PRESIDENT, F.R.N. V. NATIONAL ASSEMBLY (2022)

Background

This case concerned the constitutional validity of section 84(12) of the Electoral Act, 2022. That provision stated that no political appointee at any level could be a voting delegate, or be voted for at the convention or congress of a political party, for the purpose of nominating candidates for an election. The President of the Federal Republic of Nigeria, after the Electoral Bill 2022 had been passed by the National Assembly, assented to it on 25 February 2022. The Bill thereby became the Electoral Act, 2022.

Although the President signed the Bill, he expressed reservations about section 84(12), describing it as unconstitutional, discriminatory and inconsistent with the constitutional qualifications and disqualifications for elective office. He subsequently wrote to the National Assembly requesting that the provision be deleted or amended. When the National Assembly did not accede to that request, the President and the Attorney-General of the Federation commenced an action directly at the Supreme Court in its original jurisdiction.

The plaintiffs sought declarations that section 84(12) was inconsistent with several provisions of the 1999 Constitution, including sections 42, 65, 66, 106, 107, 131, 137, 177 and 182, as well as Article 2 of the African Charter on Human and Peoples’ Rights. They also asked the Court to nullify the provision under the blue-pencil rule. The National Assembly and the other defendants challenged the competence of the action through preliminary objections and a motion on notice.

Issues

1. Whether the Supreme Court had original or additional original jurisdiction to entertain the dispute under section 232 of the Constitution and section 1(1)(A) of the Supreme Court (Additional Jurisdiction) Act, 2002.
2. Whether the plaintiffs had disclosed a justiciable dispute involving the existence or extent of a legally enforceable right.
3. Whether the President, having participated in the legislative process by assenting to the Bill, could later challenge the validity or constitutionality of the resulting Act.
4. Whether the President could compel or direct the National Assembly to amend or repeal a law after it had been enacted.

Ratio Decidendi

The Supreme Court unanimously held that the suit was incompetent and struck it out. The Court emphasised that its original jurisdiction is exceptional and constitutionally limited. Under section 232(1) of the Constitution, there must be a dispute between the Federation and a State or between States involving a question of law or fact on which the existence or extent of a legal right depends. Section 1(1)(A) of the Supreme Court (Additional Jurisdiction) Act extends that jurisdiction to disputes between the National Assembly and the President, among other specified governmental parties, but preserves the same requirement concerning a legal right.

The Court found that the plaintiffs’ action did not concern any personal or institutional legal right belonging to them. Rather, it sought to protect the Constitution, democracy and the rule of law, and to vindicate the alleged rights of political appointees who were not parties to the proceedings. Those matters, without a nexus to the plaintiffs’ civil rights and obligations, were general, abstract and academic. The judicial power vested in the courts under section 6 of the Constitution is invoked for the determination of civil rights and obligations, not for deciding abstract constitutional questions unconnected with an enforceable claim.

The Court further held that the President had participated in making the Electoral Act by exercising his constitutional function under section 58. Assent means agreement, approval or concurrence with the Bill as passed. Once the President assented, the Bill became an Act of the National Assembly. The Constitution did not recognise a conditional assent which would allow the President to accept part of a Bill while reserving the right to invalidate another part later. Having assented, the President could not approbate and reprobate by treating the Act as valid for the purpose of enactment but invalid when challenged in court.

Court Findings

The Court stated that the President’s role in the law-making process ends when he signifies assent or withholds assent. If assent is withheld and the Bill is subsequently passed by a two-thirds majority of each House, it becomes law without presidential assent under section 58(5). After assent, the President’s constitutional role is to comply with and enforce the law; he has no power to compel the National Assembly to amend or repeal it.

The judgment reaffirmed the doctrine of separation of powers. Section 4 vests legislative power in the National Assembly, section 5 vests executive power in the President, and section 6 vests judicial power in the courts. None of these provisions makes the legislative powers of the National Assembly subject to the direction or control of the President. The courts also cannot be used to fill a perceived constitutional or legislative gap through judicial activism where the Constitution does not authorise such intervention.

The Court treated jurisdiction as a threshold issue. Applying the principles in Madukolu v. Nkemdilim, it held that a court must be properly constituted, have jurisdiction over the subject matter and be seised of the matter by due process with all conditions precedent satisfied. Where jurisdiction is absent, every proceeding and decision on the merits is a nullity. Since the plaintiffs disclosed no legally enforceable right and no qualifying dispute, the Supreme Court could not proceed to determine whether section 84(12) was substantively constitutional.

Conclusion

The Supreme Court upheld the defendants’ objections and unanimously struck out Suit No. SC/CV/504/2022 for want of jurisdiction and incompetence. The Court made no order as to costs. It did not determine the substantive constitutionality of section 84(12) of the Electoral Act, 2022 because the action failed at the jurisdictional threshold.

Significance

The decision is significant for Nigerian constitutional law because it defines the limits of the Supreme Court’s original jurisdiction and reinforces the requirement that an original action must involve an identifiable legal right. It also confirms that presidential assent under section 58 is a substantive constitutional act, not a provisional or conditional approval. The case underscores that executive dissatisfaction with legislation cannot be converted into a direction to the legislature or an abstract invitation to the courts to review the political branches. At the same time, the judgment affirms that the rule of law applies equally to all constitutional actors and that each arm of government must operate within the limits assigned to it by the Constitution.