RT. HON. P. EBEBI V. SPEAKER BAYELSA STATE HOUSE OF ASSEMBLY & ORS.
(2011)LCN/4295(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 16th day of February, 2011
CA/PH/297/2010
RATIO
FORMULATION OF ISSUES FOR DETERMINATION: POSITIONS OF THE LAW ON FORMULATION OF ISSUES FOR DETERMINATION
…learned Appellant’s counsel is right that the law recognizes the fact that more often than not it takes a combination of grounds to raise an issue provided the effect of the combination of the grounds is to facilitate a favourable decision in a resulting verdict. See Ibori v. Agbi (2004) 6 NWLR (Pt.868), 78 SC. Lastly, the courts, it is true, frowns at proliferation of issues by parties to an appeal. Only such numbers of issues as are necessary for the determination of the real questions in controversy are allowed for obvious reasons. See, Mukadam v. Akanbi (supra).” PER M. DATTIJO MUHAMMAD, (OFR),J.C.A
ISSUE OF JURISDICTION: ESSENCE OF THE ISSUE OF JURISDICTION; WHETHER IT IS DETERMINED ON THE PLAINTIFFS PLEADING IN HIS STATEMENT OF CLAIM AND NOT ON THE DEFENDANT’S ANSWER IN THE STATEMENT OF DEFENCE AND WHETHER JURISDICTION ALREADY ASSUMED CAN BE DIVESTED ON THE STRENGTH OF A VALID DEFENCE TO THE ACTION
…in the Supreme Courts’ decision in AG Kwara State v. Olawale (1993) 1 NWLR (Pt.272) 645. At pages 633 – 644, the apex court per Nnaemeka-Agu of blessed memory stated the principles thus:- “One fact that cannot be denied in practice is that it is recognized that because of the paramountcy of an issue of jurisdiction it is sometime necessary for the court to hear some evidence first for a correct determination of it, even though it might have disposed of the issue in limine. In my view, when the issue of jurisdiction is determined on the pleadings, the law is that it is determined on the plaintiffs pleading in his statement of claim and not on the defendant’s answer in the statement of defence. For this, Izenikwe v. Nnadozie (1952) 14 WACA 361 at p. 363; Adeyemi & 4 Ors. v. Opeyori (1976) 9 – 10 S.C. 31. In other words, when the plaintiffs pleading in the statement of claim is unambiguous and clearly pleads facts from which the issue of jurisdiction could be settled one way or the other, it is the proper material to determine that issue. But when the court, in exercise of its undoubted power to inquire whether in fact its jurisdiction has been ousted (for which see Barclays Bank of Nigeria Limited v. Central Bank of Nigeria (1976) 1 All NLR 409, at p.421), sees the need to hear evidence in order to inquire whether in fact its jurisdiction has been ousted, or when the issue of jurisdiction has been taken after evidence has been called, the court cannot in either case completely close its eyes to the evidence called, It is, however, recognized that quite often the defence succeeds on issue or in a case by bringing up such a case that beclouds the real issue. This can also happen with respect to an issue of jurisdiction. When such is the case, I am of the view that the correct approach should be that much as the court can no longer close its eyes to the case brought up by the defence, the plaintiff’s case as on the statement of claim is still a most important factor” (underlining supplied for emphasis). Karibi-Whyte JSC also succinctly puts the principle at page 675 of the report in his concurring contribution thus:- “It is however well settled that wherever the endorsement on the writ of summons, and the statement of claim are clear and unambiguous as to facts from which the issue of jurisdiction could be settled one way or the other, it is the proper material for determination of the issue. When this is done the issue is settled on the plaintiff’s pleading in his statement of claim and not on the defendant’s answer in his statement of defence – see Adeyemi & Ors. v. Opeyori (1976) 9 – 10 SC 31. Hence, when the issue of jurisdiction has been clearly established on the writ of summons and starement of claim, it is not necessary to consider the statement of defence. Jurisdiction already assumed cannot be divested on the strength of a valid defence to the action. PER M. DATTIJO MUHAMMAD, (OFR),J.C.A
JURISDICTION: CONSEQUENCE OF THE COURT EMBARKING UPON ANY PROCEEDING IN THE ABSENCE OF THE NECESSARY JURISDICTION TO ENTERTAIN IT
The court and all stake holders must not waste their valuable time since any proceedings embarked upon by a court that lacked the necessary jurisdiction no matter how well conducted the proceedings were, must eventually come to naught. Absence of jurisdiction has repeatedly been held to be irreparable in law. See Umanah v. Attah (2006) 17 NWLR (Pt.1009) 503, Madukolu v. Nkemdilim (1962) 1 All NLR 587; Sken-Consult v. Ukey (1981) 1 SC 6 and Lufthansa Airline v. Odiese (2006) 7 NWLR (Pt.978). PER M. DATTIJO MUHAMMAD, (OFR),J.C.A
INTERPRETATION OF STATUTE: INTERPRETATION OF SECTION 188 OF THE 1999 CONSTITUTION AS TO WHETHER A COURT CAN ENTERTAIN OR QUESTION ANY PROCEEDING OR DETERMINATION OF THE PANEL OR OF THE HOUSE OF ASSEMBLY OR ANY MATTER RELATING TO SUCH PROCEEDINGS OR DETERMINATION
Section 188 of the 1999 Constitution which provides for the removal of the Appellant from the office of the Deputy Governor of Bayelsa State for gross misconduct in the performance of that office provides in subsection 10 thereof as follows:- “188(10) No proceedings or determination of the panel or of the House of Assembly or any matter relating to such proceedings or determination shall be entertained or questioned in any court.” Learned senior Appellant counsel is right to have called the foregoing provision an ouster clause as it clearly seeks to take away appellant’s right of access to court. The principle here is that courts guard their jurisdictions jealously by strictly and cautiously scrutinizing the language of the ouster provision resolving any ambiguity in favour of the Plaintiff whose access to the court is being ousted or curtailed. See Inakoju v. Adeleke (2007) 4 NWLR (Pt.1025) 423, Ajayi v. Military Adm. Ondo State (1997) 5 NWLR (Pt.504) 237, Amadi v. NNPC (2000) 6 S.C. (Pt.1) 66 at 95 and A.G Bendel State v. Agbofodoh (1999) 2 NWLR (592) 47. PER M. DATTIJO MUHAMMAD, (OFR),J.C.A
JUSTICES
MUSA DATTIJO MUHAMMAD Justice of The Court of Appeal of Nigeria
ISTIFANUS THOMAS Justice of The Court of Appeal of Nigeria
EJEMBI EKO Justice of The Court of Appeal of Nigeria
Between
RT. HON. P. EBEBI Appellant(s)
AND
SPEAKER BAYELSA STATE HOUSE OF ASSEMBLY & 27 ORS. Respondent(s)
M. DATTIJO MUHAMMAD, (OFR),J.C.A (Delivering the Leading Judgment): This is an appeal against the ruling of the Bayelsa State High Court, coram Adokeme J, delivered on the 29th day of June 2010 in Suit No. YHC/201/2010 commenced by the Appellant herein as the plaintiff against the Respondents as the defendants thereat. The court declined jurisdiction over the suit. The facts of the case that brought about the Appeal are hereunder supplied.
The 1st Respondents, the Speaker of the Bayelsa State House of Assembly, on the 1st June 2010 received a Notice of Impeachment purportedly signed and issued by the 6th – 22nd Respondents. The Notice contained allegations of gross misconduct against the Appellant then the Deputy Governor of Bayelsa State. The 2nd Respondent, the Bayelsa State House of Assembly is said to have, on the very 1st June, 2010, resolved to have the Appellant served with the said Notice of Impeachment. It is the Appellant’s case that he is yet to be so served. The unsigned Notice has, on the authority of the 1st and 3rd Respondents, been published on the 5th and 9th June 2010 edition of the This Day Newspaper. The Appellant asserts that he became aware of the Notice of impeachment from these publications.
It is Appellant’s further case that as at 8th day of June 2010 when the 2nd Respondent resolved and directed the 5th Respondent, the Bayelsa State Chief judge, to constitute a panel to investigate the allegations of gross-misconduct contained in the purported Notice of Impeachment, neither himself nor all the members of the 2nd Respondent were served, as required by law, with the said Notice. Indeed, as at 10th June 2010 when he took out the writ against the Respondents, the Appellant was neither served with nor was his response to the said Notice howsoever procured by the 2nd Respondent. These irregularities, the Appellant avers, inform his action, wherein by paragraphs 13 and 14 of his statement of claim he seeks the declaratory and injunctive reliefs to invalidate the purported Notice of Impeachment, the 2nd Respondent’s proceedings of 8th June, 2010 including the resolution directing the 5th Respondent to investigate him.
The Appellant, by his motions exparte and on Notice, further sought interim and interlocutory injunctions to restrain the 5th Respondent from constituting the panel that is to investigate him and if so constituted to restrain the 1st – 3rd and 6th – 22nd Respondents from receiving any such Report and or acting on same.
On being served with Appellant’s writ, statement of Claim and the two applications, the Respondents filed their respective statements of defence denying the averments in Appellant’s statement of claim and contesting the other processes. In his statement of defence, the 5th Respondent inter alia alleged that the seven persons he was directed by the 2nd Respondent to empanel had been constituted on the 9th June, 2010. The 1st – 3rd and 6th – 22nd and 4th Respondents in addition to their statements of defence, filed separate Notices of motion praying the court to strike out Appellant’s suit.
The two motions for the striking out of the Appellant’s suit were jointly heard and the lower court in a considered ruling dated 29th June 2010 struck out suit No. YHC/201/2010 for want of jurisdiction.
Being dissatisfied, the plaintiff at the lower court has appealed against the court’s ruling by his notice dated and filed on 20th July 2010 as amended.
Parties have filed and exchanged briefs of arguments as required by the rules of this court. Two issues have been identified in the brief settled by learned senior counsel to the Appellant Alex A. Izinyon. The issues read:-
“(i) whether the lower court was right when it held that it had no jurisdiction to entertain suit No. YHC/201/2010 and consequently struck out same?
(ii) Whether the lower court in its ruling infringed upon the Appellant’s fundamental human right to fair hearing?
The two similar issue formulated in the 1st – 3rd and 6th – 22nd Respondent’s brief for the determination of the appeal read thus;-
1. Whether in view of the undisputed facts available to the trial court it was right to decline jurisdiction in this matter.
2. Whether the Appellant was accorded fair hearing by the trial court.
Chief Wole Olanipekun, SAN for the 4th Respondent also distilled two issues in their brief for the determination of the Appeal. The issues read:-
“(i) Considering the clear and unambiguous provisions of section 188 of the 1999 constitution and judicial authorities on impeachment, whether the lower court was not right in declining jurisdiction to entertain the Appellant’s suit.
(ii) Given the facts and circumstances of this case, as well as the case presented by the Appellants before the lower court; whether the lower court by its ruling of 29th June breached the Appellants right to fair hearing.”
Mr. Okorotie of counsel settled the 5th Respondent’s brief which contains a composite issue for the determination of the appeal thus:-
“(i) Whether the lower court has jurisdiction to entertain suit No. YHC/201/2010 and the decline of jurisdiction by the lower court thereof infringes on the rights to fair hearing of the Appellant?”
It is glaring that the issues formulated by all the parties to the appeal are not dissimilar. Because the appeal is the Appellant’s complaint against the decision of the lower court and the issues he formulated along with the arguments advanced thereon represent the reasons why the complaint should be acceded to, the two issues formulated in the Appellant’s brief of argument shall form the basis of the determination of the appeal.
In arguing the appeal under the first issue, learned senior counsel for the Appellant contends that any challenge to the courts’ jurisdiction is determined by reference to the plaintiffs’ claim as endorsed on the writ of summons and contained in his statement of claim. He relies on Nkuma v. Odili (2006) 6 NWLR (Pt. 977) 587 at 608 and Abdul Raheem v. Olorontobe – Oju (2006) 15 NWLR (Pt.1003) 581 at 620. Appellant’s case, learned senior counsel submits, is informed by the incompetence of the process, the Notice of impeachment; the Respondents employed to kick-start the removal of the Appellant. The respondents constituted the panel that is supposed to investigate the Appellant on the basis of a purported notice of impeachment rather than the Notice of allegation section 188 of the 1999 Constitution provides for. The Notice of Impeachment, learned senior counsel contends, is neither signed by the requisite number of the members of the 2nd Respondent nor served on the Appellant and all the members of the 2nd Respondent. By section 188(2) of the 1999 Constitution, it is mandatory for notices of allegations of gross misconduct on the basis of which Appellant’s removal could be effected, to be signed by at least one third of the members of the 2nd Respondent, and thereafter be served on all the members as well as the Appellant whose removal from office is intended. In paragraph 5 and 6 of Appellant’s statement of claim, argues the senior counsel, the Appellant has asserted that these mandatory requirements of S. 188(2) of the 1999 Constitution for his removal from office have not been complied with. A case that hinges on such noncompliance, notwithstanding, the ouster clause contained in S. 188(10) of the constitution, falls within the jurisdiction of the court. Learned counsel cites and relies on the Supreme Court’s decisions in Inakoju v. Adeleke (2007) 4 NWLR (Pt. 1025) 427 at 688, Dapianlong v. Dariye (2007) 8 NWLR (Part 1036) 332, Adeleke v. Oyo State House of Assembly (2006) 16 NWLR (Pt. 1006) 608 at 698 and Jimoh v. Olawoye (2003) 10 NWLR (Pt. 828) 307.
Learned senior counsel further submits that the ruling of the lower court at pages 326 and 328 of the record declining jurisdiction over appellant’s suit is wrong for added reasons. The action is commenced by writ of summons, a procedure that envisages the proof of facts at the hearing of the substantive case by calling of witnesses and tendering relevant documents. It is erroneous for the court at that interlocutory stage to determine the very issue of non-compliance with section 188 of the constitution the Appellant would otherwise have proved in the substantive case. Learned senior counsel buttresses his contention with the following: Woherenn v. Emereuwa (2004) 13 NWLR (Pt.890) 398 at 419; University Press Ltd. v. I.K. Martins (Nig) Ltd. (2000) 4 NWLR (Pt.654) 584 and Group Danomi v. Voltic (Nig.) Ltd. (2008) and Onuora v. Onuora (2000) 1 NWLR (Pt. 641) 386 at 394. Further relying on Amaechi v. INEC (No.1) 18 NWLR (Pt.1065) 42 at 42, Akinfokrin v. Akinnola (1994) 3 NWLR (Pt.335) 659 at 674. Restating the principle that it is always the claim of the plaintiff that determines a court’s jurisdiction, learned senior counsel insists that the lower court is wrong to have relied on the affidavits in support of the 1st – 3rd and 6th – 22nd as well as 4th Respondents’ motions for the striking out of the suit to decline jurisdiction. In law, learned senior counsel maintains, it is irrelevant that the Appellant has not effectively denied the content of the affidavits in support of the objections raised since the objections to the courts’ jurisdiction are necessarily determined only on the basis of the Appellants’ claim.
Concluding his arguments under the issue, learned senior counsel for the Appellant submits that the lower court’s findings at page 326 of the record of Appeal that the counter-affidavits in opposition to the challenge raised against the court’s jurisdiction, being in breach of sections 86 and 87 of the Evidence Act, are unavailing to the Appellant is perverse. The deponent of the counter-affidavits has clearly stated in the two that he is counsel to the Appellant and that he acquired knowledge of the facts he deposed to by virtue of his, being so engaged. The Respondents, having not denied the averments, are deemed to have admitted same thereby making disclosure of the source of the facts unnecessary. The counter-affidavits constitute, for that reason, effective denial of the relevant paragraphs of the Respondent’s affidavits and should be so held. Learned senior counsel urges that the issue be resolved in Appellant’s favour.
There are three sets of Respondents in this appeal. The first of them, 1st – 3rd and 6th -22nd Respondents, has their brief settled by learned senior counsel Sebastine T., Hon. Chief Olanipekun leads a team of others for the 4th respondent. F.T. Okorotie Esq. settled the 5th Respondent’s brief.
In particular, learned senior counsel for the 1st set of Respondents challenges the competence of grounds 1, 2, 6 and. 7 in the Appellants Notice and the arguments under the 1st issue for the determination of the appeal. The issue, he argues, is distilled from Appellants’ 11th and 12th grounds of appeal. Yet Appellants’ arguments under the issue has covered grounds 1, 2, 6 and 7 in the Appellant’s Notice as amended which are incompetent covered by the issue, they are deemed to have been abandoned. Appellant’s arguments under the issue which include matters under the incompetent grounds as well as matters covered by grounds 11 and which are competent learned counsel urges on the strength of Oseni n. Bulutu (2009) 12 SC (Pt.11) 81 at 98, Ogbe v. Ajade (2009) 12 SC (Pt. 111) 37 at 53 – and Sekoni v. UTC Nigeria Ltd. (2006) All FWLR (Pt.310) 1620 at 1633, that the issue and all the arguments under it be struck out for incompetence.
In aggregate terms the response of the Respondents to Appellant’s arguments under the 1st issue includes their concession that as a general rule plaintiff’s writ of summons and statement of claim indisputably provides the basis for the determination of the question whether or not a court has jurisdiction over a given matter. In the instant case, where the objection to the court’s jurisdiction is, however, not within the exclusive domain of the law as it flirts with the facts of the case, the lower court is right not to have shut its eyes to the facts contained in the supporting affidavits in deciding that the court indeed lacked jurisdiction.
Counsel further submits that the decisions by Abdul Raheem v. Oloronfiba-Oju (supra) and Nkuma v. Odili (supra) relied upon by the learned senior counsel to the Appellant do not apply to the facts and circumstances of the instant case. The lower court’s resort to and complete reliance on the affidavits in support of the objections is traceable to decisions of superior courts on the correct approach courts should take in the peculiar position the court find themselves. These include Trade Bank Plc. v. Udegbunam (2004) All FWLR (Pt.200) 1576, A.G. Federation v. ANPP (2003) 8 NWLR (Pt.851) 182 at 207, Jesus Union Kingdom v. Ogisi (2010) All FWLR (Pt.527) 746m, U.T.B. v. Ozoemena (2007) All FWLR (Pt.358) 1014 at 1041, Nasir v. Civil Service Commission, Kano State (2010) 1- 2 SC 65 and Arjay Ltd. v. Airline Management Support Ltd. (2003) FWLR (Pt.156) 943. The lower court cannot, it is further contended, on the basis of the doctrine of stare-decisis be blamed for the position it has taken. Reliance has been placed on Usman v. Umaru (1992) 7 NWLR (Pt.254) 377 and Onyekwelu Bros Ltd. v. Okoye (2008) All FWLR (Pt.428) 320 at 331.
In further response, all counsel contend that the question whether or not the lower court has jurisdiction is interwoven with the question whether in their bid to remove the Appellant; the Respondents have complied with the requirements of S.188 of the 1999 Constitution. The court, counsel submits, acted rightly by addressing the two questions jointly. By order 22 of the rules of the trial court, demurrer having been abolished, objections can only be brought in the manner done by the respondents. Rules of court, it is argued, are there to be obeyed so respondents cannot be put at disadvantage for their compliance. The earlier the suit which in any event must be terminated is brought to an end the better for the court and the parties. Support for the submission has been ascribed to the decisions in Adeoke v. Oyo State House of Assembly (2007) All FWLR (Pt.345) 211 and Ntukidem v. Voko (1986) NWLR (Pt.45) 907.
Chief Olanipekun SAN for the 4th Respondent though particularly conceding that Appellant’s writ of summons and statement of claim, as held in Adeyemi v. Opeyeri (1976) 9 – 10 SC 31, should inform the lower court’s decision on the objections raised by 1st and 2nd sets of respondents; he contends that the same section 188 of the constitution that provides for the removal of the Appellant from office has in subsection 10 disentitled the lower court from enquiring into whether or not the Respondents have exercised their powers strictly in compliance with the enabling law. Learned senior counsel supports his submission with the case of Balarabe Musa v. Auta Hamza (1982) NCL,R 229 at 246, None of the cases learned senior Appellants’ counsel relied upon, contends Chief Olanipekun, holds that the lower court’s jurisdiction that is ousted by the clear words of the constitution does prevail. Further citing the decisions in INEC v. Ray (2004) 4 NWLR. (Pt.892) 92 at 128, Okafor v. Nnaife (1987) 14 NWLR (Pt.64) 129 at 137, Ajayi v. Military Administrator Ondo State (1997) 5 NWLR (Pt.504) 237 and Babatunde v. P.A.S & T.A. Ltd, (2007) 13 NWLR (Pt.1050) 113 at 157, learned senior counsel insists that the lower court has rightly declined jurisdiction in the face of the clear and unambiguous words of the constitution that ousted its jurisdiction.
All the Respondents further argue that Appellant’s insistence that his removal be voided by the lower court merely because the Notice issued in that regard is referred to as one of impeachment rather than Notice of allegations as termed by the constitution is a plea to the court to be technical at an age of substantial justice. On the authority of The State v. Gwonto (1983) 1 SC NLR 142 at 160 and Bello v. A.G Oyo State (1986) 5 NWLR (Pt.45) 828 at 886, they submit, the lower court is right to have ignored Appellant’s unreasonable plea. It is further contended that Appellant not being a member of the 2nd Respondent cannot complain about non-service of the Notice on the members of the 2nd Respondent. Beyond that principle, the affidavit of service of the Notice on the members of the 2nd Respondent as well as the Appellant deposed to by the bailiff of the lower court finally settles the issue. The decisions in Ben Thomas Hotels Ltd. v. Sebi Furniture Ltd. (1989) 5 NWLR (Pt.123) 523 at 528 and Mobil Producing (Nig.) v. LESEPA (2002) 18 NWLR (Pt.798) 1 at 34, assert learned Respondent counsel, support their stance.
Finally, it is argued that with Appellant’s counter-affidavit as to why he sues having been found incompetent and struck out, the affidavits in support of the objections raised by the Respondents remain unchallenged.
The lower court, counsel for all the Respondents maintain, has no option than to act on the supporting affidavits. Counsel cites in support of this submission Ebokon v. Ekwenube & Sons Trading Co. (2001) 2 NWLR (Pt.696) 32 at 41 and Ikono LGA v. De Beacon Finance and Security Ltd. (2002) 4 NWLR 128 at 142 and urge that we resolve the issue against the Appellant.
On being served with the Respondent’s brief, learned senior counsel for the Appellant filed separate reply brief to each set of Respondents’ brief.
In reply to the fresh points raised in the 1st – 3rd and 6th – 22nd respondents amended brief, learned senior counsel to the Appellant submits that the contention by these set of Respondents that grounds 1, 2, 3, 6 and 7 in the Appellants Notice as well as the first issue are incompetent is misconceived. The respondents’ suggestion that each ground of appeal should have given rise to an issue would have rendered the Appellant liable to a charge of proliferating the issues for determination. The Appellant only complied with plethora of judicial authorities by distilling a single issue from grounds 1, 2, 3, 5 and 7 as well as 11 and 12 of the additional grounds and argued all the grounds under the single issue. Learned senior counsel supports his submission with Fayemi v. LGSC Oyo State (2005) 6 NWLR (Pt.921) 280 at 297 and SDPC (Nig) Ltd v. Emehuru (2007) 5 NWLR (Pt.1027) 347 at 358. All the grounds from which the 1st issue is distilled revolve around the lower court’s rejection of the Appellant’s counter-affidavits and its reliance on the affidavits of the Respondents in the issue of jurisdiction. Respondents, learned senior counsel to the Appellant further argue, have not been misled by the contrivance and have fully argued the 1st issues as distilled. 1st – 3rd and 6th – 22nd Respondents’ objection to the grounds of appeal and the issue is an invitation to the court to be technical in its approach at a moment the Respondents themselves submit technicality has ceased to be in fashion. Learned senior counsel asks that this court be bound by the decision in Edokpolo & Co. Ltd. v. Ohenhen (1994) 7 NWLR (Pt.358) 511 at 529 and Mukadim v. Akanbi (2009) 13 NWLR (Pt.685) 616 at 625 and ignore the objection.
In further reply, learned senior Appellants’ counsel argues that Respondent’s submission that the issue of non-service and the fact of the issuance of the Notice of impeachment rather than the Notice of allegations, the constitution require the Appellant should be removed by is, equally not a technical matter. The principle is, and same should be upheld by this court, submits learned Appellant counsel, where a law prescribes the procedure for doing an act the procedure so provided must be strictly followed. Senior counsel relies on CCB (Nig) Plc. v. AG Anambra State (1992) 8 NWLR (Pt. 261) 528 at 556.
Finally, learned senior counsel insists that the Appellant has locus to raise the issue of the 6th – 22nd Respondents’ failure to sign the Notice for his removal and the non-service of the Notice on the Respondents as it is the Appellant rather than the Respondents who suffers from these lapses.
Beyond these, learned senior Appellant counsel reargues his appeal, which he must not do in a reply brief. The aspect of the reply brief is accordingly discountenanced. See Okon v. Bob (2004) 1 NWLR (Pt.854) 378 and Onwudiwe v. FRN (2006) 10 NWLR (Pt.988) 382 SC. One notes though that learned senior counsel urges thereafter that we allow this appeal.
I agree with learned senior counsel to the Appellant that the objection raised in 1st – 3rd and 6th – 22nd Respondents brief as to the competence of Grounds, 1, 2, 6 and 7 in the Appellants Notice and the first issue distilled by the Appellant from Grounds 11 and 12 in addition to the said grounds 1, 2, 6 and 7 is misconceived. An examination of the said grounds of appeal readily shows that they are complaints on the lower court’s rejection of Appellant’s counter-affidavit in opposition to respondent’s motion challenging the lower court’s jurisdiction as well as the court’s reliance on Respondent’s affidavits to determine the latter’s objection. The grounds have satisfied the relevant principle having isolated and brought to the fore for questioning the basis of the reasoning in the aspect of the decision appealed against. See Saraki v. Kotoye (1992) 9 NWLR (Pt.264) 156 SC, and Bhojzow Plc v. Daruel – Kalio (2006) 5 NWLR (Pt.973) 330 SC. The grounds learned Respondents counsel attacks cannot also be discarded for their being unclear, equivocal, or imprecise.
Appellant’s first issue is undoubtedly distilled from the grounds in his notice, grounds 1, 2, 6 and 7 being attacked by the 1st set of Respondents inclusive and, the issue as distilled cannot be said to be too wide, unwieldy and unfit for our consideration. Again, learned Appellant’s counsel is right that the law recognizes the fact that more often than not it takes a combination of grounds to raise an issue provided the effect of the combination of the grounds is to facilitate a favourable decision in a resulting verdict. See Ibori v. Agbi (2004) 6 NWLR (Pt.868), 78 SC. Lastly, the courts, it is true, frowns at proliferation of issues by parties to an appeal. Only such numbers of issues as are necessary for the determination of the real questions in controversy are allowed for obvious reasons. See, Mukadam v. Akanbi (supra).
In the result, 1st – 3rd and 6th – 22nd Respondents’ objection to Appellant’s grounds 1, 2,6 and 7 as well as the first issue for determination is accordingly discountenanced.
Now then, how does a court which jurisdiction over a matter is challenged resolve the issue? Is there a magic wand for all situations or does the procedure the court adopt in its determination of the challenge to its jurisdiction depend on the peculiar circumstances under which the objection is raised? We must be guided by the judicial authorities on the matter a great deal of which has been alluded to by both sides to the appeal.
From the submissions of counsel from both sides to the appeal, there seems to be two classes of cases on the matter. One of them settles the law beyond any disputation as submitted by Chief Olanipekun SAN for the 4th respondent, that a court determines whether or not it has jurisdiction over a matter by considering the claim endorsed on the writ of summons and contained in the statement of claim. In Ajaka Ezenkwe v. Onyemuche Nnadozie (1953) 14 WACA 361. Coussey J. of the West African court of Appeal held thus:
“It is fundamental principle that jurisdiction is determined by the plaintiff’s demand and not by a defendant’s answer which as in this case, only disputes the existence of the claim but does not alter or affect its nature. In other words, ordinarily it is the claim and not the defence which is to be looked at to determine the jurisdiction.
Is there anything then in the present suit which should override this principle and compel the court to hold that the prohibition in section 12 of the Supreme Court Ordinance…. is a Bar to the exercise of the court’s jurisdiction?’
In Adeyemi & Ors v. Opeyeri (supra) the Supreme court in drawing from the foregoing and restating its earlier decision in Nimota Oluwo & another v. Adebowale (1959) 4 FSC 143 stated as follows:-
“It is well known that jurisdiction is determined by the nature of the plaintiff’s claim and, in the instant case, not one of the items on the claim raises ex facie any issue which can possibly be regarded as ousting the jurisdiction of the High Court of the former Western State within the frame work of section 9 of the said High court Law. To put it mildly, the difficulty in which the trial court found itself in this case was brought about by the court itself. . .At the risk of over-emphasizing the point we repeat that it is a fundamental principle of law that it is the claim of the plaintiff which determines the jurisdiction of a court entertaining the same. This is because only too often this point is lost sight of by courts of trial, as happened in the instant case.”
Learned Appellant’s counsel seem to stick to this class of cases and insists that there is nothing on Appellant’s claim that ex-facie ousts the jurisdiction of the trial court. See also Onuorah v. K.R.P.C. Ltd. (supra) and Nkuma v. Odili (supra).
On their part, learned counsel for all the respondents insist that the circumstances and nature of their objection to the lower court’s jurisdiction is not ordinary as to limit the resolution of their objection to the consideration of the Appellant’s claim alone. They contend that since the objection is supported by affidavits containing evidence in their support, the objection has been taken, for that reason, outside the domain of law and must be decided on the basis of the facts contained in the affidavits of both sides. See A.G of the Federation v. ANPP (supra) and U.T.B. v. Ozoemena (supra).
A community reading of both classes of judicial authorities on the issue raised in this appeal forces two inescapable conclusions. Firstly, the seeming dichotomy in the judicial authorities is after all apparent and unreal. Secondly, the exercise also necessitates a realization of the wisdom contained in the Supreme Courts’ decision in AG Kwara State v. Olawale (1993) 1 NWLR (Pt.272) 645. At pages 633 – 644, the apex court per Nnaemeka-Agu of blessed memory stated the principles thus:-
“One fact that cannot be denied in practice is that it is recognized that because of the paramountcy of an issue of jurisdiction it is sometime necessary for the court to hear some evidence first for a correct determination of it, even though it might have disposed of the issue in limine. In my view, when the issue of jurisdiction is determined on the pleadings, the law is that it is determined on the plaintiffs pleading in his statement of claim and not on the defendant’s answer in the statement of defence. For this, Izenikwe v. Nnadozie (1952) 14 WACA 361 at p. 363; Adeyemi & 4 Ors. v. Opeyori (1976) 9 – 10 S.C. 31. In other words, when the plaintiffs pleading in the statement of claim is unambiguous and clearly pleads facts from which the issue of jurisdiction could be settled one way or the other, it is the proper material to determine that issue. But when the court, in exercise of its undoubted power to inquire whether in fact its jurisdiction has been ousted (for which see Barclays Bank of Nigeria Limited v. Central Bank of Nigeria (1976) 1 All NLR 409, at p.421), sees the need to hear evidence in order to inquire whether in fact its jurisdiction has been ousted, or when the issue of jurisdiction has been taken after evidence has been called, the court cannot in either case completely close its eyes to the evidence called, It is, however, recognized that quite often the defence succeeds on issue or in a case by bringing up such a case that beclouds the real issue.
This can also happen with respect to an issue of jurisdiction. When such is the case, I am of the view that the correct approach should be that much as the court can no longer close its eyes to the case brought up by the defence, the plaintiff’s case as on the statement of claim is still a most important factor” (underlining supplied for emphasis).
Karibi-Whyte JSC also succinctly puts the principle at page 675 of the report in his concurring contribution thus:-
“It is however well settled that wherever the endorsement on the writ of summons, and the statement of claim are clear and unambiguous as to facts from which the issue of jurisdiction could be settled one way or the other, it is the proper material for determination of the issue. When this is done the issue is settled on the plaintiff’s pleading in his statement of claim and not on the defendant’s answer in his statement of defence – see Adeyemi & Ors. v. Opeyori (1976) 9 – 10 SC 31.
Hence, when the issue of jurisdiction has been clearly established on the writ of summons and starement of claim, it is not necessary to consider the statement of defence. Jurisdiction already assumed cannot be divested on the strength of a valid defence to the action.” (underlining supplied for emphasis).
In the case at hand, the reliefs claimed by the Appellant as endorsed on his writ and the crucial averments in his statement of claim are as contained in paragraphs 5 – 14 thereof hereunder reproduced for ease of reference:-
“5. The 1st – 3rd Defendants by virtue of publications in the ‘This day’ Newspaper of June 5th 2010 at page 61 thereof and ‘The Nation’ Newspaper of 5th June, 2010 at page 63 thereof, claimed to have received a purported Notice of Impeachment allegedly signed by seventeen members of the Bayelsa State House of Assembly and consequently directed the clerk of the Bayelsa State House of Assembly to serve the said purported Notice of Impeachment on the Claimant and all members of the Bayelsa State House of Assembly. The Claimant hereby pleads the said newspapers..
6. The Claimant was not served with the said purported Notice of impeachment within seven days from its purported presentation to the Speaker of the Bayelsa State House of Assembly and till date ie (9th June, 2010) the Claimant has not been served with the said purported Notice of Impeachment or any notice of allegations against him. Till date neither the said Notice of Impeachment nor any notice of allegations against the Claimant pursuant to Section 188 of the Constitution of the Federal Republic of Nigeria was served on all the members of the Bayelsa State House of Assembly.
7. The Claimant only saw the aforesaid newspaper publications of the purported notice of Impeachment, on the 9th day of June, 2010.
8. The Claimant further avers that the said purported Notice of Impeachment was not signed by the purported signatories thereto, who are the 6th – 22nd Defendants.
9. The Claimant shall contend that there is no provision in the Constitution of the Federal Republic of Nigeria, 1999 relating to the removal of the Claimant as the Deputy Governor of Bayelsa State that prescribes the commencement of the said process by means of Notice of Impeachment as was purportedly done by the Defendants in this matter.
10. The Claimant shall further contend that by reason of the foregoing, the alleged Notice of Impeachment is invalid, unconstitutional and null and void of no effect whatsoever.
11. The claimant also avers that notwithstanding the foregoing, the Bayelsa State House of Assembly on the 8th day of June, 2010 allegedly sat and passed a resolution that the purported allegations of gross misconduct against the Claimant in the purported unserved and unsigned Notice of Impeachment be investigated. The Bayelsa State House of Assembly has consequently directed the 5th Defendant to Constitute or appoint a panel of seven persons to investigate the said purported allegations of gross misconduct.
(ii.) Before passing of the aforesaid resolution, the Speaker of the Bayelsa State House of Assembly did not take any steps towards procuring a response or reply from the Claimant, to the allegations against the Claimant
12. The 5th Defendant is now making efforts towards constituting the said panel of seven persons to investigate the purported allegations of gross misconduct against the Claimant in the said purported Notice of Impeachment.
13. Unless restrained by this Honourable Court, the 5th Defendant will constitute the said panel which will lead to the unlawful removal of the Claimant from office as the Deputy Governor of Bayelsa State.
14. WHEREFOR the Claimant claims against the Defendants jointly and severally as follows:
“(i) A DECLARATION that without the presentation of a valid notice of allegation(s) against the claimant, signed by not less than 1/3 (one third) of the members of the Bayelsa State House of Assembly pursuant to Section 188 of the Constitution of the Federal Republic of Nigeria, 1999, to the Speaker of the Bayelsa State House of Assembly and service of same on the Claimant and all the members of the Bayelsa State House Assembly, the Defendants cannot lawfully and validly remove the Claimant from office as the Deputy Governor of Bayelsa State or commence any proceedings towards the removal of the Claimant from office as the Deputy Governor of Bayelsa State.
(ii.) A DECLARATION that the purported Notice of Impeachment dated the 1st day of June, 2010 purportedly presented to the 1st Defendant by the 6th – 22nd Defendants is unconstitutional, illegal, null and void and of no effect whatsoever.
(iii.) AN ORDER setting aside the aforesaid purported proceedings of the Bayelsa State House of Assembly held on the 8th day of June, 2010 including the resolution that the purported allegations of gross misconduct against the Claimant purportedly contained in the aforesaid Notice of Impeachment or any notice of allegations against the Claimant, be investigated and requesting the 5th Defendant to appoint or constitute a panel of seven persons to investigate the Claimant.”
1st – 3rd and 6 – 22nd Respondent’s application challenging the lower court’s jurisdiction is on the grounds that:-
“(a) On the face of the statement of claim, this Honourable Court is being invited directly to interfere in the internal affairs of the Legislature, which jurisdiction the court lacks.
(b) On the face of this suit, this Honourable court is directly or indirectly being requested to make Orders that will stop some arms of the Bayelsa State Government from performing their Constitutional duties, which jurisdiction it also does not have.
(c) Section 188(10) of the constitution of the Federal Republic of Nigeria, 1999, has ousted the jurisdiction of this Honourabre court from entertaining this suit.
(d) By virtue of section 308 of the Constitution of the Federal Republic of Nigeria, 1999, the Claimant lacks the legal capacity to sue while sitting as the Deputy Governor of Bayelsa State.
(c) This suit is premature, inchoate and does not disclose a reasonable cause of action.”
The application is supported by three affidavits deposed to by the 3rd Respondent, his deputy, and one Erepamo Otuogha, 2nd Respondent’s sergeant at – Arms. Annexed to the affidavits are Exhibit A, a copy of the purported Notice of impeachment allegedly signed and issued by 6th -22nd Respondents and Exhibit B, 1st Respondent’s letter forwarding Exhibit A to the Appellant. It is pertinent to state that the three, affidavits in support of the application are essentially averments to the effect that Exhibit A, the purported Notice of impeachment, contrary to the averments in paragraphs 6 – 7 of Appellants’ statement of claim are duly signed by the 6th – 22nd Respondents and served on the Appellant.
Paragraphs 4 – 12 of the 3rd Respondent’s affidavit in support of 1st- 3rd and 6th – 22nd Respondent’s application for the striking out of Appellant’s suit, being helpful to our understanding of the complaint raised in the instant appeal are hereunder reproduced:-
“4. That on 1/6/01, a Notice of Impeachment (No.1 of the claimant was served on the 1st Defendant, which was signed by 17 members of the 2nd Defendant certified copy of the NO 1 is hereto attached as Exhibit “A”.
5. That on same date, the 1st Defendant wrote to the Claimant officially conveying the No. 1 (Exhibit “A”) to him.
Certified copy of this letter is hereto attached as Exhibit “B”.
6. Upon getting Exhibit “A”, I directed the sergeant-at-Arms of the 2nd Defendant, Mr. Erepamo Otuogha, to effect service of same on each member of the 2nd Applicant.
7. That Mr. Otuogha informed me on 2/6/10 in my office at the State Assembly Complex, Yenagoa, around 11 am and I verily believe him, that he had served the No.1 on each member of the 2nd Applicant, by delivering same to their respective offices as is the usual and accepted practice among members of the 2nd Applicant, when it comes to serving on them internal documents of the 2nd Applicant.
8. That I know as a fact that such service has always been accepted as proper service by all members of the 2nd Applicant and that there has been no complaint before now that the countless documents served on the said members at different intervals were not reckoned as proper service.
9. That the question of a member signing or endorsing a counterpart copy of any such internal document served on him has never arisen at all.
10. That the No. 1 qualifies as one of such internal documents that are served as described above.
11. That I also mandated the Deputy clerk of the 2nd Applicant, Mr. Aaron Timiye, to go and serve the claimant with both Exhibits “A” and “B”.
12. That on 4/6/10 around 12.20pm, Mr. Aaron Timiye came to my office with an Affidavit he had deposed to on 3/6/10, showing that after attempts to serve the claimant in Yenagoa and in his official residence had failed, he proceeded to his private residence in Abuja and effected service of Exhibits “A” and “B” on him, but that he refused to endorse on the counterpart copies thereof. I believed these facts, especially as I physically saw the Affidavit in question.”
Paragraphs 3 – 6 of the affidavit of Aaron Timiye, Deputy clerk to the 2nd Respondent in further support of the same application, are for their relevance, hereunder also supplied:-
“3. That the 1st, 2nd , 3rd and 6th – 22nd Defendants vehemently deny the allegation, in paragraphs 6 – 7 of the statement of claim and hereby put the claimant to the strictest proof thereof. In response thereto, the 1st – 3rd and 6th – 22nd Defendants maintain as follows:-
(a) That on 1/06/2010, the 3rd Defendant (personified in Elder peter Koru George) directed me and the Sergeant at Arms of the House to serve the Notice of Impeachment on the Claimant.
(b) That on 2/06/2010, I went to the private residence of the Claimant at Babridge Road, Kpansia, Yenagoa, to serve him but was told that the claimant had traveled to Abuja where he was to stay till 13/06/2010.
(c) That because of the constitutional limitations in terms of time within which to take steps in proceedings for the removal from office of the Claimant, I proceeded to Abuja to trace and serve him but was told by the Bayelsa State Liaison Officer, Barr. (Mrs.) Abise Theophilus, that the Claimant was living in his private residence in Abuja.
(d)That on 3/06/2010 around 7:30am I proceeded to the Private residence of the claimant located behind Oando Filling Station and RCC Nigeria Limited, Katampe Hill Extension, Opposite Gwarimpa, Abuja and served the claimant with the said Notice; but the claimant refused to acknowledge receipt of same.
(e) That this service was effected in the presence of one Barrister Gabriel Ogbogi, a solicitor to the Bayelsa State House of Assembly. Three armed police officers were also present.
4. That I returned to Yenagoa on the same day and deposed to an Affidavit of service. Certified copy thereof is hereto attached as Exhibit SBS “C”.
5. That I know as a matter of legislative practice in the 2nd Defendant that internal documents are served by leaving them in the respective offices of members of the 2nd Defendant.
6. That before now, no member of the 2nd Defendant had complained that he was not served or properly served by this mode of service.”
The 3rd Affidavit in support of the 1st – 3rd and 6th – 22nd Respondent’s motion is at pages 238 – 239 of the record of Appeal and merely restates the averments contained in the two affidavits as reproduced above.
The ten paragraph counter-affidavit in opposition to the 1st – 3rd and 6th – 22nd Respondents’ motion for the striking out of Appellant’s suit is deposed to by one prince D.O. Ejinyere. Paragraphs 1, and 6 – 9 of the counter affidavit are hereunder also reproduced for ease of reference.
“1. That I am one of the Legal practitioners representing the claimant/Applicant herein and by virtue thereof, I am conversant with the facts of this matter.
6. That in further answer to the depositions in the aforesaid Affidavit I state as contained hereinunder.
7. That neither one Mr. Aaron Timiye nor any other person from the Bayelsa State House of Assembly went to serve any Notice of Impeachment on the Claimant as alleged in the said affidavits.
8. That I know as a fact that the said Notice of Impeachment was not served on Honourable Aaron Alokpa and Honourable Angus Dide who are both members of the Bayelsa State House of Assembly.
9. That Kemasuode Wodu, Esq. of counsel informed me on the 17th day of June, 2010 at Okaka, Yenagoa in the course of briefing me in respect of this matter and I verily believe that this Honourable Court has the jurisdiction to entertain this suit as the claimant is complaining about non-compliance with the provisions of Section 188 of the constitution of the Federal Republic of Nigeria, 1999.”
The same Prince D.O. Ejinyere also deposed to an eight paragraph similar counter-affidavit, in opposition to 4th Respondent’s motion for the striking out of Appellant’s suit. See page 291 of the record of Appeal.
Having heard arguments on the applications, the lower court in upholding respondent’s objection to its jurisdiction held as follows:-
“The claimants’ counsel did not join issues with the Applicants’ counsel on this objection as it was rather glaring that the paragraphs of the counter-affidavit were not in compliance with sections 86 and 87 of the Evidence Act, without these paragraphs the counter affidavit would have nothing upon which to oppose the applications of the Defendants/Applicants if their supporting affidavit survive the Respondents objections. The supporting affidavits of the 1st – 3rd, 6th – 22nd Defendants/Applicants filed on the 11th June 2010 were sworn to by Elder Peter Koru George, the clerk of the Baylesa State House of Assembly Mr. Aaron Timiye, the Deputy Clerk of the Bayelsa State House of Assembly and Mr. Erepamo Otuogha the sergeant at Arms of the Assembly:- The supporting affidavits of the Defendant’s applications. Therefore, here no counter-affidavit in oppositions thereto, it is trite law that they will be deemed as admitted and uncontroverted and I so hold. The facts in support of the applications having become unchallenged leaves this court with no option than to grant these applications to decline the jurisdiction to entertain this case as provided by section 188(10) of the 1999 Constitution of the Federal Republic of Niger. And I so hold that the jurisdiction of this court has been ousted by the said section 188(10).”
It is clear from the court’s foregoing ruling that the objections raised by the Respondents to the court’s jurisdiction were determined on the basis of the affidavits in support of the objections rather than Appellant’s claim as indorsed in the writ of summons and averred to in the statement of claim.
Appellants’ contention is that the court is wrong to have so determined the issue. Given the authorities on the issue, Appellant is indeed on a firm terrain. Learned senior Appellant counsel’s submission that the lower court’s decision is not on the basis of correct principles is unassailable’ The resort by the Respondents to the procedure of raising their objection by an application supported by affidavit though lawful has only succeeded in beclouding the real issue the court by the objections was asked to address. It is incorrect for Respondents to insist that the rules of court having so provided, theirs is a total compliance. What Order 22 of the trial court’s rules provide is that Respondents must, the demurrer procedure having been abolished, join issues with the Appellant by filing their statement of defence which should contain averments on the objection they have against the court’s jurisdiction and thereafter formally raise the objection.
Secondly, Respondents seem also to underestimate the paramountcy of the issue of jurisdiction in the adjudication process and the extent to which courts in very many cases decided that irregularity in the procedure an objector resorts in successfully raising his challenge to the jurisdiction of the trial court shall not affect the court’s correct decision of not proceeding in a matter it lacked the jurisdiction to. The court and all stake holders must not waste their valuable time since any proceedings embarked upon by a court that lacked the necessary jurisdiction to no matter how well conducted the proceedings were, must eventually come to naught. Absence of jurisdiction has repeatedly been held to be irreparable in law. See Umanah v. Attah (2006) 17 NWLR (Pt.1009) 503, Madukolu v. Nkemdilim (1962) 1 All NLR 587; Sken-Consult v. Ukey (1981) 1 SC 6 and Lufthansa Airline v. Odiese (2006) 7 NWLR (Pt.978).
It is sheer leisure, therefore, to suggest that once the issue of jurisdiction has been raised by motion supported by affidavit as has been done in the instant case, the objection must willy-nilly be determined on the basis of affidavits for and against the objection as the lower court has done. The law remains that even where the court sees the need to take evidence in order to inquire whether in fact its jurisdiction has been ousted or addresses the objection after evidence has been called, though the court cannot completely close its eyes to the evidence called, here the affidavit evidence, the plaintiff’s case on the statement of claim remains the most important factor to consider.
It is thus correct to state that irrespective of the procedure employed in raising his objection to a court’s jurisdiction and the stage of the proceedings when the objection is raised, once the writ of summons and the statement of claim are clear and unambiguous as to the facts from which the objection could be determined one wiry or the other, the claim is the proper material for the determination of the issue. The matter is accordingly settled on the plaintiffs pleading and not on defendant’s answers in his statement of defence or even evidence proffered in proof of such defence. Jurisdiction as has further been held, once lawfully assumed is never divested on the strength of a valid defence to the action. See Barclays Bank of Nigeria Ltd. v. Central Bank of Nig. (1976) 1 All NLR 409, Adeyemi & 4 Ors v. Opeyori (supra), Onuorah v. KRPC Ltd. (supra), Nkuma v. Odili (supra) and A.G. Kwara State v. Olawale (supra).
In the case at hand, it cannot be said with any degree of seriousness that Appellants’ claim as indorsed in his writ of summons and averred to in the statement claim does not provide clear, unambiguous and sufficient materials on the basis of which the objection raised by the respondents to the lower court’s jurisdiction could be determined. The statement of claim has already been extensively reproduced in this judgment. In it, the Appellant has averred that the Notice issued by the 6th – 22nd Respondents is not the Notice the 1999 Constitution in S.188 recognizes for the purpose of initiating the process for his removal; that the Notice has not been signed by the 6th – 22nd Respondents and that the Notice is not served on him or members of the 2nd Respondents. These, he avers in his statement of claim, are all necessary requirements under S.188 of the Constitution and where they are not met, the provision of S.188(10) ousting the jurisdiction of the lower court notwithstanding, the court, on a plethora of judicial authorities, has the jurisdiction to hear and determine his case built on the fact of these breaches and ensure compliance. Section 188 of the 1999 Constitution which provides for the removal of the Appellant from the office of the Deputy Governor of Bayelsa State for gross misconduct in the performance of that office provides in subsection 10 thereof as follows:-
“188(10) No proceedings or determination of the panel or of the House of Assembly or any matter relating to such proceedings or determination shall be entertained or questioned in any court.”
Learned senior Appellant counsel is right to have called the foregoing provision an ouster clause as it clearly seeks to take away appellant’s right of access to court. The principle here is that courts guard their jurisdictions jealously by strictly and cautiously scrutinizing the language of the ouster provision resolving any ambiguity in favour of the Plaintiff whose access to the court is being ousted or curtailed. See Inakoju v. Adeleke (2007) 4 NWLR (Pt.1025) 423, Ajayi v. Military Adm. Ondo State (1997) 5 NWLR (Pt.504) 237, Amadi v. NNPC (2000) 6 S.C. (Pt.1) 66 at 95 and A.G Bendel State v. Agbofodoh (1999) 2 NWLR (592) 47.
The terrain is no longer ruled by decisions such as Balarabe Musa v. Hamza (supra) INEC v. Ray (supra) and Okafor v. Nnaife (supra) which endorse docility by the courts in the face of flagrant statutory ousters to their jurisdiction inspite of clear breaches on the part of defendants in their purported implementation of those same statutes. In the instant case since the Appellant’s contention is that in the exercise of their powers under S. 188 of the constitution, the respondents have not complied with the provisions of the enabling provision that calls for strict compliance, the correct approach is for the court to provide him the opportunity of establishing through credible evidence the facts of non-compliance averred to in the statement of claim. Having commenced his action by a writ of summons, the procedure avails the Appellant to prove his case by calling witnesses to testify and tender documents. The procedure does not facilitate trial through affidavits for or against the objections raised against the trial court’s jurisdiction. After all, being his case the Appellant freely enjoys the opportunity the law says must be his, to determine within the con of the law how he establishes his case. His adversary must not dictate either the pace, manner or the form of evidence the Appellant utilizes if the system is to be said to be fair.
A perusal of the affidavits in support of Respondents’ objections which the lower court relied upon to strike out Appellant’s suit reveals clearly that their content are not any different from what had earlier been raised in Respondent’s statement of defence as defences by way of pleading which in an action commenced by a writ of summons are facts to be established by documentary or viva voce evidence. With the exchange of pleadings between the parties herein and the emergence of a triable issue, the lower court is wrong to have placed on the Appellant the duty of controverting the averments in the affidavits in support of Respondents objection to further deny what the respondents averments in the statements of defence on these defecnes are. See Spasco Vehicle and Plant Hire Co. v. Alvaine (Nig.) Ltd. (1995) 8 NWLR (Pt. 416) 655; Alao v. ACB Ltd. (1998) 3 NWLR (Pt. 542) 339 and Woherem v. Emereuwa (2004) 13 NWLR (Pt.890) at 418.
Finally on this issue, I agree with respondents’ postulation that rules of court in the instant case entitle the lower court in determining the objections raised to bring Appellant’s action to an end. Respondents, plea however remains what they are: interlocutory applications. The court correctly resolves them on the basis of correct principles if in throwing away the dirty bath water it ensures the baby is not thrown out as well. Unfortunately in the present case that is exactly what the lower court did. I agree with learned Appellant senior counsel that courts must not determine at interlocutory stage the substantive issue in a case. The failure of the lower court to defer till after full trial the determination of Respondent’s objections is indeed perverse. See Woherem v. Emereuwa (supra) and press Ltd. V. I.K. Martins (Nig.) Ltd. (supra). It is for all these that I resolve Appellant’s 1st issue in his favour.
In determining the appeal I shall very briefly address Appellant’s 2nd issue as well as the Respondent’s Notice at the instance of the 1st – 3rd and 6th – 22nd Respondents.
Appellant’s 2nd issue can briefly and effectively be considered. Learned senior Appellant counsel is right that a court that decides an issue without hearing a party affected by its decision stands the risk of having the decision nullified on appeal. The party whose right to be heard by the court and was not has had his right to fair hearing breached. The law rises to ensure that the breach does not endure. The doctrine of fair hearing on the basis of which the Appellant further asks that the lower court’s decision be nullified has been provided for under.S.36 of the 1999 Constitution. By the doctrine as so provided for, once the Respondent in an appeal shows that an Appellant has had the opportunity of presenting his side of the case before the trial court’s decision he contends was taken without his being heard, the decision endures. Otherwise, the proceedings as well as the decision therefrom would be set aside by the appellate court. See Wappah v. Morah (2006) 18 NWLR (Pt.1010) 18, Newswatch Comm. Ltd. v. Atta (2006) 12 NWLR (P.993) 44, Enebeti v. CBN (2006) 9 NWLR (P.984) 69 and Longe v. FBN (2006) 3 NWLR (Pt.967) 225.
In the instant case, the Respondents are right to maintain that since the Appellant had had the opportunity of presenting his case and fully participated in the proceedings that gave birth to the decision being appealed against, it no longer lies in his mouth to complain that he has been denied his right to be heard. Appellant’s arguments that his right to lair hearing has been breached remains spurious. I so hold and resolve Appellant’s 2nd issue against him.
About the Notice of the 1st – 3rd and 6th – 22nd Respondents that the lower court’s decision be affirmed on other grounds? The Notice in practical terms urges us to make the very finding the lower court made declining jurisdiction which in my consideration of the appeal I found was wrongly made. It will be ridiculous, to say the least, for a court to accede to such a plea. The Notice is an abuse of the process of this court as it seeks the very relief the Respondents sought of us in the appeal and was refused as same is lacking in merit. The controversy on that very issue must come to an end. So be it!
On the whole, the appeal succeeds and it is allowed. The two unmeritorious motions filed by the two sets of Respondents are accordingly dismissed. The lower court’s ruling declining jurisdiction in respect of Appellant’s suit is hereby set aside and the suit is remitted to the lower court for same to be heard and determined expeditiously by a judge other than Adokeme J. as shall be assigned the matter by the Bayelsa State Chief Judge.
Appellant has asked us to grant him consequential mandatory injunctive reliefs following the success of his appeal. Let me restate that by his suit on the 10th of June 2010 Appellant had gone to court to challenge the legality of the procedure commenced by the Respondents to remove him from office. We take judicial notice of the fact of Appellant’s purported removal by the Respondents and the further fact of its occurrence on a date post the date of the commencement of the suit to which this appeal relates. All the facts at our disposal necessitate the inference that Respondents were aware of the pendency of Appellant’s action, including his applications ex parte and on Notice for interim and interlocutory injunctions against them. The Respondents are bound, having been on notice of all the procedure challenging their acts, to maintain the status quo pending the determination of the processes. The Appellant deserves the consequential mandatory reliefs he seeks. The authorities he relies on are quite apposite and in Ezegbu v. F.A.T.B (1991) 1 NWLR (Pt.220) 669 at 725,the remedy available to the Appellant has been charted thus:
“What then is the remedy of the court where it finds itself in this; situation? I have earlier said that any court found in the same situation would frown against it. I also add that the court must in addition take a positive and mandatory act in order to instill judicial discipline on the erring party and in order to maintain, restore and preserve the dignity and respect of the court. This includes the undoing of what has been done by the erring party irrespective of what the court will decide on the merits, when the matter is properly heard.” (underling mine for emphasis)
The same approach has been further endorsed in Abiodun v. Chief Judge, Kwara State (2008), All FWLR (Pt. 448) 340 at 385 and Adefarati v. Governor of Ondo State (2006) 1 NWLR (Pt. 960) 145 at 157, decisions also relied upon by learned Appellant senior counsel.
One agrees with learned senior counsel to the Appellant that the acts of the Respondents of proceeding to remove the Appellant from office during the pendency of the instant suit is a deliberate and calculated disrespect to the court the real aim being to render the court’s eventual decision nugatory. We must discourage the indiscipline and ensure the evolution of real democratic culture where law and his process reign supreme. All acts done by the Respondents in the removal of the Applicant, post the 10th – 6 – 10 more specifically stated in term 9 of the reliefs sought by the Appellant herein are hereby set aside. Parties are to maintain the status quo pending the determination of the instant matter.
Appellant is entitled to cost of this Appeal put at N60,000 naira against the Respondents jointly and severally.
ISTIFANUS THOMAS, J.C.A: I had the advantage of reading in advance the lead judgment of my learned brother M. D. MUHAMMAD, OFR, presiding justice, JCA, just delivered. I am in total agreement with the finding and the conclusions reached in the lead judgment.
His Lordship patiently considered all the parties, affidavits, counter affidavits and further affidavits at the trial court and this court before he came to the consequential orders. I adopt the lead judgment as my own.
I abide with the orders that parties should maintain the status quo before the determination of the case de novo before another judge as may be assigned by the trial judge of Bayelsa state High court.
EJEMBI EKO, J.C.A: I had a preview of the judgment just delivered in this appeal by my learned brother, M.D. MUHAMMAD, (OFR), JCA. I agree entirely with his analyses and conclusions on the issues in the appeal.
I will, however, add a few comments on some of the issues. The learned trial Judge, acting under section 188(10) of the 1999 Constitution declined jurisdiction to entertain the claims of the Appellant. The cause of action and the claims of the Appellant disclosed by paragraphs 5 – 14 of the statement of claim are as herein below-
5. The 1 – 3rd Defendants by virtue of publications in the “Thisday” Newspaper of June, 5th, 2010 at page 61 thereof and the “The Nation” Newspaper of 5th June, 2010 at page 63 thereof, claimed to have received a purported Notice of Impeachment allegedly signed by seventeen members of the Bayelsa State House of Assembly and consequently directed the Clerk of Bayelsa State House of Assembly to serve the said purported Notice of Impeachment on the Claimant and al! members of the Bayelsa State House of Assembly. The claimant hereby pleads the said newspapers.
6. The Claimant was not served with the said purported Notice of Impeachment within seven days from purported presentation to the Speaker of the Bayelsa State House of Assembly and till date (9th June, 2010) the Claimant has not been served with the said purported Notice of Impeachment or any notice of allegations against him. Till date neither the said Notice of Impeachment nor any notice of allegations against the Claimant pursuant to section 188 of the Constitution – was served on all members of the Bayelsa State House of Assembly.
7. The Claimant only saw the aforesaid newspaper publication of the purported Notice of Impeachment on the 9th day of June, 2010.
8. The Claimant further avers that the said purported Notice of Impeachment was not signed by the purported signatories thereto, who are 6th – 22nd Defendants.
9. The Claimant shall contend that there is no provision in the constitution of the Federal Republic of Nigeria, 1999 relating to the removal of the claimant as the Deputy Governor of Bayelsa State that prescribes the commencement of the said process by means of Notice of Impeachment as was purportedly done by the Defendants in this matter.
10. The claimant shall further contend that by reason of the foregoing, the alleged Notice of Impeachment is invalid, unconstitutional and null and void and of no effect whatsoever.
11. The claimant was avers that notwithstanding the foregoing, the Bayelsa State House of Assembly on the 8th day of June, 2010 allegedly sat and passed a resolution that the purported allegations of gross misconduct against the claimant in the purported Notice of Impeachment be investigated. The Bayelsa State House of Assembly has consequently directed the 5th Defendant to constitute or appoint a panel of seven persons; to investigate the purported allegations of gross misconduct.
i. –
ii. Before passing of the aforesaid resolution the Speaker of the Bayelsa State House of Assembly did not take any steps towards procuring a response or reply from the Claimant, to the allegations against the Claimant.
12. The 5th Defendant is now making efforts towards constituting the said panel of seven persons to investigate the purported allegations of gross misconduct against the Claimant in the said purported Notice of Impeachment.
13. Unless restrained – the 5th Defendant will constitute the said panel which will lead to the unlawful removal of the Claimant from office as the Deputy Governor of Bayelsa State.
14, WHEREFOR the Claimant claims against the Defendants, jointly and severally as follow:-
i. A DECLARATION that without the presentation of a valid notice of allegation(s) against the Claimant, signed by not less than 1/3 (one third) of the members of the Bayelsa State House of Assembly pursuant to section 188 of the Constitution of the Federal Republic of Nigeria, 1999 to the Speaker of the Bayelsa State House of Assembly and service of the same on the Claimant and all the members of the Bayelsa State House of Assembly, the Defendants can not lawfully and validly remove the Claimant from office as the Deputy Governor of Bayelsa State or commence any proceeding towards the removal of the Claimant from office as the Deputy Governor of Bayelsa State.
ii. A DECLARATION that the purported Notice of Impeachment dated the 1st day of June, 2010 purportedly presented to the 1st Defendant by the 6th – 22nd Defendants is unconstitutional, illegal, null and void and of no effect whatsoever.
iii. AN ORDER setting aside the aforesaid purported proceedings of the Bayelsa House of Assembly held on the 8th day of June, 2010 including the resolution that the purported allegations of gross misconduct against the Claimant purportedly contained in the aforesaid Notice of Impeachment or any notice of allegations against the Claimant, be investigated and requesting the 5th Defendant to appoint or constitute a panel of seven persons to investigate the Claimant.
From the foregoing the Appellant says that the process for his removal from the office of the Deputy Governor of Bayelsa State is a non starter on the grounds inter alia that
i. the Notice of Impeachment is not the notice or the initiating process contemplated by section 188 of the Constitution, 1999.
ii. he was not personally served the said notice, and that he only read it or read about it from the newspapers. And that it is mandatory that he and all members of the Bayelsa House of Assembly be served the duly signed notice of allegations of gross misconduct against him within 7 days of presentation to the Speaker.
iii. the purported Notice of Impeachment published in the newspapers was not signed by those making the allegations of gross misconduct against him.
iv. before the resolution of the House of Assembly passed on 8th June, 2010 that the allegations contained in the Notice of Impeachment be investigated by a seven man Panel to be set up by the Chief Judge of Bayelsa State, the Speaker of Bayelsa State House of Assembly did not take any steps towards procuring the Appellant’s reply or response to the allegations.
v. the procedure adopted by the Defendants/Respondents to remove the Appellant from office is not in accordance with section 188 of the Constitution.
I have read section 188 of the 1999 Constitution. The Appellant, as the Claimant, seems to have founded his grouse and the claims mainly on subsections (1), and (2) of section 188 of the Constitution. The subsections are herein below reproduced –
188. (1) The Governor or Deputy Governor of a State may be removed from office in accordance with the provisions of this section.
(2) whenever a notice of any allegation in writing signed by not less than one third of the members of the House of Assembly-
(a) presented to the Speaker of the House of Assembly of the State;
(b) stating that the holder of such office is guilty of gross misconduct in the discharge of the functions of the office, detailed particulars of which shall be specified the Speaker of the House of Assembly shall, within seven days of the receipt of the notice, cause a copy of the notice to be served on the holder of the office and on each member of the House of Assembly, and shall also cause a statement made in reply to the allegation by the holder of the office, to be served on each member of the House of Assembly.
Section 188 of the constitution sets out the particular procedure or mode of removing from office the Governor or Deputy Governor of a state. The provisions of the section, particularly of subsections (1) and (2) of section 188 of the constitution, are mandatory. It is trite law that a trial conducted not in compliance with mandatory provisions of the law or statute regulating such trial is a nullity. See SANMABO v. THE STATE (1967) NMLR 314; SALAMI OLONJE v. THE STATE (1955 – 56) WRNLR 1; GWONTO v. THE STATE (1982 2 NCLR 312. Dahiru Musdapher, JSC affirms this with clarity when in INAKOJU v. ADELEKE & ORS (2007) 29.2 NSCQR 958 at 1151 he states –
Where the Constitution has made a specific provision as to any particular procedure or made of exercising any legislative function, if there is a breach of such provisions’ the courts will assume jurisdiction as the guardians of the constitution, to intervene and ensure compliance with the Provisions of the Constitution.
It is the alleged Infraction of this mandatory provisions of section 188(1) and (2) of the 1999 constitution, as pleaded in paragraphs 5 – 14 of the statement of claim earlier reproduced, that the Appellant, as the claimant, had invited the court, as the guardian of the constitution, to intervene and ensure compliance of. The courts are bound to enforce and give effect to mandatory provisions of the Constitution and statutes.
At the trial court much fuss was made on whether the “Notice of Impeachment” was served on the Appellant. The Respondents sought cover under section 188(10) of the Constitution and invited the trial court to decline jurisdiction. This sub-section (10) prohibits the courts exercising-jurisdiction in matters relating to proceedings of the panel of seven or of the House of Assembly in the following words –
No proceedings or determination of the panel or of the House of Assembly or any matter relating to such proceedings or determination shall be entertained or questioned in any court.
The case of the Appellant is that the sine qua non or condition precedent for the proper invocation and operation of section 188(10) of the Constitution is due compliance with the mandatory procedure prescribed by the provisions of sub sections (1) and (2) of this section, and that the court, as the guardian of the constitution, will assume jurisdiction and intervene to ensure due compliance with the provisions of the Constitution where there is an infraction of this mandatory procedure. The argument is unassailable In view of the authorities earlier pointed out, particularly INAKOJU v. ADELEKE (supra) and especially the dictum of Nike Tobi JSC at page 1053 of the report to wit –
It is good law that where the constitution or statute provides for a pre-condition to the attainment of a particular situation, the pre-condition must be fulfilled or satisfied before the particular situation will be said to have been attained or reached. Our common and popular pet expression is “condition precedent” which must be fulfilled before the completion, which is the terminus and in our con, the terminus is section 188(10).
Section 188 (10) of the Constitution is only sacrosanct if and when all the conditions precedent have been fulfilled. And as Kutigi JSC (as he then was) stated at pages 1133 – 1134 of INAKOJU v. ADELEKE (supra) “the ouster clause in subsection (10) can only be properly resorted and invoked after due compliance with subsections (1) – (9) that preceded it (see, for example ATTORNEY-GENERAL OF BENDEL STATE v. ATTORNEY-GENERAL OF FEDERATION (1981) ALL NLR 86; JIMOH V. OLAWOYE (2003) 10 NWLR [Pt.828] 307; OKOYE V. SANTILI (1990) 2 NWLR Pt.131]1L72)”, and that “failure to comply with any with any of the provisions of sub-sections (1) – (9) will mean that the ouster clause of sub-section (10) can not be invoked in favour of the House of Assembly.” Sub-section (10) of section 188 of the 1999 Constitution (in pari material with section 170 of the 1979 Constitution) is after all not sacrosanct as BALARABE MUSA v. AUTA HAMZA (1982) 3 NCLR 229 at 246 seems to suggest, to wit that “the law of the land prevents the intervention in the impeachment proceedings” in the House of Assembly. BALARABE MUSA v. AUTA HAMZA (supra), like BALARABE MUSA v. SPEAKE& KADUNA STATE HOUSE OF ASSEMBLY (1982) 3 NCLR 450 seem no longer to be good authorities on the omnipotence of the ouster provisions of section 188(10) of the 1999 Constitution.
The question whether or not the ouster provisions govern any particular case of proceedings or determination of the panel of seven or the house of Assembly or any matter relating to such proceedings or determination depends on the facts and circumstances of each case. That is; the operation of the provisions of section 188(10) of the Constitution depends on whether the sine qua non for the invocation of the provisions have been complied with by the members of the House of Assembly, the speaker of the House of Assembly, the Clerk of the House of Assembly or the Chief Judge who are enjoined to comply with the mandatory pre-conditions contained in sub-sections (1) – (9) of section 188 of the Constitution.
Having said all these, let me highlight briefly one or two of the facts the Appellant depended on for his suit at the trial court. The Appellant had averred in the statement of claim that Notice of Impeachment, the process that originated the proceedings under section 188 of the Constitution against him, is unknown to law and that the process and the proceedings founded on it do not comply with the provisions of section 188 of the Constitution. The question – whether this is a process known to law, particularly section 188(2) of the Constitution, does not as such, depend on whether the Appellant, as the holder of the office of the Deputy Governor of Bayelsa State, had been served the said Notice of Impeachment. The learned trial Judge, in declining jurisdiction pursuant to section 188(10) of the Constitution, did not resolve the question whether what the Appellant calls “the purported Notice of Impeachment” is infact the “notice or any allegation in writing signed by not less one third of the members of the House of Assembly.” This forms the fulcrum of Relief 14 (ii) in the statement of claim – a declaration that the purported Notice of Impeachment dated the 1st day of June, 2010 presented to the 1st Defendant by the 6th – 22nd Defendants is unconstitutional, illegal, null and void and of no effect whatsoever. The Respondents say this is a mere hair splitting technicality. But it is not at this interlocutory stage that the merits of such substantive claim or relief in the suit of the Appellant will be determined. The courts are enjoined to resist the lure or temptation of deciding substantive issues in the suit at interlocutory proceedings. The general principle of law is that a court should not comment on the substantive issues at the hearing of interlocutory application. See BANK OF IRELAND v. UBN LTD (1998) 7 SCNJ 385; ODUBA v. HONTMANGRACHI (1997) SCNJ 216; NYAME v. FRN (2010) 42 NSCQR 45 at page 122.
This takes me to the issue in paragraphs 8, 10 and 14 (1) of the statement of claim that the purported Notice of Impeachment was not signed by the purported signatories thereto; and that consequently the said notice was unconstitutional and invalid. Again, this is a matter that will be subjected to trial in the substantive hearing of the suit and not at the hearing of interlocutory application or preliminary objection under section 188 (10) of the Constitution. Issues in the suit were joined on the pleadings on this fact. It can only be resolved or determined upon trial of the substantive suit. Be that as may, section 188(2) of the Constitution makes it mandatory that the “notice of any allegation” of gross misconduct must be in writing and “signed by not less than one third of the members of the House of Assembly. “This can not be an issue of arcane technicality. The issue touches the vires of the originating process and invariably the competence of the entire proceedings.
Issues were also joined by the parties in their pleadings on whether or not the Appellant, the holder of the office of the Deputy Governor of Bayelsa, was served the Notice of Impeachment within 7 days of its presentation to the 1st Defendant, the speaker of Bayelsa State House of Assembly. The Respondents vigorously affirm the assertion that the Appellant was duty served in accordance with the provisions of section 188 of the constitution. The Appellant vehemently avers the non-service of the Notice in accordance with section 188 of the Constitution. This, therefore, is an issue for trial in the substantive suit. The learned trial Judge should have, therefore, avoided the lure or temptation to comment on it in interlocutory proceedings.
Let me cut short the journey. The facts forming the sine qua non or pre-condition for the invocation of the ouster provisions of section 188(10) of the Constitution were contentious or vigorously disputed in the pleadings in the suit filed by the parties. In my judgment, therefore, the learned trial Judge was in grave error in invoking section 188 (10) of the Constitution to decline jurisdiction in the suit of the Appellant, notwithstanding serious disputations over these fundamental facts, The provisions of section 188 (10) of the Constitution can only be invoked if and when there exist undisputed facts that the steps taken towards the removal from office of the Appellant were in accordance with sub-sections (1) – (9) thereof.
The learned trial Judge had not exercised his discretion, in declining jurisdiction in this case, judiciously and judicially. He erred seriously in law to have declined jurisdiction. I also allow the appeal, set aside the Ruling delivered on 29th June, 2010 in the suit no YHC/201/20t0 and order that the suit be heard de novo expeditiously by a Judge, other than Adokeme , J, of Bayelsa State High Court.
The consequential order made in the lead judgment by my learned brother, that is the mandatory restorative order, is the most appropriate order to make in the circumstance of this case. I hereby adopt it.
Appearances
Dr. Alex Iziyon SAN,
K. Wodu Esq.,
W. Rollings Esq;
P. Ikpae Esq.,
F.O. Iziyon Esq.,
L.O. Fagbemi (Mr) Esq.,
P.O. Ogim Esq.,
A.S. Arthur Esq.,
T.A. Etinyerem Esq., and
Mrs. Olowora;For Appellant
AND
S.T. Hon. SAN;
J.S. Awunde Esq.,
Chief Mike Wodi Esq.,
Miss C. Igwe Esq.,
B.A. Lorhghem Esq.,
E.O. Onwama (Mrs.) Esq.,
Chief Olanipekun SAN,
I.A. Adedipe Esq.,
A. Adedipe Esq.,
G. Chinda Esq.,
A. Adesami and
D. Atagbo
F.T. OkorotieFor Respondent
