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.

I reproduced earlier in this judgment the decision made by the lower Court as to the constitutionality of Section 15 of the Electoral Act, 2002. The lower Court pronounced it unconstitutional and set it aside. Strangely however, all the grounds of appeal formulated by the appellant were to the effect that the lower Court after holding that the section was constitutional still went on to set it aside. The appellant has not taken any steps to impeach the record of proceedings upon which this appeal was heard. The judgment of the lower Court is to the effect that Section 15 of the Electoral Act, 2002, was unconstitutional. It was for that reason that the lower Court set it aside. The grounds of appeal by the appellant would appear to have been crafted on the notion that after the lower Court had found that Section 15 was constitutional, it still went on to set it aside.

It needs be said here that this error was not peculiar to the appellant alone. In the 1st and 2nd grounds of his notice of cross-appeal, the 1st respondent/cross-appellant also raised a complaint that the trial Judge had at first held that Section 15 of the Electoral Act was constitutional. The 2nd respondent/cross-appellant in the 3rd ground of appeal also made the same error. Surely, something must have gone wrong before the lower Court as to lead all the parties before it to make the same mistake. I cannot say more on the point.

The appeal by the appellant must be struck out since all the grounds were built on facts that did not arise from the judgment of the lower Court.

For the same reason all the issues formulated on the said grounds of appeal must be struck out. Similarly, I strike out the 1st respondent/cross-appellant’s 1st and 2nd grounds of appeal and the issues formulated upon them. I also, strike out the 2nd respondent/cross appellant’s 3rd ground of appeal and the issue formulated thereon.

In the cross-appeal by the 1st and 2nd respondents, it was contended that the procedure adopted by the appellant in overriding the veto of the 1st respondent was unconstitutional in that (1) rather than re-pass the bill, the appellant just passed a resolution and (2) rather than have the bill re-passed by two thirds majority of the membership of the two houses, the appellant did so only by a majority of the two thirds of the members present in each of the two houses.

The relevant provisions of the 1999 Constitution to be considered are Sections 54(1) and 58. They read:-
“54(1) The quorum of the Senate or of the House of Representatives shall be one-third of all the members of the legislative house concerned.
58(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 to the President 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 assent of the President shall not be required.”
(Italicising mine)

It was undisputed that the 1st respondent/cross-appellant did not give his assent to the bill within thirty days as required by Section 58(4) above. The appellant therefore, found it necessary to override the veto of the 1st respondent/cross-appellant. What is the applicable procedure to be followed in such situation? This question calls for an interpretation of Section 58(5) of the Constitution.

In construing Section 58(5) of the 1999 Constitution, I bear in mind that a statute should be given its ordinary natural grammatical meaning unless an absurdity will result thereby. See Aya v. Henshaw (1972) 5 SC 87; Lawal v. G.B. Ollivant (1972) 3 SC 124 and Ogbuanyiya v. Okudo (1979) 6/9 SC 32.

I ought also to bear in mind that the same words in a statute must bear the same meaning.
Section 58(1) of the 1999 Constitution reproduced above states the process by which a bill becomes a law. The bill has to be passed by both houses and assented to by the President before it becomes law. So how is a bill passed by either of the Houses constituting the National Assembly? A bill is passed by each house when it has gone through the first, second reading, the committee stage and the 3rd reading. In the course of these readings and committee stage the bill is examined in detail and amended if necessary. Law-making is therefore a serious business. The Court is enjoined to take judicial notice of the course of proceedings in the National Assembly. See Section 74(c) of the Evidence Act.

Presumably, the Electoral Bill went through the requisite stages before it was sent to the President i.e. 1st respondent/cross-appellant for his assent. However, it was not assented to within 30 days. Under Section 58(5) of the Constitution, in order to override the veto of the 1st respondent, each of the Houses of National Assembly has to pass the bill again. The language used by Section 58(5) is “and the bill is again passed by each house.” This means that the bill has to go through the same processes it had previously gone through, when it was first passed. That is the clear import of ‘the bill is again passed’. It means a repetition of the earlier process.

However, what the appellant did was merely to pass a “motion for veto override”. Clearly, this was not in consonance with Section 58(5). It is apparent that the purpose of Section 58(5) was to impose on the appellant the duty to subject a bill to the scrutiny of another passage process so that it may be manifest that the grey areas of the bill have been looked into a second time. It was common ground that the 1st respondent communicated to the appellant the reasons for his inability to give assent to the bill. This imposes on the appellant the necessity to painstakingly go through the bill a second time before passing it into law as required by the provisions of Section 58(5). What needed to be done was a fresh consideration of the bill and not just to affirm what was earlier done by passing a motion.

Further, Section 58(5) provides that a bill must be passed again by “each House by two-thirds majority”. I observed earlier that Sections 48 and 49 of the Constitution set out the composition of the Senate. It is three Senators from each State of the Federation and one from the Federal Capital Territory, Abuja. Thus, the number of the Senators should be 109. Under Section 49 the House of Representatives is composed of 360 members.

Giving Section 58(5) its ordinary natural meaning, two-thirds majority of each House can only mean two-third of the membership of each of the Senate and the House of Representatives. It cannot mean anything else. The section has no relationship with the ordinary quorum of each House. It does not employ a language referable to a proportion of the membership of each House. It is two-thirds of each of the whole of the Senate and the House of Representatives. In order to override the President’s veto, there must be at least 73 members in the Senate and at least 240 members in the House of Representatives. But as I observed earlier, when the Senate made a motion of veto override on the bill on 25/9/2002, there were only 55 Senators present.

In the House of Representatives on 26/9/2002, when a motion of veto override was made there was only 204 members. Clearly therefore, the appellant was not properly constituted when the Bill was “passed” into law on 25/9/2002 and 26/9/2002.
The appellant was also not following the Section 58(5) of the Constitution when instead of passing the Bill again, it merely made a motion called “motion of veto override”.
The lower Court was therefore in error to have taken the position that what was needed to pass the bill was the ordinary working quorum of the appellant and that the “motion of veto override” was in order.

Now, in its claim before the lower Court, the 3rd respondent had in its claims Nos. 4 and 5 asked for:
“(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.”

Claim 4 is consequential upon the grant of claim 5. The grant of a declaration is discretionary and it should be exercised with great caution. In Agbaje v. Agboluaje (1970) 1 All NLR 21 at 26, the Supreme Court per Udoma, JSC said:
“The general theme of judicial observations has been to the effect that declarations are not to be lightly granted. The power should be exercised ‘sparingly’ with ‘great care and jealousy’ with ‘extreme caution’, with ‘the utmost caution’. These are indeed, counsels of moderation even though as Lord Dunedin once observed, such expressions afford little guidance for particular cases. Nevertheless, anxious warnings of this character appear to their Lordships to be not so much enunciations of legal principles as administrative cautions issued by eminent and prudent Judges to their, possibly more reckless, successors. After all, it is doubtful if there is more of principle involved than “the un-doubted truth that the power to grant a declaration should be exercised with a proper sense of responsibility and a full realisation that judicial pronouncements ought not to be issued unless there are circumstances that call for their making. Beyond that there is no legal restriction on the award of a declaration.”

And similarly the same Court per Irikefe, JSC (as he then was) in Ewarami v. A.C.B. Ltd. (1978) 4 SC 99 at pp. 108-109 said
“In Hanson v. Radcliffe UDC (1922) 2 Chancery p. 490 at p. 507, Lord Sterndale – M.R. had this to say on declaratory judgments:
‘the power of the Court to make a declaration, where it is a question of defining the rights of two parties, is almost unlimited; and I might say only limited by its own discretion. The discretion should of course be exercised judicially, but it seems to me that the discretion is very wide.’

Some years before the above decision Bankes, L. J. when considering the scope of this rule was no less emphatic when he said –
“There is, however, one limitation which must always be attached to it, that is to say, the relief claimed must be something it would not be unlawful or unconstitutional or inequitable for the Court to grant or contrary to accepted principles upon which the Court exercises its jurisdiction. Subject to this limitation, I see nothing to fetter the discretion of the Court in exercising a jurisdiction under the rule to grant relief, and having regard to general business convenience and the importance of adapting the machinery of the Courts to the needs of suitors, I think the rule should receive as liberal a construction as possible.”

See Guaranty Trust Company of New York v. Hannay and Company (1915) 2 KB p. 536 at p.572. See also Ekuno v. Ifejuka (1960) SCNLR 320, (1960) 5 FSC p. 156 and Ibeneweka v. Egbuna (1964) 1WLR p. 219.”

The 3rd respondent in its claim had challenged the attempt of the appellant to impose upon it the dates to conduct elections. This was as in Section 15 of the Electoral Law. The lower Court struck down Section 15 of the said Law and I have affirmed that decision in this Court. Although, the procedure adopted by the appellant in passing the Electoral Law, 2002, was not strictly in compliance with Section 58(5) of the 1999 Constitution, it was not the case of the 3rd respondent before the lower Court that it had any complaints or misgivings about other provisions of the Law other than its Section 15. The said Law is now being used for the 2003 National Elections. To declare it unconstitutional and strike down at this stage may lead to a widespread disruption of national life, while not conferring any advantage on the 3rd respondent.

It seems to me satisfactory enough that the 3rd respondent has obtained a vindication for its rights and in the process enabled this Court to express its views as to the procedure to be followed, when overriding a presidential veto in the law-making process. It is not in my view necessary to strike down the law. The offending Section 15 has been struck out. In the exercise of the power of this Court’s discretion in the grant of a declaration, I decline to grant reliefs 4 and 5 in the 3rd respondent’s claim even If I agree that the appeal by 1st and 2nd respondents/cross-appellants has merit.

I bear in mind that a party challenging the constitutionality of a statute has the duty to show that he has sustained an injury or is in danger of sustaining one in addition to showing that the statute is invalid. See Bendel State v. A.-G., Federation (1981) 3 NCLR 1, (1981) 10 SC 1 and Adegbenro v. Attorney-General (1962) 1 All NLR 431 at 437, (1962) 2 SCNLR 130.

In the final conclusion, the appeal is struck out. The cross-appeal succeeds. But I make no order on reliefs following the success of the cross-appeal. This is essentially a suit to enable the Country discover the proper approach in the law-making process. It has been rewarding for all concerned bringing the suit. I therefore, make no order as to costs.

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Other Citations: (2003)LCN/1393(CA)