The Court of Appeal has ordered the Attorney General of the Federation (AGF) Abubakar Malami (SAN), the National Assembly and others to desist from taking steps capable of frustrating hearing in an appeal filed against judgement of a Federal High Court which ordered removal of Section 84 (12) from the new Electoral Act.
The appellate court also granted the Peoples Democratic Party (PDP) the nod to join as person interested in an appeal against the 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, in suit no FHC/UM/ CS/26/2022, on the order for removal of the section from the electoral law.
In an enroll order of the Court of Appeal obtained in Abuja Sunday 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, SAN. The appeal marked CA/OW/87/2022 has Chief Nduka Edede and AGF Malami as the 1st and 2nd respondents respectively.
The enroll order reads 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 a person interested in this appeal CA/OW/87/2022. Due to the exigencies of this appeal and its constitutional colorisation, 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.”
Lower Court ruling
The Umuahia Division of the Federal High Court, had, March 18, declared as invalid and unconstitutional Section 84 (12) of the amended Electoral Act. Justice Evelyn Anyadike in a judgment ordered the AGF 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 with the clear provisions of the Constitution. Justice Anyadike, thereafter, ordered Malami to delete the contentious section from the constitution.
However, the National Assembly which enacted the contentious section of the Electoral Act filed an appeal at the Court of Appeal in Owerri against the Umuahia court judgment.
In its appeal, the NASS held that the high court erred in law because the clause in question was 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 objected to the provision of Section 84 (12). He later asked the National Assembly to amend the section of the Act, a request rejected by the lawmakers.
And dissatisfied by the president’s request, the PDP, on its own, dragged President Buhari before a Federal High Court 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 would make the provision inoperative pending the resolution of the motion on notice for interlocutory injunction.
The PDP’s grouse was hinged on the fact that having assented to the Bill February 25, 2022, President Buhari 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, ordered defendants in the suit to suspend all actions on any attempt to alter the Electoral Act.