AMENDMENT OF NIGERIAN CONSTITUTION, WHITHER LEGAL WITHOUT PRESIDENTIAL ASSENT: A CRITICAL ASSESSMENT OF 1999 CONSTITUTION

[1] The lawyer, like the theologian, is faced with a number of texts that he regards as authoritative and that are supposed to settle any question that can conceivably arise. Each text was once drawn up by someone who presumably meant something by it; once the document left its author’s  hand, it is the document that matters, not any unexpressed meaning that still remains in the author’s mind. For the  lawyers, the words of the  document are authoritative as words and there is no possibility of obtaining further information from the author, either because the author is dead or because the rules of evidence precluding reference to him, or because a reference to the author will infringe a rule requiring a document to be in a certain  form. It is this inability to refer to the author, couple with the inherent vagueness of language, that makes interpretation such as a perenial source of legal difficult[2]

Abstrct
Recently, the National Assembly passed the Amendment Act to amend some portion of the 1999 Constitution of the Federal Republic of Nigeria 1999, pursuant to the amendment , the National Assembly received support of 2/3 majority of both the upper and lower  Houses  of the National assembly as well as 2/3 majority of all the 36 state Houses of Assembly. After receiving the required 2/3 majority of all the stake holders in the amendment procudure, the Amenment Act was passed without presidential assent as provided by section 9 of the 1999 Constitution. As a result of the passage of the amandment of the constitution, a raging controversy engulffed the nation, as to whether the passage of Constitutional Amendment Act is lawful, without presidential assent. Opinion is now divided between jurists and political analyst as to the propriety or otherwise of the amendment. While some claimed the amendment without presidential assent is null and void, others are of the opinion that the amendment isvalid and regular. This paper seeks to analyse the procedures for amendment of the Nigeria constitution with a view of adressing whether the amendment requires presidential assent or not. Incidentally, this controversy has provoked litigation as to the proper interpretation of section 9 of the 1999 constitution. Emphasis must be made here that the writer of this article does not intend to pre determine the issues relating to the subject matter under discussion since the matter is now pending in court. The article is for academic purpose only. In any case the writer relies on the dictum of Chigbue J in BelloV Sanni[3] where His lordship stated as follows:
Contempt is not committed unless there is real and substantial prejudice to pending litigation which is actively in suit before the court. Matters of public interest should be open to discussion notwithstanding the issue of a writ; it cannot be stopped by the magic word ‘subjudice’
1.0 Introduction
Government, according to professor Nwabueze   is universally accepted  to be a necessity, since man cannot fully realise hinself-his creativity, his diginity and his whole personAlity-except within an ordered society.[4] Yet the necessity for government creates its own for man., the problem of how to limit the arbitrariness inherent in government, and to ensure that its powers are used for the good of the society. It is this limitation on the arbitrariness of political power that is expressed in the concept of the constitutional government. Constitutional government recognises the neccesity for government but insists upon a limitation being placed on upon its power. It connotes in essence therefore a limitation on government, it is antithesis of arbitrary rule, its opposite is despotic government, the government of will instead of law.
Be it Federal or unitary system of government, the procedures fot the alteration of the constitution is determined by the constitution itself. According to kelsen’s theory of law, every law derives its legitimacy from another legal norm above it[5], untill all the norms within the jurisdiction are vertically connected in hierarchy to the ultimate norm known as the groundnorm. This initial hypothesis cannot find its definition within the law itself which means that the groundnorm is valid on itself not subject to any other Norn. In explaining this theory, Kelsen went further to assert as follows:
If we asked the question of the validity of the constitution, we may perhaps , discover an older constitution, that means the validity of the existing constitution is justified by the fact that it was creared according to the rules of an earlier constitution by way of constitutional amendment . In this way, we eventually arrive at a historically first constitution that cannot have been created in this way and whose validity, therefore , cannot be traced back to a positive norm created by a legal authority; we arrive, instead, at a constitution which became valid in a revolutionary way,  that is, either by breach of a former constitution or for a territory that formerly was not the sphere of validity of a constitution and of a national legal order based on it[6]  
The above treatise according to Nnamani[7], tends to justif the universal legal approach which has crystalised into the doctrine of constitutional supremacy. Constitutional supremacy, it has been stressed, essentially derives from the fact that the constitution is brought into existence by  the general will of the people.[8]Nwabueze in his book [9]  justified constitutional supremacy as follows:
The constitution is not only law; it is the supreme law of the land. Its supremacy expresses the relations between it and the law making organ of the atate, it is the relations of superior to an inferior. The constitution is supreme over the legislature because it controls the latter’s law making functions. The implication of the supremacy of the constitution is that sovereignity of the legislature is not the highest norm of the legal oeder in Nigeria as it is in the united Kingdom[10]
The above principle, of constitutional supremacy, prosupposes that no constitution is alterable, except in compliance with the provision, of the same constitution, on the proper procedure for its amendment. The procedures for amendment of Nigeria constitution is provided for in Section 9 of the Constitution of the Federal Republic of Nigeria 1999[11], which provides as follow:
 9 (1) he national Assembly may subject to the provision of this section  alter any of the provision of this constitution
  (2)An Act of the National Assembly for the alteration of this constitution , not being an Act  to which section 8 of this constitution applies shall not be passed in either house of the National Assembly , unless the proposal is supported by the votes of not less than two third majority of all menbers of that House and approved by resolution of the houses of Assembly of not less than two-third of all the states,

(3) An act of the National Assembly for the purpose of altering the provision of this section, , section 8 , or chapter IV of this constitution shall not be passed by either house of the natonal Assembly  unless the proposal is approved by the votes of not less than four-fifths majority of all the menbers of each House and also approved by resolution of the Houses  of Assembly  of not less than two-third of all the states.
In other to appreciate this discourse; it will not be out a place to discuss, albeit cursory, the cannons of interpretation of statutes to properly elucidate the subject matter under discussion and appreciate same.

2.0  Rules or Canons of Interpretation

Legislation is the responsibility of the legislature and it is the legislature that must take that ultimate blame if its products are obscure, turgid, laconic or are otherwise wanting[12] The discovering of the legislative intention through construction of statute has until date remains a subject generally controversial and disputes among legal scholars[13] Though the legislature is to be blamed for poor drafted legislation, nevertheless, the burden of construing such legislation rest on the court. In doing so, the court relies on the rules or cannon of interpretation. It should be noted however, that referring to this Cannons of interpretation as rules seems a misnomer, this is because the word ‘rules’ gives the impression that there is logical consistency in its application and once followed the ultimate result will be achieved. In practice, the reverse is the case, because the rules are devoid of any logical consistency, they are equally too general to be called principles and neither do they have little or any ethical consideration, it is as a result of this fluid in the ascription of rules to the cannons of interpretation that a writer stated thus[14]
For a start, they used the word rule and this gives the impression that if you follow a particular pattern, you will not go wrong. They also have an aura of scientific, authenticity about them when the reality is that interpreting any document is more of an art than science.

It is as a result of the  rules of interpretation not been static that  made the Learned Justice of the Supreme Court Chukwumah Eneh JSC  in Obi V. INEC[15] as follows.
In order to determine the meaning of any expression or phrase in an enactment, the basic question is what is the natural, ordinary or grammatical meaning of the words used in the  enactment in the context in the statute  and it is only when the ordinary meaning of those words leads to some results which cannot reasonably  be supposed to have been the intention of the lawmaker that it becomes proper to look for some other possible meaning of the words concerned:[16]

A review of available literature on interpretation of statute has shown that originally there were three main rules of interpretation of statute, these are; Literal rules, Golden rule and mischief rules,[17] But today apart from the above mentioned three the courts have developed new rules of construction of statute to meet the current trends in judicial process, these new rules includes Ejusdem generis rules, expressio unuis est exclusio uteriuos. Others include the purpose rule, Benefit rule as finally the utres Magis valeat quam. We will now consider these  rules of construction, seriatim
(a)       The literal rule.
The literal rule of interpretation emerged at the time when parliament itself was established as the supreme law making body[18] according to Tinder C.J. in Sussex peerage case[19]. The only rule for construction of Parliament is that they should be construed  according to the intent of parliament which passed the Act, if the words of statutes are in themselves precise and unambiguous then no more can be necessary than to expound those words in that natural and ordinary sense. The words themselves alone do in such a case best declare the intention of the law giver.
Based on the above, it is pertinent to state that the general rules of construction of statute which is also applicable to interpretation of constitution, is that, where words used in a statute which have not acquire technical meaning are clear and unambiguous the ordinary and natural meaning of words should be applied. This is the primary or literal rule of construction. But where the application of the ordinary and natural meaning of the words will result in absurdity, the court may adopt other rules of construction in order to resolve the ambiguity.
According to the supreme court in Ehuwa V Ondo State Independent Electoral Commission (OSIEC)[20]
The proper approaches to the interpretations of clear words of a statute is to follow them in their simple grammatical and ordinary meaning rather than look further because that is what prima facie  gives them their most reliable meaning. There is generally, also time construction of constitutional provisions if they are clear and unambiguous even when it is necessary to give them a liberal or broad interpretation[21]

In Obi v INEC[22], it was held as follows:
In the exercise of its interpretative jurisdiction, the court must only interpret the words of a statute or constitutional provision where they are clear according to their ordinary and grammatical meaning without any coloration.[23].

It should be noted however that ascertaining the ordinary and natural  meaning of words are usually not simple, this is  because words by nature are evasive, slippery and are not even instrument of mathematical precision consequently strength formed results must not be accepted for  a concept which does not posses a feature of certainty.
Eqally too, words can be ascribed three different meaning as the usual or ordinary meaning, the intended meaning and the comprehended meaning. The question that usually arises in this melee  is which of these meaning should be ascribed to a word when used in a statute? It is as a result of this uncertainly in ascribing an ordinary meaning to a word that necessitated Lord Simon in Masunsell v Ollins[24] to deploy a more relative approach to ordinary meaning of words, According to the law Lord,
Statutory language like all language is capable of an almost infinite graduation of registrar, ie it will be used at that semantic level appropriate to the subject matter and to the audience address (The man in the street lawyer, merchants etc). it is the duty of a court of construction to turn  to such register and so to interpret the statutory language as to give to it the primary meaning which is appropriate in the register (unless it is clear that some other meaning must be given in order to carry out the statutory purpose or to avoid injustice anomaly absord it or contradiction) in either words, statutory language must always be given presumptively the circumstances.

It is a result of the chamelonic nature of words and difficulty in ascribing  ordinary literal meaning to words of statute that Iguh JSC in AG. Fedration v Guardian  Newspaper[25] to state that  anywhere the words used or the provision of any section of the law are clear and unambiquos  they must be given their ordinary meaning unless of course this would lead to absurd or be Iin conflict with other provision of the statute  or law.[26]. A court of law is not to ascribe meaning to clear, plain and unambiguous provision of a statute in order to make such provision conform to the courts view of their meaning or what they ought to be, where the assumption of literal rule of interpretation will lead to ambiguity or absurdity when reference would be place on other modes  of interpretation. This brings us to the Golden rule of interpretation[27]
(b)       Golden rule
The Golden rule is a slight modification of the literal rule, it originated from the dictum of Park Baron in the classical cases of Beck v Smith[28] where he stated that the rule by which we are to be guided in construing  Acts of Parliament is to look at the precise words, and to construe them in their ordinary sence, unless it would lead to any absurdity or manifest injustice and if it should, so to vary and modify them as to arrest that which it certainly could not have been the intention of the legislative should be done. Equally too, in Perry v Skinner[29] Baron n Park gave the following  illuminating  exposition on what the golden rule entails, according to him:
It is a very useful rule in the construction of a statute to adhere to the ordinary meaning of the words used and to the grammatical construction unless that is at variance with the intention of the legislative to be collected from the state itself or led to any manifest absurdity or repayment in which case the language will be varied or modify so as to avoid such inconvenience but no further.
The golden rule of construction can be illustrated with the use of the word students in a phrase like students of this university or students of this institution. In a phrase like students of this secondary school in a state like Zamfara where sharia law is strictly enforced,. This word student will mean only male or female student depending on whether the schoolreferred to is a boy school or a girl school. To construct the word student in this case as boys and girls will result in absurdity since island law does not allow for mixin of male and student in any secondary school[30]. In this wise if the institution where to be will equally be absurd since he restriction of sharia non mixture of male and female is not applicable to university. The golden rule of interpretation therefore permits the modification of he literal ru eor sence of interpretation of words when the interpretation of such words in phrase in the state will lead to manifest absurdity[31] It permits the grammatical and ordinary sense of that word used in a statute to be modified so as to avoid absurdity and inconsistency which adherence to the grammatical and ordinary service of the words will ultimately lead to[32] Have in  Obi V INEC[33] it was held that in order to determine the meaning of any expression or phrase in an enactment. The basic question is what is the natural ordinary or grammatical meaning of any expression or phrase in an enactment? The basic question is what is the natural, ordinary or grammatical eaqnign of the words send in the enactment in the context in the state and it is only when the ordinary meaning of those words leads to some results which amount reasonably be supposed to have been that intention of the law maker that it becomes proper to have for some other possible meaning of the words concerned[34]
c)         The mischief rule
The mischief rule of interpretation was formulated in the 16th century[35]. It is a common of interpretation often associated with common law because it communes with the premise that there was a problem not solved by common law which parliament intends to solve wit statute. The introduction of the mischief rule of interpretation was laid down in the classicist case of Smith v Hughes[36] where the English court was saddled with the responsibility of interpreting section 1 of the street offences
It shall be an offence for common prostitute to look or solicit I a street or pubic place for the purpose of prostitution

The common prostitutes standing between the windows n their house severally solicited for men passing in the street by lapping on the window pane attracting their attention and inating them to the House. A charge was drafted against the prostitutes charging them for soliciting in the street for the purpose of prostitution contrary to section 1 of the street offences act solved above. There were connected Dissatisfied with their connection they appealed or appeal, it was held that the true constructions to section 1 of that street offences Act was take into consideration of the mischief in which the act was aimed, it does not matter where the prostitute stood whether behind the door ope window or closed window, if the solicititor was projected to and addressed to somebody walking in the street, section 1 of the street offences Act.
In that case the court lay off  rules to be considered in applying or adopting the mischief rule of interpretation, they are:
1)                 Wht was the common law before the enactment of the Act s law.
2)                 What was the mischief and defeet for which the common law did not provide.
3)                 What remedy parliament now provided for the correction of this error or put differently, what remedy the parliament hath resolved and appointed to cure the diseases of the common law.
4)                 The reason for the remedy and why his parliament provides this particular remedy, its essence s to interoperate an enactment in such a way.
The guideline in this mischief rule of interpretation  in Hydon case above received  judicial blessing by the Supreme Court in  IBWA v IMO Nig Ltd[37] where it was held as follows:
1)                 what was the common law before making the Act
2)                 What was the mischief and defeat, which the common law did not provide?
3)                 What remedy the parliament has resolve and appointed to cure the disease of the common law? And
4)                 The true reason for the remedy.
In arising at the conclusion, it was stated that the court duty is always to make such construction that will suppress the mischief and advance the remedy and this will arise if there is latent ambiguity in the words used in the statutory provision, otherwise, the first and most elementary rule of construction that is the literal rule will apply[38], but regard must be placed on the circumstances which necessitated the passing of the Act and the State of the law at the time and the mischief which then exist as much as they can be judicially noticed.
A cursory reading of the mischief rule of interpretation tend to suggest that it is simple and straight forward, bearing in mind that all that is required is to identify the mischief sought to be eliminated, however this will only be achieved in the words or phrase used in the statutes is ambiguous and difficult to ascertain, if not the ordinary literal meaning should be prefferd . It shoed be noted however that short of its simplicity in definition, the word mischief  is difficult to ascertain since it may involve making valued judgment.
(d)       The Ejusdem Genesis rule of Interpretation
The Ejusdem genesis rule of construction of statutes simply means that in interpreting the provision of a statute general word which follows particular and specific words of the same nature as themselves takes their meaning from there specific words[39]. It follows that when general words follow, particular words belonging to a category, class or genus and are specified in a particular order, that general words should be construe in the light of the particular words. For example where a statute provides that “it shall not be lawful for makers of bread meatpie, cake doughnut, sauzue and other snacks of display such except in place provided…”[40]. The principle of egusden genesis means that the interpretation of the general word “snacks” with include anything that is a confectionary and will not include anything which is a main food item or drinks. In Tillmanns v S.S. Knutsford Ltd[41] a but of lading containing conditions and exceptions stated as follows”
Should a part be inaccessible on account of ice blockade or interdict or should entry and discharge at a port be deemed by the master unsafe in consequence of war disturbance or any other cause it shall be competent for the master to discharge goods intended for such port on the ice or at some other safe port or place at the risk and expenses of the shippers consignees or owner of the goods and upon discharge the ship’s responsibility shall cease.

The court held that the words “it any other cause” must be read as being ejusdem genra with war disturbance and therefore the case was not brought within the exception because the master deemed the port unsafe or inaccessible on account of ice. From the above case it is obvious that once the specific from a genus the general words is presumed to be restricted to the same genesis as the specific.[42]
However where the specific words are of different types or kind, the meaning of the general word remain unaffected b any connection to the proceeding specific.[43] In Young v Carattridge[44] section 2 of the Nuisance Removal Act authorized an inspect “any animal carcase etc exposed for sale, or deposited in any place for the purpose of sale, or of preparation for sale and intended for the food of man”. Section 3 of the same Act, provides that “if any person prevents the inspector from entering any slaughter house, shop, building, market, or other place where such Carcase & co is kept for sale or preparation for sale he is liable to a penalty of section 51”. The appellant was caught with two carcases of cows unfit for food, in a yard at the back of a butcher’s house, it was held that:
The word “place” even in section 3 is not confine to place ejusdem generis with those mentioned but that it was intended to include every species of premises where animals and carcases & co might be accepted for sale or preparation for sale as food for man; and therefore I think that there is nothing qualifying the generality of the term place and that the yard was within the term and the conviction must be affirmed[45].
The doctrine of ejusdem generis rule will apply if more than one specific are mentioned but where one specific which connotes a large number of varieties is mentioned, then the rule will not apply. For instance where in an expression the phrase domestic animal and other animals” are used. The word “domestic” connotes a large number of varieties like cat, dog, goat sheet etc to make the rule inapplicable.[46] Also the use of expression like “some kind or nor”, after the general word or including but not limited to” and “without prejudice to generality of the following” to introduce the specific will make the ejudem rule inapplicable.[47]
(e)  expressio unius est exclusio alterius[48].
Where an enactment enumerates the things upon which to operate, everything else must necessarily and by implication be excluded from its operation and effect[49] or put differently the express mention of one thing is the exclusion of another. From the things canon of interpretation presupposes that where a statute mentions specific things or person, the intention is that those not mentioned as not intended to be included. For instance, where a statute provided that “if at any time within the approved working hours the principal and or vice principal if any school under the supervision of the unit is absent from office without due excuse or justification”, the interpretation of this provision shall not be extended to cover teachers and other staff of the school not being the principal or vice principal. This is because the provision has specifically mentioned those who came under it[50]. Similarly where the students of university is used but if you went further to say law students, pharmacy students, then you have gone into specific terss and have therefore excludes all other students of the university except the two mentioned above. The expressio  unus est exclusion alterius  principle was applied in the interpretation of Nigeria Constitution in Obi v INEC[51] at the court of appeal where Sankey JCA stated as follows:
It is now a were entrenched principle that in the construction of statutory provisions, where the statute mentions specific things or persons the intention is that those not mentioned are not intended to be included. This is the expression unio est exclusio alterius rule which means that the express mention of one thing in statutory provision automatically excludes any other which otherwise world have been included by implication.[52]

(f)        The Beneficial rule of interpretation .
According to Emmanuel Okon[53] the beneficial rule of construction is a relaxation of the literal  rule of construction. Accordingly a statute must not be construed in such a strange manner as to include cases plainly omitted from the natural language. In other words, where the literal rule is adopted in construing a statute and it creates absurdity, the judge may construe the statute beneficially by supplying omission of the legislature but not to include cases plainly omitted from the natural language of the statute. In Foresdike v Coluquhoun[54] the court was faced with the proper interpretation of section 1 of the Sunday Closing (Wales) Act 1881 which provided to the effect that all premises in which intoxicating liquors are sold whenever situated shall be closed during the whole Sunday”. The court held that the word Sunday in the Welsh Act only has its ordinary meaning and a conviction under that Act for unlawfully keeping open premises for the sale of intoxicating liquors on Christmas day was bad. The rationale for the line of interpretation is that though Christmas day is regarded in the whole of Christiandom as a day to worship God, the Sunday closing (Wales) Act of 1881 did not consider it as a Sunday for the purpose of closing premises where intoxicating liquor is sold. In Nigeria adopting these canon of interpretation, the court had stated that the approach to constitutional interpretation should be one of liberation;[55] this  was buttresses by Obseki JSC in Adesanya v. President of Federal Republic of Nigeria where he stated as follows;
The need for a liberal approach to the interpretation of the provisions of the 1979 constitution is paramount and the case of Nafiu Rabiu v the State has set the pace. The dictum  of Sir Udo Udoma JSC cited by my leaned brother, Fatayi Williams CJN which met the unanimous approval of the other justices who head the appeal will for long time be the approach of the court in this country.
(g)       Purpose rule of interpretation
This rule of  interpretation anticipates a situation where one while construing a  statutes is faced with two possible interpretation and he has to make a choice between two different interpretations. The purpose rule of interpretation requires that the interpretation most agreeable to justice and reason be applied. The Supreme Court while construing the provision of the constitution and the purpose rule of interpretation in Ehuwa v. OSEIEC[56] has this to say
It is settled law that the court should, when interpreting the provisions of the constitution bear in mind that the function of the constitution is to establish a framework and principles of government, broad and in general terms, in tended to apply to the varying conditions which the development of plural and dynamic society must involve. Therefore, more technical rules of interpretation or to some extent inadmissible in a way as to defeat the principles of government enshrined in the constitution. Therefore where the question is whether the constitution has used an expression in the wider or in the  narrower sense, the court should, whenever possible and in response to the demand of justice lean to the broader interpretation, unless, there is something in the text is in the rest of the constitution to indicate that the narrow interpretation will best carry out the object and purpose of the constitution.[57]
This view  was equally emphasized by the Supreme Court earlier in Attorney General of Ondo State v Attorney General of Federation[58] where Ogbuegbu JSC emphatically stated as follows;
A constitution is an instrument of government under which laws are made and are not mere Acts or laws and construction which the court will give to constitutional provisions must be such that will serve the interest of the constitution and best carry out the subject and purpose and give effect to the intention of the framers.

In the same vein, the Supreme Court while  interpreting the provision of S.22 of the Land Use Act 1978[59] stated that a statute should not be given a construction that will defeat its purpose, the construction ut res magi valeat quam peret must be given. If the choice is between two interpretations; the narrower of which would fail to achieve the manifest  purpose of the legislation should be avoided; so that the manifest purpose of the legislature in enacting a law or statute be achieved. It was also held in Awolowo v Shagari[60] that where there are two possible meanings conveyed by the words of a statute, it is the most reasonable one that should be adopted. Where the other meaning leads to absurdity or envins internal contradiction, that meaning should be dropped for that first as the legislature never intends to be absurd or contradictory.[61]

3.0 Application of rules of construction or interpretation to section 9 of the 1999 Constitution

The choice  of which of the rules of construction of statute should be applied in the interpretation of section 9has been made sinply by lord Halsbury L C  in St. Johns Hampstead V Cotton[62] and Idigbe JSC, in Bronik Motors V Wema Bank [63] where it was stated as follows;
Word are not used in a statute without meaning, nor are they used tautologously or superfulously, but there is the other rule of construction of statutes that words in an enactment are primarily used in their ordinary meaning or common or popular sense, and generally are used as they would have ordinarilly understood. ‘The day after the statute was passed’ unless such interpretation and /or construction would lead to manifest absurdity, or unless the context requires some special or particular meaning to be given to the words. Therefore where a Judge is of the opinion that the application of the words of an enactment in their ordinary meaning ‘would produce an absurd result which cannot reasonably be supposed to have been the intention of the legislature. He may apply the words in any secondary meaning, which they are  capable of being.

It can be deduced from the above dictum that the first, the literal rule of construction should be applied in construing section 9 of the 1999 constitution, but where it leads to any absurdity, then a secondary rule of construction can be applid. It is our opinion the there is no ambiguity in the construction of section 9 of the 1999 constitution therefore the literal rule of interpretation be applid in interpreting same[64].

Section 9 of the 1999 consttitution is emphatic on the mode through which the constitution can be amended, even at the expence of repitition, the section provides:
9 (1) the national Assembly may subject to the provision of this section  alter any of the provision of this constitution
  (2)An Act of the National Assembly for the alteration of this constitution , not being an Act  to which section 8 of this constitution applies shall not be passed in either house of the National Assembly , unless the proposal is supported by the votes of not less than two third majority of all menbers of that House and approved by resolution of the houses of Assembly of not less than two-third of all the states,
(3) An act of the National Assembly for the purpose of altering the provision of this section, , section 8 , or chapter IV of this constitution shall not be passed by either house of the natonal Assembly  unless the proposal is approved by the votes of not less than four-fifths majority of all the menbers of each House and also approved by resolution of the Houses  of Assembly  of not less than two-third of all the states.

Some writers had argued that the provision is this section should not be read in isolation but should be read in conjuction with other sections of the constitution particularly section 58 of the constitution which provides, among other things, that a bill must receive presidential assent before it becomes law.  However these group of critics did not advert there minds to sub section 5 of section 58 which provides that where the president withholds  his assent  and the bill is again passed by each House by two-third majority, the bill shall become law and the assent of the president shall not be required.
Many writers who are of the view that the amendment required presidential assent argued that by virtue of section 318 of the constitution which is the interpretative section of the constitution, which defined Act of National assembly to mean any law made by the National  Assembly . It is pertinent to state that an Act of National Assembly does not include laws made to amend the constitution, if this was the intention of the drafter of the constitution, they could have specifically stated so.  It should also be noted the drafter of the 1999 constitution did not used the phrase ‘subject to’ in construing the provision of section 9 of the constitution.
In the same vein, section 58 which provides that a bill shall not become law except with the assent of the president, did not provided that such bills should be passed by the votes of two-third of all the States of the Federation, this mean that the amendment of the constitution is sui generis[65] that is in a class of its own, distinct from other bill which does not require the approval of the states houses of Assembly.
In the same vain it is gratifying to state the role of the president in cases where the Constitution requires presidential assent is to merely rubber -stanp the laws enacted by thre National Assembly, the president does not engage in a thought provoking appraisal or deliberation on what the National Assemly had submitted to him for assent, he either accept or reject or refuse to assent. If he refuses to sign the bill as presented to him by the National assembly, the National Assembly by virtue of Subsection 5 of Section 58 can pass the bill and translate same to an Act without presidential assent. This ia not so in the case of amendment of constitution as provided by section 9 of the 1999 Constitution, which allows the states house of Assembly to  deliberate and pass the bill. The States Houses of Assembly will take a holistic review of the proposal as presented by the National Assembly, in some cases the State House of Assembly will carry out a public hearing and in some cases invite memoranda from member of the public to enable them take comprehensive review of the bill submitted to them before same would be passed. As if this is not enough, the passege of the bill required 2/3 majority of  all States  Houses of Assembly, in the event of the bill not receiving 2/3 majority of all the States Houses of Assembly,  that is the end of the matter, the bill will not be passed. The National Assembly does not enjoy the privilege  to veto the decision of the  State Houses of Assembly as is the case in section 58(5) where the refusal of the president to assent will atract the bill going back the National Assembly  for final passage, without  presidential assent, it is commended that those who are preaching that the constitutional amendment bill requires presidential assent should take  a second look at section 58 and justapose same with section 9 of the 1999 constitution.
Unlike the Nigeria Constitution, the USA constitution provides for an alternative constitutional alteration wherein in the absence of a proposal for constitutional amendment coming from the congress, two thirds of the states of the USA can call for a constitutional convention, involving the states and the  Federal Government officials, the purpose of which is the discussion of the modalities and terms of the amendment sought to be effected in the federal Constitution. This provision of amendment is not in anywhere found in Nigeria Constitution, the states can only holistically approved or disapprove amendment propoesd by the National Assembly, and they cannot on their own volition initiate amendment proposal[66].  Also in Nigeria, the detail amendment sought is contained in the proposal, this is because immidiately the proposal is passed by the national assembly and the required two- third majority of the states Houses of Assembly, the proposal authomatically translate into the intergral part of the subsisting Constitution. The situation is different in the USA, after the proposal is approved by the congress; it is submitted to the states for debate of the terms of the proposed alteration or amendment. This is achieve through the process of ratification, experience shows that this process in some case can last for years before approval or rejection is achieved[67]. 

4.0   CONCLUSION
From the foregoing discussion, it appears that the controversy surrounding the construction of section 9 of the 1999 constitution will continue to remain an academic exercise untill the Supreme Court decides in favour of either schools of thought discussed in this article.
Like in the case of America, Nigeria operates a bicameral legislature, known as the National Assembly, proposal for the amendment or alteration of the constitution can be initiated by the National Assembly. When one chamber initiates and adopts the proposal, the other chamber is expected to support it, otherwise the proposal fails. But if the other house supports the proposal, then the proposal must be supported by the votes of two third majorities of all the states houses of Assembly. Failure to obtain two third majorities of all the states houses of Assembly the proposal will not be passed and the constitution cannot be altered or amended. But unlike other bill of the National Assembly which reqired Presidential assent the bill to alter or amend the constitution does not require presidential assent as provided by section 9 of the 1999 constitution, if it was the intention of the drafter of the 1999 constitution they could have expressly stated so, as stated earlier, the courts have been advised not to imput into the constitution that which is not intended by the lawmaker in the process of interpreting a statute.
 It is evident to state that for the true impact of democracy to be felt by the Nigerian masses, the judiciary as the third estate of the realm has a noble role to play in the sustenance of our nascent democracy, our constitution speaks of freedom, equality and justice but a clash may occur between constitutional ideals and political, as well as, social realities, hence the need for an umpire to settle the ensuring disputes. It is the judiciary, writes Justice Umaru Eri[68] which plays this important role. It therefore follows that keeping the government faithful to the goals of democracy and the production of universal benefits for all its people become the most demanding constitutional role imposed to our constitutional on the judiciary, it is gratifying to state that our judges and indeed the judiciary had lived to its expectation and as stated by justice Oputa of whom I cannot resist the temptation of not quoting in concluding this essay, he stated as follows:
 It is only the judiciary which can in the final resort and as the last resort translate  the dreams of Nigeria, dreams inscribe boldly in her constitution, her dreams, for National unity for domestic tranquility, for individual freedom and personal happiness through the full release of our citizens from prejudice and oppression, through the full utilization of all her human and natural resources and potentials towards the creation of a great nation characterized not by power alone but by respect for the human dignity and by the assurance of equal justice under the law for all. just as it was the supreme court of the united state that translate and interpret millions of coloured and black Americans into second class citizen for over half a century, so our own supreme court can translate into actuality the noble ideas expressed in our fundamental law and give flesh and blood infact life to abstract concepts like freedom, liberty equality and give justice. Clearly articulated and often reiterated in our constitution[69]


It is opined here that the provision of section 9 of the 1999 constitution is not ambiguous, therefore the literary and ordinary cannon of interpretation should be applied in interpreting same based on the provision of the statute, the amendment of the 1999 constitution does not require presidential assent.


[1] AIgbinedion University, Okada, Edo State
[2]Glanville Williams, ‘Language and the Law ‘Law Quarterly Review Vol 61 PP191-192 see also Ochem Charles         ‘The principles Governing the Interpretation of Sttutes in Judicial Process: Obi V  INEC in Perspective’ in Okolocha-Okoboh, (ed) Judicial  Intervention In Constititutional Matters: Obi V INEC In Perspective. Enugu, Snaap Press 2009 P 153.
[3]( Unreported) suit No KDH/1/81  cited in Gani Fawehinmi, in his text, Nigerian Law Of The Press Under The Constitution and The Criminal Law, Lagos, Nigerian Law Publication 1992 P45
[4] Nwabueze Ben, Constitutional Democracy  In Africa vol 1 Ibadan, Spectrum, (2003) P2
[5] Nnamani E.N. ‘Acomparative Analysis of the Procedure for Alteration of a Federal Constitution; Nigerian and United States in Perspective’ Vol 1 EBSU Journal of International Law and Juridical Review 2010 PP264-279 at P264
[6] Hans Kelsen The Pure Theory Of Law , new york berkley publication 1979p 200 quote by Nnamani ibid p 264.
[7][7] ibid
[8] See Ogere O.S Fashioning The Constitution Of A Democratic System  Enugu, CDJAP Press Ltd, 2002 p 67
[9] Nwabueze,B O The Presidential Constitution of Nigeria , London, Hurst & Co 1982, P 12
[10] Ibid.
[11] Hereinafter referred to as 1999 constitution
[12] Sir William Dale The Legislative Drafting, a new approach, London, Butherworth (1977) p. 340, see also Okon E.E. “Disqualification of persons to the office of Governors of a state under sections 182(1) (b) of the 1999 constitution of the Federal Republic of Nigeria (1999 constitution) The Advocate Nyan law school 2002/2003 p. 72 at 77.
[13] See Gerald C. Macallum Jr. ‘Legislative intent.
[14] See Akinrinmade G. ‘Current Trends In Statutory Interpretation. The Journal of Public law and practice vol 1 No 1 June 199 at pp. 39 – 77 where as pg 39 the learned inter guider with approve the dieta of James A Holland and Jillianas weds in Learning legal Rules at p. 191.
[15] 2007 II NWLR (pt 1046) p. 865 at 690 - 691
[16] See also Uwaifo V AG. Bendel state (1983) 4 NCLR 1, SPO V Usaiah (1997) 6 NWLR (pt 508) 236, Omoijash Umoru 1999) of NWLR (pt 614) 178 ,which where cupiouly referred to  in the judgment under review.
[17] Okon E.E. op. cit p. 77 , see also William orle op cit, Horacle Read at al Maternets o Legislatio University Casebook series (1973) and Nesioran S.N/ The Drafting of legislation Cham must
[18] Akirinmode op cit. p. 43.
[19] (1844) 11 CI & Fin, 78.
[20] 2006 10 NWLR pt 1012 p. 544
[21] Per Onmoghan JSC at P. 589 see also v. GP (2002) 7 NWLR pt. 767) 606.
[22] (2007) II NWLR pt 1046 p. 565 S/C,
[23] Per Adermi JSC at p. 643.
[24] 1975 AC: S91.
[25] (2001) FWLR (pt 32) 87 (1999_9 NWLR pt 618 p. 187. this diction was quoted with appeal by Mukhlar CA (as he then was) as Cachalla v Banki 2001) FWLR (pt. 73) pp1 at pp 6 – 12.
[26] Underline Min for emphases.
[27] For further reading in literal rule of interpretation see Akintola V Adegbenro  (1962)  1 ALL FR 465, Awolowo  v Shagari (1979) 6 – 9 SC 51. It should be noted that the literal rule has much to offer as a shortcomings which had been subjected to some of criticisms, among this are that it adopts too  narrow  a view of the judicial defnition  and also gaveroom  for complexity of language as opined by Farrar  and Dungdale . Introduction To Legal Metods  London, Sweet&Maxwell (1991), 195..
[28] 1936) 2 M&W 191, 195.
[29] 1837 2 M&W 471 at 476
[30] Ekon E.E. op cit p. 80.
[31] Ibid
[32] See Justice Ayoola  JSC in PDP v INEC (2001) FWLR (-pt 31) p. 2735. 
[33] supra
[34] See also Uwaifo V A.G. Bendel (1963) 4 NCLR 1 , SPDC V Isaiah (1979) 6 NWLR pt 508 236  and Omoijahe v Umoru (1999)8 NWLR (pt 617 at 176.
[35] Akhimade G. op. cit  p. 56.
[36] (1960) IWLR  p. 830.
[37] (1988) 2 NWLR (pt 88) 633.
[38] Per Wali JSC at p. 433.
[39] Ehuwa v OSIEC (2006) 18 NWLR pt 1012, p. 54 at 595.
[40] Sanni A.O. (ed) Introduction to Nigerian Legal Method. Ile Ife Kundtel Publishing Houses 1999 p.118.
[41] (1908) 2 KB 385.
[42] Ekon E.E. op cit p. 85.
[43] Ibid.
[44] (1968) CR 4 QB 166.
[45] Per Hush
[46] Ekon E.E op it p.86
[47] In Eluwa v Oscic (supra), The provision of section 246(3) of the 1999 Constitution which was the section under consideration was presumed to be confined to the election petition specifically mentioned in section 246(1) of the Constitution.
[48] It is also termed includio unius est exclusio aterius or enimeratio unius exclusion alterius
[49] Ukeje R.N. Nigerian Judicial Lexicon Lagos, Ecowatch publication 2006 p. 142.
[50] Sanni A.O. op cit. pp. 115-116.
[51] Supra.
[52] At page 558. see also Ogboru v Ibori 2006 13 NWLR (pt 542) 319 Udoh v. Orthopaedic Hospital Management Board (1993) 7 NWLR (pt 304) 139. Eluwa c. ISIEC (supra) pp. 568-569 paras a-c.
[53] op cit
[54] (1883) 11 QB p.71.
[55] Nafiu Rabiu v. Kano State (1980) 8 in SC 149.
[56] Supra at p. 588 per Onnogben JSC
[57] Underline mine for emphasis.
[58] (2002) FWLR (Pt 111) p 1972 at 2100
[59] CAP 15 LFN 2004
[60] (1979) 12 MSU 82.
[61] See also Shanma Realities v St Michael (1924) AC 185.
[62] (1886)12 AC 1 at p 6 this rule of construction was applied in the Nigerian case of A G Bende V A G Fed 198110SC P1 and A G Fed  V A G  Abia 2002 FWLR Pt 102 PP1-310 at P 216  where  Oguntade JSC said that  ‘it is fundamental and cardinal principle of interpretation that in its ordinary meaning, a provision is clearand unambiguous, effect should be given to it without resorting to external aid’
[63] (1983) 6 SC 158 at PP 200-201
[64] See the supreme court cases of A G Ondo V A G Fed 2002FWLR PT 111 p1972 at 2100. PDP and Anor V  INEC 2001 FWLR PT N31 P 2735, Nafiu  Rabiu V The State 1981 2 NCLR 293 at 326 and pp 302-303
[65] In a class of its own
[66] Nnamani E N Op cit p 268
[67] Ibid.
[68] Ibid.
[69] Quoted from Justice Umaru Eri op cit pp 173 – 174.
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