The Court of Appeal has ordered the Attorney General of the
Federation (AGF) and others to desist from taking steps capable of frustrating
hearing in an appeal filed against judgment of a Federal High Court which
ordered removal of section 84 (12) from the new Electoral Act.
This is as the appellate court granted nod to the Peoples
Democratic Party (PDP) to join as person interested in an appeal against the
high court judgment which voided and struck down section 84 (12) of the Act.
PDP was granted the permission by the Owerri division of the
Appeal Court to file its appeal as an interested person against the decision of
the Federal High Court, Umuahia, on the order for removal of the section from
the Electoral law.
In an enroll order of the Court of Appeal sighted in Abuja
by our correspondent and signed by the Presiding Justice of the court, Justice
Rita Noshakhare Pemu, the leave granted PDP to file an appeal was occasioned by
submissions of its counsel, D.C Denwigwe, a Senior Advocate of Nigeria SAN.
The appeal marked CA/OW/87/2022 has Chief Nduka Edede and
the Attorney General of the Federation AGF as the 1st and 2nd respondents
respectively.
The enroll order read in part ” Upon reading the application
herein filed on 23-3-2022 with an affidavit in support sworn to by John Eronini
on the same date and after hearing DC Denwigwe SAN for the applicant and Chief
Emeka Ozoani SAN for the 1st respondent, order is hereby granted as follows;
“Leave is hereby granted the applicant (PDP) to appeal as
person interested in this appeal CA/OW/87/2022.
“Due to the exigencies of this appeal and its Constitutional
colorization, there is need to hear this matter expeditiously.
“Accordingly, the Appellant is hereby given up to Tuesday
12th of April, 2022 to file its notice of Appeal and the parties are to file
their respective briefs of arguments within three days from the date of service
of the notice and record of Appeal on the respondents.
” There shall be a further three days given to the appellant
to file a reply.
“Parties should desist from taking any step to frustrate the
hearing of the appeal.
“The matter is adjourned to the 4th of May, 2022, for the
hearing of the appeal.
“Fresh hearing notice to be issued on the 2nd to the 12th
respondents”.
A Federal High Court, Umuahia division had on March 18
declared as invalid and unconstitutional section 84 (12) of the amended
Electoral Act.
Justice Evelyn Anyadike in a judgment ordered the Attorney
General of the Federation to delete the said section from the amended Electoral
Act.
Section 84(12) of the Electoral Act provides that, “No
political appointee at any level shall be a voting delegate or be voted for at
the convention or congress of any political party for the purpose of the
nomination of candidates for any election.”
The high court which ordered that the section be struck out
held that sections 66(1)(f), 107(1)(f), 137(1)(f) and 182(1)(f) of the 1999
Constitution already stipulated that government appointees seeking to contest
elections are only to resign at least 30 days before the election.
The court therefore held that any other law that mandates
such appointees to resign or leave office at any time before that was
unconstitutional, invalid, illegal and void to the extent of its inconsistency
to the clear provisions of the Constitution.
Justice Anyadike, thereafter, ordered Abubakar Malami to
delete the contended section 84(12) from the constitution.
However, the National Assembly, which enacted the
contentious section 84 (12) had lodged an appeal at the Court of Appeal in
Owerri against the Umuahia court judgment ordering the AGF to delete Section
84(12) of the amended Electoral Act.
The suit at the Federal High Court Umuahia is marked;
FHC/UM/CS/26/2022 and its judgment
faulted the provision of Section 84(12) of the Electoral Act
2022 and declared it unconstitutional, invalid, illegal, null void and of no
effect.
The NASS in its Appeal held that the high court erred in law
because the clause in question is directed at political appointees and not
civil servants.
NASS claimed that the high court passed judgment on a matter
which was not included in the Electoral Act and concluded that its decision was
liable to be set aside by the Court of Appeal.
The National Assembly also challenged why it was not joined
as a respondent in the suit, being the only body with constitutional power to
alter any part of the legislation which it passed.
President Muhammadu Buhari had on February 25 assented to
the Electoral Act 2022 but however, objected to the provision of Section 84
(12).
He later asked the National Assembly to amend the section of
the Act, but the request was rejected by the lawmakers.
The Peoples Democratic Party, PDP, had on its own dragged
President Buhari before a Federal High Court in Abuja challenging moves to
alter the amended Electoral Act.
Buhari was sued along with the Attorney General of the
Federation (AGF), and Minister of Justice, Senate President, Speaker, House of
Representatives, Clerk of the National Assembly, Senate Leader, House of
Representatives Leader and the Independent National Electoral Commission, INEC.
The party also joined as defendants in the suit marked
FHC/ABJ/CS/247/2022 Deputy Senate President, Deputy Speaker, House of
Representatives, Deputy Senate Leader and Deputy House of Representatives
Leader.
The main opposition party in the suit filed on its behalf by
Chief James Ogwu Onoja, SAN, had prayed the Federal High Court for an order of
interim injunction restraining Buhari and other defendants from altering the
duly signed Electoral Act or withholding the Electoral Act from being put to
use, including the provisions of section 84 (12) of the said Act pending the resolution
of the suit.
The PDP also applied for an order of the court stopping the
National Assembly from giving effect to President Buhari’s request to remove
section 84 (12) from the Electoral Act or take any step that will make the
provision inoperative pending the resolution of the motion on notice for
interlocutory injunction.
The grouse of the PDP is that President Buhari having
assented to the Bill on February 25, 2022, cannot give any directive to the
National Assembly to take immediate steps to remove the section or any section
of the Act on any ground whatsoever.
In a ruling on PDP’s ex-parte application, Justice Inyang
Ekwo had ordered defendants in the suit to suspend all actions on any attempt
to alter the Electoral Act.
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