A controversial High Court ruling meets with resistance
The controversial ruling of the Federal High Court, Abuja, reinstating two senators and eight members of the House of Representatives, has been ignored by the Senate, the House of Representatives and the Independent National Electoral Commission, INEC, the International Centre for Investigative Reporting, which has been following the story, is reporting this morning.
Every effort by the affected lawmakers to return to their seats following the court order has been rebuffed by both the leadership of the National Assembly and INEC, which have declared that the judgment cannot be implemented.
Justice Gladys Olotu of the Federal High Court, Abuja, on Friday, January 11, in a judgment that has stirred controversy at the bar and bench, ruled that the eight lawmakers be reinstated because the electoral body had no right to void or withdraw the certificate of return originally issued to them without a valid court order.
The court further held that the electoral body acted ultra vires by cancelling certificates of return issued to the plaintiffs and issuing fresh one to 5th-14th respondent without leave of court.
It further held that by the provision of section 68(1) and s.71, the power of electoral body stops after the issuance of certificate of returns to winners of elections.
Justice Olotu, in her ruling which came after the Supreme Court ousted the jurisdiction of all courts, including the apex court, on the matter, granted all the reliefs sought by the plaintiffs and invariable ordered their reinstatement to the federal legislative house.
The plaintiffs, who got judgment in their favour are Ahmed Sani Stores and Abdu Umar Yandoma, both senators, Murtala Isa, Muntari Dandutse, Musa Salisu and Aminu Ashiru, Umar Adamu Katsayal, Muhammad Tukur, Tasi’u Doguro, and Abdu Dankama, all members of the House.
The Supreme Court in December 2011, had ruled that the issue at hand in the case concerned the determination of the validly nominated candidates of the Congress for Progressive Change, CPC, in Katsina State, for the April 2011 National Assembly elections.
The apex court averred that only the party could determine who its candidates were and ruled that no court had jurisdiction to entertain any suit on the matter.
However, Justice Olotu decided that she had jurisdiction on the matter, reasoning that the matter for determination was whether INEC had the right to withdraw the certificates issued to Stores and others and giving same to others.
However, when Messrs Stores and Yandoma approached Senate President David Mark to effect the court ruling, he told them that he could only act if they presented a certificate of return issued by INEC.
Senator Mark also reminded them of a section 143 of the Electoral Act 2001 which says that court processes be followed to logical conclusion, urging them to go to INEC to collect certificates validating their election.
Section 143 (1) of the Electoral Act states:
“If the Election Tribunal or the Court, as the case may be, determines that a candidate returned as elected was not validly elected, then if notice of appeal against that decision is given within 21 days from the date of the decision, the candidate returned as elected shall, notwithstanding the contrary decision of the Election Tribunal or the Court, remain in office pending the determination of the appeal.”
Section 143 (2) stipulates:
“If the Election Tribunal or the Court, as the case maybe, determines that a candidate returned as elected was not validly elected, the candidate returned as elected shall, notwithstanding the contrary decision of the Election Tribunal or the Court, remain in office pending the expiration of the period of 21 days within which an appeal may be brought.”
Reliable sources close to the leadership of the Senate said that the Senate President were particularly advised by the Senate Leader, Victor Ndoma Egba, a Senior Advocate of Nigeria, SAN, and Ike Ekweremadu, Deputy Senate President, who is also a lawyer, against implementing the ruling of the high court which purports to set aside the judgment of the Supreme Court.
When the eight members of the House went to Speaker Aminu Tambuwal, he reportedly told them he could not implement the court ruling. Apart from the absence of certificates of return from INEC, Mr. Tambuwal is said to have told them that if the trial judge could refuse to respect the ruling of the Supreme Court which ousted the jurisdiction of the courts in the case, then she should also not expect her judgment to be obeyed.
Frustrated, all the plaintiffs in the matter went to INEC where they met similar obstacles. Officials of the commission and their lawyers told the ousted lawmakers that they the electoral body’s hands were ties for three reasons.
First, they said that Justice Olotu did not give any declarative order compelling INEC to issue them new certificates of return. Second, the commission argued that the ruling had been appealed and that by law it was mandated to stay action until the determination of the appeal.
Finally, INEC also pointed out that Justice Olotu ruled that the electoral body’s job stopped at issuing certificates of return to successful candidates and had no right to void, invalidate or withdraw same. Thus, the commission argued that it had no legal authority to withdraw the certificates already issued to others in the case.
The aspect of the ruling by Justice Olotu that INEC’s job stopped at issuing certificates of return to successful candidates at elections is, perhaps, the most curious aspect of her controversial judgment.
Section 75 (1) of the Electoral Act states that: “A sealed Certificate of Return at an election in a prescribed form shall be issued within 7 days to every candidate who has won an election under this Act: Provided that where the Court of Appeal or the Supreme Court being the final Appellate Court in any election petition as the case may be nullifies the Certificate of Return of any candidate, the Commission shall within 48 hours after the receipt of the order of such Court issue the successful candidate with a valid Certificate of Return.”
There has been controversy over who were the authentic candidates for two senatorial seats and eight members of the House of Representatives seats won by the CPC in Katsina state.
The matter had gone through a first round at the Federal High Court, Abuja, the Court of Appeal and the Supreme Court. The Supreme Court ruled that no court had the jurisdiction to entertain the case because the matter of who a party’s candidate is can only be decided by the concerned party.
The Supreme Court therefore voided the judgments of the Federal High Court and Court of Appeal over the matter. However, Messrs Stores, Yandoma and others still went before the high court to challenge the withdrawal of their certificate of return by INEC and the issuing of same to another set of persons, including Messrs Saadiq Yar A’dua and others.
In the case filed before Justice Olotu, the plaintiffs asked the court to declare that INEC lacks the power to cancel, nullify, review, withdraw, void, invalidate either directly or indirectly, the certificates of return validly issued to them 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.
Other relief sought by them which were all granted by the court included.“
A declaration that by virtue of section 75(1) of the Electoral Act 2010, as amended, INEC lacks the power to issue certificates of return to the 5th – 14th defendants in relation to the Federal Constituencies and Senatorial Districts over which the Plaintiffs had earlier on been issued with valid certificates of return, when neither the Court of Appeal nor the supreme Court had nullified the certificates of return issued to the Plaintiffs.
“A declaration that the sealed certificates of return issued to the Plaintiff upon their winning election into the national Assembly to represent their various Federal Constituencies and Senatorial Districts of Katsina state are still valid and that the Plaintiffs 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”.