Introduction
In a Federation like Nigeria where checks and balances is
stressed, the roles of the three arms of government are clearly
defined in the Constitution. The legislative power of the Federal
Republic of Nigeria, vested in the National Assembly and the House
of Assembly, is to make laws for the peace, order and good
government of the Federation or any part thereof.[1] Invariably,
the legislative powers of the National Assembly and House of
Assembly extends to amendments or alteration of statutes already
made. This power is however not without limits; the seemingly
prodigious powers of the legislature is subject to the supremacy of
the constitution. More so, the judiciary, acting as a watchdog to
the legislature has the power to question the legality of a
legislation and appropriately interpret same.[2]
Recently, the 1999 Constitution of the Federal Republic of
Nigeria (as amended) has been tweaked to include a Fourth
Alteration Act[3] primarily making additions to the
provisions of section 285 of the Constitution. The
new provisions of the Fourth Alteration to the Constitution
introduced the time limits within which pre-election cases should
be filed, decided and appealed. The Supreme Court has, in its usual
preponderant manner, as the apex court of the land interpreted the
Fourth Alteration to the Constitution to be applicable to all
pre-election cases that preceded the said Fourth Alteration,
thereby having a retrospective effect.
This article seeks to explore the judicial interpretations on
the recent Fourth Alteration to the Constitution that same should
operate retrospectively. The fairness and legality of retrospective
laws, especially as regards the retrospective connotation given to
the Fourth Alteration to the Constitution, is what draws the
discomfiture of the writer.
Meaning of Retrospective and Prospective
laws
In ordinary parlance the words ‘retrospective’ or ‘retroactive’
are used interchangeably to mean backward-looking.[4] The word
retrospective when used with reference to legislations may mean:
effecting an existing contract or reopening of the past, closed and
completed transactions; or affecting accrued rights and remedies;
or affecting procedure. A retrospective law is one that is to take
effect at the point in time before it was passed. In other words, a
retrospective law affects or influences past actions that occurred
before the law was enacted. It applies to those Acts of the
legislature, which are made to operate upon some subject, contract,
crime or proceeding which existed before the passage of the
Act.
A retrospective or retroactive law is also called an ex post
facto law; a Latin phrase meaning “from a thing done
afterward.” It refers to a law that applies retroactively, thereby
criminalizing a conduct that was legal when originally performed.
The prohibition of ex post facto laws has been entrenched
in most nations’ Constitutions and Bill of Rights.[5] It is
however, worthy of note that the prohibition of ex post
facto laws as enshrined in various world Constitutions are
restricted to criminal laws.[6] In fact, by section 4
(9) of the Constitution of the Federal Republic of
Nigeria;
“Notwithstanding the foregoing provisions of this section, the
National Assembly or a House of Assembly shall not, in relation to
any criminal offence whatsoever, have power to make any law which
shall have retrospective effect”.
Thus, the express provision of the Constitution of Nigeria
prohibits ex post facto laws as it relates only to
criminal offences. Further, the Constitution explains what it means
by ‘retrospective effect’, when it includes as one of the
fundamental rights guaranteed to an accused person, that no person
shall be held to be guilty of a criminal offence on account of any
act or omission that did not at the time it took place, constitute
such an offence, and no penalty shall be imposed for any criminal
offence heavier than the penalty in force at the time the offence
was committed.[7]
A prospective law, on the other hand, is simply one that is
applicable only to cases that will arise after its
enactment.[8] Statutes applicable retrospectively is explained
properly by Francis Bennion’s Statutory Interpretation[9]
thus;
“The essential idea of legal system is that current law should
govern current activities. Elsewhere in this particular work, a
particular Act is likened to a floodlight switched on and off and
the general body of law to the circumambient air. Clumsy though
these images are, they show the inappropriateness of retrospective
laws. If we do something today, we feel that the law applying to it
should be the law in force today not tomorrow’s backwards
adjustment of it. Such we believe is the nature of law…”
Principle Governing Operation of Retrospective
Laws
The age long Latin principle that lex prospicit not
respicit, which translates to mean the law looks forward, not
backward has been engrafted in various statutes, the grundnorm
inclusive. The courts of law have also upheld this principle as
sacrosanct. The general principle of law is that the
applicable law to an action is the law existing or the law that
existed at the time the cause of action arose and not the law in
force when the action was instituted. See Hope
Democratic Party v. Peter Obi & 5 ors (2011) 18 NWLR (Pt.
1278) 80 at 100 and Adesanoye v. Adewole
(2000) 9 NWLR (Pt. 671) 127. Thus, where a law was enacted
or amended during the cause of prosecuting a matter, the applicable
law ought to be the law in existence at the time the cause of
action arose.
In the Hope Democratic Party’s case,
at the time the petition was filed, the law in operation, which was
the Constitution (before it was amended) provided that the Court of
Appeal was the final court in matters relating to governorship
elections. The Court of Appeal had dismissed their petition on
24th February, 2011 and they appealed to the Supreme
Court, relying on the amendments to the Constitution which took
effect on 10th January, 2011. The said amendments had
granted a right of appeal to an aggrieved party in a governorship
election dispute to appeal to the Supreme Court. The Supreme Court
was quick to jettison arguments of the Appellants and dismissed the
inappropriate appeal since the law applicable to the parties were
the Electoral Act, 2006 and the Constitution before the amendments,
being the law in existence when the cause of action arose in the
case. Emphatically, the Supreme Court per Onnoghen, J.S.C (as he
then was) stated thus;
“… This is in accord with common sense as a law yet to be
existence cannot have effect on rights and/liabilities existing
prior to its creation, commencement…”
Furthermore, in the case of Miscellaneous offences
Tribunal v. Okoroafor (2001) FWLR (Pt. 81) 1730 at
1756, the Supreme Court pointed out that no statute shall
be construed so as to have a retrospective operation unless such a
construction appears very clearly in terms of the Act or arises by
necessary and distinct implication. It is important to note that
the necessary and distinct implication must be in accordance with
fairness and justice.
There is a presumption that the legislature does not intend what
is unjust, so courts lean against giving certain statutes
retrospective operation. They are construed as operating only in
cases or on facts which come into existence after the statutes were
passed, unless a retrospective effect is clearly intended. See
Afolabi v. Gov of Oyo State (1985) 2 NWLR (Pt. 9)
734 SC.
Exceptions to the General Rule
Although it is a cardinal principle of law that statutes are to
operate prospectively and ought not to apply retrospectively, where
by the express terms or provisions of the statute, it is to operate
retrospectively, then such statute must operate retrospectively.
Thus one exception is where a retrospective effect of the law is
clearly intended from the words of the statute.
A second exception is where the statute or amendment affects
procedural matters. In as much as an appellate court cannot take
into account a new law, brought into existence after the judgment
appealed against has been rendered, because the rights of the
litigants are determined under the law in force at the date of the
suit; matters of procedure are different and the law affecting
procedure is always retrospective.[10]
The case of Ojokolobo v. Alamu (1987) 3 NWLR
(Pt. 61) 377 at 396-397 paras. H-A per Bello, CJN (as he
then was) made an observation on the exception to the general rule
governing the operation of retrospective laws as follows;
“It is a cardinal principle of our law that a statute operates
prospectively and cannot apply retrospectively unless it is made to
do so by clear and express terms or it only affects purely
procedural matters and does not affect the rights of the
parties.”
Recent Cases on Retrospective Application of the
Law
- Gusau v. APC (2019) 7 NWLR (Pt. 1670)
185.
In this case, the appellant had taken out an originating summons
at the Federal High Court over his participation at the primary
election of his party in 2015, which was struck out on the ground
that the appellant inter alia lacked locus standi
to institute the action. On appeal, the Court of Appeal dismissed
the appeal, upholding the decision of the trial court, resulting to
an appeal at the Supreme Court. The appeal to the Supreme Court was
however filed on 12th January, 2018,
one month and five days after the decision of the
Court of Appeal delivered on 7th December,
2017, hence a Preliminary Objection “contesting the
competence of the appeal on the ground that the appeal is statute
barred”.
The case of the respondent, which the Supreme Court agreed with,
was that the appeal was statute barred because it was filed outside
the time prescribed in section 285 (11) of the
Constitution as altered by the 4th
Alteration Act No. 21, 2017 that took effect from 17th
June, 2018. The said Alteration provides thus:
“An appeal from a decision in a pre-election matter shall be
filed within 14 days from the date of delivery of the judgment
appealed against.”
- Kusamotu v. A.P.C. (2019) 7 NWLR (Pt. 1670)
52.
Similar to the case supra, the Supreme Court struck out
the case of the appellant for being statute barred following the
Constitution of the Federal Republic of Nigeria, 1999
(4th Alteration No. 21) Act 2017 which provides in
section 285 (12) as follows:
“An appeal from a decision of a court in a pre-election matter
shall be heard and disposed of within 60 days from the date of
filing the appeal.”
In this instant case, although the appeal before the Court of
Appeal was filed before the 4th Alteration to
Constitution was assented to by the President, the proceedings at
the Court of Appeal became statute-barred because the appeal was
not concluded within 60 days from the date the appeal was
filed.
Conclusion
It is the writer’s submission that where no express stipulation
of a retrospective effect is made in a legislation or an amendment
to such legislation, courts should consider whether applying such
legislation retrospectively would impair rights a party possessed
when he did the act, whether it would increase a party’s liability
for past conduct, or whether it would impose new duties with
respect to transactions already completed.
The clear provisions of the Fourth Alteration to the
Constitution, undoubtedly, makes no stipulation that its provision
be applied retrospectively or otherwise. A cursory look at the
decided cases reveal that the retrospective effect given to the
said Fourth Alteration impinged the rights of the concerned parties
to prosecute their respective cases. It impaired their right to
appeal against decisions of lower courts, a constitutionally
guaranteed right by section 233 and 240 of the Constitution, which
they had before the alteration to the Constitution took effect. It
also increased the parties’ liability and duty to file appeals
within a certain time frame with respect to appeals that had been
filed already.
Author’s Biography
Name: Oluwatosin Sofowora
Oluwatosin is a young brilliant lawyer. She obtained her LL.B
with first class honours from the prestigious University of Ibadan.
She has worked as a Trainee- Associate in Wole Olanipekun & Co
where she displayed her academic prowess and innovatory skills.
[1] See section 4 of the 1999 Constitution of the
Federal Republic of Nigeria (as amended) (CFRN).
[2] See section 4 (8) of the CFRN; Abacha v. Fawehinmi
(2000) 4SC (Pt. 11); Bolonwu v. Gov Anambra State (2009) 18 NWLR
(Pt. 1172) 13.
[3] No. 21, 2017.
[4] Thesaurus.com
[5] See Article 1, Section 9, Clause 3 (with respect
to federal laws) & Article 1, Section 10 (with respect to state
laws) of the US Constitution; Article 5, section XXXVI of the
Brazilian Constitution; Section 11 of the Canadian Charter of
Rights and Freedoms; Article 103 of the German basic law; article
20(1) of the Indian Constitution.
[6] See the early case of Calder v. Bull, 3 U.S. (3
Dall.) 386, where the Supreme Court decided that the phrase, as
used in the Constitution (that is ex post facto laws) was
a term of art that applied only to penal and criminal statutes.
[7] Section 36 (8) CFRN.
[8] Gusau v. APC (2019) 7 NWLR (Pt. 1670)185
at 193 para. C
[9] 2nd Edition
[10] Gusau v. APC (2019) 7 NWLR (Pt. 1670)
185 at 194 paras B-C Per Augie, J.S.C.