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Poll: Does court have powers to review INEC’s discretion to cancel election?

By Ise-Oluwa Ige

In the last two years, not less than 20 lawsuits were filed in different inferior and regular courts of record in the country by some political parties and their candidates to invalidate the gubernatorial poll held in Imo on April 28, 2007.

The said election produced Dr Ikedi Ohakim of the Progressive Peoples Alliance (PPA) as the Governor of the state. As at date, all the lawsuits with the exception of one, were either thrown out or dismissed by various courts, on merit.

The gubernatorial candidate of the All Progressive Grand Alliance party (APGA), Chief Martin Agbaso together with his political party is behind the only subsisting suit. The said suit is constitutional in nature.

The Agbaso’s case which is akin to the one filed by former Vice President, Alhaji Atiku Abubakar during the hey days of ex-President Olusegun Obasanjo on the powers of INEC to disqualify candidates for election, has also thrown up live issues touching on the powers of INEC to cancel elections conducted by it.

The case which posed the legal controversy on the powers of INEC to cancel polls is presently before both the Abuja division of the Court of Appeal and the Supreme Court for their judicial pronouncements.

But the Court of Appeal has stayed its proceedings in the case since the Supreme Court is already hearing the case. The importance of the case is beyond the individuals and the corporate persons litigating it. The Supreme Court has however fixed September 29, this year to examine the merits in the case.

Agbaso’s case was that he contested the April 14, 2007 gubernatorial poll in Imo state on the platform of APGA.  He said he contested the election alongside 17 other candidates from other political parties including Ohiakim of PPA.

He said the April 14, 2007 poll was conducted on the same day with the state House of Assembly election.  He said that the elections held peacefully and statewide.

He claimed that going by the results already released by INEC before the commission decided to cancel the April 14, 2007 gubernatorial poll, he said he was the one leading other contestants.

In fact, he claimed that he won the poll, beating others that stood the election with him. He is presently brandishing a bundle of papers both on televisions and radios as the authentic results of the said April 14, 2007 election cancelled by INEC.

But the source of such documents are unknown, the INEC, which is statutorily charged with the responsibility of conducting polls in the country, having declared the April 14, 2007 gubernatorial poll in Imo inconclusive.

Nevertheless, Agbaso, in his suit, urged the court to hold that INEC, having conducted the poll, lacked the powers to cancel it. He is asking the court to also order INEC to release the results of the said inconclusive April 14, 2007 gubernatorial poll in the state.

According to him, in the event there is need for an election to be cancelled, he said the only body that has the powers to so do is the election petition tribunal and not INEC.

He said assuming without conceding that INEC even has powers to cancel election, he said the electoral umpire ought to cancel both the gubernatorial election and the House of Assembly poll conducted in the state since they held contemporaneously.

He said, INEC, having okayed the April 14, 2007 state House of Assembly poll, has no justification to cancel the
gubernatorial poll conducted by it same day, same time and by the same INEC officials and machineries.

He said, from all indications, going by the facts of the case, the cancellation of the April 14 gubernatorial poll was done in bad faith and that court must intervene to do substantial justice in the case. He consequently invoked the original jurisdiction of the court to review the decision of INEC to cancel the April 14, 2007 Imo state poll results. But as beautiful as the argument of Agbaso is, it is natural to reason that if INEC has powers to conduct election, it should also have powers to cancel elections if held in contravention of the rules even if such powers are not codified in any law book.

Although many legal experts and members of the inner bar including counsel to Ohiakim, Jude Nnodim (SAN) have reasoned along this line of thought but some notable lawyers in the country like one-time President of the Nigerian Bar Association (NBA), Chief Oluwole Olanipekun (SAN) are thinking otherwise.

Respected constitutional lawyer, Prof Itse Sagay (SAN) had queued behind Ohiakim on the issue of powers of INEC to cancel election results. He specifically faulted the argument that INEC has no powers to cancel elections conducted by it.

Those who bought the line of argument were quick to finger the recent incident in Ekiti where the embattled Mrs Ayoka Adebayo had to cancel the re-run election in the state as an attestation to the powers of the commission.

But the opinion of the constitutional lawyer, Prof Sagay (SAN), Nnodim (SAN) or that of Chief Olanipekun (SAN) cannot be law neither is the decision of Mrs Adebayo on the issue of cancellation of election results sacrosanct until there is a judicial pronouncement to the effect. Ikedi and INEC quite well understand this. Both of them have already joined issues, separately, with Agbaso before the courts, wanting its judicial pronouncements.

They had told the court that the reliefs being sought by Agbaso were not available to him. For instance, INEC is contending that the April 14, 2007 poll was, as a matter of fact, inconclusive, in the first instance and that no one could claim to be a winner of the poll. It said that its then Resident Electoral Commissioner in Imo state, Mr Okojie did not mince words on the matter.

INEC specifically said that the major reason the April 14, 2007 gubernatorial election was cancelled was because of the confusion created by the omission of some candidates’ pictures and their political parties’ logo.

According to the commission, it said that while the person pronounced by the court as the authentic candidate of the ruling PDP for the April 14, 2007 gubernatorial election was Senator Ifeanyi Ararume, it said the picture which appeared on the ballot paper was that of Engineer Charles Ugwu.

It explained that following the mix up, the Ararume supporters went haywire with anger, believing that their candidate has been shortchanged at the last minute while the followers of Eng Ugwu were rejoicing, believing that since Ugwu’s picture appeared on the ballot papers, their man has won the long-drawn intra-party dispute in the PDP.

INEC said that the scenario presented brought about a monumental confusion in the polity and that it had to act. Besides, INEC said that many political parties had their pictures and names of their candidates including the logo of their political party missing. Such political parties include ALP, BNPP, DPA, PAC and RPN.

The commission said that such omission is a grave error in the eye of the Electoral Act 2006 and the 1999 constitution and a veritable ground for filing petitions against it at the tribunal if allowed without its intervention.

INEC gave an instance of one Dr Fabian Ihekweme of the Democratic Peoples Party (DPP) who could not find his picture on the ballot paper and had to run to it begging for the stoppage of the poll. Governor Ikedi, too, is not just keeping quiet. He urged the court not to listen to Agbaso who contested the April 28, 2007 repeat gubernatorial poll held in the state.

He is arguing that if Agbaso had won the repeat poll, he said he would not have come to court seeking judicial review. He is of the view that having participated in the repeat gubernatorial poll conducted by INEC, he said he could not eat his cake and have it.

But Agbaso himself said he was in court to stop the repeat gubernatorial poll fixed for April 28.He said he never accepted the decision of INEC to cancel the poll which he allegedly won.

He said his participation in the repeat gubernatorial poll could not stop him from exercising his rights of coming to court for interpretation of statute. Although the trial high court ruled against Agbaso, he however came before the Abuja division of the Court of Appeal which held, in his favour, that it has the powers to review INEC’s discretion in the matter.

Agbaso is presently urging the Court of Appeal to invoke its powers under Section 15 of the Court of Appeal Act to hear the case in its original jurisdiction and decide the case on its merit once and for all.

In the event the Court of Appeal is not willing to sit on the matter as a court of first instance, Agbaso is asking for an order returning the case file to the high court with an order that the matter should be heard de novo. But both INEC and Ikedi had taken the verdict of the Court of Appeal on its claim that it has powers to review the decision of INEC with respect to cancellation of elections, to the Supreme Court.

Barring any last minute change, the apex court will entertain arguments on the issue September 29, this year. The decision of the apex court will determine whether the matter will die naturally at the Supreme Court or whether litigation on the live issues raised by Agbaso in his suit would be litigated upon on merit from the Court of Appeal to the apex court. Although the issue raised by Agbaso, when finally decided, will no doubt, broaden the scope of the nation’s jurisprudence on the extent of the powers of INEC to abort or and cancel election in the country, yet many see Agbaso’s case as medicine after death; a ploy to retain his sponsors and name as gubernatorial candidate of APGA in order to keep his followers around him till 2011.

But whatever the claims and the intentions of the opposing parties in this case, it is just a matter of time for the apex court to pronounce on the live issues involved with a finality. The judicial pronouncement being awaited on the powers of INEC to cancel poll will no doubt increase the confidence of the common man in the judiciary but will also strengthen the nation’s democracy.


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