Chief Diepriye S.p. Alamieyeseigha V. Hon. Justice Emmanuel Igoniwari & Ors (2007)

LawGlobal-Hub Lead Judgment Report

SULEIMAN GALADIMA, J.C.A.

The plaintiff before the lower court now appellant in this appeal commenced his action by a writ of summons and statement of claim against the defendants now the respondents jointly and severally before the High Court of Bayelsa State on 16/12/2005 in suit No. YHC/173/2005. He sought for the following declarations and reliefs:

“1. A DECLARATION that the 1st defendant is constitutionally obliged to appoint only such persons as are not disqualified under section 188 (5) of the Constitution of the Federal Republic of Nigeria, 1999 as members of the panel to investigate allegations of impeachable offences leveled against the plaintiff as contained in the impeachment notice dated 18th November, 2005.

2. A DECLARATION that the 1st defendant has failed in the performance by him of his constitutional duty under section 188 (5) of the 1999 Constitution by his appointment of the 4th, 5th, and/or 8th defendants as members of the investigation Panel inaugurated by the 1st defendant to investigate the allegations contained in the impeachment notice dated 18th November, 2005.
3. A DECLARATION that the subjection of the plaintiff to house arrest at the behest and direction of the 11th defendant from 5th December, 2005 till midday on 9th December, 2005 is in violation of the plaintiff’s constitutional rights to freedom of movement and constitutional immunity afforded him under sections 41 and 308 of the 1999 Constitution.
4. A DECLARATION that the failure and/or refusal of the impeachment investigation panel constituted by the 1st defendant, and comprising 4th-10th defendants to commence sittings and invite the plaintiff to defend himself either personally or through his counsel amounts to abandonment of their mandatory constitutional duties under section 188 (7) of the Constitution of the Federal Republic of Nigeria, 1999.
5. A DECLARATION that the 2nd defendant cannot be lawfully approved by the Bayelsa State House of Assembly and sworn-in by 1st defendant as the Substantive Governor of Bayelsa State unless and until the plaintiff exhausts his term, voluntarily resigns, or is otherwise impeached in accordance with the provisions of section 188 of the 1999 Constitution.
6. A DECLARATION that the forceful removal of plaintiff from his office as Governor of Bayelsa State on the 9th day of December, 2005 by the 11th defendant and his armed operatives, as well as the plaintiff’s subsequent arrest and continued detention amounts to an unconstitutional take over of the Government of Bayelsa State through a police-aided civilian coup contrary to section 1(2) of the Constitution of the Federal Republic of Nigeria, 1999.
7. In alternative to prayer 6 A DECLARATION that the purported report of the panel headed by 4th defendant upon which report the purported impeachment of the plaintiff was carried without notice to or hearing from the plaintiff, and which report was submitted to the 3rd defendant on or about 9th December, 2005 is illegal, unconstitutional, null, void and of no effect whatsoever.
8. A DECLARATION that the office of the Governor of Bayelsa State, and Deputy Governor of Bayelsa State into which the plaintiff and 2nd defendant were respectively sworn in on 29th May, 2003 as having been duly elected for a four year term ending on 28th May, 2007 have not become vacant to warrant the swearing in of new incumbents in place of the plaintiff and 2nd defendant as Governor and Deputy Governor of Bayelsa State respectively.
9. AN ORDER setting aside the purported swearing in by the 1st defendant of the 2nd defendant as the substantive Governor of Bayelsa, on the 12th day of December 2005 in place of the plaintiff who remains the legitimate and duly elected Governor of Bayelsa State pursuant to the gubernatorial election held on the 19th day of April, 2003.
10. AN ORDER OF INJUNCTION restraining the 2nd defendant from parading himself as or acting in the capacity of the substantive Governor of Bayelsa State in place of the plaintiff to whom 2nd defendant is the Deputy Governor.
11. AN ORDER OF INJUNCTION restraining the 1st, 3rd and 11th defendants from according any further recognition to the 2nd defendant as the substantive Governor of Bayelsa State in place of the plaintiff to whom 2nd defendant is the Deputy Governor.
12. AN ORDER directing the 1st defendant to reconstitute the Investigation Panel which he inaugurated on 5th December, 2005 by removing therefrom the 4th, 5th and 8th defendants, who are disqualified under section 188(5) of the 1999 Constitution from acting thereon by reason of their political affiliations.
13. AN ORDER OF MANDATORY INJUNCTION directing the Investigation Panel inaugurated or to be re-constituted by the 1st defendant in respect of the allegation of impeachable offences contained in a notice dated 18th November, 2005 against plaintiff, to resume and or commence sitting and afford the plaintiff an opportunity to defend himself, whether personally or through a counsel of his choice as enjoined in section 188(6) of the Constitution of the Federal Republic of Nigeria, 1999.
14. Cost of this action.”

The writ of summons was supported by a verifying affidavit of 8 paragraphs.

All the respondents after entering appearance filed notice of preliminary objections. The grounds on which the various objections were based were stated as follows:

“1. That the court lacked jurisdiction to entertain the action because of the provisions of section 188 (10) of the G Constitution of the Federal Republic of Nigeria, 1999.

2. That the 2nd defendant was immuned from civil proceedings by virtue of the provision of section 308 (1)(a) of the Constitution and consequently the court lacked jurisdiction to entel1ain the suit as against him.
3. That the 1st defendant being the Chief Judge of Bayelsa State enjoyed immunity from civil proceedings in respect of the performance of the duty of appointing members of the panel: and
4. That the 11th defendant being the Commissioner of Police of Bayelsa State is a Federal agent and consequently the appropriate court in which he can be sued for his actions is the Federal High Court.”

Full arguments were taken from all counsel and the trial Judge in a considered ruling, acceded to the prayers of the respondents and struck out the action of the appellant. Being dissatisfied with the ruling, the appellant has appealed to this court on nine grounds.

The appellant in compliance with the Rules of this court filed and served his brief of argument and reply brief on the respondents.

He formulated FOUR issues for determination as follows:

“1. Whether the jurisdiction of the cou11 is excluded from inquiries into allegations or complaint of noncompliance with any or all of the provisions of section 188 of the Constitution in relation to proceedings for 1mpeachment of the Governor of a State because of the provisions of Section 188 (10).

2. Whether or not the powers vested in the Chief Judge of a State pursuant to Section 188 (5) of the Constitution can be challenged if the persons so appointed by him are disqualified for appointment under the provisions of that sub-section.
3. Whether the trial Judge was right in holding that the 2nd defendant cannot be sued, or made a party to the plaintiff’s action because of Section 308 of the Constitution even when as it was claimed in this case that he has been joined as a nominal defendant.
4. Whether the trial Judge was right in holding that the 11th defendant, the Commissioner of Police cannot be sued in a State Court having regards to Section 251 of the Constitution of the Federal Republic of Nigeria.”

The 1st and 3rd respondents in their brief of argument deemed filed on 22/2/2007 on the other hand, presented the following three issues for determination:

“(i) Whether having regard to the mandatory provisions of section 188 (10) of the 1999 Constitution, the learned trial Judge was right in holding that the lower court lacked jurisdiction to adjudicate on the appellant’s claims. (flowing from ground 1 or the appellant’s notice and grounds of appeal).

(ii) Whether the appointment of the Panel by the Chief Judge of the state pursuant to Section 188 (5) of the 1999 Constitution is not part of the impeachment proceedings or a matter relating to such proceeding as contemplated by the 1999 Constitution (flowing from grounds 2, 5 and 8 of appellant’s notice and grounds of appeal)

Whether the qualification of members of the impeachment Panel relative to the impeachment of the appellant herein can be questioned in a Court of Law.”

The 2nd respondent in his brief of argument distilled FOUR issues for determination on this appeal as follows:

“1. Whether the court below was right in holding that the court lacked jurisdiction to entertain the plaintiff’s complaints against the impeachment proceedings against him having regard to the provisions of section 188 (10) of the 1999 Constitution: Grounds 1, 2, 3, 4, 6.

2. Whether the court has jurisdiction to entertain an action challenging the exercise by the Chief Judge of a State of his power, under section 188 (5) of the 1999 Constitution, of appointment of the panel to investigate the allegations contained in an impeachment notice issued under section 188(2) of the Constitution by the House of Assembly of a State: Grounds 5, 8.
3. Whether having regard to the reliefs sought by the plaintiff against the 2nd defendant, the learned trial Judge was right in holding that the 2nd defendant could not be sued or made a party to the plaintiff’s action because of section 308 of the Constitution: Ground 7.
4. Whether the learned trial Judge was right in holding that the state court had no jurisdiction in respect of the claims made against the 11th defendant because the 11th defendant was an agent of the Federal Government having been posted to Bayelsa State by the Inspector General of Police and Police matters being an item (45) on the Exclusive Legislative List in the second schedule to the 1999 Constitution: Ground 9.”

The 4th-10th respondents formulated THREE issues for determination as follows:

“1. Whether the trial court was not right on the interpretation it placed on the provisions of section 188 (10) of the Constitution in declining jurisdiction to hear the case of the appellant having regard to the peculiar facts and circumstances of this case and the way it was initiated.

2. Whether the learned trial court having regard to the facts and circumstances of this case, was not correct in the view it took on the invocation of the provisions of section 308 of the 1999 Constitution in favour of the 2nd respondent.
3. Whether the learned trial Judge was not right to have invoked the provisions of section 251 of the 1999 Constitution to decline jurisdiction in adjudicating on the 11th respondent which is a Federal Agency.”

The 11th respondent on the other hand formulated THREE issues for determination, in the following terms:

1. Whether the lower court was right in holding that the court lacked jurisdiction to adjudicate on the appellant’s claims having regard to the mandatory provisions of 188 (10) of the Constitution of the Federal Republic of Nigeria, 1999: Grounds 1, 2, 3, 4 and 6.”
2. Whether having regard to the provisions of section 308 (1) of the 1999 Constitution of the Federal Republic of Nigeria the lower court was right in holding that the 2nd respondent ought not to be joined as a party in the suit: Ground 7.
3. Whether the lower court was right in holding that the 1st respondent is an agent/agency of the Federal Government and the High Court of Bayelsa State consequently lacked jurisdiction in respect of the appellant’s claims against him. Ground 9.”

On 22/2/2007, this appeal came up for hearing, at long last, after hurdles and labyrinth of intrigues were placed on the path of the court to hear and determine this appeal expeditiously, time being of the essence. Series of motions were filed regularly. Counsel for the respondents were changed and debriefed at shortest notice even as they appeared in the court room. However, this court patiently and cautiously was able to weather the storm and trod through complicated network of these difficult and winding passages. The Appeal was heard. Learned Senior counsel Professor A. B. Kasunmu, SAN leading other team of senior counsel identified appellant’s brief of argument filed on 19/7/2006, and the reply brief filed on 1/11/2006 which he said was his response to the briefs filed on behalf of the learned senior counsel for the 1st respondent, Chief A.S. Awomolo, SAN who has now withdrawn appearance for 1st, 4th and 11th respondents and Chief Ladi Rotimi Williams, SAN who has now withdrawn appearance for the 4th-10th respondents. It is contended that the appellant’s briefs are still relevant and applicable to the new briefs of argument filed by the new counsel now engaged by these respondents. He explained that issue No.1 is tied to grounds 1-6; issue No.2 is tied to ground 7; issue No.3 to ground 8, and issue No.4 to ground 9. He adopted both briefs.

He argued issues 1 and 2 together. He referred to paragraphs 6, 8, 11, 12, 13, 14 and 15 of the appellant’s statement of claim and the case of Hon. Abraham Adeleke & 2 Ors. v. Oyo State House of Assembly & 17 Ors (2006) 16 NWLR (Pt.1006) 608 and unreported case of Hon. Mike Balonwu & 5 Ors. v. Mr. Peter Obi (Governor of Anambra State) & Anor. – Appeal No. CA/E/3/2007 delivered on 9/2/2007. Now reported in (2007) 5 NWLR (Pt.l028) 488. Learned senior counsel submitted that the instant case is on all fours with the two decisions of this court, and the affirmation of the decision of the ADELEKE or LADOJA’S case by the Supreme Court. That these cases have answered the questions raised in issue’s 1 and 2. In the brief, learned senior counsel citing the provisions of S.188 (10) of the 1999 Constitution submitted that the preceding sections to subsection 10 of section 188 spelt out what has to be done by the House of Assembly panel set up by the Chief Judge in matters relating to the impeachment of the Governor or Deputy Governor of a state. That the appellant’s case is that the provisions of section 188 (5) and (6) of the Constitution have not been complied with. It is contended that the gravamen of the complaint is that the persons appointed by the Chief Judge ought not have been appointed having regard to the qualification set out in section 188 (5) and secondly that there was no hearing of the allegations contained in the impeachment notice and that the appellant was not invited to defend himself before the investigation panel. Learned senior counsel examined and reviewed the cases of Balarabe Musa v. Auta Hamza & 6 Ors (1982) 3 NCLR 229 and Abaribe v. Speaker, Abia State House of Assembly & Ors (2002) 14 NWLR (Pt.788) 466 (relied upon by the trial Judge) and submitted that the decision in Abaribe’s case (supra) is a clear pointer that there are circumstances and situations in which the court would assume jurisdiction notwithstanding, the provision in section 188 of the Constitution.

Relying on the case of Ekpo v. Calabar Local Government (1993) 3 NWLR (Pt. 281) p. 324, learned senior counsel urged this court to hold that the trial court was in error in declining jurisdiction to entertain the appellant’s complaint.

The second issue formulated by the appellant is whether in view of Section 308 of the Constitution, the 2nd respondent who was the Deputy Governor enjoys immunity from legal proceedings. It is submitted that there is nothing in the statement of claim where any allegation of wrong doing was made against the 2nd respondent.

That he was sued merely in his official capacity as a nominal defendant. That the only reason why he is made a party is that he be bound by any judgment made by the court.

On the third issue, learned senior counsel for the appellant submitted that the Chief Judge in exercising the powers vested in him under section 188 (5) of the Constitution was not exercising a judicial function and that his action can be challenged if the persons appointed by him ought not to have been appointed.

On the fourth issue, it is submitted by the learned senior counsel that surely it cannot be the intention of the Constitution that in a case like the instant one, where there are defendants and the State Court is the competent court of jurisdiction in respect of the subject matter and the case the plaintiff has to sue the 10 defendants in the High Court, whilst he has to bring the action against the 11th defendant in the Federal High Court. That was not the purpose for which section 251 of the Constitution was enacted.

Learned senior counsel has now drawn our attention to exhibit A on which this court order was sought on 8/2/2007 to the effect that the court should exercise its powers to hear and determine the suit as constituted in the High Court of Bayelsa State by construing the said document. He urged us to discountenance an earlier deposition of the 10th respondent that the exhibit was a forgery. He contended that the objection now being raised is belated and afterthought as none of the respondents had raised this allegation when they were served. He submitted that the instant case is a proper case where this court can exercise its powers under section 16 of the Court of Appeal Act to determine the appeal rather than remitting it to the lower court for determination. He conceded that Adeleke or Ladoja’s case (supra) were commenced by originating summons, but that in none of the case can one find that section 16 is only applicable to where action was commenced by originating summons.

That the section cannot be foreclosed. He argued that appellant filed and served his writ of summons and statement of claim on the respondents who only filed memorandum of appearance but failed to file any defence until when time to file their defence elapsed and nothing was done. When the learned counsel for the 2nd respondent raised an objection to this line of argument proffered by the learned senior counsel, he conceded that since the counsel for the 2nd respondent did not oppose the application of 8/2/2007, he would only be given the opportunity to address the issue. That it was on the strength of this, the court considered appellant’s application of 8/2/2007. Continuing his submission, learned senior counsel cited the cases of Jadesimi v. Okotie-Eboh (No.2) (1986) 1 NWLR (Pt.16) 264; Okoya v. Santili (1990) 2 NWLR (Pt.l31) p. 172 at 207; Union Bank Ltd. v. Fajebe Foods (1994)5 NWLR (Pt. 344) at p. 345. Referring further to exhibit A, learned counsel contended that nothing in that exhibit shows when hearing notice was served on the appellant. He was neither heard nor given opportunity of getting a counsel of his choice to represent him. Referring to page 2 of the Report, learned senior counsel has contended that the decision to impeach the appellant was based on the interim report of the panel.

That on the face of exhibit A, it is clear that there is a breach of the right of the appellant to warrant setting aside his impeachment based on the documentary evidence before this court. Reference was made to the case of Adeyemi v. Ikeoluwa (1993) 8 NWLR (Pt.309) 27 at 41. That from the decided cases, the court should make consequential order reinstating the appellant as the Governor of Bayelsa State.

Learned senior counsel for the 1st and 3rd respondents referred to their brief filed on 22/2/2007. Having adopted same, he raised a preliminary point which he extracted from a counter-affidavit of Elder Kuro George, a Clerk of the Bayelsa State House of Assembly in which he alleged that exhibit A which did not emanate from his office, and bears no signature of his, was a forgery. He denied also, that he certified exhibit BYHA 1. Learned senior counsel has therefore asked for full investigation into this document that was criminally introduced. Learned senior counsel has submitted that since this action was not commenced by originating summons, therefore the cases of ADELEKE and OBI (supra) do not apply to the facts of the present case. He contended that the cases of BALARABE MUSA and ABARIBE still remain good authorities to be followed.

Learned senior counsel, however, made some submissions from the brief of argument. He argued the three issues presented for determination, one after the other. On the first issue, it is the submission of the 1st and 3rd respondents that having regard to the provisions of section 188 (10) of the 1999 Constitution, the lower court has no jurisdiction to hear and determine the case of the appellant. It is submitted that the issue of jurisdiction of courts in adjudicating on the claims of a party is very fundamental to our jurisprudence. That it has been decided on a plethora of cases that it is the plaintiff’s claims that determine jurisdiction of a court. Reliance was placed on the cases of Anason Ibeto Int’l Limited v. Vimex Imp-Exp (2001) 10 NWLR (Pt.720) p. 224; Soyanwo v. Akinyemi (2001) 8 NWLR (Pt.714) p. 95 at 116 Ekpo v. Calabar Local Government (supra). That the entire provisions of Section 11 of the Decree considered in this case are the same with section 188 of the Constitution. That the coul1 went on to hold that the object of section 11(10) of the Decree (Section 188(10)) of the Constitution is to oust the jurisdiction of the court in respect of the proceedings of the Local Government Councilor any matter relating thereto.

On his part, the learned senior counsel for the 2nd respondent, Tayo Oyetibo, SAN, identified his brief filed on 2/2/2007. He associated himself entirely with the allegation made by the 1st and 3rd respondents that exhibit A was a forgery. That the court has a reason to investigate the genuineness of the documents before it is made use of. He relied on the case of Shodipo v. Lemminkainen-OY (No.2) (1986) 1 NWLR (Pt.15) p. 220 at 238. However arguing the appeal, he adopted and relied on the 2nd respondent’s brief. He submitted that the case of Tinubu v. I.M.B. Securities Plc (2001) 16 NWLR (Pt.740) 670 at 672 is still a good decision. He contended that most of the reliefs sought in paragraphs 5, 8, 9 and 11 of the writ were targeted against the 2nd respondent and as a sitting Governor, his immunities are still intact. He argued that the appellant in his application of 8/2/2007 sought leave of this court to amend the relief set out on page 118 of the Record of Appeal but till date, no such amendment has been made after the application. The reason is that the briefs have been settled. Learned counsel contended that appellant’s brief was filed since 19/7/2006 whereas the application was filed on 21/12/2006. It is submitted that the appellant needed leave of this court to amend. That the court and the parties are bound by the reliefs sought in the motion paper. That up till now, no amended notice of appeal is before the court. He has urged that this appeal can only be confined to the reliefs originally sought on page 118 of the Record. Reliance was placed on the cases of Government of Gongola State v. Abba Tukur (1989)4 NWLR (Pt.117) 592 at 693: Commissioner for Works, Benue v. Devcon Construction Co. Ltd. (1988) 3 NWLR (Pt.83) 407 at 421.

Learned senior counsel submitted that if the court is mindful of considering exhibit A, two alternatives are open to it on the authority of Igboho Local Govt. v. Boundary Settlement Com. (1988) 1 NWLR (Pt. 69) 189 at 191. These are either:

1. To grant the appellant leave as, in this case, to remit the case to the lower court for the determination of the case o to take place.
2. To grant the application for leave to hear the parties.

It is submitted that the invitation to parties to be heard was necessary. That it is a fundamental principle of justice that all the parties should be heard. In that case, to prove all the allegations made by the appellant, evidence will be required and that exhibit A which is tainted with illegality cannot be used as part of that evidence, because it is not part of the document from the record of appeal as it has not been formally received as further evidence in the appeal.

That assuming exhibit A is documentary evidence; it does not satisfy the appellant’s claims made in paragraphs 11-17 of the statement of claim which are germane to the complaint of impeachment. It will be highly speculative for the court to accept those allegations as facts proved in evidence and then act upon. Reliance was placed on the case of Kode v. Yussuf (2001)4 NWLR (Pt.703) 392 at 419.

Reference was made to the case of Enekwe v. Int. Merchant Bank (2006) 11-12 SC; (2006) 19 NWLR (Pt.l013) 146; Ndoma-Egba v. Gov. o.fCross River State (1991) 4 NWLR (Pt.188) 773 at 791. It is urged that the cases of Balarabe Musa (supra) and Abaribe are still good decisions to be followed.

Learned senior counsel for the 4th – 10th respondents, YUSUF ALI, SAN identified their brief of argument which was by leave of court deemed filed on 22/2/2007. He referred to the respondents’ notice of preliminary objection on pages 3-6 of the brief of argument. It is submitted that having regard to the declaratory reliefs sought by the appellant, he must proffer evidence to support his claim before he is entitled to the declarations. Reliance was placed on cases of Bello v. Eweka (1981)1 SC p. 101 at 102-103; Kokoro-Owo v. Ogunbambi (1993)8 NWLR (Pt.313) 627 at 637-638. It is further submitted that a thorough reading and understanding of the claims of the appellant, reveals that his complaint in this matter is limited to the provisions of subsections 5 and 6 of section 188 of 1999 Constitution. That where there are allegations of breaches of sections 188 (5) and (6) of the Constitution there must be evidence either oral or documentary before the trial court. If the appellant fails then there must be presumption of regularity under section 150 of the Evidence Act which will inure to the benefit of the respondent and will not save the removal of the appellant. It is submitted that the appellant failed woefully to proffer evidence of his illegal removal.

Learned senior counsel further adopted the submission of learned counsel for the 1st and 3rd respondents.

On exhibit A, learned senior counsel submitted that for the document to be admissible it must not only be pleaded but it must also be relevant. Reliance was placed on the case of Oyediran v. Alebiosll II (1992) 6 NWLR (Pt. 249) 550 at 559. It is submitted that exhibit A does not in any way prove that appellant was not given fair hearing or was not given opportunity of being represented by a counsel of his choice. That no case has been made by the appellant that S.188 (5) and (6) of the Constitution has been breached.

It is finally submitted that no common features in this case and LADOJA’s case, (supra). That in that case, there were ample evidence of irregularities. Lack of quorum of the members of the State Assembly was obvious. In OBI’S case, learned senior counsel contended the notice of impeachment was not served as required by law. That this is not the proper case to invoke section 16 of the Court of Appeal Act, 1976.

Learned counsel for the 11th respondent, PETER O. AFFEN Esq., identified his respondent’s brief of argument filed on 21/2/2007, but deemed filed on 22/7/2007. Having adopted the brief, he placed reliance on the authority of NEPA v. Edegbero & 16 Ors (2003) 9 WRN 1, and submitted that paragraphs (q), (r), (s) of Section 251 of 1999 Constitution reveals that the intention of the lawmakers was to take away from the jurisdiction of the State High Court and confer same exclusively on the Federal High Court actions in which the Federal Government or any of its agencies is a party.

It is contended that the lower court had held that the impeachment matter is a political matter and the only valid decision is that given by the House of Assembly, as the legislature. That none of the appellant’s nine grounds of appeal attacks or complains against the decision of the lower court. It is submitted that this court should consider the issue of jurisdiction on the basis of lower court’s decision that the impeachment is a political matter, which decision the appellant is content with. That the decision therefore stands whether rightly or wrongly for purposes of the appeal. Reliance was placed on the case of Nwabueze v. Okoye (1988) 4 NWLR (Pt.91) 664 at 679.

In his brief, 11th respondent having adopted the arguments canvassed under issue No.1 set out at pages 7-17 of the 2nd respondent’s brief, then urged this court to resolve the issue in the affirmative. He referred to the cases of Dalhatu v. 71lraki (2003) 42 D WRN 15, (2003) 15 NWLR (Pt.843) 310; Balarabe Musa v. Auta Hamza (1982)3 NCLR 229 at 230 and Abaribe v. Speaker Abia State House of Assembly (2002) 14 NWLR (Pt.788) 466.

On exhibit A, learned counsel has contended that it does not meet the mandatory requirements of Section III of the Evidence Act to allow its admissibility and consideration by this court. He referred to the cases of GTB Plc v. Tabik Investments (2005) 13 WLRN p. 37-38. It is urged that this appeal be dismissed.

T.J.O. OKPOKO, SAN for the appellant made brief response on point of law based on submission of the learned counsel for the respective respondents. On the allegation that exhibit A is a forgery, he submitted that this is a criminal charge which must be pleaded specifically and proved by the respondents. He contended that the respondents have waited for three months before raising this allegation which must be proved beyond reasonable doubt. He referred to Koiki & 2 Ors v. B.P Magnusson (2001) FWLR (Pt.63) p. 167, (1999) 8 NWLR (Pt.615) 492. He drew the court’s attention that the counter-affidavit in which this allegation was made was in respect of a motion by 2nd respondent for an order for stay of proceedings of this court which has been disposed of. He submitted that all the processes filed for the purpose of that application ought to be discountenanced. He referred to Akhiwu v. The Principal Lotteries Officer Midwestern State & Anor (1972) 1 All NLR (Pt.1) p. 229. On the exhibit A, learned senior counsel submitted that the document was pleaded in paragraphs 11-25 of the statement of claim and there was notice to produce same.

Before I go on to consider the issues raised by the parties, I shall first of all deal briefly with the preliminary objections raised by counsel for the respondents in this appeal. In appellant’s reply brief, some of these objections were dealt with. First, the preliminary objection of the 4th to 10th respondents.

The 4th-10th respondents’ grounds of objection are that:

“1. The grounds did not in any way relate to the ruling appealed against.

2. The grounds did not arise from the ruling nor related to it.”

To my mind, the two grounds of objection as couched is quite misleading. The court is always observant of two things in an appeal. First, whether the issues raised are covered by the grounds of appeal; secondly, whether the issues raised do not specifically make reference to the grounds of appeal. The case of Falola v. Union Bank of Nigeria Plc (2005) 7 NWLR (Pt.924) 405 relates to issues being argued that are not related to the grounds of appeal. In the appellant’s brief, the only complaint that could be raised is that there is no specific reference to the grounds of appeal in the issues. It is clear from a number of decisions of the apex court and this court that whilst it is desirable to do so, there is no such legal requirement that a brief of argument will be fatal for not doing so. In the unreported case of Adegoke v. Savannah Bank Appeal No: CA/L/399/96, observations of O. E. AYOOLA, JCA (as he then was) is instructive. He observed as follows:

“Learned counsel for the plaintiff, Chief Afe Babalola SAN, took the preliminary point in relation to the issues formulated by the defendant that the defendant should have stated to which grounds of appeal the issues related. It, no doubt, helps counsel and the court easily to see how the issues for determination arise from the grounds of appeal if the grounds to which each of the issues relates are specified in the brief. Beyond stating that it is desirable that they should be so stated, I do not think there will be justification, as our rules stand at present, to say that failure so to state amounts to a defect in the brief or should lead to the striking out of the issues. Order 6 rule 3 of the Court of Appeal Rules which prescribe the form and contents of a brief did not go on to provide that the grounds to which issues relate should be specified in the brief.”

In the course of hearing this appeal, learned Senior Advocate, Prof. A. B. Kasunmu clearly showed the court that issue 1 is covered by grounds 1-6 of the grounds of appeal; issue 2 is covered by ground 8 of the grounds of appeal; issue 3 is covered by ground 7 and issue 4 by ground 9.

Learned senior counsel for the 4th-10th respondents has not shown that the issues raised are at variance with grounds of appeal.

As to the objection that ground 5 be struck out for failure to state the Particulars, I agree with the learned counsel for the appellant that the particulars are subsumed in that ground of appeal.

Now to recapitulate the background facts of this case. The appellant was the former Executive Governor of Bayelsa State whilst the 2nd respondent was then his Deputy. In the month of December 2005, the appellant was impeached and removed from office of the Governor of Bayelsa State, whilst 2nd respondent was sworn-in as the Governor of the State. The impeachment process was commenced by the transmission by the 3rd respondent of the impeachment notice to the appellant as well as the 1st respondent.

The 1st respondent then appointed the 4th-10th respondents as the Chairman and members of the panel to investigate the allegations complained in the impeachment notice, the 4th respondent being the Chairman of the panel. The panel was inaugurated on 5/12/2005.

On 9/12/2005 the appellant was removed from office by the House of Assembly and arrested by the 11th respondent. The appellant alleged that he raised objections to the membership of the panel but that the 1st respondent did not respond thereto before his removal from office. Hence he instituted the present action in the court below.

Now to the issues. To my mind the most apt and appropriate issues which call for determination in this case are those postulated by the appellant and the 2nd-10th respondents. Combination of these issues extracted from these briefs can be presented in this order:

“1. Whether the jurisdiction of the court is excluded from inquiries into allegations or complaint of noncompliance with any or all of the provisions of section 188 of the Constitution in relation to proceedings for impeachment of the Governor of a State having regard to provisions of section 188 (10) of the 1999 Constitution: Grounds 1, 2, 3, 4, 6.

2. Whether the court has jurisdiction to entertain an action challenging the exercise of the Chief Judge of a State of his power under section 188 (5) of the 1999 Constitution of appointment of the panel to investigate the allegations contained in an impeachment notice issued under section 188(2) of the Constitution by the House of Assembly of a state: Grounds 5, 8.
3. Whether having regard to the reliefs sought by the plaintiff against the 2nd defendant, the learned trial Judge was right in holding that the 2nd defendant could not be sued or made a party to the plaintiff’s action having regard to the provisions of section 308 of the Constitution: Ground 7.
4. Whether the learned trial Judge was right in holding that the state court had no jurisdiction in respect of the claims made against the 11th defendant because the 11th defendant was an agent of the Federal Government having been posted to Bayelsa State by the Inspector General of Police and matters being an item (45) on the Exclusive Legislative List in the Second Schedule to the 1999 Constitution: Ground 9.”

There have been developments, since the filing of the appellant’s brief of argument on 19/7/2006. His counsel had on his behalf filed a motion to amend the relief he had earlier on set out on page 118 of the record of appeal. He sought leave of this court to amend the reliefs. I must observe no amendment has been made. Hence the issues formulated above are from the appellant’s brief of 19/7/2006. His initial relief set out in paragraph 118 of the Record of Appeal remains intact. I shall come to this issue anon in the course of consideration of this appeal.

I will now consider the issues. The first issue is all about jurisdiction of the court. The issue of jurisdiction of court in adjudicating on the claims of a party is very fundamental to our jurisprudence. In the instant case, it is all about this very important constitutional matter bordering on interpretation of section 188 of the 1999 Constitution of the Federal Republic of Nigeria in respect of impeachment of a Governor or his Deputy. When the court interprets a provision of the Constitution, it has a duty to ensure that the intendments of the Constitution are preserved. See Abaribe v. The Speaker, Abia State House of Assembly (2002) 14 NWLR (Pt. 788) 466.

In determining whether a court has jurisdiction to entertain an action or not, it is the plaintiff’s claims that determine the jurisdiction of court. See Adeyemi v. Opeyori (1976) 9-10 SC 31. The question is, regarding the claims that have been submitted for adjudication before the lower court by the appellant, could that court have granted the reliefs sought on the face of the claims of the appellant? It is the submissions of all the respondents that having regard to the provisions of section 188(10) of the 1999 Constitution, the lower court has no jurisdiction to hear and determine the case of the appellant.

Section 188 (10) of the Constitution provides as follows: “No proceedings or determination of the panel of the House of Assembly or any matter relating to such proceedings or determination shall be entertained or questioned in any court.”

The appellant’s case is that the provisions of sections 188 (5) and (6) of the 1999 Constitution have not been complied with. Put straight, the gravamen of the complaint is that the persons appointed by the Chief Judge ought not to have been appointed having regard to the qualification set out in section 188 (5). Secondly, appellant also complained that there was NO HEARING of the allegations contained in the impeachment notice and that the plaintiff was NOT INVITED to DEFEND himself before the investigation panel. (emphasis mine).

Reliance was placed by the trial Judge on two decisions of this court, namely, Balarabe Musa v. Auta Hamza & 6 Ors (supra) and Abaribe v. Speaker, Abia State House of Assembly & Ors (supra).

My understanding of BALARABE MUSA’S case is this. That case was interpreting and giving effect to the Impeachment Clause in Section 170 (10) of the 1979 Constitution. Although the objective of that section is the same as Section 188 (10) of the 1999 Constitution, there are significant changes in the provisions of the two sections. I note them as follows: Section 170 (5) 1979 Constitution as opposed to section 188 (5) of the 1999 Constitution.

Under Section 170 (5), the Panel to investigate is nominated by the Speaker of the House of Assembly which nomination is approved by the House of Assembly. However, under the provisions of Section 188 (5), the appointment of the Investigating Panel is completely removed from the House and vested in an independent person, to wit; the Chief Judge of the State. Section 170(10) of the 1979 Constitution on which BALARABE MUSA’S case was based provides as follows:

“No proceedings or determination of the Committee or of House of Assembly or any matter relating thereto hall be entertained or questioned in any court.”

The appellant’s complaint on the impeachment proceedings in the BALARABE MUSA’S case are as follows:

“Conditions precedents to the investigation of the allegation against the applicant have not been complied with and on the same premise the respondents have no jurisdiction to embark on an investigation pursuant to section 170 of the Constitution of the Federal Republic of Nigeria, 1979.

Particulars

(1) The notice of allegations of misconduct now sought to be investigated was not signed by any member of Kaduna State House of Assembly.

Detailed particulars of alleged gross misconduct was not given in the Notice of allegations of misconduct stipulated by Section 170 (2)(b) of the Constitution.

The allegations contained in the said notice were not investigated by the respondents within the time limit stipulated by Section 170(6) of the Constitution.”

In declining jurisdiction to look into this complaint, the Court of Appeal in the lead judgment delivered by Ademola, J CA observed as follows:

“… the obvious end that Section 170 of the Constitution was designed to serve is that the Governor or his Deputy could only be removed by the act and doings of the legislature and subsection (10) of it is put in to stop any interference with any proceedings in the House or …. any determination by the House or Committee. It follows from the premise of this court that no court can entertain any proceedings or question the determination of the House Committee. It is a political matter for court to enter into …”

However, KARIBI-WHYTE, JCA (as he then was) in his contribution at page 25 of the report had this to say:

“We have been invited to determine whether the preconditions for the exercise of the jurisdiction have

been satisfied, and if they have not, to exercise our inherent powers under section 6 (6) of the Constitution.

I decline to express opinion on our inherent powers because in my view it does not arise.”

In the case of ABARIBE (supra), the Abia House of Assembly commenced impeachment proceedings against the Deputy who then went to court to seek the enforcement of his fundamental right because the House decided to send the allegation against him for investigation before the period given to him to reply. The trial court raised the issue of jurisdiction suo motu and held that it had no jurisdiction by virtue of section 188 (10) of the Constitution of 1999.

On appeal, this court affirmed the decision of the trial Court. The question of non-compliance with subsections 1-9 did not arise in both of these cases.

In both of these cases the impeachment proceedings were started by the State Houses of Assembly with the Speakers playing the roles given them by the Constitution. Unlike the present case in which the Speaker had no hand in the impeachment proceedings despite the mandatory roles given to him by Section 188 (2) of the 1999 Constitution.

I now have cause to resort to the case of Ekpo v. Calabar Local Government Council (1993) 3 NWLR (Pt.281) p.324. At page 324 of the report, the Court of Appeal was called upon to look at a provision of a statute, section 11 of the Local Government (Basic Constitutional and Transitional Provisions) Decree No. 15 of 1989. It has identical words with section 188 of the 1999 Constitution. The plaintiff in that case complained about non-compliance with provisions of some of the subsections of section 11 of the Decree to which the defendant filed preliminary objections challenging the jurisdiction of the court based on section 11 (10) which ousts the jurisdiction of the court.

UWAIFO, JCA (as he then was) reacting to the submission of counsel, in his lead judgment observed on pages 337-338 paragraphs D-F of the report as follows:

“Section 11 (10) above is an ouster clause. In interpreting it, the whole section must be taken into account. This will assist in understanding the circumstances in which the ouster comes into play. I cannot conceive that a subsection of a section of a statute standing alone can be read with full comprehension. A subsection will usually have a connecting relationship with other subsections of a section. A result contemplated by one subsection may not have occurred at all upon a true consideration of the available facts if other subsections create cel1ain conditions for the result.

Not to recognise this is not only to read that particular subsection in the abstract but also to disregard the preceding or subsequent conditions for a better and cohesive understanding of the intention of the law giver.

Hence a section of a statute having a subsection must be read as a whole and related sections must be read together. See Aqua Ltd. v. Ondo State Sports Council (1988) 4 NWLR (Pt.91) 622 at 641-642; Tukur v. Government of Gongola State (1989) 4 NWLR (Pt. 117) 592 at 579; Salami v. Chairman, L.E.D.B. (1989) 5 NWLR (Pt.l23) 539 at 550-551.”

In his own contribution, AKINTAN, JCA (as he then was) at page 347 stated as follows:

“If the above quoted subsection 10 is given literal effect, it means that the proceedings or determination of the panel or Local Government Councilor any matter relating thereto cannot be reviewed by the Courts of Law, no matter how wrong in law or otherwise. In other words, they were not to be removed by certiorari. This of course is not the position in law. The stand of the courts in such cases is stated by Denning, M.R. in Taylor v. National Assistance Board (1957) p. 101 at 111 (1957) All ER 183 as follows:

“The remedy (of ouster clause) is not excluded by the fact that the determination of the Board is by statute made “final”. Parliament only gives the impression of finality to the decision of the Board on the condition that they are reached in accordance with the law and the Queen’s Courts can issue a declaration to see that condition is fulfilied.”

In Adeleke v. Oyo State House of Assembly (supra) the case of Jimoh v. Olawoye (2003) 10 NWLR (Pt.828) 307 was considered.

In that case, the Court of Appeal in considering the removal of a Chairman of a Local Government Council in an identical provision as section 188 of the 1999 Constitution, followed EKPO’S case to hold that before ouster clause can apply, the preconditions in subsections 1-9 of section 26 of the Kwara State Local Government Laws, 1999 must be satisfied.

Section 188(10) cannot be read in isolation from subsections 1-9. These subsections are not meant to guide the House of Assembly in impeachment proceedings only. They cannot be totally ignored in impeachment proceedings. No court of law can close its eyes to the infringement of the Constitution. The court is the primary custodian of Constitution. It must guard jealously, all the provisions of the Constitution. If any arm of the government or legislature and the court itself acts unconstitutionally, the court has inherent power under section 6(6) of the 1999 Constitution to intervene. Section 6(6) of the 1999 Constitution reads:

“The judicial powers vested in accordance with the foregoing provisions of this section:

(a) shall extend, notwithstanding anything to the contrary in the Constitution, to all inherent powers and sanctions of a court of law;

(b) shall extend to all matters between persons or between government or authority and to any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person.”

I am of the firm view that the trial court had some questions bordering the complaints of the appellant to consider. He was wrong in declining jurisdiction. He had jurisdiction to examine the appellant’s claims in the light of section 188 subsections 1-9 of the 1999 Constitution and if he was not satisfied that impeachment proceedings were instituted in compliance thereof, he has the jurisdiction to intervene and to ensure due compliance. However, on the other hand, if there was compliance with pre-impeachment process then what happened thereafter become the internal affairs of the State House of Assembly. He would then have no jurisdiction to intervene.

The second issue formulated above has to do with the question of immunity of a State Chief Judge in the performance of his function in the impeachment exercise under Section 188 (5) of the 1999 Constitution.

I am of the view that the Chief Judge, in exercising the powers vested in him under Section 188 (5) of the Constitution was not exercising strictly a judicial function. His action can be challenged if the persons appointed by him ought not to have been appointed.

For the learned trial Judge to hold that the Chief Judge was performing a constitutional duty can mean no more than that, it is the Constitution that imposes the duty to appoint the members of the investigation panel consequent upon a reference to him by the Speaker. I do not see how this can clothe the Chief Judge with a constitutional immunity in the sense that the expression is used by the trial Judge. With due respect, I do not agree with the learned trial Judge the suggestion that whether the Chief Judge acts outside, the provisions of section 188(5) of the constitution, his actions cannot be challenged. Section 188(10) cannot be used to oust the jurisdiction of the court if the actions of the Chief Judge contravene the provisions of section 188(5).

I will now consider the third issue which deals with the question of immunity of the 2nd respondent in view of Section 308 of the 1999 Constitution.

In holding that the 2nd respondent is constitutionally immuned from legal proceedings having regard to section 308 of the Constitution, the trial Judge turned to relief 10 of the statement of claim. In this relief, the appellant prays for an order of injunction restraining the 2nd respondent from parading himself as or acting in the capacity of the substantive Governor of Bayelsa State in place of the appellant to whom the 2nd respondent is the Deputy Governor.

It was held that from this relief, the 2nd respondent was sued in his personal capacity. He then struck out the suit against him.

I agree with the learned senior advocate for the appellant that this is an issue that can only be resolved by reference to the averment in the statement of claim and not necessarily by reference to the reliefs being sought against the 2nd respondent. He was not involved in the impeachment process and there is nothing in the appellant’s statement of claim linking him with any breach of the provisions of the Constitution. Pleadings show he is only a beneficiary of the unlawful process of impeachment which the appellant is challenging, 2nd respondent is a party who will be bound by any decision made by the court. He is therefore no more than a passive defendant in the case against whom injunction is being sought. He is no more than a nominal party to the case.

The fourth issue is whether the Commissioner of Police is a Federal Agent (having regard to the claims made by the appellant) against whom the State High Court has no jurisdiction to entertain the suit.

It is not in doubt that the police matters come under the Exclusive Legislative List No. 45 in the 2nd Schedule to the 1999 Constitution. Section 251 of the Constitution provides that actions against the Federal Government or Agencies are only maintainable at the Federal High Court. I pose a question: That is, whether or not the constitutional provision should only apply where the Federal Government Agency is the principal and or only party sued? I also share the reasoning of the learned senior counsel for the appellant that it does make sense if the constitutional provision is so limited where an action is sought against any Federal Agency or the Federal Government as the main and or only defendant the action must be commenced at the Federal High Court. I have seen an absurd and ridiculous situation to apply the constitutional limitation to where the Federal Government and or any of its agencies is only a defendant among numerous defendants being sued in respect of matters in which the State High Court is vested with jurisdiction. This cannot be said to be the intention of our Constitution. In the instant case, there are eleven defendants and the State High Court is the competent court with jurisdiction in respect of the subject matter. Should the plaintiff sue the 10 defendants in the State High Court whilst he has to bring the action against the 11th defendant in the Federal High Court? I do not think that that is the purpose for which section 251 of the Constitution was enacted.

With due respect to the learned counsel for the appellant, I do not agree with him that the powers of the Governor to issue lawful directives to the State Commissioner of Police will whittle down the status of his office as a Federal Agent. To subject a State Commissioner of Police to the directives of the State Governor (the Chief Security Officer of a State) is for security purposes. The Commissioner of Police (by virtue of the proviso to Section 215(4) may, before carrying out directions given to him by the Governor of a State, request that the matter be referred to the President or Minister for further directions, that does not stop the appellant to join him in this action. However, there is no need to ventilate the complaints against him in a separate action in the Federal High Court.

Having held that the learned trial Judge has jurisdiction to hear the appellant’s complaints as ventilated in his writ of summons and the statement of claim, it is left for me to decide whether I shall send the case back to the Bayelsa State High Court for fresh trial.

The appellant has no doubt urged me to decide the case. In his application filed on 21/12/2006 to which I have earlier alluded in the course of this judgment, appellant’s motion reads thus:

“TAKE NOTICE that at the hearing of the appeal the appellant shall seek leave of this Honourable Court to amend the relief set out on page 118 of the Record of Appeal to read the following:

(i) An order that this Honourable Court allow the appeal and rather than remitting the case back to

the lower court to exercise powers vested in it under section 16 of the Court of Appeal Act and determine the Appellant’s case as constituted as if this Honourable Court is sitting as the trial court.

(ii) An order of this Honourable court exercising its powers to hear and determine the suit as constituted in the High Court of Bayelsa State by construing the attached documents – Exhibit A in support of this application.”

On 8/2/2007, in my considered ruling allowing the application I had this to say:

“I am yet to come across any such law which does not allow a Court to grant leave to amend in order to regularise or remedy claim in a writ of summons or other court processes so as to do substantial justice. This is the only way the court will be in a position to determine the real questions or issues raised by or pending in the proceedings.”

(italics for emphasis)

Facts and circumstances of this matter as deposed to in the affidavit in support of the application weighed heavily in our granting the application. The appellant was granted leave to amend. Parties have been given ample opportunity to address this court on 22/2/2007. We have carefully presented their view above.

The original RELIEF SOUGHT by the appellant at P. 118 of the Record of Appeal in his notice and grounds of appeal reads:

“To allow the appeal and remit the case for trial before another Judge of the Yenagoa High Court Bayelsa.”

In his brief of argument filed on 19/7/2006, before the application of 21/12/2006 at page 25 the appellant prayed thus:

“For the reasons given above, we submit that the trial Judge was wrong to have struck out the plaintiff’s case. We urge the court to set aside the decision of the trial Judge and to remit the case back for trial all its merit.”

(italics mine for emphasis)

It was on 22/2/2006, in response to the arguments of the learned senior counsel for the appellant, that the learned senior counsel for the 2nd and 4th-10th respondents particularly, and the 1st, 3rd and 11th respondents (associating themselves with the 2nd and 4th – 10th senior counsel) draws the attention of the said learned senior counsel for the appellant that he had sought from the court to use and construe exhibit A when it has not been introduced and admitted into the court. They also argued that the appellant having sought for the leave of the court to amend his relief but failed or neglected to amend it. They urged that I should discountenance any argument on exhibit E A as it was not paI1 of the documents in the record of Appeal.

I have taken a considerate view of this matter. The underlining weakness of the appellant argument stemmed from the facts that he failed to amend his relief in his notice and grounds of appeal and in his brief of argument although he was granted leave to do so.

At a trial, the plaintiff has the burden to prove the reliefs sought in the statement of claim to obtain judgment. It must be borne in mind also that the appellant is bound by the relief he seeks in his notice and grounds of appeal.

Appellant’s counsel’s prayer is to send back the case for trial. He made u-turn urging us to exercise power vested in this court under section 16 to decide the appeal by construing exhibit A but for reasons I have given, that is never to be. However, I am not mindful of the fact that the appellant filed an “Amended Notice of Appeal…” only on 26/2/2007 to which attention of court was drawn after this appeal was adjourned for judgment. I am of respectful view that this is not a motion seeking for the court’s discretionary power under Order 3(1) of the Court of Appeal Rules, 2002. The appellant has clearly demonstrated an intention to over-reach himself in the circumstance. I must therefore discountenance this amendment at this stage.

Learned senior counsel for the respondents have urged the court not to decide the case based on the pleadings of the appellant alone because this appeal has arisen only from the ruling on the preliminary objection on jurisdiction. This is not a proper case for this court to exercise its power under section 16 of the Court of Appeal Act, 1976. The appellants did not come to court by originating summons amply supported by copious affidavit of facts not disputed by the respondents. This case is not on all fours with the two cases of Adeleke v. Oyo State House of Assembly (supra) and Hon. Mike Balonwu & 5 Ors v. Mr. Peter Obi & Anor (supra). In the first case, the action had been commenced by originating summons and the evidence required to determine the case was already filed in the court and the main concern of the court was to interpret section 188 of the Constitution dealing with the removal of Governor or Deputy Governor from office as it affects Governor Ladoja. In the second case, the action was also commenced by originating summons and no evidence was required to interpret section 188(2) of the 1999 Constitution regarding the requirement of service of a notice of allegation of gross misconduct.

Consequently, this appeal only succeeds partly. I set aside the ruling of the learned trial Judge upholding the preliminary objection, dismissing the suit. I remit the case for expeditious trial before another Judge of the High Court of Bayelsa State. Clearly there is an urgent need to dispose of this matter as time is of the essence. I do not consider it necessary to make any order on costs in the circumstance of this case.

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Other Citations: (2007)LCN/2261(CA)