022, cited by counsel to the party, Monday Mawah, provided for voting and transmission of results in accordance with the procedure to be determined by INEC.
According to him, this is to say that the commission is at liberty to prescribe or choose the manner in which election results shall be transmitted.
The judgment was delivered by Justice Nwite on January 23, prior to the Presidential and National Assembly elections held on February 25.
The LP, through its lawyer, had, on August 22, 2022, filed the originating summons marked: FHC/ABJ/CS/1454/2022 to sue INEC as sole respondent.
The party asked the court to determine whether having regards to combined effect of Sections 47 (2), 50 (2), 60(4), 60 (5) and 62 (1)(2) and other relevant provisions of the Electoral Act, 2022 the commission can still insist on manual collation of results in the general elections.
The LP sought two injunctive reliefs in the event that the question was resolved in its favour.
These include: “A declaration that the respondent has no power to opt for manual method other than the electronic method provided for by the relevant provisions of the Electoral Act, 2022.
“An order of this honourable court directing/compelling the respondent to comply with the Electoral Act, 2022 on electronic transmission of result in the forthcoming general elections. “
However, INEC neither responded nor filed any process in the suit.
Mawah, in his argument submitted that in view of the provisions of the law, manual collation of result was unknown to the Electoral Act, 2022 and therefore must be rejected or disallowed by the court.
Delivering the judgment, Justice Nwite held that the commission is at liberty to prescribe or choose the manner in which election results shall be transmitted,
He said from the argument of the plaintiff’s counsel, the bone of contention or the sections that sought for interpretation were Sections 50(2) 60(5) and 62(2) of the Electoral Act, 2022.
He said Section 47(2) as cited by the lawyer only dealt with accreditation of voters using a Smart Card Reader but not collation or transmission of result as postulated by him.
“The provision of Section 60(5) of the Electoral Act, 2022 as cited above has provided for the transfer of election result including the total number of the accredited voters from the polling unit.
“Section 62(2) on the other hand provides for compilation, maintenance and continuous update of the register of election result as distinct database for all polling units’ results as collated in all elections conducted by the commission.
“The said Section 62(2) has mandated that such register of election results shall be kept in an electronic format by the commission at its national headquarters.
“Now a close reading of Section 50(2) has provided for voting and transmission of result to be done in accordance with the procedure to be determined by the commission.
“This is to say that the commission is at liberty to prescribe or choose the manner in which election results shall be transmitted,” he said.
Nwite equally held that Section 60(5) empowered the polling unit’s presiding officer to transfer the election results including the total number of accredited voters and results of the ballot in a manner to be prescribed by INEC.
“This is also to say the commission is again at liberty to prescribe to the Polling Units’ Presiding Officers the manner in which to collate and transfer the election results as well as the accredited number of voters in an election under the Act.
“In view of the foregoing, can the act of the defendant (INEC) in collating and transferring election results manually in the forthcoming 2023 general elections be said to be contrary to the relevant provisions of the Electoral Act, 2022?
“The answer can only be in the negative as there is no wherein the above cited sections where the commission or any of its agents is mandated to only use an electronic means in collating or transferring of election results.
“If any, the commission is only mandated to collate and transfer election results and number of accredited voters in a way or manner deemed fit by it.
“In view of the above, I find that by the provisions of Sections 50(2) and 60(5) of the Electoral Act, 2022, the correct interpretation of the said statutes is that the defendant (Independent National Electoral Commission) is at liberty to prescribe the manner in which election results could be transmitted and I so hold,” he said.
Forum shopping?
The similarity of the subject matter of both suits and the apparently conflicting decisions raised the issue of forum shopping by the LP.
Forum shopping?
The similarity of the subject matter of both suits and the apparently conflicting decisions have raised the issue of forum shopping by the LP.
Lawyers agree that forum shopping is the unscrupulous practice of instituting an action in a court where a party is likely to receive a favourable decision. It also covers situations where a claimant gambles through different courts in a bid to “shop” for a favourable decision.
The court held in Alhaji Muhammadu Maigari Dingyadi & Anor v. Independent National Electoral Commission & 2 Ors, that forum shopping is an abuse of court process.
“It is not merely an irregularity that could be pardoned or overlooked but it constitutes a fundamental defect, the resultant effect of which would lead to a dismissal of the process that is abusive.
The Supreme Court in Arubo v. Aiyeleru held that once a court is satisfied that the proceeding before it amounts to an abuse of process, it has the right or duty to invoke its powers to punish the party which is in abuse of its process.”
Senior Advocate of Nigeria (SAN) Kunle Adegoke reasoned that the LP case seemed to fit the identity of a forum shopping example.
He blamed politicians for it.
Adegoke said: “It is clear that politicians are the ones causing this problem. It is not really a problem of the judiciary, because if someone knows that the Federal High Court in Abuja has given a decision that the Federal High Court in Lagos may not be aware of, then that person comes to the Federal High Court in Lagos and makes a similar application, it becomes a problem.
“His Lordship in Abuja, not being aware that there is a decision of His Lordship’s brother in Lagos, saying something on the matter, might, based on persuasion by the lawyers, come to a different conclusion.
“The parties that are aware of the position of things are now seeking to take advantage of the situation. That amounts to forum shopping.
“If the first decision was given by the Abuja court in favour of INEC and the LP is aware and still approached the Lagos court, it is forum shopping.”
What should INEC do?
Which of the two judgments should INEC follow? Does the Lagos decision stand?
Adegoke reasoned that if it is indeed confirmed to be a case of forum shopping, the Lagos orders, being second, can be set aside by INEC through an application.
He said: “An application can be brought before the court that gave the second order to say, ‘My Lord, vacate this order, because there is an order of your Lordship’s brother in so and so jurisdiction which had granted or refused a similar application, which they were aware of. For them to have come before your Lordship to seek the same order amounts to forum shopping and abuse of court process. “
The Silk noted that courts are jealous of their power and jurisdiction.
Adegoke said: “Every court in the land is under an obligation to protect its jurisdiction by ensuring that the process of the court is not abused. Where there is abuse, such abuse will be severely punished.
“That is why it is now incumbent on the courts where the second order was fraudulently obtained not only to set aside the order, but to equally impose heavy costs and sanctions on the parties that engineered such an abuse of court process.
“By that, it will become a deterrent for similar situations that politicians may want to take advantage of the court’s ignorance in various jurisdictions.