By Tonye Clinton Jaja
Hon. Justice Emmanuel Akomaye Agim, Justice of the Supreme Court of Nigeria wrote the lead judgment that was delivered on 28th February 2025.
The judgment was supposed to resolve the issues surrounding the Rivers State House of Assembly especially the defection of 27 law-makers from the People’s Democratic Party (PDP) to the All Progressives Congress (APC) that occurred in December 2023.
In his 62 page judgment, Hon. Justice Agim’s interpretation of Section 109 (1) (g) of the Constitution of the Federal Republic of Nigeria, 1999 can be faulted on two major grounds namely the case laws of:
- Attorney-General of Bendel State vs. Attorney-General of the Federation (1981);
- Pepper (Inspector of Taxes) vs. Hart (1993)and;
- Hon. J. I. Ekpenkhio v. Hon. Matthew Egbadon (1962-2001)1 Legislative Law Reports of Nigeria (LLRN) pages 307 to 336.
- Let me begin with the second and third case law authorities namely: the case law authority of Pepper (Inspector of Taxes) vs. Hart (1993) AC 539 and Hon. J. I. Ekpenkhio v. Hon. Matthew Egbadon (1962-2001)1 Legislative Law Reports of Nigeria (LLRN) pages 307 to 336.
In a nutshell, the House of Lords (Supreme Court of the United Kingdom) laid down in that case law, for the first time the locus classicus (the authority) and the rule of law that whenever there is ambiguity or the intentions of the legislature is not easily discernable due to the wordings of any legislation, the judge or the court must resort to the Hansard (a verbatim report of the debates and proceedings of any legislature).
Throughout, his 62 page judgment, in trying to discern the true intentions of Section 109 (1) (g) of the Nigerian Constitution, Hon. Justice Agim failed to refer to the Hansard (debates of the Constitution Drafting Committee) that produced the Constitution of the Federal Republic of Nigeria, 1999.
This document is easily available through an online search or at the library of the National Assembly located within the premises of the National Assembly of Nigeria in Abuja, Federal Capital Territory!!
An online search on the website of the National Institute for Legislative and Democratic Studies (NILDS) can also provide a copy of the said Hansard inside a book entitled: “A Century of Law-Making in Nigeria (1899 to 1999)-The Constitutions published in the year 2015 by the said institute-NILDS!!!
In the event that Hon. Justice Agim’s judgment had made reference to the said document, he would have identified the mischief that the drafters of the Nigerian Constitution intended to cure, and he would therefore not have arrived at the erroneous interpretation as contained in his judgment!!!
In this instance, the mischief is the deception practiced by some law-makers who after being sponsored by one political party during election into the legislature as law-makers, decide to defect or cross-carpet into another political party that didn’t sponsor them. One of the conditions is that a crisis or division must occur at the National level of the political party that sponsored the said law-makers.
In the event that Hon. Justice Agim had looked at the said Hansard, he would not have allowed the said 27 law-makers to profit from their own deception of defection which is the mischief that the drafters of the said Section sought to prevent in the first place (by his resort to the lame excuse that there is no concrete evidence before the court of defection by the said 27 law-makers).
Hon. J. I. Ekpenkhio v. Hon. Matthew Egbadon (1962-2001)1 Legislative Law Reports of Nigeria (LLRN) pages 307 to 336, the Supreme Court of Nigeria held that: The Court has a duty to take judicial notice of the record of proceedings of the House of Assembly as stipulated under Section 73 of the Evidence Act”.
In accordance with the above named judgment, it is reasonable to expect that the Supreme Court of Nigeria, would consider the words and actions of Amawhule and the 26 Others on the floor of the Rivers State House of Assembly during the plenary session in December 2023.
Ironically, the evidence of their defection of the said 27 law-makers is contained in the Hansard of the Rivers State House of Assembly of December 11, 2023 when the Deputy Speaker of the Rivers State House of Assembly read a letter of defection on behalf of the 27 law-makers including the Speaker!!! The Speaker then put it to a voice vote and it was approved by all the 27 law-makers. This was then approved as a Resolution of the Rivers State House of Assembly as passed on the 11th day of December 2023.
- In Attorney-General , Bendel State v. Attorney-General, Federation & 22 others (1981) 1 All NLR 85 , a law that was purportedly enacted by the Joint Finance Committee of both Chambers of the National Assembly without constitutional imprimatur was declared to be incompetent legislation by the Supreme Court and as such illegitimate, null and void.
Hon. Justice Agim’s interpretation of Section 109 (1) (g) of the Nigerian Constitution failed to comply with the 12 cannons of interpretation of the Nigerian Constitution as set out by Obaseki in the aforementioned case of AG, BENDEL Vs. AG, FEDERATION (1981).
Specifically, one of the principles is that an interpretation of any Section of the Nigerian Constitution should not result in ABSURDITY!!!
Hon. Justice Agim’s judgment also violates another canon of the interpretation of the Nigerian Constitution which states as follows:
” A Constitutional provision should not be construed so as to defeat its evident purpose .”
There are so many absurdities that Hon. Justice Agim’s interpretation has created such as the absurdity by his statement that only the offending legislature can declare that a defection has occurred.
Additionally, Hon. Justice Agim’s interpretation has defeated the very purpose of Section 109 (1) (g) of the Nigerian Constitution considering that going by his interpretation it is next to impossible for any law-maker who is in violation of the said Section to be declared as having vacated his seat if such a declaration is to be made by the Speaker of such a legislature when the Speaker himself is also one of the law-makers that has defected as was the case with the 27 law-makers of the Rivers State House of Assembly!!!
How on earth would any offender readily agree that him or herself has committed the crime of defection which would result in automatic forfeiture of his or seat in the legislature along with the humongous sums of money that is paid as both salaries and allowances to such law-makers?
The judicial powers of the Federal Republic of Nigeria are vested in the judiciary for the sole purpose that the judiciary would perform the tasks of undertaking judicial review of the actions of the other two arms of government namely the Executive and the Legislature.
The purpose is to create checks and balances to avoid tyranny of one arm of government!!!
Therefore, in the event that an application is made to the judiciary to determine whether the actions of some members of the legislature (in this case, the defection of the 27 members of the Rivers State House of Assembly), is in violation of any Section of the Nigerian Constitution, it is the judiciary alone that can adjudicate and make such a determination.
The judiciary cannot shirk it’s responsibility to the legislature as Hon. Agim’s judgment has done in this case.
It violates the very cardinal principle of justice and fair hearing to ask the legislature to sit as a judge in its own case to determine and declare whether a defection has occurred in violation of the said Section 109 (1) (g) of the Nigerian Constitution.
For the avoidance of any doubts, below is a reproduction of the 12 principles of interpretation of the Nigerian Constitution as follows:
“Attorney-General of Bendel State vs. Attoneys-General of Federation (1981) Per Obaseki, JSC: [Pg 75 Para 35; Pg 84 Para.15-45; and Pg 85 Para 25].
‘Just as Australian courts apply Australian Law and American courts apply American law, be they State or Federal, Nigerian courts are enjoined by the Nigerian Constitution to follow Nigerian Law which is applicable to the cases before them no matter how attractively presented before them cases and authorities from other countries of similar judicial system as ours maybe.’
in the interpretation and construction of our 1979 Constitution, I must bear the following principles of interpretation in mind:
1.Effect should be given to every word.
- A construction nullifying a specific clause will not be given to the Constitution unless absolutely required by the context.
- A Constitutional power cannot be used by way of condition to attain unconstitutional result.
- The language of the Constitution where clear and unambiguous must be given its plain evident meaning.
- The Constitution of the Federal Republic of Nigeria is an organic scheme of government to be dealt with as an entirety; a particular provision cannot be dissevered from the rest of the Constitution.
- While the language of the Constitution does not change, the changing circumstances of a progressive society for which it was designed yield new and fuller import to its meaning.
- A Constitutional provision should not be construed so as to defeat its evident purpose.
- Under a Constitution conferring specific powers, a particular power must be granted or it cannot be exercised.
- Delegation by the National Assembly of its essential Legislative function is pre-eluded by the Constitution (Section 58(4) and Section 4(1);
- Words are the common signs that mankind make use of to declare their intention one to another and when the words of a man express his meaning plainly and distinctly and perfectly, there is no occasion to have recourse to any other means of interpretation,
- The principles upon which the Constitution was established rather than the direct operation or literal meaning of the words used, measure the purpose and scope of its provisions.
- Words of the Constitution are therefore not to be read with narrowness.”
Dr. Tonye Clinton Jaja,
Executive Director,
Nigerian Law Society (NLS).
