INEC has no power to withdraw Certificate of Return, says Court
By Ikechukwu Nnochiri, Abuja
A Federal High Court in Abuja, Friday, held that the Independent National Electoral Commission, INEC, lacks the constitutional powers to withdraw Certificate of Return issued to any person affirmed as the winner of an electoral contest by its returning officer.
Justice Gladys Olotu who made the declaration while delivering judgment in a suit that was filed before the high court by a faction of the Congress for Progressive Change, CPC, in Katsina state challenging the withdrawal of their Certificates of Return by INEC, maintained that going by Section 68(1) and 75(1) of the Electoral Act 2010, the electoral body cannot reverse its action when a Certificate of Return is issued to a winner of an election, without an order of a tribunal or a competent court of jurisdiction.
The judge held that INEC acted ultra-vires its powers by withdrawing the certificates of return issued two CPC Senators and eight members of the House of Representatives in Katsina State and subsequently re-issued fresh ones to other candidates.
Specifically, the plaintiffs had prayed the court to nullify the Certificates of Return that INEC issued to Senator Abubakar Sadiq Yar’adua, Senator Abubakar Hadi Sirika and eight other members of the House of Representatives, as well as, order that the lawmakers vacate their seats in the National Assembly forthwith.
Listed as defendants in the suit were INEC, Senate President, Speaker of the House of Representatives, Clerk of the National Assembly, CPC and ten members of the National Assembly.
Besides, Justice Olotu yesterday declared that INEC lacks the power to cancel, nullify, review, withdraw, void, invalidate either directly or indirectly, the Certificates of Return validly issued to the Plaintiffs consequent upon their winning elections to represent their respective Federal Constituencies and Senatorial Districts in Katsina State, without an order of the court first sought and obtained.
According to the judge, “the Plaintiffs are the candidate that contested and won the April 9, 2011 general elections into the National Assembly to represent their various Federal Constituencies and Senatorial Districts of Katsina state and Certificates of Return were issued to them within seven days of the declaration of the election results as provided by the Electoral Act and not the 5th to 14th Defendants.”
The Plaintiffs had asked the court for a declaration that the sealed Certificates of Return issued to them upon their winning election into the National Assembly are still valid and that they are entitled to immediately repossess their seats in the National assembly to represent their respective Federal Constituencies and Senatorial District without hindrance from the 2nd (Senate President), 3rd (Speaker) or 4th (Clerk of the National Assembly) Defendants or any other person.”
In an affidavit in support of the originating summon, they averred that INEC purportedly withdrew their Certificates of Returns and fresh ones were issued to the 5th to 14th Defendants without any order of any court of competent jurisdiction.
They further told the court that pursuant upon fresh certificates of return, the Defendants were sworn-in to take their various seats in the National Assembly without any court order to that effect, pointing further that the Defendants to whom fresh certificates of return were issued did not participate in the April 9 2011 elections.
However, on a Preliminary Objection, the Defendants argued that the matter was a post election issue which they said ought to be handled by the election petition tribunal and not the federal high court.
The defendants also challenged the jurisdiction of the court to hear and determine the suit, contending that section 68(1) of the Electoral Act automatically terminated the seats which the Plaintiffs allegedly occupied in the National Assembly.
Nevertheless, Justice Olotu held that the court has jurisdiction to hear and determine the suit, maintaining that the action was not hypothetical, academic and constituting an abuse of court process as claimed by the Defendants in their preliminary objections.