BY SYLVA OGWEMOH SAN, FCIArb
It is no longer news and neither is there any controversy that the National Assembly of the Federal Republic of Nigeria has altered the Constitution of the Federal Republic of Nigeria 1999 (the Constitution) at least five (5) times starting with the Constitution of the Federal Republic of Nigeria (First Alteration) Act 2010 (First Alteration Act 2010). What is however news or has become controversial in the legal community in Nigeria is the supposed deletion of subsection 3 of section 233 of the Constitution in the first and second alterations of the Constitution. If the Constitution has indeed been altered by the deletion of subsection 3 of section 233 of the Constitution, the argument could be made as it is presently the case that the Supreme Court no longer possess the jurisdiction to entertain appeals from the Court of Appeal on grounds of mixed law and fact. This article therefore seeks to establish by evidence supported by the authentic versions of the Constitution that there was no alteration to section 233 of the Constitution that deleted subsection 3 of the Constitution.
INTRODUCTION:
In the Constitution of the Federal Republic of Nigeria (First Alteration) Act 2010, section 233 of the Principal Act (the Constitution) was only altered in paragraph (e) under section 24 of the First Alteration Act 2010, by – (a) Substituting for the word “or” after the word “President” in subparagraphs (i), (ii) and (iii), a comma- “,”; and (b) Inserting immediately after the word “Vice-President” in subparagraphs (i), (ii) and (iii), the words “Governor or Deputy Governor”.
By the Constitution of the Federal Republic of Nigeria (Second Alteration) Act 2010 (Second Alteration Act 2010), section 233 of the Constitution was further amended by section 6 which only altered section 24 of the First Alteration Act 2010 by amending subsection 2 of section 233 of the Constitution by the addition to the subsection, subsection 2 (iv), (v) and (vi) which deals with election to the office of the Governor of a State or the Deputy Governor of a State, the term of office of the Governor of a State or the Deputy Governor of a State and whether the office of the Governor of a State or the Deputy Governor of a State has become vacant. From evidence available to the writer, there was no amendment by the deletion of subsection 3 of section 233 of the Constitution by the Second Alteration Act 2010.
GENESIS OF THE CONTROVERSY:
In Shittu v. P. A. N. Ltd. (2018) 15 NWLR (Pt. 1642) 195 at 209-210, Honourable Justice Rhodes-Vivour J.S.C., in delivering the lead Judgment, struck out the appeal of the appellant upon a determination of the provisions of sections 233(2) and (3) of the Constitution. The Supreme Court in a unanimous decision, held that the appeal lacks merit for failure of the appellant to seek and obtain leave of either the Court of Appeal or the Supreme Court before commencing the appeal; the grounds of appeal being grounds of mixed law and fact. Honourable Justice Rhodes-Vivour J.S.C., who delivered the lead judgment, however proceeded at pages 209-210, paras. H-B of his judgment to make the following remarks:
“I must observe that there is now in existence the 1999 Constitution of the Federal Republic of Nigeria, as altered by the First, Second and Third Alterations Acts, 2010. By the alterations there is no longer section 233(3) of the Constitution. That is to say, the Supreme Court now can only hear appeals where the ground of appeal involves questions of law. See section 233(1) of the Constitution. The Supreme Court no longer has jurisdiction to hear appeals where the ground of appeal involves questions of mixed law and facts. Appeals on grounds of mixed law and facts ends at the Court of Appeal.”
In Amadi v. Wopara (2022) 1 NWLR (Pt. 1811) 359 at pages 370-372, the Supreme Court seized the opportunity to clarify the Court’s position in Shittu v. P.A.N. (supra), when the Court held that the observation made by Honourable Justice Rhodes-Vivour, J.S.C., in Shittu v. P.A.N. Ltd. (supra) is, no doubt, an obiter dictum as the comment was made in passing, and therefore not binding on the Supreme Court.
Given the decision of the Supreme Court in Amadi v. Wopara (supra), the controversy generated by the remarks of Honourable Justice Rhodes-Vivour J.S.C., in Shittu v. P.A.N. Ltd (supra) appeared to have been laid to rest until the case of Anyanwu v. Emmanuel (2025) 14 NWLR (Pt. 2006) 531 at 586-587, where my Lord, Honourable Justice Saulawa J.S.C., in his concurring judgment, again stirred up a hornets’ nest of legal controversy on the amendment of section 233 of the Constitution in the following words:
“I аm not unmindful of the view point ехрrеssed by Augie J.S.C, in the recent case of Amadi v. Wopara (2021) LPELR-58286(SC); (2022) 1 NWLR (Pt. 1811) 359:… With utmost deference, the fact that by viгtue of the provision of section 6 of the Constitution of the Federal Republic of Nigeria (Second Alteration) Act, 2010 (supra), the Supreme Court’s power regarding leave to argue ground of mixed law and facts has been removed from the Constitution, is no longer in doubt. In mу paramount view, it is tantamount to an impunity, thus, would not auger well for the courts may (sic) counsel to continue to act upon the provisions of subsection of section 233 of the 1999 Constitution that has since 2010, over onе and half decades ago, been deleted by, or substituted with an entirely new section 233 pursuant to section 6 of the Constitution of the Federal Republic of Nigeria (Second Alteration) Аct, 2010.”
From the above statement of my Lord, Honourable Justice Saulawa J.S.C., it is apparent that the basis for my Lord’s comment on the powers of the Supreme Court to continue to hear appeals on grounds of mixed law and fact is that section 6 of the Second Alteration Act 2010, substituted a new section 233 of the Constitution. However, it does appear, with the greatest respect, that there is now clear evidence that the Second Alteration Act 2010, did not alter section 233 by deleting subsection 3 from the section.
WAS SECTION 233(3) DELETED FROM THE CONSTITUTION?
The answer to the question whether section 233(3) was deleted from the Constitution by section 6 of the Second Alteration Act 2010, ought to have come from the National Assembly, being the organ of government with the powers to make laws for the Federal Republic of Nigeria, but I am yet to come across an official statement from the National Assembly on the matter. Majority of opinions on the subject however seems to suggests that section 233(3) has been deleted from the Constitution while some other legal commentators have argued that the deletion is the result of an erratum (an error in printing or writing) in the course of printing the Constitution, thus suggesting on the other hand that there was no deletion of section 233(3) from the Constitution. The question however to be answered is whether an erratum can be said to occur in a document that did not emanate from the appropriate authority or which appears to be a product of unintelligent piracy or fakery. In the writer’s respectful view, this lingering controversy is needless, because a diligent search or enquiry from the appropriate authority would have revealed the clear provisions of the authentic version of the Constitution. Thus, the Forward by the former Honourable Attorney-General of the Federation, Mohammed Bello Adoke, SAN, CFR, to the authentic version of the Constitution is helpful in the circumstances. The former Honourable Attorney-General of the Federation, Mohammed Bello Adoke, SAN, CFR, who appears to have been aware of this needless controversy and in a bid to lay it to rest, prior to leaving office in 2015, circulated what he called “ the authentic version of the 1999 Constitution with its 1st, 2nd and 3rd Alterations as passed by the National Assembly in 2010 and gazetted by the Federal Government Printer in 2011”. That version of the Constitution was printed by the Federal Government Printer, Lagos (the appropriate authority), and circulated by the Federal Ministry of Justice. In the Forward to the authentic version of the Constitution, the then Honourable Attorney-General of the Federation, Mohammed Bello Adoke, SAN, CFR, stated as follows and I quote:
“In keeping with the constitutional responsibility of my Office as the Chief Law Officer of the Federation and mandate of the Federal Ministry of Justice to ensure that legislation in the public domain are comprehensive, certain and predictable, the imperativeness of producing for circulation the authentic version of the 1999 Constitution with its 1st, 2nd and 3rd Alterations as passed by the National Assembly in 2010 and gazetted by the Federal Government Printer in 2011 is of utmost importance and priority. By virtue of section 22(1) of the Interpretation Act, CAP 123, Laws of the Federation of Nigeria, 2004, where an enactment is amended by the insertion or omission of words or by the substitution of words for other words, then on printing the enactment at any time after the amendment takes effect, the person authorized to print the enactment shall, if so directed by the Attorney General of the Federation, print the enactment as so amended. I have therefore directed the Federal Government Printer to print the Constitution with the First, Second and third Alterations. In line with the provisions of section 22 (2) of the Interpretation Act (supra), the Federal Government Printer has included special side notes as indicators of the amendment and the enactment of which was made. I therefore recommend this publication of the 1999 Constitution with its Alterations as passed by the National Assembly to date to all institutions, persons seeking to know the current constitutional provisions applicable in Nigeria and to the general public for use and appropriate guidance.
MOHAMMED BELLO ADOKE, SAN, CFR
Honourable Attorney-General of the Federation and Minister of Justice”
In the same vein, Abubakar Malami, SAN, who was the Honourable Attorney General of the Federation from 2015-2023, following the footsteps of his predecessor in office, and in an apparent move to settle the controversy surrounding the amendment of the Constitution, circulated an updated version of the Constitution with the 1st, 2nd, 3rd and 4th Alterations and in his Forward to the authentic version of the Constitution, stated as follows:
“In line with the constitutional responsibility of my Office as the Chief Law Officer of the Federation and the mandate of the Federal Ministry of Justice towards ensuring that legislations in the public domain are complete, certain, genuine and predictable. Equally, the need to circulate to the members of the public the authentic version of the 1999 Constitution with the 1st, 2nd, 3rd and 4th Alterations as passed by the National Assembly and duly Gazetted by the Federal Government Printing Press in 2011 and 2019 remains pivotal to my responsibility. I therefore consider the production of the 1999 Constitution with its Alterations as my utmost priority and responsibility as the Chief Law Officer of the Federation by making available the officially Gazetted 1999 Constitution with 1st, 2nd, 3rd and 4th Alterations for the members of the public…..
The rational for the production and circulation of the 1999 Constitution (with its Alterations) is borne out of the unpleasant development of the circulation of different fake versions of the 1999 Constitution (with Alterations) by some vendors without my seal of authority and approval leading to instances, whereby erroneous and misleading provisions are contained in some of the copies of the Constitution in circulation.
In view of the above, I hereby recommend the publication of the 1999 Constitution (with its 1st, 2nd, 3rd and 4th Alterations) as passed by the National Assembly by the Federal Ministry of Justice for the benefit of all institutions and persons seeking to know the current constitutional provisions applicable in Nigeria and to the general public for usage and appropriate guidance.
ABUBAKAR MALAMI, SAN
Honourable Attorney-General of the Federation And Minister of Justice”
A reading of the authentic versions of the Constitution printed by the Federal Government Printer and circulated by the Federal Ministry of Justice under the guidance of both Attorneys-General, would show that section 233(3) of the Constitution is intact and has not been deleted. The footnote in the section is with reference to subsection (2) of section 233 which was altered by section 6, Act No.2, 2010. Section 6, Act No. 2, 2010 only altered section 24 of the First Alteration Act, which had only amended section 233(2) of the Principal Act in paragraph (e).
In the amendments in the First and Second Alteration, subsection (3) of section 233 of the Constitution remained untouched and intact because it was never amended or removed from the section and this is why the subsection is till date part of the authentic versions of the Constitution circulated by the Federal Ministry of Justice on the authority of the Attorneys-General of the Federation, Mohammed Bello Adoke, SAN, CFR, and Abubakar Malami, SAN. Also, the Laws of the Federation of Nigeria Volume 3 updated to the 31st day of December 2010, and prepared under the authority of The Revised Edition (Laws of the Federation of Nigeria) Act 2004, by the Law Revision Committee under the Chairmanship of Honourable Mr. Justice E.A. Ayoola and published by LexisNexis (Pty) Ltd in 2011, has section 233 of the Constitution intact without any deletions of subsection 3 of section 233 of the Constitution or any subsections thereof.
CONCLUSION
If there is any document being referred to as the Constitution of the Federal Republic of Nigeria 1999 (as amended) which does not carry subsection 3 of section 233, that document is not the authentic version of the Constitution printed by ‘The Federal Government Printer, Lagos’, and or such copy of the Constitution that has been printed on the authority of the Honourable Attorney-General of the Federation in such a manner as may be specified by his direction pursuant to his powers under section 22(1) of the Interpretation Act, Cap. 123, Laws of the Federation of Nigeria.
THE AUTHOR: Sylva Ogwemoh SAN is the Founder and Senior Partner of the Law Firm of KMO Legal and can be reached by email on: [email protected]
