Plateau State Of Nigeria & Anor. V. Attorney-general Of The Federation & Anor (2006)

LAWGLOBAL HUB Lead Judgment Report

L. KUTIGI,  J.S.C.

The plaintiffs’ Amended Originating Summons which was taken out by their counsel, Professor B. O. Nwabueze, SAN., Legal Practitioner, is couched in the following terms-

ISSUES FOR DETERMINATION

ISSUE A:

Whether the suspension by the President of the Federal Republic of Nigeria of the Office of the Executive Governor ….. and the House of Assembly of Plateau State and the proclamation, published in the Federal Government Gazette as Statutory Instrument No. 4 of 2004, by which the suspension was effected, are not a violation of the provisions of Sections 176 and 90 of the Constitution of the Federal Republic of Nigeria 1999 which establish those organs for the government of the State.

ISSUE B:

Whether the said Constitution, either expressly or by implication of its provisions, authorizes the President of the Federal Republic of Nigeria, by proclamation published in the Federal Government Gazette as Statutory Instrument No. 4 of 2004, to suspend the duly elected Executive Governor and Members of the House of Assembly of Plateau State from exercising the functions and powers of their offices, and to appoint in their place an Administrator, with power to administer the affairs of the State, and whether the suspension is not a positive contravention of the explicit prohibition contained in Section 11(4) and (5) of the said Constitution.

ISSUE C:

Whether the Emergency Powers Act, 1961 from which the President claims to derive power to issue Regulations as additional authority or basis for the suspension of the Office of Governor and House of Assembly of Plateau State and the establishment of an emergency administration under an Administrator was as at May, 18, 2004, part of the laws of the Federation as an existing law under Section 315 of the said Constitution and, if so, whether the Act is not inconsistent with that Constitution.

ISSUE D:

Whether, except with respect to a law for maintaining and securing public safety and public order and for providing, maintaining and securing designated essential supplies and services, or when the Federation is at war, under Section 11(1) and (3) of the said Constitution, the National Assembly has power to make laws generally for peace, order and good government of Plateau State on matters within the exclusive competence of the State under the Constitution otherwise than as provided in Section 11(4) and (5) of the said Constitution or has power to make law or to pass resolution removing or suspending or authorizing the removal or suspension of the Governor or Deputy Governor of the State.

2. RELIEFS CLAIMED

The plaintiffs claim the following reliefs:

(i) A DECLARATION that the suspension by the President of the Federal Republic of Nigeria of “the office of the Executive Governor ………. and the House of Assembly” of Plateau State and the proclamation, published in the Federal Government Gazette as Statutory Instrument No. 4 of 2004, by which the suspension was effected, are unconstitutional, null and void as a violation of the provisions of Sections 176 and 90 of the Constitution of the Federal Republic of Nigeria 1999 which establish those organs for the government of the State.

(ii) A DECLARATION that the suspension from office by the President of the Federal Republic of Nigeria by Statutory Instrument No. 4 of 2004 of the duly elected Governor and Chief Executive and Members of the House of Assembly of Plateau State and their replacement by an emergency Administrator appointed by the President, with power to administer the State for the duration of the emergency, are unconstitutional, null and void on the ground that it is not only unauthorized by any of the provisions of the 1999 Constitution of Nigeria but is also a positive contravention of the explicit prohibition contained in Section 11(4) and (5) of the said Constitution.

(iii) A DECLARATION that the Emergency Powers Act 1961 by virtue of which the President of the Federal Republic of Nigeria claims to have power to issue regulations as the basis on which the Emergency Administrator is to coperate in the administration of the Plateau State was not as at 18 May, 2004, part of the laws of the Federation, and even supposing it to be an existing law within the meaning of Section 315 of the Constitution aforementioned, it is unconstitutional, null and void on the ground of inconsistency with Section 11(4) and (5) of the said Constitution.

(iv) A DECLARATION that the Emergency Powers Act 1961, supposing it to be an existing law within the meaning of Section 315 of the said 1999 Constitution, is unconstitutional, null and void as an abdication of the legislative powers vested in the National Assembly by Section 4 of the Constitution.

(v) A DECLARATION that, even supposing the Emergency Powers Act 1961 to be an existing law as at 18th May, 2004 and to be a valid law under the 1999 Constitution, the Regulations made by the President pursuant thereto and on the basis of which the Governor and Members of the House of Assembly of Plateau State were purportedly suspended and the emergency Administrator operated in the administration of the State are null and void on the ground that, having been made some days after 18 May, 2004, they are inconsistent with the enabling Act which does not authorize the making of Regulations with retrospective effect and with Section 36(8) which prohibits criminal offences and penalties with retrospective effect and with Section 36(8) which prohibits criminal offences and penalities with retrospective effect.

(vi) A DECLARATION that, except with respect to a law for maintaining and securing public safety and order and for providing, maintaining and securing designated essential supplies and services, or when the Federation is at war, under Section 11(1) and 3 of the 1999 Constitution, the National Assembly has no power to make laws generally for peace, order and good Government of Nigeria or any part thereof on matters not included in the Legislative Lists, otherwise than as provided in Section 11(4) of the said Constitution, and accordingly any law enacted for Plateau State in contravention of that subsection is unconstitutional, null and void.

(vii) A DECLARATION that by reason of Section 11(5) of the 1999 Constitution, the National Assembly has no power, by means of a law or a mere resolution, to remove or to authorize the President to remove or suspend the Governor or Deputy Governor of Plateau State and accordingly any law enacted or resolution passed in contravention of that subsection is unconstitutional, null and void.

(viii) A DECLARATION that the Government of Plateau State headed by Chief Joshua Dariye as the constitutional and duly elected Governor and Chief Executive of Plateau State is entitled to be paid compensation by the Federal Government for the deprivation of its constitutional right to administer the affairs of the State during the six months, May 18, to November 17, 2004, by its unlawful suspension by the President of the Federal Republic of Nigeria.

(ix) A DECLARATION that the House of Assembly, Plateau State, as the constitutional and duly elected legislative organ of the State, is entitled to be paid compensation by the Federal Government for the deprivation of its constitutional right to make laws for the State and to exercise other functions vested in it by the Constitution of the Federal Republic of Nigeria 1999 during the six months, May 18 to November 17, 2004, of its unlawful suspension by the President of the Federal Republic of Nigeria.

(x.) A DECLARATION that as the constitutional functionaries of Plateau State, duly elected and sworn-in, the Governor, Deputy Governor and Members of the House of Assembly of the State as well as the Commissioners of the State Government are entitled to be paid compensation for the loss of their emoluments, including allowances, accommodation, transport and other privileges and perquisites, during the six months May 18, to November 17, 2004 during which they were unlawfully suspended from their respective offices by the President of the Federal Republic of Nigeria.

(xi) A DECLARATION that Governor Joshua Dariye is entitled to be paid compensation by the Federal Government for the damage caused him not only by the false and malicious information supplied by its functionaries to the London Metropolitan Police that Chief DARIYE in his current status as suspended Governor of Plateau State is not entitled to and does not have diplomatic privilege status in the UK but also by the unwarranted and unlawful action of the Attorney-General of the Federation and Minister of Justice, Chief Akinlolu Olujinmi SAN., in confirming to the London Metropolitan Police that he has waived without any reservation, any immunity from arrest and prosecution that he (Chief DARIYE) may claim to have.

(xii) A MANDATORY ORDER compelling the Federal Government to pay to the Plateau State Government and the House of Assembly of the State the sum of Six Billion Naira only and One Billion Naira only respectively for the deprivations mentioned in paragraphs (viii) and (ix) above of the Reliefs.

(xiii) A MANDATORY ORDER compelling the Federal Government to pay to Chief Joshua Dariye, Governor and Chief Executive of Plateau State and the Deputy Governor jointly the sum of N2 Billion (Two Billion Naira only), to the Commissioners of the Government N500 Million (Five Hundred Million only) and to the Speaker and each of the other Members of the House of Assembly a total sum of N1 Billion (One Billion Naira only) as compensation for loss of emoluments, including allowances, accommodation, transport and other privileges and perquisites, during the six months period of their suspension.

(xiv) A MANDATORY ORDER compelling the Federal Government to pay to Governor Joshua Dariye the sum of One Billion Naira only as compensation for the damage caused him by the false and malicious information and action mentioned in paragraph (xi) above of the Reliefs.

3. GROUNDS

(a) On May 18 2004, by the State of Emergency (Plateau State) Proclamation, 2004, published as Statutory Instrument No. 4 of 2004, the President of the Federal Republic of Nigeria declared a State of Emergency in Plateau State of Nigeria.

(b) The Proclamation suspended the Office of the Executive Governor …. and the House of Assembly of Plateau State with effect from 18 May, 2004 and that the State shall for the duration of the emergency be administered by an Administrator who shall be appointed by me and operate on the basis of such Regulations that may, from time to time, be issued by me.

(c) These acts above mentioned were stated to be done or made in exercise of the powers conferred upon me by Section 305(1), (3), (c) and (d) of the Constitution of the Federal Republic of Nigeria 1999 and of all other powers enabling me in that behalf.

The Originating Summons was supported by an affidavit. In paragraphs 4, 5, 6 & 7 it is averred thus –

“(4) That His Excellency Governor Joshua Dariye, his Deputy and the House of Assembly of Plateau State were duly elected and sworn into office in accordance with the 1999 Constitution.

5. That Mr. Simon Lalong, Speaker of the House of Assembly, Plateau State, informed me and I verily believe him as follows:-

(a) That there were civil disturbances in some parts of Plateau State between September, 2001 and May 2004.

(b) That the parts of the State affected by these civil disturbances formed a relatively small part of the total area and population of Plateau State.

(c) That by reason of the disturbances and while strenuous efforts were being made by the authorities of the State Government to contain the situation, President Olusegun Obasanjo, by the State of Emergency (Plateau State) Proclamation 2004, published in the Federal Government Gazette as Statutory Instrument No. 4 of 2004, declared a State of Emergency in Plateau State on May 18, 2004.

(d) That the Proclamation aforementioned also suspended “the Office of Executive Governor ……….and House of Assembly of Plateau State.

(e) That thereafter President Olusegun Obasanjo appointed Major-General M.C. Alli (Rtd) as Emergency Administrator to administer the affairs of Plateau State for an initial period of 6 (six) months effective from May 19, 2004 subject to ratification of the National Assembly.

(f) That at the time of the suspension of the constitutional organs of the Government of Plateau State and their replacement by an Administrator appointed by the President, there were no Regulations made under the Emergency Powers Act 1961 and pursuant to which the suspension and the appointment could have been made.

(g) That the National Assembly ratified the declaration of a State of Emergency, the suspension of the Executive Governor, Deputy Governor and the State House of Assembly, Plateau State, and the appointment of Major-General M.C. Alli (Rtd) as the Administrator of the State for a period of 6 (six) months.

(h) That following their suspension from office and the take-over of the State Governor by the Administrator, the Governor, Deputy Governor and the House of Assembly, Plateau State, were prevented from exercising the functions of their offices, although they remained able and willing to do so.

(i) That the deprivation mentioned in Paragraph (h) above continued until 18 November, 2004, when the emergency and the suspension expired by effluxion of time.

(j) That during the entire period of their suspension, the Governor, Deputy Governor, Commissioners, Speaker and Members of the House of Assembly, Plateau State, were deprived of the right not only to exercise the functions of their offices, but also the right to the emoluments attached to those offices, including allowances, accommodation, cars and other privileges and perquisites.

(k) That further to paragraph (j) above the parties aforementioned suffered untold hardship and emotional trauma, loss of esteem and influence.

6. That Governor Joshua Dariye of Plateau State informed me and I verily believe him

(i) That the defendants have engaged in an intense and relentless campaign to malign and disgrace him with a view to forcing him out of office as Governor of Plateau State.

(ii) That as part of that campaign, the defendants instigated, the London Metropolitan Police to arrest him, and to raid and search his home and hotel room in London on allegations of criminal offences on or about 2nd September, 2004.

(iii) That the search, arrest and raid of Governor Joshua Dariye’s house and hotel room were consequent upon the false and malicious information given by the defendants to the London Metropolitan Police that Chief Dariye in his current status as suspended Governor of Plateau State is not entitled to and does not have diplomatic privilege status in the UK, and that his immunity from arrest and prosecution has been waived without any reservations by the Attorney-General of the Federation, Chief Olujinmi, SAN.

(iv) That the campaign has been carried further by bringing an officer from the London Metropolitan Police to testify against Governor Dariye in a criminal case before the Federal High Court in Kaduna when his name has been struck out from the case on the ground that he is covered by immunity under Section 308 of the Constitution, and when the evidence given by the officer from the London Metropolitan Police, Mr. Peter Clark, is totally irrelevant to the charges before the court, especially after the name of Governor Dariye and counts one and four of the charges had been struck out by the order of the court in Kaduna.

(v) That the campaign against Governor Dariye aforementioned has imposed severe stress and trauma upon him, which have so adversely affected his entire life.

7. That I am informed by counsel in charge of the case, Professor B. O. Nwabueze, SAN., and I verily believe him, that a court of competent jurisdiction the Federal High Court in Abuja, has held that the suspension of Chief Joshua Dariye from office as Governor of Plateau State, even supposing the suspension to be valid in law, does not remove his immunity under Section 308 of the Constitution, and that the Federal Government has not appealed against that decision.”

A Counter-Affidavit to the affidavit in support of the Originating Summons was filed by the 1st defendant. It is averred in paragraphs 5 – 29 thus –

“That paragraphs 5(a) – (k) are prevaricated and or slanted; paragraphs 6(i) – (v) and 8 are false while paragraph 7 is totally irrelevant to the plaintiff’s case.

6. The 1st defendant shall by way of objection to the competence of this suit contend that the 1st and 2nd plaintiffs did not authorize this action and no instruction was given by the plaintiffs for the filing of this case at the time it was filed.
7. Furthermore, the 2nd plaintiff is not a juristic person and cannot maintain this action as constituted.
8. That on 24th June, 2004, when this case was instituted, I know as a matter of common knowledge that Major-General M.C. Alli (Rtd) was the Administrator of Plateau State.
9. That in that capacity, the said Major-General M.C. Alli was the alter ego of Plateau State and its directing mind.
10. That any decision to commence action on that day by the 1st plaintiff could only be taken by the said Major-General Ali and no one else.
11. That the said Major-General M.C. Alli told me and I verily believe that he did not authorize the filing of this case and that he gave no instruction to plaintiffs’ counsel or to anyone at all to file this action.
12. That counsel to the plaintiffs is a mere busy body who has without any authority whatsoever employed the name of the 1st plaintiff to institute this action.
13. That at all times material to the institution of this case, the 2nd plaintiff was suspended and remained suspended until end of the emergency.
14. That I therefore verily believe that there was no time when the 2nd plaintiff took a decision to institute this action.
15. Accordingly, there was no time that counsel was instructed by the 2nd plaintiff to institute this action.
16. That some members of the 2nd plaintiff who claimed to be aggrieved by the suspension of the 2nd plaintiff instituted an action in their personal capacities at the Federal High Court, Jos, to ventilate their alleged grievances.
17. That the said action is still pending before the Federal High Court, Abuja, the same having been transferred from Jos to Abuja.
18. That the 1st defendant shall contend in the circumstance that this action is an abuse of court process by counsel who employed the name of the plaintiffs to institute this action.
19. That the 2nd plaintiff did not instruct counsel and did not pay any fees to counsel to institute the action.
20. That His Excellency, Chief Joshua Dariye was sworn in as the Governor of Plateau State on 9th May, 1999, and occupied the said office pursuant to the provisions of the 1999 Constitution.
21. Shortly thereafter and specifically from March, 2001, the State was plunged into incessant crisis and civil disturbances arising from animosity and prejudices among the people of the State along ethnic and religious divisions.
22. The crisis and disturbances were not checked by the Governor with its adverse implications on the State of Public Order and Security.
23. That the crisis consequently escalated leading to complete breakdown of public order and public safety in Plateau State with attendant massive loss of lives and properties and creating human calamity within and outside the State.
24. That the Governor did not take any effective step to stem down the tide and made no request to the President to issue a proclamation of a State of emergency in the State.
25. That the effect of the public breakdown of order in the State went beyond the State and extended to other parts of the Federation as to require extra-ordinary measures to avert the situation.
26. That it was as result of these that the President and Commander-in-Chief of the Armed Forces of the nation issued a proclamation of a State of Emergency in Plateau State to deal with the situation.
27. The State of Emergency lasted for 6 months from 18th May, 2004 to 17th November, 2004 and has since lapsed.
28. That having regard to the fact that peace was restored to the State during the period of the State of Emergency the emergency rule was not extended and the arms of Government that were suspended had been restored since 18th November, 2004.
29. That the plaintiff’s case is vexatious, unmeritorious, unauthorized, lacking in merit and a gross abuse of the court process.”

The plaintiffs also filed a Reply to the 1st defendant’s Counter-Affidavit above. Paragraph 4 of the Reply reads as follows-

“That leading counsel for the plaintiffs, Professor Ben Nwabueze, SAN., informed me and I verily believe him as follows:

(i) That averments in Paragraphs 6 and 12 – 15 of Mr. Bankole Akomolafe’s Counter-Affidavit that the 1st and 2nd plaintiffs did not authorise this action and no instruction was given by the plaintiffs for the filing of this action at the time it was filed raise a point of law, which does not need to be controverted in an affidavit; insofar, however, as they may be said to be averment of fact, the plaintiffs deny it and put the defendants to the strictest proof thereof.

(ii) Being a statement of law, the averments in the said paragraphs 6 and 12-15 of Bankole Akomolafe’s Counter-Affidavit are incompetent and invalid as they offend against Sections 86 and 87 of the Evidence Act Cap. E14, (sic) Laws of the Federation, which provide as follows:-

” 86. Every affidavit used in the court shall contain only a statement of facts and circumstances to which the witness deposes, either of his own personal knowledge or from information which he believes to be true

87. An affidavit shall not contain extraneous matter, by way of objection, or prayer, or legal argument or conclusion.”

(iii) The averment in the said paragraphs 6 and 12 – 15 of the Counter-Affidavit are incompetent and invalid on another ground which will be taken up at the hearing of the suit, should it be necessary to do so.

(iv) Being also a statement of law, the averment in paragraph 7 of the said Counter-Affidavit that “the 2nd plaintiff is not a juristic person and cannot maintain this action as constituted” is likewise incompetent and invalid as offending against the above – quoted Sections 86 and 87 of the Evidence Act; in any case, like the 1st defendant (the Office of the Attorney-General of the Federation) and the 2nd defendant (the National Assembly), the House of Assembly of Plateau State is a body established by the supreme law of the land – Section 90 of the Constitution 1999.

(v) The averments in paragraphs 8 – 11 of the said Counter-Affidavit are likewise incompetent, as they preempt the very issue before the Honourable Court for determination, namely, whether or not the Constitution of Nigeria 1999 authorises the suspension of the elected Government of Plateau State for the six months period of the emergency, the appointment of Major-General M.C. Alli as Administrator during that period and the consequent deprivation of the constitutional right and power of the elected Government of the State to administer the affairs of the State during the period; the averments (paragraphs 8-11) unwarrantedly presume that the suspension, the appointment of the Administrator and deprivation of the rights and powers of the elected Government of the State are so authorised and are legally valid, the effect of which would be to deprive the elected Government (the Executive Governor and House of Assembly) of their right of recourse to the court to determine the issue as well as to deprive the court of jurisdiction to entertain their suit; if the suspension and the appointment of the Administrator are unconstitutional, null and void, then, they are so ab initio, so that the elected Executive Governor and House of Assembly remained de jure Government of the State during the period of the emergency and the lawful authority to administer its affairs, including authorising the filing of the present suit; the Administrator was simply a usurper, whose de facto authority, such it was, cannot be set up against that of the lawful Government of the State; the numerous decided authorities on the point will be examined during the hearing of the suit, should it be necessary to do so.

(vi) The averments in paragraphs 21-28 are irrelevant as well as incompetent, in that the declaration of a State of emergency in Plateau State, whether or not it was constitutional and valid having regard to the situation prevailing in the State at the time, is not an issue before the Honourable Court for determination in this suit, but rather whether the Constitution grants the President power and authority, following the emergency declaration, even assuming without conceding the constitutional validity of the declaration, to suspend the elected Government of the State and to appoint an Administrator.

(vii) The issue of abuse of court process averred in paragraphs 16-19 of the said Counter-Affidavit is incompetent as it raises a point of law contrary to Sections 86 and 87 of the Evidence Act quoted above; in any case, the plaintiffs, not being a party to the suit in the Federal High Court, cannot have abused court process by instituting the present suit in the Supreme Court, more so as the constitutionality of the declaration of a State of emergency challenged in the suit in the Federal High Court, is not an issue for determination in the present suit, the suspension of the elected Executive Government of the State is not an issue in the Federal High Court suit as it is in the present suit, and as any decision given by the Supreme Court in the present suit is binding on all other courts in the country, including the Federal High Court.

(viii) Contrary to the averment in paragraph 29 of the said Counter-Affidavit, the present suit is not vexatious or unmeritorious, but one of great national interest and importance relating to the government of the country under the Constitution.

PRELIMINARY OBJECTIONS

Notices of Preliminary Objections were filed by both the 1st and 2nd Defendants. They also raised them in their briefs of argument. The 1st defendant objects to the competence of the suit and the jurisdiction of the court. The grounds of the objection are as follows –

“(1) That the suit is devoid of any live issue and it is being maintained merely for academic and advisory purposes only.

(2) The suit is not authorized by the 1st plaintiff.

(3) The suits seeks reliefs for individuals who are not parties to the case and who have no competence to maintain an action in this case.

(4) The action, as constituted is misconceived.

(5) The action is an abuse of court process having regard to the suit in Exhibit CA1, attached to the 1st defendant’s Counter-Affidavit. This is a suit at the Federal High Court, Jos, now transferred to Abuja.

(6) Both plaintiffs herein are by virtue of Section 20 and Section 3 of the Supreme Court Act and Supreme Court (Additional Original Jurisdiction Act) Cap. Section 16 LFN 2004 (sic) respectively, have no requisite locus standi to institute this action;

(7) There is no reasonable cause of action;

(8) The Jurisdiction of the Honourable Court is not extended to the enforcement of rights which were suspended in the Regulations but limited to whether or not the Laws and Regulations relating to the state of emergency in Plateau State were properly made or not.

The 2nd defendant objects to the suit on the sole ground that the issues before the court is “lifeless, spent, academic, speculative and hypothetical.”

It is clear to me that the single ground raised by the 2nd defendant is the same as 1st defendant’s ground (1) above.

Arguing the grounds of preliminary objection together, learned counsel for the 1st defendant, Okunloye, SAN., said going by the affidavit evidence before the court, the State of Emergency was declared on 18/5/2004 and ended on 17/11/2004 when situation in Plateau State normalized. Consequently, there cannot be any live issue in respect of that emergency declaration which has since expired. That it is a notorious fact that all structures, and public officers suspended are now back on duty. That what is before the court is therefore an academic, speculative and hypothetical issue. He said reliefs (i), (ii), (iii), (iv), (v), (vi) and (vii) claimed by the plaintiffs are spent, lifeless, hypothetical and academic and that the court should decline jurisdiction to entertain them.

It was also contended that individual claims are not cognizable under the original jurisdiction of this court by virtue of Section 232(1) of the Constitution. Consequently reliefs (x), (xi), (xiii) and (xiv) are incompetent and should be struck out. In addition, these reliefs are being claimed by persons who are not even parties to the suit. That Governor Joshua Dariye, his Deputy, Members of the House of Assembly and Commissioners of the State are not parties to the case before the court. That a non-party cannot claim any relief in a suit to which he or she is not a party. That this court has the jurisdiction to strike out part or parts of a relief or reliefs sought and or dismiss part or parts. A number of cases were cited in support. They include Obasanjo v. Yusuf (2004) 5 S.C. (Pt. I) 27; (2004) 9 NWLR (Pt. 877) 144, Att.-Gen. of Federation v. A.N.P.P. & 2 Ors. (2003) 12 S.C. (Pt. II) 146; (2003) 18 NWLR (Pt. 851) 182; Okesade v. Ogunkayode (1994) 1 NWLR 9 (Pt. 318) 26; Trade Bank v. Banilux (Nig.) Ltd. (2003) 5 S.C. 1; (2003) 9 NWLR (Pt. 825) 416; Obasuyi v. Business Ventures Ltd. (2000) 4 S.C. (Pt. I) 162; (2000) 5 NWLR (Pt. 658) 668; Imana v. Robinson (1979) 3-4 S.C. 1; (1979) 3-4 S.C. 1 Kurubo v. Zach Motison (Nig.) Ltd. (1992) 5 NWLR (Pt. 239) 102.

It was further submitted that the action is incompetent because it was not authorized. That on 24/06/2004 when the action was instituted, the Administrator Major-General, M.C. Alli (Rtd) was the alter ego of Plateau State and its directing mind. That Major-General M.C. Alli (Rtd.) has deposed in his Counter-Affidavit and Further Counter-Affidavit that he did not direct the institution of this action nor authorized any body to file same. That the 2nd plaintiff which could only have acted by resolutions passed at its sitting or as directed by its principal officers, was as at 24/6/2004 when this action was instituted, not in session and its principal officers were also not in office. Clearly therefore the suit was not authorized by the plaintiffs and or the Emergency Administrator. We were therefore urged to hold that this action is unauthorized and therefore incompetent.

It was also contended that the reliefs claimed are not for the benefit of the plaintiffs themselves. That it is not enough for the plaintiffs to complain about a breach of the Constitution without showing how the breach has affected their legal interests. He cited Attorney-General Bendel State v. Attorney-General of Federation (1981) 10 S.C. (Reprint) 1; (1981) NSCC 314; Okesade v. Ogunkayode (supra) Permanent Sec. Ministry of Works, Kwara State v. Balogun (1975) 5 S.C. (Reprint) 52; (1975); All NLR 254 and urged the court to decline jurisdiction.

It was again contended that by virtue of the provision of Section 20 of the Supreme Court Act, the 1st plaintiff, Plateau State of Nigeria herein, is not a proper or competent party before the court (it) not being the Attorney-General of Plateau State. Likewise the 2nd plaintiff by virtue of the provisions of Section 3 of the Supreme Court (Additional Original Jurisdiction) Act, No. 3 Of 2002, could only have instituted this action in the name of the Speaker of the House of Assembly. That this was not complied with because the House and its officers were suspended. He referred to the Counter-Affidavit and Further-Counter Affidavit of Major-General, Chris Alli (Rtd.) the Sole Administrator of Plateau State from 18/5/2004 to 17/11/2004.

That this suit was filed by the plaintiffs on 24/6/2004 more than one month after Major-General Chris Alli (Rtd.) took office and the House of Assembly remained suspended during the State of Emergency. It is therefore submitted that the 2nd plaintiff lacks locus standi to institute or maintain this action.

It was also argued that this suit is unmaintainable in that it is an abuse of process of court because members of the 2nd plaintiff who claimed to be aggrieved by the suspension of the 2nd plaintiff had instituted an action in their personal capacities at the Federal High Court, Jos, to ventilate their alleged grievances and that the said suit is still pending before the Federal High Court, Abuja, the same having been transferred from Jos to Abuja. That it is an abuse of court process to institute multiple actions. We were referred to the cases of Saraki v. Kotoye (1992) 9 NWLR (Pt. 264) 156 and Attorney-General of Ondo State v. Attorney-General of Ekiti State (2001) 9-10 S.C. 116; (2001) 17 NWLR (Pt. 743) 765 and urged to dismiss the suit.

The 2nd defendant’s counsel Nwogu Esq., in his submissions agreed with the 1st defendant that reliefs (i) – (vii) contained in the Amended Originating Summons should be struck-out for being incompetent. That they are spent and have become academic and hypothetical. Learned counsel said the State of Emergency lasted from 18/5/2004 to 17/11/2004 and that normalcy has since returned to Plateau State. There is thus no live issue before this court for trial now. We were referred to Nkwocha v. Governor of Anambra State (1984) 1 SCNLR 634; Ezeanya v. Okeke (1995) 4 NWLR (Pt. 388) 12, Adewunmi v. Attorney-General of Ekiti State (2002) 1 S.C. 47; (2002) 2 NWLR (Pt. 751) 474 and Attorney-General of Federation v. A.N.P.P. & 2 Ors. (2003) 12 S.C. (Pt. II) 146; (2003) 18 NWLR (Pt. 851) 182. The court was urged to strike out the plaintiffs’ reliefs (i)-(vii) as well as the name of the 2nd defendant.

Professor Nwabueze, SAN, learned counsel for the plaintiffs, in reply submitted that the preliminary objection misconceives the nature of an action for a declaration and that the court has jurisdiction to entertain an action by a competent party for a declaration that a law or a legal right shown to be subsisting, has been violated.

That the provisions of Sections 90 and 176 of the Constitution are clearly subsisting law, so are the legal rights that they confer. That the maintainability of a claim for a declaration does not depend on the monetary value of the damage caused by the violation of the law or legal right in question as contented by the 1st defendant. He said relief (i) – (vii) raise live issues of great national importance especially when the reliefs are read together with other reliefs (viii) – (xiv). All the reliefs must be read together he said. It was submitted that Chief Joshua Dariye, his Deputy and Commissioners, as individuals are “persons” who exercise power or authority on behalf of the Government of Plateau State, so also are individual members of the House of Assembly of the State. Accordingly the court has original jurisdiction to entertain their claims for compensation, being parties to the suit as embraced in the term “Plateau State of Nigeria” or “the Government of Plateau State” by virtue of Section 318(1) of the Constitution.

It was further submitted that the contention that the 1st plaintiff, Plateau State, is not a competent party by virtue of Section 20 of the Supreme Court Act, and that the 2nd plaintiff, the House of Assembly likewise lacks competence to be a party, by virtue of Section 3 of the Supreme Court (Additional Original Jurisdiction) Act, are unfounded. He said Section 232(1) of the Constitution speaks of a “dispute between the Federation and a State.” In such a dispute the competent parties are namely, the Federation and the State concerned. That Section 20 of the Supreme Court Act does not provide that the Federation or a State cannot be a competent party in a suit instituted under Section 232(1) of the Constitution. He said reference to the Attorney-General in Section 20 of the Act is only a name to be used for convenience in bringing the action, thus making it a procedural matter only which cannot override the substantive right of the real and competent parties as indicated in Section 232(1) of the Constitution. That Section 20 of the Act cannot regulate the rights under Section 232(1) of the Constitution. That the Attorney-General is a party only in name and as representing the competent party. He relied on the case of Attorney-General Bendel State v. Attorney-General of the Federation & Ors. (1981) 10 S.C. (Reprint) 1; (1981) 10 S.C. (Reprint) 1; (1981) NSCC 314, where this court ordered the joinder of the National Assembly, the President of the Senate, the Speaker of the House of Representatives and the Clerk of the National Assembly as 20th, 21st, 22nd and 23rd Defendants.

It was also submitted that the provision in the Supreme Court (Additional Original Jurisdiction) Act No. 3 of 2002 as it applies only to original jurisdiction derived from Section 232(2) of the Constitution and not to the court’s original jurisdiction under Section 232(1), is proper. In other words, the National Assembly can only validly regulate by an Act the exercise of original jurisdiction conferred by it under Section 232(2), as it has done in this case under 2002 Act No. 3, but not in respect of the exercise of original jurisdiction conferred by Section 232(1). It was argued that the requirement for the House of Assembly to sue by the name of its Speaker is procedural. The House of Assembly is the real or substantive party, while the Speaker is a mere nominal party. That the irregularity is not fatal to the suit and should be waived.

On the authorization of this suit by the House of Assembly of Plateau State, it was submitted that the Speaker of the House, Barrister Simon Bako Lalong had on 10/2/2005 sworn to an affidavit in support of the suit being the proper person to have authorised the suit brought by the House. That the action has also been retrospectively and effectively ratified by Governor Dariye himself after the end of his so called suspension. In addition, it was argued that the issue of authorization of the suit is misconceived as it pre-empts the very issue before the court for determination, namely whether or not the 1999 Constitution authorizes the suspension of the elected Government of Plateau State for the period of emergency, the appointment of an Administrator during the period and the consequent deprivation of the constitutional rights and powers of the elected Government of the State.

It was also submitted that for there to be an abuse of court process proof that the filing of multiple actions was done with the intention, purpose or aim of harassing, irritating and annoying an adversary is necessary vide Saraki v. Kotoye (1992) 9 NWLR (Pt. 264) 156. That this was lacking in Suit No. FHC/J/SC/64/2004 of the Federal High Court. He said that the plaintiffs herein are not parties to Suit No. FHC/J/SC/64/2004 and have not even been shown to be privy to the filing of that suit. It was also submitted that the issues in the present suit before the Supreme Court are different from those in the suit before the Federal High Court. That the claim in this case is limited to the constitutional validity of the suspension of the elected Governor and the House of Assembly for the period of the State of emergency, while the Federal High Court suit raises the question of the constitutional validity of the declaration of a State of emergency as well as the constitutional validity of the suspension of the House and the appointment of an emergency Administrator. That the constitutional validity of the suspension of the Governor is not an issue in the suit before the Federal High Court. He said neither the Governor nor the State House of Assembly nor Plateau State is a party in the Federal High Court case. We were therefore asked to discountenance the grounds of objection which are hopeless, misconceived as well as frivolous.

I will now proceed to treat the grounds of preliminary objection one after the other.

(1) THAT THE SUIT IS DEVOID OF ANY LIVE ISSUE AND IT IS BEING MAINTAINED MERELY FOR ACADEMIC AND ADVISORY PURPOSES ONLY

I think the ground of objection misconceives the nature of the declarations and other reliefs sought in this case. The entire case simply put concerns the constitutionality and or legality of the exercise of the emergency powers conferred on the President under Section 305 of the 1999 Constitution and which powers he exercised in Plateau State from 18/5/2004 to 17/11/2004. In exercise of his powers other provisions of the Constitution became involved as well. For example Sections 11, 36, 90, 170 & 315 just a few mentioned by the plaintiffs. The emergency we all know ended or ceased to apply in that State on 17/11/2004. But the Constitution including Section 305 thereof, is still with us. The powers are still there for the President to exercise if and when he deems it necessary. It is therefore of no adverse significance to the case that “suspended structures and public officers” are now back to duty! Issues relating to the interpretation of a living Constitution as in this case, cannot in my view be dead, academic, speculative or hypothetical. A declaration of a State of emergency is a serious business anytime, anywhere. This ground of objection therefore fails.

(2) THE SUIT IS NOT AUTHORISED BY THE PLAINTIFFS

It is a notorious fact that Major-General Chris Alli (Rtd.) was appointed Sole Administrator of Plateau State during the State of emergency in that State from 18/5/2004 until 17/11/2004 when the emergency ceased. It is also a notorious fact that during the state of emergency both the Governor and the House of Assembly were suspended and therefore were not functional. It is also a fact that throughout the period of state of emergency only the Sole Administrator took decisions for and on behalf of the State. It is therefore common sense to say that as at 24/6/2004 when the plaintiffs filed this suit, only the Sole Administrator could have authorized the filing of the suit on behalf of the Plateau State of Nigeria. This was vehemently denied in his Counter-Affidavit and Further-Counter-Affidavit. Also as at 24/6/2004, the 2nd plaintiff who had been suspended, clearly had no capacity or capability to meet and authorise the filing of the suit on its behalf.

In paragraphs 1-9 of Further Counter Affidavit, Major-General Chris Alli (Rtd.) Sole Administrator of Plateau State says –

“1. That I was the Sole Administrator appointed to administer the Plateau State of Nigeria by the President and Commander-in-Chief of the Armed Forces of the Federal Republic of Nigeria, Chief Olusegun Obasanjo, GCFR between the 1st day of May, 2004 and 17th day of November, 2004, which State of Emergency was declared in the State.

2. That the said State of Emergency lasted for 6 months, precisely, between the 18th day of May, 2004, to the 17th day of November, 2004.
3. That throughout the duration of the State of Emergency the House of Assembly of Plateau State was suspended and was not functional.
4. That throughout the period of the Emergency I took decisions solely for and on behalf of the State.
5. That as at the 24th day of June, 2004, when the Plaintiffs filed this suit, I was the Sole Administrator of Plateau State of Nigeria.
6. That I did not during the period of Emergency which included 24th June, 2004, instruct or brief Chief Rotimi Williams, SAN., or any other counsel to initiate this proceeding on behalf of Plateau State of Nigeria.
7. That there was a complete breakdown of law and order and lives of the citizens were unsafe as at 18/5/2004 when I took over as the Sole Administrator of the State.
8. That tranquility, serenity, orderliness and security of lives and properties had been restored as at 17/11/2004 while total normalcy had returned.
9. That the governance and administration of Plateau State had since the 17th day of November, 2004, been returned to the elected Governor and the House of Assembly both of whom have since been functioning.

My conclusion therefore is that the 1st and 2nd plaintiffs did not authorise this suit and no instruction was given for filing same at the time it was filed. Any retrospective approval given by Governor Dariye is unhelpful as you cannot put something on nothing. There was no suit filed on 24/6/2004 when one was purportedly filed. There was therefore nothing to ratify. This ground of objection therefore succeeds.

(3) THE SUIT SEEKS RELIEFS FOR INDIVIDUALS WHO ARE NOT PARTIES TO THE CASE AND WHO HAVE NO COMPETENCE TO MAINTAIN THE ACTION

This objection is clear. This court has no original jurisdiction in respect of claims or reliefs for individual persons by virtue of the provisions of Section 232(1) of the Constitution which reads –

“232 (1) The Supreme Court shall, to the exclusion of any other court, have original jurisdiction in any dispute between the Federation and a State or between States if and in so far as that dispute involves any question (whether of law or fact) or which the existence or extent of a legal right depends.”

Claims (x), (xi), (xii), (xiii) & (xiv) are therefore incompetent. I strike them out accordingly.

(4)THE ACTION AS CONSTITUTED IS MISCONCEIVED

This is overruled having regard to what I said under (1) above.

(5)THE ACTION IS AN ABUSE OF COURT PROCESS HAVING REGARD TO THE SUIT IN THE FEDERAL HIGH COURT

I say immediately that this is not correct. Suffice it to say however that the parties in the two suits are different and the reliefs claimed are also not the same. This is sufficient to dispose of the ground of objection. It is over-ruled by me.

(6)BOTH PLAINTIFFS HEREIN ARE BY VIRTUE OF SECTION 20 AND SECTION 3 OF THE SUPREME COURT ACT AND SUPREME COURT (ADDITIONAL ORIGINAL Jurisdiction) ACT RESPECTIVELY HAVE NO REQUISITE LOCUS STANDI TO INSTITUTE THIS ACTION

I will start by setting out the sections of the two Acts as follows – Section 20 of the Supreme Court Act reads –

“(20) Any proceedings before the Supreme Court arising out of a dispute referred to in Section 212(1) (now Section 232(1)) of the Constitution and brought by or against the Federation or a State shall –

(a) in the case of the Federation be brought in the name of the Attorney-General of the Federation;

(b) in the case of a State be brought in the name of the Attorney-General of the State.

Section 3 of the Supreme Court (Additional Original Jurisdiction) Act provides –

“Section 20 of the Supreme Court Act is amended to the extent that in any such suit by or against –

(a) The National Assembly; or

(b) a State House of Assembly;

The nominal party in the case of –

(i) National Assembly is the National Assembly

(ii) a State House of Assembly is the Speaker of the House of Assembly,

as stated in this Act.

The issue here pertains to the names by which the parties sued. Under Section 20 of the Supreme Court Act, it is provided that a State shall sue or be sued in the name of the Attorney-General in respect of suits founded on Section 232(1) of the Constitution. While Section 3 of the Supreme Court (Additional Original Jurisdiction) Act, provides that a State House of Assembly shall institute or defend an action by the Speaker of the House of Assembly. I must say at once that both the Attorney-General and the Speaker are nominal parties only. The principal, real or substantive parties are the State and the House of Assembly respectively. The question therefore is – is it proper for Plateau State of Nigeria not to have sued in the name of the Attorney-General or the House of Assembly not to have sued in the name of its Speaker I believe the Plateau State Government as well the House of Assembly of Plateau State are the substantive or principal or real parties, while the Attorney-General and Speaker are merely nominal parties clearly procedural which can and should be waived or overlooked. If the substantive or principal parties are here and they are, why bother about the nominal parties The objection in my view therefore fails.

(7) THERE IS NO REASONABLE CAUSE OF ACTION

Certainly there is a reasonable cause of action as explained under (1) above. The objection fails.

(8) THE JURISDICTION OF THE HONOURABLE COURT IS NOT EXTENDED TO THE ENFORCEMENT OF RIGHTS WHICH WERE SUSPENDED IN THE REGULATIONS BUT LIMITED TO WHETHER OR NOT THE LAWS AND REGULATIONS RELATING TO THE STATE OF EMERGENCY IN PLATEAU STATE WERE PROPERLY MADE OR NOT

I am not sure whether this is an objection or a mere general statement of law on the jurisdiction of the court in the matter before us. If it is law, counsel has not referred to any law. Counsel also has not indicated which reliefs sought by the plaintiffs pertain to rights suspended by the Regulations under the emergency and which are not. There is again no indication which reliefs question the validity of any law or regulation made during the emergency.

The Preliminary Objection therefore fails.

The Preliminary Objection raised by the 1st Plaintiff succeeds on the sole and principal ground that the suit was not authorized by the plaintiffs. All other grounds of objection are refused except the reliefs or claims (x), (xi), (xii), (xiii) & (xiv) in respect of individuals which are struck out.

The 2nd defendant’s sole ground of objection also fails.

The suit having been filed without the authorization by the plaintiffs deserves one thing only. That one thing is simply to strike out the case in its entirety. The suit is hereby struck out. I make no order as to costs.

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SC.113/2004