Ekiti State House of Assembly & Ors. V. Dr. Ayodele Peter Fayose & Ors. (2009)

LawGlobal-Hub Lead Judgment Report

ADAMU AUGIE, J.C.A.

Dr. Ayodele Peter Fayose was the Executive Governor of Ekiti State from May 2003 until October 2006, when he was impeached by the Ekiti State House of Assembly, acting upon a report submitted by a seven-man panel headed by Barrister Dele Omotosho. During that time, the substantive Chief Judge of the State was suspended and replaced with another Chief Judge, who had inaugurated the seven-man panel that indicted Dr. Fayose.

Disgruntled by the state of affairs in the Judiciary of the State, Dr. Fayose filed an action by originating summons at the Federal High Court, Akure, wherein he sought answers to the questions –

(1) Whether in view of the flagrant disregard of the clear provision of Section 188 (5) of the 1999 Constitution, the Plaintiff who is the Executive Governor of Ekiti State could be held to have been impeached by the 1st Defendant.

(2) Whether the Plaintiff as the Executive Governor of Ekiti State could be denied of the right to immunity as provided for under Section 308 of the Constitution – if he had not been constitutionally impeached.

(3) Whether the Plaintiff as the Executive Governor of the Ekiti State could be stripped of the constitutional right to immunity under Section 308 – and thus got (sic) arrested, detained, questioned, interrogated or prosecuted over any allegation of crime by the 2nd – 4th Defendants.

(4) Whether in view of the clear provisions of Section 188(5) of the Constitution – the 1st Defendant can exercise any power to set up a seven man panel at all to investigate any allegation of gross misconduct against the Plaintiff.

(5) Whether having regard to the provision of Section 188(5) of the Constitution – any panel set up by any other person or authority other than the Chief Judge of Ekiti State to investigate any allegation of gross misconduct against the Plaintiff is constitutional, lawful, legal and valid.

(6) Whether in view of the provisions of Section 188(5) and (7) of the Constitution – the decision of any panel set up in contravention of the said subsection can form the basis of impeachment pursuant to the provisions of Section 188(9) of the 1999 Constitution and thus deny him of his right to immunity under Section 308 of the Constitution.

(7) Whether having regard to the provision of Section 271 of the Constitution – any person or authority other than the Governor of a State can lawfully, validly, legally and constitutionally appoint, remove or in any other manner or way appoint or remove a Chief Judge or acting Chief judge of Ekiti State, other than as prescribed and laid down

(8) Whether having regard to the provision of Section 292 of the Constitution – the 1st Defendant can lawfully, validly and constitutionally remove or suspend the Chief Judge of Ekiti State or appoint an acting Chief Judge for the state without his behest.

With the questions as the base, he sought for the following reliefs-

1. DECLARATION that by virtue of Section 188(5) – only the Chief Judge of Ekiti State has the constitutional power to set up any seven man panel to investigate any allegation of gross misconduct against him.
2. DECLARATION that Section 188 – envisages a single panel of seven persons to investigate any allegation of gross misconduct against him.
3. DECLARATION that by Section 188(7) and (8) -the conclusion and findings of the panel set up in accordance with Section 188(5) of the said Constitution is conclusive and binding on the Defendants.
4. DECLARATION that by virtue of the provisions of Section 271 – only the Plaintiff as Governor of Ekiti State has the power, authority and legal capacity to appoint a qualified person as the Chief Judge –
5. DECLARATION that by virtue of the provision of Section 271 of the same 1999 Constitution, the 1st Defendant lacks the constitutional power to appoint anyone as the Chief Judge or acting Chief Judge –
6. DECLARATION that by virtue of the provisions of Section 292 – the power to remove the Chief Judge of Ekiti State from office resides on the Plaintiff acting pursuant to the provisions of the Constitution –
7. DECLARATION that by virtue of the provisions of Section 292 of the Constitution aforesaid the 1st Defendant has no legal, lawful (sic) or office without the concurrence or the initiative of the Plaintiff.
8. A DECLARATION that the plaintiff been the Executive Governor of Ekiti State and having not been impeached from that office enjoys immunity from prosecution as provided for under Section 308 of the Constitution
9. ORDER setting aside the setting up, sitting and all decisions of a seven man panel headed by one Omotosho set up by the 1st Defendant in contravention of the provisions of Section 188(5) – –
10. ORDER nullifying and making void all the decision, finding and recommendation of the said panel embodied in the report –
11. ORDER nullifying, setting aside and make void the decision of the 1st Defendant purporting to remove the Plaintiff from office as the Governor of Ekiti State based on the report of a seven man panel set up – in clear contravention of the provisions of the 1999 Constitution.
12. ORDER setting aside and nullifying the purported suspension and removal from office of the Chief Judge of Ekiti State in clear violation and breach of the Constitution and usurpation of his powers.
13. ORDER nullifying and setting aside the appointment of anyone as the acting Chief Judge of Ekiti State in clear violation and breach of the provisions of the 1999 Constitution and in usurpation of his powers.
14. INJUNCTION restraining the Defendants jointly and severally by themselves, their agents, servants, privies and any other person or in any other manner hamper the Plaintiff from the performance of his duties as the elected Governor of Ekiti State until end of his tenure -.
15. INJUNCTION restraining the 2nd – 5th defendants jointly and severally by themselves, their agents, servants privies and any other person or authority deriving power through them from relying on the purported impeachment of the Plaintiff as Governor of Ekiti State by the 1st Defendant to arrest, detain, interrogate or prosecute the Plaintiff for any alleged crime or any act of gross misconduct having not lost his right to immunity under Section 308 of the 1999 Constitution -.

Upon service on them of the Originating Summons, the Economic & Financial Crimes Commission [EFCC] and both the Inspector General Police [IGP] and Attorney General of the Federation [AGF] filed separate Notices of preliminary objection challenging the jurisdiction of the Federal High Court to entertain Dr. Fayose’s suit.

The Grounds of Objection to jurisdiction filed by the EFCC are –