By AHURAKA ISAH
The 1st Respondent in this appeal had by his Originating Summons dated and issued out of the Federal High Court, Abuja on 7th March, 2018, against the Appellant and 3rd Respondents as Defendants sought for the determination of the following questions:
Having regard to the combined provisions of section 79, 116, 118, 132, 153, 160(1) and 178 of the 1999 Constitution (as amended), (the Constitution), read together with paragraph 15(a) of the Third Schedule to the same Constitution, whether the 3rd defendant is not the only institution or body constitutionally vested with the powers and vires to organize, 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”.
Considering the combined provisions of sections 79, 116, 118, 132, 153, 160(1), 178 of the Constitution read together with paragraph 15(a) of the Third Schedule to the same Constitution, whether the 1st defendant possesses the powers and vires to propose any Bill or pass any Bill into an Act which directs or purports to direct, mandates or purports to mandate, dictates to or purports to dictate to the 3rd defendant to follow a particular sequence in the organization and conduct of elections to the offices of President and Vice President, 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?
Having regard to the clear provision of section 1 (3) of the Constitution, read together with section 4 of the same Constitution, whether the legislative powers vested in the 1st defendant permit or empower it to make any law or pass any Bill into an Act which derogates from the specific and clear provisions of the Constitution, vesting in the 3rd defendant the duties, powers and vires to organize, conduct, 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?
Having regard to the combined provisions of sections 79, 116, 118, 132, 153, 160(1) and 178 of the Constitution read together with paragraph 15(a) of the Third Schedule to the same Constitution, whether the 3rd defendant can organize, undertake and supervise the 2019 General Elections into the offices of the President and Vice President or 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, otherwise than as provided and mandated by the clear provisions of the Constitution?
It must be noted that the 1st Defendant now Appellant filed Preliminary Objection against the Suit contending that the 1st Respondent as Plaintiff lacked the capacity to initiate the action and that the Suit was not justiciable. The jurisdiction of the lower Court to adjudicate on the Suit was also called to question.
The Originating Summons and the Preliminary Objection were heard together.
The learned trial Judge gave a considered judgment on 25th April, 2018 wherein the Preliminary Objection of the 1st Respondent was dismissed and on the merit the lower Court found in favour of the Plaintif.
ISSUES FOR DETERMINATION
Whether the trial Federal High Court was not in error when it resolved the preliminary objection wherein the issues of (i), the prematureness of the action, (ii) justiciability, (iii) Absence of locus standi, (iv) Non-joinder of necessary parties, (v) Non-disclosure of a reasonable cause of action etc were raised against the competence of the originating summons in favour of the Plaintiff/1st Respondent? (Issue No. 1) (Grounds 1, 2, 3, 4, S, 6, 7 and 8 of the Notice of Appeal).
Whether the trial court was not in error when it resolved the substantive issue for determination against the Appellant and held that section 25 of the Electoral Act (amendment) Bill is unconstitutional, null and void? (Issue No. 2) (Grounds 9, 10, 11, 12, 13, 14, 15, 16 and 17 of the Notice of Appeal).
I will determine this appeal on the basis of the issues raised for determination in the appellant’s brief.
Before I delve into the determination of the said issues, let me deal with a preliminary point that was raised by all the respondents herein, which is akin to a preliminary objection to this appeal. The point was first raised and argued in paragraph 4.57 at page 19 of the 2nd respondent’s brief thus-“on the other hand, we again urge your Lordship to take judicial notice of the fact that the appellant has transmitted another version of the Electoral Act (Amendment) Bill to the President for assent. The appellant has expunged the controversial clauses (particularly Section 25) from the new bill. The Bill that led to the action before the lower court and the instant appeal is no longer in existence. It has been overtaken by events. In view of the foregoing development we urge your Lordships to hold that the instant appeal has become academic. Assuming that your Lordships Find in favour of the Appellant, reversing the judgment of the trial court would serve no useful purpose in view of the existence of a new Bill. It is not the practice or business of a court of law to grant an order that cannot be implemented or that will serve no legal or utilitarian value.”
At the hearing of this appeal on 19-7-2018, Learned Solicitor-General of the Federation for the 2nd respondent informed this court that the Honourable Attorney General of the Federation had written a letter to this court forwarding to this court a copy of the new Electoral Act (Amended) Bill 2018 proposed by the appellant during the pendency of this appeal, which new Electoral Act (Amendment) Bill does not contain a proposal for the amendment of S.25 of the Electoral Act 2010 on sequence of election, which proposal in the first Electoral Act (Amendment) Bill was the cause of the action in Suit No. FHC/ABJ/CS/232/2018. This court has seen the letter.
All the respondents through their respective Counsel argue in substance that the appellant by now proposing the said new Electoral Act (Amendment) Bill during the pendency of this appeal, has abandoned the Electoral Act (Amendment) Bill it previously proposed which caused the suit that has led to this appeal because it proposed the amendment of S.25 of the Electoral Act 2010. That the appellant having abandoned the previously proposed Electoral Act (Amendment) Bill that caused the suit that led to this appeal against the judgment in that suit, has become academic as the question of the constitutionality of the proposed amendment of S.25 of the Electoral Act 2010, the central issue decided by the trial court and the central issue in this appeal has become redundant and no longer alive for a useful consideration and thereby rendering this appeal an academic exercise which a court cannot validly engage in
Learned SAN for the appellant argued that the letter from the Honourable Attorney General of the Federation and the bill attached to it are not part of the record of this appeal and is not valid for consideration in this appeal, that this court should discountenance it. Learned SAN further argued that even if the said letter is countenanced and considered, the appeal is not rendered academic by the new Electoral (Amendment) Act Bill proposed by the appellant during the pendency of this appeal, because the judgment against which this appeal is brought is still subsisting and in view of the issues decided therein and can be used against subsequent bills of the appellant.
Let me now determine the merit of the above arguments of all sides.
It is correct that the letter from the Honourable Attorney General of the Federation and the attached new Electoral Act (Amendment) Bill do not form part of the record of this appeal. They are facts or evidence that were not part of the evidence before the trial court and therefore were not considered by it in reaching the decision appealed against here. Therefore they are fresh facts or evidence being introduced for the first time in this appeal.
Fresh facts or evidence cannot be introduced in an appeal without the leave of the appellate court first sought for by motion on notice and obtained to do so. It cannot be introduced by means of a written letter to the appellate court. Order 4 Rule 2 of the Court of Appeal Rules 2016 provides that-“The Court shall have power to receive further evidence on questions of fact, either by oral examination in Court, by affidavit, or by deposition taken before an Examiner or Commissioner as the Court may direct, but, in the case of an appeal from a judgment after trial or hearing of any cause or matter on the merits, no such further evidence (other than evidence as to matters which have occurred after the date of the trial or hearing) shall be admitted except on special grounds.“
The 2nd respondent has not applied for and obtained the leave of this court to introduce the said letter and attached bill as part of the records to be relied on to determine this appeal. Since no leave of this court had first been obtained to adduce or introduce the letter and attached bill as fresh facts or evidence in this appeal, the letter and attached bill are incompetent and are not valid for consideration in the determination of this appeal. See Onwubuanri & Ors V Igboasoyi (2011) LPELR 754 (SC), Obasi V Onwuka (1987) 7 SC (Pt 1) 233, Imale & Ors V Agiri & Ors (1997) 9 NWLR (Pt 521) (CA). The arguments of all the respondents on the basis that the appellant has proposed a new Electoral (Amendment) Act 2018 are not valid for consideration as the said fact is not part of the record of this appeal. It is settled law that address of Counsel in an appeal on facts or events not forming part of the record of appeal is not valid for consideration. See Akpan V The State (1987) 3 SCNJ 23.
In any case, the fact that the appellant has proposed a new Electoral Act (Amendment) Bill would not render this appeal academic because of the holding of the trial court thus- “I am left in no doubt that in passing the Electoral Act (Amendment) Bill, 2018, the 1st Defendant was in clear breach of the provisions of paragraph 15(a) of the third schedule to the 1999 constitution (as amended). In this regard, I find comfort in the interpretation of paragraph 15(a) of the third schedule to the constitution given in the case of N.D.P. VS INEC (2013) 6 NWLR PART 1350, 392 at 419 to the effect that INEC (3rd Defendant in this case) has the constitutional responsibility of organizing and conducting an election and to that effect it can issue time table and it can also decide when election will hold. Now since the 3rd Defendant had already fixed the dates and sequence for the 2019 General Elections, it is the only body that can change the dates. The attempt made by the 1st Defendant in passing exhibit 1 after the 3rd Defendant had issued exhibit 2, is in clear and obvious breach of paragraph 15(a) of the third schedule to the 1999 Constitution of the Federal Republic of Nigeria (as amended). I find the decision of the Court of Appeal in MUSA VS INEC (2002) 11 NWLR PART 778, 223 at 293 paragraph c, where Musdapher JSC (as then was) held that:
In addition, a right conferred by the constitution cannot be taken away by any other statutory provision except the constitution itself and any law so made will be void to the extent of its inconsistency.
Following from the above pronouncement, the power given to the 3rd Defendant in paragraph 15(a) of third schedule to the constitution to organize and conduct elections in Nigeria including fixing dates of such election cannot be taken away by the amendment purportedly done by the 1st Defendant in the Electoral Act (Amendment) Bill 2018.
This holding renders the judgment of the trial court a judgment in rem as it determines for all times and against the world at large, the status of the relationship of the legislative power vested on the appellant by S.4 (2) of the 1999 Constitution and Item 22 of the Second Schedule to the 1999 Constitution, with the power vested on the 3rd respondent by Item 15(a) of the third schedule to the 1999 Constitution. Such a judgment which binds not only the parties to this case but the world at large, can be used subsequently to challenge or stop the exercise by the appellant of the legislative power vested on it by S.4(2) and item 22 of the second schedule to the 1999 Constitution which provides thus-“S.4(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.“
Item 22 of Second Schedule- “Election to the offices of President and Vice-president or Governor and Deputy Governor and any other office to which a person may be elected under this Constitution, excluding election to a local government council or any office in such council.”
So the judgment of the trial court on the status of the relationship between the legislative power vested on the appellant by S.4(2) of the 1999 Constitution and Item 22 of the Second Schedule to the 1999 Constitution and the power vested on the 3rd respondent by item 15(a) of the Third Schedule to the 1999 Constitution as amended would continue to have legal effect so long as it remains subsisting and not set aside or nullified, irrespective of the fact that the Electoral Act (Amendment) Bill that caused the suit in which the said judgment was rendered had been abandoned and a new Electoral Act (Amendment) Bill proposed by the appellant.
Having held that this appeal is not rendered academic by the proposal of a new Electoral Act (Amendment) Bill, I will now proceed to determine the issues raised for determination in the appellant’s brief.
Learned SAN for the appellant argued that it is only the Constitutionality of an Act of the National Assembly and not a bill that can be challenged in court, that it is premature to sue challenging a bill that is not yet law, that the trial court wrongly applied the judicial decision of A.G Bendel State & Ors V A.G of the Federation (1981) 1 All NLR 85, in which the subject of the suit was an Act and not a bill as in this case, that a bill that is still undergoing rites of passage from being a bill to an Act cannot be the subject of litigation, that it is non justiciable, that the jurisdiction of court does not extend to inchoate legislative processes such as bills, motions and other internal processes of the legislature that have not crystallised into a Law. For these submissions, he relied on the judicial authorities of A.G Bendel State & Ors V A.G of the Federation (supra), Akejule & Ors V Delta State Gov’t & Anor (2009) 17 NWLR 292 at 305, Hughes and Vale Pty Ltd V Grair (1954) Argus LR 1094, Trethowan V Peden (1930) 31 SR (NSW) 183, A.G Bendel State V House of Assembly Bendel State (Suit No. B/ 166/82 9-7-82, Ex Parte Kwara State Printing and Publishing Corp. (National Concord, 30-6-1983 and Bakare V LS CS (1992) 8 NWLR (Pt 262) 641 at 697 and the Textual authority of Judicial Review of A Bill.
Learned SAN for the appellant argued that the trial court wrongly applied the supreme Court decisions in Adesanya V President Federal Republic of Nigeria (1981) 1 All NLR (Pt 1) and Akilu v Fawehinmi (No 2) (1989) 2 NWLR (Pt. 102) 122, that the proposed Electoral (Amendment) Act 2018 Bill is a matter of interest to the generality of Nigerians and not to the 1st respondent and its members alone, that the 1st respondent did not disclose in the affidavits in support of the Originating Summons, its peculiar interest in the matter and how that has been affected, that only a person who has been likely to be affected by a law has sufficient interest to challenge the law as unconstitutional. For these submissions he relied on the judicial authorities of Gamobia & Ors V Esezi 11 (1961) ANLR 608 at 613 and Olawoyin V AG of Northern Nigeria (1961) All NLR 269.
By section 6 subsection (6) (b) of the Constitution: “(6) the judicial powers vested in accordance with the foregoing provisions of this section (b) shall extend to all matters between persons, or between government or authority and any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person;”
This limitation which is imposed on the judicial powers of our courts is not in principle peculiar to Nigeria but indeed universal. As Professor de Smith observes at p. 363 of his book-Judicial Review of Administrative Action, 3rd Edition:
“In Roman law it was open to any citizen to bring an action popularis in respect of a public delict or to sue for a prohibitory or restitutory interdict for the protection of res sacrae and res republicae, but title to sue or otherwise depended upon the infringement of a private right. Today nearly all foreign systems require that, save in exceptional cases, a plaintiff must have a special personal interest in the proceedings he institutes.”
One of the exceptional cases in questions for instance the relator action which the Attorney-General of England can bring as a guardian of public interest although he has no special personal interest in the subject of the litigation. We are not here concerned with the exceptions.
It is for the foregoing reasons and those given by my learned brother, Bello, J.S.C. (which I had the privilege of reading in draft) that I feel that the interpretation to be given to section 6 subsection (6) (b) of the Constitution will depend on the facts or special circumstances of each case. So that no hard and fast rule can really be set-up. But the watchword should always be the “Civil rights and obligations” of the plaintiff concerned.
Accordingly, I agree that the appeal be dismissed and orders be made as contained in the judgment of the Chief Justice.”
Having held that the subject matter of the suit is non justiciable and not a live issue, as it is a subject matter of no legal consequence, I hold that the suit was an academic exercise. The questions raised for determination therein did not raise any live and genuine questions for determination.
A court cannot competently entertain a suit that has not raised live and genuine issues in controversy for its determination. See Odedo V INEC (2008) 17 NWLR (Pt. 1117) 554 at 660.
Since the 1st respondent did not show or even allege that its right or interest was affected or likely to be affected by the Electoral (Amendment) Act 2018 Bill, since the 1st respondent did not bring the suit for the determination of its rights and obligations, since the subject matter of the suit is non justiciable and the trial court obviously lacks the jurisdiction to interfere with the law making process in the legislature before the process becomes law or lacks the power to determine how legislative power should be exercised before the law making process becomes law, then clearly the suit is frivolous, aimed at preventing the amendment of S.25 of the Electoral (Amendment) Act and is therefore an abuse of court process as it was obviously not a genuine litigation and was not brought bona fide. See Abubakar v Bebeji Oil and Allied Products Ltd & Ors (2007) LPELR 55 (SC).
In the light of the foregoing, I resolve issue No. 1 in favour of the appellant. The judgment of the Federal High Court of Nigeria at Abuja in Suit No. FHC/ABJ/CS/232/2018 delivered on 25/4/2018 is hereby nullified.
Having resolved issue No. 1 in favour of the appellant and held that the subject matter of the suit is not justiciable, that the trial court lacks jurisdiction to entertain it, that the plaintiff had no locus standi to bring the suit, that the suit is academic and an abuse of court process, no useful purpose would be served in determining issue No. 2 in the appellant’s brief.
On the whole this appeal succeeds as it has merit. It is accordingly allowed. The judgment of the Federal High Court of Nigeria at Abuja in Suit No. FHC/ABJ/CS/232/2018 delivered on 25/4/2018 by AR. Mohammed, J is hereby set aside. Suit No. FHC/ABJ/CS/232/2018 is hereby dismissed. No order as to costs.
Zainab Adamu Bulkachuwa, President, Court Of Appeal
J.B Daudu SAN, Mallam Yusuf 0. Ali SAN, E.C. Ukala SAN, Chief S.T. Hon SAN, with D.J. Iheko Esq., P.B Daudu Esq., for the Appellant
Chief Wole Olanipekun, SAN, Chief Lateef Fagbemi SAN, Chief H.O. Afolabi SAN, with Omosanya Popoola Esq., Akintola Makinde Esq., for the 1st Respondent
Abubakar Malami, SAN with Dayo Akpata, Oyin Koleosho , Abuja for the 2nd respondent
Femi Falana SAN, with Fumi Falana Esq., Deji Morakinyo Esq., Marshal Abubakar Esq., for the 3rd respondent
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