Rivers State: Court Pronouncement Not Necessary In Vacation Of Seat Of A Defecting Lawmaker In Nigeria

Source: Sylvester Udemezue Esq.

1️⃣. *SECTION 109(1)(G), CFRN, 1999 provides:* "A member of a House of Assembly shall vacate his seat in the House if -

being a person whose election to the House of Assembly was sponsored by a political party, he becomes a member of any other 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 two or more political parties or factions by one of which he was previously sponsored;"

2️⃣. *SECTION 109(2), CFRN, 1999:* "The Speaker of the House of Assembly shall give effect to subsection (1) of this section, so however that the Speaker or a member shall first present evidence satisfactory to the House that any of the provisions of that subsection has become applicable in respect of the member"


4️⃣. On 14 December 2023, *"FUBARA-BACKED RIVERS SPEAKER DECLARES SEATS OF 27 DEFECTED LAWMAKERS VACANT"* (published in premiumtimesng)

5️⃣(a). I can't see anywhere in the Constitution where Court has any role to play before the seats of defecting lawmakers could or would become vacant;

(b). *Meanwhile, the following appear to be not in doubt:*

(i). 27 lawmakers had defected to another party. On 11 December 2023, *"27 RIVERS PDP LAWMAKERS DEFECT TO APC"* (See: punchng.com)

(ii). There was no division reported at the national level of their own political party (PDP) as of the time and date they defected to the APC;

(iii). By virtue of an order of a competent court of law, Edison Ehie was the Speaker as of 13 December 2023 when the seats were declared vacant bt the Speaker, Hon Edison Ehie.

(iv). As the speaker, Hon Edison Ehie then declared vacant, the seats of the 27 members who had defected to the APC.

(v). HON EDISON EHIE as the speaker reportedly later wrote the INEC to conduct elections to fill the vacant seats. *"RIVERS SPEAKER WRITES INEC, SEEKS CONDUCT OF FRESH ELECTIONS IN 25 CONSTITUENCIES"*

(See: leadership.ng)
(vi). Whether INEC listened to conduct bye-elections or not, and pending when INEN would comduct the bye-elections, the declaration by the speaker, based on the defection, appears to have rendered the seats vacant. Further, the Speaker had done what he should do by notifying INEC and inviting INEC to conduct fresh elections to fill the existing vacancies. The ball is now in INEC's court. Meanwhile, the businesses if the House of Assembly have to proceed with the remaining members of the House, pending when INEC conducts the bye-elections. See Section 102 of the Constitution.

(vii). Until today that declaration by speaker Ehie has not been reversed by the speaker of Rivers State House of Assembly; can it even be reversed by the House? No provisions in the Constitution for reversal of the declaration.

6️⃣. I saw yesterday (09/05/2024) where one of our great seniors was arguing strongly that mere defection doesn't render the lawmakers' seats vacant. And I asked myself, even if *section 109(1)(g) was not self-executory as the learned senior argued,* had the Speaker not given effect to the provisions of Section 109(1)(g) as required by the Constitution, thereby executing it whereupon the seats of the 27 members had then become vacant in the eyes of the law? How else does our oga want the provisions of *Section 109(1) (g)* to be given effect? And, does INEC's delay in conducting Bye-elections to fill the vacancies created by the defection, affect the fact that in law, their seats are already vacant?

7️⃣. I saw also another opinion, that a court must declare the seats vacant before the seats can become vacant. With due respect, I don't think that's what the law says. The Constitution does not say anywhere, that a court of law must make a declaration before the seats of defecting members of a legislative house would become vacant upon such a defection. The Constitution has given power to the Speaker of the House of Assembly to declare the affected seats vacant. And irrespective of how Hon Edison Ehie was elected the speaker, the court had upheld the said election (albeit temporarily) and given the said speaker and the remaining Assembly members the go-ahead to conduct the businesses of the House. It was after the green light from the court that the Edison Ehie-led House went ahead to declare VACANT the seats the defecting members. A court order remains binding and effective unless and until set aside. See *THE MILITARY GOVERNOR OF LAGOS STATE & ORS. V. CHIEF EMEKA ODUMEGWU OJUKWU & ANOR (1986) JELR 47904 (SC);* (SC. 241/850) [1986] NGSC 13 (14 February 1986).

See also Ogundare, JSC, in *Rossek v. A.C.B. Ltd.* (1993) 8 NWLR (Pt. 312) 382 at pages 434-435 E-C; and Eso, JSC in *Oba Aladegbami v. Oba Fasanmade* (1988) 3NWLR (pt.81) 131; (1988-LCER-4450-SC)

See also *Adebayo v. Johnson* (1969) 1 All NLR 176; *Aladegbemi v. Fasanmade* (1988) 3 NWLR (Pt.81) 129; *Komolafe v. Omole* (1993) 1 NWLR (Pt.268) 213; *Rossek v. African Continental Bank Ltd.* (supra).” See also the dictum of MUHAMMAD, J.S.C ( Pp. 23-27, paras. E-C ) in *OSHIOMHOLE & ANOR V. FGN & ANOR* (2004) LPELR-5188(CA).

If there was a court order validating the actions of the Edison Ehie-led House at the time the House declared vacant the seats, can one validly argue that the seats have not been declared vacant?

8️⃣. By the way, let one advert one's mind to the rules of corporate governance, especially relating to Majority Rule and Minority Protection?What happens when those acting illegally or committing a breach of the law are in the majority, and can't reasonably be expected to take action against themselves for purposes of giving effect to the legal consequences of their illegal actions, which situation has foisted upon the corporation a state of hopelessness or helplessness? Isn't the minority entitled to act to save the situation? By the way when 27 members out of a 32-member house defect leaving only five, aren't the five entitled to act to uphold and protect the law, since it's reasonably unthinkable that the defecting 27 members would ever give effect to the provisions of Section 109(1)(g), Constitution of the Federal Republic of Nigeria, 1999?

9️⃣. There is no doubt that the 27 lawmakers are the ones who had voluntarily given their opponents the weapon with which to fight the 27 lawmakers. Thus, I agree with respected Femi Falana, SAN, that the defection of the 27 lawmakers was ill-advised, self-defeating and counterproductive. *"27 RIVERS LAWMAKERS WHO DEFECTED FROM PDP TO APC DIDN'T RECEIVE SOUND LEGAL ADVICE AND HAVE LOST THEIR SEATS - FEMI FALANA"*

(See: lindaikejisblog.com).
*9️⃣. RESOLUTION OF THE MATTER.* I humbly think that if the affected 27 or 25 lawmakers believe their seats have not become vacant, they should explore the legal opportunity provided by *Section 272(3), Constitution of the Federal Republic of Nigeria, 1999,* which provides as follows: _"Subject to the provisions of section 251 and other provisions of this Constitution, the Federal High Court shall have jurisdiction to hear and determine the question as to whether the term of office of a member of the House of Assembly of a State, a Governor or Deputy Governor has ceased or *become vacant".*_ The court would then examine all issues and award relevant redress or orders as it may deam necessary, fit and just in the circumstances. It is respectfully submitted that the State High Court also has jurisdiction in the matter.

🔟. Finally, I admit the legal discussions are intricate, complex as many issues need to be examined on both sides. Meanwhile, I urge all lawyers as custodians of the rule of law, to approach the matter with an open and objective mind, while facing reality as it's. On my part, as much as I need a further education on the legal issues, I think I should write further to give a detailed legal opinion on the matter, citing as much more legal authorities as I am able to have access to, in the best interest of the public and our constitutional democracy.

Sylvester Udemezue (Udems)
Reality Ministry of Justice (RMJ).
(A Public Interest Legal Advocacy Group)
[email protected].

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