In The Supreme Court of Nigeria
On Friday, the 21st day of November, 2014
Before Their Lordships
WALTER SAMUEL NKANU ONNOGHEN Justice of The Supreme Court of Nigeria
SULEIMAN GALADIMA Justice of The Supreme Court of Nigeria
BODE RHODES-VIVOUR Justice of The Supreme Court of Nigeria
NWALI SYLVESTER NGWUTA Justice of The Supreme Court of Nigeria
KUMAI BAYANG AKA’AHS Justice of The Supreme Court of Nigeria
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Supreme Court of Nigeria
JOHN INYANG OKORO Justice of The Supreme Court of Nigeria
ALHAJI SANI ABUBAKAR DANLADI- Appellant
1. TARABA STATE HOUSE OF ASSEMBLY
2. RT. HON. ISTIFANUS GBANA
(SPEAKER, TARABA STATE HOUSE OF ASSEMBLY)
3. HON. JUSTICE J. Y. TURKUR
(ACTING CHIEF JUDGE OF TARABA STATE)
4. THE ATTORNEY-GENERAL OF TARABA STATE
5. THE GOVERNOR OF TARABA STATE
6. ALHAJI GARBA UMARU
(DEPUTY GOVERNOR, TARABA STATE) -Respondents
NWALI SYLVESTER NGWUTA, J.S.C.:(Delivering the Leading Judgment): This appeal emanated from the proceedings of a panel set up by the Acting Chief Judge of Taraba State at the instance of the 1st Respondent to investigate allegation of gross misconduct against the appellant. Based on the report of the panel, the 1st Respondent removed the appellant from office as the Deputy Governor of Taraba State.Appellant challenged his impeachment and removal from office in the High Court of Taraba State. The trial Court ruled against him.
He appealed to the Court of Appeal which court dismissed the appeal.
Appellant then further appealed to this court seeking the following reliefs:
“a. Allow the appeal.
b. Set aside the judgment of the Court of Appeal, Yola Judicial Division in its entirety delivered on 19th July, 2013 which affirmed the judgment of the trial Court.
c. Set aside the judgment of the trial Court dismissing the appellant’s Originating Summons.
d. Nullify the impeachment proceedings and the impeachment (removal) of the appellant as the Deputy Governor of Taraba State.
e. An order re-instating the Appellant as the Deputy Governor of Taraba State.”
Appellant herein is also the appellant in Appeal No. SC.416/2013 in which he sought substantially similar reliefs against the 7 Member Panel which investigated the allegation made by the 1st Respondent against him.
There is no live issue in the appeal, the reliefs sought have been dealt with in Appeal No. SC.416/2013. It is my view that issues in this appeal have become academic in view of the judgment in SC.416/2013.
The proper order in the circumstance is one for striking out and I do hereby strike out the appeal.
Parties to bear their respective costs.WALTER SAMUEL NKANU ONNOGHEN, J.S.C.: I have the benefit of reading in draft the lead judgment of my learned brother, NGWUTA, JSC just delivered.
I agree with his reasoning and conclusion that having regards to the judgment of this Court in appeal No SC/416/2013 involving the same parties, substantially the same subject matter just delivered, the issues raised and canvassed in the instant appeal has been overtaken by that judgment thereby rendering a decision in the instant appeal of no moment.
The appeal is therefore, in the circumstance struck out. Parties to bear their costs.
Appeal struck out.
SULEIMAN GALADIMA, J.S.C.: I have had the privilege of reading in draft the leading judgment of my learned brother NGWUTA, JSC just delivered.
I agree with his reasoning and conclusion that there is no longer any live issue in this appeal, the main relief sought by the Appellant having been adequately dealt with in the sister appeal No. SC. 416/2013, which has been delivered.
Having held in the appeal SC. 416/2013 that the report and proceedings of the panel, which resulted in the removal of the appellant was null and void and of no legal effect, I agree that the issues raised in the instant appeal have become academic. Consequently, this appeal is hereby struck out. Parties to bear their respective costs in the appeal.
OLABODE RHODES-VIVOUR, J.S.C.(DISSENTING JUDGMENT): I have had the advantage of reading in draft the leading judgment delivered by my learned brother, Ngwuta,JSC. His lordship concluded thus:
“There is no live issue in the appeal, the reliefs sought have been dealt with in Appeal No.SC 416/2015. It is my view that issues in this appeal have become academic in view of the judgment in SC.416/2013.
With the above reasoning, His lordship struck out appeal. After a very careful consideration of the live issue in this appeal I am of a completely different view. Both appeals are on the impeachment of the appellant -The Deputy Governor of Taraba State.
The issue of this appeal is;
Whether there was compliance with Section 188 of the Constitution in the procedure adopted by members of the Taraba State House of Assembly to impeach the appellant.
I read carefully submission of counsel on this issue. I must say straight away that I am not swayed by the submissions of learned counsel for the respondents. The submissions of learned counsel for the appellant is preferred.
For an impeachment to be Constitutional there must be strict compliance with Section 188 of the Constitution. Section 188 of the Constitution states that-
“188(1) The Governor or Deputy Governor of a State may be removed from office in accordance with the provisions of this Section.
(2) Whenever a notice of any allegation in writing signed by not less than one-third of the members of the House of Assembly.
(a) is presented to the Speaker of the House of Assembly of the State.
(b) stating that the holder of such office is guilty of gross misconduct in the performance of the functions of his office detailed particulars of which shall be specified.
The Speaker of the House of Assembly shall within seven days of the receipt of the notice, cause a copy of the notice to be served on the holder of the office and on each member of the House of Assembly and shall also cause any statement made in reply to the allegation by the holder of the office, to be served on each member of the House of Assembly.
(5) Within fourteen days of the presentation of the notice to the Speaker of the House of Assembly (whether or not any statement was made by the holder of the office in reply to the allegation contained in the notice) the House of Assembly shall resolve by motion,without any debate whether or not the allegation shall be in investigated.
(4) A motion of the House of Assembly that the allegation be investigated shall not be declared as having been passed unless it is supported by the votes of not less than two-thirds majority of all the members of the House of Assembly.
(5) Within seven days of the passing of a motion under the foregoing provisions of this section, the Chief Judge of the State shall at the request of the Speaker of the House of Assembly, appoint a Panel of seven persons who in his opinion are
of unquestionable integrity, not being members of any public service, legislative house or political party to investigate the allegation as provided in this section.
(6) The holder of an office whose conduct is being investigated under this section shall have the right to defend himself in person or be represented before the panel by legal practitioner of his own choice.
(7) A Panel appointed under this section shall –
(a) have such powers and exercise its functions in accordance with such procedure as may be prescribed by the House of Assembly; and
(b) within three months of its appointment, report its findings to the House of Assembly.
(8) Where the Panel reports to the House of Assembly that the allegation has not been proved, no further proceedings shall be taken in respect of the matter.
(9) Where the report of the Panel is that the allegation against the holder of the office has been proved, then within fourteen days of the receipt of the report, the House of Assembly shall consider the report, and if by a resolution of the House of Assembly supported by not less than two-thirds 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.
An examination of Section 188 of the Constitution reveals that several steps must be taken before an impeachment can be said to have been done in accordance with the Constitution.
There is no doubt that step 1 in the impeachment process is that not less than 1/3 members of the House of Assembly shall prepare in writing and sign a notice containing the allegations of misconduct against the Deputy Governor (i.e. the appellant).
In the affidavit in support of the appellants originating summons he deposed as follows:
“8. That on 3rd September, 2012, the meeting for the initiation of impeachment proceedings resulting to the signing by 19 members of the 1st Defendant was held at the Guest House of the Majority Leader, Taraba State House of Assembly (Hon. Charles Maijankai) at Technobat Quarters, Mile 6, Jalingo, Taraba State.
9. That on the 3rd day of September, 2011, some members of the 1st Defendant presented a notice to the 2nd Defendant (Speaker, Taraba State House of Assembly) alleging acts of gross misconduct against me pursuant to Section 188 of the Constitution………and both the meeting and the signing of the Notice of allegation was done at the Guest House of the Majority Leader, Taraba State House of Assembly (Hon.Charles Maijankai) at Technobat Quarters, Mile 6, Jalingo Taraba State.
In the several counter-affidavits filed by the respondents the above is not denied. The Majority Leader of the Taraba State House of Assembly, Hon. Charles Maijankai did not file a counter-affidavit to deny paragraphs 8 and 9 of the affidavit in support of the Origiuating Summons.
What is the position of the Law?
Where facts deposed to in an affidavit on a crucial and material issue are not controverted or denied in a counter-affidavit such facts must be taken as true except they are moonshine. See Alagbe v. Abimbola (1978) 2 SC p. 39
It is established beyond all doubt that about 19 members of the Taraba State House of Assembly met and sat in a Guest House situate at Technobat Quarters, Mile 6, Jalingo, Taraba State on the 3rd of September 2013. In that Guest House they prepared and signed a notice containing, serious allegations of misconduct against the appellant.
Is the 1st step in impeachment proceedings, a legislative act?
A legislative act is an act within the exclusive jurisdiction of the legislature. The 1st step in impeachment proceedings, i.e. the preparation of the Notice is a legislative act.
What did both courts below say?
The High Court said:
“Issuance of the notice of allegation by the 1st defendant from the scenario above was done on 4/9/12 when the house sat on the floor to receive a request received by the speaker for acts of misconduct put together by who William Shakespeare in his characteristic language will refer to as “fellow conspirators” to the extent that the activities of certain members who sat and put together the notice of the allegation of misconduct dated 3rd September 2012 and later submitted to the speaker must not be construed as the action of the House of Assembly. Rather it must be seen as the action of some aggrieved individual members whereas the house of assembly only became involved on the 4th September 2012 when the matter was laid on the table as evidenced by Exhibit HAG 15 votes and proceedings of 4/9/2012.”
And the Court of Appeal said:
“On this issue therefore it is my view that, while the act of signing of the notice of allegation is definite part of the legislative act of the members of the House of Assembly it is not intended by Section 188(2) of the Constitution that the signatures to the notice of allegation must be generated from the floor of the House. It is my view that, once a notice of allegation is presented to the speaker of the House, signed by one-third of the house, that aspect of Section 188(2) has been satisfied, and it will not matter that the signatures had been generated from outside the House of Assembly or that it was done outside parliamentary hours.
The issue raised by the appellant therefore has no substance, and is accordingly resolved against him.”
Both courts below were of the view that it is immaterial where members of the State House of Assembly met to prepare the notice which contained allegations of misconduct against the appellant (Deputy Governor of Taraba State). At the conference of this court the majority view supports the above.
The view of the majority is that members of the House of Assembly can meet anywhere outside the House of Assembly to prepare a notice alleging misconduct against the Deputy Governor. To my mind this reasoning is wrong. A similar procedure occurred in Inakoju v. Adeleke 2007 4 NWLR pt. 1025 p. 579.
In that case Tobi JSC referred to Akintola v. Aderemi 1962 ALL NLR where legislative acts conducted
outside the legislative House was condemned. His lordship said:
“In Akintola v. Aderemi 1962 ALL NLR p. 442 at 443 it was held that anything done outside the House of assembly to remove the Governor of the Old Western Region was/is a nullity. The Governor is elected by the people. The electorate. The procedure and the proceedings leading to his removal should be available to any willing eyes. And this, the public will see watching from the gallery. It should not be a hidden affair in a secret organization or a secret cult or fraternity where things are done in utmost secrecy in the recess of a hotel. On the contrary, a legislature is a public property to the glare and visibility of the public. As a democratic institution operating in a democracy, the actions and inactions of a House of Assembly are subject to public judgment and public opinion. The public nature and content of the legislature is emphasized by the gallery where members of the public sit to watch the proceedings. Although I concede the point that and legislature has the right to clear the gallery in certain deliberations for security reasons. I do not think proceedings for the removal of a Governor should be hidden from the public.”
Impeachment proceedings provided by Section 188 of the Constitution is a purely legislative Constitutional affair and in exercising their powers good faith must always be at the forefront of their considerations. It would amount to bad faith where members of the House sit outside the House or at strange hours to conduct impeachment proceedings. Changing the rules before the commencement of impeachment proceedings would also amount to bad faith. It is clear that the conclusion is inescapable that the framers of the Constitution wanted the House of Assembly to be responsible at every level (or step) for the ultimate fate of the Deputy Governor facing impeachment.
All steps must be taken in the House and not from some seedy Guest House however well meaning. Law and convention cannot be replaced by the whim and fancies of party members, or party political agendas outside the House.
Legislative business especially for impeachment of a high official is a very serious matter that demands the highest standards from honourable members. Their legislative acts should be seen at all times as in the best interest of the country and not to settle political scores. Conducting legislative acts in a Guest House becomes laughable in the eyes of the public. I must say that the commencement of impeachment proceedings from a Guest House is a clear move by the legislators to achieve set goals by subterranean procedure. It is wrong. The whole world saw on television the impeachment proceedings of one time President of the U.S.A Bill Clinton, by the House of Representatives. It was not a hidden affair. The venue was the House of Representatives and every step in the impeachment proceedings was taken/done in the House of Representatives and not in a Hotel. It is unconstitutional, null and void for the members of the Taraba State House of Assembly to deliberate, and then prepare a notice alleging misconduct against the appellant in a Guest House.
The notice of allegations of misconduct against the Deputy Governor (the appellant) must be prepared, signed in the House of Assembly within congressional hours and not outside the House of Assembly or in a Guest House. The meeting, by about nineteen members of the Taraba State House of Assembly in the majority leader’s guest house to prepare and sign a notice of allegations of misconduct against the Deputy Governor was wrong, and unconstitutional. This grave error settles both appeals as this is the first step to be taken in impeachment proceedings. The Legislators were wrong to have met, sat in a Guest House. Consideration of denial of fair hearing in SC.416/2013 would no longer be necessary as that issue is about step 5 in Section 188 of the Constitution, while the issue of preparation of notice containing allegations of misconduct in this appeal is step 1.
Finally and on the contrary it is clear that there is a very live issue in this appeal. It has not been dealt with in SC.416/2013. The issue in SC.416/2013 is whether the appellant was denied fair hearing. The conclusion is that he was denied fair hearing. I agree with that conclusion, but since the issue in this appeal comes before the issue is SC.416/2013, and it is substantial, further consideration of SC.416/2013 would in the circumstances be a waste of judicial time.
Appeal allowed. The appellant remains the Deputy Governor of Taraba State.
KUMAI BAYANG AKA’AHS, J.S.C.: Following the submission of the report of the Panel set up by the Acting Chief Judge of Taraba State at the instance of the 1st respondent to investigate the allegation of gross misconduct against the appellant, he was removed from office as the Deputy Governor of Taraba State and the 6th respondent was chosen to replace him. The appellant unsuccessfully challenged the powers of the Acting Chief Judge to set up the Panel as well as the membership of one of the panel members, Hajia Aishatu Mohammed. In view of the fact that the proceedings and report of the Panel were set aside by this Court a few minutes ago in SC.416/2013, there is no live issue left in this appeal and the appeal is consequently struck out. I wish to observe however that impeachment of any elected or appointed official should be handled with all seriousness and with solemnity and there should be strict adherence to all the steps laid down in the Constitution for the exercise. Parties to bear their costs.
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.: I have had the benefit of reading before now the lead judgment of my learned brother, NGWUTA, JSC just delivered.
I agree with the reasoning and conclusion that there is no longer any live issue in this appeal; the reliefs sought having been dealt with in the sister appeal in SC.416/2013 in which judgment has just been delivered. Having found and held in that appeal that the report and proceedings of the panel upon which the removal of the appellant was based are null and void and of no effect, I agree that the issues in the instant appeal have become academic and the proper order to make in the circumstances is the striking out of the appeal. I hereby strike it out accordingly.
The parties shall bear their respective costs in the appeal.
JOHN INYANG OKORO, J.S.C.: The facts leading to this appeal are the same as in appeal No. SC.416/2013 in which judgment has just been delivered. The appellant herein is also appellant in the appeal alluded to above and the reliefs substantially the same.
Having allowed the appeal in appeal No. SC.416/2013, there remains no live issue to be considered in the instant appeal. As was pointed out by my learned brother Ngwuta, JSC in the lead judgment which I agree, the issues in the instant appeal have become academic in view of the decision in SC. 416/2013.
Consequently, this appeal is hereby struck out. Parties to bear their respective costs.
Kanu Agabi (SAN) with him: Yunus Ustaz Usman (SAN), O. A. Adegoke (Mrs), Udoka Owie (Mrs), Audu Anuga, E. N. Chia, A. Umar, J. J. Usman, M. G. Egenti (Mrs), M. B. Odey, Patrick Okoh, Adewale Adegboyega, Ikhide Ehighelua, Akinola Afolarin, Uchenna Ede (Mrs), Nana Aisha Usman (Miss), F. F. Nwachukwu-Agbada and Ijedinma Agwu (Miss) For Appellant
A. J. Akanmode Esq, E. A. Ibrahim Effiong, H. R. Ibi Esq., and B. O. Akanmode (Miss) for 1st and 2nd Respondents.
M. M. Nuruddeen Esq., Mathias Ikyuv, Kuyik Usoro and O. F. Jegede for 3rd Respondent.
M. A. Tende Esq, (A-G, Taraba State), B. M. Isa Esq (S-G, Taraba State), J. D. Yakubu Esq (DCLO, M. N. Sa’ad Esq (DLD). Hamidu Audu Esq (DCR), Emeka Okoro Esq., L. M. Lunar Esq (SSC) and N. A. Tanko Esq (SC II) for the 4th Respondent.
Yusuf Ali (SAN) with him: Adebayo Adelodun (SAN), A. K. Adeyi Esq., Prof. Wahab Egbewole, Yakubu Maikasuwa Esq., K. K. Eleja Esq., S. A. Oke Esq., Alex Akoja Esq., N. N. Adegboye Esq., K. T. Sulyman (Miss), P. I. Ikpegbu (Mrs), Halima Sylaiman (Miss), Patience Adejoh (Miss) and A. O. Usman, Esq. for the 5th and 6th Respondents. For Respondent