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In The Supreme Court of Nigeria

On Friday, the 12th day of January 2007

 

S.C.  272/2006

 

 

Before Their Lordships

 

Idris Legbo Kutigi

......

Justice, Supreme Court

Aloysius Iyorgyer Katsina-Alu

......

Justice, Supreme Court

Niki Tobi

......

Justice, Supreme Court

Dahiru Musdapher

 ......

Justice, Supreme Court

George Adesola Oguntade

......

Justice, Supreme Court

Sunday Akinola Akintan

......

Justice, Supreme Court

Ikechi Francis Ogbuagu              

......

Justice, Supreme Court

 

 

Between

 

 

Hon. Muyiwa Inakoju

Ibadan South East

.......

Defendants/Appellants

Hon. Fajimi Sikirulahi Adekunle

Ibadan South East

 

 

Hon. Fashola Emmanuel Olubowale

Ibadan North East

 

 

Hon. Salawu Kehinde

 Ibadan North East

 

 

Hon. Ayilara Kazeem

Ibadan South West

 

 

Hon. Abiola Ayorinde

Ibadan South East

 

 

Hon. Akinrinade Oyewale

Akinyele II

 

 

Hon. Jelili Adeleke

Akinyele I

 

 

Hon. Isiaka Adeola

Ido

 

 

Hon Lekan Ganiyu

Oluyole

 

 

Hon.Ogunremi Mufutau

Ona Ara

 

 

Hon. Lawal Dauda Ademola

Lagelu

 

 

Hon. Taiwo Oluyemi

Ibarapa

 

 

Hon. Olu Oyeleye

Ogbomoso North

 

 

 Hon. Ajadi Olateju

Ogbomoso South

 

 

Hon. Esuola Hamed Babatunde

Atiba

 

 

Hon. Atilola Morufu Olawale

Oyo East/West

 

 

Hon. Akanbi Idowu

Orire

 

 

 

 

And

 

 

Hon. Abraham Adeolu Adeleke

(Speaker)

.......

Plaintiff/Respondents

Hon. Barrister Titilayo Ademola Dauda

(Deputy Speaker)

 

 

 

 

 

Oyo State House of Assembly

.......

Plaintiff/Respondent

 

 

 

Senator Rashidi Adewolu Ladoja

.......

Party Interested/Respondent

 

 

Judgment of the Court

Delivered by

Niki Tobi. J.S.C.

 

On 7th December, 2006, I dismissed this appeal and I indicated that I will give my reasons on 12th January, 2007. I will do so here.

 

Senator Rasheed Adewolu Ladoja, the party interested and 3rd respondent became the Governor of Oyo State in May, 2003. I think he was sworn in as Governor of the State on 29th May, 2003. Alao-Akala became the Deputy Governor. The relationship was cordial until some members of the Oyo State House of Assembly purportedly removed Senator Ladoja as Governor of Oyo State and swore in Alao-Akala, the Deputy Governor, as Governor. As from that moment, things started falling apart not only between Senator Ladoja and the members who removed him from office but also between Senator Ladoja and Alao-Akala.

 

Let me briefly tell the story leading to the removal of Senator Ladoja as Governor of Oyo State as told by the respondents in their affidavit in support of the originating summons. On 13th December, 2005, the Oyo State House of Assembly sat at the usual Assembly Complex Secretariat, Ibadan. The appellants sat at D'Rovans Hotel Ring Read, Ibadan, where they purportedly suspended the Draft Rules of the Oyo State House of Assembly. The appellants purportedly issued a notice of allegation of misconduct against Senator Ladoja, the Governor, with the purpose of commencing impeachment proceedings against him. On 22nd December, 2005, without following the laid down rules, regulations and the Constitution of the Federal Republic or Nigeria, the appellants purportedly passed a motion calling for the investigation of the allegations of misconduct against Senator Ladoja without the concurrent consent and approval of the two-thirds majority of the 32 member House of Assembly. The purported notice of allegations of misconduct against the Governor was not served on each member of the House of Assembly.

 

Aggrieved by the procedure of removing Senator Ladoja, the respondents as plaintiffs, filed an action at the high Court of Justice, Oyo State by way of Originating Summons. They asked for six declaratory reliefs and three orders setting aside the steps taken by the appellants/defendants “in relation to the issuance of Notice of allegation of misconduct, passage of motion to investigate same and injunction restraining the appellants/defendants, their agents, servants, privies or through-any person or persons from taking any further steps, sitting, starting, or continuing to inquire or deliberate on the investigation and impeachment proceedings of His Excellency, Senator Rasheed-Adewolu Ladoja." The action was supported by a 17 paragraph affidavit.

 

In a preliminary objection, the appellant as applicants contended that the court lacked jurisdiction to entertain the suit and that the plaintiffs lacked locus stands to institute the suit. They also contended that the claims did not disclose a reasonable cause of action.

In his Ruling of 28th December, 2005, the learned trial Judge, Ige, J., upheld the preliminary objection that he had no jurisdiction to deal with the matter. He said at page 57 of the Record:

 

"When the House of Assembly is exercising its constitutional powers in relation to impeachment proceedings or any matter relating thereto, it is performing a quasi judicial function. Thus it is provided in sub-section 11 of Section 188 of the 1999 Constitution that the power to determine what constitutes gross misconduct or a conduct that will lead to impeachment proceedings lies with the House of Assembly and not in the Court. By the combined effect of the above provisions therefore, and having regard to the nature of the reliefs claimed by the plaintiffs, it is clear beyond argument that the jurisdiction of- .this court is clearly ousted. Impeachment and related proceedings are purely political matters over which this court cannot intervene. The action is not justiciable. See Chief Enyi Abaribe vs. The Speaker Abia State House of Assembly and Ors. (2002) 14 NWLR (Pt. 738) p.466 at p.492. It is not part of the duty of the Court to forage into areas that ought to vest either directly or impliedly in the Legislature such as the issue of .impeachment which is a matter that comes within the purely internal affairs of the House of Assembly. The Court will therefore decline jurisdiction in this matter. The objection of learned counsel for the Defendants/Respondents is upheld. The Originating Summons is accordingly dismissed."

 

On appeal to the Court of Appeal, Ogebe, JCA, held that the High Court had jurisdiction to hear the matter. He said at page 486 of the Record:

 

"For all I have said in this judgment 1 have no hesitation in holding that the learned trial Judge was wrong in declining jurisdiction. Indeed he had jurisdiction to examine the claim in the light of section 188 subsections 1-9 of the 1999 Constitution and if he was not satisfied that the impeachment proceedings were instituted in compliance thereof, he has jurisdiction to intervene to ensure compliance. If on the other hand there was compliance with the pre- impeachment process that what happened thereafter was the internal affair of the House of Assembly and he would have no jurisdiction to intervene."

 

The learned Justice of the Court of Appeal invoked the powers conferred on the Court by section 16 of the Court of Appeal Act and took the merits of the matter before the High Court. He gave judgment to the respondents. Ogebe, JCA, said at page 489 of the Record:-

 

"It is my view that no factional meeting of any members of a State House of Assembly can amount to a constitutional meeting of the whole House of Assembly as envisaged and provided for in the Constitution. There was no counter-affidavit before the lower court to prove that any member of the House of Assembly of Oyo State was suspended or that the plaintiffs/appellants were removed as Speaker and Deputy Speaker in accordance with the provisions of the Constitution. It follows therefore that al the steps taken by the faction of the defendants/respondents purporting to initiate impeachment of Senator Ladoja as Governor of Oyo State were not actions of the Oyo State House of Assembly under Section 188 of the 1999 Constitution. Consequently I allow the appeals of the plaintiffs/appellants and the interested party/appellant and set aside the ruling of the trial court declining jurisdiction. I hereby enter judgment for the appellants and grant the following reliefs..."

 

Ogebe, JCA, granted eight of the nine reliefs sought by the respondents. He did not grant the relief of injunction. It should be pointed out that Senator Ladoja was joined as an interested party in the Court of Appeal.

 

Dissatisfied with the judgment of the Court of Appeal, the appellants have come to us. As usual, briefs were filed and duly exchanged. The appellants formulated the following issues for determination:

 

"1.        Whether the Court of Appeal was right in its determination that the High Court has jurisdiction to entertain the question of impeachment of the Party Interested/Respondent as the Governor of Oyo State without:

 

(a)       a decision of the Lower Court as to whether or not there has been any non-compliance with Section 188(1)-(9) of the Constitution of the Federal Republic of Nigeria, 1999 and or

 

(b)       proof of non-compliance with Section 188(1)-(9) of the Constitution of the Federal Republic of Nigeria?  This issue is covered by ground 1 of the  Grounds of Appeal  contained  in the Amended    Notice    of  Appeal    dated   20th  November, 2006 but filed on 21st day of November, 2006.

 

2.         Whether   the   Court  of   Appeal   was   right   in   its determination that the High Court of Justice Oyo State has jurisdiction  to  entertain  a  question  as to the impeachment of the Party Interested/Respondent as the Governor of Oyo State having regard to:  

 

(i)         the   provision   of   Section    188(10)   of   the Constitution of the Federal Republic of Nigeria;

 

and 

 

(ii)        the question of locus of the Plaintiffs? This issue is covered by grounds 9, 10 and 11 of the   Grounds   of   Appeal   contained   in   the Amended Notice of Appeal aforesaid.

 

3.         Whether the Court of Appeal was right in considering the merits of the Originating Summons and granting all the reliefs sought by the Plaintiffs/Respondents pursuant to Section 16 of the Court of Appeal Act and in the absence of the power in the High Court of Oyo State in granting those reliefs as at the stage of proceedings before it and also in not affording the Defendants/Appellants the opportunity to present their own defence (by way of Counter-Affidavit) to the action. This issue is covered by grounds 2, 3, 4, 5, 6, 7 and 8 of the grounds of appeal contained in the Amended Notice of Appeal aforesaid”

 

The 1st and 2nd respondents formulated the following issues for determination:

 

(i)         Having regard to the circumstances of this case and a specific relief claimed by the Respondents praying the lower court to give them judgment as per the claims in their originating summons, whether or not the lower court did not act rightly in acceding to the Respondents' prayers pursuant to the powers vested in that court under and by virtue of section 16 of the Court of Appeal Act -grounds 3, 4, 5, 6, 7-and 8.

 

(ii)        Whether by the decision of the lower court, Appellants were denied the opportunity to controvert the claims of the Plaintiffs - ground 2.

 

(iii)       Whether   the   Respondents   have   the locus standi to institute this action - around 9:

 

(iv)      Whether the lower court was not right in its decision to the effect that section 188(10) of the 1999 Constitution could only, oust the jurisdiction of the trial High Court if sub-sections (1)-(9) of the said section have been complied with - grounds 1, 10 and 11."

 

The 3rd respondent formulated the following issues for determination:

 

"1.       Whether the Court of Appeal was not right in its construction and interpretation of the provisions of Section 188 of the 1999 Constitution and in coming to the conclusion that the Ouster Clause in Section 188 (10) of the same Constitution cannot avail the Appellants having regard to the peculiar facts and circumstances of this case.

 

2.         Whether the Court of Appeal was not right, having regard to the peculiar circumstances of this case in invoking the provisions of Section 16   of  the   Court   of Appeal   Act   in   giving  judgment in favour of the  Respondents and whether   the   right   to   fair   hearing   of   the Appellants was thereby breached.

 

3.         Whether the court below was not right to have held that the 1st and 2nd Respondents had the locus    standi   to    institute    the    case    that culminated into this appeal."

 

It should be mentioned that both the 1st and 2nd respondents and the 3rd respondent raised preliminary objection on the competence of some of the grounds of appeal.

 

Mr. O. Ayanlaja, learned Senior Advocate of Nigeria, for the appellants in an apparent submission on Issue No. 1 pointed out that the affidavit in support of the originating summons did not warrant the calling on or of the defendants to enter a defence, as the action was obviously unsustainable and therefore constituted an abuse of court process. He cited AG of Duchy of Lancaster v. L and NWRLY 3 (1892) 3 Ch. 274. Counsel claimed that there was no admissible evidence in the affidavit in support of the originating summons. He reproduced the entire affidavit at pages 9 to 11 of his brief and argued that most of the averments offended sections 73t 74, 86, 88, 89 and 113 of the Evidence Act. Relying on Nonye v. Anyichie (2005) 8 WNRl at 22; NDIC v. CBN (2002) 13 WRN 1 and Elabanjo v. Dawodu (2006) 15 NWLR (Pt. 1001) 76 learned Senior Advocate contended that in the determination of the issue of jurisdiction only the plaintiff's claims are looked into. Confining himself to paragraphs 6 to 11 of the affidavit in support, learned Senior Advocate submitted that as the averments contained therein are not admissible and cannot sustain the claims of the plaintiffs, it is useless and time wasting to call or expect the defendants to respond to the inadmissible averments.

 

On issue No. 2, learned Senior Advocate submitted that the plaintiffs have no locus standi to maintain the action as the complaints in the plaintiffs claim show that all their grievances affect the personal rights of Senator Ladoja. He pointed out that as the plaintiff constituted only a minority, they did not show in their affidavit that they were acting for and on behalf of the House of Assembly of Oyo State. He cited Oloriode v. Oyebi (1984) 5 SC 1 at 28; In Re Ijelu (1992) 9 NWLR (Pt. 266) 414 at 422 to 423 and Thomas v. Qlufosoye (1986) 1 NWLR (Pt. 18)669.

 

Learned Senior Advocate submitted that section 188 of the Constitution is not justiciable as it ousts the jurisdiction of the courts. He relied on Ritter v. United States 84 Ct. Cl. 293 (1936) Cert. Denied 300 US 668 (1837) and Baker v. Car 369 US 186, 218 to 219 (1962). He argued that by the doctrine of separation of powers, the courts cannot inquire into the impeachment of Governors. He cited AG Bendel State v. AG of the Federation (1932) 3 NCLR 1 at 69 and section 4(8) of the Constitution. Taking specifically section 188(10), learned Senior Advocate relied on Alhaji Musa v. Hamza (1982) 3 NCLR 229 at 253; Shell Petroleum Development Co (Nig) Ltd, v. Isaiah (2001) 11 NWLR (Pt. 723) 168; Abaribe v. The Speaker Abia State House of Assembly (2002) 14 NWLR (Pt. 788) 466 and Nwosu v. Imo State Environmental Sanitation Authority (1990) 2 NWLR (Pt. 135) 688.

 

On Issue No. 3, learned Senior Advocate submitted that the Court of Appeal having upheld the appeal of the plaintiffs against the decision of the High Court dismissing their case and setting the decision aside had no jurisdiction to proceed to consider the merits of the substantive case and grant all the reliefs claimed in the action. He cited section 241(1) of the Constitution. He contended that the Court of Appeal cannot assume jurisdiction on an issue upon which the trial court had no opportunity to express its opinion and that a Court of Appeal is limited in its consideration of the appeal and decision thereon to the issues formulated for consideration in the case. He cited A. W. Nigeria Limited v. Supermaritime (Nigeria) Limited (2005) 6 NWLR (Pt. 922) 563 at 577 and 578; Jinadu v. Esurombi-Aro (2005) 14 NWLR (Pt. 944) 142 at 178-179; Ekpe v. Fagbemi (1978) 3 SC 209; Ikweki v. Ebele (2005) 11 NWLR (Pt. 936) 397 at 424 and 425; Isulight (Nigeria) Limited v. Jackson (2005) 11 NWLR (Pt. 937) 629 at 643 and Awuse v. Odili (2005) 16 NWLR (Pt. 982) 416 at 462.

 

Learned Senior Advocate argued that since the defendants were still within time to enter appearance and file counter-affidavit in reaction to the affidavit in support of the originating summons the Court of Appeal would have left them to take whatever steps were necessary to present their defence, including the entry of appearance and filing of counter-affidavit. He cited Elabanjo v, Dawodu (2006) 15 NWLR (Pt. 1001) 75 at 127, 128 and 140; Okafor v. AG Anambra State (2006) 15 WRN 103 at 113; Egbe v. Alhaji (1990) 1 NWLR (Pt. 128) 546; Onibubo v. Akibu (1982) All NLR 207; Qdiya v. Oboh (1974) 2 SC 23 and Nwankwo v. Ononoeze-Madu (2005) 4 NWLR (Pt. 916) 470. Learned Senior Advocate urged the court to set aside the decision of the Court of Appeal . on the merits of the originating summons and remit the case to the High Court for trial on the merits, if the Supreme Court decides that the High Court has jurisdiction to hear the matter.

 

Counsel submitted that the reliance on the affidavit in support of the originating summons by the Court of Appeal to decide the case without giving the defendants any opportunity to controvert the affidavit constituted a breach of the defendants' right to fair hearing. He cited section 36(1) of the Constitution. He pointed out that at the time the Court of Appeal decided on the matter, the defendants still had up to twenty-five days to file their defence to the originating summons. He cited Elebanjo v. Dawodu (2006) 15 NWLR (Pt. 1001) 76; Ndukauba v.Kolomu (2005) 4 NWLR (Pt. 915) 411 at 429: Governor of Ekiti State v. Osayomi (2005) 2 NWLR {Pt. 909) 67 at 90; Unongo v. Aku (1983) 2 SCNLR 332 at 352; Alsthom S.A. v. Saraki (2005) 3 NWLR (Pt. 911) 208 at 228 and 229; Okike v. LDDC (2005) 15 NWLR (Pt. 949) 531 at 532 and Olumesan v. Ogundopo (1996) 2 NWLR (Pt. 433) 628.

 

Learned Senior Advocate submitted that the Court of Appeal was wrong in applying section 16 of the Court of Appeal Act, as the exercise of the court's power under the section is limited to taking decisions which the trial court could competently have taken in the circumstance. He said that the Court of appeal wrongly applied the case of Attorney-General  of Anambra State v. Okeke (2002) 12 NWLR (Pt. 782) 572. He urged the court to allow the appeal and set aside the decision of the Court of Appeal and dismiss the plaintiffs' case for lack of jurisdiction in the trial court, in the alternative, counsel urged the court to remit the case to the trial court where the appellants would be free to file counter affidavit to the affidavit of the plaintiffs/respondents for the matter to be heard and determined in accordance with the rules of the High Court of Oyo State.

 

Learned Senior Advocate for the 1st and 2nd respondents, Chief Wole Olanipekun, in his preliminary objection, submitted that Grounds 1, 2, 3, 4, 5, 5, 7, 9 and 11 are incompetent being grounds of mixed law and fact for which leave was required. As no, leave was sought, he urged the court to strike out the grounds.   He dealt with the preliminary objection in some detail at pages 4 to 10 of the brief.

 

Arguing Issues Nos. 1 and 2 together; learned Senior Advocate called the attention of the court to the specific relief claimed by the respondents praying the Court of Appeal to give them judgment as per the claims in their originating summons and submitted that the Court of Appeal rightly invoked section 16 of the Court of Appeal Act.   He cited UNTHMB v. Nnoli (1994) 8 NWLR (Pt. 363) 373 at 402; Mokelu v. Federal Commissioner of Works (1976) 3 SC 35; National Bank of Nigeria v. Alakija (1978). 9-10 SC 59 and Achineku v. Ishagba (1993) 4 NWLR (Pt. 89) 411. He observed that the appellants as respondents in the Court of Appeal did not specifically reply to the above prayer that the Court should exercise its powers under section 16 of the Court of. Appeal Act. To learned counsel, what could be gleaned from the brief of the appellants in the Court of Appeal as respondents, was their appreciation in full measure the fact that the appeal fell and still falls within the narrow interpretation of section 188(10) of the Constitution and that was why they attached to their Brief of Argument an article written by Professor Ben Nwabueze, SAN, published in Thisday Newspaper of 3rd February 2006, titled "The Ouster Provision in Section 188(10)."   Counsel called the attention of the court to pages 24 and 26 of the Record where according to him, the appellants as respondents, in their preliminary objection raised defence to the action of the plaintiffs.   He said that everything or every subject material which needed to be considered was before the Court of Appeal and the judgment of the court completely covers the field.

 

Citing paragraphs 5, 6, 7, 8, 9, 10 and 11 of the affidavit in support and the cases of Jadesimi v. Okotie-Eboh (1986) 1 NWLR (Pt. 16) 264; CGG (Nig) Ltd, v. Ogu (2005) 8 NWLR (Pt. 927) 366 at 382; Arjay Ltd, v. AMS Ltd. (2003) 7 NWLR (Pt. 820) 577 at 630 and 635; Yusuf vs. Obasanjo (2003) 16 NWLR (Pt. 847) 554 at 632 and 633 and Adeyemi v. Y. R. S. Ike-Oluwa and Sons Ltd. (1993) 8 NWLR (Pt. 309) 27 at 41, learned Senior Advocate submitted that the Court of Appeal rightly invoked section 16 of the Court of Appeal Act. He justified the use of the case of A.G Anambra State v. Okeke (2002) 12 NWLR (Pt. 782) 575 by the Court of Appeal.

 

On the issue of fair hearing, learned Senior Advocate referred the court to the proceedings of the High Court at pages 37 to 47 of the Record and contended that if anybody should complain of denial of justice  they should be the respondents whose counsel was denied adjournment for no just reason known to law. He referred to Omo v. JSC Delta State (2000) 12 NWLR (Pt. 682) 444 at 456; Oyeyipo vs. Oyiniloye(1987) 1N WLR (Pt 50) 356; Orugbo vs. Una (2002) 16 NWLR (Pt. 792) 175 at 211 and 212.

 

In reacting to the appellants' argument that the case be sent back to the High Court to allow them give evidence, learned Senior Advocate asked the following questions:

 

"What type of evidence do they want to raise or give? Is it evidence of two-thirds of 32 members of the Legislative House? Or is it evidence in respect of sitting or conducting proceedings at D'Rovans Hotel, Ring Road, Ibadan?   Or is it evidence in respect of the issues contained in their Notice to contend that the judgment of the trial Court be varied, which as demonstrated   above, has  been  abandoned   at the lower court?"

 

Counsel provided an answer in the following sentences;

 

"Surely what Appellants want to do is not aimed at justice but to further frustrate the speedy determination of the case, if peradventure, any such order is made so as to enable them file further questionable preliminary objections and plant additional landmines to obstruct a speedy administration of justice."

 

Counsel took time to enumerate what he regarded as frustrating the attainment of speedy justice in paragraph 4.18, pages 31 to 33 of the brief. Relying on the cases of NNSC v. Sabana Ltd. (1938} 2 NWLR (Pt. 74} 23 and Famfa Oil Ltd, v. AG Federation (2003} 18 NWLR (Pt. 852} 453 at 467, learned counsel said that if this court accedes to the request or prayer of the appellants by remitting this case to the trial court, the victory of the respondents will become a pyrrhic one and the justice would become technical, while the entire purpose of initiating the case by way of originating summons will be defeated.

 

Learned Senior Advocate quoted what the learned trial Judge said at page 39 of the Record to the effect that the issues for determination in the case "are basically on points of law in which no affidavit evidence is required" and submitted that the appellants did not file an appeal against the ruling of the court, which counsel argued now constitutes issue estoppel. He cited Tltilove v. Olupo [1891] 7 NWLR (Pt. 205} 519; Yusufu v. Kupper lnternational NV (1996) 5 NWLR (Pt. 446) 17; P. N. Udoh Trading Co. Ltd, v. Abere (2001} 11 .NWLR (Pt. 723} 114; Adebayo vs. Babalola (1995} 7 NWLR (Pt. 403} 383 at 401; Ikoku v. Ekeukwu (1995) 7 NWLR (Pt. 410) 537 at 652; Adesanva v. Otuewu (1993) 1NWLR (Pt. 270) 414 at 436; Kosile v. Folarin (1989) 3 NVVLR (Pt. 107) 1 at 16-17 and Mogaji v. Cadbury Nig Ltd. (1985)2 NWLR (Pt. 7) 393 at 408.

 

On Issue No.3, learned Senior Advocate relied on paragraphs 5, 6, 7, 8, 9, 10, 11 and 12 of the affidavit in support and paragraph 5 of the further affidavit and submitted that the Speaker and his deputy have locus stand to institute the action. He called in aid sections 92(1), 94(2) and 188 of the Constitution and the following cases: Owoduni v. Registered Trustees of CCC (2000) 10 NWLR (Pt. 675) 315 at 355; Ladejobi v. Oguntayo (2004) 18 NWLR (Pt. 904) 149 at.173; Adamawa State v. AG Federation (2005) 18 NWLR (Pt. 958) 581 at 623 and 654; Olagunju v. Yahaya (1968) 3 NWLR (Pt. 542) 501; Ogbuehi v. Governor Imo State (1995) 9 NWLR (Pt. 417) 53 and Okafor v. Asoh (1999) 3 NWLR (Pt. 593) 35.

 

On Issue No. 4, learned Senior Advocate submitted that the trial court abdicated its responsibility by nastily dismissing the plaintiffs' case.   He referred to the word "provisions" in section 188(1) and argued that the word covers the entire section and not restricted to section 188(10).   He contended that it is after full compliance with the mandatory provisions of section 188(2), (3) and (4) that the Chief Judge of a State can appoint a Panel of seven members.   He pointed out that the Chief Judge shall only set up the Panel at the request of the Speaker of the House of Assembly and no one else, because the Constitution specifically restricts the person to request the setting up of the Panel to the Speaker.   He cited the cases of Bamgboye v. Administrator General 14 WACA 615; Vera Cruz (1834) AC 59 at 68 and Martin Schroeder and Co. v. Major and Company (Nig.) Ltd. (1989) 2 NWLR (Pt.101) 1 and sections 92 and 188 of the Constitution, particularly the use of the word shall in section 188(2) of the Constitution. He cited Bamaiyi v. Attorney-General of the Federation (2001) 12 NWLR (Pt. 727) 488 at 497; Ifezue v. Mbaduga (1984) 1 SCNJ 427 and Chukwuka v. Ezulike (1986) 5 NWLR (Pt. 45) 892. Urging the court to read together section 188 of the Constitution, counsel cited Rabiu v. .State (1931) 2 NCLR 293; Attorney-General Bendel State v. Attorney-General Federation (1982) 3 NCLR 1 at 66; Okogie v. Attorney-General Federation (1981) 2 NCLR 337 at 348 and 349 and Anyah v. Attorney-General   Bornu   State   (19S4)   5   NCLR   225.     He   submitted   that subsections (1) to (9) of section 188 constitute condition precedent to the ouster clause in section 188(10) and full compliance with them must be demonstrated and proved before any court can say that its jurisdiction has been rightly ousted. He cited Sule v. Nigerian Cotton Board (1985) 2 NWLR (Pt. 5) 17; Atologbe v. Awuni (1997) 9 NWLR (Pt. 522) 535; Labiyi v. Antetiola (1992) 8 NWLR (Pt. 252) 139) at 163 and 164; Aqua Ltd  v. Ondo State Sports Council (1986) 4 NWLR (Pt. 9) 622. On the  requirement of two-thirds majority, counsel cited National Assembly v. President (2003) 4 NWLR (Pt.824) 104 and argued that the defendants who went to the D'Rovans Hotel to congregate there did so on a frolic and not in pursuance of any constitutional implementation. He cited Akintola v. Aderemi (1962) All NLR 440 at 443; Hamilton v. Alfayed (2000) 2 All ER 224 and Attorney-General of Bendel State v. Attorney-General of the Federation (1981) 2 NSCC 314.

 

On the ouster clause, learned Senior Advocate submitted that for it to operate or oust the jurisdiction of the court, the donee of the power must act within the substantive and procedural limits prescribed by the enabling law. He cited Anisminic Ltd, v. Foreign Compensation Commission (1969) 2 AC 147 and The Bribery Commissioner v. Ranasinghe (1965) AC 172. Examining decisions of the Court of Appeal on impeachment, learned Senior Advocate submitted that they are not binding. He examined Abaribe v. The Speaker Abia State House of Assembly (supra); Musa v. Hamza (supra); Ekpo v. Calabar Local Government (supra); Jimoh v. Olawoye (supra) and Ekekeuqbo v. Fiberisima (supra).

 

Learned Senior Advocate submitted that the issues formulated in the appellants' brief do not flow directly from the grounds of appeal and the arguments on the issues run counter, and not only to the groups of appeal but also to the formulated issues. He gave as an example the complaint that the affidavit in support of the originating summons offends some sections of the Evidence Act. He argued that as the appellants did not raise the issue of faulty affidavit in the Court of Appeal, they cannot now just wake up to raise the issue in the Supreme Court. He submitted that this court has no jurisdiction to countenance the complaints on the affidavit in support. He claimed that the appellants abandoned their grounds of appeal and by extension, the entire appeal; and a fortiori no proper brief has been presented to the court and urged the court to so hold.

 

Learned Senior Advocate for the 3rd respondent, Yusuf Ali, Esq., SAN, like Chief Olanipekun, raised a preliminary objection on the competence of the grounds of appeal and urged the court to dismiss the appeal. The grounds of objection took the same trend as Chief Olanipekun’s.

 

Arguing Issue No. 1, learned Senior Advocate said that it is the claim of the plaintiff/claimant that the court will look at in determining the issue of jurisdiction of the court. In other words, it is the case put forward by the plaintiff that will be taken into consideration in answering whether or not the trial court has jurisdiction. The defence of the defendant, whether imagined or real, is irrelevant, counsel contended. He cited Okulate v. Awosanya (2000) 2 NWLR (Pt. 646) 530 at 555 and 556; Adeyemi v. Opeyori (1976) 9-10 SC 31 at 51, Tukur v. Government of Gongola State (1989) All NLR 579 at 599 and Egbuonu vs._BRTC (1997) 12 NWLR (Pt. 531) 29 at 43.

 

Taking Rabiu v. The State (1981) 2 NCLR 293 at 328 and 327; Anya (1993) 7 NWLR (Pt. 305) 290 at 315; Adisa v. Oyinwolu (2000) 10 NWLR (Pt. 674) 116; Salami v. Chairman LEDB (1989) 5 NWLR (Pt.123) 539; Ekpo v. Calabar Local Government (1993) 3 NVVLR (Pt. 281) 324 at 337 on the interpretation of the Constitution, learned Senior Advocate submitted that the High Court has jurisdiction to entertain the action. To learned Senior Advocate, a proper reading of the whole of section 188 of the Constitution will reveal that the ouster clause in that section can only be resorted to and invoked, after compliance with the other subsections that preceded it. He took pains to analyse each of the subsections in admirable detail in his brief. He cited AG Bendel State v. AG Federation (1931) All NLR 86 at 127 and 133; Jimoh v. Qlawoye (2003) 10 NWLR (Pt. 828) 307 at 338 and 339; Adebiyi v. Sorinmade (2004) All FWLR (Pt. 239) 933 at 948.

 

Learned Senior Advocate submitted on issue No. 2 that what the Court of Appeal did was in consonance with the decision of this court in Jadesimi v. Okotie-Eboh (1986) 1 NVVLR (Pt. 16) 264 at 276. He also cited Imonkhe v. AG Bendel State (1992) 6 NWLR (Pt. 248) 396 at 410; Adabla v. Aqama (1940) 5 WACA 25; Okoya v. Santili (1990) 2 NWLR (Pt. 131) 172 at 207 and Akpan v. Otonq (1996) 10 NWLR (Pt. 476) 108 at 123, To counsel, section 16 is a residual provision to take care of the situation that has arisen in this case.

 

On the issue of fair hearing, learned Senior Advocate referred to paragraphs 6, 7, 8, 9, 10, 11 and 12 of the affidavit in support and submitted that the Court of Appeal and this court have the statutory authority to take judicial notice of the facts deposed in the paragraphs by virtue of section 74(1 )(c) of the Evidence Act as the facts deal with the course of proceedings of the Oyo State House of Assembly. He also referred to the ruling of the learned trial Judge to the effect that the Issues for determination in the originating summons in this case are basically on point of law in which no affidavit evidence is required. Chief Olanikpekun of counsel for the 1st and 2nd, respondents made similar submission.

 

Learned Senior Advocate submission that it will amount to approbating and reprobating or blowing hot and cold for the appellants to now predicate the alleged denial of fair hearing by the Court of Appeal on the lack of opportunity to file counter-affidavit. After all, the learned trial Judge had said there was no necessity in filing affidavit in support of the originating summons, counsel said.

 

On another wicket, learned Senior Advocate argued that the lack of fair hearing is not sustainable because even without the affidavit in support of the originating summons, the Court of Appeal had the benefit of the letter written by the 1st respondent on 23rd December, 2005 to the Acting Chief Judge of Oyo State.

 

Still on the issue of fair hearing, learned Senior Advocate said that the appellants refused to take advantage of the golden opportunity offered them by Mr. Niyi Akintola, SAN, that the court can take the objection to jurisdiction and the merits of the originating summons together, vide the case of Senate President v. Nzeribe (2004) 9 NWLR (Pt. 878) 251.

 

Learned Senior Advocate submitted that by filing and relying on preliminary objection rather than filing a counter-affidavit to the merit of the matter, the appellants have demurred contrary to the provisions of Order 24 of the Oyo State High Court (Civil Procedure) Rules which abolished demurrer. It therefore means that the appellants have admitted the depositions in the affidavit in support of the originating summons and cannot therefore complain that they were not allowed to file a counter-affidavit since they have admitted the facts in the affidavit in support, counsel contended. He cited Igbokwe v. Udobi (1992) 3 NWLR (Pt. 228) 214 at 225 and 229. He further cited Oyeyipo v. Qyinloye (1937) 1 NWLR (Pt. 50) 356 at 370; Chime v. Ude (1995) 7 NWLR (Pt. 4S1) 379 at 418; Jadcom Ltd, v. Oguna Electricals (2004) 3 NWLR (Pt. 859) 153 at 178; Nuba Comm. Ltd, v. Nat. Merchant Bank (2001) 16 NWLR (Pt. 740) 510 at 520 and Omo v. Delta State (2000) 12 NWLR (Pt. 682) 444 at 456.

 

On issue No. 3, learned Senior Advocate said that it is the claim of the plaintiff that the court will look at in the consideration of the issue of locus stands. He cited Ajagunbade v. Laniyi (1993) 13 NWLR (Pt. 633) 92 at 111; Thomas_v, Olufosoye (1986) 1 NWLR (Pt. 18) 669 and AG Kaduna State v. Hassan (1985) 2 NWLR (Pt. 8) 483. Counsel submitted that the 1st and 2nd respondents, being the Speaker and the Deputy Speaker, respectively, had locus standi in the matter. He urged the court to dismiss the appeal.

 

Learned Senior Advocate for the appellants, Mr. Ayanlaja, submitted in his reply brief that the Court of Appeal was wrong in using section 16 to give judgment on what the court itself regarded as allegations and serious questions which still needed to be resolved by the High Court. I realise that the Reply Brief is essentially a repetition of the Appellants' Brief and I do not think "I should involve myself in that repetitive exercise. After all, the function of Reply Brief is to reply to new substantial points raised in the Respondent's Brief. See Okpala v. Ibeme (1989) 2 NWLR (Pt. 102) 208; Uneji v. Attorney-General of Imo Stat (1985) 4 NWLR (Pt 391) 882; Liade v. Ogunyemi (1996) 9 NWLR (Pt. 470) 17, Ajileye v. Fakovode (1998) 4 NWLR (Pt. 545)184.

 

The action was commenced in the High Court by originating summons. Commencement of action by originating summons is a procedure which is used in cases where the facts are not in dispute or there is no likelihood of their being in dispute. Originating summons is also reserved for issues like the determination of short questions of construction and not matters of such controversy that the justice of the case could demand the setting of pleadings. See Din v. Attorney-General of the Federation (1936) 2 NWLR (Pt 17) 471; Obasanjo v. Babafemi (2000) 15 NWLR (Pt. 689) 1; Nigerian Breweries PLC vs. Lagos State Internal Revenue Board (2002) 5 NWLR (Pt. 759) 1; Alhaji Alubankudi v. Attorney-General of the Federation (2002) 17 NWLR (Pt. 799) 338; Keyamo v. House of Assembly, Lagos State (2002) 18 NWLR (Pt. 799) 605.

 

In Famfa Oil Limited v. Attorney-General of-the Federation (2003) 18 NWLR (Pt. 852) 453, Belgore, JSC, (as he then was) said at page 487:

 

"The very nature of an originating summons is to make things simpler for hearing. It is available to any person claiming interest under a deed, will or other written instrument whereby he will apply by originating summons for the determination of any question of construction arising under the instrument for a declaration of his interest... It is a procedure where the evidence in the main is by way of documents and there is no serious dispute as to their existence in, the pleadings of the parties to the suit. In such a situation, there is no serious dispute as to facts but what the plaintiff is claiming is the declaration of his right."

 

Where facts are in dispute or riotously so, an originating summons procedure will not avail a plaintiff who must come by way of writ of summons. See Oloyo v. Alegbe (1983) 2 SCNLR 35; Doherty v. Doherty (1967) 1 All NLR 245; Famfa Oil Limited v. Attorney-General of the Federation (supra). In other words, an originating summons will not lie in favour of a plaintiff where the proceedings are hostile in the sense of violent dispute.

 

In originating summons, facts do not have a pride of place in the proceedings, The cynosure is the applicable law and its construction by the court. The situation is different in a trial commenced by writ of summons where the facts are regarded as holding a pride of place and the fountain head of the law, in the sense that the facts lead to a legal decision on the matter. That is not the position in proceedings commenced by originating summons where facts do not play a central role but an infinitesimal role if at all. I seem to be repeating myself. It is intentional. I should not take this issue further as the parties have not joined issues on whether the action was properly commenced by originating summons. All I want to highlight or bring to the fore is the inconsequential status of facts in action commenced by originating summons, and I do hope I have made the point. It is a useful baseline to draw from though not a barometer.

 

I should take a pause here to deal with the preliminary objection raised by the respondents in respect of the grounds of appeal. As it is, both sets of respondents attacked the grounds of appeal in limine, and vehemently. While the 1st and 2nd respondents raised and argued their preliminary objections from pages 4 to 10 of their brief, the 3rd respondent raised and argued his preliminary objection from pages 6 to 9 thereof. The briefs of the respondents were filed on 29th November, 2006. On 4th December, 2006, the appellants filed a motion for:

 

"1.        An order granting leave to the Appellants/Applicants to appeal against the decision of the Court of Appeal delivered on 1st November, 2006 on grounds other than that of law alone.

 

2.         An order deeming the Appellants' Amended Notice of Appeal dated 20th November but filed on 21st November, 2006 as properly filed and served.

 

3.         An order deeming the Appellants' brief of argument based on the grounds contained in the Amended Notice of Appeal dated 20th day of November, 2006 but filed on 21st day of November, 2006 as properly filed and served.

 

And for such further or other order(s) as this Honourable Court may deem fit to make in the circumstance.

 

Further take notice that the grounds of this application are that:

 

(i)         Appellants/Applicants have a subsisting appeal against the judgment of the Court of Appeal;

 

(ii)        Appellants/Applicants' grounds of appeal are not that (sic) of law alone;

 

(iii)       Appellants/Applicants' counsel are in doubt as to whether the grounds of appeal particularly grounds 1, 2, 3 and 4 of the Notice of Appeal filed on 6th November, 2006 and grounds 1, 2, 3, 4 and 5 of the Amended Notice of Appeal are of law alone or mixed law and fact;

 

(iv)       Appellants/Applicants’ appeal has been entered in this court.

 

(v)        Time within which to appeal has not run out; and;

 

(vi)      Appellants have filed and served their Brief of Argument based on the Amended Notice of Appeal”

 

Although the motion was clearly designed to overreach the very well taken preliminary objections of the respondents, this court had to bend backwards in the overall interest of justice to accommodate it. The court went the extra kilometre to persuade Chief Olanipekun and Yusuf Ali, Esq. to concede to the motion, again in the interest of justice. Counsel, in their wisdom, and a good one in the circumstances, reluctantly acceded to the request of the court and a motion which was otherwise most unmeritorious was granted by consent of the respondents. I will return to this magnanimity later in the judgment.

 

There is still a preliminary point and it is the order the learned trial Judge made when he held that he had no jurisdiction to hear the matter. Learned counsel for the defendants in the trial court, Mr. Lana, Attorney-General of Oyo State, in his submission on jurisdiction, urged the court to dismiss the originating summons. The learned trial Judge accepted the invitation and dismissed the suit. He said at pace 57 of the Record:

 

"The Court will therefore decline jurisdiction in this matter. The objection of learned counsel for the Defendants/Respondents is upheld. The Originating Summons is accordingly dismissed."

 

That is not all. Mr. Ayanlaja, learned Senior Advocate for the appellants, urged this court to dismiss the case of the plaintiff for lack of jurisdiction in the trial court.

 

Are Mr. Lana, the learned trial Judge and Mr. Ayanlaja, in that chronological order, correct? Does the submission and decision reflect the state of the law? Is it really the law that a case should be dismissed when the court has no jurisdiction to entertain it? .With respect, that is not the law and that cannot be the law. The law is that when a court comes to the conclusion that it has no jurisdiction to entertain a suit, it will be struck out and not dismissed.

 

In Din v. Attorney-General of the Federation (1986) 1 NWLR (Pt. 17) 471, this court held that where a court holds that it has no jurisdiction to entertain an action, it does not dismiss the action but merely strikes it out. A dismissal of action is adjudication on the merits and there can be no adjudication on the merits where there is no jurisdiction or competence to adjudicate. There is a plethora of case law on the issue, so much so that the issue is very well settled in law and should no longer give rise to any other position. See Ojora v. Odunsi (1959) 4 FSC 189; Akinboia v. Flisson Fisko Nig. Ltd. (1988) 4 NWLR (Pt 88) 335; Onagoruwa v. Inspector General of Police (1991) 5 NWLR (Pt. 113) 593; Alhaji Gombe v, PW (Nigeria Limited (1995) 6 NWLR (Pt. 402) 402; Udo v. Cross River State Newspaper Corporation (2001) 14 NWLR (Pt. 732; 116.”

 

Where an action is filed in a court which has no jurisdiction, it should be struck out and not dismissed in order to give the plaintiff another opportunity to file the action, if possible, in a court of competent jurisdiction or by way of amending the action to fall in line with the jurisdiction of the court it was initially filed. By this, the plaintiff is given an opportunity to have a second bite at the cherry and that is not bad.

 

Dismissal of an action in limine is the most punitive relief that a court can grant a defendant against the plaintiff. Because of its punitive nature, courts of law are reluctant or loath in granting it, in other words, courts of law cannot grant the relief for the mere asking on the part of the defendant. There must be legal basis for the request and a corresponding legal! basis for granting it.

 

I am rather surprised, though not flabbergasted, that Mr. Lana, learned Attorney-General of Oyo State and Mr. Ayanlaja, learned Senior Advocate, asked the High Court and this court, respectively, to dismiss the action for lack of jurisdiction. While I say this, I am not unaware of the professional duty counsel owe to their clients to present their cases to the best of their professional ability. This is the first and foremost duty counsel owe their clients. And in the desire and zeal to perform that professional duty, counsel can ask for any relief, meritorious or unmeritorious, under the sun (and a few of them ask for unmeritorious reliefs), but it is left for the court to remove the chaff from the grain in the context of the enabling law and grant or refuse the relief. There are times when counsel ask for a relief with the full knowledge that the law is not on the side of his client. In such a situation, counsel merely tests the legal strength of the Judge, who in his capacity as the unbiased umpire and master and expert of the law, should give judgment according to the law. While the parties are the clients of the lawyers, the law is the Judge's, clientele and constituency and he must apply it properly without fear or favour. That is the oath he took on the day he was sworn in as a Judge qua judex.

 

The learned trial Judge, with the greatest respect, was in serious error when he dismissed the action for lack of jurisdiction, instead of striking it out.  He had no jurisdiction to dismiss the action for lack of jurisdiction to entertain it but he had jurisdiction to strike it out. Accordingly, in the event that I come to the same conclusion that the High Court has no jurisdiction to entertain the action, I will do the lawful thing of striking it out.

 

The fulcrum of this appeal is the interpretation or construction of section 188 of the Constitution, the state counterpart of section 143 of the Constitution which provides for the removal of the President or Vice President from office. The provisions of the two sections are similar. As this case concerns section 188, that is the section I will take and not section 143.

 

It is a fairly long section of about 584 words. Because of its central position in this appeal, I will state the section verbatim et  literatim:

 

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

 

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

 

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

 

(b)       stating that the holder of such office is guilty of gross misconduct in the performance of the functions of his office, detailed particulars of which shall be specified,

 

the Speaker of the House of Assembly shall, within seven days of the receipt of the notice, cause a copy of the notice to be served on the holder of the office and on each member of the House of Assembly, and shall also cause any statement made in reply to the allegation by the holder of the office, to be served on each member of the House of Assembly.

 

(3)        Within fourteen days of the presentation of the notice to the  Speaker of the House of Assembly (whether or not any statement was made  by the holder of the office in reply to the allegation contained in the notice), the House of Assembly shall resolve by motion,   without   any   debate   whether   or   not  the allegation should be investigated.

 

(4)        A motion of the House of Assembly that the allegation be investigated shall not be declared as having been, passed unless it is supported by the votes of not less than two -thirds majority of all the members of the House of Assembly.

 

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

 

(6)        The holder of an office whose conduct is being investigated under this section shall have the right to defend himself in person or be represented before the Panel by a legal practitioner of his own choice.

 

(7)        A Panel appointed under this section shall -

 

(a)       have such powers and exercise its functions in accordance with such procedure as may be prescribed by the House of Assembly; and within three months of its report  its  findings   to Assembly.

 

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

 

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

 

(9)        Where the report of the Panel is that the allegation against the holder of the office has been proved, then within fourteen days of the receipt of the report, the House of Assembly shall consider the report, and if by a resolution of the House of Assembly supported by not less than two-thirds of all its members, the report of the Panel is adopted, then the holder of the office shall stand removed from office as from the date of the adoption of the report.

 

(10)     No proceedings or determination of the Panel or of the House of Assembly or any matter relating to such    proceedings    or determination    shall    be entertained or questioned in any court.

 

(11)     In this section -

 

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

 

Before I proceed to analyse the section, I should take a matter by the way and at large.  It is the use of the word "impeachment".  The word is used freely and indiscriminately by the parties. The two courts below also used the expression freely, though not indiscriminately. Where do they get the word in section 183 of the Constitution, I ask? it is clear from the section I have stated above that there is no such word in the section. And so ask once again, where do all counsel and the courts get the word?

 

Because I did not want to hide my ignorance .(if it is an ignorance at all on the issue), I raised it during the hearing of the appeal. Mr. Ayanlaja graciously called my attention to section 191 of the Constitution where the word is used. .That did not satisfy my query. The action was filed on the basis of section 188 and not on the basis of section 191(1). Section 191(1) merely provides that the Deputy Governor of a State "shall hold the office of Governor of the State if the office of Governor becomes vacant by reason of death, resignation, impeachment, permanent incapacity or removal of the Governor from office..."

 

In view of the fact that the action was brought under section 188, it is my view that the originating summons and all that follow by way of other court processes and proceedings should honestly and loyally follow the wording of section 188. This was not the position in the first relief and a number of other court processes. In the first relief, the plaintiffs/respondents claimed:

 

"A declaration that the purported Notice of Allegation of Misconduct made against His Excellency, Senator Rasheed Adewolu Ladoja, the Governor of Oyo State, as a preparatory step to his impeachment by the Defendants is unconstitutional, null and void, and of no effect whatsoever, having regard to the provisions of section 188(1) and (2) of the 1999 Constitution of the Federal Republic of Nigeria."

 

The point I have been struggling to make is clear from the above relief. Section 188(1) and (2) does not provide for the word "impeachment". The appropriate word is removal, although section 188(1) contains the verb "removed". In the circumstances, the first relief should have used the word "removal" in the place of "impeachment".

 

What is the meaning of impeachment? .Black's Law Dictionary defines the word as follows: .... .”

 

"A criminal proceeding against a public officer, before a quasi-political court, instituted by a written accusation called articles of impeachment; for example a written accusation of the House of Representatives of the United States to the Senate of the United States against the President, Vice President, or an officer of the United States, including federal judges."

 

This definition, with a slant for the United States Constitution, does not totally reflect the content of section 188 of the Constitution, as it conveys so much element of criminality. Section 188 is not so worded. The section covers both civil and criminal conduct. I am not saying that the definition vindicates the totality of the impeachment provision of the United States Constitution. It is my view that the word should not be used as a substitute to the removal provisions of section 188. We should call spade its correct name of spade and not a machete because it is not one. The analogy here is that we should call the section 188 procedure one for the removal of Governor or Deputy Governor, not of impeachment.

 

I should now take the subsections of section 183 seriatim.

 

Subsection (1)

 

(i)         The operative and telling word is "provisions", it is the plural of "provision",

 

 (ii)       By its plural content, the subsection covers subsections (2) to (9).

 

(iii)       By the subsection, a removal of a Governor or Deputy Governor must

comply with subsections (2) to (9).

 

Subsection (2)

 

(i)         There must be a notice of allegation in writing signed by not less than one-third of the members of the House of Assembly. That. will be approximately 11 members out of the 32 members of the Oyo State House of Assembly. It means that a notice of allegation signed by less than 11 members is not valid.

 

(ii)        The notice must be presented to the Speaker of the House.

 

(iii)       The notice should state that the Governor or Deputy Governor is guilty of gross misconduct in the performance of the functions of his office,

 

(iv)       The notice must specify detailed particulars of the gross misconduct. Vague, loaded and. imprecise particulars should not receive the action of the Speaker.

 

(v)        Within a period of 7 days from the date of receipt of the notice, the Speaker will cause a copy of the notice to be served on the Governor or the Deputy Governor as the case may be.

 

(vi)       The same notice as in (v) must be served on each member of the House, that is, on every member of the House.

 

(vii)      By subsection (2)(b) the Speaker is expected to procure a written statement form the Governor or the Deputy Governor in reply to the notice of allegation provided for in subsection (2). The reply must also be served on each member of the House. In sum, the members of the House will be in possession of the notice of allegation and the reply to the allegation, if the Governor or the Deputy Governor fails or refuses to reply to the allegation, he should be presumed as having no reply.

 

Subsection (3)

 

(i)         Within a period of 14 days of the presentation of the notice to the Speaker of the House, the House must resolve by motion, without any debate whether or not the allegation should be investigated.

 

(ii)        The action in (i) above will be taken whether or not the Governor or the Deputy Governor sent any statement in reply to the notice of allegation.

 

(iii)       It must be emphasized that the motion that the allegation should be investigated or not will not be debated. It would appear to be the intention of the makers of the Constitution that there should be no room for campaign on the floor to sway members at that early stage.

 

Subsection (4)

 

(i)         A motion that the House investigate the allegation will be declared as passed if it is supported by the vote of not less than two-thirds of all members of the House.

 

(ii)        In the context of the House of Assembly of Oyo State, the motion can only be passed if it is supported by approximately 21 members of the House. A simple majority is not compliance with the subsection.

 

Subsection (5)

 

(i)         Within 7 days of the passing of the motion under subsection (4), the Chief Judge of the State will appoint a Panel of 7 persons to investigate the allegation.                                 

 

(ii)        The Chief Judge can only set up the Panel at the request of the Speaker. It therefore means that where the Speaker does not request for the setting up of the Panel, the Chief Judge cannot do so by the request of any other member or, suo motu.

 

(iii)       The Panel must not exceed 7 persons. It must also not be less than 7 persons. The number 7 is indelible and constant. And so be it.

 

(iv)       The 7 persons must not be members of any public service, legislative house or political party. The subsection disqualifies members of the public service, legislative house or political party.

 

As it is, the Constitution vests in the Chief Judge the power to appoint the 7 persons. Although the Chief Judge is under no constitutional duty to share the power with his brother Judges, it will not be a bad exercise of power to consult his brothers, particularly the most senior ones.   It will not be wrong if he asks them for names. He is not bound by the names they send to him but at the end of the day, there will be mutuality of confidence in the matter and that is good both for the Chief Judge and his brother Judges.

 

The subsection only talks about the integrity of the persons. The subsection does not talk about the professional callings, age, gender and all that of the persons. It is my view that no profession disqualifies a person from being a member of the Panel. However, in view of the fact-that the exercise of investigation under the Constitution will invariably touch law in its large parts, it is my view that a legal person, either a retired Judge or a Solicitor and Advocate of the Supreme Court, preferably of the status or rank of Senior Advocate of Nigeria, should be appointed the Chairman. The other professional groups that should be on the Panel will depend largely on the allegation made against the Governor or Deputy Governor. And so an arm-chair recommendation will not be made. The point should be made however that an allegation involving money and falsification of accounts or re-ordering of figures, will certainly need the services of an Accountant. I think I can stop here on this fairly difficult area. Although there is no age restriction, the Chief Judge will certainly go for adults and youths. Youths will be handy if the Governor or Deputy-Governor is himself a youth. Gender is a most sensitive area in contemporary Nigerian society. Although the Constitution does not provide for representation in the Panel on basis of gender, it will not be out of place if the Chief Judge has this in mind in. constituting the Panel. I do not want to sound dogmatic on this fairly sensitive area in our contemporary society. The Chief Judge is a man of law and good judgment and should be trusted to take decisions with egalitarian outlook.

 

The search, for membership of the Panel need not be confined to the geographical territory of the State. The Constitution does not so restrict the appointment. A member can be picked and appointed from another State. He could be an indigene of the State. He need not be. As a matter of law, the search could go to the diaspora but here I should confine the appointment to Nigerian citizens in the diaspora by virtue of Chapter 3 of the 1999 Constitution.

 

(v)       The 7 persons must, in the opinion of the Chief Judge, be persons of unquestionable integrity, integrity is a matter of character of the human being and the character must be unblemished, consistent in doing correct things and not doing wrong or bad things. The character must be transparent, honest and trustworthy. He must be a person of great strength and strong principle and conviction. He must be clean, in and out, like the white ostrich. The Constitution provides for the epithet "unquestionable". This means that the person must not be one of questionable integrity. He should be a person without taint. A person who believes in vengeance or vendetta is not one of unquestionable character. An overzealous human being with superlatives, or extremities or idealisms, will not be a person of unquestionable integrity because some of his superlatives or extremities or idealisms may turn out to be Utopian and will be a bad way of judging a Governor in a realistic way in the running of a State. So too a person with pompous and arrogant bones in his chemistry with so much egotic flare. The Chief. Judge should avoid them in his Panel as if they are plagues. Pompous and arrogant people are not the best Judges. .

 

(vi)      It is merely saying the obvious that the Chief Judge can only invoke his constitutional powers under section 188(5) if the provisions of section 188(2), (3) and (4) are complied with. Putting the position in a negative language, the Chief Judge will not invoke his constitutional powers under section 188(5) if the provisions of section 188(2), (3) and (4) are not complied with. This, in my humble view, is the intendment of the makers of the Constitution. It will not be out of place for the Chief Judge to ask from the Speaker a certificate of compliance under the signature of the Speaker. I am not insisting on this because the Constitution does not so provide.

 

(vii)      In order to pick persons of integrity, the Chief Judge himself must be a person of integrity. The fact that he is appointed Chief Judge is a presumption of integrity in his favour and he will never betray the confidence the Constitution has placed on him. On no account should he be involved in favouritism and nepotism. So too partisanship in the exercise of his quasi-judicial function. He must perform his constitutional function above board, like Caesars' wife. He should not give the slightest room for lobbying and one way of doing that is to set up the Panel with utmost speed and alacrity. Of course, he should bow to the 7 days rule in section 188(5). This does not mean that the Chief Judge must wait for 7 days to set up the Panel. The requirement of the subsection is that the Panel must be set up within a period of 7 days.

 

Subsection (6)

 

(i)         The Governor or the Deputy Governor as the case may be has the right to defend himself before the Panel

 

(ii)        He also has the right to be represented -before the Panel by a legal practitioner of his own choice.

 

Subsection (7)

 

(i)         The powers and functions to be exercised by the Panel will be determined in accordance with procedure as prescribed by the House. The procedure prescribed should not be ad hoc but should apply to all investigations.  This is one way of avoiding different standards in otherwise similar matters. Of course, the House can revise or update the procedure as and when circumstances dictate. The House should avoid changing the rules at the middle of the investigation to assist or ruin the Governor or the Deputy Governor. Either is bad, because it will breed injustice.

 

(ii)        Within 3 months of its appointment, the Panel should report its findings to the House. The constitutions period should not, or better, cannot be extended. This is not just one inquiry set up by Government which can always ask for extension of time. It is a constitutional provision which the Panel must comply with. The lawmakers have a reason for giving such a fairly long period. It is to ensure that a thorough investigation is carried out by the Panel. Although the Panel need not take the whole of the 3 months, an investigation of the magnitude of the gross misconduct of a Governor or Deputy Governor should certainly take more than 2 to 7 days as the trend. An investigation which takes a very short period will lead to some speculation or conjecture that the Panel made up its mind early in the day and merely worked towards the achievement of that mind. The speculation or conjecture may not be out of place. How can a Panel complete an investigation in 2 to 7 days when the Constitution provides a maximum of 3 months?

 

(iii)       The report of the Panel should be precise, concise and exact to the minutest detail. There should be no room for doubt as to what the Panel decided. The report of the Pane! should be unequivocal and not fluid or rigmarole.

 

Subsection (8)

 

(i)         The Panel can make one of two recommendations, not two. The Panel can either report that the allegation made against the Governor or Deputy Governor is proved or is not proved.

 

(ii)        If the report is that the allegation is not proved, the matter ends there. The House has no constitutional right to set up another Panel to receive more favourable report. That will be tantamount to persecution of the Governor or Deputy Governor and the Constitution has no place for a second bite at the cherry. The House becomes functus officio.

 

(iii)       It is however not my understanding of subsection (8) that no, removal proceedings will be initiated against the Governor or Deputy Governor for the rest of his tenure qua office. The House is competent to initiate another removal proceedings, if the Governor or Deputy Governor commits any other gross misconduct within the meaning of subsection 11. And so, the Governor or Deputy Governor cannot go home and jubilate that he has passed through the firing line and that will be for the rest of his tenure. Let that Governor or Deputy Governor watch his conduct in off ice.

 

Subsection (9)     

 

(i)         If the report of the Panel says that the allegation against the Governor or the Deputy Governor is proved, the report will be considered by the House within 14 days of the receipt of the report by the House.

 

(ii)        This is the most crucial area and members should be most loyal to the oath they took on that eventful day of their swearing in ceremony. On that day, they swore or affirmed inter alia to perform "my functions honestly to the best of my ability, faithfully and in accordance with the Constitution of the Federal Republic of Nigeria and the law, and the rules of the House of Assembly and always in the interest of the sovereignty, integrity, solidarity, well being and prosperity of the Federal Republic of Nigeria..." It is at times the experience that some Nigerians regard the oath as another 'kindergarten recitation, to the extent that they do not attach any importance to it. Some forget the wordings of the oath as they finish, it should not be so. Members are at the bar of history and would not like history to judge them badly. They must therefore be at their parliamentary best. In debating the report, there should be no consideration of political party and political leanings. The exercise is much more than the party the Governor or Deputy Governor belongs and the party a member belongs. It is an exercise for the good of the State and members must remove their political hats or togas. A member who does not see anything good in what the Governor or Deputy Governor does, will definitely arrive at a bad decision. So too the one who sees nothing wrong in what the Governor or Deputy Governor does. Let the debate and the subsequent findings of the House be donated by the report of the Panel and not by sentiment

 

(iii)       The House can take one of two actions. It can adopt the report of the Panel. It can reject the report of the Panel, if it rejects the report of the Panel, the matter ends there. The Governor or the Deputy Governor can smile home as a victor.

 

(iv)       If the House adopts the report of the Panel, the Governor or Deputy Governor stands removed from office as from the date of adoption of the report. He has to pack his personal belongings from Government House before the Police arrive to force him out. After all, he is flushed out with his section 308 immunity. The day of reckoning has finally arrived. There is no going back, so be it.''

 

Subsection (11)

 

1 will skip subsection (10) for now and deal with subsection (11). I will return to subsection (10) after doing, subsection (11).   The reordering of the subsections is to facilitate the flow or trend of argument. It has no legal basis.

 

(i)         The word  "gross"  in  the  subsection  does  not bear  its  meaning  of aggregate income.    It rather means generally in the context atrocious, colossal, deplorable, disgusting,  dreadful,  enormous,   gigantic,  grave, heinous, outrageous, odious and shocking. All these words express some extreme negative conduct. Therefore a misconduct which is the opposite of the above cannot constitute gross misconduct. Whether a conduct is gross or not will depend on the matter as exposed by the facts.  It cannot be determined in vacuo or in a vacuum but in relation to the facts of the case and the law policing the facts.

 

(ii)        Gross misconduct is defined as (a) a grave violation or breach of the provisions of the Constitution and (b) a misconduct of such nature as amounts in the opinion of the House of Assembly to gross misconduct.

 

(in)       By the definition, it is not every violation or breach of the Constitution that can lead to the removal of a Governor or Deputy Governor.  Only a grave violation or breach of the Constitution can lead to the removal of a Governor or Deputy Governor. Grave in the context does not mean an excavation in earth in which a dead body is buried, rather it means, in my view, serious, substantial, and weighty. -

 

(iv)       The following, in my view, constitute grave violation or breach of the Constitution: (a) Interference with the constitutional functions of the Legislature and the Judiciary by an exhibition of overt unconstitutional executive power, (b) Abuse of the fiscal provisions of the Constitution, (c) Abuse of the Code of Conduct for Public Officers, (d) Disregard and breach of Chapter IV of the Constitution on fundamental rights, (a) Interference with Local Government funds and stealing from the funds or pilfering of the funds including monthly subventions for personal gains or for the comfort and advantage of the State Government, (f) instigation of military rule and military government, (g) Any other subversive conduct which is directly or indirectly inimical to the implementation of some other ' major sectors of the Constitution.

 

(v)        The following in my view, are some acts which in the opinion of the House of Assembly, could constitute grave misconduct (a) Refusal to perform constitutional functions, (b) Corruption. (c) Abuse of office or power, (d) Sexual harassment. I think I should clarify this because of the parochial societal interpretation  of  it to  refer to, only the male  gender. The misconduct can arise from a male or female Governor or Deputy Governor as the case may be. (e) A drunkard whose drinking conduct is exposed to the glare and consumption of the public and to public opprobrium and disgrace unbecoming of the holder of the office of Governor or Deputy Governor,   (f)   Using, diverting, converting or siphoning State and Local Government funds for electioneering campaigns of the Governor, Deputy Governor or any other parson,   (g) Certificate forgery and racketeering. Where this is directly connected, related or traceable to the procurement of the office of the Governor or Deputy Governor, it will not, in my view, matter whether the misconduct was before the person was sworn in. Once the misconduct flows into the office, it qualifies as gross misconduct because he could not have held the office but for the misconduct.  Such a person, in my view, is not a fit and proper person to hold the office of Governor or Deputy Governor.    It is merely saying the obvious that a Governor or Deputy Governor who involves in certificate forgery and racketeering during his tenure has committed gross misconduct.

 

It is not a lawful or legitimate exercise of-the constitutional function in section 188 for a House of Assembly to remove a Governor or a Deputy Governor to achieve a political purpose or one of organised vendetta clearly outside gross misconduct under the section. Section 188 cannot be invoked merely because the House does not like the face or look of the Governor or Deputy Governor in a particular moment or the Governor or Deputy Governor refused to respond with a generous smile to the Legislature qua House on a parliamentary or courtesy visit to the holder of the office. The point I am struggling to make out of this light statement on a playful side is that section 188 is a very strong political weapon at the disposal of the House which must be used only in appropriate cases of serious wrong doing on the part of the Governor or Deputy Governor, which is tantamount to gross misconduct within the meaning of subsection (11). Section 188 is not a weapon available to the Legislature to police a Governor or Deputy Governor in every wrong doing. A Governor or Deputy Governor, as a human being, cannot always be right and he cannot claim to be right always. That explains why section 188 talks about gross misconduct. Accordingly, where a misconduct is not gross, the section 188 weapon of removal is not available to the House of Assembly.  

 

Subsection (10)       

 

I will take the issue of jurisdiction here. Jurisdiction is a radical and crucial question of competence for if the court has no jurisdiction to hear the case, the proceedings, are and remain a nullity ab initiohowever well conducted and brilliantly decided they might be, as a defect in competence is not intrinsic, but rather extrinsic, to the entire adjudication. See Onyeanucheya v. The Military Administrator of Imo State (1997) 1 NWLR (?t. 482) 429; Madukolu v; Nkemdilim (1962) 2 SCNLJ 341. Jurisdiction is the nerve centre of adjudication; it is the blood that gives life to the survival of an action in a court of law, in the same way  blood gives life to the human being and the animal race. See generally Barsoum v. Clemesey International (1999) 12 NWLR (Pt. 632) 516; Chief Utih v. Onoyivwe (1991) 1 NWLR(Pt. 166) 155.

 

There is a common agreement that in the determination of jurisdiction, the court process to be used is the pleadings of the plaintiff, which is the statement of claim. As this action is commenced by originating summons, the court process to be used is the affidavit in support of the summons. In other words, the court will not examine a counter-affidavit even if tiled. Fortunately or unfortunately, no counter affidavit was filed in this case. And so the learned trial Judge had no choice than to examine the affidavit in support, which stands for all intents and purposes, as vindicating the plaintiff claims. Put differently, it is the case put forward by the plaintiff that determines the jurisdiction of the court. See Monye v. Anyichie (2005) 8 WNR 1 at 22; NDIC v. CBN (2002) 18 WRN 1: Elabanjo v. Dawodu (2006) 15 NWLR (Pt. 1001) 76; Okulate v. Awosanya (2000) 2 NWLR (Pt. 646) 530 at 556-556: Adeyemi v. Opeyori (1976) 9-10 SC 31 at 51; Tukur v. Governor of Gongola  State (1989) All NLR 579 at 599 and Egbuonu v. BRTC (1997) 12 NWLR (Pt. 531) 29 at 43.

 

In some cases, the court may need to take some evidence before determining the issue of jurisdiction. But this will not be necessary where all the materials necessary to determine whether or not the court has jurisdiction are already before the court, as in this case. See The Attorney-General of Anambra State v. The Attorney-Genera! of the Federation (1993) 6 NWLR (Pt. 302) 692. In the determination of the issue of jurisdiction, the court should not be influenced by sympathy for the case of one of the parties but must base its decision on the law, particularly in the light of the enabling law. After all, jurisdiction is a matter of hard law.

 

In determining the jurisdiction of a court in relation to a constitutional provision, the court must take into consideration the totality of the enabling section or sections and not subsections in isolation. This is because the journey to the jurisdiction of the courts in the Constitution, at times, could be cumbersome and not straight or simple. In this appeal, this court must determine the totality  of section   188 in  unison and  not the subsections in isolation.                             

 

With the above general and basic principles on jurisdiction, I will now go straight to section 188(10} of the Constitution, the hub, or should I say, plank of the jurisdiction palaver in this appeal. I will take the issue from two angles although the respondents took it only from one angle, and it is the angle of section 188(1) to (9) laying a pre-condition for the attainment of the section 188(10) ouster provision.

 

I think I can just take that first, and this I will do by quoting in extenso what Ogebe, JCA, said at pages 485 and 485 of the Record:

 

"It is my view that the trial court had serious questions to consider before hastily throwing out the suit.   For example it was alleged that 18 defendants/respondents met outside the chambers of the House of Assembly in a hotel to commence impeachment, proceedings, the    court   had a duty to   determine   whether   proceedings before   such   a   group   amounted   to  proceedings of Oyo State House of Assembly, it was also alleged that the House of Assembly in Oyo State had 32 members and for the removal of a Governor which requires the resolution of two third majority of all members of the House, the court had a duty to inquire whether a factional meeting of 18 members constituted   the   required   two-thirds   majority  of  all members. The court also had to consider whether impeachment proceedings in which the Speaker of the House of Assembly is excluded from his leading role as provided for in Section 158 of the Constitution can amount to proper proceedings of impeachment. For all  I  have  said  in  this judgment  I  have  no hesitation in holding that the learned trial judge was wrong in declining   jurisdiction.   Indeed had jurisdiction to examine the claim in the light of section 188 subsections 1-9 of the 1999 Constitution and if he was not satisfied that the impeachment proceedings were   instituted   in   compliance   thereof, he has jurisdiction to intervene to ensure compliance.   If on the other hand there was compliance with the pre-   impeachment process then what happened thereafter was the internal affairs of the House of Assembly and he would have no jurisdiction to intervene."

 

I have quoted the learned Justice in some detail I have no apologies for sounding prolix because it Is germane to the whole issue.

 

It is good law that where the Constitution or a statute provides for a pre­condition to the attainment of a particular situation, the pre-condition must be fulfilled or satisfied before the particular situation will be said to have been attained or reached. Our common and popular pet expression is "condition precedent" which must be fulfilled before the completion of the journey, which is the terminus and in our context, the terminus in section 188(10).

 

Learned Senior Advocate for the appellants cited the case of Abaribe v. Speaker Abia State House of Assembly (supra) and submitted that the Court of Appeal was wrong in not giving effect to that  case, on the ground that the issue of non-compliance with the provisions of the Constitution did not arise in that case.

 

In Abaribe, the Court of Appeal held that section 188(10) of the 1999 Constitution forbids all courts from allowing any proceedings or determination of a House of Assembly or its Panel with respect-to proceedings under section 188 to be challenged before it. It also forbids ail courts from allowing any matter relating to such proceedings and determination to be entertained before it. I entirely agree with the decision as it relates to full compliance with the pre­conditions in section 188(2) to (3). That is a straightforward construction of section 188(10) of the Constitution. Like Ogebe, JCA, i am inclined to the view that the "question of non-compliance with subsections 1-9 did not arise in that case." And that is the crux of the issue here. And so the case of Abaribe is not applicable in this case.

 

Learned Senior Advocate for the appellants, in an effort to fault the Court of Appeal on that issue, pointed out at page .26 of the appellants' brief that the jurisdiction of the court was invoked because the plaintiff felt that conditions, precedent to impeachment of the Governor were not satisfied. He quoted the grounds and particulars upon which the reliefs were sought at page 26 of the Brief. Counsel however was silent on the case of Abaribe. I take it that by his silence, he had no answer to the position taken by the Court of Appeal and he cannot get a proper answer in law because the Court of Appeal is correct in the distinction of the facts of Abaribe and those of this case. I will take the case of Musa v. Hamza (supra) later.

 

Learned Senior Advocate cited some cases decided on the United States Constitution and referred to Tribe's book on American Constitutional Law, 2nd Edition (1988), pages 289-296. I think I should take the liberty to quote paragraph 5.10a of the appellants' brief:

 

“In the interpretation of Section 188 of the 1999 Constitution, it is necessary to understand the history and development of impeachment process under the American Presidential Constitution from where it was adopted into the 1979 and 1999 Constitutions. The United States Supreme Court held in Ritter v. United States 84 Ct. Cl. 293 (1935) Cert. Denied, 300 US 32 . 653 (1937) that the Senate was the sole tribunal that could take jurisdiction of the articles of impeachment presented to that body against the plaintiff and its body against the plaintiff and its decision is final. The United States Supreme Court bars judicial review of impeachment under the political doctrine (see Baker v.  Car, 369 US  186,  218-219 (1962).     See also Laurence H. Tribe, American Constitutional. Law, 2nd Edition (198a; 289-296.”                                       

 

I do not think I am comfortable with the historical stuff presented by learned Senior Advocate. Apart from the fact that the position taken by learned Senior Advocate is not vindicated by Reports of the Constitution Drafting Committee Volume II (1976) pages 67 to 69, I disagree entirely with him that the "impeachment" provisions in our 1979 and 1999 Constitutions were adopted from the impeachment process of the American Presidential Constitution. There could at best be a possibility of adoption but certainly there was no adoption; not at all.

 

Let me go into more specifics on the issue. I will do so by quoting the very short impeachment provision in the Constitution of the United States. Article 1, section 3 provides:

 

"6.        The Senate have the sole Power to try all impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside. And no person shall be convicted without the Concurrence of two thirds of the members present."

 

7.         Judgment in Cases of Impeachment shall extend further than to removal from Office, and disqualification to hold and enjoy any Office of honour, Trust or Profit under the United States; but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment," according to Law."

 

I have taken the trouble to count the number of words in the above provision of the Constitution of the United States. They are about 103. I have also taken the trouble to count the number of words in section 188 of the Constitution of the Federal Republic of Nigeria, 1999. They are about 584. There cannot be an adoption. I am almost trying to change my mind whether there, was even an adoption but I will not yield to the temptation. After all, whether there was an adoption or an adoption is not relevant to the live issues before this court. Let me not instigate a litigation not before this court.

 

What is relevant however is whether this court should make use of the cases cited by learned Senior Advocate of Nigeria? it is the law that decisions of foreign courts, however learned they are or may be, are of persuasive authority and not binding on this court. The courts have held that decisions of English courts are of persuasive authority as they lack binding effect in our principles of stare decisis. See Alli v. Okulaja (1972) 2 All NLR 35; Dada v. The State (1977) NCLR 135; Eliochin Nig. Ltd, v. Mbadiwe (1986) 1 NWLR (Pt. 14) 47; Oladiran v. The State (1986) 1 NWLR (Pt. 14) 75. In my Book on Sources of Nigerian Law (1896),I said at page 94:

 

"Certainly, it will not only be ridiculous but an abuse of statehood   with   all   its   attendant   ramifications   in international law, for courts of a sovereign country operating an equally sovereign and independent legal system to be bound by decisions of courts of another country having the same status in international law and practice.    The United Nations Charter clearly recognizes  the  equality  of  States   as   subjects   of international law, even the smallest States, and so the question of one sovereign nation succumbing to the judicial decisions of another sovereign nation should not  arise  at  all no  matter the  historical tie  or connection.   Viewed from this angle, it is submitted that decisions  of  English  courts,   whether  by  the House of Lords or the Court of Appeal, should be persuasive authorities in Nigeria, and this applies to all Nigerian courts."

 

The above apart, a case is decided on the facts before the court and the facts of the case erect the ratio decidendi of the case. And so the cases cited by learned Senior Advocate were decided on the previsions of the United States Constitution which are clearly different from our section 188. One clear difference is that our section 188 does not contain the word "impeachment". That apart, Article 1 section 3 of the Constitution of the United States does not provide for the details of our section 188. That apart, our section 188 does not provide for the situation in Article 1, Section 3(7).

 

Another difference between the Constitution of the United States and that of Nigeria is in respect of the quorum for the removal of the office holder. In the United States Constitution, the quorum is two-thirds of the members present. In our Constitution, it is two-thirds of all the members of the House. There is a world of difference between the two. Is learned Senior Advocate really justified in asking this court to follow decisions of the United States courts on the provision of the United States Constitution on impeachment? I shudder. I will not and that is legal and constitutional.

 

Again, the above apart, American jurisprudence has so much developed the political question doctrine in their case law, so much so that it has taken a very firm root in their legal system. The political question doctrine is still in its embryonic stage in Nigeria. Let us not push it too hard to avoid the possibility of a still-birth. That will be bad both for Nigerian litigants and the legal system.

 

I am, a Nigerian Judge. This is a very obvious statement and need not be made. There are however instances where one makes an obvious statement to make a less obvious point. As a Nigerian Judge, the condition of my hire is to interpret and apply the Nigerian Constitution to Nigerians and others governed by the Nigerian Legal System and Nigerian jurisprudence, I am not hired to apply any foreign Constitution, however able or competent the provisions are or whether they contain the most democratic phraseology. While I am prepared to use constitutional provisions of foreign Constitutions which are similar to ours, I cannot see my way clear in using provisions which" are kilometres, away from ours. I see the impeachment provisions in the United States Constitution in that way, vis-a-vis our section 188.

 

In Attorney-General of Qndo State v. Attorney-General, of the Federation (2002) 9 NWLR (Pt. 772) 222, Ejiwunni, JSC, said at 462:

 

"Now, having regard to the principles  enunciated above   with   regard   to   the   interpretation   of  a Constitution, it is necessary to observe that what has to be construed is the constitutional ............ wherein all the provisions for the governance of the nation, Nigeria have been set out. In other words, it is the Constitution of Nigeria 1999 that is under scrutiny in  this matter, it is certainly not the Constitution of any other country no matter how desirable and perfect that Constitution may be. We as Nigerians have to live and abide with all the provisions of the Constitution which have been fashioned for us by those whose fate was ordained to fashion the Constitution for the governance of the people of Nigeria."

 

In Olafisove v. Federal Republic of Nigeria (2004) 4 NWLR (Pt. 864) 580, I said at page 674:

 

"As our country is sovereign, so too our Constitution and this court will always bow or kowtow to the sovereign nature of our Constitution, a sovereignty which gives rise to its supremacy over all laws of the land, including decisions by foreign courts. Gone are the days when all things from older common law jurisdictions were preferred to everything from the younger common saw jurisdictions.  Gone are also the days when  differences  between judgments  of this court   and   foreign   judgments    implied    that   the judgments of this court could be wrong.    Let those days not come back and they will not come back."

 

The above  reminds me of what Karibi-Whyte,  JSC,  said  in- Adigun v. The Attorney-General of Oyo State (No. 2) (1987) 2'NiWLR (Pt. 55) 197, at page 230:

 

"This Court has reached the stage when it does not regard differences from, the highest English or the Commonwealth Court or other courts of common law jurisdiction as necessarily suggesting that it is wrong."

 

And that takes me to the second aspect of the issue and 1 will do so by taking the case of Musa v. Hamza. In that case, the Court of Appeal said at page 253 of the judgment, and 1 will quote the court in extenso:

 

"It is important to state clearly that whatever the Supreme Law of the land has vested unequivocally and in clear words in any of its principal departments cannot lightly be taken away by means, of any construction extraneous and exotic to the expressed intentions and aspirations of the Constitution. That the Constitution has vested the power to remove the Governor or Deputy Governor in the State House of Assembly is not questioned. Section 170(i) provides as follows -

 

The Governor or Deputy Governor of a State may be removed from office in accordance with the provisions of this Section.

 

Then the provision of. Subsection (2)-(9) spells out the circumstances for the removal or non-removal. The proceedings for the removal of the Governor or his Deputy in my view seems to commence, when a notice of any allegation in writing and signed by not less than one-third of the members of the Assembly is presented to the Speaker of the House of Assembly of the State, stating that the holder of such office is guilty of gross misconduct in the performance of the functions of his office specifying detailed particulars of such gross misconduct (Section 170(2). All the ensuing proceedings of the service on the Governor with a notice of the copy thereof within 7 days and his reply to every member of the Mouse of Assembly, Section 170(2), and a resolution of the House of Assembly, within  14 days of presentation of the notice to the Speaker, whether allegation snail be investigated  Section 170)3); and supported by not less than two-thirds majority of ail the members of the House of Assembly - Section 170(4). Within 7 days of this motion, the committee of seven persons shall be appointed be appointed by the Speaker with the approval of the House of Assembly, to conduct the investigation. Ail -these are actions exclusively within the competence of the Legislature, it is relevant to observe that the Section preserves the fundamental rights of the Governor to defend himself before the committee  Section 170(3). it is in this regard that the submission of Dr. Odje that appellant is a special person who is not subject to the jurisdiction of the courts becomes pertinent."

 

With the greatest respect, the Court of Appeal in the above dictum would seem to have mixed up the expressions procedure and proceedings. Procedure is the set of actions necessary for doing something. It is also the method -and order of directing business in an official meeting. On the contrary proceedings are the records of activities. In this definition, procedure generally comes before proceedings. Putting it in another language, proceedings are built on the procedure established for the particular activity or business.

 

The arrangement of section 188 vindicates the above position I have taken and the difference between the two expressions. While section 188(7)(a) provides for the first word "procedure", section 188(8) provides for the second word "proceedings". The Court of Appeal mixed up the two expressions when the court taking section, 170 of the 1979 Constitution, held that the proceedings for the removal of the Governor or his Deputy commences with a notice of any allegation in writing is presented to the Speaker; including the appointment of 7 persons by the Speaker to conduct the investigation, in my humble view, section 188(1) to (6) sets out the procedure to be adopted in the removal process. The proceedings commence from section 188(7) and ends in section 188(9). In my view, proceedings will commence from section 188(7) when the Panel of 7 members call the, first witness to testify in the investigation of the allegation. And that continues until the conclusion of the deliberations of the report by the House.

 

The   section   188(10)   ouster   clause   is   clearly   on   proceedings   or determination of the Panel or the House.    It does not relate to or affect the procedure spelt out in section 188(1) to (6).   Parliamentary proceedings which result in the Hansard cannot be the same as the procedure which Parliament  . invokes or adopts  during the proceedings.

 

This court cannot in the interpretation of specific provisions of the Constitution, gallivant about or around what the makers of the Constitution do not say or intend. On the contrary, this court must interpret any section of the Constitution to convey the meaning assigned to it by the makers of the Constitution.

 

Ouster, clauses-are generally regarded as antitheses to democracy as the judicial system regards them as unusual and unfriendly. When ouster clauses are provided in statutes, the courts invoke section 6 as barometer to police their constitutionality or constitutionalism. The courts become helpless when the Constitution itself provides for ouster clause, such as section 188. In such a situation, the courts hold their heads and arms in despair and desperation. They can only bark but cannot bite. Their jurisdiction is to give effect to the ouster clause because that is what is in the Constitution or what the Constitution says, it is in the light of this very helpless situation of the courts, the upholders of the rule of law, that parties should not urge them to interpret section of the Constitution as ousting their jurisdiction when it is not. Ouster clause is a very hard matter of strict law which must be clearly donated by the provision. It is not a subject of speculation or conjecture. In sum, I am of the view that in the circumstances of this case, the wrong procedure adopted is clearly outside the section 188(10) ouster clause, and I so hold.

 

I am not yet done with section 188. As it is, the section has so much to do with days oscillating between 7 and 14 days. How will the days in the section be calculated? In view of the fact that the procedure in section 138 could be taken at anytime, there is need to know what constitutes a day in law. 1 should here, quickly make reference to the Interpretation Act merely as a guide because it is not applicable to the States. The Act applies to matters in the Exclusive Legislative List and therefore will apply to procedure for the removal of the President and the Vice-president. Fortunately we are not there and God is good that we are not there.

 

Let me read section 15 of the interpretation Act, Cap. 192, Laws of the Federation of Nigeria, 1990:

 

"(1)      A reference in an enactment to the time of day is a reference to the time which is one hour in advance of Greenwich mean time.

 

(2)        A reference in an enactment to a period of days shall be construed

 

(a)       where the period is reckoned from a particular event, as excluding the day on which the event occurs;

 

(b)       where apart from this paragraph the last day of the period is a holiday, as continuing until the end of the next following day which is not a holiday.

 

(3)        Where by an enactment any act is authorised or required to be dent on a particular day and that day is a holiday, it shall be deemed to be duly done if it is done on the next following day which is not a holiday.

 

(4)        Where' by an enactment any act is authorised or required to be done within a particular period which does not exceed six days, holiday's shall be left out of account in computing the period.

 

(5)        In this section holiday means a day which is a Sunday or public holiday."

 

I have not taken the trouble to use the Interpretation Law of Oyo State because it is not an issue in this appeal. I thought I should complete the removal picture by setting out the procedure. I think I can stop here on that.

 

And finally on Section. 188. Subsections (2), (4) and (9) involve some arithmetic. As my arithmetic is not the best, I do not know whether I got the answer in computing one-third or two-thirds of the 32-member House of Oyo State. What I did was to use the number 50 as the half of 100 and approximate one-third or two-thirds of 32 to the nearest number. In other words, what I did to get one-third or two-thirds of .32 members was to approximate to the nearest figures. That is how I came by the figures 11 and 21. I did this because the human body cannot be divided and I cannot be a party to the division of the bodies of the members of the House. I do hope I am not wrong. It will be bad if I am. I do not want to remember the case of Awolowo v. Shagari (1979) 12 NSCC 87. Arithmetic is not the Judge's tool.

 

Now that I have taken section 188, this is a convenient place to slot in the acts of violation, contravention or breach of the section by the appellants. They are as follows:

 

1.         The holding of the meeting by the appellants at D'Rovans Hotel, Ring Road, instead of on the floor of the House of Assembly.

 

2.         The absence   of a constitutional  notice  of allegation   against the  3rd respondent.                                           

 

3.         The non-service of a constitutional notice of allegation against the 3rd respondent.

 

4.         The failure to obtain the constitutionally required two-thirds majority of all the members of the House for the removal of the 3rd respondent.

 

5.         The non-involvement of the Speaker in the so called proceedings leading to the  removal of the 3rd respondent.

 

6.         The unconstitutional procedure adopted in the suspension of Order of the House of Assembly, in other words, the unconstitutional application of Rule 23 of the Draft Rules of the Oyo State House of Assembly.-

 

I should briefly take the above, not before, I make an important point that all the above conditions need not be breached before a court of law can hold that the procedure is unconstitutional. Breach of one condition is enough. It appears to me from the intention of the Constitution that the House of Assembly will sit in the building provided for it and for that purpose. By the provision of section 104 of the Constitution, the House shall sit for a period of not less than one hundred and eighty-one days in a year. By section 108(1), the Governor of a State may attend a meeting of the House of Assembly either to deliver an address on State affairs or to make such statement on the policy of government as he may consider to be of importance to the State.

 

In my humble view, a community reading of the two sections show that the intention of the Constitution is to make the House of Assembly sit physically in the building provided for that purpose. If I am wrong and the appellants are right, it will then mean that the Governor has to move to a Hotel to address the members anytime the House sits there and he wants to take advantage of section 108. Can that be the intention of the makers of the Constitution? Will that not be ridiculous?

in Akntola  v. Aderemi (1962) Ail NLR 440 at 443, it was held that anything done outside the House of Assembly to remove the Governor of the old Western Region was/is a nullity. The Governor is elected by the people - the electorate. The procedure and the proceedings leading to his removal should be available to any willing eyes. And this the public will see watching from the gallery. It should not be a hidden affair in a hotel room.

 

A Legislature is not a secret organization or a secret cult or fraternity where things are done in utmost secrecy in-the recess of a hotel. On the contrary, a Legislature is a public institution, built mostly on public property to the glare and visibility of the public. As a democratic institution, operating in a democracy, the actions and inactions of a House of Assembly are subject to public judgment and public opinion. The public nature and content of .the Legislature is emphasised by the gallery where numbers of the public sit to watch the proceedings. Although I concede the point that a Legislature has the right to clear the gallery in certain deliberations for security reasons, do not think proceedings for the removal of a Governor should be hidden from the public.

 

I want to ask a few questions on the mace. Was the mace at the D'Rovans Hotel? if it was there, was that the proper place? If it was not there, can parliamentary decisions be taken constitutionally without the mace? If the mace was there, who carried it? Was the Sergeant-at-Arms there? I have still one or two more questions to ask about the D'Kovans Motel meeting, but I think I should stop here.

 

As there is no evidence 'A/hen the meeting was held, i shall not go there. But I should say  here that proceedings of a House of Assembly-should be held in parliamentary hours. This is the period the Rules have provided that the House should sit. On no account should proceedings of a House be held in unparliamentary hours, that is, during the period not provided for in the Rules. For instance, a House of Assembly has no business to perform in the odd hours of mid-night or in the odd hours of the morning before the parliamentary hours prescribed by the Rules.

 

Section 188(2) clearly provides for a notice of allegation which must be presented to the Speaker-for action within 7 days of his receipt of the notice. Who received the section 188(2) notice as the Speaker was not in the D'Rovan Hotel meeting? Can a notice of allegation not presented within the provision of section 188(2) be constitutional?

 

Related to the above is the service of the notice of allegation to each member of the House. Was the provision complied with in the absence of the Speaker? Again, who served the notice and when was it served? Was section 188(3) complied with? if so, who conducted the proceedings leading to the motion that the allegation against the Governor be investigated or not?

 

Was section 188(9) complied with? in other words, and putting it bluntly in naked figures, did the 18 members that purportedly removed the 3rd respondent constitute two-thirds majority of all the members of the Oyo State House of Assembly? Why was the Speaker not involved in the removal of the 3rd respondent? Was the Speaker constitutionally removed from his position qua office in accordance with section S2(2)(c) of the Constitution? in the grounds of preliminary objection, the appellants said that the Speaker was removed on 13th December, 2005. How many members removed him? Did the number make up the two-thirds fraction within the meaning of section 92(2) of the Constitution? is the  Speaker just one cleaner in the Oyo State House of Assembly that can be removed just for the asking? Can the appellants answer the above questions correctly?

 

I should now take the issue of locus standi. Locus standi or standing is the legal right of a party to an action to be heard in litigation before a court of law or .tribunal. The tern entails the legal capacity of instituting or commencing an action in a competent court of law or tribunal without any inhibition, obstruction or 'hindrance from any person or body whatsoever

 

It is the law that to have locus stand! to sue, the plaintiff must show sufficient interest in the suit. One criterion of sufficient interest is whether the party could have been joined as a party to the suit. Another criterion is whether the party seeking the redress or remedy will suffer some injury or hardship from-the litigation. If the Judge is satisfied that he will so suffer-, then he must be heard as he is entitled to be heard. See generally Chief Ojukwu v. Governor of Lagos State (1935) 2 NWLR (Pt. 10) 806; Justice -Williams v. Mrs. Dawodu (1S8S) 4 NWLR (Pt. 87) 189; Chief Nwosn v. Administrator-General Bendel State 0999) 2 NWLR (Pt. 175) 275; Egoiurn v. Coasanjo (1S99) 7 NWLR (Pt. 611) 3o5.

 

A party who seeks a declaratory relief in the Constitution must show that he has a constitutional interest to protect and that the interest is violated or breached to his detriment. The interest must be substantial, tangible and not vague, intangible or caricature. In ascertaining whether the plaintiff in an action has locus standi, the pleadings, that is, the statement of claim, must disclose a cause of action vested in the plaintiff and the rights and obligations or interests of the piaintnv whicn nave been? violated. See Adefulu v. Oyesile (1989) 1 NWLR (Pt. 22) 377, Adesokan v. Prince Adeqou (1991) 3 NWLR (Pt. 179) 293; Attorney-General of Enugu State v. Avoo Plc (1995) 6 NWLR (Pt. 399) 90; Chief (Dr.) Thomas v. The Most Rev. Olufosove (1985) 3 NWLR (Pt. 13) 523. The question as to the competence of a plaintiff to institute an action is gathered from the statement of claim and not from the evidence that is subsequently led. See Ladejobi v. Shodipo (1989) 1 NWLR (Pt. 99) 596.

 

Where the competence of a plaintiff to institute an action is challenged or is in issue, the onus would be on him to establish that he is competent to sue as plaintiff. See Ezeafulukwe v. John Holt Limited (1996) 2 NWLR (Pt. 432) 511; Pharmatek Industrial Projects Limited v. Trade Bank of Nigeria Plc (1997) 7 NWLR (Pt. 514) 6399; Okafor v. Asoh (1999) 3 NWLR (Pt 593) 35.

 

In this case, the respondents sought four declarations based on section 188 of 'the Constitution of the Federal Republic of Nigeria. This apart, the affidavit in support deposed to a number of violations of section 138 by the appellants.   A community reading of the reliefs sought by the respondents and  the affidavit in support clearly, in my view, vest locus standi on the respondents.

 

Section 188 mentions the Speaker in very substantial parts, so much so that he has sufficient interest in the protection of the section, afortiori the violation, or breach of it. By section 95 of the Constitution, at any sitting of the House, the Speaker will preside, and in his absence the Deputy Speaker will. How can a person who presides over a house under section 95 and who is given

 

 

specific constitutional function to perform in the procedure and proceedings of removal of a Governor or his Deputy, not have a sufficient interest to commence an action complaining on the violation or breach of section 188?

 

Learned Senior Advocate tried to push in this matter affecting the Constitution, locus standi in company law when he submitted that the plaintiffs' constituted a minority of the members of the House of Assembly and so had no locus standi  to commence the action. He also submitted that in the absence of evidence that the plaintiffs were acting on behalf of the whole House, they had no locus stand/. Although learned Senior Advocate did not specifically refer this court to the company or commercial law case of Foss v. Harbottle (1834) 2 Hare 461, it will not be a wrong guess if I say that he has that case in mind. After all, Mr. Lana, learned Attorney-General of Oyo State-, submitted in the High Court that the "2nd plaintiff under Rules in Foss vs. Harbottle cannot institute an action Alhaji Imam Abubakar v. Smith (1973) All NLR 634-634.

                                

What is notoriously referred to as the Rule in Foss v. Harbottle is in the following terms:

 

"The company or association is the proper plaintiff in all actions in  respect of injuries  done to  it. No individual will be allowed to bring actions in respect of acts done to the company which could be ratified by a  simple majority of its members."

 

Certainly, the above Rule cannot apply in this case which deals with the breach of a section of the Constitution. The House of Assembly cannot, in any sense or imagination, be equated to a  company. One is a constitutional body; the other is a corporation in business or commerce. The minority element learned Senior Advocate introduced in the issue is, with the greatest respect, neither here nor there. Counsel cannot talk about majority to win over minority in the context of section 188 in order to make the action of the minority unconstitutional. That is company or commercial law practice and it is wrong to import that to the determination of locus standi under the Constitution. In the search for locus standi in the Constitution, the searcher will have good company in section 6(6)(b) and any specific section in the Constitution, such as section 188 as it relates to this appeal. The searcher will not go outside the Constitution for case law on minority shareholding because that is inapposite.

 

Really, why should learned Senior Advocate submit that the plaintiffs "are all busy bodies who are fighting the cause of Senator Rasheed Adewolu Ladoga"? Why should he import the minority principle in company or commercial law in a matter which is clearly constitutional and which the Constitution donates locus standi? Why should he say that the plaintiffs are busy bodies or why should he think so? I think I am repeating myself, I think I need the repetition for emphasis. Section 188 does not only mention the Speaker and the members of the House of Assembly, but also gives them functions to perform in the removal process. Can such persons be branded with any seriousness as busy bodies in a case where the relevant section is violated, contravened-or breached? This is quite new learning to me and I do not think I am prepared to learn it, not because I hate to learn or I am not willing to learn, but because there is nothing to learn.. In sum, I come to the conclusion that the Speaker, Deputy Speaker arid members of the House of Assembly Oyo State have locus standi to commence action in this matter, and I so hold.

 

That takes me to an examination of the evidence before the trial Judge. The Affidavit of Urgency on pages 1 to 2 of the Record reads in substantial part:

 

"4.        That the subject matter of this suit is for the interpretation of the Constitution of the Federal Republic of Nigeria 1999 vis-a-vis the 'purported move of the Defendants to impeach the Governor of Oyo State, Senator Rasheed Adewolu Ladoja via a ruse notice of allegations of misconduct purportedly issued in an Hotel in Ibadan which is outside the jurisdiction of Oyo State House of Assembly.

 

5.         That the Defendants herein crystallized their intention of impeachment  proceedings on 22nd December, 2005 amidst chaos and violence when they purportedly moved a motion to investigate the so-called allegations of misconduct against Governor Rasheed Adewolu Ladoja without serving the said notice on all the members of the State House of Assembly and without the concurrent consent of the Plaintiffs herein.

 

6.         That it is necessary to bring this action and stop the Defendants timeously    in    their diabolical    moves   of   creating    chaos    and anarchy   in   Oyo   State   and   destabilize   the Government machinery.

 

7.         That it is in the interest of justice, fair play and indeed the teeming populace of Oyo State to hear this suit and the accompanying-applications speedily and with utmost urgency.

 

8.         That the Defendants will not be prejudiced if the suit and the applications are heard speedily."

 

  The Affidavit in Support of the Originating Summons on page 8 also reads in substantial part: .                                            

 

"5.        That I know as a fact that the 1st Plaintiff herein is the Honourable Speaker of the Oyo State House of Assembly while the 2nd Plaintiff is the deputy speaker of the House of Assembly respectively.

 

6.         That the 1st and 2nd Plaintiffs herein informed me and I verily believe them that the Oyo Stare House of Assembly sat at the Assembly Complex Secretariat Ibadan, on 13th December, 2005 while the Defendants chose to sit outside the official designated House Chamber located at the House of Assembly Complex instead they sat at D'Rovans Hotel Ring Road Ibadan.

 

7.         That at the purported sitting of the Defendants herein at the D'Rovans Hotel Ring Road Ibadan, the Defendants purportedly suspended the draft rules of the Oyo State House of Assembly Rules and thereby compromised the interest of the Plaintiffs vis-a-vis their right as legislators and also compromise the rules and regulation of the Oyo State House of Assembly.

 

8.         That I was informed by 1st and 2nd Plaintiffs and I verily believe them that the Defendants purportedly issued a notice of allegation of misconduct against the governor of Oyo State, Senator Rasheed Adewolu Ladoja with the purpose of commencing an impeachment proceedings against the latter.

 

9.         That the Defendants further on 22nd December, 2005 without following the laid down rules and regulations and the Constitution of the Federal Republic of Nigeria purportedly passed motion calling for the Investigation of the alleged allegations of misconduct against Senator Rasheed Adewolu Ladoja, the Governor of Oyo State without the concurrent consent approval of the two-third majority of the 32 (thirty-two}

 

10.       That the issuance of the purported notice of allegations of misconduct by the Defendants was also done not only outside the designated official venue of the Assembly but was. done without the concurrent consent of the 32 (thirty two) members House of Assembly.

 

11.       That I was informed by the 1st an 2nd Plaintiffs and I verily believe them that the required service of the purported notice of allegations of misconducts against Governor Rasheed Adewolu Ladoja which the Defendants issued from D'Rovans Hotel was not served on each member of the House of Assembly of Oyo State.

 

12.       That I was informed by the Plaintiffs herein and i verily believe them that the business of the House of Assembly of Oyo State is meant to be conducted within the House of Assembly Chambers and /or on the floor of the parliament.

 

13.       That I know as a fact and by virtue of my profession that serious issues of law and" the Constitution have been raised in the originating summons.

 

14.       That I know that this case involves the interpretation of law  vis-a-vis the interpretation of the Constitution of Nigeria 1999.

 

15.       That it is in the interest of justice and democracy to grant the reliefs in the originating summons.

 

16.       That the Defendant will not be prejudiced in any way if the reliefs in the originating summons are granted."

 

Before I deal with other evidence, this is a convenient place to take the objection of learned Senior Advocate to paragraph 6 to 11 of the affidavit in support. He has attacked the paragraphs in the light of sections 73, 74, 86, 88, 89 and 113(b) of the Evidence Act. Relying on sections 73, 74 and 113(d) of the Evidence Act, learned Senior Advocate submitted that the facts proffered as evidence in the affidavit in support cid not qualify as admissible evidence to justify cognizance and reliance on them for the purpose of the originating summons.

 

While section 73 provides that no fact of which the court must take judicial notice need be proved, section 74 provides for situation or instances where the court can take judicial notice of facts. These relevantly vindicate the course of proceeding of the House of Assembly of the States of Nigeria. Section 113(d) provides "for the proceedings of a State House of Assembly by the minutes of that body or by published Laws or by copies purporting to be printed by the order of Government." Attacking paragraphs 6, 7 and 11 (a) specifically, learned Senior Advocate submitted that the respondents ought to have produced Hansard of the House to show when the defendants sat, when they left the House to sit somewhere else and who were the members that sat as the House.

 

It is my view that the submission of learned .Senior Advocate is on the possibility that the facts in the affidavit in support are true and in their element of truth cannot be admissible because of the essentially parol element in them. That explains why he queried the absence of the Hansard. To that extent, counsel cannot be said to have contradicted the affidavit in support, rather he accepted it but says it has not materially advanced the case of the respondents.

 

It is good law. that unchallenged or uncontradicted oral evidence is admissible to establish the existence of a fact on which it is based. See Alalade v. ICAN (1975) 4 SC 59; Okupe v. Ifemembi (197-0 3 SC 97; Aiao v. Ashiru (1975; 11 SC' 23; Odulaja v. Haddsrd (1973). 11 SC 357. Where oral evidence is cogent and relevant, there is no need for documentary evidence as the oral evidence has properly covered the entire evidential scene. Hansard, though a useful documentary evidence of the proceedings of the House of Assembly, is not always necessary for proof of any aspect of the proceedings. A cogent oral evidence is enough. In this case, the affidavit in support deposed to the facts mentioned by counsel in paragraph 4.8 of the appellants brief, depositions which were enough for appellants to react one way or the other.

 

Draft Rules, like laws, need not be exhibited in an affidavit. Counsel can make use of them when necessary. Counsel can also call for them when necessary. They need not be exhibited for the court to take judicial notice of them. The Evidence Act does not say that Rules should be exhibited to enable the court take judicial notice of them.

 

Section 86 provides that every affidavit shall contain only a statement of facts and circumstances to which the witness deposes, either of his own persona! knowledge or from information which he believes to be true. By section 88, when a person deposes to his belief in any matter of fact, and his belief is derived from any source other than his own personal knowledge, he must set forth explicitly the facts and circumstances forming the ground of his belief. And section 89, .which relates to section 88, provides that when such belief is derived from information received from another person, the name of the informant should be stated and reasonable particulars should be given respecting the informant, and the time place and circumstances of the information.

 

I have carefully read paragraphs 8, 9, and 10 of the affidavit in support and I am unable to agree with learned Senior Advocate that the paragraphs offend sections 86, 88 and 89 of the Evidence Act. I do not see any extraneous matter. In paragraph 8, Sunday Aborisade, the deponent, deposed to the source of his belief as the 1st and 2nd plaintiffs and said that he believed them, thus complying with section 38 of the Act. Paragraph 9 cannot be said to be an extraneous matter by way of objection, prayers or legal argument. On the contrary, the paragraph contains factual statements. So too, paragraph 10 thereof. In sum, "the objection on the paragraphs of the affidavit in support  fails. The issue was not raised in the Court of Appeal and so cannot be raised here without leave of the court. No such leave was sought. From whatever way one looks at the objection, it fails.

 

With that parenthesis on the admissibility of the paragraphs in the affidavit in support, vide sections 36, 88 and 39 of the Evidence Act, I return to the examination of the evidence before the learned trial Judge.

 

The appellants in their preliminary objection of 23rd December, 2005 on jurisdiction gave the following seven grounds:

 

"(a)      By virtue and under the Provisions of Sections 101 and 102 of the 1999 Constitution of the Federal Republic of Nigeria, the Oyo State House of Assembly as represented by the Defendants who are in the majority, have power to regulate its own procedure including the procedure for summoning and recess of the House.

 

(b)        By the combined effects of Sections 101 and 102 of the   1999  Constitution  of the  Federal   Republic  of Nigeria, the Defendants/Applicants herein who are in the majority may act notwithstanding any vacancy in the membership of the House.

 

(c)        By virtue of Section 188(10) of the 1999 Constitution of the Federal Republic of Nigeria, no court of law can entertain any issue relating to the proceedings or determination of a Panel or the House of Assembly or any matter relating to impeachment proceedings.

 

(d)        The 1st and 2nd Plaintiffs have no necessary standing to institute this action in that the two' of them are impostors. The 1st Plaintiff was removed from office as Speaker of the House of Assembly on 13th December 2005 while the. 2nd Plaintiff was never made the • Deputy Speaker and was indeed suspended member of the Oyo State House of Assembly.

 

(e)        Rule 23 of the Draft rule of Oyo State House of Assembly made pursuant to Section 101 of the 1999 Constitution vested in the Defendants/Applicants herein the power to suspend any order of the House of Assembly and to wit suspend any member of the House. The 2nd Plaintiff/Respondent remains a suspended member of the Oyo State House of Assembly along side six others.

 

(f)        Legislative Proceedings is neither subject-to Litigation nor justiceable.

 

(g)        The claims of the Pontiffs/Respondents herein neither discloses any reasonable cause of action against the Defendants/Applicants nor discloses the interest which the Plaintiffs/Respondents intends to protect which affect then", directly.

 

(h)        The suit of the Piaintiffs/Respondents is an abuse of the process of this Honourable Court."

 

I return to this later in the judgment.

 

In a further affidavit dated 28th December, 2005, Mr. Sunday Aborisade, deposed to a letter written by the 1st respondent in reply to a press release on the purported proceedings of the Oyo State House of Assembly sittings in the Parliamentary Hail on 22nd December, 2005. i reproduce the letter written to the Acting Chief Judge of the State, for ease of reference:

 

"Your Lordship Sir,

 

My attention had been drawn to a paid advertisement contained in the Nigerian Tribune of today the 2nd day   of December,   2005  on  the  above  stated  subject matter.

 

I need to officially inform your Lordship

 

(i)         that the press release did not emanate. from Oyo State    Assembly    at    Parliament    Buildings     as fraudulently claimed in the paid Advert;

 

(ii)        that due to security breaches by some hoodlums at the Parliament Buildings yesterday the 22nd December, 2005, there was no any legislative business as mischievously claimed by the author of the press release.

 

(iii)       that the House stood adjourned to 28!h December, 2005 from its Sittings of the 21st December, 2005" which the said author acknowledged and avoided and I did not order for the re-call sitting of the House and;

 

(iv)       assuming without conceding, that some members met at D'Rovans Hotel, Ring Road, Ibadan for a press briefing, unimpeachable information, disclosed that only six Honourable members attended the press briefing, the suspended author inclusive.

 

Your Lordship, can we substitute the provision of S.183(3)(4) of the 1999 Republican Constitution which is expected to be observed by a 32 members House with a press briefing?

 

The answer is an emphatic No.  S. 188(3)(4) of the 1999  Constitution reads thus:

 

"Within fourteen days of the presentation of the notice to the Speaker of the House of Assembly... the house of assembly shall resolve by motion, without any debate whether or not the allegation shall be investigated.”.

 

8.188(4)

 

"A motion  of the House of Assembly that the allegation    be   investigated shall not be declared as having been passed unless it is supported by the votes of not less thaw two-thirds majority of all the members of the house of assembly." Your Lordship, your attention needs to be drawn to the status of the author of the said paid advertisement of today, i.e. Hon. Eesuola Ahmed Babatunde.

 

(a)        he is one of the five suspended Honourable members of the House vide the resolution of 21st day of December, 2005 and its public notice published in the Nigerian Tribune of 22nd December, 2005. A copy is hereby attached and that the said author as confessed on the said paid advertisement impersonated Civil Servant i.e. the position of Permanent Secretary of....

 

(b)        the House who doubles as the Clerk of the House.

 

In view of the above and the disclaimer contained in the Nigerian Tribune of 15th December, 2005 disclaiming the said author Honourable, your Lordship is hereby urged to disregard any purported resolution springing only on pages of Dailies without any official proceedings or motion as same was made without authority of the appropriate Officers i.e. my humble self and the Clerk of the House who are both presently in office. Order 3 Rule 4 of the Oyo State House of Assembly, is self explanatory.

 

I count a lot on your Lordship's maturity and wealth of experience."

 

It must be mentioned that the further affidavit was served on the appellants vide the address for service at page 32 of the Record. This means that the contents of the letter to the Acting Chief Judge were known to the appellants.

 

I now move to section 16 of the Court of Appeal Act. The section reads:

 

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

 

Section 16 is one long sentence of 206 words with seven comas and the traditional one sentence full stop, it also consists of eight "ors" - the disjunctive particle conjunction and seven conjunctive "and". The disjunctive particle generally expresses or marks an alternative in a statute. It indicates or gives a choice of one among two or more things. The word plays a functional role and therefore, a functional word so to say to depict or show an alternative between different or unlike things. There are instances where the word creates a multiple rather than an alternative obligation. In the section 16 context, the word basically expressed or marks an alternative. The word, therefore, has an element of expansiveness or expansitivity in terms of the powers vested in the Court of Appeal by the section. The above brief exercise in diction is to identify the broadness or largeness of the section. But this is not to say that the section is as  wide as an ocean. No. It has limitations.

 

The Courts have construed or interpreted the section in its broadness or largeness. In Jadesimi v. Okotie-Eboh (1986) 1 NWLR (Pt. 16) 264, Karibi-Whyte, JSC, said at page 274:

 

“Concisely stated, the powers of the Court of Appeal with respect to the determination of appeals before it is by way of re-hearing. The word re-hearing in the context means a hearing on printed records by re-examining the whole evidence both oral and documentary tendered before the trial court and forwarded to it. it means an examination of the case as a whole. The Appeal Court is entitled to evaluate the evidence and may reject conclusions of the trial . Judge from facts which do not follow from the evidence or may be regarded as perverse... Those are very wide' powers which enable the appellate court to exercise all the powers of a court of first instance."

 

In Okoya v. Santili (1990) 2 NWLR (Pt. 130) 172, Agbaje, JSC, said at page 207:

 

"By virtue of Section IS of the Court of Appeal Act, the lower court has all the powers of the trial court, i.e. the powers the Federal High Court has in the matter before it which is now before us on appeal.  So, in my view, the lower court, in order to settle completely and finally the matters in controversy between the parties to this appeal in the matter before the lower court and in order to avoid multiplicity and legal proceedings concerning any of those matters, can grant all such remedies as any of the parties may appear to be entitled to. However in my judgment a party will appear to be entitled to such a remedy only after a claim to it has been plainly made out though not formally claimed and dealt with according to the relevant principles governing' such a claim -if it has been formally made."

 

In Union Bank of Nigeria Limited v. Fajobe Foods and Poultry Farms (1994) 5 NWLR (Pt. 344) 325, it was held that the section gives the Court of Appeal amplitude of power to deal with any case before it on appeal, and the power includes the jurisdiction of a court of first instance; as it is in this case. In Chief Igiehon v. Omorogie (1993) 2 NWLR (Pt. 276) 398, the court held that the section confers wide powers on the court to enable it make orders which the High Court would have made in a matter. See further Chief Ejowhonu v. Edok-Eter Mandilas Limited (1986) 5 NWLR (Pt. 39) 1; Igweshi v. Atu (1993) 6 NWLR (Pt. 300) 484; Chief Uzokwu v. Igwe Ezeonu II (1991) 6 NWLR (Pt. 200) 708; Kokoro-Owo v. Qgunbambi (1993) 3 NWLR (Pt. 313) 627.

 

The Court of Appeal can exercise its section 16 power if only the High Court has jurisdiction in the matter. Accordingly, jurisdiction of the High Court is a precondition for the invocation of the provision of section 16 by the Court of Appeal In the more recent case of Professor Qlutola v. University of Ilorin (2004) 18 NWLR (Pt. 905) 416, this court held that the Court of Appeal can exercise its power under section 16 if only the trial court has jurisdiction in the matter. See N1CON v. Power and Industrial Engineering Co. Ltd. (1990) 1 NWLR (Pt. 129) 697; Faleye v. Otapo (1995) 3 NWLR (Pt. 381) 1.

 

The section commences, in the following terms:

 

"The Court of Appeal may, from time to time make any order necessary for determining the real question in controversy in the appeal."

 

The word "real" in the context means actual. It also means true. The word "question" contextually means the issue involved in the appeal. The word "controversy" means dispute. Accordingly, the real question in controversy means the actual issue in dispute in the appeal. The real issue in the appeal must be clearly donated by the ground or grounds of appeal, since that is the legal basis of the complaint by an appellant. Therefore, before a section 13 power could be invoked for the determination of the real question in controversy in the appeal, that question must be a ground of appeal.

 

In Nneji v. Chief Chukwu (1988) 3 NWLR (Pt. 81) 184, this court held that the general powers conferred on the Court of Appeal by section 16 "includes the power to make any order necessary for determining the real question in controversy in the appeal In interpreting the section, Oputa, JSC, said at page

 

it is thus clear that the prior responsibility of the Court of Appeal (as well as all other courts) is to hear the parties out, not to shut out any party, to hear the merits of the case on appeal and decide according to those merits."   .

 

The real question in controversy in this appeal is whether the removal of the 3rd respondent complied with section 188 of the 1999 Constitution or whether it was in violation or in breach of that section. The grounds of appeal and their particulars before the Court of Appeal clearly donated the real question in controversy. And so the coast was clear for the Court of Appeal to decide on the rsai question in controversy by invoking its section 16 power.

 

What did the Court of Appeal say on the section? Ogebe, JCA, after citing the decision of this court in Attorney-General of Anambra State v. Okeke (2002) 12 NWLR (Pt. 782) 575, said in his judgment at page 487" of the Record:

"Since the facts of the case are not disputed and what is to be decided is purely interpretation of Section 188 of the 19S9 Constitution, this is an appropriate case for us to resolve the entire case in this court under Section 16 of the Court of Appeal Act."

 

Chukwuraa-Eneh, JCA (as he then was) said at page 534:

 

"I think ! should proceed to determine the matter finally, having exhaustively construed the provisions of Section 188 in ail its ramifications. It will be anachronistic to remit the case to the court below at this stage to start de novo in another court. I am aware that under Section 16 of the Court of Appeal Act that in this situation this court has all the powers of the court below in this regard to hear and determine the matter."

 

Ogunbiyi, JCA, added the following on the section at page 551:

 

"However, and despite the error so committed, by the provision of section 16 of the Court of Appeal Act, this court can assume jurisdiction and wear the shoes which the lower court refused to put on. This 1 say in view of the nature of the claim and the reliefs sought for,  which   borders  purely on the  interpretation  of section   138 ' of   the   Constitution   of   the   Federal Republic of Nigeria, 1999."

 

Mika-Ilu, JCA; gave a final helping hand when he said at page 560:

 

"I think considering the wide powers given this court under section 16 of the Court of Appeal Act as well as Order 1 Rule 19(3) arid (4) and Order 3 Rule 23(1) of the Court of Appeal Rules, 2002 this court can proceed and consider the only affidavit and give its judgment thereof."

 

Learned Senior Advocate for the appellants, Mr. Ayanlaja, argued that as there was no material before the trial court upon which the High Court could have determined the case on the merits, there was no basis for the assumption of full jurisdiction by the Court of Appeal under section 16 to take over the proceedings and give judgment which the lower court could have, but refused to give.

 

With respect, I do not agree with learned Senior Advocate. I have itemised in this judgment evidence available in the trial court, which in my view, was enough for the Court of Appeal to invoke its section 16 power. For ease of reference, I can name them here, though at the expense of prolixity. I should take the liberty of this second exercise to add to the list: affidavit of urgency, affidavit in support of the originating summons, the originating summons itself, motion ex-parte for order of interim injunction and affidavit in support, notice of preliminary objection with particular reference to the eight grounds of objection, motion on notice for an order of interlocutory injunction and' affidavit in support; further affidavit in which the respondents deposed to the letter written by the 1st respondent to the Acting Chief Judge in respect of a press release and the totality of the submissions of seamed counsel in the High Court, particularly those of Mr. Lana, learned Attorney-General of Oyo State, when counsel freely made reference to the reliefs sought by the respondents and the affidavit in support, without objecting to their veracity or authenticity.

 

There is still one more aspect when section 16 is invoked and it is to facilitate the speedy administration of justice, it is designed to avoid multiplicity of proceedings and hearings. Instead of sending the case back to the trial Judge for a trial, section 16 empowers the Court of Appeal to assume the jurisdiction of the trial court and determine the real question in controversy. This is to save the much needed time in the administration of justice.

 

The Court of Appeal made reference to this important aspect of time with. due regard to the protection of the res when the court invoked section 16. Ogebe, JCA, said at page 437 of the Record:

 

"It is necessary for us to do so in view of the fact that the res of the dispute, that is who is the  rightful Governor of Oyo State before the tenure ends in May next year should be determined without further delay."

 

Chukwurna-Eneh, JCA (as he then-was), said at page 533:  .

 

"In conclusion, there is clearly an urgent need to dispose of this matter as time is of the essence. The office of Governor in this dispensation is bound to expire by effluxion of time on 29th May, 2007 that is in a couple of months from now that to allow this case to run up and down the hierarchy of the courts will surely defeat the course of justice."

 

I will return to the need to expedite or batter, accelerate the hearing of this matter later in the judgment.

 

I realise that I have quoted profusely from the judgment of the Court of Appeal on section 16 of the Court of Appeal Act. I lack the law- substantive or adjectival to fault the above position ably taken by the Court of Appeal on their section 16 power, which is the counterpart of section 22 of the Supreme Court Act. Four out of the five justices examined the section thoroughly and I cannot see my way clear in disagreeing with them. They are correct, very correct indeed.

 

Learned Senior Advocate seems to make heavy weather of the fact that the High Court did not embark on a determination of the merits of the case and that the Court of Appeal was in error in doing so on appeal. He cited Garuba v. KIC Limited (2005) 5 NWLR (Pt. 917) 160 at 180. At page 180 of the judgment, Oguntade, JSC, said:

 

"The 1st respondent's counsel in its brief rightly in my view submitted that the power of the Court of Appeal under section 16 of the Court of Appeal Act was not at large or unlimited. Counsel submitted that in the exercise of its power under section 16, the court below could only have awarded the same remedies or reliefs which was open or available to the trial court to grant to a party."

 

The position of me law is correctly stated. This court had earlier dealt with the limits of section 16. That was in the case of Attorney-General v. Okeke (2002) 12 NWLR (Pi. 732) 575 where Ayoola, JSC, said at pages 606 and 607:

 

"It is not disputed .that the Court of Appeal has ample powers under Section 16. However, no one will suggest that those powers are unlimited? The question is what are the limits of those powers? Such limits are to be determined case by case and not by a priori general propositions."

 

There can hardly be a statute which vests power or jurisdiction on a court limitlessly, or without limit. Section 16 is not an exception, or better, should not be an exception. It has limits as it must have limits. But as rightly pointed out by Ayoola, JSC, the limits will be determined case by case, that is, in the light of the peculiar facts of each case, in my humble view, this is a good and clear case for the invocation of section 16. I seem to be losing sight of the point made by learned Senior Advocate for the appellants that 1 was trying to pursue. I new remember it. It is the fact that the Court of Appeal invoked section 16 when the learned trial Judge did not embark on a determination of the merits of the case. I think I should call in aid what Karibi-Whyte, JSC, said in Jadesimi.v. Okotie-Eboh (supra) at page 276:

 

"In  the   appeal   before   us  the  trial   Judge   ought, although in the circumstances he need not, to have hear the application for stay of proceedings before dismissing the application.  The Court of Appeal was quite compelling to determine the application even though without hearing in the court below.. There is the jurisdiction and competence to do so."

 

Learned Senior Advocate submitted that the Court of Appeal wrongly misapplied the principles enunciated in Okeke to this case because Ayoola, JSC, held that the power of the Court of Appeal under section 16 is limited. With respect, I do not agree with learned counsel. Ayoola, JSC, as seen from the above held that the limits of section 15 will be determined case by case, it is in that circumstance that the Court of Appeal held and rightly, in my view, that the section was applicable in the appeal before the court. In other words, the Court of Appeal did not see any limits in section 16 to stop the application of the section in the appeal before the court. I do not see anything wrong with that conclusion ' deserving the hammer of counsel.

 

I think I can now drop section 16 for good and take the issue of fair hearing aggressively canvassed by learned Senior Advocate for the appellants. He made a great play of the principle. Section 36 of the 1999 Constitution provides for the fair hearing in the determination of the civil rights and obligations of person. The constitutional provision mainly stems or germinates from two common law principles of natural justice. They are audi alteram partem and nemo index in causa sua. It is the first of the two that is relevant to this appeal. The meaning of the latinism is "hear the other side; hear both In sides. No man should be condemned unheared.  See Black's Law Dictionary, 6th edition, page 131. What the rule or doctrine means is that the parties must be given equal opportunity to present their cases to the court and that no party should be given more opportunity or advantage in the presentation of his case. See generally LPDC v. Fawehinmi (1985) 2 NWLR (Pt. 7) 300; Onwumechiii v. Akint'emi (1985) 3 NWLR (Pt. 13) 504; Garba v. The University of ivlaiduguri (1-986) 1 NWLR (Pt. 16)550.

 

The crux of the complaint on lack of fair hearing is that the appellants were not given the opportunity to file their counter affidavit and contest  the originating summons on its merit. Counsel cited Elabanjo v. Dawodu (supra) and Okafor v. Attorney-General (supra) and three other cases. The two cases cited by learned Senior Advocate involved writ of summons where pleadings play a very important role. The cases are therefore distinguishable from this case which involved affidavit evidence only and by the very nature of originating summons; the facts do not play the same role as an action filed by a writ of summons.

 

Learned Senior Advocate for the appellants give the impression that the issue on non-compliance with section 133 was not before the court and that court ought to have restricted itself to the appeal before it. i think I touched the submission, I should perhaps complete it. Apart from the grounds of appeal, the following issues were formulated by the respondents, as appellants in the Court of Appear.

 

"1.        Having regards to the originating summons filed before the lower court, including the issues for determination and the reliefs sought therein, whether or not the lower court was not in grave error to have declined jurisdiction to hear the plaintiffs case and going ahead to dismiss same. And /or

 

2.         Whether the lower court is precluded from looking into matters relating to non-compliance with the mandatory provision of section. 188(1), (2), (3), (4), (5), (6), (7),(8) and (9) of the Constitution of Federal Republic of Nigeria, 1999 by virtue of section 188 (10) of the same Constitution."

 

In paragraph 11.1 of the brief, the appellants as respondents in the Court of Appeal, asked for the following relief:

 

".....Your Lordships are urged to allow this appeal, set aside the ruling of Ige, J, dated 28th December, 2005 and considering the fact that this is " a purely constitutional matter calling strictly for the interpretation of section 183 of the Constitution, give judgment for the plaintiffs, or, in the alternative, remit the case to another Judge of the Oyo State High court to hear and determine it on an accelerated basis on the grounds either canvassed in this Brief, including but not limited to one fact that.

 

The brief thereafter enumerated eleven grounds for the Court of Appeal to grant the relief.

 

Can any relief seeking court process be clearer than the above? Can this court come to the conclusion in the light of the above, that the main issue of non-compliance with section 188 of the Constitution was not before the Court of Appeal? If it was not there, where was it? 1 do not think the appellants can answer the above questions correctly because the point they made in paragraph 6.8 of their brief is very wrong. and ! so hold. The case of A.W. Nigeria Limited v. Superrmaritime Nig. Ltd (2005) 6 NWLR (Pt 922) 563 cited by learned Senior Advocate is, with the greatest respect, most relevant.

 

What is the complaint about fair hearing in the Court of Appeal? The appellants as defendants/respondents in the Court of Appeal filed a comprehensive brief of fifteen pages under the signature of learned Senior Advocate for the appellants. In the, brief, the following single issue was formulated for determination:

 

"Whether the court below was right in holding that the jurisdiction of the Court has been ousted by section 188(10) of the Constitution of the Federal Republic of Nigeria."

 

In the brief, counsel raised a Respondents' Notice to uphold the ruling of the .learned trial Judge on four additional grounds apart from that on which the ruling was based. "

 

Although the brief purposely and cunningly restricted the arguments to the issue of jurisdiction, .the brief of the appellants in the Court of Appeal, who are now the respondents here, covered the merits of the case. And that leads me to an important question. What is the purpose of a respondents' brief in the Court of Appeal? Order 6 rule 4(2) of the Court of Appeal Rules reads:

 

"The respondent's brief shall answer all material points of substance contained in the appellant's brief and contain all points raised therein which the .respondent wishes to concede as well as reasons why the appeal ought to be dismissed. It shall, mutatis mutandis, also conform with rule 3(1), (2), (3), (4) and (5) of this Order."

 

See Oba Arornolaran v. Oladele (1990) 7 NWLR (Pt. 162) 359; Ajomale v. Yaduat (No. 2) (1991) 5 NWLR (Pt. 191) 266; Weide and Co (Nig) Ltd, v. Weide and Co. Hamburg (1992) 6 NWLR (Pt. 249) 627; Alade v. Akande (1994) 5 NWLR (Pt. 345) 418; Okeke vs. Attorney-General Anambra State (1997) 9 NWLR (Pt. 519) 123; Yahaya v. Oparinde (1997) 10 NWLR (Pt 523) 126.

 

If the appellants decided not to respond to the brief of the respondents in the Court of Appeal, they cannot blame the Court of Appeal for their decision. This is because they had all the time in the world to respond to the case presented by the respondents who were the appellants in the Court of Appeal. They were running away (I will not say trickishingly shying away) from the truth of the matter and knocking at the corridors which were peripheral. A party who decides to present his case miserly, cunningly, or by deliberate instalments to win in the litigation has himself to blame when the strategy backfires, I will return to this later.

 

Learned Senior Advocate for the 1st and 2nd respondents cited the case of Oruqbo v. Una (supra), with particular reference to what I said at page 211 and 212. I should permit myself to quote the passage:

 

"It has become a fashion for litigants to resort to their right to fair hearing on appeal as if it is a magic wand to cure all their inadequacies at the trial court. But it is not so and it cannot be so. The fair hearing constitutional provision is designed for both parties in the litigation and the court as the umpire, so to say, has a legal duty to apply it in the litigation, in the interest of fair play and justice. The courts must not give a burden to the provision which it cannot carry or shoulder. I see that in this appeal. Fair hearing is not a cut-and-dry principle which parties in the abstract always apply to their comfort and convenience. It is a principle which is based and must be based on the facts of the case before the court. Only the facts of the case can influence and determine the application or applicability of the principle. The principle of fair hearing is helpless or completely dead outside the facts of the case."

 

Like Orugbo, I see such situation in this appeal. And it is sad that it is so. A party may enjoy in the euphoria of a cunning or  smart conduct in the litigation. The truth is that such conduct may not last the length of the litigation because at the end of the day, and here I am restricting myself to the end of the litigation day, the court may find out the cunning and smart conduct. That is what has happened in this case.

 

I said it in the past and I will say it here again that the duty of the court, trial and appellate, is to create the atmosphere or environment for a fair hearing of a case but it is not the duty of the court to make sure that a party takes' advantage of the atmosphere or environment by involving himself in the fair hearing of the case. A party who refuses or fails to take advantage of the fair hearing process created by the court call not turn around to accuse the court of denying him fair hearing. This is not fair to the court, and counsel must not instigate his client to accuse the court of denying him fair hearing. After all, there is the adage that the best the owner of the horse can do is to take it to the water. He cannot force it to drink the water. The horse has to do that itself and by the act of sipping. If the horse is unwilling to sip, that ends the matter: The horse will not blame anybody for death arising from lack of water or hydrate.

 

Counsel for the plaintiffs in the High Court, Mr. Adeniyi Akintola, SAN, urged the court to follow the procedure suggested by the Court of Appeal in Senate President v. Nzeribe (2004) 9 NWLR. (Pt. 878) 251. The Court of Appeal held in the case that the decision of a court on whether or not to hear parties on an objection to its jurisdiction over a matter separate from a hearing of the merits  of the suit lies within the discretion of the court. In a case brought by originating summons where the whole of the evidence required to determine the merits of the case is in the form of affidavit evidence already filed before the court, it may be prudent to hear together the arguments as to jurisdiction and the merits of the case. Where, however, it is a case involving the taking of evidence of several witnesses as to the merits of the case, it is wise to first separately dispose of the issue of jurisdiction.

 

Mr. Latinwo submitted in the High Court that the implication of raising a preliminary objection is that all the facts deposed to by the applicant shall be considered. If the originating summons is to be taken, the defendants must file a counter affidavit  and where no counter- affidavit has been filed it is only the preliminary objection that will be taken, counsel submitted.

 

The learned trial Judge in his ruling at page 39 of the Record said:

 

"Having listened to the arguments of learned counsel on both sides, I am of the view that the facts and circumstances of the Nzeribe's case relied upon by Mr. Akintola are clearly distinguishable from the present case. The originating summons in Nzeribe's case was on determination as to membership whereas all the issues for determination in the originating summons in this case are basically on points .of law in which no affidavit evidence is required. In the circumstances therefore, it is my view that the proper thing to do in the circumstance is to take the Notice of preliminary objection first because its success or failure will determine the fate of the originating summons."

 

The decision of the Court of Appeal in Senate President v. Nzeribe (supra), given by Oduyemi, JCA and Oguntade JCA (as he then was), in my humble view, is very brilliant and sound and I expected the learned trial Judge to follow it. The dichotomy is well taken procedurally and it was most relevant to this case which was also commenced by originating summons. Because the learned trial Judge refused to follow the decision in Senate President v. Nzeribe (supra) with the help of Mr. Latinwo, counsel for the defendants, the golden opportunity offered by Mr. Akintoia was lost and the victim of it all is where we are now and what we are seeing. The point I am struggling to make as it affects or relates to fair hearing is that the fair hearing was dropped at the footsteps of the appellants by Mr. Akintola in the case of Senate President v. Nzeribe (supra), but they did not take advantage of it, most probably because they had no valid defence by way of a counter affidavit. Can such a party really complain of breach or lack of fair hearing? And what is more, the apparent distinction made by the learned trial Judge material:/ vindicated the decision of the Court of Appeal as it related to originating summons as a court process which is basically on points of law. The Court of Appeal held in the case (if I may repeat for emphasis) that a matter brought by originating summons where the evidence required is in the form of affidavit, it may be prudent to hear together the arguments as to jurisdiction and the merits of the case. I had earlier pointed out that the cases cited by learned Senior Advocate on the need to hear the preliminary objection first were inapposite as they involved writ of summons.

 

It should be noted that the Court of Appeal conceded that much in Senate President v. Nzeribe, that is, in cases filed by writ of summons. Although the decision of Senate President v. Nzeribe is merely of persuasive authority, I will certainly persuade myself to follow it, if it was cited to us in the Supreme Court. Of course, I am not surprised that the appellants as defendants in the High Court did not urge that court to follow it. After all, delay in this matter was the golden fish in their aquarium. I take, the issue of delay now.

 

The appellants dearly had their heads, minds and eyes on the 29th May, 2007 and they assiduously worked towards that day when the res in this matter will be wiped-out. That, to the appellants, was the red-letter day and they needed that day to come very badly. On the contrary, the respondents and all the three courts, that is, the High Court, the Court of Appeal and this court, were conscious of the fact that this litigation was very much liable to time and should be completed within the time frame, looking at 29th May, 2007 as the important and almighty day. And so, I see two situations which were diametrically opposed, one to delay the proceedings and the other to expedite the proceedings, I do not think 1 have made myself clear. I should perhaps do so by taking specific events sequential. First on the side of the appellants to slow down the proceedings:

 

1.         I realise that the appellants did not enter appearance in this matter. Learned Senior Advocate for the appellant even said that in the brief. I have the impression that such was an intentional act to delay the proceedings.

 

2.         Preliminary objection on jurisdiction was filed without formally entering appearance and not taking advantage of the decision of the Court of Appeal in Senate President v. Nzeribe. Instead of following that decision, they relied on cases commenced by writ of summons at page 31 of their brief.

 

3.         In an application for abridgement of time within which the plaintiffs/appellants in the Court of Appeal can file their brief, the defendants/respondents in that court, who are the appellants in this- court, insisted on their statutory 45 days, which Fabiyi, JCA, granted them. In a case where time is the essence, I expected the appellants to bend backwards to file their brief well under 45 days. After all, there is nothing sacrosanct about 45 days which a party can waive.

 

4.         By a motion on "notice dated 8th February 2006, the appellants as respondents in the Court of Appeal prayed for an order striking out the Notice of Appeal on grounds of incompetence. In his Ruling of 2nd March, 2006, Fabiyi, JCA, held that the appeal is competent? He said at page 193 of the Record:

 

"In short, the appeal is competent and this court is imbued with requisite jurisdiction to deal with it. The application challenging competence of the appeal is hereby refused. It is accordingly dismissed."

 

In her contribution, Augie, JCA, said at page' 198 of the Record:

 

"In this case, the Appellants filed a simple application to abridge time within which to file- briefs of argument, and one day's journey has taken us weeks to arrive at our destination because of this flimsy and nonsensical objection filed-by the 2nd-13th Respondents, which has  only   succeeded   in  wasting  the   court's  time   and resources and no more."

 

5.         On 9th May, 2005, the appellants as applicants filed a motion in the .Court of Appeal for an order staying further proceedings in the Court of Appeal in respect of the respondents' appeals, pending the hearing and determination of the appellants' appeal to the Supreme Court.

 

6.         On the same day of 9th May, 2005 the appellants as applicants filed another. motion for an order striking out the brief of argument on behalf of the interested party/appellant, who is Senator Ladoja.

 

7.         On 5th June, 2005, the appellants as applicants in the Court of Appeal filed a notice of discontinuance/withdrawal of their motion for stay of proceedings filed on 9th May, 2006.

 

8.         On the same day of 5th June, 2005, the appellants filed a motion in the Supreme Court for an order staying further proceedings in the Court of Appeal in respect of the respondents' appeals pending the hearing and determination of the appellants' appeal to the Supreme Court.

 

9.         In a motion filed on 13th June, 2008, at the Court of Appeal, the applicants asked for an order staying further proceedings in the Court of Appeal 'in Appeal No. CA/1/21/2006 pending the hearing and determination of the Applicants' motion for stay of proceedings pending at the Supreme Court in Appeal No. SC/112/05 and SC/116/05 involving ail the parties in the case.

 

Abdullahi, PCA, was not quite happy with the plethora of motions. He said at page 446 of the Record:

 

"The Applicants for reasons best known to them discontinued and withdrew the application by notice dated 3/6/06... I am afraid this classification has in my view added some smokescreen to the real intention of this application before us..."

 

The Court of Appeal granted the motion not so much for the merit but more because the court was not prepared to rush the matter, "being a constitutional matter on such weighty issues". I entirely agree with Abdullahi, PCA.

 

10.       On 5th July, 2006 the appellants as applicants argued their motion for further stay of proceedings, which this court refused. Katsina-Alu, JSC, in his short ruling said:

 

"I         have carefully examined the motion for further stay of proceedings and have considered the submissions of learned Senior Counsel for the Appellants.Applicants and do not see any way in granting it in the light of the decided cases."

 

And so, the courts were treated to a cocktail or harvest of motions and motions galore, basically aimed at slowing down the proceedings and frustrating the hearing of the merits of the matter. Can such a party complain about fair hearing when it did not chow or extend fairness to the adverse party and the proceedings? I will return to this.

 

On the contrary, the courts were clearly on the side of expediting the case so that it could be heard before the 29th May, 2007. Learned trial Judge was on the side of the speedy hearing of the matter, though he took the wrong procedure.

 

The appeal was argued in the Court of Appeal on 26th September, 2006 and judgement was delivered on 1st November, 2005. Ogebe, JCA, was conscious of the time element or time factor in the case and that was one reason why he correctly invoked section 16 of the Court of Appeal Act and in the light of the evidence before the court.

 

On our part, the appeal came before us on 21st November, 2006. This court ordered the filing of briefs and adjourned it for hearing on 7th December, 2006. The Chief Justice of Nigeria, Hon Justice Belgore, presided. He abridged the time for parties to file their briefs, which normally could have taken the case to February, 2007 or so.

 

Came 7th December, 2006, the appeal was heard and judgment was delivered on the same day. This court did so because of the urgency of the matter a practice of the court.

 

It is clear from the above that while the appellants worked towards the delay of the case because that was convenient to them, the courts and the respondents worked in the opposite direction. Although the judicial process is slow most of the time, almost taking a snail's pace, this is one case, which the judiciary must take the fast lane in the relay race and has in fact taken the fast lane. This explains the remarkably short journey of this case from the High Court to this court; a journey of about one year or so. I commend the Court of Appeal for the speedy hearing of the appeal. The appeal was filed in that court in' February, 2006 and despite the plethora of motions, the Court of Appeal was able to deliver judgment on 1st November, 2006. This is most commendable, and I commend the court.

 

The appellants were so miserly in the way they approached the court in this matter. They kept so much of their defence (if they had any defence at all) in their bosom and cleverly making efforts to out-smart the respondents. All their strategy was to delay the proceedings till the 29th May, 2007 to make the judgment of this court barren or useless, if in favour of the respondents. What type of cleverness is that? What type of smartness is that? What type of trick is that? I am tempted to add "prank" to the list. I will not yield to the temptation.

 

Litigation is not a game of cleverness, smartness or tricks. It is not a hide .and seek game where one of the parties in all cleverness and smartness takes ambush and waits with all acrobatic dexterity for the opponent to fall into a trap and get him thoroughly harmed or destroyed. Litigation is not a game of chess where one of the parties attempts to trap the opponent's king to obtain victory. On the contrary, litigation has an inbuilt dispute settling mechanism where the parties come out in the open to make their cases frankly and not cunningly or craftily.

 

A party who seeks fair hearing from the court must also be fair in the litigation to the adverse party and to the proceedings. A party who intentionally files motions to delay the proceedings is not fair to the adverse party and the proceedings. He should not in any way annoy the proceedings. He has a duty to respond to the procedural needs or requirements of the litigation without applying any baits because the adverse party is a human being; not a fish. He must come out and embrace the litigation with all honesty and sincerity of purpose. Where he decides to plant mines in the judicial process to obtain victory in the event of a possible slip on the part of the court or the adverse party, such a party will not be in a position to ask for the fair hearing of a case, because he has not shown raciness in the process itself. The principles of equity and fairplay will certainly deny him of the fair hearing principle that he refused to surrender in the judicial process. Although fair hearing is a constitutional guarantee, it has some resonance in the principles of equity and fairplay. Can the appellants really ask for what they were unable to supply in the hearing of this case? 1 ask again, can they, this time rhetorically?

 

Mr. Anyanlaja contended that the appellants did not wait to respond to the affidavit in support because it is inadmissible evidence. Now that 1 have held that the affidavit evidence is admissible, the appellants are boxed to and against the wall. There is no route of or for escape, all their struggles notwithstanding. Why should the appellants now ask that the case be remitted to the High Court to enable them file a counter affidavit? Do they really, need to file a counter-affidavit to an inadmissible affidavit? They seem to blow hot and cold with the same breath. Can they really blow hot and cold with the same breath?

 

What really did the appellants want to present and prove before the High Court that was not before the Court of Appeal? Why were they hoarding or hiding it? Did the appellants genuinely believe that they had a good defence to the originating summons that they wanted to present before the High Court? What is that evidence? Chief Olanipekun, SAN, asked some pertinent questions at rage 31 paragraph 4.17 of his brief:

 

"Appellants are through this appeal, praying this court  to send the case back to the trial court to allow them give evidence.   Some pertinent questions arise, that is, what type of evidence do they want to raise or give? Is it evidence of two-thirds of 32 members of the Legislative House? Or is it in respect of sitting or conducting proceedings at D'Rovans Hotel, -Ring Road, Ibadan? Or is it evidence of the locus standi of the plaintiffs? Or, finally, is it evidence in respect of the issues contained in their Notice to Contend that the judgment of the trial High Court be varied, which, as demonstrated above, has been abandoned at the lower court?   Surely, what Appellants want to do is not aimed at justice but to further frustrate the speedy determination of the case, if peradventure any such order  is  made  so  as to  enable them  file further questionable preliminary    objections and  plant additional    land'   mines    to    obstruct    a    speedy administration of justice."  

 

I entirely agree with learned Senior Advocate.   There is really nothing that the appellants will raise in the High Court by way of defence, it is ail an orchestrated game plan to further delay the proceedings and frustrate the course of justice. Will this court be a party to such a game plan?  No.  Not at all. This is a court of both law and equity.

 

And that takes, me to the grounds of objection in respect of the preliminary objection on jurisdiction. The grounds of objection cleverly avoided the number of members of the House of Assembly that purportedly removed the 3rd respondent, instead of dealing with that in relation to section 188(8), the appellants raised sections 101 and 102 of the Constitution which are not really germane to the main issue.

 

Section 101 vests in the House of Assembly the power to regulate its own procedure. By section 102, the proceedings of the House cannot be invalidate by the fact that there is a vacancy in its membership. This seems to be an answer .in the appellants' way to the 18 persons who purportedly removed the 3rd respondent. The law is elementary that where the Constitution or a statute contains a general provision as well as a specific provision, the specific provision will prevail over the genera! provision, in this -vice, it is my view that the specific provision of section' 188(9) will prevail over the general provision of section 102.

 

Accordingly, the removal of the 3rd respondent is governed by section 188(9) and net section 102 of the Constitution.

 

While a Legislature is competent to suspend particular rule or rules to enable it deal with a situation in the overall interest of the common good of the body and the persons it represents, this must be  done bona fide and not male fide. A bona fide action will vindicate the totality of good parliamentary action, practice and conduct. A male fide action will violate parliamentary action, practice and conduct. Whether an action is bona fide or male fide is a question of fact to be deduced from the factual milieu giving rise to the decision. I have no difficulty in coming to the conclusion that the suspension of the rules of the House of Assembly and the Speaker of the House in a hotel apartment were clearly male fide as the act was designed to carry out illegal and unconstitutional acts which were ultra vires section 188 of the Constitution.

 

The appellants tried as much as they could to avoid the number of members of the House that purportedly removed, the 3rd respondent. That number is 18. They avoided it like a plague. They danced around it in their grounds of preliminary objection on jurisdiction. They tried to dance around it in the submission of Mr. Lana, learned Attorney-General for the defendants in the High Court, they did not know when the submission of counsel exposed them at page 40 of the Record:

 

"Mr. Lana - refers to paragraph 9 of that affidavit filed in support. We believe 14 out of 32 who sued are the minority and therefore the use of the name of House of Assembly is a misconception and must therefore be struck out."

 

The point I want to make will be clear when I reproduce paragraph 9 referred to by Mr. Lana. The paragraph reads:

 

"That the Defendants further on 22nd December, 2005 without following the laid down rules, regulations and. the Constitution of the Federal Republic of Nigeria purportedly passed motion calling for the investigation of the alleged allegation of misconduct against Senator. Rasheed Adewolu Ladoja, the Governor of Oyo State without the concurrent consent approval of the two-thirds majority of the 32 (thirty-two) members House of Assembly,"

 

I want to do a simple arithmetic, though I am not a friend of the subject... It is this: 32 minus 14 or 32 take away 14 gives the figure 18. By the showing of Mr. Lana and by his making specific reference to paragraph 9 of the affidavit in support, it is clear that 18 members did the bad job of removing the 3rd respondent. And they are the 18 appellants. Is that two-thirds of 32 members? Can the appellants answer that question comfortably? I do not think the appellants have any valid defence to the merits of the matter and that is the truth, and society says truth is bitter. Why is truth the correct thing is said to be bitter? I am not there. I just thought aloud. All they wanted was to continue with their harvest or cocktail of motions aimed at frustrating the matter from being heard. This court saw that gimmick and so delivered judgment on 7th December, 2006. What we did is clearly within the brackets of the law and our rules of court and it is a long standing practice. It did not spring from the blues for this appeal.

 

Learned Senior Advocate for the 1st and 2nd respondents raised issue estoppel. It is necessary to take it. It was the argument of learned Senior Advocate that appellants are estopped from requesting to remit the case to the High Court for taking of evidence when that court held that the filing of affidavits was not required or necessary. He relied on what the learned trial Judge said when he reacted to the submission of counsel for the appellants in the case of Senate President v. Nzeribe (supra).

 

Perhaps, I should repeat the dictum for ease of reference though at the expense of prolixity:

 

"The originating summons in Nzeribe's case was on determination  as to  membership, whereas  ail the issues for determination in the originating summons in this case are basically on points of law in which no affidavit evidence is required."

 

Learned Senior Advocate made two points. The first is that there is. no appeal on the above finding of the learned trial Judge. The second, in his view, apparently arising from the first one is that the point now constitutes issue estoppel. While I agree with learned Senior Advocate on the first, I am not with him in the second, issue estoppel cannot be invoked in the same case but in a different case. It is only in that circumstance that the first case, in appropriate circumstances, act as issue estoppel against the second one. The appropriate circumstances are: (1) That the same question was decided in earlier proceedings. (2) That judicial decision said to create the estoppel was final. (3) That the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies. See Adebayo v. Babalola (1995) 7 NWLR (Pt. 408) 383. Issue estoppel cannot apply on appeal in the same case. This is because the nature of the appellate process, involves one single case not two cases. Issue estoppel is built in one  against another case where the above three ingredients are present. With respect, counsel got it wrong. It could be some other estoppel but certainly not issue estoppel. I cannot assist him, the adversary system that we operate and my position as the unbiased umpire; although I seem to know the estoppel.

 

But he has got the first point right, it is in respect of appeal. He submitted that as no appeal was lodged to the Court of Appeal on the conclusive finding of the learned trial Judge, it is binding on the appellants. I think he is right here. Where a party is not satisfied with the finding of a court, of law other than the Supreme Court, he can only do so by way of appeal. If the judgment is in favour of the party, but he is not comfortable with a particular finding, his remedy is to cross appeal. If he does not cross appeal, the presumption is that he has no complaint about the entire judgment. This is because the only way for a party to express his rejection of a judgment of a lower court to an appellate court is by way of appeal.

 

In view of the fact that the appellants did not cross appeal on the finding of the learned trial Judge that the case involved basically points of law in which no affidavit evidence is required, the appellants cannot now be heard to urge this court to remit the case to the trial court to enable them file counter affidavit. The trial court which held that the case does not need affidavit evidence wilt be functus officio to entertain the action by receiving counter affidavit from the appellants, evidence he has clearly ruled is not required. A Judge is a man of consistency and the learned trial Judge, being a man of consistency, will never like to contradict himself in this way. Even if he is willing to do so, our adjectival law will stop him from doing so.

 

One very flabbergasting and curious aspect of this matter is that the appellants did not say in the High Court, the Court of Appeal and this court that the affidavit in support of the originating summons told a lie or lies or contained a lie or lies. All they did was to attack some paragraphs in the light of the Evidence Act. The case, I think, involved at least two Senior Advocates that I very much respect for their learning and knowledge. None of them challenged the veracity and or authenticity of the averments in support of the originating summons either orally or by way of court process. All they said was that time was still in favour of their clients and that they were waiting to file counter affidavit. They were waiting for the doomsday that did not 'come but their clients have some doom now without bargaining for it.

 

It is the nature of the human being with the instinctive human automation to react quickly or spontaneously to a lie told against him. He will not or never wait for a moment to do so. That is the habit of most human beings, including me. And what is more, if my little experience oh 'the bench is anything to write home about, I should say that the filing of counter affidavit normally follows an affidavit in support as a matter of course or routine in the judicial process as the night follows the day and vice versa. Parties do not keep their counter evidence to themselves, nursing them for the rainy day; which may not come as in this case now. The long and short of the counter affidavit episode is that the appellants had no evidence to silence the affidavit in support and so decided to play the trick of the tortoise and the hare, developing, or should I say melting to the moral kindergarten story of "slow and steady wins the race". Unfortunately for the appellants, the slowness on their part made them lose the race. I have held the view above that the issue of remitting the case to the High court is not available to the appellants in the light of the clear circumstances of this case.

 

In the most unlikely event that am wrong, I should go further to examine whether this court will be doing substantial justice by an order of remitting the case to me High Court for further proceedings. Justice is not only one loud and large term, it is a most important expression in the judicial system and the administration of justice, and-here I emphasise justice in the context. Justice in its simplistic content means quality of being just; fairplay and fairness. It has an element of quality of egalitarianism in its functional context.

 

Lord Denning, a very fine Judge, in his very well written book, Family Story, said at page 174:

 

"My root belief is that the proper role of a judge is to do justice between the parties before him. If there is any rule of law which impairs the doing of justice, then it is the province of the judge to do all he legitimately can to avoid that rule or even to change it so as to do justice in the instant case before him. He need not wait for the legislature to intervene because that can never be of any help in the instant case. I would emphasise however, the word legitimately the judge himself subject to the law and must abide by it."

 

For quite some time now, this court has moved from the regime or domain of doing technical justice to the regime or domain of doing substantial justice. This is in keeping with the jurisprudence of the wider world and its legal system. The need for courts of law to do substantial justice becomes more imperative when considering the provisions of the Constitution, the fons et origo of any democracy.

 

In Attorney-General of Bendel State v. Attorney-General of the Federation (1982)3 NCLR 1, Idigbe, JSC, said at page 64:

 

"I incline to the view that in suits calling for decisions on issues relating to the Constitution this court ought not unduly to allow technicalities to deter it from making vital pronouncements."

 

Nnamani, JSC, added at page 109:

 

“If the plaintiff is entitled to be heard by this court how he comes to be heard may be immaterial. I do not agree that in a complex suit such as this touching on matters which lie at the very foundation of the stability of this country this court should be unduly bogged down by technicalities. This court has in many recent decisions, while affirming the importance .of observance of Rules of Court, stated that it is more concerned with doing substantial justice between the parties."

 

The statement by Nnamani, JSC, is germane to this case when the learned Justice mentioned the stability of the country. The plethora of removal proceedings in respect of Governors is not only frightening but is capable of affecting the stability of Nigeria. It is almost like a child's play as some State Legislatures indulge in it with all the ease and comfort like the way the English man sips his coffee on his breakfast table. Unless the situation is arrested, Nigerians will wake up one morning and look for where their country is. That should worry every good Nigerian. It does not only worry me.; the idea frightens me so much.

 

With the above parenthesis, I take the case of Famfa Oil Limited v. Attorney-General of the Federation (2003) 18 NWLR (Pt. 852) 453 where Iguh, JSC, said at pages 471 and 472:

 

"I should perhaps mention in the above regard that this court for quite some time now has consistently shifted away from the narrow technical approach to justice which characterised some earlier decisions of courts on various matters and now pursues, instead, the course of substantial justice. Accordingly, courts of law should not be unduly tied down by technicalities, particularly where no miscarriage of justice would be occasioned. Justice can only be done in substance and not by impeding it with mere technical procedural irregularities that occasion no miscarriage of justice."

 

I should say that in the interest of justice and the need to do substantial .justice that I am invoking now, apparently in favour of the respondents, was earlier invoked In favour of the appellants-.  In the hearing of the appeal this court the interest of justice, allowed the appellants to move their motion filed on 4th December, 2006, three days to the date of hearing the appeal, asking for leave to

appeal against the decision of the Court of Appeal.  In the motion, the appellants sought to repair, if I may use that expression unguardedly, the incompetent grounds of appeal arising from not seeking leave to appeal on mixed law and facts. Certainly, it is not the practice of this court to accommodate an application for extension of time to appeal on the day an appeal is set down for hearing.

 

In the interest of justice, this court brought some pressure to bear on counsel for the respondents to concede to the most abnormal motion to enable the court hear the appeal. Certainly, the motion in normal circumstances ought to have failed because it had all the vices of overreaching the respondents who had earlier meritoriously attacked most of the grounds of appeal. I think only one ground could have survived the objection and that was most likely to have ended the appeal. "

 

It is good law that justice is not only for the plaintiff. It is not also only for the defendant. It is for both parties. I do not see why the appellants should complain if this court in the interest of doing substantial justice and in consideration of the time element, and the facts before the trial Judge, hold that the Court of Appeal was right in invoking section 16 of the Court of Appeal Act. The Englishman says that what is good for the goose is also good for the gander. I do not think I know whom the goose is and who the gander is. Perhaps the appellants are the goose and the respondents the gander.

 

Good law, in my opinion, must have a human face. Good law should not patronise technicalities that will give rise or room to undeserved victories in litigation. Good law should discourage technicalities such as the one canvassed by the learned Senior Advocate for the appellants that the case should be remitted to the trial Judge for trial on the so-called merits of the case, when I know that the matter will never be concluded before the 29th May, 2007 when the office of. Governor will be filled. Good law will not encourage a situation where a party in litigation will only return home with pyrrhic victory which in reality is no victory at all. After ail, it is good law that courts of law do not give 'orders in vain and in the context of this case, an order given after 29th May, 2007 restoring the 3rd respondent to his office of Governor, will certainly be in vain. I will never be a party to such a tall order which has teeth but cannot bite. Teeth that cannot bite are useless to their owner.

 

It is not advisable in litigation for parties to put all their eggs in one and the same basket, particularly in a situation where the procedure to be adopted is not neat, but diverse and versatile, such as the procedure in this case. This is because if the basket breast, all the eggs are broken. This is what the appellants did. All their concentration was to play on safely in the litigation towards the 29th May, 2007 date so that they can go free with their acts of unconstitutionally or constitutionally. And so they refused to enter appearance. They also refused to file a counter affidavit and they assured themselves that they had so much time to file the processes. They beat their chests in the Nigerian way in approval of their strategy with scene heroic mind. They did not accept the genuine offer of the decision in Senate President v. Nzeribe (supra) by Mr. Akintola. Unfortunately for them, the whole basket has broken and they find themselves in trouble. They will blame themselves and not this court.

 

The statement that the law is an ass is not a mere cliché or aphorism but has deep rooted application to the practicalities of Jaw in society. The nature of the ass in law requires that in certain cases, parties should not adopt a highly conservative, ossified and closed-door position but should adopt a versatile position in anticipation of the not too certain destination of the ass.

 

If I were in their position, that is, in the position of the appellants, I should have entered appearance in protest, filed the counter affidavit, also in protest before raising the preliminary objection on jurisdiction. One other way, if they really had the facts to contradict the affidavit in support, was to force a dispute on the litigation and if they succeeded in that, the trial Judge could not have got the alternative than to convert the originating summons to a writ of summons and order pleadings. That should have enabled them to achieve what they wanted to achieve. 1 am a Judge; net a legal adviser to the appellants. I do not want to go beyond my job.

 

I have said so much in this judgment, it is perhaps neater and tidier if I say by way of recapitulation as follows:

 

1.         The provisions of section 188(1) to (9) must be strictly complied with before a Governor or Deputy Governor can be constitutionally removed from office.

 

2.         It is only when the provisions of section 188(1) to (9) are complied with that the ouster clause of section 188(10) can be invoked in favour of the House and to the disadvantage of me removed Governor or Deputy Governor.

 

3.         It is only when section 188(1) to (9) is complied with that the jurisdiction of the courts is constitutionally ousted.

 

4.         The provision of section 188(11), though generic and vague in its wording, cannot be extended beyond its onerously generic and vague nature to include misconduct which are not gross.

 

5.         The specific act of misconduct. I have outlined in this judgment cannot be and should not be taken as exhaustive but should be taken as some acts of misconduct This is not however a license for the Legislature to open a Pandora box of vendetta and rake up misconducts that are not gross. .

 

6.         Any business of the House should be held and conducted in parliamentary hours which are set out in the Rules governing the sitting of the House. On no account should business of the House be held in unparliamentary hours. Such business is unconstitutional and the courts will declare it null and void ab initio.

 

7.         Every person involved in the removal exercise must be, like Caesar's wife, above board. They are the Speaker, the members of the House, of Assembly, the Chief Judge and members of the Investigation Panel.

 

Are we still in the learning process? What type of lessons will the appellants still need on section 188? About four months to the end of a two-term of four years each making a total of eight years, or even a single, term of four years, legislators cannot express ignorance of the provisions of section 188. They cannot say that they are still earning the provision or they need more tutorials on the section. Unfortunately, no teacher will be available to them. A worst student of history can be a master of the-subject after a period of four to eight years, if he still remains a novice of the subject after such a period, then history will not forgive him in its judgment.

 

The Legislature is the custodian of a country's Constitution in the same way that the Executive is the custodian of the policy of Government and its execution, and also in the same way that the Judiciary is the custodian of the construction or interpretation of the Constitution. One major role of a custodian is to keep under lock and key the property under him so that it is not desecrated or abused. The Legislature is expected to pet the provisions of the Constitution like the way the mother pets her day-old baby. The Legislature is expected to abide by the provisions of the Constitution like the way the clergyman abides by the Bible and the Iman abides by the Koran. And so, when the Legislature, the custodian, is responsible for the desecration and abuse of the provisions of the Constitution in terms of patent violation and breach, society and its people are the victims and the sufferers; and in this particular context, the Oyo State society and the respondents, particularly the 3rd respondent. Fortunately, society and its people are not totally helpless as the Judiciary, in the-performance of its judicial functions under section 6 of the Constitution, is alive to check acts of violation, breach and indiscretions on the part of the Legislature. That is what I have done in this judgment. I do hope that this judgment will remove the apparent wolf in the appellants as members of the House of Assembly of Oyo State, I am done.

 

It Is for the above reasons that I dismissed the appeal on 7th December, 2005. For the avoidance of doubt and for completeness, I confirm the following reliefs granted to the respondents by the Court of Appeal:

 

1.         A declaration that the purported Notice of allegation of misconduct made against His Excellency, Senator Rasheed Adewolu Ladoja, the Governor of Oyo State as a preparatory step to his removal by the defendants is unconstitutional, null and void, and of no effect whatsoever, having regard to the provisions of 3.188(1) and (2) of the 1999 Constitution of the Federal Republic of Nigeria.

 

2.         A declaration that the purported Notice of allegation of misconduct made by the defendants against Senator Rasheed Adewolu Ladoja, the Governor of Oyo State not having been received and or served on each of the 32 (thirty two) members of the Oyo State House of Assembly as envisaged by S.188(2) of the 1999 Constitution of the Federal Republic of Nigeria is unconstitutional, null and void and of no effect whatsoever.

 

3.         A declaration that the motion passed .by the defendants on 22nd December, 2005 calling for the investigation of the allegation of misconduct against His Excellency, Senator Rasheed Adewolu Ladoja, the Governor of Oyo State, is in contravention of S. 188(3) and (4) of the 1999 Constitution of the Federal Republic of Nigeria, and to that extent, the. said motion is unconstitutional, null, void and of no effect whatsoever.

 

4.         A. declaration that no valid Notice of allegation of misconduct has been issued by the defendants, same-not having been passed through the Clerk of the Oyo State House of Assembly nor received formally by the Honourable Speaker of the Oyo State House of Assembly, Hon. Adeolu Adeleke in accordance with the provisions of 8.188(2} Para, (a) and (b) and S. 188(3) of the Constitution of the Federal Republic of Nigeria.

 

5.         A declaration that the purported suspension of the Draft Rules of the Oyo State House of Assembly 1999, by the defendants on 13th December, 2005 preparatory to the issuance of the Notice of allegation of misconduct against His Excellency, Senator Rasheed Adewolu Ladoja, the Governor of Oyo State in the absence of the Honourable Speaker of the Oyo State House of Assembly, is unconstitutional, invalid and contrary-to the provisions of SS. 101 and 102 of the 1999 Constitution and Rules 23(1) - (4) of the Draft Rules of Oyo State House of Assembly.

 

6.         A declaration that the purported sitting of the defendants at the D'Rovans Hotel Ring Road Ibadan, where the purported Notice of allegation of misconduct was issued, and which is outside the designated official venue of the Oyo State House of Assembly is unconstitutional, invalid, null and void.

 

7.         A declaration that the purported service of the Notice of allegation of misconduct on His Excellency, Senator Adewolu Ladoja, the Governor of Oyo State through piecemeal publication on the pages of the Nigerian Tribune Newspaper which was not' addressed to Senator Rasheed Adewolu Ladoja is no service on His Excellency, it is of no effect and it Js a breach of his constitutional right to fair hearing as contained in S.36 of the 1999 Constitution, of the Federal Republic of Nigeria. .

 

8.         Any order setting aside all the steps taken by the Defendants in relation to the issuance of Notice of allegation of misconduct, passage of motion to investigate same and the purported directive to the. Honourable Chief Judge of Oyo State, the said steps having breached the provisions of Section 188 of the 1999 Constitution of the Federal Republic of Nigeria.

 

In the light of the foregoing, the 3rd respondent, Senator Ladoja, remains the legally, constitutionally and democratically elected Governor of Oyo State, and I so order.

 

I want to take this opportunity to thank all counsel for their invaluable submissions to the development of this important area of our law. In my restricted knowledge, this is the first pronouncement on this fairly troublesome area of our law on the removal of Governors. They have materially assisted this court for which I thank them. Like the Court of Appeal, and for the same reason, I will not make any order as to costs in favour of the respondents. Certainly their interest will not be in costs but in the development of the law and that I think this court has been able to do with the assistance of counsel.

 

 

Counsel

 

 

M. F. Lana

(Attorney-General of Oyo State)

with him

O. A. Ayanlaja, SAN

L. O. Fagbemi, SAN

J. K. Gadzama, SAN

Chris Uche, SAN

Professor O. Oyewo

R. O. Yusuf

H. O. Afolabi

S. O. Ajayi

K. O. Fagbemi

C. I. Nwako

A. O. Popoola

C. N. Nwankwo

S. I. Kalio

D. E: Ukah

C. P. Oli

A.I.Uchegbu

E. J. Gamaliel

O. U. Ozumba

H. Odangla (Mrs)

O. P. Famakin-Johnson

O. K. Omotosho

........

For the Appellants .

 

 

 

Chief Wole Olanipekun, SAN

with him

Oluwarotimi Akeredolu, SAN

Kola Awodehin, SAN

Adeniyi Akintola, SAN

Professor Taiwo Osipitan, SAN

Femi Falana

Dele Adesina

Adebayo Shittu

S. S. Akinyele

Fidelis Bisong

K. A. Gbadamosi

Fumi Falana (Mrs)

M.O. Adebayo

S. A. Aborisade

Gabriel Uduagi

Amede Oputa (Miss)

D. O. Odunwo

Yemi Giwa

Waheed Gbadamosi

Kunle Jimoh

........

For the 1st and 2nd Respondents

 

 

 

Yusuf Ali, SAN

With him

Afolabi Fasamu, SAN

Mohammed  Adoki,  SAN

Kehinde Akinlolu

T.A.Okusokan

K.K.Eleja

M.M. Alabelewe

S.A Oke

M.T. Adekilekun

J. Jacobs

O. Ona

V. Udenze

N. Uregbulam

M.K. Olawale

E. Fatogun

L.A. Ozumaga

........

For the 3rd Respondent

 

 

 

Aare I. Abdulsalam,

with him

K.O.Fagbemi

A.T. Adebayo

W.A. Olayide

........

For the 4th Respondent