M. O. Oloyo V. B. A. Alegbe (1983)

LawGlobal-Hub Lead Judgment Report

ESO J.S.C. 

By an originating summons, the appellant M. O. Oloyo, an elected member of the Bendel State House of Assembly, as plaintiff in the Benin High Court, presided over by Ogbobine J., sought-

a declaration-

that the Speaker of the State House of Assembly is not competent to declare vacant his seat as the elected member for Akoko Edo Constituency, and an injunction-restraining the said Speaker, his servants and agents, from illegally preventing or interfering with his right to hold his seat as such elected member of the State House of Assembly.

As no oral evidence was led throughout the trial and the parties relied on affidavits as evidence in the case, I intend to set down these affidavits and counter-affidavits, as the case may be, and also the correspondence between the parties.

The affidavit of the appellant in support of his application for originating summons reads:

“1. I am the plaintiff herein and the elected member for the North Akoko-Edo Constituency in the Bendel State House of Assembly.

2. The defendant is the duly elected Speaker of the House of Assembly of Bendel State.
3. The letter now shown to me and marked “Exhibit A” is a true copy of a letter dated 18th September, 1981.
4. I do not admit the allegation that I have been absent from the meetings of the House of Assembly “for 94 days during the 1980/81 Legislative year” or that I have been so absent “without just cause” or that my seat in the House of Assembly has become vacant.
5. On the 5th day of October 1981 I attended a meeting of the House of Assembly but the defendant did not allow me to take my seat and insisted that my seat has been declared vacant.
6. Unless restrained by order of the court the defendant will not permit me to take my seat in the State House of Assembly.”

The letter, which was referred to by the appellant in paragraph 3 of the above affidavit, is as follows:

“I write this letter as Speaker/Presiding Officer of the Bendel State House of Assembly.

2. It has been observed from the House Attendance Register for the current Parliamentary Session beginning from 2nd October, 1980 and ending 18th August, 1981 which covers a period of 182 DAYS during which the House met, that you were absent for about 94 DAYS from the meetings of the House. This said period of your absence amounts in the aggregate to more than “ONE-THIRD” of the total number of days during which the House met this current legislative year. In order words, out of 182 DAYS the House met, you were in attendance for about 88 DAYS and absent for about 94 DAYS. All available records do not show your absence was ever excused as, in fact, you did not ask for any leave of absence.
3. TAKE NOTICE that unless you show “just cause” in writing to buttress each occasion of your said absence from the meetings of the House to the satisfaction of the Speaker and/or Presiding Officer between now and 14th September, 1981, your said absence shall be deemed to be without just cause. Consequently, I shall be left with no alternative than to set in motion the necessary machinery to give effect to the mandatory provisions of sub-sections (l)(f) and (2) of section 103 of the Constitution of the Federal Republic of Nigeria 1979.”

The respondent in that letter then set out the provisions of section 1 03(1)(f) and 103(2) of the Constitution of the Federal Republic of Nigeria 1979, hereinafter referred to as the Constitution.

Now, it is to be observed from paragraph 2 of the above quoted letter, written by the respondent, that he relied on the House Attendance Register to determine to number of days in which the appellant was absent from the meetings of the House. That register is kept by the respondent himself in his capacity as Speaker/Presiding Officer, for so he alleged in his counter-affidavit. In that counter affidavit, the respondent had said as follows:”

“4. That the Speaker/Presiding Officer is in charge of the House attendance register used in recording attendance at meetings and/or sittings of the House. The register is part of the domestic proceedings of the House.

5. That the plaintiff herein lost his seat at the end of 1980/81 Legislative year for absence from the meetings of the House without just causes for a period amounting in the aggregate to more than one third of the total number of days the House met.
6. That the House met for 182 days during the 1980/81 Legislative year.
7. That when the Speaker/Presiding Officer observed that the plain tiffs attendance at meetings fell far short of the statutory requirement, he wrote to him letter No. SH. 19/1 05 dated 18th August 1981 giving him 28 days within which to explain his absence.”

It is also to be observed from paragraph 3 of the letter quoted above, that the Speaker was aware that the provision of section 1 03(1)(f) of the Constitution is mandatory.

The appellant gave no reply to the letter of the respondent, which asked him to show cause in writing to explain each occasion of his absence from the meetings of the House within the period given him to explain the absence. This fact was also revealed in the respondent’s counter affidavit wherein he said:

“8. That when the Speaker/Presiding Officer received no reply from the plaintiff, he wrote to him Letter No. SH. 21/16 dated 15th September, 1981 informing him that his seat in the House had become vacant.”

That letter in fact did not say exactly that. As it is very important to the determination of this case especially as the language used by the Speaker therein formed the basis of the declaratory action, I will like to reproduce it here in full:

“TENURE OF SEATS OF MEMBERS”

My letter No. SH 19/105 of 18th August, 1981 in which I requested you to show cause why your seat in the Bendel State House of Assembly would not be declared vacant, refers. To the said letter there has been no reply. In other words, your said absence from the meetings of the House for 94 days during the 1980/81 Legislative Year was without just cause.

2. In consequence of the foregoing, the irresistible conclusion is that your said absence which amounted in the aggregate to more than ONE-THIRD of the total number of days during which the House met this legislative year was breach of the total number of days of the mandatory provisions of sub-sections (1)(f) and (2) of section 103 of the Constitution of the Federal Republic of Nigeria, 1979.

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.”

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.

You should immediately hand over all the properties of the House which came to your possession since October 2, 1979 to the Clerk of the House.”

Though the Speaker in the above quoted letter used the words “your seat . . . is declared vacant” he was nevertheless still aware that the provision of section 103(1)(f) of the Constitution is mandatory and that the vacation of the seat should start on 19th August a day following the date of the first letter wherein he first drew the attention of the appellant to the irregularity in attendance.

This last letter was written on 15th September, 1981 and on 5th October the respondent informed the House of Assembly that the appellant had lost his seat in the House as a result of irregular attendance. Following this information the House set up an Ad Hoc Committee to investigate the circumstances leading to this. The Committee found as a matter of fact that the appellant was absent from the meetings of the House for more than one-third of the total number of days the House met in the legislative year.

On 2nd November the appellant wrote a letter to the respondent wherein he made some representations as regards his attendance in the House.

He said:

“As a result of the Resolution of the House of November 2nd, 1981 on the above subject, I wish to make the following explanations.

“1. The Clerk of the House recorded 28 attendances for me during the period 2nd October 1980 to 9th February, 1981.

2. I recorded attendances in the Register for 89 times during the period 10th February to 18th August, 1981. My recorded attendances as stated in 1 and 2 amount in the aggregate to 117.
3. I would like to point out that I was present in the House on the 14th of January, 1981, but the Clerk of the House inadvertently recorded me absent (see Hansard of that day at page 6). (One day).
4. Besides, I recorded the following official absences, which the Honourable Speaker probably over sighted because of his very numerous engagements.

(a) On the 2nd and 3rd of October, 1980 I was on an official assignment in Kaduna while the House was in session. (Two days).

(b) On the 22nd of December, 1980, Honourable A. A. Irerua, Honourable L.P.O. Ologun and I represented Mr. Speaker at the matriculation ceremony of the students of the College of Education, Igueben. (One day).

(c) During the 1980-81 session I was in Court on three different occasions while the House was in session. I was a witness in a matter concerning my community. The days are 24/10/80; 14/11/80 and 28/7/81. (Three days).

(d) Between 11th of March and 3rd of April, 1981 I was in a team of Honourable Members who attended a legislative seminar in the United States of America. During this period, the House met on the 11th and 12th of March and the 1st April. (Three days).

(e) Finally, I was away with the kind permission of Mr. Speaker between the 21st of November and 9th of December, 1980 to carry out the funeral ceremonies of my late grandmother. The House met for 12 days within the period. (Twelve days).

In conclusion you can see that by my physical presence in the House and my absence with your permission both officially and for my private engagements I recorded a total of 139 days.”

By 30th November, the appellant, relying upon all these controversial issues of fact, filed this originating summons.

This, in short, is all the evidence, albeit by affidavits, before the court. It is obvious then that the appellant’s application for originating summons was based on disputed facts. Whether originating summons is appropriate or not in the circumstances will be discussed later in this judgment. To deal with the issues as have been raised in this case in both the two lower courts and this court, I can only, therefore, continue meanwhile with my discussion only on the assumption that the appellant applied the proper procedure.

The learned trial judge in dealing with the question of the interpretation of section 103(1) (f) of the Constitution formulated the issue raised before him, in regard thereof, as one to determine whether the Speaker of a House of Assembly could declare the seat of a member vacant. No doubt, he must have been influenced by the language employed by the respondent in his letter of 15th September. However, in my respectful view, to formulate the question for determination only on the words “declare the seat vacant” which were used in the letter would be a narrow view of the sum total of the real issue involved in this action. The learned judge said:

“Further, Mr. Alegbe contended that because he believed he had power to say whether a member’s absence was with or without just cause he also had power to declare a seat vacant. This again is a complete misinterpretation of section 103(1)(f) of the Constitution which states that a member of a House of Assembly shall vacate his seat in the House, if he, without just cause, is absent from meetings of a House of Assembly for a period amounting to an aggregate of more than one third of the total days during which the House meets in anyone year. If that interpretation was correct, then 111(1) of the Constitution would then not apply.”

The learned judge went on and held that it was obvious that it is only the court that can determine whether the seat of a member of a House of Assembly has become vacant. Still on this issue, the learned judge concluded:

“Coming to the matter before this court, I should not be understood as saying that when any of the issues raised in section 103 of the Constitution arises, the seat of a member cannot be declared vacant. It can only be declared vacant by the court or by the voluntary act of the person who is the member of the House of Assembly.”

By ‘voluntary act’ I must assume that the learned judge meant voluntary resignation by the member concerned. In other words, the member would have a choice in the matter of resigning or not resigning.

In regard to what would happen if a member has been absent for more than at least one-third of the number of days the House met in a year, it was the view of the learned judge that in such case, a dispute would arise if he fails to resign and then a party aggrieved by that failure of the member to quit might take the dispute to court for determination.

The learned judge granted the declaration and the injunction sought.

The Speaker appealed to the Federal Court of Appeal, which, hereafter, will be referred to as the Court of Appeal.

The appeal was heard by Nasir P., Ete, Agbaje, Okagbue and Nnaemeka-Agu JJ.C.A. and in a lucid judgment of the Court, delivered by Nasir P., the Court of Appeal, after reviewing the various submissions of learned counsel, would appear, with respect, to have been the issues involved in this case correctly, and therefore more clearly than the High Court. The Court of Appeal drew a distinction between the jurisdiction of the High Court, which is conferred upon it by section 237 of the Constitution, and the powers of the Speaker under section 103 of the Constitution.

Nasir P. said

“There is no doubt whatever as to the jurisdiction of the High Court under section 237 of the Constitution. There is also no doubt that any party aggrieved in respect of any matter falling within the provisions of section 103(1) can come to court if he so wishes. It is also not in dispute that no decision by any authority or person and no legislation by a House of Assembly can oust the jurisdiction of the competent court in respect of any matter falling within the provisions of section 237 of the Constitution.”

This seems to answer the question raised by the decision of the High Court. But the learned President having said this, proceeded to formulate what he considered to be the real issue in the case. He said, and again, very lucidly

“The issue is whether the House of Assembly or the Speaker or any presiding officer can tell the member who absented himself from the meetings of the House that by operation of the provisions of section 103(1)(f), the seat of the said absentee member has now become vacant and therefore the absentee member is no longer a member of the House of Assembly or must the House or the Speaker take the matter to court before telling the member that he has by his action forfeited his seat.”

The learned President then went on and interpreted section 103 of the Constitution. He held the view that what the court had been asked to do was to decide whether the Speaker could pronounce that the seat is vacant.

He rejected the decision of the High Court that the Speaker, in pursuance of the provision of section 103 of the Constitution, must necessarily come to court for a declaration that the seat is vacant. In so far as the responsibility of the Speaker goes in this regard, the learned President held

“It seems to me that the correct approach is for the Speaker, subject to the provisions of the Standing Orders of the House if any of this matter, to enforce the provisions of section 103 and if the member is not satisfied he can then come to court for a decision on the matter.”

The Court of Appeal allowed the appeal of the Speaker.

It is as a result of this that the appellant, who was dissatisfied with the decision of the Court of Appeal, has now appealed to this court. Four grounds of appeal were filed but as the con of the complaints of the appellant in all those grounds of appeal raises only the issue of the interpretation of sections 103 and 237 of the Constitution, it will not be necessary to set out the grounds in this judgment. It is sufficient, I think, to set out, if only for a proper appreciation of this case, the submissions of learned counsel as contained in the Briefs filed in this court and the oral submissions made to us.

Chief F.R.A. Williams (S.A.N.) learned Senior Advocate, who represents the appellant, has, in the Brief, which he filed, reduced, in an admirable manner, what he considers to be the main question for determination by this court, to a single sentence to wit

“Whether the Constitution confers upon the Speaker or the State Assembly any power to determine a question as to whether or not the seat of a member of the House of Assembly has become vacant.”

This however reduces the question, to what has been proposed by the High Court and not by the Court of Appeal. In so far as the High Court was concerned, the issue was interpreted to be the power of determination of a question as to whether or not the seat of a member of the House of Assembly has been declared vacant, whereas, in the Court of Appeal, the interpretation placed on the issue was wider and it was to determine the power of the Speaker when any of the events specified in section 103 of the Construction has happened.

A deep examination of the formulation by the learned President of the Court of Appeal of the issues on the one hand, vis-a-vis the formulation by the High Court and the learned Senior Advocates on the other hand, brings out the difference, not only in their approach to the case, by the two courts but also the difference in the approach by the Court of Appeal and by learned Senior Advocate. The portion of the decision of the Court of Appeal from where learned Senior Advocate has formulated the question he has placed before us for determination is as follows

“It seems to me that the correct approach is for the Speaker to enforce the provisions of section 103 and if the member is not satisfied, he can then come to court for decision on the matter.” – as per Nasir P used the words “enforce the provisions of section 103 in relation to the Speaker while he used the word “decision” in relation to the court. But in his submission in his Brief, in furtherance “of the main question for determination.” Chief Williams has interpreted this passage in the judgment of Nasir P. as follows-

“It is clear from the . . . passage that the learned President takes the view that the Speaker is conferred with the power ‘to enforce the provision of section 103’ of the Constitution by deciding whether or not the seat of a member of the House has become vacant.”

The “enforcement” is by taking a decision whether or not the seat has become vacant.

In the sense, learned Senior Advocate has equated the enforcement of the provision of section 103 of the Constitution by the Speaker with taking a decision by him that the seat of a member of the House has become vacant, in other words, declaring the seat vacant; whereas, in so far as the Court of Appeal is concerned, enforcement of the provision of section 103 of the Constitution is for the Speaker whereas taking a decision is for the Court, and they are two separate exercises. As it will be shown later, in so far as section 103 of the Constitution provides for the vacation of a seat by a member of the House of Assembly on the happening of some events, the Speaker does not need to take any decision before enforcing the provisions of the section. The importation of the element of taking “decision” into the action of the Speaker and making it the equivalent of his “enforcing the provisions of section 103” is more than mere semantics. I will however come back to this point later.

Meanwhile, to continue with the submissions of learned counsel, Chief Williams conceded in his Brief that but for the express provisions contained in section 237 of the Constitution, a sovereign legislative House, such as the Bendel State Assembly, would possess inherent powers to determine who its members are. Sections 220(1)(f) and 213(1)(e) of the Constitution, he said, confirm the clear intention of the Constitution to transfer the inherent powers of the legislature to the court.

Chief Williams, while still on this issue of jurisdiction, submitted that the Constitution has transferred the inherent powers of the legislature and of the Speaker to the special jurisdiction of the State High Court. In which case, the House of Assembly and the State High Court cannot have concurrent jurisdiction especially as the jurisdiction conferred upon the State High Court is to the exclusion of any other court.

Learned Senior Advocate then referred to section 33 of the Constitution which provides for fair trial and pointed out that the Speaker cannot be both an accuser of a member under section 103(1) of the Constitution and at the same time be the judge.

With regard to the interpretation to be placed on section 103 of the Constitution itself, Chief Williams made a most important concession, which is worthy of note. He said

“Section 103 of the Constitution spells out the events upon the happening of which, the seat of a member of a legislative House is terminated. Such termination is mandatory and automatic.”

I am in respectful agreement with this submission. What learned Senior Advocate was saying, in effect, and I am in full agreement, is that the provision of section 103(1) which says

“A member of a House of Assembly shall vacate his seat in the House…”

is mandatory and not merely directive. The word “shall” in that enactment means “must” and not “may”. It is not a matter for an option.

The respondent’s view is that by virtue of the provision, that is, section 103 of the Constitution, the seat of the appellant in the House became vacant before the Speaker wrote the letters, which have now formed the subject matter of this action. There does not seem to be any disagreement between the parties as regards the interpretation to be placed on that provision.

Another submission of Chief Williams, with which I agree, is that section 237 of the Constitution which stipulates the jurisdiction of the competent court in a matter where the seat of a person in a legislative house has become vacant is only called into play when there is dispute about the event stipulated.

Now, as it seems to me that in so far as setting out the question for determination in this case is concerned, both the High Court and the Court of Appeal are at variance, the most important preliminary point for me to determine therefore, is what I consider to be the real question in controversy between the parties.

I have earlier in this judgment set out what the two courts considered as the question for determination in the case. I have examined the facts of the case, as contained in the various affidavits filed in the court, in detail. I have also given a careful consideration to the provisions of the Constitution for interpretation and the various submissions of learned counsel. I am not in any doubt whatsoever that the real question for determination is not as the High Court saw it that is, whether or not the Speaker can declare the seat of a member of a legislative House vacant but as the Court of Appeal put it, that is, whether or not the Speaker can enforce the provision of section 103 of the Constitution by informing a member of a legislative house that his seat has become vacant. The important issue to resolve will be the correct interpretation to be placed on, and the scope of, section 103 of the Constitution, particularly the words-

“A member of a House of Assembly shall vacate his seat in the House.”

One would thereafter define the scope of the powers, if any, of the Speaker or of the legislative house under that section, that is section 103, bearing in mind the provisions of sections 237 and 111 of the Constitution.

I have not lost sight of the fact that though the respondent said in one of his counter affidavits-

“That when the Speaker/Presiding Officer received no reply from the plaintiff, he wrote to him informing him that his seat had become vacant”

the letter referred to in that affidavit in fact contained the following passage-

“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.

The contents of this letter should not be permitted to becloud the real issue in this case. Whatever the respondent wrote could not be used to interprete the provisions of the Constitution. And the mere fact that .the respondent used the words “is declared vacant” cannot influence the interpretation to be placed upon section 103 of the Constitution, particularly the words “shall vacate.” Facts of a case are never used to curtail the legal interpretation of a statute, in this case, the Constitution nor would facts tailor the law into a narrow jacket. It is after the interpretation of such a provision has been made on the principles of law, that the interpretation is applied to the facts of the case.

In this case therefore, the provision of section 103 of the Constitution will be interpreted, the legal scope of the powers of the Speaker there under will be examined and all these will be applied to the facts of the case. It is only in such application that the words “is declared vacant” used by the Speaker in his letter become relevant.

I may say here that this is not the first time this type of issue has arisen in this country. In Chike Obi v Ibrahim Jalo Waziri (1961) 1 All N.L.R. Part 2371 under the Constitution of the Federation of Nigeria contained in the second schedule to the Nigeria (Constitution) Order-in-Council, 1960, Chike Obi was elected as a member of the House of Representatives. The allegation was that he resigned his seat in the House and on or about the 4th April 1961, the defendant declared Chike Obi’s seat vacant on the ground that he had resigned it, and ordered him to withdraw and vacate his seat. Though it was common ground between parties that the Speaker had declared Chike Obi’s seat vacant, de Lestang C.J., in the Lagos High Court held that a decision that the Speaker was or was not competent to do so was tantamount to a decision that the seat was or was not vacant as the case may be. Incidentally, it is the same Senior Advocate representing the appellant in this case that was the counsel that appeared for Chike Obi in that case where the issue was resolved as I have stated above.

What has to be determined in this case from all the facts available is, with respect, not as Chief Williams has put it

“Whether the Constitution confers upon the Speaker or the State Assembly any power to determine a question as to whether or not the seat of a member of the House of Assembly has become vacant”

for in my respectful view consequent upon the concession made by learned Senior Advocate himself, that the termination of a seat under section 103 of the Constitution is mandatory and automatic, there would no longer be any question for the Speaker to determine in regard to the seat of a member which has already become automatically and compulsorily vacant. What is left as a question, is what the power of the Speaker, or the House, is, upon the event of such automatic and compulsory termination.

It is for this reason that I am in respectful agreement with the formulation of the issue by the Court of Appeal when Nasir P. said-

“The issue before us in this particular appeal is whether the Speaker can pronounce that the seat (sic of the appellant) is vacant.”

In other words, it is not a determination of the question as to whether or not the seat in question has become vacant but a pronouncement to the effect that the seat has already become vacant. If one requires any further explanation of the formulation of the question by the Court of Appeal one only needs to examine what the learned President of the Court said earlier before formulating this question. He has held that the issue is either

“(1) the House of Assembly or the Speaker or any Presiding Officer can tell the member who absented himself from the meetings of the House that by operation of the provisions of section 103(1)(f), of the Constitution the seat of the absentee member has now become vacant and therefore the absentee member is no longer a member of the House of Assembly; or

(2) That the House or the Speaker should take the matter to Court before telling the member that he has by his action forfeited his seat”

I can hardly improve on this formulation of the issues by the Court of Appeal and I respectfully adopt it as a correct presentation of the issue arising in this case.

Now, notwithstanding the concession by learned Senior Advocate in his Brief about the automatic and mandatory termination of the seat of a member upon the happening of any of the events spelt out under section 103, I will proceed to interprete that provision.

Section 103 of the Constitution provides

“(1) A member of a House of Assembly shall vacate his seat in the House if

(a) He becomes a member of another legislative house;

(b) Any other circumstances arise that, if he were not a member of that House, would cause him to be disqualified for election as such a member;

(c) He ceases to be a citizen of Nigeria;

(d) He becomes President, Vice-President, Governor or a Minister of the Government of the Federation or a Commissioner of the Government of a State;

(e) Save as otherwise provided by this Constitution, he becomes a member of a commission or other body established by this Constitution or by any other law;

(f) Without just cause he is absent from meetings of the House of Assembly for a period amounting in the aggregate to more than one-third of the total number of days during which the House meets in any year;

(g) Being a person whose election to the House of Assembly was sponsored by a political party, he becomes a member of another political party before the expiration of the period for which that House was elected;

Provided that his membership of the latter political party is not as a result of a division in the political party of which he was previously a member or of a merger of 2 or more political parties or factions by one of which he was previously sponsored.

(2) A member of a House of Assembly shall be deemed to be absent without just cause from a meeting of the House of Assembly unless the person presiding certifies in writing that he is satisfied that the absence of the member from the meeting was for a just cause.”

I think the language of the provision is clear and unambiguous. It says, if any of the events in the section occurs – a member of a House of Assembly shall vacate his seat in the House. In my view, the section means what it says. What does the expression “shall vacate” in the section mean It means that upon any of the events specified in section 103 of the Constitution happening, the seat of the member becomes vacant. Again, as Chief Williams has rightly conceded in his Brief, the termination of the seat is mandatory and automatic.

The word “shall” used in the section must therefore be imperative and not directive. It means “must” and it gives the member who is affected by the provision no choice of decision. In other words once any of the events happens, such member no longer has any decision to make. His tenure of office has become automatically at an end. It ceases by operation of law and it does not require any further action in the matter.

It must be realised that section 103 of the Constitution deals with the tenure of office of members. For one thing, and for whatever this is worth, the marginal notes to the section indicate this. Though in modem times marginal notes do not generally afford legitimate aid to the construction of a statute, at least it is permissible to consider the general purpose of a section and the mischief at which it is aimed with the marginal notes in mind. (See Stephens v. Cuckfield R.D.C. (1960) 2 Q.B. 373 at 383.

But more than the marginal notes is the fact that to construe the words of the section as I have stated above, and as has also been suggested by Chief Williams, especially having regard to the contract in which they have been used, as automatically bringing the tenure of the seat of a member to an end, would to my mind, and with great respect, accord with the normal English usage. The word “shall” meaning “must” indicates that no option is contemplated. An imperative language is used when a clear duty is to be executed while a permissive language is used when there is a common understanding that the matter is to be optional. In my view, the word “shall” here cannot be interpreted to import a motion of permissive language. If the Constitution intends a member to have a, choice in the matter the permissive word “may” would have been used.

I have tried to find out the effect of similar use of the words “shall vacate” in other jurisdictions. I have some aid from the Indian Constitution. In India, Article 94 of the Constitution provides-

“A man holding office as Speaker or Deputy Speaker of the House of the People-

(a) Shall vacate his office if he ceases to be a member of the House of the People.

(b) May at any time, by writing under his hand addressed, if such member is the Speaker to the Deputy Speaker, and if such member is the Deputy Speaker to the Speaker, resign his office.”

Durga Das Basu in his Commentary on the Constitution of India 4th Edition Volume 2 treated the words “shall vacate” in clause (a) of Article 94 supra as meaning “has already become vacant.” This came out in his consideration of the question of resignation as stipulated in clause (b) thereof (supra). Basu, commenting, said-

“A nice question, however, arises, as to how a Speaker is to resign his office if the Deputy Speaker’s office has already become vacant by reason of any circumstances enumerated in clause (a)-(b)”.

Basu here in that comment has treated the words “shall vacate” in clause (a) (supra) as meaning that the office has “already become vacant.” Basu went on in the Commentary and said-

“As the office of the Deputy Speaker is ‘vacant’ it follows that there is no Deputy Speaker for the time being . . . until a new Deputy Speaker is appointed . . . the conditions of vacation of the office having being codified in the present Article of the Constitution.”

Again, Basu, in this comment, is treating the words “the Speaker or Deputy Speaker shall vacate” as meaning that their seats are already vacant.

It is, I think, in this vein that section 69 of the India’s Representation of People Act 1951 equates the word “vacation” with the words “become vacant.”

Section 69 provides

“Vacation of seats by persons already members of one House on election to another House of Parliament:

(1) If a person who is already a member of the House of the People and has taken his seat in such House is chosen a member of the Council of States his seat in the House of the People shall, on the date on which he is so chosen become vacant.”

I am of the view that it is also in similar vein, that the draftsman of the Nigerian Constitution has used the words “vacate” in section 103 in regard to the tenure of office of members of the House and the word “vacant” in section 111 of the Constitution, which provision deals with the power of the National Assembly as to the determination of certain questions in court. The questions for such determination as stated by the provision, that is, section 111(1)(a) are in respect of –

(i) any person has been validly elected as a member of a House of Assembly;

(ii) the term of office of any person has ceased;

(iii) the seat in a House of Assembly of a member of that House has

become vacant.”

Surely, (ii) and (iii) above, when the draftsmen uses the words “has ceased” and “has become vacant,” can only have in mind “vacation of a seat” as specified in section 103(1) of the Constitution. And it is therefore to this extent that section 111 treats the office under section 103 as having already become vacant and the term of office of the holder as having already ceased on the happening of any of the events specified under section 103(1). With respect, if section 111 is in anticipation of the holder of the office under section 103(1) as being a person who has a choice in the matter of vacating his seat, the language of section 111 would have been different. Sub-paragraphs (ii) and (iii) of paragraph (a) of section 111(1) would have read something to the following effect

“(ii) The term of office of any person shall thereafter cease” – that is shall cease in the future

(iii) The seat in a House of Assembly of a member of the House shall thereafter become vacant” – that is shall become vacant in the future.

See also section 127(2) and 165(2) of the Constitution which use the words “shall vacate” to indicate the automatic termination of the tenure of the office of the President and the Governors respectively after a four year term. With respect it will make nonsense of the Constitution to interprete those words as giving discretion to the President or the Governors to quit or not after serving a four-year term.

There is a world of difference between seeking a declaration which raises a question whether the seat of a member in the House of Assembly has become vacant by operation of law and seeking a declaration determining whether it is the Speaker that has declared the plaintiffs seat vacant. I do agree that the declarations are matters for the court, yet, while the first declaration imports the element of an examination of the facts which have, under section 103(1) of the constitution, amounted to the seat becoming vacant by operation of law, the other questions the competence of the Speaker to declare the seat vacant. This also was the main point for decision in Chike Obi v. Ibrahim Jalo Waziri, (1961) 1 All N.L.R. (Part 2) 371 (supra). The issue arose as one of jurisdiction of which court is competent in either declaration. Apart from that, the facts are a bit similar to the instant case. Section 48 of the Constitution of the Federation of Nigeria-Second Schedule to the Nigeria (Constitution) Order-in-Council 1960-vests jurisdiction for the determination of questions respecting vacation of seats by member of Parliament in the “competent High Court” which, in the Chike Obi case, was the High Court of Eastern Region and not the High Court of Lagos where the action was brought. I have already, while making reference to this case, earlier in this judgment, explained that it was a common ground between the parties in the case that the Speaker had declared the plaintiffs seat vacant. But the Court (de Lestang C.J.) Upheld the submission of the learned counsel for the Speaker in that case that what the declaration and injunction sought, raised, was the question whether in the House of Representatives the seat of the member in that House has become vacant. That being the case, it was the “competent High Court” under section 48 of the 1960 Constitution, that is, the High Court of Eastern Nigeria, that had jurisdiction and not the Lagos High Court which would have had jurisdiction had the declaration sought been held to amount strictly to a determination of the competence of the Speaker to declare the seat vacant.

It is very interesting that in the Chike Obi case, it was after the Speaker had first claimed that Chike Obi had resigned his seat in Parliament, just as the Speaker in this case has claimed that the event under section 103 has happened, and treated the seat as vacant, also as in the case, and prevented Chike Obi from taking his seat in Parliament, again, also as in this case, that Chike Obi brought the action in the Lagos High Court in which the issue of jurisdiction was raised, and the issue was treated as one to the effect that seat of Chike Obi become vacant.

In the present case, the action of the Speaker, as in the Chike Obi case, should also be taken as regarding the seat of the appellant as vacant and that the Speaker has only informed the appellant to that effect. Again, as in the Chike Obi case, the appellant once aggrieved by that action of the Speaker, that is the action in treating his seat as vacant and excluding him from the House, could take action in the competent court as he has done. The only thing is, and this is of extreme importance, he should take the proper action. That action could only be one to dispute the issue of the number of days he was alleged to have attended the House and not an action, like the present one, questioning the competence of the Speaker to declare the seat vacant. In bringing that proper action the appellant, certainly, cannot come by way of originating summons. This I have earlier indicated in this judgment, and I will deal with it more fully later.

Now, I have already held that where an event has happened whereby the seat of a member of a Legislative House has become vacant, the member has no longer a decision to make in the matter as to whether to quit or not. His seat is already vacant. Equally, it does not admit of any further determination by the Speaker as there is nothing for him to determine. Again the seat having become vacant by operation of law, there is nothing further for anyone to do to make the seat vacant under section 103(1) of the Constitution.

The next question would be, what then are the powers of the Speaker in such circumstances, that is, after the happening of one of the events in the section There will be cases

(1) where there is no dispute following such automatic termination of the seat; and

(2) where there is a dispute following each termination.

(i) Where there is no dispute

The Speaker can, after the automatic ceasing of the term of the member following the happening of any of these events and in pursuance of his enforcement of the Constitutional provision inform the member concerned either verbally or in writing as to the state of affairs. He may do this before the member attends the next sitting of the House after the event, or he may wait and watch the reaction of the member to the situation, which has occurred. If the member attends any meeting of the House despite the happening of any of the events the Speaker may call his attention in the House to the fact that his seat has become vacant. He may even decide to write him a letter to that effect. Or he may not. He may not even advise him in any manner that his seat has become vacant. He may, subject to the Standing Orders of the House, treat him as a “stranger” in the House and have him removed by the sergeant-at-arms. He may stop his emoluments and such other perquisites attaching to his membership of the House. Though an action by the Speaker, without a previous warning to the member, to get him removed by the sergeant-at-arms may be a bit untidy, I think the Speaker or any Presiding Officer of the House will be within his right to do this. After all, under section 89 of the Constitution the Speaker, who under section 86 is a creature of the Constitution, has a duty to preside at the sittings of the House of Assembly and under the common law, any person presiding at a meeting is in charge and full control of the conduct of the meeting. If the member concerned is not satisfied with the action of the Speaker for the reason that none of the events specified under section 1 03(1) has happened, then a dispute has arisen between him and the Speaker and he has every right to seek redress in the competent court.

Apart from the Speaker, any member of the House or any member of his constituency or even of his political party could inform the member that his seat in the House has become vacant. A self respecting member will not need any of these as he would have on the happening of those events, ceased to attend the House, nor would he claim the entitlements, financial or otherwise, to which he would have been entitled had his seat not become vacant.

But not all members are self-respecting.

Now, the Speaker and the House notwithstanding their power to enforce the Constitutional provision may choose not to take any of the actions I have enumerated above. The point is, while the Speaker or the House may seek a court action he does not necessarily have to seek such action before enforcing the provision of section 103 of the Constitution by excluding the member from the House or informing him not to attend meetings of the House. For indeed, it is the person who is aggrieved that should seek a remedy in court. If the member is aggrieved by the action of the Speaker, then he seeks a remedy in court. There is no legal responsibility whatsoever in the Speaker to seek a court declaration before taking the necessary action, as discussed under section 103(1) of the Constitution.

The Constitution of the Federal Republic of Nigeria 1979 is not intended to be a merely academic model Constitution. It is a pragmatic Constitution made for Nigerians, by Nigerians and by a process of Constitution making which is expected to have benefited from the experience of this country under the previous Constitutions and to provide, as much as possible, a panacea for the ills of the past.

This country has had a long and unhappy history of people who never liked to quit office honourably. Such epithets as “sit tight” and “carpet crossing” were of common usage under the previous Constitutions. There were also legislators who chose to be absentee legislators. Section 103 is provided to meet this, and a person presiding should be able to take action following the effect of the provision. If after the event under section 1 03(1) of the Constitution has happened and the Speaker before enforcing it took the trouble of bringing this to the notice of the erring member and in fact gave that member an opportunity of denial which the member made use of, and the Speaker will be expected to go to court before giving effect to the Constitutional provision that has rendered the seat of the member vacant, the whole purpose of section 103(1) will be defeated.

This leads me therefore to the second limb of my discussion.

(ii) Where there is a dispute:

The dispute can only be in regard to the facts or proof of the facts constituting the event which is alleged to have happened under section 103. For the Speaker can take all those actions, which I have stated, he could undertake, while discussing his powers under the sub-heading where there is no dispute. Now, where there is a dispute, of course, the matter must necessarily be determined by the court. I would like to emphasise here that the stage of such determination by the court would only be when the Speaker had taken an action in regard to the issue and the member reacts to such action taken by the Speaker. Such determination by the court is in regard to the stated dispute thus arising. To this extent, I would agree with the submission of Chief Williams that where there is no dispute about the event stipulated the provisions of section 237 do not arise. Section 237 of the Constitution deals with the original jurisdiction of the competent High Court in regard to the term of office of any member of a Legislative House.

Under the provision, there is no doubt whatsoever that the High Court of a State or the Federal High Court, in appropriate circumstances, has jurisdiction to hear and determine

(i) Whether any person has been validly elected to any office or to the membership of any legislative house; (an issue of fact) or

(ii) Whether the term of office of any person has ceased or the seat of a person in a legislative house has become vacant (another issue of fact).

Having held that the words “shall vacate” in section 103 of the Constitution means that the seat of the member is automatically vacant, the next important thing is to determine when a dispute has, under the section, arisen. That is as to the facts that have amounted to the event under section 103(1). But before examining that issue, it is to be noted that section 237 of the Constitution, which sets up the competent court, uses the words “has ceased” and “has become vacant” when making reference to the ceasing of the term of office of a member. There is no provision therein, also as in section 111 of the Constitution, for the exercise of the jurisdiction of the court on a choice on the part of the member to vacate or not to vacate his seat in the future. It is the picture of “having ceased” or the seat being “vacant” that, is painted by the section, thus making the provision consistent with the provision of section 111 of the Constitution.

And when a dispute arises, I have no hesitation in holding that it is the constitutional prerogative of the court to determine whether or not a member of a House of Assembly has in fact vacated his seat. It is the clear responsibility of the court which it does not share with any other body to act as the interpreter of the Constitution, and in this case, the Constitution stipulates the competent court as the interpreter even to the exclusion of any other court. The competent court is one of the courts established under section 6 of the Constitution which confers the judicial powers of the country in various courts.

The learned President of the Court of Appeal also had no doubt about the powers of the court.

“There is no doubt whatever,” he said, “as to the jurisdiction of the High Court under section 237 of the Constitution. . . It is also not in dispute that no decision by any authority or person and no legislation by a House of Assembly can oust the jurisdiction of the competent court. . .”

Now, to go back to the determination of when a dispute arises and who is aggrieved by such dispute. This again calls for a close examination of section 103 of the Constitution.

I have stated the mischief aimed at by this provision as one to deal with what has been known as political carpet crossers and unscrupulous politicians who possess lust for office. Perhaps it would be best to go through some of the provisions of section 103 and examine the different events stipulated there under before setting down a principle, which governs all of them.

Paragraph (a) of sub-section (1) deals with a member who becomes a member of another legislative house. Once he is elected to other legislative house his membership of the first automatically ceases. If he continues to attend the first house, he is certainly a “stranger” in that house and the Speaker of that house can stop him as I have earlier discussed. If he disagrees with the action of the Speaker, a dispute has arisen and he can seek redress under section 237. I will say again with emphasis that in my respectful view, in so far as the Speaker is concerned, he does not necessarily have to go to court to seek the determination as to whether or not the seat of the member has become vacant. Once the Speaker knows of the election of that member to the other house, he is properly within his right to treat the seat of the member as vacant. However, if he is in any doubt for any reason whatsoever, he may seek the determination of the court. The issue is not what he may do but what he necessarily must do. The fact that a member whose seat has become vacant becomes incorrigible, does not necessarily create the dispute in so far as the Speaker is concerned. He has powers as the President or Chairman of the meetings in the House. And so what the Speaker, who is satisfied of the vacation of the seat of a member does in sending the member out, is not declaring his seat vacant. He is merely acting in regard to a seat, which has already become vacant.

Paragraph (f) could be classified with paragraph (e) as it seems to me that the circumstances are a bit similar. The instant case arises under that paragraph. But a marked difference between paragraph (a) and paragraph (f) is the added advantage to the Speaker/Presiding Officer who, by virtue of sub-section (2) of section 103, which provides-

“A member of a House of Assembly shall be deemed to be absent without just cause from a meeting of the House of Assembly unless the person presiding certifies in writing that he is satisfied that the absence of the member from the meeting was for a just cause.”

is deemed to have peculiar knowledge as to whether or not a member has been absent without just cause. And the test of that peculiar knowledge is subjective. Once the Speaker, who is the repository of the knowledge of the attendance of a member, is satisfied that the event prescribed in paragraph (f) has happened, it stands to reason that he should be at liberty to treat the member’s seat as having become vacant and expel such member who has, by operation of law, become a stranger in the House, without the Speaker first taking the matter to court. If a member whose seat has become thus vacant chooses to ignore the situation and attend the House, he should be prepared to expect any action the Speaker or the Presiding Officer would deem necessary in the circumstance.

I think, with respect, this accords with common sense. To be otherwise is to render the provision of sub-section (2) of section 103 nugatory.

What I have said in relation to paragraph (a) and (f) will apply to all the other paragraphs in sub-section (1) of section 103. In paragraph (c) for instance if the member who has been prevented from taking his seat, because he has ceased to be a citizen of Nigeria, is aggrieved, there is a dispute between him and the Speaker which he could ask the court to determine. In paragraph (d) a member who becomes the President, Vice President, Governor, Deputy Governor or a Minister of the Government of the Federation or Commissioner of the Government of a State, has his seat in the House become automatically vacant, and the Speaker should not be expected to seek a court declaration before excluding such member from the House, while in paragraph (g) once a member of the House affected by the paragraph has crossed from the political party that sponsored his election to the House to another political party his seat is automatically vacant and it is within the right of the Speaker to exclude him from the House, also without necessarily going to court first. Such member, if aggrieved by the action of the Speaker, could go to court as a dispute has then arisen between him and the Speaker.

One principle that goes through all the paragraphs of the sub-section is that though the seat becomes vacant automatically on the happening of any of the events in the sub-section that by itself does not constitute a dispute. A legal dispute will only arise if one party’s dissatisfaction with the other party’s action will necessarily warrant a court intervention. There can be no exclusion of the court’s jurisdiction. The court’s jurisdiction is intact. The only issue here is the stage a person aggrieved seeks the jurisdiction of the Court.

In Powell v. Mc Cormack 395 U.S. 486, Powell was excluded from the 90th Congress on grounds that he had asserted an unwarranted privilege and immunity from the process of a state court where he was charged with wrongfully diverting House funds for his own use. He was also accused by the Congress of making false reports on the expenditures of foreign currency.

Article I Clause 2 of the Constitution of the United States provides

“No person shall be a Representative who shall not have attained to the age of twenty-five years and been seven years a citizen of the United States, and who shall not, when elected, be an inhabitant of the State in which he shall be chosen.”

The Supreme Court of the United States, though it leaned against the expulsion of the member, recognised the power of Congress, which it has under Article 1 Clause 5, to judge the qualification of its members. The Court also said further that the power is limited to the standing qualifications prescribed in the Constitution. In other words, while Congress could act within the disqualifications prescribed by the Constitution and exclude a member from the House who suffers any of those qualifications prescribed by the Constitution it could not add more to the disqualifications, and use such added disqualifications as a basis of excluding a member from Congress. Similarly, in the instant case, once the Speaker or the House acts within the confines of section 103, either of them can exclude a member subject of course to that member’s right to challenge the exclusion in court. The Speaker or the House could not add to the disqualifications under section 103 to exclude any member.

It is true that in some cases the power of the Speaker in excluding members from the House could be abused. Chief Williams made a most pertinent point in his Brief when he said

“Moreover it is not inconceivable that the Speaker or the House may decide to turn a blind eye to a member of the majority party (or of a House where 100 per cent of the members belong to one party) where such member loses his seat on any of the grounds specified under section 103. It is even conceivable that the Speaker or the House perversely decides in favour of the member concerned.”

This is true. Indeed there could be cases where both the Speaker and some members decamp as a group from their original political party to another political party. I do not think that this defeats the argument that by virtue of section 1 03(1) of the Constitution such seats become automatically vacant and the Speaker as the Chairman of the House in the conduct of the meetings of the House could prevent strangers from being in the House. Once it is appreciated that after the happening of any of the events under section 103(1) of the Constitution there is no more any decision for anyone to take, then the court which takes a decision on the suit by any one aggrieved by the action of the’ Speaker, is not interfering with any internal affairs of the legislature, as, contrary to the submission of learned counsel, there has been no “initial decision” by the Speaker or the legislature. Again, and this is important, the action by the Speaker or the House is never a substitute for an action in court as the Speaker’s or the House’s enforcement of the provision of section 103 can never amount to a usurpation of the jurisdiction of the court.

I have said earlier in this judgment that the application for originating summons was based on disputed facts before the court. While the Speaker, who should know the facts, from the House of Assembly Register, held the view that the appellant had been absent from the House for more than one-third of the number of days the House met in the year, the appellant disputed it.

This then takes me back to the very important question of the nature of the dispute that is anticipated by section 103 of the Constitution and then onwards to the form the action in court should take. Section 103(1) of the Constitution stipulates some events. It is either one or the other of these events has, as a matter of fact, happened or not. The dispute arising under section 103(1) can only, as I have earlier indicated, be as to whether or not the facts available will amount to the happening of any of those events. As the termination of the tenure is immediate and automatic no one, except the totality of the facts, is responsible for the declaration of the vacancy of the member.

This being the case, it is my respectful view that the action in this case, right from the beginning, is misconceived. For the issue before the court, arising from all the affidavits is to resolve the dispute as to whether or not the appellant has in fact been absent for more than one-third of the sittings of the House in that year.

This is certainly not a dispute to be resolved by way of originating summons. It should have taken the form of a writ, it being a dispute of the facts of the case.

In delivering the judgment of the court in the case of National Bank of Nigeria v. Alakija and Anor. (1978) 2 L.R.N.78 I had cause to review the whole history of originating summons and then held-

“originating summons should only be applicable in such circumstances as where there is no dispute on questions of fact or [even] the likelihood of such dispute.” (p.86 ibid).

Originating summons is reserved for issues like the determination short questions of construction and not matters of such controversy that the justice of the case would demand the settling of pleadings.

In the instant case, there is obviously a serious dispute as to the facts. The Speaker held the view that the appellant was absent for more than a third of the whole session without any excuse for the period of the absence. The appellant, for his part, referred to incidents, which if proved, would be a complete answer to the Speaker’s allegation (see the affidavits, counter-affidavits and in particular the appellant’s letter to the Speaker dated 2nd November, wherein he alleged an attendance amounting to 139 days as against the Speaker’s allegation of attendance for 88 days). This dispute, which raises an issue of fact, must be resolved.

It can only be resolved by a proper trial of the issue wherein the settling or pleadings apart from resolving the issues of fact is necessary. Surely such a suit cannot qualify for the procedure by originating summons. It is a suit that can only be commenced by writ of summons, for, as Cotton L.J. said in Re Giles, Real and Personal Advance Co. v. Michell (1890) 43 Ch.D. 391, a decision which was approved by this court in the National Bank of Nigeria v. Alakija case (supra),

“originating summons is intended to enable simple matters to be settled by the court without the expense of bringing an action in the usual way, not to enable the court to determine matters which involve a serious question…

A dispute, the nature of which we have in the instant case, will qualify as hostile proceedings, in respect of which Ademola C.J.N. in Re Doherty, Doherty v. Doherty (1968) N.M.L.R. 241 warned against the use of originating summons. Again, in the instant case, the letter of appellant, written on 2nd November, 1981 disclose facts, which, to reach a just decision in the case, must be thoroughly gone into. Evidence will certainly have to be led and the trial court would have to make definite findings of fact. Indeed, it is a case that may involve determination of the credibility of witnesses. In other words, we have a case where there is likelihood of substantial dispute of contentious facts. See National Bank of Nigeria v. Alakija (supra) p.90 ibid.

On this alone, the action of the appellant in the High Court should have failed. The appellant brought the wrong action by a procedure, which is not meant to resolve the facts in support. If the mode of procedure by originating summons had been raised in limine, I would have had no cause to discuss all the constitutional issues which I have so far discussed as they would have merely raised academic issues which this Court will not pay attention to. But, as matters stand, the constitutional issues having been raised throughout the three courts, that is, the High Court, the Court of Appeal and this Court, I am obliged to give a decision on them.

But assuming, as I have done all along, that the action as it is framed and in the form it has been presented to the court, is proper, the appellant should still fail. It is trite law that Declaration and Injunction are discretionary remedies. If, as it should be rightly held, the Speaker cannot declare the seat of a member of a legislative house vacant, this being the role preserve of the court, once it is appreciated, as Chief Williams has rightly conceded, that the seat, on the happening of any of the events specified in section 103(1) of the Constitution, becomes automatically and compulsorily vacant, then the court after agreeing with the appellant and holding that the Speaker has no right to declare the legislative seat vacant, will still be obliged to refuse the exercise of its discretion to grant the discretionary prayers sought. These are prayers of one who has already lost his seat by operation of law and who would not benefit by the declaration. There is no longer anything to protect by such declaration nor is there anything to gain by an injunction, as no injury has been suffered by or threatened to such member. The Court will not make futile orders.

Upon all these considerations therefore, I hold that the appeal fails and it is hereby dismissed. The judgment of the Federal Court of Appeal is hereby affirmed. The respondent will have costs of this appeal assessed as N300.00.

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SC.94/1982