Admiral Murtala Nyako V. Adamawa State House Of Assembly & Ors (2016)
LAWGLOBAL HUB Lead Judgment Report
MUSA DATTIJO MUHAMMAD, J.S.C.
The appellant, Admiral Murtala Nyako, a retired naval officer, was elected the Governor of Adamawa State on the 5th of February 2012 to serve for a term of four years from the date he subscribed to the oath of the office. On the basis of its allegation of misconduct against the appellant, the 1st respondent following a resolution it passed, commenced the process of appellant’s removal from the office of the Governor of Adamawa State he was elected to.
Aggrieved by 1st respondent’s failure to follow the laid down procedure prescribed by the Constitution for the removal of a Governor, the appellant, by an originating motion filed on 13th November 2014, challenged his purported impeachment by the 1st respondent and sought for his reinstatement at the Federal High Court sitting at Yola, hereinafter referred to as the trial Court.
1st respondent not only challenged the competence of the originating motion by way of preliminary objection on the grounds of the impropriety of appellant’s recourse to the fundamental rights enforcement procedure for the reliefs and its
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being an abuse of judicial process, it filed a counter-affidavit and a written address in opposition to the originating motion. Appellant’s originating motion and 1st respondent’s preliminary objection were heard together by the trial Court. In a ruling delivered on 21st May 2015, the Court adjudged appellant’s cause of action an abuse of judicial process and declined any pronouncement on the merit of same notwithstanding the availability of materials in support of the respective positions of the parties.
Dissatisfied with the trial Court’s ruling, the appellant appealed to the Court of Appeal, holden at Yola, hereinafter referred to as the lower Court, by which judgment of 11th February 2016, appellant’s appeal was allowed in part. The Court set aside the trial Court’s ruling, invoked Section 15 of Court of Appeal Act to consider and determine the merit of appellant’s originating motion and granted him reliefs 1 5 thereof. The 6th relief that had been abandoned by appellant’s counsel in the course of arguing the appeal was, struck out
Aggrieved by the lower Court’s order striking out his 6th relief, the appellant has appealed to this Court on a
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notice containing three grounds.
Parties have settled and exchanged their briefs of arguments, including appellant’s reply briefs and, at the hearing of the appeal, adopted same in prosecution or opposition of the appeal.
The sole issue distilled by the appellant at Paragraph 3 of his brief reads:-
“Whether upon declaring his purported removal from office as Governor of Adamawa State unconstitutional, null and void, the Court below was not under a legal duty to reinstate the Appellant”
The issue formulated in the 1st respondent’s brief as arising for the determination of the appeal reads:-
“Given that the tenure of the Appellant as the former Governor of Adamawa State expired and/or became spent on 29th of May, 2015 by constitutional imperative, whether the learned Justices of the Court of Appeal were not right in striking out Relief No. 6 of the Appellants Originating Motion”
At paragraph 3.1 of Page 7 of his brief the issue the 2nd respondent presented for the determination of the appeal reads:-
“Whether the learned Justices of the Court of Appeal were right in striking out Relief No. 6 of the Appellant’s Originating Motion in
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view of the fact that the tenure of the Appellant had already expired and become spent as graciously conceded by the Appellants counsel.”
The more apposite issue distilled at paragraph 2.1 of page 14 of the 3rd respondent’s brief and on the basis of which the appeal is to be determined, reads:-
“Whether in view of the fact that the tenure of office of the Appellant had already expired and become spent as rightly graciously conceded by his counsel, the learned Justices of the Court of Appeal were wrong in striking out the Appellants relief No. 6.
On the lone issue, learned senior counsel for the appellant submits that the lower Court has the sacred duty of protecting the very Constitution, the groundnorm, that prescribes and sets the limits of the Powers of all organs and persons. The appellant whose Powers as the Governor of Adamawa State flows from Section 180(1) & 2 of the 1999 Constitution as amended, it is contended, cannot be prevented from exercising the functions of that office purely on the basis of his counsels admission that the tenure has elapsed. The lower Courts refusal to
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grant appellant’s relief No. 6 having found that 1st respondents conduct in appellant’s purported removal is unconstitutional, learned senior counsel submits, runs contrary to the Constitution. Beyond the lower Court’s mere declaration that 1st respondent’s conduct constitutes a breach of the Constitution, the Court has the duty of making appropriate consequential order to set aside the breach and forestall future occurrence of such impunity. This duty, further contends learned senior counsel, is what the lower Court shirked away from and which the appellant seeks this Court to remedy. Only an order for reinstatement to the office appellant was elected to, it is contended, will suffice. Relying inter alia on the decision in Inakoju V. Adeleke (2009) 4 NWLR (Pt 1025) 423, Amaechi V. INEC (2008) NWLR (Pt 1080) 227 at 324 – 325, AG Ondo State v. AG Federation (2002) NWLR (Pt 772) 222 at 418, Imonike V AG Bendel State (1992) 6 NWLR (Pt 248) 396, Adeleke v. Oyo State House of Assembly (2006) 16 NWLR and AG Federation V. Abubakar (2007) 10 NWLR (Pt 1041) 1 learned senior counsel urges us to make the necessary and only consequential order that would give meaning to
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the lower Court’s decision on the unconstitutionality of 1st respondent’s purported removal of the appellant. The facts in Eze V. Governor of Abia State (2014) 14 NWLR (Pt 1426) 192 and Ladoja v. INEC, further contends senior learned senior counsel, being different from the facts of the case at hand, are distinguishable. The decisions in the two cases not being relevant must accordingly be discountenanced. Senior counsel commends a departure from the two decisions.
Concluding, learned senior counsel insists that the appellant who has manifestly suffered some injury cannot, by the principle of ubi jus ibi remedium, be asked to go away empty handed. Relying onObunike v. Nnamdi (2012) 12 NWLR (Pt 1314) 327 at 353 andBFI Group Corp v. BFF (2012) 18 NWLR (Pt 1332) 209 learned senior counsel submits that the availability of sufficient facts on record to sustain a consequential order justifies one from this Court, on allowing the appeal, even though the appellant has neither specifically pleaded nor prayed for it.
Responding on behalf of the 1st respondent Mahmud Abubakar Magaji, SAN, contends that the issue the appeal raises is too narrow and undeserving of
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appellants long treatise on the rule of law, the sanctity of the Constitution and the consequential order the lower Court failed to make. It is glaring, contends learned senior counsel, that these arguments do not relate to the issues he has distilled which issues as well as the grounds of appeal they purportedly draw from fail the mark of being an attack at the judgment of the lower Court being appealed against. An appeal, learned senior counsel maintains, is a complaint against the lower Court’s judgment which, if sustained, entitles the appellant to a reversal of the judgment. Appellant’s grounds of appeal and the issues they purportedly give rise to not being complaints against findings of the lower Court, it is contended, are to be discountenanced.
Arguing the appeal on the merits, learned senior counsel submits that a counsel who acts bonafide has the general authority to conduct his clients case and except where expressly restricted may, in appropriate circumstances, even compromise his client’s cause. In the case at hand where there is nothing to indicate that counsel had betrayed appellant’s trust at the lower Court, appellant cannot
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be heard on appeal to challenge the lower Court’s judgment on the basis of his counsel’s admission as to the futility of the Courts grant of appellant’s 6th relief. The decisions of this Court in Attorney General of the Federation V. A.I.C Ltd & ors (1995) 2 NWLR (Pt 378) 388, Okonkwo V. Kpaje (1992) NWLR (Pt 226) 633, Cappa & D Alberto Ltd V. Akintilo (2003) 9 NWLR (Pt 824) 49, Okesuji v. Lawal (1991) NWLR (Pt 170) 661 and Ogboro V. Uduaghan (2013) 13 NWLR (Pt 1370) 33, It is submitted, clearly bears out the lower Court’s judgment.
Parties, further argues learned senior counsel, are not allowed on appeal to make a case different from the one they made at the trial Court. Relying inter-alia on A.G. Anambra State V. Okeke (2002) 12 NWLR (Pt 782) 575, Oredoyin v. Arowolo (1989) 4 NWLR (Pt 144) 172 at 211, Ajide V. Kelani (1985) NWLR (Pt 12) 248, Pacer Multi Dynamics Ltd v. The M.V. Dancing Sister & Anor (2012) 4 NWLR (Pt 1289) 169 and Abeke V. Odunsi & Anor (2013) LPELR – 20640 (SC), he submits that this Court is duty bound to ensure that parties remain consistent.
Most importantly, learned senior counsel submits, it is no longer an issue
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that the tenure of the appellant as the Executive Governor of Adamawa State for two terms, a cumulative period of 8 years beginning from 29th May 2007, had expired on 29th May 2015. No Court, given the decisions in Marwa V. Nyako (2012) 6 NWLR (Pt. 1296) 199, Ladoja V. INEC (2007) 12 NWLR (Pt 1047) 119 and Eze & Ors v. Governor Abia State & Ors (2014) 14 NWLR (1426) 192 as well as Section 180(2)(A) of the 1999 Constitution as amended, it is further submitted, can extend the tenure that had so expired.
Appellants 6th relief which seeks the extension of appellant’s tenure must, submits learned senior counsel, fail. On the whole, the appeal being unmeritorious, urges learned senior counsel, should be dismissed.
Learned senior counsel for the 2nd respondent, in virtually the same manner and substance as contended by Mr. Magaji SAN, also opposes the appeal. Relying on the same judicial authorities, he urges this Court not to depart from its decisions in Ladoja V. INEC (Supra) and Inakoju V. Adeleke (supra) firstly because the very facts and issues resolved by this Court in the earlier cases are the same facts and issues it is urged, in the
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instant appeal, to resolve. Furthermore, the appellant not having complied with the provision of Order 6 Rule 4(4) in urging the Court to depart from the earlier decisions, his invitation that the Court departs from the earlier decisions must fail. He relies on the cases of Adisa V. Oyinwola (2000) 10 NWLR (Pt 674) 116; Long John v. Blakk (1998) SCNJ 68, Okulate V. Awosanya (2000) 2 NWLR (Pt 312) 382 and Adegoke Motors Ltd v. Adesanya (1989) 3 NWLR (Pt 109) 250 and urges in conclusion that the appeal be dismissed.
The brief settled by Igbodo David Esq for the 3rd respondent similarly contains the very arguments and on the basis of the principles outlined in the same or similar authorities proffered by the 1st and 2nd respondents. Instructive as they are, reproducing the arguments is unarguably unnecessary.
On being served the respondents’ briefs, the appellant filed and served his reply brief to each of the respondents. A common trend runs through the competent aspects of the three reply briefs.
Firstly, the appellant contends, he has been consistent in his case from the trial Court through the lower Court and in this very Court. His case it is argued, is that as a
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democratically elected Governor he has a Constitutional mandate to hold office for an uninterrupted term of four years; that his impeachment by the 1st respondent before the expiration of the four years term is a breach and that the Courts have the duty to protect the provisions of the Constitution from further breach. The lower Court, it is submitted, found that appellant’s unlawful removal by the 1st respondent constituted a breach of the Constitution but failed to make a positive order towards the protection of the Constitution. It is the lapse in the lower Court’s judgment, it is further submitted, that informs the present appeal. Neither parties nor their legal representatives, it is contended, can waive the provisions of the Constitution.
Secondly, learned senior counsel to the appellant, Uche Nwokedi, further argues, where a counsel betrays the trust of his client or acted contrary to the clients instruction, the counsels general authority to conduct the case and even compromise his clients interest may be a subject of legitimate scrutiny. In the case at hand, it is further contended, there is nothing to suggest that appellant’s
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counsel at the lower Court had acted within the Purview of his general authority by conceding that appellant’s relief No. 6 is spent. Nothing in the Affidavit of urgency deposed to by the appellant at the lower Court contained in pages 746-751 of the record reveals either appellant’s concession or his instruction to his counsel to concede on his behalf either the impossibility of the grant of appellant’s relief No. 6 or its unenforceability.
Thirdly, the objections contained particularly in the 1st and 2nd respondents’ briefs to the effect that some arguments advanced by the appellant in support of the appeal neither flow from appellants issue for the determination of the appeal nor the grounds of appeal stand in breach of Order 2 Rule 9 (1) and 2 of the Supreme Court Rules 2011, appellant further contends, are simply incompetent Since Rules of Court are meant to be obeyed, the objections of the two respondents raised without the service of the necessary notice of same on the appellant, it is submitted, should be discountenanced.
Relying on Peter V. NNPC (2010) 8 NWLR (Pt 1195) 175, Diamond Bank V. P.I.C. Ltd (2009) 18 NWLR (Pt 1172) 67 and
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Ibrahim V. Mohammed (2003) 6 NWLR (Pt 817) 615 SC, learned senior counsel to the appellant contends that had the respondents read appellant’s grounds of appeal along with their particulars they would have realized the futility of their objections. Appellant’s arguments objected to by the respondents clearly relate to the issue distilled from the grounds of appeal and being competent cannot be ignored. It is urged that this Court so holds.
To the question asked both sides to this appeal at its hearing, whether the appellant has a right of appeal in respect of a matter he conceded and abandoned through his counsel, the two sides stuck to the arguments in their respective briefs as well as the oral submissions proffered in amplification.
To understand appellants grouse in this appeal, one needs to appreciate not only the reliefs he prayed the lower Court to grant him and the decision of the Court in relation to the reliefs but also his grounds of appeal which constitute the dissatisfaction with the decision he appeals against.
Having been struck out by the trial Court for being an abuse of judicial process, the appellant in his appeal against
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the trial Courts decision to the lower Court, urged the Court to review and set aside the trial Court’s decision, consider the merits of his suit and grant him the following reliefs:-
“i. A DECLARATION that the failure of the 1st Respondent to serve the Applicant impeachment notice personally is unlawful, unconstitutional, illegal, null and void as it violates the Applicants fundamental right to fair hearing as guaranteed under Section 36 of the 1999 Constitution of the Federal Republic of Nigeria;
ii. A DECLARATION that the failure of the 2nd Respondent to serve the Applicant Hearing notice personally is unlawful, unconstitutional, illegal, null and void as it violates the Applicants fundamental right to fair hearing as guaranteed under Section 36 of the 1999 Constitution of the Federal Republic of Nigeria;
iii. A DECLARATION that the setting up of the 2nd Respondent by the Acting Chief Judge of Adamawa State based on the resolution of the 1st Respondent after the Order/Ruling by the Acting Chief Judge of Adamawa State stopping the 1st Respondent from constituting the 2nd Respondent is, biased, malafide, unlawful, illegal
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and unconstitutional violation of the Applicants right to fair hearing and fair trial as guaranteed under Section 36 of the Constitution of the Federal Republic of Nigeria;
iv. A DECLARATION that the setting up and composition of the 2nd Respondent based on the resolution of the 1st Respondent during, the pendency of a suit and against a subsisting Order of the Court restraining the 1st Respondent from setting up the 2nd Respondent is unlawful, contemptuous, illegal, undemocratic and a flagrant violation of the provisions of the 1999 Constitution of the Federal Republic of Nigeria;
v. AN ORDER nullifying the removal of the Applicant as Governor of Adamawa State on 15th July 2014;
vi. AN ORDER reinstating the Applicant as Governor of Adamawa State forthwith; and
vii. SUCH FURTHER ORDER OR OTHER ORDERS as this Honourable Court deems fit to make in the circumstance of this case.
In the course of arguing the appeal and urging the lower Court for the foregoing reliefs, see pages 802 – 803 of the record of appeal, Isyaku, SAN, on behalf of the appellant made a profound concession thus:
… The consequential
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relief as contained in relief 6 of the originating summons has expired as it has been overtaken by events. This leaves us with the issue as to whether or not the impeachment proceedings were proper. We submit that all the evidence required to determine the issue of the impropriety of the impeachment is already before the Court and the Court can go ahead to determine the suit. I concede that the claim for reinstatement has been overtaken by effluxion of time… In sum we urge the Court to allow the appeal and to hold that there was a breach of right of the Appellant in failure to serve him a hearing notice Set aside the proceedings of the panel and to annul the impeachment proceedings particularly the panels report.
(Underlining mine for emphasis).
Given the foregoing admission of appellant’s senior counsel, the lower Court held in respect of appellant’s reliefs 1-5 at pages 850 – 851 of the record as follows:-
“There was clearly an infraction of the right of fair hearing of the appellant in the impeachment proceedings when, contrary to the powers of the House of Assembly and in defiance of the Court order of Hon. Justice
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D. Mammadi issued on 26/6/2014 to the effect that the Appellant must be served personally, opted to serve by substituted means. This is an infringement of the right to fair hearing of the Appellant which has vitiated the entire impeachment proceedings. I hold that the impeachment proceedings which led to the removal of the Appellant a nullity. I hereby set aside the decision of the Federal High Court Yola delivered on 21/5/2015. In its place I hold that reliefs 1 – 5 of the originating motion are granted.”On the 6th relief the Court held and concluded at page 851 of the record of appeal thus:-
“In the course of this Appeal, the learned Appellants counsel graciously conceded that Relief No. 6 in the Originating motion is spent and cannot be granted. Consequently, in view of the expiration of the tenure of the Appellant on 7/2/2016, Relief No. 6 of the originating motion, being spent, is therefore struck out.”
(Underlining mine for emphasis)
The submission of learned senior counsel to the appellant that appellant’s dissatisfaction with the foregoing decision of the lower Court is best appreciated by a reading of appellant’s grounds of appeal including their particulars cannot be
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faulted. A perusal from the record, for completeness and fairness, of the part of the lower Court’s judgment to which the appeal relates, the grounds of appeal including their particulars as well as the relief the appellant seeks from this Court, in the event that the appeal succeeds, leave me in no doubt that appellants real grouse in his appeal is on the lower Courts failure to protect the sanctity of the Constitution by the grant of his 6th relief. This explains why the summary of the arguments proffered by the appellant in this judgment has been limited to appellant’s grouse as so circumscribed.
By these arguments, the contention of learned senior counsel to the appellant is that notwithstanding the fact that the order striking out appellant’s 6th relief is premised on the fact of its withdrawal by counsel, the lower Court is still wrong in its failure to consider the merit or otherwise of and grant the very relief that ceased to be extant and in so doing refused to protect the Constitution.
My lords, let me, from the onset, restate certain principles we, including counsel on both sides, all know. Firstly, an appeal is an invitation to
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a higher Court to review the decision of a lower Court in order to find out whether, on proper consideration of the facts placed before it and the applicable law, the lower Court’s decision is correct. The invitation to the higher Court to undertake the review hinges on a complaint against the decision of the lower Court. It, therefore, follows that where there is no complaint against any act or omission of the lower Court, the appellate jurisdiction of the higher Court cannot be invoked. Indeed that is why the Constitution, the Law and Practice in the administration of Justice in this country vest the right of appeal to a superior Court against any decision of a lower Court only in a person who is aggrieved by an error in the decision either on grounds of law or fact. Thus the right of appeal presupposes dissatisfaction with the decision against which it enures. See Ohuka & 6 Ors V. State (1988) 2 SC (Pt II) 139; Alhaji Kashim Shettima & 3 Ors v. Alhaji Mohammed Goni & 6 Ors (2011) 10 SC 92 and Emenike Uwanta v. INEC & 2 ors (2011) 11-12 SC (Pt II) 4.
Secondly, it is a corollary principle that an appeal properly so called can only be in relation to
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issues submitted to and determined by the Court against which decision the appeal lies. Accordingly, where no such issue is submitted to and determined by the lower Court, there cannot be basis for any ground of appeal against the non existing decision or an issue for determination therefrom for the appellate Courts consideration. It must, therefore, be stressed that there can hardly be a competent ground of appeal, except with leave of Court, in respect of any issue that never was in controversy between the parties for only a determination arising from such a dispute entitles the aggrieved to invoke the judicial powers vested in the appellate Court by the Constitution and the law.
Put differently, only an issue pronounced upon by a lower Court is subject of a competent appeal. See Saraki v. Kotoye (1992), 11 – 12 SCNJ 26, Olufemi Babalola & Ors v. The State (1989) 7 SC (Pt 1) 94 and United Bank for Africa Plc V. BTL Industries Ltd (2006) LPELR-3404 (SC). In the instant case leave has not been sought and obtained by the appellant to raise and argue the issue he raises in the appeal that was never considered and determined by the Court below.<br< p=””
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Thirdly, decisions of this Court, too numerous to count, recognise the very wide powers of a counsel, being an agent and mouthpiece, in the course of performing his professional duties, to commit his client by way of any concession or admission of facts and same may be binding on his client except same is against express authority of or retracted by the client before judgment. The decisions of this Court particularly alluded to by Chief Chris Uche SAN for the 2nd respondent in CAPPA & D’Alberto Ltd v. Akintilo (2003) 9 NWLR (Pt 824) 49 at 70, Okesuji V. Lawal (1991) NWLR (Pt 170) 661 and Okonkwo V. Kpajie (1992) NWLR (Pt 226) 633 at 655 are very apposite.
Lastly, learned respondents counsel are correct in their postulations that if indeed the appellant had withdrawn his 6th relief, through his counsel, and on the basis of the withdrawal forestalled the merits of the relief from being contested by the respondents at and determined by the lower Court, it then no longer lies in appellant’s mouth, in law and equity, to seek the consideration of such an issue now. He is estopped. See Governor Ekiti State V. Ojo (2006) ALL FWLR (Pt 331) 1298 and Mosheshe General
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Enterprises V. Nigerian Steel Product Ltd (1987) 4 SCNJ 11 and Section 169 of its Evidence Act 2011.
Following my examination of the synopsis of the lower Court’s decision earlier captured in this judgment, I am of the firm and considered view that the Court did not consider the merit or otherwise of appellant’s 6th relief. Rather, it struck out the relief following its withdrawal without objection by Isyaku SAN of counsel because, with the expiration of appellant’s tenure as the Governor of Adamawa State, the prayer for the relief had become “spent” thereby making its grant untenable.
I affirm the powers of Isyaku SAN, appellant’s counsel then, in the conduct of his client’s case, to make the “admission” he made that appellant’s tenure had expired and in consequence appellants relief that had become spent be discountenanced by the lower Court. The appellant cannot, either in law or equity, be allowed to now suggest that the lower Court is wrong for not considering a matter that ceased to be before it, having been effectively withdrawn by the claimant.
The lower Court, the appellant must accept, lacks the
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jurisdiction of granting the 6th relief that was no longer being sought by the appellant. It is trite that the Court is without power to award a claimant that which he did not claim. Though the Court may award less, it lacks the vires to award more than what is claimed or pleaded by either party to the controversy before it. As the saying goes, a Court of law not being a charitable institution, it’s duty in civil matters is limited to the grant of a proven claim only. See Etom Ekpenyong & 3 ors V. Inyang Effiong Nyang & 6 ors (1975) 2 SC 65 at 73 74, Agbi v. Ogbeh (2006) 11 NWLR (Pt 990) 65 and Awodi & anor V. Ajagbe (2015) 3 NWLR (Pt 1447) 578.
Applying these principles to the facts of the instant case, what emerges is the fact that this Court’s appellate jurisdiction under Section 233 of the 1999 Constitution as amended does not enure to the appellant who is not a person aggrieved by the decision of the lower Court. Having withdrawn his 6th relief and forestalled its consideration and determination by the lower Court, the appellant cannot, in the absence of a decision of the lower Court on the issue, invoke the appellate
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jurisdiction of this Court as conferred by the Constitution. See Societe General Bank Nigeria Limited V. LITUS Torungbenefade Afekoro & Ors (1999) 7 SC (Pt 111) 95, Anthony Aburime v. Commissioner of Police (1978) LPELR – 59 (SC) and Akande v. Awero & anor (1977) LPELR-318 (SC).
Learned senior appellant’s counsel seems to insist that the withdrawal of appellants 6th relief by virtue of his counsel’s admission is unauthorized. The facts before this Court do not
sustain this assertion. The authority of senior appellants counsel in the conduct of the case, on the authorities, extends to compromising his clients case except same is expressly shown to be otherwise restricted. Evidence of such express limitation placed on appellant counsel’s authority remains unavailing.
Granted without conceding that there is a decision of the lower Court, on the merits, refusing the grant of appellant’s 6th relief since, with the expiration of the tenure of the appellant as the elected Governor of Adamawa State, the relief has become overtaken, spent, academic and useless, endorsing such a decision by this Court would be an abiding duty.<br< p=””
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Finally, learned senior counsel to the appellant needs to be reminded that a litigant’s injury is only compensated if the Court is so urged and it is granted not necessarily in the manner the relief is sought. The Court makes the grant only if the law so accommodates the claimant. Where the claimant withdraws the relief of the injury he claims and his entitlement cannot be determined in the first Place, the Court will be without the jurisdiction to compensate the injured person. Addedly, where the grant of the relief urged on the Court has become untenable and academic the Court will lack the jurisdiction of granting such a relief that has become hypothetical, of no value and unenforceable. SeeLadoja v. INEC (supra) and Marwa v. Nyako (supra).
The appellant is certainly not entirely without remedy for the injury he suffered. He at best could be paid his salary and other entitlements for the residue of his tenure he otherwise would have served but for his removal by the 1st respondent, which the lower Court having found unconstitutional rightly set aside. But this too
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has to be asked for by the appellant at the appropriate forum and on being considered it may be granted. Not privy of the facts on the basis of which this same relief would be awarded this Court, again, cannot proceed along this line.
Appellant’s tenure has long expired. Not only has his successor been elected, the successor is now in his second year of a four year term. These facts underline the impossibility, nay the absurdity, of the grant of appellant’s 6th relief, the chances of which has further been negated by the fact of its being withdrawn at and not having been considered and pronounced upon by the lower Court. This Court lacks the jurisdiction of dwelling on and granting the appellant the relief he seeks. I take the liberty of concluding this judgment by restating the principle outlined by this Court in the case of Prof. Edozien & 4 Ors v. Chief (Engr) Edozien (1993) 1 NWLR (Pt 292) 678 thus:-
A party comes to Court for an alleged wrong done to him, or he seeks a declaration in respect of certain right. The moment he decides to exercise his unfettered right not to pursue his action, what is left for the Court is the order to be
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made as it is outside the Courts jurisdiction to force a party to continue an action filed by him.”
The withdrawal of appellant’s 6th relief by his counsel remains his eternal cross to bear. It is for that reason that, as a whole, I dismiss this appeal and strike out same. Parties to bear their costs.
SC.303/2016
