CASE TITLE: KOGI STATE HOUSE OF ASSEMBLY & ORS v. ACHUBA & ORS (2024) LPELR-61938(CA)
JUDGMENT DATE: 21ST MARCH, 2024
JUSTICES: HAMMA AKAWU BARKA
ADEBUKUNOLA ADEOTI IBIRONKE BANJOKO
PETER CHUDI OBIORAH
DIVISION: ABUJA
PRACTICE AREA: CONSTITUTIONAL LAW
FACTS:
This appeal borders on impeachment proceedings.
This is an appeal against the judgment of Honorable Justice R.O. OLORUNFEMI of the Kogi State High Court delivered on the 27th day of February 2020.
The case revolves around the removal of Elder Simon Achuba from office as the Deputy Governor of Kogi State. The Speaker of the House of Assembly initiated the process based on allegations of gross misconduct against Achuba, including financial misappropriation, disregard for executive decisions, abandonment of duties, and incitement of communal unrest. The Kogi State House of Assembly made rules of procedure for the investigation panel and caused the Chief Judge of Kogi State to constitute a Seven-Man Panel to investigate the allegations, which ultimately recommended Achuba’s removal.
Dissatisfied with his removal from office, Elder Simon Achuba filed an Originating Summons before the Kogi State High Court on the 30th day of October 2019. He challenged his removal, praying the trial Court to determine whether his removal was not unlawful and contrary to the provisions of Section 188(8) of the 1999 Constitution (as amended).
The trial Court ruled in favor of Achuba, dismissing objections raised by the defendants and granting all of Achuba’s requested reliefs.
The defendants, displeased with the trial Court’s decision, filed an appeal.
ISSUES FOR DETERMINATION:
The Court determined the appeal on the following issues, viz:
1) Whether the learned trial Court was right in declaring the removal of the 1st respondent carried out in proceedings of the 8th October 2019 at the plenary by the appellants, when there was no specific relief to the effect and particularly when the said proceedings was not laid before the Court.
2) Whether the learned trial judge was right in relying on the 1st respondent’s exhibit jso3; being an incomplete and invalidly and improperly certified copy of a public document
3) Whether the learned trial Court was right in assuming jurisdiction notwithstanding the provision of Section 188(9) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) relying on Inakoju vs Adeleke (2007) 4 NWLR (part 1025) page 423.
COUNSEL SUBMISSIONS:
Learned Counsel representing the Appellant argued that by Section 188 (10) of the 1999 Constitution, the decision to remove the 1st Respondent cannot be questioned in Court. He contended that INAKOJU VS ADELELKE relied on by the 1st Respondent​ only distinguished the proceedings/act of the State House of Assembly and the Procedure to be followed in carrying out the actions of the house. According to learned Counsel, the Court assumed Jurisdiction in INAKOJU VS ADELELKE only on the procedure followed in removing the Governor. It was also on whether a State House of Assembly, in taking its decision to remove a Governor or Deputy Governor can conduct its proceedings outside the hallowed chambers and without forming a quorum. A Court only has Jurisdiction on procedure and not to question the decision. In this instance, the 1st Respondent questioned the decision of the 1st Appellant, and as such, the Court lacked Jurisdiction. He urged this Court to so hold.
Conversely, Learned Counsel for the 1st Respondent argued on whether the provision of Section 188 (10) of the 1999 Constitution can be invoked without compliance or adherence with the provision of Section 188(1) -(9), particularly Subsection (8) of the Section. The provision of Section 188(1) – (10) must be read together, and where there has been no compliance with Subsections (1)-(8), the Appellants cannot rely on Sub-section 10 to oust the Jurisdiction of the Court.
According to learned Counsel, when the panel found the allegation of misconduct not proved, the 1st Appellant ought to have discontinued the impeachment proceedings by invoking Subsection (8), but rather, they went ahead to remove the 1st Respondent. The provisions of Section 188 (1-8) are meant to guide the Appellants, but where there is disobedience, the Court will not overlook it but will assume Jurisdiction under Section 6(6) C of the 1999 Constitution. Once there is compliance with Subsections 1-8, anything afterwards becomes an internal affair.
Learned Counsel submitted that an Impeachment Process is not entirely a Legislative Matter since the Chief Judge is involved. The Provision of Section 188(8) is simple and should be given its ordinary meaning. Where the Law/Act directs that an Act be done in a particular way, it has to be done in that way and any infraction in between the different stages renders it a nullity. He urged the Court to discountenance the Appellants’ contention and find in his favour and relied on a host of authorities, amongst which are – DAPIANLONG VS DARIYE (2007) AL FWLR (PART 373) 1 AT PAGE 46 PARAS C-A (CA), AG LAGOS VS AG FEDERATION & ORS (2014) LPELR-22701 (SC), JOSEPH VS STATE (2011) LPELR-1630 SC, PETER OBI VS INEC (2007) LPELR-24347 (SC), AMAECHI VS INEC (2008) 5 NWLR 9PART 1080) 227, MACFOY VS UAC LTD (1962) AC 152 AT 160, BALONWU VS OBI (2007) 5 NWLR (PART 1028) 488 AT 532 PARAS F-G, 542 PARAS F-H, 559 PARAS D-G (CA).
DECISION/HELD:
In the final analysis, the Court dismissed the appeal.
RATIO:
CONSTITUTIONAL LAW – IMPEACHMENT: Instance where the Court will have jurisdiction to intervene in a suit founded on impeachment proceedings
“There is no doubt that a Governor and Deputy Governor of a State occupy a sensitive office of constitutional importance. It is not surprising that Section 308 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) has clothed them with immunity to ward off anything that may be a distraction to their discharge of the functions of the offices. In the same vein, while their occupancy of the offices for the elected term of four years is not guaranteed by immunity but there is a procedure laid down under Section 188 of the 1999 Constitution for the impeachment of a Governor or Deputy Governor Section 188 of the 1999 Constitution has eleven (11) subsections which prescribe in methodological manner the steps that must be taken before the holder of office of Governor or Deputy Governor may be removed from office by impeachment. In the instant case, and as established in the lead judgment, the panel appointed by the Chief Judge of Kogi State pursuant to Section 188(5) of the 1999 Constitution returned a Report that the allegations against the 1st Respondent was not proved. This development was supposed to activate the provision of Section 188(8) of the 1999 Constitution which provides: “Where the Panel reports to the House of Assembly that the allegation has not been proved, no further proceedings shall be taken in respect of the matter.” Sadly, the Appellants did not stop but went ahead to conduct “further proceedings” by impeaching the 1st Respondent who was the Deputy Governor of Kogi State and also validate the nomination of the 5th Respondent as replacement. Naturally aggrieved the 1st Respondent approached the High Court of Kogi State for redress. At the trial Court and in this appeal, the Appellants have waived the ouster clause in Section 188(10) of the 1999 Constitution as a shield in the bid to ward off the Court from looking into the purported impeachment of the 1st Respondent. Section 188(10) of the 1999 Constitution provides: “No proceedings or determination of the panel or of the House of Assembly or any matter relating to such proceedings or determination shall be entertained or questioned in any Court.” I see the effort by the Appellants to hide under the ouster clause above as the action of people who want to enjoy the benefit of a provision of the Constitution while rejecting the duty imposed by another provision of the same Constitution. In this wise, the Appellants who violated the injunction against further proceedings in the event of a negative report from the Panel under Section 188(8) cannot invoke the provisions of Section 188(10) to protect themselves from the jurisdiction of the Court. The ouster clause of the jurisdiction of the Court in Section 188(10) does not stop the Court from scrutinizing the proceedings and steps taken in the course of an impeachment proceedings to ensure that they comply strictly with the provisions of Section 188(1) – (9) which are like condition precedent that must be satisfied. In my opinion, it is when the steps in the preceding subsections of 1 – 9, that the jurisdiction of the Court to entertain any question on the outcome of the impeachment proceedings can be ousted. In the AGBASO v. SPEAKER, IMO STATE HOUSE OF ASSEMBLY & ORS (2014) LPELR-24298(CA) pages 54-55 paras. B-G, Ige, JCA aptly captured the law in these words: “l must say that in matters or questions pertaining to or bordering on ouster clauses a Court of law and Justice will not play the ostrich or become Lily-livered upon invocation or the enlistment of the ouster clause by a defending party as a way of shielding himself or to browbeat the Courts to hand off from determining whether the impeachment or removal proceedings were in order. Ouster clauses cannot be treated as a very red hot iron just pulled out of burning charcoal by a blacksmith’s tong with trepidation to avoid being hurt or injured by it before using the glanville on it to mode the desired implements. The lower Court and this Court are endowed with jurisdiction to adjudicate upon any suit or action complaining that a Panel set up pursuant to Section 188 of the 1999 Constitution and a House of Assembly violated the demands or constitutional procedures contained in the said section. In other words, a complaint that the Panel did not follow the nitty-gritty of the conditions precedent in the said Section 188(1) – (9) of the Constitution can be determined or entertained by the Court. The provisions of Section 188(1) – (9) are not designed to cover up or protect illegalities or irregularities committed by such Panel or a House of Assembly.” Perhaps, this is an appropriate opportunity to tell any person or authority saddled with the responsibility of carrying into effect any provisions of our beloved Constitution to submit and subject himself with fidelity to the provisions of the Constitution. He cannot pick and choose what provisions to obey or not to obey. I have no doubt that the action of the Appellants in carrying out the purported impeachment of the 1st Respondent in flagrant disobedience to the provision of Section 188(8) of the 1999 Constitution is reckless and cannot be condoned in a society that professes the rule of law.” Per OBIORAH, J.C.A.
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