ALEGBE V. OLOYO

Pages315-369
ALEGBE V. OLOYO
315
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
5
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.
10
The appellants are entitled to their costs which I hereby assess at N300.00
against the respondents.
Appeal allowed.
15
ALEGBE V. OLOYO
20 B.A. ALEGBE
SPEAKER BENDEL STATE
HOUSE OF ASSEMBLY
V
M.O. OLOYO
25
RESPONDENT
APPELLANT
SUIT NO. SC 94/1982
SUPREME COURT OF NIGERIA
FATAI-WILLIAMS, C.J.N.
SOWEMIMO,
BELLO,
30
OBASEKI,
ESO,
NNAMANI,
UWAIS,
29th July, 1983
35
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
40
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.
45
Jurisdiction - Question whether seat of member of legislative house has become
vacant - Original jurisdiction vests exclusively in relevant state High Court.
ISSUES:
50
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.
316
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.
5
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?
10
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
15
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
20
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.
25
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.
30
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.
35
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
40
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:
45
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
50
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
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
5
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
10
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
15
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
20
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
25
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.
30
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
371.
4.
State of New Jersey v. Sargent
5.
Alabama State Federation of Labour v. Mcdoty
6.
Australian Boot Trade Association v. The Commonwealth
(1953-54) 90
C.L.R. 24 at 50.
40
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.
45
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)
50
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.

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