Hon. Mike Balonwu & Ors V. Mr. Peter Obi & Anor (2007)
LawGlobal-Hub Lead Judgment Report
JIMI OLUKAYODE BADA, JCA
The Plaintiff before the lower court now 1st Respondent in this appeal commenced his claim against the Defendants now appellants by Originating Summons before the High Court of Anambra State on 30th day of October 2006 in Suit NO.0/599/2006 – Mr. Peter Obi V. Hon. Mike Balonwu & Others. Later on with the leave of court, the Plaintiff filed an amended Originating Summons and sought for the following declarations and reliefs:-
“(i) Declaration that by virtue of Section 188(2) of the 1999 Constitution of the Federal Republic of Nigeria the Plaintiff was entitled to be personally served with a notice of any allegation of Gross Misconduct against him within 7 days of the 1st Defendant’s receipt of the Notice of allegation dated 16th October 2006.
(ii) Declaration that the failure to personally serve the Plaintiff with the Notice of allegation against him dated 16th October 2006 within a period of 7 days from 16th October 2006 vitiates the said notice and all other proceedings arising therefrom in the process of the impeachment of the Plaintiff including the request on the Chief Judge of the State to set up a 7 man panel to investigate the said allegations and the resolution of the 6th Defendant accepting same.
(iii) Declaration that the address of the Notice of allegation of gross misconduct dated 16th October 2006 to the Secretary to the State Government, office of the Secretary to State Government, Government House Awka as against to the Plaintiff in his office at Awka is an act of bad faith which violates the provisions of Section 188(2) of the 1999 Constitution of the Federal Republic of Nigeria.
(iv) Declaration that the purported service of the Notice of allegations of misconduct in the Daily Sun of Friday October 20 2006 or to any other Newspaper violates Section 188(2) of the 1999 Constitution of the Federal Republic of Nigeria.
(v) Declaration that the request on “the Secretary to Government” to cause the resolution to be placed before their Excellencies the Governor and Deputy Governor of Anambra State respectively violates the requirement of service of notice of allegation in writing envisaged by Section 188(2) of the 1999 Constitution of the Republic of Nigeria.
(v)(a) Declaration that failure to serve all members of the Anambra State House of Assembly with notice of allegation of gross misconduct within 7 days from 16th October 2006 as required by Section 188(2) of the Constitution violates all subsequent impeachment processes and rendered same void.
(vi) Declaration that in view of the subsisting Order made by C.O. Amechi J. in Suit No:HID/207/2006 Okeke V. Hon. Mike Balonwu & Others restraining the 1st Defendant and members of the 6th Defendant herein and their agents, privies etc from continuing to do anything or take steps or continuing to take steps based on the purported impeachment notice pending the determination of the Motion on Notice filed in the said suit, the Defendant cannot take any valid steps on the matter of impeachment of the Plaintiff including the request on the Hon. Chief Judge Anambra State to set up a 7 man-panel and the resolution of the 6th Defendant accepting same.
(vii) Declaration that in view of the appointment and swearing in of Frank Onyenwuzo as the Clerk of the Anambra State House of Assembly the proceeding of the House of Assembly held on 25th October 2006 in which the Hon. Chief Judge Anambra State was directed to set up a 7 man-panel vitiates the proceedings of the Anambra State House of Assembly of 25th October 2006 including the request on the Hon Chief Judge Anambra State to appoint a panel of 7(Seven) to investigate the allegations of gross misconduct as contained in the purported notice of 16th October 2006, and the resolution of the 6th Defendant accepting same.
(viii) Declaration that the Defendants cannot validly embark on the request for the Hon. Chief Judge Anambra State to appoint a panel of 7(seven) to investigate allegations of corruption being allegation of criminal offences as contained in the purported notice of allegation of gross misconduct as contained in the letter of 16th October 2006.
(viii(a) Declaration that the Defendants cannot validly pass the resolution for the Chief Judge of Anambra State to settle, (sic) a 7 seven man investigation panel to investigate the allegations of gross misconduct against the Plaintiff in a session of the 6th Defendant with 15members in attendance out of the 30 members of the House.
(viii(b) Declaration that the requirement of Section 188(4) of the 1999 Constitution which requires that the resolution of the 6th Defendant calling for the investigation of the allegation of gross misconduct against the Plaintiff can only be passed with 2/3rd majority of vote of all the members of the 6th Defendant cannot be complied with by the defendants by voice vote.
(viii(c) Declaration that the proceedings of the 7 man-panel held without any rules of procedure prescribed by the 6th defendant is invalid and a nullity.
(viii(d) Declaration that the alleged resolution of the of the defendants accepting the purported report of the 7man panel at about 6am on 27/11/06 when the panel had at about 4.30pm on 01/11/06 adjourned further proceedings to 06/11/06, is scandalous, outrageous, grossly indecent, reprehensible and constitutes a flagrant violation of the 1999 Constitution.
(viii(f) Declaration that the purported acceptance of the alleged report of the 7 man-panel in a session of the 6th defendant attended by less than 12 out of the 30 members of the 6th defendant does not meet 2/3rd majority requirement prescribed by the Constitution and consequently is null and void.
(viii(g) Declaration that the fractionalization of the 6th Defendant into two major factions from 26th October 2006 rendered the 6th Defendant incapable of taking any valid steps thereafter towards the impeachment of the Plaintiff.
(viii(h) Declaration that the Plaintiff is and still remains the Governor of Anambra State of Nigeria and the purported impeachment of the Plaintiff as announced by the 1st Defendant on 2/11/06 is null, void and of no effect.
(viii(i) An Order setting aside the purported impeachment of the Plaintiff on the ground that the process is violative of Section 188 of the 1999 Constitution of the Federal Republic of Nigeria.
(viii(j) An Order of injunction restraining the defendants and their agents from whether by themselves or through the use of the Police security agencies from preventing the Plaintiff from continuing to be the Governor of Anambra State or stopping or impeding the Plaintiff from functioning and performing the duties of his Office as the Governor of Anambra State.”
The amended Originating Summons was supported by a further affidavit while the Defendants now appellants also filed counter-affidavit.
At the conclusion of hearing before the lower court, judgment was delivered on the 28th day of December 2006 and the trial court held that the purported impeachment of the 1st Respondent by the Appellants is unconstitutional null and void and of no effect whatsoever and thereby set the impeachment aside.
Dissatisfied with the Judgment of the lower court, the appellants now appealed to this Court.
The 1st to 5th appellants formulated eight issues for determination as follows:-
(i) Whether the Learned trial Judge at the court below had the jurisdiction to deliver the judgment, which he delivered in the suit on the 28th day of December 2006 having regard to the circumstances of the case (Grounds 1, 5, & 10)
(ii) Whether the Learned trial Judge was right when he tried the suit on the basis of Originating Summons Procedure. (Ground 2 & 4)
(iii) Whether the Learned trial Judge was right when he refused to permit the counsel for the 1st to the 5th Defendants to cross-examine deponents to affidavits relied upon by the Plaintiff. (Ground 3)
(iv) Whether the use made by the Learned trial Judge of the Order, Exhibit 2 filed along with the Originating Summons which was never served on the 1st to 5th Defendants and was later superseded by an amended Originating Summons which did not contain that Exhibit is proper in the circumstances of this case. (Ground 6)
(v) Whether the Learned trial Judge was correct when he held that the 1st to the 5th Defendants did not effectively deny paragraphs 5, 6, 8, 9, 11(a) – 11(f) of the Originating Summons (Ground 7).
(vi) Whether in the circumstances of this case, it was open to the Learned Trial Judge without pleadings and oral evidence, to hold that the 1st to the 5th Defendants failed to obey the mandatory order made by Amaechi J. and that the failure rendered the impeachment process invalid (Ground 8)
(vii) Whether in the circumstances of this case, it was open to the Learned Trial Judge to come to the conclusion that the Plaintiff had proved that he was not served with the notice of misconduct without pleadings and oral evidence. (Ground 9)
(viii) Whether having regard to the decision on issues (i) – (vii) above, the judgment of the Learned trial Judge is not wholly perverse being contrary to law and given without jurisdiction (Ground 11).
The 1st Respondent on the other hand formulated Ten issues for determination as follows:-
(1) Whether there was a valid order of transfer which divested the trial Judge of the jurisdiction to deliver the judgment which was previously adjourned (Ground 1).
(2) Whether the Learned trial Judge was right to have heard the suit under the Originating Summons Procedure having regard to the questions which determination was sought, the relief sought and the affidavit and documentary evidence placed before the court.
(3) Was the Appellants denied the opportunity to cross-examine the deponents to the 3rd part (sic) affidavit and whether the applicants suffered a miscarriage of justice or deprived them of fair hearing in the circumstance (Ground 3).
(4) Whether the learned trial Judge was right in receiving in evidence certified true copies of documents some of which were exhibited and other duly pleaded and delivered to the Appellant’s counsel. (Ground 4)
(5) Whether the suit is incompetent and caught by Section 3, 23 and 30 of the Legislative houses (Power and Privileges) Act. (Ground 5)
(6) Whether the learned trial Judge was right when held that the appellants failed to effectively join issues with vital paragraphs of the Respondents’ affidavit and further affidavit in support of the Amended Originating Summons. (Ground 7)
(7) Whether the Learned trial Judge was right in holding that the failure of the 1st to 6th Appellants to abide by the order of Injunction issued by the High Court of Anambra State restraining the 1st to 5th appellants, their privies or howsoever and members of the 6th Appellant from proceeding with the impeachment rendered the subsequent act of purported impeachment of the respondent void. (Ground 8)
(8) Whether the learned trial Judge was right when he held that the notice of allegations of misconduct was not duly served on the respondent by the Appellants, a fact which rendered the entire impeachment proceeding void. (Ground 9)
(9) Whether the Appellants established that the delivery of Judgment on 28th December, 2006 was done without notice to them and was prejudicial to their interest.
(10) Whether the judgment of the trial court is perverse.”
At the hearing, Learned Senior Counsel for the appellants 1st to 5th adopted and relied on the appellant’s brief of argument.
On issue No.5, Learned Senior Counsel for the 1st to 5th Appellants referred to the case of
Ngige V. Obi (2006) 14 NWLR (part 999) Page 1 at 160 paragraphs C – E.
– Order 1 rule 1(2) of the High Court Civil Procedure Rules of Anambra State.
– Gambari V. Gambari (1990) 5 NWLR (part 152) Page 570 at 590 Paragraph C.
He urged that the appeal be allowed.
The 6th appellant who participated in the proceedings at the lower court filed notice of appeal through Counsel for 1st to 5th Appellants but for reasons best known to it failed to file a brief of argument in this appeal.
The Learned Senior Counsel for the 1st Respondent on the other hand also adopted and relied on the respondent’s brief of argument.
He also argued that the case of Ngige V. Obi (supra) referred to by learned Senior Counsel for 1st to 5th Appellants is not applicable in this case.
He also stated that the appellant fought this case on old rules and that the High Court Civil Procedure Rules of 2006 was not in contemplation when this suit was being fought at the lower court.
He finally urged that the appeal be dismissed.
The 2nd Respondent also even though given the opportunity to file its brief also failed to file anything.
The issues formulated by Learned Senior Counsel on behalf of the parties are similar. However the issues set out on behalf of the 1st to 5th Appellants are considered relevant and apt to determine this Appeal.
For clarity, the issues are to be treated under two broad categories, i.e. issues 1,2,3, & 4 to be taken together while 5, 6, 7 & 8 are also to be taken together.
ISSUES 1, 2, 3 & 4. (Taken together)
Learned Senior Counsel for the 1st to 5th appellants submitted that no court has the jurisdiction to conduct any case in a manner prohibited by the law setting up the Court and the rules guiding the court in matters of procedure.
He referred to the following cases:
– Edun V. Odan Committee & Others In Re: Chief Yakubu Dawodu, The Olojo of Ojo (1980) 8-11 SC 103 at 172.
– A.T. Bakare V. T.S. Apena & 2 Others (986) 4 NWLR Part 331 at Page 20.
He went further in his submission that the lower court in purporting to deliver judgment in this suit on the 28th day of December 2006, flagrantly and without any redeeming grace flouted not only the law setting up the High Court but the rules made for that court. He referred to – Section 40, 41 of the High Court Law of Anambra State and the following cases:-
– Akoh V. Abuh 0988 3 NWLR (Part 85) at 696.
– Agbo V. Agbara (997) 1 NWLR (Part 481) Page 293 at 311-312.
He made reference to the application made by 1st to 5th Defendants for transfer of the suit from Hon. Justice Nri-Ezedi on the 18th day of December 2006. And that on 20th day of December 2006 the Hon. Chief Judge of Anambra State transferred the suit from High Court NO.1 Awka (Coram Nri- Ezedi J).
Learned Senior Counsel therefore submitted that the proceedings before the lower court on the 28th day of December 2006 was null and void in view of the application for transfer and the order of transfer made by the Chief Judge on the 20th day of December 2006.
He also submitted that by virtue of Order 45 Rule 4(c) of the High court (Civil Procedure) Rules 2006 sitting of the High Court for dispatch of civil matters are prohibited during the period beginning on Christmas eve and ending on the 2nd day of January next following. And that this includes 28th day of December 2006.
He referred to the following cases:-
– Anie & another V. Uzoka & others (993) 9 SCNJ Page 223.
– Ngige V. Achukwu (2005) 2 NWLR (part 909) Page 123 at 142-143H-B.
He went further in his submission that the quorum of a House of 30members is 10 and he submitted that a suit to which only 6 members are sued is clearly incompetent. And besides, that under Section 3 of the Legislative Houses (Powers and Privileges) Act no civil proceedings may be instituted against any member of the legislative house or a committee thereof or in any petition, bill, resolution motion etc. furthermore that under Section 30 of the same Act the Speaker of Anambra State House of Assembly shall not be subject to the jurisdiction of any court in respect of any power conferred or vested in him by or under the Act or Standing Orders of the House or Constitution. He referred to the following cases:-
– Ewelogu V. The State (19982) 2 NWLR Part 78 Page 254.
– Fawehinmi V. Babangida (2003) 3 NWLR (Part 808) Page 604.
– Lagos State V. A.G. Federation (2003) 12NWLR (Part 833) at Page 32.
On the issue of Originating Summons procedure learned Senior Counsel for the 1st to 5th appellants stated that there are assertions made which required proof, for example the issue of service of the impeachment notice on the plaintiff on the basis of Newspaper publication. Exhibits FA 1, FA 5 to FA 14 were also referred to and counsel contended that the deponents of the affidavits needed to be tested by cross examination. He referred to the following cases:-
– Ojukwu V. Governor of Lagos State (1985) 2 NWLR (Part 10) Page 806 at 818B.
– Lekwot V. Judicial Tribunal (1997) 8 NWLR (Part 515) Page 22 at 35.
– National Bank of Nigeria & another V. Alakija & another (1978) 9 and 10 S.C. Page 59.
– Anataogu V. Anataogu (1997) 9 NWLR (Part 519) Page 49.
– Keyamo V. Lagos State House of Assembly (2000) 12 NWLR (Part 680) Page 196.
He also submitted that Originating Summons Procedure is not to be adopted where the proceedings are likely to be hostile with facts coming into disputes. Reference was made to:-
– Fasheun Motors Ltd. V. D.B.A. LTD (2000) 1 NWLR Part 640 Page 190 at 198.
– Ogunsola V. APP (2003) 9 NWLR (Part 826) Page 462.
– Nitel Vs Dgbe (2002) 3 NWLR Part 753 Page 186 at 203-204.
– Ajagungbade III V. Adeyelu (2001) 16 NWLR Part 738 Page 126 at 188 -199.
– Egbarin V. Aghoghoviba (2003) 16 NWLR Part 846 Page 380 at 390.
– Osuegwu V. Emezi (1998) 12 NWLR part 579 Page 640 at 649.
– Akibu V. Race Auto Supply Co. Ltd (2000) 14 NWLR Part 86 Page 190 at 203.
On the issue of the refusal to permit counsel for the 1st to 5th Defendants to Cross-Examine deponents to Affidavits relied upon by the Plaintiff, Learned Senior Counsel for the 1st to 5th Appellants submitted that a defendant is entitled as of right to test the validity and accuracy of the evidence marshaled against him by the Plaintiff by cross-examining all witnesses called by the Plaintiff.
On the issue of the use made of the Order, Exhibit 2 by the learned trial judge, it was submitted on behalf of the 1st to 5th appellants that it was wrong for the learned trial Judge to rely on Exhibit 2 filed with the Originating Summons as if that exhibit were part of the exhibit filed with the amended originating summons.
In his response to the submission of Learned Senior Counsel for the 1stto 5th Appellants, Learned Senior Counsel for the 1sl respondent urged that ground one of the appellants’ grounds of appeal be struck out because it is incompetent. He referred to particulars of misdirection in No. (iv) and (v). He said that particular No. (iv) does not flow from the ground of appeal and that particular (v) is argumentative, therefore that they offend the provisions of Order 3 Rule 2(2) & (3) of the Court of Appeal Rules 2002 and therefore that ground 1 should be struck out. He referred to Okwumodi V. Sowumi (2004) 2 NWLR (Part 8360 Page 1.
The particulars of misdirection of Ground one which are being attacked are as follows:-
“(iv) Honourable Justice Obidigwe sitting at High Court of Anambra State, Ogidi Judicial Division had already issued a Hearing Notice to all parties to appear before him in the suit on the 15th day of January 2007.
(v) It is a grave misdirection for His Lordship, the the Honourable Justice U. Nri-Ezedi who had clearly become functus officio in the matter to purport to deliver judgment in the suit on the 28th day of December 2006 despite the other of transfer of which the was fully aware.”
A perusal of the above particular No. (iv) showed that it did not flow from the ground of appeal, in fact it has no bearing with the judicial authority of the learned trial judge to deliver the judgment. Furthermore particular No. (v) is clearly argumentative.
I therefore agree with the submission of Learned Senior Counsel for the 1st Respondent that particulars (iv) and (v) of Ground I are bad and they offend the provisions of Order 3 Rules 2(2) and (3) of the Court of Appeal Rules 2002.
The effect of non-compliance with the rules aforesaid was considered in the case of Okwumodi V. Sowunmi (2004) 2 NWLR Part 836 Page 1 where it was held at page 22 paragraphs D – E as follows:-
“The particulars of grounds 1, 2, and 3 of the grounds of appeal cannot be accorded the same favour because they are argumentative, conclusive as they do not flow from the errors or misdirection contained in the ruling. Any particulars, which are conclusive, argumentative or vague, are outside the precincts of the application of Order 3 rule 2(2) of the rules. It is settled that where a ground of appeal as in the instant case alleges error in law or a misdirection, the particulars of error or misdirection must be clearly stated and must specifically flow from the main ground of appeal which is based on the error and misdirection in the ruling or judgment.”
See also – Sosanya V. Onadeko (2005) 8 NWLR (Part 926) Page 185 at 209 at 216.
Furthermore once one or more of the particulars of any ground of appeal are rendered bad the remaining particulars serve no useful purpose because the court will not give effect to the ground of appeal by excising bad ones. The entire ground will be rendered incompetent and shall be liable to be struck out.
See – Stirling Civil Eng. Nig. Ltd v. Yahaya (2002) 2 NWLR (Part 750) Page 1 at 15 to 16 paragraphs G-B.
– Kano ile Printers PLC. V. Gloede & Hoff Nigeria Limited (2002) 2 NWLR Part 751 at 420 particularly at 444, E-F.
– Nwadike V. Ibekwe (1987) 4 NWLR (Part 67) at 718.
– Chief T.G. Berejin & others V. Chief Brown Gbogbo (1987) 1
– NWLR (Part 97) at Page 372.In the instant situation, extraneous materials, which did not flow from the judgment of the lower court, were brought in as particulars of misdirection to ground 1.
Consequently, it is my view that ground 1 of the grounds of appeal should be struck out and it is accordingly struck out.
Even if Ground I of the grounds of appeal is not struck out my simple response to it is that the heavy weather being made of the fact that the Learned trial Judge sat on 28th day of December 2006 which fell on the period of Christmas vacation lacks any substance in view of the provisions of Order 45 Rule 5(1) of the High Court Civil procedure Rules 2006 which provides that:-
“Notwithstanding the provisions of Rule 4, any cause or matter may be heard by a Judge during any of the periods mentioned in paragraphs (b) (c) or (d) of rule 4 (Except on a Sunday or Public Holiday) where such cause or matter is urgent or a Judge at the request of the parties concerned agrees to hear the case or matter.”
In the instant case the learned trial Judge had earlier stated in the proceedings of 5/12/2006 that this matter is urgent, therefore his decision was given with judicial authority.
Concerning the issue of transfer of the suit by the then Chief Judge of Anambra State on 20/12/006. Learned counsel for the 1st Respondent conceded that the Chief Judge of Anambra State has power under Section 40 of the High Court Law of Anambra State to transfer a case before a Judge of the High Court to any other Judge. It was also pointed out that the National Judicial Council acting pursuant to its powers under paragraph 21(d) of Part 1 of the 3rd Schedule to the 1999 Constitution of the Federal Republic of Nigeria and Section 292(1)(b) of the same Constitution had suspended Hon. Justice C.J. Okoli as Chief Judge of Anambra State with effect from 20/12/2006. (See pages 5 & 6 of the Supplementary record).
In view of the foregoing since the suspension of Hon. Justice C.J. Okoli as the Chief Judge of Anambra State took effect on 20/12/2006, with effect from that date, Hon. Justice Okoli was stripped of all authority, be they judicial or administrative to execute any official act as the Chief Judge of the State by reason of the suspension.
The direct effect of the said suspension was to render the transfer order absolutely invalid. The order of transfer was therefore not an act of the Chief Judge of the State and by virtue of Section 40 of the High Court Law of Anambra State, only the Chief Judge can effect the transfer of a case from one judge to another judge in the High Court.
Therefore all acts of Hon. Justice C.J. Okoli on that 20th December 2006 and thereafter purporting to be official acts in the capacity of Chief Judge are void. See – Ogbunyinya V. Okudo (1997) ANLR Page 105.
On the submission by learned Senior Counsel for the 1st to 5th Appellants that the 1st Respondent’s suit before the lower court is incompetent by virtue of Sections 3, 23, and 30 of the Legislative Houses (Powers and privileges) Acts. It is trite that in considering or determining whether a court has jurisdiction, only the Statement of Claim or the Amended Originating Summons as in this case will be considered by the court.
See – Adeyemi & others V. Opeyori (1979) 9-10 SC Page 31 at 49.
– Lagoon City Development Corporation Ltd V. A.G. Federation & others (2002) 14 NWLR (Part 786 Page 19 at 28.
– Izenkwe & others V. Nnadozie (1953) 14 W.A.C.A. Page 361 at 363.
Before a court can exercise jurisdiction in respect of any matter, it must;
(i) Be properly constituted as regards numbers and qualification of the members of the bench and no member is disqualified for one reason or the other.
(ii) The subject matter of the case is within the jurisdiction of the court and there is no feature in the case which prevents the court from exercising its jurisdiction, and
(iii) The case comes by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction.
See – Madukolu V. Nkemdilim (1962) 2 SCNLR Page 341.
It is the law that any statute that seeks to ouster the jurisdiction of the court or restrict the right of access to court must be strictly construed. See
– Bello V. Diocesan Synod of Lagos & others (1973) 1 All NLR Part 1 at 247.
– Peenock Investment Ltd. V. Hotel Presidential Ltd. (1983) 4 NCLR Page 1222.
– Din V. A.G. of the Federation (1988) 4 NWLR Part 87 at 147.
– Dasuki V. Muazu (2002) 16 NWLR (part 793) Page 319 at 240.
In this case, the interpretation of Section 188(1) to (10) of the 1999 Constitution of the Federal Republic of Nigeria was considered by the lower court and to that extent, it is my view that the Appellants cannot invoke Section 3 of the Legislative Houses (powers and Privileges) Act. The suit has nothing to do with the situation or events as provided or contemplated in Section 3 of the said Act.
Furthermore Sections 3, 23, and 30 of the Legislative Houses (Powers and Privileges) Act cannot stand in the face of the provision of Section 4(8) of the 1999 Constitution of the Federal Republic of Nigeria which provides:-
“4(8) Save as otherwise provided by this Constitution, the exercise of Legislative powers of the National Assembly shall be subject to the jurisdiction of courts of law and of judicial tribunals established by law, and accordingly the National Assembly or a House of Assembly shall not enact any law, that ousts or purports to oust the jurisdiction of a court of law or of a Judicial tribunal established by law.”
And in the light of the interpretation of Section 188(1) to (10) of the 1999 Constitution in the case of:-
– Adeleke V. Oyo State House of Assembly (2006) 16 NWLR (Part 1006) Page 608, therefore no state enactment can override the provisions of the said 1999 Constitution.
Consequently the provisions of Sections 3, 23 and 30 of the Legislative Houses (Powers and privileges) Act are inconsistent with Section 4(8) of the 1999 Constitution as well as Sections 6(2), (3) and (6)(a) and (b) of the 1999 Constitution of the Federal Republic of Nigeria which vests judicial powers in Anambra State High Court and other Courts over all persons and authority including the Appellants. Therefore by virtue of Section 1(3) of the 1999 constitution, the Legislative Houses (powers and Privileges) Act is null and void being inconsistent with 1999 Constitution of the Federal Republic of Nigeria.
Furthermore for an act of the Appellants to be a legislative act done in the process of removing the Respondent from office, it must comply strictly with the procedure prescribed by Section 188(1) to (9) of the 1999 Constitution of the Federal Republic of Nigeria. See – Adeleke v. Oyo State House of Assembly (supra).
Next to be considered is the issue of Originating Summons Procedure.
The Learned Counsel for the 1st to 5th Appellants submitted earlier that there are so many facts in dispute in this case and therefore that Originating Summons is not appropriate under this situation.
On the other hand, counsel to the 1st Respondent submitted that there is no controversy which would warrant the suit to be called a hostile proceedings and that the justice of the case does not demand that oral evidence be called.
The question which the 1st Respondent sought from the court centered on-:
(a) non-compliance with the mandatory provision of Section 188(2) of the 1999 Constitution which provides that the Respondent shall be personally served with the notice of gross allegation of misconduct against him.
(b) The effect of the orders of court which restrained the principal officers of Anambra State House of Assembly from removing or continuing with the removal proceedings which the Appellants continued to pursue and purportedly completed during the subsistence of the order of court in Suit HID/207/2006.
(c) The effect of appointment of Frank Onyenwuzu as Clerk of Anambra State House of Assembly in replacement of Dr. Ikwuka.
(d) The absence of any rule of procedure used by the Panel constituted by the then Chief Judge of Anambra State that investigated the allegation contained in the Notice of gross allegation of misconduct.
(e) Effect of the publication in the Newspapers of 3/11/06.
A careful perusal of the Counter affidavit filed on behalf of the Appellants on pages 178 to 179 of the record of Proceedings showed that the counter affidavit did not contradict the documentary evidence, Exhibit 1 of the 1st Respondent which was a publication in the Sun Newspaper addressed to the Secretary to the State Government and never to the 1st Respondent.
– There is no dispatch book showing that the 1st Respondent was served and who effected the service of the Notice of gross allegation of misconduct on the 1st respondent.
– No document showing that the 1st respondent signed a copy of the notice of Gross allegation of misconduct.
No denial of the signatures in the publication.
– No newspaper publication showing that the 1st Respondent was served.
– There is no specific averment in the counter-affidavit that the 1st Respondent was personally served with the notice of gross allegation of misconduct.
It could therefore be seen that there is no dispute as to the non-service on the 1st Respondent with the notice of gross allegation of misconduct as provided by Section 188(2) of the 1999 Constitution.
In deciding whether or not contents of two documents are conflicting TORI J.S.C. stated in L.S.P.D.C. V. Adold Stama International Nig. Ltd. (2005) 2 NWLR (Part 910) Page 603 at 621 that:-
“For conflict in affidavit to receive the attention of the court the conflict must really affect the live issues involved in the case. The conflict must be tangible, not intangible. It must be material not immaterial and it must be substantial and fundamental to the live issues in the case. Where conflicts are peripheral, cosmetic and inarticulate or a mere farce orchestrated by the party, a court of law will not order that oral evidence be led to resolve or reconcile the “conflicts” in inverted commas.”In the instant case, the counsel for the 1st to 5th appellants stated that there are assertions made which required proof but in my view I do not see any conflicts deserving oral evidence. And if at all there are conflicts, they are not material, thus not deserving oral evidence in the circumstance.
The judicial authority cited by the appellants in support of their argument that this suit is a hostile proceeding and pleadings ought to have been filed is not correct on the facts of this case. The paragraphs of the amended Originating Summons which would have perhaps been considered as being in dispute are paragraphs 6A, 9A, 11D, and 11E which were abandoned by the Respondent therefore to start making pronouncement on them will be an academic exercise.
In view of the foregoing it is my view that the suit was properly commenced by Originating Summons.
On the issue of denial of opportunity to cross examine the deponents to the 3rd party affidavit, it was the submission of Learned Senior Counsel for the 1st to 5th appellants that a defendant is entitled as of right to test the validity and accuracy of the evidence marshaled against him by the Plaintiff by cross examining all witnesses called by the Plaintiff.
A careful perusal of the record of proceedings in this case showed that paragraph 11E and Exhibit FA5-FA 14 of the Respondent’s Originating Summons were abandoned therefore the issues raised in the paragraphs and the Exhibits were no long alive.
It is the law that courts do not deal with hypothetical or academic issues, therefore ground 3 of the notice of appeal is incompetent.
See – NICON Vs power Industrial Engineering Co. Ltd. (1986) 1 SC Page 1 at Page 35.
– Asata Foods Factory V. Alraine (2002) 12 NWLR (Part 781) Page 353 at 368.
– UBN PLC V. Blue Continent Products (2002) 12 NWLR (Part781)
Page 424 at 434-436.
-Mobil Producing Nigeria unlimited V. Chief Simeon Monokpo (2003) 18 NWLR (Part 852) Page 346 at 398-399.
– Ngige V. Obi (2006) 14 NWLR (part 999) page 1 at 102, 103.
Learned Senior Counsel for the 1st to 5th appellants also submitted that it was wrong for the Learned Trial Judge to rely on Exhibit 2 filed along with the Original Originating Summons as if that exhibits were parts of the exhibits filed with the amended Originating Summons when it was not.
Learned Senior Counsel for the 1st respondent stated that what truly transpired at the court below was that learned counsel for the Plaintiff/1st Respondent applied to tender from the Bar, Certified True Copies of Public documents pleaded in the amended Originating Summons, copies of which had earlier been attached to the affidavit in support of the Originating Summons. And the court after hearing arguments from both sides admitted the documents as certified documents pleaded. (See page 348 of the record of the proceedings.)
It is my view that the Learned Trial Judge correctly approached the issue of admissibility of the Certified True Copy of the Public documents pleaded in the Originating Summons and came to a correct conclusion that they were admissible. This is so because the said documents were duly pleaded in the amended Originating Summons and/or the facts relating to them were duly pleaded. They were also relevant to the issues in controversy. They were public documents duly certified in accordance with the provisions of Section III of the Evidence Act. That being so, they did not need to be brought in through an affidavit, the said documents are admissible in law upon their mere production. See – Daggash V. Bulama (2004) 1.4NWLR Part 892 Page 144 at 161-162 ratio 15 where it was held inter alia:-
“Once a public document is certified and signed as required by Section 111 of the Evidence Act, such document is admissible on its mere production and it is unnecessary to prove custody or to verify it. It is unnecessary to call the public Officer who certified it and it may even be tendered from the Bar.”
See also – Agagu Vs, Dawodu (1990) 7 NWLR (part 160) Page 56.
It was also contended on behalf of the 1st to 5th appellants that the learned trial Judge failed to appreciate that the Originating Summons to which the said Exhibit 2 was attached was never processed and served before it was superseded by an application Ex-parte to amend same.
The Learned Senior Counsel for the 1st Respondent was quick to point out that the Originating Summons to which the said exhibit 2 was attached, was pursuant to the order of court for substituted service made in the matter, duly processed and served, through publication on pages 32 to 33 of the Vanguard Newspaper of Tuesday November 28/2006.
On the submission that when a process is amended that the original process becomes Otiose, it is my view that the court cannot shut its eyes against such old process, it still forms part of the processes before the court which the court is entitled to look at. See – Agbahomovo & others V. Eduyegbe & others (1999) 2 SCNJ Page 94 at 96 ratios 1 & 2.
In view of all I have said so far on the issues under consideration, Issues 1, 2, 3 and 4 are therefore resolved against the appellants.
ISSUES 5, 6, 7 & 8 (Taken together)
It was contended on behalf of the 1st to 5th appellants that the learned trial Judge was wrong when he held that the 1st to the 5th Defendants did not effectively deny paragraphs 5, 6, 8, 9, 11(A) – 11(F) of the amended originating Summons. (See Pages 81 to 89 of the record). Reference was made to paragraphs 4 – 9 of the counter affidavit. (See pages 178 to 179 of the record of proceedings).
Learned Senior Counsel for the 1st to 5th appellants submitted that the lower court failed to appreciate the potency of paragraph 5 of the said counter affidavit which he said was a clear statement to the effect that the House of Assembly meticulously observed and complied with all constitutional requirements in the process of impeachment of the Plaintiff.
He went further that whether there was such compliance was a matter to be tested by evidence but that the court below prevented that from happening.
It was also submitted that without pleadings and oral evidence, it was not open for the trial Judge to hold that the 1st to 5th Defendants failed to obey the mandatory order of 25/10/06 made by Amaechi J. and that the failure rendered the impeachment process invalid.
The Learned Senior Counsel for the 1st to 5th Appellants also stated that whether in the circumstances of this case it was open to the learned trial Judge to come to the conclusion that the Plaintiff had proved that he was not served with the notice of misconduct without pleadings and oral evidence.
Reference was made to the Judgment of the lower court where it was stated that the burden is on the 1st to 5th Defendants to show that they served the Plaintiff with the notice personally and that they failed to discharge this burden.
The Learned Senior Counsel for the 1st respondent in his response referred to the concluding part of the judgment of the lower court where it was held that:-
“I consider reliefs veal, viii(a), viii(b), viii(i) and viii(g) abandoned. I hereby strike them out.”
It was pointed out that paragraphs 11(a), 11(d), 11(e) and 11(f) of the Amended Originating Summons dealt with matters which the court held were abandoned by the Respondent and which the court struck out.
A close examination of paragraphs 5, 6, 8, 9, 11(b) and 11(c) of the amended Originating Summons vis-a-vis the counter Affidavit filed by the Appellants showed that the said paragraphs 5, 6, 8, 9, 11(b) and 11(c) of the Amended Originating Summons were not denied. The law is settled that where a person makes specific, material and detailed allegations of facts in an affidavit, the opposing party is obligated to make specific denial and not general traverse, if he intends to join issues on the allegations of fact.
See – Ogusah V. Usman (2003) FWLR Page 1465 at 1482.
– Bisimillahi V. Yagba East Local Government (2003) F.W.L.R. 1939 at 1964.
In the instant case, it is my view that the appellants did not make specific denials of the allegations of facts contained in the Amended Originating Summons. Therefore the Learned trial Judge was right when he held that the appellants failed to effectively deny paragraphs 5, 6, 8, 9, 11(b) and 11 (c) of the Amended Originating Summons.
Concerning the submission on the order of Amaechi J., the appellants did not traverse the averments in paragraphs 8(i) and (ii) and 9 of the amended Originating Summons. The appellants in paragraph 4 of their counter affidavit simply stated that paragraphs 8(i) & (ii) and 9 of the amended Originating Summons is false, without more. The averment of the appellants can only amount to a general traverse to specific averments.
It is the law that a traverse or denial of specific facts must be specific and not general or evasive.
– See – Okonkwo V. C.C.R. Nig. Plc (2003) 8 NWLR (Part 822) Page 347 at 419.
– U.R.N. V. Dawodu (2003) 4 NWLR (Part 810) Page 287 at 300.
– F.B.N. PLC V. Akinyosoye (2005) 5 NWLR (Part 918) Page 340 at 373, and
– Omin v. Etim (2003) 6 NWLR (Part 817) Page 587 at 606.The appellants instead of obeying the order of a court of competent jurisdiction went ahead with the removal proceedings.
It is my view that failure to obey the mandatory order of Amaechi J. rendered the removal process invalid.
The courts have always stressed the need for obedience of court orders as could be seen in the following cases:-
– Dnwualu V. Mokwe (1999) 1 NWLR (Part 585) Page 146 at 154 -155.
– Attorney General Ekiti State V. Dararoola (2003) 10 NWLR (Part 827) Page 104 at 161 -162. H-C.
– Governor of Lagos State V. Ojukwu (1986) 1 NWLR (Part 18) Page 621 at 639.
On the issue of service of notice of gross misconduct on the Respondent, compliance with the provisions of Section 188 of the 1999 Constitution of the Federal Republic of Nigeria is mandatory.
Section 188 of the said Constitution reads:-
“(1) The Governor or Deputy Governor of a State may be removed from office in accordance with the provisions of this section.
(2) Wherever 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)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
The contention of the 1st Respondent is that he was not served with the notice of gross misconduct in compliance with the provision of Section 188 of the 1999 Constitution of the Federal Republic of Nigeria.
There is nowhere in the Appellant’s counter affidavit where it was deposed that the 1st Respondent was personally served with a notice of allegation of gross misconduct.
The service of process in any proceeding affecting the rights of the parties is very fundamental. Section 36 of the 1999 Constitution of the Federal Republic of Nigeria guarantees every Nigerian fair hearing in the determination of his civil rights and obligations.
What the appellants did was that by correspondence dated 16/10/2006, notice of allegation of gross misconduct against Mr. Peter Obi, Governor of Anambra State and Dame Virginia Etiaba, Deputy Governor Anambra State of Nigeria and published in the Daily Sun Newspaper of Friday 20th October 2006 at pages 40 and 41. The said notice was directed to the Secretary to the State Government, Office of Secretary to the State Government, Government House, Awka, and he was requested to cause the resolution to be placed before the Governor and Deputy Governor of Anambra State respectively.
There was nowhere in the Counter affidavit where the appellants deposed that they served the 1st Respondent with a notice of allegation of gross misconduct. In other words, there is no proof of service.
In the circumstance, it is my view that the purported notice of gross misconduct published in the Daily Sun Newspaper of 20/10/06 fell short of what is required under Section 188(2) of the 1999 Constitution of the Federal Republic of Nigeria and this is enough to set aside the entire process taken by the appellants.
In view of the foregoing, issues NO.5, 6, 7 and 8 are hereby resolved against the appellants.
This appeal by the 1st to 5th appellants therefore fails and it is accordingly dismissed.
The appeal of the 6th Appellant is also dismissed pursuant to Order 6 rule 10 of the Court of Appeal Rules 2002.
Also the Cross Appeal of the 1st Respondent which was withdrawn before the hearing of this appeal is hereby dismissed.
I hereby confirm the reliefs granted to the 1st Respondent by the High Court of Anambra State, i.e. Reliefs (i), (ii), (iii), (iv), (v), (vi), (vii)(c), (viii)(h), (viii)(i) and (viii)(j).
Consequently, for avoidance of doubt I uphold the Judgment of the I lower court that the Removal of the Plaintiff/1st Respondent Mr. Peter Obi by the Appellants is unconstitutional null and void and of no effect whatsoever.
Accordingly the Removal of Mr. Peter Obi by the appellants is hereby set aside, and he should be reinstated immediately with all his paraphernalia of office and rights by the appropriate authorities including the police.
In order to promote reconciliation between the Appellants and the 1st Respondent, I will not award any costs.
Other Citations: (2007)LCN/2263(CA)
