Hon. Michael Dapianlong & Ors V.chief (Dr.) Joshua Chibi Dariye & Anor (2007)

LAWGLOBAL HUB Lead Judgment Report

S. N. ONNOGHEN, J.S.C

This is an appeal against the judgment of the Court of Appeal holden at Jos in Appeal No. CA/J/302/2006 delivered on the 8th day of March, 2007 nullifying the removal of the 1st respondent, Chief Joshua Chibi Dariye by the Plateau State House of Assembly on Monday the 13th day of November, 2006 and ordering the reinstatement of the 1st respondent to the office of Governor of Plateau State. Plateau State, like any other State in the Federal Republic of Nigeria, has a House of Assembly established under section 20 of the Constitution of the Federal Republic of Nigeria 1999 (hereinafter referred to/called the 1999 Constitution). The said House of Assembly constitutes of 24 members. It is an undisputed fact that between 25th and 26th July, fourteen (14) out of the twenty-four (24) members of the Plateau State House of Assembly (including the Speaker and Deputy Speaker thereof) cross carpeted from the Peoples Democratic Party (PDP), the platform on which they were elected to the House in 2003 to Advanced Congress of Democrats (ACD), a registered political party, as a result of which the said 14 members vacated their seats by operation of law leaving only 10 members of that House. On the 5th day of October 2006, the 1st respondent was allegedly served with notice of allegations of gross misconduct thereby initiating a process of impeachment by the remaining 10 members of that House. The notice of allegations of gross misconduct was signed by eight (8) out of the ten (10) existing members.

Throughout the processes and proceedings leading to and including the impeachment of the 1st respondent, the Plateau State House of Assembly had only ten members, eight (8) of who supported and voted in favour of the removal of the 1st respondent under section 188 of the 1999 Constitution. The following are the summary of allegations of gross misconduct against the 1st respondent:

“(a) Money laundering and economic crimes leading to the arrest and detention of the 1st respondent in the United Kingdom having been found with the sum of N390,000.00 in cash and lodgments in the banks.

(b) Operation of at least 8 U.K. bank accounts contrary to the provision of the 5th schedule, part 1, item 3 of the 1999 Constitution.

(c) Purchase of flat 28 Regeants Plaza Apartment, 8 Greville Road, London NW6, through State funds contrary to the provision of section 15 (5) of the 1999 Constitution.

(d) False declaration of assets contrary to the code of conduct for public officers in the 5th Schedule, part 1 item 11 of the 1999 Constitution.

(e) Jumping bail in the United Kingdom for which an international warrant of arrest was issued against the 1st respondent and was consequently declared wanted.

(f) Payment of Plateau State Government Ecological funds by the 1st respondent in the sum of N1,161,162,900.00 (One billion, one hundred and sixty-one million, one hundred and sixty-two thousand, nine hundred naira only) and N82,600,000.00 (Eighty-two million, six hundred thousand Naira only) respectively into his private account.

(g) Disbursement of the State Ecological Fund of N1,161,162.900.00 (one billion, one hundred and sixty-one million, one hundred and sixty-two thousand, nine hundred naira only) as though it was his personal money in the following manner:

(i) Pinnacle communications N250,000,000.00

(ii) Plateau State Government N550,000,000.00

(iii) Union Homes N80,000,000.00

(iv) PDP, South West N100,000,000.00

(v) Chief Joshua Dariye N176,000,000.00

(vi) C.O.P. N4,300,000.00

(h) Conversion of Plateau State funds in the sum of N82,600,000 00 (Eighty-two million, six hundred thousand naira only) to his private and personal use. Following the cross carpeting of the said 14 members of the House including the Speaker and the Deputy Speaker, the 1st appellant became the new Speaker of the House and by a letter dated 5th October, 2006 invited the Chairman of Independent National Electoral Commission (INEC) to organize a by-election for the purpose of filling the vacant seats. The 1st appellant subsequently requested the Acting Chief Judge of Plateau State to set up a 7 man Panel to investigate the allegations of gross misconduct against the 1st respondent which was done. The said Panel was headed by the 2nd respondent. The Panel carried out their assignment and submitted a report to the Plateau State House of Assembly which report was adopted by the House on the 13th day of November, 2006 resulting in the removal of the 1st respondent as the Governor of Plateau State. At the stage of removal of 1st respondent the by-election had not been conducted. Consequent upon the above, the 1st respondent, on the 27th day of November, 2006 commenced an action at the High Court of Plateau State by way of originating summons supported by an affidavit of 37 paragraphs seeking the determination of the following sixteen questions:-

“1. Whether the one-third (1/3) of the members Plateau State House of Assembly envisaged under section 188(2) of the Constitution of the Federal Republic of Nigeria, 1999 (hereinafter called “the Constitution”) for the purpose of signing a Notice of allegation against a Governor or Deputy Governor (in this case the plaintiff) includes the person presiding over the House whether as Speaker or other presiding officer.

2. In view of the clear and mandatory provisions of section 91 of the Constitution whether the House of Assembly of Plateau State under section 90 of the said Constitution can be properly constituted by a faction of only 6 (or 8) elected members thereof for purposes of commencing and concluding impeachment process under section 188 of the Constitution.
3. Whether there is any provision for the position of “Speaker Pro tempore” presiding over the House of Assembly of Plateau State for the purpose of impeaching the plaintiff, having regard to Section 188(2) and (a) of the Constitution (supra)
4. Whether the relevant provisions of the Constitution of the Federal Republic of Nigeria, 1999, with particular reference to the powers conferred on the Plateau State House of Assembly to initiate and carry out impeachment proceedings against the Governor or the Deputy Governor of that State particularly section 188 subsections (1), (2), (3), (4) and (5) thereof are to be read in isolation and complete exclusion of other sections of the same Constitution, including, inter alia, sections 91-105 of the said Constitution
5. Whether if all the subsections of section 188 of the Constitution of the Federal Republic of Nigeria, 1999, are interpreted as a whole there can be a constitutionally valid impeachment of the Governor of Plateau State by the Plateau State House of Assembly without the House satisfying or complying with the mandatory preconditions entrenched in sub-sections 1-9 of the said section 188 of the constitution.
6. Whether or not the undated purported notice of allegations of gross misconduct against Chief (Dr.) Joshua Chibi Dariye, the Governor of Plateau State purportedly issued against him by the 2nd-7th defendants herein is constitutional or valid within the meaning of Section 188(1) of the Constitution of the Federal Republic of Nigeria, 1999.
7. Whether or not the 2nd-7th defendants’ purported service of notice of the said allegations of gross misconduct for the purpose of impeaching the Plaintiff herein from office as the Governor of Plateau State, vide the media or Newspaper publication is valid or constitutional within the meaning of section 188(2) of the 1999 Constitution (supra).

8.Whether or not the said purported notice of allegation of gross misconduct for the purpose of impeaching the Plaintiff herein as the Governor of Plateau State had been duly served on each member of the 24 (twenty four) members of the Plateau State House of Assembly as envisaged by section 188(2) of the Constitution of the Federal Republic of Nigeria, 1999, let alone fulfilling the conditions for impeachment proceedings.

9.Whether or not the 2nd-7th defendants herein complied with the provisions of section 188(3) & (4) of the Constitution of the Federal Republic of Nigeria, 1999 vis-a-vis moving the motion that the purported allegation of gross misconduct against the plaintiff herein, the Governor of Plateau State be investigated and whether same as passed by the said 2nd-7th defendants on the 13th of October, 2006 was supported by the votes of not less than two-thirds majority of All the 24 (twenty four) members of the Plateau State House of Assembly.

10.Whether or not the purported passing of a motion by the 2nd-7th defendants on the 12th of October, 2006 for the investigation of the allegations of gross misconduct against the plaintiff herein as the Governor of Plateau State and the purported request by a non-existent Speaker of the Plateau State House of Assembly to wit, the 2nd defendant, requesting the Acting Chief Judge of Plateau State to appoint a Panel of 7 (Seven) person to investigate the Plaintiff is valid having regard to the provision of Section 188(4) of the Constitution (supra). 11.Whether the appointment, Constitution and swearing in of the seven (7) man Panel of Investigation headed by the 1st defendant herein and its entire proceedings leading to the purported impeachment of the plaintiff as the Governor of Plateau State in the unholy hours of Monday, the 13th of November, 2006 are in breach of section 188(2), (3), (4), (5) & (7) of the Constitution of the Federal Republic of Nigeria, 1999, and therefore all together null and void and of no effect whatsoever.

12. Whether the right of fair hearing guaranteed to the plaintiff by virtue of sections 36(1) and 188(6) of the Constitution was not violated in the entire impeachment proceedings when-

(a) the plaintiff was not personally served with copy of notice of allegation of gross misconduct;

(b) the plaintiff was not allowed to exhaust his cross-examination of Constable Peter Clark before the Seven (7) Man Panel;

(c) the plaintiff was not given opportunity or allowed to cross-examine Inspector Sunday Musa before the Seven (7) Man Panel submitted Interim Report; and

(d) the plaintiff was not given opportunity to enter his defence much less state his own side of the story before the Seven (7) man panel surreptitiously submitted interim report to six (6) members (or 8) of the Plateau State Assembly resulting in the impeachment of the Plaintiff on Monday, 13th November, 2006.

13. Whether the 2nd – 7th defendants being a faction of members of the Plateau State House of Assembly as well as the Clerk of the House who had been earlier arrested and detained by EFCC in Abuja and who were brought under force of arms by heavily armed mobile Policemen and forced vie et armis to purportedly sit as the Plateau State House of Assembly on the 5/10/2006, 13/10/2006 as well as the purported impeachment of the plaintiff vide a purported proceeding of 13th November,2006 are all together invalid, unconstitutional, null and void as they were not acting of their own free will and volition by reason of duress and coercion by the EFCC or its agents and operatives.

14 Whether the purported impeachment of the plaintiff on Monday, the 13th day of November, 2006 by the 2nd – 7th defendants in pursuance of a purported Interim Report submitted by the 1st defendant is valid in law particularly given the dissolution of the Seven (7) Man Panel on Friday, the 10th day of November, 2006 by the Acting Chief Judge of Plateau State.

15 Whether the 2nd – 7th defendants having in accord with others inaugurated a Special Committee for the Investigation of the Plaintiff for allegation of gross misconduct inter alia pursuant to a letter of complaint from the 2nd defendant dated November 30,2005 and having on June 9, 2006 unanimously received and adopted the said Special Committee Report exonerating the plaintiff can revisit the issue during their own tenure in office or before the expiration of six months.

16. Whether the Seven (7) Man Investigating Panel headed by the 1st defendant, being an inferior body or tribunal, is not obliged to obey the orders of a competent Court established under the Constitution.”

The 1st respondent also claimed twenty four reliefs as follows:

A declaration that the one-third (1/3rd) of the members of the House of Assembly envisaged under Section 188 of the Constitution of the Federal Republic of Nigeria, 1999 for the purpose of signing a notice of allegation does not include the substantive Speaker, or any member appointed to preside at any sitting of the House, for that purpose.

2. A declaration that the Plateau State House of Assembly cannot be properly and validly Constituted by only 6 (or 8) members of that House for the purpose of commencing and concluding impeachment proceedings under section 188 of the Constitution of the Federal Republic of Nigeria, 1999.
3. A declaration that there is no provision for “Speaker Pro tempore” in the Constitution of the Federal Republic of Nigeria, 1999, hence no such person can preside over impeachment proceedings in the House of Assembly pursuant to section 188 of the Constitution (supra). 4. A declaration that section 188 (1), (2), (3) and (4) of the Constitution (supra) must be read in conjunction with and not to the exclusion of other provisions of the Constitution particularly sections 91 to 105 in impeachment proceedings against a governor of a state such as the plaintiff.
4. A declaration that there cannot be a Constitutionally valid impeachment of the plaintiff as the Governor of Plateau State without strict compliance with the provisions of section 188(1) to (9) of the Constitution of the Federal Republic of Nigeria, 1999.
5. A declaration that on a proper interpretation of Section 188 (4) of the Constitution (supra), the 2nd-7th defendants are incapable of forming or constituting the required two-thirds (2/3rd) of the members of the Plateau State House of Assembly, hence they were incapable of passing a valid motion pursuant to Section 188(4) of the Constitution (supra) to the effect that a purported allegation of gross misconduct be investigated against the plaintiff.
6. A declaration that the purported resolution passed by the 2nd-7th defendants on the 13/1 0/2006, pursuant to section 188 (4) of the Constitution is unconstitutional, null and void, having been purportedly passed by less than two thirds (2/3rd) majority of all the members of the Plateau State House of Assembly.
7. A declaration that the purported appointment of the Seven (7) Man Panel of Investigation headed by the 1st defendant by the Acting Chief Judge of Plateau State at the instance of the 2nd-7th defendants to investigate the purported notice of allegation of gross misconduct against the plaintiff herein is unconstitutional, null and void for manifestly being a contravention of Section 188 (4) of the Constitution which requires the of two-thirds majority of all the members of the House of which the 2nd -7th defendants are not.
8. A declaration that the purported Notice of allegation of gross misconduct made against chief (Dr) Chibi Dariye, the Governor of Plateau State as a preparatory step to his impeachment by the 2nd-7th defendants is unconstitutional, null and void, and of no effect whatsoever for want of strict compliance with the provisions of Section 188(1) and (2) of the Constitution of the Federal Republic of Nigeria, 1999.
9. A declaration that the purported notice of allegation of misconduct made by the 2nd – 7th defendants against Chief (Dr) Joshua Chibi Dariye, Governor of Plateau State not having being received and/or served on each of the 24 (twenty four) members of the Plateau State House of Assembly as envisaged by Section 188 (2) of the Constitution of the Federal Republic of Nigeria, 1999 is unconstitutional, null and void and of no effect whatsoever
10. A declaration that the motion passed by the 2nd – 7th defendants on 13th of October, 2006 calling for the investigation of the allegation of misconduct against Chief (Dr) Joshua Chibi Dariye, the Governor of Plateau State, is in contravention of section 188(3) and (4) of the Constitution of the Federal Republic of Nigeria, 1999 and to that extent, and for all intents and purposes the said motion is unconstitutional, null, void and of no effect whatsoever.
11. A declaration that no valid notice of allegation of misconduct has been issued by the 2nd – 7th defendants, same not having been passed through the Clerk of the Plateau State House of Assembly for service on the Plaintiff nor received formally by the Honourable Speaker of the Plateau House of Assembly. Rt. Hon. Simon Lalong in accordance with the provisions of section 188(2)(a) and (b) and section 188(3) of the Constitution of the Federal Republic of Nigeria, 1999.
12. A declaration that the 2nd – 7th defendants who had at all material times been arrested, captured and detained and/or held hostage by the EFCC and/or its servants, operatives or agents and forcefully brought to Jos from Abuja on each occasion and forced them to purportedly sit vie et armis on 5/10/06,13/10/06 and 13/11/06 as the Plateau State House of Assembly never sat or acted willingly, independently or voluntarily but did so under grievous threats, intimidation, duress and coercion all of which have rendered their purported sittings and any decisions or resolutions thereof absolutely null and void and of no legal effect whatsoever.
13. A declaration that the right of fair hearing of the plaintiff enshrined in sections 36(1) and 188(6) of the Constitution of the Federal Republic of Nigeria, 1999 was rampantly violated by the defendants in that there was no proper or valid service of notice of allegation of gross misconduct on the plaintiff, the plaintiff was not given opportunity to fully and properly cross examine witnesses called by the 2nd – 7th defendants before the Seven (7) Man Panel and that the plaintiff was deprived of the opportunity of entering his defence hence the entire impeachment proceedings initiated and concluded by the 2nd-7th defendants including the proceedings

of the Seven (7) Man Panel headed by the 1st defendant are incurably and irredeemably flawed, unconstitutional, null and void and of no effect whatsoever.

15. An order setting aside all the steps taken by the 2nd 7th defendants in relation to the issuance of notice of allegation of misconduct, passage of motion to investigate same and the purported directive to the Acting Chief Judge of Plateau State, the said steps having breached the provisions of Sections 36(1) and 188 of the Constitution of the Federal Republic of Nigeria, 1999.
16. An order nullifying the purported interim or any other report of findings submitted by the seven (7) Man Panel of Investigation against the plaintiff herein to the 2nd-7th defendants herein on the basis of which the 2nd-7th defendants purported impeached the plaintiff as the Governor of Plateau State on the 13th November, 2006.
17. A declaration that the purported impeachment of the plaintiff at the early hours of Monday, the 13th day of November, 2006 by the 2nd – 7th defendants in pursuance of a purported Interim Report by the Seven (7) Man Panel of investigation of allegation of gross misconduct submitted by the 1st defendant is patently illegal, null and void and of no effect as the said panel had already ceased to exist having been dissolved on Friday, the 10th day of November, 2006.
18. A declaration that the 2nd – 7th defendants, having participated in the inauguration of the Special Committee for the Investigation of the plaintiff for corruption, money laundering, abuse of office etc, consequent upon a letter/complaint from the EFCC dated November 30, 2005 and having in concert with other Honourable members of the Plateau State House of Assembly participated in receiving and unanimously adopting the said Committee’s Report exonerating the Plaintiff without objection or dissent cannot resile from same or are estopped from resiling from same during their tenure and/or less than a period of six (6) months thereafter.
19. An order nullifying the purported impeachment of the plaintiff at the early hours of Monday, the 13th day of November, 2006 by the 2nd-7th defendants in pursuance of a purported Interim Report submitted by the 1st defendant as same is a gross transgression of sections 36(1),91-105 and 188 of the Constitution (supra) having regard to the doctrine of fair hearing, due composition of the Plateau State House of Assembly as well as the procedure, for impeachment.
20. An order restoring or re-instating the Plaintiff to his office as the Governor of Plateau State together with the rights, privileges, paraphernalia and perquisites of his said office.
21. A declaration that the conduct of the Seven (7) Man investigating Panel headed by the 1st defendant, an inferior Tribunal scoffing at the orders of a court is a sad sabotage of the rule of law as inferior Tribunals are obliged to obey the orders of a Court.
22. A perpetual injunction restraining the 1st defendant from submitting any further report of the Seven (7) Man Panel of Investigation to the 2nd – 7th defendants against the plaintiff.
23. An order restraining the 2nd – 7th defendants from receiving any report, from the 1st defendant and/or acting on any report from the 1st defendant in respect of the allegation of gross misconduct leveled against the plaintiff.
24. And such further or other orders or reliefs as the Honourable Court may deem fit and just to make or grant in the circumstances.”The appellants responded by filing a notice of preliminary objection on the 12th day of December, 2006 with a 12-paragraphed affidavit in support; a further and better affidavit in support of the preliminary objection of 5 paragraphs on the 13th day of December,2006 and a 38 paragraphed counter affidavit deposed to by the 1st appellant against the affidavit in support of the originating summons. The preliminary objection prayed the court for-

“1. An order striking out this suit for lack of jurisdiction.

Alternatively

2. An order dismissing this suit for being an abuse of court process.”

The grounds of the objection are stated on the motion papers as follows:

1. The originating summons is incompetent since the same is supported by an incompetent affidavit.

PARTICULARS

(a) the deponent, Nde Alexander Molwus does not have the consent of the plaintiff, who had since been declared wanted by the Economic and Financial Crime Commission (E.F.C.C.), and no one including the deponent has an idea of his where about.

2. The suit is incompetent, having regard to section 188(10) of the 1999 Constitution.
3. This suit constitutes an abuse of process as the issues raised herein are in substance similar to the issues raised in suit No. PLD/J463/06; PLD/J45 1106; FHC/J/CS/49/ 06; FHC/ ABJ/CS/374/06 and PLD/J475/06.
4. The plaintiff, being a fugitive from justice, lacks the capacity to maintain an action. The action was filed principally for referral, accordingly it is incompetent:PARTICULARS

(a) There is no difficult question or issue to be resolved by the Court of Appeal.

(b) All the issues sought to be resolved have already been raised in the suits herein before mentioned, in the other courts.”

It is on record that the matter came before DAMULAK, J. on the 13th day of December, 2006 but the court discovered that the 2nd respondent had not been served with the notice of preliminary objection and the matter was adjourned to 15/12/06 for hearing of the preliminary objection and for service on the 2nd respondent. On the 15/12/06 the trial court made the following orders:-

“Having considered .the exigencies of the time and the fact that this is an originating summons. I order that both parties submit their written briefs on the suit along with that of the P/objection. If the preliminary objection succeeds, it will be the end of the matter. If it does not succeed, the substantive suit may be heard and considered. I rely on the procedure adopted in the case of Adeleke v. Oyo State House of Assembly.”

The appellants were not satisfied with the above order and therefore appealed against same to the Court of Appeal. The grounds of appeal are as follows:-

“(a) GROUND ONE

(1) The ruling and directive of the learned trial Judge suo moto on the 15th day of December, 2006 to wit:

“Having considered the exigencies of the time and the fact that this is an originating summons. I order that both parties submit their briefs on the suit along with that of the P/Objection. If the P/Objection succeeds, it will be the end of matter If it does not succeed, the substantive suit may

be heard and considered”

Constituted a gross violation of the appellants’ right to fair hearing by the court.

PARTICULARS OF ERROR

(i) The trial Judge did not seek for or take any address/contribution from counsel to the appellants before proceeding to issue fresh directives that clearly resulted in his sitting on appeal over his previous decision dated 13th December, 2006.

(ii) The ruling/directive was not prompted by any of the parties as the parties were clearly satisfied with the ruling dated 13th December, 2006.

(iii) The trial Judge had descended into the arena when he without reference to the appellants reviewed and overruled his earlier decision dated 13th December, 2006 and proceeded to issue fresh directives.

(iv) The trial Judge never invited counsel to address the court on the issue before somersaulting on his earlier decision dated 13th December, 2006 barely 48 hours later.

(b) GROUND TWO

The learned trial Judge acted without jurisdiction when he suo moto ruled and directed thus:

“Having considered the exigencies of the time and the fact that this is an Originating summons. I order that both parties submit their briefs on the suit along with that of the P/objection. If the P/Objection succeeds, it will be the end of the matter. If it does not succeed, the substantive suit may be heard and considered”

On the 15th day of December, 2006 having become functus officio on the issue given his earlier decision on same issue on 13th December 2006.

PARTICULARS OF ERROR

(i) The trial Judge had in a considered ruling on the 13th day of December, 2006 directed that the preliminary objection be taken first after taking arguments from counsel to the parties thereby resting the issue before his court.

(ii) It is trite law that after reaching the considered ruling on the issue on the 13th December, 2006 the trial Judge became functus officio on the issue particularly after he had taken arguments from the contending parties.

(iii) It is trite law that a judge cannot over rule or review his earlier decision unless it was made without jurisdiction.

3. RELIEFS SOUGHT
4. An order setting aside the ruling and the directive of the trial Judge dated 15th day of December, 2006 for lack of jurisdiction.
5. A further order entertaining the appellants’ argument on the Preliminary Objection in line with the earlier order of the trial Judge dated 13th day of December, 2006 pursuant to section 16 of the Court of Appeal Act.
6. An order striking out the plaintiff/respondent’s suit at the court below or lack of jurisdiction Alternatively
7. An order remitting the suit for the hearing of the originating summons (if the preliminary objection fails) by the lower court differently constituted.”

The 1st respondent filed a respondent’s notice on the 21st day of December, 2006 and urged the court to invoke the provisions of section 16 of the Court of Appeal Act to hear both the preliminary objection and the originating summons together. It should also be noted that the appellants did request the Court of Appeal to also invoke its powers under section 16 of the Court of Appeal Act to hear and determine the Preliminary Objection in the “Relief Sought” in their notice of appeal to the Court of Appeal. At the end, the Court of Appeal determined the appeal, the preliminary objection and the originating summons in the judgment subject of the instant appeal. The Court of Appeal dismissed the appellants’ appeal as well as the preliminary objection and granted the reliefs of the 1st respondent in the originating summons after a detailed consideration of the facts and issues involved and arguments of both counsel thereon in their respective briefs of argument filed in the matter. In acting as stated supra, the Court of Appeal was exercising its powers under section 16 of the Court of Appeal Act.

The issues for determination, as identified by learned leading senior counsel for the appellants, CHIEF GANI FAWEHINMI, SAN, in the appellants’ brief of argument filed on 3/4/07 and adopted in argument on 16/4/07 are as follows:

“1. Whether the Court of Appeal was right in invoking section 16 of the Court of Appeal Act (now section 15 of the Court of Appeal Act. Cap. C. 36 LFN 2004) then neither the appellants’ notice of preliminary objection nor the 1st respondent’s originating summons had been heard and determined by the trial court (Ground 4). Whether the removal or impeachment of the respondent, Chief Joshua Chibi Dariye, by 8 out of 10 members of the Plateau State House of Assembly, at the relevant time, satisfy (sic) the requirements of section 188 of the Constitution of the Federal Republic of Nigeria, 1999, 14 members of the said House having vacated their seats by operation of law (Grounds 1 and 2) Whether the Court of Appeal was right in the circumstances of this case in holding that the Plateau State House of Assembly should have waited till the 14 seats vacated by the operation of law were filled before they could embark on the removal or impeachment of the 1st respondent, Chief Joshua Chibi Dariye. (Ground 3).”

On the other hand, learned senior counsel for the 1st respondent EMMANUEL J.J. TORO ESQ, SAN, in the 1st respondent’s brief of argument filed on 5/4/07 and adopted in argument on 16/4/07 has identified the following two issues for the determination of the appeal:

“(1) Whether having regard to this peculiar facts and circumstances in this case the Court of Appeal was right in invoking the powers vested on it by section 16 of the Court of Appeal Act, Cap. 75 LFN, 1990. to hear and determine both the preliminary objections and the originating summons in this case (Ground 4).

(2) Whether there was compliance with section 188 (2), (4), (5) and (9) of the Constitution of the Federal Republic of Nigeria, 1999, in the removal of the 1st respondent as the Governor of Plateau State having regard to the entire circumstances of this case. (Ground 1,2 and 3)”

Before proceeding any further, it is important to note that the learned senior counsel for the 1st respondent has filed a notice of preliminary objection against grounds 1, 2 and 3 of the grounds of appeal on the following grounds:

“(i) The said grounds 1,2, and 3 are grounds of facts as at the very best, grounds of mixed law and facts.

(ii) By virtue of the provisions of section 233(2) of the Constitution of the Federal Republic of Nigeria, 1999, it is a fundamental condition precedent to obtain the prior leave of either the Court of Appeal or of the Supreme Court before the Appellants can validly raise grounds of facts or mixed law and facts at the Supreme Court.

(iii) The appellants herein never obtained the leave of either the Court of Appeal or the Supreme Court before filing the aforementioned grounds of facts or of mixed law and facts.

(iv) Grounds 1,2, and 3 are argumentative and narrative in nature.

(v) Arising from all the foregoing, the said grounds numbers 1, 2, and 3 are incompetent and should be struck out accordingly.”

In arguing the preliminary objection, learned senior counsel for the 1st respondent submitted that ground 1 of the grounds of appeal when read with the particulars relating thereto raise issues of fact or at best mixed law and facts as the particulars raise the issue as to whether the 14 members of the Plateau State House of Assembly have in fact decamped to another political party which is an issue or subject matter of several cases pending in court as evidenced in exhibits A, B and C attached to appellant’s notice of preliminary objection at the trial Court, that the said ground 1 is also incompetent for being narrative and argumentative contrary to the provisions of Order 8 rule 2(3) of the Supreme Court Rules.

On ground 2, learned senior counsel submitted that it raises the issues as to whether or not the 1st respondent was served with the notice of allegation of gross misconduct whereas the lower court had found to the contrary; that the ground also raises the issue as to whether the 1st respondent was allowed to cross examine the witnesses who testified against him at the Panel of Investigation which was a fact also determined to the contrary by the lower court: that there is no appeal against the specific findings of fact by the lower court supra though the appellants are seeking to argue to the contrary in this Court by virtue of ground 2; that ground 2 with the 10 lengthy particulars is most argumentative and narrative, and therefore incompetent.

Turning to ground 3, learned senior counsel submitted that it raises issues of fact as to the vacancies at the House of Assembly whether or not the 14 members have indeed vacated their seats.

Learned counsel then submitted that by the provisions of section 233(3) of the 1999 Constitution an appellant who raises a ground of fact or mixed law and fact must first obtain the leave of the Court of Appeal or this Court, otherwise the ground would be incompetent and liable to be struck out, relying on:

Long – John v. Blakk (2005) 17 NWLR (Pt. 953) 1 at 8-9; Briggs v. C.L.O.R.S.N (2005) 12 NWLR (Pt. 938) 59 at 86. Oforkire v. Maduike (2003) 5 NWLR (Pt. 812) 166 at 176 and Orakosim v. Menkiti (2001) 9 NWLR (Pt.719) 529; (2001) 5 SCNJ 1. On incompetent narrative or argumentative grounds of appeal, learned counsel cited and relied on the Military Administrator, Benue State & Ors v. Ulegede & Anor (2001) 10 SCNJ 43; (2001) 17 NWLR (Pt.741) 194 and A.-G., Federation v. ANPP (2003) 15 NWLR (Pt. 844) 600.

Finally, citing and relying on Akubu v. Oduntan (2007) 7 SCNJ 1981; Mark Kele v. Nwerebere (1998) 3 NWLR (Pt.543) 515; (1998) 3 SCNJ 84; Thor Ltd. v. FCMB Ltd. (2002) 4 NWLR (Pt.757) 427 at 446, learned senior counsel urged the court to strike out grounds 1, 2, and 3 of the grounds of appeal as the same are incompetent together with the issue formulated there from. On his part, learned senior counsel for the appellants in the appellants’ reply brief filed on the 11/4/07 submitted that grounds 1, 2 and 3 of the grounds of appeal are neither narrative, argumentative nor are they of facts or mixed law and facts. Counsel then proceeded to reproduce the affected grounds of appeal and submitted that the grounds are of law and not of facts or mixed law and fact; that the said grounds call for the interpretation and application of the constitutional provisions to the stated facts as found by the Court of Appeal; that the nature of a ground of appeal is not determined by the form of the ground but by the question it raises, relying on M.D.P.D.T. v. Okonkwo (2001) 7 NWLR (Pt.711) 206 at 232; that ground 2 questions the decision of the lower court that the removal of the 1st respondent violated the provisions of section 188 of the 1999 Constitution while ground 3 questioned the interpretation of the said section 188 by the lower court which found that 14 members of the House have vacated their seats by operation of law pursuant to section 109(1) (g) and taking into account the effect of section 102 both of the 1999 Constitution. For the above submission learned senior counsel cited and relied on Ogbechie v. Onochie (1986) 2 NWLR (Pt. 23) 484 at 491-492; Nwadike v. Ibekwe (1987) 4 NWLR (Pt.67) 718 at 744.

Turning to the ground of objection to the effect that the said grounds of appeal are narrative or argumentative, learned senior counsel submitted that they are not and that once a ground of appeal is concise and clear and is not argumentative or narrative the fact that the particulars appear to be argumentative or narrative the fact that the particulars appear to be argumentative is not sufficient to deny a right of appeal provided on the face of the ground, an issue of law arises for determination; that serious issues of law are raised in grounds 1, 2 and 3 of the grounds of appeal and urged the court to overrule the preliminary objection for being misconceived.

The grounds of appeal complained of, without their particulars, complain as follows:-

Ground One

The learned justices of the Court of Appeal erred in law in holding that the required 2/3 (two third) majority of the Plateau State House of Assembly for the purpose of impeaching the 1st respondent as the Governor of Plateau State at the time they did means at least (sixteen) members of the Plateau State House of Assembly out of 24 (twenty-four) members.

Ground Two

The Court of Appeal erred in law in holding that the impeachment or all the processes of the impeachment of the 1st respondent, Chief Joshua Chibi Dariye, by the Plateau State House of Assembly violated the provision of section 188 of the Constitution of the Federal Republic of Nigeria, 1999.

Ground Three

The learned Justices of the Court of Appeal erred in law when they held as follows:-

‘The Plateau State House of Assembly had 24 members,14 seats were vacated leaving only 10 members, out of, which 8 initiated and carried out the impeachment proceedings, 8 is 1/3 out of 24 and represents 1/3 of the constituency of the population of Plateau State. They do not represent 2/3 population of Plateau State and do not therefore have the mandate of the people to remove a Governor elected by 2/3 majority of the electorate in Plateau State. I agree 8 is more than 2/3 of 10 but 8 less than 2/3 of 24. The 8 members are not the 2/3 contemplated by section 188, section 102 notwithstanding.

Nobody prevents the 8 members from impeaching a Governor whom they believe has committed acts of gross misconduct. They should however go about it the right way, legally, constitutionally. The 14 vacancies should be filled and only then, when there is a full representation of the people of Plateau State, in the House can they embark on an impeachment of a serving Governor who is in office by the votes of the people of Plateau State. Their action can therefore not be the action of the Plateau State House of Assembly.”

Section 233(3) of the 1999 Constitution provides that:

“(3) Subject to the provisions of subsection (2) of this section, an appeal shall lie from the decisions of the Court of Appeal to the Supreme Court with the leave of the Court of Appeal or the Supreme Court.”

Now, subsection (2) to which subsection (3) is subject provides for situations or circumstances in which a party can appeal against a decision of the Court of Appeal to the Supreme Court as of right.

The question is whether it can be said that grounds 1, 2, and 3 of the grounds of appeal are of facts or mixed law and facts so as to bring into operation the provisions of section 233(3) of the 1999 Constitution which demands that the leave of either the Court of Appeal, whose decision is being appealed against or the Supreme Court, must first be sought and obtained to make such grounds of facts or mixed law and facts competent. It is settled law that “the important consideration in the determination of the nature of a ground of appeal is not the form of the ground but the question it raises” per AYOOLA, JSC in M.D.P.D.T v. Okonkwo supra at 232.

A close look at grounds 1, 2, and 3 of the grounds of appeal supra clearly show that the grounds complain against the wrong interpretation of constitutional provisions relevant to the determination of the case and misapplication of the relevant law. In Nwadike v. Ibekwe (1987) 4 NWLR (Pt. 67) 718 at 744 NNAEMEKA AGU, JSC stated the law as follows:

“(i) It is an error in law if the adjudicating tribunal took into account some wrong criteria in reaching its conclusion or applied some wrong standard of proof or, if although applying the Correct criteria, it gave wrong weight to one or more of the relevant factors; See O’Kelly v.Trusthouse Forte P.I.C. (1983) 3 All ER at p. 468.

(ii) Several issues that can be raised on legal interpretation of deeds, documents, terms of art, words or phrases, and inferences drawn there from are grounds of law: Ogbechie v. Onochie (supra) at pp. 491 – 492.

(iii) Where a ground deals merely with a matter of inference, even if it be an inference of fact, a ground framed on it is a ground of law; provided it is limited to admitted or proved and accepted facts. Edwards v. Bairstow (supra) at p.55; H.L., for many years it has been recognized that inferences to be drawn from a set of proved or undisputed facts, as distinct from primary facts, are matters upon which an appellate court is as competent as the court of trial. See Benmax v. Austin Motor Co. Ltd. (1945) All ER 326 at p. 327.

(iv) Where a tribunal states the law on a point wrongly, it commits an error in law.”

In the case of Ogbechie v. Onochie (supra) referred to in Nwadike v. Ibekwe supra, Eso, J.S.C. stated the relevant principles of law at pages 491 – 492 as follows:

“(ii) If the tribunal approached the construction of a legal term of art in statute on the erroneous basis that the statutory wording bears its ordinary meaning – it is a question of law.

(iii) If the tribunal approached the construction of a statutory word or phrase bearing an ordinary meaning on the erroneous basis that it is a legal term of art – it is a question of law.

(iv) If the tribunal correctly treating a statutory word or phrase as a legal term of art errs in elucidation of the word or phrase – it is a question of law.

(v) If the tribunal errs in its conclusion (that is, in applying the law to the facts) in a case where this process requires the skill of a trained lawyer, it is an error in law.”

It is clear that since grounds 1,2, and 3 of the grounds of appeal questioned the interpretation and conclusions reached by the lower court in relation to the relevant provisions of the 1999 Constitution particularly sections 188, 102 thereof, the said grounds are of law and nothing more having regard to the statements of the relevant applicable law supra. That being the case, I hold the considered view that section 233(2) of the 1999 Constitution is not relevant to the said grounds of appeal. I also do not find the grounds argumentative or narrative as contended by learned senior counsel for the 1st respondent and therefore come to the conclusion that the preliminary objection is without merit and is consequently overruled.

On issue 1, learned senior counsel for the appellants submitted, by way of conclusion as follows:

The lower court was in error in invoking section 16 of the Court of Appeal Act when neither the appellants’ notice of preliminary objection nor the 1st respondent’s originating summons had been heard and determined by the trial court; that the exercise of the appellate jurisdiction of the Court of Appeal as conferred by section 240 of the 1999 Constitution must be tied to the questions arising from the decision of the trial court which must be contained in a valid ground of appeal; that the lower court having dismissed the appellant’s appeal and by the nature of the appellant’s notice of appeal and the stage of the proceedings at the court of trial, the lower court had no further appellate jurisdiction to exercise in the matter in the circumstances; that the power of the Court of Appeal under section 16 of the Court of Appeal Act cannot override the original jurisdiction of the State High Court as conferred by section 272 of the 1999 Constitution; that before the said section 16 of the Court of Appeal can be invoked for the determination of the real question in controversy in an appeal that question must be a ground of appeal:

that contrary to the holding of the lower court, the appellants did not consent or concede to the invocation of section 16 of the Court of Appeal Act but opposed its application; that section 16 of the Court of Appeal Act was not intended to expand or enlarge the appellate jurisdiction of the Court of Appeal and in any event consent or agreement of parties cannot confer jurisdiction on a court when it has none; that filing of a respondents notice to an existing appeal does not allow or permit a respondent to introduce fresh issues unrelated to the appellant’s appeal, and urged the court to resolve the issue in favour of the appellants.

On his part, learned senior counsel for the 1st respondent stated that the scope and amplitude of the wide powers and jurisdiction vested on the Court of Appeal, particularly in impeachment proceedings, where time is of the essence in view of the threat to the in extinction of the res, were considered and applied by this Court in the case of Inakoju v. Adeleke (2007) 4 NWLR (Pt.1025) 423 at 611 – 618 that the instant case meets all the conditions needed for the Court of Appeal to exercise its powers under section 16 of the Court of Appeal Act to hear and determine both the preliminary objection and the originating summons in the case, particularly as both counsel applied that the court below should invoke its powers under the said section 16 of the Court of Appeal Act to deal with the matter before it, that both counsel made elaborate submissions in respect of the preliminary objection and the substantive matter in their respective briefs of argument before the lower court; that parties are not allowed to approbate and reprobate relying on Ajide v. Kelani (1985) 11 S.C 124; (1985) 3 NWLR (Pt.12) 248; Tinubu v. IMB (2001) 16 NWLR (Pt.740) 670 at 707; Abdul-Raheem v. Oloruntoba-Oju (2006) 15 NWLR (Pt I003) 581; that without consent of the parties the lower court has the power to invoke section 16 of the Act suo moto where the circumstances warrant or justifies it; that impeachment proceedings are sui generis as such the numerous decided case cited by his learned friend in the appellants’ brief concerning normal civil proceedings do not apply to the peculiar and extreme urgency necessitated by impeachment related proceedings; that the distinctions sought to be made between the instant case and that of Inakoju v.Adeleke (supra) by learned senior counsel for the appellants is a distinction without a difference as the facts are very similar. Turning to the sub-issue of the respondent’s notice, learned senior counsel submitted, that there was no ground of appeal in support of the attack leveled against the said respondent’s notice and that the fate of the respondent’s notice is not dependent on the appellants’ appeal, relying on Ogunbadejo v. Owoyemi (1993) 1 NWLR (Pt.271) 517 or 531. Learned counsel then urged the court to resolve the issue against the appellants.

It is settled law that jurisdiction is a radical and crucial question of competence because if a court has no jurisdiction to hear and determine a case, the proceedings are and remain a nullity ab initio, however well conducted and brilliantly decided they might be since a defect in competence is not intrinsic, but extrinsic to the entire process of adjudication. Jurisdiction is therefore considered to be the nerve centre of adjudication; the blood that gives life to the survival of an action in a court of law in the very same way that blood gives life to the human being in particular and the animal race in general- See Onyenucheya v. Milad, Imo State (1997) 1NWLR

(Pt.482) 429; Madukolu v. Nkemdilim (1962) 2 SCNLR 341 Barsoum v. Clemessy International (1999) 12 NWLR (Pt.632) 516; Utih & ors v. Onoyivwe (1991) 1 NWLR (Pt. 166) 166.

It is the argument of learned senior counsel for the appellants that the lower court had no jurisdiction in the circumstances of the case to have proceeded, under section 16 of the Court of Appeal Act, to determine the substantive matter before the trial court having regard to the grounds of appeal and the issues before the lower court. The question then is: What does section 16 of the Court of Appeal Act provide The section enacts the following:

“16. The Court of Appeal may, from time to time, make any order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal, and may direct the court below to inquire into and certify its findings on any question which the Court of Appeal thinks fit to determine before final judgment in the appeal, and may make an interim order or grant any injunction which the court below is authorized to make or grant and may direct any necessary inquiries or accounts to be made or taken, and, generally shall have full jurisdiction over the whole proceedings as of the proceedings had been instituted in the Court of Appeal as court of first instance and may re-hear the case in whole or in part or may remit it to the court below for the purpose of such rehearing or may give such other direction as to the manner in which the court below shall deal with the case in accordance with the powers of that court, or, in the case of an appeal from the court below, in that court’s appellate jurisdiction, order the case to be re-heard by a court of competent jurisdiction.” (Emphasis supplied.)

It is clear from the above provisions that the powers conferred on the Court of Appeal by section 16 of the Act are very wide indeed as they enable the appellate court to exercise all the powers of a court of first instance – see Jadesimi v. Okotie Eboh (1986) 1 NWLR (Pt. 16) 264; U.B.N. Ltd. v. Fajebe Foods & Poultry Farms (1994) 5 NWLR (Pt. 344) 325; Igiehon v. Omoregie (1993) 2 NWLR (Pt.276) 398; Ejowhomu v. Edok-Eter Mandilas Ltd. (1986) 5 NWLR (Pt.39) 1: A.-G., Anambra State v. Okeke (2002) 12 NWLR (Pt.782) 575; Cappa & D ‘Alberto Ltd. v. Akintilo (2003) 9 NWLR (Pt. 824) 49.

It is also settled law that section 16 of the Court of Appeal Act can be invoked in order to facilitate the speedy administration of justice as it is designed to avoid multiplicity of proceedings and hearings. Instead of sending the case back to the trial Judge for a trial, section 16, in an appropriate case empowers the Court of Appeal to assume the jurisdiction of the trial court and determine the real question in controversy between the parties so as to save much needed time in the administration of justice in this country; See Inakojuv. Adeleke supra at 616.

However, section 16 is not an all purpose or limitless power for the Court of Appeal to divest the High Court of the original jurisdiction conferred on it by law. It is settled law that the Court of Appeal cannot hide under section 16 to expand its jurisdiction. The question then is whether the instant case is an appropriate one for the Court of Appeal to exercise its powers under section 16 of the Court of Appeal Act.

To answer the question, it is necessary to bear the following undisputed facts in mind, viz;

(i) that the action before the trial Court was instituted by an originating summons supported by an affidavit.

(ii) that the appellants filed a preliminary objection to the jurisdiction of that court to hear and determine the matter as constituted.

(iii) in addition to the preliminary objection, appellants filed a 38 paragraphed counter affidavit to the affidavit in support of the originating summons thereby joining issues with the 1st respondent in the substantive action.

(iv). the res in the matter is the office of the 1st respondent as Governor of Plateau State which expires on the 29th day of May, 2007 which on 8th March, 2007 when the lower Court gave its judgment had barely or a little over two months to go. The said res is therefore perishable by effluxion of time.

It is now settled that impeachment proceedings are sui generis as they belong to a class of their own and time is of the essence. It was therefore held by this court in the most recent case of Inakoju v. Adeleke supra at 626 – 627 that although the judicial process is slow most of the time, almost taking a snails pace, where the res in the case before the court is in danger of being wiped out, the judiciary must take the fast track or lane and do all that is possible to give it a speedy hearing. However, the powers conferred on the Court of Appeal by section 16 of the Court of Appeal Act are exercisable by that court where certain fundamental conditionalities are met, such as:-

(a) availability of the necessary materials to consider and adjudicate in the matter;

(b) the length of time between the disposal of the action at the trial court and the hearing of the appeal; and

(c) the interest of justice by eliminating further delay that would arise in the event of remitting the case back to the trial court for rehearing and the hardship such an order would cause on either or both parties to the case. see Inakoju v. Adeleke supra at 691 – 692.

It is my considered view that from the facts and surrounding circumstances of this case, the above preconditions existed in the instant case and that the lower Court was right in acceding to the plea of the counsel for the parties to invoke its powers to take the decisions it took in the interest of justice, equity and good conscience.

I hold the further view that the decisions taken had expeditiously disposed of the matters in controversy thereby saving the judiciary from embarrassment that would have arisen had the alternative option of sending the case for retrial de novo been adopted by that court as presently urged upon this court by learned senior counsel for the appellants – see Adeyemi v. Y. R. S. Ike-Oluwa & Sons Ltd. (1993) 8 NWLR (Pt. 309) 27; In Re: Adewumi (1988) 3 NWLR (Pt. 83) 483; University of Lagos v. Olaniyan (1985) 1 NWLR (Pt.1) 156; Yusuf v. Obasanjo & Ors, (2003) 16 NWLR (Pt. 847) 554. The originating summons procedure is a means of commencement of action adopted in cases where the facts are not in dispute or there is no likelihood of them being in dispute and when the sole or principal question in issue is or is likely to be one directed at the construction of a written law, Constitution or any instrument or of any deed, will, contract or other document or other question of law or in a circumstance where there is not likely to be any dispute as to the facts. In general terms, it is used for non-contentious actions or matters i.e. those actions where facts are not likely to be in dispute.

In actions commenced by originating summons, pleadings are not required rather affidavit evidence are employed: See Director; State Security Service v. Agbakoba (1999) 3 NWLR (Pt. 595) 314; Din v. A-G. of the Federation (1986) 1 NWLR (Pt.17) 471; Keyamo v. Lagos State House of Assembly & Ors. (2002) 18 NWLR (Pt. 799) 605.

It follows that proceedings commenced by originating summons are very expeditiously dealt with particularly as witnesses are rarely called and examined. It is therefore a must appropriate mode of commencing the instant action since impeachment proceedings are sui generis (in a class of their own) and time is of the essence. In this case, the tenure of the 1st respondent is to expire by 29th May, 2007 and it is very important that a decision, one way or the other, has to be made.

That apart, it is settled law that where an objection is raised to the jurisdiction of the court in a matter commenced by originating summons where the evidence required is in the form of affidavit as in the instant case, it may be prudent to hear together the arguments as to jurisdiction and the merits of the case – see Senate President v. Nzeribe (2004) 9 NWLR (Pt. 878) 251; Inakoju v. Adeleke supra. In the instant case, the central issue of fact and which is not disputed, is whether the actions of 8 out of 10, out of a 24 membership Plateau State House of Assembly constitute the constitutionally required 2/ 3 majority of all the members” of that Assembly for the purpose of impeaching the 1st respondent under section 188 of the 1999 Constitution.

On the respondent’s notice, I agree with the learned senior counsel for the 1st respondent that the attack on the respondent’s notice is not grounded on any ground of appeal whatsoever and it is therefore not sustainable. I therefore resolve issue 1 against the appellants.

On issues 2 & 3 learned senior counsel for the appellants referred the court to the 12 commandments for interpreting the provisions of the Constitution as laid down by this Court in the case of A-G., Bendel State v. A-G. of the Federation (1982) 3 NCLR 1 at 77-78 and urged the court to apply same to the facts of this case. Learned senior counsel agreed that the Plateau State House of Assembly has twenty-four members out of which 14 members, including the Speaker and Deputy Speaker, decamped from PDP the party on whose platform they contested and won election into that by operation of section 109(1)(g) of the 1999 Constitution, they automatically forfeited their seats and ceased to be members of the House of Assembly; that the Plateau State House of Assembly thereby had 10 members at all relevant times out of which 8 members initiated and carried out the impeachment proceeding of the 1st respondent; that the removal or impeachment of the 1st respondent as a result of the above process is constitutionally the exclusive preserve of the constituted members of the House of Assembly at any given time; that for the purpose of computing the ratio of number of members of the Plateau State House of Assembly competent to perform legislative duties, at the relevant time, vacant seats cannot be reckoned with not being within the contemplation of section 188 of the 1999 Constitution as “vacant seats” are not members; that the existence of vacancies in the membership of Plateau State House of Assembly cannot operate as a bar to the performance of legislative duties of the Plateau State House of Assembly by the 10 remaining members of the House pursuant to section 102 of the 1999 Constitution, that all the requirements of section 188 of the 1999 Constitution for the removal of the 1st respondent were duly complied with; that it is a cardinal rule of construction that constitutional provision should not be interpreted to defeat its evident purpose, that the proceedings of the Plateau State House of Assembly presided over by the 1st appellant were constitutionally justifiable because by rule 8 of the Plateau State House of Assembly made pursuant to section 95(2) of the 1999 Constitution, the House may elect any of its members as Speaker Pro tempore to preside over legislative proceedings in the absence of the Speaker and Deputy operation of law pursuant to section 109(l)(g) of the 1999 Constitution and urged the court to resolve the issues in favour of the appellants, allow the appeal, set aside the judgment of the Court of Appeal delivered on 8/3/07 and remit the appellant’s notice of preliminary objection and the 1st respondent’s originating summons to the trial court for adjudication or in the alternative an order dismissing the 1st respondent’s originating summons. It should be noted that the submission in the alternative to the effect that the 1st respondent’s originating summons be dismissed presupposes that it be heard by this court and dismissed or the decision of the Court of Appeal that heard and granted same be reversed and an order of

dismissal of same substituted by this court.

On his part, learned senior counsel for the 1st respondent submitted that the issue before the court is the proper interpretation and determination of what constitutes the quorum of the Plateau State House of Assembly for purposes of removal proceedings under section 188 of the 1999 Constitution; in view of the minimum and maximum numbers of any State House of Assembly in Nigeria as contained in section 91 of the 1999 Constitution; that also to be considered in the process is the interpretation of section 102 of the same Constitution dealing with vacancy in the House, that by the provisions of section 91 of the 1999 Constitution particularly the proviso thereto, it is mandatory that State Houses of Assembly in Nigeria must have a total membership of at least 24 and not more than 40 members; that it is not disputed that the Plateau State House of Assembly has 24 members and that 2/3 of 24 is 16 members; that section 96(1) of the 1999 Constitution provides for ordinary quorum required for the normal business or sitting of the House as 1/3 of all members of the House which means 1/3 of 24; that the 2/3 of

members envisaged under section 188 of the 1999 Constitution is not 2/3 of 10 members but 2/3 of all members of the House of 24 which is 16 members; that the court should use the holistic approach to the interpretation of section 188 of the 1999 Constitution so as to determine the actual meaning of the words “two-thirds of all the members of the House” particularly as the term or phrase is used in other sections such as 9(2) & (3); 143(4) & (9) and also section 305, that the seats of the 14 members of the House had not become automatically vacant by operation of law and that the case of Oloyo v. Alegbe (1985) 6 NCLR 61 is not applicable to the facts of this case particularly as section 109(1) of the 1999 Constitution is different from section 103(1) of the 1979 Constitution on which the case of Oloyo v. Alegbe was decided; that subsection 2 of section 109 introduced an innovation by making the Speaker of the House to have a significant role to play in the matter.

Referring to the provisions of section 102 of the 1999 Constitution, learned Senior Counsel submitted that the operative word in the section is “May” which learned counsel maintains means that the House mayor may not act, depending on the circumstances of the case; that the provision is directory not mandatory; that the said provision cannot derogate from the specific provisions of section 188(3), (4) and (9) of the 1999 Constitution, relying on the case of Inakoju v.Adeleke supra at 629 per TOBI, JSC. Finally learned senior counsel urged this court to resolve the issue against the appellants and dismiss the appeal.

The relevant sections of the 1999 Constitution that calls for construction or interpretation are sections 102, 109 & 188 of the 1999 Constitution which provide as follows:

“102 A House of Assembly may act notwithstanding any vacancy in its membership, and the presence or participation of any person not entitled to be present at or to participate in the proceedings of the House shall not invalidate such proceedings.”

“109(1) A member of a House of Assembly shall vacate his seat in the House if –

(g) being a person whose election to the House of Assembly was sponsored by a Political Party, he becomes a member of another political party before the expiration of the period for which he was elected.

Provided that his membership of the latter political party is not as a result of a division in the political party of which he was previously a member or of a merger of two or more political parties or factions by one if which he was previously sponsored; or … ”

“188

(1) The Governor or Deputy Governor of a State may be removed from office in accordance with the provisions of this section.

(2) Whenever a notice of any allegation in writing signed by not less than one-third of the members of the House of Assembly –

(a) is presented to the Speaker of the House of Assembly of the State;

(b) stating that the holder of such office is guilty of gross misconduct in the performance of the functions of his office, detailed particulars of which shall be specified, the Speaker of the House of Assembly shall, within seven days of the receipt of the notice, cause a copy of the notice to be served on the holder of the office and on each member of the House of Assembly, 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 House of Assembly.

(3) 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.

(4) 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.

(5) Within seven days of the passing of a motion under the foregoing provisions of this section, the Chief Judge of the State shall at the request of the Speaker of the House of Assembly, appoint a Panel of seven persons who in his opinion are of unquestionable integrity, not being members of any public service, legislative house or political party, to investigate the allegation as provided in this section.

(6) 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.

(7) 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 House of Assembly; and

(b) within three months of its appointment, report its findings to the House of Assembly.

(8) Where the Panel reports to the House of Assembly that the allegation has not been proved, no further proceedings shall be taken in respect of the matter.

(9) Where the report of the Panel is that the allegation against the holder of the office has been proved, then within fourteen days of the receipt of the report, the House of Assembly shall consider the report, and if by a resolution of the House of Assembly 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.

(10) No proceedings or determination 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.

(11) In this section-

“gross misconduct” means a grave violation or breach of the provisions of this Constitution or a misconduct of such nature as amounts in the opinion in the House of Assembly to gross misconduct.”

Both parties and the lower court agreed that –

(a) the Plateau State House of Assembly is made up of 24 members and that at all time material to this action 14 of those members who were initially sponsored by and elected under the platform of the Peoples Democratic Party (PDP) cross-carpeted to another political party the Advanced Congress of Democrats thereby rendering their seats vacant by virtue of the provisions of section 109(1) (g) of the 1999 Constitution.

(b) that out of the remaining 10 members of the Plateau House of Assembly 8 of them initiated and carried out the impeachment proceedings of the 1st respondent.

(c) that though 8 members is more than 2/3 of 10 members, they constitute 1/3 of the total 24 members of the House.

It is settled law that the Constitution of any country is what is usually called the organic law or grund norm of the people. It contains all the laws from which the institutions of state derive their creation, legitimacy and very being. The Constitution is also the unifying force in the nation apportioning rights and imposing obligations on the people who are subject to its operation. It is a very important composite document, the interpretation or construction of which is subject to reorganized cannons of interpretation designed or crafted to enhance and sustains the esteem in which Constitutions are held the world over. The main guideline to the construction of the Constitution is as laid down by this Court in the case of Rabiu v. Kano State (1980) 811 SC 130 at 1 – 149 per Sir Udo Udoma, JSC as follows:-

” … 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.”

It is settled law that the courts cannot amend the Constitution neither can they change the words. It is also a principle of interpretation that the language of the Constitution where clear and unambiguous, must be given its plain evident meaning and that a constitutional provision should not be construed so as to defeat its evident purpose. It is also settled law that provisions of the Constitution are not to be interpreted in isolation but that other provisions must be taken into consideration in the exercise. It is my considered view that the words used in the sections of the 1999 Constitution, reproduced earlier in this judgment, are very clear and unambiguous. In the case of Fawehinmi v. I.G.P (2002) 7 NWLR (Pt. 767) 606 at 678 this Court stated the law thus:

“The proper approach to the interpretation of clear words of a statute is to follow them, in their simple, grammatical and, ordinary meaning rather than look further because that is what prima facie gives them their most reliable meaning: See African Newspapers v. Federal Republic of Nigeria (1985) 2 NWLR (Pt.6) 137; Salami v. Chairman L.E.D.B (1989) 5 NWLR (Pt.123) 539; Ogbonna v.Attorney-General, lmo State (1992) 1 NWLR (Pt.220) 647. This is generally also true of the construction of Constitutional provisions if they are clear and unambiguous even when it is necessary to give them a liberal or broad interpretation.”

It should be noted that section 188 which deals with the removal or impeachment of a Governor or Deputy Governor from office talks of “members” and “all members” in different subsection and while describing the function or duties of the members of the House in relation to the removal of the Governor or Deputy Governor there under. In subsection 2 of section 188 it is provided thus:

“(2) Whenever a notice of any allegation in writing signed by not less than one third of the members of the House of Assembly …”

While subsection 9 of section 188 provides thus:

“(9) Where the report of the Panel is that the allegation against the holder of the office has been proved, then within fourteen days of the receipt of the report, the House of Assembly shall consider the report, and if by a resolution of the House of Assembly 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.”

It is clear that whereas the initiation of the impeachment process requires the signatures of not less than one-third of the members of the House of Assembly on the notice of written allegation of gross misconduct against the Governor or Deputy Governor intended to be impeached, the actual removal of the said Governor or Deputy Governor requires the support of “not less than two-thirds majority of all its members … ”

Can it be said that the term “one third of the members” and “two-thirds majority of all its members” mean the same thing If so why not simply use the same expression in the two subsections

I am of the view that the words used are very clear and very unambiguous and should be given their literal meanings. I am of the view that when subsection (2) of section 188 is compared with subsection (9) of section 188 it becomes clear that the expression “of the members” and “all the members” do not mean the same thing. I hold the further view that the expression “all the members” refers to the members present and voting at the House of Assembly on any particular day after forming the required quorum for the transaction of legislative business which is 1/3 of all the members as provided for in section 96(1) of the 1999 Constitution.

The same expression is used in section 9(2) & (3) in relation to creation of state; section 143(4) and (9) in relation to the removal of the President or Vice President of the Federal Republic of Nigeria: section 188 (9) in relation to motion to investigate the allegation; and section 305 dealing with the procedure for declaration of state of emergency, all under the 1999 Constitution. In all the above situations it appears that the intention of the framers of the Constitution is that the number of the members required to transact the particular business of the legislature is a percentage or proportion of the total number or the totality of the assigned membership of the House under the Constitution. In the instant case, it is two-thirds of ALL the members of the Plateau State House of Assembly which is made up of 24 members; that is 16 members. It is not in doubt that the word “ALL” means; entire, complete, the whole number of; everyone of. See page 47 of Webster’s New Twentieth Century Dictionary, Unabridged Second Edition, 1975. In the instant case, it is not disputed that 8 out of 10 members in a house of 24 membership initiated and carried out the impeachment of the 1st respondent. There is no doubt that there existed in the Plateau State House of Assembly 14 vacant seats as a result of the cross carpeting. It is the view of the learned leading counsel for the appellants that the vacancy did not affect the capacity of the 8 members to carry out the impeachment process as 8 is more than 2/3 of 10 members. The simple and complete answer to the learned senior counsel is the decision of this court in the case of lnakoju v. Adeleke supra at 629 where TOBI, JSC puts it thus:

” … By section 102, the proceedings of the House cannot be invalidated by the fact that there is a vacancy in its membership. This seems to be an answer in the appellants’ way to the 18 persons who purportedly removed the 3rd respondent. The law is elementary that where the Constitution or a Statute contains a general provision, as well as specific provision the specific provision will prevail over the general provision. In this wise, it is my view that the specific provision of section 188(9) will prevail lover the general provision of section 102. Accordingly the removal of the 3rd respondent is governed by section 188(9) an not section 102 of the Constitution.”

It should be noted that in the Inakoju v. Adeleke’s case, 18 out of 32 members of the Oyo State House of Assembly embarked upon the adventure of impeaching the State Governor. It is my view that until the vacancies created by the carpet crossing members are filled by the process of by-election, the Plateau State House of Assembly can only transact such legislative duties that require the participation of less than 2/3 majority of ALL the members of that House, which duties definitely excludes impeachment proceedings. I have limited my consideration of the appeal to the question as to whether section 188 of the 1999 Constitution, particularly subsection (9) thereof, had been complied with in the removal or impeachment of the 1st respondent primarily because there is no dispute as to the fact that only 8 out of 24 making up “all the members” of the Plateau State House of Assembly initiated and carried out the impeachment process of the 1st respondent. So on that point alone, which is a Constitutional requirement, it is clear that the Court of Appeal was right in coming to the conclusion that the said impeachment was not in conformity with the Constitutional provisions and consequently invalid. That holding is unassailable and is sufficient to sustain the decision of the lower court without more.

It is true that section 188(10) of the 1999 Constitution ousts the jurisdiction of the courts in respect of the impeachment of a Governor or Deputy Governor but that must be subject to the rule that the legislature or the House of Assembly complied with all the constitutional requirements in section 188 needed for the impeachment as the courts have jurisdiction to determine whether the said constitutional requirements have been strictly complied with or not.

I have to put it on record that the desire of the judiciary to curb the now notorious attitude of some legal practitioners and politicians faced with very bad cases to employ delay tactics to either defeat the ends of justice or postpone the evil day, needs the encouragement of all well meaning legal practitioners, particularly the very senior members of the profession. It is apparent that in impeachment cases, like election matters, time is of the very essence. In the instant case, which was commenced by originating summons designed to expedite the matter, the objection to the jurisdiction of the trial court, if well intentioned and not directed or aimed at causing inordinate delay in the determination of the issues, could have been taken together with the substantive matter so as to speed up the process of adjudication. Rather than adopt that prudent procedure, the appellants chose to appeal against the well intentioned decision of the trial court to hear arguments on both the preliminary objection on jurisdiction and the originating summons expecting that in the event of being overruled, they would have to return to the trial court for the hearing of the substantive matter; meanwhile time, like tide, as they say, waits for

no man; it keeps on running out and at the end may likely leave justice prostrate and the aggrieved party frustrated and bitter with the judicial system. This court just has to do something about the situation for the restoration of hope and credibility in the system for the benefit of all. Is it not said that justice delayed is justice denied The reign of technical justice is over. On the throne now sits substantial justice. Long may you reign, substantial justice! In conclusion, it is clear that the appeal lacks merit and is accordingly dismissed by me with N10,000.00 costs against the appellants: I wish I could award more, but, my hands are tied. The judgment of the Court of Appeal restoring and reinstating the 1st respondent, Joshua Chibi Dariye to his office as the Governor of Plateau State of Nigeria with all rights, privileges and perquisites of the said office is hereby affirmed.

Appeal dismissed.

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SC.39/2007