Salawu Lasupo Adedayo Fajinmi V. The Speaker, Western House Of Assembly (1962)
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The present appeal is from the decision which Morgan, J., then Acting C.J., gave on the 13th July, 1961, dismissing the plaintiffs action, on the ground that it was not properly before the Court.
The question in this appeal turns on S.16 of the Constitution of Western Nigeria in the 4th Schedule to the Nigeria (Constitution) Order-in-Council, 1960; that section provides as follows:–
“16 (1) The High Court of the Region shall have original jurisdiction to hear and determine any question whether–
(a) any person has been validly selected or elected as a member of a Legislative House of the Region; or
(b) the seat in a Legislative House of any member of that House has become vacant.
(2) The Legislature of the Region may make provision with respect to –
(a) the persons who may apply to the High Court of the Region for the determination of any question under this section;
(b) the circumstances and manner in which, and conditions upon which, any such application may be made; and
(c) the powers, practice and procedure of the High Court in relation to any such application”.
The plaintiff sued the Speaker, House of Assembly, Western Region, Federation of Nigeria, making these claims against him:-
(1) A declaration that he is entitled to take his seat as a validly elected member in the House of Assembly of the Legislature of the Western Region of the Federation of Nigeria. In the alternative the Plaintiffs claim against the Defendant is for a Declaration that his seat in the House of Assembly of the Legislature of the Western Region of the Federation of Nigeria is not vacant.
(2) An injunction to restrain the Defendant from preventing the Plaintiff from taking his seat, as a validly elected member, in the House of Assembly of the Western Region of the Federation of Nigeria.
Pleadings were ordered. The plaintiff delivered his Statement of Claim, in which he said that he had been elected to the House as the member for a particular constituency on the 8th August, 1960, and sworn in, and he went on to explain how his claim arose. The defendant put in his Defence, and said in the last paragraph that-
“The defendant will contend that the plaintiff is not entitled as per his writ of summons and claims that plaintiff’s claim be dismissed as-
(1) being not properly before the court;
(2) frivolous and vexatious.”
The solicitor for the defendant put in a Motion on Notice that he would move the court “for an order that the suit be struck out as not being properly before the court.” The learned Judge heard argument and delivered his decision on the 13th July, 1961. He states towards the end of his decision that “the matter in issue is whether the seat is vacant or not”; he then points out that the Parliamentary Electoral Regulations of 1960, dated 15th July, 1960 (to be found at page B.317 of the 1960 volume of the legislation of Western Region) contain no provisions on the said matter, and goes on to pose this question:-
“Is there any provision in existence which the Court can follow to enable it to exercise the jurisdiction conferred upon it by Section 16(1)?”
He goes on to consider the cases of Ashby v. White, 92 E.R. 126, and is of opinion that the issue in the present case is a matter not of a common law right. In his view “they are special rights conferred by the Constitution to be exercised according to provisions to be made by the Legislature in accordance with the provision of Section 16 of the Constitution of Western Nigeria”; and he quotes a passage from the judgment in Theberge v. Laudry, (1876), 2 A. C. page 102 at page 106, and also cites the case of Patterson v. Solomon, (1960) 2 All E. R. page 20 at page 24. He concludes as follows:-
“In my judgment the jurisdiction conferred upon the High Court by Section 16(1) of the Constitution of Western Nigeria to determine the question whether the seat of a member of the Western House of Assembly has become vacant is a special jurisdiction governed not by the ordinary rules of the Court but to be exercised according to such provisions as the Legislature itself may lay down in accordance with Section 16(2) of the Constitution of the Region as was done by the Governor by the provision of Regulation 117 of the 1955 Constitution. For this reason I rule that this action is not properly before the Court and dismiss it. And having regard to the conclusion to which I have come I do not propose to deal with the other points raised.”
The effect of that view is that the Constitution of the Region confers, by subsection (1) of Section 16 a jurisdiction on the High Court to hear and determine any question whether (a) a person has been validly elected, or (b) a seat has become vacant, and, by subsection (2) empowers the Legislature of the Region to disable the Court from exercising that jurisdiction by omitting to make provision under subsection (2): in other words, subsection (1) can be made a dead letter by the legislature, which, with respect, cannot be right. On that view, presumably, if the Legislature made no provision in regard to the hearing of a question whether a person had been validly elected, the High Court would not be able to entertain a i election petition either. The reasonable course is for the Legislature to make provision under subsection (2) for the matters in both (a) and (b) of subsection (1); and if it so hap-pens that the legislature, through inadvertence, has not made any provision on the question in (b), a member who asks the High Court to determine such a question, as it is within the Court’s jurisdiction, ought not to “be driven from the judgment seat”, but should be heard. Learned counsel for the defendant appreciates that the dismissal of the action cannot be supported on the ground on which it was based, and seeks to support it on another ground.
Before dealing with that other ground, I should, in deference to the learned Judge, say something on Theberge v. Laudry and Patterson v. Solomon. They both say that the jurisdiction conferred on the court to hear an election petition, or a question whether a seat has become vacant, is a special jurisdiction; but the point of that pronouncement is that there is not the ordinary right of appeal to the Privy Council from the local court’s decision, which was intended to be final. Those cases do not assist the defendant here.
His learned counsel has argued that Regulation 117 of the Parliamentary and Local Government Electoral Regulations, 1955, (which are to be found at B.779 of the 1955 volume of the Western Region Legislation) is still in force, and provides the procedure needed for the present case. That Regulation provided as follows:-
“117(1) Any question as to whether the seat of any Elected Member of the House of Assembly has become vacant shall be referred to and decided by the High Court in accordance with the procedure prescribed in this Part for the trial of an election petition, and the decision of the High Court shall be final.
“(2) Proceedings under this regulation may be instituted by any person qualified as an elector in the constituency which the Elected Member concerned represents.
“(3) The Court shall certify its decision in writing to the Governor”.
The learned trial Judge dealt with that argument in his judgment and arrived at the view that the said Regulation 117 was revoked by Regulation 134 of the Parliamentary Electoral Regulations, 1960, which provides that:-
“The Parliamentary and Local Government Electoral Regulations, 1955 (and certain subsequent Regulations) are hereby revoked in so far as they relate to parliamentary elections.” Counsel for the defendant, has cited the definition in Regulation 2 of the 1960 Regulations, that:-
“parliamentary election’ means an election to return an elected member of the House of Assembly”;
and has argued that the revocation does not affect Regulation 117 of the 1955 Regulations. As a linguistic argument it is not acceptable; there is also another reason why it is not sound.
In so far as the 1955 Regulations related to parliamentary elections, they were made under the authority of Section 37 of the Nigeria (Constitution) Order in Council, 1954 (as stated at p. B.779 of the 1955 volume of the Western Region). That section was amended by section 23 of the Nigeria (Constitution) (Amendment) (No. 3) Order in Council, 1959 (which is given at B.673 of the 1959 volume of the Western Region). Subsection (2) of the said section 23 provided that:-
“(2) Any regulations made in relation to a Region or the Southern Cameroons under Section 37 of the principal Order and in force immediately before the commencement of this Order shall continue in force until the next dissolution of the Legislative Houses of that Region or the House of Assembly of the Southern Cameroons, as the case may be, as if this Order had not been made and may be amended or revoked accordingly, and no elections shall be held in a Region or the Southern Cameroons under regulations made under that section, as amended by subsection (1) of this section, until after such a dissolution of the Legislative Houses of that Region or the House of Assembly of the Southern Cameroons, as the case may be.”
Thus the old regulations of 1955 were to cease to be in force at the next dis-solution of the Legislative Houses of the Region; and the new regulations made under the amended section 37 would apply to elections held after such a dissolution. The other relevant provision is in section 26 of the said 1959 Order in Council, which provided as follows:–
“26(1) Section 49 of the principal Order (as amended by section 27 of the Nigeria (Constitution) (Amendment) Order in Council, 1958) is amended –
(a) by the deletion of subsection (3) and the substitution of the following subsection:-
(3) The Governor may by regulation make provision for determination whether –
(a) any person has become an Elected Member of the House of Assembly of a Region; or
(b) the seat of an Elected Member of the House of Assembly of a Region has become vacant’;
(c) by the insertion after subsection (3) of the fol-lowing subsections:-
(4) Subject to the provisions of this Order, regulations made under subsection (3) of this section may (without prejudice to the generality of that subsection) include provision with respect to the jurisdiction, powers, practice and procedure of the Courts.,,
[(5) relates to the Southern Cameroons and is irrelevant.]
“(2) The provisions of this section shall come into operation in relation to a Region or the Southern Cameroons immediately after the next dissolution of the legislative Houses of that Region or the Southern Cameroons, as the case may be after the commencement of this Order.”
The consequence of those amending provisions in the said Order in council of 1959 was to necessitate the making of fresh regulations on parliamentary elections, to govern election after the dissolution of the Houses, and to provide also for the hearing and determination of questions whether a person has become an elected member of the House of Assembly, or the seat of such an elected member has become vacant; hence the Parliamentary Electoral Regulations, 1960, which state (see B.317 of the 1960 volume of the Western Region Legislation) that they are made “in exercise of the powers conferred upon him (the Governor) by Sections 37 and 49 of the Nigeria (Constitution) Orders in Council, 1954 to 1960”. Those 1960 Regulations provide in Regulations 70 to 127 for election petitions: they do not provide for the hearing and determination of a question whether the seat of an elected member has become vacant; and the lacuna should be drawn to the notice of the Attorney General of the Region.
In the meantime the High Court has a duty to hear and determine the case in hand, and resolve the question raised. The plaintiff has, in the absence of other provisions, brought his case in the form of an action, which is the ordinary way of approaching the court for making a request to have a matter in difference decided and relief granted; and the action should now proceed.
I would allow the appeal and set aside the decision dismissing the action; the appellant should have his costs of appeal; which are assessed at thirty guineas; and he should also have his costs in the court below in regard to the proceedings relating to that decision, which should be taxed or assessed there.
Other Citation: (1962) LCN/0969(SC)