Court declares appointment of FCC chair, scribe unconstitutional

…Refuses to grant order directing President to dissolve, reconstitute board

A Federal High Court in Abuja has made an order declaring the appointment of Mueeba Farida Dankaka and Barrister Mohammed Bello Tukur as chairman and secretary of the Federal Character Commission (FCC) respectively as unconstitutional.

Giving judgement in the amended originating summons filed by the plaintiff, Festus Oluwasanmi Onifade through his counsel, Adamson Adeboro (SAN), Justice Inyang Ekwo, however, refused to grant the orders in prayers 3 and 4 of the Originating Summons.

Justice Ekwo adduced the following reasons for his refusal to grant the  prayers for the dissolution and reconstitution of the Board of the FCC, to wit: the 4^th defendant’s (Dankaka’s) appointment was confirmed by the Senate on 2^nd June, 2020 for a term of five (5) years; and the 5^th defendant (Tukur) was reappointed on 12^th March, 2021 for a term of four (40 years (and) therefore  not eligible for another term at the expiration of the said term.

“I will therefore allow their respective tenures to run to an end.  This will allow the 1^st defendant ( President of the Federal Republic of Nigeria) sufficient time to comply with the provisions of the Constitution, Statute and statutory instrument concerning equitable  distribution of the appointment into the office of the Secretary and Executive Chairman  of the 3^rd defendant (FCC).

“This is the judgement of this court,” Justice Ekwo concluded the 29-page judgement delivered on November 22, 2023.

The plaintiff had formulated two questions for determination by the Court, to wit:

“1. Whether by the combined provisions of Sections 7 and 8 (10 and (20 (a), (b), and (c) of the Third Schedule, Part 1 of the Constitution of the federal Republic of Nigeria 1999 (as amended0 and Section 4 910 of the Subsidiary Legislation (Guiding Principles  and Formulae for the distribution of all Cadres of Posts) 1997 of the Federal Character Commission (establishment) Act 1995, the appointment of 4^th and 5^th respondents by the 1^st respondent and the confirmation of the said appointment  by the National Assembly as Chairman and Secretary of the Federal Character Commission is not a violation of the  Constitution and therefore inlwaful, unconstitutional, null and void ab initio.

“2. Whether by such appointment and continuous holding of office of 4^th and 5^th respondents is not inconsistent  with the provisions of Sectio 7 and 8(1) and (2)(a), (b), and (c) of the Third Schedule, Part 1 of the 1999 Constitution of the Federal republic of Nigeria (as amended), Section 4 (1) of the Subsidiary Legislation (Guiding Principles  and Formulae for the distribution of all Cadres of Posts) 1997 of the Federal Character Commission (establishment) Act 1995, and so renders their continuous stay in office unlawful, unconstitutional and of no effect.”

The plaintiff had sought five reliefs, to wit:

“1. A declaration that 1^st respondent is bound to observe and comply with the provision of the sections 7 and 8 (1), (2), (a), (b), (c) of the Third Schedules, Part 1 of the Constitution of the Federal Republic of Nigeria 1999 (as amended0 in the appointment of persons to the office of the Chairman and secretary of the Federal Character Commission.

“2. A declaration that the appointment by the 1^st respondent and the confirmation of the same by the National Assembly of the 4^th and 5^th respondents is unlawful, unconstitutional, null and void ab initio for non-compliance with sections 7 and 8 (1) and (2) (a), (b), and (c) of the Third Schedule, Part 1 of the 1999 Constitution of the Federal Republic of Nigeria (as amended), Section 4 (1) of the Subsidiary Legislation (Guiding Principles  and Formulae for the distribution of all Cadres of Posts) 1997 of the Federal Character Commission (establishment) Act 1995)

“3.  An order directing the 1^st respondent to immediately dissolve and reconstitute the board of the 3^rd respondent to reflect  Section 4 (1) of the Subsidiary Legislation (Guiding Principles  and Formulae for the distribution of all Cadres of Posts) 1997 of the Federal Character Commission (establishment) Act 1995 forthwith.

“4. An order directing the 1^st respondent to immediately appoint other persons into these positions in compliance with the provisions of the Constitution and the Act of National Assembly.

“5. Such further orders as this Honourable Court may deem to make in the circumstances of this case.”

The court had answered the question one of the plaintiff in the positive and question two partially in the positive.

In answering the question one of the plaintiff in the positive, the court held that the position of Secretary to the 3^rd defendant (FCC) and that of the Executive Chairman were the two most important positions recognized and given not just statutory functions but powers in Ss 2 (1) (a) and 9 (2) and (3) of the Federal Character Commission Establishment (FCCE) Act 2004, there ought to be equitable distribution in the appointments to the two posts between the northern and the southern parts of the country.

“The provisions of S.14 (30 of the 1999 Constitution (as amended), S.4 (1) (a) of the FCCE Act, 2004 and S. 4 of the Guiding Principles and Formulae for the distribution of all Cadres of Posts 1997 made pursuant to S.4 (1) (a) of the FCCE Act 2004 envisage this and that has to be.

“Therefore, I find that there has been a failure of the 1^st defendant to comply with the provisions of S. 14 (30 of the 1999 Constitution (as amended), S. 4 (1) (a) of the FCCE Act, 2004 and S. 4 of the Guiding Principles and Formulae for the Distribution of all Cadres of Posts, 1997 made pursuant to S. 4 (1) (a) of the FCCE Act, 2004,” Justice Ekwo held.

He held that “the plaintiff’s case succeeds on the merit and judgement is entered as follows:

“1. A declaration  is hereby made that the 1^st defendant is bound to observe and comply with the provision of Items 7 and 8 (1) and (20, Part I of the Third Schedule to the 1999 Constitution (as amended0 in the appointment of persons to the office of the Chairman and Secretary of the Federal Character Commission.

“2. A declaration is hereby made that the appointment by the 1^st defendant and the confirmation of the same by the National Assembly of the 4^th and 5^th defendants is unlawful, unconstitutional, null and void ab initio for non-compliance with Items 7 and 8 (1) and (2), Part I of the Third Schedule  to the 1999 Constitution (as amended, S. 4 (1) of the Guiding Principles and Formulae for the Distribution of all Cadres of Posts, 1997 of the Federal Character Commission (establishment, etc.) Act, 1995.

Recall that both the Chairman of the FCC Board and the Secretary are from Taraba and Kwara States respectively.