Court dismisses suit by Nigerians seeking re-adoption of 1963 Republican Constitution

A complaint asking for an order abolishing the 1999 Constitution (as modified) and bringing Nigeria’s 1963 Republican Constitution back into full force was dismissed by the Federal High Court in Abuja.

Justice Inyang Ekwo dismissed the case on the grounds of incompetence.

Justice Ekwo ruled that as the 1963 Republican Constitution is not a current legislation, no action could be based on it as the applicants had done.

According to a News Agency of Nigeria (NAN) report, the applicants are Centre for Probity and Democratic Studies, Chief Wombo Bulus, Otunba Karim Sekanobi, Chief James Onyi Kokomi, Comrade Danjuma Modu (for himself and representing the Peoples Confederal Constituents Assembly of Nigeria (PECCAN)), and King Oziwe Amba Albert (Regent King of Diobu Kingdom, Delta Nigeria).

 

The suit bearing the filing number FHC/ABJ/CS/18/2022 was filed by the applicants against the President of the Senate and National Assembly of Nigeria, the Clerk of the National Assembly, and the Chairman of the Senate Committee on Constitution Amendment.

Sections 1 and 140 of the 1963 Republican Constitution of Nigeria; Chapter IV, Sections 35, 36, 42, 46, 315 and Transitional Constitution Decree No. 24 of 1999; and Order II Rule 1 of the Fundamental Rights (Enforcement Procedure) Rules, 2009 (FREPR 2009) all served as the grounds for the action.

Additionally filed under Articles 13, 14, 20, and 21 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, LFN 2004 (hence ACHPRRE Act 2004),

The International Covenant on Civil and Political Rights (ICCPR) and Articles 1, 2, 7, 21 and 30 of the United Nations Universal Declaration of Human Rights (henceforth referred to as UNUDHR) are also covered by court inherent jurisdiction.

They called the 1999 Constitution a “transitional military decree that has expired.”

Giving eight reliefs, the applicants urged the court to rule that a constitutional vacuum had been created by the military transfer of power to civilian democratic rule in 1999 and the use and amendments of the “expired military decreed Transitional Constitution, No. 24 of 1999.”

That it had compelled “majore violation of the applicants’ minorities rights to belong to united country and be governed by the agreed terms of the union of Nigeria as contained in referral 1963 Republican Constitution and applicants’ fundamental rights to own and use their natural resources on their native land/region as protected under the African Charter on Human and Peoples’ Rights, UN Charter and International Covenant on Civil and Political Right to which the Federation of Nigeria is a member signatory.”

“An order compelling the NASS to re-adopt, return and restore to full operation with necessary amendments the partially military suspended and lifted foundational peoples’ made 1963 Republican Constitution for the unity, progress and peaceful co-existence of all ethnic nationalities including the applicants’ protected minorities rights in the 1963 Republican Constitution with necessary amendments,” they said.

“An award of N1 trillion in damages against the respondents for their illegal and careless dereliction, abandonment and abuse of their legislative duty in the use and engagement in unwarranted and unconstitutional amendment of the expired military Decreed Transitional Constitution as cover and instrument to oppress, dominate, recolonize and seizure of the applicants protected rights to properties, wealth and natural resources for their personal and sectional/class gains.”

“A perpetual injunction prohibiting the respondents from further planning, carrying out, or participating in any modification to the long-expired military decreed Transitional Constitution of Decree No. 24 of 1999.”

But the applicants’ affidavit contained several paragraphs that the respondents criticised in a combined reply affidavit.

Contrary to their argument, they maintained, the 1999 Constitution is still in force and in force until the National Assembly repeals it.

Respondents claimed in their preliminary objection that the court lacked authority to hear the case.

They maintained that there was neither a good cause of action against them nor any cause of action at all disclosed by the lawsuit.

The respondents said that the lawsuit was not started by due process of law and that the basic right enforcement approach used by the applicants was inadequate for determining the subject matter.

They contend that dismissal or strikeout of the lawsuit is in the best interests of justice.

In delivering the decision, Justice Ekwo pointed out that the petitioners based their action in one breath on Sections 33, 34, 35, 36, and 46 of the 1999 Constitution (as amended) and Order 2 Rule 1 of the FREPR 2009.

“On another breath, they seek to have the same 1999 Constitution (as amended) ruled invalid because it was implemented under the cover of the expired military decreed Transitional Constitution,” he stated.

The applicants clearly exploited the 1999 Constitution’s provisions in one breath and then sought to have the same constitution ruled invalid, the judge stated.

They also filed the lawsuit, he claimed, under the terms of the FREPR 2009, a constitutional instrument derived from the 1999 Constitution, which they also sought to have declared void.

The applicants cannot, he continued, be both approving and criticising at once.

The judge stated that such is illegal under our legal system.

The approbation and reprobating theory prohibits the applicants.

“The goal of the doctrine is to avoid contradictions.

Either the candidates reject the law they are acting against in its entirety or they accept it.

“To put it simply, this action cannot be allowed to stand and I so hold,” he declared, throwing out the case.

Judge Ekwo further pointed out that the applicants based their case on the Republican Constitution of 1963, Sections 1 and 140.

They should realise, he argued, that there is no Republican Constitution from 1963.

“Actually, it disappeared with the adoption of the 1979 Constitution; see Section 274 of that document.

Using earlier cases as examples, he observed, “In the same vein, the 1979 Constitution ceased to exist upon the coming into force of the 1999 Constitution (as amended) from the moment the said 1999 Constitution (as amended) took effect from 29th May, 1999.”

He said that the 1963 Constitution was put into slumber and would only apply to a cause of action that arose under it when the 1979 Constitution came into effect.

A Sovereign State like Nigeria cannot, the judgement said, have two constitutions in effect at the same time.

The 1963 Republican Constitution must be made very clear that it is not a law and that no action may be based on it as the applicants have.

“The fact that this action is based on the Republican Constitution of 1963 shows that the applicants are either knowingly ignorant of the law or purposefully malicious.

“The court has not misrepresented the effect of a repealed law.

A repealed law has no longer any legal force behind it. It is not possible to quote it as though it were still live.

In the present case, the appellant’s attorney quoted it side by side with an already-existing law.

Therefore, in order to be clear, a repealed statute, such the Republican Constitution of 1963, has long since been removed from the corpus juris and needs to be regarded as revoked or annulled.

Indeed, it has since been taken off the statutory book and is therefore not a part of the current legislation.

“That is the reason it is not contained in the Federation’s Laws of 1990, 2004 or 2010.

This activity has completely crumbled, in my opinion, and there is no more concern in this cause that has to be taken into account.

“This case is dismissed by me for incompetence. This is what this court orders,” the judge said.