IN THE SUPREME COURT OF NIGERIA
ON THURSDAY, THE 28TH DAY OF MARCH 2002
S.C. 3/2002
BEFORE THEIR LORDSHIPS
MUHAMMADU LAWAL UWAIS – CHIEF JUSTICE OF NIGERIA
IDRIS LEGBO KUTIGI – JUSTICE, SUPREME COURT
MICHAEL EKUNDAYO OGUNDARE – JUSTICE, SUPREME COURT
EMMANUEL OBIOMA OGWUEGBU – JUSTICE, SUPREME COURT
UTHMAN MOHAMMED – JUSTICE, SUPREME COURT
UMARU ATU KALGO – JUSTICE, SUPREME COURT
AKINTOLA OLUFEMI EJIWUNMI – JUSTICE, SUPREME COURT
BETWEEN:
ATTORNEY-GENERAL OF ABIA STATE & 35 ORS – PLAINTIFFS
AND
ATTORNEY-GENERAL OF THE FEDERATION – DEFENDANT
JUDGMENT OF THE COURT
DELIVERED BY
IDRIS LEGBO KUTIGI. J.S.C
I therefore enter judgment for the Plaintiffs on their Claim (i) and declare that no law enacted by the National Assembly can validly increase or otherwise alter the tenure of office of elected officers or of Councillors of Local Government Council except in relation to the Federal Capital Territory alone.
The Plaintiffs adopt their arguments in respect of Issue (1) Claim (i) above, and emphasised that the National Assembly has no power to enact laws with respect to the conduct of elections into the office of Chairman, Vice-Chairman or Councillors of a Local Government except the power to make laws with respect to “registration of voters and the procedure regulating elections to a Local Government Council”, which is itself predicated on the existence of laws with respect to elections generally.
I think having regard to the submission by the Plaintiffs’ counsel on the Issues above as well as the Defendant’s reply on them, it will be convenient to deal with plaintiffs’ Claim (iv) here immediately since the claim relates to the scope or limit of the legislative powers of the National Assembly with respect to Local Government elections in the States under the Constitution. In the light of what I have said above, I believe this claim too must succeed.
It is the House of Assembly of a State and not the National Assembly, which has the power to make laws with respect to matters relating to or connected with elections to the office of Chairman or Vice-Chairman of Local Government Council in that State or to the office of Councillor therein.
This issue relates to the powers of the National Assembly to make laws with respect to the qualification or disqualification of candidates for elections to be held pursuant to the Provisions of the Constitution without complying with the requirements of Section 9 of the Constitution. Plaintiffs contend that since the Constitution has made very clear provisions with respect to the qualification of a person who seeks election to the office of President (See 131), Governor (See 177), membership of the National Assembly (See. 65) and membership of a State House of Assembly (Sec. 106), and similarly very clear provisions with respect to the disqualification of candidates for the same offices, President (5ec. 137), Governor (Sec. 182), Na tonal Assembly members (Sec. 66), and State Assembly members (Sec. 107), the National Assembly cannot amend or alter any of the provisions for qualification or disqualification of candidates as stipulated in the Constitution except by complying with the requirements of Section 9 of the Constitution, which relates to the mode of altering or amending the provisions thereof. It was submitted that the provisions contained in Section 25 of the Electoral Act has the effect of amending the Constitutional provisions relating to the qualification and disqualification of candidates for election when compared with the existing provisions under Sections 106, 107, 177 and 182 of the Constitution.
The court was urged to hold that the National Assembly cannot amend the provisions for qualification and disqualification of candidates as contained in the Constitution and that in accordance with the well established principles of constitutional law, if a legislature enacts a law in identical terms with what has already been enacted by another legislature whose enactments have superior legislative force, then the enactment of the subordinate legislature is void or at least inoperative. The case of Attorney General of Ogun State V Attorney-General of the Federation (1982) 13 NSCC I at II per Fatai-Williams CJN was cited in support.
The Defendant said that because the National Assembly has the power to make law for peace, order and good governance for the Federation, it is in the discharge of the constitutional duty imposed on it by Section 4 of the Constitution that Section 25 of the Act was enacted to ensure orderliness and peace at elections, which are indispensable conditions precedent to the attainment of a good government and none of the provisions of the Constitution has been violated by the Act.
I accept the submission of learned senior counsel for the Plaintiffs and reject that of the Defendant. It is therefore hereby declared that the National Assembly has no power to make any law with respect to the qualification or disqualification of candidates for elections to be held pursuant to the provisions of the Constitution without fist of all complying with the requirements of Section 9 of the Constitution.
The Plaintiffs contended that in enacting the Electoral Act, the Federal Government proceeded with that exercise as if the word “excluding” in Item 22 of the Exclusive Legislative List is replaced by the word “including”, and proceeded to treat the legislative Powers of the National Assembly with respect to Presidential and Gubernatorial elections as if they were c0-extensive with its powers over Local Government elections. For this reason therefore Parts II and IV of the Act must be treated as void on the ground of inconsistency with the Constitution. That even if some of the provisions are good in so far as they apply to Presidential and Gubernatorial elections those provisions which purport to apply to Local Government Councils are bad and that this is not the type of situation, to which the blue pencil rule can be applied for the simple reason that one cannot sever the bad from the good. The case of Balewa V Doherty (1983) 1 WLR 949 per Lord Devlin was cited in support.
I have recorded elsewhere that the Defendant is of the view that none of the provisions of the Act has contravened any of the provisions of the Constitution and that the National Assembly only acted in exercise of the powers conferred on it by the Constitution to make law for peace, order and good governance of the country.
Many of its provisions are duplications of the Constitutional provisions relating to the election into the office of the President, members of the National Assembly, Governors and members of the Houses of Assembly. Many of its provisions also pertain to election to the office of Chairman, Vice-Chairman and Councillors of Local Government Council which are inconsistent with Item 22 on the Exclusive Legislative List discussed earlier in this judgment.
I have therefore no hesitation whatsoever in coming to the conclusion that the entire section is void for duplication, inconsistency and lack of legislative competence. The section is accordingly struck out.
The Section deals with the postponement of elections. As far as the Local Government Councils are concerned this can be regarded as part of the procedure regulating elections. The Plaintiffs have not urged anything specifically against the Section. The Section is accordingly upheld as valid.
These Sections are taken together simply because of inconsistency with the existing provisions of the Constitution. The National Assembly is incompetent to repeat in a law, things like qualification and disqualification of candidates for the elections already provided for in the Constitution. Many provisions pertaining to Local Government elections are also not matters of procedure. All the Sections are clearly incompetent.
These Sections would appear largely to have concerned themselves with the procedure regulating elections at all levels including Local Government Councils as already discussed above. Anything outside that will he unconstitutional as far as Local Government Councils are concerned.
It is perhaps now time to state that the Electoral Act is supposed to have dealt with all elections both at the Federal, State and Local Government levels. But as I have demonstrated above, all provisions in respect of Federal elections unless already provided for in the Constitution or where it is sought to change, alter or amend the constitutional Provision or where there is no power at all, the provision will he treated as valid except those in respect of Local Government Councils, which must not go beyond provision for registration of voters and or the procedure for regulating elections to the Local Governments. As a result of this, the Electoral Act as a whole is a mix-up, a confusion because the National Assembly seemed to have treated its legislative powers with respect to Federal elections as if they were coextensive with its powers over Local Government elections. They were wrong. I have shown above that a few provisions of the Act are good but quite a large number of them are bad and had been struck out.
For the foregoing reasons the Plaintiffs’ Claim (v) succeeds in part and I declare as follows:
The Plaintiffs contend that in the light of the answers to Issues (i) to (v) above, the Court should examine the remaining portions of the Act not affected by the decision, which nullified parts of the Act on the ground that they are unconstitutional and void, to see whether the remaining portions still remain operative. It was submitted that what is left of the Act when all the portions attacked are expunged cannot be allowed to stand and so the Act ought to be struck-out in its entirety.
UWAIS, OGUNDERE, OGWUEGBU, MOHAMMED, KALGO AND EJIWUNMI
