An Abuja-based legal practitioner, Bob James, on Wednesday dragged the Independent National Electoral Commission (INEC) before the Federal High Court, Abuja for failure to upload the results of the presidential elections from polling units to the election results portal, IReV days after the exercise ended.
In suit No. FHC/ABJ/CS/353/2023, Mr James listed INEC and the Attorney-General of the Federation (AGF), Abubakar Malami, as defendants.
In the originating summons seen by the newspaper, Mr James argued that the electoral umpire, INEC, was under “statutory duty to upload electronically on its portal the results of the presidential and National Assembly elections held on 25 February…immediately” from every polling station across the country.
Citing section 60 of the Electoral Act 2022 and section 38 (1) of INEC regulations, the lawyer asked the court to determine whether IMEC’s refusal to upload the results from each polling unit on the day of the election to its IRev portal in line with its guidelines does not render the outcome of the elections a nullity.
Although the results of the Senate and House of Representatives elections were uploaded immediately from the polling stations at the close of polling on February 25 throughout the country in accordance with its guidelines, INEC refused to do same with the Presidential election results days after the exercise, citing technical glitches.
In his reliefs, Mr James sought a declaration of the court to declare that INEC was under statutory obligation, by virtue of the provisions of Sections 60 (5) and 38(1) of the Electoral Act 2022 and its own guidelines to upload and publish electronically on its platform the results from each polling “immediately after counting and recording on Form EC 8A on election day.”
Also, the lawyer urged the court to declare that INEC failed, refused and/or neglected to upload and publish the results of the presidential elections held on February 25, 2023 from the polling units on election day contrary to the relevant provisions of the Electoral Act was a violation of its own guidelines for the conduct of the 2023 general elections.
In his written address in support of his originating summons, Mr James the failure, refusal and/or neglect by INEC to upload and publish the results of the presidential elections from the polling unit immediately after the elections rendered the entire exercise a nullity.
Consequently, he said as legal practitioner and a Nigerian he has a duty to ensure that public institutions “entrusted with constitutional powers to conduct elections do so strictly in compliance with the law.
As a result of its negligent conduct, Mr James said he was seeking a declaration that the presidential election conducted by INEC on February 25, 2023, was null and void and of no effect whatsoever, as the result of same was not declared in accordance with the law.
The lawyer contended that more than 90 percent of the February 25 election results were not uploaded on the INEC IRev portal as of midnight on the day of the polls.
Referring to paragraph 38 of INEC regulations and guidelines for the conduct of the 2023 elections, the lawyer highlighted the procedures to follow by the electoral officers to declare the result.
“On completion of all the polling unit voting and results procedures, the presiding officer shall (i) electronically transmit or transfer the result of the polling unit direct to the collation system as prescribed by the Commission; (ii) Ue the BVAS to upload a scanned copy of the EC*A to the INEC Result Viewing portal (TREV) as prescribed by the Commission; (iii) Take the BVAS and the original copy of each of the forms in tamper-evident envelope to the Registraton Area/Ward Collation Officer in the company of security agents. The polling agents may accompany the Presiding Officer to the RA/Ward Collation Centre.”an electoral presiding officer “shall use the Bimodal Voters Accreditation System (BVAS) machine to upload a scanned copy of the EC8A (election result paper) to the INEC Result Viewing Portal (IReV) as prescribed by the commission,” he said
Mr James further pointed out that the use of the word – shall- by the electoral law imposed a statutory responsibility on INEC to abide by the guidelines to electronically transmit the election results from every polling station in Nigeria to its portal, rather than transmitting the result to the portal by other officials of INEC afterwards.
“The use of the word shall in both S 60(5) and clause 38 of the INEC regulations clearly creates a mandatory duty to transmit electronically from each polling unit by the presiding officer,” he said.
“Where a law prescribes the procedure to be followed in the performance of an act and that procedure is not complied with, the performance of the act in the circumstance is a nullity,’” he added.
He cited Folake vs INEC (2016) 18NWLR, pt 1543, 61, in which he said the Supree Court considered the bindingness of INEC regulations and held that by virtue of Section 60(1) of the Constitution, which empowers INEC to make regulations, the regulations have binding force.
He said it was settled in law that where a duty was imposed by statute, the duty can on;y be exercised in the manner prescribed by statute, citing the case of Bowaje vs Adediwura (1970) 6 SC, 143 Sanusi vs Ayoola, ors (1992) LPELR – 3009, (SC)
“Where a law prescribes the procedure to be followed in the performance of an act and that procedure is not complied with, “the performance of the act in the circumstance is a nullity” per Onoghen, CJN in SPDC (Nig) Ltd vs Agbara, (2019) 6 NWLR, pt 1668, 247 and 326.
“It is submitted that the failure of INEC to follow that method prescribed in S 60(5) and regulations 38 renders the presidential election of 25th February 2023 a nullity,” Mr James said.
The case has not yet been assigned to a judge for hearing.
Days after elections, despite not uploading the results on the result portal, the INEC Chairman, Mahmood Yakubu, on March 1 declared the All Progressives Congress (APC) presidential candidate, Bola Tinubu, winner of the presidential election amid protests by the representatives of the Peoples Democratic Party (PDP) and Labour Party (LP).
The INEC Chairman said Tinubu polled a total of 8.8 million votes to defeat Atiku Abubakar of the PDP and Peter Obi of the Labour Party.
Both local and international election monitoring groups have since described the process that led to the declaration by INEC as significantly flawed.
