HON. MICHAEL DAPIANLONG & ORS VCHIEF (DR) JOSHUA CHIBI DARIYE & ANOR (2007)

HON. MICHAEL DAPIANLONG & ORS VCHIEF (DR) JOSHUA CHIBI DARIYE & ANOR

(2007) LCN/3778(SC)

In the Supreme Court of Nigeria

Friday, April 27, 2007


Case Number: SC. 39/2007

 

JUSTICES:

ALOYSIUS IYORGYER KATSINA-ALU, JUSTICE SUPREME COURT

DAHIRU MUSDAPHER, JUSTICE SUPREME COURT

MAHMUD MOHAMMED, JUSTICE SUPREME COURT

WALTER SAMUEL NKANU ONNOGHEN, JUSTICE SUPREME COURT

IKECHI FRANCIS OGBUAGU, JUSTICE SUPREME COURT

FRANCIS FEDODE TABAI , JUSTICE SUPREME COURT

PIUS OLAYIWOLA ADEREMI, JUSTICE SUPREME COURT.

APPELLANTS:

1.HON. MICHAEL DAPIANLONG

2.HON. NAZIFI MOHAMMED

3. HON. RAHILA BALERI

4. HON. NANCHANG NAPCHWAT

5. HON. EMMANUEL DANBOYI JUGUL

6. HON. DINA LA

 

RESPONDENTS:

1.CHIEF (DR) JOSHUA CHIBI DARIYE

2. MR. JOHN MARK SAMCHI(The Chairman of the Seven (7) Man .

 

W.S.N. ONNOGHEN, JSC: (Delivering the Judgment of the court) This is an appeal against the judgment of the Court of Appeal holden at Jos in Appeal No. CA/J/302/2006 delivered on the 8th day of March, 2007 nullifying the removal of the 1st respondent, Chief Joshua Chibi Dariye by the Plateau State House of Assembly on Monday the 13th day of November 2006 and ordering the reinstatement of the 1st respondent to the office of Governor of Plateau State.   Plateau State, like any other State in the Federal Republic of Nigeria, has a House of Assembly established under section 20 of the Constitution of the Federal Republic of Nigeria 1999 (hereinafter referred to/called the 1999 Constitution). The said House of Assembly constitutes of 24 members.

It is an undisputed fact that between 25th and 26th July, 2006, fourteen (14) out of the twenty-four (24) members of the Plateau State House of Assembly including the Speaker and Deputy Speaker thereof) cross carpeted from the Peoples Democratic Party (PDP), the platform on which they were elected to the House in 2003 to Advanced Congress of Democrats (ACD), a registered political party, as a result of which the said 14 members vacated their seats by operation of law leaving only 10 members of that House. On the 5th day of October 2006 the 1st respondent was allegedly served with notice of allegations of gross misconduct thereby initiating a process of impeachment by the remaining 10 members of that House. The notice of allegations of gross misconduct was signed by eight (8) out of the ten existing members. Throughout the processes and proceedings leading to and including the impeachment of the 1st respondent, the Plateau State House of Assembly had only ten members, eight (8) of who supported and voted in favour of the removal of the 1st respondent under section 188 of the 1999 Constitution. The following are the summary of allegations of gross misconduct against the 1st respondent- “(a) Money laundering and economic crimes leading to the arrest and detention of the 1st respondent in the United Kingdom having been found with the sum of #90,000.00 in cash and lodgments in the banks. (b) Operation of at least 8 U.K. bank accounts contrary to the provision of the 5th schedule, part I, item 3 of the 1999 Constitution. (c) Purchase of flat 28 Regeants Plaza Apartment, 8 Greville Road, London NWS, through State funds contrary to the provision of section 15 (5) of the 1999 Constitution. (d) False declaration of assets contrary to the code of conduct for public officers in the 5th schedule, part I item II of the 1999 Constitution. (e) Jumping bail in the United Kingdom for which an international warrant of arrest was issued against the 1st respondent and was consequently declared wanted. (f) Payment of Plateau State Government Ecological funds by the 1st respondent in the sum of N1,161,162,900.00 (One billion, one hundred and sixty-one million, one hundred and sixty-two thousand, nine hundred naira only) and N82,600,000.00 (Eighty-two million, six hundred thousand Naira only) respectively into his private account. (g) Disbursement of the State Ecological Fund of N1,161,162.900.00 (One billion, one hundred and sixty-one million, one hundred and sixty-two thousand, nine hundred naira only) as though it was his personal money in the following manner:

(i) Pinnacle Communications  N250,000,000.00 (ii) Plateau State Government   N550,000,000.00  (iii) Union Homes N 80,000,000.00 (iv) PDP, South West N100,000,000.00 (v) Chief Joshua Dariye  N176,000,000,00 (vi) C.O.P N4,300.000.00 (h) Conversion of Plateau State funds in the sum of N82,600,000.00 (Eighty-two million, six hundred thousand naira only) to his private and personal use.”

Following the cross carpeting of the said 14 members of the House including the Speaker and the Deputy Speaker, the 1st appellant became the new Speaker of the House and by a letter dated 5th October, 2005 invited the Chairman of Independent National Electoral Commission (INEC) to organize a by-election for the purpose of filling the vacant seats. The 1st appellant subsequently requested the Acting Chief Judge of Plateau State to set up a 7 man Panel to investigate the allegations of gross misconduct against the 1st respondent which was done. The said Panel was headed by the 2nd respondent. The Panel carried out their assignment and submitted a report to the Plateau State House of Assembly which report was adopted by the House on the 13th day of November, 2006 resulting in the removal of the 1st respondent as the Governor of Plateau State. At the stage of removal of 1st respondent the by election had not been conducted. Consequent upon the above, the 1st respondent, on the 27th day of November, 2006 commenced an action at the High Court of Plateau State by way of originating summons supported by an affidavit of 37 paragraphs seeking the determination of the following, sixteen questions:

“1.  Whether the one-third (1/3) of the members Plateau State House of Assembly envisaged under section 188(2) of the Constitution of the Federal Republic of Nigeria, 1999 (hereinafter called “the Constitution”) for the purpose of signing a Notice of allegation against a Governor or Deputy Governor (in this case the Plaintiff) includes the person presiding over the House whether as Speaker or other presiding officer.

2.   In view of the clear and mandatory provisions of section 91 of the Constitution whether the House of Assembly of Plateau State established under section 90 of the said Constitution can be properly constituted by a faction of only 6 or 8 elected members thereof for purposes of commencing and concluding impeachment process under section 188 of the Constitution.

3.   Whether there is any provision for the position of “Speaker Protempore” presiding over the House of Assembly of Plateau State for the purpose of impeaching the Plaintiff, having regard to Section 188(2) and (a) of the Constitution (supra)

4.  Whether the relevant provisions of the Constitution of the Federal Republic of Nigeria, 1999, with particular reference to the powers conferred on the Plateau State House of Assembly to initiate and carry out impeachment proceedings against the Governor or the Deputy Governor of that State particularly section 188 subsections (1), (2), (3), (4) and (5) thereof are to be read in isolation and complete exclusion of other sections of the same Constitution, including, inter alia, sections 91 – 105 of the said Constitution.

5.  Whether if all the subsections of section 188 of the Constitution of the Federal Republic of Nigeria, 1999, are interpreted as a whole there can be a constitutionally valid impeachment of the Governor of Plateau State by the Plateau State House of Assembly without the House satisfying or complying with the mandatory pre-conditions entrenched in sub-sections 1-9 of the said section 188 of the constitution.

6.   Whether or not the undated purported Notice of Allegations of Gross Misconduct against Chief (Dr.) Joshua Chibi Dariye, the Governor of Plateau State purportedly issued against him by the 2nd – 7th Defendants herein is constitutional or valid within the meaning of Section 188(1) of the Constitution of the Federal Republic of Nigeria, 1999.

7.  Whether or not the 2nd – 7th Defendants’ purported service of Notice of the said allegations of gross misconduct for the purpose of impeaching the Plaintiff herein from office as the Governor of Plateau State, vide the media or Newspaper publication is valid or constitutional within the meaning of section 188(2) of the 1999 Constitution (supra).

8.  Whether or not the said purported Notice of Allegation of Gross misconduct for the purpose of impeaching the Plaintiff herein as the Governor of Plateau State had been duly, served on each member of the 24 (twenty four) members of the Plateau State House of Assembly as envisaged by section 188(2) of the Constitution of the Federal Republic of Nigeria, 1999, let alone fulfilling the conditions for impeachment proceedings.

9.  Whether or not the 2nd – 7th Defendants herein complied with the provisions of section 188(3) & (4) of the Constitution of the Federal Republic of Nigeria, 1999 vis-à-vis moving the motion that the purported allegation of gross misconduct against the Plaintiff herein, the Governor of Plateau State be investigated and whether same as passed by the said 2nd – 7th Defendants on the 13th of October, 2006 was supported by the votes of not less than two-thirds majority of ALL the 24 (twenty four) members of the Plateau State House of Assembly.

10. Whether or not the purported passing of a motion by the 2nd – 7th Defendants on the 12th of October, 2006 for the .investigation of the allegations of gross misconduct against the Plaintiff herein as the Governor of Plateau State and the purported request by a non-existent Speaker of the Plateau State House of Assembly to wit, the 2nd Defendant, requesting the Acting Chief Judge of Plateau State to appoint a Panel of 7 (Seven) person to investigate the Plaintiff is valid having regard to the provision of Section 188(4) of the Constitution (supra).

11. Whether the appointment, constitution and swearing in of the seven (7) man Panel of Investigation headed by the 1st Defendant herein and its entire proceedings leading to the purported impeachment of the Plaintiff as the Governor of Plateau State in the unholy hours of Monday, the 13th of November, 2006 are in breach of section 188(2), (3), (4), (5) & (7) of the Constitution of the Federal Republic of Nigeria, 1999, and therefore all together null and void and of no effect whatsoever.

12. Whether the right of fair hearing guaranteed to the Plaintiff by virtue of Sections 36(1) and 188(6) of the Constitution was not violated in the entire impeachment proceedings when – (a) the Plaintiff was not personally served with the copy of Notice of allegation of gross misconduct; (b) the Plaintiff was not allowed to exhaust his cross-examination of Constable Peter Clark before the Seven (7) Man Panel; (c) the Plaintiff was not given opportunity or allowed to cross-examine Inspector Sunday Musa before the Seven (7) Man Panel submitted Interim Report; and (d) the Plaintiff was not given opportunity to enter his defence much less state his own side of the story before the Seven (7) Man Panel surreptitiously submitted Interim Report to six (6) members (or 8) of the Plateau State House of Assembly resulting in the impeachment of the Plaintiff on Monday, 13th November, 2006.

13. Whether the 2nd – 7th Defendants being a faction of members of the Plateau State House of Assembly as well as the Clerk of the House who had been earlier arrested and detained by EFCC in Abuja and who were brought under force of arms by heavily armed mobile Policemen and forced vie et arm is to purportedly sit as the Plateau State House of Assembly on the 5/10/2006, 13/10/2006 as well as the purported impeachment of the Plaintiff vide a purported proceeding of 13th November, 2006 are all together invalid, unconstitutional, null and void as they were not acting of their own free will and volition by reason of duress and coercion by the EFCC or its agents and operatives.

14. Whether the purported impeachment of the Plaintiff on Monday, the 13th day of November, 2006 by the 2nd – 7th Defendants in pursuance of a purported Interim Report submitted by the 1st Defendant is valid in law particularly given the dissolution of the Seven (7) Man Panel on Friday, the 10th day of November, 2006 by the Acting Chief Judge of Plateau State.

15. Whether the 2nd – 7th Defendants having in accord with others inaugurated a Special Committee for the Investigation of the Plaintiff for allegation of gross misconduct inter alia pursuant to a letter of complaint from the 2nd Defendant dated November 30, 2005 and having on June 9, 2006 unanimously received and, adopted the said Special Committee Report exonerating the Plaintiff can revisit the issue during their own tenure in office or before the expiration of six months.

16. Whether the Seven (7) Man Investigating Panel heeded by the 1st Defendant, being an inferior body or tribunal, is not obliged to obey the orders of a competent Court established under the Constitution.”

The 1st respondent also claimed twenty four reliefs as follows:- “1. A DECLARATION that the one-third (1/3rd) of the members of the House of Assembly envisaged under Section 188 of the Constitution of the Federal Republic of Nigeria, 1999 for the purpose of signing a Notice of allegation does not include the substantive Speaker, or any member appointed to preside at any sitting of the House, for that purpose.

2.  A DECLARATION that the Plateau State House of Assembly can not be properly and validly Constituted by only 6 (or 8?) members of that House for the purpose of commencing and concluding impeachment proceedings under section 188 of the Constitution of the Federal Republic of Nigeria, 1999.

3.   A DECLARATION that there is no provision for “Speaker Protempore” in the Constitution of the Federal Republic of Nigeria, 1999, hence no such person can preside over impeachment proceedings in the House of Assembly pursuant to Section 188 of the Constitution (supra).

4.   A DECLARATION that section 188 (1), (2), (3) and (4) of the Constitution (supra) must be read in conjunction with and not to the exclusion of other provisions of the Constitution particularly sections 91 to 105 in impeachment proceedings against a governor of a state such as the Plaintiff.

5.   A DECLARATION that there cannot be a Constitutionally valid impeachment of the Plaintiff as the Governor of Plateau State without strict compliance with the provisions of Section 188(1) to (9) of the Constitution of the Federal Republic of Nigeria, 1999.

6.  A DECLARATION that on a proper interpretation of Section 183 (4) of the Constitution (supra), the 2nd – 7th Defendants are incapable of forming or constituting the required two-thirds (2/3rd) of the members of the Plateau State House of Assembly, hence they were incapable of passing a valid motion pursuant to Section 188(4) of the Constitution (supra) to the effect that a purported allegation of gross misconduct be investigated against the Plaintiff.

7.  A DECLARATION that the purported resolution passed by the 2nd – 7th Defendants on the 13/10/2006, pursuant to section 188 (4) of the Constitution is unconstitutional, null and void, having been purportedly passed by less than two thirds (2/3rd) majority of all the members of the Plateau State House of Assembly.

8.   A DECLARATION that the purported appointment of the Seven (7) Man Panel of Investigation headed by the 1st Defendant by the Acting Chief Judge of Plateau State at the instance of the 2nd – 7th Defendants to investigate the purported Notice of allegation of gross misconduct against the Plaintiff herein is unconstitutional, null and void for manifestly being a contravention of Section 188 (4) of the Constitution which requires the support of two-thirds majority of all the members of the House for which the 2nd – 7th Defendants are not.

9.  A DECLARATION that the purported Notice of allegations of gross misconduct made against Chief (Dr) Chibi Dariye, the Governor of Plateau State as a preparatory step to his impeachment by the 2nd – 7th Defendants is unconstitutional, null and void, and of no effect whatsoever for want of strict compliance with the provisions of Section 188(1) and (2) of the Constitution of the Federal Republic of Nigeria, 1999.

10. A DECLARATION that the purported Notice of allegation of misconduct made by the 2nd – 7th Defendants against Chief (Dr) Joshua Chibi Dariye, Governor of Plateau State not having being received and/or served on each of the 24 (twenty four) members of the Plateau State House of Assembly as envisaged by Section 188(2) of the Constitution of the Federal Republic of Nigeria, 1999 is unconstitutional, null and void and of no effect whatsoever.

11. A DECLARATION that the motion passed by the 2nd – 7th Defendants on 13th of October, 2006 calling for the investigation of the allegation of misconduct against Chief (Dr) Joshua Chibi Dariye, the Governor of Plateau State, is in contravention of Section 188 (3) and (4) of the Constitution of the Federal Republic of Nigeria, 1999 and to that extent, and for all intents and purposes the said motion is unconstitutional, null, void and of no effect whatsoever.

12. A DECLARATION that no valid Notice of allegation of misconduct has been issued by the 2nd – 7th Defendants, same not having, been passed through the Clerk of the Plateau State House of Assembly for service on the Plaintiff nor received formally by the Honourable Speaker of the Plateau House of Assembly, Rt. Hon. Simon Lalong in accordance with the provisions of Section 188(2) (a) and (b) and Section 188 (3) of the Constitution of the Federal Republic of Nigeria, 1999.

13. A DECLARATION that the 2nd – 7th Defendants who had at all material times been arrested, captured and detained and/or held hostage by the EFCC and/or its servants, operatives or agents and forcefully brought to Jos from Abuja on each occasion and forced them to purportedly sit vie et armis on 5/10/06, 13/10/06 and 13/11/06 as the Plateau State House of Assembly never sat or acted willingly, independently or voluntarily but did so under grievous threats, intimidation, duress and coercion all of which have rendered their purported sittings and any decisions or resolutions thereof absolutely null and void and of no legal effect whatsoever.

14. A DECLARATION that the right of fair hearing of the Plaintiff enshrined in Sections 36(1) and 188(6) of the Constitution of the Federal Republic of Nigeria, 1999 was rampantly violated by the Defendants in that there was no proper or valid service of Notice of allegation of gross misconduct on the Plaintiff, the Plaintiff was not given opportunity to fully and properly cross-examine witnesses called by the 2nd – 7th Defendants before the Seven (7) Man Panel and that the Plaintiff was deprived of the opportunity of entering his defence hence the entire impeachment proceedings initiated and concluded by the 2nd – 7th Defendants including the proceedings of the Seven (7) Man Panel headed by the 1st Defendant are incurably and irredeemably flawed, unconstitutional, null and void and of no effect whatsoever.

15. AN ORDER setting aside all the steps taken by the 2nd – 7th Defendants in relation to the issuance of Notice of allegation of misconduct, passage of motion to investigate same and the purported directive to the Acting Chief Judge of Plateau State, the said steps having breached the provisions of Sections 36(1) and 188 of the Constitution of the Federal Republic of Nigeria, 1999.

16. AN ORDER nullifying the purported interim or any other report of findings submitted by the Seven (7) Man Panel of investigation against the Plaintiff herein to the 2nd – 7th Defendants herein on the basis of which the 2nd – 7th Defendants purportedly impeached the Plaintiff as the Governor of Plateau State on the 13th November, 2006.

17. A DECLARTION that the purported impeachment of the Plaintiff at the early hours of Monday, the 13th day of November, 2006 by the 2nd – 7th Defendants in pursuance of a purported Interim Report by the Seven (7) Man Panel of Investigation of allegation of gross misconduct submitted by the 1st Defendant is patently illegal, null and void and of no effect as the said Panel had already ceased to exist having been dissolved on Friday, the 10th day of November, 2006.

18. A DECLARATION that the 2nd – 7th Defendants, having participated in the inauguration of the Special Committee for the Investigation of the Plaintiff for corruption, money laundering, abuse of office etc, consequent upon a letter/complaint from the EFCC dated November 30, 2005 and having in concert with other Honourable members of the Plateau State House of Assembly participated in receiving and unanimously adopting the said Committee’s Report exonerating the Plaintiff without objection or dissent cannot resile from same or are estopped from resiling from same during their tenure and/or less than a period of six (6) months thereafter.

19. AN ORDER nullifying the purported impeachment of the Plaintiff at the early hours of Monday, the 13th day of November, 2006 by the 2nd – 7th Defendants in pursuance of a purported Interim Report submitted by the 1st Defendant as same is a gross transgression of sections 36(1), 91-105 and 188 of the Constitution (supra) having regard to the doctrine of fair hearing, due composition of the Plateau State House of Assembly as well as the procedure for impeachment.

20. AN ORDER restoring or re-instating the Plaintiff to his office as the Governor of Plateau State together with the rights, privileges, paraphernalia and perquisites of his said office.

21. A DECLARATION that the conduct of the Seven (7) Man investigating Panel headed by the 1st Defendant, an inferior Tribunal scoffing at the orders of a Court is a sad sabotage of the rule of law as inferior Tribunals are obliged to obey the orders of a Court.

22. A PERPETUAL INJUNCTION restraining the 1st Defendant from submitting any further report of the Seven (7) Man Panel of Investigation to the 2nd – 7th Defendants against the Plaintiff.

23. AN ORDER restraining the 2nd – 7th Defendants from receiving any report, from the 1st Defendant and/or acting on any report from the 1st Defendant in respect of the allegation of gross misconduct leveled against the Plaintiff.

24. AND such further or other orders or reliefs as the Honourable Court may deem fit and just to make or grant in the circumstances.”

The appellants responded by filing a Notice of Preliminary objection on the 12th day of December, 2006 with a 12 paragraphed affidavit in support; a Further and Better Affidavit in-support of the preliminary objection of 5 paragraphs on the 13th day of December, 2006 and a 38 paragraphed Counter Affidavit deposed to by the 1st appellant against the affidavit in support of the Originating Summons. The Preliminary Objection prayed the court for – “1. An order striking out this suit for lack of jurisdiction.

Alternatively 2. An order dismissing this suit for being an abuse of court process.”

The grounds of the objection are stated on the motion papers as follows:

“1. The Originating Summons is incompetent since the same is supported by an incompetent affidavit.

PARTICULARS (a) the deponent, Nde Alexander Molwus does not have the consent of the plaintiff, who had since been declared wanted by the Economic and Financial Crime Commission (E.F.C.C), and no one including the deponent has an idea of his whereabout.

2.  The suit is incompetent, having regard to section 188(10) of the 1999 Constitution.

3.  This suit constitutes an abuse of process as the issues raised herein are in substance similar to the issues raised in suit No.PLD/J463/06; PLD/J451/06; FHC/J/CS/49/06; FHC/ABJ/CS/3 74/ 06 and PLD/J475/06.

4.  The plaintiff, being a fugitive from justice, lacks the capacity to maintain an action.

5.  The action was filed principally for referral, accordingly it is incompetent.

PARTICULARS

(a) There is no difficult question or issue to be resolved by the Court of Appeal.

(b) All the issues sought to be resolved have already been raised in the suits herein before mentioned, in the other courts.” It is on record that the matter came before DAMULAK J. on the 13th day of December, 2006 but the court discovered that the 2nd respondent had not been served with the Notice of Preliminary Objection and the matter was adjourned to 15/12/06 for hearing of the preliminary objection and for service on the 2nd respondent. On the 15/12/06 the trial court made the following orders:

“Having considered the exigencies of the time and the fact that this is an originating summons. I order that both parties submit their written briefs on the suit along with that of the P/Objection. If the preliminary objection succeeds, it will be the end of the matter. If it does not succeed, the substantive suit may be heard (sic) and considered. I rely on the procedure adopted in the case of:- Adeleke v. Oyo State Government.”

The appellants were not satisfied with the above order and therefore appealed against same to the Court of Appeal. The grounds of appeal are as follows:- “(a) GROUND ONE

The ruling and directive of the learned trial judge suo-motu on the 15th day of December, 2006 to wit:

“Having considered the exigencies of the time and the fact that this is an Originating Summons. I order that both parties submit their briefs on the suit along with that of the P/Objection. If the P/Objection succeeds, it will be the end of the matter. If it does not succeed, the substantive suit may be heard and considered”

Constituted a gross violation of the appellants’ right to fair hearing by the court.

PARTICULARS OF ERROR

i)   The trial judge did not seek for or take any address/contribution from counsel to the appellants before proceeding to issue fresh directives that clearly resulted in his sitting on appeal over his previous decision dated 13th December, 2006.

ii)  The ruling/directive was not prompted by any of the parties as the parties were clearly satisfied with the ruling dated 13th December, 2006.

iii)  The trial judge had descended into the arena when he without reference to the appellants reviewed and overruled his earlier decision dated 13th December, 2006 and proceeded to issue fresh directives.

iv) The trial judge never invited counsel to address the court on the issue before somersaulting on his earlier decision dated 13th December, 2006 barely 48 hours later.

(b) GROUND TWO

The learned trial judge acted without jurisdiction when he suo motu ruled and directed thus:

“Having considered the exigencies of the time and the fact that this is an Originating Summons. I order that both parties submit their briefs on the suit along with that of the P/Objection. If the P/Objection succeeds, it will be the end of the matter. If it does not succeed, the substantive suit may be heard and considered”

On the 15th day of December, 2006 having become functus officio on the issue given his earlier decision on same issue on 13th December, 2006. PARTICULARS OF ERROR

i) The trial judge had in a considered ruling on the 13th day of December, 2006 directed that the Preliminary Objection be taken first after taking arguments from counsel to the parties thereby resting the issue before his court.

ii)  It is trite law that after reaching the considered ruling on the issue on the 13th December, 2006 the trial judge became functus officio on the issue particularly after he had taken arguments from the contending parties.

iii) It is trite law that a judge cannot over rule or review his earlier decision unless it was made without jurisdiction.

3.  RELIEFS SOUGHT

1.  An order setting aside the ruling and the directive of the trial judge dated 15th day of December, 2006 for lack of jurisdiction.

2.  A further order entertaining the appellant’s argument on the Preliminary Objection in line with the earlier order of the trial judge dated 13th day of December, 2006 pursuant to section 16 of the Court of Appeal Act.

3.  An order striking out the plaintiff/respondent’s suit at the court below for lack of jurisdiction. Alternatively

4.   An order remitting the suit for the hearing of the Originating Summons (if the Preliminary Objection fails) by the lower court differently constituted.”

The 1st respondent filed a respondent’s notice on the 21st day of December, 2006 and urged the court to invoke the provisions of section 16 of the Court of Appeal Act to hear both the preliminary objection and the originating summons together. It should also be noted that the appellants did request the Court of Appeal to also invoke its powers under section 16 of the Court of Appeal Act to hear and determine the Preliminary Objection in the “Reliefs Sought” in their Notice of Appeal to the Court of Appeal. At the end the Court of Appeal determined the appeal, the Preliminary Objection and the originating summons in the judgment subject of the instant appeal. The Court of Appeal dismissed the appellants’ appeal as well as the preliminary objection and granted the reliefs of the 1st respondent in the originating summons after a detailed consideration of the facts and issues involved and arguments of both counsel thereon in their respective briefs of argument filed in the matter. In acting as stated supra the Court of Appeal was exercising its powers under section 16 of the Court of Appeal Act. The issues for determination, as identified by learned leading senior counsel for the appellants, CHIEF GANI FAWEHINMI, SAN, in the appellants’ brief of argument filed on 3/4/07 and adopted in argument on 16/4/07 are as follows:

“1.  Whether the Court of Appeal was right in invoking section 16 of the Court of Appeal Act (now section 15 of the Court of Appeal Act, Cap. C.36 LFN 2004) when neither the appellants’. Notice of Preliminary objection nor the 1st respondent’s originating summons had been heard and determined by the trial court (Ground 4).

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