Appeal Court Reserves Verdict On NASS’s Bid To Re-order 2019 Election Sequence


The Abuja Division of the Court of Appeal, on Thursday, reserved judgment on the appeal seeking to re-order the proposed sequence for the 2019 general elections. A full panel of the appellate court headed by its President, Justice Zainab Bulkachuwa, adjourned the matter for judgment, after it heard the appeal that was lodged by the National Assembly.

The NASS had in the Appeal marked CA/A/485/2018, which was filed on June 14, prayed the court to declare that it has the constitutional powers to amend the Electoral Act to re-order the election sequence already released by the Independent National Electoral Commission, INEC.

In its 17 grounds of appeal, the NASS, urged the appellate court to set-aside the April 25 judgment of the Federal High Court in Abuja which held that it lacked the powers to re-order the proposed sequence for the next general elections. It argued that the high court was bereft of the vires to assume jurisdiction and void a bill that was still undergoing the legislative process of becoming a law.

It will be recalled that the high court had in a verdict that was delivered by Justice Ahmed Mohammed, adduced reasons why the election timetable that was released by INEC could not be altered by the legislature. Justice Mohammed held that INEC was the only body constitutionally empowered to organise, undertake and supervise elections in the country, adding that such responsibility included fixing dates for polls.

The judgment followed a suit that was lodged before the court by Accord Party. The high court noted that moves to amend the Electoral Act commenced after INEC had released its timetable for elections, stressing that action of the NASS was in breach of paragraph 15a of the 3rd Schedule to the 1999 constitution, as amended. However, the NASS in its appeal, contended that the trial Judge erred in law when he assumed jurisdiction to entertain and determine the suit without observing or applying the principles and doctrine of separation of powers.

According to the NASS, “The trial judge wrongly failed to appreciate that, until the Electoral Act (Amendment) Bill 2018 was passed into an Act by the exercise of the legislative power of the National Assembly to over-ride the veto or withholding of assent to the Bill by the President, the same remained inchoate and not capable of vesting a justiciable civil right or obligation on any person, including the plaintiff.”

It maintained that the lower court wrongly interpreted the provisions of Section 4(8) of the 1999 Constitution (as amended), so as to reach the conclusion that the Federal High Court was vested with jurisdiction to impugn a Bill perceived to be unconstitutional. Meantime, the Attorney General of the Federation, INEC and Accord Party, through their respective lawyers, urged the appellate court to dismiss the appeal which they argued had turned academic. The office of the AGF, via a letter dated June 18, notified the appellate court that the NASS had since expunged section 25 of the Electoral Act Amendment Bill, 2018, which sought to alter sequence for the impending general elections.

The AGF argued that the offending session was the subject matter of the suit that was decided by the lower court, upon which the instant appeal by the NASS was based. He insisted that the issue had been overtaken by events since the NASS has already transmitted a revised version of the Electoral Act Amendment Bill to President Buhari for his assent. The position of the AGF who was represented by the Solicitor General of the Federation, Mr.  Dayo Apata, was backed by counsel to Accord Party, Chief Wole Olanipekun, SAN, and that of INEC,  Mr. Femi Falana, SAN. All the Respondents argued that the NASS, having compromised its earlier stand by submitting another version of the amendment bill without the contentious section on election sequence to the President, it no longer has a valid basis to sustain its appeal.

They urged the court to dismiss the appeal in its entirety. In his reply, counsel to the NASS, Mr.  J. B. Daudu, SAN, said his client had raised germane constitutional issues that required an interpretation from the appellate court. He stressed that since none of the Respondents filed a preliminary objection against the appeal, the letter from the AGF and a copy of the revised Electoral Act Amendment Bill that was attached to it,  could not be smuggled into the record of the proceedings.

Earlier in the matter, the appellate court panel awarded N1million cost against a lawyer, Mr. Okere Kingdom, who filed a motion for the Action Peoples Party, APP, to be joined as an interested party in the appeal. Okere had pleaded the appellate court to in the interest of justice, allow APP which was shut-out of the case by the trial court, to join and consolidate its own appeal with that of the Accord Party. However, in her ruling, Justice Bulkachuwa held that the application amounted to gross abuse of the judicial process, adding the lawyer “fraudulently” assigned a case number to his appeal.

APP had at the lower court, argued that it strongly believed that the re-ordered election sequence which was rejected by President Buhari, would have  “guaranteed free and fair election and give every political party equal opportunity in the 2019 general elections”. Aside opposing the suit by Accord Party, the APP,  applied for an order to compel the NASS to override President Buhari’s veto powers on the amended election sequence. The Accord Party had in its suit marked FHC/ABJ/CS/232/2018, posed nine questions for the lower court to determine, among which included whether, “Having regard to the combined provisions of section 79, 116, 118, 132, 153, 160(1) and 178 of the Constitution of the Federal Republic of Nigeria, 1999, as amended, read together with paragraph 15(a) of the Third Schedule to the same Constitution, whether the 3rd defendant is not only institution or body constitutionally vested with the powers and vires to organise, 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?”