CHIEF ENYI ABARIBE V. THE SPEAKER, ABIA STATE HOUSE OF ASSEMBLY & ANOR(2000)

CHIEF ENYI ABARIBE V. THE SPEAKER, ABIA STATE HOUSE OF ASSEMBLY & ANOR

(2000)LCN/0783(CA)

In The Court of Appeal of Nigeria

On Saturday, the 6th day of May, 2000

CA/PH/83M/2000

JUSTICES

IGNATIUS CHUKWUDI PATS-ACHOLONU Justice of The Court of Appeal of Nigeria

MICHAEL EYARUOMA AKPIROROH Justice of The Court of Appeal of Nigeria

ABOYI JOHN IKONGBEH Justice of The Court of Appeal of Nigeria

Between

CHIEF ENYI ABARIBE Appellant(s)

AND

THE SPEAKER, ABIA STATE HOUSE OF ASSEMBLY
2. ABIA STATE HOUSE OF ASSEMBLY Respondent(s)

RATIO

THE POSITION OF THE LAW ON THE CONSTITUTION

In trying to interprete the words of the Constitution, I am of the view that it should be understood that a constitution is not a mere common legal document. It is essentially a document relating to and regulating the affairs of the nation state and stating the functions and powers of the different apparati of the Government as well as regulating the relationship between the citizen and the state. It equally makes provisions for the Rights of the citizen within the compass of the state. In so far as it concerns the issue of impeachment it is a political matter. However, the court at the same time may not close its eyes to serious injustice relating to the manner the impeachment procedure is being carried. That is to say it is within the province of the court to ensure strict adherent to the spirit of the Constitution for the endurance of a democratic regime. The court should not however attempt to assume for itself power it is never given by the Constitution to brazenly enter into the miasma of the political cauldron and have itself bloodied and thereby losing respect in its quest to play the legendary Don Quixote de la Manche. In its bid to embark on impeachment procedure, it is expected that the House of Assembly should not ride a rough shod of the prescription of the law. Beyond exercising its judicial powers as conferred on it by the Constitution to ensure the equilibrium in the distribution of functions of the organs of the government, the court should exercise utmost caution in invading the area that is prohibited by the Constitution. I cannot but quote here in extenso the ringing words of Adenekan Ademola, JCA when he said in the case of Alhaji Abdulkadir Balarabe Musa v. Auta Hamza (1983) 3 NCLR p.229 at 247.
“Finally, at a time like this let us remember the words of that great intellectual from the famous Harvard Law School who once sat as a member of the Supreme Court of America in a case which aroused much political emotion like this has done. Felix Frankfurter said in Baker v. Carr (1962) 369 US 186 thus:
“The court’s authority possessed neither of the purse nor the sword ultimately rests on sustained public confidence in its moral sanction. Such feeling must be nourished by the court’s complete detachment, in fact and in appearance, from political settlements.” PER PATS-ACHOLONU, J.C.A.

PATS-ACHOLONU, J.C.A. (Delivering the Leading Judgment): The appellant had applied to the High Court for leave to apply for enforcement of his rights (which he states were infringed upon) under the Fundamental Rights (Enforcement Procedure) Rules, and he sought the following reliefs:
“1. A declaration that the proceedings of the Abia State House of Assembly on Tuesday the 8th day of February, 2000 purporting to vote on whether or not to investigate the allegations made against the applicant (to impeach him from the office of the Deputy-Governor of Abia State) are illegal unconstitutional, null and void being a flagrant breach of the applicant’s right of fair hearing as guaranteed by section 36 of the 1979 Constitution of Nigeria and Article 7 African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, Cap. 10, Laws of the Federation of Nigeria.
2. An order of court setting aside the said proceedings.
3. An order of injunction restraining the respondents from taking further steps in the process of impeaching the applicant during the pendency of this proceeding.”
The ground upon which the reliefs are sought are the following:
(a) “Section 36 of the 1979 Constitution and Article 7 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, Cap. 10, Laws of the Federation of Nigeria guarantees the applicant a Fundamental Right to fair hearing as a citizen of both Nigeria and Africa.
(b) By section 188(3) of the 1999 Constitution when an impeachment notice on the holder of the office of the applicant is presented to the 1st respondent, the applicant has 14 days within which to offer a defence to the articles of impeachment before a vote can be taken as to whether or not tile allegations on the impeachment notice can be referred to a panel for investigation.
(c) By section 188(4) of the same Constitution if after considering the Impeachment Notice and the defence the 2nd respondents are not able to procure a 2/3rd majority of votes, the impeachment process collapses.
(d) The 1st respondent by a letter dated 28th January, 1999 notified the applicant of the pendency of impeachment notice against him attaching the said notice and requiring him in accordance with the Constitution to have his defence entered on or before the 11th of February, 2000.
(e) On Tuesday 8th February, 2000 being the 12th day of the presentation to the Speaker of the impeachment notice, without receiving the defence of the applicant, three days before his constitutionally allowed period of defence was to expire, the respondents took a vote to refer the impeachment notice for investigation in breach of section 188(3) and section 36 of the 1999 Constitution and the relevant section of the African Charter on Human and Peoples’ Right.
(f) Had the respondents exercised patience and received the defence of the applicant, they would not have voted the matter to go for investigation and the impeachment process would have collapsed.
(g) The respondents have by the above conduct in breach of the Constitution prejudiced the person and office of the applicant.
In the court below, the presiding Judge stated that the matter before him was not the usual run of the mill case and invited the Abia State Attorney-General and Udechukwu, SAN to address him on the issue of jurisdiction of the court having regards to section 188(10) of the Constitution. After addresses by counsel, in his ruling the court below held as follows:
“In other words, that S.188(10) does not permit proceedings brought under S.46 of the Constitution. This is so because, it appears to me, that the issue of the applicant’s Fundamental Rights cannot be isolated from the process under S.188 of the Constitution.
In other words, the applicant’s Fundamental Rights cannot be enforced without any encroachment into the process which caused the breach, which is the impeachment process, over which the court has no jurisdiction. And so, if a court cannot effectively, in a case before it, determine the issues on which it has jurisdiction without engaging in the determination of issues in respect of which it has no jurisdiction, the situation is as if the court has no jurisdiction and should decline jurisdiction ab initio. See Nwafia v. Ububa (1966) NMLR 219. It is therefore my view that no distinction could be drawn as argued by learned Senator between proceedings of the State House of Assembly under S.188 and the issue of fair hearing under S.36 because of the provisions of S.46(2) thereof. I therefore hold that this case is indistinguishable from the case of Balarabe Musa (supra) irrespective of the procedure by which it was brought. And I am bound to follow that decision.
Impeachment process is a political exercise and the court ought to be wary in interfering with political exercises.”
The court below therefore struck out the application. Peeved by the refusal of the lower court to entertain the application on the grounds of lack of jurisdiction the appellant decided to appeal to this court and filed 4 grounds of appeal from which his counsel distilled one issue for determination which is whether or not the court below was right when it held it has no jurisdiction to entertain the appellant’s complaints.
The matter which gave rise to the institution of proceedings in the High Court by the appellant is the attempt by the Abia State House of Assembly to commence impeachment proceedings against him. It is to be observed that the appellant had not yet obtained the leave of the court to apply for enforcement of his fundamental rights.
It has always been the law that the issue of jurisdiction being a threshold matter could be taken by the court or any of the parties at any stage of the proceedings. The appellant’s counsel in pursuit of the case submits there is a clear violation of section 36 of the Constitution of Nigeria and Article 7 of the African Charter on Human and Peoples’ Rights. When the court is faced with an issue of ouster clause it must scrupulously examine it to ascertain whether the party invoking it has acted in accordance with the law establishing that ouster clause which is to be used as an umbrella not a shield. The complaint of the appellant is that there is a fundamental departure by the respondents from the laid down procedure to be followed in matter relating to impeachment activities. Where the House of Assembly on which the Constitution has vested the sole right of determining matter relating to impeachment, the appellant submits that the respondents ought generally to follow strictly the laid down procedure. What are the exact provisions of the Constitution here.
section 188(3) states:-
3. “Within fourteen days of the presentation of the notice to the Speaker of the House of Assembly (whether or not any statement was made by the holder of the office in reply to the allegation contained in the notice), the House of Assembly shall resolve by motion, without any debate whether or not the allegation shall be investigated.
4. A motion of the House of Assembly that the allegation be investigated shall not be declared as having been passed unless it is supported by the votes of not less than two-thirds majority of all the members of the House of Assembly.”
188(10) “No proceedings or determinations of the panel or of the House of Assembly or any matter relating to such proceedings or determination shall be entertained or questioned in any court.”
In his submission the learned counsel for the appellant referred to the over pervading horizon of the African Charter on Peoples’ Rights. I am well aware of the latest Supreme Court judgment to the effect that the African Charter on Human and Peoples’ Rights is overwhelmingly superior to a law but the matter before the court below sought to be agitated falls squarely within the province of Nigeria Constitution in which section 188(10) is prescribing the incompetence of the courts in country to adjudicate in matters relating to impeachment proceedings. No one doubts that the African Charter on Human and Peoples’ Rights has the supervening features which are superior to a Municipal Law. Does it apply to a matter relating to impeachment proceedings? In this case the court is once again called to construe the true meaning of section 188(10) aforesaid. In this sense, I am emboldened to rely on the immortal words of Udoma, JSC in Nafiu Rabiu v The State (1980) 8-11 SC p.130 at 148-149, (1981) NCLR 293 at 326 where he laid the guiding principles:
“… the function of the Constitution is to establish a framework and principles of government, broad and general in terms, intended to apply to the varying conditions which the development of our several communities must involve, ours being a plural, dynamic society, and therefore, mere technical rules of interpretation of statutes are to some extent inadmissible in a way so as to defeat the principles of government enshrined in the Constitution. And where the question is whether the Constitution has used an expression in the wider or in the narrower sense, in my view, this court should whenever possible, and in response to the demands of justice, lean to the broader interpretation, unless there is something in the or in the rest of the Constitution to indicate that the narrower interpretation will best carry out the objects and purposes of the Constitution.
My Lords, it is my view that the approach of this court to the construction of the Constitution should be, and so it has been one of liberalism, probably a variation on the theme of the general maxim ut res magis valeat quam pereat. I do not conceive it to be the duty of this court so to construe any of the provisions of the Constitution as to defeat the obvious ends the Constitution was designed to serve where another construction equally in accord and consistent with the words and sense of such provisions will serve to enforce and protect such ends.”
Broadly speaking, the issue bothers on the powers of this court to intervene in the domestic affairs of the House of Assembly. It is the duty of the judiciary to keep in check the excesses of the executive and overbearing and abrasive tendencies of the legislature so that each of the 3 components of the Government confines itself within the province allocated or prescribed for it by the Constitution. In trying to interprete the words of the Constitution, I am of the view that it should be understood that a constitution is not a mere common legal document. It is essentially a document relating to and regulating the affairs of the nation state and stating the functions and powers of the different apparati of the Government as well as regulating the relationship between the citizen and the state. It equally makes provisions for the Rights of the citizen within the compass of the state. In so far as it concerns the issue of impeachment it is a political matter. However, the court at the same time may not close its eyes to serious injustice relating to the manner the impeachment procedure is being carried. That is to say it is within the province of the court to ensure strict adherent to the spirit of the Constitution for the endurance of a democratic regime. The court should not however attempt to assume for itself power it is never given by the Constitution to brazenly enter into the miasma of the political cauldron and have itself bloodied and thereby losing respect in its quest to play the legendary Don Quixote de la Manche. In its bid to embark on impeachment procedure, it is expected that the House of Assembly should not ride a rough shod of the prescription of the law. Beyond exercising its judicial powers as conferred on it by the Constitution to ensure the equilibrium in the distribution of functions of the organs of the government, the court should exercise utmost caution in invading the area that is prohibited by the Constitution. I cannot but quote here in extenso the ringing words of Adenekan Ademola, JCA when he said in the case of Alhaji Abdulkadir Balarabe Musa v. Auta Hamza (1983) 3 NCLR p.229 at 247.
“Finally, at a time like this let us remember the words of that great intellectual from the famous Harvard Law School who once sat as a member of the Supreme Court of America in a case which aroused much political emotion like this has done. Felix Frankfurter said in Baker v. Carr (1962) 369 US 186 thus:
“The court’s authority possessed neither of the purse nor the sword ultimately rests on sustained public confidence in its moral sanction. Such feeling must be nourished by the court’s complete detachment, in fact and in appearance, from political settlements.”
In this situation, as in others of like nature, appeal for relief does not belong here. Appeal must be to an informed, civically militant electorate. In a democratic society like ours, relief must come through an aroused popular conscience that sears the conscience of the people’s representatives. In any event there is nothing judicially more unseemly nor more self-defeating than for this court to make interrorem pronouncements, to indulge in mere rhetoric, sounding a word of promise to the ear, sure to be disappointing to the hope…”
It must be realised that in a matter relating to proceedings on impeachment the House of Assembly is exercising a judicial function. In the case of Minister of Home Affairs v. Fisher (1989) AC 319 at 329 states as follows:
“Constitution is a legal instrument giving rise amongst other things, to individual rights capable of enforcement in a court of law. Respect must be paid to the language which has been used and to the traditions and usages which has given meaning to that language. It is quite consistent with this, and with the recognition, that rules of interpretation may apply to take as a point of departure from the process of interpretation(sic) a recognition of the character and origin of the instrument, and to be guided by the principle of giving full recognition and effect to those fundamental rights and freedom with a statement of which the Constitution commences.”
I think it will be infradig for the courts in interpreting the words of the Constitution fail to preserve the intendment of the primary law.
The complaint of the applicant/appellant is that the respondents failed to adhere to the provisions of section 188(3) and (4) which prescribe the time frame for intimating the applicant and his answering to the charges or articles of impeachment before a vote was taken. It is the duty of this court to put a garb on these provisions. Section 188(10) it must he admitted is frighteningly all embracing, It seems to command the court on the face of it to keep clear in any matter relating to proceedings leading to impeachment question. Impeachment offence is a gross conduct which may mean a grave violation or breach of the Constitution or a misconduct of such a nature as amounts in the opinion of the House of Assembly to gross misconduct. (The italic is mine). The worrying aspect of this all-embracing provision seems to imply that the court may not even look into the issue as to whether the duly laid down procedure has been followed. In that case one can conceive of a hypothctical situation where a House of Assembly will throw caution to the wind and without thoroughly abiding by the words of the Constitution commences even without the prescribed notice of impeached proceedings. I say this because the appellant complained that the time frame for him to send a reply had not elapsed before the motion in the House that the allegation be investigated was moved in the House. In the case of Okoroafor v. The Miscellaneous Offences Tribunal (1995) 4 NWLR (Pt. 387) 59 at 78 – 79. I said:
“In the case before us, it cannot be doubted that the various agencies that are empowered by statute to put into effect the procedure leading to trial, frisked away the opportunity designed for the prosecution of such a case. In so doing they unwittingly flouted the necessary provisions that would preserve the jurisdiction to the tribunal.
As guardians of the rich tradition of jurisprudence which we have inherited and imbibed, we must make secure the authority of law as the servant of liberty, wisely and culturally conceived as the expression of the righteousness which would exalt the law and indirectly this country.
It is the eternal credit of the courts that it is the peculiar function of the independent judiciary comprising highly qualified legal experts burning and imbued with zeal to give final and authoritative interpretations to our Constitution and our Laws that we must as far as possible, give the framework and circumstances of our times, help to nuture a society that is governed by just laws.
There is no doubt in my mind that the employment of the word “shall” in the Special Tribunal (Miscellaneous Offences) (No.2) Amendment Decree and as reflected in Cap. 73 of the Laws of the Federal Republic of Nigeria shows that it is command of the legislature intended to be abided by all concerned in the administration of justice in that regard.
To answer the question posed, I would state that ouster clauses in Decree No.9 of 1991 will apply to take away the supervisory jurisdiction of the High Court of Lagos State only when an inferior tribunal abides strictly in its entirety to the prescription which gives it powers and where it does not seek to substitute its own procedure contrary to that laid down by statute as to make a trial conducted by it a nullity. In this case before us, there has been flagrant disobedience of the law of the land by the agencies authorised to effectuate it. Therefore neither the tribunal nor the prosecution can take shelter under the ouster clause.”
However, it must quickly be admitted here that the Abia State House of Assembly is indeed not an inferior tribunal but an equal to the judiciary or the court in the power sharing characteristic of a Federal Constitution where there is separation of powers. It and only it can determine what constitutes a gross misconduct or a conduct that will, lead to impeachment proceedings. I must confess that I look with trepidation the awesome and unregulated powers conferred by the ouster clause which seeks as it seems to me to emasculate the court from examining a case of non-compliance with the provisions of the Constitution where there is a violation.
In his brief, the learned counsel for the appellant submitted that section 188(10) of the Constitution does not avail the respondents and as ouster clause can only protect legal acts or acts done in conformity with the provision of the Constitution and relied on Nwosu v. Imo State Environmental Sanitation Authority (1990) 2 NWLR (Pt.135) P.688 at 733; Garba v. Federal Civil Service Commission (1988) 1 NWLR (Pt.71) p.449 and Wilson v. A-G., Bendel State (1985) 1 NWLR (Pt.4) p.572. There is a big difference between the issues or questions canvassed in these cases and the one before us. In this case, we are dealing with the apparent inviolable powers of the 2nd arm of the Government. Where the law prescribes a mode of doing certain things and prescribes the method or reaching a particular end but at the same time states the court lacks jurisdiction to enquire on any matter relating to the procedure adopted, there is paradox of unimaginable dimension. Can the court look into it?
The learned counsel for the appellant has referred to the superiority of the African Charter on Human and People’ Rights which has been incorporated into our organic law. This court and lately the Supreme Court held that the African Charter on Human and People’ Rights is superior to our municipal laws. However, the issue here is the incompetence of the court in adjudicating on any matter relating to impeachment proceedings. The respondents in their brief state that what the court should look into is the relief sought by the appellant in his application and submitted that that would determine the course of action of the court and in this case once the matter relates to impeachment proceedings the court has no jurisdiction. In the case of Senator Adesanya v. President of Nigeria (1981) 2 NCLR p.358 Fatayi Williams, CJN said:
“It is provided in section 267 that no civil or criminal proceedings can be instituted or continued against any person holding the office of the President of the Federal Republic of Nigeria, Vice-President, Governor of a State or Deputy-Governor during his period of office. Furthermore, there is provision that no proceedings or determination of the committee appointed to investigate allegations of misconduct made against the President or Vice-President, Governor or Deputy-Governor or any matter relating thereto shall be entertained in any court.”
What indeed are the limits of judicial process in this political area heavily mined? It is arguably a political matter which ever way one looks at it. This may explain why the courts are touchy about delving into the nuances of such matters. Professor Laurence Tribe said at p.215 of American Constitutional Laws Harvard University:
“Although the impeachment process has been used periodically since 1789 there has been no judicial attempt to define its limits. This is attributable in part to the constitutional language ostensibly consigning the issue of impeachment to the Legislative branch of Government and thus arguable barring judicial review of impeachment under the political question doctrine.”
Political question doctrine relates to those amorphous political issues which generally arise in political structure of parties or in the House of Assembly and which no court should try to get involved for fear of being smeared or appear to take sides.
Reference was made to the provision of section 46(1) of the Constitution of Nigeria which gives powers to the High Court to determine matters relating to Fundamental Rights to redress infractions of those lights. It must be said straight away that the operation of these provisions, in other words the jurisdiction conferred on the High Court is subject to other provisions of the Constitution. See section 46(2) of the Constitution. It is indeed tempting for a court to immerse itself unwittingly and irretrievably into this area of turbulent sea in other to do justice only to realise that it has entered into brackish water of no return.
At para. 179 of Vol.67 of Corpus Juris Secundum the learned authors write as follows on impeachment:
“The primary object of the remedy is to improve the public service by removal of the officer and not to punish the officer or to safeguard his interest. The Legislature in impeachment proceedings exercises judicial, not the legislative power conferred on it by the Constitution.”
At para. 181 of Vol. 67 p.621 the authors continue thus:
“The particularity required in an indictment need not be observed but the notice of the proceeding must be reasonable and opportunity must be afforded for hearing. The Legislative power of impeachment is not an arbitrary power but the authority ordinarily is final and the judgment of the Senate sitting as a court of impeachment cannot be called in question in any tribunal whatsoever except for lack of jurisdiction or excess of constitutional power.”
Impeachment is not a matter to be trivialised as it affects the reputation of an individual who might at one time or the other been held in high esteem before the fall from grace. The complaint is that since the Constitution states 14 days the Assembly should have waited till the end of that period. Attractive that argument appears, it ignores the fact that the Constitution says “within 14 days” of the presentation of the notice.” The interpretation of that phrase by the appellant’s counsel appears otiose and highly exaggerated. The respondents acted within the ambit of the law. The most important thing is whether if a panel is set up eventually has the opportunity of being heard.
In my view, the court below was light not to assume jurisdiction as the main relief relates to issue on impeachment proceedings. No useful purpose would have been served by assumption of jurisdiction at that stage only to backtrack in full force of the gale that would hereafter blow. In the final result, the appeal fails and is dismissed and the ruling of the court below is confirmed. I make no order as to cost.

AKPIROROH, J.C.A.: I have read in advance the judgment of my learned brother Pats-Acholonu, JCA just delivered and I agree with his reasoning and conclusion reached therein which I adopt as mine. He has in the judgment, clearly and succinctly dealt with the main issue raised in the appeal. The wording of section 188(10) of the Constitution of the Federal Republic of Nigeria, 1999 puts it beyond argument that the courts have no jurisdiction to entertain the appellant’s action and the learned trial Judge was quite right in declining jurisdiction.
There is no merit in this appeal and I also dismiss it. I affirm the judgment of the lower court.
I abide by the order made as to costs.

IKONGBEH, J.C.A.: Was the court below right in declining jurisdiction in this matter? This is the sole question that the appellant has called upon us to answer in this appeal.
I had the privilege of reading the draft of the judgment just delivered by my learned brother, Pats-Acholonu, JCA. I agree that the appeal lacks merit and ought to be dismissed. I too would dismiss it. Because of the importance of some of the points raised, I will add a few comments of my own.
The appellant is the Deputy-Governor of Abia State. Sometime prior to 8/1/2000 sixteen members of the State’s House of Assembly presented an impeachment notice to the Speaker of the House for the removal from office of the appellant. On the last mentioned date the Speaker forwarded a copy of the impeachment notice to the appellant under cover of a letter in which he requested the appellant to:-
“please let me have your reactions to the issues raised before Friday, 11th February, 2000.”
The Speaker’s letter together with the impeachment notice, was served on the appellant on 31/1/2000. On 8/2/2000, i.e., three days before the date by which the Speaker requested the appellant to submit his reaction to the issues raised in the impeachment notice, the House took a vote resolving to refer the allegations in the notice for investigation.
The appellant considered that by passing the resolution at the time they did, the members of the House had jumped the gun and, in the process, had infringed on his fundamental right to fair hearing enshrined in section 36 of the 1999 Constitution and Article 7 of the African Charter on Human and People’ Rights.
He therefore applied ex-parte to the Abia State High Court (S. O. E. Nwanosike, J.), sitting at Osisioma, praying for an order:-
“1 Granting leave to the applicant to apply for the enforcement of his fundamental right to fair hearing in terms of the reliefs set out in the statement in support hereof
2. And for such leave to operate as a stay of all further proceedings connected with or pertaining to the impeachment of the applicant by the respondents.
In the statement accompanying the application he specified the following reliefs as the ones he was going to seek should leave be granted to him:
“(1) A declaration that the proceedings of the Abia State House of Assembly on Tuesday the 8th of February, 2000 purporting to vote on whether or not to investigate the allegations made against the applicant (to impeach him from the office of the Deputy-Governor of Abia State) are illegal, unconstitutional, null and void, being a flagrant breach of the applicant’s right to fair hearing as guaranteed by section 36 of the 1999 Constitution of Nigeria and Article 7 African Charter on Human and People’s Rights (Ratification and Enforcement) Act, Cap. 10, Laws of the Federation of Nigeria.
(2) An order of court setting aside the said proceedings.
(3) An order of injunction restraining the respondents from taking further steps in the process of impeaching the applicant during the pendency of this proceedings.”
He was going to seek those reliefs on the following grounds:
“(a) Section 36 of the 1999 Constitution (sic) and Article 7 of the African Charter on Human and People’s Rights (Ratification and Enforcement) Act, Cap. 10, Laws of the Federation of Nigeria guarantees the applicant a fundamental right to fair hearing as a citizen of both Nigeria and Africa.
(b) By section 188(3) of the 1999 Constitution when an impeachment notice on the holder of the office of the applicant is presented to the 1st respondent, the applicant has 14 days within which to offer a defence to the articles of impeachment before a vote can be taken as to whether or not the allegations on the impeachment notice can be referred to a panel for investigation.
(c) By section 188(4) of the same Constitution if after considering the impeachment notice and the defence the 2nd respondent are not able to procure a 2/3rd majority of votes, the impeachment process collapses.
(d) The 1st respondent by a letter dated 28th January, 2000 notified the applicant of the pendency of impeachment notice against him attaching the said notice and requiring him in accordance with the Constitution to have his defence on or before the 11th of February, 2000.
(e) On Tuesday 8th February, 2000 being the 12th day of the presentation to the Speaker of the impeachment notice, without receiving the defence of the applicant, three days before his constitutionally allowed period of defence was to expire, the respondents took a vote to refer the Impeachment Notice for investigation in breach of section 188(3) and section 36 of the 1999 Constitution and relevant section of the African Charter on Human and People’s Rights.
(f) Had the respondents exercised patience and received the defence of the applicant, they, would not have voted the matter to go for investigation and the impeachment process would have collapsed.
(g) The respondents have by the above conduct in breach of the Constitution prejudiced the person and office of the applicant.”
When the matter came before the learned Judge he suo motu raised the question whether, in view of the provisions of section 188(10) of the Constitution, he had jurisdiction to entertain the matter the appellant was seeking to bring before him should leave be granted to him. He put the respondents on notice and invited the State’s Attorney-General and Chief U. N. Udechukwu, SAN, as amici curiae. After hearing arguments by counsel for the appellant and the amici he ruled that he lacked jurisdiction to entertain the reliefs the appellant was seeking leave to pursue and so, refused the exparte application. He considered those reliefs vis-a-vis the provisions of section 188(10) of the Constitution and concluded at pages 28 – 29 of the record that:-
“The issue before the court is one involving the impeachment of the applicant under S. 188 of the Constitution of which one of its subsections (i.e. subsection (10) ousted the jurisdiction of the court. In Balarabe’s case (supra) the Court of Appeal held that in an impeachment process, such as this, the court has no jurisdiction to entertain any suit related thereto. But the learned Senator tried to distinguish the present case from Balarabe’s case in that this case was brought under a special procedure namely; the Fundamental Rights Procedure. In my opinion that distinction is not sustainable in view of the clear provisions of S. 46 of the Constitution which provides thus:
“46(1) Any person who alleges that any of the provisions of this Chapter has been, is being or likely to be contravened in any State in relation to him may apply to a High Court in that State for redress.
(2) Subject to the provisions of this Constitution, a High Court shall have original jurisdiction to hear and determine any application made to it in pursuance of the provisions of this section…”
It is very clear from subsection (2) above, that even the jurisdiction confirmed on the court by subsection (1) is made “subject to the provisions of the Constitution.” In other words, that the jurisdiction conferred by S. 46(1) is controlled by other provisions of the Constitution. The phrase “subject to the provisions of the Constitution” in my opinion, can only mean “if the provisions of the Constitution permit it.” See Oke v. Oke (1974) 3 SC 1 at 10. And it seems to me, from the foregoing, that subsection (10) does not “permit” S. 46. In other words, that S. 188 (10) does not permit proceedings brought under S.46 all (sic) of the Constitution. This is so because, it appears to me, that the issue of the applicant’s fundamental rights cannot be isolated from the process under S. 188 of the Constitution. In other words, the applicant’s fundamental rights cannot be enforced without any encroachment into the process which caused the breach, which is the impeachment process, over which the court has no jurisdiction. And so, if a court cannot effectively, in a case before it, determine the issues on which it has jurisdiction without engaging in the determination of issues in respect of which it has no jurisdiction, the situation is as if the court has no jurisdiction and should decline jurisdiction ab initio. See Nwafia v. Ububa (1966) NMLR 219. It is therefore my view that no distinction could be drawn as argued by learned Senator between proceedings of the State House of Assembly under S. 188 and the issue of fair hearing under S. 36 because of the provisions of S. 46(2) thereof. I therefore hold that this case is indistinguishable from the case of Balarabe Musa (supra) irrespective of the procedure by which it was brought. And I am bound to follow that decision.”
Aggrieved, the appellant has appealed to this court on 4 grounds of appeal out of which the sole issue that I highlighted at the beginning of this judgment was formulated.
Chief N. N. Anah, SAN, for the appellant, has submitted forcefully that the lower court erred in its ruling that section 188(10) of the Constitution ousted its jurisdiction to entertain the matter. The learned Senior Advocate formed this view by the following process of reasoning. The undisputed facts before the court tended to show that the respondents had not acted in conformity with the impeachment procedure laid down in section 188 of the Constitution. Therefore, at that stage the Judge should have held that on the legal principle that (to borrow the words of the learned Senior Advocate) “an ouster clause can only protect legal acts or acts done on (sic) conformity with provisions of the Constitution or law relied on”, the ouster clause in section 188(10) availed the respondents nothing. The learned Judge ought, therefore, to have granted leave and then inquired into the appellant’s allegation that the respondents had not acted in conformity with the section 188 procedure. It is only if at the end of the day he found as a fact that the respondents had acted in conformity with the constitutional requirements that he could rightly succumb to the ouster clause in section 188(10). The course suggested by him is, in his view, possible because “the courts by virtue of section 4(8) of the Constitution have the necessary jurisdiction to ensure that the Legislature keeps within constitutional provisions.”
F The learned Senior Advocate also attacked the learned Judge’s view that the decision of this court in Musa v. Hamza (1982) 3 NCLR 229 was binding on him because the facts of that case and the present case are the same. According to the learned senior counsel, the facts are distinguishable from each other on the ground that the present case was commenced by the fundamental rights enforcement proceedings whereas the Musa case was not.
The learned Senior Advocate quarreled also with the fact that the learned Judge did not seem impressed by the fact that the appellant also relied on Article 7 of the African Charter on Human and Peoples’ Rights. “In his view, any municipal law which is in conflict with the Charter is null and void. Municipal law means the law of a state or country as opposed to international Law.This includes the Constitution.”(Italics mine).
Based on this interpretation he submitted that the learned Judge was in error in holding that the provisions of the Charter were subject to domestic law. In conclusion, the learned senior counsel declared with authority:-
“If there is a conflict between the provisions of Article 7 of the Charter and section 188(10) of the Constitution, the Charter will take precedence.”
Chief A. U. Kalu, the learned Attorney-General of Abia State started his arguments in the respondents’ brief by agreeing with Chief Anah, SAN, that it is by an examination of the plaintiff’s case that the court can determine whether or not it has jurisdiction. It was his view that in proceedings commenced by a writ of summons, the court can determine the plaintiff’s case by examining the reliefs endorsed on the writ of summons or in the statement of claim or both. In the present matter, however, the thing to look at is the reliefs sought in the accompanying statement, not the grounds, even if they are, as in the present case, anchored on an alleged violation of the appellant’s fundamental rights to fair hearing. The lower court, the learned Attorney-General submitted, was right when it held that, based on the reliefs sought, it had no reason to doubt that its jurisdiction had been ousted by section 188(10) of the Constitution, the matter before him being squarely within the contemplation of its provisions. The point of similarity between this case and Mum’s case and similar cases is the fact that the reliefs sought in both cases fell within the class of matters in respect of which the court’s jurisdiction is ousted.
To the learned Attorney-General, the argument of Chief Anah, SAN, regarding the status of the African Charter, vis-a-vis our Constitution is misconceived. He bolstered up this criticism with some powerful words which, because of the view I have taken of the matter and which view I shall make known later, I see no need to reproduce.
I shall begin my consideration of the sole issue submitted by the parties for resolution by us by agreeing with both eminent leading counsel on one point. Both of them stated the law correctly when they submitted that to determine whether or not the lower court has jurisdiction to entertain the matter brought before it we are to look at the case as presented by the appellant. The question however, as the learned Attorney-General appropriately asked, is what do I take as constituting the appellant’s ease? Is it the reliefs sought? Or is it the grounds for the relief?
As has been seen, Chief Anah, SAN, in his arguments dwelt entirely on the grounds, saying absolutely nothing about the reliefs. Chief Kalu, on the other hand, urged us to look at the reliefs and not the grounds.
I am more inclined to agree with the learned Attorney-General. The first port of call of any court called upon to decide a case is, if any question arises as to its jurisdiction to entertain that case, the reliefs sought by the initiator of the proceedings. The reliefs sought specify what the initiator of the case wants the court to do for him. The grounds only specify reasons why, in the opinion of the initiator, the reliefs ought to be granted. If the court checks the reliefs against the Constitution and/or any other valid law and finds no provision debarring it from doing what is requested therein, then fair and well. It is then at liberty to consider the grounds in the light of whatever evidence there may be with a view to deciding whether or not the grounds warrant granting the reliefs. If, on the other hand, it finds a provision of the Constitution or other valid law which, either expressly or by necessary implication, ousts its jurisdiction to do the thing requested, then the grounds become totally irrelevant. If the law says that the court cannot do what the plaintiff or applicant has asked it to do for him, it would be an exercise in utter futility for the court to proceed to consider reasons for or against doing that thing. Anything done without jurisdiction is a nullity no matter how beautifully it may have been done, that is, if it is at all possible to do a thing that cannot be done.Now, what reliefs did the appellant seek leave of the lower court to pursue? In other words, upon leave being granted him, what did the appellant plan to ask the court to do for him?
As we have seen, he planned to ask the court first, to declare the impeachment proceedings of the 2nd respondent on 8/2/2000 a nullity. He would also like the court to set aside the proceedings. Finally, he would also like the court to make an order restraining the 2nd respondent from continuing with the impeachment proceedings during the pendency of this case. The appellant made no bones at all about the fact that upon being granted leave he intended to question the 2nd respondent proceedings of 8/2/2000.
What did the learned Judge in the court below do?
As has been seen, he passed the reliefs that the appellant was seeking leave to present to him later through the crucible provided by section 188(10) of the Constitution. Having regard to what I said a short while ago regarding how to determine what constitutes a plaintiff’s or appellant’s case, I hold that thus far the Judge had followed the correct procedure.
What was the result of his experiment?
He arrived at the conclusion that the subsection contains an ouster clause, which clause, having regard to the appellant’s case, has effectively robbed him of his jurisdiction to consider whether or not the reasons given in the grounds warranted granting the reliefs. He interpreted the provision as saying to him or any other Judge faced with the same issue, “Come what may, you as a court cannot do any of the things the applicant will ask you to do for him after you have granted him the leave he now seeks. You are absolutely forbidden to do them.”
Was he right in this interpretation?
This calls for an examination of the provision. It provides:
“(10) No proceedings or determination of the panel or of the House of Assembly or any matter relating to such proceedings or determination shall be entertained or questioned in any court.”
The language here seems to me too clear and directs to brook any equivocation. It forbids all courts from allowing any proceedings or determination of the 2nd respondent or its panel to be challenged before it. For the avoidance of all doubt and, to drum in the message regarding the depth and breath of the matters prohibited, it also forbids all courts from allowing any matter relating to such proceedings and determination to be entertained before it.
In the circumstances, the Judge was, in my judgment, perfectly justified in his approach and conclusion. He acted in accordance with the following wise counsel by Nnaemeka-Agu, JSC in Nwosu v. Imo State Environmental Sanitation Authority (1990) 2 NWLR (Pt.135) 688 at 715:
“I must advise myself that what was really the function of the High Court at the stage at which the case was struck out was to inquire whether in fact the jurisdiction of the court had been ousted. The court had to be guided by the principle that every superior court of record guards its jurisdiction jealously. So, while a person’s access to have his civil rights adjudicated upon by a court may be restricted or ousted by statute, the language of such a statute must be strictly construed. But once, with such an approach, it is clear that an ouster or restriction of the jurisdiction was intended and that, from the facts of the particular case, it comes squarely within the four corners of the statute, the court has no alternative but to hold that its jurisdiction has been ousted.”
See also A.-G., Federation v. Guardian Newspapers Ltd. (1999) 9 NWLR (Pt. 618) 187 at 223, per Uwaifo, J.S.C. But then, Chief Anah, SAN, has argued that since the 2nd respondent had not acted in conformity with the procedure for impeachment laid down in section 188 of the Constitution it cannot take advantage of the ouster clause in subsection (10).
I must pause here to observe that the cases relied on by the learned senior counsel, namely, Nwosu’s case, (supra), Garba v. F.C.S.C (1988) 1 NWLR (Pt. 7]) 449 and Wilson v. A.-G., Bendel State (1985) 1 NWLR (Pt. 4) 572, were based on the interpretation ouster clauses in the harsh decrees churned out by the military in their era. Although the military governed under law in the sense that they made laws, often times after the event, to back up their actions, they did not necessarily rule in accordance with the principles of the rule of law which requires that every governmental act must be based on rules and procedures predetermined by law. They passed ad hominem laws with retroactive force to catch up with perceived transgressors. There was, therefore, the need for vigilance on the part of the courts to see that the military in their overzealous bent to cleanse what they perceived as the ills of their predecessors did not unnecessarily trample on the rights of the people.
For this reason, I do not feel comfortable with the view that decisions based on the interpretation of ouster clauses in these decrees can provide a good guide for the interpretation of provisions in a Constitution limiting the power of courts. All governmental powers derive from the Constitution in a civilian regime. There cannot be any legitimate complaint if the Constitution withdraws a particular power from one organ of government in favour of another in the same way that one can complain about the way the military brazenly emasculated, especially the judiciary, just to pave the way for themselves to do as they pleased with the lives and property of people. This point can be better appreciated if it is realised that a Constitution is, at least in theory, the product of the planned and collective agreement of the people on how to govern themselves. When, therefore, they agree at the outset that a particular matter shall be within the competence of one organ and not of the other one cannot properly liken such situation to the situation created by ouster clauses in the military decrees.
For this reason I prefer to approach the construction of section 188(10) of the Constitution from a different perspective. In fact, I do not think the term “ouster clause” is an appropriate description for the provisions of the subsection. An ouster clause is a clause in the provision of a statute that ousts. It is most frequently used in relation to the jurisdiction of courts. The verb to oust” means to put out of possession, to deprive of, to expel from, to drive out of, to force oneself or to put into the place of another. See the Concise Oxford Dictionary. This definition clearly imports the idea of the thing being ousted having been in place before the occurrence of the ouster.

Now, we have seen that all governmental powers derive from the Constitution. The Constitution is a scheme whereby power is shared beforehand among the various arms of government. Executive, legislative and judicial powers are allocated to the appropriate organs. Each, within its sphere of competence is subject to the necessary co-operation with the other organs to ensure the smooth functioning of Government as an effective entity, is master of its own affairs. It has been universally recognised that impeachment procedure is pre-eminently a political matter and is an affair of the legislature. The people elect officers to elective offices. The people can withdraw their mandate. They can do this either by the recall procedure or by impeachment. The latter procedure has been assigned exclusively to the legislature by the Constitution. I do not, therefore, see section 188(10) as an ouster clause. I see it as doing no more than underscoring the recognised fact that the impeachment process is a political matter that is best left where it best belongs, i.e., with the legislature. It does not, in my view, set out to oust the jurisdiction of courts in the same way as the military decrees discussed in the cases cited by Chief Anah, SAN, did. Those decrees expressly set out to put the courts out of possession of not just the jurisdiction but, invariably, also the judicial powers vested in them by the Constitution. Those were clear cases of ouster. When, therefore, section 188(10) provided that no proceedings or determination of the 2nd respondent or its investigation panel or any matter relating thereto shall be questioned before or entertained by any court it was only giving expression to a fact that has always been recognised and respected by all concerned. It was not, in my view, ousting the jurisdiction of the courts because the courts have never possessed that jurisdiction. The converse of the maxim nemo dat quod non habet applies here. You cannot take from a person what that person never had.
Be that as it may, I shall now examine the contention of Chief Anah, SAN, that the 2nd respondent had been guilty of non-conformity on the assumption that section 188(10) contains an ouster clause.
What the learned Senior Advocate has described here as not acting in conformity with laid down procedure is the passing by the House of the resolution before the appellant had submitted his statement in reaction to the issues raised in the impeachment notice. With all due respect to the learned SAN, my examination of section 18(J) – (9) has revealed no non-conformity with any provision of the Constitution or of the African Charter that I can see. The subsections provide:
“188(1) The Governor or Deputy-Governor of a State may be removed from office in accordance with the provisions of this section.
(2) Whenever a notice of any allegation in writing signed by not less than one-third of the members of the House of Assembly:-
(a) is presented to the Speaker of the House of Assembly of the State;
(b) stating that the holder of such office is guilty of gross misconduct in the performance of the functions of his office, detailed particulars of which shall be specified, the Speaker of the House of Assembly shall, within seven days of the receipt of the notice, cause a copy of the notice to be served on the holder of the office and on each member of the House of Assembly, and shall also cause any statement made in reply to the allegation by the holder of the office, to be served on each member of the House of Assembly.
(3) Within fourteen days of the presentation of the notice to the Speaker of the House of Assembly (whether or not any statement was made by the holder of the office in reply to the allegation contained in the notice), the House of Assembly shall resolve by motion, without any debate whether or not the allegation shall be investigated.
(4) A motion of the House of Assembly that the allegation be investigated shall not be declared as having been passed unless it is supported by the votes of not less than two-thirds majority of all the members of the House of Assembly.
(5) Within seven days of the passing of a motion under the foregoing provisions of this section, the Chief Judge of the State shall at the request of the Speaker of the House of Assembly, appoint a panel of seven persons who in his opinion are of unquestionable integrity, not being members of any public service, legislative house or political party, to investigate the allegation as provided in this section.
(6) The holder of an office whose conduct is being investigated under this section shall have the right to defend himself in parson or be represented before the panel by a legal practitioner of his own choice.
(7) A panel appointed under this section shall:-
(a) have such powers and exercise its functions in accordance with such procedure as may be prescribed by the House of Assembly; and
(b) within three months of its appointment, report its findings to the House of Assembly.
(8) Where the panel reports to the House of Assembly that the allegation has not been proved, no further proceedings shall be taken in respect of the manner.
(9) Where the report of the panel is that the allegation against the holder of the office has been proved, then within fourteen days of the receipt of the report, the House of Assembly shall consider the report, and if by a resolution of the House of Assembly supported by not less than two-thirds majority of all its members, the report of the panel is adopted, then the holder of the office shall stand removed from office as from the date of the adoption of the report.”
The words in brackets in subsection (3) and which I italicised, make it abundantly clear that the House need not wait for the officer whose impeachment is proposed to put in his statement in reply before passing the resolution to investigate. Indeed, they expressly state that the House may proceed to take the vote “whether or not any statement was made by the holder of the office in reply to the allegation contained in the notice”.
Another point that stands out is that the issue of hearing, fair or otherwise, has not arisen at this stage. The House is merely to examine the allegations contained in the impeachment notice and decide whether or not they raise a prima facie case warranting further inquiry. This is made clear by the fact that the vote to decide whether or not to investigate is to be taken without debate. It is after the resolution that investigation commences before the panel. It is only at this investigation stage that subsection (6) gives the officer under probe the light to defend himself in person or be represented by a legal practitioner of his choice.
The procedure stipulated here is, to my mind, akin to the procedure in the Criminal Procedure Act for a Judge when deciding whether or not to grant consent for preferment of an information. An analogy can therefore, be drawn from the case of Ikomi v. State (1986) 3 NWLR (Pt. 28) 340.
Discussing the procedure, Karibi-Whyte, JSC said in his concurring judgment at pages 380 – 381:
“It is settled law that an information which is preferred by leave of a Judge of the High Court will be said to have been properly instituted… The application for consent must be accompanied by statement on oath or otherwise disclosing sufficient evidence of the commission of an offence. The exercise of the power to give consent is a quasi-judicial duty… Although the effect of consent given by a Judge under S.340(2)(b) is identical with committal for trial after the holding of a preliminary inquiry, it would seem that the requirements for the granting of consent are not identical. For instance, whereas a magistrate holding a preliminary enquiry with a view to committal must be satisfied that a prima facie case has been made against the accused, and the accused is entitled to be present and contest the issue, this is not the position where an information is to be filed on the consent of the Judge. It is ex parte, The Judge may give consent to the filing of an information even after a magistrate had refused to commit an accused person for trial… Thus a consent may even be granted in a case where the evidence was insufficient to support a committal.
The accused is stricto sensu not entitled to a hearing before the Judge considering consent. However, a Judge giving consent is expected to do so where the offence in the information is supported by the depositions in support.
It is necessary to observe in this case, that the Judge was being asked to consent to the filing of an information, with respect to an allegation of the commission of an offence against the appellants.
Appellants were not being put on trial before the Judge.
Accordingly, it was sufficient for his granting consent to be satisfied that an offence was disclosed on the proof of evidence filed in support of the information.”
Looking at the provisions of section 188(1)-(9), I am of the firm view that adequate provision has been made to ensure that the officer to be impeached is given a fair hearing. At the stage up to the passing of the resolution and before the setting up of the investigating panel, no non-conformity is committed by the House if it passes its resolution to investigate without waiting for the affected officer to react to the allegations in the impeachment notice. I see no substance whatsoever in the appellant’s claim in ground (b) of his accompanying grounds that section 188(3) gives him 14 days to submit his defence. The 14 days specified is the period before the expiration of which the House must pass a resolution whether or not to investigate. It does not inure for the benefit of the appellant. Rather it is a directive to the House as to the period within which it must act. And the subsection says nothing about a defence. What it talks about is a statement. That period cannot, therefore, be referred to as the appellant constitutionally allowed period of defence” as the appellant did in ground (e).
The only circumstance in which there can be said to have been non-conformity is where the investigating panel disallows the affected officer from presenting his case in defence of himself. It is when this happens that it becomes necessary to consider whether or not such non-conformity can or does rob the alleged ouster clause in section 188(10) of its potency. As that stage had not been reached in this case before the appellant rushed to court the necessity for such consideration has not arisen. The appellant jumped the gun, crying foul when no foul had in fact been committed. The resolution passed by the 2nd respondent and of which the appellant complains in these proceedings has the full backing and support of section 188(3).
In all the circumstances, I do not feel called upon to consider the fate of the alleged ouster clause in subsection (10) as I can see no non-conformity. Nor do I see any call to consider the status of our Constitution vis-a-vis the African Charter. I shall, therefore, decline any further comment and shall reserve my views until such time as the issue is properly raised. For now I see nothing derogating from the potency of the alleged ouster clause in section 188(10). It has clearly ousted the jurisdiction of the court to entertain the matter that the appellant sought the leave of the lower court to pursue. I hold, therefore, that the learned Judge acted properly when he refused to grant leave.
This appeal is devoid of all merit and is accordingly dismissed by me. I affirm the decision of the learned trial Judge declining jurisdiction and refusing leave to the appellant to apply for enforcement of fundamental rights.
Appeal dismissed.