By Sylvester Udemezue
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A. BACKGROUND:
1) Rivers State House of Assembly has 32 members. The Speaker of the Rivers State House of Assembly, Rt Hon Martins Amaewhule, on 11 December 2023, had reportedly led 26 other lawmakers of the House, on the floor of the House, to openly and VOLUNTARILY defect to a different political party, citing “division” in their former political party. The remaining 4 or 5 Lawmakers (those who did not defect) had on 13 December 2023 elected one of their own (Edison Ehie) the new Speaker who then declared vacant the seats of the defected 27 members, and wrote a letter requesting the electoral umpire, INEC to conduct by-elections to fill the vacancies created by the defection of the 27 members. A lawmaker (Edison Ehie) later resigned from the House and was made the Chief of Staff to the Governor. Since then, and claiming that the seats of the defected 27 had become vacant in line with the provisions of Section 109 of the Constitution of the Federal Republic of Nigeria, 1999, and that the 27 affected lawmakers were no longer members of the Rivers State House of Assembly, the remaining 4 have been conducting the affairs of the House, including confirming Commissioners and having the 2024 budget presented to them by the Governor. A plethora of litigation has however arisen, with some lawsuits currently pending at the Rivers State High Court, some at the Federal High Court, some at the Court of Appeal, and some at the Supreme Court, Nigeria’s apex court.
B. RE: I-AM-AN-AUTHENTIC-LEGAL LUMINARY OPINION BY A GREAT LEARNED SILK AND MATTERS ARISING
2) At a luncheon said to be organised “in honour of the 10th Legislative Assembly of Rivers State” in Port Harcourt, on 19 October 2024, by His Excellency Nyesom Wike, Life Bencher, former Governor of Rivers State, and current Minister of the FCT, Abuja, Chief OCJ Okocha, OFR, SAN, JP, DSSRS, ex President of NBA, ex Attorney-General of Rivers State, ex Chairman of the Body of Benchers, ex Chairman of the Council of Legal Education, etc, and a notable legal giant who has put in over 46 years into active law practice in Nigeria, had while addressing recent comments credited to an unnamed individual ( I think it was the current Governor of Rivers State, His Excellency Sim Fubara) who the respected Learned silk Okocha said had referred to the learned silk and other lawyers as “so-called legal luminaries”, declared as follows:
“I am an authentic legal luminary…. Anybody who read the judgment of the Court of Appeal a few days ago… one telling statement: it is a joke take too far for three persons to say they are the legislature of Rivers State; a joke taken too far. Look at the legislators of Rivers State, led by Hon Martins Amaewhule…. All of us, the good people of Rivers State, patriotic citizens of Rivers State, stand in solidarity with you, the authentic legislature of Rivers State…. Precisely, the wheels of justice in Nigeria turn too slowly, rather too slowly for our comfort, but my word to you is to persevere. Judgement Day is coming, Judgement Day, is coming, and we will know on whose side the law is…. I assure you, my brother Martin that God is on your side…. I also assure you that the law is on your side. Let us allow the Supreme Court to decide the matter. Thank you all, and may we all continue to pray for our authentic legislature. God bless all of you” (See: “OCJ Okocha Replies Fubara – Asks Fubara To Stop Deceiving Himself; Says Wike and Amaewhule are Ahead” https://youtu.be/nNGrqHYZuQ4?si=NRk2thubMxzbE7hG Accessed 20 October 2024
3) Without commenting on the ongoing political rift between or among some political players and juggernauts in Rivers State (that is not my business here), I have the following humble observations on some legal questions arsing from the comment by learned silk, Chief OCJ Okocha, regarding the legal imbroglio in the Rivers State House of Assembly.
a) Respected learned silk OCJ Okocha is without any doubt a juggernaut in the legal profession, one who has accomplished a great deal of a lot, both as a lawyer and as an individual. No doubt! I have a lot of respect for my great oga. I hail you, Great Learned Silk and Life Bencher. Any time, any day, you’re an iroko tree in the legal profession in Nigeria. Having said that, my oga, learned silk would graciously permit me to make the following further submissions, with the greatest respect.
b) With due respect, it is very curious that great learned silk in his eloquent legal opinion/speech, rendered at a social/political luncheon, failed to address nagging legal questions surrounding the reported defection of Hon Martins Amaewhule and 26 other members of the Rivers State House of assembly on 11 December 2023. While referring to Rt Hon Martins Amaewhule as “the authentic Speaker” and his camp as representing “the authentic House of Assembly,” and that the remaining 3 or 4 members of the House (those who did not defect) could not under any circumstances, constitute the Rivers State House of Assembly, the learned silk unfortunately failed to say even a word on the defection by members of the group the learned silk referred to as the “authentic House” and the legal implications of their defection on their continued membership of the Rivers State House of Assembly. What is the legal effect of their defection on their seats as members of the Rivers State House of Assembly? Even if the learned silk believed that the remaining (minority) members of the House were incapacitated to continue with the business of the House, the INESCAPABLE QUESTION the learned silk and legal juggernaut OCJ OKOCHA should have started with in his speech (since he decided, although it is his right, to offer his legal opinion at a social function) was whether Rt Hon Martins Amaewhule and his co-defectors remained members of the House after their defection on 11 December 2023.
c) With due respect, addressing the question of whether the remaining 3 or 4 members can constitute the House of Assembly to carry on with businesses of the House without starting from the issue of defection of the 27 members and the legal implications of the said defection, is in my opinion, like one addressing question number 3 without addressing questions 1 and 2 or climbing to step 3 of a ladder without passing through steps 1 and 2 of the ladder. A case of placing the cart before the horse.
d) Permit me to respectfully submit that any declaration of the Court of Appeal as made in the latest/referenced case, to the effect that the remaining (minority) members of the Rivers State House of Assembly cannot continue with the businesses of the House of Assembly in the absence of the majority, cannot and does not constitute the law on the current subject in view of the subsisting leading judgment of the Supreme Court of Nigeria in DAPIANLONG V DARIYE (2007), which had said/held that minority members can continue with certain businesses of the House of Assembly even after/where the seats of the majority members have AUTOMATICALLY become vacant following defection. 14 members of the 24-member Plateau State House of Assembly had voluntarily defected from PDP to another political party, leaving 8 or 6 members. In his lead or leading judgment in the case of DAPIANLONG V. DARIYE (2007) 3 PLR/1983/22(SC); [2007]NGSC 181 (27 APRIL 2007); (2007) LPELR-928(SC) @61, which arose from the dispute that followed, His Lordship, Hon Justice Walter Onnoghen, JSC, had this to say:
“In the instant case, it is not disputed that 8 out of 10 members in a House of 24 membership initiated and carried out the impeachment of the 1st respondent. There is no doubt that there existed in the Plateau State House of Assembly 14 vacant seats as a result of cross-carpeting. It is my view that until the vacancies created by the carpet crossing members are filled by the process of by-election, the Plateau State House of Assembly can only transact such legislative duties that require the participation of less than 2/3 majority of ALL the members of that House, which duties definitely excludes impeachment proceedings”.
e) In my respectful opinion, it appears the legal mplication of the judgment of the Supreme Court judgment in DAPIANLONG V DARIYE is that the vacancy in the seats of majority members does not stop the remaining minority members of the House from carrying on with the ORDINARY businesses of the legislative House. Why then, did respected learned silk OCJ OKOCHA refrain from saying anything about this aspect, since he chose a social function/banquet/party to address the legal questions surrounding the legal logjams in the Rivers State House of Assembly? With due respect, i repeat that this is curious. Although i recognize that it’s the right of the learned silk to ignore whatever he chooses to ignore, yet, I humbly submit that IGNORING THE REALITY DOESN’T ERASE THE EXISTENCE OF THE REALITY AND ITS CONSEQUENCES.
f) Meanwhile, one may even ask further questions: What is the legal status of any pronouncement of the Court of Appeal which runs against this clear, yet to the overruled, lead-judgment pronouncement of Hon Justice Walter Nkanu Onnoghen in Dapianlong v Dariye? In declaring (as presented by the learned silk) that “it is a joke take too far for three persons to say they are the legislature of Rivers State”, did the Court of Appeal have before it, to consider and answer, the legal questions arising from the ABSOLUTELY VOLUNTARY defection of 27 members of the Rivers State House of assembly on 11 December 2023? Does nature abhor vacuum? What is the meaning of perpetual succession attributed to corporate institutions? How does the concept of Corporate Legal Personality come in? Should the Rivers State House of assembly close shop, and all businesses of Rivers State governance suspended, only because some members of its House of Assembly woke up one day and VOLUNTARILY chose to quit vide defection? Is the House of Assembly of Rivers State a personal estate of the 27 defected legislators with the consequence that their VOLUNTARY defection leading to loss of their seats in line with Section 109 of the Constitution, brings the House to a total comatose nature, even where some members are still remaining undefected? Do we want constitutional democracy in Nigeria to survive and grow or do we want it to end in the hands of politicians? I shall read the affected Court of Appeal judgment, to offer my humble suggestions on its status in the face of Dapianlong v Dariye.
g) The point I try to make, respectfully, is that, without first addressing legal questions surrounding the reported defection of 27 members on 11 December 2023, no one can claim to validly, successfully and exhaustively address/answer any legal questions as to whether the remaining 3, 4 or 5 members of the Rivers State House of Assembly can continue to carry on with businesses of the House of Assembly of Rivers State. If anyone wants to honestly, objectively and exhaustively address the legal imbroglio in the Rivers State House of Assembly, the starting point is the defection of 11 December 2023 and its necessary legal, practical implications. Else, the person would run into troubled water of logical errors, factual inaccuracies and legal blunders, because whether or not the remaining MINORITY members can continue with the business of the House is dependent of the question whether the seats of the VOLUNTARILY defected MAJORITY members had become vacant. This, it’s submitted with the greatest respect, appears to be the fate of the one-sided legal opinion offered by great learned silk OCJ OKOCHA.
h) From available yet-uncontroverted evidence, the fact of defection of Hon Martins Amaewhule and 26 others from their political party to another, which happened on the floor of the Rivers State House of Assembly on 11 December 2023, is not in doubt. Hence, it’s curious that some lawyers either deliberately or inadvertently avoid mentioning that aspect and its legal implications, but instead would concentrate on whether the remaining 3, 4 or 5 members can continue with businesses of the House. Particularly, with due respect, I am surprised that great learned silk, legal icon and iroko, the respected Chief OCJ Okocha omitted to address the many questions arising from the defection of the majority members of the Rivers State House of Assembly on 11 December 2023, but went straight to address and make conclusive statements on the status of the remaining 3, 4 or 5 members, and declaring that “3 members cannot constitute the House of Assembly of Rivers State”, “it is a joke taken too far”. Learned silk even went further to declare the 27 defected members as the “Authentic Legislature” without advising the watching public on how he came to that conclusion in view of incontrovertible evidence showing that the same 27 members had earlier on 11 December 2023, voluntarily defected, thereby bringing themselves within the purview of Section 109 of the Constitution.
i) Respectfully, by ignoring to address questions surrounding the defection, one wonders whether the respected learned silk was now treating the defection as if it never happened. If he believed it did happen, one had expected that he would have been willing to tell us, his followers who had been waiting to hear from him about this, what he thought about the position of the law in Nigeria regarding defection by a legislator under such circumstances of no factionalisation existing or merger arrangements ongoing, at the time of the defection, in the political party on whose platform the affected legislator was elected to the House. The great learned silk OCJ Okocha has thus missed a golden opportunity to lecture us on the position of the law. A golden opportunity has also been denied us of hearing from a legal giant, an all-inclusive legal opinion on all legal questions arising. A great deal of a lot is missing in the learned silk’s speech, unfortunately, with due respect!
j) Finally, at the conclusion of his said luncheon legal speech, the learned silk declared thus: “Let us allow the Supreme Court to decide the matter.” Could this be why the learned silk had refrained from addressing legal questions arising from the said 11 December 2023 defections — perhaps the learned silk did not want to comment on questions currently pending before the courts for determination? Obviously no, because if that was the learned silk’s reasons, then the learned silk should for the same reason, have avoided reaching the following conclusions/statements; all they are among the many questions currently pending before courts of law for determination:
(i) “it is a joke take too far for three persons to say they are the legislature of Rivers State; a joke taken too far”;
(ii) “Look at the legislators of Rivers State, led by Hon Martins Amaewhule”;
(iii) “Judgement Day is coming, and we will know on whose side the law is…. I assure you, my brother Martin that… the law is on your side”.
k) All these are issues currently pending before the courts. I respectfully believe that the learned silk is entitled to offer his legal opinion on anything, at any time. But since he chose to comment on one side, he should have endeavoured to comment on all sides. With due respect, it is curious that while refraining from touching any legal questions arising from the defections, the learned silk had concentrated on making conclusions on legal questions surrounding whether the remaining members could constitute the House. A great opportunity missed, unfortunately, with due respect!
l) Well, we will not give up in our search for a determination of, and in our discussions about, the law as it’s. This discussion must continue in the interest of law, the Constitution, Constitutional Democracy, the Legal Profession and Nigeria. To this end, from my own tiny end, please stay tuned for Part 2 titled, “Part 2: One Cannot Validly Discuss Whether 4 Or 5 Members Of The Rivers State House Of Assembly Can Continue With Businesses Of The House Unless And Until One Has Ascertained The Legal Implications Of The Reported Defection Of 27 Members Of The House On 11 December 2023 (A continuation of the ‘I’m an Authentic Legal Luminary’ Discussion Series)”.
C. POST SCRIPTUM: ADVICE TO LAWYERS GENERALLY
Legal Practitioners, irrespective of their political, cultural, ethnic, religious or social leanings or predilections, have a primary responsibility as lawyers to uphold the truth at all times, and to promote the rule of law irrespective of whose ox is gored. This duty is overriding and supplants the lawyer`s duty to his/her clients and/or any desire on his/her part to protect or advance any provincial interests he/she represents. It could therefore be concluded that promoting the truth, justice, and rule of law, is the most obvious and fundamental role for lawyers in a constitutional democracy, although this duty is not necessarily such a simple one. Nevertheless, let it be known that if Nigerian lawyers for whatever reasons fail in these core duties, our hope of building, sustaining and advancing true constitutional democracy and democractic constitutionalism would become a mirage. (See: “The Rivers State Assembly imbroglio and duty of lawyers to defend rule of law and constitutional democracy in Nigeria” By Sylvester Udemezue; published on 07 July 2024 in LawAndSocietyMagazine; TheNigeriaLawyer; TheNigerianVoice, BarristerNG, etc)
Respectfully,
Sylvester Udemezue (Udems),
Proctor,
The Reality Ministry of Justice (TRM)
08109024556
therealityministry@gmail.com
(20/October/2024)
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