20 – 4 = EBONYI STATE HOUSE OF ASSEMBLY

I was slightly beside myself this Monday morning listening to Mr. Gbenga Aruleba the presenter of the African Independent Television (AIT) news programme “Focus Nigeria” on the recent political drama in Ebonyi State where the State House of Assembly, had on Wednesday, passed a resolution declaring the seats of four members of the House vacant, following their defection from the Peoples Democratic Party (PDP) to the Labour Party (LP).
The Speaker of the House, Honourable Chukwuma Nwazunku while reading the resolutions, said that the affected members violated section 109 sub-section 1G of the 1999 Constitution as amended, by defecting to another political party without stipulated party guidelines.
The affected members included Honourable Uduma-Chima (PDP-Afikpo South-West), Mr Sam Nwali (PDP-Ikwo North), Mrs Helen-Nwaobashi (PDP-Abakaliki South) and Mrs Mabel Aleke (PDP-Ohaukwu South).
And Mr. Gbenga on Focus Nigeria alluded to Section 90 – 91 of the 1999 Constitution of the Federal Republic of Nigeria (CFRN) as (amended) which provides that:
 
90. There shall be a House of Assembly for each of the States of the Federation.
 
91. Subject to the provisions of this Constitution, a House of Assembly of a State shall consist of three or four times the number of seats which that State has in the House of Representatives divided in a way to reflect, as far as possible nearly equal population:
Provided that a House of Assembly of a State shall consist of not less than twenty-four and not more than forty members.
Then he proceeded to present the fact that the Ebonyi State House of Assembly which originally comprised exactly twenty-four (24) members presently had just twenty (20) members only and suggested this to imply that the state legislature by virtue of that loss of four active legitimate membership may be want of legitimacy to convene sessions except and until the composition of the house is completed through a bye election to be conducted by the Independent national Electoral Commission (INEC) but that going by the recent loads of work and pressure on the electoral umpire such election cannot be held pronto. And sarcastically, he refers us to notorious episodes of dramatic political shenanigans in a country where 16 is more than 19 (i.e. the Nigerian Governors’ Forum election and much more). Trust Nigerians to react. The reactions have already been a media crucifixion of the Ebonyi State House of Assembly Speaker should he proceed to hold sessions. I however beg to disagree with this position albeit logically, legally and judicially.
First, one cannot reasonably expect the absence of four out of twenty four members of a house of assembly to hold the entire state to ransom. It would be denying the masses their right to democratic representation especially when the representation can be effected by the remaining twenty for the general benefit of the entire people of the state regardless of constituency. The state as a matter of fact is one constituency. Nobody is voted a law maker by his constituents to make laws for them only but for the collective benefit of the whole comity of constituencies.
Having stated the fact and logic it is only pertinent that we also examine the legal perspective on this issue especially where as a lawyer it is more honourable to argue the law incorrectly than to preach facts and sentiments. Hence, I present the law.
The proviso in Section 91 of the 1999 CFRN states that
“Provided that a House of Assembly of a State shall consist of not less than twenty-four and not more than forty members.”
It must be noted that this proviso and the whole section itself refers to the composition of the state legislature regarding creation of constituencies of a state and does not refer to convening of legislative sessions. These are indeed two different phenomena. To further buttress this position one must take into cognizance the provisions of section 96 of the constitution on matters of session which provides as follows
96(1). The quorum of a House of Assembly shall be One-Third of all the members of the House.
Now, the very familiar and popular canon of interpretation of provisions of the Constitution is .  "expressio unius personae vel rei, est exclusio alterius." A Latin Maxim meaning “the express mention of one thing is the exclusion of another." Put in another way: “Where there is express mention of certain things, then anything not mentioned is excluded." Again the Latin Maxim here is: “expressio facit cessare tactitum" see the English case of  Stephens v. Army & Navy Stores (1914) 2 CH 526.
 
The application of the foregoing to the extant case is that the mention of one-third of the 24 members and not the whole 24 members means that the former is sine quo non for holding legislative sessions. Put differently, The House of Assembly of 20 members out of 24 members can legitimately hold sessions provided they have the constitutional quorum of one-third which in this case is Eight (. Now, while one may be want to dismiss this submission as mere contraptions of legal technicalities it is also imperative to register here that the law is a recherché phenomenon. A phenomenal character indeed. It is not always what we want it to be but always what we need it to be. It is what I term “the mischief of a social instrument.” Section 102 of the constitution is a worthy proof to this. It provides thus :
 
 
 
A House of Assembly may act notwithstanding any vacancy in its membership, and the presence or participation of any person not entitled to be present at or to participate in the proceedings of the House shall not invalidate such proceedings. 
 
Hence, the vacancy of any member or members of a house of assembly cannot invalidate the holding of sessions where there is quorum. This therefore distinguishes the “doctrine of composition” from the “doctrine of quorum.” Whereas the former refers to the creation of the legitimate constituencies that make up the legislature the latter refers to the legitimacy of sessions held by the legislature. While section 90-91 of the 1999 Constitution of the Federal Republic of Nigeria creates the State House of Assembly Sections 96 and 102 operate the State House of assembly.  
Be that as it may, it is imperative to noted here that such legitimacy should not be stretched beyond the constitutional limits being that where a particular number or percentile of members is constitutionally required to conduct any business in a session such requirement must be complied with. The ability to hold session with the required quorum is not a fiat to conduct legislative businesses with any less compliance with the constitution. This submission has the jurisprudential baptism of the authority of  Hon. Michael Dapianlong & 5 Ors  v  Chief (Dr) Joshua Chibi Dariye & 2 Ors (SC. 39/2007). In this case, Plateau State, like any other State in the Federal Republic of Nigeria, having a House of Assembly established under section 20 of the Constitution of the Federal Republic of Nigeria 1999 incidentally constituted of 24 members. But between 25th and 26th July, 2006, fourteen (14) out of the twenty-four (24) members of the Plateau State House of Assembly including the Speaker and Deputy Speaker thereof defected from the Peoples’ Democratic Party (PDP), the platform on which they were elected to the House in 2003 to Advanced Congress of Democrats (ACD), a registered political party, as a result of which the said 14 members vacated their seats by operation of law leaving only 10 members of that House. Then, on the 5th day of October 2006 the 1st respondent was allegedly served with notice of allegations of gross misconduct thereby initiating a process of impeachment by the remaining 10 members of that House. The notice of allegations of gross misconduct was signed by Eight ( out of the Ten existing members. Throughout the processes and proceedings leading to and including the impeachment of the 1st respondent, the Plateau State House of Assembly had only Ten members, Eight ( of who supported and voted in favour of the removal of the 1st respondent under section 188 of the 1999 Constitution. The Court of Appeal holden at Jos in Appeal No. CA/J/302/2006 nullified the removal of the 1st respondent, Chief Joshua Chibi Dariye by the Plateau State House of Assembly on Monday the 13th day of November 2006 and ordered the reinstatement of the 1st respondent to the office of Governor of Plateau State.This judgement was appealed against but the Supreme Court in dismissing the appeal stated per Mahmud Mohammed, J.S.C as follows:  
 
“It must be stressed that although the remaining 10 members of the Plateau State House of Assembly might have convened and conducted valid proceedings of the House by virtue of having formed a quorum under 96(1) of the 1999 constitution which required only one-third of all the members of the House, this is only for the purpose of conducting ordinary proceedings of the House. Where the consideration of special or extra ordinary matters requiring two-thirds majority of all members of the House is in hand, the Appellants as members of the House who do not constitute at least two-thirds of all the members of the House, remained incompetent and not qualified to initiate and conduct valid proceedings in such special or extra ordinary matters in the House. The argument of the learned senior counsel for the Appellants that the number of the remaining 10 members of the House of Assembly must be used in the determination of the required two-thirds majority of members by virtue of Section 102 of the 1999 constitution, may lead to absurdity if accepted. This is because by this rather curious submission of the learned senior counsel that the House of Assembly may act not withstanding any vacancy in its membership, the proceedings of the House consisting of only one member could be regarded as valid under Section 102 of the 1999 constitution. Certainly, this was not the intention of the framers of the Constitution. The correct position of course in this respect is that the provisions of Section 102 must be read along with Section 96 of the 1999 constitution which prescribes a minimum number of members namely, one third of all the members of the House that can validly sit and conduct the business of the House of Assembly…”




The import and purport of the foregoing is that the ebonyi state house of assembly having been reduced from its constitutional constituencies of Twenty-Four (24) to Twenty (20) still possesses the quorum required for holding session which is eight pursuant to Section 96(1) of the 1999 Constitution (As Amended) and interestingly unlike the case of Plateau State above still possess the required number for special or extra ordinary businesses which is two-third being sixteen (16) members. Of course, twenty members do have 16 amongst them except and unless sixteen will be declared to be too many for twenty and in the Nigeria of our time such theatrics is not an impossibility. But methinks the leadership of the Ebonyi State house of Assembly is well advised on this matter because investigations reveal that the same law makers sought to commence an impeachment proceedings against the Executive governor of the state Mr. elechi Martins but had to shelve the plan as they did not have the required two-third (sixteen members) present at the last session because only fourteen members of the twenty were present thereof.
Nevertheless, the matter arising from this episode which the Focus Nigeria presenter should have equally brought before viewers is the question whether the house had the right to declare the seats vacant when in fact the matter is already before the Federal High Court holden in Abakaliki between Rt. Hon. Blaise Orji and others V Hon. Chukwuma Nwazunku and others with suit number FHC/AI/CS/49/2014. But of course it is my educated guess that Mr. Gbenga being a perspicacious stormy petrel may have found it less interesting due to the fact that reckless disregard for rule of law is no longer a credible news line in our nation regardless of the effort of the Federal Government to enforce the observance thereof.
Another issue worthy of concern is the fact that the four members whose seat has been declared vacant are just a fraction of the total number of about ten (10) members who actually defected- Nine from Peoples’ Democratic Party (PDP) to Labour Party (LP) while one defected from Peoples’ Democratic Party to All Progressives Congress (APC) in the person of Hon. Joseph Nwobasi (Ezza North East). This apparently is selective discrepancy and a political institution like the legislature which ought to respect the laws it makes and lead by example must not only be heard to so act but should also be seen. And as Maj. Gen. T. Y Danjuma had posited in the internuncial why and wherefore for declaring Mr. Goodluck Jonathan acting president of Nigeria in 2010 that “we are living in desperate times and this calls for desperate actions” one begin into wonder whether every season of polls in Nigeria calls for desperate actors always?

OKPO EWA EDMUND ESQ.
HUMANITY CHAMBER,
ABUJA, FCT OFFICE,
@okpoewa
www.okpoewa.org

PDP, labour party all join! On to the next one jareee... GEJ till 2019!!!