NASS can reorder elections, Appeal Court rules

The Abuja Division of the Court of Appeal has nullified the judgment by Justice Ahmed Mohammed of the Federal High Court – delivered on April 25, 2018 – which had voided Clause 25 of the Electoral Act (Amendment) Bill 2018 enacted by the National Assembly, altering the sequence of elections ahead of the 2019 polls.


Justice Mohammed’s declaration arose from a suit filed by the Accord Party against the National Assembly, wherein the party had challenged the alteration of election sequence by the NASS.


Other respondents in the suit marked FHC/ABJ/CS/232/2018, were the Attorney General of the Federation, and Independent National Electoral Commission (INEC), 2nd and 3rd respondents, respectively.


Justice Mohammed had resolved all the nine questions posed to the court in favour of the plaintiff just as all the eleven reliefs sought by the plaintiff were granted except relief 11(1).


The court didn’t grant it because President Muhammadu Buhari had already refused to sign the controversial bill into law.


Justice Mohammed had agreed with the submission of Wole Olanipekun (SAN), counsel to the plaintiff, that an amendment to the Electoral Act by the 1st defendant (NASS) could not override the constitutional powers granted to the 3rd defendant (INEC) in Paragraph 15(a) of the Third Schedule to the 1999 Constitution, as altered.


Consequently, the court said it was persuaded by the submissions of the plaintiff’s counsel that the constitution gives INEC the sole responsibility to conduct, organize, issue election timetable, decide election dates, etc.


It was the opinion of the court that the NASS was in clear breach of Paragraph 15(a) of the Third Schedule to the 1999 Constitution, as altered, when it went ahead to alter the sequence of elections for the purpose of the 2019 polls without having recourse to INEC’s constitutional powers.


The court held that a right conferred by the constitution cannot be taken away by any Act, except by the constitution itself.


Apparently miffed by Justice Mohammed’s opinion, the NASS headed to the appellate court, insisting that the trial judge erred in his judgment.


Delivering judgement on Wednesday, the presiding judge, Justice Zainab Bulkachuwa, held that the Federal High Court lacked jurisdiction to entertain the suit in the first place.


Justice Bulkachuwa, who is the President, Court of Appeal, also noted that the suit was premature as a Bill could not be challenged in the law court until it became an Act.


Bulkachuwa, who headed a five-man panel of the court, ruled in her lead judgment that the Accord Party, which filed the suit at the Federal High Court, sitting in Abuja, lacked the locus standi to institute the legal action.


In upholding the appeal by the National Assembly, the appellate court reasoned that since the bill did not affect rights or the obligations of Accord Party, the “general interest” available to the public did not confer the rights on it to challenge the bill.


It would be recalled that Justice Mohammed had, on March 14, barred the National Assembly from taking any action aimed at overriding the refusal of President Muhammadu Buhari to sign the Electoral Act (Amendment) Bill 2018 into law.


The ruling was sequel to an oral application made by the Accord, through its counsel, Wole Olanipekun (SAN).


In the ruling, the court had ordered parties to “maintain status quo ante bellum” pending the determination of the motion on notice.


The plaintiff had approached the court with a motion seeking an order of interlocutory injunction restraining the National Assembly from taking any further action or actions on the Bill titled Electoral Act (Amendment) Bill, 2018, particularly, to convene to pass the said Bill into law by two-thirds majority of its two chambers, pending the final determination of the substantive originating summon.


At the definite hearing, Wole Olanipekun appeared for the plaintiff; Joseph Daudu, represented the NASS (1st defendant), while Abubakar Malami, the Attorney General of the Federation and Minister of Justice, announced appearance for the 2nd defendant (AGF).


The 3rd respondent (INEC) was represented in court by Femi Falana (SAN).



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