Tambuwal’s defection: Federal High Court has no jurisdiction

As was done in the previous defections of some members of House of Representatives, PDP is again in Federal High Court, following Tambuwal’s defec­tion, praying for a declaration that his seat has become

vacant. In his defense, Tambuwal has responded and joined issues without raising the most important defenses: lack of jurisdiction and/or failure to state cause of action. Both parties are wrong. Even as the clock is already ticking, Federal High Court jurisdic­tion is of second instance and will be triggered only after exercise of the jurisdiction of first instance which, according to clear provisions of the Constitution, lies with the House of Representatives, which is yet to exercise it.

Section 68 (1) (g), CFRN provides in pertinent part as follows: “(1) A member … of the House of Representatives shall vacate his seat in the House of which he is a member if – (g) Being a person whose election to the House was sponsored by a political party, he becomes a member of another political party before the expiration of the period for which that House was elected; Provided that his membership of the latter political party is not as a result of a division in the political party of which he was previously a mem­ber or of a merger of two or more political parties or factions by one of which he was previously sponsored”. Section 68 (2) then provides further that “… the Speaker of the House of Representatives …, shall give effect to the provisions of subsection (1) of this section, so however that … the Speaker of the House …or a member shall first present evidence satisfactory to the House … that any of the provisions of that subsection has become applicable in respect of that mem­ber”. Conversely, Section 251(4) provides that “The Federal High Court shall have and exercise jurisdiction to determine any question as to whether the term of office or a seat of a member of the Senate or the House of Representatives has ceased or his seat has become vacant”. For avoidance of doubt, this last one is an amendment of Section 251 (general Federal High Court jurisdiction), not Section 68 (House jurisdiction on defections) which was left intact and undisturbed by the three Alteration Acts. Thus, if the National Assembly had intended that jurisdiction over defections shall first, and to the exclusion of the House, lie with the Federal High Court, it would have repealed the House jurisdiction stipulated at Section 68. The legislative intent, therefore, is for Section 68(2) to be fully ven­tilated or breached before Federal High Court jurisdiction comes into play.

Further, at first glance, we also see from the plain letters of Section 68 that it is the Speaker himself, not a Federal High Court judge, that shall first give effect to the constitutional consequence that arises from defection of a member of the House; and the Speaker gives such effect after he or any other member of the House has ‘first presented evidence satisfactory to the House that any of the provisions of that subsection has become applicable.’ But, as it stands, the Speaker cannot be expected to, willy-nilly, enforce the Constitution against himself. At first impression, this appears to present some challenge, but the proper or first forum for dealing with such challenge is the House, not the Federal High Court. Recall that presenta­tion of evidence of the defection and satisfac­tion of the House thereof must occur before the Speaker can act. So, the problem begins to know solution once any member, standing on the threshold of the clear provisions of the Constitution and the notoriety of Tambuwal’s defection, rises before the House while it is normally or ordinarily empanelled and pres­ents the evidence of defection; and Tambuwal rebuts with the affirmative defenses of either division or merger. This has not happened. After presentation of the evidence and the de­fenses, the next process, and that is: satisfying the House on the elements of the impermis­sible defection follows; and finally, if the House is satisfied, Tambuwal ‘shall’ then, without more, give effect to Section 68(1) by vacating his seat. It is only after he has refused to vacate or blocked the House from consideration of the issue of his defection that Federal High Court jurisdiction attaches either under Section 251(4), for a declaration that his seat has become vacant; or in an ac­tion for mandamus, to compel him to perform the constitutionally-mandated functions of his office. In the earlier situation, where the House has come to a determination, what will be at issue before the Federal High Court will be the merits/demerits of the House action, or a judicial determination of whether the House determination met the conditions set out in the Constitution, particularly at Section 68.

So, how can the House, led by defector Tambuwal, be compelled to properly convene itself to deliberate on this matter; and what procedures are available to it under the Constitution? The Constitution took care of that, and here they are: Section 53(1) provides as follows: “At any sitting of the National Assembly – (b) in the case of the House of Representatives, the Speaker of that House shall preside, and in his absence the Deputy Speaker shall preside. (3) In the absence of the persons mentioned in the foregoing provisions of this section, such member … the House of Representatives may elect for that purpose shall preside”. Section 54(1) then states: “The quorum of … the House of Representatives shall be one-third of all the members”. Section 56(1) says: “Except as otherwise provided by this Constitution any question proposed for decision in … the House of Representatives shall be determined by the required majority of the members present and voting; and the person presiding shall cast a vote whenever necessary to avoid an equality of votes but shall not vote in any other case. (2) Except as otherwise provided by this Constitution, the required majority for the purpose of determining any question shall be a simple majority”.

From the foregoing, we now know these: If Tambuwal is ‘unable’, refuses to preside or is otherwise recalcitrant, Ihedioha (the Deputy Speaker) shall preside. If Tambuwal and Ihedioha are simultaneously ‘unable’ or refuse to preside, any other ordinary member elected on the floor, suo sponte, for that purpose shall preside. The quorum for House sittings is one-third of all members. That’s easy, considering that PDP is still in majority; and if you will, the party can readily muster one-third of Reps from two or three ‘loyal’ geopolitical zones or a spread thereof. It is members present and voting that shall be satisfied, not all members. The required majority is simple majority (very easy). And since Ihedioha or any other member can act as Speaker pro tempore, it no longer lies in Tambuwal’s hands alone to ‘give effect to the provisions of subsection (1)’ of Section 68. But even if it can be argued by some stretch that it is Tambuwal that must personally give effect to the House ruling, he must still do so, even against himself and despite his under­standable unwillingness, because the word used, once the House is satisfied, is ‘shall’, not ‘may’. In other words, the ‘shall’ means that Tambuwal, if presiding, is constitution­ally incapable of upturning the popular will of the House. It is not Tambuwal that should be ‘satisfied’, it is the House. Alternatively, if all else fails in the House, Federal High Court jurisdiction becomes ripe, but not before.

Thus, as we have seen from the preced­ing paragraphs, there is not yet any case or controversy or cause of action that should warrant PDP or even Tambuwal to proceed to Court to determine this very question of the fell consequences of his defection. In other words, Federal High Court jurisdiction is, for avoidance of doubt, of second instance. Thus any case predicated on this defection and thereby praying for a declaration that Tambuwal’s seat is liable to become vacant is, as yet, not ripe; and at worst, it is tantamount to praying the High Court for an advisory opinion on an issue which the House has the authority to act but has yet to do so. Rushing to court when the House is yet to act is an act of impermissible preemption of House original jurisdiction.

To better understand the unique jurisdic­tional interplay between Section 68 (House quasi-original jurisdiction) and Section 251(4) (Federal High Court quasi-appellate jurisdiction); we only need to look at some examples, where the legislature is required by the Constitution to have taken action before Court jurisdiction attaches. They are: Federal High Court jurisdiction over impeachment of Governors, etc. and Appeal Court jurisdic­tion over impeachment of the President, etc. In these two examples, jurisdiction of first instance lies with the legislature, which must first and affirmatively act on the articles of impeachment and bring the matter to an affir­mative end before Court jurisdiction matures. It then follows that in bypassing the House and taking this matter of Tambuwal’s defec­tion (and the others before it) first to the Court is akin to also taking articles of impeachment first to the Court without giving the legisla­ture its first right of jurisdiction to act on the impeachment.

The next and immediate course of action, therefore, is for the PDP to summon the po­litical/legal will to force the constitutionally-stipulated actions on the floor of the House. If PDP succeeds, as is very likely, and Tambu­wal is felled as a member of the House, his being Speaker becomes a moot point. So, it is not like the riddle of the chicken and the egg, which came first. He was a Rep before he became Speaker; thus he must cease to be a Rep before he ceases to be a Speaker, unless he resigns (impossible), is recalled by his con­stituents (impossible), is impeached (very dif­ficult because it requires two-third majority), he is appointed or elected to another office (not presently in play), or he dies (an act of God that is beyond human contemplation).