Nigerian Law

Emodamori Again Analyses Ondo D. Gov’s Legal Chances Against Impeachment

FUNDAMENTAL RIGHTS SUIT INSTITUTED BY THE ONDO STATE DEPUTY GOVERNOR AGAINST HIS ANTICIPATED IMPEACHMENT;

A FUTILE VOYAGE IN THE EYES OF THE LAW.

I have had the benefit of reading media reports, including the social media post of the indefatigable Babatope Okeowo, Media Adviser to the Ondo State Deputy Governor, on a suit filed by the latter, Hon. Alfred Agboola Ajayi, at the Federal High Court, Abuja, seeking, amongst others, reliefs relating to his anticipated impeachment by the Ondo State House of Assembly.

The Certified True Copy of the Suit, with No: FHC/ABJ/CS/684/2020: HON. ALFRED AJAYI AGBOOLA V. INSPECTOR GENERAL OF POLICE & 5 OTHERS, as published on 6th July, 2020 by Mr. Babatope Okeowo, has six Respondents, to wit: (1) Inspector General of Police, (2) Commissioner of Police, Ondo State, (3) The Director-General, Department of State Security Services, (4) Department of State Services, (5) The Speaker, Ondo State House of Assembly, and (6) Ondo State House of Assembly.

There are nine reliefs or prayers sought in the case, out of which only two are directed against both the Speaker of the Ondo State House of Assembly (5th Respondent) and the Ondo State House of Assembly (6th Respondent). Those two reliefs are itemized as relief numbers 6 and 7 in the Suit, and are reproduced below:

“6. AN ORDER restraining the 5th and 6th Respondents and other   members of the Ondo State House of Assembly from using the 1st to 4th Respondents to harass, intimidate, or arrest members of the Ondo State House of Assembly loyal to the Applicant for the purpose of illegally removing the Applicant as the Deputy Governor of Ondo State;

7. AN ORDER restraining the 5th and 6th Respondents and other members of the Ondo State House of Assembly from circumventing the provisions of section 188(6) or other parts of the section in the exercise of their powers under Section 188 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) in determining the right to fair hearing of the Applicant.”(sic)

The Suit, as shown on the face of the Court process, was filed at the Federal High Court, Abuja on 26th June, 2020 on behalf of the Deputy Governor, by Dr. J.O Olatoke SAN, FCIArb together with eight (8) other Lawyers, including my inseparable friend, Tolu Babaleye Esq., who I understand is a member of the Olusola Oke SAN pre-primary Campaign team for the APC gubernatorial ticket.

It is important to bring some salient legal issues on the Suit to the understanding of the curious public. However, I find it necessary to first make a fundamental observation about the propriety or otherwise of making public comments on pending court cases.

In the case of KALU V. FEDERAL REPUBLIC OF NIGERIA (2014) 1 NWLR (PT 1389) PAGE 479 AT PAGE 525 PARAGRAPHS D-G, the Court of Appeal held, per Eko, J.C.A (as he then was, but now a Justice of the Supreme Court), that:

I know that it is commonly supposed that once a writ is issued, it puts a stop to discussion. If anyone wishes to canvass the matter in the press or in public, it cannot be permitted. It is said to be sub judice. I venture to say that it is complete misconception. The sooner it is corrected, the better. If it is a matter of public interest, it can be discussed at large without fear of thereby being in contempt of court. Criticisms can continue to be made and can be repeated. Fair comment does not prejudice fair trial.” 

My legal opinion and comment on the Suit, which is understandably a matter of serious public interest, is therefore proper in the circumstances. 

Flowing from that premise, and without any dilly-dallying, I stand on the clear provisions of our statutory laws and existing judicial authorities, to posit that the Fundamental Rights Suit filed by the Deputy Governor is one of the worst cases of abuse of court process, and that same is a futile escapist attempt that cannot in any way save His Excellency from bearing the cross of impeachment, provided the State House of Assembly duly follows the impeachment procedure as stipulated in Section 188(1)-(11) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). The law is clear in this regard.

First and foremost, the immunity conferred on the Deputy Governor in Section 308 of the Constitution does not permit him to institute personal actions in any court without first vacating his office.

This is reminiscent of the declaration by the Vice President, Professor Yemi Osinbajo of his intention to waive his immunity and institute an action in court, in reaction to alleged malicious falsehood peddled in some newspapers against him by Chief Timi Frank and Katch Onanuju. The consensus opinion of legal experts then was that it was unconstitutional for Professor Yemi Osinbajo to institute such action in court without first resigning from office. I remember the brilliant submission on that issue by our own Kayode Ajulo, a constitutional Lawyer from Ondo State, which was extensively captured in the September 26th, 2019 edition of The Nation national newspaper.

Fundamental Rights actions are personal actions; in this case about the person of Hon. Alfred Agboola Ajayi, and not about his office. For the Deputy Governor to have instituted the fundamental rights action whilst still in office, or without first resigning, is therefore an abuse of court process.

Secondly, the reliefs sought in the Suit by the Deputy Governor against the Ondo State House of Assembly relate to his anticipated impeachment process. I intentionally used the word “anticipated” because as at 26th June, 2020 when the Suit was filed, the State House of Assembly had not actually commenced any impeachment process against him.

 There are at least two fundamental absurdities in such action, in the eyes of the law, as far as it relates to the impeachment.

Firstly, the power of the court to entertain or adjudicate any suit on the fundamental rights provisions in Chapter IV of the Constitution is subject to other provisions of the Constitution, including the provision relating to impeachment, contained in section 188 thereof.      

In the case of ABARIBE V. ABIA STATE HOUSE OF ASSEMBLY (2002) 14 NWLR (PT 788) 466 AT 491 PARAS D-E, the Court of Appeal held that:

“This Court and lately the Supreme Court held that the African Charter on Human and People’s Rights is superior to our municipal laws. However the issue here is the incompetence of the court in adjudicating on any matter relating to impeachment proceedings. The respondents in their brief state that what the court should look into is the relief sought by the appellant in his application and submitted that that would determine the course of action of the court and in this case once the matter relates to impeachment proceedings the court has no jurisdiction”

The Court stated further in Page 500, PARAS D-Gof the reported judgment, that:

“This calls for examination of the provision. It provides:

“(10) No proceeding or determination of the panel or of the House of Assembly or any matter relating to such proceedings or determination shall be entertained or questioned in any court.”

“The language here seems to me too clear and direct, to brook any equivocation. It forbids all courts from allowing any proceedings or determination of the 2nd respondent or its panel to be challenged before it. For the avoidance of all doubt and, to drum in the message regarding the depth and breadth of the matter prohibited, it also forbids all courts allowing any matter relating to such proceedings and determination to be entertained before it.”(Underlining Mine)

  In page 486, Paras E-G of the same judgment, the Court restated that:

Constitutionally, the issue of impeachment is a political matter and the court cannot intervene therein. Though the court may not close its eyes to serious injustice relating to the manner an impeachment procedure is being carried out, the court should not however attempt to assume for itself power it is never given by the Constitution by carelessly entering the political arena”.

Enyinnaya Abaride, who is now a sitting Senator, was the Appellant in the above case. He instituted the purported fundamental rights case when he was the Deputy Governor of Abia State, over his anticipated impeachment by the Abia State House of Assembly, just the same way the current Deputy Governor of Ondo State has done.  

The consistent position of the law is that as long as the State House of

Assembly complies with the procedure for impeachment stated in section 188(1)-(9) of the Constitution, no court has the power to interfere with the process. The affected office holder can however approach the court for redress, if and when there is non-compliance with the laid down procedure. The Supreme Court restated this in the case of INAKOJU V. ADELEKE (2007) 4 NWLR (PT 1025) 432 AT 597 PARAS E-H.

In the light of the above analysis of the statutory and judicial authorities relating to impeachment and the ‘ouster’ of the court’s jurisdiction in entertaining suits relating thereto, provided the House of Assembly complies with the constitutional procedure stipulated in S. 188(1)-(9), what then is the legal effect of the Fundamental Rights Suit instituted at the Federal High Court in Abuja by the embattled Deputy Governor, particularly the reliefs against the State House of Assembly reproduced above, even when the impeachment had not started as at 26th June, 2020 when the Suit was filed? The Court has answered that question:

In the same case of ABARIBE V. ABIA STATE HOUSE OF ASSEMBLY (SUPRA), the  Court unequivocally held, in PARAS H-A in pages 506-507 of the reported judgment, that:

“The only circumstance in which there can be said to have been non-conformity is where the investigating panel disallows the affected officer from presenting his case in defence of himself. It is when this happens that it becomes necessary to consider whether or not such non-conformity can or does rob the alleged ouster clause in section 188(10) of its potency. As that stage had not been reached in this case before the appellant rushed to court the necessity for such consideration has not arisen. The appellant jumped the gun, crying foul when no foul had in fact been committed.”(Underlining mine)

The Ondo State Deputy Governor is alluding to being “illegally” removed at a time when the impeachment process to remove him had not even begun. How then could one declare an impeachment process that had not even commenced as at 26th June, 2020 when he filed his case, as illegal? 

Secondly, Section 188(6) of the Constitution referred to in the above quoted reliefs being sought by the Deputy Governor against the State House of Assembly only comes into play after the other procedures stipulated in Section 188(1)-(5) of the Constitution must have been activated, and certainly not before then. What precisely does the said Section 188(6) say? For the sake of clarity and the avoidance of doubt, section 188(1)-(6) of the 1999 Constitution is reproduced below:

“S.188(1) The Governor or Deputy-Governor of a State may be   removed from office in accordance with the provisions of this section.

 (2) Whenever a notice of any allegation in writing signed by not less than one-third of the members of the House of Assembly- 

(a) is presented to the Speaker of the House of Assembly of the State;

(b) stating that the holder of such office is guilty of gross misconduct in the performance of the functions of his office, detailed particulars of which shall be specified, the Speaker of the House of Assembly shall, within seven days of the receipt of the notice, cause a copy of the notice to be served on the holder of the office and on each member of the House of Assembly, and shall also cause any statement made in reply to the allegation by the holder of the office, to be served on each member of the House of Assembly.

  (3) Within fourteen days of the presentation of the notice to the Speaker of the House of Assembly (whether or not any statement was made by the holder of the office  in reply to the allegation contained in the notice), the House of Assembly shall resolve by motion, without  any debate whether or not the allegation shall be investigated.

 (4) A motion of the House of Assembly that the allegation be investigated shall not be declared as having been passed unless it is supported by the votes of not less than two-thirds majority of all the members of the House of Assembly. 

 (5) Within seven days of the passing of a motion under the   foregoing provisions of this section the Chief Judge of the State shall at the request of the Speaker of the House of Assembly, appoint a Panel of seven persons who in his opinion are of unquestionable integrity, not being members of any public service, legislative house or political party, to investigate the allegation as provided in this section.

(6) The holder of an office whose conduct is being investigated under this section shall have the right to defend himself in person or be represented before the Panel by a legal practitioner of his own choice.

It is clear from the above provisions, that the need to accord the Deputy Governor the right to fair hearing, as stated in Section 188(6), is at the stage of investigative hearing by the Panel to be constituted by the Chief Judge, after : (1) One-third of members of the State House of Assembly would have signed a written allegation of gross misconduct against him,  (2) the service of same on him by the Speaker, as well as his reaction to the allegation within 7 days, and (3) another subsequent motion supported by two-thirds of members of the House which would ignite the setting up of the seven-member investigative panel by the State Chief Judge.

Until all these procedures are first complied with, the issue of not according the Deputy Governor a right to fair hearing under section 188(6), as contained in his reliefs, is speculative, anticipatory, baseless and amounts to an abuse of judicial process, particularly when the Courts have no jurisdiction to entertain any case on an impeachment process that complies with the constitutional procedures.

I am aware that it was just yesterday 7th July, 2020 that 14 out of the 26 lawmakers (obviously exceeding the one-third legally required) signed a notice of allegation of gross misconduct, and that same has been, or is to be, served on the Deputy Governor. This is constitutionally in order. Now the Deputy Governor may respond to the allegation(s), if he chooses to do so, within seven (7) days.

Thus, rushing to the Court to claim that his right to defend himself personally or through a legal practitioner of his own choice is being violated, is an absurd legal approach by the Deputy Governor. In this regard, he goofed. He is a Lawyer, with an array of nine (9) Lawyers also listed in his court process, including a highly respected Senior Advocate of Nigeria. I do not want to believe that the premature and baseless claim in court in this regard is a deliberate abuse of court process. No Senior Advocate of Nigeria would deliberately do that, I am sure.

There is yet another deadly virus afflicting the Suit filed by the Deputy Governor.

He instituted the fundamental rights suit at the Federal High Court in Abuja, whereas Section 46(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) states that:

“46. (1)Any person who alleges that any of the provisions of this

Chapter has been, is being or likely to be contravened in any

State in relation to him may apply to a High Court in that State

for redress.”(Underlining mine) 

In the same vein, Order II Rule 1 of the Fundamental Rights (Enforcement Procedure) Rules, 2009 made pursuant to S.46(3) of the Constitution, under which the Deputy Governor instituted his action, provides that:

“Any person who alleges that any of the Fundamental Rights provided in Constitution or the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act to which he is entitled, has been, is being , or likely to be infringed, may apply to the Court in the State where the infringement occurs or is likely to occur, for redress.”(Underlining mine)

The alleged arrest and detention of the Deputy Governor by the police from 20th to 21st June, 2020 and his defection to another party in exercise of his undeniable fundamental right to freedom of association, in respect of which he is seeking reliefs 1, 2, 3, 4, 8 and 9, relate to events that allegedly, or in the case of defection did occur in Ondo State, not Abuja. The Deputy Governor himself lives in Ondo State, not in Abuja.

The Speaker and/or the State House of Assembly, against whom the Deputy Governor is seeking the earlier reproduced reliefs 6 and 7 in the Suit, is/are in Ondo State, not Abuja.

Thus, for the Deputy Governor to have rushed down or up to Abuja to institute the Fundamental Rights action, is, I submit, a grave violation of the provision of 46(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and Order II Rule 1 of the Fundamental Rights (Enforcement Procedure) Rules, 2009 quoted above, which both categorically state that the fundamental action should be filed in the State “where the infringement occurs or is likely to occur.”

Before concluding this write-up, it is equally important to point out yet another fundamental flaw in relief No.6 which the Deputy Governor is seeking against the House of Assembly. His Excellency is seeking “AN ORDER restraining the 5th and 6th Respondents and other members of the Ondo State House of Assembly from using the 1st to 4th Respondents to harass, intimidate, or arrest members of the Ondo State House of Assembly loyal to the Applicantfor the purpose of illegally removing the Applicant as the Deputy Governor of Ondo State.” (Underlining mine). With due respect, this is abnormal in law. 

In AYOADE V. SPRING BANK PLC (2014) 4 NWLR (PT 1396) 93 AT 133 PARAS A-B, the Court of Appeal restated that: “It is trite that a Court has no power to make orders either in favour of or against persons who are not parties to an action.” The Supreme Court equally restated the same principle of law in IKECHUKWU V. NWOYE (2015) 3 NWLR (PT 1446) 367 AT 417 PARA D and TRANSNAV P.N LTD V. VELCAN E.H.D LTD (2020) 7 NWLR (PT 1723) 293 AT 311 PARAS D-F.

There is even nowhere in the Suit where the Deputy Governor stated the names of those supposed “loyalists”. The order being sought therefore becomes generic, imprecise, vague and un-grantable.

Besides, fundamental rights are personal rights in law. Generally, the person whose right has been, is being or about to be violated should be the one to institute the action in court to protect his right. If any person desires to institute the action for the benefit of a third party or third parties, the action then becomes a representative action (filed on behalf of another or others), and the law requires that the court process should be endorsed to that effect.

Apart from not stating the names of his so-called loyalists in the Suit (who should actually be loyal to the Constitution they swore to uphold, and not to individuals), the Deputy Governor also did not endorse his court process to the effect that he is instituting the case for himself and on behalf of the said “loyalists.” The “loyalists” should have been the ones to institute an action to seek their own personal redress, if any of their rights are violated. His Excellency would seem to be crying louder than the supposed bereaved, in that regard.

In conclusion, therefore, I submit that: (1) The immunity clause contained in section 308 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) prohibits the Deputy Governor from instituting the personal fundamental rights action, (2) Based on the clear provision of section 188(10) of the Constitution, no court has the jurisdiction to interfere with impeachment proceedings, provided the proceedings are in due compliance with Section 188(1)-(9) thereof, (3) For the Deputy Governor to have rushed to court on the impeachment as far back as 26th June, 2020 when the impeachment had not even started, was premature and absurd on the authority of ABARIBE V. ABIA STATE HOUSE OF ASSEMBLY (SUPRA) AT PAGES 506-507 PARAS H-A, (4) The institution of the Suit at the Abuja Judicial Division of the Federal High Court is a violation of the provision of Section 46(1) of the Constitution and Order II Rule 1 of the Fundamental Rights (Enforcement Procedure) Rules, 2009, which categorically state that the fundamental right action should be filed in the State “where the infringement occurs or is likely to occur.”; and (5) The Deputy Governor cannot be granted a fundamental rights relief on behalf of unnamed “loyalists”, particularly when the court process was never endorsed to the effect that he is instituting the case for himself and those “loyalists”, thereby crying louder than the bereaved.

In totality, the fundamental rights suit instituted by the Ondo State Deputy Governor, in my opinion, is one of the worst cases of abuse of court process. It is bound to fail, and would certainly not stop his impeachment process, as long as same is, and continues in line with Section 188(1)-(9) of the Constitution of the Federal republic of Nigeria, 1999 (as amended).

Signed

Femi Emmanuel Emodamori

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