Ifeanyichukwu E. R. Okonkwo V. Attorney-general of Anambra, State & Ors. (2009)

LawGlobal-Hub Lead Judgment Report

AMIRU SANUSI, J.C.A.

This is an appeal against the decision of the High Court of Justice, Anambra State (hereinafter referred to as “The Lower Court”) delivered on 14th day of July 2004 by Iyizoba J., wherein she inter alia, held that there was no lis between the plaintiff/appellant and the present respondents who were some of the defendants thereat. The learned trial judge struck out the suit filed by the plaintiff/appellant also because the suit was unsustainable, academic, a futile exercise and that the complaint or claims made by the plaintiff were overtaken by event. Aggrieved by the decision of the lower court supra the appellant appealed to this court.

The facts of the case which gave rise to this appeal are briefly summarized hereunder. The appellant as plaintiff at the lower court, instituted an action by way of Originating Summons against the thirty two defendants who included Dr. Clement Chinwoke Mbadinuju, the then Governor of Anambra State, Hon. Barth Onugbolu, the Speaker of the Anambra State House of Assembly; the Peoples Democratic Party (PDP) and the Inspector General of Police (IGP) as 2nd, 4th, 32nd, 31st defendants/respondents respectively and a host of other principal officers of both the executive and legislative arms of Government of Anambra State including the Hon. Attorney General of the said State. In the course of the proceedings at the lower court however, some of the defendants, for instance the majority leader of the House of Assembly Hon. Okenwa Osukpo (8th Defendant) died and his name was struck out.

It needs to be stated here, that in the Originating Summon file in the lower court, the plaintiff formulated thirteen questions for determination and also sought twenty-three reliefs. The said Originating Summons had in its support a 170 paragraph affidavit with seventeen exhibits annexed to it. A further affidavit of five paragraphs was also later filed by the plaintiff annexing to it seven additional exhibits.

Looked cursorily, the main or major complaints of the plaintiff in the Originating Summons was the alleged unconstitutional manner in which Dr. Mbadinuju, the then governor of Anambra State, was said to have on 29th day of December 2000 (which was the last working day of that year) procured the Anambra State House of Assembly to pass a into law Supplementary Appropriation Bill of 2000 which involved a sum of N3.585 billion which said action according to him (plaintiff) breached the provisions of Section 120(2)-(4) of the Constitution of the Federal Republic of Nigeria 1999. The plaintiff also made several accusations or allegations of corrupt, fraudulent or criminal manner in which the former Governor (2nd Defendant/respondent) and were allegedly managing the funds of Anambra State Government and the PDP were governing the affairs of the State. He said all these actions by the 2nd, 3rd, 4th, 5th, 7th, 26th, 29th, 30th and 31st defendants/respondents in the management of the affairs of the government of Anambra State were unconstitutional and had amounted to violation of the oaths of office of those defendants/respondents.

The plaintiff in an effort to establish his claim against the defendants/respondents at the lower court made some far reaching averments in his affidavit supporting the Originating Summons. Notable among these averments, are the followings:-

“140. That it is a fact the 2nd Defendant in alliance with 3rd, 4th, 5th to 26th, the 29th, 30th and 31st defendants violated the 1999 Constitution of the Federal Republic of Nigeria in their purported dealing with the funds of the Anambra State people held in the State Consolidated Revenue Fund/Account.

147. That the 2nd, 29th and 30th Defendants had illegally and unconstitutionally appropriated the funds belonging to the first Defendant more so including the plaintiffs own share of the Democracy Dividends, and caused the Plaintiffs stagnation and economic immobility, the deprivation of welfare benefits as enshrined in the Constitution of the Federal Republic of Nigeria under participatory democracy.
148. That irreparable harm will be done to the next administration in Anambra State when the plaintiff must have won election, come 2003, to assume the office of the Executive Governor of the 1st Defendant, if the corrupt and visionless Government of the 2nd Defendant is not checked and made accountable to the people, by the urgent entertainment of this case by the Honourable Court.
149. The Plaintiff who shall contest as a candidate for the office of the Governor of the 1st defendant in 2003, and had already flagged off his campaign, will suffer psychological fit, and avoidable hardship as a result of the 1st defendant’s overexposure to financial institutions; general state of abandoned and unviable projects, unbalanced budget and general economic downturn when he assumes office as Governor come 2003 due to the illegal and unconstitutional acts of the 2nd, 5th, 29th, and 30th defendants now challenged.
150. That the object of the dispute between the Plaintiff and 2nd and 3rd defendants concerned the unconstitutional exercise of power/authority over the funds of Anambra State vide an illegal Supplementary Appropriation Bill tagged Anambra State of Nigeria Supplementary Appropriation Law No. 10 of 2000 upon which the sum of N3,585,003,470 (N3.585 billion was illegally withdrawn.
151. That I verily believe that unless this Honourable Court intervenes that the Plaintiffs ambition to inherit a balanced Budget will not be realizable, in the event he succeeds in the 2003 Governorship elections.
152. That in the illegal act by the 2nd, 5th, 29th and 30th defendants which is an infraction of a criminal nature, by unconstitutionally taking away the sum of N3.585 billion belonging to the 1st Defendant and creating a Law the effect of an impossibility through a retrospective operation of the statute to regularize the frauds, it is constitutional for the 32nd Defendant to investigate the allegation.
153. The illegal act of the 2nd, 5th, 29th and 30th Defendants which is an infraction of a criminal nature by unconstitutionally taking away the sum of N3.584 billion belonging to the 1st creating a Law with the effect of an impossibility through a retrospective operation of the statute to regularize the frauds, it is constitutional for the 32nd defendant to investigate the allegation.”

It is with regard to the above averments that the plaintiff/appellant sought some of the under listed reliefs:-

“(M) A declaration that the sum of N3.585 billion appropriated by 2nd, 3rd, 29th, and 30th defendants purported acting under the Anambra State of Nigeria, And that the funds where stolen from the State Treasury.

(T) A declaration that the illegal and unconstitutional acts of the 2nd, 5th, 29th, and 30th defendants more particularly the 2nd and 5th defendants by making the Anambra State of Nigeria Supplementary Appropriation Law No.10 of year 2000 have a retrospective effect without a valid authority, and the Illegal withdrawal by the 2nd, 29th and 30th defendants of the sum of N3.585 billion is a sort of misfeasance; abuse of office, a breach of their Various oath of offices (sic), all are impeachable offences warranting Their removal from offices.

(V) An Order directing the 32nd defendant to investigate the activities Surrounding illegal back dating retrospectively of the Anambra State of Nigeria Supplementary Appropriation Law No. 10 2000 and the Unconstitutional withdrawal of sum of N3.585 billion under that Illegal Law.

(X) An Order directing the Attorney General of Anambra state to prosecute the 2nd, 5th, 29th and 30th defendant for their rolls (sic) in the illegal back dating of the 2000 year Supplementary Appropriation Law No. 10 and the stealing of the funds of Anambra State in the sum of N3.585 billion.

(Y) An order directing the 3rd, 4th defendants to issue a notice of the 2nd defendant pursuant to Section 188 of the 1999 Constitution for his immediate impeachment and removal from office.”

As I stated earlier, the lower court refused to grant any of the reliefs sought by the plaintiff for reasons I remarked above, hence the plaintiff became dissatisfied with the decision of the lower court striking out his suit and he thereby appealed to this court vide a Notice of Appeal dated 29/7/04.