Falana, Adegboruwa Fault Court on Deletion of Section 84 (12) from Electoral Act

Gboyega Akinsanmi

Two Senior Advocates of Nigeria (SANs), Mr. Femi Falana and Mr. Ebun-Olu Adegboruwa, have faulted the decision of a Federal High Court sitting in Umuahia, the Abia State capital, ordering the deletion of Section 84 (12) of the amended Electoral Act.

In separate statements issued yesterday, the senior lawyers raised pertinent questions about the judgment, noting that the decision of the court was a great error.
The presiding judge, Justice Evelyn Anyadike had on Friday held that the section was unconstitutional, invalid, illegal, null, void and of no effect whatsoever and cannot stand, as it is in violation of the clear provisions of the Constitution.

Anyadike had, consequently, ordered the Attorney General of the Federation, Mr. Abubakar Malami to immediately delete Section 84 (12) of the amended Electoral Act.

Responding to the decision of the court yesterday, Falana argued that the learned trial judge fell into a great error.
Falana, a former President of West African Bar Association (WABA), pointed out that sections 66 (1) (f), 107(1) (f),137 (1) (f) and 182 (1) (f) of the Constitution relied upon by his lordship required persons employed in the public service of either the federal government or state governments.

Specifically, the senior advocate said: “Each of the aforesaid sections provides that no person shall be qualified for election into the Senate or House of Reps if: (f) he is a person employed in the public service of the Federation or of any State and has not resigned, withdrawn or retired from such employment 30 days before the date of election.”

Falana argued that by virtue of Section 318 of the 1999 Constitution,  political appointees “are not included in the list of persons employed in the public service. To that extent, Section 84 (12) of the Electoral Act was annulled on a very faulty ground.

“No doubt, the judge would have dismissed the case if his attention had been drawn to the cases of Dada v. Adeyeye (2005) 6 NWLR (Pt. 920) 1 at 19 ASOGWA v. Chukwu (2003) 4 NWLR (Pt. 811) 540 Ojonye V. Onu & ORS (2018) LPELR-44223) where the appellate courts have held that political appointees or political office holders are not public servants as provided for under the Constitution,” Falana said.

Supporting Falana’s position, Adegboruwa argued that the Electoral Act “is an Act of the National Assembly. How can you nullify an Act without joining the institution that made the Act, so that they can be heard concerning what they did?

“When a defendant (federal government) rejoices over a judgment delivered against it as a party, then you know there is a problem in Nigeria. Let the National Assembly, the political parties and NGOs appeal against the judgment as interested parties,” Adegboruwa said.

He rhetorically asked: “Why do you want to hold on to your office as a political appointee and at the same time be a candidate in an election? May Nigeria not happen to us in this way?”