Section 84(12): Court asks PDP to reassess its stand on suit against FG

A Federal High Court (FHC), Abuja, on Monday, asked the Peoples Democratic Party (PDP) to take a critical look at the development in its suit to know if it could still continue with the case.

Justice Inyang Ekwo gave the advice after counsel to the PDP, Joseph Daudu, SAN, informed the court that based on the Court of Appeal judgment sitting in Abuja, the FHC could continue with the matter before it.

The News Agency of Nigeria (NAN) reports that the PDP had sued the President, the Attorney-General of the Federation (AGF), Senate President, Speaker of the House of Representatives and Clerk of National Assembly.

It also sued Senate Leader, House of Representatives Leader and the Independent National Electoral Commission (INEC) as 1st to 8th defendants respectively.

Others include Deputy Senate President, Deputy Speaker of House of Representatives, Deputy Senate Leader and Deputy Leader of the House of Representatives as 9th to 12th defendants in the matter.
The court had also joined Allied People’s Movement (APM) as 13 defendant in the suit marked: FHC/ABJ/CS/247/2022.

The PDP had challenged the legality or otherwise of the National Assembly tinkering with Section 84(12) of the Electoral Act, after it had been signed into law by President Muhammadu Buhari.

Amidst debate about the subject matter, a Federal High Court, Umuahia in Abia and presided over by Justice Evelyn Anyadike, on March 18, ordered the AGF to delete Section 84(12) of the Act.

Anyadike, in the judgment, held that the section was “unconstitutional, invalid, illegal, null, void and of no effect whatsoever and ought to be struck down as it cannot stand when it is in violation of the clear provisions of the Constitution.”

Anyadike held that Sections 66(1)(f), 107(1)(f), 137(1)(f), and 182(1)(f) of the 1999 Constitution already stipulated that appointees of government seeking to contest elections were only to resign at least 30 days to the date of the election.

But the Court of Appeal in Abuja, on May 11, vacated the judgement of the Federal High Court in Umuahia, Abia State, which voided the provision of Section 84(12) of the Electoral Act, 2022.

The appellate court, in a unanimous decision by a three-member panel of justices led by Justice Hamma Akawu Barka, held that the person that instituted the matter at the lower court, Mr Nduka Edede, lacked the locus standi to do so.

The appellate court, which invoked its constitutional powers to look at the substantive suit on its merit, however held that Section 84(12) was unconstitutional and in breach of Section 42 (1)(a) of the 1999 Constitution (as amended), stressing that the section denied a class of Nigerian citizens their right to participate in election.

When the matter was called on Monday, Justice Ekwo told Daudu that he was aware that an Umuahia division of the court gave a judgment in relation with the subject matter.

“I have also taken judicial notice that the plaintiff (PDP) entered an appeal on the matter and the Court of Appeal has delivered its judgment. What is the position?” the judge asked
Daudu responded that based on the judgment delivered by the appellant court, the coast was clear for Ekwo to continue with the proceedings.

The senior lawyer said that the Appeal Court judgment delivered by Justice Barka could be divided into three prongs.

He said the first prong was that the court found out that Mr Edede who filed the case in Umuahia court had no locus standi (legal right) to do so and the matter was struck out.

He said though the Appeal Court said it was not the final court, there were two other issues to be determined.

He said one of the issues was whether Section 84(12) is in conflict with some of the provisions in the constitution like Sections 66, 177, 182, etc.

He informed that the Court of Appeal held that there was a different between a political appointee and a public servant.

He said the two, therefore, did not collide.

“So there is no conflict,” he said.

He said the court also ruled on the third point on whether the constitutional and fundamental rights of political appointees were affected.

Daudu explained that the appellant court held that their rights would have been affected if the court was dealing with life issues.

The lawyer, however, said Justice Ekwo was not bound by dead issues but life issues, and that since there was no life issues about fundamental rights before the court, the judge should proceed with the matter.

“This case is back to square one. These parties are different from that in Umuahia. So the coast is clear for this court to commence hearing.

“The case has turned out to be as if it has never been heard,” he argued.

The judge then directed Daudu to reassess all the applications in his care based on the development about the matter and take a position.

“Daudu, you need to look at the processes again and when you are ready, I am available so that we know where the matter is going,” Ekwo said.

On his part, counsel to the 1st and 2nd defendants (president and AGF), Oladipo Opeseyi, SAN, told the court that a preliminary objection was filed to oppose the PDP’s application, among others motions.

He said he had a certified true copy of the Appeal Court judgment which he intended to avail the court with.

Opeseyi said though he was yet to be served with any application based on the observations raised by Daudu in open court for him to know if he would reply him, he told the court that the appellant on appeal was also the plaintiff in the matter before the court.

Justice Ekwo, who directed the defendants in the suit to respond to the PDP submission, adjourned the matter until May 24 for hearing.

NAN reports that the Federal Government had also on April 29 filed a suit at the Supreme Court, seeking an interpretation of Section 84(12) of the Electoral Amendment Act, 2022.

In the suit filed by the president and the Attorney-General of the Federation (AGF), who are the plaintiffs, listed the National Assembly as the sole defendant.

They are seeking an order of the apex court to strike out the section of the Electoral Act, saying it is inconsistent with the nation’s Constitution.