Rivers State Judiciary has witnessed ‘turbulent’ times in the last few years having to grapple with issues relating to political interference, security breaches and remuneration of workers. There has been one controversy after another with the attendant consequences including notably and regrettably, the closure of all state Courts for a period of about one year from July, 2014 to June 2015. Specifically, the appointment to the office of the Chief Judge of the State has been enshrouded in a lot of controversy. The good news however is that finally, the state has a new substantive Chief Judge in the person of Chief Justice Iyayi-Lamikanra. She happens to be the second female to be appointed to the respected office after Honurable Chief Justice Daisy W. Okocha who retired in Jan, 2016.
The process of appointing a Chief Judge, by constitutional provisions is three-fold. First the National Judicial Council recommends, thereafter the legislature, in this case, House of Assembly confirms before the Governor appoints the holder of the office of the Chief Judge See s. 271(1) CFRN 1999. Justice Iyayi-Lamikanra was appointed as Acting Chief Judge after the retirement of Justice Daisy W. Okocha in January, 2016 in line with constitutional provisions (See S. 271(4) CFRN 1999 and she has since been acting in that capacity. On Monday, March 7, 2016 the Rivers State House of Assembly (RSHA) confirmed the position of Justice Iyayi-Lamikanra as the substantive Chief Judge of Rivers State following the recommendation by the National Judicial Council. She was sworn in by Governor Wike on Tuesday, March 8 2016.
There is a raging debate as to the legality of the legislative action of the Rivers State House of Assembly on the confirmation of the substantive Chief Judge of the State. It would be recalled that in December, 2015 the Court of Appeal nullified the election of 20 members of the RSHA including the Speaker. This meant that, out of a total number of 32 seats, only 12 are currently occupied while 20 seats are vacant. Ordinarily, 12 members out of 32 is more than one-third which is the constitutionally required number for a quorum. However, according to reports, the RSHA had only 9 members when it carried out its assignment of confirmation of the Chief Judge of Rivers State. The issue now is whether the action is valid considering the fact that 9 members are not sufficient to form a quorum of the Assembly.
S. 96(1) CFRN 1999 provides that “the quorum of a House of Assembly shall be one third of all the members of the House“
The ordinary interpretation of this provision would be that the House of Assembly should not proceed without meeting this requirement. The Black’s Law dictionary, 8th edition defines ‘quorum’ as “the minimum number of members (usually a majority of all the members) who must be present for a deliberative Assembly to legally transact business”. The Supreme Court adopted a similar definition in the case of Saraki v Federal Republic of Nigeria [2016] 3 NWLR (pt 1500) 531 at 573 where it defined the word “quorum as follows: ” the word “quorum” means a majority of the entire body, the numbers who must be present in a deliberative body before business may be transacted, or such number of the members of a body as is competent to transact business in the absence of the other members”.
In the case of Dapianlong v. Dariye (No. 2) [2007] 8 NWLR, (pt. 1036) 332, (Dariye case) the Supreme Court had cause to consider the issue of quorum vis-a-vis S.188 of the CFRN 1999 which deals with the removal of a Governor by impeachment. In that case, the Supreme Court held that the removal of the former Governor of Plateau State by some members of the House of Assembly was illegal, null and void and reinstated the Former Governor to his office. At the time the Governor was impeached, the Plateau State House of Assembly had only 10 out of 24 members as 14 seats were vacated due to ‘cross-carpeting’ by members who occupied those seats. Out of the 10 members at the time, only 8 members conducted the impeachment proceedings.
The Supreme Court held that the constitutional provision of quorum for proceedings of the House of Assembly generally was met because 8/24 is one third. However, the Court held that the requirement of adoption of impeachment report by 2/3 of all the members in line with s.188(9) was not met. It was noted that although 8/10 was more than two third of the members present, the constitution envisaged the entire membership of the House of Assembly and not just the number of seats occupied at the time. Thus 8/24 did not amount to two thirds as required by the law. Accordingly, the impeachment was illegal.
It is also worthy of note that the Supreme Court drew a distinction between “one third of the members of the House of Assembly” as used in S.188(2) CFRN 1999 and “two thirds majority of all the members” as stated in S.188(9) CFRN to the end that when the constitution states “all the members” it should be taken to mean the totality of the members and not only those present at a specific proceeding.
By the foregoing parameters, it would be correct to say that for the purposes of the Rivers State House of Assembly, quorum would be one third of 32 for the business of the House such as confirmation of the Chief Judge of the State to be validly conducted. Where such quorum is not met, the proceedings would be illegal, null and void as was held in the Dariye case.
However, there are two other interesting provisions of the Constitution that may affect this position: S.96(2) CFRN provides thus:
“If objection is taken by any member of a House of Assembly present that there are present in that House (besides the person presiding) fewer than one-third of all the members of that House and that it is not competent for the House to transact business, and after such interval as may be prescribed in the rules of procedure of the House, the person presiding ascertains that the number of members present is still less than one-third of all the members of the House, he shall adjourn the House”
A careful consideration of the above provision would reveal that a House of Assembly may be able to proceed with its business without quorum, provided no objection is made by any member present because there is no clear provision of the law in a situation where there is NO objection by any member of the Assembly. Where an objection is taken and due process is followed as provided by the constitution and the rules of procedure of the House, it would be wrong to proceed with the legislative business.
It is the writer’s view therefore that arguably, based on this provision, if the Rivers State House of Assembly had a successful deliberation regarding the confirmation of the Chief Judge of the State without an objection on the issue of quorum by any member present, then the action of the legislature is, perhaps valid and legal.
Again S.102 CFRN provides that “A House of Assembly may act notwithstanding any vacancy in its membership…”
This provision also tends to affect the issue of quorum discussed above because if the law allows the Assembly to act irrespective of vacancy in its membership, where then would the line be drawn as to how many people may ‘act’? In the Dariye case, the Supreme Court considered this provision in view of the argument by Counsel. However, because the case had to do with impeachment procedure which had a more specific provision in the Constitution, the Court held that where a statute lays down general and specific provisions, the specific provisions in relation to an issue should supersede that of the general provision. Accordingly, since the matter was based on impeachment, the specific constitutional provisions relating to impeachment should override that of S. 102 CFRN 1999.
It is the humble view of this author that the issue of confirmation of the Chief Judge of a State has no specific provision as to the quorum, unlike the case of impeachment (See S.271 (1) CFRN 1999) and therefore the principle applied in the Dariye case would not apply to the RSHA. This leaves room for uncertainty when the issue of quorum as provided in S. 96(1) CFRN 1999 is juxtaposed with S. 102 CFRN 1999.
While it is hoped that the Rivers State Judiciary will now be allowed to focus on its core mandate to deliver justice to the people in a timely and efficient fashion, some of the grey areas of the constitution which appear to be conflicting need to be reviewed in order to effectively capture the overall purpose and enhance clarity and predictability.
Author’s note: This article was published on TheScoopNG
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