30th July 2025, NewsOrient, Law and Society, Governance And Development, Opinion, Column, News
B Rotimi OGUNLEYE

Various personalities operating within the confines of Nigeria’s legislative houses, have of recent sadly given prominence to their rules and standing orders to the detriment of the existing laws particularly the grundnorm, the Constitution of the Federal Republic of Nigeria, 1999. The term Legislative House as used here should be understood within the meaning of section 25 of the Legislative Houses (Powers and Privileges) Act, 2017 as referring to both the National and States Houses of Assembly.

The provisions are clear on the supremacy of the Constitution and its binding force in section 1(1) and particularly section 1(3) which provides that if any law is inconsistent with the provisions of the Constitution, the Constitution shall prevail and that other law shall to the extent of the inconsistency be void. But the legislators behave as if they are immune from these constitutional provisions. It is obvious that they have misconstrued the import of the marginal note “immunity from litigation” in section 1 of the Legislative Houses (Power and Privileges) Act 2017. The section provides that: “A criminal or civil proceeding shall not be instituted against a member of the Legislative House in respect of words spoken or written at the plenary session or at committee proceedings of the Legislative House.”
Remarkably, the wording of the section does not contain “immunity” and certainly the section does not vest immunity from litigation on the “act” done individually or collectively by the members of the Legislative House but only on “words” whether in spoken or written form. Where an act of omission or commission is done during plenary or a committee’s proceedings in defiance of the Constitution, the court is properly vested with the jurisdiction to intervene.

The Supreme Court held in Attorney General of the Federation v. Abubakar (2007) 10 N.W.L.R. Part 1041 page 1 at page 93 paragraphs D to F ratio 32 that marginal notes do not generally afford legitimate aid in the construction of a statute and that it is permissible to consider the general purpose of a section and the mischief at which it is aimed with the marginal notes in mind. The mischief envisaged in section 1 of the Legislature Houses (Powers and Privileges) Act, 2017 is to avoid unnecessary litigations and distractions arising from the words spoken or written during plenary or committee proceedings incidental to the constitutional duties and obligations of members of the Legislative House in fulfilment of the mandates given to them by the electorates. But the members’ actions individually and collectively are not covered by the section.

As it is, “immunity” is being misapplied as “impunity”. The Black’s Law Dictionary Eighth Edition defines “immunity” on page 765 as “any exception from a duty, liability or service of a process especially such an exemption granted a public official”. It adds that “an immunity is a defence to tort liability which is conferred upon an entire group or class of persons or entities under circumstances where considerations of public policy are thought to require special protection for the person, activity or entity in question at the expense of those injured by its tortious act.” It defines “impunity” on page 774 as “an exemption or protection from punishment.” It is within this seemingly blurred line that some legislators currently operate in their predilection to elevate their rules or standing orders over the Constitution.

The question is: what does standing order or rule mean or what does it entail in relation to a Legislative House? The Constitution does not define the expression neither does the Legislative Houses (Powers & Privilege) Act, 2017.

The relevant provision on it in the latter is in section 20 of the Act which provides that “the powers of the President, Speaker or Chairman of a committee of a Legislative House shall be supplementary to any powers conferred on him by the Constitution or Standing Orders”. But Black’s Law Dictionary Eighth Edition which first defines “rule” on page 1357 as a “procedural rule for the orderly conduct of business in a deliberative assembly” goes further on the same page to define “standing rule” as a “rule that relates to an organisation’s administration or operation rather that to its procedure in meetings”. It adds that “many conventions and other deliberative assemblies collect both their administrative and procedural rules into a set titled “standing rules”. In the context of this write-up, standing rules, or orders could be construed as the principles and practices of parliamentary procedure for the conduct of business in the Legislative House. In section 60, the Constitution provides that: “subject to the provisions of this Constitution, the Senate or the House of Representatives shall have power to regulate its own procedure, including the procedure for summoning and recess of the House”.

The same constitutional provision is in section 101 in relation to a House of Assembly.

By the express and unambiguous provisions of the Constitution, the rule, order or procedure adopted or used in the Legislative House is subject to the provisions of the Constitution which is the grundnorm and therefore by virtue of its section 1(3) if such rule or order is inconsistent with the provisions of the Constitution, the Constitution shall prevail and the rule, order or procedure shall to the extent of the inconsistency be void. That is why a law duly passed by the Legislature and assented to by the Executive can be unconstitutional and therefore void under section 1(3).

This leads to a pertinent question: How does the Senate suspend a Senator for 180 days when section 63 of the Constitution provides that the Senate and the House of Representatives shall each sit for a period not less than one hundred and eighty-one (181) days in a year? The Honourable Justice Binta Nyako sitting at the Federal High Court of Nigeria in the Abuja Judicial Division Holden at Abuja held on pages 30 and 31 of her judgement in Senator Natatsha Akpoti-Uduaghan v. The Clerk of the National Assembly of the Federal Republic of Nigeria & ors. Suit No. FHC/ABJ/CS/384/2025 dated Friday, the 4th day of July 2025 thus:

A Senator is expected to represent his people in either Legislative house for a specific number of days per session. If any suspension is unwarranted, then I opine that the Act and the Senate Rules should also be specific and not live (sic) it at large. A suspension cannot exceed the requisite number of days the member should sit. The constitution says a legislative year is 181 days and the house should sit for this number of days. This makes it at least 36.2 weeks in a year which is a session. To suspend a member for 6 months means suspension for 180 days and this is half the number of days the member is expected to sit in the House representing his people.

I do not think this is the intention of the framer of the law. To make a law that has no end is excessive and cannot be the intendment of the law. I am of the opinion that the senate has the power to review this provision of the Senate Rules and even amend Section 14(2) of the Legislative Houses (Powers & Privileges) Act both for being over reaching. The senate has the power to and I believe should recall the plaintiff and allow her to same-time, represent the people who sent her there to represent them (emphasis mine).
The position of His Lordship is a finding of fact. The Black’s Law Dictionary Eighth Edition on page 664 defines finding of fact as “A determination by a judge, jury, or administrative agency of a fact supported by the evidence in the record, usually presented at the trial or hearing”. Also the 2025 Nigerian Case Law Dictionary (NCLD) page 473 interprets finding of fact “as a determination of a fact by the court, averred by one party and denied by the other, and founded on evidence”. On page 474, NCLD concurs with the aforementioned definition in the Black’s Law Dictionary. In consonance with the definitions in the law dictionaries herein, it is submitted that the finding of the Honourable Justice Binta Nyako is covered by the definition of “decision” in section 318 of the Constitution to wit: “decision” means in relation to a court, any determination of that court and includes judgement, decree, order, conviction, sentence or recommendation. It is wrong for anybody to distort the clear findings of the court. It is further submitted that the suspension infringes on the constitutional fundamental rights enshrined in sections 36, 39, 42 and 45 of every person in the Kogi Central Senatorial District.

In the same vein, the legitimate exercise on the 13th day of January 2025 of power of removal of Speaker Mudashiru Obasa under section 92(2)(c) of the Constitution by not less than two-thirds majority of the members of the Lagos State House of Assembly cannot be vitiated by any standing order or rule. It is imperative for the courts to be decisive in their decisions against legislative recklessness of elevating the rules or standing order against the supreme law of the land. All lovers of democracy and the sacred doctrine of separation of powers should halt this negative trend. The Supreme Court held in Attorney General of Abia State v. Attorney General of the Federation (2022) Part 1856 page 205 at page 437 paragraph A to page 437 paragraph A ratio 48 that “what the doctrine seeks to achieve is the prevention of tyranny by not conferring too much power on anyone person or body, and the check of one power by another. In essence, the concept of separation of powers is incomplete without the concept of checks and balances”.

Rotimi Ogunleye is a Lagos based legal practitioner, notary public and arbitrator.

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