NUC suspends admission into NOUN’s law
programme
INTRODUCTION:
The National Open University of Nigeria amended the Act
establishing the University (NOUN Act 1983) to correct the
conception the public have about the University. The Council of
Legal Education (CLE) the body responsible for the admission of Law
Graduates into Nigerian Law School (NLS) for vocational training
and National Youth Service Corps (NYSC) have denied NOUN Graduates
admission into Nigeria Law School and participation in one year
compulsory National Youth Service Corps on the ground that NOUN is
a correspondence and part-time study University based on the lacuna
in the previous Act establishing NOUN before its amendment, that
stated that the University shall be run through correspondence and
Meanwhilestudy. Mean while in the actual running of the University
it has been through full-time Open and Distance Learning.
The Nigerian Senate in an attempt to save the Law Graduates of
NOUN in collaboration with Tertiary Education Trust Fund (TETFUND)
sponsored a bill for an Act to amend NOUN Act to pave the way for
the admission of NOUN Law Graduates into Nigerian Law School. The
bill was successfully passed by the National Assembly and assented
by the President. After the enactment of the Act, the opinion
whether the amended provisions of the NOUN Act will affect the
already Graduated Law Students of the University before the
amendment of the Act is being entertained. It has been observed
that there are opinionists holding the view that the new amended
provisions in NOUN Act 1983 (as amended) 2017 cannot be applied
retroactively, for that the new provisions cannot affect the
already graduated Law Students of the University before those
provisions were made into the NOUN Act 1983 (as amended) 2017
It is on the basis of the above view this discourse is about to
contend and address.The proposition that the new amended provisions
in NOUN Act, 1983 (as amended) cannot be applied retroactively as
to have effect on the already graduated NOUN Law Students before
the amended provisions in the NOUN Act, base on the fact that
National Assembly cannot make a retrospective Law in my humble view
is not only an error but also at variance with the clear and
unambiguous provisions of the Nigeria Constitution, 1999 (as
amended) and also risk misleading Council of Legal Education (CLE)
and undiscerning public. This is especially so, having regard to
all the relevant legal authorities and the extant NOUN Act, 1983
(as amended) 2017.
Before embarking on the discourse the following frameworks will
be used in resolving the contention.
(1) What is the limit of the power of National Assembly to make
laws under Nigeria Constitution?.
(2) When is a Federal Civil Legislation Affect a pending case
(i.e the pending case of admission of NOUN Law Graduates into
Nigerian Law School)?.
Powers of National Assembly to Make Laws under the 1999
constitution
Section 4 of the constitution provides that:
(1)’The legislative powers of the Federal Republic of Nigeria
shall be vested in a National Assembly for the Federation, which
shall consist of a Senate and a House of Representatives’; and
(2)’The National Assembly shall have power to make Laws for the
peace, order and good government of the Federation or any part
thereof with respect to any matter included in the Exclusive
Legislative List set out in Part I of the second schedule to this
constitution.’
It should be noted that with emphasises that with respect to any
matter included on the Exclusive Legislative List. This clearly
indicates that the powers of law making for the order and good
governance of Nigeria are vested in the National Assembly to the
exclusion of any other arm and authority of government. To this
extent, an extreme view of the powers vested in parliament is to
suggest that the National Assembly is Supreme. The implication is
that the National Assembly has unfettered powers, subject only to
the supremacy of the Constitution to make laws on any matter listed
for its legislative competence by the Constitution.
A highly respected Constitutional Lawyer, Prof. Ben Nwabueze,
also opined that, “… the legislature is the distinctive mark of a
Country’s Sovereignty, the index of its status as a State and the
source of much of the power exercised by the Executive in the
administration of government. The Sovereign power of the State is
therefore identified in the organ that has power to make Laws by
legislation, and to issue ‘commands’ in the form of Legislation
binding on the community.”
To this extent, it is trite to stress that no one can question
the legitimacy or legality of a law made by the National Assembly,
except the Judiciary, and this is only where the law is
inconsistent with the Constitution. See Abacha V. Fawehinmi (2000)
4SC (Pt. 11) and Bolonwu V. Gov. Anambra State (2009) 18 NWLR
(Pt.1172) 13
The limit of the powers of the National Assembly under
the Constitution.
The limits of the powers of the National Assembly are only
circumscribed by the Constitution. And this is only in relation to
matters where the Constitution itself has covered the field. The
principle is that where the constitution has defined or provided
for the exercise of a right in a particular manner, no legislation
either by the National Assembly or a state house of assembly can
extend it in a statute short of an outright Constitutional
amendment. See Attorney General of Ogun State v Attorney General of
the Federation [1982] 2 NCLR, 166, 180-181, or repeat, duplicate,
add or subtract from the provision. See Attorney General of Abia
State v Attorney General of the Federation, (2002) 9 NSCQLR 670,
785, 788.
The implications of the two authorities above are that only the
Constitution is superior to the National Assembly and where the
National Assembly exceeds its powers under the Constitution, it is
only the Judiciary that can reverse it. This is because under the
principle of the doctrine of separation of powers in a
Constitutional democracy, the powers of checks and balances are
allocated in the three arms of government thus: the Legislature
which makes the law, the Executive, which implements the law and
the Judiciary, which interprets the law. In this regard, the
legislative powers of the National Assembly are Constitutionally
restrained or subjected to the powers of the Judiciary to interpret
the laws made by it to ensure that the National Assembly does not
become a law unto itself.
Thus, the CFRN 1999, provides under Section 4(8) that: “Save as
otherwise provided by this Constitution, the exercise of
legislative powers by the National Assembly shall be subject to the
jurisdiction of the courts of law and of judicial tribunals
established by law and accordingly, the National Assembly or a
House of Assembly shall not enact any Law that ousts or purports to
oust the jurisdiction of a Court of Law or of a judicial tribunal
established by Law.” It is important to stress that the National
Assembly’s powers to make Laws for the Peace, Order and Good
Governance, is limited to matters contained in the Exclusive
Legislative List. It cannot be extended as in military dictatorship
or unconstitutional government to any part thereof and with respect
to any matter whatsoever.
Limit of the Powers of National Assembly in respect of
Retrospective Law.
The Nigeria Constitution in section 36 provide that:
(8) 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.
Article 20 of the Indian Constitution, 1950, provides certain
safeguards to the person accused of crime. Article 20(1), imposes a
limitation on the Law making power. It prohibits the Legislature to
make Retrospective Criminal Laws, however, it does not prohibit a
civil liability retrospectively i.e with effect from a past
date.
The above Constitutional provisions only prohibit the National
Assembly from making a retrospective Criminal Legislation not a
Civil Legislation, which is not the concern of this discourse.
The Effect of an Amended Federal Civil Legislation on a pending
case.
Retrospective v Prospective.
Meaning:
The dictionary meaning of the word prospective with reference to
statutes shows that it is concerned with or applying the laws in
future or atleast from the date of commencement of the statute.
Whereas the word retrospective when used with reference to an
enactment may mean:
1. Effecting an existing contract or
2. Reopening of the past , closed and completed transactions,
or
3. Affecting accrued rights and remedies, or
4. Affecting procedure.
The retrospective operation of an enactment may mean one thing
and its affecting the rights of parties another.
The U.S. Supreme Court cases Landgraf v. USI Film Products, 511
U.S. 244 (1994) and Lindh v. Murphy, 521 U.S. 320 (1997) provide
the framework to be used in determining when an amended Federal
Civil Statute Retrospective as opposed to Prospective such that its
affect pending case.
First, look for an “unambiguous directive” from congress as to
the temporal reach of a statute. If one is found, it is generally
controlling and the inquiry ends. Mathews v. Kidder, Peabody & Co.,
161 F.3d 156, 161 (3d Cir. 1998) (citing Landgraf, 511 U.S. at
263).
Otherwise, use the rules of statutory construction to determine
if Congress intended the statute to apply only to future cases.
Again, if this intent is found, it is controlling and the inquiry
ends.
If there is neither an express command nor an intent to apply a
statute prospectively only, look to the effect that the statute
will have. If it would “impair rights a party possessed when he
acted, increase a party’s liability for past conduct, or impose new
duties with respect to transactions already completed,” then it has
a “retroactive effect” and should only apply prospectively, unless
Congress clearly intended to apply the statute to pending cases.
Id. (citing Landgraf, 511 U.S. at 280).
Conversely, if it would merely affect prospective relief, change
procedural rules, or allocate jurisdiction, then apply the
statutory construction rules to determine whether it should be
applied retroactively.
In analyzing the “retroactive effect” of statutes under the last
step of the test, which is applicable to NOUN Act 1983 (as mended)
2017. The Courts are concerned with protecting vested, substantive
rights. Amendments that are procedural or remedial in nature, are
permitted to have effect retroactively. A summery of the case in
Legal Assistance for Vietnamese Asylum Seekers v Dep’t of State
Bureau of Consulate Affairs, 104 F3d 1349, 1352 (D.C. Cir1997) will
be instructive.
Legal Assistance for Vietnamese Asylum Seekers v. Department of
State, Bureau of Consular Affairs, 45 F.3d 469 (D.C.Cir.1995),
reh’g denied, 74 F.3d 1308 (D.C.Cir.), vacated, ___ U.S. ___, 117
S.Ct. 378, ___ L.Ed.2d ___ (1996) [hereinafter LAVAS], an
abbreviated version.
During the 1980s an overwhelming number of migrants from Vietnam
and Laos fled their home countries seeking refuge in other
countries in Southeast Asia. To deal with the migration crisis some
50 countries, including the United States, entered into an
international agreement known as the Comprehensive Plan of Action
(“CPA”). Under the CPA, Vietnamese and Laotian migrants who land in
other countries are screened by local officials to determine
refugee status. Those migrants who are “screened-out,” that is
determined not to be refugees, are repatriated. A repatriated
migrant may then apply for an immigrant visa from his home country.
Until 1993, the United States Consulate General in Hong Kong
processed the visa applications of migrants before, and sometimes
after, they were screened-out as nonrefugees. Other nations party
to the CPA objected that this practice encouraged further
migration, so the State Department adopted a policy against
processing visa applications of “screened-out” Vietnamese or
Laotian migrants in Hong Kong. Under current State Department
policy, the migrant is repatriated and his visa application is
processed in his home country.
In 1994, two Vietnamese migrants, the migrants’ sponsors in the
United States, and a nonprofit legal-rights organization challenged
the State Department policy under Section 202 of the INA, 8 U.S.C.
§ 1152(a), which [104 F.3d 1351] prohibits United States consular
officials from discriminating on the basis of nationality in the
issuance of immigrant visas. The plaintiffs also claimed that the
policy was arbitrary and capricious within the meaning of the
Administrative Procedure Act (“APA”), 5 U.S.C. § 706(2)(a), and
that it violated the equal protection component of the Fifth
Amendment’s Due Process Clause. The district court granted the
State Department’s motion for summary judgment.
In LAVAS, a divided panel of this Court reversed, holding that
the consular venue policy violated 8 U.S.C. § 1152(a)(1) because
the State Department had drawn a distinction between Vietnamese and
Laotian nationals and nationals of other countries. 45 F.3d at 473.
We did not reach plaintiffs’ remaining APA or constitutional
claims. The government filed a petition for rehearing and
suggestion of rehearing en banc. In the meantime, on remand, the
district court held that the case had become moot. 909 F.Supp. 1
(D.D.C.1995). The panel reversed as to mootness and held that
rehearing was unwarranted. 74 F.3d 1308 (D.C.Cir.1996).
While the government’s rehearing petition in LAVAS was pending,
a separate action, Le v. United States Dept. of State, was filed in
United States District Court. The district court, relying on this
Court’s opinion in LAVAS, granted summary judgment for plaintiffs
and enjoined the Government from implementing its policy of
declining to process the applications of screened-out migrants in
Hong Kong. 919 F.Supp. 27 (D.D.C.1996). The Government appealed the
injunction, and this Court granted initial hearing en banc. In the
meantime, the Supreme Court granted certiorari in LAVAS. ___ U.S.
___, 116 S.Ct. 2521, 135 L.Ed.2d 1046 (1996). We then suspended en
banc proceedings in Le pending the Supreme Court’s decision.
On September 30, 1996, shortly before the Supreme Court was to
hear oral argument in LAVAS, the President signed into law the
Illegal Immigration Reform and Immigrant Responsibility Act of 1996
(“IIRA”) (enacted as Division C of the Department of Defense
Appropriations Act, 1997, Pub.L. No. 104-208, 110 Stat. 3009
(1996)). Section 633 of the IIRA amends the Immigration and
Nationality Act (INA) by adding the following to 8 U.S.C. §
1152(a)(1): “(B) Nothing in this paragraph shall be construed to
limit the authority of the Secretary of State to determine the
procedures for the processing of immigrant visa applications or the
locations where such applications will be processed.” After
requesting supplemental briefing on the effects of section 633, the
Supreme Court vacated our judgment in LAVAS and remanded the case
to us for “further consideration in light of Section 633.” ___ U.S.
___, 117 S.Ct. 378 (1996) (per curiam). We then consolidated LAVAS
and Le.
The State Department argues that section 633 applies to
plaintiffs’ claim. Although section 633 was not in effect at the
time the State Department enacted the new policy, the State
Department asserts that Congress intended section 633 to be
retroactive from its enactment. The State Department further argues
that section 633 applies because the plaintiffs are seeking only
prospective relief.
We need not determine whether Congress intended section 633 to
apply retroactively because we hold that application of the
amendment does not raise retroactivity concerns. Plaintiffs’ claim
raises a procedural right and is governed by the INA as amended by
section 633. We also hold that this case concerns prospective
relief and so does not raise problems of retroactivity.
The Effect of NOUN Act Amendments on NOUN Law
Graduates.
The amendment that was carried out in NOUN Act only changed the
method of running the institution from Correspondence and Part-time
Study to Full-time Open and Distance Learning. It is originally
aimed to redressing the continue denial of NOUN Law Graduates (NLG)
admission into Nigeria Law School (NLS). In the amended provisions
in NOUN Act only stipulated the mode by which the institution is to
be operating. Which is a matter of procedure. Retrospective effect
is permitted in case of procedural. See Smt. Dayawati v.
Inderji.
Base on the forgoing, with regard to the above relevant
authorities, it is trite to conclude that the NOUN Act 1983 (as
amended) 2017 has effect on the already graduated students before
its amendment.
Aidomokhai Cyril Longe. LL.B (HON), Principal @
Aidomokhcylaw Coordinates (Property Contractor, Consultant and
Legal Services Commission)
Email: aidomokhcylaw@yahoo.com, Tel: 08054545445, Whatsapp:
08064614108