National Assembly
The Abuja Division of the Court of Appeal, on Wednesday, vacated
the high court judgment that stopped the National Assembly from
re-ordering the proposed sequence for the 2019 general elections,
Vanguard has revealed.
According to the report, the appellate court, in a unanimous
judgment by its full panel of Justices, held that the Federal High Court
in Abuja lacked the jurisdiction to entertain the suit that challenged
the constitutionality of section 25 of the Electoral Act Amendment Bill,
2018, which sought to alter the sequence for the impending general
elections.
It discribed the legal action that was instituted by the Accord
Party as a deliberate attempt “to padlock” the NASS from carrying out
its constitutional duties.
According to the appellate court, the high court ought to have
dismissed the suit for being frivolous, premature, inchoate and
non-justiceable.
The President of the Court of Appeal, Justice Zainab Bulkachuwa,
who delivered the lead judgment, held that the lower court was bereft of
the vires to assume jurisdiction and void a bill that was still
undergoing the legislative process of becoming a law.
Though the appellate court noted that section 4(8) of the 1999
Constitution imbued the judiciary with the powers to review the exercise
of legislative functions and determine the constitutionality of acts of
the NASS, it said such judicial powers does not negate the principle of
separation of powers enshrined in sections 4, 5 and 6 of the
Constitution.
While upholding the appeal that was lodged by the NASS, the Justice
Bulkachuwa-led panel stressed that a Bill does not become an Act of the
NASS until it is assented to by the President pursuant to section 58 of
the constitution.
It maintained that the constitution gave the President the right to
the decline his assent to a Bill, following which such document would
be returned to the NASS for further legislative action that could result
in dumping of the proposed law or an override of the President by
two-third majority vote by both chambers of the legislature.
“A court of law has no jurisdiction to decide on a Bill still
undergoing legislative process. Such decision becomes null and void
since it is not yet a law or an Act of NASS”, Justice Bulkachuwa
held, adding that doing otherwise would amount to the court “unwittingly
interfering with the doctrine of separation of powers”.
“The court cannot grant an injunction
to restrain the legislature from performing its legislative duties. It
should however be sounded clear that the court has the jurisdiction to
strike down any law or Act of the NASS when found to be in contravention
of any section of the Constitution”.
The appellate court held that the suit by Accord Party was “an action that was designed to obstruct the legislative powers of the NASS to make law”.
It further observed that as at the time the suit was filed before
the high court, the NASS had yet to conclude its legislative duty as far
as Amendment of the Electoral Act 2018 was concerned.
The appellate court warned that a situation where suits are filed
to challenge Bills that are still undergoing legislative process, was
capable of disabling the legislature.
It held that Accord Party failed to show how the proposed amended
election sequence would affect its right as a political party, adding
that the Independent National Electoral Commission, INEC, which was
listed as the 3rd Respondent in the appeal, did not file a suit to
challenge the purported infringement on or urspation of its powers by
the NASS.
“The plaintiff’s locus standi in this case has not yet been
disclosed. A claimant must have some justifiable interest that would
suffer or show that he has an injury or damage to suffer.
“I am satisfied and I hold that this 1st Respondent’s action at
the lower court was not justiceable. The suit was an academic exercise
that did not raise any live and genuine issue in controversy for
determination.
“The suit is frivolous and clearly an abuse of court process. I
resolve the issue in favour of the Appellant. The judgment of the
Federal High Court delivered on April 25 is hereby nullified.
“On the whole this Appeal succeeds, it has merit. The judgement of the high court is hereby set-aside”, the appellate court held.
It will be recalled that the NASS had in the Appeal marked CA/A
485/2018, which was filed on June 14, prayed the court to declare that
it has the constitutional powers to amend the Electoral Act to re-order
the election sequence already released by INEC.
In its 17 grounds of appeal, the NASS insisted that its decision to
re-order the sequence for the 2019 general elections was in the
overriding interest of the nation.
Under the proposed order, election of State and Federal lawmakers
would be held first, followed by Governorship election, while
Presidential Election would be conducted last.
The proposal was kicked at by those who believed that it was targeted at President Muhammadu Buhari.
However, in its appeal, the NASS, argued that, “The effect of
Section 76(1) of the Electoral Act is that the power of INEC to fix
dates for election must be exercised in accordance with the Electoral
Act. And unquestionably, it is the Appellant that is constitutionally
empowered to enact an Electoral Act for Nigeria – by virtue of section
4(1) and (2) and Item 22 on the Exclusive List.
“Respectfully, we submit that unlike under the original
constitutional provisions, the 3rd Respondent (INEC) no more enjoys the
freedom to fix dates for elections at will: such fixtures MUST be in
accordance with the Electoral Act enacted by the Appellant. That is what
the Electoral Act (Amendment) Bill seeks to achieve; yet the 1st
Respondent we submit rushed to Court to challenge the National Assembly –
when the conduct of the latter is constitutional.
“Respectfully, a combined reading of sections 4(1) and (2), and
the amended versions of sections 76(1) and (2), 116(1) and (2), 132(1)
and (2) and 178(1) and (2), read together with Item 22 on the Exclusive
List, the Bill of the Appellant is constitutional, hence cannot be held
to be unconstitutional as was held by the learned trial Judge.
“Respectfully, contrary to the conclusions of the Federal High
Court in the judgment under review to the effect that it is only INEC
3rd Respondent herein that can fix the date for elections and move the
sequence and therefore the Appellant is imposing on the 3rd Respondent a
sequence of elections to the various offices listed therein. My lords,
we submit that the lower court’s conclusions in this regard is, with
respect, in error.
“We submit that what the Appellant is doing in the circumstance
by the proposed Section 25 is not an imposition rather the Appellant is
exercising its constitutional powers to make laws. We submit that
nobody is contesting the powers of the 3rd Respondent that it has powers
to fix date for elections rather in fixing the date it must undoubtedly
be in accordance with the Electoral Act which the Appellant is in the
process of amending.
“We submit that by no stretch of legal imagination can it be
contended that the new section 25 of the Electoral Bill is contrary to
the provisions of paragraph 15(a) of the Third Schedule. Paragraph 15(a)
of the third schedule is simply stating the powers of the 3rd
Respondent to organize and supervise elections.
“The issue of whether the 3rd Respondent can organize and
supervise elections into various elective positions is not in dispute.
We submit that the powers in the schedule cannot override the
Constitutional powers of the Appellant to make laws. In any event, it is
the Appellant that makes laws that will guide the 3rd Respondent in
exercising its powers under paragraph 15 and not the 3rd Respondent
hiding under the cover of paragraph 15(a) of the Third Schedule. In the
other words the exercise of the 3rd Respondent under paragraph 15(a) of
the Third Schedule is subject to the Electoral Act.
“Consequently, we submit that the proposed section 25, or
clause 25 does not in any way breach the provisions of paragraph 15(a)
of the Third Schedule to the Constitution or any other provision of the
1999 Constitution”, NASS argued.
The high court had in the verdict that was delivered by Justice
Ahmed Mohammed, adduced reasons why the election timetable that was
released by INEC could not be altered by the legislature.
Justice Mohammed held that INEC was the only body constitutionally
empowered to organise, undertake and supervise elections in the country,
adding that such responsibility included fixing dates for polls.
The high court maintained that moves to amend the Electoral Act
commenced after INEC had released its timetable for elections, stressing
that action of the NASS was in breach of paragraph 15a of the 3rd
Schedule to the 1999 constitution, as amended.
the Attorney General of the Federation, INEC and Accord Party had
through their respective lawyers, urged the appellate court to dismiss
the appeal which they argued had turned academic.
The office of the AGF, via a letter dated June 18, notified the
appellate court that the NASS had since expunged section 25 of the
Electoral Act Amendment Bill, 2018, which sought to alter sequence for
the impending general elections.
The AGF argued that the offending session was the subject matter of
the suit that was decided by the lower court, upon which the instant
appeal by the NASS was based.
He insisted that the issue had been overtaken by events since the
NASS has already transmitted a revised version of the Electoral Act
Amendment Bill to President Buhari for his assent.
The Accord Party had in its suit marked FHC/ABJ/CS/232/2018, posed
nine questions for the lower court to determine, among which included
whether, “Having regard to the combined provisions of section 79,
116, 118, 132, 153, 160(1) and 178 of the Constitution of the Federal
Republic of Nigeria, 1999, as amended, read together with paragraph
15(a) of the Third Schedule to the same Constitution, whether the 3rd
defendant is not 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?”