NYAKO v. ADAMAWA STATE HOUSE OF ASSEMBLY & ORS (2016)

In The Supreme Court of Nigeria

On Friday, the 16th day of December, 2016

SC.303/2016

Before Their Lordships

IBRAHIM TANKO MUHAMMAD Justice of The Supreme Court of Nigeria
OLABODE RHODES-VIVOUR Justice of The Supreme Court of Nigeria
MARY UKAEGO PETER-ODILI Justice of The Supreme Court of Nigeria
MUSA DATTIJO MUHAMMAD Justice of The Supreme Court of Nigeria
CLARA BATA OGUNBIYI Justice of The Supreme Court of Nigeria
CHIMA CENTUS NWEZE Justice of The Supreme Court of Nigeria
AMIRU SANUSI Justice of The Supreme Court of Nigeria


Between

ADMIRAL MURTALA NYAKO –Appellant

AND

1. ADAMAWA STATE HOUSE OF ASSEMBLY
2. MR. BUBA KAIGAMA
(Chairman of the Seven Member Committee)
3. INSPECTOR GENERAL Of POLICE- Respondents

…………………….A…………………….

MUSA DATTIJO MUHAMMAD, J.S.C. (Delivering the Leading Judgment): The appellant, Admiral Murtala Nyako, a retired naval officer, was elected the Governor of Adamawa State on the 5th of February 2012 to serve for a term of four years from the date he subscribed to the oath of the office. On the basis of its allegation of misconduct against the appellant, the 1st respondent following a resolution it passed, commenced the process of appellant’s removal from the office of the Governor of Adamawa State he was elected to.Aggrieved by 1st respondent’s failure to follow the laid down procedure prescribed by the Constitution for the removal of a Governor, the appellant, by an originating motion filed on 13th November 2014, challenged his purported impeachment by the 1st respondent and sought for his reinstatement at the Federal High Court sitting at Yola, hereinafter referred to as the trial Court.
1st respondent not only challenged the competence of the originating motion by way of preliminary objection on the grounds of the impropriety of appellant’s recourse to the fundamental rights enforcement procedure for the reliefs and its being an abuse of judicial process, it filed a counter-affidavit and a written address in opposition to the originating motion. Appellant’s originating motion and 1st respondent’s preliminary objection were heard together by the trial Court. In a ruling delivered on 21st May 2015, the Court adjudged appellant’s cause of action an abuse of judicial process and declined any pronouncement on the merit of same notwithstanding the availability of materials in support of the respective positions of the parties.
Dissatisfied with the trial Court’s ruling, the appellant appealed to the Court of Appeal, holden at Yola, hereinafter referred to as the lower Court, by which judgment of 11th February 2016, appellant’s appeal was allowed in part. The Court set aside the trial Court’s ruling, invoked Section 15 of Court of Appeal Act to consider and determine the merit of appellant’s originating motion and granted him reliefs 1  5 thereof. The 6th relief that had been abandoned by appellant’s counsel in the course of arguing the appeal was, struck out
Aggrieved by the lower Court’s order striking out his 6th relief, the appellant has appealed to this Court on a notice containing three grounds.
Parties have settled and exchanged their briefs of arguments, including appellant’s reply briefs and, at the hearing of the appeal, adopted same in prosecution or opposition of the appeal.
The sole issue distilled by the appellant at Paragraph 3 of his brief reads:-
“Whether upon declaring his purported removal from office as Governor of Adamawa State unconstitutional, null and void, the Court below was not under a legal duty to reinstate the Appellant?”

The issue formulated in the 1st respondent’s brief as arising for the determination of the appeal reads:-
“Given that the tenure of the Appellant as the former Governor of Adamawa State expired and/or became spent on 29th of May, 2015 by constitutional imperative, whether the learned Justices of the Court of Appeal were not right in striking out Relief No. 6 of the Appellants Originating Motion?”

At paragraph 3.1 of Page 7 of his brief the issue the 2nd respondent presented for the determination of the appeal reads:-
“Whether the learned Justices of the Court of Appeal were right in striking out Relief No. 6 of the Appellant’s Originating Motion in view of the fact that the tenure of the Appellant had already expired and become spent as graciously conceded by the Appellants counsel.”

The more apposite issue distilled at paragraph 2.1 of page 14 of the 3rd respondent’s brief and on the basis of which the appeal is to be determined, reads:-
“Whether in view of the fact that the tenure of office of the Appellant had already expired and become spent as rightly graciously conceded by his counsel, the learned Justices of the Court of Appeal were wrong in striking out the Appellants relief No. 6.

On the lone issue, learned senior counsel for the appellant submits that the lower Court has the sacred duty of protecting the very Constitution, the groundnorm, that prescribes and sets the limits of the Powers of all organs and persons. The appellant whose Powers as the Governor of Adamawa State flows from Section 180(1) & 2 of the 1999 Constitution as amended, it is contended, cannot be prevented from exercising the functions of that office purely on the basis of his counsels admission that the tenure has elapsed. The lower Courts refusal to

…………………….B…………………….

grant appellant’s relief No. 6 having found that 1st respondents conduct in appellant’s purported removal is unconstitutional, learned senior counsel submits, runs contrary to the Constitution. Beyond the lower Court’s mere declaration that 1st respondent’s conduct constitutes a breach of the Constitution, the Court has the duty of making appropriate consequential order to set aside the breach and forestall future occurrence of such impunity. This duty, further contends learned senior counsel, is what the lower Court shirked away from and which the appellant seeks this Court to remedy. Only an order for reinstatement to the office appellant was elected to, it is contended, will suffice. Relying inter alia on the decision in Inakoju V. Adeleke (2009) 4 NWLR (Pt 1025) 423, Amaechi V. INEC (2008) NWLR (Pt 1080) 227 at 324 – 325, AG Ondo State v. AG Federation (2002) NWLR (Pt 772) 222 at 418, Imonike V AG Bendel State (1992) 6 NWLR (Pt 248) 396, Adeleke v. Oyo State House of Assembly (2006) 16 NWLR and AG Federation V. Abubakar (2007) 10 NWLR (Pt 1041) 1 learned senior counsel urges us to make the necessary and only consequential order that would give meaning to the lower Court’s decision on the unconstitutionality of 1st respondent’s purported removal of the appellant. The facts in Eze V. Governor of Abia State (2014) 14 NWLR (Pt 1426) 192 and Ladoja v. INEC, further contends senior learned senior counsel, being different from the facts of the case at hand, are distinguishable. The decisions in the two cases not being relevant must accordingly be discountenanced. Senior counsel commends a departure from the two decisions.
Concluding, learned senior counsel insists that the appellant who has manifestly suffered some injury cannot, by the principle of ubi jus ibi remedium, be asked to go away empty handed. Relying onObunike v. Nnamdi (2012) 12 NWLR (Pt 1314) 327 at 353 andBFI Group Corp v. BFF (2012) 18 NWLR (Pt 1332) 209 learned senior counsel submits that the availability of sufficient facts on record to sustain a consequential order justifies one from this Court, on allowing the appeal, even though the appellant has neither specifically pleaded nor prayed for it.
Responding on behalf of the 1st respondent Mahmud Abubakar Magaji, SAN, contends that the issue the appeal raises is too narrow and undeserving of appellants long treatise on the rule of law, the sanctity of the Constitution and the consequential order the lower Court failed to make. It is glaring, contends learned senior counsel, that these arguments do not relate to the issues he has distilled which issues as well as the grounds of appeal they purportedly draw from fail the mark of being an attack at the judgment of the lower Court being appealed against. An appeal, learned senior counsel maintains, is a complaint against the lower Court’s judgment which, if sustained, entitles the appellant to a reversal of the judgment. Appellant’s grounds of appeal and the issues they purportedly give rise to not being complaints against findings of the lower Court, it is contended, are to be discountenanced.
Arguing the appeal on the merits, learned senior counsel submits that a counsel who acts bonafide has the general authority to conduct his clients case and except where expressly restricted may, in appropriate circumstances, even compromise his client’s cause. In the case at hand where there is nothing to indicate that counsel had betrayed appellant’s trust at the lower Court, appellant cannot be heard on appeal to challenge the lower Court’s judgment on the basis of his counsel’s admission as to the futility of the Courts grant of appellant’s 6th relief. The decisions of this Court in Attorney General of the Federation V. A.I.C Ltd & ors (1995) 2 NWLR (Pt 378) 388, Okonkwo V. Kpaje (1992) NWLR (Pt 226) 633, Cappa & D Alberto Ltd V. Akintilo (2003) 9 NWLR (Pt 824) 49, Okesuji v. Lawal (1991) NWLR (Pt 170) 661 and Ogboro V. Uduaghan (2013) 13 NWLR (Pt 1370) 33, It is submitted, clearly bears out the lower Court’s judgment.
Parties, further argues learned senior counsel, are not allowed on appeal to make a case different from the one they made at the trial Court. Relying inter-alia on A.G. Anambra State V. Okeke (2002) 12 NWLR (Pt 782) 575, Oredoyin v. Arowolo (1989) 4 NWLR (Pt 144) 172 at 211, Ajide V. Kelani (1985) NWLR (Pt 12) 248, Pacer Multi Dynamics Ltd v. The M.V. Dancing Sister & Anor (2012) 4 NWLR (Pt 1289) 169 and Abeke V. Odunsi & Anor (2013) LPELR – 20640 (SC), he submits that this Court is duty bound to ensure that parties remain consistent.
Most importantly, learned senior counsel submits, it is no longer an issue

…………………….C…………………….

that the tenure of the appellant as the Executive Governor of Adamawa State for two terms, a cumulative period of 8 years beginning from 29th May 2007, had expired on 29th May 2015. No Court, given the decisions in Marwa V. Nyako (2012) 6 NWLR (Pt. 1296) 199, Ladoja V. INEC (2007) 12 NWLR (Pt 1047) 119 and Eze & Ors v. Governor Abia State & Ors (2014) 14 NWLR (1426) 192 as well as Section 180(2)(A) of the 1999 Constitution as amended, it is further submitted, can extend the tenure that had so expired.
Appellants 6th relief which seeks the extension of appellant’s tenure must, submits learned senior counsel, fail. On the whole, the appeal being unmeritorious, urges learned senior counsel, should be dismissed.
Learned senior counsel for the 2nd respondent, in virtually the same manner and substance as contended by Mr. Magaji SAN, also opposes the appeal. Relying on the same judicial authorities, he urges this Court not to depart from its decisions in Ladoja V. INEC (Supra) and Inakoju V. Adeleke (supra) firstly because the very facts and issues resolved by this Court in the earlier cases are the same facts and issues it is urged, in the instant appeal, to resolve. Furthermore, the appellant not having complied with the provision of Order 6 Rule 4(4)in urging the Court to depart from the earlier decisions, his invitation that the Court departs from the earlier decisions must fail. He relies on the cases of Adisa V. Oyinwola (2000) 10 NWLR (Pt 674) 116; Long John v. Blakk (1998) SCNJ 68, Okulate V. Awosanya (2000) 2 NWLR (Pt 312) 382 and Adegoke Motors Ltd v. Adesanya (1989) 3 NWLR (Pt 109) 250 and urges in conclusion that the appeal be dismissed.
The brief settled by Igbodo David Esq for the 3rd respondent similarly contains the very arguments and on the basis of the principles outlined in the same or similar authorities proffered by the 1st and 2nd respondents. Instructive as they are, reproducing the arguments is unarguably unnecessary.
On being served the respondents’ briefs, the appellant filed and served his reply brief to each of the respondents. A common trend runs through the competent aspects of the three reply briefs.
Firstly, the appellant contends, he has been consistent in his case from the trial Court through the lower Court and in this very Court. His case it is argued, is that as a democratically elected Governor he has a Constitutional mandate to hold office for an uninterrupted term of four years; that his impeachment by the 1st respondent before the expiration of the four years term is a breach and that the Courts have the duty to protect the provisions of the Constitution from further breach. The lower Court, it is submitted, found that appellant’s unlawful removal by the 1st respondent constituted a breach of the Constitution but failed to make a positive order towards the protection of the Constitution. It is the lapse in the lower Court’s judgment, it is further submitted, that informs the present appeal. Neither parties nor their legal representatives, it is contended, can waive the provisions of the Constitution.
Secondly, learned senior counsel to the appellant, Uche Nwokedi, further argues, where a counsel betrays the trust of his client or acted contrary to the clients instruction, the counsels general authority to conduct the case and even compromise his clients interest may be a subject of legitimate scrutiny. In the case at hand, it is further contended, there is nothing to suggest that appellant’s counsel at the lower Court had acted within the Purview of his general authority by conceding that appellant’s relief No. 6 is spent. Nothing in the Affidavit of urgency deposed to by the appellant at the lower Court contained in pages 746-751 of the record reveals either appellant’s concession or his instruction to his counsel to concede on his behalf either the impossibility of the grant of appellant’s relief No. 6 or its unenforceability.
Thirdly, the objections contained particularly in the 1st and 2nd respondents’ briefs to the effect that some arguments advanced by the appellant in support of the appeal neither flow from appellants issue for the determination of the appeal nor the grounds of appeal stand in breach of Order 2 Rule 9 (1) and 2 of the Supreme Court Rules 2011, appellant further contends, are simply incompetent Since Rules of Court are meant to be obeyed, the objections of the two respondents raised without the service of the necessary notice of same on the appellant, it is submitted, should be discountenanced.
Relying on Peter V. NNPC (2010) 8 NWLR (Pt 1195) 175, Diamond Bank V. P.I.C. Ltd (2009) 18 NWLR (Pt 1172) 67 and

…………………….D…………………….

Ibrahim V. Mohammed (2003) 6 NWLR (Pt 817) 615 SC, learned senior counsel to the appellant contends that had the respondents read appellant’s grounds of appeal along with their particulars they would have realized the futility of their objections. Appellant’s arguments objected to by the respondents clearly relate to the issue distilled from the grounds of appeal and being competent cannot be ignored. It is urged that this Court so holds.
To the question asked both sides to this appeal at its hearing, whether the appellant has a right of appeal in respect of a matter he conceded and abandoned through his counsel, the two sides stuck to the arguments in their respective briefs as well as the oral submissions proffered in amplification.
To understand appellants grouse in this appeal, one needs to appreciate not only the reliefs he prayed the lower Court to grant him and the decision of the Court in relation to the reliefs but also his grounds of appeal which constitute the dissatisfaction with the decision he appeals against.
Having been struck out by the trial Court for being an abuse of judicial process, the appellant in his appeal against the trial Courts decision to the lower Court, urged the Court to review and set aside the trial Court’s decision, consider the merits of his suit and grant him the following reliefs:-
“i. A DECLARATION that the failure of the 1st Respondent to serve the Applicant impeachment notice personally is unlawful, unconstitutional, illegal, null and void as it violates the Applicants fundamental right to fair hearing as guaranteed under Section 36 of the 1999 Constitution of the Federal Republic of Nigeria;
ii. A DECLARATION that the failure of the 2nd Respondent to serve the Applicant Hearing notice personally is unlawful, unconstitutional, illegal, null and void as it violates the Applicants fundamental right to fair hearing as guaranteed under Section 36 of the 1999 Constitution of the Federal Republic of Nigeria;
iii. A DECLARATION that the setting up of the 2nd Respondent by the Acting Chief Judge of Adamawa State based on the resolution of the 1st Respondent after the Order/Ruling by the Acting Chief Judge of Adamawa State stopping the 1st Respondent from constituting the 2nd Respondent is, biased, malafide, unlawful, illegal 
and unconstitutional violation of the Applicants right to fair hearing and fair trial as guaranteed under Section 36 of the Constitution of the Federal Republic of Nigeria;
iv. A DECLARATION that the setting up and composition of the 2nd Respondent based on the resolution of the 1st Respondent during, the pendency of a suit and against a subsisting Order of the Court restraining the 1st Respondent from setting up the 2nd Respondent is unlawful, contemptuous, illegal, undemocratic and a flagrant violation of the provisions of the 1999 Constitution of the Federal Republic of Nigeria;
v. AN ORDER nullifying the removal of the Applicant as Governor of Adamawa State on 15th July 2014;
vi. AN ORDER reinstating the Applicant as Governor of Adamawa State forthwith; and
vii. SUCH FURTHER ORDER OR OTHER ORDERS as this Honourable Court deems fit to make in the circumstance of this case.

In the course of arguing the appeal and urging the lower Court for the foregoing reliefs, see pages 802 – 803 of the record of appeal, Isyaku, SAN, on behalf of the appellant made a profound concession thus:
… The consequential relief as contained in relief 6 of the originating summons has expired as it has been overtaken by events. This leaves us with the issue as to whether or not the impeachment proceedings were proper. We submit that all the evidence required to determine the issue of the impropriety of the impeachment is already before the Court and the Court can go ahead to determine the suit. I concede that the claim for reinstatement has been overtaken by effluxion of time… In sum we urge the Court to allow the appeal and to hold that there was a breach of right of the Appellant in failure to serve him a hearing notice Set aside the proceedings of the panel and to annul the impeachment proceedings particularly the panels report.
(Underlining mine for emphasis).
Given the foregoing admission of appellant’s senior counsel, the lower Court held in respect of appellant’s reliefs 1-5 at pages 850 – 851 of the record as follows:-
“There was clearly an infraction of the right of fair hearing of the appellant in the impeachment proceedings when, contrary to the powers of the House of Assembly and in defiance of the Court order of Hon. Justice

…………………….E…………………….

A. D. Mammadi issued on 26/6/2014 to the effect that the Appellant must be served personally, opted to serve by substituted means. This is an infringement of the right to fair hearing of the Appellant which has vitiated the entire impeachment proceedings. I hold that the impeachment proceedings which led to the removal of the Appellant a nullity. I hereby set aside the decision of the Federal High Court Yola delivered on 21/5/2015. In its place I hold that reliefs 1 – 5 of the originating motion are granted.”

On the 6th relief the Court held and concluded at page 851 of the record of appeal thus:-
“In the course of this Appeal, the learned Appellants counsel graciously conceded that Relief No. 6 in the Originating motion is spent and cannot be granted. Consequently, in view of the expiration of the tenure of the Appellant on 7/2/2016, Relief No. 6 of the originating motion, being spent, is therefore struck out.”
(Underlining mine for emphasis)
The submission of learned senior counsel to the appellant that appellant’s dissatisfaction with the foregoing decision of the lower Court is best appreciated by a reading of appellant’s grounds of appeal including their particulars cannot be faulted. A perusal from the record, for completeness and fairness, of the part of the lower Court’s judgment to which the appeal relates, the grounds of appeal including their particulars as well as the relief the appellant seeks from this Court, in the event that the appeal succeeds, leave me in no doubt that appellants real grouse in his appeal is on the lower Courts failure to protect the sanctity of the Constitution by the grant of his 6th relief. This explains why the summary of the arguments proffered by the appellant in this judgment has been limited to appellant’s grouse as so circumscribed.
By these arguments, the contention of learned senior counsel to the appellant is that notwithstanding the fact that the order striking out appellant’s 6th relief is premised on the fact of its withdrawal by counsel, the lower Court is still wrong in its failure to consider the merit or otherwise of and grant the very relief that ceased to be extant and in so doing refused to protect the Constitution.
My lords, let me, from the onset, restate certain principles we, including counsel on both sides, all know. Firstly, an appeal is an invitation to a higher Court to review the decision of a lower Court in order to find out whether, on proper consideration of the facts placed before it and the applicable law, the lower Court’s decision is correct. The invitation to the higher Court to undertake the review hinges on a complaint against the decision of the lower Court. It, therefore, follows that where there is no complaint against any act or omission of the lower Court, the appellate jurisdiction of the higher Court cannot be invoked. Indeed that is why the Constitution, the Law and Practice in the administration of Justice in this country vest the right of appeal to a superior Court against any decision of a lower Court only in a person who is aggrieved by an error in the decision either on grounds of law or fact. Thus the right of appeal presupposes dissatisfaction with the decision against which it enures. See Ohuka & 6 Ors V. State (1988) 2 SC (Pt II) 139; Alhaji Kashim Shettima & 3 Ors v. Alhaji Mohammed Goni & 6 Ors (2011) 10 SC 92 and Emenike Uwanta v. INEC & 2 ors (2011) 11-12 SC (Pt II) 4.

Secondly, it is a corollary principle that an appeal properly so called can only be in relation to issues submitted to and determined by the Court against which decision the appeal lies. Accordingly, where no such issue is submitted to and determined by the lower Court, there cannot be basis for any ground of appeal against the non existing decision or an issue for determination therefrom for the appellate Courts consideration. It must, therefore, be stressed that there can hardly be a competent ground of appeal, except with leave of Court, in respect of any issue that never was in controversy between the parties for only a determination arising from such a dispute entitles the aggrieved to invoke the judicial powers vested in the appellate Court by the Constitution and the law.
Put differently, only an issue pronounced upon by a lower Court is subject of a competent appeal. See Saraki v. Kotoye (1992), 11 – 12 SCNJ 26, Olufemi Babalola & Ors v. The State (1989) 7 SC (Pt 1) 94 and United Bank for Africa Plc V. BTL Industries Ltd (2006) LPELR-3404 (SC). In the instant case leave has not been sought and obtained by the appellant to raise and argue the issue he raises in the appeal that was never considered and determined by the Court below.

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Thirdly, decisions of this Court, too numerous to count, recognise the very wide powers of a counsel, being an agent and mouthpiece, in the course of performing his professional duties, to commit his client by way of any concession or admission of facts and same may be binding on his client except same is against express authority of or retracted by the client before judgment. The decisions of this Court particularly alluded to by Chief Chris Uche SAN for the 2nd respondent in CAPPA & D’Alberto Ltd v. Akintilo (2003) 9 NWLR (Pt 824) 49 at 70, Okesuji V. Lawal (1991) NWLR (Pt 170) 661 and Okonkwo V. Kpajie (1992) NWLR (Pt 226) 633 at 655 are very apposite.
Lastly, learned respondents counsel are correct in their postulations that if indeed the appellant had withdrawn his 6th relief, through his counsel, and on the basis of the withdrawal forestalled the merits of the relief from being contested by the respondents at and determined by the lower Court, it then no longer lies in appellant’s mouth, in law and equity, to seek the consideration of such an issue now. He is estopped. See Governor Ekiti State V. Ojo (2006) ALL FWLR (Pt 331) 1298 and Mosheshe General Enterprises V. Nigerian Steel Product Ltd (1987) 4 SCNJ 11 and Section 169 of its Evidence Act 2011.
Following my examination of the synopsis of the lower Court’s decision earlier captured in this judgment, I am of the firm and considered view that the Court did not consider the merit or otherwise of appellant’s 6th relief. Rather, it struck out the relief following its withdrawal without objection by Isyaku SAN of counsel because, with the expiration of appellant’s tenure as the Governor of Adamawa State, the prayer for the relief had become “spent” thereby making its grant untenable.
I affirm the powers of Isyaku SAN, appellant’s counsel then, in the conduct of his client’s case, to make the “admission” he made that appellant’s tenure had expired and in consequence appellants relief that had become spent be discountenanced by the lower Court. The appellant cannot, either in law or equity, be allowed to now suggest that the lower Court is wrong for not considering a matter that ceased to be before it, having been effectively withdrawn by the claimant.
The lower Court, the appellant must accept, lacks the jurisdiction of granting the 6th relief that was no longer being sought by the appellant. It is trite that the Court is without power to award a claimant that which he did not claim. Though the Court may award less, it lacks the vires to award more than what is claimed or pleaded by either party to the controversy before it. As the saying goes, a Court of law not being a charitable institution, it’s duty in civil matters is limited to the grant of a proven claim only. See Etom Ekpenyong & 3 ors V. Inyang Effiong Nyang & 6 ors (1975) 2 SC 65 at 73  74, Agbi v. Ogbeh (2006) 11 NWLR (Pt 990) 65 and Awodi & anor V. Ajagbe (2015) 3 NWLR (Pt 1447) 578.
Applying these principles to the facts of the instant case, what emerges is the fact that this Court’s appellate jurisdiction under Section 233 of the 1999 Constitution as amended does not enure to the appellant who is not a person aggrieved by the decision of the lower Court. Having withdrawn his 6th relief and forestalled its consideration and determination by the lower Court, the appellant cannot, in the absence of a decision of the lower Court on the issue, invoke the appellate jurisdiction of this Court as conferred by the Constitution. See Societe General Bank Nigeria Limited V. LITUS Torungbenefade Afekoro & Ors (1999) 7 SC (Pt 111) 95, Anthony Aburime v. Commissioner of Police(1978) LPELR – 59 (SC) and Akande v. Awero & anor (1977) LPELR-318 (SC).
Learned senior appellant’s counsel seems to insist that the withdrawal of appellants 6th relief by virtue of his counsel’s admission is unauthorized. The facts before this Court do not sustain this assertion. The authority of senior appellants counsel in the conduct of the case, on the authorities, extends to compromising his clients case except same is expressly shown to be otherwise restricted. Evidence of such express limitation placed on appellant counsel’s authority remains unavailing.
Granted without conceding that there is a decision of the lower Court, on the merits, refusing the grant of appellant’s 6th relief since, with the expiration of the tenure of the appellant as the elected Governor of Adamawa State, the relief has become overtaken, spent, academic and useless, endorsing such a decision by this Court would be an abiding duty.

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Finally, learned senior counsel to the appellant needs to be reminded that a litigant’s injury is only compensated if the Court is so urged and it is granted not necessarily in the manner the relief is sought. The Court makes the grant only if the law so accommodates the claimant. Where the claimant withdraws the relief of the injury he claims and his entitlement cannot be determined in the first Place, the Court will be without the jurisdiction to compensate the injured person. Addedly, where the grant of the relief urged on the Court has become untenable and academic the Court will lack the jurisdiction of granting such a relief that has become hypothetical, of no value and unenforceable. SeeLadoja v. INEC (supra) and Marwa v. Nyako (supra).

The appellant is certainly not entirely without remedy for the injury he suffered. He at best could be paid his salary and other entitlements for the residue of his tenure he otherwise would have served but for his removal by the 1st respondent, which the lower Court having found unconstitutional rightly set aside. But this too has to be asked for by the appellant at the appropriate forum and on being considered it may be granted. Not privy of the facts on the basis of which this same relief would be awarded this Court, again, cannot proceed along this line.
Appellant’s tenure has long expired. Not only has his successor been elected, the successor is now in his second year of a four year term. These facts underline the impossibility, nay the absurdity, of the grant of appellant’s 6th relief, the chances of which has further been negated by the fact of its being withdrawn at and not having been considered and pronounced upon by the lower Court. This Court lacks the jurisdiction of dwelling on and granting the appellant the relief he seeks. I take the liberty of concluding this judgment by restating the principle outlined by this Court in the case of Prof. Edozien & 4 Ors v. Chief (Engr) Edozien (1993) 1 NWLR (Pt 292) 678thus:-
A party comes to Court for an alleged wrong done to him, or he seeks a declaration in respect of certain right. The moment he decides to exercise his unfettered right not to pursue his action, what is left for the Court is the order to be made as it is outside the Courts jurisdiction to force a party to continue an action filed by him.”

The withdrawal of appellant’s 6th relief by his counsel remains his eternal cross to bear. It is for that reason that, as a whole, I dismiss this appeal and strike out same. Parties to bear their costs.
IBRAHIM TANKO MUHAMMED, J.S.C.: The summarized version of the facts from the appellant herein which gave rise to this appeal is that the appellant was elected by the people of Adamawa State at Gubernatorial Election held for Adamawa State on the 5th day of February, 2012. He assumed office as the Governor of that State in that February for a term of four years as prescribed by Section 180 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) (the CFRN”, for short).
Sometime on or about June, 2014, the 1st respondent herein, alleged some wrongdoings (gross misconduct) against the appellant.
Based on the said allegations, the 1st respondent passed a Resolution to commence the process for the removal (impeachment) of the appellant from the office as Governor of the State. The notice of the allegations of gross misconduct was said to have been served on the appellant by substituted service through publication in some newspapers (Daily Trust and Leadership, both of 23/06/2014).
A resolution by way of a motion was passed by majority members of the 1st respondent (20 out of 25 members present and voting on 2nd July, 2014) that the allegations against the appellant be investigated. Accordingly, the 1st respondent requested the Acting Chief Judge of the State to constitute a panel to investigate those allegations against the appellant. The Acting Chief Judge constituted a seven man panel on 4th August, 2014. The said panel ordered, subsequently, that the appellant be served with both notice of the allegations and hearing notice before it on the 11th day of July, 2014. The appellant, according to the 1st respondent, failed to appear on the 11th of July, 2014 which was scheduled for the panel’s sitting. The panel sat and the 1st respondent’s witness was called to testify in support of the allegations. The panel thereafter adjourned its sitting to the next day. The appellant again was absent on that next day. The panel declared its sitting closed. It concluded

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its sittings and submitted its report to the 1st respondent on 14th of July 2014. The report was considered and adopted on the 15th of July, 2014, by two thirds majority of the members of the 1st respondent. The appellant was impeached by the 1st respondent as the Governor of Adamawa State. It is against that action taken by the 1st respondent that the appellant, aggrieved, filed his originating motion dated and filed on the 13th day of November, 2014, at the Federal High Court holden at Yola (“trial Court” for short) asking for the following reliefs:
i. A Declaration that the failure of the 1st respondent to serve the applicant impeachment notice personally is unlawful, unconstitutional, illegal, null and void as it violates the applicants fundamental right to fair hearing as guaranteed under Section 36 of the 1999 Constitution of the Federal Republic of Nigeria.
ii. A Declaration that the failure of the 2nd respondent to serve the applicant hearing notice personally is unlawful, unconstitutional, illegal, null and void as it violates the applicants fundamental right to fair hearing as guaranteed under Section 36 of the 1999 
Constitution of Nigeria.
iii. A Declaration that the setting up of the 2nd respondent by the Acting Chief Judge of Adamawa State based on the resolution of the 1st respondent after the order/ruling by the Acting Chief Judge of Adamawa State stopping the 1st respondent from constituting the 2nd respondent is, biased, malafide, unlawful, illegal and unconstitutional violation of the applicants right to fair trial as guaranteed under Section 36 of the Constitution of the Federal Republic of Nigeria.
iv. A Declaration that the setting up and composition of the 2nd respondent based on the resolution of the 1st respondent during the pendency of a suit and against a subsisting Order of the Court restraining the 1st respondent from setting up the 2nd respondent is unlawful, contemptuous, illegal, undemocratic and a flagrant violation of the provisions of the 1999 Constitution of the Federal Republic of Nigeria.
v. An Order nullifying the removal of the applicant as Governor of Adamawa State on 15th July, 2014.
vi. An Order reinstating the applicant as Governor of Adamawa State forthwith; and
vii. Such further Order or other orders as this 
Hon. Court may deem fit to make in the circumstances of this case.

In response to the Originating Motion, the 1st respondent filed a Memorandum of Conditional Appearance and a Notice of Preliminary Objection, challenging the competence of the originating Motion. The appellant filed his response to the 1st respondent’s Preliminary Objection. The Originating Motion and the 1st respondent’s Preliminary Objection were heard together by the trial Court on 2nd of February, 2015. On 21st of May, 2015, the trial Court delivered its ruling in which it held that the appellant’s action was for the enforcement of his fundamental rights to fair hearing which he had right to enforce. The trial Court however found that the suit constituted an abuse of judicial process and dismissed it.
Dissatisfied with the ruling of the trial Court, the appellant appealed to the Court of Appeal, Yola Division (the Court below). The five Justice panel of the Court below allowed appellant’s appeal in part by setting aside the ruling of the trial Court. The Court below invoked the provision of Section 15 of that Court’s Act to consider the appellant’s Originating Motion on its merit. It granted reliefs 1 – 5 of the Originating Motion. It however, struck out relief No 6.
Being aggrieved by the decision of the Court below, the appellant now appealed to this Court on three grounds of appeal. Parties filed and exchanged briefs of arguments with the appellant filing replies to new points raised in both the 2nd and 3rd respondents briefs.
The sole issue formulated by the learned SAN for the appellant, Mr. Nwokedi for the determination of the appeal is:
“Whether upon declaring his purported removal from office as Governor of Adamawa State unconstitutional, null and void, the Court below was not under a legal duty to reinstate the appellant.

Learned Senior counsel for the 1st respondent Mr. M. A Magaji, put his sole issue for determination as follows:
Given that the tenure of the appellant as the former Governor of Adamawa State expired and/or became spent on 29th of May, 2015 by Constitutional imperative, whether the learned Justices of the Court of Appeal were not right in striking out Relief No. 6 of the appellant’s Originating Motion?”

Learned SAN for the 2nd respondent, Mr. C Uche, set

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out his issue for determination as follows:
Whether the Justices of the Court of Appeal were right in striking out relief No.6 of the appellants Originating Motion in view of the fact that the tenure of the appellant had already expired and become spent as graciously conceded by the appellants counsel.

Learned counsel for the 3rd respondent, Mr. I David, identified his sole issue for detemining the appeal in the following words:
Whether in view of the fact that the tenure of office of the appellant had already expired and become spent as rightly (and) graciously conceded by his counsel, the learned Justices of the Court of Appeal were wrong in striking out the Appellants relief No.6.

My lords, it is unfortunate to start with an irking observation that neither the appellant nor any of the respondents, either in their respective briefs of arguments or in oral adumbration on the briefs of arguments filed, attempted to relate any of the issues formulated to all or any of the three (3) grounds of appeal. The only saving grace is that the learned SAN for the appellant formulated only (one) single issue for the determination of the appeal. The requirement of the law and practice is that the heavy duty is squarely on the appellant to relate any issue he formulated to the ground(s) of appeal. Although he has not done so, and in order to save the appeal, he must be presumed to have related his sole issue to all the grounds of appeal. It was almost belatedly, when his argument on the issue he formulated were challenged by the 2nd and 3rd respondents that the appellant replied that
It was only in order to drive its point home that the appellant chose to argue the sole issue from three view points, which can be regarded as sub issues. The sole issue in this appeal together with its sub issues is well founded from the grounds of appeal.

Appellants reply to 3rd respondents contention on same issues/points raised by the 2nd respondent is to the effect that:
Contrary to the 3rd respondents contention on the merit in paragraph 3.1 of its brief, the challenged submissions arose from the three Grounds of Appeal contained in the Notice of Appeal The complaint of an appellant can only be better appreciated when the grounds are read together with the particulars. The law does not allow a party to divorce the particulars of appeal from the grounds of appeal. See Peter v. NNPC (2010) 8 NWLR (Pt 1195) 175 a close look at the grounds of appeal and their particulars will show that the issue for determination as couched by the appellant and all the arguments canvassed thereon were covered by the grounds and their particulars.
(Underlining supplied for emphasis)
I think the points made by the learned SAN for the appellant in reply to the new points raised by both the 2nd and 3rd respondents in their respective briefs of arguments, are, in my view well taken. The points or objectives so raised by the said respondents, cannot, in my view again, be taken to have qualified as Preliminary Objections as contemplated by Order 2 Rule 9 (1) and (2) of the Supreme Court Rules 1999 (as amended). Thus, no decisive action can be taken to terminate an action or appeal as a result of those points or objections raised by the said respondents. So, the points or objections raised, for instance in paragraphs 3.1 to 3 9 of the 3rd Respondents brief can be considered along with the issue or grounds they challenged. As I stated earlier where there are several grounds of appeal and a sole issue is formulated by the appellant but the appellant failed to relate that issue to any specific issue or to all the issues, the appellant must be taken from all intents and purposes, to have related the sole issue to all the grounds. Except where the sole issue or the grounds of appeal are successfully challenged, the issue is the only valid criterion to lead to the determination of the appeal.
For the avoidance of any doubt, it is pertinent for me to set out the (3) three grounds of appeal filed by the appellant:
“GROUND 1
The lower Court erred in law when it held that the appellants tenure had expired and struck out Relief No.6 of the Originating Motion.
Particulars
a) Relief No.6 is seeking an order reinstating the appellant as Governor of Adamawa State forthwith.
b) The Constitution of the Federal Republic of Nigeria 1999 (as amended) granted and guaranteed the appellant a term of 4 uninterrupted years in office as Governor of Adamawa State. The term cannot be suspended or abridged.
c) In

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its judgment the Court of Appeal found that the appellants Constitutional term of office was unlawfully interrupted by the respondents when they purportedly impeached him.
d) Having found that the appellants impeachment was a nullity, the lower Court had a legal duty to ensure that the impeachment did not stand.
e) The decision of the lower Court to the effect that the tenure of the appellant had expired endorses the unlawful interruption of the appellants term of 4 years in flagrant disregard of the provisions of the Constitution and thereby occasioned a serious miscarriage of justice.
GROUND 2
The lower Court erred in law in not reinstating the appellant as the Governor of Adamawa State.
Particulars
a) It is an elementary principle of our law that where there is a wrong, there must be a remedy.
b) One of the reliefs sought by the appellant before the lower Court is an order reinstating him as the Governor of Adamawa State.
c) In its judgment, the lower Court found that the proceedings which led to the removal of the appellant was conducted in clear breach of the fundamental right of the appellant 
to fair hearing as guaranteed by Section 36 of the Constitution of the Federal Republic of Nigeria 1999 (as amended and was as such a nullity.
d) By virtue of Section 46(1) of the 1999 Constitution, anybody whose fundamental right as provided under the Constitution has been infringed is entitled to a redress.
e) Having found that the impeachment proceeding which led to the purported removal of the appellant from office was a nullity, the lower Court had the power and was indeed under a legal duty to redress the wrong.
f) The unlawful and invalid interruption of the term of the appellant as Governor of Adamawa State was an aberration and an affront on the Constitution of the Federal Republic of Nigeria which should have been struck down by the lower Court to preserve the integrity of the Constitution and as a matter of constitutional necessity.
g) The decision of the lower Court failing and or refusing to reinstate the appellant suggests that the lower Court saw no need to protect and preserve the integrity of Constitution from the respondents illegal actions.
h) By taking such decision, the lower Courts refusal to 
remedy an established wrong and its decision has thus occasioned a serious miscarriage of justice.
GROUND 3
The lower Court erred in law in striking out relief No. 6 as it did.
Particulars
a) Upon establishing a right, the question of whether a relief sought could be granted or not is a matter of law.
b) Upon finding, that the term of office of a Governor as prescribed by the Constitution had been unlawfully interrupted the next question to be determined by the lower Court was whether or not there exists a legal basis to reinstate the appellant.
c) At the stage when it found that the violence had been done to the letters and spirit of the Constitution of the Federal Republic of Nigeria the lower Court had just one obligation which was to ensure that the sanctity of the Constitution was restored.
d) The Constitution does not allow for any abridgment or compromise of the term of office of a Governor. It is trite that no individual or authority in Nigeria can validly agree to abridge or compromise a term or period prescribed by the Constitution.
e) By striking out Relief No.6 based on the concession of the appellant, the 
lower Court shirked away from its duty to right a Constitutional wrong, and thereby occasioned a serious miscarriage of justice. (Underlining for emphasis)
It is trite law that the complaint of an appellant can hardly be properly understood where there is a dichotomy between the mother/main ground and its “children” or particulars. In fact the law does not allow a party to divorce the particulars of a ground from the main ground of appeal. Particulars of error alleged in a ground of appeal are intended to highlight the complaint against the decision appealed. They are the specifications of errors or misdirection which show what the complaint against the decision is all about. And, in order to determine whether or not a ground of appeal is relevant to the issue formulated in an appeal, that ground must be read in conjunction with the particulars to make it a complete ground and must be based on the issue in controversy between the parties See: Ibrahim v. Mohammed (2003) 6 NWLR (Pt. 817) 615; Diamond Bank v. P.I.C. Ltd. (2009) 18 NWLR (Pt.172) 67, Peter v. NNPC (2010) 8 NWLR (Pt. 1195) 175.
Having taken a terse look at the issue formulated by the

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appellant and the grounds of appeal as set out above, I am in agreement with the learned counsel for the appellant that the issue for determination as formulated by the appellant and all the arguments canvassed thereon, are covered by the grounds of appeal and their particulars. All the particulars of the three grounds of appeal were hinged on constitutional rights of the appellant and the duty of the Court below in upholding the provision of the Constitution. The main complaints or objections of the 2nd and 3rd respondents is that the argument or submissions made by the appellant (pages 6 – 17) of the appellant’s brief do not relate to the sole issue which stemmed from the three grounds of appeal. This, as I see it, is pure misconception, perhaps, aimed at terminating the appeal at a preliminary stage. This attempt must fail and it has totally failed as the objections or new points raised lack substance. Such objections raised by the 2nd and 3rd respondents are hereby dismissed. The appeal shall now be considered on its merit.
In making his submissions on the sole issue he formulated, the learned senior counsel for the appellant splitted the issue into three (3) points:
i. The duty of the Court to uphold the Constitution and the Rule of Law.
ii. The duty of the Court to make consequential orders in order to give effect to its judgment.
iii. The impropriety of the resolution of the 1st respondent which purported to overrule or set aside the ruling of the High Court of Adamawa State.
In my consideration of the sole issue, I am taking the issue whole-hog. I may, in course of deliberation, be traversing from one point to another, as splitted by the appellant. But first, permit me to consider the issue of striking out of relief No.6 of the reliefs prayed by the appellant in his Originating Motion considered by the Court below. I think the record of proceedings of that day is the best evidence of what transpired. l feel compelled to reproduce some parts thereof which I consider relevant:
“On Wednesday the 10th day of February, 2016 Parties absent.
Appearances: Ibrahim lsiyaku, SAN with Uche Nwokedi, SAN appear for appellant/respondent, with them , Habu Abdu, Esq; B A Oyefeso Esq; Asimiyu Ayodeji, Esq; and I P Dick, Esq.
Chief L. D. Nzadon, Esq ; appears for 1st respondent with Abubakar 
Saad Esq; Festus Keyamo, Esq; appears with Ahmed lsa, Esq; for 3rd respondent E.O Odo, Esq appears for applicant/party sought to be joined with U. J konteganyiga, Esq M. A Umar, Esq. and J. Williams, Esq.
2nd Respondent not represented.
Registrar – 2nd Respondent was served a hearing notice on 08- 02-2016 personally.”


Some motions were moved and a Ruling delivered later in the day. The Court then resumed:
Appearance as before with the exception of Mr. Odo. Nwokedi – This appeal is against the decision of the Federal High Court delivered on 21-05-16 …. I adopt the said brief and rely entirely on the submissions therein, and pray the Court to grant the reliefs sought.
At this stage, Isiyaku Ibrahim, SAN, took over arguing the appeal.
I submit that the principal issue that will necessitate urgency in this matter is the issue whether or not, assuming the appellant succeeds in the appeal, the tenure of the appellant has expired on 07-02-16. The consequential relief as contained in Relief 6 of the Originating Summons (Motion) has expired as it has been overtaken by events. This leaves us with the issue as 
to whether or not the impeachment proceedings were proper. We submit that all the evidence required to determine the issue of the impropriety of the impeachment is already before the Court and the Court can go ahead to determine the suit. I concede that the claim for REINSTATEMENT has been overtaken by effluxion of time, but as a suit brought under the Fundamental Rights Enforcement Rules, it could be heard urgently as sui generis proceedings. There is no provision in the said Rules that provide for expeditious hearing of the suit. I rely however on Akumiya v. Attorney-General Anambra State (1977) LPELR 394 (SC) 1977) 5 SC… In sum, we urge the Court to allow the appeal, and to hold that there was a breach of the right of the appellant in failure to serve him with a hearing notice.
I urge the Court to allow the appeal and set aside the proceedings of the panel and to annul the impeachment proceedings, particularly the panels Report.

Judgment in the appeal was adjourned by the Court below to the next day following i.e. the 11th day of February, 2016 at 11:00a.m. The Court below exercised its power under Section 15 of its Act;

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determined the Originating Motion by granting reliefs 1-5 but refusing and striking out relief No. 6. It thus, allowed the appeal in part by setting aside the decision of the trial Court of 21-05-15.
It is the contention of learned senior counsel for the appellant that the right imbued on a political office holder is not a personal right and any breach of such right entails a breach of the Constitution as well as a breach of the rights of the electorates who voted and the Court has a duty to protect such rights. The appellant as Governor of Adamawa State derives his powers under Section 180(1) and (2) of the Constitution and his tenure must begin and end in accordance with the Constitution. Learned SAN for the appellant argued that the appellant cannot be prevented from exercising his functions on the grounds of what he or his counsel said and the Court below relied on the averment to hold that his tenure as Governor of Adamawa State has ended after the Court below had set aside his impeachment by the 1st respondent. Learned SAN argued further that it is not the duty of the Court below to take direction from a party or the parties on whether or not the tenure of the appellant as Governor of Adamawa State has ended. It is rather the duty of the Court below to give such a direction to a party or parties. The Court below, it is argued was playing the proverbial Esau to have based its decision refusing Relief No. 6 on the mere pedestrian opinion of the appellant instead of allowing itself to be guided by the Constitution and the powers of interpretation and construction reserved to it. Neither Section 180(1) and (2) of the Constitution nor any other provision of the Constitution gives the Court below such power to bring the tenure of a Governor to an end based on the Governors or his counsel’s mere averment(s) that the Governors tenure has ended. Such a decision, he maintained, clearly infringes or runs contrary to the Constitutions organic principles or systems for determining a Governors tenure as provided by Section 180 (1) and (2) of the Constitution. The decision of the Court below, according to the learned SAN, is unconstitutional and should be set aside. It is immaterial that the appellant conceded that his tenure was over.
I think what is paramount in deciding this point is
(i) was there any concession at any point in time by the appellant or his counsel in respect of the appellant’s tenure of office as the Governor of Adamawa State? (ii) Can a legal practitioner engaged by a party make a concession or admission in a case for and on behalf of that Party?
Your Lordships, from the Court belows proceedings of 10/02/2016. It is clear that the senior counsel for the appellant, Mr. Ibrahim made a concession expressly that relief No.6 on the Originating Motion which sought for the reinstatement of the appellant as the Governor of Adamawa State to complete his term of four (4) years in office from the date of his impeachment had expired and overtaken by events. For the avoidance of doubt, Mr. Ibrahim, SAN, who continued from where Mr. Nwokedi, SAN, stopped said, inter alia:
“… assuming the appellant succeeds in the appeal, the tenure of the appellant has expired on 07-2-16.
The Consequential relief as contained in Relief 6 of the Originating Summons (Motion) has expired as it has been overtaken by events….. I concede that the claim for reinstatement has been overtaken by effluxion of 
time.
(Underlining supplied for emphasis)

In its judgment of 11th February, 2016, the Court below as per the lead judgment of Awotoye, JCA, while recapitulating the submissions of Mr. Ibrahim, learned SAN for the appellant (appearing with Mr Nwokedi) on appellant’s issue three, stated:
“Learned SAN for the appellant submitted that this is a proper case for this Court to invoke its general jurisdiction under Section 15 of the Court of Appeal Act, being in as much as good position as the trial Court since the evidence was by way of affidavit evidence… to proceed to consider the evidence and make a decision instead of remitting the case back to the trial Court … we were urged to resolve issue No.3 in favour of the appellant and to set aside and annul the proceedings of the entire impeachment exercise but conceded at the hearing that since the four year fixed tenure of the appellant had elapsed on 7/2/2016 by effluxion of time the relief of his being restored back to office as Governor of Adamawa State had become spent and no longer claimed by the appellant.
(Underlining supplied for emphasis)

In resolving

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issue No.1 in favor of the appellant the Court below made the following finding:
“And the trial Court not having determined the Originating Motion before it on the merit, I shall in the interest of justice proceed to do so.”
At the end, the Court below held, inter alia as follows:
“l hold that the impeachment proceedings which led to the removal of the appellant, a nullity. l hereby set aside the decision of the Federal High Court Yola delivered on 21/5/2015. In its place I hold that reliefs 1 – 5 of the Originating Motion are granted.
In the course of this appeal the learned appellants counsel graciously conceded that Relief No. 6 in the Originating Motion is spent and cannot be granted. Consequently, in view of the expiration of the tenure of the appellant on 7/2/2015, Relief No. 6 of the Originating Motion, being spent, is therefore struck out. The appeal succeeds in part.


What else could one say? What baffles me most, I must say is that Mr. Nwokedi, SAN, the present learned SAN, for the appellant who authored the appellant’s brief of argument and prosecuted this appeal in this Court, was among the team of counsel who appeared for the appellant at the Court below. Himself and Mr. Ibrahim SAN made submissions for the appellant before the Court below. It was to his hearing (and consent, I can say) that Mr. Ibrahim, SAN made the above concession which he (Mr. Nwokedi) never denied or disowned up till today. He is the one now putting up a different proposition! I am sure it is not that he forgot the concession he together with Mr. Ibrahim, SAN made before the Court below. l begin to wonder whether one can eat one’s cake and have it back again. In other words, can the law permit him to blow hot and cold at the same time? Or, can he approbate and reprobate? The answer definitely is in the negative. However, if in the event that Mr. Nwokedi, SAN is oblivious and or should I say that he has forgotten the position of the law on the fiduciary relationship existing between a legal practitioner and his client, I should respectfully remind him that a counsel representing his client in a civil cause or matter has got enormous powers of making admissions or concessions on behalf of his client which bind the client. I will only cite few decisions of this Court on the issue and I will be contented;
Firstly in the case of Okesuyi v. Lawal (1991) 1 NWLR (Pt 170) 661, this Court held as follows:
A counsel can, while functioning as such, make admissions of fact which could be binding on his client particularly where such admission was made for the purpose of dispensing with proof at the trial and when the client failed to retract the admission before judgment.
Secondly in Okonkwo v. Kpajie (1992) 2 NWLR (Pt. 226) at 633 Nnaemeka – Agu, JSC (Rtd) had this to say:

I must note that a counsel who is representing his client in a civil cause or matter in litigation has got very wide powers of making admissions on his clients behalf. He is the agent and mouth piece of his client in the litigation. So, he has implied authority to make admissions on behalf of his client during the progress of the litigation, either for purpose of dispensing with proof at the trial, when they are regarded as conclusive, or incidentally as to any of the facts in the case, when they are prima facie evidence only. See on this Langley v. Oxford 5. L.J. Ex. 166, also Holt v. Square RY & M. 282. See also Phipson on Evidence (11th Ed.) pp. 332-334, para 738-740. In the instant case, no issue has been raised to show that counsel made the concession in question without due instruction or authorization by his clients. Indeed, in the circumstances in which it was made, he must be deemed to have been instructed and authorized to make it.
It was also held in Cappa & D’Alberto Ltd v. Akintola (2003) 9 NWLR (Pt. 824) 49 at P.70 that:

Counsel can, in the course of performing his professional duties, commit his client either by way of a specific undertaking or by clear admission.
Thus, it is not the correct position of the law as contended by the learned senior counsel for the appellant that it is immaterial that the learned SAN, Mr. Ibrahim, conceded that appellants tenure was over. Such concessions or admissions by counsel which have been made BONA FIDE and not contrary to express instruction by client, are indeed material and binding. It is the law that parties as litigants (and this includes their legal representatives) are not allowed to approbate and reprobate in the conduct of their case. See Ezomo v. AG Bendel (1986) 4 NWLR (Pt. 36) 448 at P. 462; Kayode v. Odutola (2001) 11 NWLR (Pt. 725) 659.

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The learned SAN for the appellant, in my view, has no reason whatsoever to accuse the Court below when, on the appellants request it struck out relief No. 6 of the reliefs contained in the said Originating Motion. There is nothing before this Court to indicate that the learned SAN for the appellant Mr. Ibrahim, betrayed the trust reposed in him by the appellant or that he acted contrary to the instruction given to him by the appellant when he conceded that Relief No 6 is spent, overtaken by event and no longer worthy of pursuing. It is relevant, here, to cite the case of Attorney General of the Federation v. A.l.C Ltd & Ors (1995) 2 NWLR (Pt. 378) 388, where Ogundare, JSC (Rtd and now late) stated:
A counsel retained to conduct a case has general authority to consent to the withdrawal of the case and a compromise is within his apparent authority and binding on the client notwithstanding that the client may have dissented unless the dissent was brought to the notice of the opposite party at the time. The apparent authority with which a counsel is clothed when he appears to conduct a case is to do everything which in the exercise of his discretion he may think best in the interest of his client in the conduct of the case if within the limits of his apparent authority he enters in an agreement should he be held binding on his client. But this general authority is predicated on the existence of a counsel/client relationship.
Therefore, a counsel can, in the course of performing his professional duties, commit his client either by way of a specific undertaking or by clear admission. It is rather, too late, in the day for Mr. Nwokedi SAN to raise such a protest or objection. This Court is not in a position to allow learned counsel for the appellant to resile from the concession he made for and on behalf of the appellant. The issue of relief No.6 of the Originating Motion is laid to rest. Further discussion on it will become academic which this Court is not ready to embark upon.

Now, point No. 2 raised by the learned senior counsel for the appellant is on the duty of the Court to make consequential orders to give effect to its judgment. He cited the Latin maxim: UBl JUS IBI REMEDIUM, that where there is a right there is a remedy. He explained further that the Court is enjoined to provide a remedy where a legal right is established. The Court should look into the substance of the action rather than the form. And, that having found that the appellant was wrongly and illegally removed from office the proper order which the Court below would have made in the circumstances, is an order reinstating him as Governor of Adamawa State. The appellant is entitled to a remedy. The people of Adamawa State who elected the appellant to govern them are entitled to a remedy. They should not be made to go empty handed. Learned SAN cited and relied on the case of BFI Group Corp. v. BFF (2012) 18 NWLR (Pt 1332) 2009. He submitted that the failure of Court below to exercise this power to grant the consequential relief has occasioned a miscarriage of justice. Learned SAN concluded his submission on this point by a poser: What benefit will a declaration (without more) that the appellant???s impeachment was wrongful and a breach of the Constitution be to the appellant and to the generality of the populace who gave him the mandate to govern them? Should the technical position that the appellant conceded that his tenure ought to have ended in February, before judgment was given, be allowed to destroy the efficacy of the judgment which the Court below has handed down in favour of the appellant? He cited In support, the cases of Obunike v. Nnamdi (2012) 12 NWLR (Pt.1314) 327 at p.353; Ameachi v. INEC (2008) 5 NWLR (Pt.1080) 227.
My lords, a consequential order, as is very well known to you is that it is an order which gives effect to a judgment. It gives meaning to Judgment. It is traceable or flowing from the judgment prayed for and made consequent upon reliefs claimed by the plaintiff. It must be incidental and flow directly and naturally from reliefs claimed by the plaintiff. It is an offshoot of the main claim and it owes its existence to the main claim. Obayabona v. Obazee (1972) 5 SC 247; Inakoju v. Adeleke (2007) 4 NWLR (Pt.1025) 423.

In Awoniyi v. Reg Trustees of AMORC (2000) 10 NWLR (Pt 676) 522, this Court re-stated the purpose of a consequential order
“The purpose of a consequential order is to give effect to the decision or judgment of the Court but not by granting an entirely new, unclaimed and/or incongruous relief which was not contested by the parties at the trial and neither did it fall in alignment with the original reliefs claimed in the suit nor was it in the contemplation of the parties that such relief would be subject-matter of a formal executory judgment or order against either side to the dispute. A consequential order may also not be properly made to give to a party an entitlement to a relief he has not established in his favour. (Underlining for

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emphasis)
In view of the above, the main relief which was asked for by the appellant in his Originating Motion was relief No.6 for reinstatement of the appellant to the Governorship office of Adamawa State. That relief was abandoned by the appellant and struck out by the Court below. Thus, no consequential order, in my view, can flow from that relief as it was attacked by the fatality of death. The Court below was right to refuse to grant any consequential order in that circumstance.
However, with the benefit of a hindsight vis-a-vis other declaratory orders granted in respect of Reliefs 1 – 5 of the Originating Motion, I agree with the learned counsel for the appellant that the appellant is entitled to a remedy and he ought not to go back home empty handed. BFI Group Corp v. B.F.F. (Supra).
I also agree with the learned SAN for the 1st respondent that appellants partial success in his appeal at the Court below was a huge benefit which accrued to him by the declaration nullifying the impeachment. But as the residue of his tenure in office was affected by effluxion of time, it is certainly clear, even to the appellant that he could not be reinstated to office. Further, in the current democratic dispensation, another regime had already taken over the administration of Adamawa State. Unless an undemocratic civil “coup detre”, was to be struck, no other person except the one democratically elected and sworn in (in the 2015 election) would occupy the office of Governor of Adamawa State. My lords should be reminded that this Court in a couple of cases dealt with almost a similar issue. Permit me to start by the case of Ladoja v. INEC (2007) 12 NWLR (Pt.1047) 115. In this case, Ladoja, like the appellant herein, sought for an extension of his term of office for the (11) eleven months he was out of office as a result of his impeachment. Senator Rashidi Adewolu Ladoja (the appellant) was elected as Governor of Oyo State in the general election conducted on 19th April, 2003. He took his oath of allegiance and oath of office as Governor of Oyo State on the 29th May 2003. By force of law he was to spend a four year term in office calculated from the 29th May, 2003, the day he took the oath. Sometime in 2005, as a result of political dispute, the House of Assembly of Oyo State through a faction of the members of the House got him removed by a purported impeachment. He was replaced by his Deputy. Ladoja challenged the impeachment in the Federal High Court, the Court of Appeal and the Supreme Court. By the unconstitutional impeachment, Ladoja was unlawfully kept out of office as Governor for a period of eleven months. By an Originating Summons dated and filed on 15th March, 2007, at the Federal High Court, Abuja, Ladoja sought to find out:
Whether having regard to the provision of Section 180 of the Constitution of the Federal Republic of Nigeria 1999 (which relates to the tenure of office of Governor of a State) and the judgment of the Supreme Court in suit No. SC.272/2006 nullifying the purported removal of the plaintiff from office as Governor of Oyo State of Nigeria the period of eleven months for which the Governor was illegally removed from office, forms part of the plaintiffs four years terms of office as Governor of Oyo State.
Ladoja then claimed some declaratory reliefs, amongst which are the following:
3. A declaration that the purported removal of the plaintiff, a sitting Governor in breach of this provision of the Constitution shall not affect or interfere with the certainty of tenure of office of the plaintiff as Governor as provided for in Section 180(2) of the Constitution.
4. A declaration that by virtue of Section 184 of the Constitution of the Federal Republic of Nigeria, 1999 and the decision of the Supreme Court of Nigeria nullifying the purported removal of the plaintiff from office as Governor of Oyo State, the period of eleven months during which the Governor was removed from office does not form part of the plaintiff???s term of four years as Governor of Oyo State.
5. A declaration that by virtue of the provisions of Section 180 (2)(a) of the Constitution of the Federal Republic of Nigeria, 1999 the plaintiff is entitled to remain in 
office until 29th April 2008 when his four years certain term of office as Governor of Oyo State shall have expired.
The Federal High Court dismissed the action holding that Ladoja was not entitled to any of the reliefs claimed by him in the Originating Summons in the light of the provision of Section 178(1) and (2) of the Constitution. On appeal to Court of Appeal the appeal was allowed and an order was made transferring the matter to the National Assembly Election Tribunal, Oyo State, to hear and determine it. On further appeal to the Supreme Court, the Court resorted to its extant power under Section 22 of the Act. The Court gave comprehensive interpretation to relevant Sections of the Constitution and Section 22 of the Supreme Court Act.
My lords, I will only refer to those decisions in Ladoja’s case as are relevant to the appeal on hand:

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“On the 11 months period Ladoja was out of office, Katsina Alu, JSC (as he then was), in his contribution, eloquently stated:
It was contended that the period of eleven months during which the Governor was removed from office does not form part of the plaintiffs term of four years as 
Governor of Oyo State. This claim was unmeritorious. The Constitution of the Federal Republic of Nigeria 1999 did not grant this Court the power to grant an extension of tenure to a Governor who has been improperly impeached. To hold otherwise would amount to reading into the Constitution provisions that are not there.”
Ogundare JSC (Rtd) commented:
It is in the light of this legal position that plaintiff/appellants counsel wanted this Court to discountenance the period of 11 months when he was illegally impeached in the computation of the 4 years tenure granted him under Section 180(2) of the Constitution. Much as one may be in sympathy with the plaintiff/appellants cause, it seems to me that to accede to his request will occasion much violence to the Constitution. This Court can interpret the Constitution but it cannot rewrite it. In awareness of the possibility that an occurrence may prevent a Governor from being sworn in on the same date as his counterparts in the country, Section 180(2) states that tenure be computed from the date the oath of allegiance and oath of office is taken. There is no similar provision to protect Governor improperly impeached. I am therefore unable to perform a duty which the Constitution has not vested in the Court. Regrettably, the plaintiff/appellants case must fail.”
Aderemi, JSC (Rtd) gave his opinion as follows:
All the plaintiff/Appellant is calling for determination is whether having regard to the provisions of Section 180 of the 1999 Constitution and the Judgment of this Court in SC. 272/2006 referred to above nullifying the removal from office as Governor of Oyo State of Nigeria, the period of eleven months for which he as the Governor was illegally removed from office form part of his four year term of office as the Governor. This question calls for the interpretation of the provisions of the Constitution and no more. The power of interpretation is lodged in the judex. In exercising this interpretative jurisdiction, the judex must draw his inspiration from consecrated principles. What are these principles? They are: where the words used in couching the provisions of a Statute or Sections of the Constitution are clear and unambiguous, a judex must accord such words used, their ordinary and grammatical meanings without any colourations. More often than not, Courts are always enjoined in the course of exercising their interpretative jurisdiction to find out the intention of the legislators. But, there is no magical wand in that advice. The intention of the legislators or put bluntly the intention of our National Assembly, Federal level or the State House of Assembly at the State level is to be found in no other place other than words used by the legislators in framing the provisions of the Constitution. Occasionally the law passed by the legislators may not meet the modern day requirements, it may be defective. Let that defect be put right by the legislators. A judge is far better employed if he puts himself to the much singular task of deciding what the law is.
It is true that by the impeachment foisted on him by the State House of Assembly which impeachment was later declared null and void by Court, he was kept out of office for a period of eleven months. It is for the reason of the impeachment that kept him out of office for a period of eleven months that he is praying the Court to declare that he is entitled to a term of four uninterrupted years in office as 
Governor of Oyo State commencing from the 29th May 2003 and consequently, to hold that by virtue of the provisions of Section 180(2)(a) of the Constitution applicable, he is entitled to remain in office until 29th April, 2008 when, according to him, what he described as his term of four uninterrupted years as Governor of Oyo State would expire.
I have again carefully read the aforesaid provisions of the Constitution, the word uninterrupted was not used to qualify the four years tenure to which the plaintiff/appellant was entitled as Governor of Oyo State. It is a firm canon of interpretation of the provisions of a Statute or the Constitution that words not used by the legislators must not be imported into the wordings of the provisions by ‘a judex’. Law making 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 government to engage in an unwelcome trespass into the territory of the legislative

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arm of 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 requirement of the time. Let that defective law or law that does not meet with the aspirations of the citizens be put right by the legislators. Even if there was no impeachment, and a Governor had run his term smoothly, for the period he may be on leave during the tenure of his office, the Deputy Governor must have to stand in for him. That is a form of interruption which the Constitution does not take cognizance of. The reliefs sought are, in the main, declaratory and injunctive in nature. As I have said above, the power to grant declaratory reliefs is very wide, almost unlimited except limited by the discretion of the Court. But that discretion of the Court must be exercised judicially and judiciously and in the absolute interest of justice. Taking an overall view of the facts of this case, it is my considered view that the interest of justice will never be served by the grant of the declaratory and injuctive reliefs as they relate to the elongation of the tenure of the office of the appellant as Governor of Oyo State beyond 29th May, 2007.
That notwithstanding, the common law principle of Ubi Jus lbi Remedium entitles a party having right which has been violated, to seek for a corresponding remedy. The only remedy sought by the appellant was for a reinstatement as a Governor of Adamawa State. That, however, was not to be, having been affected by effluxion of time and that the main relief for that (Relief No 6 of the Originating Motion), having been withdrawn and struck out. A consequential order cannot be made on a non-existing claim. Further, on reliefs 1 – 5 of the Originating Motion which were all declaratory and granted by the Court below, no apparent claim was made in respect of any or all of them. Thus, no consequential order could have been made by the Court below. And, lastly, on the omnibus relief, this is incapable of containing any claim such as appellant’s entitlements by way of salary/wages and or other perquisites of office that could have accrued in favor of the appellant for the period he was unlawfully thrown out of office. Even if such a claim is made therein a separate relief which stands on its own, no Appeal Court can grant it as the veracity of the claim has not been tested by the trial or any High Court where pleadings and evidence on same have to be led. It is quite unfortunate.
For this and the more detailed reasons contained in my learned brother, M.D. Muhammad JSCs judgment, I am contented that the appeal lacks merit and it should be dismissed. I dismiss the appeal I make no order as to costs.
OLABODE RHODES-VIVOUR, J.S.C.: I have had the advantage of reading in draft the leading judgment of my learned brother, Muhammad JSC. I agree with his lordship that the appellant cannot be reinstated to the office of Governor of Adamawa State on the facts of this case. I intend to explain why.
The appellant was elected Governor of Adamawa State at the Gubernatorial Elections held on 5/2/12. His tenure was to run from sometime in February 2012 to February 2016. In June, 2014 members of the Adamawa State House of Assembly alleged some wrongdoings against him and passed a resolution to commence impeachment proceedings. Court order granted at the instance of the appellant to restrain the Adamawa State House of Assembly from proceeding with the impeachment proceedings went unanswered. They remained resolute and determined to impeach the appellant. They succeeded. The appellant was subsequently impeached. He went to Court seeking six reliefs. It is only the 6th relief that is relevant in this appeal, It reads:
“An order reinstating the applicant as Governor of Adamawa State forthwith.”

The learned trial judge dismissed the suit for being an abuse of Courts process.
Undeterred, the appellant filed an appeal. The Court of Appeal allowed the appeal and held in the penultimate paragraph thus:
“…. I hold that the impeachment proceedings which led to the removal of the applicant is a nullity. I hereby set aside the decision of the Federal High Court Yola delivered on 21/5/15. In its place I hold that reliefs 1 to 5 of the originating motion are granted.”

Reliefs 1 to 5 of the originating motion are of no relevance whatsoever to the sole issue in this appeal.
The appellant won in the Court of Appeal. He has come here on a sole issue for determination which reads:
Whether upon declaring his purported removal from office as Governor of Adamawa State

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unconstitutional, null and void, the Court below was not under a legal duty to reinstate the Appellant?

Earlier on in this Ruling I did say that the appellant’s relief 6 in the Courts below was:
“For an order reinstating the applicant as Governor of Adamawa State forthwith.”

Why did the Court of Appeal not reinstate the appellant as Governor of Adamawa State?
The Court of Appeal explained why in the concluding paragraph of its judgment on page 850 of the Record of Appeal when it said that:
“… In the course of this Appeal, the learned Appellant’s counsel graciously conceded that relief No.6 in the originating Motion is spent and cannot be granted. Consequently, in view of the expiration of the tenure of the Appellant on 7/2/2016, relief No.6 of the Originating Motion being spent is therefore struck out.

It must be very clear now that the appellant is appealing against what he conceded to in the Court of Appeal.
An appeal is not for retrying the action, rather it is rehearing on the Record of Appeal. The Appeal Court reviews the decision of the lower Court to find out if it came to the correct decision. A party should thus be consistent in stating his case and consistent in proving it. He would not be allowed to take one stance in the trial Court then another stance on appeal. Justice is much more than a game of hide and seek. It is an attempt, our human imperfection notwithstanding to discover the truth. See  Ajide v. Kelani (1985) 3 NWLR (Pt. 12) P.251
In the trial Court the appellant’s relief No.6 reads:
“An order reinstating the applicant as Governor of Adamawa State forthwith.
In the cause of the appeal, i.e in the Court of Appeal learned counsel for the appellant, Mr. I. Isiyaku SAN conceded that relief No.6 is spent and cannot be granted in view of the fact that the tenure of the appellant expired on 7/2/16. Relief No.6 was accordingly struck out. In this appeal the sole issue for determination in the appellant’s brief is relief No.6, that was struck out in the Court of Appeal after the appellant’s counsel conceded the fact that it could no longer be granted. A party is to be consistent with the case he sets up and not shift ground in another Court as it suits his fancy. The appellant cannot concede to the fact that his term as Governor of Adamawa State has since expired and come here to ask for the same relief he conceded to. He is estopped from coming to this Court to seek an order of this Court granting what he has conceded to. See
Dakolo v. Rewane-Dakolo (2011) 6-7 SC (Pt III) P.104
Makun v. FUT Minna (2011) 6-7 SC (Pt. V) P.  32
Cardoso v. Daniel & Ors (1986) 17 NSCC P. 207

The appellant’s tenure as Governor of Adamawa State was to run from around 7/2/2012 and end about 7/2/16. On 11/2/16 the Court of Appeal delivered its judgment in which it said that the impeachment proceedings against the appellant was wrong but did not reinstate the appellant to office as Governor of Adamawa State. Aside from the fact that learned counsel for the appellant conceded that relief No.6 is spent and cannot be granted, the Court of Appeal said that:
“….. In view of the expiration of the tenure of the appellant on 7/2/16, Relief No.6 being spent is therefore struck out.”

Now, the appellant seeks by this appeal to be reinstated as Governor of Adamawa State after his tenure expired on 7/2/16.
The simple issue is:
Whether the tenure of office of Governor of a State can be extended to compensate for period out of office due to unlawful impeachment.
It is clear from the judgment of the Court of Appeal that the tenure of the appellant as Governor of Adamawa State was wrongly brought to an end through his impeachment on 15 July 2014. The Court of Appeal declared the impeachment illegal on 11 February 2016. He was kept out of office for about nineteen months. By this appeal the appellant seeks the elongation of his tenure to cover the time he was illegally out of office. It is now about twenty-nine months since the appellant has been out of office. Section 180 (2) of the Constitution provides that a Governor shall have a tenure of 4 years from the date he takes his oaths of office. There is no provision in the Constitution to cover illegal impeachment.
The Courts are under a Constitutional duty to reinstate the appellant to office after it found that he was illegally removed from office, but this cannot be done due to the fact that his term of 4 years in office has long since expired.
Provisions of the Constitution are to be applied and not rewritten by the Court, and so no Court has the

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power to extend the period of four years prescribed for a Governor of a State beyond his terminal date in office.
There is nothing in the Constitution to protect a Governor wrongly impeached. The sole issue in this appeal for determination cannot be granted.
See Ladoja v. INEC (2007) 12 NWLR (Pt.1047) P.115.
It is for this and the more detailed reasons in the leading judgment that I too dismiss this appeal.
MARY UKAEGO PETER-ODILI, J.S.C.: I am in total agreement with the judgment just delivered by my learned brother, Musa Dattijo Muhammad, JSC and to show my support, I shall make some comments.
The Appeal is from the judgment of the Yola Division of the Court of Appeal wherein the learned justices allowed the appeal in part, granting appellant’s reliefs 1-5 of his claim while striking out relief 6 which prays for an order reinstating the appellant as Governor of Adamawa State.
The said six reliefs are recast hereunder as follows;
(i) A DECLARATION that the failure of the 1st respondent to serve the applicant impeachment notice personally is unlawful, unconstitutional, illegal, null and void as it violates the applicant’s fundamental right to fair hearing as guaranteed under Section 36 of the 1999 Constitution of the Federal Republic of Nigeria.
(ii) A DECLARATION that the failure of the 2nd respondent to serve the applicant hearing notice personally is unlawful, unconstitutional, illegal, null and void as it violates the applicant’s fundamental right to fair hearing as guaranteed under Section 36 of the 1999 Constitution of the Federal Republic of Nigeria.
(iii) A DECLARATION that the setting up of the 2nd respondent by the Acting Chief Judge of Adamawa State based on the resolution of the 1st respondent after the Order/Ruling by the Acting Chief Judge of Adamawa State stopping the 1st respondent from constituting the 2nd respondent is biased, malafide, unlawful, illegal and unconstitutional violation of the applicant’s right to fair hearing and fair trial as guaranteed under Section 36 of the Constitution of the Federal Republic of Nigeria.
(iv) A DECLARATION that the setting up and composition of the 2nd respondent based on the resolution of the 1st respondent during the pendency of a suit and against a subsisting Order of the Court 
restraining the respondent from setting up the 2nd respondent is unlawful, contemptuous, illegal, undemocratic and a flagrant violation of the provisions of the 1999 Constitution of the Federal Republic of Nigeria.
(v) AN ORDER nullifying the removal of the applicant as Governor of Adamawa State on 15th July, 2014.
(vi) AN ORDER reinstating the applicant as Governor of Adamawa State forthwith; and
(vii) SUCH FURTHER ORDER OR OTHER ORDERS as this Honourable Court may deem fit to make in the circumstances of this case.

The background facts and details which followed are well set out in the lead judgment and I shall not repeat them save for references when necessary.
On the 13th day of October, 2016 day of hearing, learned counsel for the appellant, Uche Nwokedi SAN adopted his Brief of Argument filed on the 16/5/16 in which was crafted a single issue which is thus:-
Whether upon declaring his purported removal from office as Governor of Adamawa State unconstitutional, null and void, the Court below was not under a legal duty to reinstate the appellant.

From the 1st respondent, Mahmud Abubakar Magaji, SAN of counsel adopted its Brief of Argument filed on 9/9/2016 and he formulated a sole issue, viz-
Given that the tenure of the appellant as former Governor of Adamawa State expired and/or became spent on 29th of May, 2015 by constitutional imperative, whether the learned Justices of the Court of Appeal were not right in striking out Relief No. 6 of the appellant’s Originating Motion.
Chief Chris Uche SAN, learned counsel for the 2nd respondent adopted his Brief of Argument filed on 31/8/16 and he crafted a single issue which is as follows:-
Whether the learned Justices of the Court of Appeal were right in striking out Relief No.6 of the appellant’s Originating Motion in view of the fact that the tenure of the appellant had already expired and become spent as graciously conceded by the appellant’s counsel.

O. M. Atoyebi learned counsel for the 3rd respondent adopted his Brief of Argument filed on 24/6/2016 which was settled by

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Igbodo David. A sole issue was also formulated which is as follows:-
Whether in view of the fact that the tenure of office of the appellant had already expired and become spent as rightly graciously conceded by his counsel, the learned Justices of the Court of Appeal were wrong in striking out the appellant’s relief No.6.
The appellant filed three Reply Briefs in response to the Briefs of 1st, 2nd and 3rd respondents respectively on the 12/10/16 and deemed filed on the 13/10/16.
The issues as differently crafted are asking the same question and so it really does not matter which one is used in the determination of the appeal.
SOLE ISSUE:
This is the question whether the Court of Appeal was right in striking out Relief No. 6 of the appellant’s Originating Motion in view of the fact that the tenure of the appellant has already expired and become spent as graciously conceded by the appellant’s counsel.

Learned Counsel for the appellant contended that a person elected into a political office in Nigeria is not there on his mandate but on the mandate of the people who elected him into office in accordance with the provision of Constitution. That it is futile for the Court below to find that the impeachment of the appellant was null and void without making an order for reinstatement. That where the Court finds that the provisions of the Constitution has been breached, the Court has a bounden duty to make such orders as to protect the Constitution from being ridiculed. He cited Inakoju v. Adeleke (2007) 4 NWLR (Pt. 1025) 423 at 638; Gadi v. Male (2010) 7 NWLR (Pt..1193) 225 at 286 etc.
That this Court should apply Section 22 of the Supreme Court Act and do that which the Court of Appeal ought to have done pursuant to Section 15 of the Court of Appeal Act with regards to the grant of consequential reliefs.
For the 1st respondent, it was submitted that the appellant through his counsel conceded that Relief No.6 that is reinstatement of the appellant as Governor to complete his term of four years from the date of his impeachment had expired and become overtaken by events. That there is no evidence that the appellant’s counsel misrepresented that position at the Court of Appeal. He cited A. G. Federation v. A.I.C. Ltd & Anor (1995) 2 NWLR (Pt. 378) 388; Okonkwo v. Kpajie (1992) NWLR (Pt.226) 633 at 655; Ogboru v. Uduaghan (2013) NWLR (Pt.1370) 33.

Learned counsel for the 1st respondent contended that an appeal is a continuation of hearing and so the appellant cannot change the case at this stage and so the appellate Court does not have jurisdiction to entertain reliefs which the Lower Court could not grant. He cited Oredoyin v. Arowolo (1989) NWLR (Pt.114) 172 at 211; A.G. Anambra State v. Okeke (2002) 12 NWLR (Pt.782) 575 at 509; Akinbola v. Phisson Fisko (Nig.) Ltd (1991) 1 NWLR (Pt.167) 270 at 285; Ajide v. Kelani (1985) 3 NWLR (Pt.12) 248 at 269; Section 180 of the 1999 Constitution etc.
That the entire appeal has in effect and in law become an academic exercise because even if the appellant succeeds, the victory is going to be of no utilitarian value to the appellant or anybody. He cited Oke v. Mimiko (NO.1) (2014) 1 NWLR (Pt. 1388) 225 at 254-255.
It was further submitted for the 1st respondent that what is in issue is an ungrantable consequential order for the appellant, He referred to Umeanadu v. A. G. Anambra State (2008) 9 NWLR (Pt.1091) 175; Babatunde v. Pan Atlantic Shipping And Transport Ltd (2007) 12 NWLR (Pt.1050) 43 At 157; Eze & Ors v. Governor, Abia State & Ors(2014) 14 NWLR (Pt. 1426) 192.
Learned counsel for the 2nd respondent contended that counsel to a party has general authority to compromise proceedings on behalf of his client provided counsel acts bona fide and not contrary to express instructions. That in the instant case, there is nothing to indicate that the appellants counsel betrayed his trust or acted outside the instructions given to him to concede the Relief. Also, that there was no evidence that the appellant’s counsel misrepresented that position. He relied on Okonkwo v. Kpajie (1992) NWLR (Pt.226) 633 at 655; Cappa & D’Alberto Ltd v. Akintilo (2003) 9 NWLR (Pt.824) 49 at 70 etc.
It was canvassed for 2nd respondent that appellant has not imputed that his counsel acted mala fide in making the concession and admission. Also not established that counsel did not understand or appreciate the implication, meaning or

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consequence of the concession. He cited Okesuji v. Lawal (1991) 1 NWLR (Pt.170) 661.
That what the appellant is doing herein and at this stage is changing the course of his case thereby approbating and reprobating at the same time on the said Relief No. 6., learned counsel citedAbeke v. Odunsi & Anor (2012) LPELR 20640 (SC) per Ariwoola JSC.
For the 2nd respondent, it is contended that what is at play is the appellant wanting the Court to grant a relief not asked for. He cited Awodi & Anor v. Ajagbe (2015) 3 NWLR (Pt.1447) 578 at 600.
That the time fixed by the Constitution for a Governor to hold office cannot be extended, elongated, expanded or stretched beyond the cumulative two terms of 8 years. He cited Marwa v. Nyako (2012) 6 NWLR (Pt.1296) 199
Learned counsel for the 3rd respondent submitted that the law is settled that parties must restrict themselves to the grounds of appeal filed and not go outside nor formulate issues different from issues covered by those grounds. That the matter of upholding the Constitution and Rule of Law does not arise from the appellants three Grounds of Appeal and so the grounds and issue should be struck out for incompetence. He cited Emesim v. Nwachukwu (1999) 3 NWLR (Pt 596) 560 at 604; Obiche v. Adetona (2009) All FWLR (Pt 478) 345 at 362-363.
In reply on points of law the line with the Reply Briefs of the appellant, learned counsel said it was outside the instruction given to counsel in the Court below to make the concession on Relief No. 6.
In summary, the stance of the appellant is that the Court below having declared the appellant’s removal from office as Governor of Adamawa State unconstitutional, null and void has a constitutional duty to reinstate the appellant. That the Court below having failed to so reinstate the appellant, it is now up to the Supreme Court to do the needful and carry out the reinstatement.
The opposing view of the respondents is that the given fact is that the constitutional tenure of the appellant as Governor expired and/or became spent on 29th May, 2015 and so the lower Court was right in striking out the Relief No. 6, seeking reinstatement of the appellant as Governor and that striking out with the consent of the appellant and so the case he is pursuing here in the Supreme Court is inconsistent with his case at the lower Court. That this appeal and what it seeks is a gross abuse of Court process. That the appeal is an academic exercise which is not tenable.
The position of the appellant herein is being defended on the principle of a litigant not being visited with the mistake of counsel in that the counsel for the appellant inadvertently conceded to the striking out of Relief No. 6 which had sought for reinstatement and learned counsel for the appellant herein sent in additional authorities in that regard.
A visit to the several authorities in respect to what a Court faced with an act of counsel which had compromised the interest of his client or litigant would be helpful. See Doherty v. Doherty (1964) NSCC 213.
In that case, there was an application by the defendants/appellants for the restoration of their appeal pursuant to the provisions of Order 7 Rule 17 (4) FSC Rules. It appears by the affidavit in support of the motion that although the applicant’s solicitors were served with summons in accordance with Order 7 Rule 7 (1) to attend and settle the records of appeal, they were neither present nor represented before the Registrar who thereafter proceeded to settle the records and to fix the conditions of appeal as provided by Order 7 Rule 7(2).
It was held by the Supreme Court per Coker JSC:-
“It occurs to us that the failure to comply with the conditions of appeal is entirely due in this case to the fault of the appellants’ solicitors and to shut them out from the hearing of the appeal on the merits is to hold them personally responsible for the negligence of their solicitors.”
This Court has in the case of:- Akinpelu v. Adegbore (2008) 10 NWLR (Pt.1096) 531 at 555 per Tobi JSC, stated thus:-
“A special circumstance is of a particular kind which is unique, beyond ordinary, regular and/or usual circumstance. A special circumstance stands out on its own, punctuated with some amount of specialism. Mistake of counsel

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qualifies as a special circumstance. In other words, the Court would readily exercise its discretion to extend the period prescribed for doing an act if it is shown to the satisfaction of the Court that the failure by a party to do the act within the period prescribed was caused by the negligence or inadvertence of his counsel. See Doherty v. Doherty (1964) 1 All NLR 299; Ahmadu v. Salawu (1974) 11 SC 43; Bowaje v. Adediwura(1976) 6 SC 143 at 147.”
In Dangote General Textile Products Ltd v. H.A. (Nig.) Ltd (2013) 16 NWLR (Pt. 1379) 60 at 90 per Ogunbiyi JSC:-
“….The Courts deciding rights of parties are “to do justice and not punish them for mistakes they make”. The failure to abide by the Rules is clearly a mistake of counsel and which should not be visited on the clients as it will only occasion injustice.”
I have set out in the foray into earlier judicial authorities on what a Court faced with the negligence, mistake or inadvertence of counsel would do. It has to be said without equivocation that indeed while a party or litigant cannot suffer for the mistakes of his counsel, it is a situation that is not automatic irrespective of a given special or unique presentation such as the prevailing one where the exercise of the discretion of the Court facing the indiscretion of counsel is within the context of a constitutional provision on the tenure expiration as relates to that litigant or party.
I shall seek anchor in this Court’s decision Ladoja v. INEC (2007) 12 NWLR (Pt.1047) 119 at 160 where this Court held thus:-
“It was contended that the period of eleven months during which the Governor was removed from office does not form part of the plaintiff’s term of four years as Governor of Oyo State. This claim was unmeritorious. The Constitution of the Federal Republic of Nigeria, 1999 did not grant this Court the power to grant an extension of tenure to a Governor who has been improperly impeached. To hold otherwise would amount to reading into the Constitution provisions that are not there.”
A follow up at 169 is thus:-

“It is in the light of this legal position that plaintiff/appellant’s counsel wanted this Court to discountenance the period of 11 months when he was illegally impeached in the computation of the 4 years tenure granted him under the Section 180 (2) of the Constitution. Much as one may be in sympathy with the plaintiff/appellant’s cause, it seems to me that to accede to his request will occasion much violence to the Constitution but it can interpret the Constitution but it cannot rewrite it. In awareness of the possibility that an occurrence may prevent a Governor from being sworn in on the same date as his counterparts in the country, Section 180 (2) states that tenure be computed from the date the oath of allegiance and oath of office is taken. There is no similar provision to protect a Governor improperly impeached. I am therefore, unable to perform a duty which the Constitution has not vested in the Court. Regrettably, the plaintiff/appellant’s case must fail.”
At page 635 of that case, this Court per Tobi JSC said-
“After all, it is good law that Courts of law do not give orders in vain and in the context of this case, an order given after 29th May, 2007 restoring the 3rd respondent to his office of Governor will certainly be in vain.”

This Court in a recent case involving the appellant Marwa v. Nyako (2012) 6 NWLR (Pt.1296) 199 at 387 stated that Section 180 (1) and (2)(a) of the 1999 Constitution of the Federal Republic of Nigeria has prescribed a single term of 4 years and if a second term, another period of 4 years and not a day long. Therefore no Court in the land has the power to extend that period of either the 4 years single term or the second term of another 4 years and so if peradventure something such as an illegal impeachment eroded into that 4 year term, it is too bad as that period of infraction cannot be brought back or an extension of time to add up to what was lost. The reason is simple and that is that it is not for the Supreme Court or any other Court in the land to add to or subtract from what the Constitution has provided. The Courts are enjoined to give effect to the clear, plain and unambiguous stipulations in the Constitution. See FRN v. Doriye (2011) 13 NWLR (Pt. 1265).
One is constantly reminded that Courts do not give orders in vain and so since the Constitution has decreed a four year tenure for the appellant which was to end on 29th May, 2015 which date had long passed, what the appellant now seeks is akin to a pipe dream which is unreachable in the circumstance on ground and so assuming the argument that learned counsel at the Court below has made a mistake, it is unfortunate but there is nothing the Court can do in relation to that relief No.6 asking for reinstatement as it has been overtaken by events. The spirit of the Constitution is to provide certainty in the polity and to avert instability and so the provision for 4 years tenure which cannot be extended even for one day. See Marwa v. Nyako (supra); Oke v. Mimiko (No.1) (2014) 13880 225 AT 254-255.

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I cannot resist quoting Onnoghen JSC (as he then was) in All Nigeria Peoples Party (ANPP) v. Alhaji Mohammed Goni & 4 Ors (2012) 7 NWLR (Pt.1298) 147 at 182 where he stated and I quote:-
“It has been held by this Court in a number of cases including consolidated appeal Nos SC.141/2011; SC.266/2011; SC.267/2011; SC.282/2011 SC.356/2011 SC.357/2011 Brig, Gen. Mohammed Buba Marwa & Ors. v. Admiral Murtala Nyako & Ors. Delivered on 27th January 2012 reported in (2012) 6 NWLR (Pt.1296) 199 that the time fixed by the Constitution is like the rock of Gibraltar or Mount Zion which cannot be moved; that the time cannot be extended or expanded or elongated or in any way enlarged; that if what is to be done is not done within the time so fixed, it lapses as the Court is thereby robbed of the jurisdiction to continue to entertain the matter.”

In the light of the above and the better reasoning in the lead judgment, I see no way out for the appellant in this appeal and that he seeks and so I dismiss the appeal and abide by the consequential orders made.
CLARA BATA OGUNBIYI, J.S.C.: My learned brother Dattijo Muhammad, JSC has obliged me his draft Judgment in this appeal and I am in complete agreement that the appeal is devoid of any merit and I hereby dismiss same also in terms of the lead judgment.
It is intriguing to say that the appellant’s appeal is against the part of the judgment of the Court of Appeal, Yola Division delivered on 11th February, 2016 wherein the lower Court struck out a relief which the appellant at the hearing of the appeal expressly conceded was spent, overtaken by event and ungrantable. The appeal arose from the judgment of the Federal High Court, Yola delivered on 21st May, 2015 which had dismissed the appellant’s case for constituting an abuse of Court process. I say the case is intriguing because in its judgment on appeal before it, the lower Court nullified the impeachment of the appellant for lack of fair hearing and compliance with the provision of Section 188 of the 1999 Constitution (as amended), set aside the decision of the trial Court and granted all the appellant’s relief with the exception of Relief No. 6. The relief in question is for the reinstatement of the appellant as the Governor of Adamawa State and was abandoned by the said appellant and accordingly struck out for being spent and over taken by events.
It is worthy of note also that at the proceedings of 10th February, 2016, the appellant’s counsel conceded that the four (4) years tenure of his client as the Executive Governor of Adamawa State had been spent. In its judgment, this is what the lower Court held and said:-
“In the course of this appeal, the learned Appellant’s counsel graciously conceded that relief No. 6 in the originating motion is spent and cannot be granted. Consequently, in view of the expiration of the tenure of the appellant on 7/2/2016, Relief No. 6 of the originating motion, being spent, is therefore struck out .”
The sole issue raised by the appellant is:-
“Whether upon declaring his purported removal from office as Governor of Adamawa State unconstitutional null and void, the Court below was not under a legal duty to reinstate the appellant?”
On a careful perusal of the foregoing issue, the appeal at hand is essentially against the decision by the lower Court wherein it struck out the said spent, expired, overtaken and abandoned relief No. 6. I must say on the onset that the conclusion arrived at by the lower Court on 10th February, 2016 (reproduced supra) could not have been otherwise but was rightly arrived at. In other words, if the relief was spent on the expiration of the appellant’s tenure, what more was expected by the appellant? The Relief No. 6 on the originating motion which gave the appellant the right to action was struck out. The said relief was gone and can no longer be a subject of matter of appeal. The surviving reliefs were all granted in favour of the appellant. He had no reason to complain against a judgment given in his favour. In fact he does not qualify under the definition of an appellant. Collins Learners’ Dictionary defines an ‘Appellant’ as:
“Someone who is appealing against a Court’s decision…..”

Being a bonafide beneficiary, the purported appellant has no reason to appeal. I wish to add further that a client is bound by his counsel’s concession made on his behalf. SeeMaku v FUT, Minna (2011) 18 NWLR (Pt. 1278) 190 at 235 wherein this Court held that once a counsel is briefed or engaged to handle a matter, he has complete control over the case to decide in his own understanding as how best to conduct his client’s case.

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The appellant in this case is estopped from going back on the assignment undertaken by his counsel on his behalf. He is bound by it firmly.
My brother Dattijo Muhammad, JSC has dealt comprehensively with the issue at hand and I need not belabor the point. In the result, I therefore adopt his judgment as mine and in terms of his lead judgment also find the appeal without any merit and hereby dismiss same. I further abide by the order made as to costs.
CHIMA CENTUS NWEZE, J.S.C.: My Lord, Musa Dattijo Muhammad, JSC, obliged me with the draft of the leading judgment just delivered now. I, entirely agree with His Lordship that, being incompetent, this appeal ought to be struck out. This contribution will only be circumscribed to the agitation apropos the authority of counsel to have made concessions on behalf of the appellant at lower Court.
At pages 802-803 of the record, Isyaku SAN, for the appellant, canvassed the view that:
“… the consequential relief as contained in Relief 6 of the Originating Summons [an order re-instating the applicant as Governor of Adamawa State forthwith] has expired as it has been overtaken by events…. I concede that the claim for re-instatement has been overtaken by effluxion of time…” [Italics supplied for emphasis] The lower Court’s reaction to the above submission was captured thus:
In the course of this appeal, the learned appellant’s counsel graciously conceded that Relief No 6 in the Originating Motion is spent and cannot be granted. Consequently, in view of the expiration of the tenure of the appellant on 7/2/2016, Relief No 6 of the Originating Motion, being spent, is therefore struck out. [page 851 of the record] At the hearing of this appeal before this Court, learned senior counsel for the appellant inveighed against the judgment of the lower Court. In his view, the only remedy that would have met the justice of the appellant’s case was his re-instatement. In simple terms, he invited this Court to vacate the lower Court’s order striking out the spent Relief 6 – an order hinged on the concession of the appellant counsel before that Court.
My Lords, the authority of counsel, duly, instructed to conduct a case, to assume the plenitude of control over it, has never been doubted, Adewunmi v. Plastex (Nig) Ltd [1986] 17 NSCC (Pt 11) 863 -864. Being dominus litus in regard to the control and conduct of his client’s case in Court, albeit, to the best of his ability, FRN v. Adewunmi [2007] 10 NWLR (Pt. 1042) 399, his power to compromise the case, subject only to the qualification that he is not in fraud of his client, has neither been impugned nor his competence to submit to judgment been impeached, Mosheshe General Merchants Ltd v. Nigeria Steel Products Ltd [1987] 2 NWLR (Pt 55) 110; Akanbi v. Alao [1989] NWLR (Pt 108) 118.
Hence, while in control thereof, his client is bound by all action orbit within the sphere of his actual authority without any express or implied limitation, Afegbai v. AG, Edo State [2001] 14 NWLR Pt. 733 425. As this Court intoned, most magisterially, in AG of the Federation v. A.I.C. Ltd and Ors (1995) 2 NWLR (Pt 378) 388:
Counsel retained to conduct a case has general authority to consent to the withdrawal of the case and a compromise is within his apparent authority and binding on the client not withstanding that the client may have dissented unless the dissent was brought to the notice of the opposite party at the time. The apparent authority with which counsel is clothed when he appears to conduct a case is to do everything which in the exercise of his discretion he may think best in the interest of his client in the conduct of the case if within the limits of this apparent authority he enters into an agreement should be held binding on his client.. (Italics supplied for emphasis]
On the above premises, I endorse the compelling submissions of counsel for the respondents. In their view, since the appellant in this appeal, had through his senior counsel, Isiyaku, SAN, withdrawn his sixth relief at the lower Court – an action that led that Court into its conclusion now being impugned before this Court – it would be impermissible for the selfsame appellant to seek to repudiate the authority of his counsel. It cannot be otherwise. As this Court held in Mosheshe General Merchants Ltd v. Nigeria Steel Products Ltd (supra):
Counsel who has been briefed and has accepted the brief… can compromise the case. He can submit to judgment. Sometimes he could filibuster, if he considers it necessary for the conduct of his case but subject to

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caution by the Court. The only thing open to the client is to withdraw instructions from the counsel or if the counsel was negligent sue in tort for professional negligence. Such are the powers but such are also the risks. (Italics supplied for emphasis)
It is for these, and the more detailed, reasons in the leading judgment that I, too, shall enter an order dismissing this appeal,
Appeal dismissed.
AMIRU SANUSI, J.S.C.: I had the opportunity of reading the draft copy of the judgment just rendered by my learned brother M.D. Muhammad JSC. I agree with my lords reasons and conclusions. I will however herein below add few comments of mine just for purpose of emphasis and support of the lead judgment.
The Appellant was the Executive Governor of Adamawa State. The 1st Respondent sometimes in June 2004, impeached the Appellant based on allegation of gross misconduct. When the process of impeachment commenced, the Appellant obtained an injunction from the High Court of Adamawa State, restraining the 1st Respondent from the planned impeachment of the 1st Appellant. In flagrant disobedience of the Court order, he proceeded to remove the Appellant. In spite of Court orders and pending suit challenging the propriety of the process, the 1st Respondent proceeded with the Appellant’s impeachment. Aggrieved by the failure of the 1st Respondent to follow the laid down procedure for removal of a sitting Governor, the Appellant filed Originating Motion dated and filed on the 13th November, 2014 praying the Federal High Court, Yola, for an order nullifying his removal and sought an order reinstating the Appellant as Governor among others. In its ruling, the Court held that the suit constituted an abuse of trial High Court process and struck out and declined jurisdiction. It should be noted, that the trial Court did not Pronounce of the merit on the Appellant’s Originating Motion because it felt that it had no jurisdiction.
Dissatisfied with the ruling of the trial Court, the Appellant appealed to the Court of Appeal (the lower Court) and the Court of Appeal allowed the appeal in part. The lower Court declared the impeachment process unconstitutional, null and void but refused to reinstate the Appellant because his tenure might have expired in February 2016. Piquet by the decision of the lower Court refusing to order his reinstatement, the Appellant has now appealed to the Supreme Court. Parties filed and exchanged briefs and proposed sole issue for determination each therein.
ISSUE FOR DETERMINATION
The sole issue relates to the refusal of the lower Court to reinstate the Appellant upon declaring his purported removal null and void. The learned counsel to the
Appellant argued that the Court has a duty to protect the rule of law and uphold the Constitution. He argued that it is not the duty of the lower Court to take direction from a party or parties on whether or not the tenure of appellant as Governor has ended or rather to give such a direction to parties or a party. He argued further that Section 180 (1) & (2) do not only protect the interest of the Governor but also the interest of general public who gave him their mandate. He submitted that where the Court finds that the provisions of the Constitution have been breached, the Court, has a duty to make such orders as to protect the Constitution from being ridiculed. He stated that the Court below, having rightly stated that the impeachment was done in violation of the provision of Constitution, ought to have made consequential order to reinstate the Appellant. He argued that the lower Court did not exercise its discretion judiciously for its refusal to reinstate the Appellant. Learned counsel submitted that the decision of the lower Court purporting to declare the tenure of the Appellant spent or overtaken by events, is of no moment. He submitted further, that the reading of Section 180(1) (2) of the Constitution implies that a person elected as Governor of a State shall hold office for four years starting from when he took oath of office and Oath of Allegiance.
The 1st Respondent also formulates lone Issue for determination. It read, whether the lower Court was not right in refusing an order of reinstatement of the Appellant. The learned counsel to the 1st Respondent referred to the concession of the Appellant’s senior counsel, that the issue of reinstatement has been overtaken by events. He argued that a counsel can in the course of performing his professional duties commit his client either by way of specific undertaking or by clear admission. He referred to the case of CAPPA & D’ALBERTO LTD v. AKINTILO(2003) 9 NWLR (Pt. 824) 49 at 10. He contended further, that the Appellant had not shown that his counsel did not have his instruction to concede that Relief No. 6 was spent. He therefore submitted that the concession was made on behalf of the Appellant. He prayed the Court to disallow Appellant’s attempt to resile from the concession and its consequences in this appeal. It was submitted further, that a

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party must be consistent in his case and not to change like the weather in climatology. He argued that the Appellant having conceded relief no. 6 cannot turn around to challenge the judgment delivered based on his concession at the lower Court. He prayed the Court not to allow the Appellant to approbate and reprobate at the same time on the said relief no 6. He referred to the case of INTERCONTINENTAL BANK LIMITED v. BRIFINA LTD (2012) 13 NWLR (Pt. 1316) when it was held thus:-
“A party must be consistent in his claim and he will not be allowed to approbate and reprobate over the issue…”

He therefore arraigned that it is not open to the Appellant to canvass before this Court, a relief already conceded and abandoned at the Court. He argued further, that the Constitution does not provide any extenuating circumstances for elongation of the tenure of a Governor except under Section 182 (3) of the 1999 Constitution as amended, when the federation is at war and the president considers that it is not practicable to hold election in which case the National Assembly may by resolution extend the period of four years by six month. He referred to the case of ANPP v. ALH. GONI & ORS (2012) 1 NWLR (Pt.1298) 147 at 182 where it was held thus:-
“…. the time fixed by Constitution is like the rock of Gibraltar which cannot be moved that the time cannot be extended or expanded or elongated or in any way enlarged..”
He also referred to the case of LADOJA v. INEC (2001) 12 NWLR 12 (Pt. 1047) where the Court referred his tenure elongation to compensate him for the eleven months. He therefore submitted that flowing from the above decisions and constitutional provision referred to above, the tenure of the Appellant cannot be extended. He also referred to the case of EZE & Ors v. Gov Abia State & Ors (2014)14 NWLR (pt 1426) 192 where this Court refused making consequential order of reinstatement. He therefore urged the Court to resolve this lone issue against the Appellant and dismiss the appeal. The argument canvassed in the 2nd and 3rd respondents’ brief of argument are essentially the same. They are tailored towards the argument of the 1st Respondent and it will be mere repetition to summarise same again here.
APPELLANT’S REPLY TO 1ST RESPONDENT BRIEF OF ARGUMENT. 
On the issue of inconsistency, the learned counsel to the Appellant argued that it has referred consistent cases in all the Courts including this Court. He submitted that the Appellant’s case has been misunderstood. He argued that the case of the Appellant at the trial Court which it maintained at the Court below is that the Appellant has a constitutional mandate to hold office for uninterrupted term of four years. He submitted therefore, that all the cases cited by the learned Respondent’s counsel on concession or on inconsistency at Parag. 4. 10 – 4. 27 of the 1st Respondent’s brief do not apply to the instant case. He argued that there are circumstances in which the authority of counsel to a party to compromise proceedings on behalf of his client, will not stand, such as where the counsel betrayed the trust or acted contrary to the instruction given to him by the party whom he represents. He argued that there is nothing to indicate that the Appellant’s counsel acted within the instruction given to him to concede to relief no.6 at the Court below. Counsel argued that even if there is such concession, it was unilaterally and arbitrarily made by the Appellant’s senior counsel without recourse to due consideration of the interest of the Appellant. He distinguished the case of MARWA v. NYAKO (supra) and LADOJA v. INEC (supra) and submitted that they are not applicable. He urged the Court to grant the relief sought by the Appellant and to reinstate him as the Governor of Adamawa State.
The Reply of the Appellant to the 2nd and 3rd Respondents are similar to the Reply to 1st Respondent filed by the Appellant’s counsel as summarised supra and needs not be summarised again here.
I think in order to properly appreciate the background facts of this appeal it will be pertinent to set out the entire reliefs sought by the appellant when he approached the trial Court to oblige him with them. The six reliefs read as below:-
1. A DECLARATION that the failure of the 1st appellant to serve the Applicant impeachment notice personally is unlawful, unconstitutional, illegal, null and void as it violates the Applicant’s fundamental right to fair hearing as guaranteed under Section 36 of the 1999 Constitution of the Federal Republic of Nigeria;
ii. A DECLARATION that the failure of the 2nd Respondent to serve the Applicant Hearing notice personally is 
unlawful, unconstitutional, illegal, null and void as it violates the Appellant’s fundamental right to fair hearing as guaranteed under Section 36 of the 1999 Constitution of the Federal Republic of Nigeria;
iii. A DECLARATION that the setting up of the 2nd Respondent by the Acting Chief Judge of Adamawa State based on the resolution of the 1st Respondent after the Order/Ruling by the Acting Chief judge of Adamawa State stopping the 1st

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Respondent from constituting the 2nd Respondent is, biased, malafide, unlawful, illegal and unconstitutional violation of the Applicant’s right to fair hearing and fair trial as guaranteed under Section 36 of the Constitution of the Federal Republic of Nigeria.
iv. A DECLARATION that the setting up and composition of the 2nd Respondent based on the resolution of the 1st Respondent during the pendency of a suit and against a subsisting Order of the Court restraining the 1st Respondent from setting up the 2nd Respondent is unlawful, contemptuous, illegal, undemocratic and a flagrant violation of the Provisions of the 1999 Constitution of the Federal Republic of Nigeria;
v. AN ORDER nullifying the removal of the Applicant as Governor of Adamawa State on 15th July, 2014;
vi. AN ORDER reinstating the Applicant as Governor of Adamawa State forthwith; and
vii. SUCH FURTHER ORDER OR OTHER ORDERS as this Honourable Court may deem fit to make in the circumstances of this case.

It can be noted that while arguing his case before the lower Court, the learned senior counsel for the appellant Isyaku Ibrahim, SAN at a point made a far-reaching submission with regard to the 6th relief supra, which also led to a serious concession made by him when he informed the Court, inter alia as follows:-
“The consequential relief as contained in Relief 6 of the originating summons has expired as it has been overtaken by events. These leaves us with the issue as to whether or not the impeachment proceedings were proper. We submit that all the evidence required to determine the issue of the impropriety of the impeachment is already before the Court and the Court can not go ahead to determine the suit. I concede that the claim for reinstatement has been overtaken by effluxion of time.. In sum we urge the Court to allow the appeal and to hold that there was a breach of the right of the Appellant in failure to serve him a hearing notice… Set aside the proceedings of all panel and to annul the impeachment proceedings particularly the panel’s report.”(or emphasis supplied by me)
The lower Court with regard to Relief No 6, at page 851 of the record, acceded to the learned appellant’s senior counsel’s request when it held thus:
“In the course of the appeal, the learned appellant’s counsel graciously conceded that Relief No.6 in the Originating motion is spent and can not be granted Consequently, in view of the expiration of the tenure of the Appellant on 7/2/2016, Relief No.6 of the originating motion being spent is therefore struck out.”

It is rather bizarre and intriguing to see and note that despite all that had transpired especially the submissions and argument posed on Relief no.6, the present learned senior counsel for the appellant picked the issue of striking out of Relief No.6 again which was initiated by the appellants’ senior counsel made it a ground of appeal before us and is now pressing hard on this Court to grant his already struck out Relief No 6.
It is not in dispute, that Mr. lsyaku SAN of learned counsel for the appellant had earlier made an admission and concession with regard to the implication or far reaching consequences of Relief No.6, before he urged the lower Court to strike out that relief because as he put it, “it was overtaken by events and that effluxion of time had rendered that relief to be spent”. The present learned senior counsel now representing the appellant before us who incidentally was part of the team of counsel who appeared for the same appellant when the Originating Motion was argued at the Court below is now appearing in this appeal is putting a different proposition and is now trying to revive Relief No 6 which Mr. lsyaku SAN while leading him at the lower Court had successfully urged that Court to strike out that relief. In other words, the present learned senior counsel for the appellant Mr. Nwokedi SAN now wants to eat their words (i.e. himself and Mr. Isyaku SAN’s) by trying to renege or resile their earlier admission on Relief No. 6 and their prayer to the trial Court to strike out that relief before the Court conceded to their request.
The law is settled, that a counsel/legal practitioner has a duty to conduct a case and has general authority to consent to the withdrawal of a case or any part of the reliefs earlier sought and can compromise within his apparent authority and such compromise he makes is binding on his client, notwithstanding that the client may have dissented unless the dissent was brought to the notice of the adverse party at the time. See Ogboru & Anor v. Uduaghan & Ors (2013) LPELR 2080 (SC) or (2013) 13 NWLR (Pt 1370) 33; AG of Federation v. AC Ltd & Ors (1995) 2 NWLR (pt.378) 388.

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 It is my view therefore, that Mr. Nwokedi SAN cannot be heard now trying to rubbish the submission of Mr. Isyaku, SAN made at the lower Court which he was even part of the team of counsel that represented the appellant on the day lsyaku SAN made such far reaching admission and concession, when he sought and obtained the lower Court’s order striking out Relief No.6 because it was no longer a live issue in view of effluxion of time.
Still on Relief No.6 that the learned senior counsel for the appellant Mr. Nwokedi SAN wants to now revive and pursue, I think it will not be out of place if one considers the impropriety of that relief. On the said relief, it was prayed by the appellant’s senior counsel that the appellant be reinstated to the seat of Governor of Adamawa State. The impropriety of such relief is that even if such relief was not withdrawn and struck out earlier, it will be very difficult, if not absurd, to make such order or grant it now, especially in view of the facts that it can be judicially noticed that at present, there is a democratically elected occupant of that seat the appellant’s now wants to be reinstated on, who was elected under a different political dispensation, party and from a freshly conducted general election. Courts do not make orders in vain, but even then, if such request is entertained or granted or acceded to now, what will become of the present occupant of that seat who had not even been made a party to the present suit right from the outset? Will Adamawa State not be put in a chaotic situation? Your guess will as well be mine.
Again, one can not loose sight of the fact that no Court has the power to elongate the period or tenure of political office holder which was enshrined in the Constitution which creates that office, such as President or Governor of a State. Any attempt to do so is unconstitutional and will lead to a chaotic situation and cause gross injustice or may lead to political unrest or uproar. This Court in its several of judicial authorities was emphatic on its lack of power to elongate tenure of office of a Governor. For instance, in Marwa v. Nyako NWLR (2012) 6 NWLR (pt.1296) 199 this Court while interpreting the provisions of Section 180 (1) and (2) (a) of the Constitution of the Federal Republic of Nigeria 1999 stated that that provision has prescribed a single term of 4 years and another 4 years for second term, which can not be extended, expanded or increased with even one day. No Court in Nigeria therefore has power to extend such period or tenure. Also in Ladoja v. INEC (2007) 12 NWLR (pt.1047) 119, this Court also while considering the purport of the same provisions, stated that the 1999 Constitution as amended did not grant it the power to grant an extension of tenure to a Governor who has been improperly impeached. It held that to hold otherwise, amounts to reading what is not in the said Constitution.
As a corollary, I must state here, that this Court in this instant appeal lacks the power to grant the Sixth relief even if it had not earlier been withdrawn by the appellant’s senior counsel and which was struck out by the lower Court, in view of the implication and far reaching consequences of such relief if so granted and also in view of the fact, that it will amount to elongation of the tenure of office of the present appellant, coupled of course, with effluxion of time even though his impeachment was rightly declared as improperly and illegally done or made by the 1st respondent.
Thus, in the light of all that I have said supra, and also for the more detailed reasons given in the lead judgment of my learned brother, I also see no merit in this appeal. It deserves to be dismissed and I accordingly do same. I endorse the consequential order made in the leading judgment.

Appearances

Uche Nwokodi, SAN with him, S. I. Ameh (SAN), I. P. Dick, C. A Nwokodi and Lady D. N. Obodonkwu- For Appellant

AND

Mahmud Abubakar Magaji, SAN with him, Amina zukogi (Miss), Chris Kelechi Udeoyibo, Esq., M. M. Grema (Mrs.), U. M Medugu (Miss), Muzzammil Yahaya, Esq., Adekola I. Olawoye, Esq., Merilyn Chuku (Miss), and N. A. Bandawa, Esq. -for 1st Respondent.

Chief Chris Uche, SAN with him, Gordy Uche (SAN), Isaac Anumudu, Esq., James Odiba, Esq., Kanayo Okalor, Esq., Emmanuel Okorie, Esq., Isaac Nwachukwu, Esq., Chukwudi Maduka, Esq., Chukwudubem Chukwumerije, Esq., Olakunle Lawal, Esq., Moses Udoh, Esq., James Ebbi, Esq., Francis Nisisegbunan, Esq. and Chiamaka Agu (Miss)- for the 2nd Respondent.
O.M. Atoyebi, Esq. with him, Igbodo David, O.O. Aweda, Esq., U.O. Nsungwara (Miss), F.G. Akwuchi (Miss) and Monday Paul, Esq. -for 3rd Respondent. –For Respondents

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