THE NATIONAL ASSEMBLY v. THE PRESIDENT OF THE FEDERAL REPUBLIC OF NIGERIA & ORS(2003)

THE NATIONAL ASSEMBLY v. THE PRESIDENT OF THE FEDERAL REPUBLIC OF NIGERIA & ORS

(2003)LCN/1392(CA)

In The Court of Appeal of Nigeria

On Monday, the 12th day of May, 2003

CA/A/15/M/2003

 

JUSTICES

GEORGE ADESOLA OGUNTADE   Justice of The Court of Appeal of Nigeria

IBRAHIM TANKO MUHAMMAD   Justice of The Court of Appeal of Nigeria

ALBERT GBADEBO ODUYEMI   Justice of The Court of Appeal of Nigeria

Between

 

THE NATIONAL ASSEMBLY Appellant(s)

AND

  1. THE PRESIDENT OF THE FEDERAL REPUBLIC OF NIGERIA
    2. THE ATTORNEY-GENERAL OF THE FEDERATION
    3. INDEPENDENT NATIONAL ELECTORAL COMMISSION Respondent(s)

 

GEORGE ADESOLA OGUNTADE, J.C.A. (Delivering the Leading Judgment): The 3rd respondent was the plaintiff, before the Federal High Court, Abuja, where it brought a suit, by originating summons against 1st respondent, appellant and 2nd respondent as 1st, 2nd and 3rd defendants respectively, seeking the determination of the following questions:
“(1) Whether the 2nd defendant, the National Assembly is competent to enact Section 15 of the Electoral Act, 2002, in relation to fixing the time and dates of conduct of elections into the office of the President of the Federal Republic of Nigeria, each of the Houses of the National Assembly, the office of the Governor of each State of the Federation and Houses of Assembly of each State of the Federation, when the Constitution of the Federal Republic of Nigeria, 1999, has made provisions, covering the field in these areas in Sections 132(1), 76(1), 178(1) and 116(1).
(2) Whether the condition precedent was complied with by each of the Houses of the National Assembly, before passing the motion for veto over-ride, on Wednesday 25th, and Thursday, 26th September, 2002, when a quorum was not formed as provided by Section 54(1)

 

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and 58(5) of the Constitution.
(3) Whether the National Assembly can by way of motion enact a Bill into Law.
(4) Whether the provision of Section 58(5) of the 1999 Constitution has been duly complied with.
(5) Whether Section 15 of the Electoral Act, 2002, is unconstitutional having regard the provision of Section 76(1) of the 1999 Constitution.”
The reliefs which the plaintiff (INEC) sought are these:
“( 1) A declaration that Section 15 of the Electoral Act, 2002, which was passed into Law on the 25th and 26th September, 2002, by the 2nd defendant, by virtue of a motion of veto over-ride is unconstitutional, null and void and of no legal effect whatsoever.
(2) An order setting aside Section 15 of the Electoral Act, 2002, which was passed into law on the 25th and 26th of September, 2002, by the 2nd defendant by virtue of a motion of veto over-ride for non-compliance with the condition precedent for the passing of same having been vetoed by the President in accordance with Section 58(5) of the 1999 Constitution.
(3) A declaration that the plaintiff is the only body vested with powers to conduct, fix the date, supervise, direct and

 

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organise all elections, having regard to Section 132(1),76(1), 178(1), 116(1), 78, 118 and Item 15(a) of the 3rd Schedule of Constitution, 1999, the effect of which vests absolute discretion of all matters pertaining to elections on the plaintiff.
(4) An order of perpetual injunction restraining the defendants, their servants, agents and/or privies from giving any legal effect, whatsoever and/or acting on the Electoral Act, 2002.
(5) A declaration that the Electoral Act, 2002, is unconstitutional, null and void and of no legal effect whatsoever.”

The plaintiff filed an affidavit in support of its originating summons. The appellant filed a counter-affidavit on 17/10/2002, and a further and better counter-affidavit on 31/10/2002. The plaintiff had on 23/10/2002, filed a further-affidavit in support of its originating summons. On 5/11/2002, Okeke, J. heard arguments on the originating summons; and on 29/11/2002 judgment was delivered.
The learned Judge concluded as follows in his judgment.
“In the final analysis, the Court therefore declares as follows:
1. That the Senate and the House of Representatives was each properly constituted

 

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when it exercised its power under S.58(5) of the 1999 Constitution to override the President’s veto on the Electoral Bill, 2002.
2. That the Electoral Act, 2002, was validly passed by each house of the National Assembly.
3. That S.15 of Electoral Act, 2002, which encroached on the power vested on the Independent National Electoral Commission by the 1999 Constitution to fix dates for elections to the offices of the President, Governor of each State of the Federation, National Assembly and House of Assembly of each State of the Federation is unconstitutional and it is therefore set aside.”

The National Assembly i.e. 2nd defendant before the lower Court, was dissatisfied with the said judgment and has brought this appeal against it. In the appellant’s brief filed, the issue for determination in the appeal was identified as:
“Whether the learned trial Federal High Court Judge, was right in setting aside Section 15 of the Electoral Act, 2002, having regards to the provisions of the Constitution of the Federal Republic of Nigeria, 1999 and his finding that the Electoral Act, was validly passed by each house of the National Assembly.”

The 1st

 

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respondent in the appeal (i.e. the President, Federal Republic of Nigeria) and the 2nd respondent (i.e. the Hon. Attorney General of the Federal Republic of Nigeria) were also dissatisfied with the judgment of the lower Court. Each of them has brought a cross-appeal. The issue for determination formulated by the 1st respondent/cross-appellant reads:
“Whether the Electoral Act, 2002, was validly passed by the National Assembly by its overriding the veto of the President by two thirds majority of the two chambers of the National Assembly present as against two third of all the members and by passing the Bill vide a process of motion.”

The 2nd respondent from its cross-appeal and the appellant’s notice of appeal formulated the following issues for determination:
“1. Was the Electoral Act, 2002, duly and properly passed in accordance with the provisions of the Constitution, in particular S.58(5) thereof?
2. Is Section 15 of the Electoral Act, 2002, not unconstitutional and void for inconsistency with Sections 76, 116, 132 and 178 of the Constitution?”
?
The issues formulated for determination in the appeal and cross-appeal turn solely on the

 

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interpretation of some sections of the 1999 Constitution of the Federal Republic of Nigeria. It is helpful however, to set out the undisputed facts which are relevant to the issues identified for determination. In Paragraphs 2 to 5 of the affidavit in support of the originating summons, it was deposed thus:
“2. That the Electoral Act, 2002, was passed in the House of Representatives on the 25th February, 2002, and transmitted to the House of Representatives (Senate?) for concurrence.
3. That the Senate passed the Bill on 26th February, 2002, with amendments and transmitted same to the Senate (House of Representatives?).
4. The amendments to the said Bill, were agreed upon and adopted and the Bill was transmitted to the President on the 24th of June, 2002, for his assent.
5. That on the 25th and 26th of September, 2002 respectively, the National Assembly by motion of veto over-ride purportedly passed the Bill into Law because 30 days had lapsed and the President had failed to assent to the said Bill. We intend to rely on the votes and proceedings of the National Assembly, dated 25th and 26th September, 2002, in the course of this trial”
?
The

 

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2nd defendant in Paragraphs 3(e) and (f) of its counter affidavit deposed to on 17/10/02 said:
“(e) That in the discharge of its power to make laws for peace, order and good governance of the Federation or any part thereof with respect to the election, the 2nd defendant duly passed the Electoral Act, 2002 when the 1st defendant withheld its assent on Electoral Bill 2002, as transmitted to him by the 2nd defendant on the 24th day of June, 2002 for his assent.
(f) That the Senate and the House of Representatives had in consequence of the above, by two thirds of the members of the legislative houses concurring passed the Electoral Act, 2002 by motion of veto override.”

The plaintiff annexed to the affidavit in support of the originating summons copies of the votes and proceedings of the House of Representatives and the Senate for the 25th and 26th September, 2002, as exhibits C and D respectively. Now, exhibit D, the votes and proceedings of the Senate shows that the Senate voted by 48 Ayes and 3 Noes to override the President’s Veto of the Electoral Bill. There were four abstentions. The exhibit reveals that the Senate was acting pursuant to Section

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58(5) of the 1999 Constitution. In all, 55 Senators participated in the voting on the motion to override the President’s veto.

Exhibit D, the votes and proceedings of the House of Representatives shows that the House voted by 191 Ayes and 13 Noes to override the President’s vote of the Electoral Bill. The House of Representatives just as the Senate expressed, that it was acting as it did pursuant to Section 58(5) of the 1999 Constitution. In all, 204 members of the House of Representatives participated on the motion to override the President’s veto.

Ordinarily, the membership of each of the Senate and the House of Representatives is 109 and 360 respectively. See Sections 48 and 49 of the 1999 Constitution.

I reproduced earlier in this judgment the decision made by the lower Court as to the constitutionality of Section 15 of the Electoral Act, 2002. The lower Court pronounced it unconstitutional and set it aside. Strangely however, all the grounds of appeal formulated by the appellant were to the effect that the lower Court after holding that the section was constitutional still went on to set it aside. The appellant has not taken any steps to

 

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impeach the record of proceedings upon which this appeal was heard. The judgment of the lower Court is to the effect that Section 15 of the Electoral Act, 2002, was unconstitutional. It was for that reason that the lower Court set it aside. The grounds of appeal by the appellant would appear to have been crafted on the notion that after the lower Court had found that Section 15 was constitutional, it still went on to set it aside.
It needs be said here that this error was not peculiar to the appellant alone. In the 1st and 2nd grounds of his notice of cross-appeal, the 1st respondent/cross-appellant also raised a complaint that the trial Judge had at first held that Section 15 of the Electoral Act was constitutional. The 2nd respondent/cross-appellant in the 3rd ground of appeal also made the same error. Surely, something must have gone wrong before the lower Court as to lead all the parties before it to make the same mistake. I cannot say more on the point.
The appeal by the appellant must be struck out since all the grounds were built on facts that did not arise from the judgment of the lower Court.
?For the same reason all the issues formulated

 

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on the said grounds of appeal must be struck out. Similarly, I strike out the 1st respondent/cross-appellant’s 1st and 2nd grounds of appeal and the issues formulated upon them. I also, strike out the 2nd respondent/cross appellant’s 3rd ground of appeal and the issue formulated thereon.

In the cross-appeal by the 1st and 2nd respondents, it was contended that the procedure adopted by the appellant in overriding the veto of the 1st respondent was unconstitutional in that (1) rather than re-pass the bill, the appellant just passed a resolution and (2) rather than have the bill re-passed by two thirds majority of the membership of the two houses, the appellant did so only by a majority of the two thirds of the members present in each of the two houses.
The relevant provisions of the 1999 Constitution to be considered are Sections 54(1) and 58. They read:-
“54(1) The quorum of the Senate or of the House of Representatives shall be one-third of all the members of the legislative house concerned.
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

 

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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 assent of the President shall not be required.”
(Italicising mine)
It was undisputed that the 1st respondent/cross-appellant did not give his assent to the bill within thirty days as required by Section 58(4) above. The

 

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appellant therefore, found it necessary to override the veto of the 1st respondent/cross-appellant. What is the applicable procedure to be followed in such situation? This question calls for an interpretation of Section 58(5) of the Constitution.
In construing Section 58(5) of the 1999 Constitution, I bear in mind that a statute should be given its ordinary natural grammatical meaning unless an absurdity will result thereby. See Aya v. Henshaw (1972) 5 SC 87; Lawal v. G.B. Ollivant (1972) 3 SC 124 and Ogbuanyiya v. Okudo (1979) 6/9 SC 32. I ought also to bear in mind that the same words in a statute must bear the same meaning.
Section 58(1) of the 1999 Constitution reproduced above states the process by which a bill becomes a law. The bill has to be passed by both houses and assented to by the President before it becomes law. So how is a bill passed by either of the Houses constituting the National Assembly? A bill is passed by each house when it has gone through the first, second reading, the committee stage and the 3rd reading. In the course of these readings and committee stage the bill is examined in detail and amended if necessary. Law-making is

 

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therefore a serious business. The Court is enjoined to take judicial notice of the course of proceedings in the National Assembly. See Section 74(c) of the Evidence Act.
Presumably, the Electoral Bill went through the requisite stages before it was sent to the President i.e. 1st respondent/cross-appellant for his assent. However, it was not assented to within 30 days. Under Section 58(5) of the Constitution, in order to override the veto of the 1st respondent, each of the Houses of National Assembly has to pass the bill again. The language used by Section 58(5) is “and the bill is again passed by each house.” This means that the bill has to go through the same processes it had previously gone through, when it was first passed. That is the clear import of ‘the bill is again passed’. It means a repetition of the earlier process.
However, what the appellant did was merely to pass a “motion for veto override”. Clearly, this was not in consonance with Section 58(5). It is apparent that the purpose of Section 58(5) was to impose on the appellant the duty to subject a bill to the scrutiny of another passage process so that it may be manifest that the grey

 

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areas of the bill have been looked into a second time. It was common ground that the 1st respondent communicated to the appellant the reasons for his inability to give assent to the bill. This imposes on the appellant the necessity to painstakingly go through the bill a second time before passing it into law as required by the provisions of Section 58(5). What needed to be done was a fresh consideration of the bill and not just to affirm what was earlier done by passing a motion.
Further, Section 58(5) provides that a bill must be passed again by “each House by two-thirds majority”. I observed earlier that Sections 48 and 49 of the Constitution set out the composition of the Senate. It is three Senators from each State of the Federation and one from the Federal Capital Territory, Abuja. Thus, the number of the Senators should be 109. Under Section 49 the House of Representatives is composed of 360 members.
Giving Section 58(5) its ordinary natural meaning, two-thirds majority of each House can only mean two-third of the membership of each of the Senate and the House of Representatives. It cannot mean anything else. The section has no relationship

 

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with the ordinary quorum of each House. It does not employ a language referable to a proportion of the membership of each House. It is two-thirds of each of the whole of the Senate and the House of Representatives. In order to override the President’s veto, there must be at least 73 members in the Senate and at least 240 members in the House of Representatives. But as I observed earlier, when the Senate made a motion of veto override on the bill on 25/9/2002, there were only 55 Senators present. In the House of Representatives on 26/9/2002, when a motion of veto override was made there was only 204 members. Clearly therefore, the appellant was not properly constituted when the Bill was “passed” into law on 25/9/2002 and 26/9/2002.
The appellant was also not following the Section 58(5) of the Constitution when instead of passing the Bill again, it merely made a motion called “motion of veto override”.
The lower Court was therefore in error to have taken the position that what was needed to pass the bill was the ordinary working quorum of the appellant and that the “motion of veto override” was in order.

Now, in its claim before the lower Court, the

 

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3rd respondent had in its claims Nos. 4 and 5 asked for:
“(4) An order of perpetual injunction restraining the defendants, their servants, agents and/or privies from giving any legal effect whatsoever and/or acting on the Electoral Act, 2002.
(5) A declaration that the Electoral Act, 2002, is unconstitutional, null and void and of no legal effect whatsoever.”
Claim 4 is consequential upon the grant of claim 5. The grant of a declaration is discretionary and it should be exercised with great caution. In Agbaje v. Agboluaje (1970) 1 All NLR 21 at 26, the Supreme Court per Udoma, JSC said:
“The general theme of judicial observations has been to the effect that declarations are not to be lightly granted. The power should be exercised ‘sparingly’ with ‘great care and jealousy’ with ‘extreme caution’, with ‘the utmost caution’. These are indeed, counsels of moderation even though as Lord Dunedin once observed, such expressions afford little guidance for particular cases. Nevertheless, anxious warnings of this character appear to their Lordships to be not so much enunciations of legal principles as administrative cautions issued by eminent and prudent

 

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Judges to their, possibly more reckless, successors. After all, it is doubtful if there is more of principle involved than “the un-doubted truth that the power to grant a declaration should be exercised with a proper sense of responsibility and a full realisation that judicial pronouncements ought not to be issued unless there are circumstances that call for their making. Beyond that there is no legal restriction on the award of a declaration.”
And similarly the same Court per Irikefe, JSC (as he then was) in Ewarami v. A.C.B. Ltd. (1978) 4 SC 99 at pp. 108-109 said
“In Hanson v. Radcliffe UDC (1922) 2 Chancery p. 490 at p. 507, Lord Sterndale – M.R. had this to say on declaratory judgments:
‘the power of the Court to make a declaration, where it is a question of defining the rights of two parties, is almost unlimited; and I might say only limited by its own discretion. The discretion should of course be exercised judicially, but it seems to me that the discretion is very wide.’
?Some years before the above decision Bankes, L. J. when considering the scope of this rule was no less emphatic when he said –
“There is, however, one

 

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limitation which must always be attached to it, that is to say, the relief claimed must be something it would not be unlawful or unconstitutional or inequitable for the Court to grant or contrary to accepted principles upon which the Court exercises its jurisdiction. Subject to this limitation, I see nothing to fetter the discretion of the Court in exercising a jurisdiction under the rule to grant relief, and having regard to general business convenience and the importance of adapting the machinery of the Courts to the needs of suitors, I think the rule should receive as liberal a construction as possible.”
See Guaranty Trust Company of New York v. Hannay and Company (1915) 2 KB p. 536 at p.572. See also Ekuno v. Ifejuka (1960) SCNLR 320, (1960) 5 FSC p. 156 and Ibeneweka v. Egbuna (1964) 1WLR p. 219.”
The 3rd respondent in its claim had challenged the attempt of the appellant to impose upon it the dates to conduct elections. This was as in Section 15 of the Electoral Law. The lower Court struck down Section 15 of the said Law and I have affirmed that decision in this Court. Although, the procedure adopted by the appellant in passing the Electoral Law,

 

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2002, was not strictly in compliance with Section 58(5) of the 1999 Constitution, it was not the case of the 3rd respondent before the lower Court that it had any complaints or misgivings about other provisions of the Law other than its Section 15. The said Law is now being used for the 2003 National Elections. To declare it unconstitutional and strike down at this stage may lead to a widespread disruption of national life, while not conferring any advantage on the 3rd respondent. It seems to me satisfactory enough that the 3rd respondent has obtained a vindication for its rights and in the process enabled this Court to express its views as to the procedure to be followed, when overriding a presidential veto in the law-making process. It is not in my view necessary to strike down the law. The offending Section 15 has been struck out. In the exercise of the power of this Court’s discretion in the grant of a declaration, I decline to grant reliefs 4 and 5 in the 3rd respondent’s claim even If I agree that the appeal by 1st and 2nd respondents/cross-appellants has merit.

?I bear in mind that a party challenging the constitutionality of a statute has the

 

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duty to show that he has sustained an injury or is in danger of sustaining one in addition to showing that the statute is invalid. See Bendel State v. A.-G., Federation (1981) 3 NCLR 1, (1981) 10 SC 1 and Adegbenro v. Attorney-General (1962) 1 All NLR 431 at 437, (1962) 2 SCNLR 130.

In the final conclusion, the appeal is struck out. The cross-appeal succeeds. But I make no order on reliefs following the success of the cross-appeal. This is essentially a suit to enable the Country discover the proper approach in the law-making process. It has been rewarding for all concerned bringing the suit. I therefore, make no order as to costs.

IBRAHIM TANKO MUHAMMAD, J.C.A.: I read before now, the judgment of my learned brother, OGUNTADE, JCA. My learned brother, has painstakingly, done full justice to all the issues raised in the main and cross-appeals. I adopt his reasoning and conclusions as mine. I have nothing useful to add. I too, strike out the main appeal as it lacks merit. I allow the cross-appeal. I abide by the consequential orders made in the lead judgment.

ALBERT GBADEBO ODUYEMI, J.C.A.: The following facts appear to be common ground between the

 

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parties to this appeal-
“(i) After both houses of the National Assembly had passed, by the normal legislative procedure, the Electoral Bill, 2002, the Bill was sent to the President on 24th June, 2002, for his assent.
(ii) For 30 days, the President did not give his assent to the bill as required by Section 58(4) of the Constitution.
Instead, the President proposed certain amendments and returned the bill to the Senate.
(iii) On 25th September, 2002, the House of Representatives by motion resolved to pass into law the bill as originally passed and sent for the assent of the President. 191 members voted in favour of the motion, 13 members voted against the motion to override the President’s veto.
(iv) On 26th September, 2002, the Senate also by motion, resolved to pass into law the bill as originally passed and sent to the President. The voting in the Senate was: Yes votes – 48 – No votes – 3. Absentions – 4 for the purpose of overriding the President’s veto.

It is necessary to indicate that Section 48 of the Constitution of the Federal Republic of Nigeria, 1999, provides that the Senate shall consist of three Senators from each State

 

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and one from the Federal Capital Territory.

As there are 36 States in Nigeria, this means that there are 109 Senators.

Also, S. 49 provides that the House of Representatives shall consist of 360 members.

The Independent National Electoral Commission felt aggrieved and considers that the Electoral Act as passed, particularly with respect to S. 15 infringes upon the discretion conferred upon it by Sections 132(1); 76(1); 178(1); 116(1); 78, 118 and Item 15(a) of the 3rd Schedule to the Constitution, the effect of which the Commission considers as having vested absolute discretion on all matters pertaining to the fixing of dates for elections on the Commission.

Accordingly, by originating summons filed in the Abuja Judicial Division of the Federal High Court on 7th October, 2002, as plaintiff, it joined the following as defendants:
1. The President of the Federal Republic of Nigeria.
2. National Assembly.
3. The Hon. Attorney-General of the Federal Republic of Nigeria.

Later, by order of the Court, plaintiff sought the following amended reliefs:-
“(1) A declaration that Section 15 of the Electoral Act, 2002, which was passed into Law

 

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on the 25th and 26th September, 2002, by the 2nd defendant by virtue of a motion of veto over-ride is unconstitutional, null and void and of no legal effect whatsoever.
(2) An order setting aside Section 15 of the Electoral Act, 2002, which was passed into law on the 25th and 26th of September, 2002, by the 2nd defendant by virtue of a motion of veto over-ride for non-compliance with the condition precedent for the passing of same having been vetoed by the President in accordance with Section 58(5) of the 1999 Constitution.
(3) A declaration that the plaintiff is the only body vested with powers to conduct, fix the date, supervise, direct and organise all elections having regard to Section 132(1), 76(1), 178(1), 116(1), 78, 118 and item 15(a) of the 3rd Schedule of Constitution, 1999, the effect of which vests absolute discretion of all matters pertaining to elections on the plaintiff.
(4) An order of perpetual injunction restraining the defendants, their servants, agents and/or privies from giving any legal effect, whatsoever and/or acting on the Electoral Act, 2002.
(5) A declaration that the Electoral Act, 2002, is unconstitutional, null and

 

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void and of no legal effect whatsoever.”
The grounds upon which the application was made are:
“Ground 1
By virtue of Sections 78 and 118 and Item 15(a) of the 3rd Schedule of the Constitution 1999, the plaintiff is vested with powers to conduct, supervise, direct, organise and fix dates for elections to the offices of the President and Vice President, 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.
Ground 2
By virtue of Section 9(1) and the aforementioned sections of the Constitution, the National Assembly cannot enact Section 15 of the Electoral Act, 2002, without complying with Section 9(2) of the Constitution.
Ground 3
By virtue of Section 58(5) of the Constitution 1999, no Bill can be enacted into Law, unless by due passage of such Bill by 2/3 (two-third) majority of both Houses of the National Assembly.
Ground 4
By virtue of Section 58(5) of the 1999 Constitution, a Bill that is not given assent to by the President of the Federal Republic of Nigeria, has to be duly PASSED by 2/3 (Two-Third) majority of both

 

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Houses of the National Assembly. The consequence of this is that the Bill has to AGAIN go through the whole procedure of PASSAGE.”
Arguments were heard from counsel to the parties.

In a reserved judgment, the said Federal High Court made the following declarations:
“1. That the Senate and the House of Representatives was each properly constituted, when it exercised its power under S.58(5) of the 1999 Constitution, to override the President’s veto on the Electoral Bill, 2002.
2. That the Electoral Act, 2002, was validly passed by each house of the National Assembly.
3. That S.15 of Electoral Act, 2002, which encroached on the power vested on the Independent National Electoral  Commission by the 1999 Constitution, to fix dates for elections to the offices of the President, Governor of each State of the Federation, National Assembly and House of Assembly of each State of the Federation, is unconstitutional and it is therefore, set aside.”

The 2nd defendant to the originating summons i.e., The National Assembly felt aggrieved with the part of the judgment relating to Section 15 of the Electoral Act, 2002, the subject-matter of

 

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the suit and accordingly gave notice of its appeal to this Court.

Correspondingly, the 1st defendant i.e., The President of the Federal Republic of Nigeria and The 3rd respondent i.e. The Attorney-General of the Federation, each felt aggrieved by the whole of the decision of the lower Court except that part relating to S.15 of the Electoral Act and respectively, also gave notice of cross-appeal to this Court.

Shorn of their respective particulars, the five grounds of appeal of the National Assembly (hereinafter referred to as “appellant”) are:
“i. The learned trial Judge erred in law and arrived at a wrong decision by cancelling Section 15 of the Electoral Act, 2002, after finding both the Act and the section to be constitutional, having been enacted in accordance with the provisions of the Constitution of the Federal Republic of Nigeria, 1999.
ii. The learned trial Judge erred in law and arrived at a wrong decision by going outside the claim and the dispute between the parties in determining the case before him.
iii. The learned trial Judge erred in law and arrived at a wrong decision by both approbating and reprobating in his judgment

 

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with regard to Section 15 of the Electoral Act, 2002.
iv. The learned trial Judge erred in law and arrived at a wrong decision in not dismissing the case of the plaintiff/1st respondent before him, having found against it both on its claims and the issues formulated there from by the Court in its judgment.
v. The portion of the judgment of the lower Court cancelling Section 15 from the Electoral Act, 2002, is manifestly unsupportable having regard to the law, findings of fact and conclusions of the lower Court in this case.”

For its part, the four grounds of appeal of the President of the Federal Republic of Nigeria, 1st defendant (hereinafter referred to as “The 1st respondent/cross-appellant”) are:
“Ground One
The learned trial Judge erred in law, when His Lordship held that the Electoral Act, 2002, was constitutional.
Ground Two
The learned trial Judge erred in law, when His Lordship held that Section 15 of the Electoral Act, 2002, was constitutional.
Ground Three
The learned trial Judge erred in law, in holding that the National Assembly could, under Section 58 of the Constitution of the Federal Republic of Nigeria,

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1999, validly enact an Act by adopting a motion to that effect, when by the provisions of the Constitution, the bill is required to be “again passed” by the prescribed majority in each house of National Assembly, where the President refused his assents.
Ground Four
The learned trial Judge erred in law, in holding that the Electoral Act, 2002, was passed by two-thirds majority of each house of the National Assembly, when it was passed only by two thirds of the members present at each House which was less than two-thirds of all the members of each House of the National Assembly contrary to Sections 48, 49 and 58(5) of the 1999 Constitution.”

The three grounds of appeal filed by the Attorney-General of the Federation, 3rd defendant hereinafter referred to as the 2nd respondent/cross-appellant, read:-
“1. The learned trial Judge erred in law, in holding that the National Assembly could under Section 58 of the Constitution of the Federal Republic of Nigeria, 1999, validly override the President’s veto and enact an Act merely by each House, adopting a motion to the effect that the President’s veto had been overridden.
2. The learned trial Judge

 

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erred in law, in holding that the Electoral Act, 2002, was passed by two-thirds majority of each house of the National Assembly as required by Section 58(5) of the Constitution.
3. Having held that Section 15 of the Electoral Act, 2002, which provided that elections to the offices of the President, Governors, Senators, House of Representatives and State Houses of Assembly, shall be held in one day was inoperative for being in conflict with the Constitution which allows the said elections to be held on different days, the lower Court erred in law, when it refused to declare the said Section 15 unconstitutional.”

The Independent National Electoral Commission – plaintiff in the lower Court did not file a cross-appeal against the judgment of the lower Court, but filed a respondent’s brief of argument in this Court. The Commission is hereinafter referred to as the 3rd respondent.

In its brief of argument, the appellant identified the only issue for determination thus:
“Whether the learned trial Federal High Court Judge was right in setting aside Section 15 of the Electoral Act, 2002, having regards to the provisions of the Constitution of the

 

29

Federal Republic of Nigeria, 1999, and his finding that the Electoral Act was validly passed by each house of the National Assembly.”

In its own brief of argument, the 1st respondent/cross-appellant identified as the only issue for determination in the main appeal the following:
“Whether Section 15 of the Electoral Act, 2002, is not in conflict with the provisions of the 1999 Constitution as regards the fixing of a date or dates for election to render that section of the Electoral Act unconstitutional.”

For the 2nd respondent/cross-appellant, two issues have been identified for resolution in his brief of argument thus:
“1. Was the Electoral Act, 2002, duly and properly passed in accordance with the provisions of the Constitution, in particular S.58(5) thereof?
2. Is Section 15 of the Electoral Act, 2002, not unconstitutional and void for inconsistency with Sections 76, 116, 132 and 178 of the Constitution?”

It is necessary to indicate that issue No.1 has its root on the cross-appeal of 2nd respondent, while issue No.1 is the response of cross-appellant on the main appeal.
?
For the 3rd respondent, only one issue has been identified

 

30

in the brief of argument thus:
“Whether the learned trial Judge was right in law, in setting aside Section 15 of the Electoral Act, 2002, and declaring same unconstitutional.”

In its brief of argument, the 1st respondent raises a preliminary objection to the competence of the grounds of appeal in the appellant’s notice of appeal.
It is the objection of the 1st respondent that, rather than appellant attacking the decision of the lower Court with respect to Section 15 of the Electoral Act, 2002, which is to the effect that S. 15 of the Electoral Act, 2002, is UNCONSTITUTIONAL and it is therefore, set aside – as contained in the grounds of appeal, the attack of the appellant in the brief of argument is framed as if the decision of the Court has been that S.15 of the Electoral Act, 2002, is CONSTITUTIONAL. (Capitals by me for emphasis).
Reliance is placed on Akibu v. Oduntan (2000) 13 NWLR (Pt.685) p. 446.
It is also the objection of the 1st respondent that none of the grounds of appeal touches on the principles of covering the field on which the decision of the lower Court was based. It is therefore, the contention of 1st

 

31

respondent/cross-appellant that the grounds of appeal having been based not upon the decision of the Court are incompetent.
Reliance is also placed upon:
(i) Igbinovia v. UBTH (2000) 8 NWLR (Pt.667) p. 53;
(ii) Iloabachie v. Iloabachie (2000) 8 NWLR (Pt.656) p. 178.
The ground of objection that none of the grounds of appeal relates to a decision of the lower Court is echoed in the brief of the 2nd respondent/cross-appellant.
Both respondents contend that this Court cannot hear the arguments of the appellant on the issue framed on all its 5 grounds of appeal, because the appellant relies on an alleged wrong record of proceedings of the lower Court, which it had not taken proper steps in law to challenge.
Reliance is placed upon:
(i) Egemasi v. Onyekwere (1983) All NLR 543 P. 544-5, (1983) 4 NSCC 409, (1983) 9 SC 7
(ii) Mokwe v. Williams (1997) 11 NWLR (Pt.528) p. 309.
Respondents/cross-appellants therefore, urge this Court to strike out the grounds of appeal, strike out the brief of arguments thereon and dismiss the appeal.
?For its part appellant has offered an explanation for the reason of the incongruity of its grounds

 

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of appeal with the decision of the lower Court on S.15 of the Electoral Act, 2002, upon which the appeal is based.
In essence, it is the explanation of the appellant that the fault is to be found in the certified true copy of the record of proceedings of the lower Court, which it alleges does not truly reflect the oral pronouncement of the learned trial Judge in open Court.
Appellant therefore, argues that even conceding that Grounds 1, 2 and 3 are incompetent, the issue as formulated in the appellant’s brief of argument rightly fits into the circumstances of grounds 4 and 5 of the notice of appeal.
The simple answer to this is that the grounds themselves must be based upon decision/decisions of the Court, which is the subject of appeal.
(i) See Sections 241, 242, 243, 244, 245 and 246 of the Constitution of the Federal Republic of Nigeria.
(ii) See also Order 3 Rules (2) and (7) of The Court of Appeal Rules, 2002.
Also (iii) Akibu v. Oduntan (2000) 13 NWLR (Pt. 685) 446;
(iv) Igbinovia v. UBTH (2000) 8 NWLR (Pt. 667) 53;
(v) Iloabachie v. Iloabachie (2000) 8 NWLR (Pt. 656) 178;
(vi) Ike v. Enang (1999) 5 NWLR (Pt. 602)

 

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261;
(vii) Alataha v. Asin (1999) 5 NWLR (Pt. 601) 32.
Obviously, if the grounds of appeal are themselves incompetent, any issues which are framed upon incompetent grounds of appeal must themselves be incompetent.
It is also the suggestion of appellant that in the circumstances of the record of appeal in this case, this Court should, in the exercise of its powers under Order 1 Rule 19 amend the record of appeal.
I am firmly of the view that no sufficient ground has been laid for such a step to be taken by this Court; to do so in the circumstance of this case without giving the lower Court the opportunity of giving its own version would be, a breach of Section 36 of the Constitution and result in grave injustice. I therefore, reject the suggestion.
In the event, I must find all the grounds of appeal of the appellant incompetent.
I strike out all the five grounds of appeal of appellant. I also strike out the only issue formulated by appellant thereon as well as the whole brief of appellant and appellant’s reply to the briefs of argument of 1st, 2nd and 3rd respondents.
?It follows that correspondingly, I must strike out ground 2 in the

 

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1st respondent’s cross-appeal and ground 3 in the 2nd respondent’s cross-appeal as well as the issues formulated by 1st, 2nd and 3rd respondents on the main appeal as well as their respective arguments thereon. This is because, the grounds of appeal are based upon an alleged decision by the lower Court that S. 15 is constitutional, when in reality the decision of the lower Court was that S. 15 of the Electoral Act, 2002, is unconstitutional.

It is the admonition of the Supreme Court, that in cases where a lower Court to the Supreme Court upholds objection of a party to the hearing of a suit in an appeal, the Court is still obliged to consider the case on its merit in the event that the Supreme Court finds fault with the reasoning and conclusion of the Court.
I am obliged to do so in this case, but must point out that in this particular instance, that exercise would be making a case for the appellant which he did not make for itself.
?
The sum total of the arguments of appellant for praying this Court to reverse the decision of the lower Court on S. 15 of the Electoral Act, 2002, is that the discretion granted to the 3rd respondent pursuant to the

 

35

provisions of Sections 76(1), 78, 132(1) and item 15 of the 3rd Schedule to the Constitution, must be construed as subject to the right of the National Assembly to legislate on peace, order and good government of the Federation or any part thereof on any matter whether in the Exclusive or Concurrent Legislative List on which it can legislate.
For the respondents however, it is argued that the provisions of the Constitution on these matters itemised do cover the field and any legislation by the National Assembly, which interferes with the exclusive discretion vested in the 3rd respondent with respect to the provisions of the Constitution concerned must, if inconsistent with the provisions of the Constitution be void under the provisions of Section 1(3) of the Constitution.
I am of the view that the above provisions of the Constitution have given unfettered discretion in the 3rd defendant on the choice of a date or dates for the election/elections to the offices concerned.
?I hold the view that in so far as S. 15 of the Electoral Act, 2002, seeks to fetter that discretion and limit the 3rd defendant to only one day in the year for all elections to

 

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the offices concerned, that provision of the Act is inconsistent with the provisions of the Constitution above referred to and is to that extent a nullity – Section 1(3) of the Constitution.
(i) Attorney-General of Abia State v. A.-G., Federation (2002) 6 NWLR (Pt. 763) 264 at 479;
(ii) INEC v. Musa (2003) 3 NWLR (Pt. 806) 72 at 157.
All in all, I agree with the reasoning in the judgment of the lower Court and with the conclusion in the judgment that S. 15 of the Electoral Act, 2002, is inconsistent with the specific provisions of the Constitution of The Federal Republic of Nigeria, 1999, in Sections 132(1), 76(1), 178(1), 116(1), 78, 118 and Item 15(a) of the 3rd Schedule; that it infringes upon the absolute discretion vested by the Constitution on the 3rd respondent with regard to the fixing of dates for election into the various offices concerned.
In the event, for the above reasons and the fuller reasons given in the lead judgment of my learned brother, OGUNTADE, JCA. I still must dismiss the appeal of the appellant. The appeal fails.
I affirm the decision of the lower Court that Section 15 of the Electoral Act, 2002, is

 

37

UNCONSTITUTIONAL.

I am now left to consider the issue raised in the cross-appeals of the 1st and 2nd respondents/cross-appellants and the appellants/cross-respondents’ briefs thereto.

The surviving grounds of appeal of 1st respondent/appellant are Grounds 1, 3 and 4; Ground 2 having been struck out for incompetence.
Also, the surviving grounds of appeal of 2nd respondent/cross-appellant are Grounds 1 and 2; Ground 3 having been struck out for incompetence with the grounds in the main appeal.

The 1st respondent/cross-appellant formulated the issue arising there from thus:
“WHETHER THE ELECTORAL, ACT, 2002, WAS VALIDLY PASSED BY THE NATIONAL ASSEMBLY BY ITS OVER-RIDING THE VETO OF THE PRESIDENT BY TWO-THIRDS MAJORITY OF THE TWO CHAMBERS OF THE NATIONAL ASSEMBLY PRESENT AS AGAINST TWO- THIRDS OF ALL THE MEMBERS AND BY PASSING THE BILL VIDE A PROCESS OF MOTION.”

The 2nd respondent/cross-appellant formulated the issue missing from its cross-appeal thus:
“Was the Electoral Act, 2002, duly and properly passed, in accordance with the provisions of Section 58(5) thereof?”
?
The appellant/cross-respondent concedes the issue as

 

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formulated by 1st respondent/cross-appellant.

I shall resolve the cross appeals on the issue as formulated by the 1st respondent/cross-appellant as the issue formulated by the 2nd respondent/cross-appellant can be subsumed in the issue formulated by 1st respondent/cross-appellant.

1st respondent/cross-appellant listed the findings of the lower Court leading to its decision (i) and (ii) of its judgment thus:
“i. For the purpose of carrying out its principal business in law making, the Senate or the House of Representatives must be properly constituted.
ii. To be properly constituted, a quorum must be formed.
iii. By Section 54(1) the quorum of the Senate or of the House of Representatives shall be one-third of all the members thereof.
iv. Section 58(1) of the 1999 Constitution provides for the mode of exercising Federal Legislative power, while Section 58(5) of the same 1999 Constitution, provides for the exercise of power to override the President’s veto.
v. The process of exercise of the power of overriding of the President’s veto by the National Assembly is part of its Legislative functions.
vi. Once a quorum which is

 

39

one-third of all the members of the legislative house concerned has been formed, the houses can validly exercise its power of override of the President veto by two-thirds majority of the members that formed the quorum.
vii. To override the President’s veto, it is not two-thirds majority of all the members of the National Assembly that is required.
viii. Whenever the Constitution intends that the entire membership of the Senate or House of Representatives is meant, the word ‘all’ is used such as Section 143 of the 1999 Constitution.
ix. The two-thirds majority mentioned in Section 58(5) of the 1999 Constitution is the two-thirds majority of the members present provided those members present form the necessary quorum as stipulated in Section 54(1) and (2) of the 1999 Constitution for the business of the House.

It is the argument of 1st cross-appellant that the findings of the lower Court on procedure listed above which the lower Court made the basis of its judgment on the constitutionality of the Electoral Act, 2002, is in fact faulty as the findings set out do not represent a proper interpretation of Section 58(5) of the Constitution of the

40

Federal Republic of Nigeria, 1999.

It is the submission of 1st cross-appellant in respect of Section 58(5) of the Constitution that the proper procedure for the National Assembly to adopt, if the assent of the President to the Bill is to be dispensed with requires that –
(i) Each house must put the bill returned by the President, through all the previous steps by which it was passed by that house in the first instance; and
(ii) ensure that the Yes votes represents 2/3rds of all the members of that house i.e. 2/3 of 109 members, in the Senate and 2/3rds of 360 members in the House of Representatives.

It is conceded that where there is no question of overriding the veto of the President, a bill is duly passed when after the needed three readings in each house, the bill is approved, by a simple majority of the members present and voting so long as the required quorum – which is one third of the membership of each house is present.

The arguments of 2nd appellant and of the 3rd respondent are along the same lines.
?
On the other hand, it is the submission of appellant/cross-respondent that the learned trial Judge of the lower Court is correct

 

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in its decision that the requirement of Section 58(5) of the Constitution is duly satisfied by a motion in each of the two houses of the National Assembly resolving to override the President’s veto duly passed by a 2/3rds majority of the members in the particular house at the time of voting so long as the required quorum representing 1/3 of the membership of that House is present.

It is the submission of learned Counsel for the appellant/respondent in its cross-respondent’s brief that the fact that the issue at stake relates to a legislation on the National Election, does not take it out of the category of an ordinary bill.

With much respect to learned Counsel for the appellant/cross respondent, it is my view that this submission misconstrues the issue which is at stake in this appeal.

With respect, it is my humble opinion that the issue at stake is not the Electoral Bill – per se.
?
The issue at stake is, the procedure required of the National Assembly to re-enact a bill – (any bill for that matter) whose earlier passage by the normal majority of each house in which a quorum was present failed to receive the assent of the President within 30

 

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days as required by Section 54 of the Constitution – that bill not being a money bill for which other specific provision is made in Section 59 of the Constitution.
It is my respectful view that once a bill not being a money bill, fails to receive the assent of the President within 30 days of its being sent to the President, that bill ceases to be a bill to which Section 54 of the Constitution which stipulates that the quorum of the Senate or of the House of Representatives shall be one-third of all the members of the legislative house concerned and that the quorum of a joint sitting of both the Senate and the House of Representatives shall be one-third of all the members of both houses, relates.
Furthermore, such a bill falls to be considered as one of the EXCEPTIONS to the provision of Section 56(1) of the Constitution which reads:-
“56(1) Except as otherwise provided by this Constitution, any question proposed for decision in the Senate or the House of Representatives, shall be determined by the required majority of the members present and voting; and the person presiding shall cast a vote whenever necessary to avoid an equality of votes but

 

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shall not vote in any other case.
(2) Except as otherwise provided by this Constitution, the required majority for the purpose of determining any question shall be a simple majority.”
On the other hand, the matter is, in my respectful view, taken entirely out of the purview of both Sections 54 and 56 of the Constitution on the principle of statutory construction that a statute must be read as a whole and that every provision in a statute must be given effect to.
Furthermore, it is a fundamental principle of interpretation of statutes that in the interpretation of the provision of a statute – the mischief which that statute or the provision thereof set out to cure must not be lost sight of.
?Finally, it is also a cardinal principle of the interpretation of statutes that unless the con thereof requires it, words in a statute must be given their ordinary grammatical meaning:-
(i) Effiong v. Ikpeme (1999) 6 NWLR (Pt. 606) 260;
(ii) City Engineering Ltd. v. N.A.A (1999) 11 NWLR (Pt.625),76;
(iii) A-G., Bendel State v. A-G., Federation (1980) 1 SCNLR 293.
An application of the above principles of interpretation of statutes to

 

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Section 58 would show that the refusal of the President to give his assent to any bill – (not being a money bill) which has been passed by each or both of the legislative houses takes the particular bill out of the simple majority and quorum requirements of Sections 54 and 58(1), (2) and (3) of the Constitution to the express majority stipulations of S. 58(4) and (5) of the Constitution.
These subsections read:
“58 ………………………………………
(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.”
It is a clear provision of Subsection (4) that the President shall “within 30 days of a Bill being presented to him, signify that he assents or that he withholds his assent.
It is common ground between the parties in this case that the withholding of the President’s assent was signified by his returning the Bill to the Senate with amendments –

 

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See p. 2 of 2nd respondent/cross-appellants’ brief of argument, and also p. 5 of appellant/respondents’ brief of argument.
I shall say more on these proposed amendments later in this judgment.
Now, the requirement of Subsection (5) of Section 58 of the Constitution indicates the specific provision of the Constitution with which such bill must comply to become law without the requirement of the assent of the President.
That requirement is:
“The Bill is again passed by each house by two-thirds majority.”
It is my humble view that the words “again”, “passed” and “two-thirds majority” are essential requirements of S. 58(5) as otherwise there is no compliance and such a bill which fails to comply would not be exempt from the requirement of the assent of the President.
?The word “again” is defined in the Concise Oxford Dictionary of Current English, 8th Edition at p. 22 as:
“another time; once more; as in a previous position or condition”.
At p. 869, the same edition of the dictionary, gives as one of the meanings of the word “pass” which is relevant for our purpose as:
“9(a) (of a bill) be examined and approved by (a parliamentary

 

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body or process)
(b) cause or allow (a bill) to proceed to further legislative process;”
?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

 

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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.”
There is no dispute that the Bill went through all stages 1 – 7 enumerated in the address of learned Counsel at its first passing.
The bill was then sent to the President for his assent being the 8th stage described.
Instead of the President giving his assent, he returned the bill to the Senate with proposed amendments.
It is my view that the only appropriate interpretation to be given to Section 58(5) of the Constitution is that if the Bill must become law without complying with the 8th stage, which is the assent of the president, it must fulfil the following two essential conditions. The first condition is that it must once more pass through all seven stages,

 

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which it went through at first. That is the simple grammatical meaning of the words “again passed by each house” contained in Section 58(5).
The next stage is that the repeat passage must be by two-thirds majority in each house – Again, it is the fulfillment of these two conditions that would satisfy Sections 56 and 58(5) of the Constitution.
It is my humble view that a repeat of the process is meant to give the electorate of the members of the respective houses and particularly, all the interested bodies, who contributed to the emergence of the bill during the earlier passage of the bill as well as the public an opportunity to know the amendments proposed by the President and air their views thereon which may influence the National Assembly on the third reading of the bill, if it again, gets to that stage or to drop the bill in deference to the views of the President and public opinion.
It is only if the National Assembly still considers, having had the benefit of the views of members of the public and of their respective constituencies and they are still convinced of the necessity to pass the bill in its original form, that the words – two-thirds

 

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majority in Section 58(5) comes up for interpretation.
From what I have said above, it is clear that there is no room in the Constitution for the National Assembly to override the veto of the President by a mere Motion. The whole process of the initial legislation must again be undertaken.
I now proceed to a consideration of the majority required of each house of the National Assembly in the process of overriding the veto of the President.
It has earlier been seen in this judgment that Section 54 of the Constitution requires 1/3 of all members of the legislative house concerned for a quorum of each house and also requires a quorum of 1/3 all the members of both houses for a joint sitting of both houses.
It has also been seen that each of Subsections (1) and (2) of S. 56 of the Constitution provides that “except as otherwise provided by the Constitution” any question proposed for decision or determination by either house shall be by a simple majority and that the person presiding shall have only a casting vote.
?I have already also held in this judgment that it is obvious that a bill which is the subject of a veto by the president and which

 

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must go through the whole process of legislation again to become law in the absence of the assent of the President, cannot be considered when it comes to deliberation thereon as another subject of general legislation, since by S. 56 of the Constitution such an event is an exception to the general run of the provision of S. 58(1)-(3) by virtue of Subsections (4) and (5) of S. 58.
The question is, when it comes for the second time to the third reading of a bill to which the President has previously refused his assent, does the provision of quorum in S. 54 override the special provisions of Sections 55 and 58(4) and (5) of the Constitution?
The normal rule of interpretation of the Constitution or of any Statute for that matter is that, general provisions must give way to special provisions – See A.-G., Abia State v. A.-G., Federation (supra).
By virtue of that argument, I am convinced that the special provision of 2/3 majority of each house or of a joint sitting of both houses, takes supremacy over the general provisions of the statute with regard to quorum and a simple majority contained in Sections 54 and 56 of the Constitution. ?
In the event, I

 

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am of the view that what is required in a proper application of S. 58(5) of the Constitution is for the bill to be supported by at least 73 members of the Senate and be supported by at least 240 members of the House of Representatives at a repeat third reading of the Bill.
This in my respectful view is in spite of the provision of S. 54 of the Constitution particularly, since both Sections 56 and 58(5) come after the provisions in S. 54.
This construction, in my view, suppresses the mischief, and advances the remedy.
In the event, and for these reasons and the fuller reasons contained in the lead judgment, which I adopt as mine, I hold that the cross-appeals of both 1st and 2nd respondents succeed.

There is now left for me, a consideration of the reliefs to be granted in this judgment.
?
The 1st respondent/cross-appellant has asked in his notice of cross-appeal for the following reliefs:
“An Order allowing the appeal and setting aside the decision of the lower Court which upheld the Constitutionality of the Electoral Act, 2002.
An Order granting the reliefs claimed by the Independent National Electoral Commission in the lower

 

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Court.”

At the risk of repetition, the following are the reliefs claimed by the plaintiff in the amended originating summons:
“1. A Declaration that Section 15 of the Electoral Act, 2002, which was passed into Law on the 25th and 26th of September, 2002 by the 2nd defendant, by virtue of a motion of veto over-ride is unconstitutional, null, and void and of no legal effect whatsoever.
2. AN ORDER setting aside Section 15 of the Electoral Act, 2002, which was passed into law on the 25th and 26th of September, 2002, by the 2nd defendant by virtue of a motion of veto over-ride, for non-compliance with the condition precedent for the passing of same having been vetoed by the President in accordance with Section 58(5) of the 1999 Constitution.
3. A DECLARATION that the plaintiff is the only body vested with powers to conduct, fix the date, supervise, direct and organize all elections having regard to Section 132(1), 76(1), 178(1), 116(1),78, 113 and item 15(a) of the 3rd schedule of Constitution 1999, the effect of which vests absolute discretion of all matters pertaining to elections on the plaintiff.
4. AN ORDER of Perpetual Injunction

 

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restraining the defendants, their servants, agent, and/or privies from giving any legal effect whatsoever and/or acting on the Electoral Act, 2002.
5. A DECLARATION that the Electoral Act, 2002 is unconstitutional, null and void and of no Legal effect whatsoever.”
The lower Court has already granted prayers 1, 2 and 3. I have no hesitation of affirming the orders of the lower Court to grant prayers 1, 2 and 3.

As for prayers 4 and 5, I am of the opinion that for reasons of public policy and in order not to destabilize the Nigerian polity; since the Electoral Act, 2002, exhibit ‘A’ as passed and without the provision of Section 15 thereof was the Electoral Act used for the recently concluded elections, the interest of the nation would best be served by not making the declaration and the order sought for by the plaintiff in prayers 4 and 5.

In my opinion, it is sufficient for future sessions of the National Assembly to have the views of this Court as expressed in these judgments as guidance for their future deliberation.
?
Once again, I am in full agreement with the views expressed in the lead judgment together with those earlier expressed

 

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herein that it would be a proper judicial and judicious exercise of the discretion vested in this Court in spite of the success of the cross-appeals by 1st and 2nd respondents/cross appellants not to grant the reliefs sought for in prayers 4 and 5 of the amended originating summons.

Appeal struck out,
Cross-appeal allowed.

 

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Appearances:

Abubakar Malami with him, A. M. Hassan, Esq.
For  Appellant(s)

Rotimi Jacobs, Esq For 1st Respondent
Paul Erokoro, Esq. with him, A. Unimna, Esq.; A. Onigi Otite[Miss]; O. Anozie, Esq.; L. Otiero, Esq. For 2nd Respondent
Sir Alfred Eghobamien, S.A.N. with him, B. I. Omoaghe [Miss]; O. Abanu, Esq. For 3rd RespondentFor  Respondent(s)

 

 

Appearances

Abubakar Malami with him, A. M. Hassan, Esq.For Appellant

 

AND

Rotimi Jacobs, Esq For 1st Respondent
Paul Erokoro, Esq. with him, A. Unimna, Esq.; A. Onigi Otite[Miss]; O. Anozie, Esq.; L. Otiero, Esq. For 2nd Respondent
Sir Alfred Eghobamien, S.A.N. with him, B. I. Omoaghe [Miss]; O. Abanu, Esq. For 3rd RespondentFor Respondent

 

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