Senator Rashidi Adewolu Ladoja V Independent National Electoral Commission (2007)

LAWGLOBAL HUB Lead Judgment Report

RABIU DANLAMI MUHAMMAD, J.C.A.

Senator Rashidi Adewolu Ladoja, the appellant herein, is the Executive Governor of Oyo State. He was elected to that office sometimes in April, 2003. He took the oath of office on 29th May, 2003. He is to serve as Governor of Oyo State for a period of four years. His term of office will expire on the 29th day of May, 2007. However, sometimes in 2005, a faction of members of the Oyo State House of Assembly purportedly impeached him and he was removed as Governor of Oyo State.

He was replaced as Governor with his Deputy. The appellant was not happy with this, he therefore challenged the purported impeachment in court. The matter went up to the Supreme Court. The Supreme Court in its judgment declared the purported impeachment unconstitutional and as such null and void and of no effect whatsoever. The Supreme Court confirmed that the appellant remains the legally, constitutional and democratically elected Governor of Oyo State. As a result of this judgment, the appellant was reinstated as the Governor of Oyo State. However he had already spent eleven months out of office before his reinstatement He therefore brought an originating summons against the respondents. In the amended originating summons, the appellant asked the Federal High Court to determine:

“WHETHER having regard to the provision of section 180 of the Constitution of the Federal Republic of Nigeria, 1999 (which relates to the tenure of office of a Governor of a State) and the judgment of the Supreme Court in suit No.SC/272/2006 nullifying the purported removal of the plaintiff from office as Governor of Oyo State of Nigeria, the period of eleven months for which the Governor was illegally removed from office, forms part of the plaintiff four years term of office as Governor of Oyo State.”

The appellant then claimed the following reliefs:-

“1. A declaration that the plaintiff is entitled to a term of four uninterrupted years in office as Governor of Oyo State of Nigeria commencing from 29th May, 2003 by virtue of section 180(2)(a) of the Constitution of the Federal Republic of Nigeria, 1999.

2. A declaration that the plaintiff as the person duly elected and sworn in as Governor of Oyo State can only be required to vacate office in the manner prescribe under sections 188 and 189 of the Constitution, that is until the expiration of four years from the date on which he swore to the oath of allegiance and oath of office.
3. A declaration that the purported removal of the plaintiff, a sitting Governor in breach of this provision of the Constitution shall not affect or interfere with the certainty of tenure of office of the plaintiff as Governor as provided for in section 180(2) of the Constitution.
4. A declaration that by virtue of section 180 of the Constitution of the Federal Republic of Nigeria, 1999 and the decision of the Supreme Court of Nigeria nullifying the purported removal of the plaintiff from office as Governor of Oyo State, the period of eleven months during which the Governor was removed from the office does not form part of the plaintiff’s term of four years as Govemor of Oyo State.
5. A declaration that by virtue of the provisions of section 180(2)(a) of the Constitution of the Federal Republic of Nigeria, 1999 the plaintiff is entitled to remain in office until 29th April, 2008 when his four years certain term of office as Governor of Oyo State shall have expired.
6. A declaration that the plaintiff is not required to vacate office as Governor until 29th April, 2008, which said date conforms with the constitutional period of tenure of four years certain as provided in the Constitution.
7. An order of perpetual injunction restraining the 1st defendant, its agents or privies from conducting an election to the office of Governor of Oyo State on the 14th April, 2007 as scheduled by the 1st defendant or at any other time without first taking into consideration the period of eleven months, when the plaintiff’s tenure of four years certain would have been accommodated.

And further take notice that the ground upon which this application is brought are as follows:-

(i) By virtue of S.180(2)(a) of the Constitution, the Governor of a State of the Federal Republic of Nigeria shall hold office for four years certain commencing from the date when he took the oath of allegiance and oath of office and can only be removed pursuant to the provisions of the Constitution of the Federal Republic of Nigeria, 1999.

(ii) The said period of eleven months when the plaintiff was removed from office does not form part of the plaintiff’s four year certain term of office.”

The originating summons is supported by an affidavit of 18 paragraphs. All the respondents opposed the originating summons and all of them separately filed their respective counter-affidavit.

Each of the parties also filed a written address. At the hearing of the originating summons, counsel for the parties adopted their respective written addresses and also proffered oral argument.

In a reserved judgment, the learned trial Chief Judge held as follows:-

“From the totality of the foregoing, and to answer the issue raised for determination by the plaintiff in (sic) its originating summons, the substantive suit herein, I find that the plaintiff’s term of office is 4 years, calculated from the date the plaintiff took his Oath of Allegiance and Oath of Office which is 29th May, 2003 to 29th May, 2007. The 11 months during which the plaintiff was out of office, albeit forcibly, having been declared null and void cannot now confer any right or impose any obligation on the plaintiff. To take cognisance of that period of four years of the plaintiff’s tenure so as to award to the plaintiff an additional period of 11 months in office, would have the effect of elongating or extending the plaintiff’s tenure of office beyond 29th May, 2007 and push same to 29th April, 2008. That is a thing that will clearly offend the provisions particularly section 180(2)(a) and (b) of the Constitution 1999. It will also offend the provisions of section 178(1) and (2) of the Constitution.”

The learned trial Chief Judge therefore declined to grant any of the reliefs sought by the appellant.

Aggrieved by this decision, the appellant appealed to this court. The notice of appeal contains three grounds. Shorn of their particulars, the grounds of appeal read:-

(i) The learned trial Chief Judge of the Federal High Court erred in law when His Lordship held that the period of eleven months for which the plaintiff was illegally removed from office as Governor of Oyo State Nigeria forms part of the plaintiff’s four-year term of office.

(ii) The learned trial Judge erred in law in failing to follow the decision of the Court of Appeal in A.-G. Federation v. ANPP (2003) 15 NWLR (Pt.844) 600 which specifically construed the provisions of sections 180 and 182(1)(b) of the 1999 Constitution in relation to the period of tenure and held that any person who is elected as Governor of a State and who takes the oath of office but is removed from office before the end of his tenure by a process not recognized under section 180 of the Constitution, that he would not be subject to the disqualifying provisions of section 182(1)(b) of the 1999 Constitution because he did not complete his tenure as Governor of a State in accordance with the constitutional provisions.

(iii) The learned trial Chief Judge erred in law in not giving effect to the judgment of the Supreme Court in Inakoju v. Adeleke (2007) 4 NWLR (Pt. 1025) 423 where the removal of the appellant was declared illegal null and void and of no effect whatsoever by holding that the period of 11 months when the appellant was out of office forms part of his tenure and as such giving effect to that period which the Supreme Court had already declared has no effect.”

In accordance with the rules of this court, briefs of argument were ordered, filed and exchanged by all the parties. In the appellant’s brief, two issues were identified for the resolution of this appeal. The 1st respondent, on the other hand, formulated only one issue for the determination of the appeal. The 2nd respondent also formulated one issue. The 3rd respondent also identified one issue while the 4th respondent formulated three issues for the determination of the appeal. Having regard to the circumstances of this appeal, the grounds of appeal and the decision of the learned trial Chief Judge, it is my considered opinion that the is sue formulated by the 1st respondent is more apposite to the determination of this appeal. The issue reads:-

“Whether having regard to the circumstances of this matter and the provision of section 180 of the Constitution of the Federal Republic of Nigeria, 1999, the appellant is entitled to the reliefs sought ill his originating summons.”

At the hearing of the appeal, Chief Robert Clarke learned senior counsel for the appellant adopted the appellant’s brief of argument and also proffered oral arguments to elucidate some points. The learned senior counsel submitted that the matter arose from the decision of the Supreme Court in the case of Inakoju v. Adeleke (2007) 4 NWLR (Pt. 1025) 423 in which the apex court declare the impeachment of the appellant as unconstitutional, null and void ab initio and that the removal of the appellant for a period of eleven months has no backing in law. He submitted that the section of the Constitution that call for interpretation are sections 1(2), 180, 180(2), 180(3), 191(1) and 305 of the Constitution of the Federal Republic of Nigeria, 1999. It was submitted that the lower court was wrong in treating the period of the eleven months when the appellant was ousted from office as interruption and that interruption was not within the ambit of the Constitution. It was the submission of the learned senior counsel that the Constitution has provisions for interruptions which the lower court ignored and that section 1(2) of the Constitution has been violated. In support the following cases were referred to: Attorney-General, Federation v. ANPP (2003) 15 NWLR (Pt. 844) 600 and Peoples Democratic Party v. Abubakar (2007) 3 NWLR (Pt. 1022) 515. It was further submitted that the lower court was wrong for not following the above quoted cases. It was also submitted that the court cannot give validity to the actions of area boys. Learned senior counsel submitted that the appellant has been wronged and as such he has a remedy in law. The maxim ubi jus ubi remedium and the case of Dalltata v. Mohammed (2000) 7 NWLR (Pt. 664) 176 were cited in support. It was also submitted that S. 178 of the Constitution is not sacrosanct.

Also in the appellant’s brief it was submitted that the learned trial Chief Judge gave a very narrow and restricted interpretation of S.180 and that the learned trial Chief Judge arrived at a wrong conclusion that the Constitution does not provide for interruption. It was also submitted that had the learned trial Chief Judge taken into cognisance the provisions of sections 1(2) and 191(1) of the 1999 Constitution he would have arrived at a different conclusion. It was also submitted that in interpreting a provision of Constitution it is the duty of the court to look at the Constitution as a whole in order not to veer away from the intendment of its framers. In support of this submission, the following cases were referred to:- PDP v. INEC (1999) 11 NWLR (Pt. 626) 200; A.-G., Bendel State v. A.-G., Federation (1982) 3 NCLR 1; Okogie v. A.-G., Lagos State (1981) 1 NCLR 218 and Ojukwu v. Obasanjo (2004) 12 NWLR (Pt.886) 169. The judgment of the Supreme Court in Inokoju v. Adeleke (supra) was extensively quoted and it was submitted that at arriving at his decision, the learned trial Chief Judge closed his eyes to the illegalities perpetrated against the appellant which were widely condemned by the Supreme Court in very strong terms. It was also submitted that the findings of the lower court that what the appellant was seeking has the effect of elongating or extending his tenure of office beyond 29th May, 2007 was erroneous. What the appellant wants is to be allowed to complete his term of four years. We were urged to allow the appeal.

Chief Gadzama, learned senior counsel for the 1st respondent adopted the brief of argument filed on behalf of the 1st respondent and submitted that this court has no power to grant the relief sought by the appellant and that the court has no power to stay swearing in of a Governor. He also submitted that the tenure of office of a Governor is four years and that the emphasis is on the period and not on legality or illegality and that the period is not a personal right and that there was continuity of governance and the removal of the appellant did not create any vacuum. After quoting the provisions of S.180(1) of the 1999 Constitution it was submitted that where the words of the provision of the Constitution are clear and unambiguous, they should be given a literal interpretation. The following cases were cited in support:- Buhari v. Obasanjo (2003) 17 NWLR (Pt. 850) 587; Nafiu Rabiu v. Kano State (1981) 2 NCLR 293 and Obete v. Okpe (1996) 9 NWLR (Pt. 473) 401. It was also submitted that there is no provision in S.180 of the Constitution which expressly contemplates the appellant’s contention and that it is not the duty of the court to manufacture or read meaning into a statute, especially when the wordings are clear and unambiguous. We were urged to dismiss the appeal.

Mrs. Kida learned counsel for the 2nd respondent, adopted the 2nd respondents brief and urged us to dismiss the appeal.

Esan, learned counsel for the 3rd respondent adopted the 3rd respondents brief of argument and urged the court to dismiss the appeal.

Adewoye learned counsel for the 4th respondent adopted the 4th respondent’s brief and urged the court to dismiss the appeal.

At this juncture, before the learned senior counsel for the appellant could reply on points of law, Chief Gadzama senior counsel for the 1st respondent rose and submitted that it is only an election tribunal that could entertain the matter and that the appellant should have gone to an Election Tribunal and not the Federal High Court.

Chief Clarke replied that the appellant was right to have gone to the Federal High Court and that this is not a matter for an election tribunal.

By this last submission, Chief Gadzama has raised an important issue, i.e. The issue of jurisdiction which is sine qua non to any adjudication. This issue of jurisdiction was not raised in good time in this court, it was also not raised at all at the lower court. The issue of jurisdiction being radical and at the foundation of adjudication is a very fundamental one which goes to the competence of the court or tribunal and as such can be raised at any stage of the proceedings without the leave of the court, jurisdiction being a threshold issue can be taken at any stage of the proceedings in the court of first instance or in this court or for the first time in the Supreme Court. It can be raised immediately before judgment and if so raised, the court must stop delivering the judgment until the issue of jurisdiction is cleared. The issue of jurisdiction can be raised orally by counsel.

Also, the court can suo motu raise the issue of jurisdiction. The leave of the court is not required in order to raise the issue of jurisdiction. See:- Oloriode v. Ovebi (1984) 5 SC 1; (1984) 1 SCNLR 390; Ezomo v. Oyakhire (1985) 2 SC 260; (1985) 1 NWLR (Pt. 2) 195; Oloba v. Akereja (1988) 3 NWLR (Pt. 84) 508; Odofin v. Agu (1992) 3 NWLR (Pt.229) 350; Galadima v. Tambai (1994) 8 NWLR (Pt.365) 747 and Awuse v. Odili (2003) 18 NWLR (Pt. 851) 116. In our present case ever though the issue of jurisdiction was raised orally, without the leave of the court, for the first time in this court and at the last stage of the proceedings, it is in my considered view, properly raised, that once raised the court must consider the issue.

The issue is so radical that it forms the foundation of adjudication. If a court lacks jurisdiction, it also lacks the necessary competence to try the case at all. A defect in competence is fatal, for the proceedings are null and void ab initio, however well conducted and well decided they may otherwise be. A defect in competence is extrinsic to adjudication. The court must first of all be competent before it can proceed on any adjudication. See: Madukolu v. Nkemdilim (1962) 1 All NLR 587; (1962) 2 SCNLR 341 and Oloba v. Akereja (supra).

I will now consider, to determine whether or not the Federal High Court has jurisdiction to entertain the matter. Section 285(1) of the 1999 Constitution provides:-

“285(1) There shall be established for the Federation one or more election tribunals to be known as the National Assembly Election Tribunal which shall, to the exclusion of any court or tribunal, have original jurisdiction to hear and determine petitions as to whether –

(a) any person has been validly elected as a member of the National Assembly;

(b) the term of office of any person under this Constitution has ceased;

the seat of a member of the senate or a member of the House of Representative has become vacant; and a question or petition brought before the Election Tribunal has been properly or improperly brought.”

The relevant provision is S. 285(1)(b) i.e. whether the term of office of any person under this Constitution has ceased. The contention of the appellant is that his term of office as Governor of Oyo State will cease only in April, 2008 because he was illegally and unconstitutionally removed from office by the Oyo State House of Assembly for eleven months. According to him, he is entitled by law to serve the eleven months, the time he was purportedly impeached. The respondent’s contention is that the appellant’s term of office as Government of Oyo State ceases on 29th May, 2007. They further contend that the appellant’s term of office is for four years and since he took the oath of office on 29th May, 2003, his term of office ceases on 29th May, 2007.

In interpreting a provision of the Constitution, the primary function of the court is to search for the intention of the lawmaker. Where a constitutional provision is clear and unambiguous, the court must give the words their ordinary meaning unless it will lead to absurdity and inconsistency with the provision of the Constitution as a whole. The true meaning of the words used and the intention of the legislature in a Constitution can best be properly understood if the Constitution is considered as a whole. It is a simple document and every part of it must be considered as far as relevant in order to get the true meaning and intent of any particular portion of the enactment. Also a Constitution must be interpreted and applied liberally. It must always be construed in such a way that it protects what it sets out to protect or guides what it sets out to guide. By necessity a constitutional provision must be interpreted broadly. See: Okogie v. A.-G., Lagos State (1981) 2 NCLR 337; Garba v. FCSC (1988) 1 NWLR (Pt.71) 449; PDP v. INEC (1999) 11 NWLR (Pt. 626) 200; Egolum v. Obasanjo (1999) 7 NWLR (Pt. 611) 355; Araka v. Egbue (2003) 17 NWLR (Pt. 848) 1 and Awuse v. Odili (2003) 18 NWLR (Pt. 851) 116.

The provisions of S. 285(1)(b) of the 1999 Constitution is clear and unambiguous and as such the words must be given their ordinary meaning. Simply put, S. 285(1)(b) gives exclusive original jurisdiction to the National Assembly Election Tribunals to entertain and determine petitions as to whether the term of office of any person under the said Constitution has ceased. No any other Court or tribunal has original jurisdiction to entertain the matters.

I therefore hold that the Federal High Court has no jurisdiction to hear and determine the matter. Only the National Assembly Election Tribunal have original jurisdiction, to the exclusion of any court or tribunal, to hear and determine the matter.

Having arrived at this conclusion, there is no need for me to go into the merits of the appeal. Ordinarily, this should be the end of matter and the case be struck out. But due to the peculiar circumstances of this case and the urgency of the matter, instead of striking out the case, I will transfer it to the National Assembly Election Tribunal, Oyo State for determination. This is by virtue of the Federal High Court Act, Laws of the Federation of Nigeria, 2004 which gives the Federal High Court power to transfer a matter to another court and section 15 of the Court of Appeal Act.

Section 22(2) of the Federal High Court Act, Cap. F12, Laws of the Federation of Nigeria, 2004 provides:-

“No cause or matter shall be struck out by the court merely on the ground that such cause or matter was taken in the court instead of the High Court of a State or of the Federal Capital Territory, Abuja in which it ought to have been brought, and the Judge of the court before whom such cause or matter is brought may cause such cause or matter to be transferred to the appropriate High Court of a State or of the Federal Capital Territory, Abuja in accordance with rules of court to be made under section 44 of this Act.

Section 15 of the Court of Appeal Act, Cap. C36 of the Laws of the Federation of Nigeria, 2004 provides:-

“The Court of Appeal may, from time to time, make any order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal, and may direct the court below to inquire into and certify its findings on any question which the Court of Appeal thinks fit to determine before final judgment in the appeal and may make an interim order or grant any injunction which the court below is authorized to make or grant and may direct any necessary inquiries or accounts to be made or taken, and generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as court of first instance and may rehear the case in whole or in part or may remit it to the court below for the purposes of such re-hearing or may give such other direction as to the manner in which the court below shall deal with the case in accordance with the powers of that court or in the case of an appeal from the court below, in that court’s appellate jurisdiction, order the case to be re-heard by a court of competent jurisdiction.”

In the circumstance, I hereby invoke the provisions of S.15 Court of Appeal Act and transfer the matter to the National Assembly Election Tribunal for Oyo State for determination. I make no order as to costs.

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SC. 52/2002