How The Attorney-General Of The Federation Manipulated The Federal High Court To Issue Conflicting Orders On The Validity Of Section 84(12) Of Electoral Act, 2022

By Femi Falana SAN

A few months ago, the National Judicial Council sanctioned some High Court Judges for involving themselves in the issuance of conflicting ourt orders. In the same vein, the Nigerian Bar Association has referred the lawyers alleged to have engaged in filing the cases which led to the issuance of the conflicting court orders to the Legal Practitioners Disciplinary Committee. Notwithstanding the ongoing efforts of the authorities of the legal profession to sanitise the legal system another group of lawyers recently filed two cases at the Federal High Court on the constitutional validity of section 84 (12) of the Electoral Act 2022 after the same Court had granted an interim order in respect of the section of the law. Details of the three cases are set out below:

1 .SUIT NO FHC/ABJ/CS/247/2002:

PEOPLES DEMOCRATIC PARTY v PRESIDENT, FEDERAL REPUBLIC OF NIGERIA & 8 ORS On March 2, 2022, the People’s Democratic Party filed an Originating Summons at the Federal High Court sitting at Abuja and sought to stop President Buhari, 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) from tampering with section 84(1 2) of the Electoral Act, 2022 or any section of the Act on any ground whatsoever. The Plaintiff also filed two motions for interim injunction and interlocutory injunction.

On March 7, 2022, the presiding Judge, Inyang Ekwo J. granted the Plaintiff’s application ex parte and ordered as follows:

AN ORDER of INTERIM INJUNCTION restraining the 1 st, 2nd, 3rd, 4th, 5th, 6th,7th, 8th, 9th, 1 0th, 1 1th and 12th Defendants / Respondents by themselves or by their servants, agents, or privies from refusing to implement the duly signed Electoral Act or in any manner howsoever withholding the said Act from being put to use or failing to or refusing in any manner howsoever from enforcing the provisions of the said Electoral Act, 2022 including the provisions of Section 84(1 2) of the said Act pending the determination of the motion on notice for interlocutory injunction filed in this suit.

2. AN ORDER of INTERIM INJUNCTION restraining the 3rd, 4th, 5th, 6th,7th, 8th, 9th, 10th, 1 1th and 12th Defendants / Respondents by themselves or by their servants, agents or privies from implementing or in manner whatsoever, giving effect to the directive of the 1 st Defendant / Respondent to delete or remove the provisions of Section 84(1 2) of the Electoral Act, 202 on the ground that it is unconstitutional or at all or in any manner taking any step at the behest of the 1 st Defendant / Respondent or at all to render Section 84 of the Electoral Act, 2022 inoperative pending the determination of the Motion on Notice for interlocutory injunction filed in this suit.” While granting the order ex parte the judge directed the Plaintiff to serve the Originating Summons and the motions on the Defendants within 3 days and adjourned the hearing of the motion for interlocutory injunction to March 21 . In line with the directive of the Court the Originating Summons and the motions were served on the Defendants. Hearing of the motion for interlocutory injunction has been further adjourned to March 29, 2022.

2.SUlT NO FHC/lB/CS/32/2022: CHIEF OYEWOLE BOLANLE v ATTORNEYGENERAL OF THE FEDERATION

The Plaintiff took out an Originating Summons at the Ibadan Judicial Division of the Federal High Court to challenge the constitutional validity of section 84(1 2) of the Electoral Act, 2022 and prayed the Court to direct the Defendant to delete the section from the Act “with immediate effect”. By the Originating Summons the Plaintiff sought for the determination of the following questions:

1 . Whether by the combined effect of

Sections 1 (3), 6(6)(a) and (b), 66(1 )(f) 1 137(1)(g), and 1 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended); the provisions of Section 84(1 2) of the Electoral Act, 2022 can validly limit, remove, abrogate, disenfranchise, disqualify, and/or oust the constitutional right or eligibility of any political office or public office holder to vote or be voted for at any Convention or Congress of any political party for the purposes of nomination of such person or candidate for any election, where such person has “resigned, withdrawn or retired” from the said political or public office at least 30 days before the date of the election.

2. Whether by the combined effect of Sections 1 (3), 6(6)(a) and (b), 66(1 )(f), 1 137(1)(g), and 1 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended); the provisions of Section 84(1 2) of the Electoral Act, 2022 in so far as it seeks to limit, remove, abrogate, disenfranchise, disqualify, and/ or oust the constitutional right or eligibility of any political office or public office holder to vote or be voted for at any Convention or Congress of any political party for the purposes of nomination of such person or candidate for any election, where such person has “resigned, withdrawn or retired” from the said political or public office at least 30 days before the date of the election, is not unconstitutional, ultra vires and inconsistent with the Constitution, invalid and therefore null and void in its entirety.

Upon the determination of the above questions, the Plaintiff sought the following reliefs:

1. A Declaration that Section 84(1 2) of the Electoral Act, 2022 cannot validly and constitutionally limit, remove, abrogate, disenfranchise, disqualify, and/or oust the constitutional right or eligibility of any political office or public office holder to vote or be voted for at any Convention or

Congress of any political party for the purposes of nomination of such person or candidate for any election, where such person has “resigned, withdrawn or retired” from the said political or public office, at least 30 days before the date of the election.

2. A Declaration that the provisions of Section 84(12) of the Electoral Act, 2022 which seeks, tends or purports to limit, remove, abrogate, disenfranchise, disqualify, and/or oust the constitutional right or eligibility of any political office or public office holder to vote or be voted for at any Convention or Congress of any political party for the purposes of nomination of such person or candidate for any election, where such person has ‘resigned, withdrawn or retired” from the said. political or public office, at least 30 days before the date of the election, is grossly ultra vires and inconsistent with Sections 6(6)(a) and (b), 66(1 1 07(1 )(f), 1  and 182(1)(g) of the

Constitution of the Federal Republic of Nigeria, 1999 (as amended) and therefore unconstitutional, invalid, illegal, null, void and of no effect whatsoever.

3. AN ORDER OF COURT nullifying and/ or setting aside Section 84(1 2) of the Electoral Act, 2022 for being unconstitutional, invalid, null and void to the extent of its inconsistency with the Section 66(1)(f), 1 137(1)(g), and 1 82(1 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
4. AN ORDER OF COURT directing and compelling the Defendant to FORTHWITH delete the provisions of Section 84(12) from the Electoral Act, 2022 with immediate effect.

The learned trial judge, U.N. Agomoh J. raised the issue of jurisdiction of the Court and the locus standi of the Plaintiff to maintain the action suo motu and invited the parties to address her. Even though the Defendant was not represented the

Plaintiff’s counsel addressed the Court. In the ruling delivered on March 17, 2022 the Judge held the Plaintiff had no locus standi and that the Court lacked jurisdiction to entertain the case.

Consequently, the case was struck out by the Judge.

3. SUIT NO FHC/UM/CS/26/2002: CHIEF NDUKA EDEDE V ATTORNEY-GENERAL OF THE FEDERATION

In the Originating Summons filed at the Umuahia Judicial Division of the Federal High Court the Plaintiff challenged the constitutional validity of section 84(1 2) of the Electoral Act, 2022 and prayed the Court to direct the Defendant to delete the section from the Act ‘with immediate effect”. The Plaintiff instituted this suit under the Originating Summons Procedure wherein he applied for the determination of the following questions:

1 . Whether by the combined effect of Sections 1 (3), 6(6)(a) and (b), 66(1 )(f) 1 137(1 (g), and 1  of the Constitution of the Federal Republic of Nigeria, 1999 (as amended); the provisions of Section 84(1 2) of the Electoral Act, 2022 can validly limit, remove, abrogate, disenfranchise, disqualify, and/or oust the constitutional right or eligibility of any political office or public office holder to vote or be voted for at any Convention or Congress of any political party for the purposes of nomination of such person or candidate for any election, where such person has “resigned, withdrawn or retired” from the said political or public office at least 30 days before the date of the election.

2. Whether by the combined effect of Sections 1 (3), 6(6)(a) and (b), 66(1 )(f), 1 137(1)(g), and 1 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended); the provisions of Section 84(1 2) of the Electoral Act, 2022 in so far as it seeks to limit, remove, abrogate, disenfranchise, disqualify, and/ or oust the constitutional right or eligibility of any political office or public office holder to vote or be voted for at any Convention or Congress of any political party for the purposes of nomination of such person or candidate for any election, where such person has “resigned, withdrawn or retired” from the said political or public office at least 30 days before the date of the election, is not unconstitutional, ultra vires and inconsistent with the Constitution, invalid and therefore null and void in its entirety”.

The Plaintiff then prayed the Court to make the following declarations and orders to wit:

“1 . A Declaration that Section 84(1 2) of the Electoral Act, 2022 cannot validly and constitutionally limit, remove, abrogate, disenfranchise, disqualify, and/or oust the constitutional right or eligibility of any political office or public office holder to vote or be voted for at any Convention or Congress of any political party for the purposes of nomination of such person or candidate for any election, where such person has “resigned, withdrawn or retired” from the said political or public office, at least 30 days before the date of the election.

2. A Declaration that the provisions of Section 84(12) of the Electoral Act, 2022 which seeks, tends or purports to limit, remove, abrogate, disenfranchise, disqualify, and/or oust the constitutional right or eligibility of any political office or public office holder to vote or be voted for at any Convention or Congress of any political party for the purposes of nomination of such person or candidate for any election, where such person has ‘resigned, withdrawn or retired” from the said. political or public office, at least 30 days before the date of the election, is grossly ultra vires and inconsistent with Sections 6(6)(a) and (b), 66(1 1 07(1 )(f), 1  and 182(1)(g) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and therefore unconstitutional, invalid, illegal, null, void and of no effect whatsoever.

3. AN ORDER OF COURT nullifying and/ or setting aside Section 84(1 2) of the Electoral Act, 2022 for being unconstitutional, invalid, null and void to the extent of its inconsistency with the Section 66(1)(f), 1 07(1 137(1 and 1 82(1 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
4. AN ORDER OF COURT directing and compelling the Defendant to FORTHWITH delete the provisions of Section 84(12) from the Electoral Act, 2022 with immediate effect.”

The two lawyers representing the Plaintiff and the Defendant jointly attacked the provision of section 84(12) of the Electoral Act 2022 and prayed the presiding Judge, the Honourable Justice E.A, Anyadike to grant the reliefs sought in favour of the Plaintiff. In her judgment delivered a few ministers after the adoption of the written addresses and oral submissions of both Counsel, the Judge granted all the reliefs of the Plaintiff and ordered the Defendant to delete the illegal section of the Electoral Act “with immediate effect”. The judgment was delivered on March 18, 2022.

From the foregoing, it is crystal clear that even though the two lawyers who represented the Plaintiffs in Suit Nos FHC/ 1B/CS/32/2022: CHIEF OYEWOLE BOLANLE v ATTORNEY-GENERAL OF THE FEDERATION and FHC/UM/CS/26/2002:

CHIEF NDUKA EDEDE v ATTORNEYGENERAL OF THE FEDERATION are based in Ibadan, Oyo State and Umuahia, Abia State, the two cases filed by them were similar in every material particular. Hence, the two questions formulated for determination and the four similar reliefs sought by their clients in the two cases filed at the Ibadan and Umuahia judicial divisions of the Federal High Court are in pari material. Even though the Plaintiffs are different the Attorney-General of the Federation is the sole defendant in both cases. It is doubtful if the similarities in the two cases can be said to be mere coincidence.

However, the Attorney-General of the Federation, the Defendant in both cases did not draw the attention of both Ibadan and Umuahia Judicial Divisions of the Federal High Court to the fact that the Abuja Judicial Division of the same Court had, on March 7, 2022, restrained himself, President Buhari, National Assembly and the Independent National Electoral Commission from refusing to implement the provisions of Section 84(12) of the Electoral Act, 2022. Neither did the Attorney-General disclose to the Umuahia Judicial Division of the Federal High Court that the Ibadan Judicial Division had struck out a similar case for want of locus standi. In any case, since the case pending at the Ibadan Judicial Division of the Federal High Court was well reported in the print and electronic media the Judge sitting in the Umuahia Judicial Division ought to have struck out the fresh case before her as it constituted a gross abuse of court process. It is pertinent to note that while the Attorney-General of the Federation pretended not to know about the order of interim injunction granted by the Abuja Judicial Division of the Federal High Court, he has announced the plan of the Federal Government to comply with the judgment delivered in the Umuahia case as soon as possible. However, if the AttorneyGeneral goes ahead to delete section 84(12) of the Electoral Act he would be liable to be committed for contempt ex facie curiae as the Abuja Judicial Division of the Federal High Court has restrained him and other defendants from “from enforcing the provisions of the said Electoral Act, 2022 including the provisions of Section 84(1 2) of the said Act pending the determination of the motion on notice for interlocutory injunction.”

We submit, without any fear of contradiction, that unless the valid and subsisting order of the Abuja Judicial Division of the Federal High Court is set aside either by the trial Judge or an Appellate Court the Attorney-General of the Federation cannot DELETE section 84(12) of the Electoral Act. It is trite that the the Attorney-General cannot choose and pick the orders of court to obey or disobey. More so, when it is undoubtedly clear that the Attorney-General deliberately set out to manipulate the Federal High Court to issue conflicting orders in a desperate move to annul section 84(12) of the Electoral Act.

No doubt, this is the first time in the entire history of Nigeria that the office of the Attorney-General of the Federation has engaged in forum shopping for favourable orders of the Federal High Court or any other Court. It is high time the dangerous manipulation of the Federal High Court was stopped as the nation prepares for the 2023 General Elections.