From GODWIN TSA Abuja
A Federal High Court sitting in Abuja has held that the Independent National electoral Commission (INEC) acted ultra vires by withdrawing the certificates of return issued two Senators and eight members of the House of Representatives of the Congress for Progressive Change representing Katsina State.
The court said the electoral body has no power to withdraw the certificate of return issued to any person returned as winner by its returning officer in an election. In a five hour judgement in the suit brought before the court by a faction of the CPC in Katsina State challenging the withdrawal of their certificates of return by INEC, Justice Gladys Olotu held that by Section 68(1) and 75(1) of the Electoral Act 2010, the electoral body cannot revise 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.
She held that INEC acted ultra vires by withdrawing the certificates of return issued two CPC Senators and eight members of the House of Representatives and the issuance of fresh ones to the 5th to 14th Defendants in the suit which had INEC, Senate President,Speaker of the House of Representatives, the Clerk of the National Assembly, CPC and ten members of the National Assembly as Defendants. The Plaintiffs had asked the court to nullify the certificates of return INEC issued to Senator Abubakar Sadiq Yar’adua, Senator Abubakar Hadi Sirika and eight other members of the House of Representatives as well as an order that the lawmakers vacate their seats in the National Assembly.
Justice Olotu, in her judgement 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.
“The Plaintiffs are the candidates 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 Judge held. The Plaintiffs had, in their suit 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 Districts 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, the Plaintiffs averred that INEC purportedly withdrew their certificates of returns and a fresh ones were issued to the 5th to 14th Defendants without any order of any court of competent jurisdiction. They further averred that, pursuant upon fresh certificate 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 9th 2011 elections.
In a Preliminary Objection, the Defendants argued that the matter is a post election matter which ought to be handled by the election petition tribunal and not the federal high court and challenged the jurisdiction of the court to hear and determine the suit, pointing out that section 68(1) of the Electoral Act automatically terminated the seats which the Plaintiffs allegedly occupied in the National Assembly.
But Justice Olotu held that the court has jurisdiction to hear and determine the suit and that the suit, as filed by the Plaintiffs is not hypothetical, academic and constituting an abuse of court process as claimed by the Defendants in their preliminary objection.