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?

2. 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?
3. 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?
4. 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?
5. 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;

2. 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.
3. 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.
4. 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.
5. 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.