The National Open University of Nigeria amended the Act establishing the University (NOUN Act 1983) to correct the conception the public have about the University. The Council of Legal Education (CLE) the body responsible for the admission of Law Graduates into Nigerian Law School (NLS) for vocational training and National Youth Service Corps (NYSC) have denied NOUN Graduates admission into Nigeria Law School and participation in one year compulsory National Youth Service Corps on the ground that NOUN is a correspondence and part-time study University based on the lacuna in the previous Act establishing NOUN before its amendment, that stated that the University shall be run through correspondence and Meanwhilestudy. Mean while in the actual running of the University it has been through full-time Open and Distance Learning.
The Nigerian Senate in an attempt to save the Law Graduates of NOUN in collaboration with Tertiary Education Trust Fund (TETFUND) sponsored a bill for an Act to amend NOUN Act to pave the way for the admission of NOUN Law Graduates into Nigerian Law School. The bill was successfully passed by the National Assembly and assented by the President. After the enactment of the Act, the opinion whether the amended provisions of the NOUN Act will affect the already Graduated Law Students of the University before the amendment of the Act is being entertained. It has been observed that there are opinionists holding the view that the new amended provisions in NOUN Act 1983 (as amended) 2017 cannot be applied retroactively, for that the new provisions cannot affect the already graduated Law Students of the University before those provisions were made into the NOUN Act 1983 (as amended) 2017
It is on the basis of the above view this discourse is about to contend and address.The proposition that the new amended provisions in NOUN Act, 1983 (as amended) cannot be applied retroactively as to have effect on the already graduated NOUN Law Students before the amended provisions in the NOUN Act, base on the fact that National Assembly cannot make a retrospective Law in my humble view is not only an error but also at variance with the clear and unambiguous provisions of the Nigeria Constitution, 1999 (as amended) and also risk misleading Council of Legal Education (CLE) and undiscerning public. This is especially so, having regard to all the relevant legal authorities and the extant NOUN Act, 1983 (as amended) 2017.
Before embarking on the discourse the following frameworks will be used in resolving the contention.
(1) What is the limit of the power of National Assembly to make laws under Nigeria Constitution?.
(2) When is a Federal Civil Legislation Affect a pending case (i.e the pending case of admission of NOUN Law Graduates into Nigerian Law School)?.
Powers of National Assembly to Make Laws under the 1999 constitution
Section 4 of the constitution provides that:
(1)’The legislative powers of the Federal Republic of Nigeria shall be vested in a National Assembly for the Federation, which shall consist of a Senate and a House of Representatives’; and
(2)’The National Assembly shall have power to make Laws for the peace, order and good government of the Federation or any part thereof with respect to any matter included in the Exclusive Legislative List set out in Part I of the second schedule to this constitution.’
It should be noted that with emphasises that with respect to any matter included on the Exclusive Legislative List. This clearly indicates that the powers of law making for the order and good governance of Nigeria are vested in the National Assembly to the exclusion of any other arm and authority of government. To this extent, an extreme view of the powers vested in parliament is to suggest that the National Assembly is Supreme. The implication is that the National Assembly has unfettered powers, subject only to the supremacy of the Constitution to make laws on any matter listed for its legislative competence by the Constitution.
A highly respected Constitutional Lawyer, Prof. Ben Nwabueze, also opined that, “… the legislature is the distinctive mark of a Country’s Sovereignty, the index of its status as a State and the source of much of the power exercised by the Executive in the administration of government. The Sovereign power of the State is therefore identified in the organ that has power to make Laws by legislation, and to issue ‘commands’ in the form of Legislation binding on the community.”
To this extent, it is trite to stress that no one can question the legitimacy or legality of a law made by the National Assembly, except the Judiciary, and this is only where the law is inconsistent with the Constitution. See Abacha V. Fawehinmi (2000) 4SC (Pt. 11) and Bolonwu V. Gov. Anambra State (2009) 18 NWLR (Pt.1172) 13
The limit of the powers of the National Assembly under the Constitution.
The limits of the powers of the National Assembly are only circumscribed by the Constitution. And this is only in relation to matters where the Constitution itself has covered the field. The principle is that where the constitution has defined or provided for the exercise of a right in a particular manner, no legislation either by the National Assembly or a state house of assembly can extend it in a statute short of an outright Constitutional amendment. See Attorney General of Ogun State v Attorney General of the Federation  2 NCLR, 166, 180-181, or repeat, duplicate, add or subtract from the provision. See Attorney General of Abia State v Attorney General of the Federation, (2002) 9 NSCQLR 670, 785, 788.
The implications of the two authorities above are that only the Constitution is superior to the National Assembly and where the National Assembly exceeds its powers under the Constitution, it is only the Judiciary that can reverse it. This is because under the principle of the doctrine of separation of powers in a Constitutional democracy, the powers of checks and balances are allocated in the three arms of government thus: the Legislature which makes the law, the Executive, which implements the law and the Judiciary, which interprets the law. In this regard, the legislative powers of the National Assembly are Constitutionally restrained or subjected to the powers of the Judiciary to interpret the laws made by it to ensure that the National Assembly does not become a law unto itself.
Thus, the CFRN 1999, provides under Section 4(8) that: “Save as otherwise provided by this Constitution, the exercise of legislative powers by the National Assembly shall be subject to the jurisdiction of the courts of law and of judicial tribunals established by law and accordingly, the National Assembly or a House of Assembly shall not enact any Law that ousts or purports to oust the jurisdiction of a Court of Law or of a judicial tribunal established by Law.” It is important to stress that the National Assembly’s powers to make Laws for the Peace, Order and Good Governance, is limited to matters contained in the Exclusive Legislative List. It cannot be extended as in military dictatorship or unconstitutional government to any part thereof and with respect to any matter whatsoever.
Limit of the Powers of National Assembly in respect of Retrospective Law.
The Nigeria Constitution in section 36 provide that:
(8) No person shall be held to be guilty of a criminal offence on account of any act or omission that did not, at the time it took place, constitute such an offence, and no penalty shall be imposed for any criminal offence heavier than the penalty in force at the time the offence was committed.
Article 20 of the Indian Constitution, 1950, provides certain safeguards to the person accused of crime. Article 20(1), imposes a limitation on the Law making power. It prohibits the Legislature to make Retrospective Criminal Laws, however, it does not prohibit a civil liability retrospectively i.e with effect from a past date.
The above Constitutional provisions only prohibit the National Assembly from making a retrospective Criminal Legislation not a Civil Legislation, which is not the concern of this discourse.
The Effect of an Amended Federal Civil Legislation on a pending case.
Retrospective v Prospective.
The dictionary meaning of the word prospective with reference to statutes shows that it is concerned with or applying the laws in future or atleast from the date of commencement of the statute. Whereas the word retrospective when used with reference to an enactment may mean:
1. Effecting an existing contract or
2. Reopening of the past , closed and completed transactions, or
3. Affecting accrued rights and remedies, or
4. Affecting procedure.
The retrospective operation of an enactment may mean one thing and its affecting the rights of parties another.
The U.S. Supreme Court cases Landgraf v. USI Film Products, 511 U.S. 244 (1994) and Lindh v. Murphy, 521 U.S. 320 (1997) provide the framework to be used in determining when an amended Federal Civil Statute Retrospective as opposed to Prospective such that its affect pending case.
First, look for an “unambiguous directive” from congress as to the temporal reach of a statute. If one is found, it is generally controlling and the inquiry ends. Mathews v. Kidder, Peabody & Co., 161 F.3d 156, 161 (3d Cir. 1998) (citing Landgraf, 511 U.S. at 263).
Otherwise, use the rules of statutory construction to determine if Congress intended the statute to apply only to future cases. Again, if this intent is found, it is controlling and the inquiry ends.
If there is neither an express command nor an intent to apply a statute prospectively only, look to the effect that the statute will have. If it would “impair rights a party possessed when he acted, increase a party’s liability for past conduct, or impose new duties with respect to transactions already completed,” then it has a “retroactive effect” and should only apply prospectively, unless Congress clearly intended to apply the statute to pending cases. Id. (citing Landgraf, 511 U.S. at 280).
Conversely, if it would merely affect prospective relief, change procedural rules, or allocate jurisdiction, then apply the statutory construction rules to determine whether it should be applied retroactively.
In analyzing the “retroactive effect” of statutes under the last step of the test, which is applicable to NOUN Act 1983 (as mended) 2017. The Courts are concerned with protecting vested, substantive rights. Amendments that are procedural or remedial in nature, are permitted to have effect retroactively. A summery of the case in Legal Assistance for Vietnamese Asylum Seekers v Dep’t of State Bureau of Consulate Affairs, 104 F3d 1349, 1352 (D.C. Cir1997) will be instructive.
Legal Assistance for Vietnamese Asylum Seekers v. Department of State, Bureau of Consular Affairs, 45 F.3d 469 (D.C.Cir.1995), reh’g denied, 74 F.3d 1308 (D.C.Cir.), vacated, ___ U.S. ___, 117 S.Ct. 378, ___ L.Ed.2d ___ (1996) [hereinafter LAVAS], an abbreviated version.
During the 1980s an overwhelming number of migrants from Vietnam and Laos fled their home countries seeking refuge in other countries in Southeast Asia. To deal with the migration crisis some 50 countries, including the United States, entered into an international agreement known as the Comprehensive Plan of Action (“CPA”). Under the CPA, Vietnamese and Laotian migrants who land in other countries are screened by local officials to determine refugee status. Those migrants who are “screened-out,” that is determined not to be refugees, are repatriated. A repatriated migrant may then apply for an immigrant visa from his home country. Until 1993, the United States Consulate General in Hong Kong processed the visa applications of migrants before, and sometimes after, they were screened-out as nonrefugees. Other nations party to the CPA objected that this practice encouraged further migration, so the State Department adopted a policy against processing visa applications of “screened-out” Vietnamese or Laotian migrants in Hong Kong. Under current State Department policy, the migrant is repatriated and his visa application is processed in his home country.
In 1994, two Vietnamese migrants, the migrants’ sponsors in the United States, and a nonprofit legal-rights organization challenged the State Department policy under Section 202 of the INA, 8 U.S.C. § 1152(a), which [104 F.3d 1351] prohibits United States consular officials from discriminating on the basis of nationality in the issuance of immigrant visas. The plaintiffs also claimed that the policy was arbitrary and capricious within the meaning of the Administrative Procedure Act (“APA”), 5 U.S.C. § 706(2)(a), and that it violated the equal protection component of the Fifth Amendment’s Due Process Clause. The district court granted the State Department’s motion for summary judgment.
In LAVAS, a divided panel of this Court reversed, holding that the consular venue policy violated 8 U.S.C. § 1152(a)(1) because the State Department had drawn a distinction between Vietnamese and Laotian nationals and nationals of other countries. 45 F.3d at 473. We did not reach plaintiffs’ remaining APA or constitutional claims. The government filed a petition for rehearing and suggestion of rehearing en banc. In the meantime, on remand, the district court held that the case had become moot. 909 F.Supp. 1 (D.D.C.1995). The panel reversed as to mootness and held that rehearing was unwarranted. 74 F.3d 1308 (D.C.Cir.1996).
While the government’s rehearing petition in LAVAS was pending, a separate action, Le v. United States Dept. of State, was filed in United States District Court. The district court, relying on this Court’s opinion in LAVAS, granted summary judgment for plaintiffs and enjoined the Government from implementing its policy of declining to process the applications of screened-out migrants in Hong Kong. 919 F.Supp. 27 (D.D.C.1996). The Government appealed the injunction, and this Court granted initial hearing en banc. In the meantime, the Supreme Court granted certiorari in LAVAS. ___ U.S. ___, 116 S.Ct. 2521, 135 L.Ed.2d 1046 (1996). We then suspended en banc proceedings in Le pending the Supreme Court’s decision.
On September 30, 1996, shortly before the Supreme Court was to hear oral argument in LAVAS, the President signed into law the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRA”) (enacted as Division C of the Department of Defense Appropriations Act, 1997, Pub.L. No. 104-208, 110 Stat. 3009 (1996)). Section 633 of the IIRA amends the Immigration and Nationality Act (INA) by adding the following to 8 U.S.C. § 1152(a)(1): “(B) Nothing in this paragraph shall be construed to limit the authority of the Secretary of State to determine the procedures for the processing of immigrant visa applications or the locations where such applications will be processed.” After requesting supplemental briefing on the effects of section 633, the Supreme Court vacated our judgment in LAVAS and remanded the case to us for “further consideration in light of Section 633.” ___ U.S. ___, 117 S.Ct. 378 (1996) (per curiam). We then consolidated LAVAS and Le.
The State Department argues that section 633 applies to plaintiffs’ claim. Although section 633 was not in effect at the time the State Department enacted the new policy, the State Department asserts that Congress intended section 633 to be retroactive from its enactment. The State Department further argues that section 633 applies because the plaintiffs are seeking only prospective relief.
We need not determine whether Congress intended section 633 to apply retroactively because we hold that application of the amendment does not raise retroactivity concerns. Plaintiffs’ claim raises a procedural right and is governed by the INA as amended by section 633. We also hold that this case concerns prospective relief and so does not raise problems of retroactivity.
The Effect of NOUN Act Amendments on NOUN Law Graduates.
The amendment that was carried out in NOUN Act only changed the method of running the institution from Correspondence and Part-time Study to Full-time Open and Distance Learning. It is originally aimed to redressing the continue denial of NOUN Law Graduates (NLG) admission into Nigeria Law School (NLS). In the amended provisions in NOUN Act only stipulated the mode by which the institution is to be operating. Which is a matter of procedure. Retrospective effect is permitted in case of procedural. See Smt. Dayawati v. Inderji.
Base on the forgoing, with regard to the above relevant authorities, it is trite to conclude that the NOUN Act 1983 (as amended) 2017 has effect on the already graduated students before its amendment.
Aidomokhai Cyril Longe. LL.B (HON), Principal @ Aidomokhcylaw Coordinates (Property Contractor, Consultant and Legal Services Commission)
Email: email@example.com, Tel: 08054545445, Whatsapp: 08064614108