Hon. Micheal Dapianlong & Ors V. Chief (Dr.) Joshua Chibi Dariye & Anor (2007)

LawGlobal-Hub Lead Judgment Report

BULKACHUWA, J.C.A.

The 1st respondent as the plaintiff before the Plateau State High Court No.3 Jos Coram Damulak J., commenced this action by way of originating summons on the 27th November, 2006 whereby he sought for the determination of these questions and the granting of these reliefs;

1. Whether the one-third (1/3) of the members of the Plateau State House of Assembly envisaged under section 188(2) of the Constitution of the Federal Republic of Nigeria, 1999 (hereinafter called “the Constitution”) for the purpose of signing a notice of allegation against a Governor or Deputy Governor (in this case the plaintiff) includes the person presiding over the House whether as Speaker or other presiding officer.
2. In view of the clear and mandatory provisions of section 91 of the Constitution whether the House of Assembly of Plateau State established under section 90 of the said Constitution can be properly constituted by a faction of only 6 (or 8?) elected members thereof for purposes of commencing and concluding impeachment process under section 188 of the Constitution.
3. Whether there is any provision for the position of “Speaker Protempore” in the Constitution (supra) let alone such “Speaker Protempore” presiding over the House of Assembly of Plateau State for the purpose of impeaching the plaintiff having regard to section 188(2) and (a) of the Constitution (supra).
4. Whether the relevant provisions of the Constitution of the Federal Republic of Nigeria, 1999, with particular reference to the powers conferred on the Plateau State House -of-Assembly to initiate and carry out impeachment proceedings against the Governor or the Deputy Governor of that State particularly section 188 subsection (1), (2), (3), (4) and (5) thereof are to be read in isolation and complete exclusion of other sections of the same Constitution, including, inter alia, sections 91-105 of the said Constitution?
5. Whether of all the subsections of section 188 of the Constitution of the Federal Republic of Nigeria, 1999, are interpreted as a whole there can be a constitutionally valid impeachment of the Governor of Plateau State by the Plateau State House of Assembly without the House satisfying or complying with the mandatory preconditions entrenched in sub-sections 1-9 of the said section 188 of the Constitution.
6. Whether or not the undated purported notice of allegations of gross misconduct against Chief (Dr.) Joshua Chibi Dariye, the Governor of Plateau State purportedly issued against him by the 2nd-7th defendants herein is constitutional or valid within the meaning of section 188(1) of the Constitution of the Federal Republic of Nigeria, 1999.
7. Whether or not the 2nd-7th defendants’ purported service of notice of the said allegations of gross misconduct for the purpose of impeaching the plaintiff herein from office as the Governor of Plateau State, vide the media or Newspaper publication is valid or constitutional within the meaning of section 188(2) of the 1999 Constitution (supra).
8. Whether or not the said purported notice of allegation of gross misconduct for the purpose of impeaching the plaintiff herein as the Governor of Plateau State had been duly served on each member of the 24 (twenty four) members of the Plateau State House of Assembly as envisaged by section 188(2) of the Constitution of the Federal Republic of Nigeria, 1999, let alone fulfilling the conditions for impeachment proceedings.
9. Whether or not the 2nd-7th defendants herein complied with the provisions of the section 188(3) & (4) of the Constitution of the Federal Republic of Nigeria, 1999, vis-a-vis moving the motion that the purported allegation of gross misconduct against the plaintiff herein, the Governor of Plateau State be investigated and whether same as passed by the said 2nd-7th defendants on the 13th of October, 2006, was supported by the votes of not less than two-thirds majority of ALL the 24 (twenty four) members of the Plateau State House of Assembly.
10. Whether or not the purported passing of a motion by the 2nd defendants on the 13th of October, 2006 for the investigation of the allegations of gross misconduct against the plaintiff herein as the Governor of Plateau State and the purported request by a non-existent Speaker of the Plateau State House of Assembly to wit, the 2nd defendant, requesting the Acting Chief Judge of Plateau State to appoint a Panel of 7 (seven) persons to investigate the plaintiff is valid having regard to the provision of section 188(4) of the Constitution (supra).

Whether the appointment, constitution and swearing in of the Seven (7) Man Panel of investigation headed by the 1st defendant herein as the Governor of Plateau State leading to the purported impeachment of the Governor of Plateau State in the unholy hours of Monday, the 13th of November, 2006 are in breach of section 188(2), (3), (4), (5) & (7) of the Constitution of the Federal Republic of Nigeria, 1999, and therefore all together null and void and of no effect whatsoever Whether the right of fair hearing guaranteed to the plaintiff by virtue of sections 36(1) and 188(6) of the Constitution was not violated in the entire impeachment proceedings when

(a) the plaintiff was not personally served with the copy of notice of allegation of gross misconduct;

(b) the plaintiff was not allowed to exhaust his cross examination of Constable Peter Clark before the seven (7) Man Panel;

(c) the plaintiff was not given opportunity or allowed to cross-examine Inspector Sunday Musa before the Seven (7) Man Panel submitted Interim Report; and

(d) the plaintiff was not given opportunity to enter his defence much less state his own side of the story before the Seven (7) Man Panel surreptitiously submitted Interim Report to six(6) members (or 8?) of the Plateau State House of Assembly resulting in the impeachment of the plaintiff on Monday, 13th November, 2006.

13. Whether the 2nd-7th defendants being a faction of members of the Plateau State House of Assembly as well as the Clerk of the House who had been earlier arrested and detained by EFCC in Abuja and who were brought under force of arms by heavily armed mobile policemen and forced vie et armis to purportedly sit as the Plateau State House of Assembly on the 5/10/2006, 13/10/2006 as well as the purported impeachment of the plaintiff vide a purported proceeding of 13th November, 2006 are all together invalid, unconstitutional, null and void as they were not acting of their own free will and volition by reason of duress and coercion by the EFCC or its agents and operatives.
14. Whether the purported impeachment of the plaintiff on Monday, the 13th day of November, 2006 by the 2nd-7th defendants in pursuance of a purported Interim Report submitted by the 1st defendant is valid in law particularly given the dissolution of the Seven (7) Man Panel on Friday, the 10th day of November, 2006 by the Acting Chief Judge of Plateau State.
15. Whether the 2nd-7th defendants having in accord with others inaugurated a special committee for the investigation of the plaintiff for allegation of gross misconduct inter alia pursuant to a letter of complaint from the 2nd defendant dated November 30, 2005 and having on June 9, 2006 unanimously received and adopted the said Special Committee Report exonerating the plaintiff can revisit the issue during their own tenure in office or before the expiration of six months.
16. Whether the Seven (7) Man Investigating Panel headed by the 1st defendant, being an inferior body of tribunal, is not obliged to obey the orders of a competent court established under the Constitution.

Reliefs Sought

WHEREUPON and in theforegoing premise, inter-alia, the plaintiff claims against the defendants, jointly and severally, the following reliefs:

1. A DECLARATION that the one-third (1/3rd) of the members of the House of Assembly envisaged under section 188(2) of the Constitution of the Federal Republic of Nigeria, 1999 for the purpose of signing a notice of allegation does not include the substantive Speaker, or any member appointed to preside at any sitting of the House, for that purpose.
2. A DECLARATION that the Plateau State House of Assembly can not be properly and validly constituted by only 6 (or 8?) members of that House for the purpose of commencing and concluding impeachment proceedings under section 188 of the Constitution of the Federal Republic of Nigeria, 1999.
3. A DECLARATION that there is no provision for “Speaker Protempore” in the Constitution of the Federal Republic of Nigeria, 1999, hence no such person can preside over impeachment proceedings in the House of Assembly pursuant to section 188 of the Constitution (supra).
4. A DECLARATION that section 188(1), (2), (3) and (4) of the Constitution (supra) must be read in conjunction with and not to the exclusion of other provisions of the Constitution particularly sections 91 to 105 in impeachment proceedings against a Governor of a State such as the plaintiff.
5. A DECLARATION that there cannot be a constitutionally valid impeachment of the plaintiff as the Governor of Plateau State without strict compliance with the provisions of section 188(1) to (9) of the Constitution of the Federal Republic of Nigeria, 1999.
6. A DECLARATION that on a proper interpretation of section 188(4) of the Constitution (supra), the 2nd-7th defendants are incapable of forming or constituting the required two-thirds (2/3rd) of the members of the Plateau State House of Assembly, hence they were incapable of passing a valid motion pursuant to section 188( 4) of the Constitution (supra) to the effect that a purported allegation of gross misconduct be investigated against the plaintiff.
7. A DECLARATION that the purported resolution passed by the 2nd-7th defendants on the 13/10/2006, pursuant to section 188( 4) of the Constitution is unconstitutional, null and void, having been purportedly passed by less than two-thirds (2/3rd) majority of all the members of the Plateau State House of Assembly.
8. A DECLARATION that the purported appointment of the Seven (7) Man Panel of Investigation headed by the 1st defendant by the Acting Chief Judge of Plateau State at the instance of the 2nd-7th defendants to investigate the purported notice of allegation of gross misconduct against the plaintiff herein is unconstitutional, null and void for manifestly being a contravention of section 188(4) of the Constitution which requires the support of two-thirds majority of all the members of the House for which the 2nd- 7th defendants are not.
9. A DECLARATION that the purported notice of allegations of gross misconduct made against Chief (Dr.) Joshua Chibi Dariye, the Governor of Plateau State as a preparatory step to his impeachment by the 2nd-7th defendants is unconstitutional, null, and void, and of no effect whatsoever for want of strict compliance with the provisions of section 188(1) and (2) of the Constitution of the Federal Republic of Nigeria, 1999.
10. A DECLARATION that the purported notice of allegation of misconduct made by the 2nd-7th defendants against Chief Dr. Joshua Chibi Dariye, Governor of Plateau State not having being received and/or served on each of the 24 (twenty four) members of the Plateau State House of Assembly as envisaged by section 188(2) of the Constitution of the Federal Republic of Nigeria, 1999 is unconstitutional, null and void and of no effect whatsoever:
11. A DECLARATION that the motion passed by the 2nd-7th defendants on 13th of October, 2006 calling for the investigation of the allegation of misconduct against Chief (Dr.) Joshua Chibi Dariye the Governor of Plateau State, is in contravention of section 188(3) and (4) of the Constitution of the Federal Republic of Nigeria, 1999 and to that extent, and for all intents and purposes the said motion is unconstitutional, null, void and of no effect whatsoever.
12. A DECLARATION that no valid notice of allegation of misconduct has been issued by the 2nd-7th defendants, same not having been passed through the Clerk of the Plateau State House of Assembly for service on the plaintiff nor received formally by the Honourable Speaker of the Plateau State House of Assembly, Rt. Hon. Simon Lalong in accordance with the provisions of section 188(2)(a) and (b) and section 188(3) of the Constitution of the Federal Republic of Nigeria, 1999.
13. A DECLARATION that the 2nd-7th defendants who had at all material times been arrested, captured and detained and/or held hostage by the EFCC and/or its servants, operatives or agents and forcefully brought to Jos from Abuja on each occasion and forced them to purportedly sit vie et armis on 5/10/06, 13/10/06 and 13/11/06 as the Plateau State House of Assembly never sat or acted willingly, independently or voluntarily but did so under grievous threats, intimidation, duress and coercion all of which have rendered their purported sittings and any decisions or resolutions thereof absolutely null and void and of no legal effect whatsoever.
14. A DECLARATION that the right of fair hearing of the plaintiff enshrined in section 36( 1) and 188(6) of the Constitution of the Federal Republic of Nigeria, 1999 was rampantly violated by the defendants in that there was no proper or valid service of notice of allegation of gross misconduct on the plaintiff, the plaintiff was not given opportunity to fully and properly cross-examine witnesses called by the 2nd -7th defendants before the seven (7) Man Panel and that the plaintiff was deprived of the opportunity of entering his defence hence the entire impeachment proceedings initiated and concluded by the 2nd- 7th defendants including the proceedings of the seven (7) Man Panel headed by the 1st defendant are incurably and irredeemably flawed, unconstitutional, null and void and of no effect whatsoever.
15. AN ORDER setting aside all the steps taken by the 2nd-7th defendants in relation to the issuance of notice of allegation of misconduct, passage of motion to investigate same and the purported directive to the Acting Chief Judge of Plateau State, the said steps having breached the provisions of sections 36(1) and 188 of the Constitution of the Federal Republic of Nigeria, 1999.
16. AN ORDER nullifying the purported interim or any other report offendings submitted by the Seven (7) Man Panel of Investigation against the plaintiff herein to the 2nd -7th defendants herein on the basis of which the 2nd-7th defendants purportedly impeached the plaintiff as the Governor of Plateau State on the 13th November, 2006.
17. A DECLARATION that the purported impeachment of the plaintiff at the early hours of Monday, the 13th day of November, 2006 by the 2nd- 7th defendants in pursuance of a purported Interim Report by the Seven (7) Man Panel of investigation of allegation of gross misconduct submitted by the 1st defendant is patently illegal, null and void and of no effect as the said panel had already ceased to exist having been dissolved on Friday, the 10th day of November, 2006.
18. A DECLARATION that the 2nd -7th defendants having participated in the inauguration of the Special Committee for the Investigation of the Plaintiff for corruption, money laundering, abuse of office etc, consequent upon a letter/complaint from the EFCC dated November, 30, 2005 and having in concert with other Honourable members of the Plateau State House of Assembly participated in receiving and unanimously adopting the said Committee’s Report exonerating the plaint(ff without objection or dissent cannot resile from same or are estopped from resiling from same during their tenure and/or less than a period of six (6) months thereafter.
19. AN ORDER nullifying the purported impeachment of the plaintiff at the early hours of Monday, the 13th day of November, 2006 by the 2nd-7th defendants in pursuance of a purported Interim Report submitted by the 1st defendant as same is a gross transgression of section 36(1). 91-105 and 188 of the Constitution (supra) having regard to the doctrine of fair hearing, due composition of the Plateau State House of Assembly as well as the procedure for impeachment.
20. AN ORDER restoring or re-instating the plaintiff to his office as the Governor of Plateau State together with the rights, privileges, paraphernalia and perquisites of his said office.
21. A DECLARATION that the conduct of the Seven (7) Man Investigating Panel headed by the 1st defendant, an inferior tribunal scoffing at the orders of a court is a sad sabotage of the rule of law as inferior tribunals are obliged to obey the order of a court.
22. A PERPETUAL INJUNCTION restraining the 1st defendant from submitting any further report of the Seven (7) Man Panel of Investigation to the 2nd -7th defendants against the plaintiff.
23. AN ORDER restraining the 2nd-7th defendants from receiving any report, from the 1st defendant and/or acting on any report from the 1st defendant in respect of the allegation of gross misconduct leveled against the plaintiff.
24. AND such further or other orders or reliefs as the Honourable court may deem fit and just to make or grant in the circumstances.

The appellants as defendants upon being served with the originating summons filed a notice of preliminary objection and at the same time a counter-affidavit to the affidavit in support of the originating summons.

On the 13/12/06 the learned trial judge upon observing that the 1st defendant/2nd respondent though served with the originating summons had not entered an appearance and had not been served with the preliminary objection ordered that he be served with a hearing notice against the 15/12/06 when he said he will hear parties on the preliminary objection raised by the appellants/2nd-7th defendants.

On the 15/12/06 the plaintiff/1st respondent was represented by counsel, the 1st defendant/2nd respondent was absent and unrepresented by counsel but served with all processes, the 2nd-7th defendants/appellants were represented by counsel, after being satisfied that the 1st defendant had been duly served the court ordered parties to file written briefs in respect of the preliminary objection and thereafter made the following order;

“Having considered the exigencies of the time and the fact that this is an originating summons. I order that both parties submit their written briefs on the suit with that of the p/objection. If the p/objection succeeds, it will be the end of the matter. If it does not succeed, the substantive suit may be hard (sic) and considered. I rely on the procedure adopted in the case of Adeleke v. Oyo State House of Assembly. ”

The appellant being dissatisfied with the above ruling appealed to this court on these grounds of appeal as contained in their notice and grounds of appeal filed on the 19/12/06.