Hon. Micheal Dapianlong & Ors V. Chief (Dr.) Joshua Chibi Dariye & Anor (2007)

LawGlobal-Hub Lead Judgment Report

BULKACHUWA, J.C.A.

The 1st respondent as the plaintiff before the Plateau State High Court No.3 Jos Coram Damulak J., commenced this action by way of originating summons on the 27th November, 2006 whereby he sought for the determination of these questions and the granting of these reliefs;

1. Whether the one-third (1/3) of the members of the 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 established 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 Protempore” in the Constitution (supra) let alone such “Speaker Protempore” 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 subsection (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 of 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 the 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 defendants on the 13th 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) persons to investigate the plaintiff is valid having regard to the provision of section 188(4) of the Constitution (supra).

Whether the appointment, constitution and swearing in of the Seven (7) Man Panel of investigation headed by the 1st defendant herein as the Governor of Plateau State leading to the purported impeachment of 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 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 the 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 House of 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 of tribunal, is not obliged to obey the orders of a competent court established under the Constitution.

Reliefs Sought

WHEREUPON and in theforegoing premise, inter-alia, the plaintiff claims against the defendants, jointly and severally, the following reliefs:

1. A DECLARATION that the one-third (1/3rd) of the members of the House of Assembly envisaged under section 188(2) 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 can not 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 Protempore” 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.
5. 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.
6. 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.
7. A DECLARATION that the purported resolution passed by the 2nd-7th defendants on the 13/10/2006, 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.
8. 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 support of two-thirds majority of all the members of the House for which the 2nd- 7th defendants are not.
9. A DECLARATION that the purported notice of allegations of gross misconduct made against Chief (Dr.) Joshua 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.
10. 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:
11. 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.
12. 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 State 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.
13. 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.
14. A DECLARATION that the right of fair hearing of the plaintiff enshrined in section 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 offendings 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 purportedly 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 plaint(ff 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 section 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 order 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 as defendants upon being served with the originating summons filed a notice of preliminary objection and at the same time a counter-affidavit to the affidavit in support of the originating summons.

On the 13/12/06 the learned trial judge upon observing that the 1st defendant/2nd respondent though served with the originating summons had not entered an appearance and had not been served with the preliminary objection ordered that he be served with a hearing notice against the 15/12/06 when he said he will hear parties on the preliminary objection raised by the appellants/2nd-7th defendants.

On the 15/12/06 the plaintiff/1st respondent was represented by counsel, the 1st defendant/2nd respondent was absent and unrepresented by counsel but served with all processes, the 2nd-7th defendants/appellants were represented by counsel, after being satisfied that the 1st defendant had been duly served the court ordered parties to file written briefs in respect of the preliminary objection and thereafter made the following order;

“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 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 hard (sic) and considered. I rely on the procedure adopted in the case of Adeleke v. Oyo State House of Assembly. ”

The appellant being dissatisfied with the above ruling appealed to this court on these grounds of appeal as contained in their notice and grounds of appeal filed on the 19/12/06.

GROUNDS OF APPEAL

(a) GROUND ONE

The ruling and directive of the learned trial judge suo-motu 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 the 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 motu 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.

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.

The 1st respondent to this appeal raised a preliminary objection on the appeal and at the same time filed a respondent’s notice whereby he is asking this court to affirm the decision of the lower court on the following grounds other than those relied upon by the lower court;

1. The court has inherent powers where (sic) still seised with the matter to determine the precedence of hearing being the Dominis litis (master of situation).
2. The court on the basis of the principle of stare decisis is obliged to adopt the procedure or decision of a superior court.
3. The decision of the Court of Appeal in Adeleke v. Oyo State House of Assembly (2006) 16 NWLR (Pt. 1006) 608, as to the manner of taking an originating summons in a constitutional matter (when the impeachment of a sitting Governor is involved) and a preliminary objection is filed justifies the decision of Honourable PD. Damulak.
4. Similarly, the earlier decision of this Honourable court in Senate President v. Nzeribe (2004) 9 NWLR (Pt. 878) 251 cited before the lower court as well as the Supreme Court case of A.P.C. Ltd. v. NDIC (NUB Ltd.) (2006) 15 NWLR (Pt. 1002) 404 at 443 provide adequate justification for the decision of Honourable P.D. Damulak.
5. The decision of the court to take the preliminary objection on 13/12/2006 was per incuriam and/or a nullity and as such the lower court was not bound by it.
6. It is prudent on the part of the lower court to take arguments on both the preliminary objection and the originating summons having regard to the expediency involved in this case.

Parties filed and exchanged their respective briefs wherein 1st respondent argued the preliminary objection which was replied to by the appellants in their reply brief. They also made submissions on the substantive appeal and the reliefs sought should the appeal fail or be allowed.

As it is, I will first consider the preliminary objection to this appeal, the substantive appeal and thereafter the respondent’s notice raised by the 1st respondent.

PRELIMINARY OBJECTION

The preliminary objection was raised by the 1st respondent and prayed the court to strike out the entire notice and grounds of appeal dated and filed on the 19/12/06 on the following grounds;

(1) The ground of appeal and their particulars question the exercise of discretion by the trial court, thus raising issues of fact.

(2) The grounds of appeal are at best, grounds of mixed law and/facts, and as such require the prior leave of either the trial court or the Court of Appeal before the Court of’ Appeal can exercise its jurisdiction to hear and determine the appeal, this being an interlocutory appeal.

(3) No prior leave of court was sought and obtained by the appellants before the interlocutory appeal bordering on facts and/or mixed law and facts was filed.

The gravement of the arguments of the 1st respondent on the preliminary objection is to the effect that a careful examination of the two grounds of appeal will show that the grounds, based on the discretion of the lower court, are of fact or at best on mixed law and fact. That by virtue of the provision of section 242(1) of the 1999 Constitution read with section 25(2)(a) of the Court of Appeal Act, the appellant requires leave to appeal, that such leave is fundamental to the competence of the appeal. That the failure of the appellants to seek the leave of the lower court or of this court before filing their notice of appeal is fatal to the appeal – he urged us to strike out the notice and grounds of appeal for being incompetent.

Replying, learned counsel, Umoh for the appellants submits that the two grounds of appeal are not on the discretion of the lower court rather they are on the issue of jurisdiction and lack of fair hearing and that by the provisions of section 241(1)(b) of the 1999 Constitution, they are grounds of law and as such no leave by either the lower court or of this court is required to file them as they can appeal as of right.

It is trite that the exercise of discretion by a court, requiring a consideration of the facts and the circumstances of the case, will amount to a question of fact or that of mixed law and fact, will fall under section 242(1) of the 1999 Constitution and section 25(2)(a) of the Court of Appeal Act, in which the party seeking to appeal must obtain the leave of either the lower court or of this court to render the appeal competent. See U.B.N. Plc. v. Sogunro (2006) 16 NWLR (Pt. 1006) 504; Comex Ltd. v. N.A.B. Ltd (1997) 3 NWLR (Pt. 496) 643; Metal Construction (WA.) Ltd. v. Migliore & ors. (1990) 1 NWLR (Pt.126) 299.

Emeakayi v. C.O.P (2004) 4 NWLR (Pt. 862) 158 at 174 per Mohammed JCA who said: –

“As the principles and manner in which a Judge ought to exercise his discretion in a particular case is a question of fact, depending on the facts and circumstances of each case, whether or not the discretion is exercised rightly in any particular case is, at least a question of mixed law and fact”.

It is also the law vide section 241(1)(b) of the 1999 Constitution that an appeal will lie as of right to this court from the decision of the High Court in an interlocutory matter where the ground of appeal involves question of law alone, in which case the appellant does not require the leave of the High Court or of this court to file the notice of appeal.

In trying to determine in which category a ground of appeal falls, the court must critically examine the ground of appeal together with its particulars to see the questions it seek to determine, i.e. whether it questions the evaluation of facts, or it questions the ascription of value to established facts, or that it questions the application of the law to undisputed facts.

I have critically examined the two grounds of appeal, (earlier reproduced in this judgment), in the instant appeal.

Ground one and its particulars complains that the learned trial judge did not call on the parties, to the trial to address him before reaching his decision of 15/12/06. It is a complaint against lack of fair hearing, a question of law.

The second ground and its particulars is saying that the trial judge having made a decision on the 13/12/06 becomes functus officio to revisit that same decision on the 15/12/06 and make another one, in effect it is saying that the court lacks the competence to make its decision of 15/12/06. It is a question of law.

If the above criteria are applied to the two grounds in this appeal it would appear that they question the application of the law to undisputed facts, i.e. parties did not address the court before its decision of 15/12/06. The first ground is on the question of fair hearing while the second is on the lack of jurisdiction of the lower court. Both are questions of law and by virtue of section 241(1) of the 1999 Constitution an appeal on them is as of right and the appellants require neither the leave of this court or of the lower court to file them.

In the circumstances the preliminary objection must fail and I hereby overrule and dismiss it.

SUBSTANTIVE APPEAL

Before considering the appeal it is material that the position of the 1st defendant/2nd respondent and the submission made by the Hon. Attorney General Plateau State representing him be looked into.

Learned Senior Advocate Toro submitted that he was never a party before the lower court having not entered an appearance, or filed a counter affidavit to the originating summons.

A close look at the records of appeal particularly pages 170-182 i.e. the proceedings of the lower court on the 13/12/06 and the 15/12/06 shows that on the 13/12/06 the 1st defendant/2nd respondent was absent in court unrepresented by counsel and was not served. The court ordered that he be served and adjourned the matter to the 15/12/2006 for the hearing of the preliminary objection.

On the said 15/12/2006, the 1st defendant/2nd respondent was absent unrepresented but the court observed that he had been duly served with the originating summons and the preliminary objection. He was in effect as at the 15th of December not a party before the lower court having not put in an appearance before it nor replied to the processes served on him. The proceedings of 15/12/2006 gave rise to this appeal, as was pointed cut by Toro, learned Senior Advocate the 1st defendant/2nd respondent having not entered appearance before the lower court and having not appealed against the decision of the lower court cannot now be heard on the side of the appellant.

I agree with the above submission and uphold it entirely, in the circumstances the 1st defendant/2nd respondent cannot now be heard on the side of the appellant his fate in this appeal lies with the 1st respondent and he can only swim or drown with him. I accordingly discountenance the submission made by Pwajok learned Attorney General Plateau State for and on behalf of the 2nd respondent in this appeal and hereby expunge it from the records.

The appellants in their brief of argument settled by Umoh of counsel raised these issues for the determination of this appeal.

1. Whether the trial judge had by the said decision violated the appellants’ right to fair hearing.
2. Whether the trial judge was indeed functus officio at the time of making the said ruling dated 15th December, 2006 on the issue having regards to his earlier ruling dated 13th December, 2006.

The appellants’ brief was filed before this court on the 17/1/07 and the appellants’ reply brief was filed on 9/2/07, at the hearing of this appeal learned counsel for the appellants, adopted the said briefs, wherein he made these submissions.

On issue one he submits that the lower court in its ruling of 15/12/06 overruled itself, that the learned trial judge before arriving at that decision failed to call on the parties to address him on that, thus sitting on appeal on his decision of 13/12/06. Contending that the ruling not prompted by either of the party, shows that the learned trial judge has descended into the arena and acted in apparent violation of the appellants’ rights to fair hearing and urged us to set it aside as a nullity.

On the 2nd issue he submits that having regards to the decision of the lower court of 13/12/06, the trial judge was functus officio at the time of making the ruling of 15/12/06. That in its decision of 15/12/06 the lower court had reviewed and overruled its decision of 13/12/06. That, that was an exercise in futility as the court on the 15/12/06 lacks the competence or jurisdiction to revisit its decision of 13/12/06. The appellant urged us to uphold his submission on the appeal and declare the ruling of 15/12/06 a nullity.

On the 1st issue learned Senior Advocate submits in reply for the 1st respondent that the ground of appeal was a mere procedural matter dictated by the nature of the proceedings, i.e. the need to preserve the res which would exire as at 29th May, 2007. That the decision of the lower court was a purely procedural step which did not involve the substantive claims before the court, and that in any case the trial judge who was dominis litis had complete dominion over procedural matters before him especially if the procedural order he made was in furtherance of justice, and are in compliance with constitutional and statutory provision and in furtherance of expeditious dispensation of substantial justice.

That the trial judge in deciding to hear both the preliminary objection and the substantive claims together had acted within bounds and the appellants have not as a result of that decision been prejudiced or suffered any miscarriage of justice.

On the 2nd issue he submits that the ruling complained against was an extension of the ruling of the 13/12/06 and a mere procedural matter which did not occasion a miscarriage of justice, instead it was in furtherance of doing substantial and expedited justice to all parties.

He urged us to dismiss the appeal being an exercise in futility devoid of any merit.

For a better understanding of the facts leading to this appeal I will chronicle the events that led to the ruling of 15/12/06.

The originating summons and its supporting affidavit was filed before the trial court on the 27/11/06 (see pages 1-56 of the records) by the plaintiff/1st respondent.

On the 12/12/06 the 2nd -7th defendants as applicants filed a notice of preliminary objection to the originating summons (see pages 57-129).

On the 13/12/06 the trial court was first seised of the matter, the plaintiff/1st respondent was absent but represented by counsel, the 1st defendant/2nd respondent was absent and unrepresented while the 2nd -7th defendants/appellants were absent but represented by counsel. A motion filed on the 1/12/06 by the plaintiffs was withdrawn and struck out. The plaintiffs represented by learned Senior Advocate, Toro confirmed the service of the preliminary objection and applied on the authority of Senate President v. Nzeribe (2004) 9 NWLR (Pt. 878) 251 and Adeleke v. Oyo State House of Assembly (2006) 16 NWLR (Pt. 1006) 608 that both the preliminary objection and the substantive claim be taken together.

Learned counsel for the 2nd -7th defendants pointed out the application is a non-starter as the 1st defendant though served with the originating summons, was absent and unrepresented before the court neither had he been served with the preliminary objection which had only been filed the day before. He pointed out that the issue of jurisdiction as raised in the preliminary objection is fundamental and should be heard first and not behind the back of the 1st defendant.

The court on confirming that the 1st respondent was only served with the originating summons and not with the preliminary objection observed that the 1st defendant was yet to enter appearance on the originating summons ordered that he be served with the preliminary objection and a hearing notice on the substantive matter and adjourned the matter for the hearing of the preliminary objection on the 15/13/06.

On the said 15th of December 2006, the plaintiff was absent but represented by counsel, the 1st defendant was absent and unrepresented by counsel, while the 2nd-7th defendants were absent but represented by counsel. The court having confirmed that the 1st defendant had been duly served with all processes in the matter as well as the hearing notice ordered both parties to file written briefs in respect of the preliminary objection in order that the matter be determined expeditiously which will be adopted at the next sitting of the court in January as the court will be proceeding on vacation.

After parties have agreed on the date, the court thereafter ordered parties to also file written briefs in respect of the originating summons putting reliance on Adeleke’s case and the exigencies of the time pointing out that if the preliminary objection does not succeed the substantive suit may be heard and considered.

The appellant had raised the issue that the parties were not heard when the court made its order of 15/12/06 which is thus an infringement of the appellants rights of fair hearing.

The principle of fair hearing as entrenched in the 1999 Constitution to be more precise section 36(1) thereof is a basic and fundamental principle of law that requires that a person whose legal rights or obligations are being questioned be given the liberty and opportunity by the courts or tribunals to defend such rights or obligations. The scenario is that he be heard before any adverse decision is made against him. In order to be fair and just the adjudicating authority must give all parties before it an opportunity of being heard before arriving at its decision. Where this rule is not adhered to an appellate court will nullify the proceedings. This is the stand taken by appellate courts and cases have been nullified for not observing this basic principle of audi alteram partem. See F.C.S.C. v. Laoye (1989) 2 NWLR (Pt. 106) 652; Saleh v. Monguno (2003) 1 NWLR (Pt. 801) 221: Mohammed v. Kana N.A. (1968) 1 All NLR 424; Elike v. Nwankwoala (1984) 12 SC 301; Orugbo v. Una (2002) 16 NWLR (Pt. 792) 175; Ndukauba v. Kalama (2005) 4 NWLR (Pt. 915) 411.

In the instant appeal as was shown by the records on the 13/12/06 learned senior counsel to the 1st respondent did apply that the preliminary objection be taken together with the originating summons, this was however objected to by learned counsel to the appellants who observed that the 2nd respondent had not been served.

The order of 15/12/06 was made after the court was satisfied that the 2nd respondent had been duly served and upon consideration of the submissions of all the parties and after taking account of the exigencies of the action and reliance on the procedure adopted by a superior court in a similar manner in Adeleke s case.

A court cannot be expected to remain static, rather for the case to progress from day to day for a just conclusion of the matter before it, there must be orders. A judge is the master of his court and so long as there is no miscarriage of justice against any of the parties a court can make such orders as are necessary to bring the matter to a just conclusion within the rules of court and according to law.

In the instant case Order 47 rule 1 of the Plateau State (Civil Procedure) Rules 1987 is relevant and covers the order made by the trial judge on 15/12/06. It provides as follows: –

“1. Subject to particular rules, the court may in all causes and matters make any order which it considers necessary for doing justice, whether such order has been expressly asked for by the person entitled to the benefit of the order or not”.

To my mind, the order of 15/12/06 was within the competence of the lower court, it did not occasion miscarriage of justice on either of the parties before it and was the just order to make in the circumstances of the case. It was an extension of the order of 13/5/06 and the lower court was competent to make it. There was no infringement of the appellants’ constitutional right to fair hearing, the appeal is frivolous and a delay tactic to prolong the life of the case, so that at the end of the day the whole matter will become an academic exercise.

In the circumstances, I find no substance in this appeal and I hereby dismiss it. I accordingly affirm the decision of the lower court of 15/12/06.

RESPONDENTS NOTICE:

The respondents notice was filed before the lower court on the 21/12/06.

A respondent in an appeal can file a respondent’s notice where he wants a decision of a lower court affirmed but varied for reasons not advanced by the lower court. A respondent’s notice can only succeed when the judgment appealed against is affirmed. See Ogunbadejo v. Owoyemi (1993) 1 NWLR (Pt. 271) 517; Adekeye v. Akin-Olugbade (1987) 3 NWLR (Pt. 60) 214.

In the instant case the decision of the lower court is affirmed, the respondents notice is hereby allowed and an order further re-affirming the decision of the lower court is hereby made on grounds 1, 2, 3, 4 and 6.

The respondents had prayed that this court proceeds and determine the preliminary objection and the originating summons by virtue of the provisions of section 16 of the Court of Appeal Act.

Where time is of the essence as in the instant case this court had a number of times resorted to this procedure. See Adeleke v. OSHA (supra) which procedure was approved by the Supreme Court when the matter went on appeal before it. See also Senate President v. Nzeribe (2004) 9 NWLR (Pt. 878) 251.

Furthermore the appellants had conceded to this prayer by filing a brief in respect of the originating summons. I will therefore take it that both the preliminary objection and the originating summons be taken and determined under section 16 of the Court of Appeal Act.

I accordingly invoke our powers under the said provision and will proceed to the determination of the preliminary objection and subsequently the originating summons if the preliminary objection is overruled.

PRELIMINARY OBJECTION

The appellants on being served with the originating summons before filing the counter affidavit against the originating summons raised a preliminary objection to its competence on the 12/12/06 on the following grounds;

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

PARTICULARS

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 in eluding the deponent has an idea of his whereabout.

2. The suit is incompetent having regard to section 188(10) of the 1999 Constitution.
3. This suit constitute an abuse of process as the issues raised therein are in substance similar to the issues raised in Suit No: PLD/J463/06; PLD/J/451/06; FHC/J/CS/49/06; FHC/ABJ/CA/374/06 and PLD/J475/06.
4. The plaintiff, being a fugitive from justice lacks the capacity to maintain an action.
5. 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.

6. The proper parties are not before the court.

In the appellants’ brief which was filed and adopted at the hearing of this appeal the appellants abandoned grounds 3 and 5 as contained in the preliminary objection, and argued the remaining grounds, they are accordingly struck out.

On ground one learned counsel for the appellants submits that the procedure adopted by the 1st respondent in this matter i.e. originating summons is incompetent pointing out that the main question to be answered is whether the questions set out by the respondents therein having regard to the nature of the dispute disclosed are appropriate for determination by originating summons proceedings. He contends that, the facts as disclosed in the supporting affidavit having been countered in the appellants counter affidavit, the facts of the case become contentious, the matter should be struck out for being instituted by the use of an incompetent procedure or alternatively the matter should be transferred to the General Cause List to enable parties exchange pleadings and a trial conducted for the just determination or the issues between the parties.

On the 2nd ground the appellants relying on American authorities submitted that the 1st respondent is a fugitive caught by the Common Law Doctrine of Fugitive Disentitlement and is therefore not entitled to call upon the resources of the state for the determination of his claims in the court, as his escape disentitles him from doing so.

On ground 4 he submits that the plaintiff/1st respondent whose complaint is against the Plateau State House of Assembly failed to join them as parties to the action. That this omission is fatal to his case. That the non-joinder discloses the absence of a cause of action and renders the entire suit incompetent and liable to be struck out.

On ground six he submits that the originating summons is not supported by a valid affidavit for as he points out the affidavit of Nde Molwus the deponent contravenes the provisions of section 89 of the Evidence Act, the said Molwus having failed to state the date, time, place and the circumstances of the information he was deposing to.

The appellants on the whole urged us to uphold the preliminary objection on these grounds and strike out the suit for being incompetent.

Replying on behalf of the 1st respondent learned Senior Advocate submits on ground one that the 1st respondent’s case before the lower court involved the interpretation of Constitutional Provisions, the proceedings were therefore properly commenced by originating summons particularly so as the summons was supported by credible documentary evidence, the Court was in a good position to resolve any conflicting affidavits without recourse to oral testimony or further inquiry. That the main essence of commencing the proceedings by the originating summons was to expedite the matter.

On the 2nd ground he submits that the 1st respondent despite his removal from office is and remains a bona fide citizen of Nigeria who has not been tried or convicted for any criminal offence. That he is entitled to all the fundamental rights as enshrined in Chapter IV of the 1999 Constitution including the right to fair hearing as entrenched in section 36(1) and that of presumption of innocence imbedded in section 36(5) of the said Constitution. That foreign cases or law cannot come to the aid of the appellants in this instance.

On ground 4 he submits that from the background facts and circumstances of this appeal considered together with the questions for determination and the reliefs sought in the originating summons the grievances of the 1st respondent are centered around the acts of the appellant which culminated in the 1st respondent’s removal from office. That in effect it was not the Plateau State House of Assembly as properly constituted and known that acted to remove the 1st respondent from office. He contends that the proper parties were before the court.

On ground 6 the 1st respondent submits that the affidavit sworn to in support of the originating summons is regular and competent having not breached the provisions of the Evidence Act.

GROUND ONE

This ground as shown in the records (page 58) is to the effect that the originating summons is incompetent having been supported by an incompetent affidavit i.e. that the deponent Nde Molwus does not have the consent of the plaintiff who had been declared wanted by the Economic Financial Crime Commission (E.F.C.C.) to depose to same.

However in the appellants brief (see particularly pages 8-15) he advanced arguments or submissions not on the said ground but as to whether the suit before the lower court was properly

commenced by way of originating summons.

A party is bound by what he presents before the court, he cannot ask for one thing and then somersault and advance arguments on another thing. The rules of procedure require that a party is restricted to the prayers in his application he cannot go outside it and ask for something different. See A.G. Abia State v. AG. Federation (2006) 16 NWLR (Pt. 1005) 265 at 388 per Tobi JSC;

“… It is elementary law that a court of law is confined to the relief or reliefs of the plaintiff It does not go outside the relief or reliefs to grant what the plaintiff does not ask for. A court of law can grant all the reliefs sought by the plaintiff. It can also grant part of the reliefs. But it cannot grant reliefs not sought by the plaintiff. See generally Ojo v. Abogunrin (1989) 5 NWLR (Pt. 120) 162; Ugo v. Obiekwe (1989) 1 NWLR (Pt. 99) 566; Ilodibia v. NCC Ltd (1997) 7 NWLR (Pt.512) 174; Udom v. E. Micheletti & Sons Ltd (1997) 8 NWLR (Pt. 516) 187; Olaopa v. O.A U. Ile-Ife (1997) 7 NWLR (Pt. 512) 204; Ezeakabekwe v. Emenike (1998) 11 NWLR (Pt. 575) 529.

The court is not Father Christmas to dole out gifts not asked for by children. Even Father Christmas is generous with his gifts only on Christmas day. On the joking and jovial side, I can say that today is not 25th day of December”.

In the instant case the ground of the appellants’ preliminary objection is as to the competency of the supporting affidavit to the originating summons, not that the originating summons was the wrong procedure to commence the action, he can therefore not be heard or be allowed to advance arguments on the originating summons. I am in this regard more disposed to upholding the submission of the learned Senior Advocate for the 1st respondent that as a plaintiff is bound by the case put forward in his writ of summons so also is an applicant strictly bound by the prayers in his motion. See also Ayanboye v. Balogun (1990) 5 NWLR (Pt. 151) 392.

Arguments presented at pages 8 -15 of the appellants’ brief not based on any ground of the preliminary objection are hereby struck out.

GROUND FOUR

All I can say on this ground is that there is no documentary evidence in the records before us to show that the 1st respondent is a fugitive or that he had been declared a wanted person by the Economic and Financial Crime Commission (EFCC). As at 13/11/06 before his impeachment he was the Executive Governor of Plateau State and had been in that office since 29th May, 1999 by virtue of being a Nigerian citizen. There is no documentary evidence on the records to show that he had been striped of that citizenship after his impeachment. I will say with authority that he is a full citizen of Nigeria and is entitled to seek redress in a court of law where he feels his rights have been or are being infringed upon.

GROUND SIX

The parties to the originating summons and before this court are as shown hereunder:

Chief (Dr.) Joshua Chibi Dariye Plaintiff/1st respondent

And

1. Mr. John Samchi 1st Defendant/2nd Respondent

(The Chairman of the Seven

(7) Man Panel of Investigation into

Allegation of Gross

Misconduct Against

The Executive Governor of Plateau State)

2. Hon. Michael Dapianlong
3. Hon. Nazifi Mohammed
4. Hon. Rahila Baleri
5. Hon. Nanchang Napchwat
6. Hon. Emmanuel Danboyi Jugul … 2nd – 7th
7. Hon. Dinar Lar defendants/appellants

The appellants have contended that the failure of the 1st respondent/plaintiff to join the Plateau State House of Assembly who is a necessary party to the suit is fatal to his case. In light of the declaration and reliefs sought by the plaintiff before the lower court, can the Plateau State House of Assembly be said to be a necessary party?

Of recent in an unreported case of this Court in Appeal No. CA/J/257/2006 Dapianlong & ors. v. Lalong and 2 ors, decided on 18/1/07 now reported in (2007) 5 NWLR (Pt.1026) 199 at pg. 211 Akaahs JCA relied on the Supreme Court decision in Green v. Green (1987) 3 NWLR (Pt. 61) 480 in defining parties to an action, see page 211 thereof where he said:

“Parties to an action have been classified into three namely;

(a) proper parties,

(b) desirable parties; and

( c) necessary parties.

Proper parties are those who, though not interested in the plaintiff’s claims are made parties for some good reasons and desirable parties are those who have an interest or who may be affected by the result, while necessary parties are those who are not only interested in the subject matter of the proceedings but also who in their absence, the proceedings could not be fairly dealt with. See: Green v. Green (1987) 3 NWLR (Pt. 61) 480 at 493.

To my mind, the Plateau State House of Assembly may at best fall within the second category i.e. desirable pm1y. Looking at the claims and the reliefs sought, the act complained of is that of the appellants who impeached the 1st respondent and the Investigation Panel. What he is complaining against is the way and manner the impeachment process was conducted. Plateau State House of Assembly in view of the reliefs sought can therefore not be said to be a necessary party whose non-joinder will be fatal to the plaintiff’s case. Particularly if the act of the appellants was outside the law.

This ground also fails.

GROUND ONE

Ironically another ground not this ground was argued first. I have determined on the arguments earlier in this judgment. I will now consider ground one.

It is the contention of the appellants that the affidavit deposed to by Nde Molwus in support of the originating summons is incompetent being not in compliance with the provisions of sections 89 and 90 of the Evidence Act.

Nzeako JCA had recourse to look closely at the said provisions in Adeleke v. Anike (2006) 16 NWLR (Pt. 1004)131 at 164 when she held thus;

“The practice for deposition to and use of affidavits 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 matter 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 facts 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, the place and circumstances thereof ”

I have closely looked at the affidavit in issue. By paragraphs 1 and 2 thereof the deponent deposed that he has been the Chief of Staff to the plaintiff for over 4 years and at all material times to this case and by virtue of the said position he is conversant with the facts deposed to in the affidavit and had the consent and the authority of the plaintiff to depose to those facts.

In paragraph 32 he deposed to information received from Akubo SAN of learned counsel to the plaintiff on 24/11/06 at his chambers.

In paragraph 33 he deposed to information received from Speaker Lalong on the 17/11/06 at Lalong’s residence.

All the averments in the said affidavit are derived from the 3 informants, the deponent has stated the source of his information, the time, the place and the circumstances under which he received the information, there is therefore complete compliance of the provisions of section 86 of the Evidence Act. The affidavit in support of the originating summons is competent. This ground also fails.

GROUND TWO

Appellants submit on this ground that this action is an attempt to challenge the proceedings or the determination of the seven-man panel of the House of Assembly that impeached the 1st respondent under section 188 of the 1999 Constitution. That section 188(10) oust the jurisdiction of this court from enternaining the action.

The claim before the lower court was that proper procedure was not followed as provided for in section 188(1) – (9). In such instance the court would have to look into the matter to see if there was compliance of section 188(1) – (9). If there is no such compliance then it will have jurisdiction to adjudicate on the matter. The ouster provision of section 188(10) will only come into effect if the provisions of section 188(1) – (9) have been complied with in an impeachment proceedings. See Jimoh v. Olawoye (2003) 10 NWLR (Pt. 828) 307; Ekpo v. Calabar Local Government Council (1993) 3 NWLR (Pt. 281) 324; Adeleke v. O.S.H.A. (2006) 16 NWLR (Pt. 1006) 608; Balonwu v. Obi decision of Court of Appeal Enugu in Appeal No. CA/E/3/2007 of 9/2/07 (unreported) now reported in (2007) 5 NWLR (Pt.l028) 488; /nakoju & ors. v. Adeleke & ors. in Appeal No. SC/272/2006 of 12/1/07 (unreported) now reported in (2007) 4 NWLR (Pt.1025) 423 at pg. 698 paras. E-F.

See page 236 per Ogbuagu JSC;

“In summary, in my respectful and firm view, it is only when the provisions of section 188(1) – (9) which I hold are conditions precedent, are complied with, that sub-section 10 thereof, will be relevant and can be invoked and be relied on.”

I also hold the view that in the circumstances of this matter the courts jurisdiction is not ousted.

All the grounds of the preliminary objection having failed, it is hereby dismissed for lacking in merit.

ORIGINATING SUMMONS

The originating summons as filed before the lower court as set out earlier in this judgment is supported by an affidavit of 37 paragraphs and 13 exhibits. A summary of the salient uncontroverted facts from the plaintiff’s viewpoint are shown hereunder..

SALIENT UNCONTROVERTED FACTS

From the affidavit evidence placed before the court below, it is submitted that the following crucial facts are not in dispute, namely”:-

1. That there are a total of 24 members of the Plateau State House of Assembly.
2. That 2/3rd of the total number of the members of the Plateau State House of Assembly is 16 members thereof
3. That at all times material to this suit RT. Hon. SIMON LALONG was the speaker of the Plateau State House of Assembly and that he and the Deputy Speaker of that House in person of Hon. Usman Zumunta Musa were never removed from their respective offices.
4. That the appellants who constitute only 6 members out of the 24 members of the Plateau State House of Assembly purported to have sat as that House on the 5th and 13th of October, 2006 as well as on the 13th of November, 2006 when they purportedly impeached the 1st respondent, a constitutional power or function vested in 2/3rd of the twenty four members of the House, which is 16 members thereof
5. That the office of ‘Speaker Protempore’ which the 1st appellant purported to have arrogated to himself at all material times is not recognized by the 1999 Constitution.
6. That the 1st appellant as ‘Speaker Protempore’ signed and also received the notice of allegations of gross misconduct.
7. The purported notice of allegations was not served on the 1st respondent personally, as required by law.

That it was at the behest of 6 members (i.e. the appellants) out of the twenty four members of the House, that the Ag. Chief Judge of Plateau State set up the Seven (7) Man Panel headed by the 2nd respondent.

9. That irrespective of the orders made by the Plateau State High Court in exhibits “E” & “F”, the Panel headed by the 2nd respondent continued to sit as a panel investigating the allegations against the 1st respondent and purportedly submitted interim report to the appellants on the 13/11/2006.
10. The 1st respondent was not allowed full opportunity to cross-examine the 1st witness of his accusers (Constable Peter Clark).
11. The 1st respondent was not allowed the opportunity to cross-examine the 2nd witness (Inspector Sunday Musa) at all.
12. The 1st respondent was not allowed the opportunity to testify in his own defence and or call witness in his own defence before the submission of the purported interim report, by the panel headed by the 2nd respondent.
13. The appellants on their own showing have conceded vide paragraphs 14 and 15 of their counter affidavit, confirmed that at the material time the 1st respondent was purportedly impeached, there were only ten legislators in all at the Plateau State House of Assembly.

The 2nd-7th defendants filed a counter affidavit of 38 paragraphs which is supported by 5 exhibits. In the appellants’ reply brief before this court they have also identified their salient uncontroverted facts from their perspective, it is also shown hereunder.

SALIENT UNCONTROVERTED FACTS:

1. The 1st respondent was impeached by the Plateau State House of Assembly on 13th November, 2006.
2. After his impeachment by the said House, he took his flight from the law and was declared wanted by the EFCC on 14th November, 2006 (at least by his own admission).
3. Fourteen members of the Plateau State House of Assembly had earlier vacated their seats and had since been replaced (Please see exhibit “A-D “, which is the Hansard of the Plateau State House of Assembly).
4. The former Speaker, Hon. Simon Lalong, has been replaced by Hon. Alexander Kwapnor (see paragraph 32 of the 2nd-7th defendants’ affidavit).
5. Hon. Simon Lalong had ceased to be speaker of the House, and vacated his seat in the said House long before the 1st respondent was impeached.
6. The impeachment notice was signed by 8 out of the remaining 10 members of the Plateau State House of Assembly.
7. The 14 new members that have taken their seats to replace those who vacated their seats have not complained against the impeachment proceedings.
8. Hon. Michael Dapianlong has been the substantive speaker who presided over the impeachment proceedings, and remains the speaker of the house till date.
9. Four out of the 10 members who we re remaining in the House of Assembly are not parties to this action.
10. None of the members who vacated their seats is a party to this action.
11. The notice of allegation was served on the 1st respondent as required by law.
12. He was represented before the 7 Man Panel by PA. Akubo, SAN as contemplated by section 188(6) of the 1999 Constitution.
13. His counsel attempted to introduce filibuster tactics to delay the proceedings of the panel.
14. The Acting Chief Judge of Plateau State set-up the 7 Man Panel upon the request of the Plateau State House of Assembly.
15. None of the members is a party in this suit challenging the Acting Chief Judge’s action.
16. The 1st respondent was accorded every opportunity to put forth his case by the 7 Man Panel but he never appeared there for once, rather his counsel, in a bid to frustrate the panel, purported to file a notice of appearance on protest, which is unknown to the proceedings of the panel.

Significantly, all the depositions in the counter affidavit of the 2nd -7th defendants/appellants were not controverted.

The plaintiff/1st respondent raised the following issues for the determination of the originating summons;

1. Whether the 2nd -7th Defendants who are only 6 members out of the 24 members of the Plateau State House of Assembly had the constitutional power and competence under the Constitution of the Federal Republic of Nigeria, 1999 to sit or conduct any proceedings as the Plateau State House of Assembly and to exercise the constitutional powers of the said House of Assembly?
2. Whether the proceedings or steps taken by the 2nd – 7th defendants, who are only 6 members out of the 24 members of the Plateau State House of Assembly leading to the purported impeachment or removal of the plaintiff from office as the Governor of Plateau State under section 188 of the Constitution of the Federal Republic of Nigeria 1999 could be regarded as the valid and legitimate action or proceedings of the Plateau State House of Assembly?
3. Whether the said proceedings of 6 members of the 24 members of Plateau State House of Assembly were in breach of the plaintiff’s constitutionally guaranteed and enshrined right to fair hearing under sections 36 and 188(6) of the 1999 Constitution of Nigeria and therefore unconstitutional, null and void and of no legal effect whatsoever?
4. Whether the entire proceedings and any report submitted by the Seven (7) Man Panel of Investigation of acts of gross misconduct against the plaintiff are not rendered unconstitutional, illegal, null and void for being in breach of the Constitution and under the doctrine of lis pendens as the impeachment proceedings against the plaintiff from office was the res in the pending suits before the various High Courts two of which had made orders restraining the pane/from sitting or further sitting but which the panel flagrantly flouted.
5. Whether in the foregoing premise and having regard to all the circumstances of this case the jurisdiction of this Honourable Court to hear and determine this suit has been ousted by the provisions of subsection 10 of Section 188 of the Constitution of the Federal republic of Nigeria 1999?

The 2nd-7th defendants in the reply brief identified these issues.

1. Whether the 1st respondent was impeached by the Plateau State House of Assembly?
2. If the answer to question 1 is in the affirmative, whether the issues in this case can be resolved in the absence of the Plateau State House of Assembly
3. Whether the violation of the provision of section 188(1)-(10) of the 1999 Constitution could be effectively and effectually addressed without the Plateau State House of Assembly, being a party to the proceedings?
4. Whether having regard to section 102 of the 1999 Constitution, the House of Assembly may act notwithstanding any vacancy in its membership?

The plaintiff argues issues 1, 2 and 5 together. The gravement of his submission after an analysis of the facts in the suit he submits that the 2/3rd majority of the members of the Plateau State House of Assembly as required by the 1999 Constitution must be 16 members which is the sine qua non to the constitutional validity of an impeachment proceeding of the plaintiff as the Governor under section 188 of the 1999 Constitution. That it means that the 2/3rd referred to in subsection (4) & (9) of section 188 refers to 2/3rd of the total membership of the entire house and not merely the 2/3rd of those present at that particular sitting of the legislature. He contends that the six members of the House who were said to have sat on the 5th & 13th October and on the 13th November, 2006 initiated and carried out the impeachment proceedings could not be said to be the 2/3rd envisaged by the provisions of the 1999 Constitution. He submits that there was never in reality and constitutionally an impeachment or removal of the plaintiff from the office of the Governor of Plateau State adding that the said purported impeachment was a coup d’etat by the gang of six.

Learned Senior Advocate relies on the following on his submission; A-G. Abia State v. AG. Federation (2006) 16 NWLR (Pt. 1005) 265; Ogidi v. State (2005) 5 NWLR (Pt. 918) 286; O.A U. Ile-Ife v. R.A Olijide & Sons Ltd. (2001) 7 NWLR (Pt. 712) 456; National Assembly v. President (2003) 9 NWLR (Pt. 824) 104; Uttah v. House of Assembly (1985) 6 NCLR 761; Mobil Oil Nigeria Plc v. Kena (2001) 1 NWLR (Pt. 695)555; Ogboru v. Ibori (2005) 13 NWLR (Pt. 942) 319; Nwankwo v. Abazie (2003) 12 NWLR (Pt.834) 381; Adeleke v. OSHA (2006) 16 NWLR (Pt. 1006) 608; Ekpo v. Calabar Local Govt. Council (1993) 3 NWLR (Pt. 281) 324; Nigerian Ports Authority v. Panalpina World Transport Nig. Ltd. & Ors. (1973) All NLR 486; Okeahialam v. Nwamara (2003) 12NWLR (Pt. 835) 597; Okoroafor v. The Misc. Off. Tribunal (1995) 4 NWLR (Pt. 387) 59; The Mise Off. Tribunal v. Okoroafor (2001) 18 NWLR (Pt.745) 295; AG. Bendel State v. AG. Federation (1981) 10 S.C. 1; (1982) 3 NCLR 1; Anyah v. AG. Bonzo State (1984) 5 NCLR 373.

On issue 3, the plaintiff contends that he was denied fair hearing as he was not personally served with the copy of the notice of allegation of gross misconduct, that he was not allowed to exhaust his cross-examination of constable Peter Clark or to cross-examine Inspector Sunday Musa, the two witnesses before the Seven (7) Man Panel, nor was he given a chance to put up his defence before the panel, as at the time the panel submitted its interim report to the six members of the Plateau State House of Assembly which resulted in the impeachment of the plaintiff on the 13/11/06.

Relying and citing the above listed authorities he submits that fair hearing is so crucial and fundamental that it cannot be compromised on any account, that failure to observe it in any proceeding renders the proceeding void and liable to be set aside.

See F.R.N. v. Ifegwu (2003) 15 NWLR (Pt. 842) 113; Adedeji v. Police Service Commission (1967) 1 All NLR 67; Denloye v. Medical and Dental Practitioners Disciplinary Committee (1968) 1 All NLR 306; Olatunbosun v. NISER Council (1998) 3 NWLR (Pt. 80) 25; Okonkwo v. Okonkwo (1998) 10 NWLR (Pt. 571) 554; and Nwokoro v. Onuma (1990) 3 NWLR (Pt. 136) 22.

The plaintiff submits on issue 4 that the facts as deposed in the affidavit in support of the originating summons and the annexed documents shows that the Seven (7) Man Panel of Investigation headed by the 1st defendant deliberately defied two High Court injunctions restraining it from proceeding or further proceeding with its sitting. That the panel was aware of the pendency of the action which subject matter was the impeachment and that the two orders of the court were meant to preserve the res, yet the panel went ahead, learned senior counsel submits that such action by the panel was contemptuous of the courts, and urged this court to invoke its disciplinary jurisdiction by declaring the proceedings of the Seven (7) Man Panel of Investigation null and void.

It is the submission of Umoh of counsel for the 2nd-7th defendants that at the time of the impeachment, there were only 10 members of the Plateau State House of Assembly as 14 out of the regular 24 members had vacated their seat. He contends that by virtue of section 102 of the 1999 Constitution the impeachment proceedings commenced and completed by the 8 members was clearly in compliance with the provision of section 188(1)-(9) of the 1999 Constitution as the 8 members constituted more than the 2/3 membership of the House at the time. He said the facts of this case should be distinguished from Adeleke’s case where the members who were absent were suspended members while in the instant case the absent members had vacated their seats.

He also points out that the action of the 8 members was that of the Plateau State House of Assembly, that the failure of the plaintiff to join the Plateau State House of Assembly was fatal to his suit. He urged us to dismiss the originating summons.

This matter principally centers round the interpretation of section 188 of the 1999 Constitution. For ease of reference it is reproduced hereunder.

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 officer, 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.

The said section makes provisions for the impeachment of a governor or a deputy governor of a State.

Looking at the above provisions in light of the facts of this case was there strict compliance.

The requirement of subsection (2) that whenever a notice of allegation of gross misconduct signed by not less than one third of the members of the House against a Governor is presented to the Speaker of the House of Assembly of a State he shall within seven days of the receipt of such notice cause a copy to be served on the Governor and on each member of the house.

Exhibit A to the originating summons is the notice envisaged by the above provision. It was signed by 8 members of the Plateau State House of Assembly including the 2nd defendant who was said to be the speaker. The said notice which was signed by the speaker protempore was not dated.

Per paragraph 6 of his affidavit, the plaintiff averred that he was not served with the said notice hence his protest to the Acting Chief Judge of the State in a letter dated 20/10/06 see exhibit B. Paragraph 6 was only traversed per paragraph 19 of the counter affidavit. There is in effect nothing documentary to show that he was so served. The impeachment of a serving Governor is a weighty matter, and the service of the notice is fundamental to the whole process, one would expect the defendants to keep records of the service of the notice they said was effected on the plaintiff not a mere denial in an affidavit to his averment that he has not been served.

In light of the above and exhibit B to the affidavit in support, I believe the plaintiff was not served with the notice.

Subsection 4 provides that a motion of the House that the allegation be investigated shall not be declared as having been passed unless it is supported by the votes of not less than 2/3rd of all the members of the house.

The resolution of the House annexed as an exhibit to be found at page 27 of the records is not signed by 2/3rd of the whole members, neither was it indicated on the face of the resolution that a motion was passed at the floor of the House and it was supported and passed by 2/3rd of all the members of the House.

Subsection 5 requires the Chief Judge of the State to empanel the 7 member panel at the request of the speaker of the house.

Exhibit C is a letter to the Chief Judge from the speaker protempore. In as much as the House rule of the Plateau State House of Assembly specifically makes provision for the election of the speaker protempore. Section 8 thereof which provides;

“In the absence of the Speaker and Deputy Speaker, such member of the House as the House may elect for that purpose shall preside. Such member shall be known as “Speaker protempore . ”

I believe the above provision is not referring to a Speaker protempore but to the duly elected Speaker of the House. If the framers of the Constitution have contemplated a situation where a ‘Speaker Protempore’ would make the request for the investigation to the Chief Judge they would have clearly said so.

Subsection 9 provides that upon the receipt of the Investigation Panel’s Report that the allegation has been proved by the House, the House shall consider the report and by a resolution of the House supported by not less than 2/3rd majority of all its members the report is adopted, the holder of the office shall stand impeached as from the date the report is adopted.

Nowhere in the processes filed in this court is there a resolution of the House in compliance with the above provisions. In effect no resolution Supported by 2/3rd and majority of all members of the House was passed adopting the report of the investigation panel.

The aim of the above dissection is to highlight instances of non compliance of the constitutional provisions vis-a-vis the facts of this case. As I have shown there were clear breaches of the Constitution in the subsections highlighted.

The members of the Plateau State House of Assembly are members by virtue of the Nigerian Constitution, they are therefore expected to abide by the provisions of the Constitution. They cannot shut their eyes in total disregard of its provisions in order to achieve an aim. The courts are the custodian and guardian of the Constitution by virtue of sections 1(1), 4(8), 6(6) a – b who will come in and intervene to bring out the intendment of the Constitution. See in particular the preamble to the 1999 Constitution which says;

“‘WE THE PEOPLE of the Federal Republic of Nigeria:

HAVING firmly and solemnly resolved:

TO LIVE in unity and harmony as one indivisible and indissoluble Sovereign Nation under God dedicated to the promotion of inter-African solidarity, World peace, international co-operation and understanding:

AND TO PROVIDE for a Constitution for the purpose of promoting the good government and welfare of all persons in our country on the principles of freedom, equity and justice, and for the purpose of consolidating the unity of our people:

DO HEREBY MAKE, ENACT AND GIVE TO

OURSELVES the following Constitution. ”

In view of the above it is our collective duty to abide and uphold the Constitution.

See the holding of my Lord Tobi JSC in A.-G., Abia State v. A.G., Federation (supra) at 381-382;

The Constitution of a nation is the fons et origo, not only of the jurisprudence but also of the legal system of the nation. It is the beginning and the end of the legal system. In Greek language, it is the Alpha and the Omega. It is the barometer with which all statutes are measured. In line with this kingly position of the Constitution, all the three arms of Government are slaves of the Constitution, not in the sense of undergoing servitude or bondage, but in the sense of total obeisance and loyalty to it. This is in recognition of the supremacy of the Constitution over and above every statute, be it an Act of the National Assembly or a law of the House of Assembly of a State.

The supremacy clause is provided in section 1(1) of the Constitution of the Federal Republic of Nigeria, 1999. All the three arms of Government must dance to the music and chorus that the Constitution beats and sings, whether the melody sounds good or bad.

Regarding the first place section 1 occupies in the Constitution, I regard and christen it as the golden section of the Constitution, the adjectival variant of the noun gold. It is the same golden position in sports that the Constitution occupies in any jurisprudence and legal system, including ours.

While I recognise the constitutional right of the legislatures, that is, the National Assembly and the House of Assembly of the States, to amend the Constitution, until that is done, they must kowtow (using the Chinese expression) to the provisions of the Constitution, whether they like it or not.

Where the National Assembly qua legislature moves from the constitutional pun1iew of section 4(2) of the Constitution or vice versa, as it relates to the House of Assembly of a State in respect of section 4(7), issue or question or constitutionality or constitutionalism arises, and courts of law in the exercise of their judicial powers, when asked by a party, will move in to stop any excess in exercise of legislative power. This is what I am doing and section 6 of the Constitution is my authority for doing so.

As a judge, I am hired to interpret the laws of this country which include the Constitution and Statutes.

Where there is infraction of the law, I have a constitutional duty to say so and I must say so. ”

It is similarly my duty to say that section 188(2)(4)(5) and (9) have not been complied with in the proceedings leading to the impeachment of the plaintiff.

This brings me to the issue raised by the 2nd-7th defendants that by virtue of section 102 that the 8 members who initiated and carried out the impeachment proceedings are the members envisaged by the provisions of Section 188.

Section 179(1) of the 1999 Constitution provides;

“179(1) A candidate for an election to the office of Governor of a State shall be deemed to have been duly elected to such office where, being the only candidate nominated for the election –

(a) he has a majority of YES votes over NO votes cast at the election; and

(b) he has not less than one-quarter of the votes cast at the election in each of at least two-thirds of all the local government areas in the State …. ”

The election of a Governor required the votes of at least one quarter of the total votes cast in at least 2/3rd of all the local governments in the State.

It follows that his removal from office will require the same reverse procedure. This is left in the hand of the State Assembly by the framers of the Constitution the obvious reason being the representation of the electorate as the House of Assembly members are representatives of their constituencies, i.e. the local governments of the State.

Section 91 stipulates that the composition of a House shall consist of members divided in such a way as to reflect as far as possible the population of a State and shall consist of not less than 24 or 40 members.

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 1/3rd of 24 and represents 1/3rd the constituency of the population of Plateau State.

They do not represent the 2/3rd population of Plateau State and do not therefore have the mandate of the people to remove a Governor elected by 2/3rd majority of the electorate Plateau State. I agree 8 is more than 2/3rd of 10, but 8 is less than 2/3rd of 24. The 8 members are not the 2/3rd 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.

I must here comment on the attitude of the Seven (7) Man Investigation Panel as headed by the 1st defendant who refused to obey court orders, their action was to say the least contemptuous of the courts. I find their action who as inferior tribunal are obliged to obey court orders as a sad sabotage to the rule of law.

Having found that the entire pre-impeachment process was illegal being in breach of constitutional provisions it also goes without saying that the Seven (7) Man Panel of Investigation was also incompetent as it lacks the legs to stand on. Its proceedings are a nullity and of no effect.

In the circumstances I find merit in the originating summons and enter judgment for the plaintiff on his originating summons and make the following declaration and grant the following reliefs.

1. It is hereby declared that the Plateau State House of Assembly cannot be validly constituted by only 6 members of the House for the purpose of commencing and concluding Impeachment Proceedings under section 188 of the Constitution of the Federal Republic of Nigeria.
2. It is hereby declared that there cannot be a Constitutionally valid impeachment of Chief Dr. Joshua Chibi Dariye as Governor of Plateau State without strict compliance with the provisions of section 188(1) to (9) of the 1999 Constitution.
3. It is hereby declared that on a proper interpretation of section 188(4) of the 1999 Constitution, 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 uncapable of passing a valid motion pursuant to section 188(4) of the 1999 Constitution to the effect that the allegation of gross misconduct be investigated against the plaintiff.

It is hereby declared that the resolution passed by the 2nd -7th defendants on the 13/10/2006 pursuant to section 188(4) of the 1999 Constitution is unconstitutional, null and void having been passed by less than two-thirds (2/3rd) majority of all the members of the Plateau State House of Assembly.

An order is hereby made 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 directive to the Acting Chief Judge of Plateau State, the said steps having breached the provisions of sections 36(1) and 188 of the 1999 Constitution.

6. An order is hereby made nullifying the interim or any other report of findings submitted by the Seven (7) Man Panel of Investigation against the plaintiff submitted to the 2nd -7th defendants on the basis of which the 2nd-7th defendants impeached the plaintiff as Governor of Plateau State on the 13th November, 2006.
7. An order is hereby made nullifying the impeachment of the plaintiff on the morning of 13th November, 2006 by the 2nd-7th defendants being against the provisions of sections 36( 1), 91-105 and 188 of the 1999 Constitution.
8. The plaintiff Chief Dr. J.C. Dariye is hereby restored and re-instated to his office as the Governor of Plateau State with all rights, privileges and perquisites of the said office.

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Other Citations: (2007)LCN/2596(CA)