By Hameed Ajibola Jimoh Esq.
The President of the Federal Republic of Nigeria has on the 7th day of August, 2020, been reported to have assented to the Companies and Allied Matters, Bill, 2020, which had since the month of March, 2020, been passed by the National Assembly and sent to the President for his assent or veto of the bill as required by section 58(3) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended)-herein after referred to as the Constitution.
There have been some questions emanating from some of the members of the public and some few legal practitioners on whether the said bill passed into law by the President is valid having regards to the facts that the said assent was made after thirty (30) days required by the Constitution, though, the President might likely use the Covid-19 pandemic as reason for the delay (which started around the month of March, 2020). Nevertheless, this paper, having considered all the arguments, raises an issue for consideration under the context of this paper by ‘interrogating the constitutional requirement of the assent of the President within 30 days for the validity of the said Bill’. In essence, what this paper interrogates is the legal implications of the Presidential assent to the bill made after the constitutional mandated period of 30 days.
First and foremost, for the purpose of clarification, the procedures for the passage of a bill into law (aside money bill) has been explicitly stated in section 58 of the Constitution thus ‘58.—(1) The power of the National Assembly to make laws shall be exercised by bills passed by both the Senate and the House of Representatives and, except as otherwise provided by subsection (5) of this section, assented to by the President.
(2) A bill may originate in either the Senate or the House of Representatives and shall not become law unless it has been passed and, except as otherwise provided by this section and section 59 of this Constitution, assented to in accordance with the provisions of this section.
(3) Where a bill has been passed by the House in which it originated, it shall be sent to the other House, and it shall be presented to the President for assent when it has been passed by that other House and agreement has been reached between the two Houses on any amendment made on it.
(4) Where a bill is presented to the President for assent, he shall within thirty days thereof signify that he assents or that he withholds assent.
(5) Where the President withholds his assent and the bill is again passed by each House by two-thirds majority, the bill shall become law and the assent of the President shall not be required.’.
Furthermore, the procedures for passage of bill into law was also explained and held in the case of NASS v. PRESIDENT, FRN & ORS (2003) LPELR-10151(CA) ” Per ODUYEMI, J.C.A. (Pp. 42-52, Paras. E-C) thus ‘Once again, the parties are agreed about the process described in the lower Court by learned Senior Counsel to the 2nd defendant- Now the appellant in this Court – Turaki, Esq. SAN that there are 8 stages which a bill must pass through to become an Act – He lists them thus: “On the 2nd issue, it was submitted that under the 1999 Constitution, there are eight stages or steps a bill must go through to become an Act. First, a bill has to be sponsored either by the executive, the judiciary or any member of the two legislative houses or private individuals, or organizations. It can be commenced in either of the two houses. Second stage is first reading of the bill. This is a formal introduction of the bill, without debate by the person presenting it or the person moving it, on behalf of the person presenting it. Where it is so read it is recorded in the journal of the house for record purposes. A date is now fixed for the 2nd reading of the bill. 3rd stage is the 2nd reading of the bill, where general debate on the bill is allowed. 4th stage is the committee stage. Either the Committee of the whole House or the standing committee. 5th stage is the report stage. The report of the Committee with observations and recommendations is presented to the whole house. 6th stage is the 3rd reading, the recommendation of the committee is debated and considered and when it is accepted, the bill is taken as having been passed. 7th stage is the passage of the bill by the other house. 8th stage is the presidential assent.”
From the above cited case (supra), it is my humble view that the procedures 1-7 were complied with in the present discourse up-till the month of March, 2020 while the procedure 8 was only complied with only on the 7th day of August, 2020 (for a period beyond the constitutionally mandated 30 days. See: section 58(4) of the Constitution). The legal implications of this delay in my humble view is that the assent of the President would not be required any more on the expiration of the 30 days required by the Constitution. In other words, since the President did not signify that he assents or that he withholds assent within the mandated 30 days (the word used by the constitution is ‘shall’ which means obligation. the word ‘shall’ as used in section 58(4) of the Constitution has been defined in the case of Abimbola v Aderoju (1999)5 NWLR (pt.601) 100 C.A. thus ‘The word ‘shall’ in ordinary meaning is a word of command and one which has always or which must be given a compulsory meaning as denoting obligatory. It has a preemptory meaning and it is generally imperative and mandatory’. Furthermore, the word ‘shall’ was also defined in the case of Tanko v Caleb (1999)8 NWLR (pt. 616) 606 C.A. thus ‘The word ‘shall’ is a word of command and denotes obligation and gives no room for discretion. It imposes a duty’). One then wonders why the National Assembly did not follow the procedures laid down by the Constitution in section 58(5) of the Constitution when the President had refused to assent and returned the earlier bill of 2018 back to the National Assembly?! Therefore, in my humble view, the bill is deemed to have become an Act of the National Assembly (which no more requires Presidential Assent) and shall be deemed to have commenced on the day next after the expiration of the said 30 days. My view is in consideration of the view shared by Professor Jadesola Akande in the book ‘Akande: Introduction to the Constitution of the Federal Republic of Nigeria, 1999, MIJ Publishers Limited, 2000, Lagos, at page 142, where the following position was stated ‘3. He can refuse to sign the Bill but retain possession of it. It then becomes law at the end of 30 days after its presentation…’. Therefore, from this quotation, it means in my humble view too that the retention of the Bill for more than 30 days by the President amounted to his refusal and the retention at the same time, negates the need for his assent and the deemed passage of the Bill into law by operation of law is confirmed and or affirmed. Therefore, the said Bill had in my humble view, with due respect to the President, become an Act of the National Assembly (law) since a day after the expiration or elapse of the said 30 days. This my position is correct, having regards to some legal principles that I humbly rely on, for instance, the case of ADHEKEGBA V. HON. MIN. OF DEFENCE (2013) LPELR-20154 (CA) where it was held thus “It is an established principle of law that where a law provides for a procedure for doing an act, that procedure must be followed for the subsequent act to be valid. Thus, once there is a condition precedent to be adopted before an aggrieved party does an act, if that condition precedent is not satisfied, the act carried out will be regarded as invalid. Moreover, where the law prescribes the doing of a thing as a condition for the performance of another, failure to do such a thing renders the subsequent act void.”. I also humbly rely on the case of SARKIN FULANI MALISA v. AISHATU RUWA TUFARA (2017) LPELR-43919(CA) (Per MUKHTAR, J.C.A. (Pp. 4-8, Paras. D-F)). Furthermore, the case of OBI-AKEJULE & ORS. v. DELTA STATE GOVERNMENT & ANOR. (2008) LPELR-4265(CA) is also referred to where the Court held as follows “From the foregoing ratio of the two learned justices of the Supreme Court, and despite our reservations about the inequity of retrospective legislations, it seems to me that irrespective of when the Bill was given assent by the Governor, the date of commencement takes priority over the date of assent to the extent that it is the date of commencement that all rights, duties and obligations became vested on or divested from those affected by it.” Per OGUNWUMIJU, J.C.A. (P.16, Paras.E-G).
Finally on this issue is my humble submission that the assent of the President having not been required before the said Bill could become a law (Act) of the National Assembly cannot amount to ratification of the deemed passage as the Bill has since become law by operation of law and so the principle of ratification cannot be applicable to this case. See: 3. OGUNSEYE & ORS v. REGISTERED TRUSTEES OF WORLD MISSION AGENCY INCORPORATED & ORS (2017) LPELR-42767(CA) “In ordinary English usage, the word “ratify” is a transitive verb which means “to approve and sanction formally”. “Ratification” on the other hand is used in the noun sense, and its transitive verb “ratify” also means “to approbate”, “finalize”, “confirm” or “approve” an act done. In the legal sense however, let me appropriate the definition of “ratification” in the Black’s Law Dictionary (7th Edition) page 1268 – 1269; as follows: “Confirmation and acceptance of a previous act, thereby making the act valid from the moment it was done. A person’s binding adoption of an act already completed but either not done in a way that originally produced a legal obligation or done by a third party having at the time no authority to act…” In law therefore, “ratification” means the act of approval of the principal by an act of its agent where the agent lacked the authority to so act. The effect of ratification therefore is to put the parties concerned in the same position as that in which they would have been if the act ratified had been previously authorized. It therefore means that, even if the act was done without authority of the assumed principal and therefore invalid, the principal can ratify the act done without his authority. See Vulcan Gases Ltd v. F.F. Ind. A.G. (2001) 9 NWLR (pt.719) p.610; Carlen (Nig.) Ltd v. Unijos (1994) 1 NWLR (pt.323) p.631 and United Bank for Africa Plc v. Hon. Sunday Johnson & Anor (2008) LPELR – 5062 (CA). Ratification may be express or implied. Implied ratification may arise from any act which shows an intention to adopt the transaction. It may arise by silence or acquiescence with the act done without an earlier authority. Thus, in the case of Carlen (Nig.) Ltd v. Unijos & Anor (supra) at p.667, Onu, JSC said: “Indeed, in law of agency, ratification will be implied from any act showing an intention to adopt the transaction, even silence or mere acquiescence and if an act is adopted at all, it will be held to have been adopted throughout.” Per TSAMMANI, J.C.A. (Pp. 17-19, Paras. C-A).
Finally, I humbly submit that the President’s assent is not required for the CAMA Bill, 2020, to become law since it has since been deemed to have become law since a day after the expiration of the 30 days mandated by the Constitution for the President to signify his assent or refusal thereof. Therefore, the CAMA Bill, 2020, is long validly passed into law without the President’s assent. Also, Covid-19, cannot be an excuse for the delay for the President’s assent same not having been contemplated by the Constitution. In INEC v. Musa (2003) 3 NWLR (pt. 806) 72 it was held that:- 1. The Constitution is supreme, and the validity of any provision will be tested by the following interrelated propositions, that is: (a) All powers, legislative, executive and judicial must ultimately be traced to the Constitution; (b) The legislative power of the legislature cannot be exercised inconsistently with the Constitution where it is so exercised, it is invalid to the extent of such inconsistency; (c) Where the Constitution as enacted exhaustively in respect of any situation, conduct or subject, a body that claims to legislate in addition to what the Constitution has enacted must show that it has derived the legislative authority to do so from the Constitution. (d) Where the Constitution sets the condition for doing a thing no legislation of the National Assembly or of a State House of Assembly can alter those conditions in any way, directly or indirectly, unless the Constitution itself as a attribute of its supremacy expressly so authorized, P. 157. Provisions in a Constitution are of equal strength and constitutionality. No provision is inferior to the other, and a fortiori, no provision is superior to the other. See INEC v. Musa (2003) 3 NWLR (pt. 806) 72.”. Therefore, the onus is on the President (with due respect) to satisfy and or prove that the said assent was given within the said mandatory 30 days.