Chief Diepriye S.p. Alamieyeseigha V. Hon. Justice Emmanuel Igoniwari & Ors (2007)

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SULEIMAN GALADIMA, J.C.A.

The plaintiff before the lower court now appellant in this appeal commenced his action by a writ of summons and statement of claim against the defendants now the respondents jointly and severally before the High Court of Bayelsa State on 16/12/2005 in suit No. YHC/173/2005. He sought for the following declarations and reliefs:

“1. A DECLARATION that the 1st defendant is constitutionally obliged to appoint only such persons as are not disqualified under section 188 (5) of the Constitution of the Federal Republic of Nigeria, 1999 as members of the panel to investigate allegations of impeachable offences leveled against the plaintiff as contained in the impeachment notice dated 18th November, 2005.

2. A DECLARATION that the 1st defendant has failed in the performance by him of his constitutional duty under section 188 (5) of the 1999 Constitution by his appointment of the 4th, 5th, and/or 8th defendants as members of the investigation Panel inaugurated by the 1st defendant to investigate the allegations contained in the impeachment notice dated 18th November, 2005.
3. A DECLARATION that the subjection of the plaintiff to house arrest at the behest and direction of the 11th defendant from 5th December, 2005 till midday on 9th December, 2005 is in violation of the plaintiff’s constitutional rights to freedom of movement and constitutional immunity afforded him under sections 41 and 308 of the 1999 Constitution.
4. A DECLARATION that the failure and/or refusal of the impeachment investigation panel constituted by the 1st defendant, and comprising 4th-10th defendants to commence sittings and invite the plaintiff to defend himself either personally or through his counsel amounts to abandonment of their mandatory constitutional duties under section 188 (7) of the Constitution of the Federal Republic of Nigeria, 1999.
5. A DECLARATION that the 2nd defendant cannot be lawfully approved by the Bayelsa State House of Assembly and sworn-in by 1st defendant as the Substantive Governor of Bayelsa State unless and until the plaintiff exhausts his term, voluntarily resigns, or is otherwise impeached in accordance with the provisions of section 188 of the 1999 Constitution.
6. A DECLARATION that the forceful removal of plaintiff from his office as Governor of Bayelsa State on the 9th day of December, 2005 by the 11th defendant and his armed operatives, as well as the plaintiff’s subsequent arrest and continued detention amounts to an unconstitutional take over of the Government of Bayelsa State through a police-aided civilian coup contrary to section 1(2) of the Constitution of the Federal Republic of Nigeria, 1999.
7. In alternative to prayer 6 A DECLARATION that the purported report of the panel headed by 4th defendant upon which report the purported impeachment of the plaintiff was carried without notice to or hearing from the plaintiff, and which report was submitted to the 3rd defendant on or about 9th December, 2005 is illegal, unconstitutional, null, void and of no effect whatsoever.
8. A DECLARATION that the office of the Governor of Bayelsa State, and Deputy Governor of Bayelsa State into which the plaintiff and 2nd defendant were respectively sworn in on 29th May, 2003 as having been duly elected for a four year term ending on 28th May, 2007 have not become vacant to warrant the swearing in of new incumbents in place of the plaintiff and 2nd defendant as Governor and Deputy Governor of Bayelsa State respectively.
9. AN ORDER setting aside the purported swearing in by the 1st defendant of the 2nd defendant as the substantive Governor of Bayelsa, on the 12th day of December 2005 in place of the plaintiff who remains the legitimate and duly elected Governor of Bayelsa State pursuant to the gubernatorial election held on the 19th day of April, 2003.
10. AN ORDER OF INJUNCTION restraining the 2nd defendant from parading himself as or acting in the capacity of the substantive Governor of Bayelsa State in place of the plaintiff to whom 2nd defendant is the Deputy Governor.
11. AN ORDER OF INJUNCTION restraining the 1st, 3rd and 11th defendants from according any further recognition to the 2nd defendant as the substantive Governor of Bayelsa State in place of the plaintiff to whom 2nd defendant is the Deputy Governor.
12. AN ORDER directing the 1st defendant to reconstitute the Investigation Panel which he inaugurated on 5th December, 2005 by removing therefrom the 4th, 5th and 8th defendants, who are disqualified under section 188(5) of the 1999 Constitution from acting thereon by reason of their political affiliations.
13. AN ORDER OF MANDATORY INJUNCTION directing the Investigation Panel inaugurated or to be re-constituted by the 1st defendant in respect of the allegation of impeachable offences contained in a notice dated 18th November, 2005 against plaintiff, to resume and or commence sitting and afford the plaintiff an opportunity to defend himself, whether personally or through a counsel of his choice as enjoined in section 188(6) of the Constitution of the Federal Republic of Nigeria, 1999.
14. Cost of this action.”

The writ of summons was supported by a verifying affidavit of 8 paragraphs.

All the respondents after entering appearance filed notice of preliminary objections. The grounds on which the various objections were based were stated as follows:

“1. That the court lacked jurisdiction to entertain the action because of the provisions of section 188 (10) of the G Constitution of the Federal Republic of Nigeria, 1999.

2. That the 2nd defendant was immuned from civil proceedings by virtue of the provision of section 308 (1)(a) of the Constitution and consequently the court lacked jurisdiction to entel1ain the suit as against him.
3. That the 1st defendant being the Chief Judge of Bayelsa State enjoyed immunity from civil proceedings in respect of the performance of the duty of appointing members of the panel: and
4. That the 11th defendant being the Commissioner of Police of Bayelsa State is a Federal agent and consequently the appropriate court in which he can be sued for his actions is the Federal High Court.”

Full arguments were taken from all counsel and the trial Judge in a considered ruling, acceded to the prayers of the respondents and struck out the action of the appellant. Being dissatisfied with the ruling, the appellant has appealed to this court on nine grounds.

The appellant in compliance with the Rules of this court filed and served his brief of argument and reply brief on the respondents.

He formulated FOUR issues for determination as follows:

“1. Whether the jurisdiction of the cou11 is excluded from inquiries into allegations or complaint of noncompliance with any or all of the provisions of section 188 of the Constitution in relation to proceedings for 1mpeachment of the Governor of a State because of the provisions of Section 188 (10).

2. Whether or not the powers vested in the Chief Judge of a State pursuant to Section 188 (5) of the Constitution can be challenged if the persons so appointed by him are disqualified for appointment under the provisions of that sub-section.
3. Whether the trial Judge was right in holding that the 2nd defendant cannot be sued, or made a party to the plaintiff’s action because of Section 308 of the Constitution even when as it was claimed in this case that he has been joined as a nominal defendant.
4. Whether the trial Judge was right in holding that the 11th defendant, the Commissioner of Police cannot be sued in a State Court having regards to Section 251 of the Constitution of the Federal Republic of Nigeria.”

The 1st and 3rd respondents in their brief of argument deemed filed on 22/2/2007 on the other hand, presented the following three issues for determination:

“(i) Whether having regard to the mandatory provisions of section 188 (10) of the 1999 Constitution, the learned trial Judge was right in holding that the lower court lacked jurisdiction to adjudicate on the appellant’s claims. (flowing from ground 1 or the appellant’s notice and grounds of appeal).

(ii) Whether the appointment of the Panel by the Chief Judge of the state pursuant to Section 188 (5) of the 1999 Constitution is not part of the impeachment proceedings or a matter relating to such proceeding as contemplated by the 1999 Constitution (flowing from grounds 2, 5 and 8 of appellant’s notice and grounds of appeal)

Whether the qualification of members of the impeachment Panel relative to the impeachment of the appellant herein can be questioned in a Court of Law.”