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Friday, 16 March 2018

Court lacks power to stay action on pending bill – Prof. Nwabueze

Court lacks power to stay action on pending bill – Prof. Nwabueze

Professor Ben Nwabueze, SAN

Elder statesman and Chairman of The Patriots, Prof. Ben Nwabueze (SAN), has disclosed that a court which jurisdiction was limited to an application of law in dispute before it, lacked the power to stay action on a Bill yet to become law.

In a statement titled, “The decision by the Federal High Court, Abuja, restraining the National Assembly by injunction from taking further steps on the Bill still pending before it”, the Senior Advocate said such court’s pronouncement was akin to rendering an advisory opinion not permissible in law.

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“Nigeria is a country where strange things happen where a court of law, which jurisdiction is limited to the application of law in dispute before it, can act on the basis of a Bill that has not yet become law.

In other words, rendering an advisory opinion, which a court of law under our system has no authority to give, that the eventual enactment of the Bill into law will be unconstitutional, null, and void.

This indeed is an amazing decision to come from a Federal High Court in this country,” he said.

Nwabueze was of the view that the translation of power into action preceded by a preliminary process of thinking out and formulating a policy would not be regulated by law. Nwabueze said: “The Court of Appeal of Zambia has accordingly held that the mere announcement by the government of an intention to introduce legislation cannot be a violation of the Constitution, castigating as ‘absurd’ any suggestion that ‘the legislature intended the courts to be vested with the power to pronounce in advance that if the government pursued an expressed intention, legislation on the lines of that expressed intention would be ultra vires the Constitution.

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The consequences of such a construction would be truly chaotic. “Even when the intention has been formulated into a Bill, no question of law arises at that stage, for a Bill is not law; as such, it cannot be an unlawful exercise of the power of lawmaking inasmuch as it may be abandoned or amended before the processes of its translation into law are completed.

“The High Court of Australia thus rightly dismissed an application to prevent a bill passed by the federal legislature from being presented for the Governor-General’s assent, on the ground that the bill was beyond the powers of that legislature.

“The Bendel State High Court was thus clearly in error in declaring as ‘totally illegal’ a bill under consideration by the State House of Assembly for the purpose of establishing local government councils, and in restraining the House and all its servants, agents or functionaries from taking further steps in the process of enacting the bill,” he further noted.

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