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Election sequence: Court restrains NASS on Electoral Act amendment

…….orders parties to maintain status quo

By Ikechukwu Nnochiri

ABUJA – The Abuja Division of the Federal High Court, on Wednesday, restrained the National Assembly from taking any further action on the Electoral Act (Amendment) Bill, 2018, which President Muhammadu Buhari declined to assent to, pending the determination of a suit that was filed before it by Accord Party.

The court, in a ruling delivered by Justice Ahmed Mohammed, ordered all the parties to maintain status quo antebellum, “at least between now and the next adjourned date”.

Update: Court restrains NASS on Electoral Act amendmentcourt

Justice Mohammed invoked section 6(6) of the 1999 constitution, as amended, which he said empowered the court to protect the Res (subject matter) of the substantive suit pending before it.

He adjourned the case till Tuesday next week, even as directed the service of hearing notice on the Attorney General of the Federation and Minister of Justice, Abubakar Malami, SAN, who though listed as the 2nd Defendant in the matter, was not represented in court.

The court said it took into cognizance, the fact that the NASS could activate its powers under section 58(5) of the Constitution and commence the process of securing two-third majority it would require to override President Buhari’s refusal to assent to the Bill, while the suit is pending before it.

Read also : Electoral Act Amendment : Don backs Buhari’s decision

” If that happens, what will this court be coming back to do in respect of this matter”, the Judge queried, adding however that the preservative order it issued to restrain the NASS did not amount to the court granting reliefs the plaintiff is seeking from the court.

The ruling followed an oral application Accord Party made through its lawyer, Chief Wole Olanipekun, SAN, urging the court to stop the NASS from taking any step on the Electoral Bill, pending the determination of the case.

Olanipekun made the application after counsel to the NASS, Miss C.E. Ogbozor aside requesting for an adjournment of the case to enable her client to respond to the suit, equally declined to enter an undertaking that the legislature would not commence the process of overriding President Buhari’s refusal to accent to the amended Electoral Bill.

According to the plaintiff’s counsel, “My lord the Senate can commence process to override the President almost immediately by securing 2/3rd majority. As at yesterday, the letter of the President refusing to Bill which is the subject matter of this litigation, was read on the floor of the Senate and it is also on all the national dailies today.

“We urge the court to order that further action on the Bill titled Electoral Act (amendment bill) 2018, be stepped down pending the hearing and determination of out motion that was filed on March 7, 2018.

“The court should order that parties must respect the doctrine of lispendis which forbids any party in litigation, whether or not there is an application for injunction, not to do anything that will fragment or extinguish the Res of the litigation.

“If they act under section 58(5), my lord there will be a constitutional crisis, anarchy, chaos and there will be no return to status quo ante belum, so prevention they say is better than cure”, Olanipekun submitted.

The Independent National Electoral Commission, INEC, which was sued as the 3rd defendant, through its lawyer, Mr. T. M. Inuwa, said it was not opposed to the application for the issuance of a restraining order against the NASS.

Meanwhile, counsel to the 1st Defendant (NASS), Miss Ogbozor, insisted that such preservative order should not be granted on the basis of an oral application.

“My lord we submit that the weighty application the plaintiff has made which has consequential implications, if granted, cannot be made orally. The grant of the preservative order as prayed by the plaintiff is simply the grant of the motion on notice.

“It denies the 1st defendant of its right to fair hearing on serious issues that have been raised relating to the powers of the National Assembly to conduct its constitutional duties.

The issue is not that we are here or that we have heard of the suit, the rules of fair hearing under section 36 of the 1999 constitution. The way and manner this application was made, is such that grant of same will amount to irreparable injustice.

“Secondly, he who comes to equity must do so with clean hands. The Bill which the plaintiff is challenging by this action, was sent to the President for assent almost 30 days ago.

“The plaintiff has not said they were not aware of the Bill as at the time it was sent to the President for his assent.

“They rather sat back and waited until now to claim that there will be damage on them if further action is taken on the Bill by the National Assembly.

“In any event that the action of the plaintiff succeeds, the remedy of nullifying whatever action taken by the NASS, will still be adequate.

“However, on our own part, if the 1st defendant is restrained from performing its primary duty which is law making, this court would indirectly interfere with the constitutional powers of that arm of government.

“We therefore submit that this is not the case of prevention is better than cure, but a case of prohibition which is equal to denial”.

She argued that the fact that the Senate read President Buhari’s letter on Tuesday, was extraneous to the case before the court.

“We conclude by submitting that the plaintiff, having not complied with the rules for bringing such application before the court, is not entitled to the reliefs being sought. Especially where the reliefs are predicated on facts that do not constitute the reasons for which the motion on notice was filed”, she submitted.

Accord Party is in its suit marked FHC/ABJ/CS/232/2018, posed nine questions for the court to determine, among which included whether, “Having regard to the combined provisions of section 79, 116, 118, 132, 153, 160(1) and 178 of the Constitution of the Federal Republic of Nigeria, 1999, as amended, read together with paragraph 15(a) of the Third Schedule to the same Constitution, whether the 3rd defendant is not only institution or body constitutionally vested with the powers and vires to organise, undertake and supervise elections to the offices of the President and Vice President of the Federal Republic of Nigeria, the Governor and Deputy Governor of a State, membership of the Senate, the House of Representatives and the House of Assembly of each State of the federation, including fixing the sequence and dates of the elections to the said offices?

Upon determination of the questions, the plaintiff sought 10 principal reliefs, including; “A declaration that the 3rd defendant is the only body and or institution constitutionally vested with the powers, vires and duties to organise, undertake and supervise elections to the offices of the President and Vice President of the Federal Republic of Nigeria, the Governor and Deputy Governor of a State, membership of the Senate, the House of Representatives and the House of Assembly of each State of the Federation, including fixing or assigning dates of the said elections and sequence of same.

“A declaration that the legislative powers vested in the 1st defendant by the constitution do not empower or imbue it with the right, liberty or authority to pass or purport to pass any Bill into Law which attempts to interfere with or undermine the independence of the 3rd defendant, as guaranteed by the content, spirit and tenor of the constitution.

“A declaration that the Electoral Act Amendment Bill, 2018, passed by the 1st defendant, particularly clause 25” thereof, which directs, commands and mandates the 3rd defendant to follow a particular sequence of election into the offices of President and Vice President of the Federal Republic of Nigeria, the Governor and Deputy Governor of a State, membership of the Senate, the House of Representatives and the House of Assembly of each State of the Federation as provided in the said amendment, is unconstitutional, illegal, ultra vires, null and void, and of no effect whatsoever.

“A declaration that by section 153(1)(f) and item 15(a) of the Third Schedule to the Constitution of the Federal Republic of Nigeria 1999 (as amended), the order or sequence of holding the general election is already prescribed such that election to the offices of President and Vice President come first, while elections to other offices follow in the said prescribed order.

“A declaration that the amendment to the Electoral Act, 2010 just passed by the National Assembly prescribing the sequence or order in which elections to the office of President and Vice President of the Federal Republic of Nigeria, the Governor and Deputy Governor of a State, membership of the Senate, the House of Representatives and the House of Assembly of each State of the federation should take place, coming as it were after the 3rd Defendant had released or published its time table and order of election into the offices aforesaid cannot apply to 2019 general elections.

“A declaration that having regard to the fact that the (i) Provisions of sections 76(2), 116(2), 132(2) and 178(2) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) which mandatorily prescribes the holding of elections to the various offices of National Assembly, State Houses of Assembly, President, Vice President, State Governors and Deputy Governors respectively, to be held on a date not earlier than One Hundred and Fifty days and not later than Thirty days before the expiration of the term of office of the last holder of that office;

(ii ) Current National Assembly and various State Houses of Assembly were constituted on 9th of June, 2015 and their tenures will expire and stand dissolved on the 8th of June, 2019; and

(iii ) Present/current President, Vice President, Governors and Deputy Governors of all the States of the federation (except Anambra, Bayelsa, Kogi, Edo, Ondo, Ekiti and Osun States) came into office on 29th day of May, 2015, and their tenure will expire on 28th day of May, 2019;

“The amendment to the Electoral Act, 2010 (introducing a new Clause 25) just passed by the National Assembly which prescribes the sequence/order in which the general elections into the offices of President and Vice President of the Federal Republic of Nigeria, the Governor and Deputy Governor of a State, membership of the Senate, the House of Representatives and the House of Assembly of each State of the federation should take place is in conflict, or has interfered or curtailed the power, right and discretion of the Independent National Electoral Commission (INEC) generally and in particular, in respect of the schedule or sequence of 2019 general election.

“An order setting aside Clause 25 of the Electoral Act Amendment Bill, 2018.

As well as, “An order of perpetual injunction restraining (i) The President of the Federal Republic of Nigeria, represented by the 2nd Defendant, from assenting to the Electoral Act Amendment Bill, 2018, as passed by the 1st Defendant.

” (ii ) The 1st Defendant from passing into law, by a two-thirds majority, or any majority at all, the said Bill as already passed by it”.


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