Update1: Court orders immediate issuance of certificate of return to Okorocha

A Federal High Court on Friday ordered the Independent National Electoral Commission (INEC) to issue with immediate effect a certificate of return to  former Imo  State Governor, Rochas  Okorocha, for the Imo  West Senatorial District.

The court said INEC had no legal justification to withhold the certificate of return and was wrong to have refused to issue Okorocha with the certificate being the lawful winner of the senatorial election conducted by the commission on February 23 this year.

He said the refusal of INEC to issue the certificate of return was “unlawful, null and void.”

INEC had refused Okorocha the certificate on the ground that the returning officer claimed he was under ‘duress’ to announce Okorocha’s name as the senator elect for the Imo West senatorial district.

However, Okorocha, had in a suit marked FHC/ABJ/CS/296/2019,  prayed the court to, among others, order INEC to issue him a certificate of return as the senator-elect for Imo West Senatorial District.

Okorocha contended that INEC lacked the statutory powers to withhold his certificate of return, because he was validly elected to occupy the senatorial seat.

The trial judge, Justice Okon Abang, agreed with the submission, saying INEC does not have the inherent power to stop the issuance of the certificate of return to a winner after an election.

On whether the court had jurisdiction to entertain the suit, Abang held that though it was a postelection matter, the court had the ample jurisdiction to hear the matter, being that the action of NEC  is an administrative decision.

Thus, he ruled that the court has the jurisdiction to hear the matter.

He said the questions formulated by the plaintiff did not contain issue of validity or non-qualification of candidate to contest election or non-valid election of candidate  but administrative decision of the electoral body – the refusal to issue a certificate of return, adding more so when the plaintiff had already been declared winner of the election.

The judge berated INEC for reverting to “self-help”, saying it created unnecessary problem for the polity.

Abang said once an election had been held and winner declared, it was only the tribunal that could withdraw such a certificate.

He said once a returning officer declares a candidate a winner, INEC has no lawful authority to withhold the certificate of return. “Its action is not known to Electoral Act. Therefore INEC acted ultra vires.”

Abang held  that “once issuance of form ECA1 and a declaration made by returning officer, it is binding on INEC to issue certificate of return to the candidate. Once a candidate is declared a winner it is final, it can only be reviewed by the tribunal and not INEC.

“It is not lawful for INEC to take law into its hand, no law supports INEC. It cannot be the complainant, the judge in the same matter. It did not hear from the plaintiff to take a decision, INEC denied the plaintiff fair hearing  in this matter.

According to Abang: “No doubt, it’s postelection dispute but it’s not every postelection dispute you go to the tribunal to challenge.”

In response to the defendants’ submissions that only tribunal can adjudicate on postelection matter, Abang  said the instant case was not among the grounds that could be challenged at the tribunal, adding the plaintiff being a winner of the election, could not file counter claims at the tribunal. According to him, it was the loser that could file claims at the tribunal in the instant case.

He added that the tribunal had no business to go outside its core mandate as stated in section 138 (1A-D) of the Electoral Act.

“The tribunal does not have unlimited power to entertain all suits regarding postelection matters,” Abang averred.

He said it is legally impossible for Okorocha to seek redress at the tribunal being the winner of the election.

“The court has exclusive jurisdiction to hear the matter as against the submission of the defendants,” he said.

He said if the action of INEC was not checked, it will create crisis for the country.

The court thereafter ordered INEC to: “Forthwith publish and circulate name of Okorocha as senator elect; thereby order that forthwith INEC issue certificate of return to Okorocha.”

He awarded of N200, 000 against INEC and N100, 000 against each of the seven respondents in the case to serve as deterrent.