M. O. Oloyo V. B. A. Alegbe (1983)

LawGlobal-Hub Lead Judgment Report

ESO J.S.C. 

By an originating summons, the appellant M. O. Oloyo, an elected member of the Bendel State House of Assembly, as plaintiff in the Benin High Court, presided over by Ogbobine J., sought-

a declaration-

that the Speaker of the State House of Assembly is not competent to declare vacant his seat as the elected member for Akoko Edo Constituency, and an injunction-restraining the said Speaker, his servants and agents, from illegally preventing or interfering with his right to hold his seat as such elected member of the State House of Assembly.

As no oral evidence was led throughout the trial and the parties relied on affidavits as evidence in the case, I intend to set down these affidavits and counter-affidavits, as the case may be, and also the correspondence between the parties.

The affidavit of the appellant in support of his application for originating summons reads:

“1. I am the plaintiff herein and the elected member for the North Akoko-Edo Constituency in the Bendel State House of Assembly.

2. The defendant is the duly elected Speaker of the House of Assembly of Bendel State.
3. The letter now shown to me and marked “Exhibit A” is a true copy of a letter dated 18th September, 1981.
4. I do not admit the allegation that I have been absent from the meetings of the House of Assembly “for 94 days during the 1980/81 Legislative year” or that I have been so absent “without just cause” or that my seat in the House of Assembly has become vacant.
5. On the 5th day of October 1981 I attended a meeting of the House of Assembly but the defendant did not allow me to take my seat and insisted that my seat has been declared vacant.
6. Unless restrained by order of the court the defendant will not permit me to take my seat in the State House of Assembly.”

The letter, which was referred to by the appellant in paragraph 3 of the above affidavit, is as follows:

“I write this letter as Speaker/Presiding Officer of the Bendel State House of Assembly.

2. It has been observed from the House Attendance Register for the current Parliamentary Session beginning from 2nd October, 1980 and ending 18th August, 1981 which covers a period of 182 DAYS during which the House met, that you were absent for about 94 DAYS from the meetings of the House. This said period of your absence amounts in the aggregate to more than “ONE-THIRD” of the total number of days during which the House met this current legislative year. In order words, out of 182 DAYS the House met, you were in attendance for about 88 DAYS and absent for about 94 DAYS. All available records do not show your absence was ever excused as, in fact, you did not ask for any leave of absence.
3. TAKE NOTICE that unless you show “just cause” in writing to buttress each occasion of your said absence from the meetings of the House to the satisfaction of the Speaker and/or Presiding Officer between now and 14th September, 1981, your said absence shall be deemed to be without just cause. Consequently, I shall be left with no alternative than to set in motion the necessary machinery to give effect to the mandatory provisions of sub-sections (l)(f) and (2) of section 103 of the Constitution of the Federal Republic of Nigeria 1979.”

The respondent in that letter then set out the provisions of section 1 03(1)(f) and 103(2) of the Constitution of the Federal Republic of Nigeria 1979, hereinafter referred to as the Constitution.

Now, it is to be observed from paragraph 2 of the above quoted letter, written by the respondent, that he relied on the House Attendance Register to determine to number of days in which the appellant was absent from the meetings of the House. That register is kept by the respondent himself in his capacity as Speaker/Presiding Officer, for so he alleged in his counter-affidavit. In that counter affidavit, the respondent had said as follows:”

“4. That the Speaker/Presiding Officer is in charge of the House attendance register used in recording attendance at meetings and/or sittings of the House. The register is part of the domestic proceedings of the House.

5. That the plaintiff herein lost his seat at the end of 1980/81 Legislative year for absence from the meetings of the House without just causes for a period amounting in the aggregate to more than one third of the total number of days the House met.
6. That the House met for 182 days during the 1980/81 Legislative year.
7. That when the Speaker/Presiding Officer observed that the plain tiffs attendance at meetings fell far short of the statutory requirement, he wrote to him letter No. SH. 19/1 05 dated 18th August 1981 giving him 28 days within which to explain his absence.”

It is also to be observed from paragraph 3 of the letter quoted above, that the Speaker was aware that the provision of section 1 03(1)(f) of the Constitution is mandatory.

The appellant gave no reply to the letter of the respondent, which asked him to show cause in writing to explain each occasion of his absence from the meetings of the House within the period given him to explain the absence. This fact was also revealed in the respondent’s counter affidavit wherein he said: