2019: Appeal Court nullifies judgement stopping NASS from reordering election sequence

Chambers of the Nigerian Senate used to illustrate the story.
Chambers of the Nigerian Senate used to illustrate the story.

An Abuja Division of the Court of Appeal on Wednesday nullified the April 25 judgment of the Federal High Court which struck out the National Assembly’s election re-ordering provision of the Electoral Act (Amendment) Bill 2018.

A five-member panel of the court headed by the court’s president, Zainab Bulkachuwa, also made a definite pronouncement to the effect that a bill could not be challenged in court until it becomes an Act.

According to a report in The Punch newspaper, Ms Bulkachuwa ruled that the Federal High Court wrongly assumed jurisdiction to entertain the suit and erroneously struck down the provision.

The National Assembly had removed the controversial section after the furore it generated. It resent the revised edition of the bill to President Muhammadu Buhari for assent.

The judgment of the Court of Appeal has cleared the way for a possible re-introduction of the provision in the future.

“The lower court operated under the erroneous impression that the bill had become an act,” Ms Bulkachuwa said in her lead judgment which was consented to by the four other members of the panel.

“A bill does not become an Act until it has been assented to by the President after it has been passed by the two Houses of the National Assembly,” she ruled.

She also said, “The bill, which is Exhibit 1, remains a bill and it is inchoate”, noting that “the National Assembly has not completed its legislative duty as far as the Electoral Act (Amendment) Bill, 2018, is concerned.”

She said a court could only nullify a law if it violated a provision of the Nigerian Constitution noting a court could not do such “at the embryonic stage of a legislative process.”

She said the bill “has no binding force and cannot have any legal effect of the law” since the bill had not become an Act.

“The bill has no legal effect and cannot create a cause of action,” the court added.

The court did not bother to pronounce on the constitutionality of Section 25 of the bill since it declared that the suit which was originally filed by the Accord Party at the Federal High Court was premature, coming ahead of the maturity of the bill into an Act.

It ruled that the suit was a mere academic exercise as it was not justiciable (decided by a court).

The court also said the Accord Party, who is the plaintiff at the Federal High Court in Abuja, lacked the locus standi (the legal right) to institute the action as it was unable to show which of its rights or obligations that would suffer if the bill was assented to by the president.

PREMIUM TIMES reported how a judgement on April 25 in Abuja by the federal high court presided by Ahmed Mohammed ruled that only the Independent National Electoral Commission (INEC) had the powers to create an election template for the country.

Mr Mohammed also ruled that any attempt by the National Assembly to amend Section 25, as done by the legislature, would first require an amendment of the constitution.

The Federal High Court’s judgment subsequently voided the elections’ sequence provision of the Electoral Act (Amendment) Bill, 2018.

The appeal ruled upon by the Court of Appeal was filed by the National Assembly against the April 25 judgment despite its soft pedalling.

The controversial provision in the said bill sought to alter the sequence in which the presidential, governorship, the federal and state legislative houses elections will be conducted.

Meanwhile, the Senate President, Bukola Saraki, who recently defected from the ruling APC has praised the judgment.

Mr Saraki, in a statement by his special adviser, Media and Publicity, Yusuph Olaniyonu, on Wednesday said it is essential to test the laws in court by seeking judicial interpretations on contentious issues.

“By doing so, we will be expanding the scope of our laws, sharpening the rough edges of legislation and asserting our faith in the judiciary as a fundamental arbiter,” he said.

It is not yet clear what further legal steps the presidency will take in light of the new development.

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