Chief Enyi Abaribe V. The Speaker, Abia State House of Assembly & Anor (2000)

LawGlobal-Hub Lead Judgment Report

PATS-ACHOLONU, J.C.A.

The appellant had applied to the High Court for leave to apply for enforcement of his rights (which he states were infringed upon) under the Fundamental Rights (Enforcement Procedure) Rules, and he sought the following reliefs:

“1. A declaration that the proceedings of the Abia State House of Assembly on Tuesday the 8th day of February, 2000 purporting to vote on whether or not to investigate the allegations made against the applicant (to impeach him from the office of the Deputy-Governor of Abia State) are illegal unconstitutional, null and void being a flagrant breach of the applicant’s right of fair hearing as guaranteed by section 36 of the 1979 Constitution of Nigeria and Article 7 African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, Cap. 10, Laws of the Federation of Nigeria.

2. An order of court setting aside the said proceedings.
3. An order of injunction restraining the respondents from taking further steps in the process of impeaching the applicant during the pendency of this proceeding.”

The ground upon which the reliefs are sought are the following:

(a) “Section 36 of the 1979 Constitution and Article 7 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, Cap. 10, Laws of the Federation of Nigeria guarantees the applicant a Fundamental Right to fair hearing as a citizen of both Nigeria and Africa.

(b) By section 188(3) of the 1999 Constitution when an impeachment notice on the holder of the office of the applicant is presented to the 1st respondent, the applicant has 14 days within which to offer a defence to the articles of impeachment before a vote can be taken as to whether or not tile allegations on the impeachment notice can be referred to a panel for investigation.

(c) By section 188(4) of the same Constitution if after considering the Impeachment Notice and the defence the 2nd respondents are not able to procure a 2/3rd majority of votes, the impeachment process collapses.

(d) The 1st respondent by a letter dated 28th January, 1999 notified the applicant of the pendency of impeachment notice against him attaching the said notice and requiring him in accordance with the Constitution to have his defence entered on or before the 11th of February, 2000.

(e) On Tuesday 8th February, 2000 being the 12th day of the presentation to the Speaker of the impeachment notice, without receiving the defence of the applicant, three days before his constitutionally allowed period of defence was to expire, the respondents took a vote to refer the impeachment notice for investigation in breach of section 188(3) and section 36 of the 1999 Constitution and the relevant section of the African Charter on Human and Peoples’ Right.

(f) Had the respondents exercised patience and received the defence of the applicant, they would not have voted the matter to go for investigation and the impeachment process would have collapsed.

(g) The respondents have by the above conduct in breach of the Constitution prejudiced the person and office of the applicant.

In the court below, the presiding Judge stated that the matter before him was not the usual run of the mill case and invited the Abia State Attorney-General and Udechukwu, SAN to address him on the issue of jurisdiction of the court having regards to section 188(10) of the Constitution. After addresses by counsel, in his ruling the court below held as follows:

“In other words, that S.188(10) does not permit proceedings brought under S.46 of the Constitution. This is so because, it appears to me, that the issue of the applicant’s Fundamental Rights cannot be isolated from the process under S.188 of the Constitution.

In other words, the applicant’s Fundamental Rights cannot be enforced without any encroachment into the process which caused the breach, which is the impeachment process, over which the court has no jurisdiction. And so, if a court cannot effectively, in a case before it, determine the issues on which it has jurisdiction without engaging in the determination of issues in respect of which it has no jurisdiction, the situation is as if the court has no jurisdiction and should decline jurisdiction ab initio. See Nwafia v. Ububa (1966) NMLR 219. It is therefore my view that no distinction could be drawn as argued by learned Senator between proceedings of the State House of Assembly under S.188 and the issue of fair hearing under S.36 because of the provisions of S.46(2) thereof. I therefore hold that this case is indistinguishable from the case of Balarabe Musa (supra) irrespective of the procedure by which it was brought. And I am bound to follow that decision.