Constitution: Agbakoba Sues N’Assembly

Written by This Day Tuesday, 03 August 2010

Former President of the Nigerian Bar Association Mr. Olisa Agbakoba (SAN) has mounted a legal challenge against the National Assembly for insisting that amendments to the 1999 Constitution do not require the assent of President Goodluck Jonathan before they become law.

In the originating summons filed by his lawyer Mr. Chijioke Ogham-Emeka yesterday,  Agbakoba is asking the court to hold that the Constitution (First Amend-ment) Act 2010 passed by  the National Assembly cannot take effect as law without being signed by the president.
He argued that the amendment would be illegal and unconstitutional if it is not signed by Jonathan.

Agbakoba urged the court to nullify the amendment on grounds that the National Assembly has contravened Section 58 of the 1999 Constitution.
The former NBA boss, who named the Attorney-General of the Federation Mohammed Adoke (SAN) as co-defendant to the suit, is also asking the court to hold that in view of the provisions of section 58 (1) of the 1999 Constitution, the assent of the president is a prerequisite before the amendment can become law.

According to the plaintiff, unless there is a deliberate effort to over ride that requirement (assent), pursuant to section 58 (5) of the Constitution, Jonathan’s assent is sacrosant.
He is further asking the court to "declare that the exclusion by the first defendant (the National Assembly)  of the assent of the President of the Federal Republic of Nigeria from the process of alteration of the Constitution, unless section 58 (5)  of the 1999 Constitution is complied with, renders the Constitution  (First Amendment) Act 2010 embodying such altered provisions  unconstitutional ,  null and void.

The plaintiff is seeking an order nullifying and voiding the Constitution for contravening the provisions of Section 58 of the Constitution.
According to Agbakoba, Section 58 of the 1999 Constitution spells out the mode of passing an Act of the National Assembly.
He urged the court to take judicial notice of the fact that since the Constitution (First Amendment) Act 2010 is an Act of the National Assembly and section 9 (2) of the Constitution merely provides for the mode of passing a Constitution Alteration Act by the lawmakers, the development does not derogate from the provisions of section 58 of the Constitution on how and when a bill which has thus been so passed becomes law'.

The application, which was backed by a 28-paragrah affidavit deposed to by a lawyer Mr. Jude Ehiedu, Agbakoba noted that it became imperative for him to challenge the amended constitution because it touches on sundry issues of grave political and electoral importance.
He contended that by the conduct of the National Assembly, a tax payer who has the right to be governed constitutionally; a lawyer who goes to court to argue cases based on a valid law and a valid constitution; and a SAN who swore to uphold the constitution in the performance of his duties, will now be governed by unconstitutionally amended provisions of the Constitution (First Amendment) Act 2010 in respect of his civil and political rights.

No date has been fixed for the hearing of the case.
But when contacted on phone to explain whether Agbakoba has the locus standi to institute the suit, Ogham-Emeka drew THISDAY’s attention to the oath sworn to by Agbakoba sequel to his conferment of Senior Advocate of Nigeria (SAN) in September 1998, in fulfillment of the Legal Practitioners’ Act Cap 207 laws of the federation.
In his declaration, the former NBA boss swore to “truly serve the interest of the Federal Republic of Nigeria” and uphold the constitution of the country, he argued.

The Counsel also drew THISDAY attention to the case involving the late Chief Gani Fawehinmi (SAN) and former Minister of Finance Minister Mrs. Ngozi Okonjo-Iweala, where the Court of Appeal held that Fawehinmi had the locus standi to challenge the Federal Government for paying the minister her salaries and other allowances in dollars because he had sworn to uphold the constitution.

The National Assembly had passed the harmonised version of the amendments to the constitution and maintained that Jonathan does not need to append his signature before the changes become law.
Prominent lawyers such as Prof. Ben Nwabueze and Chief Richard Akinjide have argued that the President needs to sign the act before it can become law.