Supreme Court strikes out Buhari, Malami’s suit on Electoral Act amendment

In a judgment on Friday, a seven-member panel of the apex court, headed by Justice Musa Dattijo Mohammed, was unanimous in holding that President Buhari, having participated in the making of the law by assenting to it, could not turn around to fault its provisions.

The court upheld all the grounds of objection raised by the National Assembly, through its lawyer, Dr. Olukayode Ajulo, against the competence of the suit marked: SC/504/2022.

The President and the AGF had through their Lawyer, Lateef Fagbemi SAN argued among others, that Section 84(12) of the Electoral Act was made in excess of the constitutional powers of the National Assembly and therefore, unconstitutional and illegal.

The Supreme Court, however, agreed with Ajulo that the suit is not one of such cases in respect of which the court’s original and additional jurisdictions could be invoked under Section 23(2)(1) of the Constitution and Section 1(1)(a) of the Supreme Court (Additional Jurisdiction) Act 2002.

The court faulted the plaintiffs’ argument that the suit was informed by the National Assembly’s failure to give effect to President Buhari’s request that Section 84(12) of the Electoral Act be deleted for allegedly offending the provisions of the Constitution.

The apex court held that the President lacked the constitutional or legal rights or power to request or compel the National Assembly to amend or make an Act.

In the lead judgment, Justice Emmanuel Agim noted that the suit touched on the essence of the powers given to the President by Section 58(4) of the 1999 Constitution, which he exercised by participating in the making of the E. A. 2022.

Justice Agim held that since the President aided the creation of the Act, with the support of the AGF, both plaintiffs could not turn around to query its legality.

He added: “The Constitution did not provide for the involvement of the court by the President after exercising his powers under Section 58(4) of the Constitution one way or the other.

“I agree with the argument by the counsel to the National Assembly (Ajulo) that this suit is reprobation of what the first plaintiff (the President) had approbated, and this cannot be allowed in law.

“Having assented to the Electoral Bill 2022 and thereby accepted that it has become law, he cannot, therefore, bring a suit, contending that the actions resulting from his assent is not constitutional, desirable and justifiable, thereby detracting from his assent.

“As it is, one of the cumulative requirements in Section 1(1)(a) of the Supreme Court (Additional Jurisdiction) Act 2002 for the invocation of the additional jurisdiction of this court to entertain an originating suit between the President and the National Assembly does not exist.

“The plaintiffs have no legally enforceable legal right or power that gives life to questions raised for determination in the originating summons, and that can be protected or enforced by the reliefs claimed for.

“The dispute, in this case, does not involve any question or include the existence or extent of any legal right to the plaintiffs. Therefore, this suit cannot be entertained by this court in the exercise of its additional jurisdiction under Section 1(1)(a) of the Supreme Court (Additional Jurisdiction) Act 2002

“Even the original jurisdiction vested in this court by Section 23(2)(1) of the 1999 Constitution to determine disputes between the federation and the state or between states cannot be invoked unless the dispute involves any question on which the existence of a legal right depends.

“There is no part of the Constitution that makes the exercise of the legislative power of the National Assembly subject to the direction and control of the President of Nigeria.

“The first plaintiff’s (the President) written request to the National Assembly to amend the Electoral Act 2022 by deleting Section 84(12) therein, is a violation of Section 4(1) of the 1999 Constitution.

“This suit, which was filed in response to the refusal of the National Assembly to grant the said request is an employment of the judicial process to help realise the said violation.

“The court cannot be engaged in this kind of unconstitutional and illegal enterprise. The suit is, therefore, an abuse of the judicial process,” Justice Agim said.

He further agreed with Ajulo that the court lacked the jurisdiction to entertain the suit, and added that there was no useful purpose to be served by determining the case on the merit.

Other members of the panel – Justices John Okoro, Amina Augie, Mohammed Garba, Abdu Aboki and Ibrahim Saulawa – agreed with the lead judgment.