Electoral Act Clause 84: Appeal Court Restrains Malami, Others from Frustrating Appeal

*Permits PDP to join case against deletion

*Aspirations of Buhari’s appointees still dicey
Chuks Okocha and Alex Enumah in Abuja

The Owerri Division of the Court of Appeal has restrained the Attorney General of the Federation (AGF) and Minister of Justice, Abubakar Malami, and others from taking any steps to frustrate the hearing of an appeal against a judgement mandating the AGF to delete Section 84 (12) from the amended Electoral Act.

A three-member panel of the court, led by Justice Rita Nosakhare Pemu, in a ruling, granted the Peoples Democratic Party (PDP) permission to appeal, as an interested party, against the March 18, 2022 judgement by Justice Evelyn Anyadike of the Federal High Court, Umuahia.

The appeal, if it succeeds, puts the 2023 aspirations of Malami, Minister of Transportation Chibuike Amaechi, and other political appointees in jeopardy, as they would be expected to resign their appointments before contesting for any office.

The appeal court, in the ruling delivered on April 7, and enrolled in possession by THISDAY in Abuja, also granted accelerated hearing in the appeal.

The ruling was on a motion, marked CA/OW/87m/2022, filed by PDP, with Chief Nduka Edede (plaintiff in the suit decided by Justice Anyadike) and the AGF as respondents.

According to the enrolled order, “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 colourisation, 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.”

The National Assembly had also indicated its intention to formally appeal the judgement by Anyadike.
Anyadike had in the March 18 judgement in the suit by Edede, marked FHC/UM/CS/26/2022, held that Section 18(12) of the amended Electoral Act was unconstitutional and should be struck down. The judge noted 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 were only to resign at least 30 days before the election.

The judge held that any other law that mandated such appointees to resign or leave office at any time before the 30 days provided in the constitution was unconstitutional and void to the extent of its inconsistency with the provisions of the constitution.

Anyadike then ordered the AGF to delete the said Section 18 (12) from the amended Electoral Act.
Section 84(12) of the Electoral Act provides, “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.”

PDP dragged 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, 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.

PDP also applied for an order of the court stopping the National Assembly from giving effect to 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 grouse of the PDP is that Buhari, having assented to the bill on February 25, 2022, could not 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.