ALEGBE V. OLOYO

• Pages: 315-369

ALEGBE V. OLOYO

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I am in complete agreement with his reasoning and conclusion. For the rea-

sons which were clearly set out in the said judgment,

I

too, would allow, and here-

by, allow, this appeal and set aside that portion of the judgment of the Federal

Court of Appeal vesting title to the land in dispute in the respondents and granting

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them injunction in respect thereof against the appellants. In lieu thereof, I also

would restore, and hereby, restore, that portion of the judgment of the trial court

(Moje Bare, J.) dismissing the respondents' claims for title and injunction. The

dismissal by the Federal Court of Appeal of the claim for damages for trespass is

hereby affirmed.

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The appellants are entitled to their costs which I hereby assess at N300.00

against the respondents.

Appeal allowed.

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ALEGBE V. OLOYO

20 B.A. ALEGBE

SPEAKER BENDEL STATE

HOUSE OF ASSEMBLY

V

M.O. OLOYO

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RESPONDENT

APPELLANT

SUIT NO. SC 94/1982

SUPREME COURT OF NIGERIA

FATAI-WILLIAMS, C.J.N.

SOWEMIMO,

BELLO,

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OBASEKI,

ESO,

NNAMANI,

UWAIS,

29th July, 1983

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J.S.C.

J.S.C.

J.S.C.

J.S.C.

J.S.C.

J.S.C.

Constitutional Law - Tenure of seat in State House of Assembly - Cessation of

provision of s.103(1)(f) that member "shall vacate his seat" if absent without

just cause from meetings of House for stipulated period interpretation of -

Effect of power of Speaker of House under said provision - Rights of aggrieved

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member under said provision.

Practice and Procedure - Originating summons - Inappropriate for determining

factual questions as to whether seat of member of house has become vacant

for absenteeism - Writ of summons appropriate.

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Jurisdiction - Question whether seat of member of legislative house has become

vacant - Original jurisdiction vests exclusively in relevant state High Court.

ISSUES:

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1. Whether the Supreme Court should indulge in deciding academic and

hypothetical questions in constitutional causes.

2. Whether the Constitution confers upon the Speaker of a House of Assembly or

the House itself any power to determine a question as to whether or not the seat

of a member of the House of Assembly has become vacant.

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NIGERIAN SUPREME COURT CASES

[1983] N.S.C.C.

3.

Whether the Constitution confers upon the Speaker of a state House of

Assembly the power to pronounce that the seat of a member of the House of

Assembly is vacant.

4.

What is the correct and proper interpretation of s.103 (1) of the 1979

Constitution.

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5.

Whether it is proper to institute an action by way of originating summons, where

there is a dispute on questions of fact in the case.

6.

On who, does the 1979 Constitution confer the power to determine the question

as to whether or not the seat of a member of the House of Assembly has become

vacant?

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FACTS:

The plaintiff/appellant was the elected member for the North- Akoko-Edo con-

stitutency in the Bendel State House of Assembly, while the defendant was the duly

elected speaker of the said House of Assembly. S.98 of the 1979 Constitution pro-

vides that a House of Assembly shall sit for a period of not less than 181 days in

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a year and s.103 of the said Constitution provides that a member of the House of

Assembly who absents himself, without just cause, from the meetings of the House

for a period amounting to more than one-third of the total number of days during

which the House meets, in any one year, shall vacate his seat.

The plaintiff absented himself from the house for 94 days out of the 182 days

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on which the House sat, thus the defendant wrote to the plaintiff, asking him to

show just cause in writing to buttress each occasion of his absence from the house.

The plaintiff failed to do so, thus the defendant wrote to him again informing him

that his seat had been declared vacant and he was therefore no longer a member

of the house.

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The plaintiff then commenced proceedings by originating summons in the Ben-

del State High Court claiming against the defendant, a declaration that the defend-

ant was not competent to declare his seat vacant, and an injunction restraining

either the defendants or his agents from illegally presenting or interfering with his

right to continue to hold his seat in the house.

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The learned trial judge after hearing the arguments put forward by both parties

held that the seat of a member of the House of Assembly cannot be declared va-

cant by the Speaker, but only by the court or by the voluntary act of that person

who is the member of the House of Assembly. He then granted the declaration

and the injunction sought by the plaintiff. The defendants appealed.

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The Federal Court of Appeal allowed the appeal set aside the judgment of the

lower court and made an order dismissing the plaintiff's claim in its entirety. The

plaintiff appealed.

On appeal, to the Supreme Court it was contended for the plaintiff/appellant

that the power to declare the seat of a member of a legislative house vacant is

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vested in the competent High Court in its original jurisdiction by virtue of the pro-

visions of s.237(1) of the 1979 Constitution, and as such, there is no jurisdiction

left in either the speaker or in the state House of Assembly to determine the same

issue.

HELD:

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1. That the action, right from the beginning was misconcieved, as the issue before

the court, arising from all the affidavits was to resolve the dispute as to whether

or not the appeEant had in fact been absent for more than one-third of the sittings

of the House in that year. Since there was a dispute on questions of fact, the

suit should not have been brought by way of originating summons, as

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originating summons are only applicable in such circumstances as where there

is no dispute or likelihood of dispute on questions of fact. The suit should have

been commenced by writ of summons, and on this alone, the action of the

appellant in the High Court should have failed.

ALEGBE V. OLOYO

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317

2.

That the provisions of s.103 (1) (f) of the 1979 Constitution are mandatory and

automatic, and confers no power or authority on the Speaker of the House to

declare or pronounce the seat vacant. Since the member's seat becomes

vacant by operation of law, the Speaker has the power to enforce the provision

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of s.103(1) by treating defaulting member's seat as vacant and excluding him

from the House without necessarily seeking a court declaration of its vacancy.

3.

That where there is a dispute in regard to the facts constituting the event alleged

to have happened under s.103, by virtue of s.237 of the 1979 Constitution, it is

the prerogative of the court to determine whether or not a member of a House

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of Assembly has in fact vacated his seat. The original jurisdiction to determine

such vests exclusively in the relevant state High Court. However where there

is no dispute about the event stipulated in s.103, the provisions of s.237 do not

arise.

4.

That since there was a dispute on the question of facts upon which the

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constitutional issue had been based, the High Court ought to have first resolved

the issue and ascertained the facts. Thus the Federal Court of Appeal should

have allowed the appeal of the respondent, 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. Their failure to do this has

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amounted to the constitutional question being determined in abstract and in

advance of the facts of the case.

5.

That assuming that the action had been properly brought, the appellant should

still fail, because even though the Speaker has no power to declare the seat of

a member of the legislative house vacant, the provisions of s.103(1) of the 1979

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Constitution are mandatory and automatic, and any prayer granted by the court

would amount to a futile order, since the member had already lost his seat by

operation of law.

6.

That the judgment of the Federal Court of Appeal is affirmed and the appeal

fails.

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CASES REFERRED TO IN JUDGMENT:

1.

Fajinmi v. The Speaker, Western House of Assembly

(1962) 1 All N.L.R. 205.

2.

In re The Bodiga Co. Ltd.

(1904) 1 Ch. 276 at 283.

3.

Chike Obi v. Waziri (Speaker House of Representatives)

(1961) All N.L.R.

35

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371.

4.

State of New Jersey v. Sargent

269 U.S. 328.

5.

Alabama State Federation of Labour v. Mcdoty

325 U.S. 450.

6.

Australian Boot Trade Association v. The Commonwealth

(1953-54) 90

C.L.R. 24 at 50.

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7.

Carter v Potato Marketing Board

(1951) 84 C.L.R. 460.

8.

State of Bihar v. Jute Mills

A.I.R. 1960 S.C. 378.

9.

Onitiri v. Benson

5 F.S.C. 150.

10.

Theberge v. Laundary

2. A.C. 102.

11.Noses v. Parker

(1896) A.C. 245.

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12.Kennedy v. Pricell

59 L.T. 270.

13.

Vahn v. Langlois

5 A.C. 115.

14.

Webb v. Hanlon

61 C.L.R. 313.

15.Spiliers Ltd. v. Cardiff Assessment Committee

(1931) 2 K.B. 21 at 43.

16.New

Plymouth Borough Council v. Taranek Electric Power Board

(1933)

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A.C. 680 at 682.

17.

Clerical etc. Assurance

Co. v.

Carter

(1889) 22 Q.B.E. 444 at 448.

18.Attomey-General of Bendel State v. Attorney-General of the Federation and

22 others

(1982) 3 N.C.L.R. 1, 13 and 77 at 78.

19.

Turnbull v West Riding Athletic Club

(1894) 70 L.T. 92.