August 21, 2023
The Attorney General of the Federation &
Minister of Justice,
Federal Ministry of Justice,
Plot 71B, Shehu Shagari Way,
EVIDENCE (AMENDMENT) ACT, 2023: THE FUNDAMENTAL CONSTITUTIONAL BREACH AND ITS DEVASTATING LEGAL EFFECT ON THE PURPORTED AMENDMENT
I wish to first and foremost, heartily congratulate you on the well-deserved appointment and successful inauguration as the Attorney General of the Federation and Minister of Justice. I pray God for good health, wisdom and strength to discharge your constitutional duties.
As you are aware, the Evidence Act, 2011 has been purportedly amended “to bring its provisions in accordance with the global technological advancement in evidence taking.” No doubts, the amendments to sections 84, 93, 108, 109, 110, 119, 255 & 258 of the EVIDENCE ACT, 2011 are apt and quite commendable, save the fundamental constitutional breach that has rendered the entire exercise a nullity.
According to the Schedule to the purported amended Act as duly attested to by the Clerk of the National Assembly on the 9th day of June, 2023, the Evidence (Amendment) Bill, 2023 was passed by the Senate on the 17th day of May, 2023; while the House of Representatives is expected to pass the Bill on 22nd December, 2023.
Most regrettably, Bola Ahmed Tinubu, GCFR – President of the Federal Republic of Nigeria hastily assented to the very crucial Amendment Bill on the 12th day of June, 2023 as Democracy Day gift in gross violation of particularly Section 58 (3) of the 1999 Constitution of the Federal Republic of Nigeria (as amended).
For proper understanding of the fundamental breach and its far reaching legal consequences, Section 58 (1), (2) & (3) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) (“the 1999 Constitution”) is reproduced hereunder:
“58. (1) The power of the National Assembly to make laws shall be exercised by bills passed by both the Senate and the House of Representatives and, except as otherwise provided by subsection (5) of this section, assented to by the President.
(2) A bill may originate in either the Senate or the House of Representatives and shall not become law unless it has been passed and, except as otherwise provided by this section and section 59 of this Constitution, assented to in accordance with the provisions of this section.
(3) Where a bill has been passed by the House in which it originated, it shall be sent to the other House, and it shall be presented to the President for assent when it has been passed by that other House and agreement has been reached between the two Houses on any amendment made on it.”
The legal implication is that the President with due respect, purportedly signed the incompetent Bill into Law on the 12th day of June, 2023 when it was not yet passed by the House of Representatives.
It may be tempting to argue that “it’s just an error” and “to err is human“. That argument is legally unsustainable, in that:
Firstly, it is trite “that oral evidence is inadmissible either to add to or subtract from the contents of a document as a document speaks for itself.” See Ashakacem Plc V. Asharatul Mubashshurun Investment Limited (2019-LCER-36840-SC) at P. 6, Paras. D-F; Bongo v Governor Adamawa State (2013) 2 NWLR (Pt.1339) 403 at 444; and Uzamere v Urhoghide (2011) All FWLR (Pt.558) 839.
Secondly, the Certificate issued by the Clark of the National Assembly on the 9th day of June, 2023 pursuant to Section 2 of the Acts Authentication Act Cap. A2 Laws of the Federation of Nigeria, 2004, stating that the Bill would be passed by the House of Representatives on the 22nd day of December, 2023 is “conclusive for all purposes”. The Section provides (with emphasis on S. 2 (3)) thus:
“2 (1) The Clerk of the National Assembly shall forthwith after enactment, prepare a copy of each Bill as passed by both Houses of the National Assembly embodying all amendments agreed to, and shall endorse on the Bill and sign a certificate that the copy has been prepared as prescribed by this section and is a true copy of that Bill.
(2) The Clerk of the National Assembly shall, as from time to time directed by the President of the Senate, prepare a Schedule of Bills passed at any time during a session and intended to be presented for assent, and shall certify on the Schedule that it is a true and correct record.
(3) The Schedule shall set forth the long title of a Bill and a summary of its contents and the respective dates on which each Bill passed by each House of the National Assembly; and subject to the provisions of this section, when signed by the Clerk of the National Assembly, the certificate shall be conclusive for all purposes , and if a Bill in the Schedule is one to which section 58 (5) or 59 (4) of the Constitution of the Federal Republic of Nigeria 1999 applies, the Schedule shall, in addition, be endorsed with the prescribed certificate of the President of the Senate in respect of that Bill.”
You may be aware of the intended remedy in Section 2 (4) of the AAA. However, the section is inapplicable to the situation at hand, in that the Bill is no longer before the President of the Senate and to make matters worse, the 9th Assembly has since been dissolved in accordance with Section 64 (1) of the 1999 Constitution.
The unsurmountable conclusion from the forgoing is that Evidence Act, 2011 remains the operational law in Nigeria as you cannot put something on nothing and expect it to stand. Unless and until the 10th Assembly reconsiders and passes the Bill for fresh assent, the purported assent by the President in my humble opinion remains a nullity.
Consequently, I respectfully urge you to cause the Bill to be resent as an executive Bill to the 10th Assembly for reconsideration and consequent passage. By so doing, you may avert the catastrophic effect on the cases that may be erroneously decided based on the purported EVIDENCE (AMENDMENT) ACT, 2023 as I may be inclined to test the judicial waters if nothing is done by your office to avert the calamity.
LEIS LAW CLINIC
LEVI I. SHAAPERA, ESQ.