b f towobola v speaker, nsha

NOTICE OF APPLICATION FOR ORDER ENFORCING FUNDAMENTAL RIGHT (ORDER 2 RULE 1)

SUIT NO: _____________________

IN THE HIGH COURT OF JUSTICE OF NASARAWA STATEIN THE LAFIA JUDICIAL DIVISION

HOLDEN AT LAFIA

IN THE MATTER FOR AN APPLICATION BY BABATUNDE F. TOWOBOLA FOR AN ORDER FOR THE ENFORCEMENT OF Ss. 36 (1); (2); (5) AND (6) OF THE

CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA, 1999 (AS AMENDED) AND IN THE MATTER OF

BABATUNDE F. TOWOBOLA - APPLICANT

AND

1. THE SPEAKER, NASARAWA STATE HOUSE OF ASSEMBLY - RESPONDENTS

2. THE NASARAWA STATE HOUSE OF ASSEMBLY

TAKE NOTICE that the High Court of Justice of Nasarawa State, Lafia, Nasarawa State sitting in Lafia will be moved on the _______ day of _______________, 2014 by 9 o’clock in the forenoon or so soon thereafter as counsel may be heard on behalf of BABATUNDE F. TOWOBOLA, ESQ in the terms of the reliefs sought in support of the application.

And take notice that on the hearing of this application the Applicant will make use of the affidavit of BABATUNDE FOLARIN TOWOBOLA.

Dated the 11th day of August, 2014.

___________________________________B. F. Towobola, EsqAletheia Advocates

B. F. Towobola & Co.Applicants Counsel

4th Floor, UBA Building17/19 Beach Road, Jos

0803 790 [email protected]

ADDRESS WITHIN JURISDICTION:C/O J. E. Agbo & Associates

Providence ChambersNo. 115 Makurdi RoadOpposite PHCN Office

Lafia

FOR SERVICE ON:

1. The SpeakerNasarawa State House of AssemblyNasarawa State House of Assembly ComplexLafiaNasarawa State

2. The Nasarawa State House of AssemblyNasarawa State House of Assembly ComplexLafiaNasarawa State


SUIT NO: _____________________


HOLDEN AT LAFIA




AND



1. NAME AND DESCRIPTION OF THE APPLICANT: The Applicant, Babatunde Folarin Towobola is a private legal practitioner. The Applicant acts on behalf of Alh. Umar Tanko Al-Makura, the Governor of Nasarawa State, the All Progressives Congress, the citizens of Nasarawa State, the members of the Nigeria Governors Forum (NGF), the Chief Judge of Nasarawa State and of all the other 35 states of the Federation and the judiciary as a whole and the generality of Nigerians who are poor, vulnerable, unrepresented and uninformed in respect of this issue.

2. RELIEFS SOUGHT:

1. A DECLARATION that the provisions of S. 188 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) are an exception to the provisions of S.308 of the Constitution and sui generis which should ensure that the Governor undergoes a trial before a court for the trial of impeachments before he can be lawfully and constitutionally removed from office so as to ensure the protection of his fundamental right to fair hearing as enshrined in Ss. 36 (1), (2), (5) and (6) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).

2. A DECLARATION that based on the judicial authority of DAPIANLONG V DARIYE [2007] 8 NWLR (PT 1036) 239, only the state House of Assembly, being a full complement of the people of Nasarawa State, only after having had such judicial power expressly vested in them in derogation from the general power vested in the normal courts of the land, can determine any allegations contained in a notice of impeachment against Alh. Tanko Umaru Al-Makura to continue to hold the office of Governor as the court for the trial of impeachments and would thereby ensure the protection of the Governors right to fair hearing in compliance with Ss. 36 (1), (2), (5) and (6) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).

3. A DECLARATION that since there are no provisions expressly vesting jurisdiction in the state House of Assembly as a body of persons identified and vested with power to be constituted as a court for the trial of impeachments as intended by S. 188 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the decision of which court would be a duly delivered determination of the allegations of gross misconduct against the Governor, there cannot be in existence any valid determination of the state House of Assembly sitting as the said court, which would serve to constitutionally oust the jurisdiction of the High Court of Justice of Nasarawa State to entertain or question any such purported determination as envisaged under S. 188 (10) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).

4. A DECLARATION that it is antithetical to the principles of fairness, justice and equality before the law for the jurisdiction of the court to be ousted by S. 188 (10) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), because the entire procedure for the removal of a Governor in S. 188 does not ensure that a Governor is given a fair hearing in accordance with Ss. 36 (1), (2), (5) and (6) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) before the holder is removed from office as envisaged in S. 188 since the said section is an exception to the provisions of S. 308 which grants a Governor immunity from legal proceedings.

5. A DECLARATION that the provisions of S. 188 (10) of the Constitution as amended in relation to a ‘determination’ to be purportedly made by the state House of Assembly, in purported pursuance of the actualization of the provisions of S. 188 (1) of the Constitution, are likely to infringe upon the right to fair hearing of the Governor of Nasarawa State as enshrined in Ss. 36 (1), (2), (5) and (6) of the Constitution, and would amount to an ultra vires act because no initial express judicial power was, in any part of S. 188 or any other part of the Constitution, conferred upon either the investigative Panel envisaged therein nor the state House of Assembly power to sit as a court for the trial of impeachments and consequently make any determination of the right of Alh. Tanko Al-Makura to continue to hold the office of Governor.

6. A DECLARATION that by a reading of the entirety of the provisions of S. 188 of the Constitution, the State House of Assembly has not been expressly conferred with the requisite power to sit as a court for the trial of impeachments as envisaged under the law, having not had the requisite judicial power initially vested in them needed to make a determination of the right of Governor Tanko Umaru Al-Makura in respect of any allegations contained in any notice of allegations of gross misconduct served upon the Governor, which state of affairs is thereby likely to deny the Governor of a fair hearing contrary to S. 36 (1), (2), (5) and (6) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) before his likely removal.

7. A DECLARATION that any determination of the investigative Panel and the state House of Assembly as to the guilt of the Governor of Nasarawa State in purported pursuance of S. 188 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) in relation to any allegation contained in a notice of impeachment is ultra vires, null, void and of no effect whatsoever because same is done without the requisite conferment of judicial power upon either of the bodies.

8. A DECLARATION that the provisions of section 188 (6) which states that ‘the holder of an office whose conduct is being investigated under this section shall have the right to defend himself. . .’ does not amount to a conferment of judicial power upon the 7-man investigative Panel that may be appointed at the instance of the 1st Respondent to become a court for the trial of impeachment for the purpose of determining the guilt or otherwise of the Governor since their functions, from inception, were merely investigatory.

9. A DECLARATION that the provisions of section 188 (6) which state that ‘the holder of an office whose conduct is being investigated under this section shall

have the right to defend himself. . .’ does not amount to a conferment of judicial power upon the 7-man investigative Panel that may be appointed at the instance of the 1st Respondent to become a court for the trial of impeachments for the purpose of determining the guilt or otherwise of the Governor since such judicial power should be excercised by a full complement of the representatives of the people of Nasarawa State, to wit, the members of the state House of Assembly as envisaged by the judicial authority of DAPIANLONG V DARIYE [2007] 8 NWLR (PT 1036) 239 after due vesting of such judicial power in them.

10.A DECLARATION that the provisions of section 188 (2) (b) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) in relation to a Governor being ‘guilty of gross misconduct’ contravenes the provisions of section 36 (5) of the Constitution, which right to be given a fair hearing is not waived just because a person has risen to hold the office of Governor of a state, because it presumes that a holder of the office of Governor is guilty before even undergoing the process of determining the allegations contained in the notice of allegations issued against the holder of the office of Governor.

11.A DECLARATION that the combined effects of the provisions of section 188 (2) (b) in relation to a Governor being ‘guilty of gross misconduct’ before he is even served with the notice of impeachment and S. 188 (9) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) as it relates to the state House of Assembly making a determination of the Governors right to continue to hold his office, contravene the doctrine of nemo judex in causa sua as enshrined in the express provisions of section 36 (1) of the Constitution which guarantee that even in a trial for impeachment and removal proceedings, a Governor should only be tried by a court for the trial of impeachments duly established and conferred with requisite judicial power so as to guarantee its impartiality.

12.A DECLARATION that the provisions of section 188 (6) which states that ‘the holder of an office whose conduct is being investigated under this section shall have the right to defend himself. . .’ contravenes the provisions of section 36 (1) with respect to determining the civil right of Alh. Umaru Tanko Al-Makura to continue to hold the office of Governor of Nasarawa State because the envisaged 7-man appointed investigative Panel is not in any way conferred with the requisite judicial power to be a ‘court established by law’ or, more particularly, a court for the trial of impeachments but is merely a fact finding body.

13.A DECLARATION that the provisions of section 188 (9) of the Constitution which states that ‘where the report of the Panel is that the allegation against the holder of the office has been proved. . .’ is ultra vires the scope of the powers conferred

upon them and contravenes the plaintiffs right to a fair hearing as envisaged and enshrined in section 36 of the Constitution because the Panel was not expressly conferred or vested with any power to make any determination as to whether any allegation against the Governor had been proved or not at its inception.

14.A DECLARATION that in the absence of any judicial power being expressly conferred or vested upon any of the bodies contained in S. 188 to adjudicate and make a final determination in respect of the items contained in a notice of allegation against a Governor, any purported determination of the dispute arising from the notice of allegations issued against the Governor would contravene his right to a fair hearing as guaranteed under S. 36 (1), (2), (5) and (6) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), same having not been done by a court for the trial of impeachments duly conferred and vested with judicial power to do same.

15.A DECLARATION that by a combined reading of the entirety of S. 188, and particularly S. 188 (7) and also S. 128 of the Constitution, the purported conferment of power upon the investigative Panel to determine the guilt of a Governor is ultra vires the powers conferred upon them under the Constitution and is likely to infringe upon the fundamental human rights of Alh. Umaru Tanko Al-Makura, the Governor of Nasarawa State as contained in S. 36 (1), (2), (5) and (6) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) to be given a fair hearing in proceedings leading to his removal as the Governor of Nasarawa State.

16.A DECLARATION that the powers conferred upon the 2nd Respondent in S. 188 (9) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) , to the effect that from the date that they adopt the report of the Panel after considering it, the Governor stands removed from office, cannot and does not constitutionally remove a Governor from office because the powers they therein excercise are strictly parliamentary functions, having not been duly and expressly conferred with any prior judicial power to first and foremost sit and make a determination of the Governors right to continue to hold office as a court for the trial of impeachments.

17.AN ORDER RESTRAINING the 1st defendant, as the Speaker of the Nasarawa State House of Assembly, from acting in pursuance of his legislative powers as conferred in pursuance of S. 188 (9) of the Constitution, in purported furtherance of a judicial function never conferred upon the 2nd Respondent, to call for the consideration and adoption of any report that is likely to emanate from any investigation Panel set up or that may be set up in furtherance of any notice of

allegations of gross misconduct issued against the Governor of Nasarawa State with a view to eventually removing the Governor of Nasarawa State from office, because it would amount to an ultra vires act, since the entire procedure is likely to breach the Governors fundamental right to be given a fair hearing as guaranteed under S. 36 (1), (2), (5) and (6) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) because the duty conferred upon the Respondents therein is strictly a legislative duty which legislative power cannot validly determine the rights of a holder of the office of Governor to continue to hold his office.

18.AN ORDER RESTRAINING the 2nd Respondent from acting in pursuance of their legislative powers as conferred in pursuance of S. 188 (9) of the Constitution, in purported furtherance of a judicial function never conferred upon them and considering and adopting any report that is likely to emanate from any investigation Panel set up or that may be set up in furtherance of any notice of allegations of gross misconduct issued against the Governor of Nasarawa State with a view to purportedly removing the Governor of Nasarawa State from office, because it would amount to an ultra vires act, since the entire procedure is likely to breach the Governors fundamental right to be given a fair hearing as guaranteed under S. 36 (1), (2), (5) and (6) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) because the duty conferred upon the Respondents therein is strictly a legislative duty which legislative power cannot validly determine the rights of a holder of the office of Governor to continue to hold his office.

19.AN ORDER pursuant to S. 36 (2) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) striking down or invalidating Ss. 188 (2) (b); (6); (9) and (10) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), for being antithetical to and in contravention of a Governors constitutional right to a fair hearing as guaranteed under Ss. 36 (1), (5) and (6) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) since same does not expressly confer or vest upon the state House of Assembly the necessary vires to sit and act as a court for the trial of impeachments and thereby violates his right to fair hearing.

3. GROUNDS UPON WHICH THE RELIEFS ARE SOUGHT:

1 The Governor of Nasarawa State is immune from civil or criminal prosecution during the tenure of his office as contained in S. 308 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).

2 The provisions of S. 188 of the Constitution which allow for the removal of the Governor from office upon being tried for allegations as contained in a notice of allegations of gross misconduct constitute an exception to the general immunity conferred upon a Governor from civil or criminal prosecution as contained in S. 308 of the Constitution.

3 The Process of removal of a Governor from office is intended to be a trial whereby a dispute between the Nasarawa State House of Assembly and the Governor of Nasarawa State would be settled.

4 The said trial intended above is meant to be conducted by a court for the trial of impeachments comprising a full complement of the people of Nasarawa State who voted the Governor into office, to wit, the Nasarawa State House of Assembly based on the authority of Inakoju v Adeleke [2007] 4 NWLR (Part 1025) 423.

5 Being a trial, the basic tenets of fair hearing as enshrined in S. 36 of the Constitution are to be adhered to and enjoyed by the Governor of Nasarawa State before his removal from office.

6 The provisions of S. 188 of the constitution do not expressly confer upon either the investigative Panel nor the 2nd Respondent the power or authority to make any judicial determination as to the guilt or otherwise of the Governor of Nasarawa State in respect of any notice of allegations that may be served upon him at any time as none of them is vested with power, under the circumstances to become a court for the trial of impeachments.

7 In the absence of the 2nd Respondent in line with the authority of Inakoju v Adeleke [2007] 4 NWLR (Part 1025) 423 being expressly vested with judicial power to become a quasi-political court to try the allegations of gross misconduct leveled against a Governor, the provisions of S. 188, as presently constituted under the Constitution of the Federal Republic of Nigeria, 1999 (as amended) do not ensure that the Governor of Nasarawa State’s right to fair hearing is protected in the course of the impeachment proceedings.

8 The fact that a person rises to become the Governor of a State does not mean that they have relinquished their right to be given a fair hearing, moreso as constitutional and fundamental rights cannot be waived.

9 The right to be given a fair hearing in respect of the determination of any disputes between persons and authorities in Nigeria is guaranteed all Nigerians, including serving Governors of states within Nigeria.

10 That 20 of the 24 lawmakers which make up the Nasarawa State House of Assembly have a statistical advantage because they are all members Peoples Democratic Party (PDP).

11 The provisions for the removal of a Governor, as highlighted by Justice Niki Tobi (as he then was) in the case of Inakoju v Adeleke [2007] 4 NWLR (Part 1025) 423, ought not to be used merely for political purposes.

12 On Tuesday July 15, 2015, retired Vice Admiral Murtala Nyako, former Governor of Adamawa State of the All Progressives Congress, the same political party as the Governor of Nasarawa State was removed from office by virtue of the provisions of S. 188 of the Constitution.

13 From all indications, the initiation of the process to remove the Governor of Nasarawa State from office is being done merely for political motives because he is a member of the main opposition party, All Progressives Congress just like the former Governor of Adamawa State mentioned above.

14 In each and every case where removal proceedings have been initiated against a Governor, it is a foregone conclusion that the Governor would be removed from office once the Procedures are initiated.

15 The above state of affairs exists and is always successful because of the flaws in the constitutional provisions which do not secure the Governors fundamental right to be given a fair hearing before a duly constituted quasi-political court.

16 That on Tuesday August 5, 2014, the Governor of Nasarawa State, Alh. Umaru Tanko Al-Makura was discharged and acquitted by an investigative Panel inaugurated to investigate allegations preferred against him by the Nasarawa State House of Assembly;

17 In the build-up to the conclusion of their work, aspersions were cast upon the person of the Chief Judge of Nasarawa State in respect of the exercise of his discretion with regards to the persons appointed to the investigative Panel thereby giving credence to the fact that once the process is initiated, a Governor should eventually lose his office;

18 The allegations against the Chief Judge have cast his person, his office and indeed, the entire judiciary in a bad light.

19 It is likely that anytime a state House of Assembly feels that they shall not get a favourable report from the investigative Panel they would cast such aspersions upon the person and office of the Chief Judge, thereby exposing the judiciary to unwarranted opprobrium.

20 The 2nd Respondent seems to be aware that the provisions of S. 188 as presently constituted do not guarantee a fair hearing to a Governor, thus their insistence upon the current order of things based on previous impeachment sagas.

21 The provisions of S. 188 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) as presently constituted serves to weaken all the institutions of government that play roles therein, particularly the judiciary, to the undue benefit of the legislative arm of government.

22 I am of the firm belief that this suit would settle the above and other issues and prompt Constitutional changes that would insulate the revered office of the Chief Judge of a State from such attacks upon their integrity, person and office in the performance of any administrative constitutional duties that may be conferred upon them;

23 It is likely that more Governors, particularly those of the All Progressive Congress, may be targeted for removal in the same manner because of flaws in the existing constitutional provisions which do not ensure that any of them would be granted a fair hearing before a duly constituted quasi-political court empowered to determine the dispute between the State House of Assembly and the Governor of the state.

24 In a young democracy like Nigeria, the likely plethora of removals of Governors, particularly only the Chief Executives of the main opposition party by a procedure which does not guarantee that their right to fair hearing is protected, is dangerous for the stability of the socio-political system of the entire country and this opinion of mine has been expressed in the Supreme Court case of Inakoju v Adeleke [2007] 4 NWLR (Part 1025) 423 at 634, paragraph C – E.

25 The inherent lapses in S. 188 which have not adequately ensured the protection of the Governors fundamental right to be given a fair hearing affords the opportunity for the above state of affairs to exist to the detriment of Governors of Nigeria, their political parties, the judiciary and ultimately, the Nigerian polity and therefore, must be interpreted and the court should give reasonable redress for the injustice being meted out to the Governors of states in Nigeria with respect to the procedure to be followed towards removing them from office should our suit be found to have merit.

26 Even though the Governor of Nasarawa State was discharged and acquitted, the Nasarawa State House of Assembly has still threatened in various media that they shall not relent in their efforts to impeach their Governor.

27 It is imperative for this Honorable Court to determine the recondite issues that are being raised by this suit, to wit, whether under S. 188 a Governor is given a fair hearing, because it would advance the Rule of Law.


__________________________B. F. Towobola, EsqAletheia Advocates






LafiaFOR SERVICE ON:


mailto:[email protected]



SUIT NO: _____________________


HOLDEN AT LAFIA




AND



AFFIDAVIT IN SUPPORT OF APPLICATION FOR ENFORCEMENT OF FUNDAMENTAL RIGHTS

I, Babatunde Folarin Towobola, Male, Adult, Christian, Legal Practitioner of No. 37/39 Tafawa Balewa Street, Jos, Plateau State do hereby solemnly make oath and state as follows:

1. That I am a public interest litigator and I take this matter up in the interest of the uninformed and vulnerable Governor and people of Nasarawa State, holders of the office of Governor in the respective states of Nigeria and the generality of Nigerians who are directly or indirectly affected by the effect of sudden changes in governance resulting from the unconstitutional removal of state chief executives;

2. That I know as a fact that the Governor of Nasarawa State is immune from civil or criminal prosecution during the tenure of his office as contained in S. 308 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended);

3. That I also know as a fact that the provisions of S. 188 of the Constitution which allow for the removal of the Governor from office upon being tried for allegations

as contained in a notice of allegations of gross misconduct constitute an exception to the general immunity conferred upon a Governor from civil or criminal prosecution as contained in S. 308 of the Constitution.

4. That I know as a fact that when Chief Executives of States are charged for impeachment, the allegations mostly border on corrupt practices;

5. That impeachment proceedings are meant to include a trial by a duly constituted court for the trial of impeachments which would ensure the protection of the Governors fundamental right to be given a fair hearing;

6. That I know as a fact that the provisions of S. 188 of the Constitution as presently constituted do not expressly confer upon either the investigative Panel nor the Nasarawa State House of Assembly the requisite judicial power or authority to make any determination as to the guilt or otherwise of the Governor of Nasarawa State in respect of any notice of allegations that may be served upon him at any time;

7. That because by of the absence of a court for the trial of impeachments in the provisions of S. 188, as presently constituted under the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the Governors right to fair hearing is violated in the course of the removal proceedings;

8. That every Nigerian is entitled to a fair hearing, including Alh. Umaru Tanko Al Makura;

9. That I am not aware of the provision of any law which makes it imperative for Alh. Umaru Tanko Al Makura to waive his right to be given a fair hearing upon his rising to hold the office of Governor of Nasarawa State;

10.That I know as a fact that fundamental rights cannot be waived;

11.That the current lapses in S. 188 of the Constitution make it possible for a person to be removed from office as Governor simply for political reasons;

12.That I know as a fact that the Constitution does not envisage that a Governor be removed merely for political purposes;

13.That I also know as a fact that the Apex Court, the Supreme Court has also pronounced that the removal of a Governor from office should not be done merely for political reasons;

14.That on Tuesday July 15, 2014, retired Vice Admiral Murtala Nyako, former Governor of Adamawa State of the All Progressives Congress, the same political party as Alh. Tanko Al Makura, the Governor of Nasarawa State, was removed from office by virtue of the provisions of S. 188 of the Constitution;

15.That I know as a fact that it is the absence of provisions which guarantee a fair hearing for the Governor that made the impeachment process initiated against retired Vice Admiral Murtala Nyako successful;

16.That in the event that a Governor does prevail, aspersions are cast on the integrity of the Chief Judge and the members of any investigative Panel which he may set up as to their objectivity and neutrality, ultimately affecting their credibility;

17.That a rash wave of removals of state chief executives from office, particularly if

18.That I am of the firm belief that a strong opposition is required in order for the country’s democratic structures to be strengthened, for the good of all;

19.That it is necessary for this honorable court to step in and interpret the relevant provisions of the Constitution with a view to determining all the issues which this recondite point of law raises.

20.That I depose to this oath in good faith, verily believing its contents to be true to the best of my knowledge, information and belief and also in accordance with the Oaths Act, 2004.

_____________________

DEPONENT

Sworn to at the High Court Registry, Lafia

This ___________ day of _____________________, 2014.

BEFORE ME

COMMISSIONER FOR OATHS


SUIT NO: _____________________


HOLDEN AT LAFIA




AND



WRITTEN ADDRESS IN SUPPORT OF SUBSTANTIVE APPLICATION

ISSUES FOR DETERMINATION

1 Whether the ouster clause contained in S. 188 (10) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) can effectively serve to oust the jurisdiction of the court to entertain or question any proceedings or determination of the investigative Panel or the state House of Assembly when the provisions of the totality of S. 188 and S. 188 (10) respectively contravene the provisions of Ss. 36 (1), (2), (5) and (6) of the Constitution which guarantee that every Nigerian citizen shall be entitled to a fair hearing?

2 Whether in the absence of an express conferment of judicial power upon the state House of Assembly, empowering them to act as a quasi-political court and be the court for the trial of impeachments in order to determine the allegations of gross misconduct leveled against a Governor as envisaged under S. 188, the state House of Assembly can validly, lawfully or constitutionally make any determinations which would purportedly oust the jurisdiction of the court in

furtherance of S. 188 (10) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended)?

3 Whether, it accords with the provisions of the Ss. 36 (1), (2), (5) and (6) of the Constitution for a Governor to be removed from office in line with the procedure set out in S. 188 of the Constitution when the legislative intent of the procedure therein is that a trial ought to be conducted to determine the allegations and in the process, guarantee the Governors right to be given a fair hearing?

4 Whether the Governor of a state can be validly and constitutionally removed from office without first of all undergoing a trial as envisaged by the definition and judicial pronouncements on what impeachment is, the role of a court for the trial of impeachments and its role in the eventual determination of the right of any person to hold the office of Governor?

5 Whether the provisions of section 188 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) as presently constituted, which allows for the removal of the Governor of Nasarawa State, ensures that the constitutionally guaranteed right to a fair hearing which the Governor is entitled to enjoy, as enshrined in section 36 of the Constitution?

6 Whether a mere investigatory body, as envisaged under section 188 of the Constitution, may make determinations as to the proof of any allegations agasint a Governor as contained in the impeachment notice, without contravening the fundamental human right of the plaintiff to be given a fair hearing as contained in section 36 (1), (2), (5) and (6) of the Constitution?

7 Whether the procedure for the removal of the Governor of Nasarawa State as contained in section 188 of the Constitution confers upon the investigative Panel envisaged therein or the Nasarawa State House of Assembly the requisite judicial power to ensure a fair hearing as encapsulated in section 36 (1) of the Constitution, and in line with the principles of nemo judex in causa sua adheres to the rules of natural justice so as to enable them constitutionally determine the guilt or otherwise of the Governor of Nasarawa State?

8 Whether the ouster clause contained in S. 188 (10) of the Constitution can effectively oust the jurisdiction of the court in a democratic dispensation when the preceding subsections clearly show that they do not adequately protect a Governor’s right to be given a fair hearing as guaranteed under S. 36 of the Constitution?

INTRODUCTION

1.1 By S. 1 (1) Constitution of the Federal Republic of Nigeria, 1999 (as amended) (hereinafter referred to as ‘the Constitution’)

‘This constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria.’

No person is thus exempted from the spirit and the letter of the Provisions of the Constitution.

Having submitted above, all the issues shall be concurrently argued.

1.2 S. 188 (10) of the Constitution declares that

‘No proceedings or determination of the Panel or the House of Assembly or any matter related thereto shall be entertained or questioned in any court of law.’

1.2.1 The above provision seeks to oust the jurisdiction of this honorable court to in any way entertain this suit. Our response to same is that our case here is not in respect of any proceedings or determination of any Panel or 2nd Respondent. Our case here is an attack on the entire substantive procedure contained in S. 188 of the Constitution simplicita. It is thus not in any way covered by the ouster clause contained therein.Secondly, even if it may be conceded that our case here relates to any proceedings or determination of the Panel or 2nd Respondent, once we can show that any such purported proceedings or determination is unlawful, unconstitutional, or null and void or, in some wise defective in some aspect, then as a result of such a defect the ouster clause cannot stand and this honorable court shall be able to assume jurisdiction to hear and entertain this matter.

1.3 S. 188 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) declares that

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

The use of the term ‘may’ above shows that the removal of a Governor involves the exercise of discretion. The intended removal of the Governor of Nasarawa State, Alh. Tanko Al-Makura by the Respondents, has been colloquially referred to by the defendants as impeachment. It should, however, correctly be referred to as removal in line with the definitions and prevailing judicial authorities while the initiation of the whole process and the trial which leads to the removal of a

person from office are respectively referred to as the impeachment and trial of the impeachment.

1.4 ‘Impeachment’ has been defined in the case of INAKOJU V ADELEKE [2007] 4 N.W.L.R. (PART 1025) 423 at 578, paragraph D – E in the following words

‘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” ’ (Underlining mine)

The Learned Jurist, Tobi, JSC, in recognition of the definition above had more to say at page 578, paragraph F – H with a view to making it more applicable to the Nigerian setting:

‘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 Sates 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 a 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 a Governor or Deputy Governor, not of impeachment.’

Because our section 188, therefore, did not lay such emphasis on the fact that the conduct to be tried must be of a criminal nature, His Lordship said the above with a view to easing the definition to suit our Nigerian context. This initial definition given above was from the 6th. Ed. of the Black’s Law Dictionary.

However, the Black’s Law Dictionary, 8th Ed., taking into consideration current jurisprudential developments worldwide, defines ‘impeachment’ to mean

‘the act (by a legislature) of calling for the removal from the office of a public official accomplished by presenting a written charge of the official’s alleged misconduct; esp. the initiation of a proceeding in the U.S. House of Representatives against a Federal official, such as the President or a judge. . . The grounds upon which an official can

be removed do not, however, have to be criminal in nature. They usually involve some type of breach of the public trust. Articles of impeachment – which can be approved by a simple majority of the House – serve as the charging instrument for the later trial in the Senate.’ (Underlining mine)

1.4 From a combined reading of S. 188 in light of the definitions above, the removal of a Governor from office is intended to be based on acts of gross misconduct which have been duly proven after a trial. I submit without any fear of contradiction that while S. 308 of the Constitution estops any person from initiating civil and criminal proceedings against Governors during their tenure of office (except where they are merely nominal parties), S. 188 of the Constitution is inserted as an exception to this rule in relation to any conduct, criminal or civil, allegedly committed by the Governor in his official capacity which in the eyes of the State House of Assembly would reasonably amount to an act of gross misconduct so grievous that he should not reasonably be allowed to continue to hold the exalted office of Governor.

This is why the procedure as contained in S. 188 ‘sui generis’. See INAKOJU’s CASE (supra) at page 664, paragraph D; DAPIANLONG V DARIYE [2007] 8 NWLR (PT 1036) 332 AT 405, PARAGRAPH A. By creating this exception to the rule contained in S. 308 the constitution envisaged that by S. 188, for the purpose of trying impeachments initiated by a notice of allegation, there be established a quasi-political court, an impeachment court or, as is more technically known, a court for the trial of impeachments.

1.5 A ‘court for the trial of impeachments’ is defined at page 385 of Black’s Law Dictionary, 8th Ed. to mean

‘A tribunal empowered to try a government officer or other person brought before it by the process of impeachment. The US Senate and the British House of Lords have this authority, as do the upper houses of most legislatures.’ (Underlining mine)

Indeed, this ‘court for the trial of impeachments’ is the quasi-political court referred to in the exposition given by Justice Niki Tobi, JSC in INAKOJU’S case above. The body is intended to be one that has expressly been conferred and vested with the power and authority to try the impeachment allegations. This is because under the Constitution, the power to exercise judicial discretion cannot just be assumed unilaterally. It must be expressly vested. This is more so when it is a delegation of the ordinary judicial powers to another branch of government.

The rationale behind all the above is that the immunity clause serves to enable the Governor of the state fully concentrate on the issues of governance. In the unfortunate event, however, that his conduct however requires that he be

sanctioned, rather than bringing him before the ordinary courts of the land, a special court, i. e., a court for the trial of impeachments, should be established in order to maintain the dignity of the office while still ascertaining the allegations against the holder of the office.

1.6 It is for the above reason that the US Constitution has expressly vested upon the US Senate by Article I, Section 3 the power to try impeachments in the following manner

‘The Senate shall have the sole Power to try all Impeachments.’

For the purpose of trying impeachments of Federal officers or office holders, therefore, the Senate of the United States, by this provision under their Constitution has, in unequivocal and clear terms, been expressly vested with power to be the quasi-political court better known as the court for the trial of impeachments.

1.6.1 In line with all the above submissions, I submit that the state House of Assembly is the corresponding body under the Nigerian Constitution at the state level which should exercise such judicial power and try the Governor of a state. In support of this position I refer this court to the case of DAPIANLONG V DARIYE [2007] 8 NWLR (PT 1036) 239. The Court of Appeal, per Bulkachuwa, JCA acknowledged the above and highlighted the need for the state legislature, i. e., the state House of Assembly to be the body expressly conferred with the power to finally determine allegations of gross misconduct against a Governor because the House of Assembly consists of the representatives of the people who elected the Governor into office in the first place.

At page 307, paragraph C, the Learned Jurist declared that

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

It follows that his removal from office will require the same reverse procedure.’

He continued at paragraph E by saying

‘The Plateau State House of Assembly had 24 members . . . 8 is 1/3rd of 24 and represents 1/3rd the constituency of the population of Plateau State They do not represent 2/3rd population of Plateau State and therefore do not have the mandate of the people to remove a Governor elected by 2/3rd majority of the electorate of Plateau State.’

In concluding, His Lordship stated at paragraph G – H that

‘Nobody prevents the 8 members from impeaching a Governor whom they believe has committed acts of gross misconduct. They should however go about it the right way, legally constitutionally.’

Interestingly, while the Court of Appeal by the above authority highlighted the intention of the legislature in line with the definitions and elucidation given above from INAKOJU'S CASE (supra), the court did not state or in any way acknowledge that the required judicial power had been expressly conferred upon the 2nd Respondent under the Constitution since the issue was not raised in that case .

There is also provision in S. 188 for the appointment of an investigative Panel. Having submitted as above that the 2nd Respondent is the intended body to be duly conferred with judicial power to constitute the court for the trial of impeachments, we shall highlight the intended duties of the Panel to butress the submissions above and fully delimit the functions of the said Panel.

1.6.2 The Duty of and P ower C onferred U pon the Panel to Investigate

1.6.2.1In order to understand the power that any authority or body of constitutional creation is conferred with, one must look at the law that creates it, in this case, S. 188 of the Constitution. In relation to the facts of this case, the constitutional provisions and the nature and purpose sought to be achieved under the circumstances which leads to the creation of the investigative Panel would highlight just what the duties of the Panel are and whether they had imposed upon them a duty to ensure that the Governor is to be given a fair hearing under S. 188 proceedings.

Our position above is just what the Apex Court, the Supreme Court, per Nnaemeka-Agu, JSC stated in the case of BABA v N.C.A.T.C. [1991] 5 N.W.L.R. (PART 192) 388 AT 415, PARAGRAPH D – E that

‘For the avoidance of doubt, I must emphasize that the decisive questions nowadays as to whether or not a person to be affected by the result of an inquiry ought to be given the opportunity of a hearing no longer necessitates trying to find out whether or not the deciding body is judicial or quasi-judicial on one hand or administrative or executive on the other. Nor are there objective and uniform standards of the requisite contents of hearing that are applicable in all cases. The two questions as to whether a hearing is necessary at all and what ought to be the proper content of the hearing must depend on the nature and purpose of the inquiry. It depends so much upon the intention and expected result of the inquiry. Where the body, whether Judicial, quasi-Judicial, administrative or executive in inception, acts judicially in the sense that it is to determine the civil rights and obligations of a person, or to find him

guilty or liable of a fault, then he must be given a hearing before the issue can be properly decided. That is the intendment of section 33 (1) of the Constitution of 1979 (now section 36 (1) of the Constitution). That indeed is the essence of fair hearing as a constitutional right.’

Therefore, it is only where at inception, the intention and result of the inquiry is that the body should determine the rights of a person that it would said to be acting in a judicial capacity and would need to give a fair hearing to the person(s) concerned. Inception simply means ‘at the start of’.

Therefore, the following issues, from the underlined portions must be addressed: at the start of the investigative Panel

1. What is the nature and purpose of the inquiry that the Panel under S. 188 is to carry out?

2. What is the intention of such an inquiry?

3. What is the expected result of the inquiry?

4. ‘Is the investigative Panel to determine the rights and obligations of’ the Governor?

1.6.1.2In order to answer the above issues, I reproduce here below the relevant sub-section of S. 188 which shows the nature, purpose and intention of the inquiry at the Panel’s inception. S. 188 (5) states

(5) Within 7 days of the passing of the 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 . . . to investigate the allegation as provided in this section.’ (Underlining mine for emphasis)

It is thus unequivocally clear, from subsection (5) above that the nature, purpose and intention of the Panel is, in line with the judicial authority above, simply ‘to investigate the allegation’. This is moreso because the allegations were never even debated upon. The question that thus arises is: in the context of this section of the Constitution and the facts of this case, what does it mean to ‘investigate’?

1.6.1.3To ‘investigate’ a matter, by the definition given in Black’s Law Dictionary, 8th ed. means

‘1. To inquire into (a matter) systematically; to make (a suspect) the subject of criminal inquiry. 2. To make an official inquiry.’

‘Inquiry’ has in turn been defined to mean

‘Parliamentary law. A request for information, either procedural or substantive.’

From all the above, therefore, the Panel envisaged under S. 188 is merely a fact finding Panel, an investigatory one, empowered to make requests for information, seeking to discover what the facts may be in relation to the notice of allegations of gross misconduct. They more or less play the investigative role of the police in impeachment proceedings and therefore cannot make determinations of right or find that any facts have been proved against the Governor. Owing to their wide powers, they could even invite the police as witnesses at the Panel since it is now trite that the immunity granted under S. 308 does not estopp the police from performing their statutory duty under S. 4 of the Police Act to conduct investigations and present their results to the Panel since they have 3 months to complete their job.

1.6.1.4To buttress the point above, S. 188 (2) (b) states in relevant part that

‘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.’ (Underlining mine for emphasis)

It should be noted that the response of the holder of the office, i. e., the Governor, in the circumstances of a case like the instant one is merely described to be a ‘statement made in reply’ and not a defence.

A statement is defined to be

‘1. Evidence. A verbal assertion or nonverbal conduct intended as an assertion. 2. A formal and exact presentation of facts. 3. Criminal Procedure. An account of a person’s (usu. a suspect’s) knowledge of a crime, taken by the police pursuant to their investigation of the offense.’

Very clearly from all the definitions provided above, a statement does not equate to a response to a charge. It just goes to prove that the legislature intended by the said section that, just like the police who thereafter investigate, the Panel which is given the function of investigating the allegation merely does so with a view to discovering more facts.

The reasoning for the above is especially so because there is no provision in the Constitution for the statement in reply to the allegations submitted by the Governor to also be sent to the Panel. The statement of the Governor submitted in accordance with S. 188 (2) in reply to the allegations is merely done to help determine whether or not in-depth investigation should thereafter be conducted. Thus, by the time the investigative Panel commences their work at S. 188 (7), the Governors statement in reply is not in their possession, thereby supporting the fact that they are to merely make an official inquiry into a matter in a systematic manner whereby they request for information.

1.6.1.5In more practical judicial terms, the Supreme Court elucidated more upon what it means to ‘investigate’ in the context of our cases of this nature in the case of BABA v N.C.A.T.C. [1991] 5 N.W.L.R. (PART 192) 388 at 415, paragraph G – 416, paragraph A

‘where . . . as in the case of the Afinni Panel in this case the body is merely investigatory or exploratory and does not determine the rights or obligations of the person affected it would be wrong to regard such a body as if it were a court . . . We must bear in mind the fact that they are not courts and that their mode of hearing must of necessity differ from that of courts . . . ’ (Underlining mine)

Therefore, an investigatory Panel as envisaged under S. 188 is merely investigatory and does not determine the rights of the Governor because the Panel is not conferred with such judicial power at their inception. It is not a court, much less a court for the trial of impeachments.

From the elucidation made from all the above submissions, therefore, the investigatory body under S. 188 cannot make the determinations of right merely alluded to as an after-thought in S. 188 (9). Their job, from inception, is simply restricted to systematically inquiring into a matter by way of requesting that people provide information to the body so as to make recommendations at the end of their assignment to a higher body duly conferred to act on whatever recommendations they may make.

Not having any judicial power, therefore, the Panel envisaged under S. 188 of the Constitution, just like the 2nd Respondent also cannot make any valid or constitutional determination of the rights of a holder of the office of Governor to continue to hold same which can validly serve to oust the jurisdiction of this Honorable Court to entertain this suit.

1.6.1.6In further support of our position on the above, we rely again on the Supreme Court case of BABA v N.C.A.T.C. [1991] 5 N.W.L.R. (PART 192) 388. The appellant was an employee of the Respondent. In the course of his employment, he was suspected to have committed some acts of gross misconduct and was to

have been taken through the disciplinary process in order to ascertain whether or not he should be removed from office by summary dismissal.

The appellant was alleged to have engaged in certain acts which amounted to gross misconduct. NNAEMEKA-AGU, JSC (as he then was) stated at page 416, paragraph D, in line with our position that a panel set up with the purpose to investigate the facts of a particular case cannot determine the fate of an employee. In elaboration of this point, he declared at page 418, paragraph E – H as follows:

‘Where some allegations have been made against an employee . . . the employer is entitled to set up a panel to investigate the allegations. Such an investigative panel is not a court of trial; . . . in the process of investigation, it can receive its information from any source . . . but once the panel has concluded its inquiry and makes up its mind that any points had been prima facie made out which point to the fault of any person, the employer must first inform such an employee of the points in the case against him and give him the opportunity to refute, explain or contradict them or otherwise exculpate himself by making any representations and defence thereto before the employer can lawfully use those points as bases for dispensing with his service.’ (Underlining mine for emphasis)

From the above, therefore, once allegations are raised in accordance with S. 188 (2), a panel can be set up to investigate the allegations as provided in S. 188 (4)-(7), after deliberating on same as in S. 188 (3). They can receive their information from any source. In submitting their report as envisaged in Ss. 188 (9), if they feel that any points have been prima facie made out against the Governor, the 2nd Respondent should at that point, constitute the court for the trial of impeachments, inform him of the points in the case against him and afford him the opportunity to defend himself. This last part, which would guarantee the protection of the Governors right to fair hearing, before a court duly constituted by law as envisaged under S. 36 (1) of the Cosntitution, contrary to what the Supreme Court declared in INAKOJU’S case, is glaringly missing from the entire process.

In light of the time-tested elucidation of the duties of an investigation panel and the role they play in protecting the right to a fair hearing as highlighted above, we humbly urge the court to consider the functions of an investigative panel established under S. 188 within the context of the elucidation given in the cases cited above.

From the totality of the dictum of the Learned Jurist above, therefore, it is clear that an investigative panel is merely a preliminary body that is vested with the duty to receive, from any source, information likely to establish the allegations against the Governor. Whatever decision may be taken by the investigative body

based on what may have prima facie been established before them would thereafter inform whatever recommendations the investigative panel would make to another body, because in the circumstances of cases like this, the investigative panel is only supposed to discover what the facts may be and make recommendations to the higher body.

In further support of the fact that the investigation Panel cannot make any determinations of right but should be purely advisory, I again cite the case of INAKOJU V ADELEKE [2007] 4 N.W.L.R. (PART 1025) 423 which was itself a removal case, like the instant one. Justice Niki Tobi, JSC, as he then was, after a very commendable effort at clarifying some of the finer points to be taken into consideration in the establishment of the investigative panel envisaged under S. 188, stated at page 581, paragraph D that it was necessary for all those criteria to be taken into consideration so that

‘an arm-chair recommendation will not be made.’

He therefore highlighted that the ultimate duty of the investigative Panel in relation to the impeachment or removal of a governor is to make recommendations to the House of Assembly after systematically obtaining information which would clarify the actual facts of a matter. I would not need to go too deep in submitting that ‘recommendations’ do not in any way equate to a ‘determination’. Courts do not make recommendations; they determine matters.

For the above reasons, the Panel envisaged to be impanelled by the Chief Judge of the State in section 188 is to take all these into consideration with a view to merely making well-informed recommendations, based on the facts they are meant to discover.

1.6.1.7In interpreting the Constitution, courts are enjoined to give the terms their ordinary meaning. We submit that the Learned NNAEMEKA-AGU, JSC (as he then was) has done just that in the case of BABA v NCATC (supra) in respect of the functions and duties of an investigative panel and same should be applied by this honorable court in the determination of this matter.

The power purportedly conferred upon the investigative Panel in S. 188 (9) therefore infringes upon and offends the provisions guaranteeing a fair hearing to a Governor sought to be impeached and removed because it amounts to hoping to receive from the Panel what they cannot give. The maxim is very clear: nemo dat quod non habet – you cannot give what you do not have. The relevant portion being referred to above is cited below:

‘Where the report of the Panel is that the allegation against the holder of the office has been proved . . .’

For the Panel to have ‘proved’ any allegations it means that they should have, at inception, been conferred or vested with the requisite power to ‘establish and make certain; establish the truth (of a fact or hypothesis) by satisfactory evidence.’ In order to do this, they must have first of all expressly been conferred and vested with the power to do so because under the circumstances, the final result would be to finally determine whether or not the Governors constitutional right to hold office would be adversely affected. But as we have already stated above, the power of the Panel is simply to request for information. The power to establish and make certain, establish the truth of, is glaringly absent at the point of its inception.

I therefore submit that because the Panel, at its initiation, was never conferred with the power to establish the truth of any facts, the provisions of S. 188 (9) cannot, especially not after the conclusion of their duty, confer them with a power not initially envisaged while they were performing their functions. This is because fair hearing is seen in the entirety of the trial and not in the decision that is finally taken. Their duty at inception was simply to find out what the facts may be, and not to decide whether those facts had been proved.

To again buttress the point that the panel is merely a fact-finding one with no powers to determine whether anything has been proved, S. 188 (7) of the Constitution declares that

‘(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;’

The Panel cannot therefore just come up with their own rules of procedure. In fact, in explaining this subsection Tobi, JSC stated at page 583, paragraph E – F of INAKOJU’S CASE (supra) that

‘the procedure prescribed should not be ad hoc but should apply to all investigations.’

To further buttress the limits of an investigative Panel to mere exploration and fact finding, by S. 128 of the Constitution, the 2nd Respondent is conferred with the power to

‘direct or cause to be directed an inquiry or investigation into . . .

(ii) disbursing or administering moneys appropriated or to be appropriated by such House.’

I submit that flowing from the allegations contained in the notice of impeachment which border on corruption, the powers of the Panel to investigate are a shadow of the powers conferred upon the House of Assembly which delegated the power to them to investigate.

1.6.1.8From all the above provisions, 2 things are clear:

Firstly, that no power is conferred upon the investigative committee of the 2nd Respondent to make a determination of guilt against the Governor; and

Secondly, it acknowledges that while the duties of the Honorable members of the 2nd Respondent are strictly legislative, they can carry out or cause to be carried out administrative investigations merely for the purposes outlined in S. 128 (2) of the Constitution.

From the entirety of S. 128, therefore, the powers of an investigative committee do not include determination of rights. When the nature of the power delegated to the Panel is therefore likened to the same power to investigate conferred upon the body that appointed them to perform the same function, the Panel also cannot determine the rights of the Governor. They are merely a fact finding body. They can only inquire with a view to exposing likely acts of corruption. Should the facts they discover tilt towards any likely corrupt conduct, the Governor ought to be formally brought before a duly conferred court for the trial of impeachments with all the attendant protections of his right to be given a fair hearing.

I here, again, cite in support of our position above the Supreme Court case of BABA v N.C.A.T.C. [1991] 5 N.W.L.R. (PART 192) 388 where NNAEMEKA, JSC (as he then was) stated at page 416, paragraph D that a panel set up with the sole purpose to investigate the facts of a particular case cannot decide on the fate of an employee. In the same vein, in this case, a Panel set up with the sole purpose to investigate the facts contained in a notice of impeachment cannot decide on the fate of the Governor. The Panel merely has investigatory power.

‘Investigatory power’ means

‘the authority conferred on a governmental agency to inspect and compel disclosure of facts germane to an investigation.’ Black’s Law Dictionary, 8th Ed.

Ss. 128 and 188 (3), (4), (5) & (6) of the Constitution clearly show that the general power that was conferred upon the Panel is limited to fact-finding.

Because a complete reading of the provisions of S. 188 therefore, contravenes that of S. 36 and do not ensure that a Governor would get a fair hearing, we urge the Court to hold that the Applicant cannot validly be removed from office by the

Respondents on the above ground since no constitutional determination can be made thereon.

From all our submissions above, therefore, the following is very clear:

1. the nature and purpose of the inquiry that an investigative Panel under S. 188 is to carry out is merely exploratory, fact finding, one that seeks to recommend a way forward;

2. the intention of the inquiry of the investigation Panel is simply to ascertain what points may, prima facie have been made out against the Governor since the source of the allegations does not show the level of fact finding that may have been done before the allegations are submitted to the 2nd Respondent; and

3. the expected result of the inquiry at its inception, as can very clearly be seen from S. 188 (7) (b) is not to make a determination of guilt or otherwise against the Governor but to report their findings to the 2nd Respondent and suggest the way forward.

1.6.1.9I am not unaware of the provisions of S. 188 (6) which states that

‘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.’

The above subsection again highlights the lapse in S. 188. The use of the term ‘is being investigated’ in the above cited subsection refers to a matter that has already commenced since the term ‘being’ is present continuous tense. It is therefore not a power that is conferred upon the Panel at its inception because clearly, it is later in time than the provisions of S. 188 (5).

S. 188 (6), therefore, cannot confer and does not meet the constitutional requirements for validly vesting judicial authority upon the Panel in excess of the functions given them at inception and in S. 188 (5): to wit: to investigate the allegations made against the Governor.

On the issue of the holder’s power to ‘defend’ himself, we have 2 responses. First, the term ‘defend’, in the context of the said section simply means ‘to deny, contest, oppose’. It therefore does not amount to an express conferment of jurisdiction to determine the Governors rights. It can merely be compared to ‘any statement made in reply to the allegations’ which a Governor can make as mentioned in S. 188 (2) of the Constitution. it is just that at the point of S. 188 (7), it has gone beyond mere allegation in S. 188 (2) to fact finding in S. 188 (7).

Second, even though a Governor appears before an investigation Panel in such a manner as to make himself appear like a defendant or accused person in a civil or criminal case respectively, that does not amount to a conferment of jurisdiction upon the Panel to make a determination of his rights. It is trite that parties cannot by consent confer jurisdiction upon a court. Not even the presence of legal practitioners on his behalf can confer jurisdiction to transform the investigatory Panel into a court for the trial of impeachments.

1.6.1.10 In summary, therefore, the act of the investigation Panel to determine that any allegations of misconduct against the Governor have been proved is ultra vires, the power to do same having not initially been conferred or vested upon the Panel.

From the totality of all the above submissions, therefore, because the right to hold the office of Governor was given by a full mandate of the people of the state concerned by way of general election, if his right to continue to hold the said office is to be taken away, it would have to be done by the people, through their representatives. The purported conferment of power upon the investigative Panel in S. 188, therefore, to make determinations in respect of the right of the Governor to continue to hold his office is therefore unconstitutional, inchoate, null and void because the said Panel as presently constituted does not represent a full complement of the citizens of the state.

1.6.2 From all the above, therefore, it is intended that the 2nd Respondent alone should exercise full judicial power in impeachment and removal proceedings. Our reasoning above is supported by the dictum from Corpus Juris Secundum which was cited in the case of ABARIBE V ABIA STATE HOUSE OF ASSEMBLY [2002] 14 NWLR (PART 788) 466. At page 491, paragraph E – G, the court proclaimed that

‘At para. 179 of Vol.67 of Corpus Juris Secundum the learned authors write as follows on impeachment:

“. . . The Legislature in impeachment proceedings excercises judicial, not the legislative power conferred on it by the Constitution.” ’

It should be noted that the legislature is to exercise full judicial power. ‘Judicial power’ is defined to mean

‘2. A power conferred on a public officer involving the exercise of judgment and discretion in deciding questions of right in specific cases affecting personal and proprietary interests.’

The judicial judgment and discretion mentioned in the above definition was intended in S. 188 (1). The power was however not conferred.

1.6.3 In DAPIANLONG’S case, therefore, the Court of Appeal highlighted the very important role of the 2nd Respondent as intended in S. 188 (1) in the impeachment and removal of a person holding the office of Governor. Indeed it was intended that they and they alone, in line with our earlier submissions, constitute the ‘court for the trial of impeachments’ in line with the definition in INAKOJU’s case above. Unfortunately, the 2nd Respondent has not been so expressly conferred with judicial power as the ‘court for the trial of impeachments’ by the requisite conferment of judicial authority in line with normal constitutional procedure just like other courts under the Constitution. This is why the Panel to be set up under S. 188, even though they are not representatives of the people, is also, by Ss. 188 (9) and (10), erroneously believed to have power to make determinations with respect to the right of a person to hold the office of Governor. They ascribe this power to themselves because of the glaring lacuna in the Constitution.

Any purported ‘determination’ of the 2nd Respondent under S. 188 (10) as presently constituted, therefore, in the absence of the express conferment of full judicial power to make same remains inchoate and does not possess the required force of law to have any adverse effect upon the rights of the holder of the office of Governor to continue to hold office and thereby constitutionally oust the jurisdiction of this honorable court.

1.7 The term ‘determination’, in relation to the section cited above has been defined at page 480 of Black’s Law dictionary (supra) to mean

‘a final decision by a court or administrative agency.’

The intention behind purportedly ousting the jurisdiction of this honorable court by S. 188 is because as intended, a quasi-political court would have already determined the matter upon a due exercise of the requisite judicial power.

1.8 Since the impeachment and removal of a Governor ultimately requires an act of judicial discretion which is intended to be done by way of a trial by a quasi-political court, like every other court under the Constitution, judicial powers cannot be implied or merely presumed to have been conferred upon any body because of the weighty issue of fair hearing which any judicial function raises. Judicial powers or, the jurisdiction that should have been vested in the 2nd Respondent to determine a matter should have been duly and expressly conferred or vested on the person or body concerned in order for any determination therefrom to be valid and successfully oust the jurisdiction of the courts.

1.9 By S. 6 (1) of the Constitution, the judicial powers of the nation are expressly vested upon all the courts listed in S. 6 (5) in the following manner

‘The judicial powers of the Federation shall be vested in the courts to which this section relates, being courts established for the Federation.’

More particularly in S. 6 (6) (b), these judicial powers

‘shall extend to all matters between persons, or between government or authority and to any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights or obligations of that person.’

This section therefore expressly vested judicial power in the judicial arm of government at their respective levels to determine matters and civil actions between persons since such disputes border on the attainment of the fundamental right to be given a fair hearing. It must be noted that the conferment of this inherent power upon the judiciary is done at the very inception of the Constitution, where the three arms of government were being created.

1.9.1 This express conferment of power is again done in sections 36 and 44 (1) (b), which talk about the fundamental rights of citizens in relation to the powers conferred upon the courts. More particularly, express conferment of judicial power is again done in Ss. 232 & 233 (1), 239 & 240, 251 (1), 262, 267, 272, 277, 282, 285 and 286 in respect of the respective courts created under S. 6 (5) of the Constitution. All this is done to buttress the fact that the judicial power required to determine disputes which require the protection of the right to a fair hearing must be expressly vested in the person, body or institution to exercise the discretion that goes with the judicial power.

1.9.2 The creation of courts shows that each time another court is created and conferred with exclusive jurisdiction to determine matters of a particular nature which whittles down the original jurisdiction of some other court, it is expressly done. Consequently, since the new court can make determinations in respect of the matters over which it has jurisdiction, such power duly conferred serves to oust the jurisdiction of the initial. Our constitutional development proves that this whittling down of jurisdiction has been mostly experienced by the High Court. The court’s jurisdiction would thus be ousted because it cannot sit on appeal over a decision taken by a court of co-ordinate jurisdiction.

1.10 Having therefore expressly vested the judicial powers in the courts established under the Constitution, before any other person or body of persons may exercise such power, same must first be expressly divested from the courts and then subsequently expressly vested in such person or body of persons. In the case of INAKOJU V ADELEKE [2007] 4 N.W.L.R. (PART 1025) 423, Tobi, JSC at 595, PARAGRAPH F - G cited the case of MUSA v HAMZA (1982) 3 NCLR 229 at 252 – 253 which I reproduce hereunder:

‘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 be lightly taken away by means of any construction extraneous and exotic to the expressed intentions and aspirations of the Constitution.’ (Underlining mine for emphasis)

Therefore, My Lord, since the Constitution has unequivocally and in clear words vested the courts with the power to make determinations in disputes, this power cannot be lightly taken away in a matter like this which borders on the determination of a dispute between the Respondents and the Governor, the Governor’s right to hold his office and ultimately, the Governors right to be given a fair hearing. If the power of this Honorable court as conferred and vested under S. 272 (1) of the Constitution is to be ousted as envisaged under S. 188 (10) of the Constitution because another court should have acted judicially therein, then the court for the trial of impeachments should have, prior to S. 188 (10), been expressly vested with the power to wield same in the circumstances so as to ensure the protection of the Governors right to be given a fair hearing. This vesting has not been done in S. 188 or any other part of the Constitution and thus any determination of the Governors right to continue to hold his office infringes upon and violates the Governors right to fair hearing.

In our support, I here cite the case of ANSA V THE REGISTERED TRUSTEES OF THE PRESBYTERIAN CHURCH OF NIGERIA [2008] ALL FWLR (PART 405) 1681 AT 1701, PARAGRAPH E – F

‘Jurisdiction of courts must be stated expressly and clearly by the Constitution or statute, but definitely not by mere inference or implication. A court cannot assume or arrogate to itself a jurisdiction which it does not have . . . ‘

I submit that the court for the trial of impeachments is within the definition above.

It is because this power has not been expressly vested in accordance with the law that confusions has arisen in S. 188 (9) and both the Panel and the state House of Assembly are mistaken as having power to make a determination of the Governors right to continue to hold office. This should not be so.

1.11 S. 188 (1) simply proclaims the legislative intention that a Governor or Deputy Governor may be removed from office and that such removal shall be guided by the remaining provisions of the section. It does not amount to a conferment of judicial power upon the 2nd Respondent. In interpreting sections of the Constitution, the words should be given their simple, ordinary grammatical meaning. With profound respect, I humbly submit that with respect to expressly vesting power, especially judicial power, in a person or body, S. 188 (1) does not meet the conditions for the valid and constitutional conferment of judicial power upon the 2nd Respondent in S. 188 or in any other part of the Constitution. In

order for a valid conferment of judicial authority to be made it must be expressly done: unequivocally and in clear terms. Under Article 1, Section 3 of the US Constitution as already quoted above, in 11 simple words, the US Senate was conferred with the power to sit as a court for the trial of impeachments. While I do not advocate that the Nigerian Constitution must adapt the same style of wording to vest the judicial power in the state House of Assembly in order to be granted the necessary vires to determine allegations of impeachment, I must say that there is no corresponding express conferment of the said judicial power in the 2nd Respondent when S. 188 (1) is given its simple and ordinary meaning. And they cannot assume or arrogate to themselves any jurisdiction which they do not already have.

1.12 Our interpretation above has ground in the case of DAPIANLONG V DARIYE [2007] 8 NWLR (PT 1036) 332 AT 412, paragraph F – H

‘In the case of Fawehinmi v I.G.P. (2002) 7 NWLR (Pt. 767) 606 at 678 this court stated the law thus

“The proper approach to the interpretation of clear words of a statute is to follow them, in their simple, grammatical and, ordinary meaning rather than look further because that is what prima facie gives them their most reliable meaning. . . This is generally also true of the construction of Constitutional provisions if they are clear and unambiguous even when it is necessary to give them their liberal or broad meaning.” ’

1.13 If the judicial powers of Nigeria as already established under S. 6 of Chapter I, Part I of the Constitution, still had to be expressly vested in the courts again in Chapter VII of the Constitution, respectively delimiting their jurisdiction, then it cannot be overemphasized that a legislative body established in pursuance of legislative power should, even moreso, if they are to act in a judicial capacity, first have such judicial power expressly vested in them if not, it would amount to a usurpation of the powers of the courts created under the Constitution. It is only with the presence of this expressly conferred judicial power that a person or body would be empowered to make a valid and constitutional ‘determination’ which would form the basis of the removal of the Governor from office and consequently effectively oust the jurisdiction of the courts.

2.0 To further buttress the fact that the nature of power needed or required to determine the rights of the Governor before removal as contained in S. 188 is judicial in nature, I submit that the interpretation to be given to any part, section, phrase or term in a statute must of necessity take into consideration not just its context within the phrase or section in which it is found but also within the entirety of the statute itself. In the case of TEGWONOR v STATE [2008] ALL FWLR (PT 424) 1484 at 1505, par. A-D, Ibiyeye, JCA, in pronouncing on a similar issue referred to Halsbury’s Laws of England, Volume 36, page 395, paragraph 594 which pertinent part is in this wise reproduced hereunder:

For the purposes of construction: the context of the words which are to be construed includes not only the particular phrase or section in which they occur but also the other parts of the statute. Then a statute should be construed as a whole so far as possible so as to avoid any inconsistency or repugnancy either within the section construed or as between that section and other parts of the statute. The literal meaning of a particular section may in this way be extended or restricted by reference to other sections and to the general purview of the statute.’

The Learned Jurist then went on to expound as follows:

‘The main purport of the foregoing extracts is that in the interpretation of the provisions of a statute the meaning and/or application of that provision should not be localised. It should instead be global by sourcing from other sections of the statute. In other words, a section of the statute, its subsections and related sections must be read together in order to comprehend their purport.’

Based on the above authorities, therefore, we shall make reference to other parts of the Constitution in order to fully comprehend that the term ‘determination’ as used in S. 188 is used in a judicial sense, yet has confered no judicial power upon the 2nd Respondent or means that they can make a determination as to the guilt or otherwise of the Governor.

2.1 As already defined above, the term ‘determination’ means

‘a final decision by a court or administrative agency.’

A determination is thus the last step in the judicial or administrative process. It is the final decision.

2.2 We must however understand the distinction between a judicial determination and an administrative determination in order to ascertain just which of these 2 types of power to determine matters, within the context of this case, that the legislature intended that the 2nd Respondent was to have been conferred with.

2.3 I submit that determinations of administrative bodies under the Constitution as will be shown from the sections we shall cite do not impose any duty to ensure that any person’s right to a fair hearing should be taken cognizance of. This is because their determinations are not made in respect of disputes but simply with a view to proceeding further in the performance of the functions given to them. The determination of these types of bodies under the Constitution refers to a determination in two respects:

1. a final decision on an issue that has been deliberated upon; or2. simply making an assessment upon an issue, which determination is done by

way of voting when utilized by the legislature.

2.4 Examples of the conferment of the former such power above upon administrative bodies in furtherance of such administrative power which amounts to simply making decisions may be found in Ss. 56 (1) and 98 (1);

2.5 Examples of the latter such power to determine or make a determination under the Constitution which merely refers to the making of an assessment by an executive body exist in Ss. 70 & 111; 84 (1) & 124 (1).

Judicial determinations are aimed at settling disputes between at least 2 parties. That is what is envisaged under S. 188: the settlement of the dispute between the 2nd Respondent who raised the notice of impeachment and the Governor by the 2nd Respondent.

2.6 Even while highlighting the differences above it is axiomatic to note that each and every one of the sections of the Constitution cited above has one thing in common, whether the body making the determination is judicial or administrative: the power to determine a matter or make a determination is expressly conferred upon the body concerned at inception. This is glaringly missing from S. 188.

Very clearly, owing to the fact that the end result of the whole procedure in S. 188 is the removal of the Governor from office, thereby affecting the holder’s right to continue to hold the office, the determination intended therein is a judicial and not an administrative one.

However, the requisite judicial power having not been expressly conferred upon the 2nd Respondent, the intention of the legislature in the context of this case, therefore, cannot meet all the necessary requirements in order for the procedure to be constitutionally acceptable and valid.

2.7 Therefore, since they cannot excercise judicial power before purportedly determining the Governors right to continue to hold office, the fundamental right of the Governor to a fair hearing is thus violated in the process. This is what duly conferred judicial power seeks to protect.

I therefore submit, that because the procedure in issue borders on the need to ensure that the Governor is given a fair hearing, the effect of the entirety of the preceding sub-sections is that should the 2nd Respondent consider and adopt the report that the allegations have been proved respectively, with the purported effect of finally removing the Governor from office, their actions are null, void and of no effect whatsoever, the entire procedure having not first of all ensured that

the Governor was given a fair hearing by a court for the trial of impeachments duly vested with judicial power to determine his right to continue to hold office.

2.8 The concerns inherent in the position expressed above cannot be over emphasized considering our young democracy and the effect of the weighty powers that have been conferred upon the Respondents as to what amounts to an act of ‘gross misconduct’, particularly in the absence any person or body duly vested with judicial power to ensure a fair hearing throughout the process.

Our position above is buttressed by Musdapher, JSC in the already cited case of INAKOJU V ADELEKE (supra) AT 669 – 670, PARAGRAPH G – A as follows:

‘the meaning of “gross misconduct” as contained in the Constitution in relation to impeachment proceedings is whatever the legislature deems “gross misconduct”. This clearly is very nebulous, fluid and subject to potentially gross abuse and is also potentially dangerous at this point of our national and political life. That is why the legislature should comply with all the other provisions as contained under section 188. Failure to comply with any of them will render the whole exercise unconstitutional, null and void and any purported impeachment or removal will be declared improper by the court.’ (Underlining mine for emphasis)

2.9 Indeed, the Learned Jurist saw the danger inherent in the S. 188 procedure. And while the latter part of the dictum above emphasizes the need to strictly adhere to the procedure outlined in S. 188, because it was not raised before him, it did not address one of the recondite issues upon which this whole case is based, to wit, whether the whole procedure has vested the requisite judicial power in the 2nd Respondent to sit as a court for the trial of impeachments and thereby grants a fair hearing to the Governor.

2.10 It is for this reason that Tobi, JSC (as he then was) was compelled to go the extra mile in a lengthy contribution at page 586, paragraph G – 587, paragraph H of the same case to outline the types of conduct that could ordinarily be taken to be acts of gross misconduct to serve as a guide in situations like this.

After the lengthy exercise, he went further at page 588, paragraph A – B thus

‘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 Deputy Governor to achieve a political purpose or one of organized vendetta clearly outside gross misconduct under the section. Section 188 cannot be invoked. . . section 188 is a 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.’ (Underlining mine)

The tool of removal of a Governor from office should not be utilized to achieve a political purpose. However, from the affidavit deposed in support of this case, it is clear that in the entire history of the use of the removal process, once the process is initiated, it is as good as a forgone conclusion: the Governor is eventually removed from office. It is almost impossible for a Governor to survive the spectre of impeachment once initiated against them.

2.11 Even in the case of Nasarawa State where the Governor survived the spectre of impeachment, he was accused of hijacking the investigation Panel to his own advantage, even though it is the Chief Judge of the State who, in his sole discretion, is given the power to appoint the members of the investigative Panel. This has had the unfortunate effect of even leaving the Chief Judge open to undue criticism of his office and also his office.

This alone proves that a Governor is not given a fair hearing in the removal process.

The absence of the requisite judicial power conferred upon the House of Assembly which would impose an obligation upon them to protect, and guarantee the protection of the Governors right to be given a fair hearing, as S. 188 is presently constituted is what makes it possible for even an exalted public, nay, judicial officer as the Chief Judge of a state to be open to attacks on his character and credibility.

2.12 On coming into office, the Governor was elected by a full complement of the people of the state, to wit at least ¼ of the votes cast by the people in at least 2/3 of the local governments who voted at the election. This is the reason why by S. 188 (9) of the constitution, it is expected that after the trial of the impeachment would have been conducted and a determination duly made against the Governor, the affirmative vote of 2/3 of the elected representatives of the people as personified in the members of the 2nd Respondent would be required to reverse the Governors position and put him out of office. This is the reasoning behind DAPIANLONG’S CASE above cited.

From the totality of the Constitution, the 2nd Respondent has been conferred with only legislative and limited administrative powers. They have not been conferred with judicial power, particularly not in respect of S. 188. A person or body that is conferred with specific powers cannot act ultra vires and perform a function they were never empowered to do. OYEYEMI V COMMISSIONER FOR

LOCAL GOVERNMENT, KWARA STATE & 3 ORS [1992] 2 NWLR (PART 226) 661 AT page 684, paragraph H

‘. . . a public body invested with statutory power must take care not to exceed or abuse its powers. It must keep within the limits of the authority committed to it. It must act in good faith. And it must act reasonably.’

The 2nd Respondent, therefore, as a public body and having been conferred with certain powers under the Constitution, would exceed and indeed, abuse the powers conferred upon them should they make a determination of Alh. Umaru Tanko Al-Makura’s right to remain the Governor of Nasarawa State since they have not been expressly conferred with the power to act in a judicial capacity. The jurisdiction of the constitutional court cannot therefore be ousted when the 2nd Respondent acts in excess of its constitutional power because the courts are created to check such ultra vires acts.

2.13 2 bodies are mentioned in S. 188. None of them has been identified to be the one to exercise judicial authority in respect of this matter. Unlike in all the sections of the Constitution cited above where each court was duly identified in respect of the respective jurisdiction which they would wield, this fundamental requirement has also been breached in S. 188. This much has been emphasized by Nnaemeka-Agu, JSC, who, in citing the Baba’s case (supra), pronounced in OYEYEMI V COMMISSIONER FOR LOCAL GOVERNMENT, KWARA STATE & 3 ORS [1992] 2 NWLR (PART 226) 661 AT 681, PARAGRAPH G – 682, PARAGRAPH A as follows:

‘. . ., as I observed in the case of Alhaji ABDULLAHI Baba v. Nigerian Civil Aviation Training Centre & Anor. (1991) 5 NWLR (Pt. 192) 388 there are not some general forms and standards of hearing applicable in all cases. It is not necessary to insist that a standard or a form of hearing in a Court must be applied in an administrative inquiry even if it acts judicially in the sense that it determines the rights of the parties. It is, however, necessary in such a case that there be an identifiable person or body of persons empowered and capable of going into the issues in disputation. . .’ (Underlining mine)

2.14 In the absence of the 2nd Respondent having been expressly conferred with judicial power to make a determination, there can never be in existence a constitutional determination which would serve to oust the jurisdiction of the court to entertain or question any matter relating thereto.

2.15 This fundamental lapse in S. 188 has led to the confusion being experienced in its application.

2.16 S. 188 (9) states that

‘where the report of the Panel is that the allegation against the holder of the office has been proved. . .’

Contrary to the dictum in DAPIANLONG’S CASE (supra) to the effect that the 2nd Respondent ought to, as the full complement of the people of Nasarawa State through their representatives, duly conferred with the requisite judicial power to determine the guilt of a Governor, the above subsection states that the investigative Panel can determine that the allegations have been proved against the Governor. This runs contrary to the intention behind the court for the trial of impeachments.

2.17 One thing is very glaring from all our submissions above when juxtaposed with the definition of a ‘determination’ by the investigative Panel: even if by a very wide stretch of the imagination, which we do not in any way concede, the investigative Panel can be said to be an administrative agency, they cannot take any final decision because they are simply meant to submit a report which would raise recommendations, as stated in INAKOJU’S CASE (supra). Their function at inception was not to make any determination. They cannot thus later, after they would have completed their job, be conferred with any power, by mere implication, to make a determination. This again offends a Governors right to be given a fair hearing. Since the impeachment is meant to be a trial and the Panels role is merely investigative prior to trial, any determination they make is ultra vires, null and void. Same cannot therefore serve as the basis of ousting the courts jurisdiction as contained in S. 188 (10) and I thus adopt all the submissions I made above in respect of the same issue as it relates to the 2nd Respondent.

The ugly truth arising from all the above submissions, my Lord, is that in all the impeachment sagas that Nigerians have experienced under the current Constitution, the 2nd Respondent in each such state of the Federation, who by the elucidation given by the judicial pronouncements and definitions above it is intended should be the court for the trial of impeachments, does not exercise judicial power as intended, having not had same duly vested in them for that purpose and indeed, cannot exercise that power because they cannot hold any type of hearing which can lead to a constitutional determination of the allegations of impeachment against a Governor in a quasi-judicial capacity. On the other hand, a mere investigative Panel, which is not a full complement of the representatives of the people, is, in practice, allowed by S. 188 (9) of the Constitution to go beyond the scope of the functions conferred upon them at inception in S. 188 (5) of the Constitution and proceeds to make a judicial determination of allegations made against a Governor, contrary to what was intended under the Constitution.

2.18 This is the reason why a Governors right to fair hearing is breached in impeachment proceedings. This is the reason why it is virtually impossible for a

Governor to prevail over the legislature in impeachment proceedings. If he does prevail, just like in the case of Nasarawa State recently, aspersions would be cast on the office and persons of various people involved in the process. This again buttresses the intended status of the 2nd Respondent to act judicially as cited from the Corpus Juris Secundum, as cited in ABARIBE’S CASE (supra).

It must be duly noted that the quotation from the Corpus Juris Secundum above was a reference to the provisions of the US Constitution which I have already stated above has made explicit provisions for the vesting of judicial powers upon the relevant legislative house in order for them to sit as a court for the trial of impeachments.

Therefore, just as our position in this case where, contrary to the expectation above, the 2nd Respondent has not been expressly conferred with the judicial powers to try the impeachment, the purported powers of the House of Assembly to make a determination on same can be called to question when they act in excess of jurisdiction.

2.19 As presently constituted, therefore, my Lord, S. 188 is in absolute contravention

of S. 36 (2) of the Constitution because:

1. It enables the 2nd Respondent to determine the right of a holder of the office of Governor to continue to hold same without first of all vesting judicial power in them in line with what impeachment should be, to sit as a court for the trial of impeachments so as to ensure the protection of the Governors right to fair hearing as guaranteed in S. 36 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended);

2. It does not provide an opportunity to the holder of the office of Governor to make representations to the state House of Assembly, as a court for the trial of impeachments, before they make their final decision contrary to the entirety of S. 36 of the Constitution; and

3. On the basis of the above flaws, seeks to oust the jurisdiction of the High Court of Justice of Nasarawa State which should ordinarily be dominis litis in matters of this nature, also in contravention of S. 36 (1) of the Constitution.

2.20 On the basis of all the above submissions, I humbly urge My Lord to proceed to the hearing of this case and consequently invalidate the relevant provisions of S. 188 of the Constitution.

3. Breach of the Governors Right to Fair HearingHere, we shall show that the rights to fair hearing as enshrined in the relevant subsections of S. 36 of the Constitution are inalienable and, cannot be stripped of any person, including a person holding the office of Governor. As we have highlighted above, if no body is expressly vested with judicial power to make any

determination of rights under the provisions of S. 188, no person can therefore wield the judicial power intended to be excercised by a court for the trial of impeachments and thus protect the Governors right to fair hearing. The jurisdiction of the court cannot therefore be ousted in the absence of an alternative trial which adhered to all the proceedings which guarantee a fair hearing.

3.1 In the case of BABA v N.C.A.T.C. [1991] 5 N.W.L.R. (PART 192) 388 AT 415, PARAGRAPH E - F as follows

‘Where the body, whether Judicial, quasi-Judicial, administrative or executive in inception, acts judicially in the sense that it is to determine the civil rights and obligations of a person, or to find him guilty or liable of a fault, then he must be given a hearing before the issue can be properly decided. That is the intendment of section 33 (1) of the Constitution of 1979 (now section 36 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended)). That indeed is the essence of fair hearing as a constitutional right.’

Ogundare, JSC in his lead judgment in the case of AMAECHI V INEC [2008] ALL FWLR (PART 407) 1, highlighted the central importance of human rights to law and democratic values in a society where the majority must respect the fundamental rights of the minority. In that case, the Appellants name as the aspirant who won the primaries of the People’s Democratic Party (PDP) for the 2007 gubernatorial election for Rivers State was substituted with that of Celestine Omehia by the collective and unanimous decision of all the members of his party involved in the decision making process. The Learned Jurist noted at page 95, paragraph C – D that the PDP sought to use S. 178 of the Constitution to hinder the Appellant from enjoying his fundamental right to a fair hearing as guaranteed under S. 36 just as in this case the Respondent is likely to hide behind S. 188 (10). However, in highlighting the supremacy of S. 36, being a fundamental right, he stated at page 115, paragraph B – E as follows:

‘Democracy’s world is rich and multifaceted. Democracy should not be viewed from a one dimensional vantage point. Democracy is multidimensional. It is based both on the centrality of laws and democratic values, and, at their center, human rights. Indeed, democracy is based on every individual’s enjoyment of rights which even the majority cannot deny him simply because the power of the majority is in its hands. Roland Dworkin in A Bill of rights for Britain, 1990, pages 35 – 36 stated

“. . . true democracy is not just statistical democracy, in which anything a majority or plurality wants is legitimate for that reason, but communal democracy in which majority decision is legitimate only when it is a majority decision within a

community of equals. That means not only that everyone must be allowed to participate in politics as an equal through the vote and through freedom of speech and protest, but that political decisions must treat everyone with equal concern and respect, that each person must be guaranteed fundamental civil and political rights no combination of other citizens can take away, no matter how numerous they are or how much they despise his or her race or morals or way of life.” ’ (Underlining mine for emphasis)

Therefore, a Governors fundamental right to be given a fair hearing is at the center of S. 188 since it envisages undergoing a trial for the purpose of the determination of his right to continue to hold the office. A Governor therefore cannot just be denied of his right to a fair hearing because S. 188 and the way and manner it has been practiced over time has been interpreted to give the majority that power in their hands. The fact that 20 of the 24 lawmakers which constitute the 2nd Respondent have a statistical majority does not mean that they can exercise their right to remove the Governor from office in contravention of the fundamental right of the Governor to be given a fair hearing in the process. Their decision to impeach and remove the Governor must be done while guaranteeing that his right to a fair hearing would be protected by undergoing an impeachment trial by an identifiable body of persons duly conferred and vested with the power of going into the issues in disputation.

3.2 Having highlighted the above, therefore, and since the body to administer the procedure for removal is supposed to be a quasi-political court, I submit that the main duty of the conventional court created under the constitution, and which should also be one of the functions of a quasi-political court for the trial of impeachments should be to ensure that a person is given a fair hearing in line with the relevant aspects of S. 36 of the Constitution before their rights are determined.

3.2.1 Ultimately, S. 36 (5) of the Constitution guarantees that

‘every person charged with a criminal offence shall be presumed innocent until proven guilty.’

3.2.2 To be ‘guilty’, at page 727 of the Black’s Law Dictionary means

‘1. Having committed a crime; responsible for a crime. 2. Responsible for a civil wrong, such as a tort or breach of contract.’

In deliberating upon the conduct of a Governor, therefore, the adjudicating body must ensure that the person against whom allegations have been made is presumed innocent until the allegations are proved.

3.2.3 However, in stark contravention of the above provisions of the Constitution, in the initiation of the process for removing a Governor, S. 188 (2) (b) states that

‘(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) . . . (b) Stating that the holder of the office is guilty. . . ’

(Underlining mine for emphasis)

The import of the above section is very clear: a notice of allegation must, among other things, expressly state that ‘the holder of the office is guilty’ of the allegation. After this, the 1st Respondent is to set in motion other processes towards the removal of the Governor.

Indeed, this already goes contrary to what ‘impeachment’ should be by the definition in Black’s Law Dictionary (supra), to wit ‘a written charge of the official’s alleged misconduct’ coupled with being a trial conducted by a court ‘established by law and constituted in such a manner as to secure its independence and impartiality.’

When a matter is alleged, it means that a person is accused but not yet tried. This is at stark variance with the definition of ‘guilty’ above. Hence, the breach of a Governor’s fundamental right to fair hearing from the very initiation of the process. He is not presumed innocent; he is not even presumed guilty; he is ab initio declared guilty.

3.2.4 It is therefore very clear that from the very initiation of the process of removal in section 188, it is not possible for any Governor to be given a fair hearing because from all our immediately preceding submissions, there is every likelihood of bias against the Governor since he has already been ascertained to be guilty of the allegations even before notice is served on him. This is an absolute and total negation of and derogation from one of the fundamental aspects of the principle of fair hearing as captured in S. 36 (5).

The procedure in matters of this nature, keeping in mind that from the very inception the Governor should be presumed innocent before being pronounced guilty, is that they would first of all need to make findings on the circumstances of the matters contained in the allegation and, after the investigative Panel would have made their findings, if anything would have been found against the Governor, another exercise would need to be conducted to determine his conduct. Therefore, just like when the police would investigate the circumstances of a matter before, after making their inquiries, they could zero in thereafter, on investigating the conduct of particular people, an investigative Panel should also

just investigate the circumstances of a matter, after which, their report would determine which suspects’ conduct would need to be specifically investigated.

Our position above is buttressed by the dictum of the Supreme Court from the case of ADENIYI V GOVERNING COUNCIL OF YABA COLLEGE OF TECHNOLOGY [1993] 6 NWLR (PART 300) 426 AT 454, PARAGRAPH E as follows:

‘The Investigation was not as to the conduct of the appellant, but as to the circumstances of the leakage, and as to who was responsible for the leakage. The Panel having found that appellant was involved and respondent having been informed is under an obligation to put to the appellant his accusation and hear him before taking an action.

This was the situation in Aiyetan v NIFOR (1987) 3 NWLR (Pt. 59) 48. In that case, I held the view, which I am still yet to be convinced to the contrary, that in the observance of the principle of natural justice and the essential requirement of fair hearing, there is a distinction between recommendation of an Investigation Panel. . . and the acting on the recommendation by a statutory body with requisite statutory powers. Whereas the recommendation of the investigation will not affect the civil rights and obligations of the appellant, the acting upon such recommendations does. Hence, the implementation of the recommendation must comply with the rules of natural justice.’(Underlining mine for emphasis)

3.3 Coupled with this, Section 36 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) declares as follows with respect to the determination of the civil rights of citizens thus:

‘in the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or tribunal established by law and constituted in such a manner as to secure its independence and impartiality.’

Therefore, as a quasi-political court intended to perform a judicial function, the body envisaged to try impeachment allegations against a Governor must be guaranteed of its independence and impartiality so as to ensure that the Governor gets a fair hearing.

3.3.1 However, with the declaration of guilt already made before the Governor is even aware of the allegations against him, it is clear that the independence and impartiality of the body to ‘try’ the Governor, under the current Constitution is already compromised. Besides, the court for the trial of impeachments as

envisaged from the definitions above has not been established by law. There is therefore little wonder that Governors do not get a fair hearing.

3.4 Allegations in a notice of impeachment may border on criminal conduct. I submit that in respect of the determination of criminal rights and obligations as ordinarily conferred upon a court, the introductory part of S. 36 (6) of the Constitution declares that

‘every person who is charged with a criminal offence shall be entitled to –’

And thereafter goes ahead to outline very explicit procedures that must be adhered to by any person, authority or body in order to guarantee that a citizen is given a fair hearing.

I therefore submit that a body trying impeachment allegations of a criminal nature, being a quasi-political court, should adhere, as much as it may be practicably possible, to the provisions contained in the respective paragraphs of subsection (6) of S. 36 of the Constitution.

3.5 Regardless of whether the removal procedure initiated against a Governor is for a criminal offence or civil wrong, one thing is very clear in the above principle of fair hearing: ascertaining that a person has committed a crime or holding them responsible for a civil wrong at the point of the initiation of the proceedings is already a sign that a determination has been made, a decision taken even before the completion of the entire process, in fact, from the very beginning. The Apex Court has even recognized that the shorter the time taken for the Panel to sit and conclude their job, particularly if aspersions are cast on the composition of the Panel or for any other reasons, the more likely it is that they would raise speculation or conjecture that they merely worked towards the achievement of a set goal. Tobi, JSC pronounced as much in INAKOJU v ADELEKE [2007] 4 N.W.L.R. (PART 1025) 423 at 583, paragraph G – 584, paragraph C

‘(ii) within 3 months of its appointment, the Panel should report its findings to the House. The constitutional period should not, or better, cannot be extended. This is not just one inquiry set up by the 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 is 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 or 7 days when the Constitution provides a maximum of 3 months?’

The reasoning of the erudite Jurist has indeed been justified in the swift manner that the former Governor of Adamawa State was removed from office. It was clear that the Panel in that case worked towards a predetermined end.

3.6 The rights contained in S. 36 of the Constitution cannot be derogated from, even though the procedure outlined in S. 188 is sui generis. I emphatically submit that it is absolutely imperative for the provisions of the section to adhere to the constitutional right of a Governor to be given a fair hearing regardless of any contrary intention that may be expressed even in an ouster clause as purportedly contained in S. 188 (10).

For this position, we rely on the case of LEGAL PRACTITIONERS DISCIPLINARY COMMITTEE V CHIEF GANI FAWEHINMI [1985] 2 NWLR (PART 7) 300. At page 306 to 307, the Supreme Court referred to an Australian case which was cited by the late legal luminary who represented the appellants, Chief Rotimi Williams (SAN). By that case, Chief Williams, SAN sought to get the Supreme Court to follow the reasoning of the Australian court and pronounce that the right to fair hearing as was entrenched in their constitution may be derogated from and denied a person once the legislative intention to do so was made unambiguously clear. However, the Supreme Court, in upholding Chief Gani Fawehinmi’s (as he then was) submissions on his inalienable right to fair hearing pronounced that the Nigerian Constitution could not accommodate such a denial of the right to fair hearing and, at page 370, paragraph D affirmed, in line with our position above that

‘in the circumstances of this country S. 33 [of the 1979 Constitution] (which is today S. 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) is an entrenched provision of the Constitution which cannot be displaced by legislation however unambiguously worded.’ (Underlining mine for emphasis)

The effect of this, therefore, is that the right of a Governor to fair hearing under S. 188 as enshrined in Ss. 36 (1), (5) and (6) of the Constitution and which are the very foundation of this application cannot be displaced by any legislation. This is therefore another reason why the ouster clause contained in S. 188 (10) cannot be hidden under to impeach and remove a Governor from office when as the entirety of the section stands, S. 45 (2) of the Constitution also does no enable them to do so.

For the above reason, therefore, it is imperative for this honorable court to assume jurisdiction over the matter in order to provide adequate redress.

3.7 In summary, therefore, the following are the salient points as can be gleaned from a combined reading of the definitions, dicta and submissions above which are germane to this case;

1. Impeachment refers to the way and manner in which the removal of a head of the executive arm of government is initiated; it is also a reference to the entire proceedings. It is not the final act and effect of the whole proceedings or process upon finding the Governor guilty, which actually results in the removal of the person from the office of Governor.

2. For all intents and purposes, once impeachment is initiated, a trial must be conducted by a quasi-political court better referred to as a court for the trial of impeachments in order to ascertain the guilt of the holder of the office;

3. There must be a formal document which would serve as the charging instrument upon which the holder of the office would be formally charged (in either the criminal or civil sense) and which would form the basis of the trial.

4. The power of this quasi-political court to perform the quasi-judicial function must be expressly conferred upon them;

5. The membership and status of the quasi-political court to try the impeachment must be expressly identified and defined;

6. The body of persons which initiates the impeachment proceedings must not and should not play an overwhelming role, if any at all, in the final determination in the Governors trial for the allegations so as not to be a judge in their own cause;

7. The facts as contained in the notice of allegations would determine whether the conduct to be tried is of a criminal or civil nature.

8. A removal trial or proceeding ought to be presided over by a person trained in the law so as to ensure adherence to the rules of natural justice;

9. Being a trial, the nature of the conduct being questioned in the allegations as gleaned from the facts of the case would therefore determine the standard and burden of proof to be applied in the determination of each allegation;

10. It is necessary that in the process of removal of a Governor, since the proceedings are quasi-judicial in nature and border on the determination of rights and liabilities, and since the body to try the alleged offences is a quasi-political court, there is a need for the body which initiates the proceedings to be distinct from the one which takes a final decision on the matter in order to guarantee their impartiality;

11. In trying whatever allegations have been made against the holder of the office, the holder of the office should be presumed innocent until proven guilty.

3.8 I submit that because of the weighty issue of fair hearing which removal proceedings must take into cognizance and not infringe upon, all the above

conditions which have been distilled from the submissions, definitions and judicial pronouncements above and which guarantee that a fair hearing would be given, must exist concurrently. In the absence or breach of even one of the above conditions, the right to fair hearing as enshrined in the Constitution would have been breached, thereby making the entire process null and void.

3.9 In further support of our position above, we submit that the right to be given a fair hearing in the purported determination of the guilt or otherwise of the Governor in removal proceedings was not waived by him just because he rose to hold the office of Governor. Constitutional rights cannot be waived. This was pronounced in the Supreme Court case of OLUFEAGBA V ABDUR-RAHEEM [2010] ALL FWLR (PT 512) 1033 at 1073, par. C-E

‘the provisions of the stated statutes (i. e. the Constitution) cannot be waived as no one is permitted to contract out or waive a rule of public or constitutional policy like fair hearing which is guaranteed under section 36 (1) of the 1999 Constitution. Parties cannot by conduct or consent alter the constitution or a statute.

‘In short, I say with due difference (sic) to the learned majority justices of the court below, that the holding that the appellants waived their statutorily guaranteed rights to fair hearing vide the dictates of section 15 of the University of Ilorin Act and section 36 (1) of the Constitution of the Federal Republic of Nigeria, 1999, merely by signing ‘memorandum of appointment’ on assumption of duty was erroneous. It has no support in law.’

Karibi-Whyte, JSC (as he then was) in his concurring judgment in the case of LEGAL PRACTITIONERS DISICPLINARY COMMITTEE V CHIEF GANI FAWEHINMI [1985] 2 NWLR (PART 7) 300 put it in more succinct and categorical terms at page 373, paragraph D – E as follows:

‘Section 33 (i. e. S. 36 of the Constitution) in (sic) an entrenched provision, which has the privilege of nullifying any other provisions of the Constitution or any other legislation inconsistent with it. . . It therefore stands solidly behind the citizen who is legitimately apprehensive that in the determination of his civil rights and obligations, there was a likelihood that his right to natural justice might be denied him.’

This case was filed because of the likelihood that the right to fair hearing which the Governor of Nasarawa State is unequivocally and unconditionally entitled to would be infringed upon should the Respondents set in motion the procedure towards removing him as contained in S. 188 of the Constitution. S. 188 should therefore be nullified in order to ensure the protection of this right.

3.10 In summary, the right to be given a fair hearing is a vested right which even a Governor must be and is entitled to enjoy during the trial intended under the S. 188 procedure. Even though S. 188 (10) seeks to oust the court’s jurisdiction to entertain any question arising from the proceedings or determination of the Panel and the 2nd Respondent, the Supreme Court has stated expressly that courts have a duty to protect vested rights, as is the right to a fair hearing as guaranteed under S. 36 of the Constitution because they are absolutely guaranteed. In support of this position, I cite Nnaemeka, JSC from the case of OYEYEMI V COMMISSIONER FOR LOCAL GOVERNMENT, KWARA STATE & 3 ORS [1992] 2 NWLR (PART 226) 661 AT 684, PARAGRAPH G

‘Courts have a duty to protect vested rights, as otherwise lawlessness will reign.’

3.11 My Lord, I declare emphatically that the situation can only be described as lawless where a Governor is removed from office without any provision under the said constitutional provision enabling for his removal, for the protection of his right to be given a fair hearing. It is clear that from S. 36, the Constitution never envisaged that a Governors right to be given a fair hearing would be stripped of him. I depend, for this position, on the case of INAKOJU V ADELEKE [2007] 4 N.W.L.R. (PART 1025) 423 AT 688, PARAGRAPH A - B

‘it is not in doubt that section 188 (10) creates an ouster clause in that rights of an aggrieved person to challenge actions carried out under such provisions are expressly taken away by the provision. The attitude of courts to such provisions is that they are regarded as an aberration, outrageous provision and one that should be treated with extreme caution since they are regarded as unwarranted affront and unnecessary challenge to the jurisdiction of the courts which the courts guard jealously.’

The court went on to say further from paragraph E

‘thus when interpreting the provision of an ouster clause in a statute, including that of the Constitution, the courts usually scrutinize every aspect of such provision with a view to ensuring that every thing done under such statute is done strictly in compliance with the provisions of the statute. ’ (Underlining mine for emphasis)

Clearly, there is no provision for actions taken under S. 188 to be done in strict compliance with the relevant subsections of S. 36. This therefore buttresses our position in this case that before this honorable court could just sit and fold its arms because of the purported ouster clause in S. 188, the court would first of all have to satisfy itself that the provisions of other

parts of the statute, in this case, S. 36 of the Constitution, with regards to giving the Governor a fair hearing in the process of his removal under S. 188, must be complied with as a fundamental factor which would give life to the ouster clause contained in S. 188 (10) of the Constitution since the process of impeachment is intended to itself be a trial.

3.12 In the case of AMAECHI V INEC [2008] ALL FWLR (PART 407) 1 AT 95, PARAGRAPHS E – F, Ogundare, JSC had this to say in further support of the above

‘The court, in interpreting provisions of a statute or Constitution, must read together related provisions of the Constitution in order to discover the meaning of the provisions. The court ought not to interpret related provisions of a statute or Constitution in isolation and then destroy in the process the true meaning and effect of particular provisions.’

3.13 Since it is intended that a trial be conducted under S. 188 procedure by virtue of S. 188 (1), Ss. 36 (1), (5) and (6) are related provisions which must be interpreted together with same. To not interpret S. 188 by also reading Ss. 36 (1), (5) and (6) of the Constitution, the true intention as provided from the elucidations, definitions and judicial pronouncements above of the provisions of S. 188, which is to the effect that a Governor should be tried for allegations of impeachment and not just left to the whims and caprices of a statistical majority would be defeated.

3.14 We urge the court to hold that the Governors right to a fair hearing is sacrosanct and cannot be derogated from; that under the current regime of S. 188 the said right is breached; that the above is caused by the fact that no body has been duly vested with judicial power to make a valid determination of the holders right to continue to hold the office of Governor; that this breach therefore enables the court assume jurisdiction over matters relating to S. 188 and that the relevant provisions of S. 188 which encourage the violation of the Governors right to fair hearing be invalidated in accordance with S. 36 (2) of the Constitution.

4 Breach of the Doctrine Nemo Judex in Causa Sua 4.1 We must highlight here that in the entirety of the S. 188 procedure, the accuser is

also the body that is to purportedly make the final determination over the Governors fate. S. 188 (2) states that

‘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 the 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 7 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 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.’

S. 188 (9), in drawing a conclusion to the whole process states

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

4.2 It must be noted that by subsection (9) of S. 188 of the Constitution, only a two-thirds majority of the members of the state House of Assembly is required to adopt the report of the investigative Panel. It means that ALL of the people who accuse the Governor, initiate the whole process and sign the notice of allegations would be a judge in their own cause by eventually having the power to adopt the report and thus effectively remove the Governor from office because they would constitute half of the number required to finally effect his removal from office .

In this way, the whole process for the removal of a Governor is initiated by the 2nd Respondent. The same 2nd Respondent pronounces the Governor guilty in the notice that they issue before he even receives it and has undergone trial which is not even conducted under S. 188 of the Constitution. Eventually, in pursuance of purported powers which have not been expressly conferred upon them and in furtherance of their preconceived agenda, they ‘determine’ by subsection (10) that the Governor is guilty of the allegations which they themselves. This is in total breach of the principle of natural justice, nemo judex in causa sua and the right enshrined in S. 36 (1) to the effect that any court which should determine a person’s rights should be constituted in such a way that it would be guaranteed its independence and impartiality.

4.3 HOLT, CJ in the case of CITY OF LONDON V WOOD (1701) 88 ER 1592 at

1602, in emphasizing that no person should be a judge in their own cause put it succinctly as follows:

‘it is against all laws [including the Constitution], that the same person should be a party and judge in the same cause, for a party is he that is to complain to the judge, and the judge is to hear the party; the party endeavours to have his will, the judge determines against the will of the party, and has authority to force him to obey his sentence: and can any man act against his own will, or enforce himself to obey. To say that he may be judge and party. . . it is manifest contradiction . . . it is not possible that one should be judge and party, for the judge is to determine between party and party, or between the government and the party.’ (Underlining mine)

4.4 In the celebrated case of LEGAL PRACTITIONERS DISICPLINARY COMMITTEE V CHIEF GANI FAWEHINMI [1985] 2 NWLR (PART 7) 300, our position as shown above was made clear. The Court laid down the following guidance on the need for the person or body who accuses to not also be part of the process of finally determining the rights of the person accused thus at page 334, paragraph C - D:

‘But the Legal Practitioners Investigating Panel was abolished under the 1975 Act leaving the L.P.D.C. with the task of considering and determining the case, with the Chairman of the very L.P.D.C. – the Attorney-General of the Federation – initiating the proceedings, as was done in the instant appeal, by the letter of the Respondent (Exhibit C) and the charges preferred in Exhibit D1. Both the letter (Ex.C) and the charge sheet (Ex.D1) were signed by Mrs. O. O. Fatunde, an officer in the Attorney-General’s Office who, in signing the charge sheet (Ex.D1) described himself as the “Prosecutor”. ’

The Learned Jurist concluded at paragraph F that

‘He would have been the accuser and the judge at the same time. Such a proceeding would obviously have been null and void on that score as being an infringement of the principle nemo judex in causa sua.’ (Underlining mine for emphasis)

4.5 In making determinations of rights, therefore, the same person, as provided for under the combined provisions of Ss. 188 (2) and (9), i. e., the state House of Assembly or 2nd Respondent, would be the accuser and the judge. This is a clear breach of natural justice. Any act done in furtherance of such a law or provision of the law would thus be null and void, by the authority above and should consequently be invalidated.

Karibi-Whyte, JSC (as he then was), in his concurring judgment also lent his voice to the above principle when he declared at page 376, paragraph F – H

‘it is well settled that a person cannot be a judge in his own cause. This is a principle of natural law of considerable antiguity (sic). . .

One of the earliest cases, Earl of Derby’s case (1613) 12 Co. Rep. 114, which quoted the case of the Lord of the Marches of Wales (1409) Y.B. 11 Hen. 4, 27 also relied on the principles. In Day v Savadge (1614) Hobart 85, it was regarded so fundamental and indispensable to the administration of justice that it was said

“even an act of Parliament made against natural equity as to make a man a judge in his own cause, is void of itself; for jura naturae sunt immutabalia and they are legus legum.”

The proposition seems to me clear, unequivocal and incontestable that the person to decide the rights and obligations of two contending parties should not himself be a party to the lis. Where the judge is also a party to the lis as a complainant he violates the sacred maxim of nemo judex in causa sua.’

Based on the above also, therefore, S. 188 (2) and (9) of the Cosntitution should be invalidated in these respects for enabling the accuser, i. e., the 2nd Respondent, to also be the judge.

5 The Legislative Duty of the House of Assembly to Consider and A dopt the Report of the Panel as contained in S. 188 (9) is not the judicial function intended.

5.1 S. 188 (9) of the Constitution, in part, confers further powers upon the House of Assembly in respect of the impeachment cum removal of the Governor as follows:

‘. . . within fourteen days of the receipt of the report, the House of Assembly shall consider the report. . .’

5.1.1 I submit, my Lord that the ‘consideration’ of the report envisaged to be carried out by the House of Assembly under S. 188 (9) is not a judicial function which confers them with power to act as a court for the trial of impeachments and adjudicate over the allegations, ensuring that they adhere to the provisions of S. 36. It is a mere parliamentary function which does not meet up to the constitutional standard required in a matter of this nature which is supposed to be the trial of a Governor upon allegations received, by a body duly vested with judicial power where a fair hearing ought to be accorded to the Governor in the course of the proceedings in order for a valid judicial determination to be made. ‘Consideration’ in the parliamentary context as defined in Black’s Law Dictionary means

‘2. Parliamentary law. The process by which a deliberative assembly disposes of a motion; DELIBERATION. Consideration begins with a member making a motion; it ends with the chair putting the question on the motion (or on a subsidiary motion that disposes of the first motion). It also includes debate and may also include (among other things) amendment and referral to a committee.’

Without any shadow of doubt, from a combined reading of the above cited section of the Constitution and the elucidation provided by the definition of a key term in the said section, it was not intended by the framers of the Constitution that the ‘consideration’ of the report of the Panel would confer any judicial power upon the 2nd Respondent to determine the guilt or otherwise of the Governor.

5.2 I hereby adopt our submissions from the earlier part of this written address on the

need, based on constitutional jurisprudence in cases of this nature, for the 2nd Respondent to be expressly conferred and vested with the right to sit as a court for the trial of impeachments and make a determination of right.

5.3 In the absence of the 2nd Respondent at any point being duly conferred with the power to adjudicate over any allegations against the Governor, a Governor cannot be said to be guaranteed to ever be given a fair hearing should either of these bodies make a final decision to remove the holder from office. The breach of this aspect of the conditions to remove a Governor from office effectively taints the entire process, making any decision that arises therefrom unconstitutional, null, void and of no effect whatsoever.

5.4 From the totality of all our submissions above, therefore, Ss. 188 (2) (b); (6); (9) and (10) of the Constitution should all be invalidated for infringing upon the Governor’s right to fair hearing as guaranteed under Ss. 36 (1); (5) and (6), in line with the provisions of S. 36 (2) because of the obvious constitutional lapses which are evident and which infringe upon the right of Governors to be given a fair hearing in impeachment proceedings.

5.4.1 S. 36 (2), for clarity’s sake proclaims that

‘Without prejudice to the foregoing provisions of this section, a law shall not be invalidated by reason only that it confers on any government or authority power to determine questions arising in the administration of a law that affects or may affect the civil rights and obligations of any person if such law –

(a) provides for an opportunity for the person whose rights and obligations may be affected to make representations to the administering body before that authority makes the decision affecting that person; and

(b) contains no provision making the determination of the administering authority final and conclusive.’

By the provisions of S. 318 of the Constitution, authority and government may be used interchangeably to together mean ‘any person who excercises power or authority on’ behalf of government. The investigative Panel envisaged under S. 188 could thus be included in S. 36 (2).

S. 36 (2) therefore allows bodies other than judicial bodies to determine questions which may affect the civil rights and obligations of persons covered by the Constitution. The right of Alh. Tanko Umaru Al Makura to hold the office of Governor of Nasarawa State is in the class of such civil rights.

5.5 Without any doubt, my Lord, S. 188, though sui generis violates each of the 3 main features of S. 36 (2) in the following respects

1. It confers power upon both the investigative Panel and or the state House of Assembly to determine the right of a holder of the office of Governor to continue to hold same without first of all vesting judicial power in the State House of Assembly in line with what impeachment should be, to sit as a court for the trial of impeachments;

2. It does not provide an opportunity to the holder of the office of Governor to make representations to the state House of Assembly, particularly as a court for the trial of impeachments before they take their final decision; and

3. It provides in subsection (10) that the ‘determination’ of the state House of Assembly is final and conclusive and cannot be entertained in a court of law.

For the above reasons therefore, my Lord, the relevant sections of S. 188, as we have exhaustively shown by our written address and sought through our prayers, should be invalidated and struck down for ultimately infringing upon the right of a Governor to be given a fair hearing in impeachment proceedings.

6 CLOSING SUBMISSIONS6.1 The admonition contained in the dictum above is applicable to this case because

of the spate of removal proceedings that have been initiated, are being initiated and could be initiated against Governors. Once an impeachment notice has been served on a Governor, it is a foregone conclusion that he would leave office. This is mostly due to the misconception that there are actually provisions in S. 188 which ensure that a Governor is given a fair hearing and that he must therefore simply resign himself to his fate once served with the notice.

6.2 Tobi, JSC, in INAKOJU’S case (supra) made a notable pronouncement on this matter at page 634, paragraph C – E. He made comments on the rash state of impeachments in the country at that time, as is occurring now, and the effect of such impeachments on the country’s stability in response to other comments made by another Learned Justice of the Apex Court while citing an earlier case as follows:

‘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.’

The above dictum of the court is even more apt and gives cause for worry in the instant case where the 2nd Respondent in this case, even though a Panel has discharged and acquitted the Governor of Nasarawa State, has more or less sworn that they shall still go ahead and find a way to remove the Governor from office.

6.3 I humbly urge this honorable court to arrest this situation. I share the sentiments above of the learned Jurist, Tobi, JSC. But while seeping our emotions in his dictum, I also submit that the reason why the Learned Jurist expressed such despondency is because of the issues we have raised in this case: the status and powers of the investigative Panel and the House of Assembly which status and power do not in any way confer upon them any express power, in accordance with constitutional jurisprudence and provisions, to determine the guilt of a Governor; and the omission of a definite and express procedure which would ensure that a Governor be given a fair hearing in accordance with his rights as guaranteed under S. 36 of the Constitution when impeachment proceedings are initiated against him. The lack of this element of fair hearing is what enables state legislatures indulge in the removal of their state Chief Executives with such ease.

6.4 From all we have submitted it would appear that in the absence of procedures which guarantee that Governor’s get a fair hearing in proceedings which lead up to their removal from office, because of the inept drafting of this section of the Constitution, there is no redress for any conduct which Governors may engage in during their tenure of office. However, that is what the Constitution provides for now and all stakeholders are bound by this interpretation as it stands now until the Constitution is amended to ensure that Governors are given a fair hearing. It is not the duty of the court to make the law what it is probably meant to be.

Adekeye, JSC also had something to say in this light in the case of LADOJA V INEC [2007] 12 NWLR (PART 1047) 119 AT 189, PARAGRAPH C-E thus

‘ ”Lawmaking” in the strict sense of that term, is not the function of the judiciary but that of the legislature. To accede to the prayer of the plaintiff/appellant and read the word “uninterrupted” into the provision of the Constitution now under consideration will be for the judicial arm of the government to engage in an unwelcome trespass into the territory of the legislative arm of the government. I am quite conscious of the fact that occasionally laws passed by the legislators do not accord with the wishes of the people or may not meet with the requirements of the time. Let that defective law (sic) or law that does not meet the aspirations of the citizens be put right by the legislators.’ (Underlining mine for emphasis)

Without any shadow of doubt, S. 188 of the Constitution is defective in that while it attempts to accord with the time-tested principle that there must always be checks and balances in government and governance by apparently giving the legislative arm the power to try the Governor for alleged acts of gross misconduct, there are no provisions therein which ensure that a Governor’s inalienable right to be granted a fair hearing, in accordance with the relevant provisions of S. 36 of the Constitution would be realised. While the above state of affairs is defective and does not meet the requirement of the time considering the high rate of corruption case being recorded in Nigeria, this defective law can and must only be put right by the legislature.

Until this anomaly in S. 188 is duly corrected by the legislature to insert provisions which would ensure that the Governors’ right to fair hearing is protected and realized in the entire process, this honorable court is bound only to perform her constitutional duty, to wit, to interpret that the provisions of the Constitution, as they are today should be set aside or struck down and declared invalid since the investigative Panel and the House of Assembly are not vested with powers to determine the Governor’s right to continue to hold his office.

SUMMARY1. The intention of the legislature in S. 188 is that the section should serve as an

exception to the immunity conferred on Governors under S. 308.

2. The said exception therefore envisages that a sui generis trial be conducted by the state House of Assembly, being a full complement of people of Nasarawa State who voted the Governor into office in the first place, sitting as a court for the trial of impeachments, whenever allegations of gross misconduct are raised against a Governor in line with the Supreme Court authorities of INAKOJU V ADELEKE [2007] 4 N.W.L.R. (PART 1025) 423

and the Court of Appeal authority of DAPIANLONG V DARIYE [2007] 8 NWLR (PT 1036) 239.

3. The reason for the above is because the procedure in S. 188 amounts to the determination of the right of a person to hold the office of Governor and should therefore adhere to all the relevant principles for giving a person a fair hearing as provided for in S. 36 of the Constitution, beginning with the express vesting of the relevant judicial power to determine rights.

4. In the absence of having expressly had judicial power vested in them to make a determination of a Governor’s right to continue to hold office, the 2nd Respondent cannot validly and constitutionally remove the Governor from office by way of a determination as it would infringe upon his right to be given a fair hearing, having not expressly had judicial power initially vested in them to make such a determination.

5. Ss. 188 (2) (b), (6), (9) and (10) should therefore be invalidated for infringing upon a Governors rights as enshrined in Ss. 36 (1), (5) and (6) in pursuance of S. 36 (2) of the Constitution.

We humbly ask the court to grant all our prayers in the interest all concerned.


__________________________

B. F. Towobola, EsqAletheia Advocates






Lafia

FOR SERVICE ON:1. The Speaker


Nasarawa State House of AssemblyNasarawa State House of Assembly ComplexLafiaNasarawa State



SUIT NO: _____________________


HOLDEN AT LAFIA




AND



LIST OF AUTHORITIES

1. INAKOJU V ADELEKE [2007] 4 N.W.L.R. (PART 1025) 423 at 5782. DAPIANLONG V DARIYE [2007] 8 NWLR (PT 1036) 3323. DAPIANLONG V DARIYE [2007] 8 NWLR (PT 1036) 2394. BABA v N.C.A.T.C. [1991] 5 N.W.L.R. (PART 192) 3885. ABARIBE V ABIA STATE HOUSE OF ASSEMBLY [2002] 14 NWLR (PART

788) 4666. MUSA v HAMZA (1982) 3 NCLR 229 at 252 – 2537. ANSA V THE REGISTERED TRUSTEES OF THE PRESBYTERIAN CHURCH

OF NIGERIA [2008] ALL FWLR (PART 405) 16818. OYEYEMI V COMMISSIONER FOR LOCAL GOVERNMENT, KWARA STATE

& 3 ORS [1992] 2 NWLR (PART 226) 6619. AMAECHI V INEC [2008] ALL FWLR (PART 407) 110. ADENIYI V GOVERNING COUNCIL OF YABA COLLEGE OF TECHNOLOGY

[1993] 6 NWLR (PART 300) 42611. LEGAL PRACTITIONERS DISCIPLINARY COMMITTEE V CHIEF GANI

FAWEHINMI [1985] 2 NWLR (PART 7) 30012. OLUFEAGBA V ABDUR-RAHEEM [2010] ALL FWLR (PT 512) 103313. CITY OF LONDON V WOOD (1701) 88 ER 1592 at 160214. LADOJA V INEC [2007] 12 NWLR (PART 1047) 119


__________________________

B. F. Towobola, EsqAletheia Advocates






Lafia

FOR SERVICE ON:1. The Speaker

Nasarawa State House of AssemblyNasarawa State House of Assembly ComplexLafiaNasarawa State



SUIT NO: _____________________


HOLDEN AT LAFIA





AND

1. THE SPEAKER, NASARAWA STATE HOUSE OF ASSEMBLY


MOTION EX PARTEBROUGHT PURSUANT TO ORDER IV RULES 3 AND 4 (V) OF THE FUNDAMENTAL

RIGHTS (ENFORCEMENT PROCEDURE) RULES, 2009

THIS HONORABLE COURT shall be moved by nine o’clock in the fore noon or so soon thereafter as counsel to the Applicant may be heard praying this honorable court for the following relief(s):

AN INTERIM ORDER RESTRAINING the defendants from taking any further steps towards removing Alhaji Tanko Al Makura as the Governor of Nasarawa State, pending the determination of the Motion on Notice filed in this suit.

AND FOR SUCH FURTHER or other order(s) that his honorable court shall deem fit to make in the circumstances.








Lafia



SUIT NO: _____________________


HOLDEN AT LAFIA




AND



AFFIDAVIT IN SUPPORT OF MOTION EX PARTE SEEKING AN INTERIM RESTRAINING ORDER


1. That I am a public interest litigator and I take this matter up in the interest of the vulnerable Governor and people of Nasarawa State, the Judiciary, the Nigeria Governor Forum and the generality of Nigerians who are directly or indirectly affected by the effects of issues like this;

2. That I know as a fact that the provisions of S. 188 of the Constitution do not expressly confer upon either the investigative Panel contemplated under the section nor the Nasarawa State House of Assembly the requisite judicial power or authority to make any determination as to the guilt or otherwise of the Governor of Nasarawa State in respect of any notice of allegations that may be served upon him at any time;

3. That the provisions of S. 188, as presently constituted under the Constitution of the Federal Republic of Nigeria, 1999 (as amended) do not ensure that the Governor of Nasarawa State’s right to fair hearing, as conferred under S. 36 of the Constitution shall be protected in the course of the removal proceedings;

4. That every Nigerian is entitled to a fair hearing, including the Governor of Nasarawa State;

5. That I know as a fact that the Constitution and the court do not envisage that a Governor be removed merely for political purposes;

6. That Honorable members of the 2nd Respondent have threatened to still go ahead and impeach the Governor of Nasarawa State, Alh. Tanko Umaru Al-Makura in purported pursuance of S. 188 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) as can be seen from my affidavit of urgency even though he was discharged and acquitted by an investigative Panel on Tuesday August 5, 2014;

7. That should they go ahead and carry out their threat, it is likely to create a situation of mayhem within Lafia, the Nasarawa State capital, other parts of the state and indeed, could spread to other parts of the country;

8. That there is a state of insecurity in Nasarawa State as a result of the botched bid to impeach the Governor of Nasarawa State and other security related issues which have arisen in the last one and a half years in the state;

9. That there is also a high rate of insecurity in the country because of the menace of Boko Haram;

10.That it is necessary for this orderto be granted so as to quell the tensions in respect of the issues arising from the desire of the Respondents to impeach the Governor of Nasarawa State and keep all stakeholders in check pending the determination of this Honorable Court;

11.That I have filed a suit in this honorable court under the Fundamental Rights (Enforcement) Procedure, 2009, challenging the validity and vires of procedure contained in the said section 188 on the grounds that same infringes upon the fundamental right of the Governor of Nasarawa State, and indeed all Governors, to be granted a fair hearing in the process leading up to his removal;

12.That if this order is not granted, it is likely that the Respondents could go ahead and remove the Governor of Nasarawa State from office before the determination of this matter;

13.That if they proceed with their plans as aforesaid, in accordance with the provisions of S. 188 as presently constituted, they would have succeeded in infringing upon the right of a Governor to a fair hearing;

14.That it is necessary for the interim relief that we seek to be granted so as to maintain the status quo and preserve the res, pending the final determination of this suit;

15.That the order shall not be kept in place for long since we have instituted this matter by way of fundamental rights enforcement procedure which ensures for speedy determination of the matters raised;

16.That a rash wave of removals of state chief executives of states from office is a danger to the stability of the socio-political system in the country, hence the need to first of all stave off the impending continuation of the process upon the Governor of Nasarawa State pending the determination of this honorable court;



_____________________

DEPONENT

Sworn to at the High Court of Justice Registry, Lafia

This ___________ day of _____________________, 2014.

BEFORE ME



SUIT NO: _____________________


HOLDEN AT LAFIA




AND



WRITTEN ADDRESS IN SUPPORT OF MOTION EX PARTE

The Applicant seeks a sole relief, to wit,

AN ORDER OF INTERIM INJUNCTION RESTRAINING the defendants from taking any further steps towards removing Alhaji Tanko Al Makura as the Governor of Nasarawa State, pending the hearing and determination of the Motion on Notice filed in this suit.

AND FOR SUCH FURTHER or other order(s) that this honorable court shall deem fit to make in the circumstances.

The application is supported by a 13-paragraph affidavit deposed to by the Applicant himself.

The defendants have initiated the process for the removal of the Governor of Nasarawa State from office in purported pursuance of S. 188 of the Constitution by purportedly serving upon him notice of allegations of gross misconduct. The applicant has filed a suit in court challenging the entirety of S. 188 on the grounds that it does not guarantee the Governor a fair hearing before his being removed from office.

In every matter brought before the court, it is necessary to preserve the res so as to ensure that the court does not eventually make orders which cannot be obeyed. The res in this case is the holding of the office of Governor by Alhaji Tanko Al Makura. Once he is removed from office, that res would have been destroyed.

It is for this reason, therefore that the relief being sought has to be granted.

We are not unaware that the legislative arm of government cannot be stopped from performing their constitutional legislative functions. My response to that is 2 pronged.

Firstly, the process of removing a Governor from office is not a legislative function; it is a quasi-political-judicial function. This much was stated by Tobi, JSC in the case of INAKOJU V ADELEKE [2007] 4 N.W.L.R. (PART 1025) 423 at 578, paragraph D – E where ‘impeachment’ (which is what the removal of a Governor is colloquially called) was defined in the following words


“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” ’

By the definition of impeachment as culled from the above case, therefore, the proceedings intended are to be conducted by a quasi-political court, which would thus exercise judicial powers. This is clearly not a legislative function.

In contrast, My Lord, ‘legislative functions’ of the defendants can be defined to mean

‘1. The duty to determine legislative policy. 2. The duty to form and determine future rights and duties.’

My Lord, it can be clearly seen from the above 2 definitions culled from the Black’s Law Dictionary, 8th Ed. that since the law contemplates that only a body duly conferred with power under the Constitution to sit as a quasi-political court, the acts of the legislature which we seek to have restrained do not fall within the purview of their legislative duties and functions to determine legislative policy or their duty to form and determine future rights and duties.

In the case of ABARIBE V ABIA STATE HOUSE OF ASSEMBLY [2002] 14 NWLR (PART 788) 466, the Court of Appeal also declared in support of this position of ours in the following terms at page 491, paragraph E – G quoting from the Corpus Juris Secondus which is an American text which expounded on the more exhaustive provisions of the US Constitution on the issue of impeachment and removal as follows



For this reason, my Lord, we humbly urge the court to grant the relief as prayed, since it does not touch on the legislative functions of the Respondents and is to be granted to, in the interim, protect the right of a Governor to be given a fair hearing in impeachment proceedings, pending the determination of the motion on notice filed with this suit, more particularly as it borders on the alleged exercise of judicial power which has not been conferred in accordance with the law and is thus defective ab initio, thereby conferring no power to exercise same.








Lafia


SUIT NO: _____________________


HOLDEN AT LAFIA





AND



MOTION ON NOTICE

TAKE NOTICE THAT this honorable court shall be moved by nine o’clock in the fore noon or so soon thereafter as counsel to the Applicant may be heard praying this honorable court for the following relief(s):

AN ORDER OF INTELOCUTORY INJUNCTION RESTRAINING the defendants from taking any further steps towards removing Alhaji Tanko Al Makura as the Governor of Nasarawa State, pending the hearing and determination of the substantive suit.









Lafia

FOR SERVICE ON:





SUIT NO: _____________________


HOLDEN AT LAFIA




AND



AFFIDAVIT IN SUPPORT OF MOTION ON NOTICE SEEKING AN INTERLOCUTORY RESTRAINING ORDER


1. That I am a public interest litigator and I take this matter up in the interest of the uninformed and vulnerable Governor and people of Nasarawa State and the generality of Nigerians who are directly or indirectly affected by the effects of issues like this;

2. That I know as a fact that the provisions of S. 188 of the constitution do not expressly confer upon either the investigative Panel contemplated under the section nor the Nasarawa State House of Assembly the power or authority to make any determination as to the guilt or otherwise of the Governor of Nasarawa State in respect of any notice of allegations that may be served upon him at any time;

3. That the provisions of S. 188, as presently constituted under the Constitution of the Federal Republic of Nigeria, 1999 (as amended) do not ensure that the Governor of Nasarawa State’s or any other Governor’s right to fair hearing as recognized and protected under S. 36 of the Constitution shall be protected in the course of the removal proceedings;

4. That every Nigerian is entitled to a fair hearing, including the Governor of Nasarawa State;

5. That I know as a fact that the Constitution and the court do not envisage that a Governor be removed merely for political purposes;

6. That I have filed a suit in this honorable court under the Fundamental Rights (Enforcement) Procedure, 2009, challenging the validity and vires of procedure contained in the said section 188 on the grounds that same infringes upon the

fundamental right of the Governor of Nasarawa State, and indeed all Governors, to be granted a fair hearing in the process leading up to his removal;

7. That at the said press conference, the legislators stated that they are determined to ensure that the Governor is removed from office;

8. That if they proceed with their plans as aforesaid, in accordance with the provisions of S. 188 as presently constituted, it would infringe upon the right of a Governor to a fair hearing;

9. That the order shall not be kept in place for long since we have instituted this matter by way of fundamental rights enforcement procedure which ensures for speedy determination of matters;

10.That a rash wave of removals of state chief executives from office is a danger to the stability of the socio-political system in the country, hence the need to first of all stave off the impending continuation of the process upon the Governor of Nasarawa State pending the determination of this honorable court;



_____________________

DEPONENT


This ___________ day of _____________________, 2014.

BEFORE ME



SUIT NO: _____________________


HOLDEN AT LAFIA




AND

1. THE SPEAKER, NASARAWA STATE

HOUSE OF ASSEMBLY - RESPONDENTS


WRITTEN ADDRESS IN SUPPORT OF MOTION ON NOTICE


AN ORDER RESTRAINING the defendants from taking any further steps towards removing Alhaji Tanko Al Makura as the Governor of Nasarawa State, pending the hearing and determination of the substantive suit.



The defendants have initiated the process for the removal of the Governor of Nasarawa State from office in purported pursuance of S. 188 of the Constitution by purportedly serving upon him notice of allegations of gross misconduct. The applicant has filed a suit in court challenging the entirety of S. 188 on the grounds that it does not guarantee the Governor a fair hearing before his being removed from office.

In every matter brought before the court, it is necessary to preserve the res so as to ensure that the court does not eventually make orders which cannot be obeyed. The res in this case is the holding of the office of Governor by Alhaji Tanko Al Makura. Once he is removed from office, that res would have been destroyed.

It is for this reason, therefore that the relief being sought has to be granted.

We are not unaware that the legislative arm of government cannot be stopped from performing their constitutional legislative functions. My response to that is 2 pronged.

Firstly, the process of removing a Governor from office is not a legislative function; it is a quasi-political-judicial function. This much was stated by Tobi, JSC in the case of INAKOJU V ADELEKE [2007] 4 N.W.L.R. (PART 1025) 423 at 578, paragraph D – E where ‘impeachment’ (which is what the removal of a Governor is colloquially called) was defined in the following words


“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” ’

The attempt to remove Governor Tanko Al Makura from office, therefore, is supposed to be a quasi-judicial function.

In contrast, My Lord, the ‘legislative functions’ of the defendants can be defined to mean

‘1. The duty to determine legislative policy. 2. The duty to form and determine future rights and duties.’

My Lord, it can be clearly seen from the above 2 definitions culled from the Black’s Law Dictionary, 8th Ed. that since the law contemplates that only a body duly conferred with power under the Constitution to sit as a quasi-political court can attempt to impeach and remove a Governor, the acts of the legislature which we seek to have restrained do not fall within the purview of their legislative duties and functions to determine legislative policy or form and determine future right and duties.

In the case of ABARIBE V ABIA STATE HOUSE OF ASSEMBLY [2002] 14 NWLR (PART 788) 466, the Court of Appeal also declared in support of this position of ours in the following terms at page 491, paragraph E – G quoting from the Corpus Juris Secondus which is an American text which expounded on the more exhaustive provisions of the US Constitution on the issue of impeachment and removal as follows



For this reason, my Lord, we humbly urge the court to grant the relief as prayed, since it does not touch on the legislative functions of the Respondents and is to be granted to, in the interim, protect the right of a Governor to be given a fair hearing in impeachment proceedings, pending the determination of the substantive application, more particularly as it borders on the alleged exercise of judicial power which has not been conferred in accordance with the law and is thus defective ab initio, thereby conferring no power to exercise same.


__________________________B. F. Towobola, Esq

Aletheia AdvocatesB. F. Towobola & Co.

Applicants Counsel4th Floor, UBA Building17/19 Beach Road, Jos




Lafia

FOR SERVICE ON:





SUIT NO: _____________________


HOLDEN AT LAFIA




AND



AFFIDAVIT OF URGENCYI, Babatunde Folarin Towobola, Male, Adult, Christian, Legal Practitioner of No. 37/39 Tafawa Balewa Street, Jos, Plateau State do hereby solemnly make oath and state as follows:

1. That I am a public interest litigator and I take this matter up in the interest of the uninformed and vulnerable Governor of Nasarawa State, Alh. Umaru Tanko Al Makura, and the people of Nasarawa State, Governors of other states in Nigeria who have been and are likely to be affected by the provisions of S. 188 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and the generality of Nigerians who are directly or indirectly affected by the effects of the unconstitutional removal of a Governor from office;

2. That I know as a fact that in accordance with the provisions of S. 188 of the Constitution the Nasarawa State House of Assembly has put in motion the process to remove Alhaji Umaru Tanko Al-Makura from office as Governor of Nasarawa State.

3. That contrary to common belief, the procedure contained in S. 188 of the Constitution does not ensure that any Governor is given a fair hearing before they are removed from office and therefore, infringes upon a Governors right to be given a fair hearing in various respects as enshrined in S. 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended);

4. That the procedure for the removal of a Governor from office as currently being practiced in Nigeria effectively ensures that a Governor can be removed from office within 1 month of the initiation of the process;

5. That I know as a fact that the Governor of Nasarawa State appeared before an investigative Panel appointed by the Chief Judge of Nasarawa State on Monday August 4, 2014 in purported compliance with the procedures of the Constitution;

6. That I know as a fact that the 2nd Respondent which requested the setting up of the investigative Panel expressed their displeasure at the composition of same, describing it as compromised, and has petitioned the

Economic and Financial Crimes Commission (EFCC) to further investigate the Governor of Nasarawa State;

7. That I know as a fact that it is 20 of the 24 legislators comprising the 2nd Respondent who have a statistical advantage, all being members of the opposition party in Nasarawa State, the People’s Democratic Party (PDP), that are spearheading the move to have the Governor of Nasarawa State, Alh. Tanko Umaru Al-Makura removed from office;

8. That campaigns for the said election would commence soon;

9. That there is always an inherent advantage to the party of an incumbent Governor at elections for the next Governor;

10.That the next elections into the office of Governor of Nasarawa State are to be conducted on February 28, 2015;

11.That the Supreme Court, in the case of Inakoju v Adeleke [2007] 4 NWLR (Part 1025) 423 has stated in no uncertain terms that the tool of impeachment and removal of a Governor from office ought not to be used merely for political purposes.

12.That I know as a fact that the Nasarawa State House of Assembly has made several unsuccessful attempts to remove Alh. Tanko Umaru Al-Makura from office as the Governor of Nasarawa State in the last 3 years;

13.That owing to this state of affairs, it is absolutely necessary to hear this matter expeditiously in order to ensure that the interpretation of the Constitution as would be given by this Honorable Court as to whether S. 188 as presently constituted protects the Governors right to fair hearing, would clarify the issues arising therefrom;

14.That it is necessary for this Honorable Court to step in and interpret the relevant provisions of the Constitution with a view to determining all the issues which this recondite point of law raises.

15.That in the event that this matter is not attended to with the urgency it deserves, there is every likelihood that the res in this suit, i. e., the tenure of office in issue in this case would lapse and therefore give the Governor a pyrrhic victory, even if it does not outrightly deny him of same;

16.That owing to the face-off between the Nasarawa State Governor and the Nasarawa State House of Assembly as a result of the above developments, aspersions have also been cast on the integrity of the Chief Judge of Nasarawa State as he has been accused of appointing persons of questionable integrity to the investigative Panel;

17.That being the personification of the judiciary, the said aspersions also affect the judiciary as a whole;

18.That the substantive suit herein has raised the recondite issue of whether the procedure for the removal of a Governor, as contained in S. 188 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), gives a fair hearing to a Governor before their removal;

19.That it is therefore necessary for this Honorable Court to determine this issue of fair hearing as soon as possible so that the Governor, the State House of Assembly, the Chief Judge and most importantly, the citizens of Nasarawa State would respectively know their fates with respect to the governance of Nasarawa State;

20.That the urgency in this matter is further heightened by the fact that the Judiciary Staff Union of Nigeria (JUSUN) has suspended their strike action and resumed work on Monday August 4, 2014;

21.That the said suspension of strike activities, according to the Memorandum of Understanding the union executed with the Federal Government, is to remain in force for only 45 days, thereby making it possible that before September 20, 2014, the judiciary staff could resume their industrial action again;

22.That it is therefore necessary that this matter be expeditiously heard and determined so as to ensure that the matter is not caught by the industrial action of the JUSUN staff should they resume the industrial action again so that even if they do resume their industrial action, all the stakeholders in this matter would be guided by the judgment of the court herein;


_____________________

DEPONENT

Sworn to at the High Court Registry, Lafia

This ___________ day of _____________________, 2014.

BEFORE ME



SUIT NO: _____________________


HOLDEN AT LAFIA




AND



MOTION EX PARTE

BROUGHT PURSUANT TO ORDER V RULES 7 AND (e) OF THE FUNDAMENTAL RIGHTS (ENFORCEMENT PROCEDURE) RULES, 2009


AN ORDER GRANTING LEAVE TO THE BAILIFF OF THIS HONORABLE COURT TO SERVE THE RESPONDENTS IN THIS MATTER BY SUBSTITUTED MEANS, TO WIT, BY PASTING ALL PROCESSES FILED IN THIS MATTER AT THE LAST KNOWN PLACE OF BUSINESS OF THE RESPONDENTS BEING THE NASARAWA STATE HOUSE OF ASSEMBLY COMPLEX, LAFIA, NASARAWA STATE.









Lafia



SUIT NO: _____________________


HOLDEN AT LAFIA




AND





1. That I am plaintiff in this matter therefore I am conversant with the facts of this case;

2. That I know as a fact that the bailiff of this Honorable Court made several unsuccessful attempts to serve the Respondents in this matter with the originating processes but to no avail;

3. That in particular, the Bailiff of this honorable court notified me in the High Court Premises in Lafia on Wednesday August 20, 2014 at about 2:00pm that he was denied entry into the Nasarawa State House of Assembly Complex on Tuesday August 19, 2014 on about 3 occasions when he sought to serve the Respondents with the originating processes (Exhibit A);

4. That I am sure that if the Respondents are served by the substituted means sought by this application, notice of this suit shall be duly given to them;

5. That the main suit herein is one that borders on the smooth governance of Nasarawa State and has been brought before this Honorable Court as a matter of urgency;

6. That it is thus necessary for this honorable court to grant this application in order to ensure that the basis for the filing of this suit is not thwarted and the matter is heard before any orders which this court may grant shall not be ineffective;

7. That I depose to this oath in good faith, verily believing its contents to be true to the best of my knowledge, information and belief and also in accordance with the Oaths Act, 2004.

_____________________

DEPONENT


This ___________ day of _____________________, 2014.

BEFORE ME



SUIT NO: _____________________


HOLDEN AT LAFIA




AND








From the facts contained in the affidavit, the Bailiff has made at least a couple of attempts to serve the originating processes of this case on the Respondents but to no avail. The applicant thus seeks a solution under Order V Rule 7 (e) of the Fundamental Rights (Enforcement Procedure) Rules, 2009 which allows for substituted service.

It is fundamental that before a court may assume jurisdiction in a case, the Respondents must be served with the processes. GUINNESS NIG. PLC. V OBOT [2008] ALL FWLR (PART 412) 1113 AT 1134, PARAGRAPH E. This is further necessary in order to make them bound by any orders which the court may make. Supra at 1136, paragraph C.

For this reason, my Lord, we humbly urge the court to grant the relief as prayed.






ADDRESS WITHIN JURISDICTION:


C/O J. E. Agbo & AssociatesProvidence ChambersNo. 115 Makurdi RoadOpposite PHCN Office

Lafia


SUIT NO: _____________________


HOLDEN AT LAFIA




AND



MOTION EX PARTE

BROUGHT PURSUANT TO ORDER V RULES 7 AND (e) OF THE FUNDAMENTAL RIGHTS (ENFORCEMENT PROCEDURE) RULES, 2009











Lafia



SUIT NO: _____________________


HOLDEN AT LAFIA




AND



AFFIDAVIT IN SUPPORT OF MOTION EX PARTE FOR SUBSTITUTED SERVICE



2. That I know as a fact that the bailiff of this Honorable Court made several unsuccessful attempts to serve the Respondents in this matter with the originating processes but to no avail;

3. That in particular, the Bailiff of this honorable court notified me in the High Court Premises in Lafia on Wednesday August 20, 2014 at about 2:00pm that he was denied entry into the Nasarawa State House of Assembly Complex on Tuesday August 19, 2014 on about 3 occasions when he sought to serve the Respondents with the originating processes (Exhibit A);

4. That I am sure that if the Respondents are served by the substituted means sought by this application, notice of this suit shall be duly given to them;


6. That it is thus necessary for this honorable court to grant this application in order to ensure that the basis for the filing of this suit is not thwarted and the matter is heard before any orders which this court may grant shall not be ineffective;

7. That I depose to this oath in good faith, verily believing its contents to be true to the best of my knowledge, information and belief and also in accordance with the Oaths Act, 2004.

_____________________

DEPONENT


This ___________ day of _____________________, 2014.

BEFORE ME



SUIT NO: _____________________


HOLDEN AT LAFIA




AND



WRITTEN ADDRESS IN SUPPORT OF MOTION EX PARTE FOR SUBSTITUTED SERVICE





From the facts contained in the affidavit, the Bailiff has made at least a couple of attempts to serve the originating processes of this case on the Respondents but to no avail. The applicant thus seeks a solution under Order V Rule 7 (e) of the Fundamental Rights (Enforcement Procedure) Rules, 2009 which allows for substituted service.

It is fundamental that before a court may assume jurisdiction in a case, the Respondents must be served with the processes. GUINNESS NIG. PLC. V OBOT [2008] ALL FWLR (PART 412) 1113 AT 1134, PARAGRAPH E. This is further necessary in order to make them bound by any orders which the court may make. Supra at 1136, paragraph C.

For this reason, my Lord, I humbly urge the court to grant the relief as prayed.









Lafia


SUIT NO: _____________________


HOLDEN AT LAFIA




AND



MOTION EX PARTE

BROUGHT PURSUANT TO ORDER IV RULE 2, 4 (V) AND 6 OF THE FUNDAMENTAL RIGHTS (ENFORCEMENT PROCEDURE) RULES, 2009 AND THE

INHERENT JURISDICTION OF THIS HONORABLE COURT


AN ORDER OF THIS HONORABLE COURT ABRIDGING THE TIME WITHIN WHICH THE RESPONDENTS MAY FILE THEIR PROCESSES IN RESPONSE TO THE SUBSTANTIVE APPLICATION FROM 5 DAYS TO 3 DAYS OWING TO TIME THAT HAS BEEN LOST FROM INABILITY TO SERVE THE ORIGINATING PROCESSES UPON THE RESPONDENTS AND THE URGENCY OF THIS CASE.









Lafia



SUIT NO: _____________________


HOLDEN AT LAFIA




AND






2. That this suit was filed in the Registry of this Honorable Court on Wednesday August 13, 2014;

3. That same was fixed for the hearing of the substantive matter on Thursday August 21, 2014 owing to the urgent nature of the suit;

4. That between Wednesday August 13 and Tuesday August 19, the Bailiff of this Honorable Court was not able to serve the originating processes on the Respondents;

5. That I know as a fact that contrary to expectations under the Constitution, the Respondents did not sit and conduct any legislative business within the week running from Monday August 11 to Friday August 15, 2014;

6. That I have had to apply that the Respondents be served by substituted means;

7. That this case was accommodated by the vacation judge owing to the circumstances as contained in my affidavit of urgency filed on August 13, 2014;

8. That as it is now, one whole week has been lost towards the determination of this matter;


10.That it is thus necessary for this honorable court to grant this application in order to ensure that the basis for the filing of this suit is not thwarted and the matter is heard before any orders which this court may grant shall not be ineffective;


_____________________

DEPONENT


This ___________ day of _____________________, 2014.

BEFORE ME



SUIT NO: _____________________


HOLDEN AT LAFIA




AND





AN ORDER OF THIS HONORABLE COURT ABRIDGING THE TIME WITHIN WHICH THE RESPONDENTS MAY FILE THEIR PROCESSES IN RESPONSE TO THE SUBSTANTIVE APPLICATION FROM 5 DAYS TO 3 DAYS OWING TO TIME THAT HAS BEEN LOST FROM INABILITY TO SERVE THE ORIGINATING PROCESSES UPON THE RESPONDENTS AND THE URGENCY OF THIS CASE.


The application is supported by an 11-paragraph affidavit deposed to by the Applicant himself.

From the facts contained in the affidavit in support of this application and the affidavit of urgency filed, time has been lost in the hearing of this application since the originating processes have not been served on the Respondents. It is thus necessary to abridge the time provided under the rules for the Respondents to respond to this application so as to ensure that the urgency in this application is not caught by any actions which they may want to take as contained in Exhibits A and B of the Exhibits contained in the Affidavit of Urgency filed in this suit.

For this reason, my Lord, I humbly urge the court to grant the relief as prayed.








Lafia



SUIT NO: NSD/LF36M/2014


HOLDEN AT LAFIA




AND



WRITTEN ADDRESS IN OPPOSITION TO PRELIMINARY OBJECTION

In responding to this Objection, I must first of all state that the application has defeated by the Objectors’ own processes because by paragraph 2a of the counter-affidavit to the substantive application, paragraph 19 of the affidavit in support of the main

application which states that ‘it is necessary for this honorable court to step in and interpret the relevant provisions of the Constitution with a view to determining all the issues which this recondite point of law raises’ has not been denied. The Objectors have therefore seen the need for this court to go into the substantive matter.

In the main, my Lord, the ground upon which the preliminary objection has been raised may be divided into 2: locus standi and the issue of fair hearing as raised in the substantive application.

Locus standi (Grounds 1, 2 and 5)

The issue of locus standi may be culled from grounds 1 and 2 of the preliminary objection. It was also referred to in paragraphs 3.11, 3.13, 3.16, 3.17, 3.20, 3.35, 3.36, 3.42 and 3.43 of their written address in support of the Objection.

Firstly, My Lord, I must draw the courts attention to the fact that none of the cases cited by the Respondents on the issue of locus standi was a matter brought under the Fundamental Rights (Enforcement Procedure) Rules. The therefore humbly urge the court to be circumspect in applying these cases to this case owing to the provisions of S. 3 (e) of the Preamble to the Fundamental Rights (Enforcement Procedure) Rules, 2009, the Rules under which this matter was brought before this honorable court.

The said Rules were made in pursuance of the powers conferred upon the then Chief Justice of Nigeria by S. 46 (3) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), Idris Legbo Kutigi, GCON on December 1, 2009.

In S. 3 (e) of the Preamble of the said Rules, the Learned Jurist said this in respect of the issue of locus standi which has been raised by the Respondents in their preliminary objection (hereinafter referred to as ‘PO’):

‘the Court shall encourage and welcome public interest litigations in the human rights field and no human rights case may be dismissed or struck out for want of locus standi in particular, human rights activists, advocates or groups as well as any non-governmental organisations, may institute human rights application on behalf of any potential applicant. (Underlining mine for emphasis)

It is thus very clear that the issue of locus standi cannot be raised in a matter of this nature brought by way of fundamental rights enforcement procedure which is sui generis. By the above provision of the rules, this case may not be dismissed or struck out on the ground of locus standi. It is therefore not for the Respondents herein to rope this Honorable Court into any debate on the directions given by the Learned Chief Justice of Nigeria (as he then was) with respect to the issue of locus standi as mentioned by them by this application.

‘Public interest’ has been defined to mean

‘Something in which the public as a whole has a stake; especially an interest that justifies governmental regulation. ’

At the risk of sounding pedestrian, as an arm of government the court has a duty to assume jurisdiction over this matter and regulate, if need be, the right of a Governor to be given a fair hearing before his right to continue to hold his office is determined. Changes in government caused by the removal of the Chief Executive of the state is a matter which the public as a whole has a stake in.

Flowing from the above definition also, a matter of public interest is one in which ‘the public as a whole has a stake.’ The fact that applicant did not use the exact and precise terms of saying that the matter has been brought ‘in the public interest’ does not meant that the matter does not meet the requirement for being covered thereby. It is for this reason that the Learned Chief Justice of Nigeria (as he then was) stated in Paragraph 3 (1) of the Preamble to the Rules that

‘The Court shall constantly and conscientiously seek to give effect to the overriding objectives of these Rules at every stage of human rights action, especially whenever it excercises any power given it by these Rules or any other law and whenever it applies or interprets any rule.’

Since S. 3 (e) mentioned above is one of the overriding objectives of applications of this nature, I humbly urge this honorable court to, in line with the inherent jurisdiction conferred upon her by Section 6 of the Constitution as well, to overrule this ground of the objection and strike same out.

My Lord, the fundamental issue in this case is whether by the procedure under S. 188 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) (hereinafter referred to as ‘the Constitution’), a Governor as is Alhaji Umaru Tanko Al-Makura of Nasarawa State is given a fair hearing as guaranteed him under Ss. 36 (1), (5) and (6) of the Constitution. From the above section of the preamble, therefore, locus standi does not affect the institution of the suit in any way and same cannot be dismissed or struck out on that ground as being sought by the Respondents by this application. With the current crises being experienced in Nasarawa State as a result of the impeachment saga of the Governor, it goes without saying that the issue of the fair hearing of a Governor in impeachment proceedings is a matter of which the entirety of the Nasarawa State public has a stake.

The preamble continues by saying:

‘In human rights litigation, the applicant may include the following:(i) Anyone acting in his own interest;(ii) Anyone acting on behalf of another person;(iii) Anyone acting as a member of, or in the interest of a group or

class of persons;

(iv) Anyone acting in the public interest . . .’

In the name and description of the applicant as given in the substantive application, he state that he acts on behalf of Alhaji Umaru Tanko Al-Makura, the Governor of Nasarawa State and the members of the Nigeria Governors Forum. He has therefore shown that he acts on behalf of one other person and in the interest of a group of persons.Therein, he also stated that he acts in the public interest and on behalf of the generality of Nigerians who are likely to be adversely affected by issues of this nature since they are uninformed.

On the basis of all the above submissions, therefore, I submit that the Applicant does not need to have locus standi in matters of this nature and this honorable court cannot dismiss or strike out this matter on that basis.

Indeed, it is this preliminary objection that is an abuse of court process and same should be struck out.

The issue of locus standi is in fact so sacrosanct that from the portion of Paragraph 3 (e) of the Preamble cited above, under no circumstance may a court exercise her discretion in such a manner as to dismiss or strike out an application brought under the fundamental rights enforcement procedure on the basis of locus standi.

The Respondents have not by the Preliminary Objection denied that the named applicant herein is a Legal Practitioner; a Barrister and Solicitor of the Supreme Court of Nigeria. That therefore makes him an advocate. An advocate is one who ‘assists, defends, pleads or prosecutes for another.’

Therefore, the provisions of Paragraph 3 (e) of the Preamble to the Rules could not merely be a reference to the role of a legal practitioner to files matters on behalf of a client that has duly briefed him to do same. The then Chief Justice of Nigeria did not need to come out and state the above obvious fact. Paragraph 3 (e) is a liberalization of the general rule on locus standi in respect of matters which border on fundamental rights so as to enhance the dignity of the persons of Nigerians by allowing legal practitioners to take up for citizens matters which would enhance the Rule of Law in their lives.

The reference in paragraph 3.18 of their address to Order XIII Rule 1 is of no moment to their position. This is because the said Order specifically makes provision for both a proper party and also amici curiae to be heard. This therefore buttresses our point that inn the very first place, an Applicant may not have been a proper party. What the said provisions envisages is that if a person for whose benefit an application of this nature has been filed seeks to make representations of their own, the court would allow same. There provisions of the 5th Edition of the Black’s Law dictionary cannot be here applied

as the meanings given by the Respondents do not accord with those contained in the current edition of the same text.

The Substantive Issue of Breach of Fundamental Right (Grounds 3, 4 and 5)

My Lord, the above issue may be culled from grounds 3, 4 and 5 of the Objection and were further elaborated upon in paragraphs 3.05, 3.06, 3.07, 3.09, 3.10, 3.21, 3.34, 3.38, 3.39, 3.40 and 3.41 of the written address in support of the Objection. To wit, the above paragraphs harp on that aspect of the main application which borders on the issue of the likelihood of the right of a Governor to be given a fair hearing to be infringed upon in the process of seeking to remove him under S. 188 of the Constitution.

It is trite that the Fundamental Rights Enforcement Procedure is sui generis and is a special class of procedure. While the right to fair hearing as enshrined in S. 36 is not new to any of the parties in this suit, I submit without any fear of contradiction that the question as to whether or not a Governor is given a fair hearing under the procedure leading up to his removal as contained in the entirety of S. 188 of the Constitution has not been tabled before any Nigerian court of law before. The closest that a court has gotten to the issue of fair hearing in respect of the S. 188 procedure was in the case of ABARIBE V ABIA STATE HOUSE OF ASSEMBLY [2002] 14 NWLR (PART 788) 466. Even in that case, the issue which was tabled before the Court of Appeal was that the appellant did not wait for the 14 days as provided for under S. 188 (2) of the Constitution to lapse.

From the above, therefore, the issue of the breach of the Governors right to fair hearing as culled from the grounds and paragraphs of the written address above border on the substantive application and in effect, the merit of the case. It is trite that matters which touch on the substantive application should not be delved into at the stage of preliminary objection.

In the case of OJUKWU V YAR’ADUA [2009] ALL FWLR (PT 482) 1065, the Supreme Court pronounced on this issue above. The said matter, just like this instant case, was sui generis being an election petition matter. At page 1143, paragraph B – E, Onnoghen, JSC expressed it as follows:

‘it is settled law that the court does not decide the merit of a case at the interlocutory stage of the proceedings.’

We therefore humbly urge the Court to dismiss the relevant grounds of the Objection based on the above judicial authority and dismiss this Objection in its entirety.

Abuse of Court Process

In respect of this application being an abuse of court process because it ought to have been brought by way of Originating Summons, I submit that the main application boils down to one main issue: does the entirety of the procedure outlined in S. 188 of the Constitution uphold and enforce a Governors right to be given a fair hearing before his right to continue to hold the office is finally determined? If the answer is in the affirmative, then indeed, this action is an abuse of court process. However, if the answer is in the negative, then it is not. Just like our submissions above, this is a matter for the substantive application and cannot therefore be determined at this interlocutory stage based on the authority of OJUKWU V YAR’ADUA (supra) cited above.

It must be highlighted here that the main issue which has been raised in this application is not just one which borders on the mere interpretation of the provisions of S. 188 of the Constitution, but, as has been acknowledged by the Respondents, which borders on the fundamental right of a Governor to be given a fair hearing as guaranteed by S. 36, under Part IV of the Constitution, before he may be determined to not hold the office any more,. The rules of procedure pursuant to which the substantive application has been filed were made pursuant to S. 46 (1) of the Constitution which has therefore effectively taken the matter outside the realm of mere Constitutional interpretation and made the procedure for the enforcement of the rights contained under Part IV sui generis.

In response to the case of EZEANYIKE V GOVERNOR, IMO STATE (2007) ALL FWLR (PT 363) 151 cited by the Objectors at paragraph 3.05 of their written address, the question that poses for response thereto is: what therefore is the main substance of our substantive application? Not surprisingly, the Respondents did not anywhere in their written address show the court what other thing, apart from whether a Governor is given a fair hearing under the procedure contained in S. 188 of the Constitution, constitutes the main claim. Besides, the said matter did not border on fair hearing in relation to impeachment proceedings.

The case of OGBORU V UDUAGHAN (2012) ALL FWLR (PT 610) 1206 also cited by the Objectors must also be discountenanced for not being applicable to this case as the principle sought to be applied therefrom related to an election petition in respect of a tenure of office which had already elapsed. The tenure of office in the instant case still subsists.

The Respondents also strained to convince the court that the matter ought to have been initiated by Originating Summons. I submit in response that when the claim borders on the interpretation of construction of the Constitution or a legal instrument or contract simpliciter, then the matter may be so initiated. However once the subject matter, as in this case borders on the interpretation as to whether S. 188 of the Constitution guarantees and grants a fair hearing to a Governor as recognized under S. 36 of the

Constitution, coupled with the combined provisions of S. 46 (1) of the Cosntitution, it has moved out of the realm of the ordinary Constitutional interpretation to that of interpretation of S. 36 in relation to S. 188. The matter has thus become sui generis.

Suffice it to say that from the above, therefore, it is evident that the Respondents simply hope to get victory in this matter through the back door and deny the Governor a fair hearing because the issue as to whether or not a Governor is given a fair hearing under S. 188 touches on the substantive application. The court therefore cannot at this stage of determining the preliminary objection delve into the substantive subject matter as already submitted above. The above ground of the Preliminary objection must therefore of necessity fail.

Furthermore, the Objectors stated in paragraph 3.34 of their address that in the entirety of our application there is no mention of any pending move to remove Governor Tanko Al-Makura from office. Our response thereto is two-fold.

First, we refer the court to the affidavit of urgency filed in respect of this matter on August 13, 2014 being a document in the courts file. The exhibits attached thereto show that the Objectors clearly intend to actualize their intention to remove the Governor from office even though he has been discharged and acquitted and there may not appear to be any moves to remove him from office now.

Secondly, it must be made clear that as long as the power to remove a Governor from office, as presently constituted under S. 188 of the Constitution remains, there is every likelihood that a Governors right to fair hearing as guaranteed under S. 36 of the Constitution could be breached. The powers conferred upon the Respondents under S. 188 may be utilized whenever they choose to utilize their discretion to so do. By S. 46 (1) of the same Constitution and the Rules made pursuant thereto which are the Rules upon which this suit has been filed, unlike other cases where some sort of damage must be shown to have been occasioned to the Applicant, the mere likelihood of the breach of a person’s fundamental right gives rise to a cause of action.

In the whole, my Lord, I urge the court to dismiss the Preliminary Objection and proceed to hear the substantive application.

LIST OF AUTHORITIES

1. ABARIBE V ABIA STATE HOUSE OF ASSEMBLY [2002] 14 NWLR (PART 788) 466

2. OJUKWU V YAR’ADUA [2009] ALL FWLR (PT 482) 10653. EZEANYIKE V GOVERNOR, IMO STATE (2007) ALL FWLR (PT 363) 1514. OGBORU V UDUAGHAN (2012) ALL FWLR (PT 610) 1206

Dated this 31st day of August, 2014.







LafiaFOR SERVICE ON:Ocha P. Ulegede, EsqFor: Ocha P. Ulegede & Co.Counsel to the Respondents/Objectors/Applicants45, Otukpo RoadHigh Level Makurdi

Within Jurisdictionc/o Sadiq Mustapha & Co.No. 46 A.M.K. PlazaJos Road, Lafia





HOLDEN AT LAFIA




AND



WRITTEN ADDRESS ON POINTS OF LAW IN RESPONSE TO THE RESPONDENTS’ COUNTER AFFIDVIT AND WRITTEN ADDRESS TO THE SUBSTANTIVE

APPLICATION

Before going into the main aspects of the Respondents Counter affidavit, I must make it expressly clear from the onset that I never stated that it is only a court of law that should try impeachment proceedings. My submissions were to the effect that in line with the existing jurisprudence based on judicial decisions and elucidations from legal texts, it is

only the state House of Assembly that may sit as a court for the trial of impeachments upon having been duly conferred with judicial power to do same that may try allegations of impeachment and thus make a determination of the right of the holder of office of Governor to continue to hold same.

In response to the main application, we shall address the court first, on the issues arising from the counter affidavit and secondly, in response the Respondents’ substantive written address.

COUNTER AFFIDAVIT

In paragraph 2a, the Respondents stated that it is false that in paragraph 2 of the affidavit in support of the main application, Gov. Al-Makura is not immune from civil and criminal proceedings as covered under S. 308 of the Constitution. We put them to the strictest proof to establish this lack of immunity.

The deponent therein also averred that paragraphs 12 and 13 of the affidavit in support of the main application are false. Paragraph 13 is a fact known to the Applicant based on the Supreme Court decision of INAKOJU V ADELEKE [2007] 4 N.W.L.R. (PART 1025) 423 cited at page 23-24 of our address in support of the main application. I therefore put the Respondents to the strictest proof of this assertion in their counter-affidavit that the said decision of the Supreme Court is false.

The Respondents’ Substantive Written Address

Before I proceed to attack the main points of the Respondents’ written address seriatim I must state emphatically here that absolutely no submissions were made in their address in response to, or to counter all the submissions we made with respect to what impeachment really means and envisages; the need for the express conferment of power upon the state House of Assembly to sit as a court for the trial of impeachments (paragraph 3.20); what it means to ‘investigate’; or, any response as to whether S. 188 of the Constitution breaches S. 36 (5) of the Constitution (paragraph 3.19); how judicial power can be conferred upon a legislative body to enable them make a determination of right (paragraph 3.23). The various points mentioned above, therefore, must be taken as the true position of the law and I humbly urge the courts determination to be founded on same in the absence of any counter submissions thereon. Their assertion at paragraph 3.7 therefore that this exercise is academic should be discountenanced.

The Issue of Locus Standi

The issue of locus standi, after being raised in the Respondents’ Preliminary Objection has again been raised in in paragraphs 1.3, 1.5, 1.6, 1.7, 1.8 and 1.9 of the substantive application. Our two-fold response to this issue is as follows:

First, that this application is being heard, it means that the preliminary objection (PO), particularly the grounds relating to locus standi have been dismissed. Therefore, having already been determined by the PO, the raising of the said issue again in the substantive application amounts to trying to get this honorable court to appeal upon a matter that has already been determined by the court. I apply that the court not sit on appeal over its own decision concerning the matter of locus standi.

Second, as stated in our submissions in response to the PO, locus standi cannot affect actions brought by way of fundamental rights enforcement.

As can be plainly seen from the originating processes in this matter, this suit was originated under the Fundamental Rights (Enforcement Procedure) Rules, 2009 which rules were made in pursuance of the powers conferred upon the then Chief Justice of Nigeria by S. 46 (3) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), Idris Legbo Kutigi, GCON on December 1, 2009. At the risk of repetition, I here repeat hereunder the relevant part of the Preamble, S. 3 (e) to guide the court in the determination of this issue:

‘the Court shall encourage and welcome public interest litigations in the human rights field and no human rights case may be dismissed or struck out for want of locus standi in particular, human rights activists, advocates or groups as well as any non-governmental organisations, may institute human rights application on behalf of any potential applicant.

In effect, therefore, locus standi cannot, ever, for any reason be the ground for the exercise of the discretion of a court to either dismiss or strike out a matter pertaining to fundamental rights enforcement. On the basis of the above, therefore, this issue as raised in the Respondents’ written address, therefore, is a non-issue.

The preamble continues by saying:

‘In human rights litigation, the applicant may include the following:

(v) Anyone acting in his own interest;(vi) Anyone acting on behalf of another person;(vii) Anyone acting as a member of, or in the interest of a group or

class of persons;(viii) Anyone acting in the public interest . . .’

To their benefit, the Respondents have not denied that the named applicant herein is a Legal Practitioner; a Barrister and Solicitor of the Supreme Court of Nigeria. That

therefore makes him an advocate. An advocate is one who ‘assists, defends, pleads or prosecutes for another.’ Though some allusion was made to that effect in paragraph 1 of their affidavit, the said allusion would in effect amount to an allegation of impersonation which is a criminal offence. The standard and burden of proof upon them would therefore by proof beyond reasonable doubt. They have not met this standard and burden in respect of this issue and thus cannot succeed on this arm.

The Applicant also stated that he acts in the public interest and on behalf of the generality of Nigerians who are likely to be adversely affected by issues of this nature since they are uninformed.

Lastly in their counter-affidavit, paragraph 19 of our affidavit in support of the application was not listed as being false. They therefore admit and agree that just as contained therein, it is necessary for this honorable court to determine all the matters raised in this application.

On the basis of all the above submissions, therefore, I submit that as an Officer of the Court, the Applicant does not need to have locus standi in matters of this nature and this honorable court cannot dismiss or strike out this matter on that basis.

The Affidavit in Support of the Substantive Application

In paragraph 3.3 and 3.4 of their written address, the Respondents stated that the averments made in certain paragraphs of the affidavit in support of the main application did not comply with the provisions of Ss. 155 (1), (3) and (4) of the Evidence Act, 2011 for being matters not within the applicants personal knowledge, for being matters upon which he has a belief and for obtaining the information from others respectively.

On S. 155 (1), the Respondents have not shown how it is that the matters averred in the listed paragraphs are not within the applicants personal knowledge. It is trite that he who asserts must prove. Ss. 131 (1) and (2); S. 132 of the Evidence Act.

S. 155 (3) is absolutely irrelevant to this application because the Applicant did not anywhere in the affidavit in support of his application state that he obtained his information from any other person which would warrant his having to ‘explicitly state the facts and circumstances forming the ground of his belief’. In fact, in further response to the above, in paragraph 3.34 of their address in support of the PO, the Respondents conceded and thereby admitted that the facts contained in paragraph 16 of our affidavit in support of the application is true, to wit, that Gov. Tanko Al-Makura was discharged and acquitted by an investigation Panel on August 5, 2014. They cannot in a previous process admit the existence of a fact which is the conclusion of a

process of certain other facts (S. 21 (1) of the Evidence Act) yet not admit the facts leading up to the conclusion they admit to exist, particularly when they have not provided any counter facts. They are thus bound by their earlier submissions as parties cannot approbate and reprobate.

S. 155 (4) is also inapplicable because there is no evidence to show that the Applicant got his information from an informant. Besides, the said section only refers to matters which are particularly within the deponents knowledge.

All the case cited at pages 6-8 of their written address therefore are inapplicable and should be discountenanced by this Honorable Court.

On the issue of S. 155 (2) of the Evidence Act, 2011, assuming, without conceding, that any averments in the affidavit offend any relevant aspects of the Act, we must keep in mind the fact that this matter borders on the interpretation of the Constitution in relation to a Governors right to be given a fair hearing. It does not even need an affidavit. If need be, the action can survive in the absence of any averments as contained in the affidavit.

Paragraph 3.6 of the written address:

I humbly urge the court to discountenance sub-paragraphs 2, 3, 4 and 7 as they all border on the likelihood of the infringement of a Governors right to fair hearing. This is the uniqueness of fundamental rights procedure. You do not have to wait until an infringement occurs before cause of action arises.

Sub-paragraph 1 is also covered by the above submission and additionally, I state that the only materials I could need in a matter of this nature, even in the absence of any facts deposed in support of the application is the relevant laws, in this case the provisions of S. 188 vis-à-vis S. 36 of the Constitution.

In sub-paragraphs 5 and 6 of paragraph 3.6 of the written address, Respondents raised the issue that in order for the declaratory orders being sought herein to be binding upon the Houses of Assembly of the other states in the federation, they ought to have been joined as parties. It would appear that the Respondents are muddling things up. None of our reliefs seeks anything against any of the other 35 state Houses of Assembly. They therefore do not need to be joined as parties. Again, we have not stated the 2nd Respondent would serve notice of allegations upon the Governor of any other state in the Federation.

Our first 17 reliefs are declaratory. A declaratory relief has been defined in ‘The Nigerian Constitutional Law: Ese Malemi’, Princeton Publishing Company, 3rd Ed., 2012, Pages 414-416 in the following terms:

‘A DECLARATION OF RIGHT IS ALWAYS PART OF EVERY JUDGMENT

A declaratory judgment or declaration of rights is the earliest and first method, procedure, relief or remedy devised by court to do justice. This is so, for unless the rights of the parties are first ascertained and then reconciled, the court cannot properly decide the matter in 415 dispute. All that is new about declaratory judgment, as a relief is its name. The declaration of the rights of parties in a matter, as a relief, remedy or means of doing justice and settling disputes is as old as mankind, society, judicial history and the administration of justice. Declaration of right is as old as man. It is as old as when man began to settle dispute among his children, in his family and among his kith and kin. He must first declare who is right, who is wrong, who has an obligation and who does not have an obligation, before he can proceed to make an order or do justice. Every person who is a judge, an arbiter or who decides anything, whether in a court or in any other forum, or capacity, formal or informal, must first of all ascertain and declare who is right or wrong and who owes a duty or does not, before any remedy or order can be granted to do justice. A declaration of rights is the root and foundation of a judgment. A judgment is based on and proceeds from the declaration of rights and obligations of parties. It is the foundation of justice. Without a declaration of rights and wrongs, there can be no good judgment or justice. Therefore, as a general rule, a declaration of right or entitlement is part of every judgment or ruling of a court. Thus every judgment is first a declaration of rights. When the rights of parties are in dispute or uncertain, it is the duty of court to ascertain the rights of the parties, and then make a declaration of rights as to whether a right exists and whether or not such right has been, is being or only likely to be contravened.

A declaration of right is usually the first prayer a plaintiff or applicant asks of a court and which a court usually gives first or proceeds from. This is so, for until the rights of an aggrieved party is declared, there will be nothing for the courts to enforce, if it makes a consequential order. Therefore, an applicant usually asks for a declaration of his rights, or entitlements, before asking for any appropriate remedy, relief and or consequential order in the enforcement of such right. Declaratory judgments have been given by the courts in many cases. . . (underlining mine)

My Lord, the above excerpt says it all. Because the effect of our action would affect all state Houses of Assembly in the Federation, it would appear that the Respondents have

zeroed in on that aspect alone without focusing on the main aspects of the application in relation to the 2nd Respondent.

Paragraphs 3.9, 3.12, 3.13 & 3.14

I submit that the submissions of the above paragraphs should be discountenanced on the grounds that while S. 36 (1) indeed made provision for ‘other tribunal’ or ‘court’, by the full provisions of the said subsection, such a body must be ‘established by law’. This is the operative phrase therein. In paragraph 3.14, the Respondents tried to equate a tribunal established by law under S. 36 (1) to a Panel merely conferred with the duty to investigate allegations. Nowhere in their written address did the Respondents show how the investigation Panel was established by law to sit as a court. It contravenes the pronouncement from the case of DAPIANLONG V DARIYE [2007] 8 NWLR (PT 1036) 239 with respect to the fact envisaged that only the members of a House of Assembly that can validly remove a Governor from office as a reverse procedure to having voted him into office.

Furthermore, the Respondents appear not to understand our stance by paragraph 3.12 of their written address. We are not saying that only the normal courts as created under S. 6 of the Constitution may try allegations against a Governor. My argument is that if judicial powers have been expressly vested in the courts by S. 6, then if any other person or body is to exercise judicial powers to determine the right to continue to hold the office of Governor, which is a right conferred by the Constitution, that judicial power should be expressly conferred upon them.

All the cases cited in paragraph 3.13 are inapplicable to the determination of this matter and should therefore be discountenanced by this court.

I urge the court not to yield to their mere submissions in paragraph 3.14 that the Panel envisaged in S. 188 is also covered by the term ‘tribunal’ in S. 36 (1) because they have not shown how judicial power was vested in the Panel.

I also did not say that impeachment proceedings must culminate in court proceedings (meaning proceedings before a court of law envisaged by S. 6 of the Constitution) but before the 2nd Respondent sitting as a court for the trial of impeachments upon the requisite vesting of judicial power in them to do same.

Paragraph 3.17

The portion of the case of ABUBAKAR V ATTORNEY GENERAL OF THE FEDERATION [2008] ALL FWLR (PT 441) 870 cited by the Respondents is inapplicable to the facts of this case because that case merely referred to the administrative manner as to the procedure for the Vice-President of Nigeria to resign from office.

The cases of KAYODE V STATE [2008] ALL FWLR (PT 402) 1014 and ADAMU V AKUKALIA [2008] ALL FWLR (PT 428) 408 cited under the same paragraph are also inapplicable because they do not address the issue of fair hearing under S. 188 procedure.

On the submission in paragraph 3.18, same refers to matters of rights determination before administrative bodies which must apply the rues of fair hearing and not that of a court or tribunal such as a court for the trial of impeachments which should adhere to the provisions of S. 36 after due conferment of power.

The case of NDAKAUBA V KOLOMO [2005] ALL FWLR (PT 248) 1602 is actually helpful to our case and not that of the Respondents because it buttresses the fact that only courts duly conferred with judicial power may determine rights.

We urge the court to discountenance paragraph 3.20 because our action here attacks the constitutional provisions directly.

All the cases cited by the Respondents counsel in paragraph 3.22 should be discountenanced because the first 2 border on whether the right procedure was followed in S. 188 before the said Governors were removed from office and the last one simply borders on the issue of the service of the initiating process in the attempt to remove the Governor from office.

In paragraphs 3.24 and 3.25, the Respondents cited authorities in an attempt to interpret Ss. 36 and 188 of the Constitution without showing the alleged import of what the interpretation should be in the determination of this matter. More particularly, they did not address any of the cases we cited, particularly LEGAL PRACTITIONERS DISCIPLINARY COMMITTEE V CHIEF GANI FAWEHINMI [1985] 2 NWLR (PART 7) 300 which clearly shows that under no circumstance can the right to fair hearing be waived.

In paragraph 3.26, they submitted that the power conferred upon the Panel in S. 188 (5) is statutory and that this power enables them determine allegations. Unlike what we did in our address, however, they could not cite any authorities in support of this position and neither did they distinguish the authorities and submissions we made thereupon. I submit that their submissions should therefore be discountenanced.

They also made reference to S. 10 (2) of the Interpretation Act. I submit that the cited provision of the Act is not applicable to the facts of this case as it talks of powers which are merely incidental to the main function given, or, which would be implied to have been given in order to make them achieve their main function. This is very distinct from the power to investigate and the power to make a determination of right which are both mutually exclusive substantive powers which are not in any way incidental to each other in the circumstances of this case.

Finally, in paragraph 3.27, the Respondents submitted that the Applicant could adequately seek solace of the breach of his fundamental right to fair hearing as can be shown from all the impeachment and removal cases cited where the persons removed or sought to have been removed from office were victorious at the court. In response, I submit that those case cannot be relied upon in this suit because the success therein was merely based on whether the procedure in S. 188 had been followed. Our case here is that even if the procedure were to be followed to the letter, no fair hearing is given to a Governor.

In summary, therefore, the Respondents’ counter-affidavit and written address in support of same cannot support their case and I urge this honorable court to uphold this suit and grant us all our reliefs as prayed.

LIST OF AUTHORITIES

1. INAKOJU V ADELEKE [2007] 4 N.W.L.R. (PART 1025) 4232. DAPIANLONG V DARIYE [2007] 8 NWLR (PT 1036) 2393. ABUBAKAR V ATTORNEY GENERAL OF THE FEDERATION [2008] ALL

FWLR (PT 441) 8704. KAYODE V STATE [2008] ALL FWLR (PT 402) 10145. ADAMU V AKUKALIA [2008] ALL FWLR (PT 428) 4086. NDAKAUBA V KOLOMO [2005] ALL FWLR (PT 248) 16027. DAPIANLONG V DARIYE [2007] 8 NWLR (PT 1036) 3328. BALONWU V OBI [2007] 5 NWLR (PART 1028) 4889. LEGAL PRACTITIONERS DISCIPLINARY COMMITTEE V CHIEF GANI

FAWEHINMI [1985] 2 NWLR (PART 7) 300

Dated this 31st day of August, 2014.







LafiaFOR SERVICE ON:Ocha P. Ulegede, EsqFor: Ocha P. Ulegede & Co.Counsel to the Respondents/Objectors/Applicants45, Otukpo RoadHigh Level MakurdiWithin Jurisdictionc/o Sadiq Mustapha & Co.No. 46 A.M.K. PlazaJos Road, Lafia



HOLDEN AT LAFIA

APPEAL NO:________________________


BABATUNDE F. TOWOBOLA - APPELLANT

AND



NOTICE OF APPEAL

1. TAKE NOTICE that the Appellant being dissatisfied with the part of the decision more particularly stated in paragraph 2 of the Notice of Appeal contained in the ruling of Rose G. Soji, J, of the High Court of Nasarawa State dated the 11th day of September, 2014, doth hereby appeal to the Court of Appeal upon the grounds set out in paragraph 3 and will at the hearing of the appeal seek the reliefs set out in paragraph 4.

And the Appellant further states that the names and addresses of the persons directly affected by the appeal are those set out in paragraph 5.

2. PART OF THE DECISION COMPLAINED OF:The whole ruling of the trial court.

3. GROUNDS OF APPEAL:

GROUND 1

The Learned Trial Judge erred in law when he upheld the Notice of Preliminary Objection filed by the Respondents in this matter and dismissed the originating application in contravention of the express provisions of Order VIII Rule 5 (a) and (b) of the Fundamental Rights (Enforcement Procedure) Rules, 2009 contrary to the express jurisdiction conferred upon the court by the said Rules which jurisdiction does not enable the court to dismiss the originating application upon upholding a preliminary objection.

PARTICULARS OF ERROR

1. By the combined effects of Order VIII Rule 5 (a) and (b) of the Fundamental Rights (Enforcement Procedure) Rules, 2009, the jurisdiction of the court in determining a Preliminary Objection raised in respect of a fundamental human rights action is limited to either striking out the originating application or setting aside the service of the originating application.

2. By dismissing the Appellants originating application when upholding the preliminary objection, therefore, the court acted ultra vires the express jurisdiction conferred upon it by Order VIII Rule 5 (a) and (b) of the Fundamental Rights (Enforcement Procedure) Rules, 2009 with respect to the orders it may make when upholding a preliminary objection.

GROUND 2The Learned Trial Judge erred in law when he upheld the Notice of Preliminary Objection filed by the Respondents in this matter and dismissed the substantive application in contravention of the express provisions of Order VIII Rule 1 of the Fundamental Rights (Enforcement Procedure) Rules, 2009 as the grounds upon which the objection was brought did not touch on the jurisdiction of the court as envisaged under the fundamental rights enforcement procedure.

PARTICULARS OF ERROR

1. By Order VIII Rule 1 of the Fundamental Rights (Enforcement Procedure) Rules, 2009, Preliminary Objection may only be raised under Fundamental Rights Enforcement Procedure to dispute the jurisdiction of the court.

2. More particularly, the provisions of Order VIII Rule 5 (a) and (b) of the Fundamental Rights (Enforcement Procedure) Rules, 2009, highlight the aspects of the court’s jurisdiction which may constitute grounds for raising preliminary objection.

3. None of the grounds upon which the Respondents raised their preliminary objection attacks the jurisdiction of the court with respect to its composition, subject matter or the fulfillment of a condition precedent in the filing of the suit.

4. Indeed, the substance of the grounds of the preliminary objection all border on the issues of locus standi and the substantive application.

5. The Preliminary Objection subject matter of this appeal was therefore not founded in law and the rules of procedure governing fundamental rights applications.

6. The Learned Trial judge therefore lacked jurisdiction to entertain the preliminary objection since the grounds upon which same was filed are not covered by the Fundamental Rights (Enforcement Procedure) Rules, 2009.

GROUND 3The Learned Trial Judge erred in law when he held at pages 7 and 8 of his ruling that

‘I am urged to hold that this case brought by motion on notice is wrong and I so do . . . it is my holding, therefore, that the suit of the Applicant is incompetent haven not been commenced by the prescribed mode by the rules of court and I have no jurisdiction to entertain same.’

PARTICULARS OF ERROR1. The originating process in this suit is not a motion on notice; it is an originating

application in line with Order II of the Fundamental Right (Enforcement Procedure) Rules, 2009.

GROUND 4The Learned Trial Judge erred in law when he held at page 7 of his ruling that

‘it is, therefore, my considered view that the Applicant cannot hide under S. 36 of the constitution to bring this action under the Fundamental Rules [sic] when indeed he is asking this honorable court to interpret S. 188 of the constitution as can be seen in his para. 27 of the grounds in support of the reliefs and para. 19 of the supporting affidavit as referred to me.’

and thereafter declared that he does not have jurisdiction to hear same.

PARTICULARS OF ERROR1. The interpretation of the law is the primary function of the court which function

the court performs in every matter presented before it. 2. The mere interpretation of S. 188 of the Constitution alone, contrary to what was

cited by the Learned Trial Judge above and as may be seen from the reliefs sought in the originating application, does not rightly delineate the cause of action in the originating application.

3. The cause of action in the originating application is founded on whether a Governors fundamental right to be given a fair hearing by a court or tribunal duly established by law as guaranteed under S. 36 (1) of the Constitution before he may be removed from office, is protected in the process of seeking to so do by the provisions of S. 188 of the Constitution.

4. The Fundamental Rights (Enforcement Procedure) Rules, 2009 were enacted to ensure that the interpretation of any causes which are founded on fundamental human rights by a court of law are made sui generis in the bid to enforce same.

5. No matter how well conducted proceedings may be in the determination of any dispute of right, if the requisite judicial power has not been conferred upon a duly established court or tribunal, such proceedings are a nullity.

6. The interpretation being sought in the originating application therefore, and of necessity demands an answer to the issue as to whether a court or tribunal duly established by law in accordance with S. 36 (1) Constitution has been duly conferred with judicial power to determine a person’s constitutional right to continue to hold the office of Governor under S. 188 of the Constitution.

7. The Learned Trial Judge did not take cognizance of the reliefs sought by the Applicant in the substantive application which seek to remedy the breach of the protection of a Governor’s right to fair hearing as enshrined in Ss. 36 (1), (2), (5) and (6) vis-à-vis S. 188 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).

8. The suit was thus validly instituted by way of Fundamental Rights Enforcement Procedure and ought not to have been dismissed.


‘I also hold that the suit cannot be maintained under the Fundamental Rights (Enforcement Procedure) Rules, 2009 since the reliefs sought are outside the purview of actions main [sic] under the Fundamental Rules [sic], 2009.’

before going on to dismiss the Appellants originating application.

PARTICULARS OF ERROR1. By the combined effect of all the extant laws, there is no hard and fast rule as to

the reliefs that a person may seek under the Fundamental Rights (Enforcement Procedure) Rules, 2009.

2. In filing an action for the enforcement of fundamental human rights, what is important is that the reliefs seek to ensure the enforcement of the Applicants fundamental human rights. There is no hard and fast rule as to what the substance of the reliefs ought to be.

3. The reliefs sought in the originating application are aimed at remedying the infringement or likely infringement of the fundamental human right to fair hearing of the holder of the office of Governor as enshrined in S. 36 of the Constitution vis-à-vis the likelihood of his being removed by the process contained in S. 188 of the Constitution.

4. The cause of action and the reliefs sought in the substantive application are copiously founded upon S. 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) which guarantees every Nigerian the right to be given a fair hearing by a court or tribunal duly established by law in the determination of their rights and obligations.

5. The Fundamental Rights (Enforcement Procedure) Rules, 2009, having been enacted pursuant to the powers conferred upon the Chief Justice of Nigeria, and by the combined effects of S. 46 (1) and (3) of the Constitution, is therefore the extant law which should determine a cause of action and consequently the reliefs sought as presented in the originating application.


‘I have perused the entire suit and could not find anywhere he deposed to the fact that his rights have been infringed or are likely to be breached.’

before proceeding to rule at page 10 that he has no jurisdiction to entertain the matter.

PARTICULARS OF ERROR1. The substance of the originating application is that Governors are not given a fair

hearing as guaranteed under S. 36 of the Constitution under the removal procedure as contained in S. 188 of the Constitution.

2. By the express provisions of paragraph 3 (e) of the Fundamental Rights (Enforcement Procedure) Rules, 2009, the issue of locus standi cannot be raised to defeat any fundamental rights application by way of having same struck out or dismissed.

3. Coupled with the above, the Fundamental Rights Enforcement Procedure Rules, 2009 does not impose any duty upon an Applicant to be personally affected by the infringement being complained of before they may file suit.

4. Indeed by the above cited rule, Legal Practitioners and human rights activists, as is the Appellant, are even encouraged to take up public interest litigation in the human rights field.

5. The Appellant duly described himself as a Legal Practitioner who had filed this suit in the interest of various individuals and groups in line with the overriding objectives of the Rules.

6. The ruling of the Learned Trial judge was therefore done in utter disregard for the express directions and rules of the Learned Chief Justice of Nigeria as enshrined in the Fundamental Rights (Enforcement Procedure) Rules, 2009 and has occasioned a miscarriage of justice to the Appellant.


‘in matters of this nature where issue of locus standi is raised, it is the law that it is the Writ of Summons or originating process that should be referred to.’

before finding and holding at page 10 of his ruling that he has no jurisdiction to entertain the application.

PARTICULARS OF ERROR1. By the express provisions of paragraph 3 (e) of the Fundamental Rights

(Enforcement Procedure) Rules, 2009, the issue of locus standi cannot be raised in suits brought by way of Fundamental Rights Enforcement Procedure.

2. By dint of the very same provisions and in order to further broaden the scope of public interest litigation so as to ensure that the wider Nigerian society is the better for it, an advocate and human rights activist, as is the Appellant herein, may file fundamental human rights cases on behalf of potential applicants.

3. Assuming, but not conceding, that the interpretation of the provisions of paragraph 3 (e) of the Fundamental Rights (Enforcement Procedure) Rules, 2009 are to the effect that the issue of locus standi may even be raised under cases brought by way of Fundamental Rights Enforcement Procedure, the jurisdiction of the court is ousted from exercising its discretion to strike out or dismiss the application for want of locus standi.

4. By virtue of paragraph 3 (e) of the Fundamental Rights (Enforcement Procedure) Rules, 2009 which expressly makes inapplicable the principle of locus standi in respect of cases for the enforcement of fundamental human rights, the general principle on ascertaining locus standi referred to in the above cited portion of the ruling is not applicable in fundamental human rights applications.

5. The holding of the Learned Trial Judge, after evaluating the originating processes wherein he determined that the Appellant did not have locus standi to file the application and thus declined jurisdiction to hear the matter has occasioned a grave miscarriage of justice upon the Appellant in contravention of the express provisions of paragraph 3 (a) of the Fundamental Rights (Enforcement Procedure) Rules, 2009 and, more particularly, their overriding objectives.


‘Also, the applicant has not shown that he is from Nasarawa State, he has not shown that he is a registered voter and voted Alh. Tanko Almakura as Governor of Nasarawa State.’

before proceeding to rule at page 10 that

‘I agree with the arguments of the objectors’ counsel that the Applicant is a total stranger hence he has no locus standi to sue in this matter.’

and went on to dismiss the suit, based on the above, stating that he lacks jurisdiction to entertain the matter.

PARTICULARS OF ERROR1. The originating application was filed as public interest litigation in respect of the

likely breach of the Fundamental Right to Fair Hearing guaranteed a Governor by

S. 36 of the Constitution in the entire procedure leading to their likely removal from office by virtue of S. 188 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).

2. None of the conditions stated in the above cited portion of the judgment is a sine qua non for the filing of a suit under the Fundamental Rights (Enforcement Procedure) Rules, 2009.

3. None of the above conditions is a sine qua non for the conferment of locus standi upon an Applicant in fundamental rights enforcement applications.

4. In elections in Nigeria, voters vote for parties and not for individuals.5. The Learned Trial Judge, therefore, gave cognisance to irrelevant and

extraneous factors not covered by the Constitution, any law in force nor the rules under which the originating application was brought when he exercised his discretion to, upon this holding, dismiss the Appellants originating application.

6. The exercise of the judge’s discretion in making this holding was therefore not judicially nor judiciously done.


‘I therefore, find and hold that the Applicant has no locus standi to institute this action on behalf of the Governor of Nasarawa State etc and I have no jurisdiction to entertain same.’

PARTICULARS OF ERROR1. By the clear and express provisions of paragraph 3 (e) of the Fundamental

Rights (Enforcement Procedure) Rules, 2009, no application for the enforcement of Fundamental Rights may be struck out or dismissed on account of want of locus standi.

2. The issue of locus standi under Fundamental Rights Enforcement Procedure is not one of the grounds upon which a preliminary objection may be raised and the originating application consequently dismissed.

3. By the Fundamental Rights (Enforcement Procedure) Rules, 2009 the issue of jurisdiction is not in any way connected to the issue of locus standi.

4. By the Fundamental Rights (Enforcement Procedure) Rules, 2009, where ordinarily a court would decline to hear a matter based on lack of locus standi, the said principle cannot be applied under fundamental rights enforcement procedure as the court’s jurisdiction to dismiss suits for want of locus standi is ousted.

5. By the express provisions of Order VIII Rule 5 (a) and (b) of the Fundamental Rights (Enforcement Procedure) Rules, 2009, a trial court in not even conferred with jurisdiction to dismiss an originating application even if upholding the preliminary objection.

6. The dismissing of the Appellant’s originating application upon the trial court declaring that he did not have jurisdiction to hear same was done in contravention of the express provisions of paragraph 3 (e) of the Fundamental

Rights (Enforcement Procedure) Rules, 2009 and has therefore occasioned a grave miscarriage of justice to the Applicant as same was not determined on its merit before being dismissed.


‘Furthermore, the applicant has not disclosed that he has the mandate of all the people mentioned whom he claims he sues on their behalf and has not attached any such mandate to the suit.’

before proceeding to rule at page 10 that he has no jurisdiction to entertain the matter.

PARTICULARS OF ERROR1. By the express provisions of paragraph 3 (e) of the Fundamental Rights

(Enforcement Procedure) Rules, 2009, no applicant in a Fundamental Rights Enforcement suit is imposed with any obligation to seek, obtain and attach the mandate of the potential applicants upon whose behalf he acts, before or when filing suit.

2. By the same Rules, no obligation is imposed upon the Applicant to disclose any personal injury or damage when acting in the public interest.

3. The Appellant duly described himself as a Legal Practitioner who filed the originating application in the interest of various individuals and groups who were members of the public and, ultimately, in the public interest in line with paragraph 3 (e) of the Fundamental Rights (Enforcement Procedure) Rules, 2009.

4. The holding of the Learned Trial Judge that a mandate should be attached in order to confer locus standi upon the Appellant in an application for the enforcement of fundamental human rights is not in any way founded in law.

5. The ruling of the Learned Trial Judge dismissing the suit for want of jurisdiction owing to a lack of locus standi because of the absence of a mandate was therefore done in utter disregard for the express provisions of the Learned Chief Justice of Nigeria as enshrined in the Fundamental Rights (Enforcement Procedure) Rules, 2009 which disallows a dismissal of an originating application on ground of locus standi.


‘The Applicants main complaint is hinged on the non express inclusion of a proper judicial powers in the provisions of S. 188 of the Constitution [sic]. The issues of fair hearing under the constitution is ancillary to the main complaint.’

before going on to hold at page 8 of the ruling that he therefore has no jurisdiction to entertain the originating appplication.

PARTICULARS OF ERROR1. A matter that is ancillary to another is a matter that is subordinate to that other.2. The right to be given a fair hearing is a fundamental right enshrined in S. 36 of

Constitution to which every Nigerian citizen is entitled in the course of determining their rights and obligations.

3. The removal of a person from the office of Governor by the provisions of S. 188 of the Constitution upon the raising of allegations in a notice of impeachment amounts to a determination of their right to continue to hold the office as Governor as envisaged under S. 36 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).

4. The duty to ensure the actualization of the right to be given a fair hearing by citizens in the determination of their rights and obligations, as guaranteed by S. 36 (1) of the Constitution is a duty solely conferred upon a court or tribunal duly established by law to ensure compliance with, and indeed the very reason for the establishment of the courts under the Constitution.

5. By the entirety of the provisions of S. 188 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), no person or body of persons has been duly conferred with judicial power so as to ensure the protection of the right of the holder of office of Governor to be given a fair hearing in removal proceedings as fair hearing is an integral part of the exercise of judicial powers because fair hearing is seen in the entirety of the procedure undertaken in the determination of matters brought before a court or tribunal established by law and not in the final decision taken.

6. The holder of the office of Governor must therefore be given a fair hearing before he may be removed from office.

7. As S. 188 is presently constituted, therefore, there is every likelihood that in its execution by the Respondents, a Governor would not be given a fair hearing as guaranteed under the Constitution.

8. The issue of fair hearing therefore, is not subordinate to the issue of the conferment of judicial power upon any person or body to determine the right of a person to continue to hold the office of Governor because the exercise of duly conferred judicial power is the only way that the right to be given a fair hearing may be actualised.


‘In the instant case, it is perused on frivolity or recklessness since there is no live cause of action which the Respondents/Objectors have breached the constitutional rights of the applicant or those he represents.It is on this premise that [sic] find and hold that the action filed by the Applicant constitutes an abuse of court process.’

PARTICULARS OF ERROR1. The substantive application in this case was brought pursuant to the

Fundamental Rights (Enforcement Procedure) Rules, 2009.2. By S. 46 (3) of the Constitution of the Federal Republic of Nigeria, 1999 (as

amended) and paragraph 3 (e) of the Fundamental Rights (Enforcement Procedure) Rules, 2009, the mere likelihood of the infringement of a person’s fundamental human rights constitutes a cause of action, thereby, making such a one whose right may be infringed upon a potential applicant.

3. As S. 188 of the Constitution is presently constituted, it does not give the holder of the office of Governor a fair hearing as guaranteed under S. 36 of the Constitution before his removal from office.

4. By its mere appearance in the Constitution, therefore, there is every likelihood that a Governor may be removed from office in breach of his right to fair hearing.

5. By paragraph 3 (e) of the Fundamental Rights (Enforcement Procedure) Rules, 2009, the actual Applicant in a fundamental rights matter does not need to be the person affected by the rights likely to be infringed upon, i.e., does not need to be the potential applicant.

6. By the exhibits attached to the affidavit of urgency filed with the originating processes in this suit on August 13, 2014, after a failed attempt to remove the Governor of Nasarawa State from office, the Respondents had expressed the actualization of the likelihood of breaching the Governor’s right to fair hearing in the process of removing him as already contained in S. 188 of the Constitution.

7. The S. 188 procedure does not provide for a fair hearing to be given to a Governor in removal proceedings before his removal from office by a court or tribunal duly established by law as envisaged under S. 36 (1) of the Constitution because contrary to the provisions of the subsection, no body or person has been duly conferred with the requisite judicial power which would have the duty to ensure the realization of the Governors right to be given a fair hearing.

8. By the above provision of the constitution therefore, one must not wait until their right has been infringed upon before they may file suit in court for the enforcement of same and they also need not file personally in order for them to enjoy the succor of the law in this regard.


‘In the instant case, it is perused [sic] on frivolity or recklessness since there is no live cause of action which the Respondents/Objectors have breached the constitutional rights of the applicant or those he represents.It is on this premise that [sic] find and hold that the action filed by the Applicant constitutes an abuse of court process.’

because by the above ruling, the Learned Trial Judge did not avert his mind to the fact that on the basis of S. 46 (1) of the Constitution (as amended), the mere likelihood of infringement is a live cause of action under fundamental rights enforcement procedure.

PARTICULARS OF ERROR1. The originating application in this case was brought pursuant to the Fundamental

Rights (Enforcement Procedure) Rules, 2009 premised upon the enforcement of the right of a holder of the office of Governor to be given a fair hearing as guaranteed by S. 36 of the Constitution when attempting to remove such a person from the office of Governor as allowed under S. 188 of the Constitution.

2. From the portion above contained in the ruling being appealed, the Learned Trial Judge determined that none of the rights of neither the Appellant nor the people he represents is being or has been breached, particularly the right of the holder of the office of Governor to be given a fair hearing as guaranteed under S. 36 of the Constitution in the procedure leading to his removal from the office of Governor as contained in S. 188 of the Constitution.

3. By S. 46 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the mere likelihood of the breach of the right to fair hearing of a person holding the office of Governor as guaranteed under S. 36 of the Constitution (as amended) as may be seen from the absence of any person having been duly vested or conferred with judicial powers to ensure a fair hearing as enshrined in S. 36 (1) of the Constitution (as amended), in the procedure leading to his removal as outlined in S. 188 of the Constitution (as amended) gives rise to a live cause of action.

4. The entirety of the Appellants case in the originating application is that the holder of the office of Governor is likely to not be given a fair hearing under the procedure leading to his removal from office under S. 188 of the Constitution (as amended).

5. It is trite that a court is not meant to delve into the substantive matter at the point of determining the preliminary objection.

6. By holding as above and purportedly without jurisdiction dismissing the entire application, therefore, the Learned Trial Judge determined the Originating Application and thereby delved into the substantive issues contained therein at the point of determining the preliminary objection contrary to law and the rules of procedure.

4. RELIEFS SOUGHT FROM THE COURT OF APPEAL:

1. AN ORDER of the Court of Appeal setting aside the ruling of the High Court of Justice of Nasarawa State, coram Rose Soji, J., vacation judge and delivered on September 11, 2014 upholding the preliminary objection filed by the Respondents in Suit No. NSD/LF36m/2014.

2. AN ORDER of the Court of Appeal dismissing the Preliminary Objection of the Respondents filed on August 29, 2014 for being unmeritorious, mala fide and an abuse of court process.

3. A DECLARATION that the provisions of S. 188 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) are an exception to the provisions of S.308 of the Constitution and sui generis which should ensure that the Governor undergoes a trial before a court for the trial of impeachments before he can be lawfully and constitutionally removed from office so as to ensure the protection of his fundamental right to fair hearing as enshrined in Ss. 36 (1), (2), (5) and (6) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).

4. A DECLARATION that based on the judicial authority of DAPIANLONG V DARIYE [2007] 8 NWLR (PT 1036) 239, only the state House of Assembly, being a full complement of the people of Nasarawa State, only after having had such judicial power expressly vested in them in derogation from the general power vested in the normal courts of the land, can determine any allegations contained in a notice of impeachment against Alh. Tanko Umaru Al-Makura to continue to hold the office of Governor as the court for the trial of impeachments and would thereby ensure the protection of the Governors right to fair hearing in compliance with Ss. 36 (1), (2), (5) and (6) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).

5. A DECLARATION that since there are no provisions expressly vesting jurisdiction in the state House of Assembly as a body of persons identified and vested with power to be constituted as a court for the trial of impeachments as intended by S. 188 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the decision of which court would be a duly delivered determination of the allegations of gross misconduct against the Governor, there cannot be in existence any valid determination of the state House of Assembly sitting as the said court, which would serve to constitutionally oust the jurisdiction of the High Court of Justice of Nasarawa State to entertain or question any such purported determination as envisaged under S. 188 (10) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).

6. A DECLARATION that it is antithetical to the principles of fairness, justice and equality before the law for the jurisdiction of the court to be ousted by S. 188 (10) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), because the entire procedure for the removal of a Governor in S. 188 does not ensure that a Governor is given a fair hearing in accordance with Ss. 36 (1), (2), (5) and (6) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) before the holder is removed from office as envisaged in S. 188 since the said section is an exception to the provisions of S. 308 which grants a Governor immunity from legal proceedings.

7. A DECLARATION that the provisions of S. 188 (10) of the Constitution as amended in relation to a ‘determination’ to be purportedly made by the state House of Assembly, in purported pursuance of the actualization of the provisions of S. 188 (1) of the Constitution, are likely to infringe upon the right to fair hearing of the Governor of Nasarawa State as enshrined in Ss. 36 (1), (2), (5) and (6) of the Constitution, and would amount to an ultra vires act because no initial express judicial power was, in any part of S. 188 or any other part of the Constitution, conferred upon either the investigative Panel envisaged therein nor the state House of Assembly power to sit as a court for the trial of impeachments and consequently make any determination of the right of Alh. Tanko Al-Makura to continue to hold the office of Governor.

8. A DECLARATION that by a reading of the entirety of the provisions of S. 188 of the Constitution, the State House of Assembly has not been expressly conferred with the requisite power to sit as a court for the trial of impeachments as envisaged under the law, having not had the requisite judicial power initially vested in them needed to make a determination of the right of Governor Tanko Umaru Al-Makura in respect of any allegations contained in any notice of allegations of gross misconduct served upon the Governor, which state of affairs is thereby likely to deny the Governor of a fair hearing contrary to S. 36 (1), (2), (5) and (6) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) before his likely removal.

9. A DECLARATION that any determination of the investigative Panel and the state House of Assembly as to the guilt of the Governor of Nasarawa State in purported pursuance of S. 188 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) in relation to any allegation contained in a notice of impeachment is ultra vires, null, void and of no effect whatsoever because same is done without the requisite conferment of judicial power upon either of the bodies.

10.A DECLARATION that the provisions of section 188 (6) which states that ‘the holder of an office whose conduct is being investigated under this section shall have the right to defend himself. . .’ does not amount to a conferment of judicial power upon the 7-man investigative Panel that may be appointed at the instance of the 1st Respondent to become a court for the trial of impeachment for the purpose of determining the guilt or otherwise of the Governor since their functions, from inception, were merely investigatory.

11.A DECLARATION that the provisions of section 188 (6) which state that ‘the holder of an office whose conduct is being investigated under this section shall

have the right to defend himself. . .’ does not amount to a conferment of judicial power upon the 7-man investigative Panel that may be appointed at the instance of the 1st Respondent to become a court for the trial of impeachments for the purpose of determining the guilt or otherwise of the Governor since such judicial power should be excercised by a full complement of the representatives of the people of Nasarawa State, to wit, the members of the state House of Assembly as envisaged by the judicial authority of DAPIANLONG V DARIYE [2007] 8 NWLR (PT 1036) 239 after due vesting of such judicial power in them.

12.A DECLARATION that the provisions of section 188 (2) (b) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) in relation to a Governor being ‘guilty of gross misconduct’ contravenes the provisions of section 36 (5) of the Constitution, which right to be given a fair hearing is not waived just because a person has risen to hold the office of Governor of a state, because it presumes that a holder of the office of Governor is guilty before even undergoing the process of determining the allegations contained in the notice of allegations issued against the holder of the office of Governor.

13.A DECLARATION that the combined effects of the provisions of section 188 (2) (b) in relation to a Governor being ‘guilty of gross misconduct’ before he is even served with the notice of impeachment and S. 188 (9) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) as it relates to the state House of Assembly making a determination of the Governors right to continue to hold his office, contravene the doctrine of nemo judex in causa sua as enshrined in the express provisions of section 36 (1) of the Constitution which guarantee that even in a trial for impeachment and removal proceedings, a Governor should only be tried by a court for the trial of impeachments duly established and conferred with requisite judicial power so as to guarantee its impartiality.

14.A DECLARATION that the provisions of section 188 (6) which states that ‘the holder of an office whose conduct is being investigated under this section shall have the right to defend himself. . .’ contravenes the provisions of section 36 (1) with respect to determining the civil right of Alh. Umaru Tanko Al-Makura to continue to hold the office of Governor of Nasarawa State because the envisaged 7-man appointed investigative Panel is not in any way conferred with the requisite judicial power to be a ‘court established by law’ or, more particularly, a court for the trial of impeachments but is merely a fact finding body.

15.A DECLARATION that the provisions of section 188 (9) of the Constitution which states that ‘where the report of the Panel is that the allegation against the holder of the office has been proved. . .’ is ultra vires the scope of the powers conferred

upon them and contravenes the plaintiffs right to a fair hearing as envisaged and enshrined in section 36 of the Constitution because the Panel was not expressly conferred or vested with any power to make any determination as to whether any allegation against the Governor had been proved or not at its inception.

16.A DECLARATION that in the absence of any judicial power being expressly conferred or vested upon any of the bodies contained in S. 188 to adjudicate and make a final determination in respect of the items contained in a notice of allegation against a Governor, any purported determination of the dispute arising from the notice of allegations issued against the Governor would contravene his right to a fair hearing as guaranteed under S. 36 (1), (2), (5) and (6) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), same having not been done by a court for the trial of impeachments duly conferred and vested with judicial power to do same.

17.A DECLARATION that by a combined reading of the entirety of S. 188, and particularly S. 188 (7) and also S. 128 of the Constitution, the purported conferment of power upon the investigative Panel to determine the guilt of a Governor is ultra vires the powers conferred upon them under the Constitution and is likely to infringe upon the fundamental human rights of Alh. Umaru Tanko Al-Makura, the Governor of Nasarawa State as contained in S. 36 (1), (2), (5) and (6) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) to be given a fair hearing in proceedings leading to his removal as the Governor of Nasarawa State.

18.A DECLARATION that the powers conferred upon the 2nd Respondent in S. 188 (9) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) , to the effect that from the date that they adopt the report of the Panel after considering it, the Governor stands removed from office, cannot and does not constitutionally remove a Governor from office because the powers they therein excercise are strictly parliamentary functions, having not been duly and expressly conferred with any prior judicial power to first and foremost sit and make a determination of the Governors right to continue to hold office as a court for the trial of impeachments.

19.AN ORDER RESTRAINING the 1st defendant, as the Speaker of the Nasarawa State House of Assembly, from acting in pursuance of his legislative powers as conferred in pursuance of S. 188 (9) of the Constitution, in purported furtherance of a judicial function never conferred upon the 2nd Respondent, to call for the consideration and adoption of any report that is likely to emanate from any investigation Panel set up or that may be set up in furtherance of any notice of

allegations of gross misconduct issued against the Governor of Nasarawa State with a view to eventually removing the Governor of Nasarawa State from office, because it would amount to an ultra vires act, since the entire procedure is likely to breach the Governors fundamental right to be given a fair hearing as guaranteed under S. 36 (1), (2), (5) and (6) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) because the duty conferred upon the Respondents therein is strictly a legislative duty which legislative power cannot validly determine the rights of a holder of the office of Governor to continue to hold his office.

20.AN ORDER RESTRAINING the 2nd Respondent from acting in pursuance of their legislative powers as conferred in pursuance of S. 188 (9) of the Constitution, in purported furtherance of a judicial function never conferred upon them and considering and adopting any report that is likely to emanate from any investigation Panel set up or that may be set up in furtherance of any notice of allegations of gross misconduct issued against the Governor of Nasarawa State with a view to purportedly removing the Governor of Nasarawa State from office, because it would amount to an ultra vires act, since the entire procedure is likely to breach the Governors fundamental right to be given a fair hearing as guaranteed under S. 36 (1), (2), (5) and (6) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) because the duty conferred upon the Respondents therein is strictly a legislative duty which legislative power cannot validly determine the rights of a holder of the office of Governor to continue to hold his office.

21.AN ORDER pursuant to S. 36 (2) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) striking down or invalidating Ss. 188 (2) (b); (6); (9) and (10) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), for being antithetical to and in contravention of a Governors constitutional right to a fair hearing as guaranteed under Ss. 36 (1), (5) and (6) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) since same does not expressly confer or vest upon the state House of Assembly the necessary vires to sit and act as a court for the trial of impeachments and thereby violates his right to fair hearing.

AND for such further Order or orders as this Honourable Court may deem fit to make in the circumstances.

5. PERSONS DIRECTLY AFFECTED BY THE APPEAL:

NAME AND ADDRESS:

(A) B. F. Towobola, Esq, Aletheia Advocates, B. F. Towobola & Co., 1st Floor, UBA Building, 17/19 Beach Road, Jos.

(B) The Speaker of the Nasarawa State House of Assembly/The Nasarawa State House of Assembly, House of Assembly Complex, Shendam Road, Lafia

DATED THIS 12TH DAY OF NOVEMBER, 2014

_______________________________B. F. Towobola, Esq.B. F. Towobola & Co.

Aletheia AdvocatesPlaintiff/Applicant’s Counsel

1st Floor, UBA Building17/19 Beach Road, Jos.

Phones: 08037909615; 08057815352e-mail: [email protected]

DODODO V. E.F.C.C. [2013] 1 N.W.L.R. (PART 1336) 468 AT 522, PAR. A – B

‘I am persuaded to rely on the African Charter in adopting the broader approach which has been adopted by other jurisprudence. See David v. Maca Pagal-Arroyo 489 SCRA 160 2006, where the court held that when the issue is on public right it is sufficient that the petitioner is a citizen and has an interest in the execution of the laws.’

DODODO V. E.F.C.C. (SUPRA) AT 518, PAR. E – 519, PAR. A

‘In this case the Supreme Court on the issue of public right held that a right to a legal right may exist to institute an action in a court of law in the realm of public law. In order to determine whether the cross appellant has standing to sue, one has to look at the averments in the statement in support of the application for leave and the motion on notice. The determinant of locus is not limited to the pleadings when the challenge on standings relates to public right. In such circumstance, it becomes necessary to look at the statute or law that conferred the public duty on the public body. The reason is that some statutes recognizes (sic) the locus standi of a person even though no legal right or legally protected interest of the applicant has been violated resulting in legal injury. The issue of standing intertwines with the question of reasonable cause of action. A party may have locus without a reasonable cause of action. It is the cause of action that will disclose facts from which is could be ascertained whether there is an infringement of civil rights or obligations of the party. See Abraham Adesanya v. President of Nigeria (1981) 2 NCLR 358 at 393.

DODODO V. E.F.C.C. (SUPRA) AT 520, PAR. G – 521, PAR. A

‘where no specific legal injury is caused to a person by the act or omission of the state or any public authority and the injury is caused only to public interest, the question will arise as to who can maintain an action for vindicating the law and enforcing the performance of a duty or whether discretion was properly excercised. When bona fide report is made to a statutory body conferred with public duty on corruption complaints cannot be challenged in court because of specific injury that will be disastrous for the rule of law and a quick path to anarchy. It certainly will crown the state authority or public authority immunity to act with impunity beyond the

scope of its power or in breach of a public duty owed by it to the public and denigration of the constitution.

Therefore, once there is an allegation of public wrong or omission of a public authority which is contrary to law any member of the public acting bona fide and having sufficient interest should have a locus to commence an action for redress of public right.’

DODODO V. E.F.C.C. (SUPRA) AT 521, PAR. C -

b f towobola v speaker, nsha

Documents