The Abuja Division of the Federal High Court has dismissed a suit seeking an order restoring the 1963 Republican Constitution in Nigeria to full operation and repealing the 1999 Constitution (as amended).

Justice Inyang Ekwo, in a judgment, dismissed the suit for being incompetent.

The judge held that the 1963 Republican Constitution is not an existing law. 

The applicants are Oziwe Amba Albert (regent king of Diobu Kingdom, Delta), Wombo Bulus, Otunba Karim Sekanobi, James Onyi Kokomi, Danjuma Modu (for themselves and representing the Peoples Confederal Constituents Assembly of Nigeria (PECCAN)) and Centre for Probity and Democratic Studies as the first to sixth defendants, respectively.

The applicants had sued the Senate president and National Assembly of Nigeria, clerk of the National Assembly, and chairman of the Senate Committee on Constitution Amendment as 1st to 3rd respondents in the suit marked: FHC/ABJ/CS/18/2022.

They described the 1999 Constitution as an “expired military Decreed Transitional Constitution.” Giving eight reliefs, the applicants, who described the 1963 Republican Constitution as a “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 the 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.”

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” and an award of N1 trillion in damages.

However, in a joint counter affidavit, the respondents faulted some paragraphs in the applicants’ affidavit. They argued that contrary to their submission, the 1999 Constitution remains active and effective until the National Assembly repeals it. 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 determining 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, Mr Ekwo said 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,

He said they also brought the action pursuant to the provisions of the FREPR 2009, which is a 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 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.” 

While dismissing the case on this ground, the judge noted that the applicants founded the case on the provisions of sections 1 and 140 of the 1963 Republican Constitution. He said they should know that the 1963 Republican Constitution does not exist.

“It is my conclusion at this point that this action has fully collapsed, thereby leaving no room for any other issue in this cause 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.

(NAN)