Can the President Challenge the Constitutionality of an Act of the National Assembly after Giving His Assent

CASE TITLE: PRESIDENT FRN v. NATIONAL ASSEMBLY & ORS (2022) LPELR-58516(SC)

JUDGMENT DATE: 24TH JUNE, 2022

PRACTICE AREA: CONSTITUTIONAL LAW (POWERS OF THE PRESIDENT)

LEAD JUDGMENT: EMMANUEL AKOMAYE AGIM, J.S.C.

SUMMARY OF JUDGMENT:

INTRODUCTION:

​This appeal borders on the power of the President to challenge the constitutionality of an Act of the National Assembly that he participated in making.

FACTS:

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. Upon the presentation of the Electoral Bill 2022 to the President (1st Plaintiff) 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 appellant as plaintiffs, by an originating summons taken out pursuant to Order 3 Rule 6 of the Supreme Court Rules, Section 1(1) (A) Supreme Court (Additional) Jurisdiction Act 2002 and the inherent powers of the Supreme Court as preserved under Section 6(6) of the 1999 Constitution (as amended), sought to invoke the original jurisdiction to the Supreme Court for the nullification of Section 84(12) of the Electoral Act 2022 which they assert not only ignores Section 84(3) of the same Act but jointly and severally stand in breach of Sections 42(1) 65, 66, 106, 107, 131, 137, 177, 182, 192 and 196 of the 1999 Constitution as well.

The plaintiffs further averred that by virtue of Sections 1(3) and 4 of the 1999 Constitution Section 84(12) of the Electoral Act 2022 is ultra vires the legislative powers vested in the National Assembly. The said section is, in addition, averred to be a breach of Article 2 of the African Charter on Human and Peoples Rights.

The Plaintiffs sought for the following reliefs against the 1st Defendant:

1. A DECLARATION that by the joint and or combined reading of Sections 65, 66, 106, 107, 131, 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 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 said 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 elections to the National Assembly, State 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 the reason of inconsistency, unconstitutional and therefore null and void?

3. A DECLARATION that Section 84(12) of the Electoral Act, 2022 disqualifies a political appointee from being a voting delegate or being 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 provisions of 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, 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 provisions 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, 147, 151, 177, 182, 192 and 196 of the Constitution of the Federal Republic of Nigeria, 1999 as amended, 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 the 1st 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 this case

The three defendants on record, by their respective notices of preliminary objection, challenged the jurisdiction of the Supreme Court to proceed on the plaintiffs’ suit as constituted.

The grounds for their objections were 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 a party in an originating suit before the Supreme Court, that the dispute giving rise to this suit is not justiciable and cannot warrant the invocation of the additional original jurisdiction given to the Supreme Court by Section 1 (1) (A) of the Supreme Court Act. That the President who 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 a multiplicity of actions on the same subject matter.

ISSUES FOR DETERMINATION:

The Court determined the appeal based on the grounds of the preliminary objection raised by the respondents.

DECISION/HELD:

In the final analysis, the Court in a unanimous decision of the full Court upholding the preliminary objection of the respondents, found that the Supreme Court lacked the jurisdiction to entertain the suit and the same was accordingly struck out.

RATIOS:

• CONSTITUTIONAL LAW – SEPARATION OF POWERS: Whether the President can interfere in the exercise of the legislative power of the National Assembly
• CONSTITUTIONAL LAW – SEPARATION OF POWERS: Statutory provisions as regards the principle of separation of powers
• CONSTITUTIONAL LAW – POWER(S) OF THE PRESIDENT: Whether the President of Nigeria can invoke the judicial process to challenge the constitutionality of an Act of the National Assembly which he assented to
• CONSTITUTIONAL LAW – RULE OF LAW: The duty of the judiciary to uphold and preserve the rule of law
• JURISDICTION – JURISDICTION OF THE SUPREME COURT: Extent of the original jurisdiction of the Supreme Court; whether same can only be invoked for the determination of questions on which the existence or extent of a legal right depends
• JUDGMENT AND ORDER – ORDER OF COURT: Proper order the Supreme Court would make where it lacks jurisdiction to entertain a matter
• JURISDICTION – JURISDICTION OF THE SUPREME COURT: Conditions that must exist for the original jurisdiction of the Supreme Court to be invoked; duty of a party seeking to invoke the same