SIR JUDE AGBASO v. SPEAKER, IMO STATE HOUSE OF ASSEMBLY & ORS (2014)

SIR JUDE AGBASO v. SPEAKER, IMO STATE HOUSE OF ASSEMBLY & ORS

(2014)LCN/7546(CA)

In The Court of Appeal of Nigeria

On Thursday, the 20th day of November, 2014

CA/OW/291/2013

RATIO

APPEAL: ISSUES FOR DETERMINATION; WHETHER ISSUES FOR DETERMINATION MUST ARISE FROM THE GROUND OF APPEAL AND THE CONSEQUENCE OF ANY ISSUE FOR DETERMINATION THAT IS NOT FOUNDED ON A GROUND OF APPEAL

The Law is firmly established now that issues for determination both from the Appellant or a Respondent in an appeal must not be more than the grounds contained in the Notice and grounds of appeal. Any question for determination that does not arise or flow directly from the ground or grounds of appeal is a violation of the principle. An issue that is alien or strange to the grounds of appeal filed will attract the punishment of striking out for incompetence
1. REAR ADMIRAL FRANCIS ECHIE AGBITI V5. THE NIGERIAN NAVY (2011) 1 SCM 31 at 48A – D per ADEKEYE, JSC who said:
“Issues for determination in any appeal must flow from the grounds of appeal. They must project clearly and succinctly the substance of the complaint contained in the grounds of appeal. It is therefore wrong for an appellant or respondent to load many complaints in one issue for determination or create subsections under one issue. Issues for determination are meant to acquaint the Court with the grievances of the parties in the appeal and subsequently assist the Court in doing substantial justice in the determination of the issues. Where many grounds of appeal are compressed to form a single issue, they must relate, be clear and straight forward. However a respondent who did not cross-appeal has no valid reason to go outside the confines of the appellant’s ground of appeal to formulate the issue not directly related to the ground of appeal.”

2. SOCIETY BIC SA & ORS. VS. CHARZIN INDUSTRIES LIMITED (2014) 35 CM 208 at 228 A – D where NGWUTA, JSC said;
‘It is an established principle of law that the number of grounds of appeal should on no account be less than the issues for determination and framing two issues from one ground of appeal is a violation of the said principle. See Agu. V. Ikewibe (1991) 3 NWLR (Pt.180) 385. A ground of appeal should not be split to raise two issues. See also A – G Bendel State V. Aideyan (1989) 4 NWLR (Pt.118) 646: Ugo V. Obiekwe & Anor. (1989) 1 NWLR (Pt.99) 566; Adelaja V. Funoiki (1990) 2 NWLR (Pt.131) 137. per. PETER OLABISI IGE, J.C.A.

COURT: JURISDICTION; WHEN CAN THE ISSUE OF JURISDICTION BE RAISED IN A PROCEEDING, WHETHER THE ISSUE OF JURISDICTION CAN BE RAISED WITHOUT SEEKING AND OBTAINING THE LEAVE OF THE COURT AND WHETHER THE COURT CAN RAISE THE ISSUE OF JURISDICTION SUO MOTU
However where a Defendant to an action or a Respondent to an appeal conceives or perceives that he has a point of Law or Jurisdiction that can militate against the hearing of the action or on appeal he can raise it at anytime in the course of the proceedings especially where the appeal can thereby be brought to an abrupt end or terminated in limine.
See: (1) REAR ADMIRAL FRANCIS ECHIE AGBITI Vs. THE NIGERIAN NAVY (2011) 1 SCM 31 at 531 to 55 A – D per ADEKEYE, JSC who said:
“The Rules of procedure does not oppose arguing an interlocutory appeal in a substantive appeal against a final judgment. Where an appellant in his issues for determination raised questions of jurisdiction, they are undisputedly questions of law. An appellant can raise such issues afresh in an appellate court. Such questions are not only competent but are also expedient in the interest of justice for an appellate court to entertain the questions.
Adeyemi V. Opeyomi (1976) 9-10 SC 31.
Fadiora V. Gbadebo (1978) 3 SC 219.

An appellant is allowed to raise the question of jurisdiction on appeal without the leave of Court whereas ordinarily a fresh issue can only be raised on appeal with the leave of Court sought and obtained hence the issue becomes incompetent and liable to be struck out. I shall repeat with emphasis that an appellant does not require leave to raise the issue of jurisdiction, as it can be raised at any stage of proceedings and in any manner. The issue of jurisdiction being radically fundamental to adjudication in the Nigerian legal system must be properly raised before the Court can rightly entertain that point. Where the question involves a substantial point of law, substantive or procedural and it is apparent that it will not be necessary to open up further evidence which would affect the decision, the Court has a duty to allow the question to be raised and points taken so as to prevent an obvious miscarriage of Justice.”
Thus issue of Jurisdiction can also be raised in any manner without the Leave of Court or even formal filing of any Notice of Preliminary Objection. It has even been adjudged that it can also be raise viva voce. I call in aid the cases of;
(1) N.D.I.C. Vs. C.B.N. & ANOR. (2002) 7 NWLR (PART 766) 272 at 295 C – G per UWAIFO, JSC who said:
“It is plain from the authorities that at any stage sufficient facts or materials are available to raise the issue of jurisdiction, or that it can be canvassed, there is no reason why there should be delay in raising it. In Petrojessica Enterprises Ltd. v. Leventis Technical Co. Ltd. (1992) 5 NWLR (Pt.244) 675 at 693, Belgore, JSC said inter alia:
Jurisdiction is the very basis on which any tribunal tries a case: it is the lifeline of all trials. A trial without jurisdiction is a nullity … This importance of jurisdiction is the reason why it can be raised at any stage of a case, be it at the trial, on appeal of court of Appeal or to this court; afortiori the court can suo motu raise early an issue of jurisdiction; but once it is apparent to any Party that the Court may not have jurisdiction it can be raised even viva voce as in this case. It is always in the interest of justice to raise issue of jurisdiction so as to save time and costs and to avoid a trial in nullity.”

HON. AHMED SALAWU OGEMBE VS. NURUDEEN ABATEMI & ORS. (2011) 12 (Pt.2) SCM 363 at 375 B – F per GALADIMA, JSCwho said:

“The point raised in the 1st Respondent Notice of preliminary objection was clearly brought to the notice of the Appellant who responded and made a lengthy submission in his brief of argument. The Court below considered the objection and ruled on it. Clearly the point raised in the Notice without being swayed to unnecessary technicality was a point challenging the jurisdiction of the Court of Appeal to entertain an incompetent appeal of the appellant. Challenging the jurisdiction of the Court is a threshold issue. It is a warning signal to the Court that it was about to embark on a matter which it has no jurisdiction and could lead to a nullity. Because of its importance a point of jurisdiction can be raised at any time and even viva voce for the first time during argument. The court can suo motu raise it: Leventis v. Petro Jessica (supra). While the Court has a duty to give parties an opportunity to be heard on any issue it raises suo motu, a failure to do so does not lead to a reversal of the decision. The Appellant must go further to show that the failure to hear him on the point occasioned some miscarriage of justice: See: Olubode v. Salani (1985) 2 NWLR (Pt.7) 282; Imah v. Okogbe (1930) 9 NWLR (Pt.316) and Effiong v. Crosiec (2010) 14 NWLR (Pt.1213) 106 at 133, (2010) 7 SCM, 28.”
And quite recently the Supreme Court reiterated the firm position on jurisdiction in the case of BARRISTER ORKER JEV & ANOR. vs. SEKAVDZUA IYOTYOM & ORS. (2014) 8 SCM 131 at 151 E where my Lord, OKORO JSC succinctly put it thus:
“Let me quickly add here that a preliminary objection which borders on jurisdiction cannot be brushed aside by the Court but must be considered by the Court regardless of the manner in which it was raised. Such issue, I must say can be raised for the first time in this court with or without Leave. See Nnonyen v. Anyiechie (2015) ALL FWLR CPL 253, 604.” per. PETER OLABISI IGE, J.C.A.

PRACTICE AND PROCEDURE: ORIGINATING SUMMONS; THE WHOLE ESSENCE OF ORIGINATING SUMMONS

The whole essence of Originating Summons has been stated or explained in numerous cases, all warning that where the issues in dispute are contentious Originating Summons cannot be the vehicle of initiating an action. Also where there are disputes or conflicts on crucial issues and facts originating summons will be unsuitable and not advisable. On the other hand where disputes have no bearing to material or live issues in an action Originating summons proceeding will be opposite and in order. It is not meant for use in hostile action. See
“In the case of NJIDEKA EZEIGWE VS. CHIEF SIR BENSON CHUKS NWAWULU & ORS (2010) 4 NWLR (PART 1183) 159 at 215 – 216 Adekeye JSC said:
“The Procedure of Originating Summons is meant to be invoked in a friendly action between parties who are substantially ad idem on the facts and who, without the need for pleadings, merely want, for example, a directive of the court on the point of law involved. The procedure is not meant to be invoked in a hostile action between parties and in which the parties concerned need know beforehand the issue which they are called upon to contend with from pleading. There can be disputed facts which originating summons procedure could resolve, but, where the disputed facts are substantial, the proper mode of commencing such an action is by Writ of summons so that pleadings can be filed. In order words, Originating Summons procedure is appropriate where there is no substantial dispute of facts between the parties or likelihood of such dispute.”
2. BARRISTER ORKER JEV & ANOR. VS. SEKAV DZUA IYOTYOM & ORS. (2014) 8 SCM 131 at 156E – 158A where My Lord OKORO, JSC had this to say:-
“There is no doubt that Originating Summons is one of the ways of commencing action in our Courts. It is provided for in the various High Court Rules. For the Federal High Court (Civil Procedure) Rules 2009.

Order 3 Rules 6 and 7 thereof provide: –

“6. Any person claiming to be interested under a deed, will, enactment or other written instrument may apply by Originating Summons for the determination of any question of construction arising under the instrument and for a declaration of the rights of the persons interested.”

PRACTICE AND PROCEDURE: AFFIDAVIT; THE LAW REGARDING CONFLICT IN AFFIDAVIT IN AN ORIGINATING SUMMONS

The Law has been firmly settled in plethora of authorities that where a matter is being tried on Affidavit evidence and the Court is faced or confronted with conflicting Affidavits evidence relied on by the parties on material issue before the Court, the resolution of such conflicts on the Affidavits of the parties cannot be done by evaluation of the conflicting evidence or the conflicting Affidavit without oral evidence taken from the parties by the Court in order to resolve the irreconcilable conflicts in the Affidavit evidence.
See (1) FALOBI Vs. FALOBI (1976) 9 – 10 SC 1 at 13-14
per FATAYI – WILLIAMS JSC (later CJN) where it was held that it is expedient to hear oral evidence from witnesses and deponents to resolve the conflicts.
(2) BARR. ORKER JEV & ANOR. Vs. SEKAV DZUA IYOTYOM & ORS (2014) 8 SCM 131 at 157 I – B per OKORO, JSC who said:
“The general principal of law regarding conflict in affidavit in an Originating Summons procedure is that where this is the case the Court should order for pleadings in order for the parties to lead evidence to resolve such conflicts. However, where there are documents annexed to the affidavit of the parties which can be effectively used to resolve the seemingly conflicts, there would be no need to order for pleading as this is exactly what the Learned Trial Judge did which was affirmed by the Court of Appeal. See Nwosu v. Imo State Environmental Sanitation Authority (1990) 2 NWLR (Pt.135) 688; Kimday v. Military Governor of Gongola State (1988) 5 SCNJ 28 at 56; Fashanu v. Adekoya (1974) 1 All NLR (Pt.1) 35 at 91 – 92.”
(Underlined nine)
See: HON. OGBONNA ASOGWA Vs. PEOPLES DEMOCRATIC PARTY & ORS. 2013 7 NWLR (PART 1353) 207 at 258 C – H to 259 A where NGWUTA JSC lucidly said:

“Appellant’s case is bedeviled with internal conflict with regards to the date the election he claimed to have won was held. The Trial Court found as a fact, and the Court below affirmed, that they were very serious contentions and serious dispute which cannot be resolved by affidavit evidence. The said finding among others, are concurrent finding of fact which ordinarily ought not to be disturbed on appeal. See Njoku & Ors. V. Eme & Ors. (1973) 5 SC 293 at 306: Kale v. Coker (1982) 12 SC 252 at 271.
Appellant did not attempt to show either that the concurrent findings are perverse, or there is substantial error in substantive or procedural law which if not correct will lead to miscarriage of Justice. See Lokoyi & Anor. V. Olojo (1983) 8 SC 61 at 68; (1983) 2 SCNLR 127; Borikole v. Pelu (1991) 6 NWLR (Pt.211) 523.”
This settled position of the case Law is now enacted into Section 116 of the Evidence Act 2011. Section 116 thereof which provides in statutory terms as follows:

JUSTICES:

ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria

PETER OLABISI IGE Justice of The Court of Appeal of Nigeria

FREDERICK O. OHO Justice of The Court of Appeal of Nigeria

Between

SIR JUDE AGBASO – Appellant(s)

AND

1. SPEAKER, IMO STATE HOUSE OF ASSEMBLY
2. IMO STATE HOUsE OF ASSEMBLY
3. HON. JUSTICE G. C. IHEKIRE (RTD)
(Chairman of the Panel of Seven Persons to Investigate the allegations against the Claimants, Sued for himself and on behalf of members of the Panel)
4. ATTORNEY-GENERAL OF IMO STATE – Respondent(s)

PETER OLABISI IGE, J.C.A. (Delivering the Leading Judgment): The Appellant was the Deputy Governor of Imo State until 28th March, 2013 when he claimed the 2nd Respondent, that is IMO STATE HOUSE OF ASSEMBLY purportedly removed the Appellant from office of Deputy Governor.
Naturally aggrieved by the said action of the 2nd Respondent, the Appellant instituted the action culminating into this appeal vide Originating Summons at the Court below on 30th day of April, 2013 asking for the following reliefs and questions for determination couched as follows:

“1. A DECLARATION that by virtue of Section 188(2) Constitution of the Federal Republic of Nigeria 1999 (hereinafter referred to as CFRN 1999), the Claimant is entitled to personal service of Notice of any Allegation of Gross Misconduct against him within seven days of receipt of such Notice by the 1st Defendant.

2. A DECLARATION that the failure of the 1st Defendant to cause the document entitled “Petition Pursuant to S.188(1) 1999 Constitution (As Amended) Re: Gross Misconduct By the Person of Sir Jude Agbaso, Deputy Governor of Imo State” dated 7th March, 2013 to be personally served on the Claimant within seven days from 7th March, 2013 when it was received by the 1st Defendant. VITIATES the said document and all subsequent steps and proceedings arising therefrom.

3. A DECLARATION that the publication of the document entitled “Petition Pursuant to S.188(1) 1999 Constitution (As Amended) Re:Gross Misconduct by the person of Sir Jude Agbaso, Deputy Governor of Imo State” dated 7th March 2013, in the Daily Sun Newspaper of Thursday, March 14, 2013 DOES NOT COMPLY with the mandatory constitutional requirement for personal service of a Notice of Allegation of Gross Misconduct under Section 188(2) CFRN 1999.

4. A DECLARATION that the petition entitled “Petition Pursuant to S.188(1) 1999 Constitution (As Amended) Re: Gross Misconduct by the Person of Sir Jude Agbaso, Deputy Governor of Imo 9tate” dated 7th March, 2013 published at page 42 of the Daily Sun Newspaper of Thursday March 14, 2013 is NOT the same as the Notice of Allegation of any Gross Misconduct provided for under Section 188(2) CFRN 1999.

5. A DECLARATION that the purported “Motion to do this investigation” passed by the 1st Defendant on Wednesday, 13th March, 2013 that the purported allegation against the Claimant be investigated as contained in the 1st Defendant’s letter dated March 13, 2013 to the Hon. Chief Judge of Imo State, was NOT validly passed when the purported “Petition for the Impeachment” of the Claimant was only published on Thursday, 14th March, 2013, in the Daily Sun Newspaper in violation of section 188(2) CFRN 1999.

6. A DECLARATION that in view of the pendency of SUIT NO.HOW/178/2013: SIR JUDE AGBASO VS. IMO STATE HOUSE OF ASSEMBLY & OTHER the purported removal of the Claimant on 28th March, 2013 is a deliberate disrespect for Judicial Process, Rule of Law and breach of right of fair hearing and null and void.

7. A DECLARATION that the inauguration/setting up of the Panel of Seven Persons under the Chairmanship of the 3rd Defendant to investigate the allegations against the Claimant, by a Judge of the Imo State High Court, Hon. Justice Goddy Anunihu, instead of the appointer of the Panel the Hon. Chief Judge of Imo State, is INVALID a Judge of the High Court having no role whatsoever under Section 188 CFPN 1999 in the appointment and inauguration/setting up of the said Panel.

8. A DECLARATION that by virtue of Section 36 and 188(6) CFRN 1999, the purported ‘Report’ hastily issued on 28th March, 2013 by the Panel of Seven Persons appointed to investigate the allegations under the chairmanship of the f Defendant, after a single sitting, without notice to the claimant and without hearing the claimant in his defence OFFENDS the Rules of Natural Justice and accordingly unconstitutional null and void.

9. A DECLARATION that the alleged consideration and adoption by the 2nd Defendant of the said ‘Report’ on 28th March, 2013 after the Panel purportedly held its first and only session; the purported removal of the claimant from office thereupon and the submission, consideration and confirmation of the Governor’s nominee to replace the claimant, all on the same day, DEPRIVES the entire process of the elements of justice, fairness and legitimacy and thereby rendering them unjust, unfair, mala fide. prejudicial and in violation of the letters and spirit of section 36 and 188 (6), (7), (8) and (9) CFPN 1999.

10. A DECLARATION that all the alleged steps taken by the Defendants leading to the purported removal if the claimant as Deputy Governor of Imo State are NOT in compliance with the provisions of Section 188 CFRN 1999.

11. A DECLARATION that the purported removal of the Claimant as the Deputy Governor of Imo State by the 1st and 2nd Defendants is unconstitutional, null and void and of no effect whatsoever.

12. A DECLARATION that the Claimant is and still remains the Deputy Governor of Imo State and is entitled to all his salaries allowances, emoluments and other paraphernalia of office as Deputy Governor of Imo State.

13. AN ORDER setting aside all the alleged steps taken by the Defendants leading to the purported removal of the Claimant as the Deputy Governor of Imo State.

14. AN ORDER setting aside the 2nd Defendant’s purported removal of the Claimant from office as Deputy Governor of Imo State.

15. AN ORDER directing the 4th Defendant to pay or ensure the payment to the Claimant of his salaries, allowances, emoluments, and ensure restoration of all the Claimant’s paraphernalia of office as Deputy governor of Imo State.

16. AN ORDER OF PERPETUAL INJUNCTION restraining the 1st, 2nd and 4th Defendants whether by themselves or their servants, from interfering with stopping preventing or obstructing the Claimant from resuming and continuing in his elected office as the Deputy Governor of Imo State.

For the determination of the following Questions:

1. Whether by virtue of Section 188(2) Constitution of the Federal Republic of Nigeria 1999 (CFRN 1999), the Claimant is entitled to personal service of Notice of any Allegation of Gross Misconduct against him within seven days of receipt of such Notice by the 1st Defendant?

2. Whether the failure of the 1st Defendant to cause the document entitled “Petition Pursuant to S.188(1) 1999 Constitution (As Amended) Re: Gross Misconduct by the Person of Sir. Jude Agbaso, Deputy Governor of Imo State” dated 7th March, 2013 to be personally served on the Claimant within seven days from 7th March, 2013 when it was received by the 1st Defendant, does not vitiate the said document and all subsequent steps and proceedings arising thereform.

3. Whether the publication of the document entitled “Petition Pursuant to s.188(1) 1999 Constitutional (As Amended) Re: Gross Misconduct by the Person of Sir, Jude Agbaso, Deputy Governor of Imo State” dated 7th March 2013, in the Daily Sun Newspaper of Thursday, March 14, 2013 complies with the mandatory constitutional requirement for personal service of a Notice of Allegation of Gross Misconduct under Section 188(2) CFRN 1999?

4. Whether the petition entitled “Petition Pursuant to S.188(1)1999 Constitution (As Amended) Re: Gross Misconduct by the Person of Sir, Jude Agbaso, Deputy Governor of Imo State” dated 7th March, 2013 published at page 42 of the Daily sun Newspaper of Thursday March 14, 2013 is the same as the Notice of Allegation of any Gross Misconduct provided for under Section 188(2) CFRN 1999?

5. Whether the purported “Motion to do this investigation” passed by the 2nd Defendant on Wednesday, 13th March, 2013 that the purported allegation against the Claimant be investigated as contained in the 1st Defendant’s letter dated March 13, 2013 to the Hon. Chief Judge of Imo State, was validly passed when the purported “Petition” for the Impeachment of the claimant was only published on Thursday, 14th March, 2013, in the Daily Sun Newspaper in violation of Section 188(2) CFRN 1999?

6. Whether in view of the pendency of SUIT NO.HOW/178/2013, SIR. JUDE AGBASO VS. IMO STATE HOUSE OF ASSEMBLY & OTHERS, the purported removal of the Claimant on 28th March, 2013 is not a deliberate disrespect for Judicial process and Rule of Law and accordingly null and void?

7. Whether the inauguration/setting up of the Panel of Seven Person under the chairmanship of the 3rd Defendant to investigate the allegations against the claimant, by a Judge of the Imo State High Court, Hon. Justice Goddy Anunihu, instead of the appointer of the Panel, the Hon. Chief Judge of Imo State, was valid when a Judge of the High Court has no role whatsoever under Section 188 CFRN 1999 in the appointment and inauguration/setting up of the said Panel?

8. Whether the purported ‘Report’ hastily issued on 28th March, 2013 by the Panel of Seven Persons appointed to investigate the allegation under the chairmanship of the 3rd Defendant, after a single sitting and without notice to the claimant and without hearing the claimant in his defence does not offend the Rules of Natural Justice and accordingly unconstitutional, null and void?

9. Whether the alleged consideration and adoption by the 2nd Defendant of the said ‘Report’ on 28th March, 2013 after the Panel purportedly held its first and only session; the purported removal of the claimant from office thereupon and the submission, consideration and confirmation of the Governor’s nominee to replace the claimant, all on the same day, do not deprive the entire process of the elements of justice, fairness and legitimacy and thereby making them unjust, unfair” mala fide, prejudicial and in violation of the letters and spirit of Sections 36 and 188(6), (7), (8) and (9) CFRN 1999?

10. Whether the Claimant can be removed from office as Deputy Governor of Imo State without strict compliance with the provisions of section 188(1) – (9) of the 1999 Constitution?

11. Whether all the alleged steps taken by the Defendants leading to the purported removal of the claimant as Deputy Governor of Imo State are in compliance with the provisions of section 188 CFRN 1999?”

I think one should say in passing that the Appellant did not in his Originating Summons order his reliefs and questions for determination properly. He placed the Cart before the horse. It is always better and neater for a Claimant to seek for determination of questions the Claimant intend for answers from the Court. The Claimant will immediately, after the listed questions for determination seek the reliefs he wants which reliefs are always contingent upon the answers to all or any of the questions posed for determination of the Court.
See:
Order Rules 5, 6, 7 and 8 of the Imo State High (Court Civil Procedure) Rules 2008.
The Originating Summons was accompanied by 36 paragraphs Affidavit deposed to by the Appellant as follows:-

“AFFIDAVIT IN SUPPORT OF ORIGINATING SUMMONS

I, SIR, JUDE AGBASO, Male, Public Officer, Nigerian and Christian of Ezedibia Village, Emekuku, Owerri North Local Government Area, Imo State do solemnly make on Oath and states as follows:

1. I am the Claimant in these proceedings and the Deputy Governor of Imo State until 28th March, 2013 when the 2nd Defendant purported to have removed me from office, by virtue of which position I am familiar with the facts of this Suit. The facts deposed to in this Affidavit are within my personal knowledge as the Claimant save where otherwise stated.

2. The 1st Defendant is the Speaker of the Imo State House of Assembly, while the 2nd Defendant is the Imo State House of Assembly.

3. The 3rd Defendant is the Chairman of the Panel of 7 Persons appointed to investigate the purported allegations against me, sued for himself and as representing the members of the said Panel.

4. The 4th Defendant is the Chief Law Officer of Imo State and the custodian of public rights.

5. Sometime early in 2013, I became aware that the Governor of Imo State, Owelle Rochos Okorocha, was plotting to get me removed from office as Deputy Governor of Imo State as part of his plans to take me out of Government based on political calculations for upcoming 2015 Elections.

6. The 1st Defendant had also set up a committee which he called “Special Ad Hoc Committee to Investigate the Remote Cause(s) of Stoppage/Abandonment of Work on some Roads in Owerri, Orlu and
Okigwe Municipolities”.

7. One Mr. Joseph Dina, a Lebanese, Managing Director of one JPROS International Limited and a friend of the State Governor, Owelle Rochos Okorocha, was invited by the Committee.

8. JPROS International Limited is a State Government’s road contractor brought in by the Governor. Mr. Dina appeared before the Committee and alleged that I requested a bribe of N458 Million from him and sent two account numbers by SMS, which sum he paid. The alleged sum was allegedly paid from N1.15 Billion approved for him by the Governor and paid upfront as 100% payment for the contract.

9. On Sunday, 3rd March, 2013, I become aware that the Ad Hoc Committee’s work was part of a plot to remove me from office and informed the Governor, Owelle Rochas Okorocha, who denied the allegation and asked the 1st Defendant to summon the Committee members to his official residence by 7pm. The Governor, who presided over the session, encouraged the Legislators to continue with their investigation on road contracts and punish anybody found guilty. I did not know that everything had been arranged to remove me from office by any means.

10. I denied the allegation and protested that the allegation was trumped-up and requested the Committee to take time to trace the alleged bribe money being a colossal sum which could neither hide nor simply disappear. I informed the Committee that I would apply for my SMS and call logs from MTN to show that I did not send any SMS to the Lebanese friend of the Governor as he alleged. I immediately applied for the call logs for the relevant period through the Director of State Security Service (SSS) in Imo State.

11. The Committee did not heed my demand for this thorough and yet simple investigation but hastily submitted a ‘Report’ purportedly indicting me for corrupt enrichment by taking a bribe of N458 Million and recommended that a vote of no confidence be passed on me. This is the background of the saga which forms the subject-matter of another action, SUIT NO.HOW/174/2013, SIR, JUDE AGBASO V. HON. SIMEON IWUNZE & OTHERS, now before the Court of Appeal.

12. I further depose as follows:

(a) At pages 42 and 43 of the Daily Sun Newspaper of 14/3/2013, the 1st and 2nd Defendants published documents entitled “Petition pursuant to S.188(1) 1999 Constitution (as amended). Re: Gross misconduct by the person of Sir, Jude Agbaso, Deputy Governor of Imo State”; “Particulars of misconduct pursuant to Section 188(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended)”; and on affidavit sworn to the High Court Registry Owerri on 12/3/2013. The copies of the said publication are annexed and marked EXHIBITS “A” and “B”.
(b) I was never served with any of the documents contained in the aforesaid publication in the Daily Sun Newspaper of 14/3/2012.

(c) I was not served with any notice of any allegation of gross misconduct by the 1st and 2nd Defendants or by any other person.

(d) I was not given any opportunity to make any statement in reply to the allegations contained in the documents published at the said pages 42 and 43 of the Daily Sun Newspaper of 14/3/2013.

13. I was never served with a copy of the “Petition” dated 7th March, 2013 for whatever it was worth, being the purported initiating process for my purported removal.

14. The allegation that I could not be found is false as I continued to publicly address the news media and the Imo State public on my innocence of the trumped -up bribery allegation both in my office and of my official residence during the period.

15. I even undertook a building project inspection with the Governor which was a public event during which we rode together in his car and the Governor asked me to resign to enable him execute his political plans seamlessly. I however refused to resign on grounds that since the whole scheme is based on allegation of bribery, I would rather stay on and defend my integrity for my children’s and for posterity’s sake, even if removed from office doing that.

16. I further state as follows:

(a) On 13/3/2013, the 2nd Defendant purported to pass a Motion that I be investigated on what the 1st Defendant called article of misconduct. This was in relation to the “petition!’ if cased to be published on 14/3/2013 in the Daily Sun Newspaper.

(b) By letter dated 13/3/2013, the 1st Defendant wrote the Hon. Chief Judge of Imo State requesting His Lordship to constitute a Panel of seven persons to investigate allegations “contained in the article of misconduct attached to the Notice of impeachment”. Pursuant to this, the Hon. chief Judge appointed the 3rd Defendant and his members as the investigation panel. A copy of the said letter from the 1st Defendant to the Chief Judge of Imo State is annexed and marked Exhibit “C”.

17. On 11/3/2013, following my public explanation that I did not see, demand or accept any money from JPROS International Limited or from Mr. Joseph Dina and that it was a political set-up, the 2nd Defendant issued a Press Statement. A copy of the Press Statement is annexed hereto on marked EXHIBIT “D”.

18. Despite the pendency of SUIT NO. HOW/174/2013 SIR, JUDE AGBASO V – HON. SIMEON IWUNZE & OTHERS and the Order of the Owerri High Court that the Defendants therein should respect the pendency of that suit, Hon. Justice Goddy Anunihu, a Judge sitting at Oguta Judicial Division of the Imo State High Court, and who is not the Chief Judge of Imo State, purportedly inaugurated and sworn into office the Chairman and members of the Seven member investigative panel to investigate the allegations against me.

19. On 28/3/2013, the Panel purported to have its first sitting wherein it purported to have investigated the allegation and reached a conclusion and prepared a ‘Report’ which they submitted to the 2nd Defendant, all on the same day.

20. I was not heard in my defence by the Panel during the ‘investigation’ which fasted about a few minutes. No hearing notice was served on me by the said Panel. The Panel did not also take evidence from Mr. Joseph Dina, the Governor’s friend, who accused me of taking bribe from him. No hearing notice was served on me by the said panel and I was not given opportunity to cross-examine any witness that testified before the said Panel.

21. On 28/3/2013, the 2nd Defendant purporting to have received the ‘Report’ of the Panel, purported to have considered it and adopted it within minutes of receiving it. The 2nd Defendant also received the Governor’s nominee for my replacement and screened him and confirmed him, all on the same day.

22(a) I state that the contractor that made the allegation against me was brought in by the Governor, Owelle Rochas Okorocha and awarded contracts by the Governor in which he secured 100% upfront payment before mobilizing to site, and so he owes me nothing and I was in no position, as Commissioner for Works, to confer or deprive him of any benefit as his benefactor is the Governor.

(b) My investigation on the ownership of the Company JPROS revealed that Mr. Dina’s co-director is Prince MacDonald Akano, a special adviser to the Governor of Imo State and Chairman of the Committee for Monitoring and Implementation of Road Projects in Imo State. Copies of the Particulars of Directors and Statement of share capital of JPROS from the Corporate Affairs Commission are herewith annexed and marked EXHIBITS ‘E” and “F” respectively.

23. I engaged a team of independent financial crimes investigators to trace the alleged bribe money of N458 Million from the bank account of JPROS and it was found that the Lebanese, Mr. Joseph Dina transferred the first tranche of N325,000,000 to his bank account No.LB550014000002302300179018010 with Kaslik Branch of Brom Bank Sal, Lebanon; and the second tranche of N133,000,000 was equally transferred to his account No. AE 360200000036374395130 with HSBC Middle East Ltd. at Dubai Internet City, Sheik Zayed Road, Dubai. Copies of the documents evidencing these transactions are now shown to me and marked EXHIBITS “G” B and “H” respectively.

24. With the money allegedly received by me as bribe domiciled in the alleged giver’s two foreign accounts, I verily believe that there was no gross misconduct upon which the 2nd Defendant could proceed to remove me from office and for the 3rd Defendant and his Panel to investigate.

25. I know that there was no allegation of gross misconduct against me in the performance of the functions of my office and no real allegation of gross misconduct against me in the discharge of assigned duties. The allegation was an orchestrated political plot to damage me and my elder brother, Chief Martin Agbaso, politically ahead of 2015 and to remove me from office.

26. On 28/3/2013 when the 2nd Defendant purported to have removed me, there was pending in the High Count of Imo State SUIT NO.HOW/178/2013 SIR, JUDE AGBASO V. IMO STATE HOUSE OF ASSEMBLY & OTHER, challenging the procedure adopted by the 1st and 2nd Defendants in proceeding with my removal. A copy of the Originating Summons is annexed and marked EXHIBIT “1”.

27. The 1st and 2nd Defendants who were aware of the pendency of the said SUIT NO.HOW/178/2013 ignored the suit and proceeded with my purported removal and treated the Judicial Process with utter contempt with the aim to foist a fiat accompli on the Court.

28(a) I verily believe that the entire events of 28/3/2013 was biased, unlawful, illegal, unfair and prejudicial and all geared towards getting rid of me of all costs for political expediency rather than for any gross misconduct.
(b) The 2nd Defendants did not investigate the ownership of Three Brothers Concept Ltd. and IHSAN Bureau De Change (BDC) Ltd.
(c) I do not own shares in the aforesaid two (2) companies and I am not a director of the said Companies.

(d) I did not demand and I did not receive any bribe or gratification from Mr. Joseph Dina as alleged or at all.

29. I verily believe that it is in the interest of Justice to grant the Reliefs sought in the Originating Summons.

30. I depose to this Affidavit in good faith conscientiously and in accordance with the Oaths Law of Imo State.”

It is here relevant to state that the 1st – 3rd Defendants now 1st – 3rd Respondents filed Notice of Preliminary Objection against the Appellants Originating Summons which reads thus:

“NOTICE OF PRELIMINARY OBJECTION
TAKE NOTICE that the 1st – 3rd Defendants/Objectors shall raise preliminary objection at the hearing of this Suit and contend as follows that:

1. This Honourable Court lacks jurisdiction to entertain the suit.

2. The action of the applicant is incompetent and liable to be struck out or dismissed by this Honourable Court.

GROUNDS OF THE OBJECTION
(i) The main issue for determination in this Suit had been raised and determined by a Court of competent jurisdiction in Suit No.: HOW/174/13.

(ii) The claimant had filed an appeal against the ruling of the High Court in HOW/174/13.

(iii) The present Suit borders on impeachment of the claimant/respondent as Deputy Governor and same is not in any way or manner justiciable or actionable in a Court of Law.

(iv) This Honourable court lacks the power to stop the performance of legislative duties by the 1st and Defendants and an injunction will not lie against them.

(vi) Impeachment procedure is pre-eminently a parliamentary issue and an attain of the Legislature.

(v) The present suit is an abuse of process of this Honourable Court.

(vii) Issue of service of processes on a litigant is an issue of fact, which ordinarily takes away this suit out of the realm of the originating summons.”
(Pages 129 – 130 of record)
It was filed on 20th May, 2013 dated the same date.

The 4th Respondent also filed Notice of Preliminary objection against the said Appellant’s Originating Summons on 5th date of July, 2012. It was dated 24th day of June, 2013 and it reads:

“NOTICE OF PRELIMINARY OBJECTION BROUGHT UNDER THE INHERENT JURISDICTION OF THE HONOURABLE COURT

TAKE NOTICE that the 4th Defendant shall on Wednesday the 10th of July, 2013 at the hour of Nine O’ Clock in the forenoon or so soon thereafter as the Honourable Court may deem fit raise preliminary objection of the effect that this Honourable Court lacks jurisdiction to entertain this Suit.
And for such orders as the Honourable Court may deem fit to make in the circumstances.

FURTHER TAKE NOTICE that the ground upon which this application is brought are as follows:

(i) The subject matter of the Suit is not a matter within the jurisdiction of this Honourable Court pursuant to S.188(10) of the Constitution of the Federal Republic of Nigeria, 1999

(ii) The present Suit borders on impeachment of the Claimant/Respondent as Deputy Governor and is not actionable in a Court of Law.

(iii) The subject matter of the Suit is not a matter within the jurisdiction of this Honourable Court in that the main issue had been raised and determined by a Court of competent jurisdiction in Suit NO. HOW174/2013 and an constitutes an abuse of the process of Court.

(iii) The Suit is not appropriate for originating summons as the facts raised in the of the affidavit in support relating to non service of processes is contentious
(Pages 218 – 219 of the record).

It is also pertinent to mention that the 1st – 3rd Respondents filed Counter Affidavit of Forty-one (41) paragraphs against the Appellant’s originating Summons on 20th day of May 2013 sworn to by a Legal Practitioner CHRISTOPHER EMEKA – IZIMA Esq. (Pages 145 – 152 of the Record). The Appellant found it necessary to file a ten (10) paragraph further – AFFIDAVIT IN SUPPORT OF THE ORIGINATING SUMMONS in reaction to the 1st – 3rd Respondents’ Counter Affidavit. (Pages 178 & 179 of the record).

The 4th Respondent filed his own COUNTER AFFDAVIT IN OPPOSITION TO ORIGINATING SUMMONS on 5th day of July 2013 through the Litigation Officer in the Department of Civil Litigation, one ANTHONY MBADINUJU. The said Counter Affidavit has 46 paragraphs and the Appellant also found it expedient to file “FURTHER AFFIDAVIT NO. 2 IN SUPPORT OF ORIGINATING SUMMONS” through one of his Learned Counsel KALU ODUMA Esq. on 9th July, 2013 consisting five (5) paragraphs.

Written Addresses were filed by Parties for and against the Originating Summons and the Preliminary Objections filed. The two Notices Preliminary Objection filed by the 1st – 3rd Respondents and 4th Respondent respectively were compositely heard together on 29th day of July, 2013 by the Court below, the said Court having adjudged that matters touching his jurisdictional competence be taken first instead of hearing the Originating Summons along with the objections to Jurisdiction.
In a considered Ruling on 30th day of September 2013 on the two objections against the hearing of the Originating Summons Honourable Justice NONYE OKORONKWO (as he then was) said:

“So much interesting legal arguments were raised on this point and it appears to me that service of notice of allegation of gross misconduct as required by Section 188(1) CFRN is a basic postulates fundamental of the impeachment process.
Claimant alleges in paragraph 12(b) of the affidavit in support of his originating summons thus “I was not served with any notice of any allegation of gross misconduct by the 1st and/defendants or by any other person.
In response to this grave charge the 1st – 3rd respondents countered in paragraph 19 of their counter affidavit that several efforts were made to serve the claimant at his office and in his residence but that the claimant went into hiding to avoid service necessitating the publication in the newspapers “Exhibit A” and that besides “Exhibit A”, that the notice was pasted on the doors of the claimants office and residence thus giving the claimant the opportunity to respond to the allegations contained in the notice, which opportunity the claimant neglected the affidavit of 4th defendant was to the same effect.
Against the background of these two conflicting stories, whom do I believe whom do I disbelieve. Is it possible to accredit one version and discredit the other in the procedure by which this action is begun-Originating Summons.
Claimant says he was not served the Fons et Origo of the impeachment proceedings i. e. the notice of allegation of gross misconduct. The defendants countered that claimant was served in the manner deposed and that claimant neglected to offer a statement in reply. In Law, where there is conflicting affidavits on a material point the Court is enjoined to call evidence to resolve such conflict – See:
Falobi V. Falobi (1976) NMLR 169.
Gbadomoji V. Alete (1998) 12 NWLR (Pt. 578) 02.
Habib Nig. Bank V. Oyebanji (1998) 13 NWLR (Pt.580) 71.
Akujobi V. Ekenam (1999) 1 NWLR (Pt.585) 96.
FSB International Bank Ltd. V. Imano (Nig.) Ltd. (2000) 7 SC (Pt.1) 1.
Can the Court resolve this obvious conflict by an originating summons? I do not think so! In National Bank of Nigeria V. Alakija (1978) 2 LRN 78, it was restated that Originating Summons are not convenient for hostile proceedings where therefore the case of the claimant rest more on evidence which the Court must evaluate in order to resolve the issue in controversy, Originating Summons is not the appropriate procedure for initiating such action.
Originating Summons are used where questions of law rather than disputed issues of facts are involved. Where the issues centre on interpretation of document, or construction of written law, or instrument or Deed, Will, Contract or some other question of law. See Order 3 rule 5 Imo State High Court (Civil Procedure) Rules 2008. See also:
– Adesanya V. Babafemi 2000 FWLR (Pt.15) 2605
– Ezeigwe V. Nwalu (2010) 4 NWLR (Pt.1083) 151.
Nwoko V. Ekerele (2010) 4 NWLR (Pt.1183) 78.
This is the position of law and it draws from good sense.
What then, can be done in circumstance when an action commenced by Originating Summons involves disputed facts? The proper order in such circumstance is to order pleadings and not to dismiss such action or pronounce on the merit of the case.
See:
Osunbade V. Oyewunmi (2007) All FWLR 1004 at 1015.
Emezi V. Osuagwu (2005) 12 NWLR (Pt. 939) 340 at 349.
National Bank of Nig. V. Alakija (1978) 9/10 5C 59.

In the light of the above and guided by the beacons cited, I cannot pronounce on the merits of the case but order pleadings as follows:
Claimants shall have 30 days hence to file his Statement of Claim. Upon service on the defendants, the defendants shall have 30 days to each file Statement of defence (sic).
Every other step in the Suit shall be in accordance with the rules of Court relating to normal Writ of Summons.
NONYE OKORONKWO
JUDGE
30/9/2013″

Dissatisfied with the Ruling, the Appellant filed Notice and Grounds of Appeal dated 30th September, 2014 and filed on the 7th day of October, 2013, containing two grounds which without their particulars are as follows:

“GROUNDS OF APPEAL
GROUND ONE- ERROR OF LAW

The Lower Court erred in law in holding that Originating Summons is not the appropriate procedure for commencing the Suit filed by the Appellant to challenge his removal as Deputy Governor of Imo State, and consequently ordered pleadings in the Suit, and thereby came to a wrong decision.

GROUND TWO – ERROR OF LAW
The Lower Court erred in law in holding that there are conflicts in the Affidavit evidence filed by parties in the substantive Suit on mode of service of notice of allegation of gross misconduct by the 2nd Respondent on the Appellant, and thereby came to a wrong decision.

I must state that the Appellant was granted Leave by this Court to file one Additional Ground of Appeal. The some was filed on 15th November, 2013. It is dated same date. The said Additional Ground of Appeal without its particulars reads thus;

“ADDITIONAL GROUND OF APPEAL
GROUND THREE – ERROR OF LAW

The Lower Court erred in law when it failed to hear and determine the Appellant’s Claim on Originating Summons, but ordered pleadings on the misconception that there was a dispute as regards the mode of service of Notice of Allegation of Gross Misconduct, and thereby came to a wrong decision which has occasioned a grave miscarriage of Justice”.

When the appeal came up on 30th day of October, 2014, C. O. P. Emeka Esq. for the Appellant informed the Court that the record of appeal in this matter was compiled and transmitted outside the period stipulated by the Rules of this Court and that it was late by three days. The Learned Counsel for the Appellant therefore moved the application to regularise the entry of the appeal in this Court and the some was not opposed by Chief ADENIYI AKINTOLA SAN. This Court made order regularising the compilation and transmission of the record accordingly and directed that the parties shall refile their respective Briefs of Argument and the hearing of the appeal was fixed for 31st day of October, 2014.

On 31st day of October, 2014 for hearing, the Learned Counsel to the Appellant C. O. P. Emeko Esq. told this Court that he filed the Appellant’s Brief of Argument on 30/10/2014 and upon Receipt of the 1st – 4th Respondents’ Brief of Argument he also filed Appellant’s Reply Brief of Argument. The Learned Counsel to the Appellant adopted the said Briefs and relied on them as his arguments on the appeal. He urged this Court to allow the appeal and to invoke Section 15 of the Court of Appeal Act to deal with Appellant’s claim without ordering the Lower Court to determine the Originating Summons.
The Learned silk to the 1st, 2nd 3rd and 4th Respondents referred the Court to the 1st – 4th Respondents’ Brief of Argument dated 30th October, 2014 and filed on 30th October, 2014. The Learned Silk adopted and relied on the said Respondents Brief of Argument in urging this Court to dismiss the appeal of the Appellant.

The Appellant distilled two issues for determination of the appeal namely

1. Whether the Lower Court was right to convert the Originating summons in these proceedings to pleadings so as to require hearing witnesses (Grounds 1 and 2)

2. Whether this appeal does not present an appropriate occasion for the exercise of the general powers of the court of appeal under Section 15 of the court of Appeal Act to deal with appellant’s claim, and if it is, whether the appellant is entitled to judgment on the originating summons. (Ground 3)

The Respondents on their part formulated one issue and adopted the two issues distilled by the Appellants thus:

1. Whether this Honourable court has jurisdiction to hear and determine this appeal?

2. Whether the Lower Court was right to convert the originating summons in these proceedings to pleading so as to require hearing of witnesses?

3. Whether this appeal does not present an appropriate occasion for the exercise of the general powers of the court of appeal under section 15 of the count of Appeal Act to deal with Appellants claim, and if it is, whether the appellant is entitled to judgment on the Originating Summons?

In view of the fact that the Respondents are challenging the jurisdiction of this court to hear the Appellant’s appeal by issue 1 formulated by them and having adopted issues 1 and 2 distilled by the Appellant, I believe it will be neater and better to determine this appeal on the issue of jurisdiction raised by the Respondents and on the two issues formulated by the Appellant if the challenge to this Court’s jurisdiction by Respondents fails.

WHETHER THIS HONOURABLE COURT HAS JURISDICTION TO HEAR AND DETERMINE THIS APPEAL?

The Learned Senior Counsel to the Respondents Chief Adeniyi Akintola, SAN, opened his submission by stating that no Court in Nigeria has the competence and jurisdiction to hear and determine questions relating to the impeachment proceedings.
The Learned Silk referred this court to the provisions of Section 188(1) & (10) of the Constitution of the Federal Republic of Nigeria as amended which he said expressly ousts the jurisdiction of Courts of law on such related matter. That having regard to the crux of this appeal which Learned Senior Counsel stated “is the impeachment of the appellant as the Deputy Governor of Imo State” it is his submission that the case is not justiceable, the court’s jurisdiction having been ousted by the provisions of Section 188(10) of the said Constitution according to the Learned Senior Counsel. He relied on the cases of (1) ABARIBE VS SPEAKER (2000) 9 WRN 1 at 12 (2) ASOGWA Vs CHUKWU (2003) 17 WRN 71 at 99 – 100. That Courts do not have jurisdiction in impeachment matters. That the trite law is that a court must possess jurisdiction before embarking on hearing of a matter: Reliance was placed on the cases of ADAMS vs UMAR (2009) 21 WRN 81 at 123 and (2) EGHAREVBA Vs ERIBO (2010) 9 NWLR (PT.1199) 411
That the operative word in Section 188(10) of the Constitution is “SHALL’, which according to Learned Silk connoted mandatriness. He cited and relied on the case of OKOH vs THE NIGERIAN NAVY (2007) 25 WRN at 53 per ADEKEYE, JCA (later JSC) and OLAMLAN Vs OYEWOLE (2008) 8 WRN 86 at 92 per OGUNWUMIJU, JCA.

Attention of this court was drawn to reliefs on pages drawn to pages 1-6 of the record showing the reliefs on the Originating Summons and the Affidavit in support of the Originating summons, showing in the words of the Learned Silk that:

“…the subject matter of this appeal is impeachment, a subject matter which is clearly outside the jurisdiction of this honourable court, and indeed all the other courts.”

That in respect of the manner in which the claims of Appellant herein was couched or the categorisations given to those claims by the Appellant, a careful examination of the reliefs claimed by the Appellant, will reveal, according to Learned Senior Counsel that the subject matter of this appeal is mainly impeachment proceedings. This Court is urged to resolve issue of jurisdiction in Respondents’ favour.

In response to the challenge to the Court’s jurisdiction raised by the Respondents C.O.C. Emeko Esq for the Appellant submitted that the law is trite that any issue not covered by a ground of appeal ought to be struck out. That the issue of jurisdiction raised is not covered by any of the Appellants grounds of appeal and he relied on the following cases viz:

1. BALIOLL (NIG) LTD Vs NAVCOM (IG) LTD (2010) 16 NWLR (PT 1220) 619 c-d per OGBUAGU JSC.
2. APGA Vs UMEH (2011) 18 NWLR (PART 1250) 544 at 564 A-D per MAHMUD MOHAMMED JSC and
3. OGUNYADE Vs OSHUNKEYE (2007) 15 NWLR (PART 1057) 218 at 240 B-D per MUSDAPHER JSC (later CJN)
That the issue of jurisdiction raised by the Respondents is not the type envisages under the Court of Appeal Rules. That it is a substantive issue that ought to have come by way of a ground of appeal. He urged that it be struck out. The Learned Counsel to the Appellant made alternative submission on the merit concerning the issue of jurisdiction raised by the Respondents. C.O.P. Emeka Esq contended that the submissions of the Respondents on the issue ore misconceived.
That it is a misconception to push a blanket position that once removal of a public officer from office under Section 188 is mentioned subsection (10) must apply. That the decision in the ABARIBE VS SPEAKER which according to Learned Counsel, drew inspiration from the decision in ALHAJI ABDULKADIR BALARABE MUSA Vs AUTA HAMAZA (1983) 3 NCLR 229 of 247 no longer represents the law. That what he called judicial Revelation has improved and “jurisprudence shitted. That this court is credited with the honour of being the first to give a revolutionary but reasonable interpretation of the ‘Ouster Clouse’ in the case of ADELEKE vs. OYO STATE HOUSE OF ASSEMBLY (2007) 16 NWLR (PART 1006) 608 upheld in INAKOJU Vs ADELEKE (2007) 4 NWLR (PART 1025) 427 where Appellant’s Learned Counsel said the Supreme Court upheld the justiciability of a suit raising the unconstitutionality of a removal proceeding under Section 188. That the apex Court was firm that courts would entertain a Suit on Section 188 proceedings if the contention is that there was a breach of Constitution provisions. He relied on the case of EBEBI Vs SPEAKER BAYELSA HOUSE OF ASSEMBLY (2012) 5 NWLR (PART 1292) 1 at 58 C per EKO, JCA.
That it is only after a judicial scrutiny shows that a process complies with Constitutional provisions that the rest is conceded to politics. That the Courts would not sacrifice responsibility to uphold constitutional rights and constitutional provisions on the altar of politics. That according C.O.P Emeka Esq. would be too costly for the polity.
On whether the Lower Court and indeed this court can interfere with “legislative duties” of a House of Assembly, the Learned Counsel to the Appellant stated the plethora of authorities cited are clearly distinguishable from the facts of this case. That there is a duty to cite cases relating to relevant facts. He relied on the case of ADEGOKE MOJORS Vs ADESANYA (1989) 3 NWLR (PART 109) 250 at 265 and EASTERN BREWERIES PLC Vs INUES (2002) 3 NWLR (PART 650) 662 at 673 D-F.
That ASOGWA VS CHUKWU Supra dealt with issue of a speaker’s removal by Enugu State House of Assembly and that this Court still held that if it is shown that constitutional provisions are breached in such a situation the Court could still intervene. He also relied on the case of EKPENKHIO Vs EGBASON (1993) 7 NWLR (PT 308) 717 where according to Learned Appellant’s Counsel this court explained the basis for non-intervention in such purely internal politics. That the Lower Court and this Court have jurisdiction to strictly scrutinize the procedure adopted and decide if the requirements of Section 188(1) – (9) of 1999 Constitution were met. He urged this Court to hold that issue 1 raised by the Respondents is misconceived.

The Law is firmly established now that issues for determination both from the Appellant or a Respondent in an appeal must not be more than the grounds contained in the Notice and grounds of appeal. Any question for determination that does not arise or flow directly from the ground or grounds of appeal is a violation of the principle. An issue that is alien or strange to the grounds of appeal filed will attract the punishment of striking out for incompetence
1. REAR ADMIRAL FRANCIS ECHIE AGBITI V5. THE NIGERIAN NAVY (2011) 1 SCM 31 at 48A – D per ADEKEYE, JSC who said:
“Issues for determination in any appeal must flow from the grounds of appeal. They must project clearly and succinctly the substance of the complaint contained in the grounds of appeal. It is therefore wrong for an appellant or respondent to load many complaints in one issue for determination or create subsections under one issue. Issues for determination are meant to acquaint the Court with the grievances of the parties in the appeal and subsequently assist the Court in doing substantial justice in the determination of the issues. Where many grounds of appeal are compressed to form a single issue, they must relate, be clear and straight forward. However a respondent who did not cross-appeal has no valid reason to go outside the confines of the appellant’s ground of appeal to formulate the issue not directly related to the ground of appeal.”

2. SOCIETY BIC SA & ORS. VS. CHARZIN INDUSTRIES LIMITED (2014) 35 CM 208 at 228 A – D where NGWUTA, JSC said;
‘It is an established principle of law that the number of grounds of appeal should on no account be less than the issues for determination and framing two issues from one ground of appeal is a violation of the said principle. See Agu. V. Ikewibe (1991) 3 NWLR (Pt.180) 385. A ground of appeal should not be split to raise two issues. See also A – G Bendel State V. Aideyan (1989) 4 NWLR (Pt.118) 646: Ugo V. Obiekwe & Anor. (1989) 1 NWLR (Pt.99) 566; Adelaja V. Funoiki (1990) 2 NWLR (Pt.131) 137.

The two issues ought to have been ignored or struck out as incompetent as it is not the duty of the Court to make a choice for the appellant between the two issues allegedly framed from one ground of appeal. However, the respondent’s Counsel provided a life-line to the appellant when he argued that second of the two issues was framed not from ground 3 but from one of its particulars.

In other words, only the first of the two issues was raised from ground 3 but the second issue was distilled from one of the particulars therein. An issue for determination not related to or based on grounds of appeal is not only incompetent not related to or based on grounds of appeal is not only incompetent but completely valueless and must be ignored by the appellate court. See Omo v. JSC Delta State (2000) 7 SC (Pt.11) p.1″
3. BARRISTER OPKER JEV & ANOR. VS. SEKAN DZUA IYOTYOM & ORS (2014) 8 SCM 131 at 151 G – H where OKOPO JSC had this to say:
“The Law is no doubt settled that any issue or issues formulated for the determination of an appeal must be distilled from, or must arise or flow from a competent ground or grounds of appeal.”

It is a fact that the Respondents did not file a cross appeal in this matter. It is also correct to say that none of the three grounds of appeal filed by the appellant raises issue of Jurisdiction or incompetence of the Lower Court and this Court.
However where a Defendant to an action or a Respondent to an appeal conceives or perceives that he has a point of Law or Jurisdiction that can militate against the hearing of the action or on appeal he can raise it at anytime in the course of the proceedings especially where the appeal can thereby be brought to an abrupt end or terminated in limine.
See: (1) REAR ADMIRAL FRANCIS ECHIE AGBITI Vs. THE NIGERIAN NAVY (2011) 1 SCM 31 at 531 to 55 A – D per ADEKEYE, JSC who said:
“The Rules of procedure does not oppose arguing an interlocutory appeal in a substantive appeal against a final judgment. Where an appellant in his issues for determination raised questions of jurisdiction, they are undisputedly questions of law. An appellant can raise such issues afresh in an appellate court. Such questions are not only competent but are also expedient in the interest of justice for an appellate court to entertain the questions.
Adeyemi V. Opeyomi (1976) 9-10 SC 31.
Fadiora V. Gbadebo (1978) 3 SC 219.

2. HON. AHMED SALAWU OGEMBE VS. NURUDEEN ABATEMI & ORS. (2011) 12 (Pt.2) SCM 363 at 375 B – F per GALADIMA, JSC who said:

“The point raised in the 1st Respondent Notice of preliminary objection was clearly brought to the notice of the Appellant who responded and made a lengthy submission in his brief of argument. The Court below considered the objection and ruled on it. Clearly the point raised in the Notice without being swayed to unnecessary technicality was a point challenging the jurisdiction of the Court of Appeal to entertain an incompetent appeal of the appellant. Challenging the jurisdiction of the Court is a threshold issue. It is a warning signal to the Court that it was about to embark on a matter which it has no jurisdiction and could lead to a nullity. Because of its importance a point of jurisdiction can be raised at any time and even viva voce for the first time during argument. The court can suo motu raise it: Leventis v. Petro Jessica (supra). While the Court has a duty to give parties an opportunity to be heard on any issue it raises suo motu, a failure to do so does not lead to a reversal of the decision. The Appellant must go further to show that the failure to hear him on the point occasioned some miscarriage of justice: See: Olubode v. Salani (1985) 2 NWLR (Pt.7) 282; Imah v. Okogbe (1930) 9 NWLR (Pt.316) and Effiong v. Crosiec (2010) 14 NWLR (Pt.1213) 106 at 133, (2010) 7 SCM, 28.”
And quite recently the Supreme Court reiterated the firm position on jurisdiction in the case of BARRISTER ORKER JEV & ANOR. vs. SEKAVDZUA IYOTYOM & ORS. (2014) 8 SCM 131 at 151 E where my Lord, OKORO JSC succinctly put it thus:
“Let me quickly add here that a preliminary objection which borders on jurisdiction cannot be brushed aside by the Court but must be considered by the Court regardless of the manner in which it was raised. Such issue, I must say can be raised for the first time in this court with or without Leave. See Nnonyen v. Anyiechie (2015) ALL FWLR CPL 253, 604.”

One can confidently and conveniently say therefore that the procedure adopted by the Respondents in raising matter of jurisdiction in their Brief of Argument is well within the Law as it falls squarely within the unique exception of a matter touching the jurisdictional competence of the Court to hear the appeal herein.
This Court is bound to consider it. See B.A.S.F. NIGERIA LIMITED & ANOR. Vs. FAITH ENTERPRISES LTD. (2010) 1 SCM 41 at 52 D – E where COOMASSIE, JSC said:

“Before proceeding to consider the submissions of the Learned Counsel to the parties on the substantive matter as contained in their respective briefs of argument, it is pertinent in my view to consider an important issue of jurisdiction raised by the respondent herein. This is so because the issue of jurisdiction is so fundamental, and being a threshold issue it is imperative to have it determined first before proceeding to the substantive matter since lack of it would deprive this court the power to pronounce on the power to pronounce on the main issue.”

I have already laid out the reliefs and questions the Appellant is seeking at the Court below and the arguments of Learned Counsel to the parties on the all important issue of jurisdiction. I have no doubt in my mind that the Appellant wants the Court below to declare as null and void the impeachment proceedings culminating in his removal by the 1st – 3rd Respondents from office as the Deputy Governor of Imo State. It is on that note that the Respondents are now vehemently urging this Court not to entertain the Appellant’s Appeal bearing in mind the effect of Section 188(1) & (10) of the Constitution of Federal Republic of Nigeria 1999 as amended being on ouster clause.
Now, intimidating as the said ouster clause enacted into Section 188(1) & (10) of the 1999 Constitution may appear to be, can it be said that the Lower Court and indeed this Court are precluded from subjecting the various allegations made against the 1st – 3rd Respondents by the Appellant, to microscopic eyes the said Courts so as to discern if the procedures or steps contained in the provisions of Section 188(1) (9) of the said Constitution were scrupulously followed or observed?
I must say that in matters or questions pertaining to or bordering on Ouster Clauses a Court of Law and Justice will not play the Ostrich or become Lily-livered upon invocation or the enlistment of the Ouster Clause by a defending party as a way of shielding himself or to browbeat the Courts to hand off from determining whether the impeachment or removal proceedings were in order. Ouster Clauses cannot be treated as a very red hot iron just pulled out of burning Charcoal by a Blacksmith’s tong with trepidation to avoid being hurt or injured by it before using the glanville on it to mode the desired implements.
The Lower Court and this Court are endowed with jurisdiction to adjudicate upon any Suit or action complaining that a Panel set up pursuant to Section 188 of the 1999 Constitution and a House of Assembly violated the demands or constitutional procedures contained in the said Section. In other words a complaint that the Panel did not follow the nitty-gritty of the conditions precedent in the said Section 188(1) – (9) of the Constitution can be determined or entertained by the Court. The provisions of Section 188(1) – (9) are not designed to cover up or protect illegalities or irregularities committed by such Panel or a House of Assembly.
See: THE MISCELLANEOUS OFFENCES TRIBUNAL & ANOR. Vs. NWAMMIRI EKPE OKOROAFOR & ANOR. (2001) 18 NWLR (PART 7450) 295 at 328 D – 330 A – G per EJIWUNMI, JSC who said:
“It would therefore appear that whereas the Court would abide with an ouster provision of its jurisdiction, yet it would appear that before doing so, it reserves to it the right to consider whether the provisions of the ouster order were applicable in the circumstances. This point was made clearly in FCDA v. SULE (1994) 3 NWLR (Pt. 332) 257, when Adio JSC at page 285, observed that:-
“The provision in the Decree ousting the jurisdiction of the Courts does not authorise application of the provisions of the Decree to public officers in case in which the provisions are inapplicable or flagrant disregard of the salient provisions in cases in which the Decree is applicable.”
And at page 286, he further made this pertinent observation:
“There is a misconception that however careless those concerned with the administration or the application of the provisions of Decree No. 17 of 1984 to public officers at administrative level might be, the provision of the Decree ousting the jurisdiction of the courts could always be relied upon or invoked to cover up such carelessness or irregularities even in cases of misapplication of the provisions of the Decree to public officers in circumstances in which it was obvious that the provisions were not applicable. In Garba v. Federal Civil Service Commission & Anor. (1988) 1 NWLR (Pt.71) 449, this Court notwithstanding the ouster provision, in the Decree, held that the provisions of the Decree were not applicable in the case of the interdiction of a public officer.”
At page 353 B – E KARIBI – WHYTE JSC also said this to say:
“An ouster clause merely does not put the superior court to flight – See Doherty v. Balewa (1961) 2 NSCC 248: 2 SCNLR 256.

It has always been the law, notwithstanding the enactment of outer clauses, that where an error is alleged in the proceedings of an inferior court, it was always the duty of the superior court to which an application is brought to ascertain whether the error alleged was made out, and whether the inferior court was in fact exercising the powers conferred on it by statute- see Adeboye v. Ajala (1998) 1 NWLR (Pt.535) 631; Eguamwense v. Amaghizenwen (1993) 9 NWLR (Pt.315) 1.
This Court has held in NPA v. Panalpina World Transport (Nig.) Ltd. (1973) 5 SC 77, (1973) 8 NSCC 282, (1974) NMLR 82, that an Arbitration Board can only enjoy the right to finality where such rulings were validly made in accordance with powers specially vested in the Board. Since the Board exceeded its powers, such exercise of powers in excess of those granted it were not in the contemplation of the decree ousting the jurisdiction of the Courts.”

It is true that before a Court or as in this case the Respondents can enlist the disastrous consequence of ouster clause embedded in section 188(10) of the Constitution of the Federal Republic of Nigeria 1999 as
amended the conditions precedent therein must be shown to have been complied with. See the case of HON. MUYIWA INAKOJU & ORs V. HON. ABRAHAM ADEOLU ADELEKE & ORS (2007) 4 NWLR (PART 1025) 423 at 590 where NIKI TOBI JSC held as follows:
“It is good law that where the Constitution or a 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 of the journey, which is the terminus and in our context, that terminus is section 188 (10).”
Since the complaints of the Appellant are that the various subsections of Section 188 of the 1999 Constitution were not complied with by the 1st -3rd Respondents the Lower Court and this court can entertain an action, having to do with removal of a Governor or Deputy Governor by a Panel constituted in that behalf by Chief Judge of State. Whether the Appellant action herein will or will not succeed or will be ham strung by Section 188(10) is another matter entirely. I am therefore of the settled view that this court has jurisdiction to hear and pronounce on the appellant’s appeal herein. Issue raised by the Respondents challenging the jurisdiction of this court is hereby resolved against the Respondents and it is dismissed.

CONSIDERATION OF THE APPEAL ON THE MERIT
The Appeal will be determined on the two issues distilled for determination of the appeal by the Appellant the Respondents having adopted the said issues.

ISSUE 1
WHEHER THE LOWER COURT WAS RIGHT TO CONVERT THE ORIGINATING SUMMONS IN THESE PROCEEDINGS TO PLEADINGS SO AS TO REQUIRE HEARING OF WITNESSES? (GROUNDS 1 & 2)

The Learned Counsel to the Appellant C.O.P. Emeka referred to the Originating Summons filed on 30th April, 2013 to challenge his removal from office. That one of the grounds for challenging his removal was that he was not personally served with Notice of Allegation of Gross misconduct as required by law. That this formed questions 1 and 2 in the Originating Summons. He relied on paragraph 12 of the appellants Affidavit in support of his Originating Summons.
That the 1st -3rd Respondents joined issues with the Appellant on his assertion in their own paragraph 19(a) – (c) of their Counter Affidavit. That it is quite lengthy to be set out but that the deposition Constitutes admission that the Notice was indeed ”served” by publication not only in the Daily Sun but in other newspapers and was also posted on the Appellant’s entrance doors. That the person who made attempt to serve the Appellant personally deposed to an Affidavit that he could not serve personally.

That in their preliminary objection at the Court below the 1st-3rd Respondents hinged their issue 3 at Court below to:

“Whether or not the facts contained in the Claimant’s Affidavit in Support are not hostile and whether the claimant is not required to lead evidence while his reliefs are purely declaratory”

and that they went and offered a short argument on it. That the Lower Court Ruling held that there was no material difference between the grounds in the Counter Affidavit and grounds of Preliminary objection but still went ahead to Order pleadings after he had dwelt on the issue in the Originating Summons. The Appellant agreed he filed two Further Affidavits to deny that the 1st and 3rd Respondent posted any Notice on his entrance doors. That notwithstanding this, the real issue is based on interpretation of Section 188 of the 1999 Constitution and application of binding case law on issue of personal service. That the issue is what does the Law say about non-personal service?
It is the submission of the Appellant that the Court abdicated the proper role it should have played at that stage instead of the Court below going to unnecessary voyage of discovery of ordering filing of pleadings and calling of witnesses which in the view of the Appellant would not improve in the end the admitted fact that the Appellant was not served personally. That ordering of pleadings and examination of witnesses would only serve to afford the Respondents a much desired prolonged hearing so that Appellant’s tenure would have run out in the even that Appellant is successful at the Supreme Court. (sic).

The Appellant’s Learned Counsel submitted that Originating Summons may be employed in proceedings already well settled both by Rules of Court and by plethora of judicial decisions. That when the issue arising in a Claim is one of Construction of documents or enactments for declarations of rights Originating Summons could be employed. He relied on Order 3 Rules 5 and 6 of the High Court of Imo State at (Civil Procedure) Rules 2008 and the cases of OBASANYA Vs. BABAFEMI (2000) 15 NWLR (PART 689) 1, and EZEIGWE VS. NWANWULU (2010) 4 NWLR (Pt.1183) 151 at 216 B.
That authorities are converged that Originating Summons is a procedure which should be used where the facts are not in dispute or there is no likelihood of their being in dispute. He relied on INAKOJU V. ADELEKE (2007) 4 NWLR (PART 1025) 425. He submitted that given the state of Affidavits evidence of parties that there is a common ground agreed by the parties that the Appellant was not served personally, according to Learned Counsel, Emeka Esq. He relied on the case of BABALE VS. EZE (2011) 11 NWLR (PART 1257) 48 at 113F – 114A. That there are no material conflicts on the issue of mode of service of Notice of Allegation on the Appellant thus according to C. O. P. Emeka Esq. there was no justification for trial Court for the pleadings ordered. He urged the Court to resolve issue 1 in favour of the Appellant and to hold that the Lower Court was wrong to have converted the Originating Summons in these proceedings to pleadings as there are no material disputes on facts.
The issue under consideration was addressed under issue two formulated by the Respondents.
In their response to the Appellant’s submissions, Chief Adeniyi Akintola, SAN, for the said Respondents submitted that the Lower Court was right when it ordered that parties should file pleadings in order to resolve the conflicting facts obviously contained in the Affidavits in Support of the Originating Summons and the Counter Affidavits of the Respondents. The Learned silk drew particular attention to paragraphs 12, 13, 14, 15 and 16(a) of the Supporting Affidavit and paragraphs 19, 20, 21, 24 and 25 of the Counter Affidavit of the 1st -3rd Respondents. He also mentioned paragraphs 4(xii) (xiii) (xv)-(xvii) (xxxiii) & (xxxiv) of 4th Respondents Affidavit. The Learned silk stated that a combined reading of those Affidavits reveal major conflicts embedded in the facts deposed to therein by all the parties before the Lower Court. He relied on the findings of the Lower Court on pages 264 – 265 of the record to submit that the Ruling of the Trial Judge is impeccable and in line with plethora of authorities. Learned Senior Counsel relief on the cases of:
1. NWOKO vs. EKERETE (2010) 12 WRN 179 at 188 per AKAAHS JCA (as he then was).
2. AKIBU Vs. RACE AUTO SUPPLY LTD. (2000) 14 NWLR (PT. 686) 190 at 203.
3. RE DOHERTY, DOHERTY Vs. DOHERTY (1968) NWLR 144 per ADEMOLA, CJN.
4. NATIONAL BANK OF NIGERIA Vs. ALAKIJA (1978) 9 – 10 SC 59: (1978) 2 LRN 78 Per KAYODE ESO JSC.

The Learned Silk submitted that the Affidavit in Support of the Originating Summons leaves a lot to conjectures as to the Appellant’s whereabouts during the time material to this appeal. That this made it impossible to serve the Appellant the Notice of Allegation of Gross misconduct and impeachment processes by handing some over to him in person. The Learned Silk then went into discourse of what exactly is about the personal service that the Appellant had made a very heavy weather of? He relied on Section 188(2) of the 1999 constitution as amended as being very clear. That issue of “personal service” is not in any way mentioned in the above provision. That the wording of Section 188(2) of 1999 Constitution as amended should be given its ordinary meaning as it very clear. He relied on the following cases viz:
1. ANICA Vs. LADOJA (2001) 16 W.R.N. 111 at 132 per SALAIAI, JCA (later PCA).
2. A. G. ONDO STATE Vs. A. G. EKITI (2001) 50 W.R.N.I. at 36 per Kutigi, JSC and
3. BAMAIYI Vs. A. G. FEDERATION (2001) 38 W.R.N. 1 at 25 per KARIBI – WHYTE, JSC.
That the Appellant has no case at all. That the Appellant was properly served and urged this Court to so hold. The Learned Silk urged the Court to resolve issue 1 in favour of the 1st, 2nd, 3rd and 4th Respondents.
The Appellant in reply to the Respondents arguments filed Appellant’s reply as earlier stated C. O. P. Emeka Esq. for the Appellant submitted that the cases relied upon by the Respondents are clearly distinguishable from the present case because there were material points of conflicts found in the Affidavits. That the case of AGBAKOBA V. INEC (2008) 18 NWLR (PART 1119) 489 is relevant to the present case. He drew attention to pages 538 C – G and 539 E – A of the said case per CHUKWUMA – ENEH, JSC.
On personal Service the Learned Appellant’s Counsel stated that this Court firmly decided in BALONWU V. OBI Supra that a Notice of Allegation must be, served on a Public Officer personally for the procedure to be valid. The Learned Counsel urged this Count to set aside the removal and reinstate the Appellant to conclude his tenure.
The Learned Counsel to the appellant has been very tenacious his argument that there is no discernible conflicts in the Affidavit evidence before the Lower Court to warrant any need for trial on the pleadings.
It is however the belief of the Learned silk to the Respondents that what the Lower Court did in ordering that the parties should file pleadings is in consonance and consistent with the settled position of the law.
Now the High Court of Imo State (Civil Procedure) Rules 2008 Order 3 Rules 5, 6, and 7 thereof provide for the nature and applicability of Originating Summons as one of the modes or way by which an action can be commenced to vindicate a litigant’s right in the High Court of Imo State. The said Rules of Order 3 provide as follows:-

ORDER 3:

“RULE 5 Any person claiming to be interested under a deed, will enactment or other written instrument may apply by originating summons for the determination of any question of construction arising under the instrument and for a declaration of the rights of the person interested.

6. Any person claiming any legal or equitable right in a case where the determination of the question whether he is entitled to the right depends upon a question of construction of any enactment, may apply by originating summons for the determination of such question of construction and for a declaration as to the night claimed.

7. A Judge shall not be bound to determine any such question of construction if in his opinion it ought not to be determined on originating summons but may make any such orders as he deems fit.

“7. Any person claiming any legal or equitable right in a case where the determination of the question whether such a person is entitled to the right depends upon a question of construction of an enactment, may apply by Originating Summons for the determination of such question of construction and for a declaration as to the right claimed. ”

The above provision clearly states the type of actions that may be commenced by way of originating summons. Where the issue is that of construction of documents or interpretation of statutory provisions, it is safe and prudent to approach the Court by Originating Summons.”

(3) MRS. SUSAN OLAPEJU SIMISOLA OLLEY VS. HON. OLUKOLU GANIYU TUNJI & ORS. (2013) 10 NWLR (PART 1362) 275.

I have in the course of this judgment reproduced the Affidavit in Support of the Originating Summons and made reference to the Counter Affidavits of the 1st – 3rd Respondents and that of the 4th Respondent. I also referred hereinbefore to the two further Affidavits filed by the Appellant in reaction to the Counter Affidavits of the said Respondents.
The major events which the Appellant stated was orchestrated against him by the Respondents in order to get him out of the way or have him removed from office of Deputy Governor are among other that:

(a) He was wrongly accused before a special Ad hoc Committee set up by 1st Respondent to investigate Remote causes (s) of Stoppage/Abandonment of work on some Roads in Owerri, Orlu and Okigwe Municipalities by the Managing Director of Lebanese Company handling the Road projects that he as the Deputy Governor of Imo State requested for a bribe of N458 Million which the contractor claimed he paid into Appellant Account.

(b) That the committee hastily submitted a Report purportedly indicting him for corrupt enrichment by taking a bribe of N458 Million.

(c) That the next thing he saw was advertisement of Notice of commencement of impeachment proceedings against him published or advertised in the sun Newspapers of 14/3/2013.

(d) That he was NEVER personally served with the purported impeachment proceedings.

(e) That an impeachment Panel was purportedly constituted against him.

(f) The said Panel which is the 3rd Respondent met in the Appellant absence and purportedly found him guilty on 28/3/2013 and the House of Assembly of Imo State also purportedly met and accepted the purported findings of impeachment panel and on that same date purportedly removed him from office.

(g) That on the same 28/3/2013 the 2nd Respondent also purportedly interviewed and approved the appointment of a New Deputy Governor.

(h) The appellant was vocal in his Affidavit that he did not commit the allegations leveled against him.
See paragraphs 6-26 of the Affidavit in support of the Originating Summons.
The 1st – 3rd Respondents in their Counter Affidavit paragraphs 19-24 thereof stated as follows:

“19. That with reference to paragraph 12 of the affidavit in support, I state as follows:

(a) That the “Notice of Commencement of impeachment process” and particulars of misconduct pursuant to Section 188(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended)” were published at almost all the daily newspapers and I was informed by the 1st Defendant and I verily believed him that several efforts were made both at the deputy governor’s office and his official residence to serve him with those notices by handing them personally to him but he went into hiding in order to evade being served personally with the notices. Exhibit A attached to the affidavit of the Claimant shows the affidavit of Mrs Chinyere Emeghara the sergeant at Arms in the Imo State House of Assembly who went in the company of the clerk of the House to effect service of those notices personally on the Claimant.

(b) That the 2nd Defendant informed me through the 1st Defendant whom I verily believed that beyond publishing the notices stated above in the daily newspapers, copies of the notices were also posted on the entrance doors of the office of the claimant and his official residence in other to provide him with opportunity to be heard on the notices and/or petition against him.

(c) through the ones pasted at his doors or the ones published at the newspapers, the Claimant refused and/or neglected to make any statement in reply to the allegations contained therein.

20. With reference to Paragraphs 13, 14 & 15 of the affidavit in support, from the 7th March, 2013 till the 28th March, 2013 the Claimant never visited either his office or official residence at all, obviously to avoid being served the notices and other impeachment Processes personally hence the 1st and 2nd Defendants served him through posting and newspaper publications.

21. That even when he was expected to come before the commissioner for oath to depose to his affidavit in support of his application for enforcement of his fundamental rights in Suit No.HOW/174/2013 he never came to the Court Registry and this fact formed the processed of Suit No. HOW/174/2013.

22. That I know as a fact that further to the above, Hon. Justice Goddy Anunihu who inaugurated the investigative panel was duly directed to so do by the Chief Judge of Imo State who was outside the state as of that time but had constituted the panel personally anyway.

23. That I know as a lawyer that the inauguration of the investigative panel is not a requirement of impeachment process but rather a mere innovation.

24. That with reference to paragraph 20 of the supporting affidavit, the hearing notice was duly served on the Claimant and he was afforded an opportunity to be heard by the investigative panel and was in fact represented by a counsel who only came to drop a letter on behalf of the claimant seeking a suspension of the sitting of the panel on the ground that he had a suit pending in court even when the said suit had been dismissed.”

The counter Affidavit of the 4th Respondent paragraph 4(vi) – 4(xiv) are in tandem with that of 1st – 3rd Respondents.
The Appellant further formed issues with the said Respondents in two separate further affidavit in support of Originating Summons.
The said Affidavits are all very involved, extensive and violently in conflict on material issues especially on whether the Appellant was properly served in accordance with the provisions of Section 188(2) of the 1999. Constitution which is one of the Central issues in the Appellant’s Originating Summons.

The Law has been firmly settled in plethora of authorities that where a matter is being tried on Affidavit evidence and the Court is faced or confronted with conflicting Affidavits evidence relied on by the parties on material issue before the Court, the resolution of such conflicts on the Affidavits of the parties cannot be done by evaluation of the conflicting evidence or the conflicting Affidavit without oral evidence taken from the parties by the Court in order to resolve the irreconcilable conflicts in the Affidavit evidence.
See (1) FALOBI Vs. FALOBI (1976) 9 – 10 SC 1 at 13-14
per FATAYI – WILLIAMS JSC (later CJN) where it was held that it is expedient to hear oral evidence from witnesses and deponents to resolve the conflicts.
(2) BARR. ORKER JEV & ANOR. Vs. SEKAV DZUA IYOTYOM & ORS (2014) 8 SCM 131 at 157 I – B per OKORO, JSC who said:
“The general principal of law regarding conflict in affidavit in an Originating Summons procedure is that where this is the case the Court should order for pleadings in order for the parties to lead evidence to resolve such conflicts. However, where there are documents annexed to the affidavit of the parties which can be effectively used to resolve the seemingly conflicts, there would be no need to order for pleading as this is exactly what the Learned Trial Judge did which was affirmed by the Court of Appeal. See Nwosu v. Imo State Environmental Sanitation Authority (1990) 2 NWLR (Pt.135) 688; Kimday v. Military Governor of Gongola State (1988) 5 SCNJ 28 at 56; Fashanu v. Adekoya (1974) 1 All NLR (Pt.1) 35 at 91 – 92.”
(Underlined nine)
See: HON. OGBONNA ASOGWA Vs. PEOPLES DEMOCRATIC PARTY & ORS. 2013 7 NWLR (PART 1353) 207 at 258 C – H to 259 A where NGWUTA JSC lucidly said:

“116 when there are before a court Affidavits that are irreconcilably in conflict on crucial facts, the court shall for the purpose of resolving the conflict arising from the affidavit evidence ask the parties to proffer oral evidence as to such facts, and shall hear any such oral evidence of the deponents of the deponents of the affidavits and such other witnesses as may be called by the parties.”

There is also no doubt in my mind that the Learned Trial Judge is endowed or imbued with a near absolute discretion to order pleadings under Order 3 Rule 7 of the High Court of Imo State (Civil Procedure) Rules 2008 to make any such orders he deems fit, if in his opinion any such question of construction ought not to be determined on Originating Summons.
I am of the firm view that the Learned Trial Judge did not abdicate his role as an impartial arbiter. The order directing that pleadings be filed thereby converting the Originating Summons to trial conducted on Writ of Summons and pleading cannot be faulted having regard to the whole gamut of Affidavit evidence from the parties which no doubt raised disputes of facts that are substantial, material and which disputes on facts affect the live issues in the action. It does not matter that the subject matter of the action is time bound. Once it is clear and shown as in this appeal that the action cannot be divorced from hostile proceedings, then the appropriate method which is vide Writ of Summons must be adopted by the Claimant or Plaintiff. See:
(1) HON. OGBONNA ASOGWA V. PEOPLES DEMOCRATIC PARTY & ORS 2013 7 NWLR (PART 1353) 207 at 258 F- H to 259 A – B. Where NGWUTA JSC said:

“Originating Summons with its simplicity, resulting from the elimination of pleadings, cannot be resorted to in proceedings potentially hostile even in matters where it is claimed that time is of the essence. N.B.N. v. Alakija (1978) 9- 10 SC 59 at 71; University of Lagos v. Aigoro (1991)3 NWLR (Pt.179) 376.

Originating summons may be employed in situations falling within the provisions of order 3 Rules 6, 7 and 8 of the Federal High Court (Civil Procedure) Rules. Rule 8 provides:
“A Judge shall not be bound to determine any such question of construction if in the judge’s opinion it ought not to be determined on originating summons but may make such orders as the Judge deems fit.”
The rule vests the Trial judge with discretion against the exercise of which the appellant cannot appeal unless he can show that the discretion was not exercised judiciously and judicially, which is not the case in this appeal. The rule relates to “such question of construction” which has been demonstrated not to be the case in this appeal. There are provisions in the rules of court to accommodate urgent matters. Parties and their counsel should exploit these provisions instead of rushing to court without compliance with the appropriate provision for commencement of a particular action on the pretext that the matter is time bound.”

(2) MRS. SUSAN OLAPEJU SIMISOLA VS. HON. OLUKOLU GANIYU TUNJI & ORS. (2013) 10 NWLR (PART 1362) 275 at 323 D – F per NGWUTA JSC who said thus:
“There appears to be a way of new trend in the application by originating summons in our electoral jurisprudence, often sought to be justified on the ground that time is of the essence in electoral matters. In electoral matters, the stakes are high, so high that in cases of disputed nomination or actual election, the parties can hardly agree on such innocuous issues of facts as the time of day or day of the week. In such cases as the one before us, the Plaintiff discovers belatedly to his dismay that his short course has suddenly became the longest route. Issue 2 is also resolved against the 1st Respondent in favour of the appellant.
Having resolved the two threshold issues against the 1st Respondent as Plaintiff, I declare that the 1st Originating Summons was dead on arrival. On the facts presented before us. 1st Respondent cannot resort to Originating Summons to seek redress pursuant to Section 87(9) of the Electoral Act, 2010 (as amended). The Lower Courts should have converted the process to a Writ of Summons for the parties to file and pleadings.”

One does not need the services of a soothsayer or a stargazer to discover or find out about the fact that the Appellant’s Suit/Action falls squarely within the circle of highly hostile proceedings far outside the circumference of Originating Summons actions or Suits meant for Originating Summons.
The Learned Trial Judge was right in converting the Originating Summons in these proceedings to trial on pleadings as if the action was commenced vide Writ of Summons.
Issue 1 is therefore resolved against the Appellant.

ISSUE NO. 2
WHETHER THIS APPEAL DOES NOT PRESENT AN APPROPRIATE OCCASION FOR THE EXERCISE OF THE GENERAL POWERS OF THE COURT OF APPEAL UNDER SECTION 15 OF THE COURT OF APPEAL ACT TO DEAL WITH APPELLANT’S CLAIM, AND IF IT IS, WHETHER THE APPELLANT IS ENTITLED TO JUDGMENT ON ORIGINATING SUMMONS.

The Learned Counsel to the Appellant referred to the sixteen (16) reliefs he seeks from the Court below and once again the Appellant traced the facts leading to this appeal and the Preliminary Objections filed and already argued. The Learned Counsel to the Appellant then argued the Merit of the Originating Summons from pages 8 – 18 paragraph 4.75 thereof before arguing issue 2 actually raised for determination with regard to Ground 3 of the Appeal.
The Learned Counsel to the Appellant C. O. P. Emeka Esq. submitted in paragraph 4.76 of the Appellant’s brief as follows:

“4.76 ordinarily, the court of Appeal ought to simply reinstate the originating summons for hearing on the merits if our contention in issue no.1 is upheld. However, the court of Appeal has wide powers, when appropriate occasions present themselves, to proceed on its General Powers to do what the High court should have done in a cause before the High court, which the High Court failed to do.”

I have already resolved 1 against the Appellant. I do not consider it necessary on expedient to go into the merit or demerit of whether or not this is a proper case for this Court to invoke or enlist Section 15 of the Court of Appeal Act to assume the role of the Lower Court to hear the Appellant’s Originating Summons on the merit. It will be a stupendous waste of time in academic exercise.

The Appellant has no reason or justification to avoid the order made by the Lower Court treating the case as if it has been commenced by Writ of Summons in ordering pleadings to be filed by the parties in accordance with the Imo State High Court (Civil Procedure) Rules 2008. The real essence of a trial is to allow all parties in this appeal to present facts they may have at their disposal before the Trial Court to enable the Court reach a just and fair determination of the Suit.
This appeal, I must say, has engendered another wakeup call and strong admonition to litigants as well as their Learned Counsel who believe that every Interlocutory Ruling or decision made by a Court should be appealed to the Court of Appeal all of the time leaving the substantive action or matter lying fallow at the High Court for months and years which more often than not is an ill wind that blows no one any good but a clog or obstacle in the wheel Progress in such matter especially where the matter is decided against the Appellant in the appeal.
An interlocutory order of a Learned Trial Judge could be appealed against at the end of trial against the Final Judgment if the matter goes against the party. The appeal could conveniently be taken in an appeal against a Final Judgment.
The time and energy expended or dissipated over a harmless and innocuous order made at the discretion of the Lower Court in consonance with the Rules of the Court, would have been amply and fruitfully utilized in hearing and determination of the action herein within a reasonable time in accordance with Section 36(1) of the 1999 Constitution as amended or altered.
Nearness to court of Appeal is not a passport to an appeal against every order made by a Court at interlocutory stage except in exceptional circumstances. I will refer with gratitude the admonition of Supreme Court in the case of:
CHIEF S. B. BAKARE VS. AFRICAN CONTINENTAL BANK LIMITED (1986) 3 NWLR (PART 26) 47 at 59 B – F where ANIAGOLU JSC in his imperishable words said:
“Although I have already stated at the beginning of this judgment that the issue involved in this appeal is profound and therefore the bringing of the appeal is justified, yet it is desirable that I take this opportunity to call attention to the habit of some litigants, in Lagos especially, of rushing to the court of Appeal and hence to this Court to test and challenge the ruling of the High Court on the smallest issues which arise in the course of the trial of cases. Many a time this entails the suspension of the trial by the Judge and an adjournment of the case sine die. Sometimes, many years go by before the conclusion of the appeal proceedings – a fact contributing to the much discussed delay of cases in our Courts.
One, of course, would not say that in appropriate cases such appeals should not be undertaken, but this must be limited to serious matters (such as the instant appeal involving a claim of over four million naira) in which the issue in contention has d serious bearing on the course of the trial or on the outcome of the proceedings. It should not be embarked upon on trifling legal issues which can be taken up generally with the substantive appeal at the conclusion of hearing. The nearness of the Supreme Court to the High Court in Lagos cannot but be one of the reasons why litigants find it convenient to go to the Supreme Court on such trifling issues.
It is to be hoped that parties would not contribute to the delays in hearing of cases in our courts by unnecessary application for adjournment of cases for them to test on appeal trivial issues which could easily wait for the conclusion of trial and taken up with the main appeal to the Supreme Court. Not to heed this is to add to the congestion of cases in our Courts and to bring about the “chaotic state of affairs” mentioned by Edmund Davies, L. J., in Seldon v. Davidson (supra). The High Court and the Court of Appeal should lean against granting adjournments, or granting leave for interlocutory appeals, in such trivial matters.
The time, energy and expense involved in such appeals cannot be justified merely by the Lawyer’s academic satisfaction that a legal principle, no matter how trivial, has been established or that a trifling legal issue has been resolved.
Lawyers may enjoy the splitting of hairs on obtuse legal points but that extravagant exercise has the result of weighing heavily on the pockets of litigants and unnecessarily exhausting the energies of the Appeal Courts. ”
This Interlocutory appeal has left the domain of the Imo State High Court to this Court since 7th day of October, 2013 when the appeal was initiated. It is now one year and one and a half months thereafter yet the appellant must go back to the State High Court for a trial de novo. The Appellant has not given any plausible or cogent reason to warrant the upturning of the Lower Court’s decision.
I am of the view that exhibition of wisdom displayed by the Learned Trial Judge in ordering pleadings in this action should not be disturbed. That is the prudent thing to do in the circumstance. The parties to this
appeal shall therefore go back to the Imo State High Court to comply with the order of that court as made by NONYE OKORONKWO J, (as he then was), so that the matter can proceed in earnest for adjudication by the said High Court.
In the result the Appellant’s appeal lacks merit and it is hereby dismissed. The order/Decision of the Lower Court contained in the Ruling delivered by NONYE OKORONKWO J, on 30th day of September, 2013 is hereby confirmed.
Parties shall bear their respective costs.

ITA G. MBABA, J.C.A.: I had the advantage of reading the draft of the read judgment by my learned brother, P. O. IGE JCA, just delivered and I agree with his reasoning and conclusions, completely and adopt the same as mine, on the preliminary objection and on the main appeal.
I have to add that this interlocutory appeal, in my opinion, was absolutely unnecessary, except to frustrate the trial of the main case at the Lower Court. The Ruling on 30/9/13 had directed the parties to file pleadings, for the trial to be done on pleadings so as to resolve the conflicts posed by the opposing affidavits, thus, showing that the suit was not one to be commenced and taught by originating summons. I wonder what Appellant stood to lose in complying with that order, to file pleadings, and get his case heard on the merits, promptly!
We have stated, several times, that parties and their counsel should learn to exercise patience, and resist the temptation of rushing to Appeal courts, over premature interlocutory appeals, if the appeal will not be defeated if taken at the final determination of the substantive case (if still necessary). This is to avoid stalling the hearing of the substantive suit with the consequent waste of time and resources, as in this case, with no tangible profit accruing to even the Appellant. See the case of National Judicial Council vs Hon. Justice P. N. C. Agumagu & Ors: CA/A/361/2014 an unreported decision of this Court delivered on 6/11/14, where we said:

This court has always deprecated that act by Counsel of using interlocutory appeals to frustrate the hearing and determination of substantive matters and I think this is one of the reasons that practice Direction, 2013, came to being”.

See also the case of Nwana vs UBN Plc (2013) LPELR – 21823 CA, where it was said:
“… I think Counsel who are advising aggrieved by interlocutory decisions of Court should, themselves, be advised against subjecting their clients to avoidable hazards, suffering and spending, which premature appeals entail. Sometimes, a little patient and tact on the part of counsel would suggest lying low, and marking down what would have been a point of interlocutory appeal, and opting to take it up at the end of the trial, if the final verdict becomes unfavourable, that is where the issue for the interlocutory appeal would not cease to be live issue in the final judgment of the trial court…”
See also the wise admonition of Aniagolu JSC in Bakare vs. ACB Ltd. (1986) 3 NWLR (Pt.26) 4 at 59, reproduced in the lead judgment.
Of course, by the new Practice Direction, which came into effect sometime in 2013, interlocutory appeals, challenging the rulings of the Court below, on interlocutory applications, fall within matters targeted by the Practice Direction It is meant to eliminate unnecessary delays or frustration in the hearing of cases and appeals. See paragraphs 1 (ii), 2 (c) (i), (ii), (viii), 3 (a) (ii) of the Practice Direction.
Sadly, this interlocutory appeal was only heard in this Court on 31/10/14, after about a year of frustration of the actual matter which Appellant wanted to be resolved at the Court below, and the parties are now going back there to start from where they stopped in Sept. 2013! All that could have been avoided by wise counsel and patience!
I too dismiss the appeal. I abide by the consequential orders in the lead judgment.

FREDERICK O. OHO, J.C.A.: I have had the privilege of reading in draft the judgment of my learned Brother PETER O. IGE, JCA just delivered and agree with his reasoning and conclusions therein in dismissing the Appeal. In the first of the issues raised for the determination of this appeal by the appellant, the mode of commencement of this suit and the appropriateness of determining it by way of Originating Summons is the issue central to the determination of this appeal. In dramatizing the dilemma in which the trial court found itself before ordering the filing of statement of claim, the learned trial court said;
“…Against the background of these two conflicting stories, whom do I believe whom do I disbelieve. Is it possible to, accredit one version and discredit the other in the procedure by which this action is begun- originating summons. Claimant says he was not served the fons et origo of the impeachment proceedings i.e., the notice of allegation of gross misconduct. The defendants countered that claimant neglected to offer a statement in reply. In law, where there is conflicting affidavits on a material point the court is enjoined to call evidence to resolve such conflict. See FALOBI vs. FALOBI (1976) NMLR 169; GBADOMOJI Vs. ALETE (1998) 12 NWLR (PT.578) 02; HABIB NIG. BANK VS. OYEBANJI (1998) 13 NWLR (PT.580) 71; AKUJOBI vs. EKANEM (1999) 1 NWLR (PT.585) 96; FSB INTERNATIONAL BANK LTD. vs. IMANO NIG. LTD. (2000) 7 SC (Pt.1) 1. Can the court resolve this obvious conflict by an originating summons? I do not think so. In NATIONAL BANK OF NIGERIA VS. ALAKIJA (1978) 2 LRN 78, it was restated that originating summons are not convenient for hostile proceedings where therefore the case of the claimant rests more on evidence which the court must evaluate in order to resolve the issue in controversy. Originating Summons is not the appropriate procedure for initiating such action…”
As a result of the foregoing, the learned trial court drawing from the wisdom in decided cases on the subject went ahead and ordered the filing of pleadings by the parties. I must at this stage agree with the learned judge that the Originating Summons procedure is not meant for the resolution of disputes where there are serious contentions about issues of fact, such as has been displayed in this matter but rather, where the issues in dispute are straight forward especially where they relate to the construction of statute or document or some other question of law or where there is unlikely to be any substantial disputes of facts. See ADEDIPE VS. THEOPHILUS (2005) 16 NWLR (Pt.951) 250; FAGBOLA VS. TITILAYO PLASTIC LTD. (2005) 2 NWLR (PT.909) 1; and a host of other decisions on the subject.
It is apparent from the conflicting affidavit evidence in the Originating Summons procedure by which this action had been commenced, that the Lower Court rightly conscious of the position cannot proceed in the matter without ordering the filing of pleadings and calling on the parties to lead evidence in order to resolve their differences. Consequently, this action, having at that stage be found to contain elements which are found to be irrevocably at conflict ought not to continue as commenced by originating summons, but be properly converted to one requiring the filing of pleadings as the learned trial court had done in this case. See the case of BARR. OKER JEV. & ANOR VS. SEKAV DZUA IYOTYOM & ORS (2014) 8 SCM 131 AT 157.
In the final analysis, the learned trial Judge, having found the matter to be one beset by conflicting affidavit evidence cannot be faulted for converting the Originating Summons proceedings by which the action was commenced into one requiring a trial by pleadings and I so hold. In the circumstances, I will also dismiss this Appeal.

Appearances

C. O. P. Emeka Esq. with him K. I. Uduma Esq. For Appellant

AND

Chief Adeniyi Akintola SAN with him C. O. C. Emeka – Izima for the Esq. For Respondent