M. O. OLOYO v. A.A. EGBE (SPEAKER BENDEL STATE HOUSE OF ASSEMBLY) (SC 94/1982) [1983] 10 (29 July 1983);

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IN THE SUPREME COURT OF NIGERIA

ON FRIDAY, THE 29TH DAY OF JULY 1983

SC 94/1982

BETWEEN

M. O. OLOYO ............................................................ APPELLANT

AND

A.A. EGBE (SPEAKER BENDEL STATE HOUSE OF ASSEMBLY) .................................................. RESPONDENT

BEFORE: Fatai-Williams C.J.N., Sowemimo, Bello, Obaseki, Eso, Anamani, Uwais, JJ.S.C.

By an originating summons, the appellant at the Benin High Court 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.

The respondent as the Speaker of the House had written a letter to the appellant declaring his seat vacant as a result of his absence for more than 1/3 of the total number of days during which the House met for the parliamentary session beginning from 2nd October 1980–18th August 1981 as stipulated in section 103(1)(f) and section 103(2) of the Constitution of the Federal Republic of Nigeria 1979.

The High Court in dealing with the question of interpretation of section 103(1)(f) of the Constitution held that the Speaker could not declare the seat of a member vacant and that the wordings of section 103(1)(f) says “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 any one year.” The court went on to say that according to the provisions in section 237 of the 1979 Constitution it is the court that has the right to determine whether the seat of a member of a House of Assembly has become vacant if the person that has been so absent refuse to voluntarily vacate his seat.

The respondent being aggrieved with this decision appealed to the Federal Court of Appeal and the court after reviewing the various submissions came to the conclusion that the correct approach is for the respondent, subject to the provisions of the standing orders of the House if any on the 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 and thus allowed the appeal.

The appellant being dissatisfied with the decision of the Court of Appeal appealed to the Supreme Court. Four grounds of appeal were filed but the context in all these ground raise only the issue of the interpretation of section 103 and section 237 of the Constitution.

HELD:—

(1) The provision of section 103(1) of the 1979 Constitution which says that “A member of a House of Assembly shall vacate his seat in the House. . .” is mandatory and not merely directive. The word “shall” in the enactments means “must” and not may. It is not a matter for an option.

(2) Since the provisions of section 103(1) is mandatory it follows that the respondent need not declare the seat of the appellant vacant under section 103(1)(f) as the seat of the appellant becomes automatically vacant if he is absent for more than 1/3 of the total number of days during which the House met.

(3) Nonetheless the action of the respondent should be taken as regarding the seat of the appellant vacant and informing the appellant to the effect since by reason of section 103(1)(f) the appellant seat automatically becomes vacant, and the duty of the respondent was only to inform the appellant that his seat has become vacant.

(4) 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 a dispute about the event stipulated.

(5) The only action which the appellant could have taken was to dispute the issue of number of days he was alleged to have attended the House and not an action questioning, the competence of the respondent to declare the seat vacant.

Appeal dismissed.

Chief F.R.A. Williams S.A.N. (with O.K. Aderinakun) for the Appellant.

Mr J.A. Ojeme, (Parliamentary Counsel Bendel State) (with M.O. Oyanna) for the Respondent.

Statutes referred to

(1) The Constitution of the Federal Republic of Nigeria 1979.

(2) The Constitution of India (forty forth Amendment) 1979.

(3) The Constitution of the United Republic of Tanzania 1965.

(4) The Constitution of the United States of America.

Cases referred to:–

(1) Adesanya v. President of the Federal Republic of Nigeria (1981) 5 S.C 112.

(2) Attorney–General of Bendel State-Attorney–General of the Federation and 22 others (1982) 3 N.C.L.R. 1.

(3) Alabama State Federation of Labour Mcdary 325 U.S 450.

(4) Carter v. Potato Marketing Board (1951) 84 C.L.R 460.

(5) Chike Obi v. Waziri (Speaker of the House of Representatives) 1961 All N.L.R 371.

(6) Clerical Etc Assurance Co. v Carter (1889) 22 Q.B.E 444.

(7) Fadinmi v. The Speaker, Western House of Assembly (1962) 1 All N.L.R. 205.

(8) In re the Bodija Co. Limited (1906) 1 Ch. 276.

(9) Kennedy v. Pricell 59 L.T. 276.

(10) National Bank of Nigeria Limited v. Alakija and another (1978) 2 L.R.N. 98.

(11) New Plymouth Borough Council v. Taranek Electric Power Board (1973) A.C. 680.

(12) Noses v. Parker (1896) A.C. 486.

(13) Onitiri v. Benson F.S.C. 150.

(14) Powell v. Mccormach 395 U.S. 480.

(15) Re Giles Real and Personal Advance Co. v. Mitchell (1890) 41 Ch.D. 391.

(16) Re Doherty v. Doherty (1968) N.M.L.R 241.

(17) Spiliers Limited v. Cardiff Assesment Committee (1931) 2 K.B 21.

(18) State of Bihar v. Jute Mills A.I.R 1960 S.C. 378.

(19) State v. New Jersey Sargent 269 US. 328.

(20) Stephens v. Cuckfield R.D.C (1960) 2 Q.B. 373.

(21) Thurnbull v. West Riding Athlete Club (1894) 70 L.T. 92.

(22) Vahn v Langolis 5 A.C. 115.

(23) Webb v. Honlan 11 C.L.R. 313.

Fatai C.J.N. Michael Olanrewaju Oloyo, the plaintiff in this case, is the elected member for the North Akoko-Edo constituency in the Bendel State House of Assembly. Benson Anthony Alegbe, the defendant, is the duly elected Speaker of the said House of Assembly.

It is provided in section 98 of the Constitution of the Federal Republic of Nigeria, 1979, (hereinafter referred to as the Constitution) that a House of Assembly shall sit for a period of not less than 181 days in a year. Section 103 subsections (1)(f) and (2) thereof also provide as follows:

“103

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

(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 one year; . . .

(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.” (Italics are mine).

On the question as to whether the seat of a member of a House of Assembly has become vacant or not, it is provided in section 237 subsections (1) and (2)(c) as follows:

“237

(1) Without prejudice to the generality of the provisions of section 236 of this Constitution, the competent High Court shall, to the exclusion of any other court, have original jurisdiction to hear and determine any question whether. . . the seat of a person in a legislative house has become vacant.

(2) In this section, ‘competent High Court’ means:

(c) in any case involving the membership of or the seat of a person in a legislative house, the High Court of the State where the. . . State constituency of that member of person is located.” (Italics are mine).

Pursuant to the above, it is further provided in section 111 subsection (1)(a)(iii) of the Constitution that the National Assembly shall make provisions with respect to the persons who may apply to the competent High Court for the determination of any question as to whether the seat in a House of Assembly of a member of that House has become vacant. It is, however, pertinent to point out, at this stage, that, so far, the National Assembly has not made any provisions as to who may so apply. It has also not made any provisions, which it is empowered to make by virtue of subsections (1)(b) and (c) thereof, with respect “to the circumstances and manner in which, and the conditions upon which, such application may be made, and the powers, practice and procedure of the competent High Court in relation to any such application.” I would, however, like to refer, at this juncture, to the decision of the Federal Supreme Court in Fajinmi v. The Speaker, Western House of Assembly (1962) 1 ALL N.L.R. 205 where it was held that:

“(i) Where a Constitution confers jurisdiction upon a court to hear and determine certain questions, the court has a duty to hear, determine and resolve any such question when raised;

(ii) Where a jurisdiction is conferred upon a court and it is provided that the legislature shall make provision as to the practice and procedure to be followed when invoking that jurisdiction, the court will, in the event of the legislature’s omission or failure to provide such procedural legislation, entertain an application, brought in the form of an action, invoking that jurisdiction.”

It, therefore, follows that the practice and procedure applicable in these circumstances are those provided for in section 239 of the Constitution. The section reads:

“239. The High Court of a State shall exercise jurisdiction vested in it by this Constitution or by any law in accordance with the practice and procedure (including the service and execution of all civil and criminal processes of the court) from time to time prescribed by the House of Assembly of the State.”

In short, the High Court (Civil Procedure) Rules of Bendel State would apply.

Notwithstanding the above provisions to which I have referred in detail, the defendant in a letter dated 18th August, 1981, wrote to the plaintiff as follows:

“Dear Hon. Oloyo,

TENURE OF OFFICE OF MEMBER

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

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 subsections (1)(f) and (2) of section 103 of the Constitution of the Federal Republic of Nigeria 1979 which read as follows:

“(1)

(f) A member of a House of Assembly shall vacate his seat in the House if without just cause he is absent from meetings of the House Assembly for a period amounting in the aggregate to more than one-third of the total of the total number of days during which the House meets in any one year.

(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.

Yours sincerely,
(Sgd) (B. A. ALEGBE)
SPEAKER/PRESIDING OFFICER”

When the plaintiff did not reply to this letter, the defendant wrote him another letter. The contents of this second letter dated 15th September, 1981, read:

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 a breach of the mandatory provisions of subsections (1)(f) and (2) of section 103 of the Constitution of the Federal Republic of Nigeria, 1979.

3. 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.’

4. 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.

“5. 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.

Yours faithfully,
(Sgd) B. A. Alegbe.
Speaker/Presiding Officer.”

(Italics are mine).

Presumably because of the contents of paragraph 3 of the above letter, the plaintiff commenced proceedings by originating summons in the High court of Bendel State in which he claimed against the defendant:

“(1) A declaration that the defendant is not competent to declare vacant the seat of the plaintiff as member for North Akoko Edo Constituency in the Bendel State House of Assembly;

(2) An injunction restraining the defendant, his servants and agents, from illegally preventing or interfering with the plaintiff’s right to continue to hold his seat as a member of the House of Assembly for Bendel State.” (Italics are mine).

In his counter-Affidavit filed in answer to that filed by the plaintiff in support of his Originating Summons, the defendant made the following admissions in paras 8,9, and 16 thereof as follows:

“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.

9. That on the 5th day of October, 1981, the Bendel State House of Assembly was informed by the Speaker/Presiding Officer that the plaintiff herein had lost his seat for irregular attendance. . .

16. That on the 9th day of November, 1981, the plaintiff’s case was reviewed by the whole House and his seat declared vacant following the acceptance of the report of the Ad-Hoc Committee/Select Committee after careful consideration of his defence.” (Italics are mine).

Since the facts relating to the declaration complained of were not in dispute, the case turned on the interpretation of the various provisions of the Constitution to which I have referred earlier. After hearing the arguments put forward by both parties, the learned trial Judge, in a reserved judgment, gave judgment for the plaintiff. He granted the declaration asked for as well as the injunction after considering the relevant provisions of the Constitution and cases to which he was referred, and finding as follows:

“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.

What then happens if a member has been absent for more than at least one-third the number of days the House met in a particular year. If the member denies that he was absent for more than one-third the number of days during which the House met in the particular year, a dispute would arise and either party may take the dispute to Court for determination. Since the National Assembly has not made provisions with regard to who may apply to the High Court as regards matters under section 111(1) of the Constitution, either the Speaker or the Clerk of the House or the aggrieved member himself may refer the matter to court for the court to make a pronouncement whether he has so forfeited his seat. The court has power to inquire into the justiciable controversy or dispute based on bona fide assertion of rights and claims by the adverse litigants before it and it is the court that makes a final pronouncement on the matter. For instance, the Clerk can provoke the defaulting member into instituting action against the House of Assembly by withdrawing his remuneration and other benefits without initiating any action and when that happens the member will, of course, go to court to determine his right, in which case a controversy would have arisen. It is by adopting this form of procedure that the court can declare the seat of a member vacant if the issues are sufficiently established before it. In this case a dispute had arisen but this action is not designed to determine that dispute. In no circumstance can the Speaker of a House of Assembly sit in his office to write to any member of the House that that member’s seat had been declared vacant.” (Italics are mine).

The defendant appealed. After hearing argument from both parties, the Federal Court of Appeal, also in a reserved judgment, allowed the appeal, set aside the judgment of the lower court, and made an order dismissing the plaintiff’s claim in its entirely. In dismissing the claim, the Federal Court of Appeal, in its lead judgment, observed:

“Where there is express provision of the Constitution in respect of a particular matter no other law or practice can supersede the provision. In this regard I am of the opinion that the jurisdiction of the High Court is supreme and the court must assume jurisdiction once the matter is properly presented to it. This however does not mean that the Speaker or the House of Assembly is powerless. The legislature has a duty to maintain and control its own proceedings including the discipline and conduct of its members. If in the course of such a duty a member feels aggrieved, such as when his seat is declared vacant, he has a right to go to court and ask the court to exercise its jurisdiction under section 237 of the Constitution. Neither Alhaji Makarfi’s case (above) nor Fajinmi’s case (above) has decided or considered this aspect of the jurisdiction of the High Court. I consider both cases to be irrelevant to the issue now before us. I am of the firm opinion that the court has jurisdiction to entertain this suit. I am also of the firm view that the House of Assembly or the Speaker has a duty to exclude the member from the House if he commits any act falling within the provisions of the section 103 of the Constitution. It is not a challenge to the jurisdiction of the High Court. It is a proper application of the provisions of the Constitution. Any other arrangement as suggested by Chief Kehinde will make a mockery of the Constitution and will encourage indiscipline in the legislature.

To sum up I am of the opinion that this appeal must succeed for the reasons given above.” (Italics are mine).

The plaintiff has now appealed to this Court against this decision of the Federal Court of Appeal. The short point canvassed before us by Chief Williams who appeared for the plaintiff/appellant at the hearing of this further appeal may be summarised as follows.

The point made by the plaintiff before the learned trial Judge and which he (the trial Judge) accepted was that the power to declare the seat of a member of a legislative house vacant is vested in the competent High Court in its original jurisdiction by virtue of the provisions of section 237 subsection (1) of the Constitution. Since the original jurisdiction to declare the seat of such a member vacant is vested only in the competent High Court, there is no jurisdiction left in either the Speaker or in the State House of Assembly to determine the same issue. For that reason, leaned Counsel for the plaintiff/appellant further submitted, the Federal Court of Appeal was in error in holding, as it did by implication, that either the Speaker or the State House of Assembly could declare a member’s seat vacant, and then dismissing the plaintiff/appellant’s claim.

In reply, learned Counsel for the defendant/respondent contended that either the Speaker or the House of Assembly could declare the plaintiff/appellant’s seat vacant. He referred the court to section 103(1)(f) of the Constitution in support of this submission but conceded that it is the member who is required to vacate his seat of his own volition.

In Nigeria, when a Superior Court such as the Supreme Court, the Federal Court of Appeal, the Federal High Court, or the High Court of a State, is asked to interprete or apply any of the provisions of the Constitution, it is not thereby dealing with a political question even if the subject-matter of the dispute has political implications. Such a court, as the case may be, is only performing the judicial functions conferred upon it by the provisions of sections 6(6)(b), 33, 212, 213(2)(b) and (c), 220(1)(c) and (d), 230, 236, 237, and 259 of the said Constitution. Again, if such a court is called upon to interpret or apply the provisions of the Constitution of any organisation with respect to the civil right or obligation of members of the organisation, the court is merely performing the functions assigned to it by section 6(6) of the Constitution of the Federal Republic of Nigeria. Indeed, the court is obliged to perform that function and it is immaterial whether the organisation is a political party, or is a cultural, religious, or social organisation.

Therefore, to observe as the Federal Court of Appeal has done in its lead judgment in this case that:

“The fact that section 237 of the Constitution has given the High Court special jurisdiction to deal with such matters does not mean that the House or the Speaker thereof must fold their arms and allow a breakdown of discipline in complete disregard of the provisions of the Constitution.”

is to miss the point in issue. Shortly put, the point in issue, if I may repeat again for emphasis, is whether the House or the Speaker can declare the seat of a member of the House of Assembly vacant by virtue of the provisions of section 103(1)(f) of the Constitution.

Where there is provision in any statute that a person shall vacant his office or seat in any organisation if a particular event occurs, it is quite plain from the use of the words “shall vacate” that the person ipso facto or automatically vacates his office or seat when event occurs. In other words, the seat becomes vacant by operation of law due to the happening of the particular event. (See In re The Bodiga Co. Limited (1904) 1 Ch.276 at page 283).

Therefore, a close look at the provisions of section 103 subsection (1)(f) of the Constitution shows that if a member of a State House of Assembly, without just cause, is absent from the meetings of the House 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 one year, he shall thereby, by operation of law, automatically vacate his seat in the House. According to subsection (2) of the same section, the member concerned shall be deemed to be absent “without just cause” unless the Speaker or Presiding Officer certifies in writing that the member’s absence was for a just cause.

It is, in my view, not possible to equate a vacancy which occurs by operation of law with one which is so declared by another person. In the former case, neither the Speaker nor the House of Assembly concerned will have anything whatever to do with the vacation of the office by an event over which either has no control, and with which they have nothing to do except, perhaps, to satisfy themselves that the event has occurred. In the latter case, however, it is the Speaker (or the House as the case may be) who by his (or its) own conscious act will declare the member’s seat vacant. This clear distinction is understandable because, in the Nigerian context, the majority party in a House of Assembly which is sympathetic to a member whose seat should have been declared vacant, may decide not to declare the seat vacant but, instead, sweep the member’s infraction or the provisions of section 103(1)(f) under the carpet, so to speak. Therefore, to construe the provisions of sections 103(1)(f) and 237(1) to mean that the Speaker, or, indeed, the House, can declare a member’s seat vacant as the Federal Court of Appeal had done by allowing the appeal and dismissing the plaintiff/appellant’s claim would, with respect, be doing unnecessary violence to the unambiguous words used in the two sections.

In the case in hand, once the defendant/respondent has certified in writing that no just cause had been shown by the plaintiff/appellant, nothing more is required by the defendant/respondent. The seat of the plaintiff/appellant automatically became vacant by virtue of that certification. If the plaintiff/appellant actually refuses to vacate his seat pursuant to that event, all the defendant/respondent can do, assuming that he is so empowered by the Standing Orders of the House, is to treat the plaintiff/appellant as a stranger in the House and

(a) direct the Clerk of the House to stop paying his salary;

(b) Instruct the Sergeant-at-Arms to prevent him from taking his seat again; or

In the normal case, any of these actions would force the plaintiff/appellant, if he still disputed the fact that his seat had become vacant, to go to court and ask for the appropriate remedy. Of course, as an extreme, the defendant/respondent, or any member of the House, or the Clerk of the House, or indeed, a member of the constituency of the plaintiff/appellant could go to the competent High Court and ask for a declaration under section 237(1) of the Constitution that the plaintiff/appellant’s seat had become vacant.

Incidentally, in the case of Chike Obi v. Waziri (Speaker House of Representatives) (1961) All N.L.R. page 371, the court merely held that, generally speaking, the High Court of Lagos has the same powers as Her Majesty’s High Court of Justice in England and that since the Courts of England are powerless to control internal proceedings of the Houses of Parliament, the same position exists in Nigeria, and so the Speaker’s action cannot be questioned in court. It decided the case on the issue of jurisdiction but avoided a decision as to whether the Speaker has the power to declare a member’s seat vacant or not.

Now, to go back to the case in hand, it is my view, having regard to the words used in section 103(1)(f) compared with those used in 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 either the Speaker or the State House of Assembly to declare the plaintiff/appellant’s seat vacant as they did. To hold otherwise would mean giving the Speaker or the State 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’s power must not be sacrificed on the altar of legislative expediency.

Having held as above, I further hold that the Federal Court of Appeal was clearly in error in allowing the appeal and setting aside the judgment and order of the Bendel State High Court with respect to the declaration asked for. However, since the plaintiff/appellant’s seat had become vacant by operation of law, that is, by virtue of the provisions of section 103(1)(f) and (2) of the Constitution, the granting of the injunction asked by him would have served no useful purpose; the dismissal of the claim for an injunction by the Court of Appeal would therefore appear to be in order.

I would accordingly allow this appeal with respect to the claim for declaration and set aside the judgment of the Federal Court of Appeal in this respect only. Instead, I hereby restore and affirm the judgment of the Bendel State High Court delivered on 31st March, 1982 granting the plaintiff/appellant the declaration asked for in the originating summons. I, however, affirm the judgment of the Federal Court of Appeal dismissing the plaintiff/appellant’s claim for an injunction.

There will be no order as to costs.

Sowemimo J.S.C. My learned Brother Kayode Eso, J.S.C., has dealt very exhaustively with the legal implication and construction of sections 103, 111 and 237 of the Constitution of the Federal Republic of Nigeria 1979 and I agree entirely with his views, especially in relation to the peculiar facts of the case in this appeal.

The High Court, Benin, in the instant case, tried the issue of law involved on assumed facts. The parties filed Affidavit and counter-Affidavit, which disclosed disputed facts which must be resolved before applying the law. I do not think the purpose of trying any case, whether on originating summons or a writ, is on the basis of hypothetical fact. This should be avoided as cases are generally tried on the basis of facts. This should be avoided as cases are generally tried on the basis of facts on which the relevant law is applied for a determination.

Even in argument before us the appellant’s appeal was argued on the application of law on an assumption. This is not the fault of the learned Counsel for the appellant, as he could not depart from the manner the case was dealt with from the High Court, Benin.

I agree that the appeal in this case be dismissed, and is hereby dismissed. The judgment of the Federal Court of Appeal, Benin is affirmed with costs of N300.00 awarded in favour of the respondent.

Bello J.S.C. I had the privilege of reading the judgment of my learned brother, Eso, J.S.C. For the reasons stated by him, I agree the appeal should be dismissed and the decision of the Federal Court of Appeal be affirmed.

I think it is pertinent to emphasise that this appeal raises the question, though it has not been canvassed, as to whether this Court should Indulge in deciding academic and hypothetical question in constitutional causes. In other common law jurisdictions having written constitutions, the rule has been well embodied in their constitutional laws that the constitutionality of statutory provisions or executive actions should be determined on ascertained facts as admitted or proved. In the absence of ascertained facts, the question of the constitutionality of a statute or an executive act is academic and hypothetical. In the United States of America, the court will not exercise its judicial power of review for determining an academic or hypothetical question: State of New Jersey v. Sargent 269 U.S. 328 and Alabama State Federation of Labour v. Mcdory 325 U.S. 450.

In Australian Boot Trade Association v. The Commonwealth (1953-54) 90 C.L.R. 24 at 50 Kitto, J. observed as follows:

“To interpret a statute in the air ought, I think, to be regarded as a course not to be adopted without some positive justification.

As the court remarked in Carter v. Potato Marketing Board (1951) 84 C.L.R. 460: “It is seldom, if ever, desirable to decide any question of constitutional validity in abstracto and independently of the facts” (1951) 84 C.L.R., at 478. Undoubtedly cases can arise, and in the past they have arisen from time to time, in which the course of resolving questions of validity in anticipation of events, prima-facie unsatisfactory though it is, appears to be desirable because the circumstances provide reasons in its favour which outweigh the objections to it.”

The Supreme Court of India held in the State of Bihar v. Jute Mills A.I.R. 1960 S.C. 378 that courts should be reluctant to decide constitutional points merely as matters of academic importance.

It appears to me that one of the general rules for the determination of a constitutional question may be stated thus: that the court should first determine and ascertain the material facts on which the constitutional issue has been founded. Unless the facts are admitted, it is essential that the trial Court should receive evidence and make findings of facts. It is only when the facts so found fall within the ambit of the constitutional question that the issue of constitutionality should be determined. If the facts do not fall within the question, then there is no occasion to decide the issue of constitutionality. However, in exceptional circumstances Australian practice may be followed to resolve a constitutional question on anticipatory events where it appears to be desirable because the circumstances provide reasons in favour of the resolution of the question which outweigh the objections to its resolution as an academic question.

The constitutional question in the appeal before us upon which the declaratory judgment and injunction are sought is founded on an allegation of contravention of the provisions of section 103(1)(f) of the Constitution which states:

“103

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

(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 one year.”

The respondent as the Speaker of the Bendel State House of Assembly alleged that the appellant had been absent from meetings of the House without just cause for a period amounting in the aggregate to more than one-third of the total number of days the House had met from October 1980 to August 1981. The case of the appellant was he had been attending meetings of the House regularly and had not been absent without just cause from the meetings for a period of more than one-third.

Accordingly, there has been a dispute on the question of facts upon which the constitutional issue has been based. No evidence was taken to resolve the dispute and to ascertain the facts. The constitutional issue as to whether or not the Speaker is competent to declare the seat of the appellant vacant would only arise if the appellant had been absent for a period of more than one-third of the total number of days the House had met. If he had not been so absent, then there is no occasion to determine the constitutional question.

With all due respect, I consider it most unsatisfactory to determine a constitutional question in the abstract and in advance of the facts of the case. Such determination may not finally settle the dispute between the parties as the plaintiff may elect to go back to the trial Court for the trial of the question of facts. The Federal Court of Appeal should have allowed the appeal of the respondent who was the appellant in that court simply on the ground that the material facts of the case had not been ascertained and remitted the case to the trial Court for the issue of facts to be tried.

Obaseki J.S.C. I have had the advantage of a preview of the judgment just delivered by my learned brother, Eso, J.S.C. I have given deep thought to the issues raised before us but could not convince myself that in the face of the admission of the respondent in the Federal Court of Appeal that he was not competent to declare the seat of the appellant vacant contrary to his stand in the High Court, I should dismiss in its entirety the appeal against the decision of the Federal Court of Appeal. I will for the reasons hereafter appearing allow the appeal against the dismissal of the claim for a declaration that the Speaker is not competent to declare the appellant’s seat vacant but dismiss the appeal against the dismissal of the claim for injunction, the controversy or dispute on the facts leading to disqualification being a matter to be resolved after oral hearing. The issue raised in this appeal involves the question of the correct interpretation of section 103(1) and section 237(2) of the Constitution of the Federal Republic 1979 and not really the question of discipline in the House of Assembly. This is so because the respondent conceded in the High Court, the Court of Appeal and in this Court that the question whether the seat in a House of Assembly of a member of that House has become vacant is one for the competent High Court within the meaning assigned to it by section 237 of the 1979 Constitution.

Section 237(1) of the 1979 Constitution conferred the jurisdiction to entertain that question on the competent High Court and the words used in conferring such jurisdiction read:

“(1) without prejudice to the generality of the provisions of section 236 of this Constitution the competent High Court shall to the exclusion of any other court, have original jurisdiction to hear and determine any question whether any person has been validly elected to any office or to membership of any legislative house, or whether the term of office of any person has ceased or the seat of a person in legislative house has become vacant.

Subsection (2) of section 237 defines “competent High Court” in extenso as follows:

“In this section ‘competent High Court’ means:

(a) in any case involving the office of President or Vice-President, the Federal High Court and on the coming into force of section 262 of this Constitution, the High Court of the Federal Capital Territory established pursuant to section 263 of this Constitution;

(b) in any case involving any other office, in High Court of the State as respect which such office is established under this Constitution; and

(c) in any case involving membership of or the seat of a person in a legislative house, the High Court of the State where the senatorial district, Federal constituency or State constituency of that member or person is located.

Understandably, the jurisdiction to determine the question whether the seat of a person in a legislative house has become vacant was not vested in the legislative house but in the High Court of the State in which the constituency of that member or person is located.

It is in the contemplation of the Constitution that such questions may arise in circumstances of a refusal or a failure of a member to vacate his seat have occurred.

The proceedings leading to this appeal were commenced in the High Court of Bendel State, Auchi Judicial Division but later transferred to Benin Judicial Division. They were initiated by the filing of an originating summons in which the plaintiff who is the appellant herein claimed:

(1) A declaration that the defendant is not competent to declare vacant the seat of the plaintiff as member for North Akoko Edo constituency in the Bendel State House of Assembly.

(2) An injunction restraining the defendant, his servants, agents from illegally preventing or interfering with the plaintiff’s right to continue to hold his seat as a member of the House of Assembly for Bendel State.”

Along with the originating summons were filed Affidavit deposed to by the plaintiff on 30th November, 1981 and further Affidavit deposed to by the plaintiff on the 14th day of January, 1982 along with letter dated 15th September, 1981 signed by Hon. B.A. Alegbe, Speaker/Presiding Officer and addressed to the plaintiff. The defendant also filed a counter-Affidavit deposed to on 8th December, 1981. He also filed a further and better counter Affidavit deposed to on the 22nd day of January, 1982. Paragraph 1 to 6 of the Affidavit deposed to by the plaintiff on the 30th November, 1981 read:

“1. I am 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 exhibited was not dated 18th September, but 18th August, 1981 and reads:

“Dear Hon. Oloyo,

Tenure of Office of Member

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 amount in the aggregate to more than ‘one-third’ of the total number of days during which the House met this current legislative year. In other 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 that your absence was ever excused as, in fact, you did not ask for any leave of absence. Take note 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 provisions of subsections (1)(f) and (2) of section 103 of the Constitution of the Federal Republic of Nigeria 1979 which read as follows:

‘(1)

(f) A member of a House of Assembly shall vacate his seat in the House if 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 meet in any one year.

The further Affidavit deposed to by the plaintiff on the 13th day of January, 1982 was filed to correct certain errors in the Affidavit he filed and to exhibit the letter dated 15th September, 1981 addressed to him by the defendant. This is borne out by paragraph 4, 5 and 6 of the further Affidavit which read:

“4. I deposed to paragraph three of the said Affidavit of the 30th day of November, 1981 in error, and also annexed the letter dated 18th August, 1981 in error.

5. The letter now shown to me and marked exhibit B is a true copy of letter dated 15th September, 1981.

6. The said letter marked exhibit B is the letter I intend to exhibit along with my Affidavit dated 30th November, 1981.”

The letter of 15th September, 1981 is short and reads:

“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. 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.

3. TAKE NOTICE, therefore, that your seat in the 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.’

4. 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.

5. You should immediately hand over all the properties of the House which came to your possession since 2nd October, 1979 to the Clerk of the House.” (Italics mine).

This letter, exhibit B by its content sounds like a judgment of a court of law and on it has been founded this cause of action.

The counter Affidavits sworn to and filed by the defendant have not denied the contents of exhibits A and B exhibited by the Affidavit and further Affidavit. Instead, the defendant proceeded to justify his actions and contended that they were authorised by law and the need to maintain discipline in House. This is borne out by paragraphs 2, 4, 5, 6, 7, 8, 14, 15, 17, 20 and 21 of the Affidavit sworn on the 8th day of December, 1981 and read as follows:

“2. That I have seen the plaintiff’s originating summons and the six-paragraph Affidavit.

3. That I am familiar with the facts of this case.

4. That the Speaker/Presiding Officer is in charge of the House attendance register used in recording attendances 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 cause 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 plaintiff’s attendance at meetings fell far short of the statutory requirement, he wrote to him letter No. SH. 19/105 dated 18th August, 1981, giving him 28 days within which to explain his absence.

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, informing him that his seat in the House had become vacant.

14. That on the 3rd day of November, 1981 the plaintiff sent a letter dated 2nd November, 1981, hereby attached and marked exhibit A.

15. That the reasons given by the plaintiff in his letter dated 2nd day of November, 1981 did not show just cause for his absence to the satisfaction of the Speaker/Presiding Officer and the House.

16. That on the 9th day of November, 1981, the plaintiff’s case was reviewed by the whole House and his seat declared vacant following the acceptance of the report of the Ad-hoc Committee/Select Committee after careful consideration of his defence.

21. That the steps taken by the Speaker/Presiding Officer against the plaintiff who is a habitual absentee is part of the disciplinary action of the House against erring members and it was exercised in accordance with the law and standing orders of the House.” (Italics mine).

The further and better counter-Affidavit sworn to by the defendant on the 22nd day of January, 1982 contains only 4 paragraphs and was filed in order to exhibit the letter dated 18th August, 1981–exhibit B, the votes and proceedings of the House of Assembly of Monday, 5th October, 1981 exhibit C and the certified extract of the official report (Hansard) No. 24 of the Bendel State House of Assembly dated 9th November, 1981.

Paragraphs 1, 2 and 3 of the counter-Affidavit read:

“1. That further to paragraph 7 of my counter-Affidavit dated 8th day of December, 1981, on this suit, I attach hereto letter No. SH.19/105 of 18th August, 1981 and marked exhibit B.

2. That further to paragraph 9 of my said counter-Affidavit referred to in paragraph 1 above, I attach hereto votes and proceedings of Monday, 5th October, 1981, where the Speaker/Presiding Officer informed the Bendel State House of Assembly and it is hereby marked exhibit C.

3. That further to paragraph 16 of my said counter Affidavit filed earlier on, on the 8th December, 1981, I hereby attach and mark exhibit D certified extract of the official report (Hansard) No. 24 of the Bendel State House of assembly dated 5th November, 1981.”

These were the facts place before the High Court. No oral evidence was taken before Counsel for both parties addressed the court. The certified extract of the official report (Hansard) No. 24 of the Bendel State House of Assembly dated 19th November, 1981 is a lengthy document. It contains the debate in the House of Assembly and the appeal to the respondent to certify that the absence is for just cause. I will refer only to the concluding paragraph which is relevant in that the respondent was speaking:

“I have now been called upon to certify that the absence of Mr Oloyo was for a just cause. I have examined the report and the debate of the Constituent Assembly on this issue. I am satisfied as the Presiding Officer and also as a lawyer that Mr Oloyo’s absence is without a just cause and I will therefore be unable, no matter any pressure from individual or group to do injustice by certifying that the absence is for a just cause. Therefore, honourable members, Mr Oloyo’s seat is vacant and will remain vacant. I am sorry to take this hard decision. But my conscience and my God are what matter to me and not what individual wants me to do. The matter is regarded as closed.” (Italics mine).

The letter dated 2nd November, 1981 addressed to the Speaker, Bendel State House of Assembly written by the appellant following the resolution of the House of Assembly of November 2nd 1981 that he should explain his absence in reply to the letter of 18th August, 1981 reads:

Tenure of Office of Member

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

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

2. I recorded attendances in the Register 89 times during the period 10th February to 18th August, 1981. My attendances as stated in 1 and 2 amounted in the aggregate to 117.

3. I would like to point out that I was present in the House on the 14th 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 absence 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 occasions while the House was in session. I was a witness in a matter concerning my community. The days are 24/10/80; 14/10/80 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 1st of April (three days).

(e) Finally, I was away with the kind permission of Mr Speaker between the 21st of November and 9th 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.”

It should be observed that while the respondent alleged that the appellant had an attendance of 88 days, the appellant claims that his physical presence amounted to 118 days, he was on official assignment for 6 days, was absent on court subpoena for 3 days and was absent with Speaker’s permission to bury his grandmother for 12 days. If as stated in the respondent’s letter of 18th September, 1981, the House of Assembly met for 182 days, a member may be absent for 60 days without incurring any constitutional penalty of his vacating his seat. In other words, he must attend the meetings of the House for 122 days unless his absence is for just cause.

It will be breach of constitutional trust and duty if the Speaker/Presiding Officer refuses or fails to certify that the absence of a member of the House who has been sent on official duty either to attend seminars in Nigeria or overseas or to represent the Speaker at official functions is not for just cause.

The burial of the dead and performance of the ceremonies attendant thereto is a sacred duty which the close relatives especially children and grandchildren of the deceased owe to the dead and the society and it will be a breach of constitutional duty and trust for the Speaker to refuse to certify absences for such functions as absence for just cause. Mothers are the gates nature and providence or God provides for our entry into this world and to become members of our respective societies and citizens of our respective nations.

The judicial powers of the Federation and the States having been vested in the courts of law established by the Constitution, the Acts of the National Assembly and the laws of the States, obedience to subpoenas issued by the courts cannot be disregarded as not amounting to a just cause deserving of certification to excuse a member’s absence from a meeting of the House.

The letter of the appellant to the respondent which was exhibited by the respondent with his counter Affidavit as exhibit A clearly raises the issue of the correctness of the computation by the Speaker now respondent that he was absent for 94 days and present for only 88 days. It was an assertion that he has not committed the omission stipulated in section 103(1)(f) of the Constitution. There were therefore conflicting facts contained in the Affidavit evidence before the High Court. The High Court took no evidence to resolve the issue.

After an unsuccessful attempt by the respondent to set aside the summons on the grounds (1) that the summons is incurably defective, (2) that the plaintiff’s claim is not properly before the court, (3) that the plaintiff has no cause of action and (4) that the court has no jurisdiction to entertain the action, the plaintiff’s Counsel and the defendant addressed the court on the claim without leading any oral evidence.

Chief Bayo Kehinde, S.A.N., who represented the plaintiff in the High Court contended that “all the claim is saying is that the Speaker has no power to hand down a judgment on the plaintiff” and after referring to sections 237(2) and 103(1)(f) of the Constitution, submitted that “the court has exclusive jurisdiction to interpret the conduct of the Speaker in stating that the plaintiff could not sit in House.” He finally submitted that paragraph 8 of the counter-Affidavit of 8th December, 1981 is an admission that the seat has been declared vacant and that all the 23 paragraphs of the counter-Affidavit were in justification for declaring the plaintiff’s seat vacant.

In his reply, the defendant objected again to the jurisdiction of the High Court of Justice of Bendel State holden at Benin City and submitted that it was the High Court of Justice of Bendel State holden at Benin City and submitted that it was the High Court of Justice of Bendel State holden at Igarra that is the competent High Court. More importantly, he submitted that it is the Presiding Officer/Speaker who is competent to remove a member from the House of Assembly and referred to section 103(1)(f) of the Constitution as his authority. He further submitted that it is not the duty of the Speaker who declares a seat vacant to come to court to say that the seat which he has declared vacant should be accepted as proper. (Italics mine).

Ogbobine, J. who heard the matter, considered the submissions and delivered a well considered judgment which, in part, reads:

“If the Constitution had wanted the Speaker to declare the seat of a member vacant, it should have done so in clear terms. To my knowledge no section of the Constitution gives the Speaker any such power. . . I cannot envisage a situation whereby a Speaker by his solitary act denies a whole constituency of their representative in the State House of Assembly. . .

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.

In no circumstances can the Speaker of the House of Assembly sit in the office to write to any member of the House that that member’s seat had been declared vacant. In the circumstances, I am satisfied that the present claim is proper and I hereby declare that the defendant is not competent to declare vacant the seat of the plaintiff as member for North Akoko-Edo Constituency in the Bendel State House of Assembly.”

The learned trial Judge also granted the order of injunction prayed for. He concluded the judgment declaring that:

“This order is without prejudice to any action, suit or proceedings that may be taken against the plaintiff in the High Court to declare his seat vacant, if in fact he failed to attend meetings of the Bendel State House of Assembly without good or justifiable cause for more than one-third the number of days the House sat in the preceding year.” (Italics mine).

The defendant was not satisfied with the judgment. Being aggrieved, he appealed to the Federal Court of Appeal on 7 grounds. Before the Federal Court of Appeal, the defendant/respondent retreated from the position he took before the High Court and, after making his submission on jurisdiction of the High Court sitting at Benin City submitted:

“It is also my submission that their claim introduced a feature–that is the competence of the Speaker to declare a seat vacant which deprives the competent High Court of its jurisdiction. The Speaker cannot declare the seat vacant but the seat became vacant by operation of law and all what the Speaker did was to announce it to the respondent. . . The subject matter is not whether the seat has become vacant but the competence of the Speaker to announce it. . . I submit that it was not the Speaker’s act of pronouncement that made the seat of the respondent to become vacant. In fact, it does not require any declaration for the vacation of the seat. The vacation of the seat became effective before the two letters by operation of section 103 of the Constitution.” (Italics mine).

After hearing the defendant and plaintiff’s Counsel at length, the Federal Court of Appeal (Nasir, P., Ete, Agbaje, Okagbue and Nnaemeka-Agu, JJ.C.A.) in a unanimous judgment allowed the appeal and dismissal the claim. In the penultimate paragraph of his lead judgment, Nasir, P. said:

“The submission of Mr Alagbe that the issue of declaring the seat of the respondent vacant in the House of Assembly is an internal matter of the House is, in my opinion, unsupportable by any authority or by the Constitution itself.

The present Constitution in section 237, has given the High Court jurisdiction “to hear and determine any question whether. . . the seat of a person in a legislative house has become vacant.” I fail to see how this clear jurisdiction can be curtailed on the principle that a court will not interfere with the internal proceedings of a legislature. Where there is express provisions of the Constitution in respect of a particular matter, no other law or practice can supersede the provision. In this regard, I am of the opinion that the jurisdiction of the High Court is supreme and the court must assume jurisdiction once the matter is properly presented to it. This however does not mean that the Speaker is powerless. The legislature has a duty to maintain and control its own proceedings including discipline and conduct of its members. If in the course of such duty a member feels aggrieved, such as his seat is declared vacant, he has a right to go to court and ask the court to exercise its jurisdiction under section 237 of the Constitution. . . I am of the opinion that the court has jurisdiction to entertain this suit. I am also of the firm view that the House of Assembly or the Speaker has a duty to exclude the member of the House if he commits any act falling within the provisions of section 103 of the Constitution. It is not a challenge to the jurisdiction of the High Court. It is a proper application of the provisions of the Constitution. . .

Earlier on, the learned President dealt with the construction of the provision of section 103(1)(f) of the Constitution and said:

“Chief Kehinde further conceded that by operation of law if any of the events listed in section 103(1)(a) to (g) happens the member affected must vacate his seat. Having made this concession, Chief Kehinde submitted that the matter before the court was that the Speaker had no power to declare the seat of a member vacant. . . 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. . . The issue is whether the House of Assembly or the Speaker or any Presiding Officer can tell a 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 member has now become vacant and therefore the absentee member is no longer a member of the House of Assembly or the Speaker must take the matter to court before telling the member that he was by his action forfeited his seat

If in light of the definition given of ‘absent without just cause’ under subsection (2) a member of the House falls with the provisions of section 103(1)(f) of the Constitution, it seems to me that there is no alternative for him or the House or the Speaker to give any interpretation to the paragraph but to treat the member as having vacated his seat by operation of the Constitution.”

With the greatest respect to the learned President of the Federal Court of Appeal, the issues raised before the High Court have been abandoned and or multilated with such expertise as to drive the appellant from the court despite the profuse declarations throughout the judgment that it is only the competent High Court that has jurisdiction in the matter.

It is difficult to run away from the facts leading to this case as these are contained in the documentary exhibits attached to the Affidavit evidence deposed to by both parties. Whether the respondent intended to do so or not, it is a fact he declared the seat of the appellant vacant. He never requested the appellant to vacate his seat as is envisaged and expressly provided by the said section 103(1) of the Constitution. He could not have obtained compliance with such request in view of the disputed facts. The section does not read that “the seat of a member becomes vacant if” but reads:

“A member of a House of Assembly shall vacate his seat in the House if. . . In my opinion, the plain meaning of “shall vacate his seat” is “shall resign or withdraw from his seat” and not that the seat has been vacated. If the seat has been vacated, the Constitution would not call on the member to vacate his seat. A seat is not vacant until it is vacated.

The vacation of the seat by the member is conditional on the happening of the events categorised or set out in paragraph (a) to (g) of the section. The various events are ‘acts’ and an omission. In particular, the event complained of in these proceedings and which set in motion the whole controversy is the alleged omission of the appellant to attend meetings of the House of Assembly for the minimum number of days prescribed by the Constitution. This allegation was denied before this matter came to court and was also denied in the Affidavit filed.

Where, therefore, there is a dispute as to the events for which vacation of a member’s seat can be demanded until that issue is settled against the member, there is no constitutional right to call on him to vacate his seat or to exclude the member from the House for such disputed event. The Speaker is not made the judge in such a situation.

Aggrieved by the decision of the Federal Court of Appeal, the plaintiff lodged. . . this appeal against that decision.

The issues raised before us touched on the appraisal of the issues or questions raised before the High Court and the construction of section 103(1)(a) to (g) and section 237(1) of the 1979 Constitution. I think the issue of discipline touched upon by the Federal Court of Appeal and made the basis of its decision is irrelevant to the real issue before the court. The power of the Speaker to maintain discipline at all meetings in the House of Assembly was never questioned. It was the interference by the Speaker with the constitutional right of the appellant to hold his seat as a representative of his constituency that was questioned.

In his brief and in his oral arguments before us, Chief F.R.A. Williams, S.A.N., learned Counsel for the appellant properly framed the question for determination in this appeal as

“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.”

It was the submission of Counsel for the appellant and I agree with him that section 237(1) of the Constitution vests in the State High Court jurisdiction “to hear and determine any question. . . whether. . . the seat of a person in a legislative house has become vacant.” This jurisdiction can only be invoked in respect of a person who was validly elected a member of the House of Assembly, has taken his seat, and has been enjoying the full rights and privileges of membership.

Having regard to the express provision of section 99(1) of the Constitution that “a House of Assembly shall stand dissolved at the expiration of four years” it is not in the contemplation of the Constitution that members whose term of office as members had expired and the House of which they were members has been dissolved by effluxion of time under the Constitution would raise the question whether their seats have become vacant.

Section 266(1) of the Constitution gives a validly elected member of the House of Assembly a right to resign his membership and the notice of resignation is required to be addressed to the Speaker of the House of Assembly [see section 266(7) of the Constitution]. There can, in my view, be no question that when a member resigns from the office of membership of the House of Assembly that he vacates his seat neither can there be any question that when the House of Assembly is dissolved under section 99(1) of the Constitution all the members vacate their seats. The resignation of a member of the House takes effect when the Speaker receives his notice of resignation in writing. See section 266(2) of the Constitution. The question whether the seat of the member has become vacant in that event can only arise in my view, if the member denies being the author of the notice of resignation served on the Speaker. It appears to me that it is the fact of occurrence or non-occurrence of the events stipulated in section 103(1)(a to g) of the Constitution that will determine whether the seat of a member should be vacated or not vacated by him and proof of the occurrence of the event is vital to the determination of the question. It is only when the occurrence of the event has been proved to the satisfaction of the court that the question can be determined in favour of vacancy. Where there is a dispute as to the occurrence of the event, it is my opinion that it does not lie in the Speaker’s mouth to “announce” to the member that his seat is vacant or that he must vacate his seat. Any announcement of termination of member’s tenure, in my view, can only be made on an admission of the facts by the member concerned or on a declaration of vacancy of the seat validly made by the competent High Court.

Access to the court is unrestricted and resort to it is impliedly invited by section 111 and section 237. It might be argued that litigation costs time and money. But we must not forget that it is the only non-vicient process by which disputes are resolved in a democratic society. If such arguments are allowed to dominate our thinking and actions, prosecution of persons for various offences and institution of actions by the various governments agencies, authorities and executives would never be embarked on and the result would be a break down of law and order. Persons suspected of having committed an offence are not just told they are guilty of the offence and that if they disputed it they should go to court and establish their innocence. Events which will result in the member’s loss of seat if disputed by him must, in my view, be strictly proved before the court before a declaration is made. We must not forget that this jurisdiction in parliamentary democracies like Britain historically belonged to Parliament. The need to ensure impartial decision in such matters, in my view, had dominated the thinking of the democratic system since the 19th century particularly more so after the Universal Declaration of Human Rights in 1948 by the United Nations. Thus, in Britain, Australia, and also Nigeria before the change to presidential system, the jurisdiction to determine such question as is raised before us was transferred from the legislature to the judiciary. See

Onitiri v. Benson 5 F.S.C. 150.

Theberge v. Laundary 2 A.C. 102.

Noses v. Parker (1896) A.C. 245.

Kennedy v. Pricell 59 L.T. 270.

Vahn v. Langlois 5 A.C. 115

Webb v. Hanlon 61 C.L.R. 313.

Under the Parliamentary Cabinet system, Parliament is supreme whereas under the presidential system which Nigeria has now adopted, the Constitution is supreme. The transfer under our Constitution of 1979 is total and left no inherent jurisdiction in the legislatures.

The expressed vesting of the judicial powers of the Federation and of the States in the courts by section 6(1) and (2) of the Constitution together with the vesting of the jurisdiction to determine the question whether the seat of a member is vacant by section 237(1) in the competent High Court with jurisdiction to determine the appeal from such determination vested in the Federal Court of Appeal and Supreme Court expresses fully the intention to leave no lingering jurisdiction in the legislatures. See section 237(1); section 220(1) and section 213(1)(e) of the Constitution.

Nowhere in the Constitution, therefore, is any jurisdiction given to the legislature to decide any such question. It should be emphasised that it is original jurisdiction to the exclusion of any other court and not supervisory jurisdiction over the Speaker and the House of Assembly that is conferred on the competent High Court. I therefore find myself in agreement, with learned Counsel for the appellant that neither the House nor the Speaker has any jurisdiction over the question.

Not being a court, the Speaker or the House of Assembly cannot, in my view, embark on a course to punish the appellant by depriving him of his seat without the usurpation of the powers of the court. Since it is the determination of the civil rights and obligations that the Speaker embarked upon the appellant is entitled to the constitutional protection afforded by section 33(1) of the 1979 Constitution which reads:

“In the determination of his civil rights and obligation including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court, or other tribunal established by law and constituted in such a manner as to secure its independence.”

More than anything else, unless armed with a court’s declaration that the seat is vacant, the Speaker cannot issue a writ to the Federal Electoral Commission to fill the vacancy as required by section 108 of the Constitution. That section expressly provides:

“(1) Elections to a House of Assembly shall be held on a date to be appointed by the Federal Electoral Commission;

(2) The date mentioned in subsection (1) of this section shall not be earlier than 60 days before and not later than the date on which the House of Assembly stands dissolved, OR where the election is to fill a vacancy occurring more than 3 months before such date not later than one month after the vacancy occurred.” (Italics mine).

The proper construction of the sentence “A” member of a House of Assembly shall vacate his seat in the House if. . .” in section 103(1) of the Constitution is necessary for the real appreciation of the intention of the Constitution.

Termination of membership of a Legislature

Section 103(1) of the 1979 Constitution reads “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;

(d) he becomes President, Vice-President, Governor, Deputy Governor or Minister of 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;

(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 a merger of two or more political parties or factions by one of which he was previously sponsored.”

The submission of learned Counsel that upon proof of the happening of any of the events spelt out in section 103(1) (a) to (g) of the Constitution termination of the membership of the House of Assembly is mandatory is well founded. These events disqualify the member from continued membership of the House.

If the member accepts the occurrence of the events and raises no question about it he has no alternative but to vacate his seat. He must do something to show that he has vacated his seat.

It appears to me that the Constitution makes a distinction, impliedly though it is, between termination of membership and vacation of seats. I am persuaded to this view from a consideration of sections 46(2)(a), (b) and (c); 48(1); 86(2)(a), (b) and (c); 88; 99; 127(1) and (2); 128; 133(9); 134(2); 165(1) and (2); 166(1)(a) of the 1979 Constitution which read as follows:

(2) The President or Deputy President of the Senate or the Speaker or Deputy Speaker of the House of Representatives shall vacate his office;

(a) if he ceases to be a member of the Senate or of the House of Representatives, as the case may be otherwise than by reason of a dissolution of the Senate or the House of Representatives; or

(b) when the House of which he was a member first sits after any dissolution of that House; or

(c) If he is removed from office by a resolution of the Senate or of the House of Representatives, as the case may by the votes of not less than two-thirds majority of members of that House.

(1) Every member of the Senate or the House of Representatives shall, before taking his seat, take and subscribe the Oath of Allegiance and the Oath of membership prescribed in the Sixth Schedule to this Constitution, but a member may before taking the oaths take part in the election of a President and a Deputy President of the Senate or, as the case may be, of a Speaker and a Deputy Speaker of the House of Representatives.

(2) The Speaker or Deputy Speaker of the House of Assembly shall vacate his office:

(a) if he ceases to be a member of the House of Assembly otherwise than by reason of the dissolution of the House;

(b) when the House of which he was a member first sits after any dissolution of the House; or

(c) if he is removed from office by a resolution of the House of Assembly by the votes of not less than two-thirds majority of the members of the House.

(1) Every member of a House of Assembly shall before taking his seat in that House, take and subscribe before the House the Oath of Allegiance and the oath of membership prescribed in the Sixth Schedule to this Constitution, but a member may before taking the oaths take part in the election of the Speaker and Deputy Speaker of the House of Assembly.

(2) The Speaker and Deputy Speaker of the House of Assembly shall take and subscribe the Oath of Allegiance and the oath of membership prescribed as aforesaid before the Clerk of the House of Assembly.

(1) A House of Assembly shall stand dissolved at the expiration of a period of four years commencing from the date of the first sitting of the House.

(2) If the Federation is at war in which the territory of Nigeria is physically involved and the President considers that it is not practicable to hold elections, the National Assembly may by resolution extend the period of four years mentioned in subsection (1) of this section from time to time but not beyond a period of six months at any one time.

(3) Subject to the provisions of the Constitution, the person elected as the Governor of a State shall have power to issue a proclamation for the holding of the first session of the State Assembly concerned immediately after his being sworn in or for its dissolution as provided in this section.

127

(1) Subject to the provisions of this Constitution, a person shall hold in office of President until:

(a) when his successor in office takes the oath of that office;

(b) he dies whilst holding such office;

(d) he otherwise ceases to hold office in accordance with the provisions of this Constitution.

(2) Subject to the provisions of subsection (1) of this section, the President shall vacate his office at the expiration of a period of four years commencing from the date, when:

(a) in the case of a person first elected as President under this Constitution, he took the Oath of Allegiance and the oath of office; and

(b) in any other case, the person last elected to that office under this Constitution took the Oath of Allegiance and oath of office or would, but for his death, have taken such oaths.

(3) If the Federation is at war in which the territory of Nigeria is physically involved and the President considers that it is not practicable to hold elections, the National Assembly may by resolution extend the period of four years mentioned in subsection (2) of this section from time to time; but no such extension shall exceed a period of six months at any one time.

128

(1) A person shall not be qualified for election to the office of President:

(a) he does any act, acquires any status or suffers any disability which, if he were a member of the Senate, would have disqualified him from membership of the Senate; or

(b) he had been elected to such office at any 2 previous elections.

(2) The President shall not, during the period when he holds office, hold any other executive office or paid employment in any capacity whatsoever.

132

(9) Where the report of the Committee is that the allegation against the holder of the office has been proved, then within 14 days of the receipt of the report, each House of the National Assembly shall consider the report and if by a resolution of each House of the National Assembly supported by not less than two-thirds majority of all its members, the report of the Committee is adopted, then the holder of the office shall stand removed from office as from the date of the adoption of the report.

134

(2) Where any vacancy occurs in the circumstances mentioned in subsection (1) of this section during a period when the office of Vice-President is also vacant, the President of the Senate shall hold the office of President for a period of not more than three months, during which there shall be an election of a new President, who shall hold office for the unexpired term of office of the last holder of the office.

165

(1) Subject to the provisions of this Constitution, a person shall hold the office of Governor until:

(a) when the successor in office takes the oath of that office;

(b) he dies whilst holding such office;

(d) he otherwise ceases to hold office in accordance with the provisions of this Constitution;

(2) Subject to the provisions of subsection (1) of this section, the Governor shall vacate his office at the expiration of a period of four years commencing from the date when:

(a) he took the Oath of Allegiance and oath of office in the case of a person first elected as Governor under this Constitution; and

(b) the person last elected to that office took the Oath of Allegiance and oath of office or would, but for his death, have taken such oaths.

166

(1) A person shall not be qualified for election to the office of Governor if:

(a) he does any act, acquires any status or suffers any disability which, if he were a member of the Senate, would have disqualified him from membership of the Senate; or. . .

If a person wins an election to a House of Assembly, he is not allowed to take his seat until he has subscribed to the Oath of Allegiance and oath of membership. It is not automatic that he has taken his seat by the mere fact of his winning the election and the House meeting. It is this seat that has to be vacated by him by resignation or withdrawal from membership on the occurrence of any of the events spelt out in section 103(1)(a) to (g) particularly (f) which is the event under consideration. The provisions of section 103(1) are clear and unambiguous.

It is necessary to keep in mind the presumption that words in a statute are strictly and correctly used. We must not forget that:

“It ought to be the rule, and we are glad to think it is the rule, that words are used in an Act of Parliament correctly and exactly and not loosely and inexactly. Upon those who assert that the rule has been broken the burden of establishing their proposition lies heavily. And they can discharge it only by pointing to something in the context which goes to show that the loose and inexact meaning is to be preferred” per Lord Lewart C.J. in Spiliers Limited v. Cardiff Assessment Committee (1931) 2 KB 21, 43 quoted with approval by Lord Mcmillan in New Plymouth Borough Council v. Taranek Electric Power Board (1933) AG 680, 682.

The first rule of construction is that general statutes will prima facie be presumed to use words in the popular sense [per Lord Esher, M.R. in Clerical etc. Assurance Co. v. Carter (1889) 22 QBE. 444, 448]. See also Attorney–General of Bendel State v. Attorney–General of the Federation and 22 Others (1982) 3 NCLR. 1, 13 and 77 at 78. What is the meaning of the sentence “A member shall vacate his seat?”

The construction might appear easy and straightforward, but does it convey automatic vacation? The meanings given to the word ‘vacate’ in the Oxford Universal Dictionary illustrated 1969 are as follows:

“(1) To make void in law, to annul or concel; [e.g. to vacate a contract]

(2) to deprive of force, efficacy or value; to render inoperative

(3) to make or render (a post or position) vacant. To deprive of an occupant or holder;

(4) to leave (an office; position etc.) vacant by death, resignation or retirement, to give up, relinquish or resign the holding or possession of;

(5) to leave or withdraw from (a place, seat etc.); to quit.”

The word ‘shall’ means “will have to; must; must needs.” Applying these meanings to the sentence “a member of a House of Assembly shall vacate his seat” the only meaning the sentence can logically convey is that “a member of a House of Assembly shall, leave, give up, quit or withdraw from his seat if.” The first three meanings are not applicable to this situation.

The draftsman has not, in my view, given the situation on automatic vacation of the seat by the disqualifying event if that was his intention. It is the duty of the court particularly the Superior Court of this country to interpret the words of the Constitution and extract the intention of the framers of the Constitution from the meaning of the words used. If the provision had been framed differently to read “the seat of a member of the House of Assembly shall be vacant if” on the event, the seat is automatically vacated if there is no dispute of fact. See in re The Bodage Company Limited (1904) 1 Ch. 276. The meaning is that “the seat shall become deprived of its occupant or holder if” and this means that a member of the House ipso facto, or automatically vacates his seat on the act or omission being done.

In the case of Turnbull v. West Riding Athletic Club 70 LT 92, Kakewick, J. expresses the correct view.

It would also have been automatic vacation if the provision had read “a member of a House of Assembly vacates his seat in the House if. . .”

I have had a look at the case of Turnbull v. West Riding Athletic Club Leeds Limited (1894) 70 LT. 92. The Headnote reads in part:

“Article 70 of the articles of association of a company provided that the office of any director should be vacated, if among other things he contracted with the company or was concerned in or participated in the profits of any contract with or work done for the company without declaring his interest at a meeting of the directors and that no director so interested should vote on any question relating to such contract or work. so interested should vote on any question relating to such contract or work. The plaintiff was a director, and at a meeting of the Board on 14th April, 1893, he informed the Chairman, prior to the commencement of the business, that he was “jointly interested” with M. in a contract concerning which some questions were on the agenda paper for discussion, but he did not specify the precise nature or extent of his interest. The plaintiff took part in the business and was recorded on the minutes as ‘neutral.’ At a meeting of the Board on the 11th August, 1893, no notice of which was given to the plaintiff a resolution was passed declaring that his seat as a director has been vacated under Article 70.”

On a motion treated by consent as the trial of the action Kakewick, J. granting perpetual injunction prayed for said at 94 “But a man is entitled to have the penalties imposed by articles of association inflicted according to the letter of the law. He is entitled to have words and rules followed strictly. In my opinion, it is not fair and proper, or within the meaning of these articles of association, that a man should be turned out of the Board of the company without an opportunity of justifying himself. Here justification may have been possible. Assuming Mr Turnbull did honestly declare his interest, and that the directors probably knew what his interest was, he might have made a plausible speech, and might, if he were as clear an advocate as a cyclist, have won over the directors. Mr Burdswell argued that the seat would be vacated without further steps being taken. Possibly that may be the literal meaning of the rule; but, in my opinion, the fair construction of it must be that something must be done to render the seat vacant; and moreover natural justice requires that the director shall have an opportunity of saying what occurs to him on his behalf . . . I am not aware of the point having been precisely decided, but, having regard to Clauses (a), (b), (c) and (d), I cannot say that the seat was vacated as a fact when the director did not declare his interest.” (Italics mine).

The plain and grammatical meaning of the sentence must, in my view, mean that “a member of a House of Assembly shall quit, withdraw from his seat or resign his seat and membership of the House of Assembly.” If despite the automatic termination of his membership by the occurrence of any of the disqualifications set out in section 103(1)(a) to (g) he refuses or fails to vacate his seat and participates in the proceedings of the House of Assembly, the Speaker ought to initiate proceedings in the State High Court to declare his seat vacant.

The provisions of section 93 which reads:

“Any person who sits or votes in a House of Assembly of a State knowing or having reasonable grounds for knowing that he is not entitled to do so shall be guilty of an offence and shall upon conviction be liable to a term of imprisonment not exceeding six months or to a fine not exceeding N1,000.00, or such higher term of imprisonment or a fine of a greater sum as may be prescribed for each day on which he sits or votes.” Can then be called into play.

Until a member vacates his seat or the court declares his seat vacant for becoming disqualified, it will be virtually impossible to prosecute him successfully for an offence under section 93 of the Constitution where the facts are disputed. Where the facts, therefore, are in dispute, it is only a declaration of vacancy of the seat by a competent High Court that will provide the necessary knowledge or grounds for knowledge.

A look at the provisions of Articles 101 and 190 of the Constitution of India (as amended up to 1979) and the provisions of sections 6(1) and 7(7) of the British House of Commons Disqualification Act 1975 will throw much light on the point being made.

The British House of Commons Disqualification Act section 6(1) contains in paragraph (b) provisions similar to our section 103(1). It reads:

“If any person being a member of that House becomes disqualified by this Act from membership or for membership for the constituency for which he is sitting, his seat shall be vacated.”

Jurisdiction as to disqualification was given to the Privy Council by section 7(1) of the House of Commons Disqualification Act 1975 which reads:

“Any person who claims that a person purporting to be a member of the House of Commons is disqualified by the Act or has been so disqualified since his election may apply to Her Majesty-in-Council in accordance with such rules as Her Majesty-in-Council may prescribe for a declaration to that effect.”

The Constitution of India (as amended up to the Constitution (Forty-fourth Amendment) Act 1979 by its provisions in Article 101(3) clearly vacates the seat of a member of either House of Parliament automatically and by its provisions in Article 190(3) clearly vacates the seat of a member of a House of the Legislature of a State. The provision of the said Article 103(1) reads:

“If a member of either House of Parliament

(a) becomes subject to any of the disqualifications mentioned in Clause (1) of Article 102; or

[(a) resigns his seat by writing under his hand addressed to the Chairman or the Speaker, as the case may be, and his resignation is accepted by the Chairman or the Speaker, as the case may be]

his seat shall thereupon become vacant.

[Provided that in the case of any resignation referred to in sub-Clause (b) if from information received or otherwise and after making such inquiry as he thinks fit, the Chairman or the Speaker, as the case may be, is satisfied that such resignation is not voluntary or genuine, he shall not accept such resignation].”

The disqualifications set out in Article 102 are almost in pari materia with those set out in section 62 and 101 of our 1979 Constitution. Clause (4) of Article 101 is of particular interest in that it deals with the power of the House to make the declaration of the seat of absent members vacant. It reads:

“If for a period of 60 days a member of either House of Parliament is without permission of the House absent from all meetings thereof, the House may declare his seat vacant; Provided that in computing the said period of 60 days no account shall be taken if. . . days.”

In India, it is the House that is competent to declare his seat vacant. Article 190(3) and 190(4) are in pari materia with Article 101(3) and 101(4) quoted above except that Article 190 refers to the seat of a member in a House of the Legislature of a State and the disqualifications resulting in automatic vacation of seat are set out in Clause 1 of Article 191. Article 190(3) reads:

“If a member of a House of the Legislature of a State

(a) becomes subject to any of the disqualifications mentioned in Clause (1) of Article 191; or

[(b) resigns his seat by writing under his hand addressed to the Speaker or the Chairman, as the case may be, and his resignation is accepted by the Speaker or the Chairman, as the case my be]

his seat shall thereupon become vacant.

Article 190 (4) reads:

“If for a period of sixty days a member of a House of the legislature of a State is without permission of the House absent from all meetings thereof, the House may declare his seat vacant;

Provided that in computing the said period of sixty days no account shall be taken of any period during which the House prorogued or is adjourned for more than four consecutive days.”

Our 1979 Constitution section 103(1) did not declare that the seat of a member shall become vacant but made it mandatory for the member to vacate his seat. Unlike Article 190(4) the power to declare vacant the seat of members absent without just cause was not given in the Speaker or the House but to the competent High Court.

The National Assembly has not promulgated any enactment in pursuance of section 111 setting out who may invoke the jurisdiction of the competent High Court under section 237(1) but since it is the respondent i.e. the Speaker who claims that the appellant has been so disqualified since his election, it is the constitutional duty to apply to the court for a declaration to that effect and not to assume the jurisdiction which rightly belongs to the competent High Court to so declare and declare the seat vacant.

In this regard, I agree with my learned brother, Eso, J.S.C. when he said:

“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 in 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.”

I will for the above reasons, allow the appeal in respect of the claim (1) for declaration, set aside the decision of the Federal Court of Appeal and restore the declaration made by the learned trial Judge.

Turning to the claim for injunction, the Affidavit evidence before the court raised a serious dispute as to the facts and this must be resolved by the competent High Court before a decision whether to grant or refuse the order is taken, and I cannot agree with my learned brother, Eso, J.S.C. more when in the appraisal of the Affidavit evidence he said:

“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, 1981 wherein he alleged an attendance of 139 days as against the Speaker’s allegation of attendance for 88 days). The dispute raises an issue of fact which must be resolved.”

Such issues can only be resolved in a proper trial following the settlement, filing and exchange of pleadings by the parties.

While the claim for declaration of competency of the Speaker to declare the seats vacant which is solely one of consideration and interpretation of the provision of the Constitution could be initiated by Originating Summons, the claim for injunction on disputed facts cannot properly proceed by originating summons. Generally, the procedure for initiating an action in Bendel State High Court is by a writ. In this regard, Order 2, rule 1 of the High Court Civil Procedure Rules of Bendel State provides that:

“Every action shall be commenced by a writ of summons, which shall show the cause of action and be endorsed with a statement of the nature of the claim, or of the relief or remedy required in the action.”

But by virtue of Order 35, rule 10 of the Bendel State High Court Civil Procedure Rules, the adoption of the procedure in the High Court of Justice in London is still permissible to resolve the issue of construction of the Constitution. See Order 5, rule 3 (R.S.C. 1965) of the English Supreme Court Rules and in particular Order 5, rule 4(2).

This rule 4(2) of Order 5 reads:

“Proceedings

(a) in which the sole or principal question at issue is or is likely to be one of the construction of an Act or of any instrument made under an Act or of any deed, will, contract, or other document or some other question of law or

(b) in which there is unlikely to be any substantial dispute of fact are appropriate to be begun by originating summons unless the plaintiff intends in those proceedings to apply for judgment under Order 14 or Order 86 or for any other reasons considers the proceedings more appropriate to be begun by writ.”

For the above reasons, I would and I hereby dismiss the appeal against the decision of the Federal Court of Appeal reversing the High Court decision granting the order of injunction claimed.

In conclusion:

(1) The decision of the Federal Court of Appeal dismissing the claim for 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.”

is hereby set aside and the decision of the High Court of Bendel State (Ogbobine, J.) granting the declaration, restores.

(2) The decision of the Federal Court of Appeal dismissing the claim for the order of injunction is hereby affirmed.

Each party is to bear costs and I will award none.

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.

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 subsections (1)(f) and (2) of section 103 of the Constitution of the Federal Republic of Nigeria 1979.” (Italics mine).

The respondent in that letter then set out the provisions of section 103(1)(f) and 103(2) of the Constitution 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 cause 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 plaintiff’s attendance at meetings fell far short of the statutory requirement, he wrote to him letter No. SH. 19/105 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 103(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 subsections (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.” (Italics in this letter are mine).

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 oversighted 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).

(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.” (The italics in all the Affidavit and letters reproduced above are mine).

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 any one 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.” (Italics mine).

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.” (Italics mine).

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. Insofar 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.” (Italics mine).

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 context 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. Insofar 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.

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, insofar 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, insofar 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 insofar 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 thereunder 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 2 371 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;

(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;

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.

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 modern 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) he 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 a 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 plaintiff’s 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 plaintiff’s 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 any one 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 constitutionprovision 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 103(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 constitutionprovision 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 103(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 constitutionprovision 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 be 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 thereunder before setting down a principle which governs all of them.

Paragraph (a) of subsection (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, insofar 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 insofar 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 subsection (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 subsection (2) of section 103 nugatory.

What I have said in relation to paragraph (a) and (f) will apply to all the other paragraphs in subsection (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 subsection is that though the seat becomes vacant automatically on the happening of any of the events in the subsection 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 1 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 percent 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 103(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 any one 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 another (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.” (at 86 ibid).

Originating summons is reserved for issues like the determination of 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) at 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.

Nnamani J.S.C. I had the privilege of reading in draft the judgment just delivered by my learned brother, Kayode Eso J.S.C. I agree entirely with his reasoning and conclusions.

I have found it necessary to add a few remarks merely to underline the constitutional importance of the issues raised in this appeal. By way of preliminary remarks, I would wish to touch on the substance of the relief which the appellant claimed in the High Court. The first part of the claim was in these terms

“(a) A declaration that the defendant is not competent to declare vacant the seat of the plaintiff as member for North Akoko-Edo Constituency in the Bendel State of Assembly.”

I do not think that the issue here can be determined by taking a narrow approach to the relief claimed. It raises in my view the wider question of what the role of the Speaker or Presiding Officer must be if the event set down in section 103(1)(f) of the Constitution of the Federal Republic of Nigeria, 1979 (hereinafter known as the 1979 Constitution) which I shall deal with hereafter, does happen. In this connection I agree with the formulation of the issue as made by the Federal Court of Appeal (hereinafter known as the Court of Appeal) as per Nasir P. although, with all respect, I do not think that the House of Assembly has any role in matters pertaining to section 103 of the Constitution. The learned President had said that

“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”

This issue cannot be determined by reference to section 237 of the Constitution alone. That section provides in subsection (1) as follows:—

“Without prejudice to the generality of provisions of section 236 of this Constitution, the competent High Court shall, to the exclusion of any other court, have original jurisdiction to hear and determine any question whether any person has been validly elected to any office or to the membership of any legislative house, or whether the term of office of any person has ceased or the seat of a person in a legislative house has become vacant” (Italics mine).

It might be relevant at this point to refer to the action of the Speaker i.e. the respondent which led to this suit. In his letter to the appellant dated 15th September, 1981 the respondent said in paragraph 3 as follows:

“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’.”

I have no doubt that what respondent did here was purportedly to declare the appellant’s seat vacant. If I had to decide this appeal on a narrow compass as reflected in the first part of the claim, and by looking only at section 237 of the 1979 Constitution I would have had no difficulty in granting the declaration sought. The jurisdiction of the competent High Court in section 237 of the Constitution is clear and allows of no argument. The determination of the question whether the seat of a member of a legislative house has become vacant is within the exclusive jurisdiction of the competent High Court and no other body or authority can validly declare such a seat vacant. But as I stated earlier in this judgment, the matter is much wider. In the circumstances of this case, the issues cannot be resolved without reference to section 103(1)(f) of the Constitution. It is now well settled that in the interpretation of a Constitution all the relevant sections should be interpreted together. In other words, the Constitution must be interpreted as a whole. It is my view that section 237(1) must be interpreted together with section 103(1)(f) of the Constitution. The latter section provides as follows:

“103

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

Subsection 2 of section 103, which in my view, at least in relation to this subsection, deliberately vests so much power on the Presiding Officer of the House on any particular day, stipulates that

“(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.”

The first question that arises is the proper meaning of the first part of section 103 of the Constitution. On the happening of the event set down in section 103(1)(f), or indeed in any of the other sub-paragraphs of subsection 1, has a member of a House of Assembly a choice over the question of vacation of his seat? Can he decide to continue sitting as a member until such time as the Speaker of the House of Assembly goes to the High Court pursuant to section 237 of the Constitution and the question whether his seat is vacant is determined? I think not. It is my view that on the happening of any of the events set down in section 103 a member of the House of Assembly has no choice but to vacate his seat. The provision in section 103(1) of the Constitution is mandatory and peremptory. It seems settled that if a statute declares that a thing “shall” be done the natural and proper meaning to be given to it is that it is peremptory not directory. (see Stroud’s Judicial Dictionary of Words and Phrases 4th Edition Vol. 5 at 2514). Admittedly there is no general rule for determining when the use of word shall implies a peremptory or directory mandate but as Lord Campbell L.C. said in Liverpool Borough Bank v Turner (1860)2 De G.F. and 1 502 at 507 and 508.

. . . “It is the duty of Courts of Justice to try to get at the real intention of the Legislature by carefully attending to the whole scope of the Statute to be construed.”

I also concede that such an interpretation is not without some difficulty particularly when the constitutions of several common law jurisdictions such as Australia, Canada, Democratic Socialist Republic of Sri Lanka provide in similar sections that such seats “shall become vacant.” The situation would have been much clearer if section 103(1) of the 1979 Constitution had been worded like section 37(1) of the 1965 Constitution of the United Republic of Tanzania. That section provides that

“A member of Parliament shall cease to be a member of Parliament and shall vacate his seat in Parliament when any of the following events occurs:—”

Nevertheless. if one construes section 103 of our Constitution against the background of the object that that provision was meant to serve there can be no doubt as to the intention of the framers of our Constitution when the words “shall vacate” were used. Because of the meaning that I attach to those words “shall vacate his seat”, I would go on to hold that on the happening of any of the events under section 103 of the 1979 Constitution the seat of a member of the House of Assembly becomes automatically vacant by operation of the Constitution.

Section 89(1) of the 1979 Constitution provides that

“at any sitting of a House of Assembly, the Speaker of that House shall preside and in his absence the Deputy Speaker shall preside.”

It follows that Presiding Officer as contained in section 103(2) of the 1979 Constitution includes the Speaker. What then is the role of the Speaker under section 103 of the 1979 Constitution? In my view too, if any of the events stipulated in section 103 of the 1979 Constitution occurs and the seat of the member becomes automatically vacant, the Speaker of the House of Assembly or any member of that House for that matter can bring the fact of that vacancy to the notice of the member concerned. Where that member does not honourably withdraw from the House of Assembly, the Speaker, in accordance with the standing orders of the House of Assembly, if any, can exclude him from sittings of the House or its Committees. The Speaker may do this by using the services of the Sergeant-at-Arms. I am also of the view that the seat having become vacant, the Speaker can take such further steps as suspending the salary and allowances of the member. I am unable to accept the contention which was urged on us that if a member of a House of Assembly fails to vacate his seat following the happening of any events under section 103 of the 1979 Constitution the Speaker must necessarily go to court before he can take any of the steps enumerated above. Such a construction would place a rather heavy burden on the Speaker and would frustrate the object of that provision of the Constitution. Absenteeism from Legislative Houses and carpet crossing (dealt with in section 103(1)(g) of the 1979 Constitution) were twin ills in the political process in the First Republic. It is my belief that the 1979 Constitution was designed to check those ills.

In my view it is the aggrieved member of the House of Assembly, contending that the event under section 103 of the 1979 Constitution has not happened and so that his seat is not vacant, and therefore in reaction to the Speaker’s action against him, who must go to the High Court for redress. It is only at this point that section 237 of the 1979 Constitution comes into play and the competent High Court would determine the issue whether the seat of the member of the House has become vacant. If it does so find it will so declare. I may mention that at the point when there is an issue to be determined by the High Court it is not only the aggrieved member of the House of Assembly who can go to the High Court. It is my view that any other member of that House of Assembly or indeed a citizen from the member’s constituency can equally go to the High Court. I think that these are appropriate cases in which “standing” could be granted to the categories of persons mentioned. I still hold the views which I expressed in Senator Abraham Adesanya v. President of the Federal Republic of Nigeria (1981) 5 S.C.112 at 184 to the effect that the courts should determine in each case what amounts to or the scope of sufficient interest which will entitle the complainant to sue, and in determining this question, the courts should allow a liberal spirit to prevail.

In the instant appeal, without going unduly into the merits of the case, the position is that the respondent found that the appellant was absent from the sittings of the Bendel State House of Assembly for 94 days in the relevant session. This amounted to more than one third of the total number of days during which the House met in that year. Having regard to the provisions of section 103(1)(f) and section 103 subsection 2 of the 1979 Constitution his seat had become automatically vacant. The Speaker, the respondent, had a constitutional duty to enforce the provisions of the Constitution and excluded him from the sittings of the Bendel State House of Assembly. If the appellant was aggrieved, as indeed he was, it was he, not the Speaker, who should have recourse to the competent High Court pursuant to section 237(2)(c) of the 1979 Constitution to determine the whole question of whether his seat has become vacant.

For these reasons and for the reasons so lucidly set down in the judgment of Eso J.S.C. to which I had made reference, I would also dismiss this appeal. The appeal is accordingly dismissed. I affirm the judgment of the Court of Appeal dated 1st September, 1982. I endorse all the orders in the judgment of Eso J.S.C.

Uwais J.S.C. I have had the privilege of reading in draft the judgment read by my learned brother, Eso, J.S.C. I agree that this appeal should be dismissed for the reasons contained in the said judgment.

It is very clear from the provisions of section 237 of the Constitution of the Federal Republic of Nigeria, 1979 that the power to determine any question connected with the seat of a member of State House of Assembly becoming vacant is exclusively conferred on State High Courts. However the power or jurisdiction becomes exercisable only when there is a dispute as such which has been referred to the appropriate High Court for determination.

There is no dispute, since it is common ground among the parties in this case, that the provisions of section 103 subsection (1) of the Constitution take effect automatically as soon as any of the events prescribed under paragraphs (a) to (g) thereof takes place. In other words, a member loses his seat with immediate effect subsequent to the happening of any of the events specified.

The facts which gave rise to the dispute between the appellant and the respondent are discernible from the Affidavit sworn to by the appellant on 30th November, 1981 in support of the originating summons issued by the trial Court against the respondent. Paragraphs 4 to 6 of the Affidavit state as follows:

“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 (respondent) did not allow me to take my seat and insisted that my seat has (sic) 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.”

It seems to me, from the foregoing, that it was neither the letter of 18th August, 1981, written to the appellant by the respondent, asking the appellant to justify his absence from the meetings of the House; nor the letter of the 15th of September, 1981, declaring the appellant’s seat vacant, that caused the dispute between the parties; but the denial by the respondent of the appellant the right to participate in the meeting of the House on 5th October, 1981. It is remarkable therefore that the appellant did not ask the trial Court to determine the issues raised in paragraph 4 of his Affidavit. Instead he asked for a declaration that the respondent was incompetent to declare his seat vacant.

In my opinion the trial Court should have directed its attention to the distinction between the appellant’s claim and the facts in support of the claim. If it had done so it would have discovered that the real dispute between the parties was whether the appellant absented himself from the meetings of the House without justification and in the process fell foul of the provisions of section 103 subsection (1)(f) of the Constitution. The trial Judge, should have therefore refused granting the remedies sought by the appellant since both are discretionary. I am of the view that the

Federal Court of Appeal was right in setting aside the decision of the learned trial Judge.

Although the respondent declared the appellant’s seat in the House vacant in his letter of 15th September, 1981 I believe that no harm was actually done. The seat was in any event vacant by the operation of the provisions of section 103(1)(f) of the Constitution if the appellant had been absent from the meetings of the House as alleged. The declaration was therefore otiose and of no legal effect. There was in my view no usurpation of the jurisdiction of the State High Court under section 237 of the Constitution since the declaration was not made in consequence of any dispute. As already stated, the dispute between the parties arose only after the appellant was not allowed to participate in the proceedings of the House.

Accordingly the appeal is dismissed. The decision of the Federal Court of Appeal is affirmed and N300.00 costs are awarded against the appellant in favour of the respondent.

Nigeria LII

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