Ekiti State House of Assembly & Ors. V. Dr. Ayodele Peter Fayose & Ors. (2009)

LawGlobal-Hub Lead Judgment Report

ADAMU AUGIE, J.C.A.

Dr. Ayodele Peter Fayose was the Executive Governor of Ekiti State from May 2003 until October 2006, when he was impeached by the Ekiti State House of Assembly, acting upon a report submitted by a seven-man panel headed by Barrister Dele Omotosho. During that time, the substantive Chief Judge of the State was suspended and replaced with another Chief Judge, who had inaugurated the seven-man panel that indicted Dr. Fayose.

Disgruntled by the state of affairs in the Judiciary of the State, Dr. Fayose filed an action by originating summons at the Federal High Court, Akure, wherein he sought answers to the questions –

(1) Whether in view of the flagrant disregard of the clear provision of Section 188 (5) of the 1999 Constitution, the Plaintiff who is the Executive Governor of Ekiti State could be held to have been impeached by the 1st Defendant.

(2) Whether the Plaintiff as the Executive Governor of Ekiti State could be denied of the right to immunity as provided for under Section 308 of the Constitution – if he had not been constitutionally impeached.

(3) Whether the Plaintiff as the Executive Governor of the Ekiti State could be stripped of the constitutional right to immunity under Section 308 – and thus got (sic) arrested, detained, questioned, interrogated or prosecuted over any allegation of crime by the 2nd – 4th Defendants.

(4) Whether in view of the clear provisions of Section 188(5) of the Constitution – the 1st Defendant can exercise any power to set up a seven man panel at all to investigate any allegation of gross misconduct against the Plaintiff.

(5) Whether having regard to the provision of Section 188(5) of the Constitution – any panel set up by any other person or authority other than the Chief Judge of Ekiti State to investigate any allegation of gross misconduct against the Plaintiff is constitutional, lawful, legal and valid.

(6) Whether in view of the provisions of Section 188(5) and (7) of the Constitution – the decision of any panel set up in contravention of the said subsection can form the basis of impeachment pursuant to the provisions of Section 188(9) of the 1999 Constitution and thus deny him of his right to immunity under Section 308 of the Constitution.

(7) Whether having regard to the provision of Section 271 of the Constitution – any person or authority other than the Governor of a State can lawfully, validly, legally and constitutionally appoint, remove or in any other manner or way appoint or remove a Chief Judge or acting Chief judge of Ekiti State, other than as prescribed and laid down

(8) Whether having regard to the provision of Section 292 of the Constitution – the 1st Defendant can lawfully, validly and constitutionally remove or suspend the Chief Judge of Ekiti State or appoint an acting Chief Judge for the state without his behest.

With the questions as the base, he sought for the following reliefs-

1. DECLARATION that by virtue of Section 188(5) – only the Chief Judge of Ekiti State has the constitutional power to set up any seven man panel to investigate any allegation of gross misconduct against him.
2. DECLARATION that Section 188 – envisages a single panel of seven persons to investigate any allegation of gross misconduct against him.
3. DECLARATION that by Section 188(7) and (8) -the conclusion and findings of the panel set up in accordance with Section 188(5) of the said Constitution is conclusive and binding on the Defendants.
4. DECLARATION that by virtue of the provisions of Section 271 – only the Plaintiff as Governor of Ekiti State has the power, authority and legal capacity to appoint a qualified person as the Chief Judge –
5. DECLARATION that by virtue of the provision of Section 271 of the same 1999 Constitution, the 1st Defendant lacks the constitutional power to appoint anyone as the Chief Judge or acting Chief Judge –
6. DECLARATION that by virtue of the provisions of Section 292 – the power to remove the Chief Judge of Ekiti State from office resides on the Plaintiff acting pursuant to the provisions of the Constitution –
7. DECLARATION that by virtue of the provisions of Section 292 of the Constitution aforesaid the 1st Defendant has no legal, lawful (sic) or office without the concurrence or the initiative of the Plaintiff.
8. A DECLARATION that the plaintiff been the Executive Governor of Ekiti State and having not been impeached from that office enjoys immunity from prosecution as provided for under Section 308 of the Constitution
9. ORDER setting aside the setting up, sitting and all decisions of a seven man panel headed by one Omotosho set up by the 1st Defendant in contravention of the provisions of Section 188(5) – –
10. ORDER nullifying and making void all the decision, finding and recommendation of the said panel embodied in the report –
11. ORDER nullifying, setting aside and make void the decision of the 1st Defendant purporting to remove the Plaintiff from office as the Governor of Ekiti State based on the report of a seven man panel set up – in clear contravention of the provisions of the 1999 Constitution.
12. ORDER setting aside and nullifying the purported suspension and removal from office of the Chief Judge of Ekiti State in clear violation and breach of the Constitution and usurpation of his powers.
13. ORDER nullifying and setting aside the appointment of anyone as the acting Chief Judge of Ekiti State in clear violation and breach of the provisions of the 1999 Constitution and in usurpation of his powers.
14. INJUNCTION restraining the Defendants jointly and severally by themselves, their agents, servants, privies and any other person or in any other manner hamper the Plaintiff from the performance of his duties as the elected Governor of Ekiti State until end of his tenure -.
15. INJUNCTION restraining the 2nd – 5th defendants jointly and severally by themselves, their agents, servants privies and any other person or authority deriving power through them from relying on the purported impeachment of the Plaintiff as Governor of Ekiti State by the 1st Defendant to arrest, detain, interrogate or prosecute the Plaintiff for any alleged crime or any act of gross misconduct having not lost his right to immunity under Section 308 of the 1999 Constitution -.

Upon service on them of the Originating Summons, the Economic & Financial Crimes Commission [EFCC] and both the Inspector General Police [IGP] and Attorney General of the Federation [AGF] filed separate Notices of preliminary objection challenging the jurisdiction of the Federal High Court to entertain Dr. Fayose’s suit.

The Grounds of Objection to jurisdiction filed by the EFCC are –

1. That the basis of this action which is the impeachment of the Applicant/Respondent by Ekiti State House of Assembly on the recommendation of the seven man panel headed by one Omotosho no longer exists.
2. That this Honourable Court lacks the competence to restrain the 2nd Respondent/Applicant from investigating and prosecuting the Plaintiff/Applicant in respect of financial crimes leveled against him.
3. That this action is speculative frivolous, vexatious and abuse of Court process in view of similar action instituted on or behalf of the Applicant at the Supreme Court and High Court of the State.
4. That the ex parte order granted by this Honourable Court on the 20th day of October 2006 in these proceedings is illegal and unconstitutional.
5. That the Honourable Court lacks jurisdiction to hear and determine same.

And the Grounds of Objection filed by the IGP and AGF are that –

1. The subject matter of this suit is outside the jurisdiction of the Federal High Court,
2. There is no cause of action disclosed against the 4th and 5th Defendants by the Plaintiff in this suit.
3. The Plaintiff lacks the locus standi to institute this suit as he has ceased to be the Executive Governor of Ekiti State before instituting this suit.
4. This suit is an abuse of judicial process as there are several subsisting suits on the subject matter of this suit in various Courts.
5. This suit is purely academic.

The Applications were argued one after the other, and in his Ruling delivered on the 14th of November 2006, Lambo J. Akanbi, J held-

“– There are the 2nd to 4th Defendants, who are no doubt agencies of Federal Government against whom the Plaintiff claims declaratory and injunctive reliefs.

-This Court is therefore eminently qualified and competent to assume jurisdiction under the provision of Section 251 (a), (r) of the Constitution. Even if it can be said that some claims in the originating summons concern or touch on matters over which the State High State has jurisdiction to entertain there is the claim for declaration and injunction against the 2nd to 5th Defendants over which this Court has exclusive jurisdiction to entertain. It is my humble view therefore, that once a matter comes partly within the jurisdiction of this Court and partly within the jurisdiction of the State High Court, there is nothing to oust the jurisdiction of this Court”. (Highlights mine)

Akanbi, J. further held as follows on the issue of locus –

“The Plaintiff as the Governor of the State, whether suspended or impeached has all the right to seek the reliefs in the originating summons to protect his perceived right. He is in Court to challenge his impeachment as Governor of Ekiti State. In all honesty, I do not see the Defendants as seriously contesting this issue. I am of the firm view that he has locus to maintain the action”. (Highlights mine)

Dissatisfied with the Ruling, the House of Assembly, EFCC, IGP and AGF filed a number of appeals in this Court. However, at the hearing of the appeals on the 21st of October 2009, they opted to withdraw all the other appeals save that on jurisdiction, and their Appeals on the issue of jurisdiction were then re-numbered as CA/B/44A/2007; CA/B/44B/2007; and CA/B/44C/07 respectively.

In CA/B/44A/2007 the Appellant’s brief was prepared by Gboyega Oyewole, Esq., and two Issues were formulated therein –

(a) Whether the Learned Trial Judge was not wrong to have assumed jurisdiction over this suit having regard to its subject matter, which is the impeachment of the 1st Respondent as Governor of Ekiti State by the Ekiti State House of Assembly (Appellant)?

(b) Whether the Learned Trial Judge ought not to have struck out the suit in its entirety having regard to the materials before the Court?

Dr. Fayose is the 1st Respondent in all the appeals. In this appeal, it was submitted in his brief prepared by Dr. Alex A. Izinyon, SAN that the issues that arise for determination therein are as follows –

1. Whether the learned trial judge was right in assuming jurisdiction having regards to the suit before him.
2. Whether the learned trial judge was right in not striking out the suit in its entirety having regard to the subject matter before him.

The Appellant’s brief in Appeal No. CA/B/44B/2007 filed by EFCC, was prepared by Rotimi Jacobs, Esq., and it was submitted therein that the two Issues that call for determination are as follows –

1. Whether having regard to the nature of the reliefs sought by the 1st Respondent and the parties before the lower Court, the learned trial Judge was right to have assumed jurisdiction over the case.
2. Whether the lower court was right when it assume jurisdiction over the matter when the Plaintiff/1st Respondent has ceased to be the Governor of Ekiti State and Reliefs sought by him are meant for the occupiers of the office of the Governor.

Two Issues were also formulated in Dr. Fayose’s brief, as follows –

1. Whether the learned trial Judge was right in assuming jurisdiction of the suit before him.
2. Whether the lower Court was right when it assumed jurisdiction over the matter when the Plaintiff/1st Respondent has ceased to be the Governor of Ekiti State and Reliefs sought by him are meant for the occupiers of the office of the Governor.

Chief Afe Babalola, SAN, CON prepared the Appellants’ brief in Appeal No. CA/B/44C/2007 and the issues formulated therein area.

Whether the Learned Trial Judge was not wrong to have assumed jurisdiction over this suit having regard to its subject matter, which is the impeachment of the 1st Respondent as Governor of Ekiti State by the Ekiti State House of Assembly (2nd Respondent)?

b. Whether the learned trial Judge ought not to have struck out the suit in its entirety having regard to the materials before the Court?

The sole Issue formulated in Dr. Fayose’s 1st Respondent’s brief is-

“Whether the learned trial Judge was right in assuming jurisdiction having regards to the suit before him”.

The IGP and AGF, however, argued in their Reply Brief that Dr. Fayose is deemed to have conceded to all their arguments under Issue 1, since he did not file a corresponding Issue in his brief, and this Court was urged to discountenance his submissions. They cited Okoye v. Nigerian Construction & Furniture Co. Ltd. (1991) 6 NWLR (Pt. 199) 501, and Omilani v. Omisore (2007) 3 NWLR (Pt. 1020) 177, wherein this Court per Ogunbiyi, JCA held as follows-

“The issue at stake is very precarious in that not only did the Appellants failed to formulate any issue from their grounds of appeal, but proceeded further and fallen into a deeper gully of failing to argue even the questions so raised but proceeded to argue different approach under broad headings contrary to the contemplation of issues. The appellants’ fall was a double jeopardy and is undoubtedly a great one”.

But their argument makes no sense to me; it is even apparent from the Judgment quoted on two pages of their Reply Brief that the decision in Omilani v. Omisore (supra) is directed at an Appellant, who must formulate Issues for Determination or forfeit his case. Dr. Fayose is a Respondent, and he is allowed to adopt the Appellant’s Issues or give them a slant in his favour – see Willbros (Nig.) Ltd. V. A.G. Akwa Ibom (2008) 5 NWLR (Pt. 1081) 484.

The only reservation is that any Issue formulated by the Appellant or Respondent must be based on the Ground(s) of Appeal filed, otherwise it would be incompetent and therefore discountenanced – see Ibator V. Barakuro (2007) 9 NWLR (Pt. 1040) 475 SC.

Besides, looking at the facts of this case, the decision of the lower Court appealed against, and the arguments canvassed in these appeals, it is my view that all the Issues formulated by the different parties can be subsumed into that sole Issue formulated by Dr. Fayose in CA/B/44C/2005, and that is simply whether the lower Court was right to assume jurisdiction to entertain the action.

To start with, Section 251 (1) of the 1999 Constitution, provides –

“Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other Court in civil cause and matters-

(p) The administration or the management and control of the Federal Government or any of its agencies;

(q) Subject to the provisions of this Constitution, the operation and interpretation of the Constitution in so far as it affects the Federal Government or any of its agencies;

(r) Any action or proceeding for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies;

Provided that nothing in the provisions of paragraphs (p), (q), & (r) of this subsection shall prevent a person from seeking redress against the Federal Government or any of its agencies in an action for damages, injunction, or specific performance, where the action is based on any enactment, law or equity”. (Italics mine)

The House of Assembly argued in CA/B/44A/2007 that the lower Court ought to have declined jurisdiction when it found that the suit bordered on impeachment, which is not an item under Section 251, and to that extent is a forbidden subject or area for the Federal High Court, citing F.M.C.T. V. Eze (2006) 2 NWLR (Pt. 964) 221; and that regard must be had to the subject matter of the suit irrespective of the parties before it can adjudicate over a suit.

EFCC canvassed more or less the same arguments in CA/B/44B/2007, adding that the claims arose from the legislative act of the House of Assembly, which is not an agency of the Federal Government; and that the principal relief which has to do with impeachment is not within the jurisdiction of the Federal High Court, and it cannot consider the ancillary reliefs concerning EFCC without delving into the propriety or otherwise of the impeachment proceedings by the said House, citing Egbuonu V. BRTC (1997) 12 NWLR (Pt. 531) 29, A.T.A. Poly V. Maina (2005) 10 NWLR (Pt. 934) 487, Akinola V. V.C. Unillorin (2004) 11NWLR (Pt. 885) 616.

Similar arguments were canvassed in CA/B/44C/2007, but it was further submitted that no allegations were made against the IGP and AGF, and conversely that allegations were made against the House of Assembly, which is not an agency of the Federal Government; that it is not enough for a Plaintiff to join agencies of the Federal Government as Defendants in order to confer jurisdiction on the Federal High Court; and that the Court is duty bound to examine the reliefs sought to determine whether the subject matter of the suit falls within the items listed in Section 251 of the Constitution for it to assume jurisdiction over the said suit.

Dr. Fayose proffered similar arguments in all three Appeals, which is that the lower Court was right to assume jurisdiction; that the Appellants want him to challenge his impeachment at the State High Court and then file another suit at the Federal High Court to determine the propriety or otherwise of their acting on the impeachment, which has been frowned on by appellate Courts; and that by Section 251 (1) once the Federal Government or any of its agencies is a party to an action, the lower Court is automatically clothed with jurisdiction over it irrespective of the subject matter.

The IGP and AGF, however, argued in their Reply Brief that his contention is misconceived as it is the Plaintiff’s claim endorsed on the originating process that determines the jurisdiction of the Court; and that all the cases he cited arose out of the administrative action or decision of the Federal Government or its agency, unlike this case that has to do with the Ekiti State House of Assembly, which is not an agency of the Federal Government.

All the parties and this includes Dr. Fayose, submitted in their respective briefs that it is settled law that in order to determine whether or not the Court has jurisdiction to entertain an action, recourse must be had to the Plaintiff’s originating summons. Thus, it is the claim before the Court that has to be looked at or examined to ascertain whether it comes within the jurisdiction of the Court – see Tukur V. Govt. of Gongola State (1989) 4 NWLR (Pt. 117) 517, Onuorah V. K.R.P.C. Ltd. (2005) 6 NWLR (Pt. 921) 393, A. G. Anambra State V. A. G. Fed. (1993) 6 NWLR (Pt. 302) 692.

In this case, Dr. Fayose filed the action at the Federal High Court by Originating Summons, and originating summons involves questions of law and must include a statement of the questions on which the Plaintiff seeks the determination or direction of the Court. A mere glance at the questions formulated in his Originating Summons, shows that they touch on the issues of impeachment, immunity from prosecution, power to set up a panel to investigate allegations of gross misconduct against a Governor, and who is authorized or has the power to appoint or remove a Chief Judge. However, question 3, which refers to EFCC, SSS, etc., asks –

“Whether the Plaintiff as the Executive Governor of the Ekiti State could be stripped of the constitutional right to immunity under Section 308 of the Constitution and thus got (sic) arrested, detained, questioned, interrogated or prosecuted over any allegation of crime by the 2nd – 4th Defendants”.

Out of all the reliefs sought, it is only Relief No. 15 that prays for –

“An INJUNCTION restraining the 2nd – 5th Defendants jointly and severally by themselves, their agents, servants privies and any other person or authority deriving power through them from relying on the purported impeachment of the Plaintiff as Governor of Ekiti State by the 1st Defendant to arrest, detain, interrogate or prosecute the Plaintiff for any alleged crime or any act of gross misconduct having not lost his right to immunity under Section 308 of the 1999 Constitution”.

Paragraph 20 of his supporting Affidavit explains why, as follows –

“That consequent upon the impeachment by the House of Assembly of Ekiti State contained in paragraph 17 above, the SSS, the EFCC and Police Force began to search for the Plaintiff, who is the executive Governor of Ekiti State and consequently enjoy immunity as provided under the Constitution of the Federal Republic of Nigeria, which led to his fleeing the government (sic) for his dear life, attached herewith is a copy of the publication in the National Daily Newspaper declaring the Governor wanted is hereby attached and marked as Exhibit E”.

In other words, Dr. Fayose’s reason for seeking an injunction against EFCC, SSS, and the IGP is merely because they began to “search” for him after he was impeached by the Ekiti State House of Assembly, and in proof thereof, he attached Exhibit E, which is a copy of The Nation Newspaper of Wednesday October 18, 2006 that carries a bold headline, which says “Fayose declared wanted”.

Now, Section 251 (1) of the 1999 Constitution is clear on the law that the Federal High Court has exclusive jurisdiction over matters concerning the administration or the management and control of the Federal Government or any of its agencies, including any action or proceeding for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies – see NEPA V. Edegbero (2002) 18 NWLR (Pt. 798) 29, where Tobi, JSC said-

“- For the Federal High Court to have exclusive jurisdiction, the matter must be a civil matter arising from the administration, management and control of the Federal Government or any of its agencies. The matter must arise from the operation and interpretation of the Constitution.

And finally, the matter must arise from any action or proceedings for a declaration or injunction affecting the validity of any executive or administrative action or decisions by the Federal Government, or any of its agencies”. (Highlights mine)

In other words, it is not enough for Dr. Fayose as the Plaintiff to say that since he is asking for a declaration or injunction, then the matter must go to the Federal High Court, which has jurisdiction. No, not at all, the acts complained of, and for which he is seeking a declaration or injunction must actually be one relating to the executive or administrative actions or decisions of the Defendants.

The question may well be asked – what is the executive or administrative action or decision of the EFCC, SSS and IGP that would warrant an action against them at the Federal High Court? The lower Court itself said in its Ruling that Dr. Fayose was in Court “to challenge his impeachment as Governor of Ekiti State”. Dr. Fayose, however, argued in his briefs that all the Appellants quoted the comment out of con because it was made by the Court in relation to the issue of locus and not that of impeachment. But what is the difference, I may ask? The issue of locus or any lack thereof will certainly affect the jurisdiction of any Court to hear or not hear any matter before it, so what is the argument there? The only conclusion one can reach from the said comment is that the lower Court itself recognized that the principal relief sought by Dr. Fayose in coming to Court is to “challenge his impeachment as Governor of Ekiti State” by the Ekiti State House of Assembly, which is definitely not an agency of the Federal Government.

It is his impeachment by the Ekiti State House of Assembly, and only his impeachment that propelled Dr. Fayose to institute the action at the Federal High Court and the mere fact that the terms “declaration” and “injunction” were bandied about in his claims, does not automatically mean that the said Court has jurisdiction. The “declaration” and “injunction” sought must be hinged on an administrative action or decision of the said EFCC, SSS and IGP.

Apart from a newspaper report that means absolutely nothing, there was nothing placed before the lower Court to show what that administrative action or decision is that would bring the suit within the purview of Section 251 (1) of the 1999 Constitution, and grant it the requisite jurisdiction to entertain the action filed by Dr. Fayose. It is not enough for him to say that he read in a newspaper that he was declared wanted and had to flee for his life; Dr. Fayose had to justify invoking the jurisdiction of the Federal High Court by producing maybe a warrant of arrest or a Court order for his arrest.

Dr. Fayose’s claim and only reason for the action was to challenge his impeachment by the Ekiti State House of Assembly, and the Federal High Court was the wrong forum in which to do so. It definitely has no jurisdiction to hear it and no amount of ingenuity or twisting of legal terms and words would grant it that jurisdiction.

The end result is that there is merit in these appeals.

Consequently, the appeals succeed and are allowed. The Ruling of Akanbi, J, delivered on the 14th of November 2006, is set aside. The suit filed by Dr. Fayose at the Federal High Court, Akure, is hereby struck out for want of jurisdiction on the part of the Court.

There will be no order as to costs.

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Other Citations: (2009)LCN/3464(CA)