9th December, 2014
By Aloy Ejimakor
As was done in the previous defections of some members of House Representatives, PDP is again at the Federal High Court, following Tambuwal’s defection, praying for a declaration that his seat has become vacant. In his defense, Tambuwal has, to his unwitting advantage, responded and joined issues without raising the most important defenses: lack of jurisdiction and/or failure to state cause of action. Both parties are wrong. Even as the clock is already ticking, Federal High Court jurisdiction is, in the interim, of second instance and thus in abeyance. It will be triggered only after the final exercise of jurisdiction of first instance which, according to clear provisions of the constitution, strictly lies with the House, which is yet to rise to the occasion. Below are the points and authorities.
Section 68 (1) (g), CFRN provides in pertinent part as follows: “(1) A member … of the House of Representatives shall vacate his seat in the House of which he is a member if – (g) Being a person whose election to the House 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 of a merger of two or more political parties or factions by one of which he was previously sponsored”.
Section 68 (2) then provides further that “… the Speaker of the House of Representatives …, shall give effect to the provisions of subsection (1) of this section, so however that … the Speaker of the House …or a member shall first present evidence satisfactory to the House … that any of the provisions of that subsection has become applicable in respect of that member”. This is where the kernel of House jurisdiction of first instance, to the exclusion of Federal High Court jurisdiction, is firmly grounded. The sentence speaks of ‘evidence satisfactory to the House’, not evidence satisfactory to the Federal High Court. In other words, it is the House that is empowered by the Constitution to make the ‘findings of fact’ or called upon to satisfy itself that first, a defection has taken place; and second it is not as a result of division or merger.
Contrastingly, Section 251(4) provides that “The Federal High Court shall have and exercise jurisdiction to determine any question as to whether the term of office or a seat of a member of the Senate or the House of Representatives has ceased or his seat has become vacant”. For avoidance of doubt, this is an amendment of Section 251 (general Federal High Court jurisdiction), not Section 68 (House jurisdiction on defections) which was left intact and undisturbed by the Alteration Acts; yet, it is this amendment that has unwittingly wrought the persisting misguidance that propelled the quick rush to the High Court. If the National Assembly had intended that jurisdiction over defections shall first, and to the exclusion of the of House, lie with the Federal High Court, it would have repealed the extant and preeminent House jurisdiction stipulated at Section 68. The legislative intent, therefore, is for Section 68(2) to be fully ventilated or breached before Federal High Court jurisdiction comes into play.
Concerning the conditions precedent to Court exercise of jurisdiction, the Supreme Court had long held that certain conditions must be met before Court jurisdiction attaches. They are ‘(a) whether the subject matter of the case is within the court’s jurisdiction; (b) whether there is any feature in the case which prevents the court from exercising its jurisdiction, and (c) whether the case before the court was initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction.
See Madukolu v Nkemdilim, 1962 2 SCNLR 342, cited with approval in Ajao v Popoola, 1986 5 NWLR 802, and many others. It is pertinent to note that Madukolu is a locus classicus and remains the lex loci on maturation of jurisdiction to this day. In other words, even as the subject matter (vacating of seat) for High Court jurisdiction is present, there is, in the interim; a feature (defection and its defenses) and a condition precedent (House proceedings) that must be fulfilled before exercise of jurisdiction of the Federal High Court is triggered.
Further, at first glance, we also see from the plain letters of Section 68 that it is the Speaker himself, not a Federal High Court judge, that shall first give effect to the constitutional consequence that arises from defection of a member of the House; and the Speaker gives such effect after he or any other member of the House has ‘first presented evidence satisfactory to the House that any of the provisions of that subsection has become applicable’. But, as it stands, the Speaker cannot be expected to, willy-nilly, enforce the constitution against himself.
At first impression, this appears to present some challenges, but the proper or first forum for dealing with such challenge is the House, not the Federal High Court. Recall that presentation of evidence of the defection and satisfaction of the House thereof must occur before the Speaker can act.
So, the problem begins to know solution once any member, standing on the threshold of the clear provisions of the constitution and the notoriety of Tambuwal’s defection, rises before the House while it is normally or ordinarily empanelled and presents the evidence of defection; and Tambuwal rebuts with the affirmative defenses of either division or merger. This has not happened.
After presentation of the evidence and the defenses, the next process, and that is: satisfying the House on the elements of the impermissible defection follows. Finally, if the House makes ‘findings of fact’ that the defection is not saved by any of the two exceptions or defenses of division or merger, Tambuwal ‘shall’ then, without more, give effect to Section 68 (1) by vacating his seat. It is only after he has refused to vacate that Federal High Court jurisdiction attaches under Section 251 (4).
What will then be at issue before the Federal High Court will be whether, by virtue of the House action, Tambuwal’s seat has become vacant. The single exception, though of limited impact, is an action for mandamus to stop Tambuwal from blocking the House from consideration of the issue of his defection. Such Federal High Court action will lie but only to the limited reach of compelling Tambuwal to perform the constitutionally-mandated functions of his office to empanel the House. But Tambuwal has not yet done that.
So, how can the House, led by defector Tambuwal, be compelled to properly convene itself to deliberate on this matter; and what procedures are available to it under the Constitution? The Constitution took care of that, and here they are: Section 53 (1) provides as follows: “At any sitting of the National Assembly – (b) in the case of the House of Representatives, the Speaker of that House shall preside, and in his absence the Deputy Speaker shall preside. (3) In the absence of the persons mentioned in the foregoing provisions of this section, such member … the House of Representatives may elect for that purpose shall preside”.
Section 54(1) then states: “The quorum of … the House of Representatives shall be one-third of all the members”. Section 56(1) says: “Except as otherwise provided by this Constitution any question proposed for decision in … the House of Representatives shall be determined by the required majority of the members present and voting; and the person presiding shall cast a vote whenever necessary to avoid an equality of votes but shall not vote in any other case. (2) Except as otherwise provided by this Constitution, the required majority for the purpose of determining any question shall be a simple majority”.
From the foregoing, we now know these: If Tambuwal is ‘unable’, refuses to preside or is otherwise recalcitrant, Ihedioha (the Deputy Speaker) shall preside. If Tambuwal and Ihedioha are simultaneously ‘unable’ or refuse to preside, any other ordinary member elected on the floor, suo sponte, for that purpose shall preside. The quorum for House sittings is one-third of all members. That’s easy, considering that PDP is still in majority; and if you will, the party can readily muster one-third of Reps from two or three ‘loyal’ geopolitical zones or a spread thereof.
It is members present and voting that shall be satisfied, not all members. The required majority is simple majority (very easy). And since Ihedioha or any other member can act as Speaker pro tempore, it no longer lies in Tambuwal’s hands alone to ‘give effect to the provisions of subsection (1)’ of Section 68. But even if it can be argued by some stretch that it is Tambuwal that must personally give effect to the House ruling, he must still do so, even against himself and despite his understandable unwillingness, because the word used, once the House is satisfied, is ‘shall’, not ‘may’. In other words, the ‘shall’ means that Tambuwal, even still presiding and persistently audacious, is constitutionally incapable of upturning the popular will of the House. That he is the Speaker, and thus at vantage position, will not enable him to thump his nose at the clearly mandatory provisions of Section 68.
Thus, as we have seen from the preceding paragraphs, there is not yet any case or controversy or cause of action that should warrant PDP or even Tambuwal to proceed to Court to determine this very question of the fell consequences of his defection. Thus any case predicated on this defection and thereby praying for a declaration that Tambuwal’s seat is already vacant is, in the interim, not ripe; and at worst, it is tantamount to praying the High Court for an advisory opinion on an issue which the House has the authority to act but has yet to do so. Rushing to court when the House is yet to act is an act of impermissible preemption of House original jurisdiction, and potentially an abuse of legal process.
To better understand the unique jurisdictional interplay between Section 68 (House quasi-original jurisdiction) and Section 251(4) (Federal High Court quasi-appellate jurisdiction); we only need to look at some examples, where the legislature is required by the Constitution to have taken the first action (or exercised its first right of jurisdiction) before Court jurisdiction attaches. They are: Federal High Court jurisdiction over impeachment of Governors, etc. and Appeal Court jurisdiction over impeachment of the President, etc. In these two examples, jurisdiction of first instance lies with the legislature, which must first act on the articles of impeachment and bring the matter to an affirmative end before Court jurisdiction matures.
It then follows that in bypassing the House and taking this matter of Tambuwal’s defection (and the others before it) first to the Court is akin to also taking articles of impeachment first to the Court without giving the legislature its first right of jurisdiction to act on the impeachment. In other words, despite the open and notorious prevalence of impeachable offences and legislative dithering, Court jurisdiction remains in abeyance; and may not come to maturation until the condition precedent – legislative jurisdiction, is fulfilled.
Concerning this very defection of Tambuwal and others before him, it is understandable that PDP rushed to Court out of its frustrations with Tambuwal’s audacity and the many misfortunes the party has endured in the House of Representatives of this era. But that does not make it right to jump the gun. The next and immediate course of action, therefore, is for the PDP to summon the political/legal will to force the constitutionally-stipulated actions on the floor of the House. If PDP succeeds, as is very likely, and Tambuwal is felled as a member of the House, his being Speaker becomes a moot point. So, it is not like the riddle of the chicken and the egg, which came first. He was a Rep before he became Speaker; thus he must cease to be a Rep before he ceases to be a Speaker, unless he resigns (impossible), is recalled by his constituents (impossible), is impeached (very difficult because it requires two-third majority), he is appointed or elected to another office (not presently in play), or he dies (an act of God that is beyond human contemplation).
Aloy Ejimakor, a lawyer, wrote in from [email protected]; +234 803 265 1660 (Texts only).