By Innocent Anaba, Ben Agande& Tordue Salem
LAGOS—A FEDERAL High Court sitting in Lagos, yesterday, held that the amendments recently carried out on the 1999 Constitution by the National Assembly cannot become law and operational without the assent of the President.
The court also held that the purported amendment to the Constitution remained inchoate until it was presented to President Goodluck Jonathan for his assent.
Delivering judgment in the suit by former President of the Nigerian Bar Association, NBA, Mr. Olisa Agbakoba, SAN, challenging the refusal of the National Assembly to forward the amended Constitution to the President for his assent, Justice Okechukwu Okeke declared the 2010 Constitution Amendment Act was null and void.
He said it would remain void until it was sent to the President for his assent.
However, the National Assembly insisted that it would appeal against the ruling since the Federal High Court was not the highest court in the country.
Agbakoba had sued the federal lawmakers; the Federal Attorney General and Justice Minister, Mr. Bello Adoke, SAN, challenging the legality of the claim by the lawmakers that Jonathan’s assent was not required before the amendment to the constitution can become operational.
But the National Assembly had filed a preliminary objection to the suit, urging the court to dismiss the suit with substantial cost.
The federal lawmakers had formulated three grounds for the court to strike out the suit. These were lack of locus standi, lack of jurisdiction and that the court lacked the territorial jurisdiction to adjudicate on the matter.
The National Assembly had argued that only the Attorney General of the Federation, AGF, was empowered under the law to institute such suit. It added that the cause of action arose in Abuja and that Lagos was a wrong place to have filed the suit.
Adoke, in his preliminary objection, argued that he was not a proper party to the suit, being a member of the executive arm of government, and that the suit disclosed no reasonable cause of action against him.
Ruling on the preliminary objections, Justice Okeke held that the plaintiff (Agbakoba) had sufficient locus standi to institute the action since the suit was not a challenge to the debate on the floor of the National Assembly, but the refusal by lawmakers to send the amended Constitution to the President for his assent.
Dismissal of preliminary objections
Citing Section 150 of the Constitution, the court held that Adoke was needed in the proceedings, being the Chief Law officer of the country even as a nominal party or at least to witness the proceedings.
The court thereafter dismissed the preliminary objections by Adoke and National Assembly.
Justice Okeke who cited Section 2 of the Interpretation Act to back his position, noted that the Constitution, having come into law through an Act, can only be amended through an Act, and that an Act of the National Assembly cannot become law without the assent of the President.
He added that the National Assembly can only go ahead to enforce the Constitution where the President refused to sign it thirty days after receiving it.
The court held: “Having failed to comply with the provisions of Section 58 of the Constitution, the purported 2010 amended constitution remains inchoate until it is presented to the President for his assent.”
Agbakoba in the suit had prayed the court to hold that the ‘Constitution (First Amendment) Act 2010’ passed by the National Assembly cannot take effect as law without the assent of the President.
He had contended that the exercise by the lawmakers without the assent of the President was illegal and unconstitutional, urging the court to nullify the amendments on the grounds that the National Assembly had contravened section 58 of the 1999 Constitution.
He prayed the court to hold that in view of the provisions of section 58 (1) of the 1999 Constitution, the assent of the President was a prerequisite before the amendments could become law.
We will appeal —Senate
The Senate, yesterday, said it disagreed with the ruling of the High Court, Lagos on the alteration of the 1999 Constitution, saying it would appeal the judgment.
In a statement in Abuja shortly after the judgment, Chairman of the Senate Committee on Information and Media, Senator Ayogu Eze, noted that though it was within the jurisdiction of the court to reach the decision it did on the matter, the Senate disagreed with that judgment.
Judgment of the court
The statement said: “Our attention has been drawn to the judgment of the High Court sitting in Lagos in respect of the alteration of the 1999 Constitution by the National Assembly. We wish to state that it is within the jurisdiction of the court to reach the decision it did on the matter. However, we disagree with that judgment.
As a law-abiding institution and one charged with the function of making laws for the good governance of the country, we shall appeal against the judgment.
“We believe that the 1999 Constitution did not envisage that any single individual should sign the alteration after the people have spoken through the exercise of their sovereignty. We believe we were right in reaching the decision we did. One should have asked why the governors did not sign the amendment at the time it went to the states for approval.
We were also guided by practice and conventions of other older democracies. The USA passed through the same argument after the Congress passed the bill of rights but the Supreme Court in that country ruled that the assent of the President was not required to alter the constitution.
“Members of the National Assembly embody the mandate and sovereignty of the people and the people speak through them. Sovereignty in a democracy belongs to the people and not to any office. We shall, however, abide by the final outcome of the litigation. We shall definitely appeal this decision which we think did not reflect the spirit and intent of the constitution.”
Reps raise alarm
With the latest judgement by a Lagos High Court, that amendments to the 1999 Constitution are incomplete without Presidential assent, the 2011 elections, upon which some of those amendments were based may be in jeopardy, the House of Representatives has said.
A High Court sitting in Lagos had yesterday ruled on a case brought before it by former Nigerian Bar Association President, Mr. Olisa Agbakoba(SAN), that amendments to the Constitution remain”inchoate”(incomplete), without the assent of the President
The Chairman of the House of Representatives Committee on Rules and Business, Rep. Ita S. Enang(PDP Ibiono/Itu_Akwa_Ibom), while responding to the judgement said, that may set the entire amendments earlier done by the Assembly back and even mar elections in 2011.
“We had in amending the Constitution said that any person that is aggrieved or suspects that the Constitution cannot come into effect without the assent of the President or does not accept the position of the National Assembly that the agreement with the State Houses of Assembly amounts to assent should go to court.
Now somebody has gone to court and the court has ruled. Until another court rules otherwise we are bound by it (judgement) because even if we say we are not bound, the court having ruled that that constitution is inchoate then no court of law of co_ordinate or inferior jurisdiction or even a higher court will enforce it (amendment). It doesn’t matter what we think, the Constitution stands not yet amended”, he said.
He conceded that in the event, the House has two choices: either to abide by the ruling and send the fresh amendments for Executive assent or fall back on the 1999 Constitution and forfeit the amendments already concurred by the state Houses of Assembly and dash the hope of having elections in 2011.
“The options open to us now are: we either forward it (constitution) to Mr. President for assent, which we may have to do or we fall back on he 1999 Constitution to guide the conduct of the 2011 elections without any of the amendments proposed.
Therefore the greater consequence of this is that the Constitution Second Amendment Bill which we had concluded in the National Assembly and which we were to forward to the State Houses of Assembly to ratify will have to be put on hold.
As it is now there is nothing to forward since the court has said that the Constitution that we earlier amended gazetted and published as Act No. 5 of 2010 has not come into force having not been signed into law. In other words, any amendment that is based on it is null and void”, he lamented.