A Federal High Court sitting in Abuja, has ordered the Independent National Electoral Commission, INEC, to hold Nigeria’s state governors, their deputies and others to account over cases of electoral violence, bribery, vote-buying, and conspiracy during the chaotic 2023 general elections.
The court also ordered INEC to ensure “the appointment of independent counsel to investigate cases of electoral violence and other electoral offences against state governors and their deputies during the 2023 general elections.”
It also ordered INEC to “to promptly, thoroughly and effectively investigate cases of electoral violence and other electoral offences committed during the 2023 general elections and to identify suspected perpetrators and their sponsors and ensure their effective prosecution.”
The judgment was delivered last Thursday by Justice Obiora Egwuatu following a mandamus lawsuit number: FHC/ABJ/CS/583/2023, brought by Socio-Economic Rights and Accountability Project, SERAP.
Justice Egwuatu also ordered INEC “to swiftly prosecute all arrested offenders in the 2023 general elections in the custody of the Nigeria Police Force, Economic and Financial Crimes Commission, EFCC, Independent Corrupt Practices Commission and other law enforcement agencies.”
Justice Egwuatu held, “I have compassionately evaluated the depositions in the affidavit of SERAP and I have no reason not to believe the depositions more so when there are documentary evidence in support of the depositions.
“In the circumstances, therefore, I find merit in the application. The sole issue of whether this court ought to grant the relief of judicial review and orders of mandamus is resolved in favour of SERAP. Accordingly, I grant the prayers sought.”
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Justice Egwuatu’s judgment, read in part: “Being citizens of this great country, SERAP and its members have the legal interest whose enjoyment or enforcement directly or substantially depends on the performance of public duty by INEC.
“In requesting the performance of the public duty imposed on the electoral body, SERAP has demonstrated a great zeal of patriotism.
“The substance of SERAP’s grouse is the violence associated with elections in Nigeria, which tends to prevent citizens from exercising their franchise during elections, thus preventing credible election and in the long run credible leaders.
“There is no gainsaying the fact that electoral violence and the associated crimes committed during elections in Nigeria is a great bane to the development of this country both democratically and economically.
“SERAP has also shown vide exhibit A8, a letter addressed to INEC requesting amongst other things the appointment of independent counsel to investigate allegations of electoral offences, including bribery, conspiracy, and undue influence against state governors and their deputies during the 2023 general elections.
“Exhibit A8 is thus a distinct and clear demand for the performance of the duty made by SERAP. The electoral body till the date of filing the action failed to, refused and or neglected to carry out or perform the duty requested by SERAP.
“There is no doubt that the Electoral Act 2022 creates some electoral offences. Sections 123, 124, 125, 126 127, 128 and 129 are some of the provisions of the Electoral Act that created some specific electoral offences.
“Trial of offences created by the Electoral Act are done in a Magistrate Court or a High Court of a State in which the offence is committed, or the Federal Capital Territory, Abuja. See Section 145(1) of the Electoral Act.
“By section 145(2) of the same Act, prosecution for the offences shall be undertaken by legal officers of INEC or any legal practitioner appointed by INEC. Clearly therefore, the law imposes on INEC the performance of a public duty.
“Section 24(d) and (e) of the Nigerian Constitution 1999 [as amended] recognizes the rights of citizens to take steps towards advancing the community where he resides.
“The section provides that ‘it shall be the duty of every citizen to-(d) make positive and useful contribution to the advancement of progress and well-being of the community where he resides; (e) render assistance to appropriate and lawful agencies in the maintenance of law and order.
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“By the provision of order 34 of the Federal High Court (Civil Procedure) Rules, 2019, this court is empowered to grant an order of mandamus, prohibition or certiorari in the manner set out in the order.
“On an application for judicial review, any relief mentioned in rule 1 of order 34 may be claimed as an alternative or in addition to any other relief so mentioned if it arises out of, relates to or is connected with the same matter.
“An order mandamus lies to compel the performance of a public duty at the instance of a person who has sufficient legal interest in the performance of that public duty.
“Where a public duty is imposed on a public or government body, authority, department or official and the authority, department or official refuses or fails to perform that duty, an order of mandamus would issue to compel that body, authority, department or official to carry out that duty in respect of a person whose interest is directly and substantially affected by the refusal or failure to perform that duty.
“I must say that the entirety of the facts deposed to by SERAP were not controverted by INEC. It is trite that depositions in affidavit on material facts resolve applications in court.
“Where depositions on material facts in an affidavit in support of an application are not denied by the adverse party filing a counter-affidavit, such facts not denied in the affidavit in support remain correct position and the court acts on them except they are moonshine.
“While it is generally well settled that unopposed averments in an affidavit will be deemed admitted, it is also trite that the court has a duty to evaluate the unopposed averments and determine whether, as they stand, they justify the grant of the reliefs sought.
“The mere fact that the averments are not denied does not mean that the court must accept them without more. The averments, even if accepted by the court must be cogent and credible. If the court is not so satisfied, the application will be refused.”
