Effect Of The Proviso To Section 109(1)(G) Of The Constitution, 1999 (As Amended) And Why Rt. Hon. Martins Amaehwule Has Remained The Speaker Of Rivers State House Assembly In The Eyes Of The Law

By Achi William-wobodo

I shall endeavour to communicate in ordinary and classroom language for all to comprehend. So pardon me for prolixities and trivialities.

The terrain which I venture into is not only considered toxic and hostile, but it is also one which impacts the sensibilities, emotions, and sentiments of the actors and Rivers people alike. I therefore caution and appeal to readers not to be too anxious about the things I write here; But should see them purely as exposé on constitutional law, (education on the workings and operation of the constitution); as they indeed are. For HEALTH REASONS, please do not pander too much to emotions.

To suit all sides to the dispute, but without prejudice to various positions held by the contending parties; I will predicate this piece upon three (3) assumptions, as alleged:
(1) that Rt. Hon. Martins Amaehwule was elected Speaker by a duly constituted RSHA of all 32 members, present and voted;
(2) that Rt. Hon. Martins Amaehwule announced on the floor of the Rivers State House of Assembly (RSHA) that he and other colleagues have defected from the PDP to the APC.
(3) that the reason he announced for their defection was that there was division/faction in their Political Party (PDP) because there was a dispute over the position of National Secretaryship of PDP or whatever.

This is without prejudice to what the parties contend.

Now, having regard to this state of facts and circumstances (assumptions), the question is: WHAT is the faith of Amaehwule and co. in view of section 109(1)(g) of the Constitution? The section provides that any member of the House of Assembly who resigns membership of the political party that sponsored him and takes up membership of another political party before the expiration of the term of that House vacates his seat, PROVIDED THAT, the reason for his membership of a new political party is not as a result of faction/division in his old party or merger of his party with another.

In simpler and more plain language, a member of the House of Assembly who defects to another political party will lose his seat. However, he WILL NOT LOSE his seat if there is division/faction in his old political party. THIS IS THE LAW.

Yes, there is. In legislative drafting, a PROVISO is a clause that helps to qualify, limit or moderate the preceding part of a provision; it usually begins with the word: PROVIDED. Like in Military parlance, PROVISO is a command of “AS YOU WERE” by the makers of the law to the preceding part of the provision/section. In other words, it is a command of “HOLD ON” the operation.

The IMPLICATION of the PROVISO to section [109(1)(g) of the CFRN] is that it (the PROVISO) QUALIFIES, LIMITS, NEUTRALIZES, PUNCTUATES, MITIGATES, STOPS, HALTS, etc the EFFECT and OPERATION of the preceding or main part of S.109(1)(g) of the CFRN. The PROVISO, simply COMMANDS the other part of Section 109(1)(g) of the CFRN, which directs the defected member to vacate, to HOLD ON. In this case, hold on until the court determines whether the reason given by the members, which is division/faction in the old party, was good enough as envisaged by S.109(1)(g) of the CFRN.

THIS FUNCTION, EFFECT and IMPLICATION of a PROVISO in a Statute/Enactment has been settled by the Supreme Court of Nigeria in several judicial authorities; See for instance the case of NDIC VS OKEM ENT. LTD & ANOR. (2004) LPELR-1999(SC), (Pp. 61-62, para.C). Authorities are numerous.

The effect/implication of the proviso is that Amaehwule & co. could say (or are saying):
“Hey guys, yes we have defected, but it is because of the division in our party and therefore we have not vacated or lost our seats”;
And the rest of Oko-Jumbo & co, Rivers People, Nigerians inclusive, etc, may say (or are saying):
“No Sirs, there is no division in your party PDP, whatever existed in PDP did not qualify or neutralize the effect of the main part of section 109(1)(g) of the CFRN.”

Either side has the legal right to maintain and insist on their position. Once there is a contention between Amaehwule & co and Oko-Jumbo, Rivers people, etc, on who is right, AUTOMATICALLY, A DISPUTE HAS ARISEN. The CFRN does not expect either party to commence a BOXING MATCH or to adopt SELF-HELP in order to determine who is right or wrong. Therefore, the legitimate Dispute Resolution Process must be activated. The authority that has the constitutional vires to resolve the dispute is the Court by reason of Section 6(6) of the CFRN, and the specific court is the Federal High Court [Section 272(3) of the CFRN].

No. You and I cannot resolve the dispute. We cannot take the place of the Court. The misconception is based on the wrong assumption and thought that our emotions and sentiments are enough to resolve and determine a constitutional dispute. It is immaterial that the Courts have a settled precedent on the point, the process in the instant case must take its full and normal course. Until then, everyone must remain law-abiding.

Back to the PROVISO. Again, the PROVISO does its function of commanding “AS YOU WERE” to both sides, that is: “Amaehwule remain who you were before the dispute arose as to whether you have lost your seat by defection”; and “Oko-Jumbo also remain who you were before Amaehwule’ defection dispute arose”. Amaehwule was, before the dispute, the elected Speaker; and Oko- Jumbo was before the dispute a member of the RSHA.

The alleged defection was purportedly announced on the 11th of December 2023. On 13th December 2023 (2 days after), Rt. Hon. Amaehwule & Co., approach the Federal High Court, the court constitutionally authorized to determine this kind of dispute, praying that Court to determine whether they are still members of the RSHA or not, based on the proviso to section 109(1)(g) of the CFRN, in SUIT NO: FHC/CS/1681/2023: RT. HON. MARTINS CHIKE AMAEHWULE & 25 ORS VS. INEC & 5 ORS. The Defendants include the RSHA, the Clerk of RSHA, IGP, DSS, and PDP.

The combination of the PROVISO, the DISPUTE in Amaehwule & Co vs INEC & Ors (and “other unnamed Rivers people”) in a court of competent jurisdiction SENT a further signal to and further ACTIVATED the legal command of “AS YOU WERE” to the operations of the first part of S.109(1)(g) of the CFRN.

Pursuant to the said suit, the FHC (Coram D.U. OKOROWO, J) on 15th December 2023 made an order of interim injunction restraining the Defendants from interfering with the rights of Amaehwule and others as the Speaker and members respectively of the RSHA. The interim order of injunction was later made an interlocutory order of injunction, pending the determination of the Suit. That suit is yet to be determined/disposed of. By that Order, Martins Amaehwule remains the valid speaker under the protection of that interlocutory order of injunction and the PROVISO to section 109(1)(g) of the CFRN, pending the determination of that suit.

The action (case) is still pending before the FHC. The Orders are still subsisting and have not been set aside by Oko Jumbo & Co. or any other interested party. Until the orders are vacated, the suit is determined, and the FHC decides that Amaehwule & Co have lost their seats, they remain the Speaker and members of the Rivers State House of Assembly in fact and in the EYES OF THE LAW. They CANNOT be forced out of the position by FORCE OF ARMS; that would be tantamount to SELF-HELF which THE LAW FORBIDS, and will give rise to anarchy.

Everyone is entitled to express his frustration or happiness, even hate or love for the impasse; those are feelings. In the realm of the law, they remain “Wishes, Emotions, Sentiments” that have no place in law.

Furthermore, Amaehwule & Co also approached the FHC in Suit No: FHC/ABJ/CS/1613/2023: AMAEHWULE & ORS VS NASS, GOVERNOR OF RS, and others, including Rt. Hon. Edison Ehie, challenging the interference with their right as speaker and members of the RSHA; to restrain the NASS from interfering with their functions as Assembly, etc. Hon. Justice James Omotosho granted all the reliefs sought by Amaehwule & co; including making a finding that Amaehwule is the AUTHENTIC SPEAKER of the RSHA. That Court set aside the budget passed by 4members and directed the Governor to re-present the budget to the Martins Amaehwule-led RSHA. That judgement by Omotosho, J has not been set aside by the Court of Appeal.

Hon. Oko-Jumbo & Ors took out a writ of summons from the Rivers State High Court against Amaehwule challenging the Speakership of Amaehwule, and in the process obtained an order restraining Amaehwule from parading himself as Speaker of the RSHA, pending the determination of the suit.

On the 4th of July 2024, the Court of Appeal in a unanimous decision, pronounced that the High Court had no jurisdiction to make such restraining orders, and accordingly set aside the Orders made by the Rivers State High Court which restrained Amaehwule from functioning as Speaker, whilst enabling 3 members to illegally assume the status of RSHA. The Court of Appeal struck out Oko Jumbo’s suit in the RS High Court. The Court of Appeal held/found that the speakership of Amaehwule was not in dispute and accordingly set aside every act purportedly carried out [in violation of Sections 1(2) & (3), 96(4) of the CFRN] by 3 members of the House. By implication, the FINDING of the Court of Appeal that Amaehwule’s SPEAKERSHIP WAS NOT IN DISPUTE further endorsed the decision of the FHC, Coram: Omotosho, J. This finding of the Court of Appeal must be set aside by Oko Jumbo & co at the Supreme Court.

The implication of the combination of the PROVISO to section 109(1)(g) of the CFRN, the subsisting interlocutory orders made by the FHC (Coram OKOROWO J) restraining any interference with Amaehwule’s speakership, the subsisting judgement of the FHC (Coram OMOTOSHO, J) adjudging Amaehwule the “authentic speaker” and the judgement/FINDING of the Court of Appeal that Amaehwule’s “speakership is not in dispute”, is that RT. HON. MARTINS AMAEHWULE REMAINS the Speaker of RSHA, as he never at any time ceased to be the Speaker.

The claim or argument that the Court of Appeal did not reinstate Amaehwule as speaker or member of the RSHA is insipid, inefficacious, vacuous, patronizing, etc.

Whereas Rt. Hon. Martins Amaehwule RELIES and STANDS on the protection offered by and arising from the DISPUTE CONTEMPLATED by the PROVISO to S.109(1)(g) of the CFRN, the interlocutory Order of FHC, a judgement of the FHC, as well as the findings of the Court of Appeal enabling him in that regard (to function as the Speaker of the RSHA); On the contrary, Oko Jumbo does not have the protection of any provision of the CFRN or any pronouncement of any court of competent jurisdiction enabling his claim to the Speakership of RSHA. Indeed, his claim and actions violate sections 1(2) & (3) and 96(4) of the CFRN, hence the Court of Appeal set aside all illegal and unconstitutional steps and actions taken by the three members.

In the EYES OF THE LAW, not in “the eyes of emotions and sentiments”, RT. Hon. Martins Chike Amaehwule has REMAINED the SPEAKER of the RSHA.

NOTE: WHEN NEXT anyone tells you of the provisions of Section 109(1)(g) of the CFRN, ask him for his understanding and the implication of the PROVISIO to that section.

Achi William-wobodo is a Lawyer & Public Policy Analyst and writes from Abuja and Standing with the Law As Is, Not As Ought to Be

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