Appeal Court Restores N’Assembly Powers on Election Reordering

By Alex Enumah in Abuja

The Court of Appeal has restored the powers of the National Assembly to make laws in the order in which election are to be conducted by the Independent National Electoral Commission (INEC).

The appellate court, in a judgment delivered Wednesday in an appeal by the National Assembly, quashed the judgment of the Federal High Court which prohibited the National Assembly from vetoing the president’s powers in assenting to the Electoral Act (amendment) Bill, 2018.

In the unanimous judgment delivered by the President of the Court, Justice Zainab Bulkachuwa, the five-member panel of the court held that the case of the Accord Party, which led to the judgment of the High Court, was premature at the time it was filed.

According to the judgment, the decision of the trial court in entertaining the suit amounted to a breach of the Doctrine of Separation of Powers.

The court consequently nullified the judgment of the lower court.

The court stated that the suit of the Accord Party on the legality of the powers of the National Assembly on election reordering was an academic exercise because the party has no legal right to do so in the first instance.

Specifically, the Court of Appeal President said that the Accord Party failed to establish how its rights and obligations were adversely affected by the election reordering bill other than that of the general interest.

The Appeal court further stated that a bill has no legal effect to expose it to being challenged on the basis of the violation of the constitution of the country, until it has been passed by the two chambers of the National Assembly and assented to by the appropriate authority.

“The constitution does not envisage that a suit would be filed to challenge a bill at the embryonic stage of legislation because it has no binding effect until it has been assented to,” Justice Bulkachuwa said.

On the position of the Attorney General of the Federation (AGF) that the controversial election reordering provision had been deleted by the National Assembly and thus the appeal overtaken by the deletion of the provision, the Appeal Court however disagreed, noting that the appeal case has life in itself.

Justice Bulkachuwa therefore upheld the powers of the National Assembly to legislate on election reordering and dismissed the suit of the Accord Party, AGF and the INEC.

“Since the suit is not justiciable, it shows that it is frivolous and not a genuine litigation.

“This appeal is allowed. It has merit and the judgment of the Federal High Court is hereby set aside and the suit is hereby dismissed,” Justice Bulkachuwa held.

Following attempts by both chambers of the National Assembly to implement Section 58 of the Constitution, which allows the legislature to override the decision of the president to assent to the Electoral Amendment Bill 2018, the Accord Party had rushed to court to seek the court’s determination whether INEC is not the only institution constitutionally vested with the powers to organise, undertake and supervise elections, including fixing the sequence of elections to various elective offices in the country.

Joined as defendants are: the National Assembly, the AGF and INEC.

In his judgment, the trial judge, Justice Ahmed Ramat Mohammed of the Federal High Court, Abuja, had held that the election timetable earlier released by INEC could not be altered by the legislature.

The trial court accordingly ordered the legislators to refrain from taking steps to veto the president.

However in its appeal, the National Assembly, which was the 1st defendant at the trial, asked the appellate court to set aside the decision of Justice Mohammed and dismiss in its entirety the plaintiff’s claims in the Originating Summons.

In the Notice of Appeal filed through its lawyer, Joseph Daudu (SAN), the legislature stated that the trial judge erred in law when he assumed jurisdiction to entertain and determine the suit and contended that the trial judge failed to appreciate that until the Electoral Act (Amendment) Bill 2018 was passed into an Act by the exercise of the legislative power of the National Assembly to override the veto or withholding of assent to the Bill by the president, the same remained inchoate and not capable of vesting a justiciable civil right or obligation on any person, including the plaintiff.

The legislature further contended amongst others, that the lower court wrongly interpreted the provisions of Section 4(8) of the 1999 Constitution (as amended), so as to reach the conclusion that the Federal High Court was vested with jurisdiction to impugn a Bill perceived to be unconstitutional.