Can INEC Legally Withhold a Certificate of Return? – By Jiti Ogunye

INEC for good cause , in our considered view, may withhold or
refuse to issue a certificate of return to a candidate in an
election. Such good cause, for example, may be a post declaration
awareness or realization that the declaration is not voluntary or
made under duress , without the free exercise of the will of the
Returning officer, especially if the tabulated of collated votes do
not support such a declaration.

An illicit declaration, procured vi et armies, ought not to give
birth to a legitimate return. Certifying a fraud that INEC realises
and can establish as a fraud is not only irresponsible but unlawful
. That will mean that INEC knowingly and willfully is certifying a
fraudulent declaration or return.

Where is the law?

Section 68 (a,b & c) of the Electoral Act ( with its
amendments) provides that “ the decision of the Returning Officer
on any question arising from or relating to-(a) unmarked ballot
paper; (b) rejected ballot paper; and (c) declaration of scores of
candidates and the return of a candidate shall be final subject to
review by a tribunal or court in an election petition proceedings
under this Act”

Section 75(2) of the Electoral Act, 2010 ( with its amendments)
states that “ where the Commission refuses and, or neglects to
issue a certificate of return, a certified true copy of the order
of a court of competent jurisdiction shall, ipso facto, be
sufficient for the purpose of swearing in a candidate declared as
the winner by that court.”

A combined reading and construction of the above two cited
provisions of the Electoral Act make it luminously clear that any
decision of a Returning Officer on declaration of scores of
candidate and the return of a candidate shall be final, and same
shall be subject to review by a tribunal or court in an election
petition proceedings.

It is our humble submission that if a Returning Officer , upon
making a declaration, takes a “decision” to report an alleged
coercion and compulsion to make a declaration to INEC, that report,
which is an inextricable part of result declaration, can validly
lead to a decision not to issue a certificate of return to an
alleged winner of the election. It is submitted that the decision
not to issue a certificate of return qualifies as one of the “
decision of the Returning Officer on any question arising from or
relating to …..declaration of scores or return of a candidate…”
within the meaning and intendment of Section 68 of the Electoral
Act.

Section 75(2) is even more instructive. The subsection
recognizes that INEC may “ refuse” or “ neglect” to issue a
certificate of return, and that in that case, a certified true copy
of an order of court shall be sufficient for the purpose of
swearing in a candidate that may be declared as the winner by that
court.

What this subsection implies is that upon a refusal or neglect
by INEC to issue a certificate of return, a court action ( election
petition) may be filed by a person so declared but denied a
certificate of return , to seek declaratory reliefs that he is the
winner who should be issued the certificate of return.

Until such an order is obtained , INEC , as the election
management body , and pursuant to its statutory and administrative
powers may , for good cause and compelling reasons , withhold a
certificate of return.

Jiti Ogunye is a legal practitioner, political
analyst and a public speaker

Another N2.4bn to be Forfeited by Patience Jonathan,
Supreme Court Rules

The Supreme Court has dismissed an application filed by Patience
Jonathan, wife of former president, Goodluck Jonathan, seeking to
upturn the interim forfeiture order by a Federal High Court, Lagos
placed on the sum of N2.4 billion linked to her.

The Economic and Financial Crimes Commission, EFCC, had traced
the said sum to her and alleged that it was proceed of illegal
activities. The N2.4 billion, according to the EFCC was
surreptitiously kept in the bank account of La Wari Furniture and
Baths Limited, domiciled with Eco Bank Plc.

Justice Mojisola Olaterogun had in 2017 ordered the interim
forfeiture of the money, and held that anyone interested in it
should appear before the court to show cause why it should not be
finally forfeited to the Federal Government.

Dissatisfied with the ruling, Patience had approached the Court
of Appeal, Lagos Division, seeking to upturn the ruling of the
lower court.

However, ruling on the appeal on January 12, 2018, the appellate
court, in a lead judgement read by Justice Mojeed Owoade, rather
upheld the interim forfeiture order.

Not satisfied with the ruling of the appellate court, Patience,
through her counsel, Mike Ozekhome, SAN, again filed an appeal
challenging the ruling before the Supreme Court.

However, the five-man panel of Supreme Court justices have now
again in a unanimous ruling, delivered on Friday, March 15, 2019,
upheld the interim forfeiture order of the N2.4 billion.

It will be recalled that a five-man panel of Supreme Court
justices, had on Friday, March 8, 2019 in a unanimous judgement,
also dismissed Patience’s appeal against the interim forfeiture
order of a Federal High Court, Lagos, for another $8.4 million
traced to her by the EFCC and believed to be proceeds of illegal
activities.

Tony Orilade
Ag. Head, Media & Publicity
March 15, 2019