HON. DELE ABIODUN V. THE HON. CHIEF JUDGE OF KWARA STATE & ORS
(2007)LCN/2267(CA)
In The Court of Appeal of Nigeria
On Monday, the 12th day of March, 2007
CA/IL/86/2006
RATIO
ACTION: WHETHER PARTIES WHO HAVE TURNED THEIR DISPUTE OVER TO THE COURTS FOR DETERMINATION CAN RESULT TO SELF-HELP
In the case of Regd. Trustee Apostolic Church v. Olowoleni (1990) 6 NWLR (Pt. 158) 514 at 537 – 538, our eminent and erudite jurist, Nnaemeka-Agu, JSC held as follows: “…Once parties have turned their dispute over to the courts for determination, the right to resort to self-help ends. So, it is not permissible for one of the parties to take any step during the pendency of the suit which may have the effect of foisting upon the court a situation of complete helplessness, or which may give the impression that the court is being used as a mere subterfuge, to tie the hands of one party while the party helps himself extra-judicially. Both parties are expected to await the result of the litigation and the appropriate order of court before acting further, in Chief Emeka Odumegwu v. Military Governor of Lagos State & Ors. (No.1) (1985) 2 NWLR (Pt. 10) 806 at pp. 821- 827, in the Court of Appeal, I invoked the principles to order a mandatory injunction to restore the applicant to possession which was wrested from him, vietarmis, during the pendency of the litigation. Cases decided in other common law jurisdictions show that the principle is the same. See such decision of English courts as Daniel v. Ferguson (1981) 2 Ch. 27, at p. 30; Agbor v. Metropolitan Police Commissioner (1969) 1 W.L.R. 703; Von. Joel v. Hornsey (1895) 2 Ch. 744. See also such decision of American Court as Clark v. Martin 49 pg. 289, 298-299; Cook v. Boynton 135 pg. 102, 197-944 and Jones v. Securities & Exchange Commission 80 L. Ed. 298 U.S. 1-33, 1015-1235. PER ABDULLAHI, J.C.A.
EVIDENCE: THE PRACTICE FOR THE DEPOSITION IN THE USE OF AFFIDAVIT IN COURT PROCEEDINGS
In the case of Adeleke v. Anike (supra) this Court per Cecilia Nzeako, JCA, held as follows: “The practice for deposition to and use of affidavit in court proceedings is set out in the Evidence Act. See sections 78 – 90 thereof. Nothing stops a third party, in the same way, as he can testify as a witness in a suit, from swearing to an affidavit in a motion in which he is not a party. The proviso to this in the Act is that the affidavit must contain only statement’ of facts which are within the deponent’s own knowledge or which he obtained from information which he believes to be true, but, if his belief is from sources other than his own personal knowledge, he must state explicitly in the affidavit the fact and circumstances which form the grounds of his belief. See sections 86 and 89 of the Evidence Act. Also, if the belief of the deponent is derived from, information received from another person, the name of his informant must be stated with reasonable particulars respecting his informant, the time of his information. His place and circumstance thereof. See section 89 of the Act. Section 90(f) requires that the affidavit shall be signed by the deponent. It is that the section refers to the deponent as ‘witness’.” Again in the case of Chief Francis Edu v. Commissioner for Agriculture Water Resources and Rural Development (2000) 12 NWLR (Pt. 681) 316 at 333, this court held as follows:- “By virtue of sections 86, 87 and 88 of the Evidence Act an affidavit must contain only those facts of which the maker or deponent has personal knowledge or which are based on information which he believes to be true and the maker must state the name and full particulars of his information. No legal argument, conclusion or other extraneous matter must be included. (Joseien Holding Ltd. v. Lornamead Ltd. (1995) 1 NWLR (Pt. 371) 254.” At pages 332 – 333, Edozie, JCA (as then was) held thus: “It is not disputed that the facts deposed to in the appellants’ supporting affidavit by Mr. Mathew Ekpo are not within his personal knowledge.” Again, at page 334 of the same report, Ekpo, JCA held as follows:- “Sections 86, 88 and 89 of the Evidence Act, 1990 are mandatory or obligatory and non-compliance is bound to lead to the rejection of the affected paragraphs of the affidavit. PER ABDULLAHI, J.C.A.
JUSTICES:
TIJJANI ABDULLAHI Justice of The Court of Appeal of Nigeria
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria
Between
HON. DELE ABIODUN – Appellant(s)
AND
1. THE HON. CHIEF JUDGE OF KWARA STATE
2. THE GOVERNOR OF KWARA STATE
3. THE LEGISLATIVE COUNCIL OF EKITI LOCAL GOVERNMENT
4. EKITI LOCAL GOVERNMENT COUNCIL – Respondent(s)
ABDULLAHI, J.C.A. (Delivering the Leading Judgment): By originating summons filed by the claimant who is the appellant in this appeal the following questions were sought to be determined by the lower court as follows:
“1. Whether the suspension and continued suspension, prohibition and prevention of the claimant to perform his functions as the Executive Chairman of Ekiti Local Government Kwara State by the 2nd defendant is valid, lawful and constitutional.
2. Whether the Chief Judge of Kwara State can lawfully exercise his powers of appointing a panel of five (5) persons who shall investigate the allegation against the claimant as provided under section 28 of the Kwara State Local Government Law.
3. Whether the appointment, inauguration and proceedings of any panel of 5 persons to investigate allegations against the claimant under section 28 of the Kwara State Local Government Law is valid, the committee having been proposed, appointed, inaugurated more than 7 days mandatorily provided for under section 28 of the Kwara State Local Government Law, 2005, particularly, when the powers given to the Chief Judge does not include power to extend the statutory 7 days, period.”
Based on the three questions stated above, the claimant now appellant claimed the following reliefs stated hereunder:
“(i) A declaration that the suspension and continued suspension of the claimant by the 2nd defendant is wrongful, illegal and a violation of the Constitution of the Federal Republic of Nigeria, 1999.
(ii) A declaration that the Chief Judge of Kwara State has no power to appoint, inaugurate the 5-man panel of persons to investigate allegations against the claimant, the same having been made after 7 days statutory period.
(iii) A declaration that the request made to the Chief Judge of Kwara State by the 3rd defendant, to appoint a 5-man panel to investigate the allegations made against the claimant is illegal, unconstitutional null and void.
(iv) An order nullifying the suspension of the claimant by the 2nd defendants {sic} from September 2005 and all his entitlements paid to him.
(v) An order setting aside the notice or application made to the Chief Judge by the 3rd defendant, to appoint a 5- man panel to investigate allegations of misconduct against the claimant the same having been and expired, contrary to Kwara State Local Government Law. 2005.
(vi) An order nullifying every and any step taken by any person or authority pursuant to section 28 of the Local Government Law, 2005 with a view to investigating the claimant.
(vii) An order of interlocutory injunction restraining the 1st defendant from appointing any 5-man panel pursuant to section 28 (sic) the Kwara State Local Government Law pending the hearing and determination of this suit.
(viii) An order restraining the defendants from further interfering with the claimant as Chairman of Ekiti Local Government Council.”
The originating summons was supported by two distinct affidavits, a 21 paragraphed affidavit deposed to by the claimant himself, a Charted Accountant of No.2, Ilaro Street, Aare Opin, Kwara State. The affidavit was deposed and sworn to on the 23rd day of January, 2006. Attached to this affidavit were four exhibits as follows:-
“(a) Ekiti Local Government Legislative Council letter dated EXLG/LC/RD/S/O7/1 of the 8th December, 2005 it is attached and marked exhibit Dele1 1-8,
(b) Honourable Dele Abiodun’s letter dated 12th December, 2005 with attachments marked exhibit Dele 2 1-8,
(c) Democracy Monitor, Vol. 7 No.9 September, 2005 pages 9 – 13. attached and marked exhibit Dele 3 1-4,
(d) Honourbale Dele Abiodun’s letter dated 3rd January, 2006 marked exhibit Dele 4 1-2.”
And another 25 paragraphed affidavit deposed to by the same deponent and sworn to on 20th day of March, 2006. Attached to this affidavit are the following exhibits:
“(a) Affidavit of service dated and served on 10/2/2006 – Exhibit ‘5’.
(b) Letter dated 8/2/2006 – Exhibit ‘6’, respectively
(c) The Herald Newspaper of Wednesday, 1st March 2006 (page 5) – Exhibit ‘7’
(d) Invitation letter from the Panel of Inquiry – Exhibit ‘8’
(e) Letter dated 28/2/2006 to the Panel of Inquiry – Exhibit ‘9’
(f) Letter dated 7/3/2006 Ref. No. MC/GCE/VOA/054/2006 to the Secretary, Panel of Inquiry – Exhibit ’10’
(g) Letter dated 7/3/2006 Ref No. MC/GCE/VOA/056/2006 to the Secretary, Panel of Inquiry – Exhibit ’11’.”
On the other hand, the defendants who are now the respondents in this appeal filed a 35 paragraphed affidavit deposed and sworn to by one Mr. O. T. Afolayan, a Deputy Director in the State Ministry of Local Government and Chieftaincy Affairs. Attached to the counter-affidavit are five exhibits namely exhibits A1, A2, B1, B2 and C.
It is appropriate to state at this juncture that both parties relied on the averments of the supporting affidavits as well as the counter-affidavit. I will make reference to the relevant averments as and when appropriate in the course of writing this judgment.
The facts leading to this appeal are that: The appellant was elected at a general election, as the Executive Chairman of Ekiti Local Government Council with its headquarters at Isolo Opin in Kwara State on 31st March, 2003. His tenure as Chairman is expected to expire on 31st March, 2007.
On 16th September, 2005 the 2nd respondent announced the suspension of the appellant on radio and television of Kwara State. Consequent upon this suspension which the 2nd respondent claimed were being investigated, allegations were raised by Councilors of Ekiti Local Government against the appellant.
On 21st December, 2005, there was a meeting of the council at Isolo Opin which decided against investigation of the allegations against the appellant. On 22nd December, 2005, another meeting of the Council was held at Alakaka Hotel, Omu-Aran in another Local Government Area i.e. Irepodun Local Government wherein a decision of the council was allegedly taken to request the Chief Judge of Kwara State to constitute a panel to investigate the allegation under section 28 of the Local Government Law. The decision of the Council was not received by the Chief Judge until the 19th January, 2006. Twenty-eight days after the decision was taken.
The appellant filed an action in which the power and authority of the Chief Judge to act on the resolution of the council and his suspension were challenged. While the case was pending. after all the respondents have caused appearance by counsel in the matter and inspite of written protests, the Chief Judge appointed a 7-man panel to investigate the appellant. The appellant and his counsel took their protest to the Panel, submitted the court processes to the panel. The Panel disregarded the court processes and proceeded to conduct investigation as directed by the Chief Judge.
The plaintiff (claimant) filed an originating summons and sought the declarations stated earlier on in this judgment. In the end, the learned trial Judge held thus:
“Though the suspension of the claimant has been found to be unlawful and unconstitutional, the procedure for his removal as chairman however is found to be lawful and constitutional. Accordingly, I hereby dismiss this suit and enter judgment in favour of the defendant”.
Dissatisfied with the judgment of the lower court, the appellant – through his counsel filed a notice of appeal consisting of seven grounds.
Learned counsel for the appellant, in a brief settled by Chief A. S. Awomolo, SAN distilled from the said grounds of appeal three (3) issues for determination as follows:
“(i) Whether the learned trial Judge was right in failing to pronounce upon and nullify the appointment by the Chief Judge of a panel to investigate the allegations against the appellant while the suit challenging the legality of the appointment was pending.
(ii) Whether the learned trial Judge was right in acting upon inadmissible evidence despite the mandatory provisions of the Evidence Act.
(iii) Whether the learned trial Judge having held that the suspension of the appellant under section 29 of the Local Government Law of Kwara State, 2005, was unconstitutional, illegal, null, void and of no effect whatsoever, can turn around to validate the removal of the appellant by the respondent.”
On their part, the respondents’ counsel in a brief settled by Saka Isau, SAN, Attorney-General of Kwara State did not identify any issue for determination but adopted the issues raised for determination by the appellant.
On the 13th day of February, 2007, when the appeal came before us for hearing, learned counsel for the parties, in accordance with the rules of this court adopted their briefs of arguments.
Chief (Mrs.) Awomolo adopted their brief dated 30/11/2006 but filed on 1/12/2006). In her oral submissions in amplification of the said brief, the learned counsel submitted that, section 28(5) of the Kwara State Local Government Law. 2005 which provides for 7 days within which a Local Government Council Speaker to inform the Chief Judge to appoint a 5 man panel to investigate an allegation against a chairman also binds the Hon. Chief Judge. The Chief Judge must act within those days, she further submitted. Learned counsel submitted that the Hon. Chief Judge in this matter inaugurated a 5-man panel 68 days after he was informed. He was informed on 21/12/2005 it was only on 27/02/2006 that he inaugurated the panel. She urged us to allow the appeal.
Mr. J. A. Mumini, Director of Public Prosecutions, Kwara State, Ministry of Justice adopted the respondents’ brief dated and filed on 15/01/2007. He submitted on issue No. 1 that by the rule of literal interpretation of statute, the 7 days referred to under section 28(5) of the Local Government Law of Kwara State, 2005, referred only to the period within which the speaker of the Legislative Assembly is to inform the Chief Judge to set up a Committee to investigate the allegation against the appellant and not the period within which the Chief Judge is to set up such a Committee.
Learned counsel further submitted that the Chief Judge having substantially complied with the provision of section 28(5) of the Local Government Law in the appointment of members of the investigating panel the trial court was right to have upheld the removal of the appellant.
Learned counsel argued that assuming but not conceding that the Chief Judge did not act timeously in appointing the members of the committee that in itself did not occasion a miscarriage of justice.
He urged us to dismiss the appeal.
Issue No. 1 is whether the learned trial Judge was right in failing to pronounce upon and nullify the appointment by the Chief Judge of a panel to investigate the allegations against the appellant while the suit challenging the legality of the appointment was pending.
Learned senior counsel for the appellant submitted that every matter or issue relevant and germane to the case of parties in any civil proceeding must be distinctly and clearly submitted for adjudication. Failure so to do is indicative of abandonment and the court has no responsibility to raise or determine it.
Learned counsel further submitted that, as a corollary and as a general rule, a court has a duty to pronounce on all material issues raised before it. Failure to pronounce on such issues has been interpreted to mean failure to do justice or denial of justice to the party whose matter is ignored. This is particularly so in this case where the issue if decided in favour of the appellant, as there was no denial by the respondents of the facts would have resulted in a decision in favour of the appellant. The failure of the court in this case with respect to determining the issue relating to the action in the removal of the appellant when the case was pending amounted to denial of fair hearing and it occasioned a miscarriage of justice.
It is the submission of the learned senior counsel that failure of the court in this case with respect to determining the issue relating to the action taken in the removal of the appellant when the case was pending amounted to denial of fair hearing and it occasioned a miscarriage of justice.
On the other hand, the learned senior counsel for the respondents contended that the trial Judge was right in the way and manner he arrived at his conclusion by dismissing the appellant’s case in its entirety. Learned senior counsel submitted that the law does not impose a style or a mode of writing a judgment on a Judge for as long as the aim of justice is achieved. He relied on the case of Adamu v. The State (1991) 6 SCNJ 33 at p. 40; (1991) 4 NWLR (Pt. 187) 530.
Learned senior counsel submitted that the trial Judge having been satisfied via evidence placed before it need not nullify the appointment of the panel of inquiry set up to investigate the appellant.
Necessity in the circumstance does not necessitate nullifying the appointment in the absence of any injunction by a competent court of record.
Learned senior counsel further submitted that contrary to the contention of the appellant that the respondent adopted a self help by not staying the Panel of Inquiry’s proceedings, the respondents strongly contended that they did not adopt self help nor took steps that have the effect or rendering the suit useless but rather acted in good faith all through with a view to ensuring dispensation of justice to all and sundry.
Now, the question to be asked from the onset is whether the appellant had a pending suit at the State High Court challenging his suspension by the 2nd respondent and an interlocutory application praying for an order restraining the 1st respondent from inaugurating a 5-man panel to investigate the allegations levelled against him by the 3rd respondent pending the determination of the substantive action.
I pause here to say that in answering the question posed above, recourse had to be made to the transcript record of proceedings of the trial court. A closer look at the said record will reveal the followings:
“(i) The originating summons was filed on the 23rd day of January, 2006, contemporaneously with a motion on notice for interlocutory injunction to restrain the defendants amongst other reliefs from investigating the appellant pending the hearing and determination of the substantive suit. See pages 49 – 80 of the records.
(ii) The defendants through their counsel filed their counter-affidavit to the originating summons on 9th March, 2005. See pages 87 -113 of the record.
(iii) The 1st defendant, the Chief Judge of Kwara State was served with all the court processes on the 10th day of February, 2006. See the affidavit of service of the bailiff of the High Court at page 119 of the record, where the bailiff swore to an oath as follows:-
‘I Jimoh Yahaya Senior Bailiff of High Court of Justice, Ilorin, the 10th day of February, 2006, I served upon C. B. Atolagbe (Mrs.) Senior Confidential Secretary writ of summons for determination hereto annexed issued out of this court at Hon. C. J.’s Chambers High Court of Justice, Ilorin complaint of plaintiff by delivering the same personally to C. B. Atologbe Senior Confidential Secretary at High Court of Justice, Ilorin.”
That aside, the respondents admitted vide paragraph 4(6) of their affidavit in support of their motion on notice to file their counter-affidavit out of time against the originating summons as follows:-
“That the court processes in respect of this case were served on the defendants separately.”
In the light of the foregoings the question posed a while ago must be answered in the affirmative. That is to say that at the time the 5-man panel was inaugurated; the appellant had a pending suit at the High Court challenging his suspension by the 2nd respondent.
Next but not the last question to be asked is whether in the light of the two processes served on the respondents, the 1st respondent was not duty bound to suspend the inauguration of the five man (5-man) committee pending the determination of the originating summons filed against them by the appellant.
In the case of Regd. Trustee Apostolic Church v. Olowoleni (1990) 6 NWLR (Pt. 158) 514 at 537 – 538, our eminent and erudite jurist, Nnaemeka-Agu, JSC held as follows:
“…Once parties have turned their dispute over to the courts for determination, the right to resort to self-help ends. So, it is not permissible for one of the parties to take any step during the pendency of the suit which may have the effect of foisting upon the court a situation of complete helplessness, or which may give the impression that the court is being used as a mere subterfuge, to tie the hands of one party while the party helps himself extra-judicially. Both parties are expected to await the result of the litigation and the appropriate order of court before acting further, in Chief Emeka Odumegwu v. Military Governor of Lagos State & Ors. (No.1) (1985) 2 NWLR (Pt. 10) 806 at pp. 821- 827, in the Court of Appeal, I invoked the principles to order a mandatory injunction to restore the applicant to possession which was wrested from him, vietarmis, during the pendency of the litigation. Cases decided in other common law jurisdictions show that the principle is the same. See such decision of English courts as Daniel v. Ferguson (1981) 2 Ch. 27, at p. 30; Agbor v. Metropolitan Police Commissioner (1969) 1 W.L.R. 703; Von. Joel v. Hornsey (1895) 2 Ch. 744. See also such decision of American Court as Clark v. Martin 49 pg. 289, 298-299; Cook v. Boynton 135 pg. 102, 197-944 and Jones v. Securities & Exchange Commission 80 L. Ed. 298 U.S. 1-33, 1015-1235 In The Military Governor of Lagos State & 2 Ors. V. Chief Emeka Odumegwu & Anor. (1986) 1 NWLR (Pt. 18) 621, the Supreme Court gave its stamp of approval to the principle, inter alia, that once the court is seised of the matter, no party has the right to take the matter into its own hands. For the executive in a State to resort to self-help during the pendency of the suit would amount to executive lawlessness, their Lordships held …”
In combined Trade Ltd. v. A.S. T.B. Ltd. (1995) 6 NWLR (Pt. 404) pg. 709 particularly at 710, it was held as follows:-
“It is a reprehensible conduct for any party to an action (or appeal) pending in court to proceed to take the law into his hands (without any specific order of the court) and to do any act which would pre-empt the result of the action. The courts frown against such a conduct and would always invoke their disciplinary power to restore the statute quo. In this case, the respondents who carried out the purported sale of the applicant’s properties before an application pending before the Court of Appeal, by so doing, exhibited a high degree of lawlessness in their conduct. Thus, the purported sale was a nullity (Odogwu v. Odogwu (1991) 8 NWLR (Pt. 208) page 253 at 260.”
Again, in the case of Ezegbu v. First African Trust Bank Ltd. (1992) 1 NWLR (Pt. 220) 699 at 724, the apex court held thus:
“None of the parties in litigation before a court of law is allowed to take the law into his own hands and foist upon the court of ‘fait accompli’ thereby rendering it impossible for the court to arrive at a decision one way or the other on the merits of the issue before it or render any decision it may take nugatory or futile. In the instant case, by holding the meeting, they had pre-empted any decision which could be made by the trial court thereby frustrating or stultifying the exercise by the court of its jurisdiction to determine the application one way or the other. Therefore, the Court of Appeal can properly set aside the whole proceedings of the meeting of 9th November, 1991 including all the decision reached thereat (Vaswani v. Savalach (1972) 1 All NLR 483; Ojukwu v. Gov. of Lagos State (1985) 2 NWLR (Pt. 10) 806 referred to and followed).”
I am of the firm view that in the light of the avalanche of decided authorities by the apex court, the question posed a while ago must be answered in the affirmative. For the avoidance of any doubt, I hold with ease, that the first respondent in becoming aware of the two processes filed by the appellant ought to postpone the inauguration of the 5-man penal set up to investigate the allegations levelled against him by the 3rd and 4th respondents.
The court, i.e. the Supreme Court and this court have not only frowned at self help but had consistently pull down and dismantled the edifice built on self help. In this case the suit was filed with the Chief Judge as the first defendant. He assigned the case to another Judge: he was duly served with the court processes. He was aware of the motion for injunction. He caused counsel to appear to defend the suit. When there were indications that the Hon. Chief Judge may take steps that have the effect of rendering the suit useless, counsel to the appellant wrote to respectfully caution against appointment of the panel while the case was pending. His Lordship the Chief Judge ignored this letter and gave no regards to the consequences of his action on the judiciary.
In the light of all that have been said, I am of the firm view that this court should and ought to pull down every edifice built on the panel. This issue is resolved in favour of the appellant and against the respondents.
Issue No.2 is whether the learned trial Judge was right in acting upon inadmissible evidence despite the mandatory provisions of the Evidence Act.
The respondents through one O. T. Afolayan, a Deputy Director in the Ministry of Local Government Affairs, Ilorin swore to a counter-affidavit in opposition to the affidavit in support of the originating summons sworn to by the appellant personally. The appellant at the, trial court objected to paragraphs 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 26, 27, 30, 31, 32 and 34 of the counter-affidavit.
The objections were based on the followings:
“1. That the deponent was not a staff of the office of the Chief Judge. He was not a staff of the Ekiti Local Government Council, Isolo Opin. He was not competent to make categorical statements on what happened in the office of the Chief Judge or the Local Government Secretariat or meeting chambers at Isolo Opin. If he had derived his information from a staff of the office of the Chief Judge, Secretary to the councilor member of the council they were not matters within his personal knowledge and, the Evidence Act demands the disclosure of the source and the circumstances of his source of knowledge of the information.
2. That some of the paragraphs of the affidavits were conclusions, legal opinion or matters suitable for submissions by a legal council and therefore incompetent and should be struck out.
The learned trial Judge concluded that only paragraph 27 was a conclusion and thereby had to be struck out, please see pages 156, 1-10 of the records.”
Learned counsel for the appellant urged us to note that the case under consideration was initiated vide originating process whereby all evidence including documentary were affidavit evidence. Learned counsel argued that, the trial Judge misconceived the objections when at pages 155 – 156, concentrated its attention on “competence of the deponent” rather than compliance with mandatory duty to disclose source of information and circumstances of such disclosure. The competency of the deponent was not the fulcrum of the objection, he further argued.
Learned senior counsel submitted that, the fact that a person has authority to depose to an affidavit does not dispense with the mandatory requirements of stating the source of the information or the facts contained in the affidavit. In this case if Mr. Afolayan derived his information from the records of government by virtue of his position he had the duty to disclose.
If he derived the information from interaction, meeting or conference with the Clerk, Councilor, Chairman of the Ekiti Local Government, or the Chief Judge, he had the duty to disclose that source. He woefully failed to comply with the law and the trial court did not advert to it in respect of the affidavit. He relied on the case of Adeleke v. Anike (2006) 16 NWLR (Pt. 1004) 131.
Learned senior counsel further submitted that neither the trial High Court nor counsel can compromise or agree to admit evidence which are contrary to the provisions of the Evidence Act. He relied on the cases of Federal Military Government v. Sani (No.2) (1989) 4 NWLR (Pt. 117) 624; Governor of Lagos State v. Ojukwu (1986) 1 NWLR (Pt. 18) 621; Fawehinmi v. IGP & 2 Ors. (2000) FWLR (Pt. 12) 367; (2000) 7 NWLR (Pt. 665) 481.
Learned senior counsel urged us to strike out the offending paragraphs of the counter-affidavit i.e. paragraphs 14, 15, 16, 17, 18, 21, 22, 23, 24, 25, 29, 30, 31, 32, 33 and 34 sworn to by the said Afolayan as they are in contravention of the said provisions of the Evidence Act.
For his part, learned senior counsel for the respondents submitted that the objection raised by the appellant to the said paragraphs is misconceived by virtue of section 84 of the Evidence Act.
Learned senior counsel submitted that the most important thing in the circumstance is for the court to be satisfied that it has been sworn before a person duly authorized which is the Commissioner for Oath. Also, the deponent is a Deputy Director in the Ministry of Local Government and Chieftaincy Affairs. It is pertinent to note that all the 16 Local Governments in Kwara State including Ekiti Local Government are directly answerable to the Ministry of Local Government hence the basic necessity to brief the Ministry of Local Government on their activities.
My Lords, it is crystal clear particularly in paragraph 3 of the respondents’ counter-affidavit at page 87 of the record that the said Mr. O. T. Afolayan deposed to the facts contained therein based on the consent of his employer and that of the respondents. So since the Ministry of Local Government controls Ekiti Local Government amongst others, it simply suggests to a reasonable prudent person that they must be appraised of all the developments in the Ekiti Legislative Council and I urged the court to so hold.
It is their contention that the deponent is competent enough to depose to such facts as contained in the respondent’s counter-affidavit which the learned trial Judge over ruled substantially the objections raised in relation thereto. The said paragraphs do not in any way offend sections 76, 77, 86, 87 and 88 of the Evidence Act and I urge the court to so hold.
Learned senior counsel further contended that the weight of judicial opinion is predominantly in favour of the court doing substantial justice rather than undue adherence to rules of technicalities. He relied on Okumagba v. Esis (2005) 4 NWLR (Pt. 916) 501. He urged us to hold that the trial Judge was right in overruling the objection raised by the appellant.
Now, section 76 of the Evidence Act requires that all facts to be proved in any proceedings except, the contents of document may be proved by oral evidence. And section 77 of the same Act states that oral evidence must in all cases whatsoever be direct. If it refers to a fact which could be seen, it must be the evidence of a witness who says he saw that fact. If it refers to a fact which could be heard, it must be the evidence of a witness who heard it. If it relates to a fact which could be perceived by any other sense or in any other manner, it must be evidence of a witness who says he perceived it.
Again, section 86 of the Act requires that any affidavit used in the court shall contain only statement of the facts and circumstances to which the witness deposes either of his own personal knowledge or from information which he believes to be true.
More importantly, section 88 of the Act provides that when a person deposes to his belief in any matter of fact, and his belief is derived from other sources other than his own personal knowledge, he shall set forth explicitly the facts and circumstances forming the ground of his belief.
I am of the considered view that the combined reading of sections 76, 77, 86, 87 and 88 of the Evidence Act is that a deposition in an affidavit is an evidence of the fact in issue and such deposition must be direct. Where the evidence is derived from some other person such person and the circumstances of the knowledge, which he believes must be stated so that the court and the other party deposing to contrary evidence can confirm or ascertain the truth.
In the case of Adeleke v. Anike (supra) this Court per Cecilia Nzeako, JCA, held as follows:
“The practice for deposition to and use of affidavit in court proceedings is set out in the Evidence Act. See sections 78 – 90 thereof. Nothing stops a third party, in the same way, as he can testify as a witness in a suit, from swearing to an affidavit in a motion in which he is not a party. The proviso to this in the Act is that the affidavit must contain only statement’ of facts which are within the deponent’s own knowledge or which he obtained from information which he believes to be true, but, if his belief is from sources other than his own personal knowledge, he must state explicitly in the affidavit the fact and circumstances which form the grounds of his belief. See sections 86 and 89 of the Evidence Act. Also, if the belief of the deponent is derived from, information received from another person, the name of his informant must be stated with reasonable particulars respecting his informant, the time of his information. His place and circumstance thereof. See section 89 of the Act. Section 90(f) requires that the affidavit shall be signed by the deponent. It is that the section refers to the deponent as ‘witness’.”
Again in the case of Chief Francis Edu v. Commissioner for Agriculture Water Resources and Rural Development (2000) 12 NWLR (Pt. 681) 316 at 333, this court held as follows:-
“By virtue of sections 86, 87 and 88 of the Evidence Act an affidavit must contain only those facts of which the maker or deponent has personal knowledge or which are based on information which he believes to be true and the maker must state the name and full particulars of his information. No legal argument, conclusion or other extraneous matter must be included. (Joseien Holding Ltd. v. Lornamead Ltd. (1995) 1 NWLR (Pt. 371) 254.”
At pages 332 – 333, Edozie, JCA (as then was) held thus:
“It is not disputed that the facts deposed to in the appellants’ supporting affidavit by Mr. Mathew Ekpo are not within his personal knowledge.”
Again, at page 334 of the same report, Ekpo, JCA held as follows:-
“Sections 86, 88 and 89 of the Evidence Act, 1990 are mandatory or obligatory and non-compliance is bound to lead to the rejection of the affected paragraphs of the affidavit.”
Learned senior counsel for the respondent made heavy weather out of section 84 of the Evidence Act which provides as follows:”
That court may permit an affidavit to be used, notwithstanding it is defective in form according to this Act, if the court is satisfied that it has been sworn before a person duly authorized.”
With due respect to the learned senior counsel, the defect in the counter-affidavit of the respondents is much more than a defect in form. It is a defect as to substance which cannot be cured by the provision of section 84 of the Evidence Act and I so hold. Paragraphs 14, 15, 16, 17, 18, 20, 22, 23, 24, 25, 29, 30, 31, 32, 33 and 34 in the light of the foregoing must be and they are accordingly struck out.
This issue like the previous issue is resolved in favour of the appellant and against the respondent.
Issue No.3 is whether the learned trial Judge having held that the suspension of the appellant under section 29 of the Local Government Law of Kwara State, 2005, was unconstitutional, illegal, null, void and of no effect whatsoever, can turn around to validate the removal of the appellant by the respondent.
Learned senior counsel submitted that section 28 of the Local Government Law is a special provision designed to regulate exclusively the removal procedure of elected chairman of the Local Government. It is a procedure that is akin to section 188(i) of the Constitution of the Federal Republic of Nigeria, 1999.
It is the submission of the learned counsel that the timing in sub-section 5 of section 28 is a deliberate legislative provision to underscore the importance of timeous and expeditious determination of the allegation against the Chairman/Chief Executive of the Local Government. The seven (7) days in the one sentence, notwithstanding the grammatical punctuation is applicable to the Speaker and the Chief Judge.
The learned senior counsel further submitted that the provision of sub-section 5 of section 28 from its wordings and intendment is unambiguous. The above sub-section means the following:-
“(i) The Speaker shall inform the Chief Judge to appoint a panel of five (5) persons within seven (7) days of the passing of a motion under sub-section (4) of the section;
(ii) The Chief Judge shall also within the ambit of 7 (seven) days appoint a panel of 5 five persons who in his opinion are of unquestionable integrity”. The use of the word ‘shall’ in the above sub-section implies a mandatory compliance. See Oyeyipo v. Oyinloye (1987) 1 NWLR (Pt. 50) page 356.”
Learned senior counsel referred to paragraph 27 of the respondents’ counter-affidavit wherein they averred thus:-
“That the duty of the Chief Judge to appoint as-man panel was carried out within the statutory limit.”
Then he posed this question: “What is the statutory limit?
Learned counsel answered thus:-
“There is nothing in the defendant counter-affidavit and submissions to show this,”
Learned senior counsel submitted that this cannot be the intendment of the provisions of section 28(5) of the Law. This is because section 28(7) of the same law enacts thus:-
“A panel appointed under this section shall within one month of its appointment, report its findings to the Legislative Council.”
Learned senior counsel contended that from the provision of section 28(7) and 9 of the Local Government Law, it (the law) makes it crystal clear on the timing of the impeachment proceedings contrary to the position taken by the respondents that the Chief Judge has no statutory limit in the appointment of members of the panel.
Learned senior counsel submitted that the trial court having held that the suspension of the appellant was unconstitutional, invalid, null and void, he (appellant) cannot subsequently be removed by the defendants.
Learned senior counsel further submitted that the learned trial Judge having declared the suspension to be invalid, unconstitutional, null and void has ipso facto rendered his removal null and void since the suspension was based and/or predicated on the Notice of Allegation of Diversion and Misappropriation of Funds of Ekiti Local Government vide letter dated 8th December, 2005.
Learned senior counsel for the respondents contended that the learned trial Judge considered all the affidavit evidence adduced by both sides before arriving at its final conclusion by dismissing the appellant case in its entirety. He opined that suspension is not synonymous with removal. The initial suspension was nullified by the trial Judge for non-compliance with the laid down procedure while the removal was upheld for compliance with the due process of fair hearing and adherence to the enabling laws. So suspension and removal are not the same and he urged the court to so hold.
Learned senior counsel urged us to hold that the appellant’s removable from office having complied with the laid down procedure was in order and that the appeal lacks merit and that same ought to be dismissed.
The learned trial Judge on page 156 of the record held as follows:-
“Though the suspension of the claimant has been found to be unlawful and unconstitutional, the procedure adopted for his removal as Chairman however is found to be lawful and constitutional. Accordingly, I hereby dismiss this suit and enter judgment in favour of the defendants. ”
The question to be asked from the onset in dealing with this issue is this, can it be said in the light of all that transpired in this case, the procedure adopted in removing the appellant is found to be lawful and constitutional.
The senior counsel for the appellant submitted quite copiously that apart from setting up the panel that removed the appellant from his seat as the Chairman of Ekiti Local Government, during the pendency of an action, the setting up of the penal itself was contrary to the provision of section 28(5) of the Local Government Law under which the appellant was removed from office. It is the contention of the learned senior counsel that the panel was set up 68 days after the Chief Judge was informed by the Speaker of the Legislative House. This learned counsel vehemently submitted, contravenes the provision of the said section.
Learned counsel for the respondents submitted quite copiously too that the section does not impose a time frame on the Chief Judge within which the panel must be inaugurated.
I pause here to say that, to do the justice to the two competing arguments of the learned senior counsel, section 28(5) of the said Law needs to be critically examined and analysed with a view to finding out what it entails.
“28(5) Within seven days of the passing of a motion under subsection (4) of this section, the Council Speaker shall inform the Chief Judge, who shall appoint a panel of five persons who in the opinion of the Chief Judge are of unquestionable integrity not being members of
(a) the public service;
(b) a legislative house; or
(c) a political party.”
it is appropriate at this juncture to state that impeachment proceedings are in a class of their own. Time, needless to say is of the essence in all impeachment proceedings.
In the case of Dantosho v. Muhamed (2003) FWLR (Pt. 15) page 1717; (2003) 6 NWLR (Pt. 817) 457, particularly at 1742, the apex court per Uwaifo, JSC held as follows:
“Furthermore, it is the law that in construing any provision of a statute, a court ought, and is indeed bound, to consider any other parts of the statute which throw light upon the intention of the legislature and which may serve to show that the particular provision ought not to be construed as it would if considered alone without reference to such other parts of the statute. See Colquhoum v. Brooke (1889) 14 APP CA. 493 at 506 per Lord Herschell. The same principle was stated by this court in several cases including Aqua Ltd. v. Ondo State Sports Council (1988) 4 NWLR (Pt. 91) 622 at 641 – 642 per Wali, JSC and Salami v. Chairman, L.E.D.S. (1989) 5 NWLR (Pt. 123) 539 at 550-551 per Obaseki, JSC.”
I am of the considered view that to find what section 28(5) of Local Government Law entails, recourse has to be made to other sections of the law and in particular section 28(7) of the said law, which provides thus:
“A panel appointed under this section shall within one month of its appointment, report its findings to the Legislative Council.”
The section stated supra, makes it crystal clear on the timing of the impeachment proceedings. If as the respondents contend, to wit that the Chief Judge has no statutory limit in the appointment of members of the panel, how will the calculation of the period of the submission of the report of the panel starts to run?
Again, section 28(9) of the same Law gives a time limit for the consideration of the panel’s report by the Legislative House. I am of the firm view that the learned trial Judge was wrong to hold thus:
“I also hold that since the Chief Judge is not mandatory (sic) required by section 28(5) of Local Government Law, 2005, to constitute the Investigative (sic) Panel within 7 days or within any time frame for that one 5-man Investigative Panel on a date far in excess of the days is valid, lawful and constitutional.”
However, that is not the end of the matter. The issue under consideration at the risk of repeating myself is whether the trial Judge having held that the suspension of the appellant was unconstitutional, illegal, null and void and of no effect whatsoever, can turn a round to validate the removable of the appellant.
I am of the considered view that the trial court having held that the suspension of the appellant was unconstitutional, invalid, null and void cannot subsequently be removed by the respondents. This is because there was no evidence before the trial court that when he was suspended for alleged misconduct, he was queried for other offences or misconduct which necessitated his removal by the Legislative House.
The question to be asked at this stage is; upon what offence(s) or misconduct did the Governor suspend the appellant which led to his removal by the House of Assembly under section 28(5) of the Local Government Law? The answer to this poser is that the appellant was removed based on the misconduct which he had inter alia been suspended by the Governor which the trial court later found to be invalid and unconstitutional.
In the light of all that I have said, this issue is resolved against the respondents in favour of the appellant. On the whole, this appeal is meritorious and it is accordingly allowed. The decision of the lower court is hereby set aside. That the removal of the appellant by the 2nd respondent is unconstitutional, null and void. He should be re-instated forthwith and be paid all his entitlements as the Chairman of Ekiti Local Government of Kwara State from the time of his suspension to date and thereafter till he is constitutionally and lawfully removed.
OGUNWUMIJU, J.C.A.: I have had the privilege of reading the erudite judgment just delivered by my learned brother, Tijjani Abdullahi, J.C.A. I agree absolutely with his concise and brilliant reasoning and conclusions. I will however add a few words. The issues raised in this appeal which we are called upon to determine are as follows:
“(i) Whether the learned trial Judge was right in failing to pronounce upon and nullify the appointment by the Chief Judge of a Panel to investigate the allegations against the appellant while the suit challenging the legality of the appointment was pending.
(ii) Whether the learned trial Judge was light in acting upon inadmissible evidence despite the mandatory provisions of the Evidence Act.
(iii) Whether the learned trial Judge having held that the suspension of the appellant under section 29 of the Local Government Law of Kwara State 2005, was unconstitutional, illegal, null, void and of no effect whatsoever, can turn around to validate the removal of the appellant by the respondent.”
To my mind issue one as couched by appellant’s counsel has three facets to it. The first is whether the trial Judge was right in failing to pronounce upon the validity of the appointment of the 5man panel by the Chief Judge to investigate the allegations against the appellant. The 2nd facet is whether the Hon. Chief Judge of Kwara was right to set up the panel to investigate the allegations against the appellant while a suit challenging the legality of the Constitution and inauguration of such panel was pending.
On the first facet of this issue, I have carefully read the judgment of the lower court complained against which is contained on pages 138-156 of the record of proceedings, pages 153-154 of the judgment of the trial court set out below shows clearly that the learned trial Judge gave full consideration and pronounced on the issue of whether the Hon. Chief Judge acted within the provisions of S. 28(5) of the Kwara State Local Government Law, 2005. The following is the opinion of the learned trial Judge on this issue:
“I will now consider whether the action of the Chief Judge in constituting the 5 man investigative panel after the expiration of 7 days period was valid.
In this case, there is evidence that on 21st December, 2005 the Ekiti Legislative Council passed a resolution vide exhibit B that the allegations against the suspended Chairman (claimant) Dele Abiodun be investigated into.
There is also evidence vide exhibit C that the Speaker of the Legislative Council, Hon, (Mrs.) Bukola Kareem on the same day, 21st December, 2005, through a letter, passed the Council’s resolution to the Hon. Chief Judge of Kwara State, the Council’s official stamp on the letter shows clearly that it was dispatched on the same day to the Chief Judge for further necessary action. The claimant however averred in paragraph 15 of his affidavit in support of summons that council’s notice was not delivered to the Chief Judge until Thursday, 19th January, 2006 which was more than the 7 days allowed by S. 28(5) of Local Government Law, 2005.
This claim however is unsubstantiated. He who asserts, must proof: See Kokoro-Owo v. Ogunbambi (1993) 8 NWLR (Pt. 313) 627; Olufosoye v. Fakorede (1993) 1 NWLR (Pt. 272) 747.
Therefore, I hold that the Ekiti Legislative Council having conveyed or dispatched its resolution for further inquiry against the suspended Chairman to the Chief Judge of Kwara State on 21st December, 2005 which was within the 7 days period allowed by law, the procedure adopted is proper and in accordance with the provision of S. 28(5) of the Local Government Law, 2005.
I also hold that since the Chief Judge is not mandatorily required by S. 28(5) of Local Government Law, 2005, to constitute the Investigative Panel within 7 days or within any time frame for that matter, the Constitution or appointment of the 5-man investigative panel on a date far in excess of the 7 days is valid, lawful, and constitutional.” (Pages 153-154 of the records)
It is clear from the above that the learned trial Judge pronounced copiously on this aspect of the issue.
The second facet of this issue is whether or not the learned trial Judge was right to have failed to consider and render an opinion on the question of whether the Hon. Chief Judge was right to have gone ahead to inaugurate a panel to investigate the appellant when to his knowledge a suit seeking mandatory and injunctive orders to prevent him from doing so was pending to his knowledge. I quite agree with the learned Senior Advocate that the learned trial Judge carefully avoided making a pronouncement one way or another on this aspect of the issue. I must take the position that a Judge is obliged to consider and determine all issues properly raised before him which are not hypothetical, See Okonkwo Okonji & Ors. v. George Njokanma & Ors. (1999) 12 SCNJ 259, (1999) 14 NWLR (Pt. 638) 250; Attorney General, Federation v. A.I.C. Ltd. (2000) 6 SCNJ 171; (2000) 10 NWLR (Pt. 675) 293. However, I do not buy the argument of learned Senior Advocate that the failure of the learned trial Judge to pronounce on this aspect of the issue has per se occasioned miscarriage of justice. The effect when an issue is raised by a party and the court omits to pronounce on it for whatever reason depends on the circumstances of each case. It is my view that a look at the process filed at the lower court shows that the court was not called upon to determine that aspect of the issue that is whether the Chief Judge ought not to have proceeded to institute the panel after he was served with court process. It became an ancillary issue during the trial since the Chief Judge proceeded to inaugurate the investigative panel after the case had been filed and he was served with process.
In such a situation, being an ancillary issue which came up during the course of the trial itself, I do not think the failure of the learned trial Judge to comment on it has occasioned miscarriage of justice in the circumstances of this case. See Ebe Ebe Uka & Anor. v. Chief Kalu Okorie Irolo & Ors. (2002) 7 SCNJ 137: (2002) 14 NWLR (Pt. 786) 195. It is only where the issue is a vital and momentous one to the determination of the questions placed before the court that the failure to resolve it vitiates a judgment. See Benneth Ude Agu v. Maxwell Nnadi (2002) 12 SCNJ 238; (2002) 18 NWLR (Pt. 798) 103.
The 3rd facet of this issue is whether or not the Hon. Chief Judge of Kwara State was right to set up and inaugurate a panel to investigate the appellant while a suit challenging the legality and validity of his suspension, and the Constitution of a Panel of Inquiry was pending.
One appreciates the delicate balancing act which Hon. Chief Judge has to engage in, while navigating the potentially stormy political waters when called upon by the provisions of the Constitution to take up a not too palatable role as a referee in a political quarrel. It is indeed not an enviable position. However, the doctrine of separation of powers entrenched in the 1999 Constitution in this instance should not be lightly ignored in this case which is of upmost importance to the entrenchment of the rule of law and the proper practice of the presidential system of Government. The courts are at all times to be impartial arbiters between the citizenry, and the state machinery. The rule of law must be followed though the heavens may fall. The rule of law in this instance is that immediately the Hon. Chief Judge was properly served with process preventing him from taking further steps in the matter in controversy, he ought to have abstained from doing so no matter whose ox was gored. The Hon. Chief Judge is the custodian of the rule of law in Kwara State. The circumstances of this case shout from the roof tops the rape on the judiciary and judicial powers. We Judges should not be the ones to rape the judiciary and violate its hallowed portals by wilful neglect and/or a show of contempt for the judicial process. The Hon. Chief Judge’s show of contempt for the judicial process inspite of being served as a party when a notice of motion for injunction and substantive matter was pending is not good enough. When a case is before the court of law it is very wrong to try to overreach the opposing party by taking steps that could scuttle the judicial process and foists a fait accompli on the courts. The inauguration of the panel by the Hon. the Chief Judge ought not to have been done. See Combined Trade v. ASTB Ltd. (1995) 6 NWLR (Pt. 404) pg. 709 at 710; Ezegbu v. FATB Ltd. (1992) 1 NWLR (Pt. 220) pg. 699 at 724.
The second issue for determination is whether or not the learned trial Judge should have considered and acted upon the counter-affidavit evidence of one Mr. Afolayan who the appellant claimed was not competent to swear to the affidavit and that in particular paragraphs 26-34 of the said affidavit run foul of Ss. 87, 88 and 89 of the Evidence Act. The objection to the counter-affidavit sworn to by Mr. Afolayan is that he was not a staff of the Ekiti Local Government or a privy of any of the disputing parties. The learned trial Judge was of the following view:-
“Though Mr. Afolayan is not a staff of Ekiti Local Government, he is however a staff of the Ministry of Local Government and Chieftaincy Affairs as a Director. More importantly, it should be noted that an affidavit being evidence that a court of law may rely upon, it cannot be restricted to the parties to the litigation alone. In order words, a witness seized of the facts of a case can also depose to an affidavit or counter-affidavit as in this case, on behalf of a party to the action. See M.V.S. Araz v. Scheep (1995) 5 NWLR (Pt. 447) 204.
On the basis of the above, I hold that Mr. O. T. Afolayan is a competent person and that the counter-affidavit deposed to by him on behalf of the defendants in this case is relevant, proper and in order.” (Page 155 of the records)
I agree with the respondents’ counsel that any person in possession of relevant facts can depose to those facts in support of any party to the litigation. That is the general rule. This position the question of the competence of the deponent has been tacitly conceded on page 20 of the appellant’s brief. See Adeleke v. Anike (2006) 16 NWLR (Pt. 1004) pg. 131. That general rule is however subject to the provisions of the Evidence Act. In deposing to the counter – affidavit on behalf of the respondents, did paragraphs 26-34 offend the provisions of the Evidence Act? In a court of law only direct evidence of facts is admissible. I have carefully read the relevant paragraphs of the counter-affidavit under review, the affidavit stated some categorical facts without giving the source of these facts. Since we are all agreed that the deponent not being a member of the Local Government Council but a staff of the Council who should ordinarily not be a participant in Legislative Council decisions, then how and where did he come about the information contained in his counter-affidavit? The fact that a person has authority to depose to an affidavit does not dispense with the mandatory requirements of stating the source of the facts contained in the affidavit. The deponent did not state his source of information. This is contrary to S. 89 of the Evidence Act which states as follows:
“S.89. When such belief is derived from information received from another person, the name of his informant shall be stated, and reasonable particulars shall be given respecting the informant, and the time, place and circumstances of the information.”
In Gov. of Lagos State v. Ojukwu (1986) 1 NWLR (Pt. 18) pg. 621, it was held that the informant must be named if the deponent is swearing to information given to him by another person. Thus hearsay in an affidavit is not countenanced especially if the deponent swears to what he was told by an unnamed person. See Backlays Bank v. C.B.N. (1976) 6 SC 175.
In the circumstances, the relevant offending paragraphs 14, 15, 16, 17, 18, 20, 22, 23, 24, 25, 29, 30, 31, 32, 33 & 34 of the counter-affidavit are hereby struck out. I wish to add that the argument of learned respondents’ counsel that the defect is merely in form and should therefore be waived by virtue of S. 84 of the Evidence Act is with respect, a misconceived argument. There is surely a world of difference between a defect in form and a defect in substance. When there is a defect in form, there is a contravention of S. 90 of the Evidence Act. These may be in the form of an improper title or heading of the affidavit, erasure or alteration, none indication of full name, profession, residence etc, failure to append signature or illiterate jurat, etc. The above instances though not exhaustive constitute examples of defect in form as opposed to defect in the substance of the affidavit. The substance of the affidavit constitutes the evidence before the trial court and its veracity must be as ascertainable as the evidence of a witness on oath in the witness box giving oral testimony. It is not enough to make sweeping statements of facts which are not stated to be within the knowledge of the maker communicated by an unnamed person to the maker. Suffice it to say that the 2nd issue is resolved in favour of the appellant.
The 3rd issue is whether or not having held that the appellant’s suspension was illegal, null and void, the learned trial Judge could hold that his subsequent removal from office was valid.
The learned trial Judge held that the suspension of the appellant was unlawful for the following reasons:
“From the affidavit evidence before this court, the fact that the claimant, Hon. Dele Abiodun was in September 2005 suspended from office by the 2nd Defendant as Chairman of Ekiti Local Government of Kwara State is not in dispute at all.
The claimant, in his affidavit in support of originating summons stated as follows:
‘6. That sometimes in the month of September, 2004 (sic) a body known as “Kwara Democracy Monitor” published in its September Edition of its Journal some matters wherein the activities of Ekiti Local Government Council featured.
7. That the 2nd defendant was not happy with the publication hence he on 16/9/2005 caused to be announced on radio/television of Kwara State Government my suspension from duties and prohibition from performing the functions of office of the Chairman without any opportunity of hearing from me.’
The defendants particularly the 2nd defendant did not deny that the Claimant was suspended from office as claimed. All that he said is that the claimant was suspended by the Governor upon a resolution supported by 2/3 majority members of the House of Assembly. See paragraph 8 of the defendants’ counter-affidavit.
Even though no letter of suspension is attached to the originating summons as exhibit, a copy of the Herald Newspaper of Wednesday, February, 2006 which forms part of the processes of this case having been attached as exhibit 1, to an affidavit of urgency in respect of a motion ex-parte filed by the claimant on 9/2/2006 clearly shows that the claimant was suspended from office as Chairman of Ekiti Local Government by the Governor of Kwara State in 2005.
There is however no evidence before the court that the suspension was after due investigation and upon a resolution supported by the votes of a simple majority of the members of the House of Assembly that he be so suspended.
The Ekiti Local Government Council’s letter dated 8th December. 2005 titled: “Notice of Allegation of Diversion and Misappropriation of Funds of Ekiti Local Government by the Chairman Hon. Dele Abiodun” i.e. exhibit Dele 1, does not and cannot meet the requirements of S. 29 of the Kwara State Local Government Law, 2005.
Apart from the fact that the notice of allegation was dated some months after the suspension of the Chairman (claimant) there is no evidence whatsoever that the suspension was upon a resolution supported by the votes of a simple majority of the members of the House of Assembly.
It is therefore clear that the suspension of the claimant as Chairman of Ekiti Local Government by the 2nd defendant, Governor of Kwara State in September 2005 was in breach of the provisions of S. 29 of the Kwara State Local Government Law, 2005.”
(Pages 148-149, 150 of the records)
There seems to be no quarrel on the finding of the learned trial Judge on this aspect of the issue. The fulcrum of the appellant’s submission in this regard is that the Hon. Chief Judge of Kwara State failed to comply with S. 28(5) of the Local Government Law of Kwara State by constituting a panel of 5 persons to investigate the appellant after the expiration of the 7 days mandatory period when His Lordship ought to have done so. I will reproduce S. 28(5) of the Local Government Law, 2005 which reads:-
“S. 28(5) Within seven days of the passing of a motion under sub-section (4) of this section, the Council Speaker shall inform the Chief Judge, who shall appoint a panel of five persons who in the opinion of the Chief Judge are of unquestionable integrity not being members of:
(a) the public service;
(b) a legislative house: or
(c) a political party.
to investigate the allegation as provided in this section.”
Let us compare this with another legislation or the grundnorm from which it is derived which is the 1999 Constitution.
S. 188(5) of 1999 Constitution of Nigeria, provides:
“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 – to investigate the allegation as provided in this section.”
There is no gainsaying that S. 28 of the Local Government Law is a special provision designed to regulate exclusively the removal procedure of the elected Chairman of the Local Government.
The emphasis in placing the time to act first is a deliberate legislative tool to underscore and emphasize the importance of timeous and expeditious determination of the allegations against the Chairman. I am of the firm view that the phrase at the beginning of the sub-section is meant to encapsulate the whole provision in the sub-section. In interpreting the provisions of sections of any statute, the entire statute should be considered as a whole rather than construing a part of it in isolation. See Ojukwu v. Obasanjo (2004) 7 SCNJ 33; (2004) 12 NWLR (Pt. 886) 169. This is also in consonance with the golden rule of interpretation which is that courts must determine and give effect to reflect the intention of the law maker. See INEC v. Balarabe Musa (2003) 1 SCNJ 1; (2003) 3 NWLR (Pt. 806) 72. This leads us to a canon of interpretation which is the purposive approach. In this rule of interpretation, where it is applied, it gives rise to the need to consider the history and other extraneous matter and events that reveal the purpose and true intention of the legislation. See Att. Gen., Lagos v. Att. Gen., Federation and 35 Ors. (2003) 6 SCNJ 1; (2003) 12 NWLR (Pt. 833) 1. There is no gainsaying that the true purpose of this legislation is the speedy determination of the process for the removal of a political office holder. The 1999 Constitution of the Federal Republic is almost in pari materia with the section of the Local Government Law in contention and the interpretation we must give of the provisions are to my mind quite clear and to the effect that the time limit of seven days binds both the Speaker of the Local Government Legislative Council and the Hon. Chief Judge. Their respective roles in the process must be initiated and completed with regard to S. 28(5) within 7 day-s thereof. A wholistic reading of S. 28 of the Local Government Law shows clearly that that was the intention of the legislature. The courts are obliged to prefer an interpretation which will serve the overall interest of the legislation and best convey its objective and purpose moreso where the wordings are clear and unambiguous and such interpretation will not lead to absurdity. See Bola Tinubu v. IMB Securities (2001) 10 SCNJ 1: (2001) 16 NWLR (Pt. 740) 670. I am disposed to agree with learned appellant’s counsel that the seven days mandatory period applies both to the Speaker and the Hon. Chief Judge within which both must have performed the duties imposed on them by law. I must distinguish the circumstances of this case from where a Judge performs judicial functions. The duties of the Hon. Chief Judge in these circumstances are administrative and legal time limit can be properly placed within which to perform same. The use of the word “shall” indicates that a mandatory obligation is imposed on both the Speaker and the Chief Judge, the Chief Judge empanel led the Investigation Committee 68 days after he was notified, an act which was ultra vires his powers, Thus, whatever the outcome of the panel which is based on nothing is also null and void and of no effect.
It is also pertinent to note that the appellant was suspended before the panel to investigate him, was set up thereby setting the cart before the horse. The suspension of the appellant was announced on 16/9/2005. The respondents’ defence is that the appellant was suspended on a 2/3 resolution of the majority of the House of Assembly, when did the investigation the basis of the 2/3 resolution take place? The law is that there must have been the report of an investigation made to the Council Legislature indicting the Chairman, then a 2/3 resolution by the Local Government Legislature to remove him from the office before any action can be taken against him, There is no provision for his unilateral suspension by the Executive Governor of the State. When political office holders are duly elected by the people exercising their democratic rights to elect those who should govern them, they should only be liable to removal by a college of their peers (who did not vote them in) through the strictest adherence to the provisions of the Constitution and the Law. In my humble view it is the duty of the courts to ensure that the electorate is not lightly indirectly deprived of their right to choose their rulers due to unseeming political intrigues and in-fighting. It would be irresponsible of the courts to watch while the electorates are unlawfully deprived of the benefit of being governed by those they have voluntarily chosen to govern them.
Finally, I agree with my learned brother that the removal of the appellant as Chairman of the Ekiti Local Government by the 2nd respondent in the 1st instance and the 3rd and 4th respondents in the 2nd instance is unconstitutional, null and void. I abide by all the consequential orders made by my learned brother in this regard.
AGUBE, J.C.A.: I have had the privilege of reading in draft before now the lead judgment just delivered by my learned brother, Abdullahi, JCA and I agree with his reasoning and conclusion that this appeal succeeds. However, I will make my humble contribution by way of emphasis albeit with slight variation.
The gale of impeachments of Governors which has blown with such ferocious and obnoxious notoriety across States like Bayelsa, Plateau, Oyo, Ekiti, Anambra and Adamawa appears to be spilling over to the Local Government system as has been exemplified in the case at hand. Hitherto, and even now, inspite of the revolutionary judgments of our learned brothers of the Ibadan and Enugu Divisions of the Court of Appeal in the celebrated cases of Hon. Adeleke & 2 Ors v. Oyo State House of Assembly & 17 Ors. (2006) 16 NWLR (Pt. 1006) 608 and Belonwu v. Peter Obi (2007) 5 NWLR (Pt. 1028) 488 which have been given judicial assent by the Supreme Court, there were/are ardent apostles of the oft-quoted dictum of Pats-Acholonu, J.C.A. (as he then was) that Courts have no business plunging themselves into the murky waters or miasmic cauldron of what has now become the past times of political gladiators and their goons-impeachment proceedings.
The erudite Justice of blessed memory had apocalyptically warned that to brazenly enter into the miasma of political cauldron would leave the courts bloodied, as they would lose their respect in their quest to playing what he termed “Don Quixote De La Manche”.
There is no doubt that his prediction has come to pass when one considers the fact that in spite of the accolades and encomiums being lavished on the judiciary as a result of these landmark judgments on impeachment proceedings, only undiscerning minds would fail to realize how bloodied the judiciary has been in the hands of those who are expected to enforce her judgments. The case of Governor Ladoja which was re-enacted in recent times by the outright neglect and/or refusal to restore Governor Peter Obi’s security details, and premature retirement and/or dismissal of Chief Judges are clear manifestations of his Lordships warning in Abaribe v. Abia State House of Assembly (2001) 1 CHR 225 at 236-237; (2002) 14 NWLR (Pt. 788) 466 that impeachment proceedings being purely political questions:
“Beyond exercising its judicial powers as conferred on it by the Constitution to ensure equilibrium in the distribution of functions of government, the Court should exercise caution in invading the area that is prohibited by the Constitution.”
The need for the courts to be circumspect and act with trepidation in matters of this sort was emphasized by Ademola, J.C.A. in Alhaji Balarabe Musa v. Auta Hawa (1983) 3 NCLR 229 at 247 where he quoted in extenso the words of Felix Frank Furter in Baker v. Carr (1962) 369 US 186 which in part was to the effect that in impeachment matters relief lies not in the courts but to popular conscience that sears the conscience of the people’s representatives and that it would be self defeatist to make in terrorrem pronouncements and indulge in rhetoric full of promise but disappointing in hope.
The rationale behind the stance of the old school of thought as adumbrated in the words of Pats-Acholonu, J.C.A. again in the Abaribe’s case supra at 237 and Minister of Home Affairs v. Fisher (1989) A.C. 319 at 319 at 329 is that:
“It must be realized that in a matter relating to proceedings on impeachment the House of Assembly is exercising a judicial function.”
Against this background, section 188(10) of the 1999 Constitution appears to have been replicated in section 28(11) of the Local Government Law of Kwara State, 2005 which specifically provides inter alia that:-
“No proceedings or determination of the Panel or the Legislative Councilor any matter relating thereto shall be determined or questioned in any Court.”
In the recent case of Adeleke v. Oyo State House of Assembly supra at pages 683-684 Akaahs. J.C.A. illumined the dark recesses of the constitutional provisions relating to impeachment proceedings as has been replicated in the Kwara State Local Government Law, when he intoned that:-
“A close scrutiny of section 188 of the 1999 Constitution reveals that the procedure for impeachment of the Governor or his Deputy is not purely a legislative function since the Chief Judge of the State also has a role to play. I am of the considered view that where the action of the State House of Assembly in initiating impeachment proceedings is being questioned or the Chief Judge in constituting the Panel to probe the allegations of gross misconduct, the courts are entitled to ascertain whether those who voted for the investigation to be carried out reached two-thirds of the membership of the house. In the same vein, the exercise of discretion by the Chief Judge of empanelling the 7 members, if challenged can be looked into by the court.”
Coincidentally, in this appeal, the questions for determination in the lower court from the originating summons dated and filed on the 21st day of January, 2006 and the reliefs sought thereat were as follows:-
“1. Whether the suspension of the plaintiff/appellant and his prohibition from performing his functions as the Chairman of Ekiti Local Government by the 2nd defendant was valid, lawful and constitutional.
2. Whether the Chief Judge of Kwara State can lawfully exercise his powers of appointing a Panel of five (5) persons who shall investigate the allegation against the plaintiff as provided under section 20 of the Kwara State Local Government Law.
3. Whether the appointment, inauguration and proceedings of any panel of 5 persons to investigate allegations against the claimant under section 28 of the Kwara State Local Government Law is valid the Committee having been proposed, appointed, inaugurated more than 7 days mandatorily provided for under section 28 of the Kwara State Local Government Law, 2005, particularly when the powers given to the Chief Judge does not include power to extend the statutory 7 days period. “Reliefs being claimed”
“(i) A declaration that the suspension of the claimant (plaintiff/appellant) by the 2nd defendant is wrongful, illegal and a violation of the Constitution of the Federal Republic of Nigeria, 1999.
(ii) A declaration that the Chief Judge of Kwara State has no power to appoint, inaugurate the 5-man panel of persons to investigate allegations against the claimant, the same having been made after seven days of the statutory period.
(iii) A declaration that the request made to the Chief Judge of Kwara State by the 3rd defendant to appoint a 5-man panel to investigate the allegations made against the claimant is illegal, unconstitutional, null and void.
(iv) An order nullifying the suspension of the claimant by the 2nd defendants from September 2005 and all the entitlements paid to him.
(v) An order setting aside the notice or application made to the Chief Judge by the 3rd defendant
to appoint a 5-man panel to investigate allegations of misconduct against the claimant the same having been and expired, contrary to the Kwara State Local Government Law, 2005.
(vi) An order nullifying every and any step taken by any person or authority pursuant to section 28 of the Local Government Law, 2005 with a view to investigating the claimant.
(vii) …”
The facts of this case have been copiously and clearly stated in the lead judgment of my learned brother, but suffice it to say that the appellant was at all times material to this case elected as Chairman and Chief Executive of Ekiti Local Government Council and was duly sworn in on the 31st March, 2004 for a three year tenure.
On or about the month of September, 2004 a body known as “Democratic Monitor” published some matters touching on the activities of the Local Government which was in bad taste to the 2nd defendant/respondent His Excellency the Governor of Kwara State who on 16/9/2005 announced the suspension of the appellant from office without his being heard.
The appellant was said to have been interrogated by men of the State Security Service on the promptings of the 2nd defendant/respondent who thereafter counselled the Ekiti Local Government members of the Legislative Council to make allegations against the appellant which appellant replied but subsequently on the 21st December, 2005 the Councilors on the floor of the House voted against investigating the appellant.
Not satisfied with this development, the 2nd defendant/respondent was said to have arranged for the Councillors to congregate at Alakaka Hotel, Omu-Aran on 22/12/2005 after which no notice was served on the Chief Judge until the 19th of January, 2006. The appellant (then plaintiff) claimed that up to the 23rd January, 2006 more than one month after the resolution to set up an investigation panel, the Chief Judge had not been notified so to do.
Accordingly, he filed a suit by way of originating summons on the 23rd January, 2006 simultaneously with motions for interlocutory injunction.
It was not however until 27th February, 2006 about 68 days after the Legislative Council had passed the resolution that the Chief Judge set up the panel.
Issues were joined and at the close of the case, the learned trial Judge held, concerning the suspension of the appellant, that there was nothing on record to show that it was done after due investigation or with a resolution supported by the votes of a simple majority of the members of the Legislative Council.
According to him, it was therefore clear that the suspension of the appellant by the 2nd defendant/respondent in September 2005 was in breach of section 29 of the Local Government Law. He then declared the suspension invalid, unlawful, unconstitutional, null and void and of no effect whatsoever.
On the prayers by the appellant for declarations that the Chief Judge had no power to appoint the five man panel and the order setting aside the notice or application for appointment of the panel of investigators and the further order nullifying every and any step taken by any person or authority pursuant to section 28 of the Local Government Law, 2005, with a view to investigating the appellant, the court held that since the Chief Judge is not mandatorily required to constitute the investigating Panel within 7 days of receipt of the notice from the speaker of the Legislative Council, the appointment of the Panel in excess of 7 days was valid, lawful and constitutional.
On the eventual removal of the plaintiff/appellant he finally held thus:-
“I hold that the claimant’s suit lacks merit and it fails.
This is because the issue of suspension is different from that of removal. Though the suspension of the claimant has been found to be unlawful and unconstitutional, the procedure adopted for his removal as Chairman however is found to be lawful and constitutional.”
Now, three issues have been formulated for determination and on the first issue which borders on the failure of the learned trial Judge to pronounce upon and nullify the appointment by the Chief Judge of the panel of investigators while the suit challenging the legality of the appointment was pending:- I agree with the submissions of the learned appellant’s counsel and the stand taken by my Lord Abdulahi, J.C.A. that courts are bound to pronounce on all material issues raised and presented before them for adjudication and that it smacks of gross negligence of duty and a denial of justice for the court below to have failed to pronounce on this very salient issue which was the gravamen of the plaintiff/appellant’s case.
I am also in total agreement with the authorities of Military Governor of Lagos State v. Ojukwu; Registered Trustees of Apostolic Church v. Olowoleni; Gafubari v. Bukola; Ezegbu v. FATB Ltd. (1992) 1 NWLR (Pt. 220) 699 at 724 supra; all cited in support of the principles of ‘lis pendens’ as invoked by my learned brother to deprecate the conduct of the learned Chief Judge of Kwara State in proceeding to constitute the investigation panel when there was a pending suit which was filed in his court by the appellant and he assigned same to the Judge who eventually heard the case and determined it.
I liken the scenario created by the Chief Judge to the position of a Chief Priest and custodian of an oracle turning round to desecrate the oracle. The Chief Judge of the State who is the custodian and Head of the judicial arm of the State ought to abide by the laws of the State nay the land. I wonder what he would do if his orders are flouted with impunity by either members of the public or another arm of Government as he has done in this case. One may sympathize with the dilemma of the Chief Judge who had just been appointed being enthusiastic to do the biddings of the Governor in order not to rock the boat. I dare say, however, and re-echo the words of Abdulahi, P.C.A. (President of the Court of Appeal) in the recent case of Atiku Abubakar v. The President (reported as Abubakar v. A.-G. Fed.) that once the Chief Judge was appointed and sworn-in. having subscribed to his oath of office, his loyalty to the people of Kwara State and indeed the generality of Nigerians became paramount and not to his appoint or – the 2nd defendant in this case.
I therefore agree that having gone ahead to constitute the panel of investigation during the pendency of the suit, whatever he did was null and void and of no effect, and the lower court ought to have pronounced on this very salient issue in the case.
This brings me naturally to issue No.3 which is whether the learned trial Judge having held that the suspension of the appellant under section 29 of the Local Government Law of Kwara State, 2005, was unconstitutional, illegal, null and void and of no effect whatsoever, can turn around to validate the removal of the appellant. There is no doubt as the learned counsel for the appellant has submitted in the appellant’s brief that the provisions of section 28 of the Local Government Law of Kwara State must be strictly complied with as impeachment touches on the deprivation of a citizen’s right to an exalted office for which he was elected by the people’s mandate.
Moreover, the stigma of impeachment could sound the political death knell of the impeached. Little wonder then that subsections (2)(b), (3), (5), (7) and (9) of section 28 of the Local Government Law of Kwara State have provided for time limitation within which certain actions shall be taken by those assigned so to do in the course of the impeachment process.
The particular subsection that is contentious in this appeal is section 28(5) thereof, which states:-
“Within seven days of passing of a motion under-subsection (4) of this section the Council Speaker shall inform the Chief Judge, who shall appoint a panel of five persons who in the opinion of the Chief Judge are of unquestionable integrity, not being members of
(a) the public service,
(b) a legislative house; or
(c) a political party,
to investigate the allegation as provided in this section.”
It has been contended by the appellant’s counsel that by the above provision the Speaker shall inform the Chief Judge to appoint a panel of five persons within seven days of the passing of the motion under subsection (4) of the section and that in the same vein the Chief Judge shall also within the ambit of seven days appoint the panel of (5) five persons to carry out the investigation. He has also submitted that the word “shall” is mandatory.
On the side of the respondent they have submitted per contra that there is no statutory limit within which the Chief Judge shall exercise his power to appoint the panel of five. They have also submitted that the trial Judge was right in holding that the provisions of section 28(5) of the Local Government Law is clear and straight forward that there is no time frame within which the Chief Judge shall constitute the panel.
He further drew the courts attention to the fact that the court rightly held that the Legislative Council of the Local Government passed the resolution for the investigation on the 21st day of December, 2005 and vide exhibit C dispatched the Council’s resolution to the Honourable Chief Judge and as such the trial court needed not to nullify the appointment of the panel.
He has also cited the cases of Egbe v. Belgore (2004) 8 NWLR (Pt. 875) 336 and KLM Airlines v. Kumzhi (2004) 8 NWLR (Pt. 875) 231 on the interpretation of statutes.
My Lords, on a calm assessment of the provisions of section 28(1-11) of the Kwara State Local Government Law, it can be gleaned that the provisions of section 188(1-10) of the 1999 Constitution are replicated verbatim.
There is no doubt that there appears to be sonic inelegance in the way subsection (5) of section 28 of the law is drafted. If considered in isolation it may be concluded that the time stipulated within which the Speaker of the Legislative Council shall give notice to the Chief Judge does not apply mutatis mutandis to the Chief Judge for the inauguration of the panel. However, I think in my humble view that the learned counsel for the appellant was on solid ground when he cited Dantsosho v. Mohammed (2003) FWLR (Pt. 150) 1717 at 1742: (2003) 6 NWLR (Pt. 817) 457 per Uwaifo, J.S.C.
My Lord Uwaifo, J.S.C. while in the Court of Appeal had espoused the position which he re-echoed in the above cited case while construing section 11(10) of the Local Government Law of Cross River State which ousted the jurisdiction of courts from impeachment proceedings thus:-
“Section 11(10) above is an ousterclause. In interpreting it, the whole section must be taken into account … cannot conceive that a subsection of a section of a statute standing alone can be read with full comprehension. A subsection will usually have a connecting relationship with other subsections of the section. A result contemplated by one subsection may not have occurred at all upon a true consideration of the available facts if other subsections create certain conditions for their result. Not to recognize this is not only to read that particular subsection in the abstract but also to disregard the preceding or subsequent conditions for a better cohesive understanding of the intention of the lawgiver.
Hence a section of a statute having subsections must be read as a whole and related sections must be read together. See Aqua Ltd. v. Ondo States Sports Council (1988) 4 NWLR (Pt. 91) 622 at 641; Tukur v. Government of Gongola State (1989) 4 NWLR (Pt. 117) 517 at 579; Salami v. Chairman, L.E.D.B. (1989) 5 NWLR (Pt. 123) 539 at 550-551.”
Shorn of all the verbosity, the bottom line of the above dictum is simply that in construing any provision of the Constitution or statute a court ought to consider any other parts of the statute which throws light upon the intention of the Legislature and which may serve to show that the particular provision ought not to be construed in isolation.
In this case, a careful perusal of subsections, 2(b), 3, 5, 7 and 9 of section 28 of the Local Government Law would reveal that the intention of the Legislature is to make the impeachment proceedings subject to time. Any interpretation of any of the subsections therefore that would defeat that intention violates the provisions of the Law.
In the same way any interpretation that would result in manifest absurdity ought to be avoided by the court. From the foregoing, if we agree with the submissions of the learned counsel for the respondent as indeed the learned trial Judge has done, that the Chief Judge has no statutory limit within which to set up the panel, then manifest absurdity would result, in which case even if the Legislative Speaker serves him with the notice of the resolution for the purpose of constituting the panel within 7 days as stipulated by the law, then the Chief Judge can go to bed until His Lordship at his convenience decides to set up the panel.
With the greatest respect this cannot be the intendment of the lawgiver who has provided in section 28(7) of the Local Government Law that impeachment proceedings should be completed within one month.
I agree with the learned counsel for the appellant upon the authorities cited that section 28(5) of the Kwara State Local Government Law, 2005 applies in full force to both the Speaker and the Chief Judge by the mandatory use of the word ‘shall’ which imposes an obligation on the former to within seven days of the passing of a motion under subsection (4) inform the latter who shall appoint five persons to constitute the panel of investigation.
Not having empanelled the investigation committee within 7 days but after 68 days, the Chief Judge again acted ultra vires his powers and the panel was unconstitutional, illegal and a patent violation of the mandatory provisions of section 28(5) of the Local Government Law of Kwara State, 2005.
In the same vein whatever findings may have arisen from such a panel constituted out of the time stipulated by the statute from which the Chief Judge purportedly derived his powers, were null and void, and of no effect whatsoever.
Finally, there is no doubt that the entire procedure adopted by the Local Government Council on the promptings of the 2nd defendant for the impeachment of the appellant was doomed from inception.
Appeal allowed.
Appearances
Chief (Mrs.) V. O. Awomolo For Appellant
AND
Mr. J. A. Mumini (DPP), Kwara State
Mr. H. A. Gegele [PSC])For Respondent
