By Washington Osifo
The recent dramatic performance of the Professors that testified before the American House of Representatives Judicial Committee on what constituted impeachment offense as captured by the framers of the American constitution is instructive on how academicians could fundamentally differ genuinely or hide under the carapace of selective intellectual excursions to arrive at fraudulent intellectual conclusions! Mr Emwanta’s opinion on Law and Human Rights column titled “Thoughts on the binding judicial precedent on vacant legislative seats”, published on Thursday 19th December 2019 particularly on page 28 of the Vangaurd newspaper, squarely fall in the latter category.
He did a fantastic job of sophistry and must have misled not a few Nigerians on the question dealing with the power of a Speaker to unilaterally declare the seat of a member of the House vacant. Summed up, Emwanta contextually recalibrated the painstaking and excellent submissions of the best of our Supreme Court Justices, degenerate same to the oozing level of fraudulent intellectual masturbation and inane effusions.
It is common knowledge that Hon.Frank Okiye, the self-acclaimed “Speaker” of the Edo State House of Assembly purportedly declared vacant the seats of the 14 Members-Elect ( one of which I am) of the Edo State House of Assembly, who are presently in a legal battle to redress the constitutional infractions surrounding the unlawful inauguration of the Edo State House of Assembly on the 17th of June 2019. In doing this , the Hon. Frank Okiye purportedly relied on the provision of Section 109 (f) of the Constitution of the Federal Republic of Nigeria, 1999 (As amended). Whilst the propriety of the said inauguration of the Edo State House of Assembly and the purported election of the “Speaker” is pending in Suit NoB/80/OS/2019 in Edo State High Court in Benin, the self acclaimed “Speaker” ignored the pending motion for Injunction restraining him from taking further steps in the matter and proceeded to unlawfully and unconstitutionally declare our seats vacant.
Presently, this latter constitutional infraction is being challenged at the Federal High Court.
Therefore, what is mind boggling is the attempt by a self-acclaimed “Constitutional Lawyer” to justify this unlawful and unconstitutional act of the self-acclaimed “Speaker” in the media, whilst the suit challenging his action is pending in Court. We would have conveniently ignored the vituperation of this self-seeking academic but for his deliberate and/or mischievous misinterpretation of the Supreme Court’s decision in the celebrated case of Hon.Mike Oloyo v Chief B.A. Alegbe ( 1983) All,NLR ,387-459.
In his piece, Andrew A.Emwanta twisted the decision of the Apex Court to give the impression that the Court affirmed the power of a Speaker of a State House of Assembly to unilaterally declare the seat of an elected member of the House vacant. This is very far from the truth.
This short piece is aimed at correcting this piece of deliberate misinformation by the media “Constitutional Lawyer”
1.2 The Decision of the Apex Court:
The facts surrounding this case are pretty well settled thus as a writer, I have no disagreement with its presentation, however, what I quarrel with is the misconstruing of the decision of the Court.
The facts of the case reveal that, the Speaker (Chief B.A Alegbe) purported to have declared vacant the seat of Hon.Mike Oloyo when he wrote a letter dated the 15th of September 1981 to Hon.Mike Oloyo wherein he stated as follows:
“ (1) TAKE NOTICE therefore that your seat in this House of Assembly is declared vacant with effect from the 19th day of August 1981, for absenting yourself from the meetings of the House for 94 days “without just cause”
(2) FURTHER TAKE NOTICE that you are henceforth no longer entitled to sit or vote in the House and/or take part in any of its proceedings including proceedings of all its committees
(3) You should immediately hand over all the properties of the House which came to your possession since October 2nd 1979 to the Clerk of the House”.
It was this letter that formed the basis of Hon.Mike Oloyo’s suit at the High Court which held that the Speaker (Chief B.A Alegbe) lacked the powers to declare his seat vacant.
The Court held that all the Speaker was enjoined to do by virtue of Section 103 (1) (f) of the 1979 Constitution (The precursor to Section 109 (1) (f) of the 1999 Constitution), was to indicate whether Hon.Mike Oloyo was absent from the seating of the House for more than 1/3 of the total number of days the House sat in a legislative year and that the absence was without a “reasonable cause”.
The Court held that the ultimate power of determining whether, Hon.Mike Oloyos seat had become vacant as a result of the aforesaid rested with the appropriate State High Court and not the Speaker of the House. It was this decision by the High Court that was taken to the Court of Appeal by Chief B.A Alegebe.
The Court of Appeal allowed his appeal and set aside the judgment of the High Court. The Court of Appeal held that the Speaker, Chief B.A Alegbe had the constitutional right to declare Hon.Mike Oloyos seat vacant.
However, on a further appeal by Hon.Mike Oloyo to the Supreme Court, the Apex Court allowed his appeal in part and affirmed the decision of the High Court. The Apex Court reiterated the point that the Speaker —Chief B.A Alegbe did not have the right/power to declare the seat of Hon.Mike Oloyo vacant, rather it was the then Bendel State High Court that had the requisite power to do so.
In the leading judgment of Hon.Justice Fatai Williams, he held as follows:
“Now going back to the case in hand, it is my view having regard to the words used in section 103 (1) (f) compared to section 237 of the Constitution which conferred jurisdiction on the competent High Court to declare the seat of a member of the State House of Assembly vacant, that there is nothing in the two sections which empowers the Speaker or the State House of Assembly to declare the Plaintiff/Appellants seat vacant.
To hold otherwise would mean giving the Speaker or the House of Assembly as the case may be, the power which the Constitution specifically and in clear terms reserved for the competent High Court.
The High Court must not be sacrificed on the alter of legislative expediency..” (See page 398 of the Law Report)
Interestingly, this leading judgment received a concurrence from the other six Justices on the panel, namely Hon.Justice Sowewimo, Hon.Justice Otutu Obaseki, Hon.Justice Kayode Eso, Hon.Justice Nnamani, Hon. Justice Bello and Hon.Justice Uwais, though with varying emphasis and reconstruction. However, there was no dissenting judgment, therefore, one wonders where our learned friend got the “ratio” in this decision which he reeled out as affirming the powers of the Speaker of a State House of Assembly to unilaterally declare vacant, the seat of an elected member of the State House of Assembly,
It is obvious that the author of the original article set out to do the bidding of his pay-masters as he wont to do lately on all available mass media. That is to use his assumed expertise in law, pass off his untested status as a “Law Lecturer” and self-acclaimed “Constitutional Lawyer” to defend the constitutional infractions and breaches of the rule of law by the de facto “Speaker” of the Edo State House of Assembly and his Godfather-the Governor of the State.
He has carried this assignment too far, by deliberately and mischievously misrepresenting the decision of the Apex Court in Nigeria as if no other person had access to the law reports or are able to interpret the decisions therein.
Our advice to him: He should concentrate on his teething academic career and stop playing mischievous politics with his “vantage” position as a “Law Lecturer” in the guise of interpreting the Constitution..
We acknowledge his constitutional right to play politics and/or to belong to a political party or a “faction” of a political party, what is wrong is for him to bandy his untested status as an objective “egg-head” to misinform the unsuspecting public, including, unfortunately, his innocent students.
In any case, the current situation in Edo State House of Assembly should ordinarily beat the imagination of every enlightened mind. It is absolutely outside the provinces of common sense and rationality. The provisions of the constitution should assume a sacred status to a constitutional lawyer. In the eyes of the constitution, there is no House of Assembly in Edo State in so far as the inaugurated members are less than twenty four, the minimum condition prescribed by the Nigerian Constitution under Section 91 of the 1999 Constitution of the Federal Republic of Nigeria(as amended). In this direction, the action of any official of the so- called Edo State House of Assembly is a wasted effort and effectively dishonors democratic values and principles. I hope I have been able to put the matter in the right perspective.
Osifo, Esq is a Doctoral Researcher and Member Elect, UHUNMWODE Constituency, Edo State House of Assembly, Edo State.