OBONG CHRISTOPHER EKPENYONG v. BARRISTER IME UMANA & ORS (2010)

OBONG CHRISTOPHER EKPENYONG v. BARRISTER IME UMANA & ORS

(2010)LCN/4122(CA)

In The Court of Appeal of Nigeria

On Friday, the 10th day of December, 2010

CA/C/163/2006

RATIO

ISSUES FOR DETERMINATION: WHETHER ONE OR MORE GROUNDS OF APPEAL CAN GIVE RISE TO AN ISSUE IN THE APPEAL

An issue in an appeal is usually raised by one or more grounds of appeal. See ADEJUMO & ORS v. AYANTEGBE (1989) 3 NWLR (PT. 110) 417 (per Nnaemeka Agu, JSC). One or more grounds of appeal can give rise to an issue in the appeal but on no account should two or more grounds of appeal “share” an issue. See LABIYI v. ANRETIOLA (1992) 10 SCNJ 1 AT 2. PER NWALI SYLVESTER NGUTA, J.C.A

WHETHER FOR THE OUSTER CLAUSE IN SECTION 188(10) OF THE CONSTITUTION TO BE EFFECTIVE THE STEPS IN SUBSECTION (1) – (9) OF SECTION 188 MUST BE OBSERVED STRICTLY TO ENSURE THAT THE CONSTITUTION ITSELF IS NOT VIOLATED

I accept the argument and the authorities to the effect that for the purpose of the issues of jurisdiction Section 188(1) – (9) must be read together before it can be determined whether the ouster cause in subsection (10) bars the Court from intervention. For instance suppose that contrary to Section 188(1) the notice of allegation is supported by 1/3 of the Members of the House, this would be a violation of the Constitution itself and the Court would intervene.
For the ouster Clause in Section 188(10) of the Constitution to be effective the steps in subsection (1) – (9) of Section 188 must be observed strictly to ensure that the Constitution itself is not violated. In my view, once a complaint is made’ that any provision of Section 188 of the 1999 Constitution is breached the jurisdiction of the Court is ignited if only to determine whether there was a breach or not. It is akin to the issue of jurisdiction in which the Court has jurisdiction to determine whether it has jurisdiction. If the Court determines that no subsection of Section 188 was violated the matter rest. If there is a breach the Court can intervene to ensure compliance with the provisions of the Constitution. See Hon. ABRAHAM ADELEKE 7 ORS v. OYO STATE HOUSE OF ASSEMBLY & ORS (supra) relied on by the appellant wherein it was held. PER NWALI SYLVESTER NGUTA, J.C.A

IN ACCORDANCE WITH THE PROVISIONS OF THIS SECTION : IMPLICATION OF THE PHRASE “IN ACCORDANCE WITH THE PROVISIONS OF THIS SECTION” IN SECTION 188( 1) OF THE 1999 CONSTITUTION

IMPEACHMENT: WHETHER THE COURTS HAVE THE POWER TO NULLIFY ANY IMPEACHMENT WHICH IS NOT CARRIED OUT STRICTLY IN ACCORDANCE WITH SECTION 188(1) – (9)

In regards to – procedure leading to the impeachment of the Governor or -his Deputy. Whereas under the 1979 Constitution the process was left entirely with the Speaker and Members of the State Legislature, under the 1999 Constitution, the Chief Judge of the State has a quasi judicial function to perform in setting up the Panel to investigate any allegation of gross misconduct by the holder of the office. The courts too have power to nullify any impeachment which is not carried out strictly in accordance with Section 188(1) – (9) as was done in ADEOLU ADELEKE & ORS. v. OYO STATE HOUSE OF ASSEMBLY & ORS. (2006) 16 NWLR (pt.1006) 608 -and DAPIALONG v. DARIYE (2007) 8 NWLR (pt. 1036) 239. PER K. B. AKAAHS, J.C.A

Before Their Lordships

KUMAI BAYANG AKAAHSJustice of The Court of Appeal of Nigeria

NWALI SYLVESTER NGWUTAJustice of The Court of Appeal of Nigeria

JEAN OMOKRIJustice of The Court of Appeal of Nigeria

Between

OBONG CHRISTOPHER EKPENYONGAppellant(s)

AND

1. BARRISTER IME UMANA
2. BISHOP UDEME SIMON
3. ETEBOM EFFIONG EBEREFIAL
4. ATTORNEY-GENERAL, AKWA IBOM STATERespondent(s)

NWALI SYLVESTER NGUTA, J.C.A (Delivering the Leading Judgment): Appellant herein commenced an action on 4/5/06 by originating summons in the High Court of Akwa Ibom State, sitting at Uyo against the Respondents.
He asked the Court below to determine
“Whether in all the circumstances of this case, the Plaintiff was given a fair hearing by the 1st – 3rd Defendants given the fact that the plaintiff was not allowed even a minute to defend himself before that Panel.
The Panel referred to was constituted by the Chief Judge of Akwa Ibom State at the instance of the Speaker of the State House of Assembly to investigate allegations of gross misconduct leveled against the Appellant, then Deputy Governor of Akwa Ibom State by the State House of Assembly.
The appellant asked for five declaratory reliefs in respect of the proceedings before the Panel, an order to nullify the findings of the Panel as well as an order setting aside the entire proceedings and determination of the seven man investigation Panel and any act or acts done by the Respondents pursuant thereto.
Upon service on them of the originating summons the 1st – 3rd Respondents as defendants filed a Memorandum of Appearance on 12/5/06 and on the same date filed a notice of preliminary objection on the following four grounds:
“(1) This Honourable Court lacks jurisdiction to entertain the action.
(2)The subject matter of the action if justifiable at all (albeit not conceded) is statute barred.
(3) The activities, proceedings, comments and findings of the 1st- 3rd Defendant’s 7 man investigation Panel that investigated the allegations of gross misconduct against the Plaintiff are not open to judicial adjudication and cannot be basis for any cause of action.
(4)The case as presented is improperly constituted,”
The 4th Respondent, as defendant filed a Memorandum of Appearance on 16/5/06 and a notice of preliminary objection on 23/5/06 on the following three grounds:
“(1) The suit as academic.
(2) That the materials placed before the Court by the plaintiff falls short of the requirement to enable it to adjudicate on the matter.
(3) There is no cause of action or reasonable cause of action.”
The parties by their Counsel filed written arguments in the preliminary objections.
In its ruling of 16/8/06 on the preliminary objection the trial Court held “on the whole, having come to the conclusion, as I had earlier done, that this Court has no jurisdiction to entertain this action, only one course is open to me to take, viz: to strike out the case .
Accordingly, I decline jurisdiction and therefore hereby strike out this case with no order as to costs,”
See page 101 of the Records.
Aggrieved the appellant in a notice of appeal dated and filed on 6th September, 2006, appealed on three grounds from which the following two issues were framed for resolution by the Court:
1. Whether the learned trial judge was right to have declined jurisdiction by relying on the provision of Section 188(10) of the 1999 Constitution and the case of MUSA v. HAMZA & ORS 1982) 3 NCLR 229 when there was clear evidence of violation or non-compliance with the provision of Section 188(6) of the same Constitution by the Defendants and when the case of MUSA v. HAMZA (supra) was not decided based on the same facts as the present case.
Whether the learned trial judge was right in holding that the 4th Defendant was entitled to the protection of the Public Officers Protection Law under the circumstances of the case.”
In his brief of argument the 1st to 3rd Respondents formulated the following two issues for determination by the Court:
(1) Whether the learned trial judge was right when he held that his jurisdiction to entertain the action was ousted by the provision of Section 188(10) of the 1999 Constitution.
(2) Whether the learned trial judge was right in holding that the 4th Defendant is entitled to the protection of the
Public Officers Protection Law.”
In his own brief of argument the 4th Respondent presented the following two issues for the Court to resolve:
(1) Having regard to the circumstances of this case and the provision of Section 188(10) of the 1999 Constitution whether the learned trial Judge was right to have declined jurisdiction to adjudicate over the determination of the 7 man Panel and the removal of the Appellant from office (Ground 1 and 2).
(2) Having regard to Section 1 of the Public Officers’ Protection Law of Akwa Ibom State, whether an action can be instituted against the 4th Respondent after three months (Grounds, 2 and 3).”
Arguing issue one in his brief learned Counsel for the appellant contended that the trial Judge’ was in error when he declined jurisdiction pursuant to Section 188(10) of the 1999 Constitution and the case of MUSA v. HAMZA (supra), adding that the trial Judge ignored the distinction between the 1999 Constitution and the 1979 Constitution under which the case of MUSA v. HAMZA was decided. Citing Section 170(5) of the 1979 Constitution and Section 188(10) of the 1999 Constitution learned Counsel said that whereas the 1979 Constitution (Section 170(5) left impeachment exclusively within the powers of the Legislators, Section 188(10) of the 1999 Constitution created a quasi-judicial investigation panel by vesting the State Chief Judge with powers to set up the investigation panel. Learned Counsel contended that the panel set up by the State Chief Judge is quasi-judicial and so its decision is subject to judicial review. He said the facts of this case are different from the facts of ABANBE v. SPEAKER, ABIA STATE HOUSE OF ASSEMBLY (2001) 1 CHR 225,253 relied on by the trial Court in declining jurisdiction to entertain the case. He said in Aberibe’s case the Panel had not been set and therefore there had been no hearing and the issue of fair hearing did not arise. In the case at hand a panel had been set and hearing conducted up to defence but the panel submitted its report without hearing the defence for which the matter was continued. Learned Counsel conceded that impeachment was largely political in content but argued that the Court is not precluded from examining the procedure to ensure compliance with the provisions of the Constitution. He relied on ABARIBE’S case (supra). He argued that
while the “Court is barred from examining the proceedings or determination of the Panel it can examine the procedure leading to the determination arrived, drawing a distinction between procedure and proceedings.
He relied on BLACK’S LAW DICTIONARY 7TH EDN. THE DICTIONARY OF LAW by L.B. CURSONS for the definitions of the words procedure and proceedings.
Learned Counsel said the first step in impeachment as laid out in various subsections of 188 of the 1999 Constitution is a constitutional procedure the breach of which is fatal to the entire proceedings. The second procedure is Section 188(7) (a) and is adjectival in nature. He submitted that sub-section 10 of Section 188 cannot be invoked without compliance with sub-sections 1 – 9 of the said section. He relied on ADEOLU ADELEKE & 2 ORS v. OYO STATE HOUSE OF ASSEMBLY & ORS (2006) 16 NWLR (PT.1006) 608 AT 699 – 700 in his contention that the entire sub-sections of Section 188 should be read together. He urged the Court to resolve the issue in favour of the appellant.
In issue 2 learned Counsel argued that the learned trial Judge erred in holding that the action against the 4th Respondent is time-barred. He argued that the 4th Respondent was sued not for acts committed by him in his official capacity but for acts of agents of the government who are not public officers. He urged the Court to resolve the issue in favour of the appellant.
He urged the Court to allow the appeal and order that the case NO. HU/180/06 is tried by another Judge of the High Court of Akwa Ibom State, Uyo Judicial Division.
In his own brief of argument learned Counsel for the 1st – 3rd Respondent, in issue 1, quoted Section 188(10) of the Constitution (supra) and submitted that the trial Court was right to have declined jurisdiction to hear the case. He contended that the words “entertained” and ”’questioned” are wide enough to cover judicial review and cases such as the one at hand. He referred to IBRAHIM v JSC (1998) 14 NWLR (PT.584) 1AT 34 and said the provision of Section 188(10) is clear and does not admit any aid in its interpretation. He referred also to ONOCHE v. ODOGWU (2006) 6 NWLR (PT. 975) 65 AT 89. He argued that the history of impeachment embarked upon by the appellant is unnecessary in view of the clear provision of Section 188(10) of the Constitution. Counsel made reference to MUYIW A INAKOJU, IBADAN SOUTH EA.ST & ORS v. HON. ABRAHAM. ADEOLU ADELEKE & 3 ORS (2007) 1 SC (PT. 1) 1 where the Supreme Court affirmed the judgment of the Court of Appeal nullifying the impeachment of the Governor of Oyo State and said that the appellant did not show non-compliance of any of sub-sections (1) to 9 of Section 188 and so the ouster clause in Section 188 (10) of the Constitution is applicable. He urged the Court to hold that the Respondents complied with the pre-impeachment process specified in Section 188(1) to (9) and to uphold the ruling of the Court below.
In issue 2 he submitted that the trial Judge was right in his decision that the Public Officers’ Protection Law of Akwa Ibom State applies to the 4th Respondent. It is his contention that the 4th Respondent was sued in respect of an act done in the execution of a public duty. For learned Counsel its makes no difference that the 4th Respondent was sued for an act not done by him personally in the course of his duty as a Public Officer. He urged the Court to resolve issue 2 in favour of the 1st to 3rd Respondents. He urged the Court to dismiss the appeal as the lower Court lacked jurisdiction to entertain the suit and the Public Officers Protection Law of Akwa Ibom State ensured to the benefit of the 4th Respondent.
In his brief of argument, in issue 1, learned Counsel for the 4th Respondent said that the jurisdiction of the Court is ousted if it is shown that all the due process was complied with. He argued that the Akwa Ibom State House of Assembly complied with all laid down procedure in Section (ii) – (ii) of the Constitution. He said there is nothing to show that Section 188(6) was not complied with. In reaction to the appellant’s reliance on INAKOJU’S case Court argued that the facts of that case differ from the facts of the case at hand. He urged the Court to hold that the Respondent complied with Section 188(i) – (ii) and that the trial Court had no jurisdiction to entertain the suit. .
In issue 2 Counsel said that the 4th Respondent is protected by the Public Officers Protection Law. He relied on Section 1 of the Law. Counsel argued that as long as the 4th Respondent is sued from act done in pursuance of a public duty he comes within the embrace of the Public Officers Protection Law.
He urged the Court to resolve the issue in favour of the Respondents, and urged the Court to dismiss the appeal.
The two issues distilled from the three grounds of appeal were adopted by the 1st – 3rd Respondents in their respective briefs. However, whereas the appellants married issue one to grounds 1 and 2 and issue 2 to ground 3, and 1st to 3rd Respondents adopted the same formulation, the 4th Respondent predicated issue 1 on grounds 1,and 2 and issue 2 on grounds 2 and 3. In other words, issue 2 is split between grounds 2 and 3 of the grounds of appeal. An issue in an appeal is usually raised by one or more grounds of appeal. See ADEJUMO & ORS v. AYANTEGBE (1989) 3 NWLR (PT. 110) 417 (per Nnaemeka Agu, JSC). One or more grounds of appeal can give rise to an issue in the appeal but on no account should two or more grounds of appeal “share” an issue. See LABIYI v. ANRETIOLA (1992) 10 SCNJ 1 AT 2. However, I will determine the appeal on the two issues raised by the appellant and materially, adopted by, the 1st to 3rd Respondents and the 4th Respondent.
As regards impeachment of an elected office holder there is a radical departure from the 1979 Constitution in the 1999 Constitution. In the 1979 Constitution members of the State Assembly presented their allegation to the
Speaker of the House, the Speaker constituted a panel whose Members were to be approved by the House, the Panel investigated and sent its report to the Speaker who presented same to the House that raised the allegation.
So the House made the complaint, investigated the complaint through the panel set by the Speaker and finally determined whether or not the allegation is proved by them as complaints.
Impeachment then was an exclusive political weapon to be used as the politicians desired. There was no basis for intervention by the Court. Under the 1999 Constitution Section 188(5) thereof, the Chief Judge of the State at the instance of the Speaker, sets up the panel to investigate the allegation against the Governor or his Deputy, thus thereby introducing a quasi-judicial element into the process of impeachment.
I accept the argument and the authorities to the effect that for the purpose of the issues of jurisdiction Section 188(1) – (9) must be read together before it can be determined whether the ouster cause in subsection (10) bars the Court from intervention. For instance suppose that contrary to Section 188(1) the notice of allegation is supported by 1/3 of the Members of the House, this would be a violation of the Constitution itself and the Court would intervene.
For the ouster Clause in Section 188(10) of the Constitution to be effective the steps in subsection (1) – (9) of Section 188 must be observed strictly to ensure that the Constitution itself is not violated. In my view, once a complaint is made’ that any provision of Section 188 of the 1999 Constitution is breached the jurisdiction of the Court is ignited if only to determine whether there was a breach or not. It is akin to the issue of jurisdiction in which the Court has jurisdiction to determine whether it has jurisdiction. If the Court determines that no subsection of Section 188 was violated the matter rest. If there is a breach the Court can intervene to ensure compliance with the provisions of the Constitution. See Hon. ABRAHAM ADELEKE 7 ORS v. OYO STATE HOUSE OF ASSEMBLY & ORS (supra) relied on by the appellant wherein it was held

“The phrase “in accordance with the provisions of this Section” in Section 188( 1) of the 1999 Constitution makes it clear that the entire subsection of the section has to be read together and not in isolation of Section 188(10)…”
Whether or not the stricture in Section 188(10) will be applied will depend on whether subsections (1) – (9) were strictly complied with as provided by Section 188(1).
In any case whatever doubt existed as to the jurisdiction of the Court in impeachment matter was laid to rest by the apex Court when that Court upheld the decision of the Court of Appeal nullifying the impeachment of the Governor of Oyo State. I resolve issue one in favour of the appellant.
In issue 2 it is a given that the 4th Respondent is a public officer within the meaning of that term in the Public Officers Protection Law of Akwa Ibom State. Section 1 of the Law provides
“Where any action prosecution, or other proceedings is commenced against ANY PERSON FOR ANY ACT DONE IN PURSUANCE OR EXECUTION OR INTENDED EXECUTION OF ANY LAW OR OF ANY PUBLIC DUTY OR AUTHORITY OR IN RESPECT OF ANY ALLEGED NEGLECT OR DEFAULT IN EXECUTION OF ANY LAW, DUTY OR AUTHORITY, the action or proceedings shall not be or be instituted unless it is’ commenced within three months …..”
Though the 4th Respondent is a public officer, he was not sued for any act or omission of his. The Members of the Panel were not Public officers and even if they were, they were not agents of the 4th Respondent. It is my view that the Attorney-General of Akwa Ibom State, sued for the acts of the investigating Panel constituted by the State Chief Judge at the request of the Speaker of the House of Assembly and however not public officers entitled to protection by the Law Cap 104 of 2000 is not entitled to protection by the said law. If the people who did the act for which he was sued are not protected by the law the 4th Respondent cannot be protected by the same law.
I resolve issue 2 also in favour of the appellant and having so resolved the issues the appeal has merit and it is hereby allowed. I set aside the ruling of the lower Court and remit the case to the High Court of Akwa Ibom State to be tried de novo by another Judge of the State High Court.
Respondent to pay costs assessed at N10,000.00 to the Appellant.

K. B. AKAAHS, J.C.A: I read in draft the judgment of my learned brother, Ngwuta, JCA. I agree with him that there is a radical departure from what, if obtained under the 1979 Constitution with the present set up under the 1999 Constitution. In regards to – procedure leading to the impeachment of the Governor or -his Deputy. Whereas under the 1979 Constitution the process was left entirely with the Speaker and Members of the State Legislature, under the 1999 Constitution, the Chief Judge of the State has a quasi judicial function to perform in setting up the Panel to investigate any allegation of gross misconduct by the holder of the office.
The courts too have power to nullify any impeachment which is not carried out strictly in accordance with Section 188(1) – (9) as was done in ADEOLU ADELEKE & ORS. v. OYO STATE HOUSE OF ASSEMBLY & ORS. (2006) 16 NWLR (pt.1006) 608 -and DAPIALONG v. DARIYE (2007) 8 NWLR (pt. 1036) 239.
For this and the more detailed reasons contained in the lead judgment I too allow the appeal, set aside the ruling of the lower court and remit the case to the Akwa Ibom State High Court for hearing de novo by another Judge with N10,000 costs to the Appellant.

JEAN OMOKRI, J.C.A: I had the privilege of reading, before now, the judgment of my learned brother, Ngwuta, JCA, and I agree with his reasoning and, conclusion that the appeal is meritorious. I also allow the appeal. I also abide with the consequential order and order as to costs.

Appearances

A. A. ASUQUO ESQ.For Appellant

AND

E. ONEH for ADEYELE, -SAN
CHIEF VICTOR IYANAM ESQ.For Respondent