Chief Enyi Abaribe V. The Speaker, Abia State House of Assembly & Anor (2000)
LawGlobal-Hub Lead Judgment Report
PATS-ACHOLONU, J.C.A.
The appellant had applied to the High Court for leave to apply for enforcement of his rights (which he states were infringed upon) under the Fundamental Rights (Enforcement Procedure) Rules, and he sought the following reliefs:
“1. A declaration that the proceedings of the Abia State House of Assembly on Tuesday the 8th day of February, 2000 purporting to vote on whether or not to investigate the allegations made against the applicant (to impeach him from the office of the Deputy-Governor of Abia State) are illegal unconstitutional, null and void being a flagrant breach of the applicant’s right of fair hearing as guaranteed by section 36 of the 1979 Constitution of Nigeria and Article 7 African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, Cap. 10, Laws of the Federation of Nigeria.
- An order of court setting aside the said proceedings.
- An order of injunction restraining the respondents from taking further steps in the process of impeaching the applicant during the pendency of this proceeding.”
The ground upon which the reliefs are sought are the following:
(a) “Section 36 of the 1979 Constitution and Article 7 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, Cap. 10, Laws of the Federation of Nigeria guarantees the applicant a Fundamental Right to fair hearing as a citizen of both Nigeria and Africa.
(b) By section 188(3) of the 1999 Constitution when an impeachment notice on the holder of the office of the applicant is presented to the 1st respondent, the applicant has 14 days within which to offer a defence to the articles of impeachment before a vote can be taken as to whether or not tile allegations on the impeachment notice can be referred to a panel for investigation.
(c) By section 188(4) of the same Constitution if after considering the Impeachment Notice and the defence the 2nd respondents are not able to procure a 2/3rd majority of votes, the impeachment process collapses.
(d) The 1st respondent by a letter dated 28th January, 1999 notified the applicant of the pendency of impeachment notice against him attaching the said notice and requiring him in accordance with the Constitution to have his defence entered on or before the 11th of February, 2000.
(e) On Tuesday 8th February, 2000 being the 12th day of the presentation to the Speaker of the impeachment notice, without receiving the defence of the applicant, three days before his constitutionally allowed period of defence was to expire, the respondents took a vote to refer the impeachment notice for investigation in breach of section 188(3) and section 36 of the 1999 Constitution and the relevant section of the African Charter on Human and Peoples’ Right.
(f) Had the respondents exercised patience and received the defence of the applicant, they would not have voted the matter to go for investigation and the impeachment process would have collapsed.
(g) The respondents have by the above conduct in breach of the Constitution prejudiced the person and office of the applicant.
In the court below, the presiding Judge stated that the matter before him was not the usual run of the mill case and invited the Abia State Attorney-General and Udechukwu, SAN to address him on the issue of jurisdiction of the court having regards to section 188(10) of the Constitution. After addresses by counsel, in his ruling the court below held as follows:
“In other words, that S.188(10) does not permit proceedings brought under S.46 of the Constitution. This is so because, it appears to me, that the issue of the applicant’s Fundamental Rights cannot be isolated from the process under S.188 of the Constitution.
In other words, the applicant’s Fundamental Rights cannot be enforced without any encroachment into the process which caused the breach, which is the impeachment process, over which the court has no jurisdiction. And so, if a court cannot effectively, in a case before it, determine the issues on which it has jurisdiction without engaging in the determination of issues in respect of which it has no jurisdiction, the situation is as if the court has no jurisdiction and should decline jurisdiction ab initio. See Nwafia v. Ububa (1966) NMLR 219. It is therefore my view that no distinction could be drawn as argued by learned Senator between proceedings of the State House of Assembly under S.188 and the issue of fair hearing under S.36 because of the provisions of S.46(2) thereof. I therefore hold that this case is indistinguishable from the case of Balarabe Musa (supra) irrespective of the procedure by which it was brought. And I am bound to follow that decision.
Impeachment process is a political exercise and the court ought to be wary in interfering with political exercises.”
The court below therefore struck out the application. Peeved by the refusal of the lower court to entertain the application on the grounds of lack of jurisdiction the appellant decided to appeal to this court and filed 4 grounds of appeal from which his counsel distilled one issue for determination which is whether or not the court below was right when it held it has no jurisdiction to entertain the appellant’s complaints.
The matter which gave rise to the institution of proceedings in the High Court by the appellant is the attempt by the Abia State House of Assembly to commence impeachment proceedings against him. It is to be observed that the appellant had not yet obtained the leave of the court to apply for enforcement of his fundamental rights.
It has always been the law that the issue of jurisdiction being a threshold matter could be taken by the court or any of the parties at any stage of the proceedings. The appellant’s counsel in pursuit of the case submits there is a clear violation of section 36 of the Constitution of Nigeria and Article 7 of the African Charter on Human and Peoples’ Rights. When the court is faced with an issue of ouster clause it must scrupulously examine it to ascertain whether the party invoking it has acted in accordance with the law establishing that ouster clause which is to be used as an umbrella not a shield. The complaint of the appellant is that there is a fundamental departure by the respondents from the laid down procedure to be followed in matter relating to impeachment activities. Where the House of Assembly on which the Constitution has vested the sole right of determining matter relating to impeachment, the appellant submits that the respondents ought generally to follow strictly the laid down procedure. What are the exact provisions of the Constitution here.
section 188(3) states:-
- “Within fourteen days of the presentation of the notice to the Speaker of the House of Assembly (whether or not any statement was made by the holder of the office in reply to the allegation contained in the notice), the House of Assembly shall resolve by motion, without any debate whether or not the allegation shall be investigated.
- A motion of the House of Assembly that the allegation be investigated shall not be declared as having been passed unless it is supported by the votes of not less than two-thirds majority of all the members of the House of Assembly.”
188(10) “No proceedings or determinations of the panel or of the House of Assembly or any matter relating to such proceedings or determination shall be entertained or questioned in any court.”
In his submission the learned counsel for the appellant referred to the over pervading horizon of the African Charter on Peoples’ Rights. I am well aware of the latest Supreme Court judgment to the effect that the African Charter on Human and Peoples’ Rights is overwhelmingly superior to a law but the matter before the court below sought to be agitated falls squarely within the province of Nigeria Constitution in which section 188(10) is prescribing the incompetence of the courts in country to adjudicate in matters relating to impeachment proceedings. No one doubts that the African Charter on Human and Peoples’ Rights has the supervening features which are superior to a Municipal Law. Does it apply to a matter relating to impeachment proceedings? In this case the court is once again called to construe the true meaning of section 188(10) aforesaid. In this sense, I am emboldened to rely on the immortal words of Udoma, JSC in Nafiu Rabiu v The State (1980) 8-11 SC p.130 at 148-149, (1981) NCLR 293 at 326 where he laid the guiding principles:
“… the function of the Constitution is to establish a framework and principles of government, broad and general in terms, intended to apply to the varying conditions which the development of our several communities must involve, ours being a plural, dynamic society, and therefore, mere technical rules of interpretation of statutes are to some extent inadmissible in a way so as to defeat the principles of government enshrined in the Constitution. And where the question is whether the Constitution has used an expression in the wider or in the narrower sense, in my view, this court should whenever possible, and in response to the demands of justice, lean to the broader interpretation, unless there is something in the or in the rest of the Constitution to indicate that the narrower interpretation will best carry out the objects and purposes of the Constitution.
My Lords, it is my view that the approach of this court to the construction of the Constitution should be, and so it has been one of liberalism, probably a variation on the theme of the general maxim ut res magis valeat quam pereat. I do not conceive it to be the duty of this court so to construe any of the provisions of the Constitution as to defeat the obvious ends the Constitution was designed to serve where another construction equally in accord and consistent with the words and sense of such provisions will serve to enforce and protect such ends.”
Broadly speaking, the issue bothers on the powers of this court to intervene in the domestic affairs of the House of Assembly. It is the duty of the judiciary to keep in check the excesses of the executive and overbearing and abrasive tendencies of the legislature so that each of the 3 components of the Government confines itself within the province allocated or prescribed for it by the Constitution. In trying to interprete the words of the Constitution, I am of the view that it should be understood that a constitution is not a mere common legal document. It is essentially a document relating to and regulating the affairs of the nation state and stating the functions and powers of the different apparati of the Government as well as regulating the relationship between the citizen and the state. It equally makes provisions for the Rights of the citizen within the compass of the state. In so far as it concerns the issue of impeachment it is a political matter. However, the court at the same time may not close its eyes to serious injustice relating to the manner the impeachment procedure is being carried. That is to say it is within the province of the court to ensure strict adherent to the spirit of the Constitution for the endurance of a democratic regime. The court should not however attempt to assume for itself power it is never given by the Constitution to brazenly enter into the miasma of the political cauldron and have itself bloodied and thereby losing respect in its quest to play the legendary Don Quixote de la Manche. In its bid to embark on impeachment procedure, it is expected that the House of Assembly should not ride a rough shod of the prescription of the law. Beyond exercising its judicial powers as conferred on it by the Constitution to ensure the equilibrium in the distribution of functions of the organs of the government, the court should exercise utmost caution in invading the area that is prohibited by the Constitution. I cannot but quote here in extenso the ringing words of Adenekan Ademola, JCA when he said in the case of Alhaji Abdulkadir Balarabe Musa v. Auta Hamza (1983) 3 NCLR p.229 at 247.
“Finally, at a time like this let us remember the words of that great intellectual from the famous Harvard Law School who once sat as a member of the Supreme Court of America in a case which aroused much political emotion like this has done. Felix Frankfurter said in Baker v. Carr (1962) 369 US 186 thus:
“The court’s authority possessed neither of the purse nor the sword ultimately rests on sustained public confidence in its moral sanction. Such feeling must be nourished by the court’s complete detachment, in fact and in appearance, from political settlements.”
In this situation, as in others of like nature, appeal for relief does not belong here. Appeal must be to an informed, civically militant electorate. In a democratic society like ours, relief must come through an aroused popular conscience that sears the conscience of the people’s representatives. In any event there is nothing judicially more unseemly nor more self-defeating than for this court to make interrorem pronouncements, to indulge in mere rhetoric, sounding a word of promise to the ear, sure to be disappointing to the hope…”
It must be realised that in a matter relating to proceedings on impeachment the House of Assembly is exercising a judicial function. In the case of Minister of Home Affairs v. Fisher (1989) AC 319 at 329 states as follows:
“Constitution is a legal instrument giving rise amongst other things, to individual rights capable of enforcement in a court of law. Respect must be paid to the language which has been used and to the traditions and usages which has given meaning to that language. It is quite consistent with this, and with the recognition, that rules of interpretation may apply to take as a point of departure from the process of interpretation(sic) a recognition of the character and origin of the instrument, and to be guided by the principle of giving full recognition and effect to those fundamental rights and freedom with a statement of which the Constitution commences.”
I think it will be infradig for the courts in interpreting the words of the Constitution fail to preserve the intendment of the primary law.
The complaint of the applicant/appellant is that the respondents failed to adhere to the provisions of section 188(3) and (4) which prescribe the time frame for intimating the applicant and his answering to the charges or articles of impeachment before a vote was taken. It is the duty of this court to put a garb on these provisions. Section 188(10) it must he admitted is frighteningly all embracing, It seems to command the court on the face of it to keep clear in any matter relating to proceedings leading to impeachment question. Impeachment offence is a gross conduct which may mean a grave violation or breach of the Constitution or a misconduct of such a nature as amounts in the opinion of the House of Assembly to gross misconduct. (The italic is mine). The worrying aspect of this all-embracing provision seems to imply that the court may not even look into the issue as to whether the duly laid down procedure has been followed. In that case one can conceive of a hypothctical situation where a House of Assembly will throw caution to the wind and without thoroughly abiding by the words of the Constitution commences even without the prescribed notice of impeached proceedings. I say this because the appellant complained that the time frame for him to send a reply had not elapsed before the motion in the House that the allegation be investigated was moved in the House. In the case of Okoroafor v. The Miscellaneous Offences Tribunal (1995) 4 NWLR (Pt. 387) 59 at 78 – 79. I said:
“In the case before us, it cannot be doubted that the various agencies that are empowered by statute to put into effect the procedure leading to trial, frisked away the opportunity designed for the prosecution of such a case. In so doing they unwittingly flouted the necessary provisions that would preserve the jurisdiction to the tribunal.
As guardians of the rich tradition of jurisprudence which we have inherited and imbibed, we must make secure the authority of law as the servant of liberty, wisely and culturally conceived as the expression of the righteousness which would exalt the law and indirectly this country.
It is the eternal credit of the courts that it is the peculiar function of the independent judiciary comprising highly qualified legal experts burning and imbued with zeal to give final and authoritative interpretations to our Constitution and our Laws that we must as far as possible, give the framework and circumstances of our times, help to nuture a society that is governed by just laws.
There is no doubt in my mind that the employment of the word “shall” in the Special Tribunal (Miscellaneous Offences) (No.2) Amendment Decree and as reflected in Cap. 73 of the Laws of the Federal Republic of Nigeria shows that it is command of the legislature intended to be abided by all concerned in the administration of justice in that regard.
To answer the question posed, I would state that ouster clauses in Decree No.9 of 1991 will apply to take away the supervisory jurisdiction of the High Court of Lagos State only when an inferior tribunal abides strictly in its entirety to the prescription which gives it powers and where it does not seek to substitute its own procedure contrary to that laid down by statute as to make a trial conducted by it a nullity. In this case before us, there has been flagrant disobedience of the law of the land by the agencies authorised to effectuate it. Therefore neither the tribunal nor the prosecution can take shelter under the ouster clause.”
However, it must quickly be admitted here that the Abia State House of Assembly is indeed not an inferior tribunal but an equal to the judiciary or the court in the power sharing characteristic of a Federal Constitution where there is separation of powers. It and only it can determine what constitutes a gross misconduct or a conduct that will, lead to impeachment proceedings. I must confess that I look with trepidation the awesome and unregulated powers conferred by the ouster clause which seeks as it seems to me to emasculate the court from examining a case of non-compliance with the provisions of the Constitution where there is a violation.
In his brief, the learned counsel for the appellant submitted that section 188(10) of the Constitution does not avail the respondents and as ouster clause can only protect legal acts or acts done in conformity with the provision of the Constitution and relied on Nwosu v. Imo State Environmental Sanitation Authority (1990) 2 NWLR (Pt.135) P.688 at 733; Garba v. Federal Civil Service Commission (1988) 1 NWLR (Pt.71) p.449 and Wilson v. A-G., Bendel State (1985) 1 NWLR (Pt.4) p.572. There is a big difference between the issues or questions canvassed in these cases and the one before us. In this case, we are dealing with the apparent inviolable powers of the 2nd arm of the Government. Where the law prescribes a mode of doing certain things and prescribes the method or reaching a particular end but at the same time states the court lacks jurisdiction to enquire on any matter relating to the procedure adopted, there is paradox of unimaginable dimension. Can the court look into it?
The learned counsel for the appellant has referred to the superiority of the African Charter on Human and People’ Rights which has been incorporated into our organic law. This court and lately the Supreme Court held that the African Charter on Human and People’ Rights is superior to our municipal laws. However, the issue here is the incompetence of the court in adjudicating on any matter relating to impeachment proceedings. The respondents in their brief state that what the court should look into is the relief sought by the appellant in his application and submitted that that would determine the course of action of the court and in this case once the matter relates to impeachment proceedings the court has no jurisdiction. In the case of Senator Adesanya v. President of Nigeria (1981) 2 NCLR p.358 Fatayi Williams, CJN said:
“It is provided in section 267 that no civil or criminal proceedings can be instituted or continued against any person holding the office of the President of the Federal Republic of Nigeria, Vice-President, Governor of a State or Deputy-Governor during his period of office. Furthermore, there is provision that no proceedings or determination of the committee appointed to investigate allegations of misconduct made against the President or Vice-President, Governor or Deputy-Governor or any matter relating thereto shall be entertained in any court.”
What indeed are the limits of judicial process in this political area heavily mined? It is arguably a political matter which ever way one looks at it. This may explain why the courts are touchy about delving into the nuances of such matters. Professor Laurence Tribe said at p.215 of American Constitutional Laws Harvard University:
“Although the impeachment process has been used periodically since 1789 there has been no judicial attempt to define its limits. This is attributable in part to the constitutional language ostensibly consigning the issue of impeachment to the Legislative branch of Government and thus arguable barring judicial review of impeachment under the political question doctrine.”
Political question doctrine relates to those amorphous political issues which generally arise in political structure of parties or in the House of Assembly and which no court should try to get involved for fear of being smeared or appear to take sides.
Reference was made to the provision of section 46(1) of the Constitution of Nigeria which gives powers to the High Court to determine matters relating to Fundamental Rights to redress infractions of those lights. It must be said straight away that the operation of these provisions, in other words the jurisdiction conferred on the High Court is subject to other provisions of the Constitution. See section 46(2) of the Constitution. It is indeed tempting for a court to immerse itself unwittingly and irretrievably into this area of turbulent sea in other to do justice only to realise that it has entered into brackish water of no return.
At para. 179 of Vol.67 of Corpus Juris Secundum the learned authors write as follows on impeachment:
“The primary object of the remedy is to improve the public service by removal of the officer and not to punish the officer or to safeguard his interest. The Legislature in impeachment proceedings exercises judicial, not the legislative power conferred on it by the Constitution.”
At para. 181 of Vol. 67 p.621 the authors continue thus:
“The particularity required in an indictment need not be observed but the notice of the proceeding must be reasonable and opportunity must be afforded for hearing. The Legislative power of impeachment is not an arbitrary power but the authority ordinarily is final and the judgment of the Senate sitting as a court of impeachment cannot be called in question in any tribunal whatsoever except for lack of jurisdiction or excess of constitutional power.”
Impeachment is not a matter to be trivialised as it affects the reputation of an individual who might at one time or the other been held in high esteem before the fall from grace. The complaint is that since the Constitution states 14 days the Assembly should have waited till the end of that period. Attractive that argument appears, it ignores the fact that the Constitution says “within 14 days” of the presentation of the notice.” The interpretation of that phrase by the appellant’s counsel appears otiose and highly exaggerated. The respondents acted within the ambit of the law. The most important thing is whether if a panel is set up eventually has the opportunity of being heard.
In my view, the court below was light not to assume jurisdiction as the main relief relates to issue on impeachment proceedings. No useful purpose would have been served by assumption of jurisdiction at that stage only to backtrack in full force of the gale that would hereafter blow. In the final result, the appeal fails and is dismissed and the ruling of the court below is confirmed. I make no order as to cost.
Other Citations:(2000)LCN/0783(CA)
