A Federal High Court, Abuja, has dismissed a suit seeking an order restoring to full operation the 1963 Republican Constitution in Nigeria and repealing the 1999 Constitution (as amended).
Justice Inyang Ekwo, in a judgment, dismissed the suit for being incompetent.
Justice Ekwo held that 1963 Republican Constitution is not an existing law, and no action could be founded to it as the applicants had done.
The News Agency of Nigeria (NAN) reports that the applicants are King Oziwe Amba Albert (Regent King of Diobu Kingdom, Delta Nigeria), Chief Wombo Bulus, Otunba Karim Sekanobi, Chief James Onyi Kokomi, Comrade Danjuma Modu (For themselves and representing the Peoples Confederal Constituents Assembly of Nigeria (PECCAN)) and Centre for Probity and Democratic Studies as 1st to 6th applicants respectively.
The applicants had sued the President of the Senate and National Assembly of Nigeria; Clerk of the National Assembly and Chairman Senate Committee on Constitution Amendment as 1st to 3rd respondents in the suit marked: FHC/ABJ/CS/18/2022.
The suit was instituted pursuant to Order II Rule 1 of the Fundamental Rights (Enforcement Procedure) Rules, 2009 (FREPR 2009); Chapter IV, Sections 35, 36, 42, 46, 315 and Transitional Constitution Decree No. 24 of 1999; and Sections 1 and 140 of the 1963 Republican Constitution of Nigeria.
It was also filed pursuant to Articles 13, 14, 20 and 21 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, LFN 2004 (hereinafter referred to as ACHPRRE Act 2004),
And Articles 1, 2, 7, 21 and 30 of the United Nations Universal Declaration of Human Rights (hereinafter referred to as UNUDHR), International Covenant on Civil and Political Rights (hereinafter referred to as ICCPR) and under the inherent jurisdiction of the court.
They described the 1999 Constitution as an “expired military Decreed Transitional Constitution.”
Giving eight reliefs, the applicants, who described 1963 Republican Constitution as “peoples’ made” constitution, prayed the court to declare that the continued use and continuing amendments of the “expired military decreed Transitional Constitution, No. 24 of 1999,” at the military transfer of power to civilian democratic rule since 1999, had created a constitutional vacuum.
That it had forced “majeure 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 signatories.”
They, therefore, sought “an order compelling the NASS to re-adopt, return and restore to full operation, with necessary amendment, 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.
“An award of N1 trillion in damages against the respondents for their illegal and reckless 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, recolonise and seizure of the applicant's protected rights to properties, wealth and natural resources for their personal and sectional/class gains.
“An order of perpetual injunction restraining the respondents from further organising, undertaking and engaging in any amendment to the long exhausted and expired military Decreed Transitional Constitution of Decree No. 24 of 1999.”
But the respondents, in a joint counter affidavit, faulted some paragraphs in the applicants’ affidavit.
They argued that contrary to their submission, the 1999 Constitution remains active and effective until it is repealed by the National Assembly.
In the preliminary objection filed, the respondents said the court lacked jurisdiction to entertain the suit.
They said the suit disclosed no reasonable cause of action or any cause of action at all against them.
The respondents, who submitted that the fundamental right enforcement procedure adopted by the applicants was inappropriate for the determination of the subject matter, added that the case was not initiated by due process of law.
According to them, it is in the interest of justice to strike out or dismiss the suit.
Delivering the judgment, Justice Ekwo said that the first thing to note in the case was that the applicants founded the action on Sections 33, 34, 35, 36 and 46 of the 1999 Constitution (as amended), and Order 2 Rule 1 of the FREPR 2009 in one breath.
“On another breath, they seek the same 1999 Constitution (as amended) to be declared null and void because it was brought into effect by the expired military decreed Transitional Constitution as cover”, he said.
The judge said it was a clear case where the applicants took advantage of the provisions of the 1999 Constitution in one breath and on the other breath, sought to have the same constitution declared null and void.
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He said they also brought the action pursuant to the provisions of the FREPR 2009 which is constitutional instrument made pursuant to the provisions of the 1999 Constitution which constitution they also sought to be declared null and void.
He said the applicants cannot be approbating and reprobating at the same time.
According to the judge, in law, such is not allowed in our jurisprudence.
“The applicants are barred by the doctrine of approbating and reprobating.
“The doctrine is about the prevention of inconsistencies.
“It is either the applicants accept the law against which they are acting against in toto or repudiate same.
“Simply put, this action cannot be allowed to stand, and I so hold”, he said while dismissing the case on this ground.
Justice Ekwo also noted that the applicants founded the case on the provisions of Sections 1 and 140 of the 1963 Republican Constitution.
He said they ought to know that the 1963 Republican Constitution does not exist.
“It actually ceased to exist upon the enactment of the 1979 Constitution and I refer to Section 274 thereof.
“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, citing previous cases.
He said upon the coming into force of the 1979 Constitution, the 1963 Constitution went into abeyance and would only apply to a cause of action that arose under it.
According to the judge, it can never be that a Sovereign State like Nigeria will have two constitutions operating contemporaneously.
“It needs to be stated firmly that the 1963 Republican Constitution is not an existing law, and no action can be founded to it as the applicants have.
“Founding this action on the provisions of the 1963 Republican Constitution demonstrates that the applicants are either willfully mischievous or unwittingly ignorant of the law.
“The effect of a repealed law has been stated by the court in no unmistaken terms.
“A repealed law no more has legal life as it does not exist any longer. It cannot be cited as if it still exists.
“It cannot be quoted side by side with an existing law as the counsel to the appellant did in the instant case.
“Therefore, for the avoidance of doubt, the repealed law such as the 1963 Republican Constitution has long ceased to be part of the corpus juris and must be treated as revoked or abrogated.
“In fact, it has since been removed from the statute book and thereby cannot form part of the existing law.
“That is why it cannot be found in the 1990, 2004 or 2010 Laws of the Federation.
“It is my conclusion at this point that, this action has fully collapsed thereby leaving no room for any other issue in this case to be considered and I so hold.
“I make an order dismissing this case for being incompetent. This is the order of this court”, the judge declared.
