Rt. Hon. Peremobowei Ebebi & Ors V. D.C. Denwigwe (San) & Ors (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

EJEMBI EKO, J.C.A. (Delivering the Leading Judgment)

By their writ of summons taken out on 16th June, 2010 the Appellants, as Claimants, sought from the Bayelsa High Court the following reliefs –

1. A DECLARATION that in view of the pendency of suit No YHC/201/2010 RT. HONOURABLE PEREMOBOWEI EBEBI V. SPEAKER BAYELSA STATE HOUSE OF ASSEMBLY & ORS, the 1st – 7th Defendants do not have the competence and or jurisdiction to commence or continue with the investigation of the purported allegations of gross misconduct against the 1st Claimant as contained in the purported Notice of Impeachment dated the 1st day of June, 2010 and/or as may be contained in any other document(s).
2. A DECLARATION that the purported constitution of the panel of seven persons (1st-7th Defendants) by the 8th Defendant, with the 1st Defendant as a member/Chairman thereof, for the purpose of investigating purported allegations of gross misconduct against the 1st Claimant, amounts to a violation of and/or noncompliance with the provisions of sections 188 and 36 of the Constitution of the Federal Republic of Nigeria, 1999 and therefore illegal, unconstitutional null and void.
3. AN ORDER OF PERPETUAL INJUNCTION restraining the Defendants, their servants agents and/or privies from proceeding with or continuing to proceed with the investigation or purported investigation of purported allegations of gross misconduct against the 1st Claimant contained in the aforesaid purported Notice of Impeachment dated the 1st day of June, 2010 or as may be contained in any other document.
4. AN ORDER OF PERPETUAL INJUNCTION restraining the 1st – 7th Defendants, their agents servants and/or privies from preparing and/or submitting the report of its purported investigation of the aforesaid allegations of gross misconduct against the 1st Claimant either directly to the 9th, 10th & 11th Defendants or through the office of the 8th Defendant or his agents servants and/or privies.
5. AN ORDER OF PERPETUAL INJUNCTION restraining the 14th Defendant, his servants agents and/or privies from carrying out any instructions, orders and/or directives from the 1st-7th Defendants in respect of the purported investigation of allegations of gross misconduct against 1st Claimant.

The writ of summons was accompanied by statement of claim, list of claimants’ witnesses and the depositions on oath of the witnesses. The suit was duly front loaded with the list of documents to be relied upon by the claimants and the said documents’ on the same 16th June, 2010 the claimants also filed two applications, to wit: motion ex parte and motion on notice, both of which seek respectively interim and interlocutory injunctions. –

1. Restraining the 1st – 7th Defendants (now respondents) their servants, agents and/or privies from investigating the purported allegations of gross misconduct against the 1st Claimant (Appellant who by then was the incumbent Deputy Governor of Bayelsa State) as contained in the purported Notice of Impeachment dated the 1st day of June, 2010 and/or from carrying out any of the duties assigned to them by the – 8th Defendant (Respondent) in respect of the aforesaid investigation of the purported allegations of gross misconduct against the 1st Claimant pending the determination of this suit (i.e. no YHC/206/2010).
2. Restraining the 1st – 7th Defendants from preparing and/or submitting any report of its purported investigation of gross misconduct against the 1st claimant to the 9th – 11th & 12th Defendants, pending the determination of this suit (i.e. no YHC/206/2010).

The motion ex parte sought interim orders as above pending the hearing and determination of the motion on Notice. Neither of the motions was heard before the suit was struck out on 29th June, 2010. Meanwhile, the 1st – 7th Defendants commenced their investigation proceedings on 22nd June, 2010, after becoming aware of the suit no YHC/206/2010 and the pending applications, and continued with the proceedings thereafter. Their report was submitted to the Bayelsa State House of Assembly on 23rd June, 2010. On the 22nd June, 2010 counsel to the 1st claimant drew the attention of 1st – 7th Defendants/Respondents to the pendency of suit no YHC/206/2010 and the motions, ex parte and notice, for restraint. The request of the claimants’ counsel for adjournment was turned down by the 1st – 7th Defendants, as a panel of investigation. By common knowledge the 1st Defendant is not only a lawyer; he is Senior Advocate of Nigeria (SAN).

Acting on the Report of the Panel of Investigation (i.e. 1st – 7th Defendants) the Bayelsa House of Assembly convened on 24th June, 2010, adopted the report of the Panel of Investigation and “accordingly resolved that Rt. Hon Peremobowei Ebebi (1st Claimant/Appellant), stand (sic) removed from the office as Deputy-Governor of Bayelsa State of Nigeria.”

This suit and the applications for interim/interlocutory injunctions were pending as at 24rh June 2010, when the 1st Claimant/Appellant was removed from office and remained pending on the cause list of Bayelsa State High Court until 29th June, 2010 when this suit was struck out. Aggrieved by the order striking out this suit on the said 29th June, 2010, the Claimants/Appellant have now appealed.

In the statement of Defence filed by the 1st – 8th Defendants/Respondents, in suit no YHC/206/2010, the subject of this appeal, the Chief Judge of Bayelsa, as a defendant in suit no YHC/201/2010 claimed that he received the resolution of the Bayelsa State House of Assembly on 9th June, 2010 and immediately thereafter constituted the Investigation Panel of seven persons (1st – 7th Defendants/Respondents in this appeal) the same day; and that the processes in the suit no YHC/201/2010 were served on him on 10th June, 2010. The other parties in that suit (YHC/201/2010) were served on 10th and 11th June, 2010. Both suits (nos YHC/201/2010 and YHC/206/2010) remained on the cause list and were pending until 29th June, 2010 when they were struck out in one ruling. This appeal (in YHC/206/2010) is against that order/decision striking out the said suit.

For the records: Two notices of appeal were filed within time by the Claimants/Appellants. The first notice of appeal, filed on 29th June, 2010 is at pages 488 – 493 of the record. That Notice was, at the instance of the Appellants, struck out on 13th October, 2010. The second notice of appeal was filed on 20th July, 2010 after the record of appeal was admitted with leave of this Court. Appellants also filed, with leave, additional grounds of appeal. The Appellants have formulated two (2) issues for determination which, they say, are distilled from grounds 1, 2, 3, and 4 in the Notice filed on 20th July, 2010, and grounds 5 of the notice of additional grounds of appeal. The two issues are as follows –

1. Whether the lower court infringed upon the Appellants fundamental human rights to fair hearing when in the determination of the 1st – 8th Respondents’ preliminary objection, it held that there was compliance with the provisions of section 188 of the Constitution of the Federal Republic of Nigeria, 1999 (from grounds 3 and 4 in the Notice of appeal filed on 20th July, 2010).
2. Whether the lower court was right in declining jurisdiction to entertain suit no YHC/206/2010: RT. HON PEREMOBOWEI EBEBI & ORS v. D.C. DENWIGWE (SAN) & ORS? [From grounds 1 and 2 in the Notice of Appeal filed on 20th July, 2010 and ground 5 in the Notice of Additional Ground of Appeal filed with leave of court).

For better appreciation of the facts antecedent to the Ruling of 29th June, 2010, the subject of this appeal, let it be mentioned that the 1st – 8th Defendants/Respondents filed a joint statement of Defence, together with the deposition on oath of their lone witness, and the documents they intend to rely on, on 21st June, 2010. On the same day they filed, through their counsel, F.T. Okorotie, Esq., a notice of preliminary objection. The Notice, accompanied by a written address in support, prays that the suit (no YHC/206/2010) be struck out struck and or dismissed “for want of jurisdiction”. The grounds for the objection were that:

1. The court has no jurisdiction to entertain this matter by virtue of section 6 of the Impeachment (Procedure) Rules of Bayelsa State House of Assembly, 2005.
2. The cause of action is not justiceable in law.
3. At the trial, the 1st – 8th Defendants shall rely on other legal and equitable grounds not spelt out above.

I have read the written address in support of the preliminary objection of 1st – 8th Defendants/Respondents. The argument therein turns only on the efficacy of section 6 of the Impeachment (Procedure) Rules, 2005 which according to the objectors – bars this Honourable Court from entertaining this suit against the 1st – 7th Defendants. (And) that the purport of ouster clause in an enactment is clear, that is, no court or tribunal should look into the matter the courts are so prevented from looking into.

Oral arguments on this issue of jurisdiction were taken on 18th and 22nd June, 2010 at pages 451 – 458 of the Record. The matter was then adjourned to 29th June, 2010 for Ruling. The learned trial Judge, D.E. Adokeme, J. upheld the objection and struck out suits nos YHC/201/2010 and YHC/206/2010 on 29th June, 2010. Hence, this appeal, which is in respect of suit no YHC/206/2010.

It appears to me, from the Record, that the learned trial judge, in his Ruling, dealt with the preliminary objection to suit no YHC/206/2010 at pages 485 487 of the Record. The relevant portions of the Ruling are –

In suit no YHC/206/2010, upon receipt of the writ of summons the counsel to 1st – 8th Defendants filed a preliminary objection praying this Court to strike out and/or dismiss the suit for want of jurisdiction. –

Issue three will be answered in the negative as the said bye law can only succeed in the face of the compliance with section 188 of the 1999 Constitution as in this case. It is therefore held that in the event of non-compliance with section 188 of the Constitution, the said 6 of the Impeachment (Procedure) Rules of Bayelsa State House of Assembly 2005 can not avail the Defendants’/Applicants to save illegal impeachment by ousting the jurisdiction of the Court. As a subsidiary legislation derives its powers from the parent statute. In the case of this bye law it serves to complete the process of impeachment which must have been properly or lawfully commenced so if the commencement is not lawful and did not follow due process the latter part will have nothing to stand upon the must succumb to the jurisdiction of the court, the said provision of the bye law notwithstanding.