I was more than slightly beside myself when I came across a misleading publication by one Inibehe Effiong on face book titled "Romancing With Evil: A Brotherly Advice To The Speaker Of The Akwa Ibom State House Of Assembly."
The contents of the alleged letter in a bid to gain cheap popularity cast rebuttable presumptions on the legitimacy of the process that produced Rt. Hon. Barr. Onofiok Luke as speaker of the Akwa Ibom State House of Assembly and the political propriety as well. It is even more disconcerting knowing the writer wields the wig and gown by profession. Perhaps it is a petrel's attempt to satisfy his pay masters at the cost of a good man's image.
Apropos, my inclination as a fellow minister in the temple of justice is to shed good lights on this subject of legitimacy because it does seem to me that there is a very ignominous trend now in this country where politics is used as an instrument to warp the minds of the masses in areas of law and truths.
According to a popular Yoruba adage "You do not barb a man's head in his absence" so let us therefore be fair enough to produce some portion of Barr. Inibehe Effiong's pasquinade which begins as follows:
"Dear Rt. Hon. Onofiok Luke,
Without prejudice to possible legal challenge to your election as the Speaker of the Akwa Ibom State House of Assembly having regard to the composition of the House as at Monday the 21st December, 2015 when you were elected which felt short of the minimum number of 24 members enshrined in Section 91 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) sequel to the nullification of election of four members which reduced the total membership of the House from 26 to 22, I congratulate you on your emergence."
Of course it is no news that lawyers always tend to extend their apologies ahead of their well calculated and premeditated contumelies like the writer of the above quoted letter so maladroitly displayed before externalizing his rather "unlearned misunderstanding" of the provisions of the law which we shall be kind enough to examine herein.
Now, suffice it to say that the combined understanding of the provisions of the Constitution of the Federal Republic of Nigeria 1999 (as amended) in sections 90, 91, 92, 96 and 102 without vacillations nor equivocalities dismisses the above quote and entire letter as another legendary good riddance to bad rubbish.
Accordingly, Section 90 provides thus:
"There shall be a House of Assembly for each of the States of the Federation."
While section 91 reads as follows:
"Subject to the provisions of this Constitution, a House of Assembly of a State shall consist of three or four times the number of seats which that State has in the House of Representatives divided in a way to reflect, as far as possible nearly equal population:
"Provided that a House of Assembly of a State shall consist of not less than twenty-four and not more than forty members."
First the constitution creates the house of assembly in section 90 then proceeds to define how a state house of assembly shall be created. This is analogous to genesis 1:26-27 where it is recorded that God said "Let us create man in our image and likeness..." and went ahead to create male and female while Gen 2:7 tells us how man was created from the dust of the ground and God's breath and Gen 2:21-22 reveals how God created woman from man's rib. These are known as first and second accounts of creation under our secondary school bible knowledge curriculum. In this sense, section 90 creates the state legislature while section 91 defines the creation. Hence, there must be a state house of assembly. Then for there to be a state house of assembly there must be not less than 24 and not more than 40 members in existence. Incidentally, Akwa Ibom state has neither 24 nor 40 but 26. This section never the less does not in anyway apply to the number of members to be present for legislative businesses to be carried out. The legal term for the latter is "Quorum".
One cannot therefore reasonably expect the absence of four out of twenty six members of a house of assembly to hold the entire state to ransom. It would be denying the masses their right to democratic representation especially when the representation can be effected by the remaining twenty-two for the general benefit of the entire people of the state regardless of constituencies. The state as a matter of fact is one constituency. Nobody is voted a law maker by his constituents to make laws for them only but for the collective benefit of the whole comity of constituencies.
Put differently, the proviso in Section 91 of the 1999 CFRN states that
“Provided that a House of Assembly of a State shall consist of not less than twenty-four and not more than forty members.”
It must be noted here that this proviso and in fact the whole section itself refers to the composition of the state legislature regarding creation of constituencies of a state and does not refer to convening of legislative sessions. These are indeed two different phenomena. To further buttress this position one must take into cognizance the provisions of section 96 of the constitution on matters of session which provides as follows:
96(1). The quorum of a House of Assembly shall be One-Thirds of all the members of the House.
Now, the very familiar and popular canon of interpretation of provisions of the Constitution is: "Expressio Unius Personae Vel Rei, Est Exclusio Alterius." A Latin Maxim meaning “the express mention of one thing is the exclusion of another." Put in another way: “Where there is express mention of certain things, then anything not mentioned is excluded." Again another version of the Latin Maxim here is: “Expressio Facit Cessare Tactitum" see the English case of Stephens v. Army & Navy Stores (1914) 2 CH 526.
The application of the foregoing to the extant case is that the mention of one-third of the 26 members and not the whole 26 members means that the former is sine quo non to holding legislative sessions. In other words, The House of Assembly of 22 members out of 26 members can legitimately hold sessions provided they have the constitutional quorum of one-third which in this case is Nine.
Now, while one may be want to dismiss this submission as mere contraptions of legal technicalities it is also imperative to register here that the law is a recherché phenomenon. A phenomenal character indeed. It is not always what we want it to be but always what we need it to be. It is what I term in my previous article* on similar subject “the mischief of a social instrument.” Section 102 of the constitution is a worthy proof to this. It provides thus :
"A House of Assembly may act notwithstanding any vacancy in its membership, and the presence or participation of any person not entitled to be present at or to participate in the proceedings of the House shall not invalidate such proceedings."
Hence, the vacancy of any member or members of a house of assembly cannot invalidate the holding of sessions where there is quorum. This therefore distinguishes the “doctrine of composition” from the “doctrine of quorum.” Whereas the former refers to the creation of the legitimate constituencies that make up the legislature the latter refers to the legitimacy of sessions held by the legislature. In essence, while section 90 and 91 of the 1999 Constitution of the Federal Republic of Nigeria create the State House of Assembly Sections 96 and 102 operate the State House of assembly. See: Hon. Michael Dapianlong & 5 Ors v Chief (Dr) Joshua Chibi Dariye & 2 Ors (SC. 39/2007). Where the Supreme Court per Mahmud Mohammed, J.S.C stated as follows:
"The correct position of course in this respect is that the provisions of Section 102 must be read along with Section 96 of the 1999 constitution which prescribes a minimum number of members namely, one-third of all the members of the House that can validly sit and conduct the business of the House of Assembly…”
But legislative businesses are divided into ordinary businesses and special or extra-ordinary businesses. So while the quorum suffices to carry out ordinary businesses like passing simple resolutions and motions special businesses like electing principal officers or impeachment requires two-thirds majority which is eighteen in this case. See the instant case cited above.
Hence, the nomination and election of Rt. Hon. Barr. Onofiok Akpan Luke as speaker by 22 members as alleged by Mr. Inibehe is very constitutional. But perhaps Mr. Inibehe failed to get not the law but also his facts right.
This is because as at the morning through midday of Monday the 21st day of December 2015 when the house elected their new speaker only the erstwhile Speaker had his election nullified. The rest three had theirs nullified late afternoon of same day after the nomination and election of the speaker had taken place. Which means 25 members elected the new speaker. Even if the sole APC member of the House refused to participate it only reduces the number to 24 which is still over and above the number of members required to elect a speaker.
Incidentally, still on the issue of electing the speaker here is what Section 92 provides:
"There shall be a Speaker and a Deputy Speaker of a House of Assembly who shall be elected by the members of the House from among themselves."
The constitution does not bother providing how this should be done but subsection 2(C) of same provision requires the Speaker or Deputy Speaker to be impeached by not less than two-thirds majority of the members of the House. It is therefore sequitur that the election is done by two-thirds of the members of the House and not all the members.
From the foregoing, it goes without saying that the learned wig failed to read his constitution properly and is not conversant with parliamentary proceedings. Such ignorance as a lawyer is a good excuse only second to none. Anything contrary would mean that he deliberately attempted to mislead the public on the position of the law which is itself a gross violation of the Rules of Professional Conduct for Lawyers.
However, his effort to be read and to articulate must be commended. Some of us started like that. I wrote my own letters too some of which include an open letter to Gov. Godswill Obot Akpabio on the need to allow the zoning arrangement in the state stand, another was an Open letter to Deac. Udom Emmanuel himself when it seemed like his ticket was going to tear the state apart, I also replied president Obasanjo's letter to President Goodluck Jonathan and even went as far as writing to the Attorney General of the Federation seeking Fiat to prosecute the past president for treason and sedition. But in all of these I tried very much to mind my language and to respect the image of the persons I was addressing. For Mr. Inibehe one would expect him to write as a lawyer with respect especially when he is addressing his senior at the bar. One would expect him as a young wig to be diligent in his research and should not allow people use him to smear others or score cheap political points.
It is obvious that the emergence of Rt. Hon. Barr. Onofiok Luke is already unsettling and upsetting some people's camp and as a result of that they have hired some mudslingers. It is only hoped that my junior colleague here is not one of them.
Be that as it may, I learned very early before practice not to give unsolicited advice as a lawyer so my comments here are not counsels to him but mere observations and information aimed at educating the public especially the good people of Akwa Ibom State.
But if Mr. Inibehe still basks in the illusion that the Rt. Hon. Barr. Onofiok Luke's emergeance as Speaker is unconstitutional but seeks redemption then I will refer him to the sections of the constitution cited above as well as the standing order of the Akwa Ibom state House of Assembly ordinarily one should not be found granting elements like these the dignity of intellectual response but then the bible admonishes in Prov. 26:4 -5 : "Answer not a fool according to his folly, lest thou also be like unto him. Answer a fool according to his folly, lest he be wise in his own conceit." (KJV).
* 20 – 4 = Ebonyi State House Of Assembly. By Okpo Ewa Esq.
http://www.nairaland.com/2151340/20-4-ebonyi-state-house
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