SUIT NO.LHC/CL/02/2016
BETWEEN
HON. ALUZU E. AUGUSTINE……………………… PLAINTIFF
AND
1. THE SPEAKER, LAWSAN HOUSE OF ASSEMBLY: ………………… DEFENDANT
2. THE LAWSAN HOUSE OF ASSEMBLY: ………………………………. DEFENDANT
JUDGEMENT
On Friday 11th day of March, 2016, the plaintiff through Originating Summons approached the court seeking two (2) reliefs against the 1st and 2nd defendants in this suit as follows:
1. A declaration that the notice of the purported declaration of the seat of the plaintiff vacant by the 1st and 2nd defendants and signed by the clerk of the 2nd defendant is illegal and unconstitutional and therefore null and void.
2. A declaration that the plaintiff remain a member at the 2nd defendant.
Filed alongside the originating summons were; a five paragraph affidavit in support of the Originating Summons, a Written Address containing issues for determination and legal argument, annex to these documents was a public notice of the purported declaration of the seat of the plaintiff vacant.
Service of these processes was effected on the 1st and 2nd defendants on the 4th day of May, 2016, at the Faculty of Law as indicated by the proof of service.
Hearing on this case commenced on the 13th day of May, 2016, where the plaintiff was present in court and equally represented by Dignity Ekop, (SAL) and Uchewaji, Aganin, Esq, the plaintiff through his counsel adopted his brief and submitted in his opening statement that: “the action of the 1st and 2nd defendants is not just an open rape of the LAWSAN Constitution but also an attack on all known due process of law”. The court however, adjourned proceedings of the day as the 1st and 2nd defendants did not attend Court nor represented by any legal practitioner, relying on the right of the defendants to be granted fair hearing.
The court sitting on the 27th day of May, 2016, having duly notified the parties as shown in the proof of service had in attendance, the plaintiff who was equally represented by Dignity Ekop, (SAL) and Uchewaji Aganin, Esq, the defendants were again absent, neither were they represented in Court. No defence was filed in response to the plaintiff’s Originating Summons, and no notice was given as to the reason of their failure to attend Court.
The court upholding the prayer of the plaintiff’s counsel to declare the 1st and 2nd defendants as having defaulted in appearance held that the right of fair hearing is fundamental to any legal proceedings, however, the law is particular about a fair opportunity to be heard. Relying on the case of Chief Felix Amadi & Ors v. INEC (2012) 2 SC (pt 1)1, where it was held that: if for whatever reason a person is not heard within the alloted time frame, it cannot be said that the affected parties has been denied the right to fair hearing, and that, in this case, the defendants neglected or were indolent in exercising their right to be heard having been granted the opportunity by the Court.
The plaintiff was a member of the LAWSAN House of Assembly, the 1st defendant is the Speaker of the LAWSAN House of Assembly and a member of LAWSAN, the 2nd defendant is the LAWSAN House of Assembly and an artificial person being an arm of the LAWSAN government, therefore the parties are proper parties and this suit is competent for hearing.
Having carefully read the facts contended by the plaintiff in his application and also read with a calm mind the submissions on factual issues raised, the principles of law applicable, statutory provisions and case law cited. I have also read closely the deposition of PW 1 (being the plaintiff himself), let me state at this point that the plaintiff in his statement was coherent and composed, therefore the following reveals, in my view the true facts of this case;
That the plaintiff being an elected member representing the year 3 class in the LAWSAN House of Assembly, was demanded to sit-down and shut-up by another member of the LAWSAN House of Assembly representing the year 1 class following a point of order he raised against that other member for introducing irrelevant matters to the floor of the House on the day the LAWSAN President presented the Executive Budget to the House. Reacting in the “heat of passion”, the plaintiff moved towards the other member representing the year1 class and issued him with a slap in which the member representing the year1 class retaliated by effecting a corresponding slap on the plaintiff.
Flowing from the above facts, the House Committee on Ethics and Privileges without inviting the plaintiff to defend himself concluded and forwarded a report to the LAWSAN House of Assembly which resulted in the House declaring the seat of the plaintiff vacant on the 4th of March, 2016.
From the above facts, it is clear just as stated by the public notice that the seat of the plaintiff was declared vacant by the House on the ground of slapping a fellow member of the house.
In the light of this, the plaintiff pursuant to section 10(1) (g) of the Constitution of LAWSAN 2012, applied to this court for interpretation and enforcement of his right by way of reliefs.
To succeed on this, the plaintiff formulated two issues for determination:
1. Whether the purported declaration of the seat of the plaintiff vacant based on section 17(d) and section 21(1) of the LAWSAN Constitution 2012, and the purported report of the LAWSAN House Committee on Ethics and Privileges as contained in the notice dated 7th March, 2016, signed by the Clerk of the 2nd defendants has any force of law whatsoever;
2. Whether the absence of fair hearing by the LAWSAN House Committee on Ethics and Privileges vitiates the probative value of the report of the committee.
In my view, I think the plaintiff’s issues correctly capture the issues for resolution and in answering the questions raised, I shall examine the provisions of our laws with respect to the grounds which a member shall lose his seat or be removed from the LAWSAN House of Assembly, the powers to declare the seat of a member vacant and the means of exercising such powers.
Before then, let me note that whenever a point of order is raised on the floor of the House, it is for the Speaker or any person presiding to decide whether to sustain or overrule such a point of order and not for members to start a fight. See Rule 13 and 17, Part 2, Second Schedule to the LAWSAN constitution 2012. The LAWSAN Constitution in section 21 clearly states the grounds for removal of a member of the House. Section 17(i) (d) of the same Constitution also vests the Speaker with the power to declare the seat of any member vacant. Similarly, the Speaker while exercising his power must have recourse to section 21(1-5), section 50, section 51 (7) and section 59 0f the LAWSAN Constitution 2012.
The Constitution of the Federal Republic of Nigeria in sections 68, 69, 109 and 110 contain similar provisions to the LAWSAN constitution. It is my view that the House notwithstanding the power to declare vacant the seat of a member is also empowered to adopt other disciplinary measures to curb unruly and inappropriate behaviors of its members.
However, in exercising all these powers, it must be born in mind that the right to fair hearing is a fundamental and constitutional right entrenched in the 1999 Constitution of Nigeria ( as amended in 2011). And the breach of fair hearing in any proceedings without more vitiates such proceedings in their entirety, it renders the entire proceedings null and void. See the case of OGED OVUNWO & ANOR V. IHEANYICHUKWU WOKO & 2 ORS (2011) 6 ILAW/SC. 297/2005.
Applying the above analysis to this case, let me mention that the supreme court held in FAWEHINMI V. I.G.P (2002) 7 NWLR PT (767) PG 606 particularly at 678 that “the proper approach to the interpretation of clear words of statute is to follow them in their simple grammatical and ordinary meaning rather than look further because that is what prima facie gives the their most reliable meaning”. Therefore on issue one, it is held that section 21(1)-(5) of the LAWSAN constitution 2012 does not empower the Speaker to declare the seat of any member vacant for slapping a fellow member of the House.
The plaintiff cited the case of Atiku V. INEC (2007) SC 69 and also, relying on the case of Alhaji Bashiru Zubairu Usman V. Kadunna State House Assembly & 2 Ors (2007)11 NWLR (PT. 1044 OF 148 C.A, I hold that issue one is bound to be answered in favor of the plaintiff, although the conduct of the parties is depreciating and should always be avoided for the smooth business of the House.
On the second question for determination, it is settled law that the test whether a party in a case was given fair hearing is the impression of a reasonable person who was present at that trial or who was aware of the proceeding. See the case of General Electricity Company V. Harry Ayoade Akande & Ors (2012) LPELR SC. 337/2008, Matthew Nwokocha V. Attorney General of Imo State (2016) SC 388, SEGUN AGUNSANYA V. THE STATE – Per. F.F TABAI, JSC and also OGED OVUNWO & ANORS V. IHEANYICHUKWU WOKO & 2 ORS CITATION: (2011) 6 ILAW/SC. 297/2005 PER C.M CHUKWU ENEH JSC. In the instant case where the plaintiff was neither heard nor granted any opportunity to be heard. I hold that such action is an abrasion of the fundamental principles of such proceedings and therefore vitiates the outcome in its entirety.
Consequently, SECTION 10(2) (g) of the LAWSAN CONSTITUTION 2012 provides that; “ in the determination of his civil rights and obligations including any questions or determination by or against any government or authority, a member shall be entitled to fair hearing within a reasonable time by a court or tribunal established by this constitution and established in such a manner as to secure its independence and impartiality. The House committee on Ethics and Privileges acting as a tribunal is bound by this provision but had failed to uphold it.
Therefore, in line with the case of ALHAJI BASHIRU ZABIRU USMAN V. KADUNNA STATE HOUSE OF ASSEMBLY & 2 ORS,(already cited) the question on issue two is answered in favor of the plaintiff that his protected right was arbitrarily violated.
On the whole, this case succeeds because it is trite law that a default in appearance amounts to admission of the totality of facts alleged by the plaintiff. Also, all civil cases are decided on the preponderance of evidence but the defendants failed to present any. In view of the aforesaid, judgment is hereby entered in favor of the plaintiff in terms of his reliefs 1 and 2 as I find merit in his case, viz;
It is hereby declared that the purported removal, expulsion or declaration of the seat of the plaintiff vacant in the LAWSAN House of Assembly is unconstitutional, null and void;
It is further declared that the plaintiff is still a member of the LAWSAN House of Assembly until he is constitutionally and legally removed.
Delivered this 15th day of June, 2016.
……………………………………..
HON. JUSTICE NSINYENE CHARLES
JUDGE, LAWSAN HIGH COURT 1
APPEARANCE ……………… Uchewaji, Aganin
PARTIES…………………………… Plaintiff - present , Defendants - absent
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