➥ CASE SUMMARY OF:
National Assembly v. Accord, Attorney-general of the Federation, Independent National Electoral Commission (2021, CA/A/485/2018)
by Branham Chima (LL.B.)
➥ SUBJECT MATTER(S)
Legislative process;
Locus standing.
➥ CASE FACT/HISTORY
The 1st respondent in this appeal had by its originating summons dated and issued out of the Federal High Court, Abuja on 7th March, 2018, against the appellant and 3rd respondents as defendants sought for the determination of the following questions, inter alia:- “1. Having regard to the combined provisions of sections 79, 116, 118, 132, 153, 160(1) and 178 of the Constitution of the Federal Republic of Nigeria, 1999, (as amended), (the Constitution), read together with paragraph 15(a) of the Third Schedule to the same Constitution, whether the 3rd defendant is not the only institution or body constitutionally vested with the powers and vires to organise, undertake and supervise elections to the offices of the President and Vice President of the Federal Republic of Nigeria, the Governor and Deputy Governor of a State, membership of the Senate, the House of Representatives and the House of Assembly of each State of the Federation, including fixing “the sequence and dates of the elections to the said offices”.
It must be noted that the 1st defendant now appellant filed preliminary objection against the Suit contending that the 1 st respondent as plaintiff lacked the capacity to initiate the action and that the Suit was not justiciable. The jurisdiction of the lower court to adjudicate on the Suit was also called to question.
The originating summons and the preliminary objection were heard together. The learned trial Judge gave a considered judgment on 25th April, 2018 wherein the preliminary objection of the 1st respondent was dismissed and on the merit the lower court found in favour of the plaintiff now 1st respondent as follows:- “I am of the opinion, just as submitted by the senior counsel for the plaintiff that once the defendant has passed a Bill, its job is complete save in circumstances provided, for in section 58(5) of the 1999 Constitution. Relying on the case of A-G. Bendel State A-G. Federation, supra, I am inclined to refuse to be persuaded by any argument to the contrary. On a different note, I observe that at the time the Electoral Act (Amendment) Bill, 2018 was passed by the 1 defendant, the 3rd defendant had already issued the Time Table, and Schedule of Activities for the 2019 General Elections. In issuing the Time Table, the 3rd defendant was carrying out an executed function by trying to stop or reverse the decision of the 3 rd defendant, the 1st defendant was clearly in breach of the principles of separation of powers embodied in sections 4, 5 and 6 of the Constitution. Furthermore, the 1st defendant’s conduct, being a breach of section 1(3) of the 1999 Constitution, it follows therefore that section 25 of the Electoral Act (Amendment) Bill, 2018, which is the section that contravenes the Constitution is HEREBY DECLARED A NULLITY. Accordingly, I hereby resolve all the questions formulated in the originating summons in favour of the plaintiff. Consequently, I HEREBY GRANT reliefs 1 – 10. Relief 11(ii) of the plaintiff’s originating summons is also granted. however decline to grant 111) in the originating summons because the President has already refused to assent to the Bill.”
The appellant was dissatisfied with the said judgment and has by its notice of appeal dated the 16th day of May, 2018 and filed on 17th May, 2018 on pages 531 – 556 of the record, appealed to this court on seventeen grounds of appeal.
➥ ISSUE(S)
I. Whether the trial Federal High Court was not in error when it resolved the preliminary objection wherein the issues of (i) the prematureness of the action, (ii) justiciability, (iii) Absence of locus standi, (iv) Non-joinder of necessary parties, (v) Non-disclosure of a reasonable cause of action etc. Were raised against the competence of the originating summons in favour of the plaintiff respondent?
II. Whether the trial court was not in error when it resolved the substantive issue for determination against the appellant and held that section 25 of the Electoral Act (Amendment) Bill is unconstitutional, null and void?
➥ RESOLUTION(S) OF ISSUES
[APPEAL ALLOWED]
↪️ ISSUE 1: IN APPELLANT’S FAVOUR, IN PART.
[THE BILL MAKING PROCESS OF THE NATIONAL ASSEMBLY WAS NOT A SUBJECT OF DISCOURSE IN A.G. BENDEL STATE V. A.G. FEDERATION
‘This disagreement between the appellant and the respondent on this question is caused mainly by their lack of agreement on what the Supreme Court decided on the point in A.-G., Bendel State v. A.-G. of the Federation & Ors. (Supra). The appellant content that the decision supports its position that the courts of law have no judicial review jurisdiction over the legislative processes of Legislature before a Bill becomes law and that such jurisdiction exists only after the Bill or such other legislative processes have become law. The respondents on the contrary, contended that it supports their position that the courts of law have judicial review jurisdiction over all legislative processes such as a Bill before and after it has become law. Each side reproduced the part of the judgment of the Supreme Court in that case that it considers favourable to its position. I have calmly and carefully read the judgment of our very respected Supreme Court which is a causus celebres and h become the locus classicus on the jurisdiction of courts of law judicially review exercise of legislative powers in Nigeria. In applying that decision to this case, it is important to bear in mind that the subject matter of the constitutional dispute in that case was the Allocation of Revenue (Federation Account, etc.) Act of 1981, that no action or suit was filed in court to challenge the internal legislative processes of the National Assembly after it was presented by the National Assembly to the President of the Federal Republic of Nigeria for assent, but before the President signified that he assents or does not assent and before it became an Act of the National Assembly, that it was not a Bill that was the subject of the dispute in that case, that the question that has now confronted this court in this case is different from the question that was decided by the court in that case, that the court in that case was not called upon to determine whether the courts of law have the jurisdiction to review the internal law making processes of a legislature when they have not crystallized into law or become law and whether such processes that have not become law are justiciable, that the question the court considered in that case was whether the Allocation of Revenue Allocation Act 1981 was made in accordance with to procedures prescribed in the Constitution of the Federal Republic of Nigeria, 1979.’
THE COURT WILL NOT INTERFERE IN THE BILL MAKING PROCESS OF THE NATIONAL ASSEMBLY
‘The lower court was under the impression or mistaken belief that the Electoral Act (Amendment) Bill 2018 particularly section 25 thereof as proposed had been passed into Law or an Act of the National Assembly. A court has no jurisdiction to declare a Bill still undergoing legislative process or rites of passage into law null and void because it is not yet a law. A Bill is incapable of being tagged as contravening section 1(3) of 1999 Constitution (as amended) for reason that it is not yet a Law or an Act of National Assembly. The validity of a Law or an Act of National Assembly can only be questioned in a court of law on the ground that it violate section 1(3) of the 1999 Constitution or any other section of 1999 Constitution for that matte The onus will then be on the challenger to establish or proof that the impugned law or Act was enacted by the National Assembly in breach of the provision(s) of the Constitution and not otherwise. The courts in this country, and this is as laid down by the apex court in the land will not indulge in the habit of restraining the legislative powers or functions of National Assembly from passing a Bill into Law or Act otherwise the court may be unwittingly undermining the doctrine of separation of powers as entrenched in the Constitution of the Federal Republic of Nigeria, 1999 (as amended).’
THE 1ST RESPONDENT SUIT IS NOT JUSTICIABLE – LOWER COURT LACKED THE JURISDICTION
‘The rights of 1st respondent to sue or complain about the Electoral Act (Amendment) Bill 2018 has not crystalized. The initiation or commencement of this Suit is precipitated by the 1st respondent as it is premature. It is an action designed to obstruct the legitimate powers of the National Assembly to make laws or pass a Bill into law or Act. The action is not justiciable and it discloses no reasonable cause of action. The 1 st respondent’s action is capable of undermining the doctrine of Separation of Powers contained in sections 4, 5 and 6 of the 1999 Constitution. It has to be nipped in the bud. It smacks of an abuse of court process. I am not unmindful of the argument of the learned Senior Counsel to the 1 st respondent who argued without prejudice to section 58(5) of the Constitution that the National Assembly had completed its legislative duty at the time the Clerk of the National Assembly authenticated the Bill. With considerable respect to the learned senior counsel, the authentication and certification done by the Clerk of the National Assembly pursuant to the Acts Authentication Act Cap A2 LFN 2004 cannot be the conclusion of the legislative process of passing a Bill into Law. The authentication by the Clerk of National Assembly is to show that the Bill has been passed by the two Houses of National Assembly so that the Bill as passed and certified by the Clerk of National Assembly can be transmitted to the President for assent in accordance with section 58(3) of the Constitution of Federal Republic of Nigeria, 1999 (as amended). It is also a notice to the Public that such a Bill has been passed c and Judicial Notice can even be taken of it under section 122(b) of Evidence Act 2011. I am of the firm view that the legislative function of the appellant over a Bill is completed only upon assent to it by the President vide section 58(4) of the Constitution. The Bill will not transform into a law unless it is assented to by the President. It must be noted that section 58(4) of the Constitution gives the President the option to assent to the Bill as passed or to withhold his assent. In either case, the Bill becomes an Act where assented to, and it remains a Bill, where assent is withheld by the President, the Bill will be sent back to the National Assembly which would have the opportunity to override the President’s withholding of his assent, under section 58(5) of the Constitution to pass the Bill into Law. Where the National Assembly decides not to exercise option of still passing the Bill into Law then the Bill remains a mere document.’
THE BILL IS INCHOATE AND CANNOT BE CHALLENGED AT THE COURT
‘The document exhibit 1 annexed or exhibited to the plaintiffs affidavit in support of his originating summons remains a Bill it is inchoate as it has not become law. It is therefore my finding or decision that at the time the 1 st respondent, the plaintiff in the lower court commenced this action, the National Assembly had not concluded its legislative duty as far as the passage of the Electoral (Amendment) Bill (2018) is Concerned. The Legislative power of the country is vested in the National Assembly by S.4(1) of the 1999 Constitution and the legislative power of a State is vested on the House of Assembly by S.4(6) of the 1999 Constitution. The Constitution did not provide that the courts shall share this power with the legislature. S.4 (8) by giving the court the power of judicial review of the exercise of legislative power by the legislature did not intend that this judicial review jurisdiction should be exercised at the embryonic stage of the law making process before the process becomes law. To allow this would result in the courts dictating the course of the legislative process and the legislative decisions to the legislature. This will erode the freedom, independence and sovereignty of the legislature and violate the principle of separation of power entrenched by Ss.4, 5 and 6 of the 1999 Constitution. The danger posed by this kind of situation is obvious. The primary duty of the legislature, which is to legislate, would be bogged down and frustrated by preemptive litigations with the result that the making of most laws would have to await the determination of the litigations challenging the process of making those laws. This can disable the legislative arm of government; endanger the rule of law and the governance of the country.’
ONCE THE ATTORNEY-GENERAL IS A PARTY, THERE IS NO NEED FOR THE PRESENCE OF THE PRESIDENT
‘The fact remains that by constitutional arrangement particular section 150 of the Constitution of the Federal Republic of Nigeria 1999 (as amended), the Attorney General of the Federation who 2nd respondent in this appeal makes the presence of the president unnecessary since the Attorney General of the Federation as the Chief law officers is expected to institute actions where he considers necessary and also has constitutional role and duty to defend the Federal Government of Nigeria its agencies including the president as the Executive Head in all actions before a court or tribunal. This court has in recent times decided that once the Attorney General of the Federation is a party in a matter affecting the Federal Government including the President of the Federal Republic of Nigeria there is no need to join the President of the Federal Republic of Nigeria. See the cases of: 1. D.R. Anthony Igwe Ube v. Mr Obe Ayobamchukwu Anslem & Ors. (2017) LPELR-42681 CA. 2. Alhaji Suleiman Ibrahim Sambo v. Abubakar Bello & Ors. (2017) LPELR 430 22 (CA) 1 at 18-21. I agree with the learned senior counsel to the respondent that non-joinder of the President is not at all fatal to the competency and Constitution of the suit/action of the plaintiff now 1 respondent.’
THE 1ST RESPONDENT IS A POLITICAL PARTY
‘Considering the admitted fact that the 1st respondent has been participating in previous general elections, that the 3rd respondent has been dealing with it as a registered political party and that its name is usually the first on the ballot papers in general elections, it is obvious that the 3rd respondent recognised it as a registered political party. Production of an admissible copy of a political party’s registration certificate is not the only means of proving that it is a registered political party. This is because, such registration can be deemed by virtue of S.78(1), (2), (3) and (4) of the Electoral Act 2010 which provides thus – “78.(1)Any political association that complies with provisions of the Constitution and this Act for the purposes of registration shall be registered as a political for party. Provided however; that such application registration as a political party shall be duly submitted to the Commission not later than 6 months before a general election. (2) The Commission shall on receipt of the documents in fulfilment of the conditions stipulated by the Constitution immediately issue the applicant with a Letter of Acknowledgment stating that all the necessary documents had been submitted to the Commission. (3) If the association has not fulfilled all the conditions under this section, the Commission shall within 30 days from the receipt of its application notify the Association in writing stating the reasons for non-registration. (4) Any political association that meets the conditions stipulated in the Constitution and this Act shall be registered by the Commission as a political party within 30 days from the date of receipt of the application and if after the 30 days such Association is not registered by the Commission unless the Commission informs the Association to the contrary it shall be deemed to have been registered.” Considering the fact that the 3rd respondent has been recognizing it as a political party and allowing it to participate in the general elections, and in this suit has not denied that it is registered political party, it is glaring that the 3 rd respondent that has the constitutional and statutory responsibility to register the political parties that can participate in general elections organized by it, deemed the 1 st respondent a registered political party, in the absence of a certificate of its registration as a political party issued to it by the 3rd respondent. It is implicit in S.221 of the 1999 Constitution that an association that the 3rd respondent allows to participate in several general elections till date must be a political party. The said S.221 provides that “No association other than a political party shall canvass for votes for any candidate at any election or contribute to the funds of any political party or to the election expenses of any candidate at an election. In the light of the foregoing, I uphold the decision of the trial court that the 1st respondent is a registered political party.’
THE 1ST RESPONDENT HAD NO LOCUS STANDI TO INSTITUTE THE ACTION
‘A court cannot competently entertain a suit that has not raised live and genuine issues in controversy for its determination. See Odedo v. INEC (2008) 17 NWLR (Pt. 1117) 554 at 660. Since the 1 st respondent did not show or even allege that its right or interest was affected or likely to be affected by the Electoral (Amendment) Act 2018 Bill, since the 1st respondent did not bring the suit for the determination of its rights and obligations, since the subject matter of the suit is non justiciable and the trial court obviously lacks the jurisdiction to interfere with the law making process in the legislature before the process becomes law or lacks the power to determine how legislative power should be exercised before the law making process becomes law, then clearly the suit is frivolous, aimed at preventing the amendment of S.25 of the Electoral (Amendment) Act and is therefore an abuse of court process as it was obviously not a genuine litigation and was not brought bona fide. See Abubakar v. Bebeji Oil and Allied Products Ltd. & Ors. (2007) LPELR 55 (SC); (2007) 18 NWLR (Pt. 1066) 319. In the light of the foregoing, I resolve issue No. 1 in favour of the appellant. The judgment of the Federal High Court of Nigeria at Abuja in suit No. FHC/ABJ/CS/232/2018 delivered on 25/4/2018 is hereby nullified.’]
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.
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✓ DECISION:
‘Having resolved issue No. 1 in favour of the appellant and held that the subject matter of the suit is not justiciable, that the trial court lacks jurisdiction to entertain it, that the plaintiff had no locus standi to bring the suit, that the suit is academic and an abuse of court process, no useful purpose would be served in determining issue No. 2 in the appellant’s brief. On the whole this appeal succeeds as it has merit. It is accordingly allowed. The judgment of the Federal High Court of Nigeria at Abuja in Suit No. FHC/ABJ/CS/232/2018 delivered on 25/4/2018 by A. R. Mohammed, J. is hereby set aside. Suit No. FHC/ABJ/CS/232/2018 is hereby dismissed.’
➥ FURTHER DICTA:
⦿ FRESH FACTS CANNOT BE INTRODUCED TO THE APPELLATE COURT WITHOUT LEAVE OF THE COURT
Let me now determine the merit of the above arguments or all Sides. It is correct that the letter from the Honourable Attorney General of the Federation and the attached new Electoral Act (Amendment) Bill do not form part of the record of this appeal. They are facts or evidence that were not part of the evidence before the trial court and therefore were now considered by it in reaching the decision appealed against here. Therefore they are fresh facts or evidence being introduced for the first time in this appeal. Fresh facts or evidence cannot be introduced in an appeal without the leave of the appellate court first sought for by motion on notice and obtained to do so. It cannot be introduced by means of a written letter to the appellate court. Order 4 rule 2 of the Court of Appeal Rules 2016 provides that- “The court shall have power to receive further evidence on questions of fact, either by oral examination in Court, by affidavit, or by deposition taken before an Examiner or Commissioner as the court may direct, but, in the case of an appeal from a judgment after trial or hearing of any cause or matter on the merits no such further evidence (other than evidence as to matters which have occurred after the date of the trial or hearing) shall be admitted except on special grounds.” The 2nd respondent has not applied for and obtained the leave of this court to introduce the said letter and attached Bill as part of the records to be relied on to determine this appeal. Since no leave of this court had first been obtained to adduce or introduce the letter and attached Bill as fresh facts or evidence in this appeal, the letter and attached Bill are incompetent and are not valid for consideration in the determination of this appeal. See Onwubuariri & Ors. v. Igboasoiyi (2011) LPELR 754 (SC); (2011) 3 NWLR (Pt. 1234) 357, Obasi v. Onwuka (1987) 7 SC (Pt. 1) 233; (1987) 3 NWLR (Pt. 61) 364, Imale & Ors. v. Agiri & Ors. (1997) 9 NWLR (Pt. 521) 526 (CA). — Bulkachuwa P.C.A.
⦿ THE CONSTITUTION IS TO BE INTERPRETED AS A WHOLE
The settled position of the law is that in the interpretation of the Constitution or a Statute the duty of the court or tribunal is to B consider the Constitution or the Statute as a whole and that where the words used in the Constitution or a Law is clear and unambiguous they should be construed or interpreted literally in order to bring out succinctly the intendment of the Constitution or Statute and the intention of the Lawmakers. Extraneous matters must not be C brought to bear on the words of the law being interpreted. See:Nobis-Elendu v. INEC & Ors. (2015) 16 NWLR (Pt. 1485) 197 at 223 E-G., Action Congress (AC) & Anor. v. INEC (2007) 12 NWLR (Pt. 1048) 220 at 259 CD per Katsina-Alu, JSC (later CJN Rtd. of blessed memory) who said: “It is a settled principle of interpretation that a provision of the Constitution or a statute should not be interpreted in isolation but rather in the context of the Constitution or statute as a whole.” — Bulkachuwa P.C.A.
⦿ A BILL CANNOT BE INCONSISTENT WITH THE CONSTITUTION
Let me also add my voice on the non-justiciability of the constitutionality of a Bill. Until a Bill becomes law, it is a mere proposal that is liable to changes. Being a mere proposal that as not become law, it has no legal effect and therefore does not create any legal status, right, interests and obligations. That is why its consistency or inconsistency with the Constitution cannot be litigated as only a law can be the subject of such litigation by A virtue of S.1(3) of the 1999 Constitution. — Agim JCA.
➥ LEAD JUDGEMENT DELIVERED BY:
Bulkachuwa, P.C.A.
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
⦿ FOR THE RESPONDENT(S)
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
Section 58 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
➥ REFERENCED (CASE)
⦿ WHEN THE LEGISLATIVE PROCESS COMMENCES
A.-G. Bendel State v. A.-G. of the Federation (1981) NSCC 12) 314 at 331; (1983) 1 SCNLR 293; (1982) 3 NCLR 1 Fatayi-Williams, CJN of blessed memory said: While on this point, it is pertinent to state than “the exercise of legislative powers by the National Assembly” referred to in section 4(8) above is not only part of the legislative Process of the two Houses, it is also related to the mode of exercising Federal legislative power clearly set out in sections 54 55 and 58 of the Constitution to which I have referred earlier. Having regard to those provisions, it is my view that the legislative process commences when a Bill is introduced and first read in any of the two Houses of the National Assembly and ends when that Bill has been passed into law by those Houses and assented to by the President of the Federal Republic of Nigeria. (See Bribery Commissioner v. Ranasingha (1965) A. C. 172 (P. C.) at pp. 193 195 & 197 and Gallant v. The King (1949) 2 D.L.R. 425 at p.42 B. The “exercise of legislative powers by the National Assembly”, being part of the legislative process, starts when a Bill is first introduced in any of the two Houses constituting that august body and ends at the moment before it is assented to by the President. Since the exercise of such powers shall be subject to the jurisdiction of courts of law and of judicial tribunals established by law”, I am clearly of the view, and I do so hold, that this Court has jurisdiction to hear the plaintiff’s claims. The provisions of our Constitution on the point are clear and devoid of any ambiguity.”
➥ REFERENCED (OTHERS)