The National Assembly V. The President of the Federal Republic of Nigeria & Ors (2003)

LawGlobal-Hub Lead Judgment Report

GEORGE ADESOLA OGUNTADE, J.C.A. 

The 3rd respondent was the plaintiff, before the Federal High Court, Abuja, where it brought a suit, by originating summons against 1st respondent, appellant and 2nd respondent as 1st, 2nd and 3rd defendants respectively, seeking the determination of the following questions:
“(1) Whether the 2nd defendant, the National Assembly is competent to enact Section 15 of the Electoral Act, 2002, in relation to fixing the time and dates of conduct of elections into the office of the President of the Federal Republic of Nigeria, each of the Houses of the National Assembly, the office of the Governor of each State of the Federation and Houses of Assembly of each State of the Federation, when the Constitution of the Federal Republic of Nigeria, 1999, has made provisions, covering the field in these areas in Sections 132(1), 76(1), 178(1) and 116(1).

(2) Whether the condition precedent was complied with by each of the Houses of the National Assembly, before passing the motion for veto over-ride, on Wednesday 25th, and Thursday, 26th September, 2002, when a quorum was not formed as provided by Section 54(1) and 58(5) of the Constitution.
(3) Whether the National Assembly can by way of motion enact a Bill into Law.
(4) Whether the provision of Section 58(5) of the 1999 Constitution has been duly complied with.
(5) Whether Section 15 of the Electoral Act, 2002, is unconstitutional having regard the provision of Section 76(1) of the 1999 Constitution.”

The reliefs which the plaintiff (INEC) sought are these:
“( 1) A declaration that Section 15 of the Electoral Act, 2002, which was passed into Law on the 25th and 26th September, 2002, by the 2nd defendant, by virtue of a motion of veto over-ride is unconstitutional, null and void and of no legal effect whatsoever.
(2) An order setting aside Section 15 of the Electoral Act, 2002, which was passed into law on the 25th and 26th of September, 2002, by the 2nd defendant by virtue of a motion of veto over-ride for non-compliance with the condition precedent for the passing of same having been vetoed by the President in accordance with Section 58(5) of the 1999 Constitution.
(3) A declaration that the plaintiff is the only body vested with powers to conduct, fix the date, supervise, direct and organise all elections, having regard to Section 132(1),76(1), 178(1), 116(1), 78, 118 and Item 15(a) of the 3rd Schedule of Constitution, 1999, the effect of which vests absolute discretion of all matters pertaining to elections on the plaintiff.
(4) An order of perpetual injunction restraining the defendants, their servants, agents and/or privies from giving any legal effect, whatsoever and/or acting on the Electoral Act, 2002.
(5) A declaration that the Electoral Act, 2002, is unconstitutional, null and void and of no legal effect whatsoever.”

The plaintiff filed an affidavit in support of its originating summons. The appellant filed a counter-affidavit on 17/10/2002, and a further and better counter-affidavit on 31/10/2002. The plaintiff had on 23/10/2002, filed a further-affidavit in support of its originating summons. On 5/11/2002, Okeke, J. heard arguments on the originating summons; and on 29/11/2002 judgment was delivered.

The learned Judge concluded as follows in his judgment.
“In the final analysis, the Court therefore declares as follows:
1. That the Senate and the House of Representatives was each properly constituted when it exercised its power under S.58(5) of the 1999 Constitution to override the President’s veto on the Electoral Bill, 2002.
2. That the Electoral Act, 2002, was validly passed by each house of the National Assembly.
3. That S.15 of Electoral Act, 2002, which encroached on the power vested on the Independent National Electoral Commission by the 1999 Constitution to fix dates for elections to the offices of the President, Governor of each State of the Federation, National Assembly and House of Assembly of each State of the Federation is unconstitutional and it is therefore set aside.”

The National Assembly i.e. 2nd defendant before the lower Court, was dissatisfied with the said judgment and has brought this appeal against it. In the appellant’s brief filed, the issue for determination in the appeal was identified as:
“Whether the learned trial Federal High Court Judge, was right in setting aside Section 15 of the Electoral Act, 2002, having regards to the provisions of the Constitution of the Federal Republic of Nigeria, 1999 and his finding that the Electoral Act, was validly passed by each house of the National Assembly.”

The 1st respondent in the appeal (i.e. the President, Federal Republic of Nigeria) and the 2nd respondent (i.e. the Hon. Attorney General of the Federal Republic of Nigeria) were also dissatisfied with the judgment of the lower Court. Each of them has brought a cross-appeal. The issue for determination formulated by the 1st respondent/cross-appellant reads:
“Whether the Electoral Act, 2002, was validly passed by the National Assembly by its overriding the veto of the President by two thirds majority of the two chambers of the National Assembly present as against two third of all the members and by passing the Bill vide a process of motion.”

The 2nd respondent from its cross-appeal and the appellant’s notice of appeal formulated the following issues for determination:
“1. Was the Electoral Act, 2002, duly and properly passed in accordance with the provisions of the Constitution, in particular S.58(5) thereof?
2. Is Section 15 of the Electoral Act, 2002, not unconstitutional and void for inconsistency with Sections 76, 116, 132 and 178 of the Constitution?”

The issues formulated for determination in the appeal and cross-appeal turn solely on the interpretation of some sections of the 1999 Constitution of the Federal Republic of Nigeria. It is helpful however, to set out the undisputed facts which are relevant to the issues identified for determination. In Paragraphs 2 to 5 of the affidavit in support of the originating summons, it was deposed thus:
“2. That the Electoral Act, 2002, was passed in the House of Representatives on the 25th February, 2002, and transmitted to the House of Representatives (Senate?) for concurrence.
3. That the Senate passed the Bill on 26th February, 2002, with amendments and transmitted same to the Senate (House of Representatives?).
4. The amendments to the said Bill, were agreed upon and adopted and the Bill was transmitted to the President on the 24th of June, 2002, for his assent.
5. That on the 25th and 26th of September, 2002 respectively, the National Assembly by motion of veto over-ride purportedly passed the Bill into Law because 30 days had lapsed and the President had failed to assent to the said Bill. We intend to rely on the votes and proceedings of the National Assembly, dated 25th and 26th September, 2002, in the course of this trial”

The 2nd defendant in Paragraphs 3(e) and (f) of its counter affidavit deposed to on 17/10/02 said:
“(e) That in the discharge of its power to make laws for peace, order and good governance of the Federation or any part thereof with respect to the election, the 2nd defendant duly passed the Electoral Act, 2002 when the 1st defendant withheld its assent on Electoral Bill 2002, as transmitted to him by the 2nd defendant on the 24th day of June, 2002 for his assent.
(f) That the Senate and the House of Representatives had in consequence of the above, by two thirds of the members of the legislative houses concurring passed the Electoral Act, 2002 by motion of veto override.”

The plaintiff annexed to the affidavit in support of the originating summons copies of the votes and proceedings of the House of Representatives and the Senate for the 25th and 26th September, 2002, as exhibits C and D respectively. Now, exhibit D, the votes and proceedings of the Senate shows that the Senate voted by 48 Ayes and 3 Noes to override the President’s Veto of the Electoral Bill. There were four abstentions. The exhibit reveals that the Senate was acting pursuant to Section 58(5) of the 1999 Constitution. In all, 55 Senators participated in the voting on the motion to override the President’s veto.

Exhibit D, the votes and proceedings of the House of Representatives shows that the House voted by 191 Ayes and 13 Noes to override the President’s vote of the Electoral Bill. The House of Representatives just as the Senate expressed, that it was acting as it did pursuant to Section 58(5) of the 1999 Constitution. In all, 204 members of the House of Representatives participated on the motion to override the President’s veto.

Ordinarily, the membership of each of the Senate and the House of Representatives is 109 and 360 respectively. See Sections 48 and 49 of the 1999 Constitution.