Hon. S.L. Akintola V. Sir Adesoji Aderemi & Anor (1962)
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ON the 21st day of May, 1962, the above-named plaintiff filed an action in the High Court at Ibadan in Western Nigeria against the 1st defendant claiming as follows:-
(i) A Declaration that there is no right in the Defendant to relive the Plaintiff of his office as Premier of Western Nigeria under s.33(10) of the Constitution of Western Nigeria in the absence of a prio resolution/decision of the Western House of Assembly reached on the floor of the House to the effect that the Plaintiff no longer commands the majority of the members of the House of Assembly.
(ii) An injunction to restrain the Defendant from purporting to relieve the Plaintiff of his office as Premier of Western Nigeria under s.33(10) of the Constitution of Western Nigeria in the absence of a prior resolution/decision reached on the floor of the House of Assembly to the effect that the Plaintiff no longer commands the support of a majority of the members of the House of Assembly.
At the same time there was filed with the Court a Notice of Motion for an order of interim injunction to restrain the 1st defendant “from purporting to relieve the plaintiff of his office as Premier of the Western Region in the absence of a resolution of the House of Assembly to the effect that he no longer commands the support of the majority of members of the House of Assembly”. Subsequent to the filing of the Writ and Notice of Motion, the 1st defendant by a notice purported to remove the plaintiff from the office of Premier and proceeded to swear in the 2nd defendant as the Premier of the Region. The plaintiff thereupon sought and obtained the leave of the Court to add to his claims two more reliefs as follows:
(iii) A Declaration that the purported removal of the Plaintiff by the Defendant as Premier of Western Nigeria is invalid and of no effect.
(iv) An injunction to restrain the Defendants from usurping or permitting anyone to usurp the duties of the Plaintiff as Premier of Western Nigeria unless and until he resigns or is constitutionally relieved of the office.
At this stage leave was obtained by the plaintiff to join the 2nd defendant in the action. Subsequently, the 2nd defendant obtained the leave of the Court to file a counter-claim.
On the 29th May, 1962, the plaintiff, in accordance with the Order of Court, filed a Statement of Claim to which a Statement of Defence and counter-claim were filed jointly on behalf of the two defendants. The Counter-claim reads:
The Defendants claim:
(1) A declaration that the removal of the Plaintiff from the office of Premier of Western Region was valid and effective.
(2) A declaration that the 2nd defendant was validly and lawfully appointed as Premier by the first Defendant and that the second Defendant has ever since the 21st May, 1962, been entitled to act and to exercise all powers and to discharge all the functions of Premier of the Western Region.
(3) An injunction to restrain the Plaintiff from purporting to act as Premier of the Western Region or from exercising any of the forms or discharging any of the functions of Premier of the Western Region.
Upon this matter coming up for hearing before the High Court, Ibadan, on 5th June, 1962 after a preliminary argument, including an application under Section 108 of the constitution of the Federation to have certain points referred to the Federal Supreme Court, it was decided to refer the matter and counsel on both sides agreed that the following issues be so referred:-
1. Can the Governor validly exercise power to remove the Premier from office under Section 33 subsection 10 of the constitution of Western Nigeria without prior decision or resolution on the floor of the House of Assembly showing that the Premier no longer commands the support of a majority of the House?
2. Can the Governor validly exercise power to remove the Premier from office under Section 33(10) of the Constitution of Western Nigeria on the basis of any materials or information extraneous to the proceedings of the House of Assembly?
The learned chief Justice of the High Court, Western Region, accordingly referred the two issues to his Court under Section 108(2) of the Constitution of the Federation of Nigeria which provides:
108(2) Where any question as to the interpretation of this constitution or the constitution of a Region arises in any proceedings in the High Court of a territory and the court is of the opinion that the question involves a substantial question of law, the Court may, and shall if any party to the proceedings so requests refer the question to the Federal Supreme Court.
At the hearing before us, Mr. Akinyele for the defendants raised a preliminary objection to the Reference being heard at this stage on the grounds (1) that it was too premature, and (2) that the Reference was not according to form. We overruled the two objections and the Reference continued.
Mr. Moore for the plaintiff prefaced his arguments with what he called “three admitted facts before the Court.” This was not disputed by the defence, and indeed the whole reference was based on these facts, namely:
1. Plaintiff was duly appointed Premier according to the Constitution.
2. The 1st defendant in removing him as Premier acted under Section 33(10) of the Western Nigeria Constitution.
3. The decision by the 1st defendant to remove the plaintiff from the Premiership was based on a letter purporting to be from 66 members of the House of Assembly to the effect that they no longer have confidence in the Premier.
The matter that arises for consideration on the fast question is whether the Governor would be acting in contravention of Section 33(10) of the Constitution of Western Nigeria if he by notice removed the Premier from office without giving him an opportunity of testing his popularity on the floor of the House of Assembly because he (Governor) formed the view that the Premier no longer commanded the support of a majority of members of the House of Assembly. The relevant section of the Constitution is as follows:-
33(10) Subject to the provisions of subsections (8) and (9) of this Section, the Ministers of the Government of the Region shall hold office during the Governor’s pleasure:
(a) the Governor shall not remove the Premier from office unless it appears to him that the Premier no longer commands the support of a majority of the members of the House of Assembly; and
(b) the Governor shall not remove a Minister other than the Premier from office except in accordance with the advice of the Premier.
Mr. Moore made his submissions in two ways stating that in either case the question should be resolved in the negative. His submissions are-
1. That within the basis of the constitution itself, the position is that a Premier will be removed from office on a resolution of the House, and
2. That the provisions of Section 33(10) of the constitution of Western Nigeria is an attempt to write down the constitutional convention of the English Constitution, and therefore its interpretation should be based on the way the Convention had worked historically and the stage of evolution it had reached when it was embodied in the Nigeria Constitution of 1960.
Arguing on the 1st submission, Counsel invited us to note the difference in the wording of Section 33(10) and Section 33(2) of the constitution, which deals with the appointment of a Premier, and is as follows:
33(2) Whenever the Governor has occasion to appoint a Premier he shall appoint a member of the House of Assembly who appears to him likely to command the support of the majority of the members of the House.
When a Government or Premier is defeated in the House, Counsel observed, there is no question of likely; the event becomes certain. The discretion left in the Governor, it was submitted, can only be exercised when the proceedings in the House are confused. When it is clear, there is no discretion and the Governor has to act accordingly. Reference was made to Section 38(1) of the constitution of Western Nigeria which deals with the exercise of the Governor’s powers. The subsection, after providing that the Governor shall act in accordance with the advice of the Executive Council, continues:-
Provided that the Governor shall act in accordance with his own deliberate judgment in the performance of the following functions-
(a)in the exercise of the powers relating to the dissolution of the Legislative Houses of the Region conferred upon him by the proviso to subsection (4) of Section 31 of this Constitution;
(b) in the exercise of the power to appoint the Premier conferred upon him by subsection (2) of Section 33 of this Constitution;
(c) in the exericse of the powers conferred upon him by Section 37 of this Constitution (which relates to the performance of the functions of the Premier during absence or illness) in the circumstances described in the proviso to subsection (2) of that section; and
(d) in signifying his approval for the purposes of section 63 of this Constitution of an appointment to an office on his personal staff.
In arguing the second submission, Mr Moore referred to the conventions in England on these matters which are adopted in Nigeria. Section 33(10), which relates to the tenure of office as Premier or as a Minister, and to removal from office, he said, is the same as the English constitutional convention.
Mr Ibekwe, Solicito
Other Citation: (1962) LCN/0979(SC)