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Monday, October 2, 2023

Supreme Court strikes out Buhari, Malami’s suit against new Electoral Act


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The Supreme Court, on Friday, struck out the suit President Muhammadu Buhari and the Attorney-General of the Federation and Minister of Justice, Mr. Abubakar Malami, SAN, filed to void section 84(12) of the Electoral Act, 2022.

The apex court, in a unanimous decision by a seven-man panel of the Justices led by Justice Muhammad Dattijo, held that it lacked the jurisdiction to entertain the suit which it said amounted to an abuse of the judicial process.

It held that President Buhari was not a proper person to approach it with such suit, owing to the nature of reliefs that were sought.

President Buhari and Malami had in the suit marked SC/CV/504/2022, contended that section 84(12) of the Electoral (Amendment) Act, 2022, was inconsistent with the provisions of sections 42, 65, 66, 106, 107, 131, 137, 147, 151, 177, 182, 192 and 196 of the constitution as well Article 2 of the African Charter on Human and Peoples Rights.

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The Plaintiffs, among other things, sought “a declaration that the joint and or combined reading of Section 65, 66, 106, 107, 131, 137, 147, 151, 177, 182, 192 and 196 of the Constitution, the provision of Section 84 (12) of the Electoral Act, 2022 which also ignores Section 84(3) of the same Act, is an additional qualifying and/or disqualifying factors for the National Assembly, House of Assembly, Gubernatorial and Presidential elections as enshrined in the said constitution, hence unconstitutional, unlawful, null and void”.

“A declaration that having regard to the clear provision of section 1(3) of the Constitution read together with section 4 of the same Constitution, the legislative powers vested in the defendant do not permit or empower it to make any other law prescribing additional qualifying/disqualifying grounds for election to the national assembly, house of assembly, gubernatorial and presidential election outside the express constitutional qualification and disqualification provisions as already provided in each or all of sections 65, 66, 106, 107, 131, 137, 147, 151, 177, 182, 192 and 196 of the 1999 constitution of the Federal Republic of Nigeria (as amended), and without amendment to any of those sections is for the reason of inconsistency, unconstitutional and therefore null and void.

As well as, “An order nullifying the provision of Section 84 (12) of the Electoral Act, 2022 by application of the blue-pencil rule, for being unconstitutional, illegal, null and void and having been made in excess of the legislative powers of the defendant as enshrined in section 4 of the constitution (as amended).”

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Meanwhile, though the National Assembly was originally cited as sole Respondent in the matter, however, Rivers State, through the Speaker of its House of Assembly and its Attorney-General, subsequently applied and were joined as interested parties in the matter.

The National Assembly, through its lawyer, Dr. Kayode Ajulo, asked the Supreme Court to strike out the suit, accusing both President Buhari and Malami of abusing the judicial process.

He argued that President Buhari, having assented to the Electoral Act, he could not turn back to challenge its provisions in court.

“The crux of our objection is that the plaintiffs as constituted do not have the legal right to invoke the original jurisdiction of this court as provided for in section 232 (1) of the Constitution.

“It can only be invoked if there is a dispute between the President and the National Assembly, when there is a dispute on the issue of law.

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“There are other places where this issue can be ventilated. It is not in this court.

“It appears as if the President is suing himself, since he also assented to the Electoral Act in question.

“The suit ought to have been filed in the name of those appointees and in that case we would not have been in this court.

“What they have attempted to do is to use the name of the President to invoke the original jurisdiction of this court, in representative capacity”, Ajulo argued.

On its part, the Nigerian Bar Association, NBA, brought an application to be allowed into the case as amicus curiae (friend of the court).

The legal body, which said it was before the court to represent Nigerian citizens, also prayed the Supreme Court to dismiss the suit in public interest.

“It is our submission that there is no conflict between section 84(12) and any other section of the Electoral Act, the 1999 Constitution, as amended, or the African Charter on Human and Peoples Right.

“Your lordships should take note of the ill the said section is meant to cure. The essence of the section is to provide a level playing field for all Nigerians, such that political appointees should not use their office to advance their personal interests”, counsel for the NBA, Mr. Charles Mekunye, SAN, submitted.

Nevertheless, counsel for President Buhari and Malami, Mr. Lateef Fagbemi, SAN, urged the court to allow the appeal and nullify the controversial section which he said would deny political appointees the right to participate in election.

In its lead judgement that was prepared and delivered y Justice Emmanuel Agim on Friday, the apex court, upheld arguments of the Defendants and accordingly struck out the suit.

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