President Frn V. National Assembly & Ors (2022)
LAWGLOBAL HUB Lead Judgment Report
EMMANUEL AKOMAYE AGIM, J.S.C.
The legislative power of the National Assembly (NASS) to make laws concerning the internal affairs of a political party is limited by Section 228(a) of the Constitution of the Federal Republic of Nigeria 1999 (the 1999 Constitution) to the making of a law to provide guidelines and rules to ensure internal democracy within political parties including making laws for the conduct of party primaries, party congress and party conventions, etc.
In the purported exercise of this power, the Electoral Act 2022 was enacted and commenced on 25-2-2022 in accordance with Section 58 of the 1999 Constitution which requires in Subsection (4) that the President assents or withholds assent to a Bill, and provides in Subsection (5) that if he withholds assent, the Bill can become law if passed by 2/3 of majority of each of the two Houses of the National Assembly and the President’s assent would not be required. In our present case, upon the presentation of the Electoral Bill 2022 to the President (1st Plaintiff herein) he assented to it and it became law, to wit, the Electoral Act 2022.
After participating in making the Electoral Act 2022, the 1st plaintiff sought to have Section 84(12) of the Act removed or deleted on the ground that while giving his assent, he had entered a caveat expressing reservations about the constitutionality and desirability of the said Section 84(12) and followed same by writing a letter to the National Assembly (1st defendant) requesting it to cause the Electoral Act 2022 to be amended to delete the said Subsection (12) of Section 84 of the Electoral Act.
Following the refusal of the 1st defendant to grant the request, the plaintiffs commenced Suit No SC/CV/504/2022 in this Court, invoking the original jurisdiction of this Court to determine as follows –
“1. Whether having regard to separate and/or the combined provisions of Sections 65, 66, 106, 107, 131, 137, 177, and 182 of the Constitution of the Federal Republic of Nigeria, 1999, (as amended), the provision of Section 84 (12) of the Electoral Act, 2022 which ignores Section 84(3) of the same Act has not expanded the scope of the qualifying and disqualifying factors for the National Assembly, House of Assembly, Governorship and Presidential election asenshrined in the provisions of the Constitution thereby rendering the said provision inconsistent with the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and therefore unconstitutional, unlawful, null and void?
- Whether the provision of Section 84 (12) of the Electoral Act, 2022 disqualifying political appointees from being a voting delegate, or to be voted for at a Convention or Congress of any political party, for the purpose of the nomination of candidate for any election, even in spite/disregard of Section 84(3) of the same Act, has not disenfranchised a category of Nigerian citizens outside, and without amending, the express qualification and disqualification provisions in each of or by the combined provisions of Sections 65, 66, 106, 107, 131, 137, 147, 151, 177, 182, 192 and 196 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) to incorporate appointees as part of or category of persons who cannot contest for elective office?
- Whether having regard to the clear provision of Section 1(3) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), read together with Section 4 of the same Constitution, the legislative powers vested in the 1st Defendant permit or empower it to make any inconsistent law with the qualification and disqualification provisions under each or all of Sections 42(1), 65, 66, 106, 107, 131, 137, 147, 151, 177, 182, 192 and 196 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) as well as Article 2 of the African Charter on Human and Peoples Rights?
- Whether the provision of Section 84 (12) of the Electoral Act, 2022 disqualifying a political appointee from being a voting delegate or be voted for at a convention or congress of any political party, for the purpose of the nomination of candidates for any election notwithstanding the earlier assurances in Section 84(3) of the same Act, is not inconsistent with and in violent breach of the provisions of Sections 65, 66, 106, 107, 313, 137, 147, 151, 177, 182, 192 and 196 of the Constitution of the Federal Republic of Nigeria 1999 (as amended), and null and void by reason of its inconsistency?
- Whether the 1st Defendant did not act ultra vires the legislative powers vested in it under the provisions of Section 4 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and/or in violation or breach of the provision of Sections 42(1), 65, 66, 106, 107, 131, 137, 147, 151, 177, 182, 192 and 196 of the Constitution of the Federal Republic of Nigeria as well as Article 2 of the African Charter on Human and Peoples Rights by the introduction of the provision of Section 84 (12) of the Electoral Act, 2022 disqualifying political appointee from being a voting delegate or be voted for at convention or congress of any political party for the purpose of any election even in spite of Section 84(3) of the same Act?”
They sought for the following reliefs –
“1. A DECLARATION that by the joint and or combined reading of Section 65, 66, 106, 107, 131, 137, 147, 151, 177, 182, 192 and 196, of the Constitution of the Federal Republic of Nigeria, 1999, (as amended), the provisions of Section 84 (12) of the Electoral Act, 2022 which also ignores Section 84(3) of the same Act, is an additional qualifying and/or disqualifying factors for the National Assembly, House of Assembly, Gubernatorial and presidential elections as enshrined in the Constitution, hence unconstitutional, unlawful, null and void;
- A DECLARATION that having regard to the clear provision of Section 1(3) of the Constitution of the Federal Republic of Nigeria, 1999, as amended, read together with Section 4 of the same Constitution, the legislative powers vested in the 1st Defendant do not permit or empower it to make any other law prescribing additional qualifying/disqualifying grounds for election to the National Assembly, House of Assembly, Gubernatorial and Presidential election outside the express constitutional qualification and disqualification provisions as already provided in each or all of Sections 65, 66, 106, 107, 131, 137, 147, 151, 177, 182, 192 and 196 of the 1999 Constitution of the Federal Republic of Nigeria (as amended), and without amendment to any of those sections is for reason of inconsistency, unconstitutional and therefore null and void.
- A DECLARATION that Section 84 (12) of the Electoral Act, 2022 disqualifying a political appointee from being a voting delegate or be voted for at a convention or congress of any political party for the purpose of the nomination of candidates for any election is discriminatory, inconsistent with and in violent breach of the provision of each or all of Sections 42, 65, 66, 106, 107, 131, 137, 147, 151, 177, 182, 192 and 196 of the Constitution of the Federal Republic of Nigeria, 1999, (as amended), as well as Article 2 of the African Charter on Human and Peoples Rights and same is null and void by reason of its inconsistency.
- A DECLARATION that by the introduction of the provisions of Section 84(12) into the Electoral Act, 2022, but in disregard of Section 84(3) of the same Act, the 1st Defendant has acted ultra vires the legislative powers vested in it under the provision of Section 4 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and/or in violation or breach of ‘the provisions of Sections 65, 66, 106, 107, 131, 137, 147, 151, 177, 182, 192 and 196, thereby rendering Section 84(12) of the Electoral Act, 2022 unconstitutional, null and void.
- AN ORDER nullifying the provisions of Section 84 (12) of the Electoral Act, 2022 by application of the blue pencil rule, for being unconstitutional, illegal, null and void and having been made in excess of the legislative powers of the1st Defendant as enshrined in Section 4 of the 1999 Constitution (as amended).
SUCH FURTHER OR OTHER ORDERS as this Honourable Court may deem fit and just to make in the circumstances of the suit.”
The originating summons which was later amended, is supported by an affidavit and further affidavits and a written address. The 1st defendant filed a counter affidavit and a written address in opposition to the suit. The 2nd and 3rd defendants also filed a counter affidavit and a written address in opposition to the suit.
The 1st defendant filed and argued a notice of preliminary objection with a written address of same in urging this Court to dismiss or strike out this suit. The 2nd and 3rd defendants filed a motion on notice applying for an order of this Court dismissing or striking out this suit for incompetence and want of jurisdiction. The motion was accompanied by a written address of same.
The plaintiffs filed counter affidavits and written addresses in response to each of the preliminary objections. The plaintiffs filed replies on points of law to their said written addresses in opposition of the originating summons.
I will determine the two objections before I delve into the merits of this suit if the need to do so remains.
The grounds for their objections are that the requirements for the invocation of the original jurisdiction under Section 1 (1) (A) of the Supreme Court (Additional Jurisdiction) Act No. 3 2002 and Order 3 Rule 6(1) of the Supreme Court Rules 2014 do not exist, that only the Federation, States, President, National Assembly and State House of Assembly and no other person can be party in an originating suit before this Court, that the dispute giving rise to this suit is not justiciable and cannot warrant the invocation of the additional original jurisdiction given to this Court by Section 1 (1) (A) of the Supreme Court on 25-2-2022 signed the Electoral Bill 2022 into law, namely, Electoral Act 2022, cannot turn around to seek to strike down the amendment by any means including this judicial process, that he cannot a probate and reprobate, that the plaintiffs have no locus standi to bring this suit, that the plaintiffs have no legal right to protect in this suit, that this suit discloses no cause of action, that the suit is an abuse of process by multiplicity of actions on the same subject matter.
I have carefully read and considered the arguments of all sides on each of the above grounds of objection.
Let me start with the ground of objection that the 1st plaintiff cannot challenge the constitutionality of the Electoral Act 2022 having participated in making the Act.
The holder of an office that participated in the making of a law, by virtue of his holding that office, cannot afterwards, as holder of that office, challenge the constitutionality, correctness, justification or desirability of that law. As a participant in the making of the law, the holder of such office has reasonable opportunity to oppose the making of such law as constituted. If the law is enacted in spite of his opposition to its making, he cannot afterwards invoke the judicial process to strike it down for any reason. In our present case, the 1st plaintiff, as the President of the Federal Republic of Nigeria participated in making Electoral Act 2022 by virtue of Section 58 of the 1999 Constitution which provides that-
(1) “The power of the National Assembly to make laws shall be exercised by bills passed by both the Senate and the House of Representatives and except as otherwise provided by Subsection (5) of this Section, assented to by the President.
(2) A bill may originate in either the Senate or the House of Representatives and shall not become law unless it has been passed and, except as otherwise provided by this Section and Section 59 of this Constitution, assented to in accordance with the provisions of this section.
(3) Where a bill has been passed by the House in which it originated, it shall be sent to the other House, and it shall be presented for assent when it has been passed by that other House and agreement has been reached between the two Houses on any amendment made on it.
(4) Where a bill is presented to the President for assent, he shall within thirty days thereof signify that he assents or that he withholds assent.
(5) Where the President withholds his assent and the bill is again passed by each House by two-thirds majority, the bill shall become law and the assent of the President shall not be required.”
The role of the 1st plaintiff in making an Act of the National Assembly consists of his signification thathe assents or that he withholds assent to the bill, when both Houses of the National Assembly have passed the bill and reached an agreement on any amendment made on it and presented it to him for assent. He participates in making the Act by this role irrespective of whether he assents or withholds his assent. In our present case, he assented to the Bill and it became an Act. The President of Nigeria cannot invoke the judicial process to challenge the constitutionality, validity, correctness, desirability, justification of an Act of the National Assembly that he participated in making. The suit by the plaintiff touches on the essence of the powers given to him by Section 58(4) of the 1999 Constitution. The Constitution did not provide for the involvement of the Court by the President after exercising his powers under Section 58(4) of the Constitution one way or the other. His role in the law-making process ceases after his signification of assent or withholding of assent. In this case, he assented and consented to what the two Houses of the National Assembly had done and presented to him and the Bill became law. The only role the Constitution assigns to the President after the law is made is to comply with or enforce it. There is no room for him to exploit the power given to the Courts by Section 4(8) of the 1999 Constitution to review the exercise of legislative powers by the National Assembly, a role he had exercised by virtue of Section 58 of the 1999 Constitution before the Bill became law, especially having consented to what the two Houses did by his assent.
The decision of this Court in Adesanya V President FRN & Anor (1981) 5 SC 69 may be a useful support on how we have determined this issue even though the facts in that case are not exactly similar to the facts of our present case, save that both involve the challenge of the constitutionality of an exercise of legislative power in Court by one who virtute officia participated in its making. In that case, a Senator who participated in making the decision of the National Assembly confirming an appointment, filed a suit in Court to challenge the constitutionality of the resolution notwithstanding that he voted against the confirmation and was defeated by majority in the House. This Court per Fatayi Williams CJN held that “it never was thought that by means of a friendly suit, a party beaten on the legislature could transfer to the Courts an inquiry as to the constitutionality of the legislative act … He participated in the debate leading to the confirmation of the appointment of the 2nd defendant/respondent and lost. For him, that should have been the end of the matter. The position would probably have been otherwise if he was not a senator.”
Sowemimo JSC in his contribution held that “when legislators either in the National or State Assemblies exercise their right of either making law or in circumstances in which they are authorized by the Constitution to approve or confirm certain actions they are bound by the majority decisions.” There is no provision for the judicial powers provided in Section 6 of the Constitution for any legislators to appeal to any Court against the majority decision… The appellant as senator took part in the decision and I can see no provision in the constitution giving right to a member who happens to be in the minority to sue against such decision.
The 2nd plaintiff facilitated the 1st plaintiff’s exercise of the power to assent. Paragraph 9 of the affidavit in support of the originating summons states that “2nd plaintiff is also the authority that has the duty to ensure that Bills passed by the 1st defendant are scrutinized for error or unconstitutional provision before the President gives his assent thereto and such Bills become law”.
I agree with the argument of learned counsel for the 1st defendant that this suit by the plaintiffs is a reprobation of what the 1st plaintiff had probated and that this cannot be allowed in law. Having assented to the Electoral Bill 2022 and thereby accepted that it becomes law, the plaintiffs cannot bring this suit contending that the Act resulting from his assent is not constitutional, or desirable or justifiable, thereby retracting from his assent in addition to the trite law against approbation and reprobation, there is no provision of the constitution that vests the president with the power to challenge the validity of an Act of the National Assembly that has come into being after his assent or after he had withheld his assent. Also, his assent to the enactment of the said Act operates to estopp him from challenging the Act as invalid for any reason.
Let me consider the ground of objection that this Court lacks the jurisdiction to entertain this suit because there is no basis for the invocation of its judicial power or for the exercise of such powers.
Paragraphs 14 to 19 of the affidavit in support of the amended originating summons stated the facts forming their cause for this suit as follows-
“14. The 2nd and 3rd Defendants were joined as Co-Defendants to this suit by order of this Honourable Court on 19th May 2022.
- That I am aware that the 1st Defendant in pursuance of its legislative power commenced the amendment of the Electoral Act, 2010 which culminated in the passing of the Electoral Act (Amendment Bill) 2022.
- After several back-and-forth occasioning delay brought about by the inclusion of numerous provisions in the Electoral Act (Amendment Bill) 2022 the President of the Federal Republic of Nigeria assented to the Electoral Act, 2022 on the 25th February, 2022 under protest and with a caveat that Section 84 (12) therein, be removed or deleted for being unconstitutional.
- That the President observed that the said Section 84 (12) disenfranchises political appointees in a way and manner outside the contemplation of the Constitution of Federal Republic of Nigeria, 1999 (as amended).
- That the President in assenting to the bill expressed the view that “it is imperative to note that the only constitutional expectation placed on serving political office holders that qualify by extension as public officers within the context of the constitution is resignation, withdrawal or retirement at least 30 days before the date of the election. It will be stretching things beyond the constitutional limit to import extraneous restrictions into the Constitution on account of the practical application of Section 84 (12) of the bill where political parties’ conventions and congresses were to hold earlier than 30 days to the election ”
- That I am aware the President subsequently wrote to the 1st Defendant, seeking amendment of Section 84(12) of the Electoral Act (Amendment) 2022, that would bring the bill in tune with constitutionality by way of deleting Section 84(12) accordingly. But till date, the 1st Defendant has refused, failed and/or neglected to so act on the request of the President. The President is concerned and wants our democracy safeguard the rule of law preserved, hence this suit.”
It is glaring from these depositions in the affidavit in support of their originating summons and the questions for determination and reliefs claimed for that this suit was not brought for the determination of any question as to the civil rights and obligations of any of the plaintiffs. It is not a personal suit of any of the plaintiffs. The suit is brought in their official capacities to safeguard and preserve our democracy and the rule of law and not to seek personal redress in respect of any of their personal rights and obligations. Paragraph 10 of the affidavit in support of their originating summons states that “the 1st plaintiff by this action is seeking to protect and preserve the Constitution from any abuse by the 1st defendant”.
It is obvious from Section 6 (6)(b) of the 1999 Constitution that the judicial powers vested in the Courts by Section 6 (1) of 1999 shall be invoked for the determination of only questions as to the civil rights or obligation of a person. The judicial powers of a Court cannot be invoked to determine a suit that is filed only for the protection of the Constitution from abuse by 1st defendant and for the protection of democracy and the rule of law, that raises for determination general questions about the constitutionality of an Act of the National Assembly, that has no nexus with the civil rights and obligations of the plaintiffs. See Adesanya v. President FRN & Anor. (supra), A-G Bendel State v. A-G FRN & ORS. (1981) LPELR- 605 (SC) and A-G Anambra v. AGF (2007) LPELR-24343 (SC).
If a suit is not brought for the purpose of determining the civil right and obligations of the plaintiffs or the questions raised for determination and the reliefs claimed for in the suit have no nexus with the personal rights and obligations of the parties thereto, then the suit has no life and the questions raised for determination therein become general, abstract and academic questions that a Court cannot exercise judicial power to determine by virtue of Section 6 (6) (b) of the 1999 Constitution. The law is settled by a long line of judicial decisions that Courts cannot exercise judicial power to entertain and determine general, abstract and academic questions. See Imegwu V Okolocha & Ors (2013) LPELR-19886(SC) and Bamgboye V University of Ilorin (1999) 6 SC (Pt.ii) 72.
As it is, one of the cumulative requirements in Section 1(1) (A) of the Supreme Court (Additional Jurisdiction) Act 2002 for the invocation of the additional original jurisdiction of this Court to entertain an originating suit between the President and National Assembly does not exist. The plaintiffs have no legally enforceable legal right or power that gives life to the questions raised for determination in the originating summons and that can be protected or enforced by the reliefs claimed for. Section 1(1)(A) of the Supreme Court (Additional Jurisdiction) Act 2002 provides that –
“1. Additional Original Jurisdiction for the Supreme Court
1) In addition to the jurisdiction conferred upon the Supreme Court of Nigeria by Section 232(1) of the 1999 Constitution, the Supreme Court shall, to the exclusion of any other Court, have original jurisdiction in any dispute between –
a) the National Assembly and the President;
b) the National Assembly and any State House of Assembly; and
c) the National Assembly and the State of the Federation,
in sofar as that dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends.”
The dispute in this case does not involve any question on which the existence or extent of any legal right depends. Therefore this suit cannot be entertained by this Court in exercise of its additional original jurisdiction under Section 1 (1)(A) of the Supreme Court (Additional Original Jurisdiction) Act 2002. See AGF v. A-G Lagos (2017) LPELR-42769 (SC) and A-G Lagos v. AGF (2014) 9 NWLR (Pt. 1412) 217 at 257.
Even the original jurisdiction vested in the Supreme Court by Section 232(1) of the 1999 Constitution to determine disputes between the Federation and State or between States cannot be invoked unless the dispute involves any question on which the existence or extent of a legal right depends. See A-G Bendel State v. AGF (1981) 10 SC, and A-G Kano v. AGF (2007) LPELR – 618 (SC).
Paragraph 19 of the affidavit in support of the summons state that it is the defendant’s refusal or failure to grant the written request by the 1st plaintiff that Section 84 (12) of the Electoral Act, 2022 be amended by deleting it to bring the Act in conformity with the Constitution, that led to this suit. In Paragraph 10 of the same affidavit it is stated that “the 1st plaintiff by this action is seeking to protect the Constitution from abuse by 1st defendant”.
The President has no Constitutional or legal right or power to request or compel the National Assembly to amend or make an Act. No part of the Constitution gives him such right or power. One of the hallmarks of our Constitutional democracy is separation of powers of government. The executive, legislative and judicial powers of the government of the Federation or of a State are separated and each vested on each of the three main arms of government by Ss. 4, 5 and 6 of the 1999 Constitution. Section 4 of the said Constitution vest the legislative power on the legislature. Section 5 vests the executive power on the executive and Section 6 vests the judicial power on the judicature (the Courts). This separation of the said powers and the vesting of each in an arm of government requires that each arm exercises its power separately and independent of the other except where the Constitution expressly provides otherwise. There is no part of the 1999 Constitution that makes the exercise of the legislative powers of the National Assembly subject to the direction and control of the President of Nigeria.
The 1st plaintiff’s written request to the National Assembly to amend the Electoral Act 2022 by deleting Section 84 (12) therein is a violation of Section 4 (1) of the 1999 Constitution. This suit which was filed as a response to the refusal of the National Assembly to grant the said written request is an employment of the judicial process to help realize the said violation. The Courts cannot be engaged in this kind of unconstitutional and illegal enterprise. The suit is therefore an abusive use of the judicial process.
In the light of the foregoing, I hold that this Court lacks the jurisdiction to entertain this suit and that therefore no useful purpose would be served determining the merit of the suit. The suit is hereby struck out.
No order as to costs.
SC.CV/504/2022
