The Constitution, Vol. 7 , No.4, December 2007
IMPEACHMENT OF CHIEF EXECUTIVES
UNDER THE 1999 CONSTITUTION:
NEW PROBLEMS, NEW SOLUTIONS
M.A.Owoade
ABSTRACT
The paper presents the attitude of the Courts to impeachment cases as "old wine in new bottles" as what is new to the legal scenery is the challenge posed in between procedural breaches vs, ouster clauses. The paper argues that the courts reacted satisfactorily by a liberal, progressive and purposeful interpretation of the Constitution and concludes that the consequence has been increased confidence of Nigeria in the judiciary
INTRODUCTION
The tenn impeachment is often used to describe the process whereby political executives are tried for misconduct by the representatives of the people resulting in their removal from office usually after a two-thirds majority of the House of Assembly. In this sense, the impeachment process is part and parcel ofthe necessary checks and balances that operate in the context of the Montesquian doctrine of the separation of powers between the executive, legislative and the Judicial arms of government. To this extent, impeachment was and remains a potent weapon in the hands of the legislature to curb the excesses of the executive arm of government. Historically, impeachment was a political process, with the House of Representatives or
Senate performing the function of a quasi political court.
The 6th Edition of the Black's Law
Dictionary (13th reprint, 1998) defines impeachment at page 753 as "A criminal
proceeding against a public officer, before a quasi political court. instituted by a written accusation called "articles ofimpeachmenf' for example, a written accusation by the House of Representatives of the United States to the Senate ofthe United States against the President, Vice President or an officer of the United States including Federal Judges. Such Federal power of impeachment is provided for in Art II Section 4 of the Consti tution under Article I Section 2 d. 5. the House of Representatives "shall have the sole power of impeachment" and under
Prq(essor Owoade is a Justice of the Court of Appeal.Calabar (Division). Nigeria
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lll~ "onsllll1t;on, VoL '7 , No 't, Ikct:mbt:r ::'1".)'7
Section 3 c1.6" The Senate shall have
the sole power to try all impeachments.
A two-thirds vote of the Senate is required for impeachment"
HISTORICAL BACKGROUND
In Nigeria. the word impeachment as a term of usage became prominent with the introduction of the Presidential system of government under the 1979 Constitution and now also under the 1999 Constitution. The IndependenceConstitution of 1960 and the Republican
Constitution of 1963 did not contain any provisions relating as such to the impeachment of political Chief Executives. This is because, under the British West Minister model of Constitutions which we had in 1960 and
1963, the Prime Minister and the Governors were responsible to the Houses of Assemblies and could therefore be removed from office by the legislature after a vote of no confidence was passed on any such executive. A vote of no confidence does not usually involve the process of allegations and trials as in impeachment, but it usually carries the vote of a two-third majority as in the process of impeachment.
Impeachment seems to be more common and preferable under the American Presidential system of government, because the powers of the executive are very wide and almost totally separate from that of the
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legislature. Despite the above observation, the history of impeachment in the United States show that it has been employed with great caution and responsibility in rare and exceptional circumstances in the historical development of the nation. The story, 1 believe, is bound to be different in a ethnic, religious and multi-national African State such as Nigeria where impeachment as would later be seen could be used sometime to settle political scores or for the sheer greed of power.
CASES DECIDED UNDER THE
1979
The impeachment provisions under the 1979 Constitution are similar to those of the 1999 Constitution.
Under the 1999 Constitution of Nigeria.. the removal of the President or Vice-President and that of the Governor or Deputy Governor of a State are governed by the provisions of Sections 143 and 188 of the Constitution respectively.
Section 188 provides thus:
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
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The Constitution, ~I. 7 , No.4, December 2007
less than one-thitd of
the
membersof
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 (5)of the functions of his office.
detailed
p:u1iculars
of whichshall
be
specified.The
Speaker ofthe
House of Assembly shall. within seven days of the receipt of the no tice.cause a copy of the notice tobe
served on the holder of the office and on each member of the House of Assembly, and shall also cause any statement madein
reply to the allegation by the holder of the office, to be served on each member of the House of Assembly.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.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 ofunquestionable integrity, not being members of any public service, legislative house or political party, to investigate the allegation as provided in this section.
(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
(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 Pane) by a lega1 practitioner of his own choice.
of the office in reply to the allegation contained in the notice), the House of Assembly (7) shall resolve by motion, without any debate, whether or not the allegation shall be investigated.
(4) A motion of the House of Assembly that the allegation be
A Panel appointed under this section
sha1l-(a) have such powers and exercise its functions in accordance with such procedure as may be prescribed by the House of Assembly; and
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The ConslltUl1!!lL Voi. 7 . No.4. Ueccmb.:r 20u7
(8)
(9)
(b) within three months of its appomtment, report its findings to the liouse of Assembly. 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.
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 ifb)' a resolution of the House of Assembly supported by not less than two-thirds majOlity of all its members, the report of the Panel is adopted,
then the holder of the office shall
stand removed from office a'i from the date of the adoption of the report.
( 10) No proceedings or detennination
of the Panel or of the House of Assembly or any matter relating to such proceedings or detelmination shall be entertained or questioned in any court.
The lew Nigerian cases that were decided under the impeachment provisions of the 1979 Constitution did not pose any challenge for the courts to determine the possible effects of the
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failure to comply with the procedural requirements of the impeachment provisions. Therefore. for the unwary or the stereotyped Judge, it "vas easy to stick to the idea that the courts have no business whatever with an "essentially political" matter like impeachment or in common parlance. it is believed that "impeachment is a no go area for the courts."
For example inAlhaji Balarabe Musa vs. Musa Harnsa & 6 Ors I the applicant,
Governor ofKaduna State prayed the court to issue a prerogative writ of prohibition against the Seven Man Panel appointed by the Speaker of Kaduna State House of Assembly in accordance with Section 170(5) of the 1979
Constitution to prohibit them from exercising their functions. V. J. O. Chigbue J., at the High Court of Kaduna State, Kaduna held that the exereise of removing a Governor from office under Section 170 of the 1979
Constitution was a purely legislative constitutional affair quite outside the jurisdiction of the court by virtue of Section 170 (10) ofthe Constitution of the Federal Republic of Nigeria 1979.
Also, in the sister case of
Alhaji
Babarabe Musa vs. Speaker, Kaduna
State House of
Assembly
&Anor
2 thesame Governor brought another application for an order prohibiting the Speaker of the State's House of Assembly, the House of Assembly and
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The Constitution, Vol. 7 , No.4, December 2007 its members from proceeding with the consideration of the Notice of allegation of gross misconduct against him. The Respondent in the case relied on the provision of Section 170( 1 0) and objected to the jurisdiction ofthe court to hear the application. Umaru Abdullahi, J, (as he then was) held that the provision of Section 170 (10) of the 1979 Constitution which stated that 'No proceedings or determination of the committee or of the House Assembly or any matter relating thereto shall be entertained or questioned in court' is a
specific provision that has clearly ousted
the jurisdiction of the courts on the subject matter of the application. And finally in the case of Alhaji Babalabe
Musa vs. Kaduna State House of Assembly & 4 Ors3 which was the third in the series of the impeachment cases by Governor Balarabe Musa, Umaru Abdullahi (as Acting Chief Judge) held that the court had no jurisdiction to entertain application for judicial review by way of certiorari as it relates to the process of removal of a State Governor as Section 170(10) of the Constitution
had ousted the jurisdiction of the court.
THE COURTS AND THE 1999 CONSTITUTION
In the case of Chief Enyi Abaribe vs.
The Speaker Abia State House of Assembly & 1 Or~ the Court of Appeal (Port Harcourt Division) had the opportunity of examining the
impeachment provision."; under the 1999 Constitution. The Appellant in that case was the Deputy-Governor of Abia State
sometime prior to 81h January. 2000
sixteen members ofthe State's House of Assembly presented an impeachment notice to the Speaker of the House for the removal of the Appellant from office. The Speaker forwarded a copy of the impeachment notice to the Appellant under the cover of a letter requesting the Appellant to react to the issues raised
in the impeachment notice before 111h
February, 2000. The Speaker's letter together with the impeachment notice,
were served on the Appellant on 31 sl
January, 2000.
On81h February, 2000 which was three
days before the date on which the Speaker requested the Appellant to submit his reactions to the issues raised in the impeachment notice, the House
took a vote resolving to refer the
allegations in the notice for investigation. The Appellant considered that by passing the resolution at the time they did, the members of the House had infringed on his fundamental right to fair hearing enshrined in Section 36 ofthe
1999 Constitution and Article 7 ofthe Afiican Charter of Human and People's Rights. He therefore applied ex-parte to the High Court of Abia State for leave to enforce his fundamental rights and prayed for declaration, order setting aside and injunction.
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The ConStitution, Vol. 7 , No.4, December 2007 When the matter came up before the court. the learned Judge S. O. E. Nbeanosike l. suo motu raised the question whether, in view of the provision of Section 188 (10) ofthe 1999 Constitution, he had jurisdiction to entertain the matter the Appellant
was seeking to bring before him, should
leave be granted to him. He put the Respondents on notice and invited the State Attomey-General and ChiefU. N. Udechukwu, SAN as amici curiae. After hearing arguments by Counsel for the Appellant and the amici curiae the court held that it lacked jurisdiction to entertain the reliefs the Appellant was seeking leave to pursue and so struck out the ex -parte application.
The Appellant was dissatisfied and he
appealed against the ruling, contending
that the court was wrong in declining jurisdiction in the matter. The Court of Appeal dismissed the appeal.
In dismissing the appeal, the Court of
Appeal (per Pats Acholonu lCA) as he
then was) who read the leading judgment referred with approval to the decision of AdenekanAdemolaJCA in
Alhaji Abdulkadir Balarabe Musa vs.
Aula Hamsa5 and said of the Abaribe case itself that the issue bothered on the powers of the court to intervene in the domestic affairs of the House of Assembly and that in interpreting the
words of the Constitution, it should be
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understood that a Constitution was not acornrnon legal document but essentially a document relating to the relationship between the citisen and the State with provisions for the rights of the citisen within the compass of the State. And that in so far as it concerned the issue .
of impeachment,
it
was a politicalmatter>. The Court of Appeal in the
Abaribe case did not hide the fact that judicial review of impeachment is
generally barred by the political question
doctrine and that explains why the courts are touchy about delving into the nuances of such matters. Thus, Pats Acholonu JCA (as he then was) quoted Professor Lawrence Tribe's American
Constitutional Laws at page 215 as saymg:
Although the impeachment process has been used
periodically since 1789 there
has been no judicial attempt to define its limits. This is contributable in part to the
Constitutional language
ostensibly consigning the issue of impeachment to the
legislative branch of
Government and thus arguably barring judicial review of impeachment under the political question doctrine'
Also, defending the position of non-interference by the courts in impeachment cases and arguing that it is indeed inappropriate to term the provision of Section 188(10) of the
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The Constitution, Vol. 7 , No.4, December 2007
1999 Constitution an "ouster clause" Ikongbeh JCA supported the lead judgmentofPats-AcholonuJCA (ashe then was) in the Abaribe case to say at pages 501-502 ofthe Report that:
For this reason I do not feel comfortable with the view that decisions based on the interpretation of ouster clauses in these decrees can provide a good guide for the interpretation of provisions in a Constitution limiting the power ofthe courts. All governmental powers derive from the Constitution in a civilian regime. There cannot be any legitimate complaint if the Constitution withdraws a particular power from one organ of government in favour of another in the same way that one can complain about the way the Military brasenly emasculated, especially the judiciary just to pave way for themselves to do as they pleased with the lives and property of people. This point can be better appreciated if it is realised that a Constitution, is at least in theory, the product of planned and collective agreement of the people on how to govern themselves. When, therefore, they agree at the outset that a particular matter shall be within the competence of one organ and not the other, one cannot properly liken such situation to the situation created by ouster clauses in the military decree",
It is clear from the ratio decidendi and the more important pronouncements in
the Abaribe cases that the Court of Appeal took the view that impeachment is a political matter and that "the court should not however attempt to assume for itself power. It is never given by the Constitution to brasenly enter into the miasma of the political cauldron and have itself bloodied and thereby losing respect in its quest to play the legendary Don Quixite De La Manche"9
At the same time, some of the pronouncements in the Abaribe case gave the green light, some sort of forerunner to more recent decisions by indicating the preparedness of the court to lean in favour of its jurisdiction when the facts grounding impeachment disclose a flagrant disregard of procedural requirements. Thus at page 486 of the Report, Pats Acholonu JCA (as he then was) could be heard to say
However, the court at the same time may not close its eyes to serious injustice relating to the manner, the impeachment procedure is being carried. That is to say it is within the province of the court to ensure strict adherent to the spirit of the Constitution for the endurance of a democratic regime ...
And at pages 506-607 of the Report, Ikongbeh JCA also gave indication of circumstances when the courts would necessarily interfere with the conduct of impeachment.
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The Constitution, Vol. 7 , No.4, December 2007
The only circumstance in which there can be said to have been non-conformity is where the investigating panel disallowed the affected officer from presenting his case in defence of himself. It
is when that happens that it becomes necessary to consider whether or not such non-conformity can or does rob the alleged ouster clause in Section 188(10) of its potency. As that stage had not been reached in this case before the Appellant rushed to court the necessity for such consideration has not arisen. The Appellant jumped the gun, crying foul when no foul had in fact been committed. The resolution passed by the 2nd Respondent and of
which the Appellant complains in these proceedings has the full backing and support of Section
188(3) ... ..
The ratia as well as the pronouncement in the Abaribe case represent in aggregate the position of the law relating to impeachment before the cases that came for consideration in the second term of President Olusegun Obasanjo's democratic dispensation.
11IEOYOSfAlE
IMPEACHMENf
SAGA
The first case in the second term of Obasanjo civilian regime was the case of Hon. Muyiwa Inakoju
&
17 Drs VS. Hon. Abraham Adeolu Adeleke (Speaker)&
3 Drs.to The 1st and 2ndRespondents, who were respectively the Speaker and Deputy Speaker of the
Oyo State House of Assembly, commenced the action by way of originating summons before Ige J. in suit No. 111050/05. They sought from the court the determination of eight questions, nine declarations and two mandatory orders all on the purported passing of a motion for the investigation of the allegations of misconduct against His Excellency Senator Rasheed Adewolu Ladoja, the Governor ofOyo State and the purported request by a non-existing Speaker ofthe Oyo State House of Assembly asking the Chief Judge ofOyo State to appoint a Panel of7 (seven) persons to investigate the allegation against the Governor.
The Appellants, as well as Defendants, were duly served with the processes and instead of entering an appearance as required of them, they immediately filed a notice of preliminary objection on the grounds that the court lacked jurisdiction, the Plaintiff lacked the necessary locus standi and that the claims disclosed no reasonable cause of action. Ige J. entertained the preliminary objection and upheld same on the ground, relying on Section
188(10)
of the Constitution that:virtually all the 8 questions set out for determination on the originating summons as well as the 9 declaratory reliefs and orders sought, touch on the issue of impeachment, ... By the combined effect of the above
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The Constitution, Vol. 7 , No.4, December 2007
provisions therefore and having regard to the nature of the reliefs claimed by the Plaintiff, 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 ... It is not the duty of the court to forage into areas that ought to rest 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 the matter. The objection of learned Counsel for the Defendants/Respondents is upheld. The originating summons is accordingly dismissedY
The Plaintiffs were dissatisfied with the ruling ofIge J. and thereby appealed to the Court of Appeal. While the appeal was pending at the Court of Appeal, Senator Rasheed Adewolu Ladoja who was elected as Governor ofOyo State, sought and was granted leave to be joined as an interested party.
The Court of Appeal allowed the appeal and exercising its powers under Section 16 of the Court of Appeal Act,
proceeded
to decide the Plaintiffs claimon the merit and thereby granted all the reliefs claimed by the Plaintiffs. The DefendantslRespondent appealed to the Supreme Court. The Supreme Court
upheld, by a unanimous decision, the part of the Court of Appeal's judgment holding that the High Court had jurisdiction to determine the suit. But by a majority of 6 to I, Oguntade JSC dissenting, the Supreme Court upheld the decision of the Court of Appeal on the substantive suit pursuant to Section 16 of the Court of Appeal Act, and the granting of the Respondents' claims.
It would be recalled that the salient facts leading to this appeal are that on 13th December, 2005, the Oyo State House of Assembly sat at the Assembly Complex Secretariat Ibadan. The Appellants sat at D' Rovans Hotel, Ring Road, 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 of 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
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The Constitution, Vol. 7 , No.4, December 2007
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 by originating summons. The appeal before the Court of Appeal and later the Supreme Court was based on the ruling ofIge J. declining jurisdiction consequent on the preliminary objection by the Appellants.
The Supreme Court agreed with the Court of Appeal that the factional meeting of the members of the State House of Assembly cannot amount to a Constitutional meeting of the whole House of Assembly as envisaged and provided for in the Constitution. And that the learned trial Judge has jurisdiction to examine the claim in the light of Section 188 of the 1999 Constitution.
In fact, the Supreme Court readily agreed with the Court of Appeal that the entire Section 188 sub-Sections
I-II must be read together. And a proper reading of the whole section will reveal that the ouster clause in sub-section (10) can only be properly resorted to and invoked after due compliance with sub-section (1)- (9) that preceded it. Sub-section (11) makes it abundantly clear that
it
is the House of Assembly that decides whether or not a conduct is gross misconduct to warrant the10
removal of a Governor. Failure to comply with any ofthe provisions of subsection (1 ) - (9) will mean that the ouster clause of subsection (10) cannot be invoked in favour of the House of Assembly. 12
Undoubtedly, the decision of the Supreme Court in Inakoju vs. Adelekel3 did not in any form contradict
the earlier impeachment cases of Ba/arabe Musa u and Abaribe15 but clearly presented us with new tools in the interpretation of ouster clauses. For example, in the older cases of Balaraba Musa and Abaribe, there was no question of non compliance with the conditions precedent to impeachment, thus in both cases the ouster clause in relation to the impeachment was rightly invoked.
Inakoju vs. Adeleke merely reminds us in the words of Niki Tobi, JSC that "Ouster clauses are generally regarded as antithesis to democracy as the judicial system regards them as unusual and unfriendly"'6 And in relation to the Inakoju vs. Adeleke:S case itself, Ogbuagu JSC had this to say.
It can be seen that the draftsmen were alert in respect of the seriousness or magnitude of the removal of a Governor or his Deputy. They chose their words and every word in this Section or provisions, is weighty and material. Therefore, in the removal
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The Constitution, Vol. 7 , No.4, December 2007
of such officers, the procedure clearly specified, must be followed and strictly complied with before such removal
becomes valid and
constitutional. Any breach of any of the said provisions, surely and certainly renders such removal ineffective, null and void and of no effect, ..
In summary, in my respectful and firm view, it is only when the provisions of Section 188 (I) (9) which I hold are conditions precedent, are complied with, that sub-section 10 thereof will be relevant and can be invoked and relied on. A subsection of a section, is only part of that section and cannot be read in isolation.,.17
INAKOJU VS.ADELEKE'S: THE
DISSENTING VIEW
The view of the majority of the Supreme Court Justices that section 188(10) of the 1999 Constitution can only be invoked after due compliance with the provisions or conditions laid down in section 188(1) - (9) was not the point of controversy in the dissenting opinion ofOgunrade JSC in the case of Inakoju vs. Adeleke.
Oguntade JSC disagreed with his brother Justices at the Supreme Court on the ground that the appeal itself arose from a preliminary objection on the jurisdiction of the High CoUrt which was upheld by Ige J. and that the Appellants
having not been giving the opportunity to react to or file counter-affidavit to the Respondents' affidavit in support of originating summons, the Court of Appeal was wrong to have decided the matter on its merits by relying on Section
16 of the Court of Appeal Act.
The grudge ofOguntade .lSC lies in his disagreement first with the Court of Appeal and also with his brother Justices of the Supreme Court that the appeal in the Inakoju vs. Adeleke though basedona preliminary objection by the Defendants/Respondents at the High Court who had not filed a counter-affidavit to the substance of the originating summons was nevertheless decided on its merit by the Court of Appeal relying on Section 16 of the Court of Appeal Act.
The attitude ofthe Court of Appeal on the matter is best distilled from the lead judgment ofOgebe .lCA as contained at page 672 of the Nigerian Weekly Law Reports.
Having held that the trial court has jurisdiction to hear the Appellants originating swnmons, it is now for me to determine whether I should send the case back to the Oyo State High Court for fresh trial, The Appellants have urged me to decide the case because it raises issue of constitutional interpretation of Section 188 of the I 999 Constitution which this court is in a position to
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decide by virtue of Section 160fthe Court of Appeal Act.
The learned Counsel for the Defendants/Respondents urged me not to decide the originating summons because this appeal has arisen only from the preliminary objection on jurisdiction.
I have taken a look at the preliminary objection of the Defendants/Respondents in the court below and the grounds thereof earlier quoted in this judgment and I have also looked at the argument of Counsel before the lower court and the summary of the arguments in the ruling of the lower court and it is my view that all that needs to be said on the merit of the claim has already been said in the record.
Since the facts of the case are not disputed and what is to be decided is purely the interpretation of Section 188 of the 1999 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. 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 bifore the tenure end~ in May next year should be determined without delay" (emphasis supplied}.
Reacting to the above, Oguntade JSC did not mince words in pointing out that there has been a lot of misconception about Section 16 of the Court of Appeal Act and that in some cases, it has been
relied upon as giving the Court of Appeal, in an interlocutory appeal, the jurisdiction to do anything it pleases in respect of the substantive case before the High Court on which no decision
has yet been made and even when there
has been no appeal filed before
it.
This notion, he said, if correct, means that the Court of Appeal now has an all-purpose jurisdiction which it could invoke in an interlocutory appeal to decide any matter in the substantive appeal.'8To support his view, Oguntade JSC took time to refer to an earlier\ judgment of one of the Justices of the Court of Appeal in the lnakoju vs. Adeleke
s
case. That is, Akaah's JCA, in United Bank for Africa Pic vs. Aji/eye''Lwherc Akaah's JeAacknowledged that the Court of Appeal has no original jurisdiction except under Section 239 of the 1999 Constitution as follows:
... the only instance the Court of Appeal is allowed to assume original jurisdiction to adjudicate on a matter is under Section 239(1) of the 1999 Constitution and no more. Therefore, where there is conflict in affidavit before it which can be resolved only through calling of oral evidence, the Court of Appeal cannot embark upon such resolution because of its statutory limitation.
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The Constitution, Vol. 7 , No.4, December 2007 After an in-depth analysis of the decided cases on the nature of appeals and the scope of the constitutional jurisdiction of the Court of Appeal itself, Oguntade
JSC opined that the attempt to read into
Section 16 of the Court of Appeal a jurisdiction to determine appeals even in cases where no decision has been rendered is therefore clearly misguided as the Court of Appeal is a creation
of
statute, its jurisdiction is limited to
thatcontained in the 1999 Constitution which created it.
Oguntade JSC punctured the argument of the Justices of the Court of Appeal
that reliance could be placed on the case
of Attorney-General of Anambra
State vs. Okeke2
() for the application
of the provision of Section 16 of the Court of Appeal Act in the case of
Inakoju vs. Adeleke. The learned Supreme Court Justice conceded that the facts of the Inakoju vs. Adeleke
case are similar to the facts in Attorney-General of Anambra State vs. Okeke
but reminded his brother Justices that indeed the Supreme Court allowed the
appeal in the A -G, Anambra State vs.
Okeke precisely on the ground that the Court of Appeal was wrong to have decided the substantive matter in the interlocutory appeal before it. Oguntade JSC reasoned that if the Court of Appeal had not merely cited the Okeke case but read the judgment, it would have discovered that it could
not proceed with the substantive suit in the case without doing injustice to the Defendants who had not yet filed a counter-affidavit and whose time under the rules of court for filing a counter-affidavit had not expired.
He concluded, relying on the case of
Garba vs. University of Maiduguri21
that it could not be said in the circumstances that the Defendantsl Appellants were given fair hearing. Now,judging from the lead judgment of Tobi JSC in the Inakoju vs.
Adeleke
s
case, the Supreme Court supported the Court of Appeal in its application of the provision of Section 16 of the Court of Appeal Act to the case in at least two senses. The first was the recognition by Tobi JSC that the grounds of appeal and their particulars before the Court of Appeal donated the real question in controversyas to 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. And that the coast was clear for the Court of Appeal to decide on the real question in controversy by invoking its Section 16 power. Secondly, Tobi JSC seems to be in agreement with the Court of Appeal, especially Ogebe JCA, that Section 16 could be invoked in the circumstances
of the Inakoju vs. Adeleke
s
case, toavoid multiplicity of proceedings and
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hearings, to save the much needed time
in the administration of justice and to
facilitate the speedy administration of
justice.
A third reason why the majority of the
Supreme Court Justices supported the
decision of the Court of Appeal in not
sending the substantive matter in the
Inakoju vs. Adeleke
s
case back to the
High Court for trial was the purported
admission of the learned Counsel to the
AppellantAyanlaja SAN, that he did not
find it necessary to file a
counter-affidavit to the PlaintiffslRespondents
originating summons on the ground that
the depositions in their supporting
affidavit were inadmissible evidence and
that if would be a waste of time to
respond to the same.
This reasoning of the Supreme Court
featured prominently in the jUdgment
delivered by Ogbuagu JSC where at
pages 705-706, the learned Supreme
Court Justices emphatically maintained
that:
As a matter of fact, from the submission of Ayanlaja, Esq. in respect of their issue J in paragraphs 4.3 and 4.4 of their brief, it is clear/plain to me that by the said submissions, the Appellants refused to file a counter-affidavit to the originating summons, because according to learned Counsel, the averments in the affidavit in support were inadmissible evidence and therefore, it was
a waste of time for the Appellants to respond to the same. Fine! By this submission and stance, any complaint by the Appellants of denials of fair hearing can by no stretch of imagination be sustained by me. It anything, if confirms without equivocation that the Appellants had the opportunity to file counter-affidavit, but they voluntarily decided not to do so because for them, it was a useless exercise to do so and anybody expecting them so to file, was wasting his time. Period!
It
is difficult to fault the reasoning of the
majority Justices of the Supreme Court
for the need to invoke the provision of
Section
16of the Court of Appeal Act
in relation to the case on hand based on
the purported admission of the learned
Counsel for the Appellants that he
needed not have filed any
counter-affidavit.
Incidentally, this reasoning, put together
with some others that
hadbeen given
inthe majority judgment, brings one to the
conclusion quite clearly that the support
for
theCourt of Appeal in the invocation
of Section
16of the Court of Appeal
Act in the Inakoju vs. Adeleke
s
case
22was based on the peculiar
circumstances of the
case and the point
could
besaid to have been decided on
expediency and public policy. This, of
course, might suggest
that
when the reald
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legal question of what to do when an appeal is based on a preliminary objection by a Defendant! Appellant raises its ugly and thorny head once again, we may all be compelled to reopen, reassess and appreciate the value of the age-Iongjudicial precedent that is contained in the dissenting judgment of Oguntade JSC on the scope and limits of the provision of Section 16 of the Court of Appeal Act.
Section 16 of the Court of Appeal Act reads as follows:
The Court of Appeal may from time to time make order necessary for detennining the real question in controversy in appeal and may direct the court below to inquire into and certifY its findings on any question which the Court of Appeal thinks fit to determine before finaljudgment 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 in the Court of Appeal as court of first instance and may re-hear the case in whole or in part or may remit it to the court below for the purpose of such rehearing or may give such other direction as to the manner in which the court below shall deal with the case in accordance with the powers of that court or in the
case of an appeal from the court below in that court's appellate jurisdiction order the case to be heard by a court of competent jurisdiction.
From the foregoing, I submit with great respect that it may indeed be easy to conceive the powers under Section 16 as virtually unlimited in scope especially if the paragraphs are read disjunctively. However, a constructive and holistic reading of the provision simply means that in the determination of the real question in controversy, the Court of Appeal could "step into the shoes" of the lower court. This, I submit without any inhibitions but with abundant discretion as to approach or consequential orders.
In relation to the case in point that is the Inakoju vs. Adeleke
s
case a question remains unanswered. What is the real question in controversy in lnakoju:s-case? Again, here which is the attitude adopted by the Court of Appeal and the majority Justices of the Supreme Court - the real question in controversy in the case could be said to be the legislative exercise of the power of impeachment. But, if we would not stretch words, I believe as Oguntade
JSC does that the real question in controversy in an appeal can only be determined by the notice and grounds of appeal. Before the Supreme Court, it seems to me that the real question in
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controversy in relation to the application
of Section 16 of the Court of Appeal CASES DECIDED AFTER Act, covered hy grounds 2, 3,4,5,6,7
and 8 of the Appellant's amended notice ofappeaL as contained in Appellants Issue No.3 is 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 Com1 of Appeal Act and in the absence ofthe power ofthe High Court of Oyo State in granting them reliefs as at the stage of the proceedings before it and also in not affording the Defendants! Appellants the opportunity to present their own defence (by way of counter-affidavit).
Clearly, in an appeal, only issues formulated within the parameters and context of the grounds of appeal and raising issues determined in the judgment appealed against can come within the purview of issues to be determined.23 To use the provision of Section 16 of the Court of Appeal Act to decide the merit of an appeal founded on a preliminary objection of the jurisdiction of the trial court constitutes indeed a denial of fair hearing for the Appellant, an ascription of an original jurisdiction outside the provision of Section 239 of the 1999 Constitution on the Court of Appeal, portends injustice and creates
future
problems of statuto~ and constitutional interpretation.16
INAKOJU VS. ADELEKE
At least three other impeachment cases came to be considered by the Court of Appeal. After its decision in the Inakoju vs. Adeleke:'i' case24
, indeed it could be said that the success of the appeal on jurisdiction ushered in an avalanche of cases on the subject matter of impeachment of Chief Executives under the 1999 Constitution. The three, with similar facts as in the Inakoju vs. Adeleke :s-case
are
the Court of Appeal decisions in Alamieyesiegha vs. 19oniwari(No.2)25, Mike Balonwu & 5 Ors vs.
Peter Obi & Anor26 and Dapialong
vs. Dar/yel7
. In all the three cases,
the Court of Appeal expectedly held following Adeleke
s
case that a court has jurisdiction to entertain a suit challenging the process of removal of a Governor of a State or his Deputy from office in order to confirm whether or not the process was in compliance with Sections 188 (l) - (9) of the 1999 Constitution, and ifit
is satisfied that the process was not in compliance with the constitutional provisions, it has the jurisdiction to intervene. In other words, the jurisdiction of Court to inquire into the removal of a Governor of a State or his Deputy is ousted only where there was strict compliance with the procedure provided in Section 188( 1) - (9) of the 1999d
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Constitution.28 In all these cases, the Court of Appeal insisted following the Adeleke S case29 that the provisions
of Section 188( 1) - (9) of the 1999 Constitution constitute conditions precedent to the application of the ouster clause in subsection 10 of the Section.
An interesting and notable development as regards the scope ofthe Section 16 power of the Court of Appeal arose in the case of Alamieyesagha vs. Igoniwari (No. 2)30 where the majority of the Court of Appeal (Port Harcourt Division) allowed the Appellant's appeal onjurisdiction and ordered that the case be remitted for trial by the High Court. This view of the majority was based on an appropriate distinction by the Justices on the form of action before the lower court. In other words while the suit in the Inakoju vs. Adeleke S case commenced by the procedure of originating summons, the majority of the court felt that Section 16 of the Court of Appeal Act cannot apply to a case commenced by writ of summons and statement of claim while the defence had
not filed defence or called evidence at the trial.
Curiously, this very sound view ofthe majority which distinguishes the Alamieyeseigha vs. Igoniwaru (No.2Y' case from Adeleke32 and
Dariye case33 suffered a dissenting
opinion in the judgment ofSaulawa JC4 who at page 623 of the Report held thus " ... I hold that this court has a duty to instantly determine the case of the parties on the basis of the Appellant's statement of claim and exhibit' A'
Clearly, the last word has not been said as we anxiously wait for the Supreme Court to pronounce specifically and categorically on the applicability of Section 16 of the Court of Appeal Act in the determination of a substantive matter in interlocutory appeals.
CONCLUSION
It would be seen from the above analysis that the problem of the impeachment of Chief Executives is neither new to constitutional development in Nigeria or to the legal scenery. What is new is the challenge now faced by the courts in between breaches of impeaclnnent procedures and the application of the ouster clause in Section 188(10) of the 1999 Constitution. The Nigerian courts have shown that they are clearly up to the task as they threw into the winds whatever is left of the conservative approach to impeachment proceedings which arose largely from its historical antecedents as an essentially political matter. The courts have opted for a liberal, purposeful, progressive, forward looking and satisfactory
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approach. An interpretation beyond "legalism" that the average Nigerian or the common man expected. The unimagined result is that the confidence of Nigerians has grown in the courts and the judicial system justifying the almost hitherto abandoned heritage of the "Courts as the last hope of the common man."
18
Incidentally, the hope of the Nigerian in
the judiciary at present, is nc) t limited to
the purposeful constitutional interpretation rendered in the impeachment cases but also in the almost excellent performance of the judiciary in the Election cases and generally in upholding the Rule of Law.
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NOTES
&
REFERENCES
I. (1982) 3 N. C. L. R. p. 439
2. (1982) 3 NCLR p. 450
3. (1982) 3 NCLR p. 463.
4. (2002) 14 NWLR(Pt. 788)p.466
5. (1982) 3 NCLR p. 229
6. Supra at page 486
7. At page 491
8. Supra
9. Pats-Acholonu JCA at page 486.
10. (2006) 1 6 NWLR(Pt lOO6)p. 608 (C.A.) (2007) 4 NWLR (Pt. 1025) p. 423 (S.c.)
II. (2007) 4 NWLR (Pt. 1025) at pages 675-676 (quoted in the judgment of Akintan
JSC)
12. See e.g. Tobi JSC at page 653. The sevenman Supreme Court panel that decided the Inakoju vs. Adeleke's case consist of Justices I. L. Kutigi (who presided) A. l. Katsina Alu, Niki Tobi (who read the leading judgment) D. Mustapher, G. A. Oguntade (who dissented partially) S. A. Akintan and
1. F. Ogbuagu.
13. Supra
14. Supra
15. Supra
16. Supra at page 597
17. At pages 697 - 698
18.At page 279
19. (1999) 13 NWLR(Pt. 633) 116at 120
20. (2000) 12 NWLR(Pt. 782)p.575.
21. (1986) 1 NWLR (Pt. 18) p. 550
22. Supra
23. See Oniah vs. Onyia (1989) 1 NWLR (Pt. 99)514 at 527,Attomey-General Anambra State vs. Ohuselogu Enterprises Ltd. (1987)4 NWLR(Pt. 66)547 referred to by Oguntade JSC at page 73 J •
24. Supra
25. (2007) 7 NWLR (Pt. 1034) p. 524
26. (2007) 5 NWLR (Pt. 1028) p. 488
27. (2007)8NWLR(Pt.1036)p.239
28. See GaladimaJCA inAlamieyeseigha vs. 19oniwari (No.2) (supra) at p. 577
29.Supra
30. Supra.
31. Supra.
32. Supra.
33. Supra.
Editor's note: we retain here the legal reJerencing style used by the author Jor its specific legal essence
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