A seven-man panel of justices of the apex court, led by the Chief Justice of Nigeria, CJN, Justice Mahmud Mohammed, gave the two parties 24 hours to explore an out-of-court resolution of the matter.
In a short ruling, yesterday, the CJN adjourned the matter till tomorrow to entertain arguments on whether or not the apex court should vacate the order that directed the NASS to maintain status-quo on the issue.
At the resumed sitting on the matter, yesterday, Mr Bayo Ojo, SAN, who represented the Attorney General of the Federation, AGF, applied to amend the originating process to reflect President Jonathan as the plaintiff in the case.
His application was opposed by counsel to the NASS, Chief Adegboyega Awomolo, SAN, who prayed the apex court to strike out the substantive suit and allow the federal lawmakers to proceed with overriding President Jonathan’s veto against the passage of the Fourth Alteration Bill for the amendment of the 1999 Constitution .
Awomolo contended that the suit was incurably defective ab-initio, and therefore, ought to be dismissed by the apex court.
Affidavit evidence could not be amended
Meanwhile, the Supreme Court panel noted that the AGF had earlier filed an affidavit in support of the suit, stressing that affidavit evidence could not be amended as prayed.
The CJN specifically noted that the AGF failed to cite all the 36 states of the federation that participated in the constitution amendment process as relevant parties to the suit.
While refusing to vacate the status-quo order, the CJN-led panel advised the warring parties to go back and amicably reconcile their differences.
The CJN had in a ruling he delivered on May 7 ordered the lawmakers to maintain status quo till June 18, saying: “No step should be taken with regard to the subject matter of the suit by either the respondent or the plaintiff.”
Besides, the apex court directed the AGF who filed the suit on behalf of President Jonathan, to prepare to address it that day on the import of the provisions of section 232 of the 1999 constitution to the suit.
The CJN noted that going by the aforementioned section, only the President himself, and not the AGF, has the locus-standi to invoke the original jurisdiction of the apex court against the NASS.
He further observed that it was not only the NASS that was involved in the constitution amendment process, saying the 36 States of the federation, having participated in the exercise, ought to have been joined as necessary parties to the suit.
According to the CJN, section 232(1) of the constitution conferred the Supreme Court with the original jurisdiction over any dispute between the NASS and the President, not the AGF.
However, counsel to the AGF, Chief Ojo, SAN, had insisted before the court that the suit was properly instituted.
NASS prays court to dismiss originating summons
Meantime, members of the outgoing NASS are praying the apex court to discharge the interlocutory orders of injunction that restrained them from amending the constitution.
The NASS in their application, also prayed the court to dismiss the originating summons filed by the Attorney General of the Federation on April 22, on the ground that it is incompetent, fundamentally and incurably defective and thereby robs the Supreme Court of its jurisdiction.
According to them, “there is no known or reasonable cause of action disclosed in the originating summons to ground jurisdiction of the Supreme Court.
“The originating summons filed by the plaintiff is an improper and or reckless invocation of the original jurisdiction of the Supreme Court.”
Their lawyer, Awomolo, further argued that the AGF was not competent to invoke the original jurisdiction of the Supreme Court under the Supreme Court (additional jurisdiction) Act.
While urging the court to hear the application, Awomolo said that the NASS was inaugurated on June 6, 2011, for a term of four years always the lifespan due to expire on June 6, 2015.
They prayed the court to expeditiously hear and determine the matter before June 6 so as obviate the situation where the matter becomes a mere academic exercise.
“It is in the interest of justice and the good people of Nigeria that this suit be given expeditious hearing and determination”, they added.
Jonathan had through the AGF, urged the Supreme court to nullify all the proposed amendments to the 1999 constitution.
In his originating summons, he prayed the court to declare as unconstitutional, the amendments as proposed by the lawmakers.
FG urged the court to set aside sections 3, 4, 12, 14, 21, 23, 36, 39, 40, 43 and 44 of the Fourth Alteration Act, 2015, purportedly passed by the Defendant (NASS).
It contended that the said Fourth Alteration Act 2015, was not passed with the mandatory requirement of four-fifths majority of members of the Defendant (National Assembly), and the mandatory due processes provided for under the relevant sections of the extant Constitution of the Federal Republic of Nigeria, 1999, as amended.
As a follow up, President Jonathan equally wrote separate letters to the Senate President, David Mark and the Speaker of the House of Representatives, Hon. Aminu Tambuwal, asking them to halt moves by members of the National Assembly to go ahead with the constitution amendment process.
I n the letter which was served on them by the AGF, President Jonathan urged them to restrain other federal legislators from tampering with the 1999 constitution, as issues regarding its proposed amendments, are already before the Supreme Court.
More so, the AGF told the apex court that; “Hon. Samson Osagie, Minority Whip of the House of Representative, said to the whole world at a Press Conference purposely called on the issue in this suit that despite any case filed against the said Act (which actually is a Bill); the National Assembly would go ahead to pass it into law. “
The AGF contended that the balance of convenience tilts in favour of resolution of the legal grey areas concerning the proposed constitution amendment, before any further step could be taken on the Bill.
He maintained that the NASS was determined to proceed with passing the constitution by overriding the veto of same by President Jonathan, despite the fundamental nature of the issues raised against the proposed alterations to the constitution.
More so, Adoke argued that it would be in the interest of the whole Nigerian polity that the issues in the substantive suit are resolved one way or the other by the court before the National Assembly could proceed further on the proposed alterations to the constitution.
In an affidavit deposed to by one Theophilus Okwute, a lawyer in the chambers of Chief Bayo Ojo, SAN and Co , which was attached to the application, he averred before the apex court thus; “That I listened to Hon. Samson Osagie, the Minority Whip of the House of Representative on the NTA 9 O’clock News on 24/04/2015 when he said that the National Assembly would go ahead to pass the (Fourth Alteration) Act (Bill) 2015 into law despite any Court action because no order had been made against the National Assembly to restrain it from doing so.
“That by that very disposition of the said Hon. Samson Osagie who spoke to the press as a Principal Officer of the Defendant/Respondent, it is clear that the Defendant/Respondent is determined to proceed to pass the Fourth Alteration Act (sic) into Law despite the pendency of the substantive suit herein.
“That fundamental questions were raised by the Plaintiff/Applicant on the proposed alterations to the Constitution of the Federal Republic of Nigeria through the Fourth Alteration Act, 2015 which is in issue in this suit.
“That it will be in the larger interest of Nigeria that those issues be resolved before the Defendant/Respondent takes any further step in giving effect to the proposed alterations to the Constitution.
“That with the utterances of Hon. Samson Osagie at the Press Conference earlier alluded to in this affidavit, it is clear that the Defendant is determined to ignore the proceeding before this Honourable Court on the proposed alteration and proceed to give effect to the alterations to the Constitution.”
“That the Defendant/Respondent will not lose anything or suffer any prejudice if this application is granted.
“That the balance of convenience tilts in favour of granting this application. That the whole Nigerian legal system shall be put into confusion if the Defendant/Respondent proceeds to give effect to the Fourth Alteration Act (Bill) 2015 and this suit succeeds such that the Constitution remain unaltered, meaning that the Act is void and or no effect.
“That the Constitution is the basic law of Nigeria and should only be amended following due process. That it will be in the interest of justice to grant this application”, he stated.
