By Dayo Benson & Abdulwahab Abdulah

IF there were legal hurdles before Independent National Electoral Commission, INEC, prior to commencement of on-going elections, they are unprecedented number of court injunctions which aggrieved aspirants obtained against the commission. As at the last count, INEC said there were over 200 of such injunctions before it.

Curiously, some of them were granted by courts of co-ordinate jurisdiction to different litigants. The development, no doubt, put INEC in a quandary over which one to obey. For instance in Anambra North Senatorial District which People’s Democratic Party, PDP, won in last Saturday National Assembly Election, three ‘candidates’ are laying claim to the ticket, each relying on different court orders. A similar situation is playing out in Imo West Senatorial District which PDP also won but two ‘candidates’ from the party are fighting for the slot. In these two instances and others, whoever is sworn-in as the winner is holding a tentative mandate until the highest court decides the matter. This is why fears are being expressed in some quarters that the current elections may reproduce the kind of situations that eventually threw up Governor Rotimi Amaechi of Rivers State in the aftermaths of the controversial 2007 elections.

Despite the numerous injunctions before it, INEC was constrained by time, thus it had to go ahead with the scheduled elections. The exercise which would have held last January was shifted to April following the commission’s plea for time. The constitution had to be amended twice to accommodate the development.

Similarly, INEC is tied down by the politicians through a manipulated Electoral Act. Section 81 (9) which gave INEC power to supervise party primaries and disqualify anybody who does not emerge through a free and fair contest has since been expunged and replaced with a dubious Section 31 which states that parties shall submit names of candidates they intend to sponsor and stipulated that INEC cannot disqualify them for any reason whatsoever.

INEC itself was not unmindful of the plethora of court injunctions before it. Worried by the development, Professor Attahiru Jega, recently wrote to the Chief Justice of Nigeria, CJN, Justice Alloysius Katsina-Alu, requesting him to call the judges to order. Jega’s concern stemmed from the fact that the activities of the commission ran the risk of being grounded, given the numerous injunctions emanating from courts.

In the aftermath of the political party primaries, no fewer than 160 cases, had been filed against the commission. 70 of these are ex-parte orders. Curiously enough, some of these court orders conflict one another. The judges, both at the state and federal high courts, have been granting orders “at the drop of the hat”. INEC, being a civilised institution, is duty-bound to obey such injunctions. But the National Judicial Council, NJC, must be reminded of the onerous task before the commission. Members of both the bar and the bench must not, out of omission or commission, truncate the nation’s democracy through the granting of frivolous injunctions.

We admit without any equivocation that it was the inalienable right of every aggrieved person to seek redress in a court of law whenever such individual felt there was an infringement upon their rights. It is also within the ambits of the bench to either grant or refuse an injunction. However, we condemn instances where judges grant injunctions without any regard to jurisdiction. Instances abound where a state high court – in Anambra State for example – grants an injunction to a litigant on a matter concerning a political party in another state, which it does not have any jurisdiction, such procedures are condemnable. Worse still, litigants, aware that there are subsisting cases in courts, also approach other courts with co-ordinate jurisdiction to obtain injunctions. It is trite law that courts of co-ordinate jurisdiction cannot grant similar injunctions.

Speaking on the issue, Constitutional lawyer, Prof Itse Sagay, SAN, said “I think that is the advantage of the Amaechi case. INEC can go ahead with the elections but at the end of the day when the cases are finally decided at the highest court, depending on how far the litigants are willing to go, whoever emerge victorious will occupy the seats while the losers will be asked to go. INEC cannot wait for anybody while the cases are still going on in the courts because it is constrained by time”.

In his own position, Chief Robert Clarke, SAN, said, “In this circumstances, one has to look at the complaints brought before the court by the complainant. If the matter affects or borders on nomination of candidate, INEC needed to wait for the decision of the court. However, in a situation where election has been conducted, the final decision of the higher court must be binding on the INEC and all parties before the court.

So, whatever is the outcome of the pre-election matters, INEC will be bound by the decision of the court. Meanwhile, if it is an issue bordering on qualification of the candidate, especially if it on criminal matter, INEC is expected to take the nomination of the candidate but whatever is the outcome of the case in court will be binding on the electoral body.

“For instance, the Amaechi case, is an issue of nomination. In this case, where his party replaced him with another candidate, his case was duly consider by the court. In spite of the fact that the electoral body went ahead with the election, the Supreme Court nullified all the processes and directed that Amaechi be sworn in as the state governor. If it is an issue of pre-qualification, we can say it is a pre-election matter also, the candidate in question can go on to contest, but the outcome of the case will determine whether the candidate can keep on enjoying the office or not. In summary, it all depend on the position in which INEC finds itself. However, no matter the case, the decision of the court will be binding on the body on all the process embarked upon by it before and after the election.”

Also speaking, another Constitutional lawyer, Chief Mike Ozekhome, SAN, said “The law generally is that under the doctrine of lis pendens, once litigants have submitted their disputes to court, no party is allowed to take the law into his hands by taking any step in the subject matter of the dispute except as directed by the courts. This principle is emphasized by the Supreme Court and the Court of Appeal in the case of Ojukwu Vs Governor of Lagos State in Part 10 and 18 of the 1985, NWLR.

It is more so when no injunction has actually been granted, the reason is that once a case is subjudice, the court must maintain a neutral balance between the two parties. It is therefore wrong on the part of INEC to have ignored injunctions actually granted and gone ahead to hold elections in such cases.

The party who loses the election can use INEC default as a pedestrian to challenge the victory of his opponent who won.

What INEC ought to have done in such a case is to postpone elections in such areas and wait for final outcome of the litigations.

The Supreme Court emphasized this position when it upbraided INEC for going ahead to hold an election that produced Mr. Andy Uba as governor of Anambra State even when a suit instituted by Peter Obi against INEC to determine his exact tenure of office was still pending.

That was why the Supreme Court wasted no time in removing Andy Uba as governor of Anambra State and putting Peter Obi back as the authentic governor of Anambra State. That is the fate that will befall all those who went ahead to win elections conducted by INEC inspite of the pending of injunctions against INEC.

They will be removed pronto from their positions if their opponents eventually win such matters in courts. The case of Amaechi Vs Omeha will be a very good precedent to this effect.

Lagos lawyer and rights activist, Mr. Bamidele Aturu, said , “INEC is a constitutional and statutory body, established by the law. The court is also established by the constitution and its orders must be obeyed. However, it is expected that the court cannot make a blanket order, which will oust the constitutional power of INEC to conduct an election in the first place. In this circumstance, we have to look at the particular case or the order made by the court and weight the balance of convenience. This time, the balance of convenience will be in favour of INEC, this will not however stop the body from attending to court cases or obeying the orders of court. So, election should go on without any inhibition. Our democracy should not be treated with levity, it has gone beyond that level where a court case or court order will stop INEC from conducting the poll.