Hon. Dele Abiodun V. The Hon. Chief Judge Of Kwara State & Ors (2007)
LawGlobal-Hub Lead Judgment Report
ABDULLAHI, J.C.A.
By originating summons filed by the claimant who is the appellant in this appeal the following questions were sought to be determined by the lower court as follows:
“1. Whether the suspension and continued suspension, prohibition and prevention of the claimant to perform his functions as the Executive Chairman of Ekiti Local Government Kwara State by the 2nd defendant is valid, lawful and constitutional.
- Whether the Chief Judge of Kwara State can lawfully exercise his powers of appointing a panel of five (5) persons who shall investigate the allegation against the claimant as provided under section 28 of the Kwara State Local Government Law.
- Whether the appointment, inauguration and proceedings of any panel of 5 persons to investigate allegations against the claimant under section 28 of the Kwara State Local Government Law is valid, the committee having been proposed, appointed, inaugurated more than 7 days mandatorily provided for under section 28 of the Kwara State Local Government Law, 2005, particularly, when the powers given to the Chief Judge does not include power to extend the statutory 7 days, period.”
Based on the three questions stated above, the claimant now appellant claimed the following reliefs stated hereunder:
“(i) A declaration that the suspension and continued suspension of the claimant by the 2nd defendant is wrongful, illegal and a violation of the Constitution of the Federal Republic of Nigeria, 1999.
(ii) A declaration that the Chief Judge of Kwara State has no power to appoint, inaugurate the 5-man panel of persons to investigate allegations against the claimant, the same having been made after 7 days statutory period.
(iii) A declaration that the request made to the Chief Judge of Kwara State by the 3rd defendant, to appoint a 5-man panel to investigate the allegations made against the claimant is illegal, unconstitutional null and void.
(iv) An order nullifying the suspension of the claimant by the 2nd defendants {sic} from September 2005 and all his entitlements paid to him.
(v) An order setting aside the notice or application made to the Chief Judge by the 3rd defendant, to appoint a 5- man panel to investigate allegations of misconduct against the claimant the same having been and expired, contrary to Kwara State Local Government Law. 2005.
(vi) An order nullifying every and any step taken by any person or authority pursuant to section 28 of the Local Government Law, 2005 with a view to investigating the claimant.
(vii) An order of interlocutory injunction restraining the 1st defendant from appointing any 5-man panel pursuant to section 28 (sic) the Kwara State Local Government Law pending the hearing and determination of this suit.
(viii) An order restraining the defendants from further interfering with the claimant as Chairman of Ekiti Local Government Council.”
The originating summons was supported by two distinct affidavits, a 21 paragraphed affidavit deposed to by the claimant himself, a Charted Accountant of No.2, Ilaro Street, Aare Opin, Kwara State. The affidavit was deposed and sworn to on the 23rd day of January, 2006. Attached to this affidavit were four exhibits as follows:-
“(a) Ekiti Local Government Legislative Council letter dated EXLG/LC/RD/S/O7/1 of the 8th December, 2005 it is attached and marked exhibit Dele1 1-8,
(b) Honourable Dele Abiodun’s letter dated 12th December, 2005 with attachments marked exhibit Dele 2 1-8,
(c) Democracy Monitor, Vol. 7 No.9 September, 2005 pages 9 – 13. attached and marked exhibit Dele 3 1-4,
(d) Honourbale Dele Abiodun’s letter dated 3rd January, 2006 marked exhibit Dele 4 1-2.”
And another 25 paragraphed affidavit deposed to by the same deponent and sworn to on 20th day of March, 2006. Attached to this affidavit are the following exhibits:
“(a) Affidavit of service dated and served on 10/2/2006 – Exhibit ‘5’.
(b) Letter dated 8/2/2006 – Exhibit ‘6’, respectively
(c) The Herald Newspaper of Wednesday, 1st March 2006 (page 5) – Exhibit ‘7’
(d) Invitation letter from the Panel of Inquiry – Exhibit ‘8’
(e) Letter dated 28/2/2006 to the Panel of Inquiry – Exhibit ‘9’
(f) Letter dated 7/3/2006 Ref. No. MC/GCE/VOA/054/2006 to the Secretary, Panel of Inquiry – Exhibit ’10’
(g) Letter dated 7/3/2006 Ref No. MC/GCE/VOA/056/2006 to the Secretary, Panel of Inquiry – Exhibit ’11’.”
On the other hand, the defendants who are now the respondents in this appeal filed a 35 paragraphed affidavit deposed and sworn to by one Mr. O. T. Afolayan, a Deputy Director in the State Ministry of Local Government and Chieftaincy Affairs. Attached to the counter-affidavit are five exhibits namely exhibits A1, A2, B1, B2 and C.
It is appropriate to state at this juncture that both parties relied on the averments of the supporting affidavits as well as the counter-affidavit. I will make reference to the relevant averments as and when appropriate in the course of writing this judgment.
The facts leading to this appeal are that: The appellant was elected at a general election, as the Executive Chairman of Ekiti Local Government Council with its headquarters at Isolo Opin in Kwara State on 31st March, 2003. His tenure as Chairman is expected to expire on 31st March, 2007.
On 16th September, 2005 the 2nd respondent announced the suspension of the appellant on radio and television of Kwara State. Consequent upon this suspension which the 2nd respondent claimed were being investigated, allegations were raised by Councilors of Ekiti Local Government against the appellant.
On 21st December, 2005, there was a meeting of the council at Isolo Opin which decided against investigation of the allegations against the appellant. On 22nd December, 2005, another meeting of the Council was held at Alakaka Hotel, Omu-Aran in another Local Government Area i.e. Irepodun Local Government wherein a decision of the council was allegedly taken to request the Chief Judge of Kwara State to constitute a panel to investigate the allegation under section 28 of the Local Government Law. The decision of the Council was not received by the Chief Judge until the 19th January, 2006. Twenty-eight days after the decision was taken.
The appellant filed an action in which the power and authority of the Chief Judge to act on the resolution of the council and his suspension were challenged. While the case was pending. after all the respondents have caused appearance by counsel in the matter and inspite of written protests, the Chief Judge appointed a 7-man panel to investigate the appellant. The appellant and his counsel took their protest to the Panel, submitted the court processes to the panel. The Panel disregarded the court processes and proceeded to conduct investigation as directed by the Chief Judge.
The plaintiff (claimant) filed an originating summons and sought the declarations stated earlier on in this judgment. In the end, the learned trial Judge held thus:
“Though the suspension of the claimant has been found to be unlawful and unconstitutional, the procedure for his removal as chairman however is found to be lawful and constitutional. Accordingly, I hereby dismiss this suit and enter judgment in favour of the defendant”.
Dissatisfied with the judgment of the lower court, the appellant – through his counsel filed a notice of appeal consisting of seven grounds.
Learned counsel for the appellant, in a brief settled by Chief A. S. Awomolo, SAN distilled from the said grounds of appeal three (3) issues for determination as follows:
“(i) Whether the learned trial Judge was right in failing to pronounce upon and nullify the appointment by the Chief Judge of a panel to investigate the allegations against the appellant while the suit challenging the legality of the appointment was pending.
(ii) Whether the learned trial Judge was right in acting upon inadmissible evidence despite the mandatory provisions of the Evidence Act.
(iii) Whether the learned trial Judge having held that the suspension of the appellant under section 29 of the Local Government Law of Kwara State, 2005, was unconstitutional, illegal, null, void and of no effect whatsoever, can turn around to validate the removal of the appellant by the respondent.”
On their part, the respondents’ counsel in a brief settled by Saka Isau, SAN, Attorney-General of Kwara State did not identify any issue for determination but adopted the issues raised for determination by the appellant.
On the 13th day of February, 2007, when the appeal came before us for hearing, learned counsel for the parties, in accordance with the rules of this court adopted their briefs of arguments.
Chief (Mrs.) Awomolo adopted their brief dated 30/11/2006 but filed on 1/12/2006). In her oral submissions in amplification of the said brief, the learned counsel submitted that, section 28(5) of the Kwara State Local Government Law. 2005 which provides for 7 days within which a Local Government Council Speaker to inform the Chief Judge to appoint a 5 man panel to investigate an allegation against a chairman also binds the Hon. Chief Judge. The Chief Judge must act within those days, she further submitted. Learned counsel submitted that the Hon. Chief Judge in this matter inaugurated a 5-man panel 68 days after he was informed. He was informed on 21/12/2005 it was only on 27/02/2006 that he inaugurated the panel. She urged us to allow the appeal.
Mr. J. A. Mumini, Director of Public Prosecutions, Kwara State, Ministry of Justice adopted the respondents’ brief dated and filed on 15/01/2007. He submitted on issue No. 1 that by the rule of literal interpretation of statute, the 7 days referred to under section 28(5) of the Local Government Law of Kwara State, 2005, referred only to the period within which the speaker of the Legislative Assembly is to inform the Chief Judge to set up a Committee to investigate the allegation against the appellant and not the period within which the Chief Judge is to set up such a Committee.
Learned counsel further submitted that the Chief Judge having substantially complied with the provision of section 28(5) of the Local Government Law in the appointment of members of the investigating panel the trial court was right to have upheld the removal of the appellant.
Learned counsel argued that assuming but not conceding that the Chief Judge did not act timeously in appointing the members of the committee that in itself did not occasion a miscarriage of justice.
He urged us to dismiss the appeal.
Issue No. 1 is whether the learned trial Judge was right in failing to pronounce upon and nullify the appointment by the Chief Judge of a panel to investigate the allegations against the appellant while the suit challenging the legality of the appointment was pending.
Learned senior counsel for the appellant submitted that every matter or issue relevant and germane to the case of parties in any civil proceeding must be distinctly and clearly submitted for adjudication. Failure so to do is indicative of abandonment and the court has no responsibility to raise or determine it.
Learned counsel further submitted that, as a corollary and as a general rule, a court has a duty to pronounce on all material issues raised before it. Failure to pronounce on such issues has been interpreted to mean failure to do justice or denial of justice to the party whose matter is ignored. This is particularly so in this case where the issue if decided in favour of the appellant, as there was no denial by the respondents of the facts would have resulted in a decision in favour of the appellant. The failure of the court in this case with respect to determining the issue relating to the action in the removal of the appellant when the case was pending amounted to denial of fair hearing and it occasioned a miscarriage of justice.
It is the submission of the learned senior counsel that failure of the court in this case with respect to determining the issue relating to the action taken in the removal of the appellant when the case was pending amounted to denial of fair hearing and it occasioned a miscarriage of justice.
On the other hand, the learned senior counsel for the respondents contended that the trial Judge was right in the way and manner he arrived at his conclusion by dismissing the appellant’s case in its entirety. Learned senior counsel submitted that the law does not impose a style or a mode of writing a judgment on a Judge for as long as the aim of justice is achieved. He relied on the case of Adamu v. The State (1991) 6 SCNJ 33 at p. 40; (1991) 4 NWLR (Pt. 187) 530.
Learned senior counsel submitted that the trial Judge having been satisfied via evidence placed before it need not nullify the appointment of the panel of inquiry set up to investigate the appellant.
Necessity in the circumstance does not necessitate nullifying the appointment in the absence of any injunction by a competent court of record.
Learned senior counsel further submitted that contrary to the contention of the appellant that the respondent adopted a self help by not staying the Panel of Inquiry’s proceedings, the respondents strongly contended that they did not adopt self help nor took steps that have the effect or rendering the suit useless but rather acted in good faith all through with a view to ensuring dispensation of justice to all and sundry.
Now, the question to be asked from the onset is whether the appellant had a pending suit at the State High Court challenging his suspension by the 2nd respondent and an interlocutory application praying for an order restraining the 1st respondent from inaugurating a 5-man panel to investigate the allegations levelled against him by the 3rd respondent pending the determination of the substantive action.
I pause here to say that in answering the question posed above, recourse had to be made to the transcript record of proceedings of the trial court. A closer look at the said record will reveal the followings:
“(i) The originating summons was filed on the 23rd day of January, 2006, contemporaneously with a motion on notice for interlocutory injunction to restrain the defendants amongst other reliefs from investigating the appellant pending the hearing and determination of the substantive suit. See pages 49 – 80 of the records.
(ii) The defendants through their counsel filed their counter-affidavit to the originating summons on 9th March, 2005. See pages 87 -113 of the record.
(iii) The 1st defendant, the Chief Judge of Kwara State was served with all the court processes on the 10th day of February, 2006. See the affidavit of service of the bailiff of the High Court at page 119 of the record, where the bailiff swore to an oath as follows:-
‘I Jimoh Yahaya Senior Bailiff of High Court of Justice, Ilorin, the 10th day of February, 2006, I served upon C. B. Atolagbe (Mrs.) Senior Confidential Secretary writ of summons for determination hereto annexed issued out of this court at Hon. C. J.’s Chambers High Court of Justice, Ilorin complaint of plaintiff by delivering the same personally to C. B. Atologbe Senior Confidential Secretary at High Court of Justice, Ilorin.”
That aside, the respondents admitted vide paragraph 4(6) of their affidavit in support of their motion on notice to file their counter-affidavit out of time against the originating summons as follows:-
“That the court processes in respect of this case were served on the defendants separately.”
In the light of the foregoings the question posed a while ago must be answered in the affirmative. That is to say that at the time the 5-man panel was inaugurated; the appellant had a pending suit at the High Court challenging his suspension by the 2nd respondent.
Next but not the last question to be asked is whether in the light of the two processes served on the respondents, the 1st respondent was not duty bound to suspend the inauguration of the five man (5-man) committee pending the determination of the originating summons filed against them by the appellant.
In the case of Regd. Trustee Apostolic Church v. Olowoleni (1990) 6 NWLR (Pt. 158) 514 at 537 – 538, our eminent and erudite jurist, Nnaemeka-Agu, JSC held as follows:
“…Once parties have turned their dispute over to the courts for determination, the right to resort to self-help ends. So, it is not permissible for one of the parties to take any step during the pendency of the suit which may have the effect of foisting upon the court a situation of complete helplessness, or which may give the impression that the court is being used as a mere subterfuge, to tie the hands of one party while the party helps himself extra-judicially. Both parties are expected to await the result of the litigation and the appropriate order of court before acting further, in Chief Emeka Odumegwu v. Military Governor of Lagos State & Ors. (No.1) (1985) 2 NWLR (Pt. 10) 806 at pp. 821- 827, in the Court of Appeal, I invoked the principles to order a mandatory injunction to restore the applicant to possession which was wrested from him, vietarmis, during the pendency of the litigation. Cases decided in other common law jurisdictions show that the principle is the same. See such decision of English courts as Daniel v. Ferguson (1981) 2 Ch. 27, at p. 30; Agbor v. Metropolitan Police Commissioner (1969) 1 W.L.R. 703; Von. Joel v. Hornsey (1895) 2 Ch. 744. See also such decision of American Court as Clark v. Martin 49 pg. 289, 298-299; Cook v. Boynton 135 pg. 102, 197-944 and Jones v. Securities & Exchange Commission 80 L. Ed. 298 U.S. 1-33, 1015-1235 In The Military Governor of Lagos State & 2 Ors. V. Chief Emeka Odumegwu & Anor. (1986) 1 NWLR (Pt. 18) 621, the Supreme Court gave its stamp of approval to the principle, inter alia, that once the court is seised of the matter, no party has the right to take the matter into its own hands. For the executive in a State to resort to self-help during the pendency of the suit would amount to executive lawlessness, their Lordships held …”
In combined Trade Ltd. v. A.S. T.B. Ltd. (1995) 6 NWLR (Pt. 404) pg. 709 particularly at 710, it was held as follows:-
“It is a reprehensible conduct for any party to an action (or appeal) pending in court to proceed to take the law into his hands (without any specific order of the court) and to do any act which would pre-empt the result of the action. The courts frown against such a conduct and would always invoke their disciplinary power to restore the statute quo. In this case, the respondents who carried out the purported sale of the applicant’s properties before an application pending before the Court of Appeal, by so doing, exhibited a high degree of lawlessness in their conduct. Thus, the purported sale was a nullity (Odogwu v. Odogwu (1991) 8 NWLR (Pt. 208) page 253 at 260.”
Again, in the case of Ezegbu v. First African Trust Bank Ltd. (1992) 1 NWLR (Pt. 220) 699 at 724, the apex court held thus:
“None of the parties in litigation before a court of law is allowed to take the law into his own hands and foist upon the court of ‘fait accompli’ thereby rendering it impossible for the court to arrive at a decision one way or the other on the merits of the issue before it or render any decision it may take nugatory or futile. In the instant case, by holding the meeting, they had pre-empted any decision which could be made by the trial court thereby frustrating or stultifying the exercise by the court of its jurisdiction to determine the application one way or the other. Therefore, the Court of Appeal can properly set aside the whole proceedings of the meeting of 9th November, 1991 including all the decision reached thereat (Vaswani v. Savalach (1972) 1 All NLR 483; Ojukwu v. Gov. of Lagos State (1985) 2 NWLR (Pt. 10) 806 referred to and followed).”
I am of the firm view that in the light of the avalanche of decided authorities by the apex court, the question posed a while ago must be answered in the affirmative. For the avoidance of any doubt, I hold with ease, that the first respondent in becoming aware of the two processes filed by the appellant ought to postpone the inauguration of the 5-man penal set up to investigate the allegations levelled against him by the 3rd and 4th respondents.
The court, i.e. the Supreme Court and this court have not only frowned at self help but had consistently pull down and dismantled the edifice built on self help. In this case the suit was filed with the Chief Judge as the first defendant. He assigned the case to another Judge: he was duly served with the court processes. He was aware of the motion for injunction. He caused counsel to appear to defend the suit. When there were indications that the Hon. Chief Judge may take steps that have the effect of rendering the suit useless, counsel to the appellant wrote to respectfully caution against appointment of the panel while the case was pending. His Lordship the Chief Judge ignored this letter and gave no regards to the consequences of his action on the judiciary.
In the light of all that have been said, I am of the firm view that this court should and ought to pull down every edifice built on the panel. This issue is resolved in favour of the appellant and against the respondents.
Issue No.2 is whether the learned trial Judge was right in acting upon inadmissible evidence despite the mandatory provisions of the Evidence Act.
The respondents through one O. T. Afolayan, a Deputy Director in the Ministry of Local Government Affairs, Ilorin swore to a counter-affidavit in opposition to the affidavit in support of the originating summons sworn to by the appellant personally. The appellant at the, trial court objected to paragraphs 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 26, 27, 30, 31, 32 and 34 of the counter-affidavit.
The objections were based on the followings:
“1. That the deponent was not a staff of the office of the Chief Judge. He was not a staff of the Ekiti Local Government Council, Isolo Opin. He was not competent to make categorical statements on what happened in the office of the Chief Judge or the Local Government Secretariat or meeting chambers at Isolo Opin. If he had derived his information from a staff of the office of the Chief Judge, Secretary to the councilor member of the council they were not matters within his personal knowledge and, the Evidence Act demands the disclosure of the source and the circumstances of his source of knowledge of the information.
- That some of the paragraphs of the affidavits were conclusions, legal opinion or matters suitable for submissions by a legal council and therefore incompetent and should be struck out.
The learned trial Judge concluded that only paragraph 27 was a conclusion and thereby had to be struck out, please see pages 156, 1-10 of the records.”
Learned counsel for the appellant urged us to note that the case under consideration was initiated vide originating process whereby all evidence including documentary were affidavit evidence. Learned counsel argued that, the trial Judge misconceived the objections when at pages 155 – 156, concentrated its attention on “competence of the deponent” rather than compliance with mandatory duty to disclose source of information and circumstances of such disclosure. The competency of the deponent was not the fulcrum of the objection, he further argued.
Learned senior counsel submitted that, the fact that a person has authority to depose to an affidavit does not dispense with the mandatory requirements of stating the source of the information or the facts contained in the affidavit. In this case if Mr. Afolayan derived his information from the records of government by virtue of his position he had the duty to disclose.
If he derived the information from interaction, meeting or conference with the Clerk, Councilor, Chairman of the Ekiti Local Government, or the Chief Judge, he had the duty to disclose that source. He woefully failed to comply with the law and the trial court did not advert to it in respect of the affidavit. He relied on the case of Adeleke v. Anike (2006) 16 NWLR (Pt. 1004) 131.
Learned senior counsel further submitted that neither the trial High Court nor counsel can compromise or agree to admit evidence which are contrary to the provisions of the Evidence Act. He relied on the cases of Federal Military Government v. Sani (No.2) (1989) 4 NWLR (Pt. 117) 624; Governor of Lagos State v. Ojukwu (1986) 1 NWLR (Pt. 18) 621; Fawehinmi v. IGP & 2 Ors. (2000) FWLR (Pt. 12) 367; (2000) 7 NWLR (Pt. 665) 481.
Learned senior counsel urged us to strike out the offending paragraphs of the counter-affidavit i.e. paragraphs 14, 15, 16, 17, 18, 21, 22, 23, 24, 25, 29, 30, 31, 32, 33 and 34 sworn to by the said Afolayan as they are in contravention of the said provisions of the Evidence Act.
For his part, learned senior counsel for the respondents submitted that the objection raised by the appellant to the said paragraphs is misconceived by virtue of section 84 of the Evidence Act.
Learned senior counsel submitted that the most important thing in the circumstance is for the court to be satisfied that it has been sworn before a person duly authorized which is the Commissioner for Oath. Also, the deponent is a Deputy Director in the Ministry of Local Government and Chieftaincy Affairs. It is pertinent to note that all the 16 Local Governments in Kwara State including Ekiti Local Government are directly answerable to the Ministry of Local Government hence the basic necessity to brief the Ministry of Local Government on their activities.
My Lords, it is crystal clear particularly in paragraph 3 of the respondents’ counter-affidavit at page 87 of the record that the said Mr. O. T. Afolayan deposed to the facts contained therein based on the consent of his employer and that of the respondents. So since the Ministry of Local Government controls Ekiti Local Government amongst others, it simply suggests to a reasonable prudent person that they must be appraised of all the developments in the Ekiti Legislative Council and I urged the court to so hold.
It is their contention that the deponent is competent enough to depose to such facts as contained in the respondent’s counter-affidavit which the learned trial Judge over ruled substantially the objections raised in relation thereto. The said paragraphs do not in any way offend sections 76, 77, 86, 87 and 88 of the Evidence Act and I urge the court to so hold.
Learned senior counsel further contended that the weight of judicial opinion is predominantly in favour of the court doing substantial justice rather than undue adherence to rules of technicalities. He relied on Okumagba v. Esis (2005) 4 NWLR (Pt. 916) 501. He urged us to hold that the trial Judge was right in overruling the objection raised by the appellant.
Now, section 76 of the Evidence Act requires that all facts to be proved in any proceedings except, the contents of document may be proved by oral evidence. And section 77 of the same Act states that oral evidence must in all cases whatsoever be direct. If it refers to a fact which could be seen, it must be the evidence of a witness who says he saw that fact. If it refers to a fact which could be heard, it must be the evidence of a witness who heard it. If it relates to a fact which could be perceived by any other sense or in any other manner, it must be evidence of a witness who says he perceived it.
Again, section 86 of the Act requires that any affidavit used in the court shall contain only statement of the facts and circumstances to which the witness deposes either of his own personal knowledge or from information which he believes to be true.
More importantly, section 88 of the Act provides that when a person deposes to his belief in any matter of fact, and his belief is derived from other sources other than his own personal knowledge, he shall set forth explicitly the facts and circumstances forming the ground of his belief.
I am of the considered view that the combined reading of sections 76, 77, 86, 87 and 88 of the Evidence Act is that a deposition in an affidavit is an evidence of the fact in issue and such deposition must be direct. Where the evidence is derived from some other person such person and the circumstances of the knowledge, which he believes must be stated so that the court and the other party deposing to contrary evidence can confirm or ascertain the truth.
In the case of Adeleke v. Anike (supra) this Court per Cecilia Nzeako, JCA, held as follows:
“The practice for deposition to and use of affidavit in court proceedings is set out in the Evidence Act. See sections 78 – 90 thereof. Nothing stops a third party, in the same way, as he can testify as a witness in a suit, from swearing to an affidavit in a motion in which he is not a party. The proviso to this in the Act is that the affidavit must contain only statement’ of facts which are within the deponent’s own knowledge or which he obtained from information which he believes to be true, but, if his belief is from sources other than his own personal knowledge, he must state explicitly in the affidavit the fact and circumstances which form the grounds of his belief. See sections 86 and 89 of the Evidence Act. Also, if the belief of the deponent is derived from, information received from another person, the name of his informant must be stated with reasonable particulars respecting his informant, the time of his information. His place and circumstance thereof. See section 89 of the Act. Section 90(f) requires that the affidavit shall be signed by the deponent. It is that the section refers to the deponent as ‘witness’.”
Again in the case of Chief Francis Edu v. Commissioner for Agriculture Water Resources and Rural Development (2000) 12 NWLR (Pt. 681) 316 at 333, this court held as follows:-
“By virtue of sections 86, 87 and 88 of the Evidence Act an affidavit must contain only those facts of which the maker or deponent has personal knowledge or which are based on information which he believes to be true and the maker must state the name and full particulars of his information. No legal argument, conclusion or other extraneous matter must be included. (Joseien Holding Ltd. v. Lornamead Ltd. (1995) 1 NWLR (Pt. 371) 254.”
At pages 332 – 333, Edozie, JCA (as then was) held thus:
“It is not disputed that the facts deposed to in the appellants’ supporting affidavit by Mr. Mathew Ekpo are not within his personal knowledge.”
Again, at page 334 of the same report, Ekpo, JCA held as follows:-
“Sections 86, 88 and 89 of the Evidence Act, 1990 are mandatory or obligatory and non-compliance is bound to lead to the rejection of the affected paragraphs of the affidavit.”
Learned senior counsel for the respondent made heavy weather out of section 84 of the Evidence Act which provides as follows:”
That court may permit an affidavit to be used, notwithstanding it is defective in form according to this Act, if the court is satisfied that it has been sworn before a person duly authorized.”
With due respect to the learned senior counsel, the defect in the counter-affidavit of the respondents is much more than a defect in form. It is a defect as to substance which cannot be cured by the provision of section 84 of the Evidence Act and I so hold. Paragraphs 14, 15, 16, 17, 18, 20, 22, 23, 24, 25, 29, 30, 31, 32, 33 and 34 in the light of the foregoing must be and they are accordingly struck out.
This issue like the previous issue is resolved in favour of the appellant and against the respondent.
Issue No.3 is whether the learned trial Judge having held that the suspension of the appellant under section 29 of the Local Government Law of Kwara State, 2005, was unconstitutional, illegal, null, void and of no effect whatsoever, can turn around to validate the removal of the appellant by the respondent.
Learned senior counsel submitted that section 28 of the Local Government Law is a special provision designed to regulate exclusively the removal procedure of elected chairman of the Local Government. It is a procedure that is akin to section 188(i) of the Constitution of the Federal Republic of Nigeria, 1999.
It is the submission of the learned counsel that the timing in sub-section 5 of section 28 is a deliberate legislative provision to underscore the importance of timeous and expeditious determination of the allegation against the Chairman/Chief Executive of the Local Government. The seven (7) days in the one sentence, notwithstanding the grammatical punctuation is applicable to the Speaker and the Chief Judge.
The learned senior counsel further submitted that the provision of sub-section 5 of section 28 from its wordings and intendment is unambiguous. The above sub-section means the following:-
“(i) The Speaker shall inform the Chief Judge to appoint a panel of five (5) persons within seven (7) days of the passing of a motion under sub-section (4) of the section;
(ii) The Chief Judge shall also within the ambit of 7 (seven) days appoint a panel of 5 five persons who in his opinion are of unquestionable integrity”. The use of the word ‘shall’ in the above sub-section implies a mandatory compliance. See Oyeyipo v. Oyinloye (1987) 1 NWLR (Pt. 50) page 356.”
Learned senior counsel referred to paragraph 27 of the respondents’ counter-affidavit wherein they averred thus:-
“That the duty of the Chief Judge to appoint as-man panel was carried out within the statutory limit.”
Then he posed this question: “What is the statutory limit?
Learned counsel answered thus:-
“There is nothing in the defendant counter-affidavit and submissions to show this,”
Learned senior counsel submitted that this cannot be the intendment of the provisions of section 28(5) of the Law. This is because section 28(7) of the same law enacts thus:-
“A panel appointed under this section shall within one month of its appointment, report its findings to the Legislative Council.”
Learned senior counsel contended that from the provision of section 28(7) and 9 of the Local Government Law, it (the law) makes it crystal clear on the timing of the impeachment proceedings contrary to the position taken by the respondents that the Chief Judge has no statutory limit in the appointment of members of the panel.
Learned senior counsel submitted that the trial court having held that the suspension of the appellant was unconstitutional, invalid, null and void, he (appellant) cannot subsequently be removed by the defendants.
Learned senior counsel further submitted that the learned trial Judge having declared the suspension to be invalid, unconstitutional, null and void has ipso facto rendered his removal null and void since the suspension was based and/or predicated on the Notice of Allegation of Diversion and Misappropriation of Funds of Ekiti Local Government vide letter dated 8th December, 2005.
Learned senior counsel for the respondents contended that the learned trial Judge considered all the affidavit evidence adduced by both sides before arriving at its final conclusion by dismissing the appellant case in its entirety. He opined that suspension is not synonymous with removal. The initial suspension was nullified by the trial Judge for non-compliance with the laid down procedure while the removal was upheld for compliance with the due process of fair hearing and adherence to the enabling laws. So suspension and removal are not the same and he urged the court to so hold.
Learned senior counsel urged us to hold that the appellant’s removable from office having complied with the laid down procedure was in order and that the appeal lacks merit and that same ought to be dismissed.
The learned trial Judge on page 156 of the record held as follows:-
“Though the suspension of the claimant has been found to be unlawful and unconstitutional, the procedure adopted for his removal as Chairman however is found to be lawful and constitutional. Accordingly, I hereby dismiss this suit and enter judgment in favour of the defendants. ”
The question to be asked from the onset in dealing with this issue is this, can it be said in the light of all that transpired in this case, the procedure adopted in removing the appellant is found to be lawful and constitutional.
The senior counsel for the appellant submitted quite copiously that apart from setting up the panel that removed the appellant from his seat as the Chairman of Ekiti Local Government, during the pendency of an action, the setting up of the penal itself was contrary to the provision of section 28(5) of the Local Government Law under which the appellant was removed from office. It is the contention of the learned senior counsel that the panel was set up 68 days after the Chief Judge was informed by the Speaker of the Legislative House. This learned counsel vehemently submitted, contravenes the provision of the said section.
Learned counsel for the respondents submitted quite copiously too that the section does not impose a time frame on the Chief Judge within which the panel must be inaugurated.
I pause here to say that, to do the justice to the two competing arguments of the learned senior counsel, section 28(5) of the said Law needs to be critically examined and analysed with a view to finding out what it entails.
“28(5) Within seven days of the passing of a motion under subsection (4) of this section, the Council Speaker shall inform the Chief Judge, who shall appoint a panel of five persons who in the opinion of the Chief Judge are of unquestionable integrity not being members of
(a) the public service;
(b) a legislative house; or
(c) a political party.”
it is appropriate at this juncture to state that impeachment proceedings are in a class of their own. Time, needless to say is of the essence in all impeachment proceedings.
In the case of Dantosho v. Muhamed (2003) FWLR (Pt. 15) page 1717; (2003) 6 NWLR (Pt. 817) 457, particularly at 1742, the apex court per Uwaifo, JSC held as follows:
“Furthermore, it is the law that in construing any provision of a statute, a court ought, and is indeed bound, to consider any other parts of the statute which throw light upon the intention of the legislature and which may serve to show that the particular provision ought not to be construed as it would if considered alone without reference to such other parts of the statute. See Colquhoum v. Brooke (1889) 14 APP CA. 493 at 506 per Lord Herschell. The same principle was stated by this court in several cases including Aqua Ltd. v. Ondo State Sports Council (1988) 4 NWLR (Pt. 91) 622 at 641 – 642 per Wali, JSC and Salami v. Chairman, L.E.D.S. (1989) 5 NWLR (Pt. 123) 539 at 550-551 per Obaseki, JSC.”
I am of the considered view that to find what section 28(5) of Local Government Law entails, recourse has to be made to other sections of the law and in particular section 28(7) of the said law, which provides thus:
“A panel appointed under this section shall within one month of its appointment, report its findings to the Legislative Council.”
The section stated supra, makes it crystal clear on the timing of the impeachment proceedings. If as the respondents contend, to wit that the Chief Judge has no statutory limit in the appointment of members of the panel, how will the calculation of the period of the submission of the report of the panel starts to run?
Again, section 28(9) of the same Law gives a time limit for the consideration of the panel’s report by the Legislative House. I am of the firm view that the learned trial Judge was wrong to hold thus:
“I also hold that since the Chief Judge is not mandatory (sic) required by section 28(5) of Local Government Law, 2005, to constitute the Investigative (sic) Panel within 7 days or within any time frame for that one 5-man Investigative Panel on a date far in excess of the days is valid, lawful and constitutional.”
However, that is not the end of the matter. The issue under consideration at the risk of repeating myself is whether the trial Judge having held that the suspension of the appellant was unconstitutional, illegal, null and void and of no effect whatsoever, can turn a round to validate the removable of the appellant.
I am of the considered view that the trial court having held that the suspension of the appellant was unconstitutional, invalid, null and void cannot subsequently be removed by the respondents. This is because there was no evidence before the trial court that when he was suspended for alleged misconduct, he was queried for other offences or misconduct which necessitated his removal by the Legislative House.
The question to be asked at this stage is; upon what offence(s) or misconduct did the Governor suspend the appellant which led to his removal by the House of Assembly under section 28(5) of the Local Government Law? The answer to this poser is that the appellant was removed based on the misconduct which he had inter alia been suspended by the Governor which the trial court later found to be invalid and unconstitutional.
In the light of all that I have said, this issue is resolved against the respondents in favour of the appellant. On the whole, this appeal is meritorious and it is accordingly allowed. The decision of the lower court is hereby set aside. That the removal of the appellant by the 2nd respondent is unconstitutional, null and void. He should be re-instated forthwith and be paid all his entitlements as the Chairman of Ekiti Local Government of Kwara State from the time of his suspension to date and thereafter till he is constitutionally and lawfully removed.
Other Citations: (2007)LCN/2267(CA)
