By Levi I. Shaapera, Esq .
The two Houses of the National Assembly had dutifully and painstakingly amended the long overdue
Evidence Act, 2011 “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 UNSEEN BLUNDER in the SCHEDULE.
According to the Schedule to the EVIDENCE (AMENDMENT) BILL, 2023, the Bill was passed by the two Houses of the National Assembly on the following dates:
1. The Senate – 17th May, 2023 ; and
2. The House of Representatives – 22nd December, 2023 (The UNSEEN ERROR).
For the sake of non-lawyers, a Schedule is a part of a Bill or a part of an Act. Bills may have a number of Schedules that appear after the main Clauses in the text (in this case “Schedule to the Evidence (Amendment) Bill, 2023). Schedules are often used to spell out in more detail how the provisions of the Bill are to work in practice. If a Bill becomes an Act of Parliament, its Schedules become Schedules of that Act.
Like any other Bill, the truthfulness and correctness of the provisions (including the Schedule) of Evidence (Amendment) Bill, 2023 were attested to by the Clerk of the National Assembly on the 9th day of June, 2023 in the following plane words:
“I certify that this Bill has been carefully compared by me with the decision reached by the National Assembly and found by me to be true and correct decision of the Houses and is in accordance with the provisions of the Acts Authentication Act Cap. A2 Laws of the Federation of Nigeria, 2004.”
(Signed) SANI MAGAJI TAMBAWAL, fcna Clerk of the National Assembly”
Most despicably, Bola Ahmed Tinubu, GCFR – President of the Federal Republic of Nigeria (who was yet to constitute his cabinet) hastily assented to the very crucial BILL without Attorney General on the 12th day of June, 2023. The President’s signature like that of the Clerk of the National Assembly is also beneath the Schedule to the Evidence (Amendment) Bill, 2023 and just few inches away from the anticipated date of passage of the Bill by the House of Representatives ( 22nd December, 2023 ).
For proper understanding of the fundamental blunder and its far reaching legal implications, Section 58 (1), (2) & (3) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) provides thus:
“ 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 . ”
A careful look at the above constitutional provision vis-a-vis the Schedule to the Evidence (Amendment) Bill, 2023, the far reaching legal implication is that the President signed the Bill into Law on the 12th day of June, 2023 in anticipation of its passage by the House of Representatives. This is in gross violation of Section 58 (3) of 1999 Constitution of the Federal Republic of Nigeria that has mandated the President to assent to Bill(s) passed by the two Houses of Assembly.
It is easy to argue that ” it’s just an error ” and ” to err is human ” but it’s far from that! 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 with the result that parties cannot give evidence contrary to its contents. ” 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, Uzamere v Urhoghide (2011) All FWLR (Pt.558) 839; Ezenwa v K.S.H.S.M.B. (2011) 9 NWLR (Pt.1251) 89 at 118 .
The Posser : The Posser: Can the Clerk of the National Assembly correct the grave error after issuance of the authentication certificate and the President’s Assent? The answer is NO! 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 is “ conclusive for all purposes ”. The said Section 2 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.”
Evidence (though arguably) is next in hierarchy of all the laws in operation in Nigeria, hence its placement by the Constitution under the Exclusive Legislative List (see Section 4 & item 23 of the Second Schedule of the 1999 Constitution). One would have expected President Ahmed Bola Tinubu to exercise some restraints pending appointment of Attorney General of the Federation and Minister of Justice.
Of course, many lawyers evidently surrounded the President including Festus Kayemo, SAN but not in the capacity of AG, moreso that Festus Keyamo, SAN was more visible on his Twitter handle.
As Lateef Fagbemi, SAN takes oath of office on Monday as the Attorney General of the Federation & Minister of Justice, one hopes he will take necessary steps to address the legal quagmire. Till then, the purported assent by the President in my humble opinion remains a nullity, meaning the EVIDENCE ACT, 2011 remains unamended.
Levi I. Shaapera, Esq . is a Barrister & Solicitor of the Supreme Court of Nigeria. He is also the Managing Counsel – Leis Law Clinic as well as the Editor-In-Chief of LawCompass Electronic Reports (LCER) leislawng@gmail.com
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