RT. HON. PEREMOBOWEI EBEBI & ORS V. D.C. DENWIGWE (SAN) & ORS
(2011)LCN/4430(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 30th day of March, 2011
CA/PH/296/2010
RATIO
SUBSIDIARY LEGISLATION: WHETHER A SUBSIDIARY LEGISLATION MUST COMPLY WITH THE PARENT STATUTE FOR IT TO BE VALID
Issue three will be answered in the negative as the said bye law can only succeed in the face of the compliance with section 188 of the 1999 Constitution as in this case. It is therefore held that in the event of non-compliance with section 188 of the Constitution, the said 6 of the Impeachment (Procedure) Rules of Bayelsa State House of Assembly 2005 can not avail the Defendants’/Applicants to save illegal impeachment by ousting the jurisdiction of the Court. As a subsidiary legislation derives its powers from the parent statute. In the case of this bye law it serves to complete the process of impeachment which must have been properly or lawfully commenced so if the commencement is not lawful and did not follow due process the latter part will have nothing to stand upon the must succumb to the jurisdiction of the court, the said provision of the bye law notwithstanding. PER EJEMBI EKO, J.C.A.
INTERPRETATION OF STATUTE: WHETHER SECTION 6 OF THE IMPEACHMENT (PROCEDURE) RULES, 2005 OF BAYELSA STATE HOUSE OF ASSEMBLY CAN NOT OUST THE JURISDICTION OF COURT, IF THE “IMPEACHMENT” PROCESS IS DEFECTIVE OR WHEN THE MANDATORY PROCEDURE IN SECTION 188 OF THE CONSTITUTION 1999 HAS NOT BEEN COMPLIED WITH IN THE REMOVAL OF A GOVERNOR OR DEPUTY-GOVERNOR OF A STATE FROM OFFICE
From the Ruling of the trial court, reproduced above, the said trial court had dismissed that contention, when it answered issue 3 formulated by it, at page 481 of the Record, in the negative. My understanding of the Ruling is that: section 6 of the Impeachment (Procedure) Rules, 2005 of Bayelsa State House of Assembly can not oust the jurisdiction of court, if the “impeachment” process is defective or when the mandatory procedure in section 188 of the Constitution 1999 has not been complied with. This reasoning can not fault. Not even section 188 (10) of the Constitution can oust the jurisdiction of the courts in the process of removing a Governor or Deputy-Governor of a state from office when the proper procedure, as provided in section 188 (1) (9) thereof, has not been followed. See INAKOJU v. DARIYE (2007) 8 NWLR [pt.1036] 239 at 294. PER EJEMBI EKO, J.C.A.
INTEGRITY: MEANING OF THE WORD “INTEGRITY”
The word integrity, which is further, qualified by the adjective, unquestionable, means the quality of being honest and having strong moral principles. It also means the state of being whole and not divided. PER EJEMBI EKO, J.C.A.
BURDEN OF PROOF: ON WHOM LIES THE BURDEN OF PROOF IN CIVIL CASES
…INAKOJU v. ADELEKE (2007) 4 NWLR [pt.1925] 423 at 571 – 572 per Tobi JSC referred to here supports the case of 1st – 8th Respondents. What the learned Jurist has stated in the quoted passage is clearly that – In originating summons, facts do not have a pride of place in the proceedings. The cynosure is the applicable law and its construction by the court. The situation is different in a trial commenced by writ of summons where the facts are regarded as holding a pride of place and the fountain head of the law, in the sense that the facts lead to a legal decision of the matter. This is what the Appellants are saying. They say that since their suit no YHC/206/2010 was commenced by a writ of summons the facts, which they have to prove, are the fountain head of the law applied by the learned trial Judge, and that the trial Judge took a legal decision on the matter without the facts leading thereto. They aver that the 1st Defendant/Respondent’s integrity is questionable. Therefore, as rightly submitted by the 1st-8th Respondents the burden lies on them to prove those material facts in their statement of claim by virtue of section 136 of the Evidence Act. The law expounded in SOKWO v. KPONGHO (2008) 7 NWLR (pt. 1086) 342 at 367 D-E, to wit- It behoves the appellant to give testimony in support of the pleading of law is that a plaintiff who asserts must prove his case with credible and unchallenged evidence. In civil cases, a party who wishes to succeed in obtaining judgment in his favour must adduce such credible evidence, for such cases are decided on preponderance of evidence and on balance of probability. PER EJEMBI EKO, J.C.A.
PROOF OF ALLEGATIONS: WHETHER COURTS CAN MAKE PRONOUNCEMENTS WITHOUT HEARING EVIDENCE IN PROOF OF THE TRUTH OF ALLEGATIONS
In the case, ALAMIEYESEIGHA v. IGONIWARI (No.2) (2007) 7 NWLR [pt.1034] 524, cited by them Rhodes-Vivour JCA (as he then was) at pages 589-590 made the point that in very weighty allegations on denial of fair hearing, breach of impeachment procedure or objection to membership of panel, it would be impossible to make pronouncements without hearing evidence in proof of the truth of these allegations, thus – Depositions in affidavits in support of originating summons are evidence. On the other hand, averments in the pleadings are not evidence. They are mere allegations. They only become evidence after the court hears witnesses in proof of the allegations. PER EJEMBI EKO, J.C.A.
JUSTICES
MUSA DATTIJO MUHAMMAD Justice of The Court of Appeal of Nigeria
(OFR) Justice of The Court of Appeal of Nigeria
EJEMBI EKO Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
Between
1. RT. HON. PEREMOBOWEI EBEBI
2. HON. AARON A. ALOKPA
3. HON. ANGUS DIDE Appellant(s)
AND
1. D.C. DENWIGWE (SAN)
2. R.N. TAPRE
3. REV. T.Y. EMMANUEL
4. MRS. LOVINA GBOLUSERI
5. UKARI ODUMA, ESQ.
6. MRS. FLORA NABAI FOLORUNSO
7. MR. JAMAI JAMABO WILLIAM-WEST
8. CHIEF JUDGE OF BAYELSA STATE
9. SPEAKER BAYELSA STATE HOUSE OF ASSEMBLY
10. BAYELSA STATE HOUSE OF ASSEMBLY
11. CLERK, BAYELSA STATE HOUSE OF ASSEMBLY
12. ATTORNEY – GENERAL OF BAYELSA STATE
13. GOVERNOR OF BAYELSA STATE Respondent(s)
EJEMBI EKO, J.C.A. (Delivering the Leading Judgment): By their writ of summons taken out on 16th June, 2010 the Appellants, as Claimants, sought from the Bayelsa High Court the following reliefs –
1. A DECLARATION that in view of the pendency of suit No YHC/201/2010 RT. HONOURABLE PEREMOBOWEI EBEBI V. SPEAKER BAYELSA STATE HOUSE OF ASSEMBLY & ORS, the 1st – 7th Defendants do not have the competence and or jurisdiction to commence or continue with the investigation of the purported allegations of gross misconduct against the 1st Claimant as contained in the purported Notice of Impeachment dated the 1st day of June, 2010 and/or as may be contained in any other document(s).
2. A DECLARATION that the purported constitution of the panel of seven persons (1st-7th Defendants) by the 8th Defendant, with the 1st Defendant as a member/Chairman thereof, for the purpose of investigating purported allegations of gross misconduct against the 1st Claimant, amounts to a violation of and/or noncompliance with the provisions of sections 188 and 36 of the Constitution of the Federal Republic of Nigeria, 1999 and therefore illegal, unconstitutional null and void.
3. AN ORDER OF PERPETUAL INJUNCTION restraining the Defendants, their servants agents and/or privies from proceeding with or continuing to proceed with the investigation or purported investigation of purported allegations of gross misconduct against the 1st Claimant contained in the aforesaid purported Notice of Impeachment dated the 1st day of June, 2010 or as may be contained in any other document.
4. AN ORDER OF PERPETUAL INJUNCTION restraining the 1st – 7th Defendants, their agents servants and/or privies from preparing and/or submitting the report of its purported investigation of the aforesaid allegations of gross misconduct against the 1st Claimant either directly to the 9th, 10th & 11th Defendants or through the office of the 8th Defendant or his agents servants and/or privies.
5. AN ORDER OF PERPETUAL INJUNCTION restraining the 14th Defendant, his servants agents and/or privies from carrying out any instructions, orders and/or directives from the 1st-7th Defendants in respect of the purported investigation of allegations of gross misconduct against 1st Claimant.
The writ of summons was accompanied by statement of claim, list of claimants’ witnesses and the depositions on oath of the witnesses. The suit was duly front loaded with the list of documents to be relied upon by the claimants and the said documents’ on the same 16th June, 2010 the claimants also filed two applications, to wit: motion ex parte and motion on notice, both of which seek respectively interim and interlocutory injunctions. –
1. Restraining the 1st – 7th Defendants (now respondents) their servants, agents and/or privies from investigating the purported allegations of gross misconduct against the 1st Claimant (Appellant who by then was the incumbent Deputy Governor of Bayelsa State) as contained in the purported Notice of Impeachment dated the 1st day of June, 2010 and/or from carrying out any of the duties assigned to them by the – 8th Defendant (Respondent) in respect of the aforesaid investigation of the purported allegations of gross misconduct against the 1st Claimant pending the determination of this suit (i.e. no YHC/206/2010).
2. Restraining the 1st – 7th Defendants from preparing and/or submitting any report of its purported investigation of gross misconduct against the 1st claimant to the 9th – 11th & 12th Defendants, pending the determination of this suit (i.e. no YHC/206/2010).
The motion ex parte sought interim orders as above pending the hearing and determination of the motion on Notice. Neither of the motions was heard before the suit was struck out on 29th June, 2010. Meanwhile, the 1st – 7th Defendants commenced their investigation proceedings on 22nd June, 2010, after becoming aware of the suit no YHC/206/2010 and the pending applications, and continued with the proceedings thereafter. Their report was submitted to the Bayelsa State House of Assembly on 23rd June, 2010. On the 22nd June, 2010 counsel to the 1st claimant drew the attention of 1st – 7th Defendants/Respondents to the pendency of suit no YHC/206/2010 and the motions, ex parte and notice, for restraint. The request of the claimants’ counsel for adjournment was turned down by the 1st – 7th Defendants, as a panel of investigation. By common knowledge the 1st Defendant is not only a lawyer; he is Senior Advocate of Nigeria (SAN).
Acting on the Report of the Panel of Investigation (i.e. 1st – 7th Defendants) the Bayelsa House of Assembly convened on 24th June, 2010, adopted the report of the Panel of Investigation and “accordingly resolved that Rt. Hon Peremobowei Ebebi (1st Claimant/Appellant), stand (sic) removed from the office as Deputy-Governor of Bayelsa State of Nigeria.”
This suit and the applications for interim/interlocutory injunctions were pending as at 24rh June 2010, when the 1st Claimant/Appellant was removed from office and remained pending on the cause list of Bayelsa State High Court until 29th June, 2010 when this suit was struck out. Aggrieved by the order striking out this suit on the said 29th June, 2010, the Claimants/Appellant have now appealed.
In the statement of Defence filed by the 1st – 8th Defendants/Respondents, in suit no YHC/206/2010, the subject of this appeal, the Chief Judge of Bayelsa, as a defendant in suit no YHC/201/2010 claimed that he received the resolution of the Bayelsa State House of Assembly on 9th June, 2010 and immediately thereafter constituted the Investigation Panel of seven persons (1st – 7th Defendants/Respondents in this appeal) the same day; and that the processes in the suit no YHC/201/2010 were served on him on 10th June, 2010. The other parties in that suit (YHC/201/2010) were served on 10th and 11th June, 2010. Both suits (nos YHC/201/2010 and YHC/206/2010) remained on the cause list and were pending until 29th June, 2010 when they were struck out in one ruling. This appeal (in YHC/206/2010) is against that order/decision striking out the said suit.
For the records: Two notices of appeal were filed within time by the Claimants/Appellants. The first notice of appeal, filed on 29th June, 2010 is at pages 488 – 493 of the record. That Notice was, at the instance of the Appellants, struck out on 13th October, 2010. The second notice of appeal was filed on 20th July, 2010 after the record of appeal was admitted with leave of this Court. Appellants also filed, with leave, additional grounds of appeal. The Appellants have formulated two (2) issues for determination which, they say, are distilled from grounds 1, 2, 3, and 4 in the Notice filed on 20th July, 2010, and grounds 5 of the notice of additional grounds of appeal. The two issues are as follows –
1. Whether the lower court infringed upon the Appellants fundamental human rights to fair hearing when in the determination of the 1st – 8th Respondents’ preliminary objection, it held that there was compliance with the provisions of section 188 of the Constitution of the Federal Republic of Nigeria, 1999 (from grounds 3 and 4 in the Notice of appeal filed on 20th July, 2010).
2. Whether the lower court was right in declining jurisdiction to entertain suit no YHC/206/2010: RT. HON PEREMOBOWEI EBEBI & ORS v. D.C. DENWIGWE (SAN) & ORS? [From grounds 1 and 2 in the Notice of Appeal filed on 20th July, 2010 and ground 5 in the Notice of Additional Ground of Appeal filed with leave of court).
For better appreciation of the facts antecedent to the Ruling of 29th June, 2010, the subject of this appeal, let it be mentioned that the 1st – 8th Defendants/Respondents filed a joint statement of Defence, together with the deposition on oath of their lone witness, and the documents they intend to rely on, on 21st June, 2010. On the same day they filed, through their counsel, F.T. Okorotie, Esq., a notice of preliminary objection. The Notice, accompanied by a written address in support, prays that the suit (no YHC/206/2010) be struck out struck and or dismissed “for want of jurisdiction”. The grounds for the objection were that:
1. The court has no jurisdiction to entertain this matter by virtue of section 6 of the Impeachment (Procedure) Rules of Bayelsa State House of Assembly, 2005.
2. The cause of action is not justiceable in law.
3. At the trial, the 1st – 8th Defendants shall rely on other legal and equitable grounds not spelt out above.
I have read the written address in support of the preliminary objection of 1st – 8th Defendants/Respondents. The argument therein turns only on the efficacy of section 6 of the Impeachment (Procedure) Rules, 2005 which according to the objectors – bars this Honourable Court from entertaining this suit against the 1st – 7th Defendants. (And) that the purport of ouster clause in an enactment is clear, that is, no court or tribunal should look into the matter the courts are so prevented from looking into.
Oral arguments on this issue of jurisdiction were taken on 18th and 22nd June, 2010 at pages 451 – 458 of the Record. The matter was then adjourned to 29th June, 2010 for Ruling. The learned trial Judge, D.E. Adokeme, J. upheld the objection and struck out suits nos YHC/201/2010 and YHC/206/2010 on 29th June, 2010. Hence, this appeal, which is in respect of suit no YHC/206/2010.
It appears to me, from the Record, that the learned trial judge, in his Ruling, dealt with the preliminary objection to suit no YHC/206/2010 at pages 485 487 of the Record. The relevant portions of the Ruling are –
In suit no YHC/206/2010, upon receipt of the writ of summons the counsel to 1st – 8th Defendants filed a preliminary objection praying this Court to strike out and/or dismiss the suit for want of jurisdiction. –
Issue three will be answered in the negative as the said bye law can only succeed in the face of the compliance with section 188 of the 1999 Constitution as in this case. It is therefore held that in the event of non-compliance with section 188 of the Constitution, the said 6 of the Impeachment (Procedure) Rules of Bayelsa State House of Assembly 2005 can not avail the Defendants’/Applicants to save illegal impeachment by ousting the jurisdiction of the Court. As a subsidiary legislation derives its powers from the parent statute. In the case of this bye law it serves to complete the process of impeachment which must have been properly or lawfully commenced so if the commencement is not lawful and did not follow due process the latter part will have nothing to stand upon the must succumb to the jurisdiction of the court, the said provision of the bye law notwithstanding.
The preliminary objection however succeeds as there is no of non-compliance with section 188 of the 1999 Constitution which have rendered the bye law inapplicable. The bye law also complies with constitution as it was enacted pursuant to section 188(7) thereof. The suit is hereby struck out for lack of jurisdiction by this court.
The issue 3 “answered in the negative” is
Whether section 6 of Impeachment procedure Rules of Bayelsa State House of Assembly 2005 is competent to oust the jurisdiction of this Court if section 188 of the 1999 constitution had not been complied?
See page 481 of the Record.
Now, to the issues for determination. The two issues formulated by the Appellants are not too dissimilar from those formulated by the Respondents. The 2nd issue formulated by 1st – 8th Respondents seems to differ from the Appellants issue 2. The 1st – 8th Respondents’ issue 2 is –
Whether the lower court was right when it declined jurisdiction to entertain suit no YHC/206/2010 based on section 6 of the Impeachment (Procedure) Rules of Bayelsa State House of Assembly, 2005.
Let me deal with this one quickly. From the Ruling of the trial court, reproduced above, the said trial court had dismissed that contention, when it answered issue 3 formulated by it, at page 481 of the Record, in the negative. My understanding of the Ruling is that: section 6 of the Impeachment (Procedure) Rules, 2005 of Bayelsa State House of Assembly can not oust the jurisdiction of court, if the “impeachment” process is defective or when the mandatory procedure in section 188 of the Constitution 1999 has not been complied with. This reasoning can not fault. Not even section 188 (10) of the Constitution can oust the jurisdiction of the courts in the process of removing a Governor or Deputy-Governor of a state from office when the proper procedure, as provided in section 188 (1) (9) thereof, has not been followed. See INAKOJU v. DARIYE (2007) 8 NWLR [pt.1036] 239 at 294.
ISSUE 1
The question is, whether the lower court (Adokeme, J.) denied the Appellants their right to fair hearing when in the determination of the preliminary objection of 1st – 8th Respondents it held that there was compliance with the provisions of section 188 of the 1999 Constitution. In the suit no YHC/206/2010 the Appellants, as Claimants, sought declarations inter alia that the panel of seven persons (i.e. 1st – 7th Defendants) constituted by the 8th Defendant, with the 1st Defendant as chairman thereof, for the purpose of investigating the allegations of gross misconduct against the 1st Claimant, violates sections 188 and 36 of the 1999 constitution, which renders the exercise a nullity. The ground for this declaration is that the 1st Defendant had acted as counsel to the Governor of Bayelsa State, Chief Timipre Sylva, and that the said Governor, whose animosity and allegations against the 1st Claimant/Appellant form the crux of the allegations of gross misconduct to be investigated by the panel headed by the 1st Defendant/Respondent. The Claimants fear likelihood of bias on the part of 1st Defendant against the 1st Claimant. Apart from section 36 (1) of the Constitution, the particular provisions of the Constitution they want to enforce are the provisions of section 188 (5) thereof that mandate the chief Judge (the 8th Defendant/Respondent) to -appoint a Panel of seven persons who in his opinion are of unquestionable integrity, not being members of any public service, legislative house of political party, to investigate the allegation as provided in this section.
The word integrity, which is further, qualified by the adjective, unquestionable, means the quality of being honest and having strong moral principles. It also means the state of being whole and not divided. The integrity expected of a member of the panel of seven persons is therefore one that can not be doubted. It is a question of facts or provable facts when the integrity of a member of the panel of seven persons is questioned.
Submitting under this issue 1 Dr. Alex Izinyon, SAN, of counsel to the Appellants, says that whenever a court is called upon to determine an interlocutory matter in a suit, the court should refrain from determining the merits of the substantive matter at that stage of the proceeding. He refers us to UNIVERSITY PRESS LTD v. I.K. MARTINS (NIG) LTD (2000) 4 NWLR [pt. 654] 584 at 595 E – R; ONUORA v. ONUORA (2000) 1 NWLR [pt. 641] 386 at 394 A – C; GROUP DANOMI v. VOLTIC (NIG) LTD (2008) 7 NWLR [pt.1087] 637 at 675 C-E. The learned senior counsel further submits that whenever a court of law determines the merits of the substantive suit at the interlocutory stage, the court has breached the right to fair hearing of the party adversely affected. For this he cites MOKWE v. EZEUKO (2000) 14 NWLR [pt.686] 143 at 149 D-G; ORJI v. ZARIA INDUSTRIES LTD (1992) 1 NWLR [pt.216] 124 at 141 H; WOHEREM v. EMEREUWA (2004) 13 NWLR [pt. 890] 398 at 419 E-G.
Appellants’ counsel further submits that the implication of the learned trial Judge finding that “there is no (sic) of non-compliance with section 188” of the 1999 Constitution is that the Appellants’ second relief in suit no YHC/206/2010 seeking a declaration that the appointment of the 1st Defendant/Respondent as Chairman/member of the panel of seven persons under section 188 (5) of the Constitution had been dismissed hastily and prematurely without their being heard on it. The learned senior counsel contends on this that at the juncture where there is a serious allegation of noncompliance with section 188 (5) of the Constitution has been raised the issue can not be decided unless the parties were heard on it; and that the learned trial Judge had erred when he determined the matter at the interlocutory stage. The learned trial Judge should have waited and heard the merit of the Claimants/Appellants allegations against the 1st Defendant before dismissing it in a ruling on the preliminary objection, senior counsel charged. Moreover, he said, the issue was raised suo motu and that the learned trial Judge did not call on the parties to address him on it before he ruled, as he did, that there had been compliance with section 188, sub-section (5) inclusive, of the constitution. Whenever a court raises any issue suo motu, the court is obliged to invite the parties to address it on the issue before ruling on the point, the learned Silk submits relying on ADEGOKE v. ADIBI (1992) 5 NWLR (pt .242) 410 at 420 421; AGBANELO v. UBN LTD (2005) 7 NWLR 534 AT 559 d. And that failure to give parties an opportunity to address it on the point raised suo motu by the court amounts to denying the party adversely affected by the decision of the court on that point. Senior counsel refers to MILITARY GOVERNOR IMO STATE v. NWAUWA (1997) 2 NWLR [pt.490] 675 at 709A on this. And further that a decision arrived at in breach of the right to fair hearing is liable to be set aside, relying inter alia on DAPIANLONG v. DARIYE (supra) at 331 A – B; OJENGBEDE v. ESAN (2002) FWLR 1406 AT 1420 f – g.
In conclusion Appellants counsel urged, on authority of MACFOY v. UAC (1962) A.C. 52; A.G ANAMBRA STATE v. NNAIFE (1992) 2 NWLR [pt. 224] 396 at 431 A – B, that the decision of the learned trial Judge appealed should be set aside, likewise the purported report of the Panel of seven persons (1st-7th Defendants). The learned Silk then urges that issue the appeal on this issue be allowed.
For the 1st-8th Defendants/Respondents, Mr. F.T. Okorotie of counsel submits that fair hearing under section 36 (1) of the 1999 Constitution includes the right to be given an opportunity to be heard in the case affecting the interest of a party before the court or tribunal (EVANGELIST EFFANGA v. M. ROGERS (2003) FWLR [pt.153] 1058 at 1077), and that it is a principle based on facts (T.M. ORUGBO V. BALARA UNA & ORS (2002) 9 – 10 SC 61). And that the breach of fair hearing canvassed by the Appellants does not flow from the facts of the case and the proceedings at the lower court. Our attention was drawn to the facts that the Notice of Impeachment presented by 17 members of Bayelsa House of Assembly was served on the 1st Appellant and that there is proof of service done by Aaron Timiye at pages 432 – 433 of the Record. That the Appellants filed counter affidavits in reply to the affidavit in support of the preliminary objection, where compliance or non-compliance with section 188 of the Constitution was raised. And further that the Appellants counsel appeared before the seven man panel investigating the allegations of gross misconduct against the 1st Appellant. Counsel says that these facts form the basis of the ruling of the trial court in suit no YHC/206/2010. The law, according to counsel, is settled that when an objection is raised at the trial court challenging its jurisdiction, the court could rely on the writ of summons, the statement of claim and the affidavit in support of the application. Counsel refers to NIKA FASHING CO. LTD. v. LAVINA CORP. (2008) 16 NWLR [pt.114] 509 at 531 G – H. The trial court, counsel submits, was right to have relied on the affidavit in support of the Notice of preliminary objection in holding that there was no evidence of non-compliance with the provisions of section 188 of the Constitution. He refers to ADEYEMI v. OPEYORI (1976) 9 10 S.C. 31; ARJAY LTD v. AIRLINE MANAGEMENT SUPPORT LTD. (2003) 7 NWLR [pt.820] 577 at 601. Counsel concedes that the jurisdiction of the court is activated in respect of the removal of the Governor or Deputy Governor of a state under section 188 of the Constitution only where there is evidence of non-compliance with section 188 (1) – (9) of the Constitution. And that the burden of proving non-compliance lies on the Appellants who allege non-compliance under section 136 Evidence Act.
Let me take a pause here. The Appellants are complaining that the trial court did not give them the opportunity to prove the merits of their allegations, which the defence disputed, that the Chief Judge (8th Defendant/Respondent), in appointing the 1st Defendant/Respondent as the Chairman/member of the panel of seven persons to investigate the allegations of gross misconduct against the 1st Claimant/appellant, did not take into consideration that 1st Defendant/Respondent had been a counsel to his adversary and that as such the 1st Defendant/Respondent is not a person of “unquestionable integrity” that section 188 (5) of the Constitution requires him to be. And that they question his integrity in this matter.
I do not think it is correct, as submitted by the 1st-8th Defendants/Respondents, that “the Appellants are not challenging the steps taken by the 10th Respondent in compliance with sub-sections (1) – (9) of section 188 of the 1999 Constitution except that of the service of the Notice of Impeachment.” They have completely misconceived the Appellants’ claims, particularly relief no 2 in the suit no YHC/206/2010 earlier reproduced. By this, they say that by appointing the 1st Defendant/Respondent there has been an infraction of the clear provisions of section 188 (5) of the Constitution. Therefore, for the 1st – 8th Defendants/Respondents to submit, as they do, that the Appellants are not complaining in suit no YHC/206/2010 that the 1st Defendant/Respondent is not a person of unquestionable integrity, is erroneous and misleading.
The 1st-8th Respondents further submit that the pronouncement of the learned trial Judge does not touch on the substantive issue in the suit. They submit at the same time that “suit no YHC/206/2010 was commenced by writ of summons with a statement of claim and therefore facts are regarded as holding a pride of place and the facts must be proved to sustain the action.”
They refer to INAKOJU v. ADELEKE (2007) 4 NWLR [pt.1925] 423 at 571 – 572 per Tobi JSC referred to here supports the case of 1st – 8th Respondents. What the learned Jurist has stated in the quoted passage is clearly that –
In originating summons, facts do not have a pride of place in the proceedings. The cynosure is the applicable law and its construction by the court. The situation is different in a trial commenced by writ of summons where the facts are regarded as holding a pride of place and the fountain head of the law, in the sense that the facts lead to a legal decision of the matter.
This is what the Appellants are saying. They say that since their suit no YHC/206/2010 was commenced by a writ of summons the facts, which they have to prove, are the fountain head of the law applied by the learned trial Judge, and that the trial Judge took a legal decision on the matter without the facts leading thereto. They aver that the 1st Defendant/Respondent’s integrity is questionable.
Therefore, as rightly submitted by the 1st-8th Respondents the burden lies on them to prove those material facts in their statement of claim by virtue of section 136 of the Evidence Act. The law expounded in SOKWO v. KPONGHO (2008) 7 NWLR (pt. 1086) 342 at 367 D-E, to wit-
It behoves the appellant to give testimony in support of the pleading of law is that a plaintiff who asserts must prove his case with credible and unchallenged evidence. In civil cases, a party who wishes to succeed in obtaining judgment in his favour must adduce such credible evidence, for such cases are decided on preponderance of evidence and on balance of probability.
Cited by 1st – 8th Respondents explains how this burden of proof is discharged.
The 1st – 8th Respondents seem not to understand that the suit no YHC/206/2010 was not commenced by originating summons, but by writ of summons. In the case, ALAMIEYESEIGHA v. IGONIWARI (No.2) (2007) 7 NWLR [pt.1034] 524, cited by them Rhodes-Vivour JCA (as he then was) at pages 589-590 made the point that in very weighty allegations on denial of fair hearing, breach of impeachment procedure or objection to membership of panel, it would be impossible to make pronouncements without hearing evidence in proof of the truth of these allegations, thus –
Depositions in affidavits in support of originating summons are evidence. On the other hand, averments in the pleadings are not evidence. They are mere allegations. They only become evidence after the court hears witnesses in proof of the allegations. Can this Court convert a statement of claim to an originating summons and proceed to hear the matter under the powers vested in this court by the provision of section 16 of the Court of Appeal Act, 1976? (now section 15 of the 2004 Act).
Apart from the fact that the option would entail taking over the plaintiff’s case, it would be impossible to make pronouncement on the very weight allegations to wit: denial of fair hearing, breach of impeachment procedure, objection to membership of the panel: without hearing evidence in proof of the truth of these allegations.
My Lords, the case of ADELEKE v. OYO STATE HOUSE OF ASSEMBLY (supra) (the LADOJA case), and HON. MIKE BALONWU & 5 ORS V. MR. PETER OBI & ANOR (supra) are similar with this case in that they are all on the issue of removal of a Governor of a state, but that is where the similarity ends. In both cases, the originating process was originating Summons supported by affidavit. There is no need to call evidence. In this case, the originating process is a writ of summons supported by statement of claim. Evidence must be led in support of the statement of claim.
Also citing ARASE v. ARASE (1981) 5 SC 33 1st – 8th Respondents submit, as if on the side of the Appellants, that until those facts in the Appellants’ statement of claim are proved their complaints of non-compliance with section 188 of the Constitution stand out as mere allegations without foundation.” The question then is: How did the trial Judge find them not proved at the hearing of the preliminary objection of 1st – 8th Respondents?
I held earlier that the preliminary objection of the 1st-8th Respondents founded on section 6 of the Impeachment (procedure) Rules, 2005 of Bayelsa state was dismissed by the trial court. The suit was struck out under section 188 (10) of the constitution. Appellants complain that the trial court raised the issue suo motu and did not cal on them to reply on it. S.T. Hon (SAN) for 9th-11th Respondents says that the issue was not raised suo motu by the court; that he raised the issue at page 454 of the Record when he applied that in view of the fact that the anticipated bias of the 1st Defendant/Respondent is a fact that does not fall within the restrictions in section 188 of the Constitution, the court should strike out suit no YHC/206/2010; and that the Appellants’ counsel replied on it. It is therefore not true that the trial court raised the matter suo motu.
I notice from the Record that the 9th-11th Respondents did not, at the trial court, file statement of defence and therefore, this oral application made by S.T. Hon. SAN, and on which the trial court acted to decline jurisdiction may have run foul of Order 22 of High Court (Civil Procedure) Rules, 2010 of Bayelsa State that has abolished demurrer. Mr. Hon. SAN, submitted that the objection of 1st-8th Defendants was properly brought under order 22 since they filed statement of defence. He could not justify his oral application or objection made without filing statement of defence.
The question remains on what fact, since 9th-11th Respondents brought the application orally, did the court rely to hold that the Defendants in suit no YHC/206/2010 have complied with section 188 of the constitution? Apart from 1st – 8th Defendants who joined issues on the issue whether 1st Defendant’s integrity is questionable or not, the other defendants did not. None of the defendants, apart from 1st-8th Defendants, filed statement of defence. It is not stating the law correctly to submit, as S.T. Hon, SAN, did, that bias is not one of the restrictions of section 188 (5) of the Constitution.
That takes me to the contention of the senior counsel for 9th – 11th Respondents that he orally raised the objection on which the trial court declined jurisdiction under section 188 of the constitution. He submits further that since the ruling was final, and not interlocutory the trial court had power to make findings that amounted to deciding the substantive matter. The authority for this, he says, is NIGERIAN UNION OF TEACHERS v. C.O.S.S.T. (2006) ALL FWLR [pt.295] 656 at 678 Ngwuta, JCA states that where the defendant raises the issue of jurisdiction on a ground intricately tied to the main issue, to the extent that one can not be determined without the other, the court can resolve the issue as long as the parties were given opportunity to present affidavit evidence that are credible to resolve the issue.
Assuming this authority can stand its ground, in the face of other overwhelming authorities from the Supreme Court that make it undesirable for courts to pre-judge the real matter in controversy, did the trial court give such opportunity to the parties to present credible affidavit evidence on the issue whether the 8th Defendant by appointing the 1st Defendant as Chairman/member of the panel of seven persons, whose integrity had been questioned, the provisions of section 188 (5) of the Constitution had been flouted. Where there are serious disputes over a fundamental fact on which the jurisdiction of the court can be determined, as a question of fact, the trial court is duty bound to defer the determination of that fundamental question of fact until evidence on the issue is called. See KASANDUBU v. ULTIMATE PETROLEUM LTD (2008) 7 NWLR [pt.1086] 274 at 298 B. I agree with the Appellants, upon perusing the Record, that the 1st – 8th Respondents who filed formal Notice of Preliminary objection raising the issue under section 6 of the Impeachment (Procedure) Rules, 2005 did not file any affidavit in support. Mr. Hon. SAN, for 9th – 11th Respondents, who orally raised issue of jurisdiction under section 188 of the Constitution, did not also file any affidavit. Section 135 of Evidence Act is clear. The duty is on he who asserts to prove the existence of the facts which he asserts in order to be entitled to judgment. The existence of these material facts are not before the court. These are not facts the trial court can take judicial notice of. To hold that a non-existent fact exists is indeed not deciding judicially and judiciously, but perversely.
The 12th-13th Respondents are of the view, through their counsel, Chief Wole Olanipekun, SAN, that there is nothing in the Ruling appealed that suggests that the learned trial Judge therein had touched on the substantive suit, and that the determination by the court of the preliminary objection based on section 6 of the Impeachment (Procedure) Rules, 2005 can not be regarded as amounting to prejudging the substantive matter at an interlocutory stage. The case of the Appellants, as 12th – 13th Respondents point out’ is based on section 188 (5) of the constitution, particularly the second declaration sought. They seem to guardedly concede that the law frowns at trial courts deciding substantive matters, while considering interlocutory applications. However, the second portion of their brief on issue No.1 seems to be an extensive incursion into the prohibited ground. For instance, they argue that the fact that the 1st Defendant/Respondent once acted as counsel to chief Timipre Sylva, Governor of Bayelsa state, in an election petition does not perpetually make him an agent of the Governor; and that even at that he was also a lawyer to the 1st Claimant/Appellant. That, if I may add, is the matter for trial in suit no YHC/206/2010. They further submit that a party alleging bias against the panel or member of the panel “has a very hard nut to crack.” That is the cross he has to bear, and he has to bear his own cross. He has to be given the opportunity to bear it. The error of the trial court here, as the Appellants do insist, is that it did not give the Appellants an opportunity to crack “the very hard nut”.
The 12th-13th Respondents further argue that the 13th Respondent had no role to play in the setting up of the panel of seven persons to investigate the allegations against the 1st Claimant/Appellant, and therefore can not influence the panel, notwithstanding the adverse remarks about the 1st Appellant he allegedly made. That also is a triable issue in the substantive suit no YHC/206/2010.
Having considered all the briefs seriously the core question under this issue 1 is whether at the stage of considering the preliminary objection the trial court determined the merits of the substantive suit? And if it did, does that amount to pre-judging the real matter in controversy?
The suit of the Claimants/Appellants, particularly relief no. 2 in the suit no YHC/206/2010, seeks a declaration that by appointing 1st Defendant/Respondent as Chairman/member of the panel of seven persons the 8th Respondent, the appointor, had violated section 188 (5) of the Constitution, that enjoins the Chief Judge to appoint only persons of “unquestionable integrity” to the panel. The statement of claim has pleaded facts on which the claimants rely to question the integrity of the 1st Defendant/Respondent. The facts pleaded in the statement of claim are seriously disputed in the statement of Defence of 1st – 8th Defendants.
At the hearing of the preliminary objection of 1st-8th Defendants, founded on section 6 of the Impeachment (Procedure) Rules, 2005 of Bayelsa state House of Assembly, S.T. Hon. SAN, of counsel to 9th – 11th Respondents, interposed an oral objection to the suit and applied that suit no YHC/206/2010 be struck out in view of the fact that “the anticipated bias of the 1st Defendant/Respondent is a fact that does not fall within the restrictions of section 188 of the constitution.” The bias or the likelihood of bias of the 1st Defendant/Respondent against the 1st claimant/Appellant in favour of his traducers is the central or core issue in the substantive suit. The trial court dismissed the main preliminary objection founded on section 6 of the Impeachment (Procedure) Rules, 2005. It however upheld the oral objection of S.T. Hon. SAN, of counsel to 9th-11th Defendants/Respondents, which was no more than a mere appendage to the formal Notice of preliminary objection of 1st – 8th Defendants. It held in effect that “there is no (evidence) of non-compliance with section 188 of the Constitution.” The suit of the Claimants was designed to prove non-compliance with section 188 (5) of the Constitution. The endorsement on the writ and the statement of claim are unambiguous as to the complaints of claimants/Appellants in their suit no YHC/206/2010.
We have just held, recently in the sister appeal to the instant on a line of authorities from the Supreme Court that the practice is that because of the paramountcy of the issue of jurisdiction it is sometimes necessary that the court hears evidence for correct determination of it; and that where the issue is disposed of in limine it is determined only on the Plaintiff’s pleadings. The fundamental principle is that it is the claim of the plaintiff that determines the jurisdiction of a court entertaining the same: see RT. HON. PEREMOBOWEI EBEBI v. SPEAKER, BAYELSA STATE HOUSE ASSEMBLY & ORS (unreported) no CA/PH/297/2010 of 16th February, 2010) AG, KWARA STATE v. OLAWALE (1993) 1 NWLR [pt.272] 645 at 633 644; IZENIKWE v. NNADOZIE (1952) 14 WACA 361 at 363; ADEYEMI v. OPEYORI (1976) 6 – 10 SC 31
Also in the sister case R. HON. PEREMOBOWEI v. SPEAKER & BAYELSA STATE HOUSE OF ASSEMBLY & ORS (supra) this Court (per M.D. Muhammad (OFR), JCA) held –
That court must not determine at interlocutory stage the substantive issue in a case. The failure of the lower court to defer till after full trial the determination of the Respondents’ objections is indeed perverse. See WOHEREM v. EMEREUWA (supra) and PRESS LTD v. I.K. MARTINS (supra) (sic UNIVERSITY PRESS LTD v. I.K. MARTINS (NIG) LTD (2000) 4 NWLR [pt.654] 584). This appeal is from the same Ruling as the ruling in RT. HON. PEREMOBOWEI V. THE SPEAKER, BAYELSA STATE HOUSE OF ASSEMBLY & ORS (supra).
The effect of this unacceptable practice of the court making positive pronouncements touching on the substantive issue in the suit while deciding or determining interlocutory matters is that it prejudges the real matter even before evidence and arguments of counsel are marshaled on the substantive issue. See UNIVERSITY PRESS LTD v. LK. MARTINS (NIG) LTD (supra) at page 595. It has the effect of pre-judging or pre-empting the issues for adjudication in the substantive suit before trying; see UNIVERSITY PRESS LTD v. I.K. MARTINS (NIG) LTD (supra) at 595; GROUP DANOMI v. VOLTIC (NIG) LTD (supra) at 675; MORTUNE v. ALHAJI GAMBO (1979 3 – 4 SC 54 at 57 etc.
I agree, as submitted by Dr. Izinyon SAN for the Appellant, that this unacceptable practice breaches the right to fair hearing of the party adversely affected, as the Appellants in the instant case. See MOKWE v. EZEUKO (supra), particularly at 149 where it is stated – it is the duty of the trial court, when dealing with interlocutory matters, to avoid making statements giving the impression that it has made up its mind on the substantive issue on trial before it. Justice must not only be done but it must be seen to have been done.
Issue 1 is hereby resolved in favour of the Claimants/Appellants.
The second issue in the appeal is whether the lower court was right in declining jurisdiction to entertain suit no YHC/206/2010. It is pertinent, at this juncture, to note that the lower court was invited, by the Notice of Preliminary objection filed and argued by counsel to 1st-8th Respondents, to strike out or dismiss the Claimants/Appellants’ suit no YHC/206/2010 on the ground that section 6 of the Impeachment (Procedure) Rules, 2005 of Bayelsa State House of Assembly has ousted its jurisdiction. The said Impeachment (Procedure) Rules has provided in section 6 as follows-
No member of the panel shall be liable to any civil or criminal proceeding or suit that may be brought against him for any act done or omitted to be one or said by him in the performance of his duties under these Rules.
At best these provisions are immunity provisions designed to prevent the members of the panel of seven persons from being inhibited in the performance of their lawful functions by fear of civil or criminal litigation arising out of such performance during the tenure of their office. See OBIH v. MBAKWE (1984) 1 SCNLR 192 AT 211; ONITIRI v. OJO (1954) 21 NLR 19 at 23. A member of the panel of seven persons or the panel itself, not appointed in accordance with the due process of law can not plead the protection of this immunity clause. I will not be labour this point here, as the lower court at page 486 of the Record had dismissed the preliminary objection founded on arguments under the provisions of section 6 of the Impeachment (Procedure) Rules, 2005. The 1st-8th Respondents, against whom the dismissal order enures, have not appealed it. The lower court declined jurisdiction purportedly under section 188 (10) of the 1999 Constitution.
The Appellants seem to have misconceived the Ruling of the lower court as it concerns the provisions of section 6 of the Impeachment (Procedure) Rules, 2005. They have devoted substantial portion of the brief, under issue 2, on this non issue. Accordingly, I shall discountenance such wasteful exercise in all the briefs.
I have painstakingly, read the various briefs under this issue. The Appellants are on firm ground when they submit, relying on AMAECHI v. INEC (No.1) (2007) 18 NWLR [pt.1065] 42 at 48; AMAECHI v. INEC (No.2) 2007) 18 NWLR [pt.1065] 98 at 103; AKINFOLARIN v. AKINNOLA (1994) 3 NWLR [pt.335] 659 at 674, that it is settled law that it is the Plaintiff’s claim in the matter that determines the jurisdiction of the court. I have held under issue 1 that the lower court was in error to have declined jurisdiction; holding, as it did, that there had been compliance with the provisions of section 188 of the constitution even when the Claimants are contesting the propriety of the 8th Defendant/Respondent as chairman/member of seven man panel to investigate the allegations of gross misconduct against the 1st Claimant/Appellant in suit no YHC/206/2010. The position I had taken under issue 1 is also sufficient to dispose of issue no 2.
The purport of the suit no YHC/206/2010 (the subject of this appeal), is that a fundamental step in the process of removing the 1st Appellant from office is very defective. That is that the panel of seven persons to investigate allegations of serious misconduct against him has not been constituted in accordance with section 188 (5) of the constitution. That is a serious allegation. The effect of the due proof of it is as in DAPIANLONG v. DARIYE (2007) 8 NWLR [pt.1036] 239 at 308 B-C.
Having found that the entire pre-impeachment process was illegal being of constitutional provisions, it also goes without saying that the seven (7) man panel of investigation was also incompetent as it lacks the legs to stand on. Its proceedings are a nullity and of no effect.
The situation in the suit no YHC/206/2010 the subject of this appeal, is no less serious. Relief No.2 and the injunctive reliefs in the suit contest the propriety of 1st Defendant being the Chairman/member of the seven (7) man panel constituted by the 8th Defendant to investigate the allegations of gross misconduct against the 1st Claimant/Appellant in this appeal.
The suit of the Appellants (YHC/206/2010) having disclosed serious triable issues; my answer to the question whether the lower court was right in declining jurisdiction to entertain the suit is that the lower court was not right, in law, to have declined jurisdiction to entertain the said suit no YHC/206/2010 I therefore resolve this issue also in favour of the Appellants.
There is a cross appeal by the 9th – 11th Defendants in the suit no YHC/206/2010 against the Ruling of the lower court delivered on 29th June, 2010; which Ruling the cross-appellants described at paragraph 2.14, page 4 of their brief as “a well-considered ruling”. The singular issue distilled for determination in the cross-appeal is-
Had the court below invited counsel on both sides to address it, would it not have found, in addition to its reasons declining jurisdiction, that all the claims of the 1st – 3rd Respondents (i.e. Claimants/Appellants/Cross-Respondents) before it were incompetent, thereby robbing it of jurisdiction to entertain the suit?
The Cross-Appellants, through S.T. Hon. SAN of counsel approached the issue under two broad heads, namely –
i. failure of the lower court to raise and decide on the alleged incompetence of issue no 1 in the suit no YHC/206/2010 in its ruling; and
ii. failure of the lower court to decide that the pleaded likely bias of the 1st Defendant (in suit no YHC/206/2010 was not enough to remove the suit from the exclusionary provisions of section 188 (10) of the Constitution.
It appears the grouse of the Cross-Appellants is that the Ruling of the lower court was not decided in a particular way. And if I am right that that be their grouse, then the dictum of Brett, F.J., in OLAWOYIN v. C.O.P. (1961) 1 ALL NLR 203 at 214 becomes handy. That is –
As regards submission (ii), I do not consider that the right to have an appeal determined by a court composed in a particular way is a right of the kind which is preserved by section 38 of the Interpretation Act, 1889. It seems to me to be a procedural matter, and it had been held that no one has a vested right in any particular form of procedure: WRIGHT v. HALE (1860) 30 L.J. EX 40.42
It has to be borne in mind that from the Record of appeal that the Cross-Appellants did not file statement of Defence. This, notwithstanding, the lower court gratuitously allowed them to raise their preliminary objection to the suit of the Claimants/Cross-Respondents and urging that the suit “be struck out for want of jurisdiction in view of the fact that it does not fall within the restrictions in section 188” of the Constitution. Order 22 of Bayelsa State High Court (Civil Procedure) Rules, 2010 in abolishing demurrer also adds that
Any party may by his pleading raise any point of law and the Judge may dispose of the points raised before or at the trial.
A party who abdicates his responsibility before a trial court can not be heard complaining that the said court did not over indulge him by raising for him points of law he would have, under the Rules, raised in his pleadings.
The decision of the Supreme Court in MOBIL OIL PRODUCING NIGERIA LTD. v. LASEPA (2003) FWLR [pt. 137] 1029 at 1052 to the effect that where on the face of the proceedings, the court is incompetent, the court itself should take notice of its incompetence and decline jurisdiction, even if none of the parties raises it; and further that when the court fails in its primary duty, any party to the proceedings can raise the issue at any stage of the proceedings, because the fact of its incompetence will always remain on the face of the proceedings; should not be over stretched to permitting the court to at all times enter into the arena or theatre of the dispute and do for a party or parties what he or they should have ordinarily done for themselves to defeat the suit of their opponent.
The Cross-Respondents have preliminary objection to this appeal. One of the grounds of the objection is that the Cross-Appellants are not parties “aggrieved” by the ruling appealed, and therefore have no right of appeal. The ground for this objection is that the lower court had ruled in favour of their own preliminary objection at pages 454 of the Record. A party in whose favour an order has been made, they say is not an aggrieved party. They cited EKUNOLA v. CBN (2006) 14 NWLR [pt.1000] 292 at 316; OSOLU OSOLU (1998) 1 NWLR [pt.535] 532 at 553 B; ANATOGU v. ANATOGU (1998) 6 NWLR (pt.552) 42; INEC V. ACTION CONGRESS (2009) 2 NWLR (pt.1126) 524 at 610.
I agree that an aggrieved party does not include a party in whose favour an order has been made: EKUNOLA V. CBN (supra). Thus, as it was held in OSOLU V. OSOLU (supra) at 553 B, if an order or orders made by the court do not offend the purported appellant, he can not be said to be an aggrieved party. He therefore can not appeal either as of right or with leave of court. The dictum of Foster-Sutton, FCJ in AFINBIYI V. ADELABU (1956) 1 FSC 45 at 47 sums it up thus-
The only person entitled to appeal is a person aggrieved. In Ex parte side botham, (14 Ch.D. 465). James, L.J., said a ‘person aggrieved must be a man who has suffered a legal grievance.’ As Lord Esher in his judgment in Ex parte Official Receiver in re Reed, Bowen and Co. (19QBD. 174) observed, referring to the passage cited in the judgment of James, L.J., “he does not say pecuniary grievance, a grievance to his property or to his person”, he says “a legal grievance”. It means a person against whom a decision has been pronounced which has wrongfully deprived him of something, or wrongfully refused him something which he has a right to demand. Lord Bramwell, L.J., in his judgment in Ex parte sidebotham said “but certainly the general rule is that is that an appeal must be brought by a party” (meaning one of the parties to the dispute) “who has endeavored to maintain the contrary of what has taken place.
Sure, the Cross-Appellants, by this cross-appeal, have not “endeavoured to maintain the contrary of what has taken place” at the lower court in its ruling of 29th June, 2010 which in fact did their bidding, albeit wrongly. They have not been aggrieved in any way by the decision in their favour which they have before us here described as “a well-considered ruling.”
I agree with Dr. Izinyon, SAN of counsel to the Claimants/Appellants/Cross-Respondents that the cross-appeal is incompetent. Accordingly, the Notice of cross appeal filed upon leave is incompetent. Accordingly, the Notice of cross appeal filed upon leave granted on 7th December, 2010 is hereby struck out. It is an unnecessary frivolity or distraction.
The sum total of all I have been saying, that is resolving all the issues formulated by the Claimants/Appellants in the substantive appeal in their favour, is that the appeal of the Claimants/Appellants has substance. It, being quite meritorious, is hereby allowed. The ruling of the lower court (Coram: D.E. Adokeme, J) declining jurisdiction in the suit no YHC/206/2010, being quite erroneous, is hereby set aside. The suit is hereby remitted to the High Court of Bayelsa State for the same to be heard and determined expeditiously by a Judge, other than D.E. Adokeme, J.
The Appellants have asked that consequential mandatory injunctive reliefs or remedies be made in event of their success in this appeal. Their appeal, having succeeded, I shall now consider their request or prayers. In this suit no YHC/206/2010, the subject of this appeal, like in the earlier appeal no CA/PH/297/2010: RT. HON. PEREMOBOWEI V. THE SPEAKER, BAYELSA STATE HOUSE OF ASSEMBLY & ORS decided on 16th February, 2011, the core issue is the challenge to the legality of the procedure adopted in the process of removing the 1st Claimant/Appellant from office as the Deputy Governor of Bayelsa State. While this suit was pending at the court below, the 1st-7th Defendants/Respondent, undeterred by the pending motions for interim and interlocutory injunctions against them, commenced their proceedings (on 22nd June, 2010), continued with the same and submitted their report on 23rd June, 2010 to the Bayelsa State House of Assembly (the 10th Defendant/Respondent), presided by the 9th Defendant/Respondent as the Speaker of the House of Assembly. Both the 9th and 10th Defendant/Respondents were respondents in the two motion for interim and interlocutory injunctions in the suit no YHC/206/2010. The Bayelsa House of Assembly (10th Defendant/Respondent), presided by the 9th Defendant/Respondent, on 24th June, 2010 sat, adopted the report of the 1st – 7th Defendants/Respondents and resolved that the 1st Claimant/Appellant, as the incumbent Deputy Governor of Bayelsa State, had been removed from office. The suit no YHC/206/2010 and all the motions for interim and interlocutory injunctions were still pending at the lower court and infact until 29th June, 2010 when the suit no YHC/206/2010 was stuck out, as the presiding Judge declined jurisdiction under section 188 of the Constitution. Thus, it would appear, as primary school pupils were wont to doing, under the practice called LACOMBE when pressed for time in submitting arithmetic home work, by first looking up the answer to the question at the back of the book, before finding the solution to the question.
In ISIYAKU MOHAMMED v. KANO N.A. (1968) 1 ALL NLR 424 at 426 the Supreme Court stated that fair hearing involves fair trial, and that fair trial of a case consists of the whole hearing or trial. And further that there is no difference between the two. The apex court further added that the true test of a fair hearing is the impression of a reasonable person who was present at the trial, whether from his observation; justice had been done in the case. See also HOBBs v. TINLING: HOBBS v. NOTTINGHAM (1929) 2 KB at 19; OBIH v. MBAKWE & ORS (1985) 6 NCCLR 783 at 791. Let me also add that before this court the motion, filed on 2nd July, 2010, was pending when some other steps or actions prejudicial to this appeal and the rights of the Claimants/Appellants were taken.
The motion prayed inter alia for an order restraining the Governor of Bayelsa State, the 13th Defendant/Respondent, from appointing, nominating and/or presenting to the 9th-11th Defendants/Respondents, as his nominee for the office of Deputy Governor, pending the determination of this appeal. It further prayed inter alia for an order of injunction restraining the 9th-11th Defendants/Respondents from approving or confirming the nomination of any person by the Governor (13th Respondent) to the office of the Deputy-Governor of Bayelsa pending the hearing and determination of this appeal. The motion, though filed, was not heard as we thought then that the urgency of the matter demanded that the substantive appeal should be expeditiously heard instead.
It is not in dispute, and we take judicial notice of the fact, that notwithstanding the pendency of this appeal and the said motion filed on 2nd July, 2010 Hon Seibarugu Werinipre, who, at all the times material, was the Speaker, Bayelsa State House of Assembly (9th Respondent) and the presiding officer of the 10th Respondent, Bayelsa State House of Assembly, was nominated and presented by the Governor of Bayelsa State (13th Respondent) for approval as Deputy Governor. The said Bayelsa State House of Assembly, by resolution, approved his nomination. The said Hon. Seibarugu Werinipre was duly sworn in, on 8th July, 2010, as the Deputy Governor of Bayelsa State by the 8th Respondent, the Chief Judge of Bayelsa State.
These facts informed the submission of Dr. Izinyon, SAN, of counsel to the Appellants, that an appeal is a continuation of the proceedings of the lower court that led to the appeal. That is the law. The Supreme Court has so stated in OREDOYIN v. AROWOLO (1989) 4 NWLR [pt. 114] 172 at 211 D.
On the position of the law, that where proceedings are pending before a court wherein injunctive reliefs are sought, the party against whom the injunctive reliefs are sought, is under obligation to refrain from doing that which is sought to be restrained, even when no temporary order of injunction may have been granted; Senior counsel cites a number of cases including EZEGBU v. F.A.T.B. (1991) 1 NWLR (pt.220) 669 at 725 C; ABIODUN V. CHIEF JUDGE KWARA STATE (2008) ALL FWLR [Pt. 448] 340 at 385; ADEFARATI V. GOVERNOR ONDO STATE (2006) 1 NWLR (pt.960) 145 at 157; F.A.T.B. v. EZEGBU (1992) 9 NWLR [pt. 264] 132 at 147 B-C (SC) and the English case: DANIEL v. FERGUSON (1891) 2 Ch. 27. I agree entirely that this is the position of the law. Only recently, and in the sister case: RT. HON. PEREMOBOWEI V. THE SPEAKER, BAYELSA STATE HOUSE OF ASSEMBLY & ORS (CA/PH/297/2010) we adopted and applied this principle of the law. Muhammad (OFR), JCA, who prepared the lead judgment in the said case, cited with approval the opinion of this Court in EZEGBU v. F.A.T.B. (supra) at 725, to wit:
When then is the remedy of the court where it finds itself in this situation? I have earlier said that any court found in the same situation would frown at it. I also add that the court must, in addition, take a positive and mandatory act in order to instill judicial discipline on the erring party and in order to maintain, restore and preserve the dignity and respect of the court. This includes the undoing of what has been done by the erring party irrespective of what the court will decide on the merits, when the matter is properly heard.
Let me restate the opinion of Kay, L.J., of the court of Appeal of England, on this same principle, as expressed in the FERGUSON case (supra) wherein he stated at page 30 thus-
After the defendant had received Notice on Saturday that an injunction was going to be applied for, he set a large number of men to work all night and through nearly the whole of Sunday, and by Monday evening, at which time he received notice of an interim injunction, he had received notice of an interim injunction, he had run up his wall to a height of thirty-nine feet. Whether he turns out at the trial to be right or wrong, a building which he erected under such circumstances ought to be at once pulled down, on the ground that erection of it was an attempt to anticipate the order of the court. To vary the order under appeal would be an encouragement to other people to hurry on their building in the hope that when they were once up the court might decline to order them to be pulled down. I think that this wall ought to be pulled down. I think that this wall ought to be pulled down now without regard to what the result of the trial would be.
At home here in Nigeria the justification for this principle lies in the Rule in law, the need to prevent show of contempt for judicial process or impunity and that the rule of law may be followed though the heavens may fall. Thus in ABIODUN v. CHIEF JUDGE, KWARA STATE (supra), where the facts are almost on all fours with our present situation it is stated at page 385 as follows –
The 3rd facet of this issue is whether or not the Hon. Chief Judge of Kwara State was right to set up and inaugurate a panel to investigate the Appellant while a suit challenging the legality and validity of his suspension and the constitution of a panel of inquiry was pending.
The Rule of law may be followed though heavens may fall. The rule of law in this instance is that immediately the Hon. Chief Judge was properly served with the process preventing him from taking further steps in the matter in controversy, he ought to have abstained from doing so no matter whose ox is gored. The Hon. Chief Judge is the custodian of the Rule of law in Kwara State. The Hon. Chief Judge’s show of contempt for the judicial process inspite of being served as a party when a notice of motion for injunction and substantive matter (were) pending is not good enough.
See also ADEFARATI v. GOVERNOR, ONDO STATE (supra) at page 157.
It is clearly indubitable that the 1999 Constitution, which the Defendants/Respondents are taking cover under its section 188, has directed in section 17 (2) (e) thereof that in furtherance of the social order the independence, impartiality and integrity of courts of law shall be secured and maintained. The power to issue these consequential mandatory injunctive orders inheres or vests in the court by dint of section 6(6) (a) of the 1999 constitution. It is part of the inherent powers and sanctions of a court of law, designed for the court to protect its authority. This much is so stated in OKOYA v. SANTILI (1991) 7 NWLR [pt. 206] 753 at 766, to wit:
The jurisdiction inheres in the court as adjudicator qua judex. The power is designed for the maintenance of the dignity of and integrity of the court. Unless the court exercises disciplinary jurisdiction in appropriate circumstances, it will lose its dignity and integrity in the judicial process. The institution of the court which the law has a placed in an exalted and sacred position, surrounded by all aura of legalism and sanctity, will be reduced to a toothless dog which can bark but can not bite.
Clearly, all the actions and the activities of the Defendants/Respondents, during the pendency of this matter at the court below and here, are deliberate and calculated acts and activities to disrespect and undermine the processes and authority of the lower court and this court. The aim is obvious – to render any judicial decision in the matter nugatory. Sadly, in this case we have several lawyers and other persons on whom is, by law and tradition placed, the duty of maintaining the dignity and integrity of courts of law who are parties, as defendants/respondents, well represented by senior lawyers too. The 1st defendant is, himself, a senior advocate of Nigeria. The 8th defendant is no less a person than the Chief Judge of Bayelsa State. The Attorney-General, the Chief law officer, of Bayelsa State is the 12th Respondent. What then can one say? Even you, or and you too? (et tu, Brute) as Julius Ceasar asked Brutus? Or, is it simply: if gold doth rot what would iron do, as Chaucer would put it in Canterbury Tales? I say no more.
I agree that the consequential mandatory injunctive orders sought be, and are hereby, issued as prayed. All acts done by the Respondents subsequent to 21st June, 2010 are hereby set aside. The parties shall maintain the status quo pending the determination of this matter, as ordered. The 1st-8th Defendants/Respondents, it should be noted, entered their appearance in the suit and filed statement of defence in the suit on 21st June, 2010.
Appellants are entitled to costs in this appeal. Accordingly, costs assessed at N60,000.00 are hereby awarded in favour of the Appellants jointly and/or severally and against the Respondents jointly and/or severally.
HON. JUSTICE M. DATTIJO MUHAMMAD, J.C.A.: I had a preview of the lead judgment of my learned brother Eko JCA and agree absolutely with him that this appeal has merit. I adopt his lordships reasonings and conclusion to allow the appeal. I wish however to dwell on a few facts by way of emphasis.
The reliefs sought by the Appellant in the suit that brought about this appeal are as reproduced in the lead judgment. Reproduced hereunder for ease of reference is the first of the reliefs:-
“. A declaration that in view of the pendency of suit No. YHC/201/2010, RT Honourable Peremobowei Ebebi v. Speaker Bayelsa State House of Assembly and others, the 1st – 7th Defendants do not have the competence and or jurisdiction to commence or continue with the investigation of the purported allegations of gross misconduct against the 1st claimant as contained in the purported Notice of Impeachment dated the 1st day of June, 2010 and/or as may be contained in the purported Notice of Impeachment dated the 1st day of June, 2010 and/or as may be contained in any other documents.”
I take judicial notice of the fact that Appeal No. CA/PH/297/2010 that had arisen from the lower court’s decision in respect of suit No. YHC/201/2010 had been determined by this court on the 16th day of February, 2011.
The instant appeal had also arisen from the lower court’s composite ruling in respect of the objection raised by the defendants/Respondents herein and in suit No. YHC/201/2010 as to the competence of the two suits. In the instant suit, YHC/205/2010 it was specifically averred that the lower court lacked jurisdiction to entertain the action by virtue of section 6 of the impeachment (procedure) rules of Bayelsa State House of Assembly 2005. It is significant to note that further to the statement of claim, list of witnesses and their depositions on oath the Appellant front loaded, he applied to restrain the defendants/Respondents and/or their agents, servants from investigating the Respondent allegations of gross misconduct levied against him.
Respondents’ application challenging the lower court’s jurisdiction was supported by affidavits to which Appellant countered. In determining the objection, the lower court relied on the affidavits in support of Respondents’ motion which it found unchallenged since Appellant’s defective counter-affidavit had ceased to exist.
I must reiterate our earlier decision in allowing appeal No. CA/PH/297/2010 at this point as that ratio remains relevant to the case at hand. It is beyond any argument that a challenge to a trial courts’ jurisdiction over a suit commenced by a writ and where pleadings reign, the writ and plaintiffs statement of claim provide the sole basis for the resolution of the objection before the court. In the instant matter the lower court has fallen into the same error it did in suit No. YHC/201/2010 by resorting to the affidavit in support of Respondents’ application challenging its jurisdiction. That decision is perverse being in breach of trite principles. See Ajaka Ezekwe v. Onyemuche Nnadozie (1953) 14 WACA 361, Adeyemi v. Opeyori (1976) 9 – 10 SC 31, Abdulraheem v. Olorontoba-Oju (2005) 15 NWLR (Pt.1003) 581.
An examination of Plaintiff/Appellants statement of claim clearly shows his contention that the continued bid to remove him in the light of his earlier suit No. YHC/201/2010 wherein the legality of the procedure for his impeachment is being contested is wrong. The principle must be restated that “courts guard their jurisdiction jealously and strictly by cautiously scrutinizing the language of any outer clause and resolving any ambiguity in favour of the plaintiff whose access to the court is being ousted or curtailed”. The Respondents herein can only invoke the impeachment (procedure) rule to gag the Appellants cause of action if the procedure for his removal is in full compliance with relevant laws and rules that provided for such removal. See Inakoju v. Adeleke (2007) 4 NWLR (Pt.1025) 423, Amadi v. NNPC (2000) 6 SC (Pt.1) 65 at 95, Ajayi v. Military ADM Ondo State (1997) 5 NWLR (Pt.504) 237 and AG Bendel State v. Agbofodoh (1999) 2 NWLR (Pt. 592) 47.
I rely more particularly on the fuller reasons adumbrated in the lead judgment in allowing the appeal and dismissing the cross appeal. I abide by the consequential orders in the lead judgment including the one on costs.
T. O. AWOTOYE, J.C.A.: I have had the opportunity of reading the draft of the judgment just delivered by my learned brother EJEMBI EKO JCA, I agree with the reasonings and conclusion therein. I also hold that this appeal has merit and that the cross-appeal is incompetent. I abide by the consequential orders made in the lead judgment.
Appearances
K. Wodu, Esq.
P.O. Ogun
P. Omemu
D.O. Ejinyere & W. Rollings
Dr. Alex A. Izinyon (SAN)For Appellant
AND
F.T. Okorotie Esq.
S.T. Hon., SAN
J.S. Awunde
C. Igwe (MS) B.A.
Iorheghen & E.O. Onwuama
Chief Wole Olanipekun SAN & A.I. Adedipe SAN (absent though served)
