The issue of who has the power to declare the seat of an absentee legislator vacant is one that appears controversial on the surface. But, this issue appears to have been resolved with finality by the Nigerian Supreme Court in the celebrated case of Oloyo v. Alegbe (1983) N.S.C.C, 315. The Appellant in this case, Hon. Oloyo who was a member of the defunct Bendel State House of Assembly was absent for a good number of days the House had its meetings.
Flowing from this act of absenteeism, his seat was declared vacant, by writing, at the instance of the Respondent, Rt. Hon. Benson Alegbe, who was the Speaker of the House.
At the trial court, an injunction was granted in favour of Oloyo. But, this decision was upturned, on appeal, by the Court of Appeal, with Nasir PCA (as he then was presiding).
Upon an appeal to the Supreme Court by Oloyo, the apex court agreed with the decision of the Court of Appeal and dismissed the appeal of Oloyo.
The Supreme Court Justices that decided the matter in Oloyo v. Alegbe, (supra) were: 1. Atanda Fatayi-Williams CJN 2. George Sodeinde Sowemimo JSC 3. Mohammed Bello JSC 4. Andrews Otutu-Obaseki JSC 5. Kayode Eso JSC 6. Augustine Nnamani JSC 7. Muhammadu Lawal Uwais. Of these 7 Justices, Kayode Eso JSC read the lead judgment.
I shall hereunder set forth 5 ratios (reasons) as given by Eso JSC, justifying why the apex court came to its conclusion in favour of the Respondent, (the Speaker of the Bendel State House of Assembly, Benson Alegbe), who declared the seat of the Appellant,( Oloyo, the absentee legislator), vacant based on the clear provisions of Section 103 (1)(f), (2) & (3) of the 1979 Nigerian Constitution. The above provisions of the 1979 Nigerian Constitution, are on all fours with the extant provisions of Section 109 (1)(f), (2) & (3) of the 1999 Nigerian Constitution, as amended, (upon which the present Speaker of the Edo State House of Assembly acted in declaring the seat of the absentee Edo legislators vacant).
ON WHETHER THE SPEAKER REQUIRES JUDICIAL INTERPRETATION BEFORE ACTIVATING THE PROVISIONS OF THE CONSTITUTION ON VACANCY OF THE SEAT OF AN ABSENTEE LEGISLATOR
I. “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 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.”
II. “A legal dispute only arises after the seat of the member is declared vacant by the Speaker.”
III. “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. For indeed it is the person who is aggrieved that should seek remedy in court.”
IV. “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.”
V. “The Speaker who is under Section 86 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.” Per Kayode Eso JSC.
In the light of the foregoing, the action of Rt. Hon Frank Okiye, Speaker of the Edo State House of Assembly in declaring the seat of the absentee legislators vacant (on 4/12/19) has the full blessings of both the Nigerian grund norm and the Nigerian apex court. The Abuja-based ex-legislators can try out their luck at the Edo State High Court and see if they can make the apex Court overrule its earlier decision in Oloyo v. Alegbe, (supra).
Emwanta is a Constitutional lawyer and law teacher at the Department of Public Law, Faculy of Law, University of Calabar