Senior Advocate of Nigeria, Mike Ozekhome

CURTAIN CALL

We shall today continue our discourse on the undoubted power of the Senate to have invited IGP Idris recently over Police maltreatment of Senator Dino Melaye and the rampaging and unrestrained bloodletting by herdsmen across the country.

LEGISLATIVE HOUSES (POWER AND PRIVILEGES) ACT (continues…)

It could also be sent by registered post to the invitee’s last known address Where he willfully refuses to attend, as the IGP has done, the Senate or House of Representatives can issue a warrant of arrest directing a Police officer to apprehend the culprit and bring him to a place and at a time to be specified on the warrant. The Senate president or Speaker of the House may later change his mind and direct the release of the invitee upon entering into a recognizance before a magistrate to ensure his appearance before the particular House. The jam here and the danger to democracy is that the IGP, being the overall boss of the Police, no Police officer will dare to arrest and bring to the Senate or House. He is the “Oga patapata” (overall boss). The institution of the NASS Assembly (one of the three arms of government), is thus ridiculed, spited and rendered prostrate.

Democracy becomes the ultimate loser. The penalty for non-attendance by a witness is N50, or imprisonment for 3 months, or to both fine and imprisonment. Protagonists of Heads of MDAs’ crass disrespect. Of constituted authority, such as done two years ago by Col Hameed Ali (Rtd),the Controller General (CG), of the Nigerian Customs, who had refused to attend Senate in the official uniform of a CG when he is not a Sole Administrator (notwithstanding that his superior, Major General Haladu Hannaniya had happily and gleefully donned his official uniform as FRSC Commander), is to cite out of context, some .decisions of the Court of Appeal in Tony Momoh vs Senate of the NASS (1982) NCLR, 105 and Ma1lam EI Rufai vs House of Representatives (2003) 46 WRN 70. Those cases never said the Senate cannot invite a Nigerian such as the IGP. In any event, the facts of those cases are miles apart and quite different and distinct from the facts leading to the invitation of the IGP in the present case. It is axiomatic that a case is authority for what it decides. See the cases of Udo vs State (2016) LPELR 40721 (SC) and Aizeboje vs EFCC (2017) LPELR 42894 (CA). In Tony Momoh’s case, the Senate had invited Prince Tony Momoh as Editor of Daily Times, to come and disclose the source of information contained in an article in the “Grave Vine” column of the newspaper. He went to court and argued that he could not be so compelled and that the invitation had nothing to do with the matters contained in section 82 (2) of the 1979 Constitution (the equivalent of section 88(2) of the 1999 Constitution) The court had no difficulty in upholding the claims.

In EI Rufai vs House of Representatives (supra), the Court of Appeal held among others as follows:-“However, if in obedience to the summons, the Appellant reported to the committee and the committee decided to take any step in excess of powers conferred upon it, or in the same process some of the fundamental right of the Appellant were actually violated or threats of such violation were imminent, then the Appellant would have every right to run to a Court of law for a relief. That is not the actual case in this matter. The Appellant, in my view, developed an anticipated fear of violation of his fundamental right. A Court of law acts on reality, i.e. what has actually taken place or is taking place at the time of complaint. Hardly has speculation any place in law.

If there is allegation, then there must be proof to substantiate that allegation … I agree that the Lower Court was right in striking out Appellant’s suit.” It is instructive to note that the House went ahead to banned him from holding public office for 10 years. He engaged my services and I got the ban set aside through the Federal High Court, Abuja. Some people have also wrongly, or perhaps, out of ignorance, mischief, deliberate misrepresentation, or all of the above, deliberately equate the blatant and flagrant action of the IGP to my securing an injunction in 2014, against the House of Representatives, in favour of my client, Diezani Allison- Maduekwe. Again, not only were the facts worlds apart from those here, she did not take the laws into her hands through flagrant ridiculing of the institution of the NASS, as done by the IGP here. She did what was expected of a responsible citizen by approaching the court through me, as the IGP had earlier himself done.

Some antagonists of the Senate’s invitation to the IGP readily cite the case of Senate of the National Assembly vs Tony Momoh (1983) 4 NCLR 269, 295. In that case, Nnaemeka Agu (JCA), as he then was, had interpreted section 82 of the 1979 Constitution (now section 88). He said as follows:

“In other words, the section does not constitute the House as a universal “ombudsman” inviting and scrutinizing the conduct of every member of the public for purposes of exposing corruption, inefficiency or waste. In my view, their power under the section is further circumscribed and limited by subsection (2) of section 82. They can only invite members of the public when they want to gather facts for the purpose of enabling them make law or amend existing laws in respect of any matter within their legislative competence or as witness in a properly constituted inquiry under section 82(1)(b).

Their power to expose corruption, inefficiency, or waste is also limited to government departments, authorities, and functionaries. I dare say that if this power should be free from abuse, the purpose of investigation, its composition and terms of reference should be clear from the proceedings of the House which authorizes it and should be seen to be within the four corners of the constitutional power.

It is not enough that the matter for investigation be within the legislative competence of the House. A proper and lawful investigation must have been constituted. In this case, the letter, Exh. A, does not say there is any investigation for the purposes of any legislation. Nor is the respondent a class of persons contemplated by either section 82(1)(b) or section 82(2)(b). It appears rather from the resolution, Exh. A, and the proceedings of the House, Exh. C, that the purpose is the decision of the house to show resentment for the respondent’s affront in daring to publish something about highly placed legislators rather than a plan for the investigation of the members for abuse. This should not be. The essence of section 82(2) is, in my view, that in point of fact the purpose should be seen in fact to be present and to be within the contemplation of the section. Section 82(2) is designed to eliminate abuse. Any invitation by the House to any person outside the purposes defined by section 82(2) of the Constitution is invalid. No power exists under the section for general investigation nor for the aggrandizement of the House. So, the appellants were not entitled to have their reliefs”. (To be continued and concluded next week).

THOUGHT FOR THE WEEK

“You can delegate authority, but you cannot delegate responsibility.” (Byron Dorgan).

LAST LINE

Nigerians, please continue to engage me in the national conversation whilst awaiting explosive topic of Sunday Sermon on the Mount of the Nigerian Project by Chief Mike Ozekhome, SAN, OFR, FCIArb., Ph.D, LL.D.

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