HON. MIKE BALONWU & ORS V. MR. PETER OBI & ANOR
(2007)LCN/2263(CA)
In The Court of Appeal of Nigeria
On Friday, the 9th day of February, 2007
CA/E/3/2007
RATIO
INTERPRETATION OF STATUTE: EFFECT OF NON-COMPLIANCE WITH THE RULE IN ORDER 3 RULE 2(2)
The effect of non-compliance with the rules aforesaid was considered in the case of Okwumodi V. Sowunmi (2004) 2 NWLR Part 836 Page 1 where it was held at page 22 paragraphs D – E as follows:- “The particulars of grounds 1, 2, and 3 of the grounds of appeal cannot be accorded the same favour because they are argumentative, conclusive as they do not flow from the errors or misdirection contained in the ruling. Any particulars, which are conclusive, argumentative or vague, are outside the precincts of the application of Order 3 rule 2(2) of the rules. It is settled that where a ground of appeal as in the instant case alleges error in law or a misdirection, the particulars of error or misdirection must be clearly stated and must specifically flow from the main ground of appeal which is based on the error and misdirection in the ruling or judgment.” See also – Sosanya V. Onadeko (2005) 8 NWLR (Part 926) Page 185 at 209 at 216. PER JIMI OLUKAYODE BADA, JCA
JUSTICES
JAMES OGENYI OGEBE Justice of The Court of Appeal of Nigeria
KUDIRAT M. O. KEKERE-EKUN Justice of The Court of Appeal of Nigeria
MOHAMMED LADAN TSAMIYA Justice of The Court of Appeal of Nigeria
SOTONYE DENTON-WEST Justice of The Court of Appeal of Nigeria
JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria
Between
1. HON. MIKE BALONWU
2. HON. OZO UGHAMADU
3. HON. (SIR) HUMPHREY NSOFOR
4. HON. BEN OBIDIGBO
5. HON. UCHENNA OKONKWO OKOM
6. ANAMBRA STATE HOUSE OF ASSEMBLY Appellant(s)
AND
1. MR. PETER OBI
(GOVERNOR, ANAMBRA STATE)
2. ATTORNEY GENERAL, ANAMBRA STATE Respondent(s)
JIMI OLUKAYODE BADA, JCA (Delivering the leading Judgment): The Plaintiff before the lower court now 1st Respondent in this appeal commenced his claim against the Defendants now appellants by Originating Summons before the High Court of Anambra State on 30th day of October 2006 in Suit NO.0/599/2006 – Mr. Peter Obi V. Hon. Mike Balonwu & Others. Later on with the leave of court, the Plaintiff filed an amended Originating Summons and sought for the following declarations and reliefs:-
“(i) Declaration that by virtue of Section 188(2) of the 1999 Constitution of the Federal Republic of Nigeria the Plaintiff was entitled to be personally served with a notice of any allegation of Gross Misconduct against him within 7 days of the 1st Defendant’s receipt of the Notice of allegation dated 16th October 2006.
(ii) Declaration that the failure to personally serve the Plaintiff with the Notice of allegation against him dated 16th October 2006 within a period of 7 days from 16th October 2006 vitiates the said notice and all other proceedings arising therefrom in the process of the impeachment of the Plaintiff including the request on the Chief Judge of the State to set up a 7 man panel to investigate the said allegations and the resolution of the 6th Defendant accepting same.
(iii) Declaration that the address of the Notice of allegation of gross misconduct dated 16th October 2006 to the Secretary to the State Government, office of the Secretary to State Government, Government House Awka as against to the Plaintiff in his office at Awka is an act of bad faith which violates the provisions of Section 188(2) of the 1999 Constitution of the Federal Republic of Nigeria.
(iv) Declaration that the purported service of the Notice of allegations of misconduct in the Daily Sun of Friday October 20 2006 or to any other Newspaper violates Section 188(2) of the 1999 Constitution of the Federal Republic of Nigeria.
(v) Declaration that the request on “the Secretary to Government” to cause the resolution to be placed before their Excellencies the Governor and Deputy Governor of Anambra State respectively violates the requirement of service of notice of allegation in writing envisaged by Section 188(2) of the 1999 Constitution of the Republic of Nigeria.
(v)(a) Declaration that failure to serve all members of the Anambra State House of Assembly with notice of allegation of gross misconduct within 7 days from 16th October 2006 as required by Section 188(2) of the Constitution violates all subsequent impeachment processes and rendered same void.
(vi) Declaration that in view of the subsisting Order made by C.O. Amechi J. in Suit No:HID/207/2006 Okeke V. Hon. Mike Balonwu & Others restraining the 1st Defendant and members of the 6th Defendant herein and their agents, privies etc from continuing to do anything or take steps or continuing to take steps based on the purported impeachment notice pending the determination of the Motion on Notice filed in the said suit, the Defendant cannot take any valid steps on the matter of impeachment of the Plaintiff including the request on the Hon. Chief Judge Anambra State to set up a 7 man-panel and the resolution of the 6th Defendant accepting same.
(vii) Declaration that in view of the appointment and swearing in of Frank Onyenwuzo as the Clerk of the Anambra State House of Assembly the proceeding of the House of Assembly held on 25th October 2006 in which the Hon. Chief Judge Anambra State was directed to set up a 7 man-panel vitiates the proceedings of the Anambra State House of Assembly of 25th October 2006 including the request on the Hon Chief Judge Anambra State to appoint a panel of 7(Seven) to investigate the allegations of gross misconduct as contained in the purported notice of 16th October 2006, and the resolution of the 6th Defendant accepting same.
(viii) Declaration that the Defendants cannot validly embark on the request for the Hon. Chief Judge Anambra State to appoint a panel of 7(seven) to investigate allegations of corruption being allegation of criminal offences as contained in the purported notice of allegation of gross misconduct as contained in the letter of 16th October 2006.
(viii(a) Declaration that the Defendants cannot validly pass the resolution for the Chief Judge of Anambra State to settle, (sic) a 7 seven man investigation panel to investigate the allegations of gross misconduct against the Plaintiff in a session of the 6th Defendant with 15members in attendance out of the 30 members of the House.
(viii(b) Declaration that the requirement of Section 188(4) of the 1999 Constitution which requires that the resolution of the 6th Defendant calling for the investigation of the allegation of gross misconduct against the Plaintiff can only be passed with 2/3rd majority of vote of all the members of the 6th Defendant cannot be complied with by the defendants by voice vote.
(viii(c) Declaration that the proceedings of the 7 man-panel held without any rules of procedure prescribed by the 6th defendant is invalid and a nullity.
(viii(d) Declaration that the alleged resolution of the of the defendants accepting the purported report of the 7man panel at about 6am on 27/11/06 when the panel had at about 4.30pm on 01/11/06 adjourned further proceedings to 06/11/06, is scandalous, outrageous, grossly indecent, reprehensible and constitutes a flagrant violation of the 1999 Constitution.
(viii(f) Declaration that the purported acceptance of the alleged report of the 7 man-panel in a session of the 6th defendant attended by less than 12 out of the 30 members of the 6th defendant does not meet 2/3rd majority requirement prescribed by the Constitution and consequently is null and void.
(viii(g) Declaration that the fractionalization of the 6th Defendant into two major factions from 26th October 2006 rendered the 6th Defendant incapable of taking any valid steps thereafter towards the impeachment of the Plaintiff.
(viii(h) Declaration that the Plaintiff is and still remains the Governor of Anambra State of Nigeria and the purported impeachment of the Plaintiff as announced by the 1st Defendant on 2/11/06 is null, void and of no effect.
(viii(i) An Order setting aside the purported impeachment of the Plaintiff on the ground that the process is violative of Section 188 of the 1999 Constitution of the Federal Republic of Nigeria.
(viii(j) An Order of injunction restraining the defendants and their agents from whether by themselves or through the use of the Police security agencies from preventing the Plaintiff from continuing to be the Governor of Anambra State or stopping or impeding the Plaintiff from functioning and performing the duties of his Office as the Governor of Anambra State.”
The amended Originating Summons was supported by a further affidavit while the Defendants now appellants also filed counter-affidavit.
At the conclusion of hearing before the lower court, judgment was delivered on the 28th day of December 2006 and the trial court held that the purported impeachment of the 1st Respondent by the Appellants is unconstitutional null and void and of no effect whatsoever and thereby set the impeachment aside.
Dissatisfied with the Judgment of the lower court, the appellants now appealed to this Court.
The 1st to 5th appellants formulated eight issues for determination as follows:-
(i) Whether the Learned trial Judge at the court below had the jurisdiction to deliver the judgment, which he delivered in the suit on the 28th day of December 2006 having regard to the circumstances of the case (Grounds 1, 5, & 10)
(ii) Whether the Learned trial Judge was right when he tried the suit on the basis of Originating Summons Procedure. (Ground 2 & 4)
(iii) Whether the Learned trial Judge was right when he refused to permit the counsel for the 1st to the 5th Defendants to cross-examine deponents to affidavits relied upon by the Plaintiff. (Ground 3)
(iv) Whether the use made by the Learned trial Judge of the Order, Exhibit 2 filed along with the Originating Summons which was never served on the 1st to 5th Defendants and was later superseded by an amended Originating Summons which did not contain that Exhibit is proper in the circumstances of this case. (Ground 6)
(v) Whether the Learned trial Judge was correct when he held that the 1st to the 5th Defendants did not effectively deny paragraphs 5, 6, 8, 9, 11(a) – 11(f) of the Originating Summons (Ground 7).
(vi) Whether in the circumstances of this case, it was open to the Learned Trial Judge without pleadings and oral evidence, to hold that the 1st to the 5th Defendants failed to obey the mandatory order made by Amaechi J. and that the failure rendered the impeachment process invalid (Ground 8)
(vii) Whether in the circumstances of this case, it was open to the Learned Trial Judge to come to the conclusion that the Plaintiff had proved that he was not served with the notice of misconduct without pleadings and oral evidence. (Ground 9)
(viii) Whether having regard to the decision on issues (i) – (vii) above, the judgment of the Learned trial Judge is not wholly perverse being contrary to law and given without jurisdiction (Ground 11).
The 1st Respondent on the other hand formulated Ten issues for determination as follows:-
(1) Whether there was a valid order of transfer which divested the trial Judge of the jurisdiction to deliver the judgment which was previously adjourned (Ground 1).
(2) Whether the Learned trial Judge was right to have heard the suit under the Originating Summons Procedure having regard to the questions which determination was sought, the relief sought and the affidavit and documentary evidence placed before the court.
(3) Was the Appellants denied the opportunity to cross-examine the deponents to the 3rd part (sic) affidavit and whether the applicants suffered a miscarriage of justice or deprived them of fair hearing in the circumstance (Ground 3).
(4) Whether the learned trial Judge was right in receiving in evidence certified true copies of documents some of which were exhibited and other duly pleaded and delivered to the Appellant’s counsel. (Ground 4)
(5) Whether the suit is incompetent and caught by Section 3, 23 and 30 of the Legislative houses (Power and Privileges) Act. (Ground 5)
(6) Whether the learned trial Judge was right when held that the appellants failed to effectively join issues with vital paragraphs of the Respondents’ affidavit and further affidavit in support of the Amended Originating Summons. (Ground 7)
(7) Whether the Learned trial Judge was right in holding that the failure of the 1st to 6th Appellants to abide by the order of Injunction issued by the High Court of Anambra State restraining the 1st to 5th appellants, their privies or howsoever and members of the 6th Appellant from proceeding with the impeachment rendered the subsequent act of purported impeachment of the respondent void. (Ground 8)
(8) Whether the learned trial Judge was right when he held that the notice of allegations of misconduct was not duly served on the respondent by the Appellants, a fact which rendered the entire impeachment proceeding void. (Ground 9)
(9) Whether the Appellants established that the delivery of Judgment on 28th December, 2006 was done without notice to them and was prejudicial to their interest.
(10) Whether the judgment of the trial court is perverse.”
At the hearing, Learned Senior Counsel for the appellants 1st to 5th adopted and relied on the appellant’s brief of argument.
On issue No.5, Learned Senior Counsel for the 1st to 5th Appellants referred to the case of
Ngige V. Obi (2006) 14 NWLR (part 999) Page 1 at 160 paragraphs C – E.
– Order 1 rule 1(2) of the High Court Civil Procedure Rules of Anambra State.
– Gambari V. Gambari (1990) 5 NWLR (part 152) Page 570 at 590 Paragraph C.
He urged that the appeal be allowed.
The 6th appellant who participated in the proceedings at the lower court filed notice of appeal through Counsel for 1st to 5th Appellants but for reasons best known to it failed to file a brief of argument in this appeal.
The Learned Senior Counsel for the 1st Respondent on the other hand also adopted and relied on the respondent’s brief of argument.
He also argued that the case of Ngige V. Obi (supra) referred to by learned Senior Counsel for 1st to 5th Appellants is not applicable in this case.
He also stated that the appellant fought this case on old rules and that the High Court Civil Procedure Rules of 2006 was not in contemplation when this suit was being fought at the lower court.
He finally urged that the appeal be dismissed.
The 2nd Respondent also even though given the opportunity to file its brief also failed to file anything.
The issues formulated by Learned Senior Counsel on behalf of the parties are similar. However the issues set out on behalf of the 1st to 5th Appellants are considered relevant and apt to determine this Appeal.
For clarity, the issues are to be treated under two broad categories, i.e. issues 1,2,3, & 4 to be taken together while 5, 6, 7 & 8 are also to be taken together.
ISSUES 1, 2, 3 & 4. (Taken together)
Learned Senior Counsel for the 1st to 5th appellants submitted that no court has the jurisdiction to conduct any case in a manner prohibited by the law setting up the Court and the rules guiding the court in matters of procedure.
He referred to the following cases:
– Edun V. Odan Committee & Others In Re: Chief Yakubu Dawodu, The Olojo of Ojo (1980) 8-11 SC 103 at 172.
– A.T. Bakare V. T.S. Apena & 2 Others (986) 4 NWLR Part 331 at Page 20.
He went further in his submission that the lower court in purporting to deliver judgment in this suit on the 28th day of December 2006, flagrantly and without any redeeming grace flouted not only the law setting up the High Court but the rules made for that court. He referred to – Section 40, 41 of the High Court Law of Anambra State and the following cases:-
– Akoh V. Abuh 0988 3 NWLR (Part 85) at 696.
– Agbo V. Agbara (997) 1 NWLR (Part 481) Page 293 at 311-312.
He made reference to the application made by 1st to 5th Defendants for transfer of the suit from Hon. Justice Nri-Ezedi on the 18th day of December 2006. And that on 20th day of December 2006 the Hon. Chief Judge of Anambra State transferred the suit from High Court NO.1 Awka (Coram Nri- Ezedi J).
Learned Senior Counsel therefore submitted that the proceedings before the lower court on the 28th day of December 2006 was null and void in view of the application for transfer and the order of transfer made by the Chief Judge on the 20th day of December 2006.
He also submitted that by virtue of Order 45 Rule 4(c) of the High court (Civil Procedure) Rules 2006 sitting of the High Court for dispatch of civil matters are prohibited during the period beginning on Christmas eve and ending on the 2nd day of January next following. And that this includes 28th day of December 2006.
He referred to the following cases:-
– Anie & another V. Uzoka & others (993) 9 SCNJ Page 223.
– Ngige V. Achukwu (2005) 2 NWLR (part 909) Page 123 at 142-143H-B.
He went further in his submission that the quorum of a House of 30members is 10 and he submitted that a suit to which only 6 members are sued is clearly incompetent. And besides, that under Section 3 of the Legislative Houses (Powers and Privileges) Act no civil proceedings may be instituted against any member of the legislative house or a committee thereof or in any petition, bill, resolution motion etc. furthermore that under Section 30 of the same Act the Speaker of Anambra State House of Assembly shall not be subject to the jurisdiction of any court in respect of any power conferred or vested in him by or under the Act or Standing Orders of the House or Constitution. He referred to the following cases:-
– Ewelogu V. The State (19982) 2 NWLR Part 78 Page 254.
– Fawehinmi V. Babangida (2003) 3 NWLR (Part 808) Page 604.
– Lagos State V. A.G. Federation (2003) 12NWLR (Part 833) at Page 32.
On the issue of Originating Summons procedure learned Senior Counsel for the 1st to 5th appellants stated that there are assertions made which required proof, for example the issue of service of the impeachment notice on the plaintiff on the basis of Newspaper publication. Exhibits FA 1, FA 5 to FA 14 were also referred to and counsel contended that the deponents of the affidavits needed to be tested by cross examination. He referred to the following cases:-
– Ojukwu V. Governor of Lagos State (1985) 2 NWLR (Part 10) Page 806 at 818B.
– Lekwot V. Judicial Tribunal (1997) 8 NWLR (Part 515) Page 22 at 35.
– National Bank of Nigeria & another V. Alakija & another (1978) 9 and 10 S.C. Page 59.
– Anataogu V. Anataogu (1997) 9 NWLR (Part 519) Page 49.
– Keyamo V. Lagos State House of Assembly (2000) 12 NWLR (Part 680) Page 196.
He also submitted that Originating Summons Procedure is not to be adopted where the proceedings are likely to be hostile with facts coming into disputes. Reference was made to:-
– Fasheun Motors Ltd. V. D.B.A. LTD (2000) 1 NWLR Part 640 Page 190 at 198.
– Ogunsola V. APP (2003) 9 NWLR (Part 826) Page 462.
– Nitel Vs Dgbe (2002) 3 NWLR Part 753 Page 186 at 203-204.
– Ajagungbade III V. Adeyelu (2001) 16 NWLR Part 738 Page 126 at 188 -199.
– Egbarin V. Aghoghoviba (2003) 16 NWLR Part 846 Page 380 at 390.
– Osuegwu V. Emezi (1998) 12 NWLR part 579 Page 640 at 649.
– Akibu V. Race Auto Supply Co. Ltd (2000) 14 NWLR Part 86 Page 190 at 203.
On the issue of the refusal to permit counsel for the 1st to 5th Defendants to Cross-Examine deponents to Affidavits relied upon by the Plaintiff, Learned Senior Counsel for the 1st to 5th Appellants submitted that a defendant is entitled as of right to test the validity and accuracy of the evidence marshaled against him by the Plaintiff by cross-examining all witnesses called by the Plaintiff.
On the issue of the use made of the Order, Exhibit 2 by the learned trial judge, it was submitted on behalf of the 1st to 5th appellants that it was wrong for the learned trial Judge to rely on Exhibit 2 filed with the Originating Summons as if that exhibit were part of the exhibit filed with the amended originating summons.
In his response to the submission of Learned Senior Counsel for the 1stto 5th Appellants, Learned Senior Counsel for the 1sl respondent urged that ground one of the appellants’ grounds of appeal be struck out because it is incompetent. He referred to particulars of misdirection in No. (iv) and (v). He said that particular No. (iv) does not flow from the ground of appeal and that particular (v) is argumentative, therefore that they offend the provisions of Order 3 Rule 2(2) & (3) of the Court of Appeal Rules 2002 and therefore that ground 1 should be struck out. He referred to Okwumodi V. Sowumi (2004) 2 NWLR (Part 8360 Page 1.
The particulars of misdirection of Ground one which are being attacked are as follows:-
“(iv) Honourable Justice Obidigwe sitting at High Court of Anambra State, Ogidi Judicial Division had already issued a Hearing Notice to all parties to appear before him in the suit on the 15th day of January 2007.
(v) It is a grave misdirection for His Lordship, the the Honourable Justice U. Nri-Ezedi who had clearly become functus officio in the matter to purport to deliver judgment in the suit on the 28th day of December 2006 despite the other of transfer of which the was fully aware.”
A perusal of the above particular No. (iv) showed that it did not flow from the ground of appeal, in fact it has no bearing with the judicial authority of the learned trial judge to deliver the judgment. Furthermore particular No. (v) is clearly argumentative.
I therefore agree with the submission of Learned Senior Counsel for the 1st Respondent that particulars (iv) and (v) of Ground I are bad and they offend the provisions of Order 3 Rules 2(2) and (3) of the Court of Appeal Rules 2002.
The effect of non-compliance with the rules aforesaid was considered in the case of Okwumodi V. Sowunmi (2004) 2 NWLR Part 836 Page 1 where it was held at page 22 paragraphs D – E as follows:-
“The particulars of grounds 1, 2, and 3 of the grounds of appeal cannot be accorded the same favour because they are argumentative, conclusive as they do not flow from the errors or misdirection contained in the ruling. Any particulars, which are conclusive, argumentative or vague, are outside the precincts of the application of Order 3 rule 2(2) of the rules. It is settled that where a ground of appeal as in the instant case alleges error in law or a misdirection, the particulars of error or misdirection must be clearly stated and must specifically flow from the main ground of appeal which is based on the error and misdirection in the ruling or judgment.”
See also – Sosanya V. Onadeko (2005) 8 NWLR (Part 926) Page 185 at 209 at 216.
Furthermore once one or more of the particulars of any ground of appeal are rendered bad the remaining particulars serve no useful purpose because the court will not give effect to the ground of appeal by excising bad ones. The entire ground will be rendered incompetent and shall be liable to be struck out.
See – Stirling Civil Eng. Nig. Ltd v. Yahaya (2002) 2 NWLR (Part 750) Page 1 at 15 to 16 paragraphs G-B.
– Kano ile Printers PLC. V. Gloede & Hoff Nigeria Limited (2002) 2 NWLR Part 751 at 420 particularly at 444, E-F.
– Nwadike V. Ibekwe (1987) 4 NWLR (Part 67) at 718.
– Chief T.G. Berejin & others V. Chief Brown Gbogbo (1987) 1
– NWLR (Part 97) at Page 372.In the instant situation, extraneous materials, which did not flow from the judgment of the lower court, were brought in as particulars of misdirection to ground 1.
Consequently, it is my view that ground 1 of the grounds of appeal should be struck out and it is accordingly struck out.
Even if Ground I of the grounds of appeal is not struck out my simple response to it is that the heavy weather being made of the fact that the Learned trial Judge sat on 28th day of December 2006 which fell on the period of Christmas vacation lacks any substance in view of the provisions of Order 45 Rule 5(1) of the High Court Civil procedure Rules 2006 which provides that:-
“Notwithstanding the provisions of Rule 4, any cause or matter may be heard by a Judge during any of the periods mentioned in paragraphs (b) (c) or (d) of rule 4 (Except on a Sunday or Public Holiday) where such cause or matter is urgent or a Judge at the request of the parties concerned agrees to hear the case or matter.”
In the instant case the learned trial Judge had earlier stated in the proceedings of 5/12/2006 that this matter is urgent, therefore his decision was given with judicial authority.
Concerning the issue of transfer of the suit by the then Chief Judge of Anambra State on 20/12/006. Learned counsel for the 1st Respondent conceded that the Chief Judge of Anambra State has power under Section 40 of the High Court Law of Anambra State to transfer a case before a Judge of the High Court to any other Judge. It was also pointed out that the National Judicial Council acting pursuant to its powers under paragraph 21(d) of Part 1 of the 3rd Schedule to the 1999 Constitution of the Federal Republic of Nigeria and Section 292(1)(b) of the same Constitution had suspended Hon. Justice C.J. Okoli as Chief Judge of Anambra State with effect from 20/12/2006. (See pages 5 & 6 of the Supplementary record).
In view of the foregoing since the suspension of Hon. Justice C.J. Okoli as the Chief Judge of Anambra State took effect on 20/12/2006, with effect from that date, Hon. Justice Okoli was stripped of all authority, be they judicial or administrative to execute any official act as the Chief Judge of the State by reason of the suspension.
The direct effect of the said suspension was to render the transfer order absolutely invalid. The order of transfer was therefore not an act of the Chief Judge of the State and by virtue of Section 40 of the High Court Law of Anambra State, only the Chief Judge can effect the transfer of a case from one judge to another judge in the High Court.
Therefore all acts of Hon. Justice C.J. Okoli on that 20th December 2006 and thereafter purporting to be official acts in the capacity of Chief Judge are void. See – Ogbunyinya V. Okudo (1997) ANLR Page 105.
On the submission by learned Senior Counsel for the 1st to 5th Appellants that the 1st Respondent’s suit before the lower court is incompetent by virtue of Sections 3, 23, and 30 of the Legislative Houses (Powers and privileges) Acts. It is trite that in considering or determining whether a court has jurisdiction, only the Statement of Claim or the Amended Originating Summons as in this case will be considered by the court.
See – Adeyemi & others V. Opeyori (1979) 9-10 SC Page 31 at 49.
– Lagoon City Development Corporation Ltd V. A.G. Federation & others (2002) 14 NWLR (Part 786 Page 19 at 28.
– Izenkwe & others V. Nnadozie (1953) 14 W.A.C.A. Page 361 at 363.
Before a court can exercise jurisdiction in respect of any matter, it must;
(i) Be properly constituted as regards numbers and qualification of the members of the bench and no member is disqualified for one reason or the other.
(ii) The subject matter of the case is within the jurisdiction of the court and there is no feature in the case which prevents the court from exercising its jurisdiction, and
(iii) The case comes by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction.
See – Madukolu V. Nkemdilim (1962) 2 SCNLR Page 341.
It is the law that any statute that seeks to ouster the jurisdiction of the court or restrict the right of access to court must be strictly construed. See
– Bello V. Diocesan Synod of Lagos & others (1973) 1 All NLR Part 1 at 247.
– Peenock Investment Ltd. V. Hotel Presidential Ltd. (1983) 4 NCLR Page 1222.
– Din V. A.G. of the Federation (1988) 4 NWLR Part 87 at 147.
– Dasuki V. Muazu (2002) 16 NWLR (part 793) Page 319 at 240.
In this case, the interpretation of Section 188(1) to (10) of the 1999 Constitution of the Federal Republic of Nigeria was considered by the lower court and to that extent, it is my view that the Appellants cannot invoke Section 3 of the Legislative Houses (powers and Privileges) Act. The suit has nothing to do with the situation or events as provided or contemplated in Section 3 of the said Act.
Furthermore Sections 3, 23, and 30 of the Legislative Houses (Powers and Privileges) Act cannot stand in the face of the provision of Section 4(8) of the 1999 Constitution of the Federal Republic of Nigeria which provides:-
“4(8) Save as otherwise provided by this Constitution, the exercise of Legislative powers of the National Assembly shall be subject to the jurisdiction of courts of law and of judicial tribunals established by law, and accordingly the National Assembly or a House of Assembly shall not enact any law, that ousts or purports to oust the jurisdiction of a court of law or of a Judicial tribunal established by law.”
And in the light of the interpretation of Section 188(1) to (10) of the 1999 Constitution in the case of:-
– Adeleke V. Oyo State House of Assembly (2006) 16 NWLR (Part 1006) Page 608, therefore no state enactment can override the provisions of the said 1999 Constitution.
Consequently the provisions of Sections 3, 23 and 30 of the Legislative Houses (Powers and privileges) Act are inconsistent with Section 4(8) of the 1999 Constitution as well as Sections 6(2), (3) and (6)(a) and (b) of the 1999 Constitution of the Federal Republic of Nigeria which vests judicial powers in Anambra State High Court and other Courts over all persons and authority including the Appellants. Therefore by virtue of Section 1(3) of the 1999 constitution, the Legislative Houses (powers and Privileges) Act is null and void being inconsistent with 1999 Constitution of the Federal Republic of Nigeria.
Furthermore for an act of the Appellants to be a legislative act done in the process of removing the Respondent from office, it must comply strictly with the procedure prescribed by Section 188(1) to (9) of the 1999 Constitution of the Federal Republic of Nigeria. See – Adeleke v. Oyo State House of Assembly (supra).
Next to be considered is the issue of Originating Summons Procedure.
The Learned Counsel for the 1st to 5th Appellants submitted earlier that there are so many facts in dispute in this case and therefore that Originating Summons is not appropriate under this situation.
On the other hand, counsel to the 1st Respondent submitted that there is no controversy which would warrant the suit to be called a hostile proceedings and that the justice of the case does not demand that oral evidence be called.
The question which the 1st Respondent sought from the court centered on-:
(a) non-compliance with the mandatory provision of Section 188(2) of the 1999 Constitution which provides that the Respondent shall be personally served with the notice of gross allegation of misconduct against him.
(b) The effect of the orders of court which restrained the principal officers of Anambra State House of Assembly from removing or continuing with the removal proceedings which the Appellants continued to pursue and purportedly completed during the subsistence of the order of court in Suit HID/207/2006.
(c) The effect of appointment of Frank Onyenwuzu as Clerk of Anambra State House of Assembly in replacement of Dr. Ikwuka.
(d) The absence of any rule of procedure used by the Panel constituted by the then Chief Judge of Anambra State that investigated the allegation contained in the Notice of gross allegation of misconduct.
(e) Effect of the publication in the Newspapers of 3/11/06.
A careful perusal of the Counter affidavit filed on behalf of the Appellants on pages 178 to 179 of the record of Proceedings showed that the counter affidavit did not contradict the documentary evidence, Exhibit 1 of the 1st Respondent which was a publication in the Sun Newspaper addressed to the Secretary to the State Government and never to the 1st Respondent.
– There is no dispatch book showing that the 1st Respondent was served and who effected the service of the Notice of gross allegation of misconduct on the 1st respondent.
– No document showing that the 1st respondent signed a copy of the notice of Gross allegation of misconduct.
No denial of the signatures in the publication.
– No newspaper publication showing that the 1st Respondent was served.
– There is no specific averment in the counter-affidavit that the 1st Respondent was personally served with the notice of gross allegation of misconduct.
It could therefore be seen that there is no dispute as to the non-service on the 1st Respondent with the notice of gross allegation of misconduct as provided by Section 188(2) of the 1999 Constitution.
In deciding whether or not contents of two documents are conflicting TORI J.S.C. stated in L.S.P.D.C. V. Adold Stama International Nig. Ltd. (2005) 2 NWLR (Part 910) Page 603 at 621 that:-
“For conflict in affidavit to receive the attention of the court the conflict must really affect the live issues involved in the case. The conflict must be tangible, not intangible. It must be material not immaterial and it must be substantial and fundamental to the live issues in the case. Where conflicts are peripheral, cosmetic and inarticulate or a mere farce orchestrated by the party, a court of law will not order that oral evidence be led to resolve or reconcile the “conflicts” in inverted commas.”In the instant case, the counsel for the 1st to 5th appellants stated that there are assertions made which required proof but in my view I do not see any conflicts deserving oral evidence. And if at all there are conflicts, they are not material, thus not deserving oral evidence in the circumstance.
The judicial authority cited by the appellants in support of their argument that this suit is a hostile proceeding and pleadings ought to have been filed is not correct on the facts of this case. The paragraphs of the amended Originating Summons which would have perhaps been considered as being in dispute are paragraphs 6A, 9A, 11D, and 11E which were abandoned by the Respondent therefore to start making pronouncement on them will be an academic exercise.
In view of the foregoing it is my view that the suit was properly commenced by Originating Summons.
On the issue of denial of opportunity to cross examine the deponents to the 3rd party affidavit, it was the submission of Learned Senior Counsel for the 1st to 5th appellants that a defendant is entitled as of right to test the validity and accuracy of the evidence marshaled against him by the Plaintiff by cross examining all witnesses called by the Plaintiff.
A careful perusal of the record of proceedings in this case showed that paragraph 11E and Exhibit FA5-FA 14 of the Respondent’s Originating Summons were abandoned therefore the issues raised in the paragraphs and the Exhibits were no long alive.
It is the law that courts do not deal with hypothetical or academic issues, therefore ground 3 of the notice of appeal is incompetent.
See – NICON Vs power Industrial Engineering Co. Ltd. (1986) 1 SC Page 1 at Page 35.
– Asata Foods Factory V. Alraine (2002) 12 NWLR (Part 781) Page 353 at 368.
– UBN PLC V. Blue Continent Products (2002) 12 NWLR (Part781)
Page 424 at 434-436.
-Mobil Producing Nigeria unlimited V. Chief Simeon Monokpo (2003) 18 NWLR (Part 852) Page 346 at 398-399.
– Ngige V. Obi (2006) 14 NWLR (part 999) page 1 at 102, 103.
Learned Senior Counsel for the 1st to 5th appellants also submitted that it was wrong for the Learned Trial Judge to rely on Exhibit 2 filed along with the Original Originating Summons as if that exhibits were parts of the exhibits filed with the amended Originating Summons when it was not.
Learned Senior Counsel for the 1st respondent stated that what truly transpired at the court below was that learned counsel for the Plaintiff/1st Respondent applied to tender from the Bar, Certified True Copies of Public documents pleaded in the amended Originating Summons, copies of which had earlier been attached to the affidavit in support of the Originating Summons. And the court after hearing arguments from both sides admitted the documents as certified documents pleaded. (See page 348 of the record of the proceedings.)
It is my view that the Learned Trial Judge correctly approached the issue of admissibility of the Certified True Copy of the Public documents pleaded in the Originating Summons and came to a correct conclusion that they were admissible. This is so because the said documents were duly pleaded in the amended Originating Summons and/or the facts relating to them were duly pleaded. They were also relevant to the issues in controversy. They were public documents duly certified in accordance with the provisions of Section III of the Evidence Act. That being so, they did not need to be brought in through an affidavit, the said documents are admissible in law upon their mere production. See – Daggash V. Bulama (2004) 1.4NWLR Part 892 Page 144 at 161-162 ratio 15 where it was held inter alia:-
“Once a public document is certified and signed as required by Section 111 of the Evidence Act, such document is admissible on its mere production and it is unnecessary to prove custody or to verify it. It is unnecessary to call the public Officer who certified it and it may even be tendered from the Bar.”
See also – Agagu Vs, Dawodu (1990) 7 NWLR (part 160) Page 56.
It was also contended on behalf of the 1st to 5th appellants that the learned trial Judge failed to appreciate that the Originating Summons to which the said Exhibit 2 was attached was never processed and served before it was superseded by an application Ex-parte to amend same.
The Learned Senior Counsel for the 1st Respondent was quick to point out that the Originating Summons to which the said exhibit 2 was attached, was pursuant to the order of court for substituted service made in the matter, duly processed and served, through publication on pages 32 to 33 of the Vanguard Newspaper of Tuesday November 28/2006.
On the submission that when a process is amended that the original process becomes Otiose, it is my view that the court cannot shut its eyes against such old process, it still forms part of the processes before the court which the court is entitled to look at. See – Agbahomovo & others V. Eduyegbe & others (1999) 2 SCNJ Page 94 at 96 ratios 1 & 2.
In view of all I have said so far on the issues under consideration, Issues 1, 2, 3 and 4 are therefore resolved against the appellants.
ISSUES 5, 6, 7 & 8 (Taken together)
It was contended on behalf of the 1st to 5th appellants that the learned trial Judge was wrong when he held that the 1st to the 5th Defendants did not effectively deny paragraphs 5, 6, 8, 9, 11(A) – 11(F) of the amended originating Summons. (See Pages 81 to 89 of the record). Reference was made to paragraphs 4 – 9 of the counter affidavit. (See pages 178 to 179 of the record of proceedings).
Learned Senior Counsel for the 1st to 5th appellants submitted that the lower court failed to appreciate the potency of paragraph 5 of the said counter affidavit which he said was a clear statement to the effect that the House of Assembly meticulously observed and complied with all constitutional requirements in the process of impeachment of the Plaintiff.
He went further that whether there was such compliance was a matter to be tested by evidence but that the court below prevented that from happening.
It was also submitted that without pleadings and oral evidence, it was not open for the trial Judge to hold that the 1st to 5th Defendants failed to obey the mandatory order of 25/10/06 made by Amaechi J. and that the failure rendered the impeachment process invalid.
The Learned Senior Counsel for the 1st to 5th Appellants also stated that whether in the circumstances of this case it was open to the learned trial Judge to come to the conclusion that the Plaintiff had proved that he was not served with the notice of misconduct without pleadings and oral evidence.
Reference was made to the Judgment of the lower court where it was stated that the burden is on the 1st to 5th Defendants to show that they served the Plaintiff with the notice personally and that they failed to discharge this burden.
The Learned Senior Counsel for the 1st respondent in his response referred to the concluding part of the judgment of the lower court where it was held that:-
“I consider reliefs veal, viii(a), viii(b), viii(i) and viii(g) abandoned. I hereby strike them out.”
It was pointed out that paragraphs 11(a), 11(d), 11(e) and 11(f) of the Amended Originating Summons dealt with matters which the court held were abandoned by the Respondent and which the court struck out.
A close examination of paragraphs 5, 6, 8, 9, 11(b) and 11(c) of the amended Originating Summons vis-a-vis the counter Affidavit filed by the Appellants showed that the said paragraphs 5, 6, 8, 9, 11(b) and 11(c) of the Amended Originating Summons were not denied. The law is settled that where a person makes specific, material and detailed allegations of facts in an affidavit, the opposing party is obligated to make specific denial and not general traverse, if he intends to join issues on the allegations of fact.
See – Ogusah V. Usman (2003) FWLR Page 1465 at 1482.
– Bisimillahi V. Yagba East Local Government (2003) F.W.L.R. 1939 at 1964.
In the instant case, it is my view that the appellants did not make specific denials of the allegations of facts contained in the Amended Originating Summons. Therefore the Learned trial Judge was right when he held that the appellants failed to effectively deny paragraphs 5, 6, 8, 9, 11(b) and 11 (c) of the Amended Originating Summons.
Concerning the submission on the order of Amaechi J., the appellants did not traverse the averments in paragraphs 8(i) and (ii) and 9 of the amended Originating Summons. The appellants in paragraph 4 of their counter affidavit simply stated that paragraphs 8(i) & (ii) and 9 of the amended Originating Summons is false, without more. The averment of the appellants can only amount to a general traverse to specific averments.
It is the law that a traverse or denial of specific facts must be specific and not general or evasive.
– See – Okonkwo V. C.C.R. Nig. Plc (2003) 8 NWLR (Part 822) Page 347 at 419.
– U.R.N. V. Dawodu (2003) 4 NWLR (Part 810) Page 287 at 300.
– F.B.N. PLC V. Akinyosoye (2005) 5 NWLR (Part 918) Page 340 at 373, and
– Omin v. Etim (2003) 6 NWLR (Part 817) Page 587 at 606.The appellants instead of obeying the order of a court of competent jurisdiction went ahead with the removal proceedings.
It is my view that failure to obey the mandatory order of Amaechi J. rendered the removal process invalid.
The courts have always stressed the need for obedience of court orders as could be seen in the following cases:-
– Dnwualu V. Mokwe (1999) 1 NWLR (Part 585) Page 146 at 154 -155.
– Attorney General Ekiti State V. Dararoola (2003) 10 NWLR (Part 827) Page 104 at 161 -162. H-C.
– Governor of Lagos State V. Ojukwu (1986) 1 NWLR (Part 18) Page 621 at 639.
On the issue of service of notice of gross misconduct on the Respondent, compliance with the provisions of Section 188 of the 1999 Constitution of the Federal Republic of Nigeria is mandatory.
Section 188 of the said Constitution reads:-
“(1) The Governor or Deputy Governor of a State may be removed from office in accordance with the provisions of this section.
(2) Wherever a notice of any allegation in writing signed by not less than one-third of the members of the House of Assembly –
(a) is presented to the speaker of the House of Assembly of the State,
(b) stating that the holder of such office is guilty of gross misconduct in the performance of the functions of his office, detailed particulars of which shall be specified, the speaker of the House of Assembly shall within seven days of the receipt of the notice, cause a copy of the notice to be served on the holder of the office and on each member of the House of Assembly, and shall also cause any statement made in reply to the allegation by the holder of the office to be served on each member of the House of Assembly
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
The contention of the 1st Respondent is that he was not served with the notice of gross misconduct in compliance with the provision of Section 188 of the 1999 Constitution of the Federal Republic of Nigeria.
There is nowhere in the Appellant’s counter affidavit where it was deposed that the 1st Respondent was personally served with a notice of allegation of gross misconduct.
The service of process in any proceeding affecting the rights of the parties is very fundamental. Section 36 of the 1999 Constitution of the Federal Republic of Nigeria guarantees every Nigerian fair hearing in the determination of his civil rights and obligations.
What the appellants did was that by correspondence dated 16/10/2006, notice of allegation of gross misconduct against Mr. Peter Obi, Governor of Anambra State and Dame Virginia Etiaba, Deputy Governor Anambra State of Nigeria and published in the Daily Sun Newspaper of Friday 20th October 2006 at pages 40 and 41. The said notice was directed to the Secretary to the State Government, Office of Secretary to the State Government, Government House, Awka, and he was requested to cause the resolution to be placed before the Governor and Deputy Governor of Anambra State respectively.
There was nowhere in the Counter affidavit where the appellants deposed that they served the 1st Respondent with a notice of allegation of gross misconduct. In other words, there is no proof of service.
In the circumstance, it is my view that the purported notice of gross misconduct published in the Daily Sun Newspaper of 20/10/06 fell short of what is required under Section 188(2) of the 1999 Constitution of the Federal Republic of Nigeria and this is enough to set aside the entire process taken by the appellants.
In view of the foregoing, issues NO.5, 6, 7 and 8 are hereby resolved against the appellants.
This appeal by the 1st to 5th appellants therefore fails and it is accordingly dismissed.
The appeal of the 6th Appellant is also dismissed pursuant to Order 6 rule 10 of the Court of Appeal Rules 2002.
Also the Cross Appeal of the 1st Respondent which was withdrawn before the hearing of this appeal is hereby dismissed.
I hereby confirm the reliefs granted to the 1st Respondent by the High Court of Anambra State, i.e. Reliefs (i), (ii), (iii), (iv), (v), (vi), (vii)(c), (viii)(h), (viii)(i) and (viii)(j).
Consequently, for avoidance of doubt I uphold the Judgment of the I lower court that the Removal of the Plaintiff/1st Respondent Mr. Peter Obi by the Appellants is unconstitutional null and void and of no effect whatsoever.
Accordingly the Removal of Mr. Peter Obi by the appellants is hereby set aside, and he should be reinstated immediately with all his paraphernalia of office and rights by the appropriate authorities including the police.
In order to promote reconciliation between the Appellants and the 1st Respondent, I will not award any costs.
JAMES OGENYI OGEBE J.C.A: I had a preview of the lead judgment of my learned brother Bada, JCA and I agree entirely with his reasoning and conclusion for dismissing this appeal which in my view is totally unmeritorious. I wish to make a few remarks for the sake of emphasis.
I will first deal with the appeal of the 6th appellant i.e. Anambra State House of Assembly. On the 28th of December 2006 a notice of appeal was filed in the lower court on behalf of the 1st-6th appellant’s which is contained at 390 to 394 of the main record of appeal.
When the case came up in this court on the 22nd of January 2007, the learned counsel for all the appellants on that day, Chief Udechukwu SAN was granted leave to amend the grounds of appeal by adding additional grounds. On that same day the appellants were given 7 days to file their brief of arguments and the respondents were given 2 days within which to file their brief of arguments.
The case was then fixed for the 7th of February for hearing. When the case came up on the 7th February, the motion to strike out the name of the 6th appellant from the appeal was refused and Mr. Wole Adebayo of counsel announced his appearance for the 6th appellant and asked for time to file processes on its behalf. The application was refused and the appeal was subsequently argued by the parties.
Time is of the essence of this appeal and that is why we gave it accelerated hearing because the tenure of the first respondent who was removed from the office of Governor of Anambra State expires by the 29th of May 2007. Therefore it was in the interest of justice that the matter be heard expeditiously.
For the 6th appellant to change his counsel in the middle of the case and to come up with an application for an adjournment when they should have filed their brief within the time abridged by the court shows lack of diligence on the 6th appellant’s part. This court cannot help the indolent.
The consequence of its failure to file a brief is well taken care of by Order 6 Rule 10 of the Court of Appeal Rules and hereby dismiss the appeal of the 6th appellant under this Order.
On the appeal of the 1st to the 5th appellants, it is my view that the 1st ground of appeal which queries the competence of the trial judge to deliver judgment after the Chief Judge of Anambra State had on the 20th of December 2006 transferred the suit from him to Ogidi Division of the High Court of Anambra State does not appear to me to be a proper ground of appeal as it does not arise from the decision of the trial court.
Section 240 of 1999 Constitution reads:-
“Subject to the provisions of this Constitution, the Court of Appeal shall have jurisdiction to the exclusion of any other court of law in Nigeria, to hear and determine appeals from the Federal High Court, the High Court of the Federal Capital Territory, Abuja, High Court of a State, Sharia Court of Appeal of the Federal Capital Territory, Ahuja, Shari’a Court of Appeal of a State, Customary Court of Appeal of the Federal Capital Territory, Abuja, Customary Court of Appeal of a State and from decisions of a court martial or other tribunals as may be prescribed by an Act of the National Assembly.”
By this section this Court only has jurisdiction to hear appeals from decisions of the lower courts Jet out in the section and the order of transfer by the Chief Judge is not such a decision. It follows therefore that Ground 1 and Issue I in the appellants’ brief of argument are incompetent and I hereby strike them out.
Even on the merit of this issue there was a letter from the National Judicial Council on the 20th day of December 2006 suspending the Chief Judge of Anambra State from office at page 5 of the supplementary record and it was on that same day me purported to issue the order of transfer relied upon by the appellants. From the appellants’ own showing by the second record of appeal presented before this Court the Chief Judge of Anambra State who had been suspended on the 20th of December 2006 did not have the legal capacity to transfer the case from the judge of the lower court and such a transfer would amount to a nullity.
The crux of the whole appeal is whether or not the first respondent was served with the notice of gross misconduct prior to his removal as Governor of Anambra State as stipulated by Section 188 (2) of the 1999 Constitution. The respondent had deposed that he was not served. The appellants did not join issue by their averment. If indeed the first respondent was served, the easiest thing to do was to supply to the lower court proof of service. This appellant failed to do.
The Supreme Court has held that a breach of any of the conditions listed in Section 188 (1) – (9) of the 1999 Constitution would nullify the removal of a Governor from office. See the case of Hon. Muyiwa Inakoju & Others V. Hon. Abraham Adiola Adeleke & Others SC 272/2006 delivered on the 12th day of January 2007 (Unreported case of the Supreme Court) at page 34 of the contribution of Akintan JSC to the lead judgment where he stated as follows:
“Non compliance with any of the preconditions is enough to warrant setting aside of the entire processes taken by the appellants.”
The appellants had no real defence to the case of the 1st respondent in the court below. They violently and recklessly violated the procedure provided for in the Constitution for the removal of the Governor and their attempt to justify their action before this Court by hanging on to technicalities rather than facing the real issues in controversy is nothing but red-herring. The days of technicalities are over. The Court is now more interested in doing substantial justice.
There is no substance in the appeal at all and I hereby dismiss it and affirm the judgment of the trial court. Since the 1st respondent has filed a notice of the withdrawal of his cross-appeal I hereby dismiss it. I endorse the order of costs made in the lead judgment.
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, JCA: I have had the opportunity to read before now a draft copy of the judgment just delivered by my learned brother Bada, JCA and I am in complete agreement with him that this appeal lacks merit and ought to be dismissed.
The facts and circumstances giving rise to this appeal have been comprehensively set out in the lead judgment and I need not repeat them. It is nevertheless pertinent to note that the suit was commenced at the court below by originating summons challenging the impeachment of the 1st respondent as Governor of Anambra State for non-compliance with Section 188 of the 1999 Constitution of the Federal Republic of Nigeria. I express the following views on some of the issues for determination in this appeal by way of emphasis.
I agree with the reasoning and conclusion of my learned brother, Bada, JCA in the lead judgment, which I adopt as my own, that particulars (iv) and (v) of ground one of the 1st -5th appellants’ grounds of appeal are Dad and offend the provisions of Order 3 Rules 2 (2) and (3) of the Court of Appeal Rules 2002. I agree that the entire ground is incompetent and it is accordingly struck out.
In my view, even if the ground were competent it would not avail the 1st -5th appellants (hereinafter referred to as the appellants). It is contended that the learned trial judge, Nri-Ezedi, J lacked jurisdiction to deliver judgment in the suit on 28/12/06 having become functus officio. The grounds for this contention are, inter alia, that the appellants, as defendants before the court below applied to the Han. Chief Judge for the transfer of the case from Court 1 presided over by Nri-Ezedi, J to another court for determination. That the Hon. Chief Judge accordingly made the order of transfer on 20/12/06 as shown at page 1 of the first supplementary record. It is submitted on behalf of the appellants that by virtue of Order 37 Rule 7 (1) of the High Court (Civil Procedure) Rules 2006 on application for the transfer of a suit operates as a stay of proceedings from the date thereof and therefore the learned trial judge became functus officio from the date of the application.
It was submitted that pursuant to Order 45 Rule 4 (c) of the High Court (Civil procedure) Rules 2006 sittings of the High Court for the dispatch of civil cases or matters is prohibited during the period beginning on Christmas Eve and ending on 2nd January next following, except with the consent of the parties. It was argued that the delivery of the judgment on 28/12/06 without the knowledge or consent of the parties renders the judgment a nullity. It was also submitted that by virtue of Sections 3, 23 and 30 of the Legislative Houses (Powers and Privilege) Act the suit against the appellants is incompetent.
In reply to this issue, it was submitted on behalf of the 1st respondent that the power to transfer a suit from one court to another under Section 40 of the High Court Law of Anambra State can only be exercised by the Chief Judge. That the National Judicial Council (NJC) acting pursuant to its powers under paragraph 21 (d) of Part 1 of the 3rd Schedule to the 1999 Constitution and Section 292 (1) (b) thereof suspended the Chief Judge of Anambra State, Han. Justice C.J. Okoli with effect from 20th December 2006. That the said Chief Judge issued the instrument of transfer on the same date, 20/12/06. It was therefore submitted that the instrument of transfer issued on 20/12/06 was invalid. It was submitted further that in any event, since the suit had reached the judgment stage the Chief Judge could no longer exercise the power of transfer under Section 40 (1) of the High Court Law.
As to whether the court could validly deliver judgment during the vacation, reference was made to Order 45 Rule 5 (1) of the High Court (Civil Procedure) Rules 2006 and the urgency of the suit as expressed by the learned trial judge himself during the proceedings of 5/12/06 at page 346 of the record.
The main thrust of the appellants’ argument under the first issue is that the learned trial judge had no jurisdiction to deliver judgment on 28/12/06 because the suit had been transferred to another court pursuant to an instrument of transfer issued under the hand of the Chief Judge dated 20/12/06.
Section 40 (1) of the High Court Law of Anambra State and Order 19 Rules 1 (1) an8 2 (3) of the Anambra State High Court Rules 1 988 provide for the transfer of causes or matters by the Chief Judge from one Judge to another or from one judicial division to another. The power of the Chief Judge to transfer a cause or matter falls within his administrative functions. See: Egbe V Belgore (2004) 8 NWLR (875) 336.
Paragraph 21 (d) of Part 1 of the Third Schedule to the 1999 Constitution provides:
“21. The National Judicial Council shall have power to (d) recommend to the Governors the removal of the judicial officers specified in sub-paragraph (c) of this paragraph, and to exercise disciplinary control over such officers.”
The judicial officers specified in sub-paragraph (c) include Chief Judges of the States and Judges of the High Courts of the States. It is not in dispute that the Chief Judge of Anambra State, Hon. Justice C.J. Okoli has suspended from office by the N.J.C. on 20/12/06 with immediate effect until further notice. It follows that any act done or purported to be done by the learned Chief Judge in his capacity as Chief Judge of Anambra State on or after 20/12/06 is invalid and cannot stand. Having been suspended from office as Chief Judge of Anambra State on 20/12/06 with immediate effect, the said Instrument of Transfer is invalid and of no consequence.
With regard to the contention that the learned trial Judge had no jurisdiction to deliver the judgment during the period of the Christmas vacation, it is pertinent to consider Order 45 Rule 4 (c) of the High Court (Civil Procedure) Rules 2006 referred to by learned counsel for the appellants in conjunction with Rule 5 (1) of the said Order. Order 45 rule 4 (c) and 5 (1) provides:
“4. Subject to the directions of the Chief Judge, sittings of the High Court for the dispatch of civil matters will be held on every week day including Friday except-(c) during the period beginning on Christmas Eve and ending on 2nd January next following.
5 (1) Notwithstanding the provisions of Rule 4, any cause or matter may be heard by a Judge during any of the periods mentioned in paragraphs (b), (c) or (d) of rule 4 (except on a Sunday or public holiday) where such cause or matter is urgent or a Judge at the request of the parties concerned agrees to hear a cause or matter.”
By virtue of Order 45 Rule 5 (1), there are two situations in which the court may hear a cause or matter during the period specified in Rule 4 (c). They are where the cause or matter is urgent or at the request of the parties concerned. In the instant case the learned trial judge in the course of the proceedings of 5/12/06 at page 346 of the record commented on the importance and urgency of the suit in considering an adjournment of the proceedings. The Subject matter of the Originating Summons before the lower court was the legality or otherwise of the impeachment proceedings instituted against the 1st respondent. This court in the recent case of: Adeleke V. Oyo State House of Assembly (2006) 6 NWLR (1006) 608 at 672 E-F confirmed the urgency of a case of this nature when it held that the rem of the dispute was who was the rightful Governor of Oyo State before the tenure ends in May 2007 and that it was a matter that should be determined without delay. The originating summons in the present case is in respect of the impeachment of the Governor of Anambra State whose tenure is also due to end in May 2007. The learned trial judge was therefore perfectly in order to have delivered the judgment on 28/12/06 notwithstanding that it was during the period of the Christmas vacation. I also agree with learned counsel for the 1st respondent that the appellants have not shown that the delivery of the judgment during the Christmas vacation occasioned any miscarriage of justice to them.
It is also contended that the suit against the appellants is incompetent for violating the provisions of Sections 3, 23 and 30 of the Legislative Houses (Powers and Privileges) Act 1958. By virtue of Section 315 (1) (b) of the 1999 Constitution, the Legislative Houses (Powers and Privileges) Act 1958 may be construed as an existing law, deemed enacted by the State Houses of Assembly, as it deals with residual matters not mentioned in either the Exclusive or Concurrent Legislative List. See Section 4 (7) of the 1999 Constitution. See also: A-G Lagos State Vs A-G Federation (2003) 12 NWLR (833) 1 at 191 E-F; 192-193 D-A; Fawehinmi V. Babanqida (2003) 3 NWLR (808) 604. However, for those provisions to be valid and constitutional they must not conflict with any of the provisions of the 1999 Constitution. A careful examination of Sections 3 and 30 of the Act show that the purport of the provisions is to confer immunity from civil or criminal proceedings on the me1mbers of the State House of Assembly.
Section 4 (8) of the 1999 Constitution provides:
“4. (8) Save as otherwise provided by this Constitution, the exercise of legislative powers by the National Assembly or by a House of Assembly shall be subject to the jurisdiction of courts of law and of judicial tribunals established by law, and accordingly, the National Assembly or a House of Assembly shall not enact any law, that ousts or purports to oust the jurisdiction of a court of law or of a judicial tribunal established by law.” (Emphasis supplied).
The provisions of Sections 3, 23 and 30 of the Act are clearly inconsistent with Section 4 (8) of the Constitution. They are also in conflict with Section 6 1(2), (3) and (6) (a) and (b) of the 1999 Constitution, which vests judicial powers in the High Court of Anambra State in respect of all matters between persons and authorities, including the appellants. Insofar as Sections 3, 23 and 30 of the Act purport to oust the jurisdiction of the court in respect of matters relating to members of the State House of Assembly, The Legislative Houses (Powers and Privileges) Act is null and void pursuant to Section r (3) of the 1999 Constitution. It follows from all that I have stated above that the learned trial judge had jurisdiction to deliver the judgment when he did on 28/12/06.
The other issue, which I wish to comment on is the whether the learned trial judge was right when he tried the suit on the basis of the originating summons procedure.
The position of the law regarding the originating summons procedure was correctly stated by learned counsel for the appellants. The procedure is usually employed where the question to be determined is or is likely to be one of the construction of a written law or of any instrument made under any written law, or of any deed, will, contract or other document; or where there is unlikely to be any substantial dispute as to facts. See Order 5 Rule 3 of the Anambra State High Court Rules 1988, under which the originating summons in this suit was filed. The general principle of the law was stated in: Ajagungbade III Vs Adeyelu II (2001) 16 NWLR (738) 126. Whether or not facts are in dispute or are likely to be in dispute is an issue to be determined from the processes before the court.
The contention of the plaintiff/1st respondent in his Amended Originating Summons is that the defendants/appellants failed to comply with the mandatory provisions of Section 188 (1) – (9) of the 1999 Constitution in purporting to impeach him. In paragraphs 5, 6, 6A, 7, 8 (i) and (ii), 9, 9A, 10, 11, 11A, 11B, 11C, 110 and 11F of the originating summons the plaintiff alleged inter alia:
(ii) that the Notice of Allegation of Gross Misconduct against him land Dame Virgy Etiaba, the Deputy Governor of Anambra State was published in the Daily Sun Newspaper of 20/10/06 and directed to the Secretary to the State Government requesting the said Secretary to cause the resolution to be placed before the Governor and his Deputy respectively (paragraph 5);
(iii) that he was not served with any Notice of Allegation of Gross Misconduct and that the said publication is inadequate land runs foul of the Constitution (paragraph 6);
(iv) that despite the subsistence of an order of Amechi, J in Suit No. HID/207/2006: Hon. Sylvester Okeke V Hon. Mike Balonwu & Ors. restraining them, their servants, privies or any person claiming to act for them from taking any steps or continuing to take any steps on the impeachment notice pending the determination of the motion on notice for interlocutory injunction, which was duly served on them on 25/10/06, the appellants purportedly convened a sitting of the Anambra State House of Assembly wherein they called for a voice vote on a motion requesting the Chief Judge to set up a panel to investigate the purported allegation of gross misconduct within 7 days (paragraph 8);
(vi) that the appellants failed to prescribe any rules to guide the proceedings of the panel of 7 as required by Section 188 (7) of the 1999 Constitution (paragraph 11 C);
(v) that the panel commenced sitting on 31/10/06 and adjourned to 1/11/06 and on 1/11/06 at about 430 p.m. further adjourned to 6/11/06 (paragraph 11D);
(vi) that on 2/11/06 at about 6 a.m. the defendants purported to convene a sitting of the Anambra State House of Assembly wherein they purported to impeach the plaintiff bases on the alleged reports of the panel (paragraph 11E);
(vii) that on 3/11/06 based on the purported resolution of the defendants the Chief Judge of Anambra State was directed to swear in the Deputy Governor. That the entire process was fraught with irregularities and deliberate disregard of the provisions of the Constitution (paragraph 11F).
In reply to these grave and weighty allegations by the plaintiff the defendants filed a counter affidavit wherein they averred in paragraphs 4 and 5 as follows:
“4. Paragraphs 5, 6, 6A, 7, 8 (i) and (ii), 9, 9A, 10, 11, 11A, 11B, 11C, 11D and 11F of the Amended Originating Summons are all false and denied by the 1st, 2nd, 3rd, 4th, 5th and 6th defendants who informed me and I verily believe them that in impeaching the plaintiff and removing him from office as Governor of Anambra State, the Anambra State House of Assembly acted by the appropriate quorum and through the resolution of not less than 2/3 of its membership.
5. The said defendants also informed me and I verily believe them that in the performance of their functions under Section 188 of the 1999 C6nstitution leading to the impeachment of the plaintiff, the House of Assembly meticulously observed and complied with all constitutional requirements.”
It was contended on behalf of the Appellants that having averred that they had observed and complied with all the constitutional requirements it was a matter of evidence and inference as to the manner in which the notice was caused to be served on the plaintiff and not an issue to be presumed as having been admitted.
The law is trite that essential allegations in a pleading or affidavit, which are not specifically traversed or denied are deemed to be admitted by the adverse party. See: Daggash Vs Bulama (2004)14 NWLR (892) 144 at 234 E-G; Lewis & Peat (N.R.I.) Ltd. Vs Akhimien (1976) ALL NLR 468; Lawson-Jack Vs S.P.D.C.N. Ltd. (2002) 13 NWLR 1(783) 180. In the paragraphs of the supporting affidavit referred to above the plaintiff made quite specific allegations against the defendants regarding compliance with Section 188 (1) – (9) of the Constitution. The essence of the entire proceeding was that various acts done by the defendants were in violation of Section 188 (1) – (9) of the Constitution. In reaction to these specific allegations, the defendants merely made a general denial of the paragraphs concerned. At pages 380-381 of the record the learned trial Judge stated thus:
“I will next deal with issue no. (VI). This deals with the order of Amechi, J in suit no. HID/207/2006 restraining the 1st – 6th defendants from continuing with the impeachment exercise pending the determination of the motion oh notice. All the 1st -6th defendants said I about this in their counter affidavit was that it was false.
They did not say they are unaware of the order. They did not deny taking further steps in the impeachment exercise after the order was made. The order is 1 annexed as Exhibit 2 to the originating summons.
So as it is the 1st -6th defendants simply ignored the order of Amechi, J and went along with the exercise. This they cannot be allowed to do. They have no defence to this issue at all.”
Exhibit 2 annexed to the originating summons is a certified true copy of the order of Amechi, J. Apart from the general denial of paragraph 8 the defendants made no further comment on it. I am of the view that His Lordship was entitled to hold as he did that they had no defence to this issue.
With regard to the notice required to be served under Section 188 (2) of the Constitution, the learned trial Judge noted that the provisions of Section 186 (1)- (9) require strict and not merely substantial compliance and that failure to comply with even one of the requirements renders the entire exercise a nullity. He stated at pages 381-382 of the record:
“It is provided in Section 188 (2) that the notice shall be served on the holder of the office. So the question here is whether the Notice was served personally on the plaintiff. In paragraphs 6 and 7 of the originating summons the plaintiff states that he was not personally served with the notice. The response of the 1st – 6th defendants in paragraph 4 of their counter affidavit is again a bare denial. The plaintiff instead went ahead to say there was a publication in Newspaper to that effect and there was a letter addressed to the Secretary to the State Government requesting him to place the Notice before the Plaintiff.
Dr. Ikpeazu, SAN has argued, and I agree that publication in the newspapers and sending the Notice to the Secretary to the State Government to place it before the plaintiff are not service as envisaged by the section.
These two modes of service are what are called substituted service. This is not normally done unless by order of court or permitted by statute. The 1st-6th defendant’s have not shown by whose authority they embarked on substituted instead of personal service. They have even failed to show their reason for their action.”
I agree with the learned trial Judge that once a gain, a part from the bare denial the defendants did not depose to any facts to show that there was a real dispute as to the facts. Exhibit 1 annexed to the originating summons is the publication of the Notice of Allegation of Gross Misconduct clearly addressed to the Secretary to the State Government with a directive to the said Secretary to cause the resolution to be placed before the Governor and his Deputy. The defendants’ response in paragraph 5 of their counter affidavit to the plaintiff’s averment that he was not served with the Notice as required by Section 188 (2) of the Constitution, was that they meticulously observed and complied with all constitutional requirements. This in my view cannot be an answer to the specific allegation made such as to suggest to the court that there is a dispute as to the facts requiring pleadings to be ordered. The issue of service of the Notice as required by Section 188 (2) is so fundamental that it merits more than a bare denial. This court held in Adeleke Vs O.S.H.A. (supra) at 698 A-B and 716.717 H-A that the process as laid down in Section 188 (1) – (9) is mandatory and not directory and requires strict compliance. With respect to Exhibit 1, an a0erment stating when and how the Notice was served on the Plaintiff in compliance with Section 188 (2) could not be construed as an issue of law, which cannot be deposed to in an affidavit, as urged by learned senior counsel for the appellants in the course of his oral submissions while adopting his brief at the hearing of the appeal.
On the whole I am of the view that the learned trial Judge was correct to have tried the suit on the originating summons, there being nothing before him to show any serious dispute as to the facts. The failure to specifically deny paragraphs 6 and 8 of the Amended, Originating Summons in particular was fatal to the appellants. They had no answer to the allegation of non-service of the Notice on the 1st respondent nor the disobedience of the restraining order of Amechi, J. These two factors alone were sufficient to render the entire impeachment I proceedings null and void for non-compliance with Section 188 of the 1999 Constitution.
For these and the more detailed reasons given in the lead judgment of my learned brother Bada, JCA I find no merit in this appeal. It is accordingly dismissed. The judgment of the Anambra State High Court that the impeachment of the 1st respondent, Mr. Peter Obi, by the appellants is unconstitutional, null and void and of no effect is hereby upheld, I also confirm the reliefs granted to the 1st respondent by the High Court of Anambra State, namely Reliefs (i), (ii), (iii), (iv), (v), (vi), (vii) (c), (viii) (h), (viii) (i) and (viii) (j). The removal of Mr. Peter Obi by the Appellants is hereby set aside. I abide by the consequential orders made in the lead judgment including the order on costs.
MUHAMMAD LADAN TSAMIYA, (JCA): I have lead before now the leading Judgment of my learned brother BADA, JCA., in this appeal. His Lordship had adequately considered and resolved all the issues that require determination in this appeal. However, I wish to add some words of mine.
As borne by the record of the appeal, the appellants raised what seems to be preliminary objection in which they asked the trial Court to strike out the 1st respondent’s suit. In support of their preliminary objection they filed an affidavit in which they among other things stated that the facts stated in the originating summons call far facts and oral evidence.
In their brief of argument before us, the same issue was raised and submitted that there are so many facts in dispute in this case and they enumerated the question of facts involved and cited some cases they relied upon.
In response, it was submitted on behalf of the 1st Respondent that no any contentious issue or question of facts that can only be resolved by oral evidence.
It seems to me that one of the main bone of contention here for determination, is whether or not this Suit can be commenced by Originating Summons Proceedings and reach its finality based on affidavit evidence only.
Modes of commencement of action are clearly stated by the Anambra State High Court (Civil Procedure) Rules of 1988. Under Order 5 rule 3 of the said High Court Rules, the commencement of Civil Proceeding may be begun by Originating Summons. It stated as follows:-
“Unless otherwise expressly provided by any written Law from time to time inforce in the state, the following suits shall be commenced by originating summons that is to say; “Where-
(a) the sole or principal question at issue is or likely to be one of the construction of a written (Law or of any instrument made under any written Law or any deed, will, contract or other document or
(b) there is unlikely to be any substantial dispute of fact.”
It is abundantly clear that where an enabling Law or rule of court clearly provides for a procedure in the commencement of a particular action in a particular way, a party is bound to commence the action in the way prescribed by the Law or rule of Court. He has no option in the matter and so cannot exercise one. See UDENE V. UGWU (1997) 3 NWLR (Pt.491) 57.
From the foregoing it is manifest that where the principal question at issue involves the construction of a written Law, such as the constitution, the action should have been originated with an originating summon which would require the matter to be proved by affidavit evidence.
In this suit the 1st respondent was claiming that his removal from office as the Governor of Anambra State by the appellants was done not in accordance with the provisions of section 188 of the Federal Republic of Nigeria Constitution, 1999 and as such is unconstitutional. A matter as this which has to do with the unlawful impeachment is serious and it Involves question of construction of the Constitutional Provision. A look at the claim of the 1st Respondent where the focus point for determination is the question of propriety or otherwise of the impeachment procedure adopted by the appellants, commencing the action of the 1st respondent, by originating summon, in my view, is the proper procedure.
The appellants, therefore, cannot by merely raising question of facts, convert the case from one which calls for construction of the provisions of the Constitution into one of controversy of facts. The mode of impeachment of the 1st respondent as the Governor of Anambra State remains a question of law which requires a directive of court on the point involved.
On the state of the originating summons and the affidavit in support thereof, vis-a -vis the counter-affidavit of the appellants it is clear that there is no controversy or contentious issue and question of facts that can only be resolved by oral evidence, particularly when the time is the essence of the application, and there are documentary evidence which clearly showed that there was non-compliance with the provisions of section 188 of the said Constitution. And if at all there are conflicts, the conflicts in my view are not material which deserve oral evidence in this circumstance.
Though the cases cited by the appellants on this issue represent the law on the subject, the 1st respondent’s case in the trial court was a typical one in which originating summons was appropriately issued as it complies with High Court Rules stated above. Without much ado therefore, I hasten to say that what the trial court did was a judgment within its judicial authority.
This appeal fails and it is hereby dismissed. The judgment of the trial court delivered 28/12/2006 in suit No. 0/599/2006 is affirmed. I also agree with the orders he made including the order on costs.
DENTON-WEST, J.C.A.: I have had the privilege of reading before now the lead judgment just delivered by my learned brother, Jimi Olukayode Bada, JCA, and I agree with him on his reasoning and conclusions. As my learned brother has adequately dissected and treated comprehensively the issues involved in this appeal, I am obliged to adopt his findings and reasoning as mine. Nevertheless, there are a few issues in this appeal that is mind bogging and do not accord to the expectations of what a reasonable man will do in the circumstances of this case, especially relating to the observance of the rule of law and the supremacy of the Constitution of the Federal Republic of Nigeria of 1999 in respect of which I shall Endeavour to make a contribution, bearing in mind that this is not an academic exercise but for concern that the rule of law is upheld always so that our courts may no longer be subject of ridicule and also that true allegiance and defence of the Constitution by Nigerians and all stakeholders ill this appeal, the executive, the legislature and the Judiciary to all become revolutionize in the defence of this Constitution. These arms of government constitute the government of Nigeria. All governments rest mainly on public opinion and a wise government will look at the opinion of its subjects.
The facts and circumstances leading to this appeal have been fully set out in the leading judgment, and so it would serve no useful purpose to re-enact the same here.
This is an appeal brought by five members of the House of Assembly and the Anambra State House of Assembly as appellants against Mr. Peter Obi Governor of Anambra State as respondent in respect of the judgment dated the 28th day of December, 2006 delivered by Hon. Justice Umegbolu Nri-Ezedi of Awka Judicial Division of Anambra State Judiciary. The court below entered judgment in favour of the respondent in these words:
“On the whole and for the avoidance of doubt, I hold that the impeachment of the plaintiff Mr. Peter Obi, by the 1st – 6th defendants is unconstitutional, null and void and of no effect whatsoever. Accordingly I hereby set aside the impeachment of Mr. Peter Obi by the 1st-6th defendant’s. I made no order as to costs.”
Before further elaborating on the above I would want to make a comment on section 188(1) & (2) of the Constitution of the Federal Republic of Nigeria, which deals with the removal of Governor or Deputy Governor from office. The essence of this section 188(1) & (2) of the Constitution in the determination of this appeal which has to do with the purposed removal of the respondent from office by the appellants makes it mandatory for me to reproduce the totality of its provisions in this contribution section 188(1) & (2) of the Constitution of the Federal Republic of Nigeria, 1999 provides thus:
“(1) The Governor or Deputy Governor of State may be removed from office in accordance the provisions of this section.
(2) Whenever a notice of any allegation in writing signed by not less than one-third of the members of the House of Assembly;
(a) is presented to the Speaker of the House of Assembly the State;
(b) stating that the holder of such office is guilty of gross misconduct in the performance of the functions of his office, detailed particulars of which shall be specified.
The Speaker of the House of Assembly shall, within seven days of the receipt of the notice, cause a copy of the notice to be served on the holder of the office and on each member of the House of Assembly, and shall also cause any statement made in reply to the allegation by the holder of the office, to be served on each member of the House of Assembly.
(3) Within fourteen days of presentation of the notice to the Speaker of the House of Assembly (whether or not any statement was made by the holder of the office in reply to the allegation contained in the notice), the House of Assembly shall resolve by motion, without any debate whether or not the allegation shall be investigated.
(4) A motion of the House of Assembly that the allegation be investigated shall not be declared as having been passed unless it is supported by the votes of not less than two-thirds majority of all the members of the House of Assembly.
(5) Within seven days of the passing of a motion under the foregoing provisions of this section, the Chief Judge of the State shall at the request of the Speaker of the House of Assembly, appoint a panel of seven persons who in his opinion are of unquestionable integrity, not being members of any public service, legislative house or political party, to investigate the allegation as provided in this section.
(6) The holder of an office whose conduct is being investigated under this section shall have the right to defend himself in person or be represented before the panel by a legal practitioner of his own choice.
(7) A Panel appointed under this section shall –
(a) have such powers and exercise its functions in accordance with such procedure as may be prescribed by the House of Assembly; and
(b) within three months of its appointment, report its findings to the House of Assembly.
(8) Where the Panel reports to the House of Assembly that the allegation has not been proved, no further proceedings shall be taken in respect of the matter.
(9) Where the report of the Panel is that the allegation against the holder of the office has been proved, then within foul days of the receipt of the report, the House of Assembly shall consider the report, and if by a resolution of the House of Assembly supported by not less than two-thirds majority of all its members, the report of the Panel is adopted, then the holder of the office shall stand removed from office as from the date of the adoption of the report.
(11) In this section – “gross misconduct” means a grave violation or breach of the provisions of this Constitution or a misconduct of such nature as amounts in the opinion of the House of Assembly to gross misconduct.”
It is therefore the compliance or non-compliance of the provision of this salient section of the Constitution that this appeal inter alia seeks to resolve. Issue 7 is one of the issue for the determination brought by the appellants in respect of specifically section 188(2) subsection B of the 1999 Constitution herein underlined, wherein the judgment of the lower court was being challenged to this effect:
“whether in the circumstances of this case, it was open to the learned trial Judge to come to conclusion that the plaintiff had proved that he was not served with the notice of misconduct without pleadings and oral evidence. ”
The same issue was canvassed by the respondent, as issue No. VIII thus:
“Whether the learned trial Judge was light when he held that the notice of allegation of misconduct was not duly served on the respondent by the appellant a fact which rendered the entire impeachment proceedings void? (Ground 9).”
Issues 7 and 8 are one and the same issue.
The appellant in their brief argued on issue 7 and submitted that the kennel of their argument under this issue is that the only reason that the court gave for coming to the conclusion it did is that the 1st – 6th defendants did not effectively deny paragraphs 5 and 6 of the amended originating summons, and therefore the court said that the burden is on the 1st to 5th defendants to show that they served the plaintiff with the notice personally and that they failed to discharge this burden. The response to this allegation by the lower court as regards the failure of the appellants to have personally served the plaintiff with the notice was stated on pages 27 – 28 of their brief paragraphs 10.1 to 10.4. I shall seek to reproduce their response because of the constitutional implications as regards the issue of service of the notice personally as required by, section 181 subsection 2b of the 1999 Constitution, is accordingly hereby reproduced;
“10.1 But it is only at the hearing after pleadings that this burden can be taken up for discharge. The 1st to the 5th defendants had in paragraph 5 of their counter-affidavit clearly averred that they meticulously observed and complied with all constitutional requirements. As we had pointed out earlier, this must necessarily include the clear implication that the Speaker caused a copy of the notice of misconduct to be served on the plaintiff as required under section 188(2) of the 1999 Constitution.
10.2 The expression “caused to be served” was not considered. Instead, the court merely said that substituted service is not permitted and that service through the Secretary to the Government is also not permitted. In doing this, the court relied on the provisions for service of process in court as contained in the High Court Rules. But there is no warrant to hold that caused to be served as used in the Constitution should be subjected to the same rules applicable to service of judicial processes in the cause.
10.3 If the learned trial Judge had appreciated this, he would have equally appreciated the need to take evidence so as to determine whether within the contemplation of the Constitution, the Speaker did cause to be served on the plaintiff, a copy of the notice of misconduct.
10.4 We therefore urge the Court of Appeal to resolve our issue seven in the negative by holding that in the circumstances of this case, it was not open to the learned trial Judge to come to the conclusion that the plaintiff had proved the (sic) he was not served with the notice of misconduct without pleadings and oral evidence.”
To this, the respondent in his brief contended that he was not served with the notice of allegation of misconduct in paragraphs 5 and 6 of the amended originating summons and that the onus of service on him shifts to the appellants to prove.
However, service of process in any proceedings affecting the rights of parties is very fundamental. See – section 36 of the Constitution, which guarantees every Nigerian fair hearing in the determination of his civil rights and obligations. See I.F.A. Int. Ltd. v. L.M.B. Plc (2005) 9 NWLR (Pt. 930) page 274 at 287. Proper service of court process are essential and a sine qua non for adjudicatory purposes and failure to effect service or court process properly where required may affect jurisdiction of a court See Ononye v. Chukwuma (2005) 17 NWLR (Pt. 953) 90; TENO ENG. LTD. V. ADISA (2005) 10 NWLR (Pt. 933) 346; Rivers State Government v. Specialist Konsult (2005) 7 NWLR (Pt. 923) 145; Adamu v. Akukalia (2005) 11 NWLR (Pt. 936) 263.
So likewise the issue of proper service of the notice of allegation of gross misconduct personally on the respondent is a sine qua non to properly complete the removal of a governor as contemplated under the provisions of section 188(1) and (2) subsection (b) of the Constitution, 1999. See Adeleke v. O.S.H.A. (2006) 16 NWLR (Pt. 1006) 608.
The constitutional requirements for the removal of a Governor or his Deputy have been clearly spelt out under this provision of section 188(1) & (2) of the Constitution and these requirements are clear and must be fully fulfilled before a governor or his deputy could be removed otherwise failure to so fulfill any of the stipulated conditions under this provision could render the removal or impeachment process invalid, and therefore null and void. See the unreported Supreme Court decision in Sc. 272/2006 (now reported in (2007) 4 NWLR (Pt. 1025) 423); Muyiwa Inakoju, Ibadan South East & 17 Ors. v. Hon. Abraham Adeolu Adeleke & 3 Ors. Delivered on 12th day of January, 2007 when it upheld the decision of the Court of Appeal in Adeleke v. O.S.H.A. (supra). Adeleke’s case is nearly on all fours with the extant appeal and the apex court in the construction and interpretation of section 188(1) & (2) of the Constitution had this to say per Niki Tobi, JSC at pg. 636-637, paras. G-E thus:
“I have said so much in this judgment. It is perhaps neater and tidier if I say by way of recapitulation as follows:
1. The provision of section 188(1) to (9) must be strictly complied with before a Governor can be constitutionally removed from office.
2. It is only when the provisions of section 188(1) to (9) are complied with that the ouster clause of section 188(10) can be invoked in favour of the House and to the disadvantage of the removed Governor or Deputy Governor.
3. It is only when section 188(1) to (9) is complied with that the jurisdiction of the courts is constitutionally ousted.
4. The provision of section 188(11), though generic and vague in its wording, cannot be extended beyond its onerously generic and vague nature to include misconduct which are not gross.
5. The specific acts of misconduct I have outlined in this judgment cannot be and should not be taken as exhaustive but should be taken as some acts of misconduct. This is not however a licence
for the legislature to open a pandora’s box of vendetta and rake up misconduct that are not gross.
6. Any business of the House should be held and conducted in parliamentary hours, which are set out in the rules governing the sitting of the House. On no account should business of the House be held in unparliamentary hours. Such business is unconstitutional and the courts will declare it null and void ab initio.
7. Every person involved in the removal exercise must be, like Caesar’s wife, above board. They are the Speaker, the members of the House of Assembly, the Chief Judge and members of the Investigation Panel.”
Consequently, I further in line with the lead judgment resolve this salient issue in favour of the respondent.
The Constitution of our great country, Nigeria is observed more by payment of lip service to its contents than in upholding the same.
The breach of the Constitution by all and sundry more especially by our leaders is appalling, and this has led to lack of good governance.
Our leaders have abandoned the sacred duty of upholding the Constitution of Nigeria, 1999, which they swore to uphold and instead have subjected the Constitution to ridicule.
It is this ridiculing of our laws and the Constitution in particular that led to this unwholesome spate of litigations impeachments, corruption and indeed dangerous politicking that has rendered the society into traumatic convulsions. The whole Nigerian societies instead of enjoying that which the Constitution in its opening declared for Nigerians now live in fear.
“We the people of the Federal Republic of Nigeria having firmly and solemnly resolved: to live in unity and harmony as one indivisible and indissoluble nation under God … and to provide for a Constitution for the purpose of promoting good government and welfare of all persons in our country on the principles of freedom, equality and justice … ”
The leadership in Anambra State is constantly being affected by this disregard of the rule of law, weak and ineffective and indeed lacking in enforcement of the rule of law because the leadership has continuously and constantly lost its moral and legal right to lead the people to the part of moral rectitude, peace, stability and progress. It is the duty and responsibility of all organs of government and all authorities and persons, exercising legislative, executive and judicial powers to conform to, observe and apply the Constitution. There are fundamental objectives and directive principles of state policy which requires the government and the people of Nigeria to observe particularly the abolition of all corrupt practices and abuse of power, which is contained in section 15 subsections 5 of the Constitution of the Federal Republic of Nigeria, 1999.
It is this corrupt practices and abuse of power that vitiates the constant failure to uphold and defend the Constitution.
We lack good leadership in our body politic. A good leader is someone who is able to lead and has the ability to influence his people positively to attain and achieve greater heights for the good of humanity. A good leader is selfless and has only the interest of the people he is leading at heart. A leader’s action always has a rippling effect on the society. The leadership’s wrong actions can destroy the society and bring it to naught, whilst the acts of good and seasoned leaders could catapult our country Nigeria to the country we all dream about. It is great men and great leaders like Indira Ghandi, Roosevelt, Mrs. Thatcher, the Kennedys, the Nkrummahs, Nelson Mandela that have made their country the pride with which we all adorn their country.
These men were all people of great standing who acquired the moral right to lead their people and as much as possible they kept to this moral right and immediately a leader loses this moral right, he ceases to be a leader. A good leader should adhere to law and observe same.
Leaders cannot exist without followership and so everyone must observe the Constitution and obey state authorities, because no authority exists without God’s permission, and the existing authorities have been put in place by God who had allowed them to swear to an oath to uphold the Constitution. Therefore the followership should endeavour not to oppose the existing authority for whoever opposes them unduly has himself to face the wrath of the law. Therefore I enjoin the followership to love their leaders and pray for them to do good and they the followership should refrain from acts that is calculated to stop the smooth running of the affairs of government, at together and in love with their leaders, a very strong and indivisible State shall henceforth emerge where the 1999 Constitution of the Federal Republic of Nigeria shall be adhered to.
I do not intend to comment but to mention that the contenders in this appeal should however realize that their action for whatever reason has actually led to the suspension of the holder of the office of the Chief Judge of the State. The Hon. Justice C. J. Okoli who was and had been the Chief Judge at the inception of this action, and the after effects of the suspension thereof. This is a sad development and so I exho you not to toy or drag our Judges to political subjection and dispute for it is unfair for holder of the office of the sacred duty of Judge to face undue humiliation in the discharge of their duty because of political wrangling if and when they have duly acted in accordance with their oath of office to discharge justice without fear or favour under the Constitution. There was no doubt that he was Chief Judge, a fact not in dispute even by the respondents and their counsel. Judicial notice is taken of what had happened to this Chief Judge and other Chief Judges in the country. If this trend is not checked, our Chief Judges in the country would be subjected to fear in the discharge of their duties under this section 188(1)-(10) of the 1999 Constitution pertaining to the removal of a Governor in deserving cases and this is not good.
Throughout the appeal an issue that is constantly occurring is the issue of the rule of law.
Obeying court orders is both a legal and moral obligation but you find that court orders are toyed with both by lawyers and the litigating public. Indeed for the politicians, the rule of law is non-existing until it suits their purpose, and it is only then it is observed to the letter.
Without a strict adherence to the rule of law our nascent democracy and indeed our Constitution will only be worth the paper on which it is written. What makes a great country is adherence to the rule of law. Even in hell, there is order and discipline.
Judicial notice is taken of the fact that the rule of law is greatly bastardized and in this appeal, it is clear inter alia, that the various orders made so far by the law courts in this appeal have been flagrantly disobeyed by the appellants and all other arms of government that are involved in the execution of court orders. On pages 72 to 78 of the 1st respondent’s brief of argument the respondent’s counsel Dr. Onyechi Ikpeazu (SAN) in his submission in respect of ground eight of the grounds of appeal or more specifically, the effect of the appellants proceeding with the impeachment proceedings in violation of the order of a court of competent jurisdiction submitted that:
“That the appellants were bound to obey the order of Amechi, J., aforesaid and to have stayed all further actions on the impeachment. This they were bound to do whether or not Amechi, J., was right in making the order. The only other option open to them was to have applied to have the order discharged. This they failed to do.”
He then referred the court to series of cases of this court and the apex court, where the courts have frowned on the lack of adherence to the rule of law. In support thereof were the following cases: Onwualu v. Mokwe (1999) 1 NWLR (Pt. 585) 146 at 154 155; Attorney-General of Ekiti State v. Daramola (2003) 10 NWLR (Pt. 827) 104 at 161 – 162, wherein he cited copiously the decision of the Supreme Court in deprecating the act of disobedience of court order by the executive arm of government in the following words:
“No doubt the court frowns on the disobedience of its orders, particularly by the executive branch of Government and has used rather harsh language, such as “executive lawlessness”, in describing such acts of disobedience. On the application of an aggrieved party, the court has, in appropriate cases, not hesitated to exercise its coercive power to set aside such acts done in disobedience to its order and restore the parties to the position they were before such disobedience … The rationale for this cause of action by the court is to ensure the enthronement of the rule of law rather than acquiesce in resort to self-help by party … The court also has power of sequestration and committal against persons disobeying its order. ”
This vexed issue of the disobedience to orders of court or lack of observance of the rule of law by the executive aim of government has always been frowned upon by the judiciary arm of the same government from time immemorial to date and until recently the courts stressed this point by a recourse to strike action which in my humble view is unnecessary.
It is my humble view more appropriate to deal with those in breach of upholding the rule of law in accordance with the law no matter whose ox is gored rather than for us all to acquiesce in their continued violation which if not checked, could lead to anarchy. This is the position that could arise in this appeal and therefore all parties including the larger society and the politicians particularly are all exhorted by this court to ensure full adherence to the rule of law in the interest of peace and good governance. In case of Governor of Lagos State v. Ojukwu (1986) 1 NWLR (Pt. 18) p. 621 at 639 relied on by the respondent, Uwais, JSC (as he then was) has this to say as regards enthronement of anarchy in the absence of the rule of law thus:
“I think I should still stress that it is a matter of grave concern that the Military Government of Lagos State should be seen to disregard a lawful order issued by a court of law. If Government treats court order with levity and contempt the confidence of the citizen in the courts will be seriously eroded and the effect of that will be the beginning of anarchy in replacement of the rule of law. If anyone should be wary of the orders of court it is the authorities; for they, more than anyone else, need the application of the rule of law in order to govern properly and effectively.”
I further refer to the judgment of the lower court in this appeal where the Judge lamented on the lack of rule of law:
“I will next deal with issue No. (vi). This deal with the Order of Amechi, J., in suit No. HID/207/2006 restraining the 1st to 6th defendants, their agents and privies from continuing with impeachment exercise pending the determination of the motion on notice. All the 1st to 6th defendants said about this in their counter-affidavit was that it was false. They did not say they are unaware of the order. They did not deny taking further steps in the impeachment exercise after the order was made. The order is annexed as exhibit 2 to the originating summons. So as it is, the 1st to 6th defendants simply, ignored the order of Amechi, J., and went along with their impeachment exercise. This they cannot be allowed to do. They have no defence to this issue at all. An order of court whether valid or not must be obeyed until it is set aside. An order of court must be obeyed as long as it is subsisting by all no matter how lowly or highly placed in society. The alternative is chaos. This is what Rule of Law, we often trumpet about, is all about. What is even more, any other action taken by the 1st to 6th defendant after the order was made cannot be allowed to stand. They must be struck down. Let me add here that this alone vitiates the whole impeachment exercise.”
Consequently, I find merit in the approach of the lower court that the act of disobedience towards the order of a court or another court can render any further act by those who have acted disobediently to sanctions from other court, for no court would want its orders flouted. The same appellants who have flouted Amechi, J., order flagrantly are now seeking the favours of this court which I know they would like to see enforced if granted. Therefore I urge that the rule of law be respected and obeyed in order for justice to be really enthroned. The courts and the lawyers tend to look at a case only from the legal viewpoint which point may sometimes be very technical and so cases may and could be won on pure technicalities instead of the truth of the matter, to the point moral and ethical values are thrown over-board. Moral value is the essential force behind the rule of law.
These moral and ethical values should be seen to permeate our approach to legal issues and subsequently decisions thereon. Therefore it is with great joy that I embrace the great shift now by the court from the narrow technical approach to determination of actions to pursuit of substantial justice. See BOSSA V. JULIUS BERGER (2005) 15 NWLR (pt.948) P. 409: NIGER DELTA DEVELOPMENT COMMISSION V. PRECISION ASSOCIATES LTD. (2006) 16 NWLR 527. wherein this court declared inter-alia that it is more interested in doing substantial justice and that reliance on technicalities lead to injustice, whilst the judiciary malfunctions and is discredited I when it is bogged down by technicalities and therefore the preferred option is to do substantial justice. See also the case of HON. MUYIWA INKOJU & OTHERS v. HON. ABRAHAM ADEOLU ADELEKE (supra). Therefore irrespective of the outcome of this appeal, the parties should not allow the mistakes of the past to mar their vision for the future of Anambra State which focus should be on the good to come for only a good tree will bear good fruits for every tree is known by the fruit it bears.
Realistically, there is little prospect of actual cease fire in this turbulent acrimony amongst the parties or generally the politicians except each and everyone respect the rule of law and uphold the supremacy of the Constitution so that our nascent democracy could be made to thrive to the glory of God and service to humanity.
From the foregoing and anchoring on the well seasoned judgment of BADA, JCA, I find no merit in this appeal and affirm the judgment of Hon. Justice Umegbolu Nri-Ezedi of the Anambra State High Court to the effect that the removal of the Respondent, Mr. Peter Obi, as Governor of Anambra State is unconstitutional, null and void and of no effect whatsoever and same is hereby set aside. I also dismiss the appeal and abide by all the consequential orders thereat as contained in the lead judgment.
Appearances
Chief U.N. Udechukwu SAN
S.U.S. Mbanaso, J.N. Udechukwu (Mrs) and P.I. Iwoleme.
Mr. Wole AdebayoFor Appellant
AND
Dr. O. Ikpeazu SAN
A.C. Anaenugwu, O.J. Nnadi, P.E. Okpoko, T.U. Oguji,
Nkiru Okpalanozie, and P. Ozolesike.For Respondent
