The dust raised by the Bye-Election conducted into the House of Representatives by the electoral umpire to fill the vacancy in the Lokoja/Kotonkarfe Federal Constituency is unsettling. However, further dusts maybe raised again as the Independent National Electoral Commission may proceed to conduct another bye-election in Kogi State soonest.
Not a few feathers were rustled by the course of events at the plenary session of the Kogi State House of Assembly of Tuesday, August 7, 2018. A careful look at the Hansard of the said day will reveal that asides other events, the letter of the member representing Lokoja1 Constituency was read at plenary.
By the said letter, member representing Lokoja1 Constituency, Rt. Hon. Umar Ahmed Imam had informed the House of his defection from the ruling All Progressives Congress (APC) to the Social Democratic Party (SDP). He hinged his defection on the prevailing crisis in the All Progressives Congress.
Furthermore, a letter said to have emanated from the office of the Chairman, All Progressives Congress, Kogi State was also read at plenary. Premised on the said letter, the Chairman of the All Progressives Congress, Kogi State Chapter urged the KogiState House of Assembly to declare the seat of the Honourable member representing Lokoja1 Constituency vacant.
Sequel to the foregoing, the member representing Ajaokuta Constituency, Hon. Bello Abdullahi sponsored a motion inviting the Honourable Speaker and other Honourable members of the Kogi State House of Assembly to declare the seat of the member representing Lokoja1 Constituency vacant in compliance with the provisions of section 109(1)(g) of the 1999 Constitution of the Federal Republic of Nigeria, as amended. The said motion was seconded by Hon. Ahmed Mohammed (Deputy Majority Leader of the House). The floor was thus opened for debate and after deliberations on the said motion, the question was put and subjected to voice vote and the ‘ayes’ had it.The Clerk of the House was then directed to communicate the fact of declaring the seat of the member representing Lokoja1 Constituency vacant to the Independent National Electoral Commission.
It is thus a fact that the seat of the member representing Lokoja1 Constituency was declared vacant by the Kogi State House of Assembly on Tuesday, August 7, 2018. Before commencing a clinical diagnosis of whether the Honourable Members of the Kogi State House of Assembly complied with Section 109(1)(g) of the 1999 Constitution of the Federal Republic of Nigeria, as amended, it is pertinent that we understand the nature of a seat in, nay, membership of the State House of Assembly.
The House of Assembly, Kogi State House of Assembly inclusive is a creation of the Constitution (Section 90 of the 1999 Constitution of the Federal Republic of Nigeria, as amended). Each seat in the State House of Assembly represents a constituency and each constituency is constitutionally recognised (Section 114 of the extant Constitution). As such, the seat of Rt. Hon. Umar Ahmed Imam that is, Lokoja1 Constituency thus enjoys constitutional flavour.
It is fundamental to state that the right of the people of Lokoja1 Constituency to have a representative occupy its seat in the Kogi State House of Assembly for a 4-four- year term is preserved at Section 117 of the extant Constitution (The Speaker, Bauchi House of Assembly v Honourable Rifkatu Danna (2017) 49 WRN 52). The right of the people of Lokoja1 Constituency to have its elected representative represent it for a 4-four- year term at the Kogi State House of Assembly, participating in its deliberations and protecting their interests in the governance of Kogi State is thus an inalienable right.
A consideration of whether the Honourable Members of the Kogi State House of Assembly complied with Section 109(1)(g) of the 1999 Constitution of the Federal Republic of Nigeria, as amended when it declared the seat of the Member representing Lokoja1 Constituency vacant thus implies a consideration of whether the action of Honourable members of the Kogi State House of Assembly constitutes an invasion of the rights of the people of Lokoja1 Constituency.
We are not unmindful of the letter read at plenary on Tuesday, August 7, 2018 and alleged to have emanated from the office of the Kogi State Chairman of the All Progressives Congress urging the Honourable members to declare the seat of the member representing Lokoja1 Constituency vacant. The contents of the letter is not available to this writer hence, not so much will said thereon. It will suffice to state that the state Chair of the APC acting alone or through proxy does not have requisite vires to write such letter safe after disciplinary measures against Rt. Hon. Umar Ahmed Imam have been taken by the State Executive Committee of the All Progressive Congress and after an appeal thereon (if any) has been determined by the National Executive Committee of the said party (See Sections 13.7(vi) and 13.3(v) of the All Progressives Congress Constitution).
It is imperative to state that the law relating to when a member of the House of Assembly shall vacate his seat in the house is governed by the provisions of Section 109 of the 1999 Constitution of the Federal Republic of Nigeria, as amended. The parts relevant herein is Section 109(1)(g) and (2) thereof. By its express letters, a member of the House of Assembly shall vacate his seat in the House if he abandons the political party that sponsored him and becomes a member of another political party before the expiration of the period for which that House was elected.
It is not in doubt that there is no provision in the extant Constitution for independent candidates for the purpose of elections conducted into constitutionally recognised offices. In actual point of law and fact, a person can only be qualified for election into the State House of Assembly is he is a member of a political party and is sponsored by that political party (See Section 106(d) of the Constitution (supra); Ardo v. Nyako (2014) LPELR 22878 @ 29-30, Paras. D-D).It is thus not out of place where the framers of the 1999 Constitution (supra) made punishable the defection of an elected member from the political party that sponsored him to another political party before the expiration of the period for which the House was elected by declaring his seat vacant (AG. Federation & Ors. v. Abubakar & Ors (2007) LPELR-3(SC) @ 194-195, Paras. C-A).
It is a fact of common knowledge that Rt. Hon. Umar Ahmed Imam was a member of the All Progressives Congress and was sponsored by the same party to the Kogi State House of Assembly is not subject of debate. Membership of the All Progressives Congress shall be determined amongst other things where a member procures the membership of another political party (Section 9.5 of the All Progressives Congress Constitution). It is also a fact of common knowledge that Rt. Hon. Umar Ahmed Imam contested the recent bye-election conducted in the House of Representatives having become a member and sponsored by the Social Democratic Party in compliance with Section 65(2) of the Constitution (supra).
The state of the law as settled by competent Courts of record in Nigeria is that it is mandatory for an elected member to vacate his seat immediately on decamping to another party where there is no division within his own party. It should be a voluntary honourable experience on his part. It is when this is not done, that the speaker is called upon to give effect to the provision of Section 109(1)(g). This much can be better appreciated in the decision of the Court of Appeal, per Ogunwumiju, JCA in Ofobruku v. DPP & Anor. (2015) LPELR- 24899 @ 23-24, Paras. D-A amongst others.
A closer look at Section 109(2) of the 1999 Constitution (supra) will reveal that the Distinguished Speaker of the Kogi State House of Assembly can give effect to Section 109(1)(g) of the 1999 Constitution upon presentation of evidence satisfactory to the House. It is however the view of this present writer that the letter addressed to the Distinguished Speaker and read at plenary wherein Rt. Hon. Umar Ahmed Imam had informed the Kogi State House of Assembly of his defection from the ruling All Progressives Congress to the Social Democratic Party constitutes satisfactory evidence that the said member, representing Lokoja1 Constituency had in actual point of fact and law defected from the party that sponsored him before the expiration of the period for which the House was elected.
Sequel to the foregoing,it may appears easy to reach a conclusion that Rt. Hon. Umar Ahmed Imam that Honourable Members of the Kogi State House of Assembly rightly adopted the punitive measure of declaring his seat in the said House vacant. This by extension will not constitute an invasion of the rights of the people of the Lokoja1 Constituency to have representation at the said State House of Assembly. However, this conclusion cannot be reached that speedily considering the fact that Rt. Hon. Umar Ahmed Imam relied on alleged division in the ruling All Progressives Congress for his defection. This position thrives on the fact that there is a proviso to Section 109(1)(g) of the 1999 Constitution (supra).
Section 109(1)(g) of the 1999 Constitution (supra) has a proviso which provides that where the act of defecting to another political party is a result of a division in the political party that sponsored him or where the sponsoring political party merges with other political party(ies) or a faction thereof.
It is trite that a proviso, when inserted in a statutory provision operates to create an exception and derogation from the intendment of statutory provision. It speaks the last intention of the framers of the statute (NDIC v. O’Silvawax Int’l (2006) 7 NWLR (Pt. 980)588 @ 611 and NIPOST v. Adepoju (2003) 5 NWLR (Pt. 813)234 @ 242, Paras. A-B). As such, the proviso to Section 109(1)(g) of the 1999 Constitution (supra) creates an exception to the general rule that which makes it mandatory for a member of the House to vacate his seat or have his seat vacated when he defects from his sponsoring political party to join another. This represents this last intention of the framers of Section 109(1)(g) of the 1999 Constitution (supra).
It must be noted that the framers of Section 109(1)(g) of the 1999 Constitution (supra) gave power on the Kogi State House of Assembly to subject the issue of whether there is a defection to a subjective test. This much can be deciphered at Section 109(2) of the 1999 Constitution wherein it provides for ‘evidence satisfactory to the House’. A revisit to the Hansard of the Kogi State House of Assembly of Tuesday, August 7, 2018thus becomes needful.
Evident in the said Hansard is the fact that in the course of deliberations, Rt. Hon. Momoh Jimoh, Member representing Okene II Constituency informed the Honourable members in plenary that the fact that there is in existence a parallel R-APC makes it clear that there is crisis in the All Progressives Party.Hon. Linus Ojochenemi Eneche, Member representing Olamaboro Constituency further stated at plenary that there is glaring crisis in the All Progressives Congress. Hon. Oluwatoyin Lawal, Member representing Yagba West Constituency further stated that in view of the petition challenging the convention that produced the incumbent National Executive Committee, the All Progressives Congress is in crisis. It is thus clear and beyond peradventure that on August 7, 2018, oral evidence of the alleged crisis in the All Progressives Congress was placed before the Honourable Members representing the Kogi State House of Assembly.
Furthermore, the Deputy Speaker, Rt. Hon. Hassan Abdullahi gave oral evidence to the effect that there is an ongoing reconciliation by committees set up at both State and National Level which should have been considered by Rt. Hon. Imam. The present writer is of the strong belief that inherent in the statement of the said Deputy Speaker is the fact that there is crisis at both national and state levels of the All Progressives Congress.
On his own part, the Distinguished Speaker of the House stated that only the Court of law can declare that there is crisis within a party and there has been no such declaration made in respect of the All Progressives Congress. While the position of the Distinguished Speaker is admirable his consequent putting the matter to voice vote works against the wheels of justice of the said issue. This much is premised on the fact that Honourable Member representing Yagba West Constituency had pointed out that there is a petition/ court action in respect of the matter. Which means that the issue of whether there is crisis in the All Progressives Congress is subjudice (Suit No. FHC/ABJ/CS/1734/18 instituted against the National Executive Committee, National Working Committee, 36 State Chairmen of the All Progressives Congress, Independent National Electoral Committee as well as the All Progressives Congress).
In view of Suit No. FHC/ABJ/CS/1734/18, this writer believes that the Distinguished Speaker having observed that it is only the Court that can declare whether the All Progressives Congress is crisis laden should have gone further to direct the Honourable Members of the Kogi State House of Assembly to stay action on deciding whether the action of Rt. Hon. Imam is unlawful or not pending the determination of the matter pending before the Federal High Court. This position is primed on the pedestal of the doctrine of lis pendens.
The doctrine of lis pendens operates to prevent any transfer of any right(s) or the taking of any step capable of foisting a state of helplessness and/or hopelessness on the Court during the pendency in court of an action and even after. The doctrine prevents any of the parties from being prejudiced by the other. The doctrine negates and disallows any transfer of rights or interests in any subject-matter that is being litigated upon. The well-known maxim is “Pendente lite uihil innovetur” which means during a litigation, nothing new should be introduced (Amaechi v. INEC & Ors (2008) LPELR-446 @ 268-269, Paras. E-A). Hence, Honourable Members of the Kogi State action should have stayed action on determining whether the All Progressives Congress is in crisis pending the determination of Suit No FHC/ABJ/CS/1734/18.
The Supreme Court in Abegunde v. Ondo State (2015) LPELR-24588 @ 30-35, Paras. F-A relied on its decision in FEDECO v. Goni(1983) NSCC Vol. 14 page 481 to determine when it can be said that there is a division in a political party. The apex Court recognised that the mischief that the framers of the Constitution seeks to cure is to prevent fraudulent and malevolent cross carpeting for financial consideration without qualms and without conscience. In Abegunde’s case (supra), the apex Court went ahead to hold that the “division” contemplated by the framers of the 1999 Constitution must be such that affects the entire structure of the Political Party at the centre, that is, the national leadership of the party.
The Crisis bedevilling the ruling All Progressives Congress has been chronicled in the newspapers in recent times. Some of the said newspapers include the Punch Newspaper of May 10, 2018 titled “Crisis hits APC as nPDP writes Oyegun over Marginalisation” which reported a meeting between the Alhaji Kawu Baraje led nPDP and John Oyegun led APC. The meeting followed a four-4-paged Petition signed by Baraje and Prince Olagunsoye Oyinlola. The said Petition is said to be dated April 27, 2018.
Vanguard Newspaper of May 28, 2018 titled “Breaking: Osibajo-led FG Delegation meets Saraki-led nPDP”. This reported the meeting held between APC delegation led by the Vice-President Professor Yemi Osibajo, SAN and the nPDP delegation led by the President of the Senate, Dr. Bukola Saraki. Furthermore, Leadership Newspaper of July 8, 2018 titled “Dramatic emergence of rAPC and the Intrigues of Saraki’s S’Court Victory” is another newspaper report of the emergence of a faction of the ruling All Progressives Congress led by one Alhaji Buba Galadima who was national secretary of the defunct Congress for Progressive Change (CPC), one of the legacy parties that coalesced into the All Progressives Congress.
In Vanguard Newspaper of July 4, 2018 titled “Breaking: N-PDP becomes Reformed All Progressives Congress”, it was reported that at a press conference held at Sheraton Hotel, Abuja, Alhaji Buba Galadima announced the emergence of the R-APC. It was further reported in the Vanguard Newspaper of July 7, 2018 that R-APC is the mainstream, original APC. It thus becomes clear as crystal that the R-APC is contending with APC. This much is further made clear as the R-APC reveals the names of its National Executive Committee members as party officials at the state level.
This Day Newspaper of July 13, 2018 titled “rAPC sues APC, asks Court to annul Oshiomole, Others election” reports that the rAPC vide Suit No. FHC/ABJ/CS/1734/18 filed by Alhaji Buba Galadima, Kazeem Afegbua, Nicholas Asuzu and Alhaji Hadi Ametuo against the NEC of the APC, members of the APC National Working Committee, Chairmen of 36 States Executive Council, Independent National Electoral Commission and APC. The said suit amongst others prays the Court to declare the election conducted by APC national convention on June 23, 2018 be declared null and void having been conducted in contravention of Article 20 of the APC Constitution, 1999 Constitution and the Electoral Act, 2010. It is alleged therein amongst other points, that the congresses conducted by APC at Ward, Local Government and State levels culminating in the national convention of June 23, 2018constitutes proof that the APC had become factionalised.
Sahara Reporters on July 9, 2018 titled “APC to sue Galadima for the ‘Criminal Acts’ of forming R-APC and Declaring himself Chairman” reports that Babatunde Ogala, APC National Legal Adviser threatened to institute legal action against Alhaji Buba Galadima for criminal acts of forming the R-APC- a faction of the ruling party and declaring himself Chairman. In the said report, Babatunde Ogala is said to have alleged that the action of Alhaji Buba Galadima constitutes impersonation, fraudulent misrepresentation, breach of trade mark and infringement of copyright as well conduct likely to breach public peace.
This Day Newspaper of May 20, 2018 titled “APC Crisis Deepens as 10 States hold Parallel Congresses” reported that the crisis in the ruling All Progressives Congress showed no sign of receding as violence marked the State Congresses of the party held nationwide with 10 States holding parallel congresses. The said online blog further listed the States where factions of the Party worked at cross-purposes to include Lagos, Kwara, Delta, Rivers, Ondo, Enugu, Kogi, Bayelsa, Oyo and Ebonyi. Furthermore, it was reported that two state congresses of the APC were also conducted in Kogi State. It was reported that the Alhaji Hadi Ametuo faction held its congress at St. Peter’s Primary School, Felele, Lokoja observed by officials of the Independent National Electoral Commission (INEC) while Governor Yahaya Bello’s faction held its congress at the Confluence Stadium, Lokoja.
Premium Times of July 10, 2018 titled “2019: R-APC, PDP, 37 Parties sign Memorandum to work against Buhari” reported that the R-APC and 38 Political Parties are forging ties to create a single platform to work against the ruling APC and its Presidential Candidate in the 2019 elections. That is, some members of the ruling APC entering into partnership with other political parties to oust other members of the ruling APC out of power.
We are not unaware that the facts chronicled in the foregoing are contained in Newspaper reports and the settled position of law is that Newspaper reports are not admissible evidence of facts contained therein (Njoku v. Jonathan & Ors (2015) LPELR-24496; Lawal v. Governor, Kwara State (2006) All FWLR (Pt. 321)1299, 1308). Where Newspapers are tendered in evidence to proof the contents therein, same will be deemed by a Court of competent jurisdiction to constitute hearsay as such irrelevant and inadmissible evidence (Ojukwu v. Yar’Adua (2009) ALL FWLR (Pt. 482) 1065).
Common knowledge has been defined as a fact that is widely known but assumed to be true without any proof that it is- https://thelawdictionary.org/common-knowledge/.The position of the law is that facts, the knowledge of which is not reasonably open to question and which is common knowledge in the locality in which the proceeding is being held or generally constitutes facts of common knowledge which need not be proved (Section 124, Evidence Act, 2011).
The facts of crisis and division of All Progressives Congress into R-APC and APC as chronicled in the Newspaper reports serialised above amongst others constitute facts, the knowledge of which had become common all over Nigeria and beyond. The fact that there is division, fragmentation and fractionalization of the All Progressives Congress has thus become a fact which need not be proved. Adding this to the fact of the pendency of Suit No. FHC/ABJ/CS/1734/18(which any Court in Nigeria will take judicial notice of pursuant to Section 122 of the extant Evidence Act) as well as the admission of the Deputy Speaker of the Kogi State House of Assembly constitutes valid proof that there is division contemplated by Section 109(1)(g) of the extant 1999 Constitution in the All Progressives Congress.
In view of the foregoing, this present writer believes that the Honourable Members of the Kogi State House of Assembly acted ultra vires the provisions of Section 109(1)(g) of the extant 1999 Constitution when it declared the seat of Member representing Lokoja1 Constituency in the said House vacant and thereby invaded the rights of the people of the said constituency to have Rt. Hon. Umar Ahmed Imam.
– Oluwole Oladimeji Esq
