A Federal High Court sitting in Lagos has held that the amendment to the 1999 Constitution recently carried out by the National Assembly cannot become operational without the assent of President Goodluck Jonathan.

The court, presided over by Justice Okechukwu Okeke, also ruled that the purported amendment to the Constitution remains inchoate until it is presented to the President for his assent and approval.

The court declared the 2010 Constitution Amendment Act as null and void.

Justice Okeke came to the conclusion while delivering judgment in a suit filed by the former President of the Nigerian Bar Association (NBA), Olisa Agbakoba, challenging the refusal of the federal lawmakers to forward the amended Constitution to the President for his assent.

However, the National Assembly, says that it would appeal against the ruling.

The Chairman, Senate Committee on Information and Media, Senator Anyogu Eze maintained that the legislature acted within the confines of the law, but added that it cannot stop the court from doing its job.

He added that the legislature will test the ruling in a superior court of law.

Eze also said that the ruling will not have any effect on the running of the country, especially the preparations and the conduct of the 2011 general elections as the status quo will remain, in line with the law since the matter will be going on appeal.

Mr Agbakoba had sued the National Assembly and the Attorney General and Minister of justice, Mohammed Bello Adoke, challenging the legality of the claim by the lawmakers that President Jonathan's assent is not required before the amendment to the Constitution can become operational.

The National Assembly had through its lawyer, Johnson Usman filed a preliminary objection to the suit, urging the court to dismiss the suit with substantial cost. Mr Usman formulated three grounds for the court to strike out the suit, which were; lack of locus standi, lack of jurisdiction and that the court lacked the territorial jurisdiction to adjudicate on the matter.

In his arguments he contended that only the Attorney General of the Federation (AGF) is empowered under the law to institute such a suit. He further argued that the cause of action arose in Abuja and that Lagos was a wrong place to have filed the suit.

On his part, the Attorney General in his preliminary objection, argued that he was not a proper party to the suit being a member of the executive arm of government, and that the suit disclosed no reasonable cause of action against him.

Ruling on the preliminary objections, Justice Okeke held that the plaintiff, Mr Agbakoba has sufficient locus standi to institute the action since the suit was not a challenge to the debate on the floor of the National Assembly, but to the refusal by the lawmakers to send the amended Constitution to the President for his assent. Citing Section 150 of the Constitution, the court held that the AGF is needed in the proceedings, being the Chief Law officer of the country even as a nominal party or at least to witness the proceedings.

The court thereafter dismissed the preliminary objections filed by Mr Adoke and the National Assembly.

In his judgment on the main suit, Justice Okeke, who cited Section 2 of the Interpretation Act, noted that the Constitution, having come into law through an Act, can only be amended through an Act, and that Act of the National Assembly cannot become law without the assent of the President.

He further held that the National Assembly can only go ahead to enforce the Constitution where the President refused to sign it thirty days after receipt.

"Having failed to comply with the provisions of Section 58 of the Constitution, the purported 2010 amended constitution remains inchoate until it is presented to the President for his assent," Justice Okeke held.