Hon. Adedotun Akinmade & Ors V. Hon. Donaldson Abiodun Ajayi (2008)
LawGlobal-Hub Lead Judgment Report
KUMAI BAYANG AKAAHS, J.C.A.
This is an appeal by the Appellants against the Ruling of Hon. Justice E.G. Osinuga of the Ogun State High Court sitting at Abeokuta in Suit No. AB/181/2006
The appellants filed a Preliminary Objection to the effect that the Honourable Court lacked jurisdiction to entertain the suit in which the plaintiff now respondent was challenging his impeachment as Chairman, Abeokuta South Local Government Council on the ground that it was purely a legislative matter. In the substantive action, the plaintiff/respondent had sought for a determination of the question:
“Whether the purported impeachment of the plaintiff from office as the Chairman of the Abeokuta South Local Government by the 1st-13th defendant on 9th January, 2006 was in accordance with the provisions of section 37 of the Local Government Law of Ogun State 2000”
The learned trial Judge overruled the objection and held that the Court had jurisdiction to entertain the suit.
Being dissatisfied with the said Ruling the appellants appealed against it by a Notice of Appeal dated 9th November, 2006 containing one ground of appeal which reads:
“The learned trial Judge erred in law when he held that he had jurisdiction to entertain this suit,
PARTICULARS
- Section 188(10) of the 1999 Constitution is also applicable to Local Government”.
From this lone ground of appeal the following issue was formulated for determination namely:-
“Whether the trial court was right in holding that it had jurisdiction to entertain the Respondent’s complaints”.
Learned Senior Counsel for the respondent formulated the following two issues, albeit from the sole ground of appeal filed for determination:-
“1. Whether the learned trial Judge was not right when she held that the court has jurisdiction to entertain the complaint of the respondent against his purported impeachment by the appellants.
Whether having regard to the circumstances of this case and specific reliefs claimed by the respondent before the lower court in his originating Summons, the court cannot grant the plaintiff/respondent’s reliefs in exercise of court’s powers under section 16 of the Court of Appeal Act”.
The Respondent did not file a cross-appeal and so could not formulate two Issues from a single ground of appeal. Moreover the second issue does not relate to the ground of appeal reproduced above. The second issue is incompetent and it is accordingly struck out together with the argument proffered on it.
The appeal was deemed argued on the briefs because only the respondent’s counsel was present in court when the appeal was called for hearing although the Appellants had filed a written brief in adopting his brief Mr. N.D.O. Oke SAN, learned Senior Counsel for the Respondent urged this court to make an order dismissing the appeal even though the Local Government Councils in Ogun State had been dissolved and Caretaker Committees appointed in their place.
In the Appellants’ brief it was argued that the trial court did not have jurisdiction to entertain the suit. As argued by respondent’s counsel the provisions for the removal of the Chairman and Vice-Chairman of a Local Government Council as contained in section 37(1)-(10) of the Local Government Law of Ogun State 2000 is akin to section 188(1)-(10) of 1999 Constitution which deals with the removal of the Governor or Deputy-Governor of a State.
Section 37(1)-(10) of the Local Government Law of Ogun State 2000 provides as follows:-
“37(1) The Chairman or Vice-Chairman may be removed from office in accordance with the provisions of this section
(2) Whenever a notice of any allegation of misconduct in writing signed by not less than one-half or the members of the Council is presented to the Clerk of the Council stating that the holder of the Office of the Chairman or Vice-Chairman is guilty of misconduct in the performance of the functions of his office, detailed particulars of which shall be specified, the Clerk of the Council shall within 7 days of such notice cause a copy of the notice to be served on the holder of the office and on each member of the Council and shall also cause any statement made in reply to the allegation by the holder of the office to be served on each member of the Council.
(3) Within 14 days of the presentation of the notice (whether or not any statement was made by the holder of the office in reply to the allegation contained in the notice) the Council without the holder of the office being present at the meeting shall resolve by motion without any debate whether or not the allegation shall be investigated.
(4) A motion of the Council that the allegation be investigated shall not be declared as having been passed unless it is supported by the votes of a single majority of all the members of the Council.
(5) Within 7 days of the passing of a motion under sub-section (4) of this section, the Clerk of the Council shall inform the Governor of the State who shall appoint a Panel of five persons who in the opinion of the Governor are of unquestionable integrity not being members of:-
[a] any public or civil service; or
[b] a legislative house; or
[c] a political party; to investigate the allegation as provided in this section.
(6) The Chairman of the Panel shall be a Legal Practitioner of not less than 10 years post call experience.
(7) The holder of an office whose conduct is being investigated under this section shall have the right to defend himself in person or be represented before the Panel by a Legal Practitioner of his own choice.
(8) A Panel appointed under this section shall
[a] have such powers and exercise its functions in accordance with such procedure as may be prescribed by the applicable enabling Law and until such law is made in accordance with the rules of fair hearing; and
[b] within three months of its appointment, report its findings to the Council.
(9) Where the Panel reports to the Council that the allegation has not been proved no further proceedings shall be taken in respect of the matter.
(10) Where the report of the Panel is that the allegation against the holder of the office has been proved, then within 14 days of the receipt of the report, the Council shall consider the report with the holder of the office being present at the meeting and if by a resolution of the Council supported by not less than two thirds majority of all its members, the report of the Panel is adopted then the holder of the office shall stand removed from office as from the date of the adoption of the report”.
In the brief filed by the appellants’ counsel it was argued that by virtue of the doctrine of separation of powers as between the Executive, the Legislative and the Judicial arms the power to remove Council Chairman is exclusively vested in the Council; hence the jurisdiction of the court to want to interfere in the impeachment process is clearly an unnecessary usurpation of legislative function. Learned counsel submitted that the basis of the present Constitution is on the principle of separation of powers. It is argued that on the very clear and unequivocal words of the Constitution are any of the departments of the government permitted to trespass into the exclusive domain and functions assigned to the other. In this circumstance learned counsel submitted that the act of the Councillors in removing the Council Chairman was purely a legislative affair quite outside the Jurisdiction of the court. Learned counscil referred to the dictum of Karibi- White J.C.A (as he then was) in ALHAJI ABDULKADIR BALARABE MUSA v. AUTA HAMZA & 6ORS (1982) 3 NCLR 229 at page 257 where he held on the interpretation of section 170(10) of the 1979 Constitution as it relates to the removal of the Governor by the State House of Assembly that:-
“Where the constitution has not vested in the courts any supervisory jurisdiction, the courts will be acting contrary to the spirit of the Constitution if it went on an enquiry into the manner Parliament had performed the functions assigned to it by the Constitution. No source of conflict between the different departments is greater than an interference of that nature”.
In his own argument learned Senior Counsel for the Respondent submitted that the Appellants did not contest the averments and or depositions of the Respondent In all the paragraphs of his supporting affidavit to the originating summons. By not filing a counter-affidavit against the averments of the Respondent, in law, the averments are deemed admitted by the Appellants. The following eases were cited to support the contention:
EGBUA v. EGBUA (1989) 2 NWLR (pt. 106) 723 AT 777; EJIDE v. OGUNYEMI (1990) 3 NWLR (pt. 141) 758. The complaint of the respondent is that the procedure laid down under section 37(1)-(10) of the Ogun State Local Government Law 2000 for his removal was not followed; hence the institution of the case against the Appellants before the trial court. Learned counsel relied on EKEKUGBO v. FIBERESIMA (1994) 3 NWLR (pt. 335) 707 and JIMOH v. OLAWOYE (2003) 10 NWLR (pt. 828) 307. On separation of powers, learned Senior Counsel argued that the argument cannot hold because separation of powers does not mean that each arm of the government is at liberty not to comply with the procedural rules in the performance of its statutory duties. When such steps are not observed and complied with, the court can assume jurisdiction and look into the matter.
Before the preliminary objection was taken and overruled which led to this appeal, the respondent/plaintiff filed an Originating Summons seeking various declaratory reliefs. In support of the summons was an affidavit of 14 paragraphs in which he deposed to the following unchallenged facts in paragraphs 5, 7, 8, 9 and 10 of the said affidavit:-
“5. That on the 17th October, 2005, I was suspended from office as the Chairman of the Abeokuta South Local Government by the Governor of Ogun State for three months with effect from that date.
- That on 9th January, 2005, I was purportedly impeached from office as the Chairman of the Abeokuta South Local Government by the 1st to 15th Defendants.
- That no notice of impeachment was served on me before my purported Impeachment as mandatorily required.
- That no panel was set up by the Governor of Ogun State to investigate any allegation against me before my purported impeachment.
- That after my purported impeachment the 16th Defendant started parading himself as the Chairman of the Abeokuta South Local Government”
Since these facts reproduced above were not controverted, they must be taken as true. See: ALAGBE v. ABIMBOLA (1978) 2 S.C 39.
Notwithstanding this position learned counsel for the appellants argued that it will amount to judicial interference with the exclusive function of the Legislature which is frowned at under the doctrine of separation of powers if the court should entertain the case. The case of ALHAJI ABDULKADIR BALARABE MUSA v. AUTA HAMZA supra which counsel for the appellants relied on is distinguishable from this case. In that case all procedural steps required initiating impeachment proceedings were complied with and the appellant sought to stay the proceedings of the Committee set up by the Speaker of the State Assembly from investigating the allegations which had been labelled against him as constituting impeachable offences. In dismissing the appeal brought by the appellant against the refusal of the High Court to grant the order of stay, the Court of Appeal in interpreting section 170 of the 1979 Constitution held-
“…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 the committee or any determination by the House or the committee. It follows from the premise of this that no court can entertain any proceedings or questions the determination of the House or the committee…”
The Court of Appeal would appear to have given a carte blanche to members of the Legislature to behave as they please when it comes to question of impeachment. In ABARIBE V. ABIA STATE HOUSE OF ASSEMBLY (2002) 14 NWLR (pt.788)466 Pats- Acholunu J.C.A (as he then was) cautioned the court on the need to avoid venturing into political mailers and Ikongbeh JCA (of blessed memory) in his concurring opinion stated that the Constitution is a scheme whereby power is shared beforehand among the various arms of government and impeachment procedure is universally recognized as pre-eminently a political matter which is an affair of the Legislature. However Pats-Acholonu (JCA as he then was) was quick to point out at page 486 supra that” … the court may not close its eyes to serious injustice relating to the manner an impeachment procedure is being carried out …”
The learned Law Lord agreed that it is within the province of the court to ensure strict adherence to the spirit of the Constitution for the endurance of a democratic regime. And this underlines the decision of this court in ADELEKE V. OYO STATE HOUSE OF ASSEMBLY (2006) 16 NWLR (pt. 1006) 608 which was upheld by the Supreme Court in INAKOJU V. ADELEKE (2007) 4 NWLR (pt. 1025) 423. At the Court of Appeal where 18 of the 32 members of Oyo State House of Assembly purportedly impeached the State Governor, Alhaji Rashidi Adewolu Ladoja whereas the Constitution stipulates 2/3 of the members i.e. 24 members should carry out the impeachment, the said impeachment was declared null and void and of no effect. Relying on the cases of EKPO V. CALABAR LOCAL GOVERNMENT COUNCIL (1993) 3 NWLR (pt. 281) 324 and JIMOH V. OLAWOYE (2003) 10 NWLR (pt. 828) 307 the facts of which were on all fours with the ADELEKE v. OYO STATE HOUSE OF ASSEMBLY supra, Ogebe J.C.A. queried the arguments put forward by counsel to the respondents when he stated at page 670:-
“…if section 188(10) is read in isolation of subsections 1-9, what is the purpose of subsections 1-9? Are the provisions in subsections 1-9 meant to guide the House of Assembly in impeachment proceedings only? What happens if they are totally ignored in impeachment proceedings?”
He unequivocally answered the questions posed by stating that-
“A court of law cannot close its eyes to the infringement of the Constitution. It is the primary custodian of the Constitution and if any arm of the government including the court itself acts unconstitutionally, the court has inherent power under section 6(6) of the 1999 Constitution to intervene”
The appeal to the Supreme Court was dismissed by a majority of 6-1, (Oguntade JSC dissenting). Tobi J.S.C in the lead judgment held that where the Constitution or a statute provides for pre-condition to the attainment of a particular situation, the pre-condition must be fulfilled or satisfied before the particular situation will be said to have been attained or reached. He held further that the question of non-compliance with subsections 1-9 did not arise in ABARIRE v. ABIA STATE HOUSE OF ASSEMBLY supra. In his concurring judgment Kutigi J.S.C. (as he then was) held in INAKOJU v. ADELEKE supra at page 653 thus:
“It must first of all be understood that the entire section 188 subsection 1-11 must be read together. And a proper reading of the whole section will reveal that the ouster clause in subsection (10) can only be properly resorted to and invoked after due compliance with subsections (1)-(9) that preceded it. (see for example ATT-GENERAL OF BENDEL STATE v. ATT-GENERAL OF THE FEDERATION (1981) ALL NLR 86; (1982) 3 NCLRI. JIMOH V. OLAWOYE (2003) 10 NWLR (pt. 828) 307; OKOYA V. SANTILLI (1990) 2 NWLR (pt 131) 172). Subsection (11) makes it abundantly clear that it is the House of Assembly that decides whether or not a conduct is gross misconduct to warrant the removal of a Governor or Deputy Governor. This must in my view depend on the particular facts and circumstances of each particular case. Failure to comply with any of the provisions of subsections 1-9 will mean that the ouster clause of subsection (10) cannot be invoked in favour of the House of Assembly”.
The respondent complained that no notice of impeachment was served on him nor was any panel set up to investigate any allegation made against him before his purported impeachment. Since the Appellants did not file a counter-affidavit denying these averments, the appellants did not comply with section 37(1)-(9). Moreover there is no subsection in S.37 of the Local Government Law of Ogun State that equates with S.188 (10) of the Constitution to preclude the High Court from entertaining the case. The cases of EKPO v. CALABAR LOCAL GOVERNMENT COUNCIL; EKEKUGBO v. FIBERESIMA and JIMOH v. OLAWOYE supra which decided that the respondents must show that they complied with the procedure laid down for the removal of the Chairman or Vice Chairman before the impeachment is allowed to stand is good law. The learned trial Judge was therefore right in overruling the Preliminary Objection.
I find that the appeal lacks merit and it is accordingly dismissed. It became necessary to consider this appeal on it is merit if only to underpin the necessity for politicians at different strata of our society to learn to abide by the rule of law for the sustenance and growth of democracy. Military authorities can be pardoned for taking arbitrary decisions because they are not accountable to anyone as they derive their power through the barrel of the gun but the President, Governor or Local Government Chairman and all members of the National, State and Local Government Assemblies, are elected by the people and therefore are accountable to the electorate. All their actions must be in accordance with the laws of the land. It is hoped that the era of frequent impeachments went with the last regime. It is also hoped that State Governments will ensure that the State Electoral Commissions are empowered to fulfill their constitutional role of arranging Local Government Election to be held at irregular intervals to take over councils whose tenure has expired instead of resorting to appointment of Caretaker Committees which are clearly undemocratic.
I make no order as to costs.
Other Citations: (2008)LCN/2650(CA)
