Odidi Bello Dual Citizenship Judgement March 10, 2007

IN THE FEDERAL HIGH COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

ON WEDNESDAY THE I4TH DAY OF FEBRUARY, 2007

BEFORE HONOURABLE JUSTICE A. I. CHIKERE JUDGE

SUIT NO. FHC/ABJ/CS/28/07

         BETWEEN

        

          1.  PROF. ISA ODIDI                                                  ]

          2.  HON. OLUWAFOLAJIMI AKEEM BELLO           ]

          3.  NEW DEMOCRATS PARTY                                 ]……PLAINTIFFS

        

         AND

        

          I.  INDEPENDENT NATIONAL ELECTROL              ]

              COMMISSION (INEC)                                            ]

          2.  PROFESSOR MAURICE IWU                              ]

              (CHAIRMAN INDEPENDENT NATIONAL            ]

              ELECTORAL COMMISSION)                                ]……DEFENDANTS  

        

        

         JUDGEMENT

        

         By an Originating Summons filed on 26/1/07 the Plaintiffs formulated 2

         questions for determination by this Court as follows:-

        

        1.  Whether by virtue of combined provisions of Sections 25, 28 and 137

             of the Constitution of the Federal Republic of Nigerian, 1999 the

             Plaintiffs who are Nigeria citizens by birth but have dual nationalities

             are qualified to contest the position of President and Vice President

             respectively of the Federal Republic of Nigeria on the Platform of

             New Democrats Political Party in the 2007 General Election.

 

         2.  Whether disqualification of the Plaintiffs by the Defendants from

              contesting the position of President and Vice President of the Federal

              Republic of Nigeria respectively is constitutional, Iawful and legal       

              having regard to the provisions of Section 25, 28 and 137 of the

              Constitution of Federal Republic of Nigeria, 1999.

        

         And claimed 5 reliefs thus;-

 

         1.  A declaration that the Plaintiffs are qualified to contest for the

              positions of President and Vice President of the Federal Republic of

              Nigeria.

        

         2.   A declaration that the decision of the Defendants disqualifying the

              Plaintiffs from contesting the aforesaid position is unconstitutional.

              illegal, null and void.

        

         3.   An Order setting aside the decision of the Defendants disqualifying

              the Plaintiffs on the ground that same is unconstitutional, null and

              void.

        

         4.   An Order of perpetual injunction restraining the Defendants from

              disqualifying or further disqualifying the Plaintiffs from contesting the

              2007 Presidential Election.

        

         5.   An Order mandating the Defendants to clear the Plaintiffs and make

              them eligible to contest.

        

         The application is supported by a 20 paragraphs affidavit sworn to by one of

         the Plaintiffs, Professor Isa Odidi and 2 documents annexed as Exhibit A

         and B respectively, 10 paragraphs affidavit of urgency also sworn by same

         deponent.

        

         The Defendants entered appearance on 2/2/07, but did not file any counter-

         affidavit nor filed a response to the written address of Plaintiffs’ counsel

         served on them on 7/2/06 through one Jerry T. Akaazua of legal Department

         INEC Headquarters. Kahir Bala Esq. represented the Defendants on 5/2/07

         when Court Ordered parties to file written arguments.

        

         The written address of the Plaintiffs as filed by Chude Ike Franklin Esq. of

         counsel is dated 5/2/07 but filed on 6/2/07. Arguing counsel referred Court

         to Section 25, 28 and 137 of the 1999 Constitution and urged on Court to

         interpret same as it relates to the eligibility of the 1st and 2nd Plaintiffs’ to

         contest the 2007 elections.          

        

         Counsel argued that 1st and 2nd Plaintiffs are Nigerians by birth from

         Katsina and Lagos State respectively who have acquired the citizenship of

         Canada, USA respectively. That the 1st and 2nd Plaintiffs belong to the New

         Democrats Party and were duly cleared to run as President and Vice

         Presidential aspirants respectively. Counsel stated that 1st and 2nd Plaintiffs

         appeared on 23rd and 24th January, 2007 for screening by INEC whereby

         they were purportedly disqualified based on their dual citizenship.

        

         Counsel contended that a Nigerian by birth does not stand disqualified from

         contesting election on ground that he has dual citizenship and in support

         cited the case of Dr. Willie Ogbeide vs Mr. E. Arigbe Osula & 3 ors [2004]

         12 NWLR part 886 page 86 at 138.

        

         Counsel contended that the words of Sections 25. 28 and 137 (1) (a) are

         clear and unambiguous and urged Court to give them their ordinary natural

         and grammatical construction and that the present case is in all fours with

         the cited case of Honourable Dr. Willie Ogbeide vs OsuIa. Counsel finally

         urged Court to grant Plaintiffs application.

        

         In paragraphs 5.6, 7,9, 10, 11 12, 14, and 15 of affidavit deponent averred

         thus;—

        

         5.    That the 2nd Plaintiff and myself are members of the 3rd Plaintiff a

              duly Registered Political Party in Nigeria.

        

         6.   That in furtherance of the above the 2nd Plaintiff and myself were

              nominated as the Vice president and President respectively of the 3rd

              Plaintiff.

        

         7.   That further to the above we obtained verification clearance forms

              from the 1st Defendant for the purpose to the said election. The

              photocopy of the clearance form CF001 of the 2nd plaintiff is annexed

              and marked as Exhibit A.

        

         9.   That as part of its role, the 1st Defendant directed all aspirants for the

              offices of President and Vice President of the Federal Republic of

              Nigeria to appear before it for a verification exercise between Monday

              22,/1/07 and Wednesday 24/1/07. A photocopy of public notice of the

              1st Defendant dated 22/1/07 is hereby annexed and marked as Exhibit

              B.

 

         10. That on the 23rd day of January, 2007 the 2nd Plaintiff and myself met

             with a panel constituted by the 1st Defendant for that purpose.

        

         11. That we were informed by the members of the panel that we would

              not he able to contest for the office of the President and Vice

              President because of our dual citizenship.

        

         12.  that on the 24/1/07, the 2nd Plaintiff and myself with the officials of

              the legal department of the 1st Defendant who further informed us that

              the provisions of Section 28 and 137 of the Constitution of the Federal

              Republic of Nigeria disqualified us.

        

         14.  that I am a Nigerian citizen by birth and was born in Katsina, Katsina

              State while the 2nd Plaintiff is also a Nigeria from Lagos in Lagos

              State of Nigeria.

        

         15.  That we both acquired the citizenship of Canada and United States of

              America respectively.

        

         Section 25,  28 and 137 of the 1999 Constitution or the Federal Republic of

         Nigeria provides thus;—

 

         Section 25 (1) The following persons are citizens of Nigeria by birth,

         namely

        

         (a)  Every person born in Nigeria before the date of independence, either

              of whose parents or any of whose grandparents belongs or belonged to

              a community indigenous to Nigeria.

        

         Provided that a person shall not become a citizen of Nigeria by virtue of this

         section if neither of his parents nor any of his grandparents was born in

         Nigeria;

 

           (b)  Every person horn in Nigeria after the date of independence either

                of whose parents or any of whose grandparents is a citizen of

                Nigeria; and

 

           (c)  Every person born outside Nigeria either of whose parents is a

                citizen of Nigeria.

 

         (2)  In this Section, "the date of independence” means the 1st day of October,

           1960.

                

         Section 28

         28-  (1) Subject to the other provisions of this Section, a person shall forfeit

            forthwith his Nigerian Citizenship if, not being a citizen of Nigeria by

            birth, be acquires or retains the citizenship or nationality of a Country.

            other than Nigerian, of which he is not a citizen by birth.

        

            (2)Any registration of a person as a citizen of Nigeria or the grant of a

            certificate of naturalization to a person who is a citizen of a country other

            than Nigeria at the time of such registration or grant shall, if he is not a

            citizen by birth of that other country, be conditional upon effective

            renunciation of the citizenship or nationality of that other country within

            a period of not more than twelve months from the date of such

            registration.

         

         Section 137

 

         137(1) A person shall not be qualified for election to the office of President

         if—

         (a)  subject to the provisions of Section 28 of this Constitution, he has

         voluntarily acquired the citizenship of a country other than Nigeria or,

         except in such cases as may be prescribed by the National Assembly, he has

         made a declaration of allegiance to such other country; or

         (b)  He has been elected to such office at any two previous elections; or

         (c)  Under the law in any part of Nigeria, he is adjudged to be a lunatic or

              otherwise declared to he of unsound mind; or

         (4)  he is under a sentence of death imposed by any competent Court of law

         or tribunal in Nigeria or a sentence of imprisonment or fine for any offence

         involving dishonesty or fraud (by whatever name called) or for any other

         offence, imposed on him by any Court or tribunal or substituted by a

         competent authority for any other sentence imposed on him by such a Court

         or tribunal; or

        

         (e)  within a period of less than ten years before the date of the election to the

         office of President he has been convicted and sentenced for an offence

         involving dishonesty or he has been found guilty of the contravention of the

         Code of Conduct: or

        

         (f)  he is an undercharged bankrupt, having been adjudged or otherwise

         declared bankrupt under any law in force in Nigeria or any other country; or

        

         (g)  being a person employed in the civil or public service of the Federation

         or of any State, he has not resigned, withdrawn or retired from the

         employment at least thirty days before the date of the election; or

        

         (h) he is a member of any secret society; or

        

         (i)   he has been indicted for embezzlement or fraud by a Judicial Commission

         of Inquiry or an Administrative Panel or lnquiry or a Tribunal set up under

         the Tribunals of Inquiry Act, a Tribunals of Inquiry Law or any other law by

         the Federal or State Government which indictment has been accepted by the

         Federal or State Government, respectively; or

        

         (j)  he has presented a forged certificate to the Independent National Electoral

         Commission.

        

         (2) Whether in respect of any person who has been

        

         (a)  adjudged to be a lunatic;

        

         (h)  declared to be of unsound mind;

        

         (c)  sentenced to death or imprisonment; or

        

         (d)  adjudged or declared bankrupt,

        

         any appeal against the decision is pending in any Court of law in accordance

         with any law in force in Nigeria, subsection (1) of this Section shall not

         apply during a period beginning from the date when such appeal is lodged

         and ending on the date when the appeal is finally determined or, as the case

         may be. the appeal lapses or is abandoned, whichever is earlier.

        

         In the case of Ogbeide vs Osula [2004] 12 NWLR part 886 page 86 at 138

         Adeniji (JCA) Justice Court of Appeal delivering lead Judge held as follows

         at page 127.

        

         B.   Section 29 deals with the issue of renunciation of a persons Nigerian

                citizenship while Section 25 deals with categories of Nigerian

                citizens. In other words, a person who is a citizen of Nigeria by birth

                cannot have such citizenship forfeited or become ineligible to

 

         C.    contest such elections under any circumstances even where Section

                65(1) is read with Section 1 37, a person who is not a citizen of

                Nigeria can he so registered, but where he is not a citizen of that other

                country by birth, his registration will be conditioned on the

                renunciation of his citizenship of that other country. In other words,

                renunciation of

        

         D.    citizenship does not apply to a citizen of this country by birth.

                The tribunal however held on page 121 paragraph 2 of the record that

                a Nigerian citizenship by his acquisition as the citizenship of another

                country, he would stand disqualified from being a member of the

        

         E.     National Assembly if he holds such dual citizenship or has subscribed

                 to an oath of allegiance to any other country. That I must say with

                 due respect, is not contained in the Section under scrutiny. What one

                 can make of that Section read with Sections 25, 26 and 27 of the 1999

                 Constitution is that a citizen of this country by birth never loses his

                 citizenship even where he holds dual citizenship of another country

                 and cannot be disqualified from contesting election into the House of

                 Representative for reasons only that he holds such dual citizenship.

        

         Section 137 provides for instance of disqualification while section 28 deals

         principally with the question of dual citizenship. By the decision of His

         Lordship Adeniji (JCA) Justice Court of Appeal page 127, "a person who is

         a citizen of Nigeria by birth cannot have such citizenship forfeited or

         became ineligible to contest election under any circumstance even where

         Section 65(1) in the present case Section 28 is read together with section 137

         of 1999 Constitution.

       

         The above case is in all fours with the present suit and by the doctrine of

         stare decises I am bound by the decision of the appellate Court. I adopt

         same as mine and hold that the 1999 Constitution of Federal Republic of

         Nigeria recognizes dual citizenship and same cannot be a hare for Plaintiffs

         to contest election especially when they are Nigerians by birth. I so hold.

        

         Accordingly reliefs 1, 2, 3 and 5 are granted, while relief 4 is refused.

              

        

Signed:

 

          A.  I. CHIKERE

         JUDGE

         14/2/07