(2006) 1 All N.L.R 304
Kutigi, JSC (Delivered the Leading Judgment):- The plaintiffs' amended originating summons which was taken out by their Counsel, Professor B.O. Nwabueze SAN, Legal Practitioner, is couched in the following terms:-
"1. ISSUES FOR DETERMINATION
ISSUE A:
Whether the suspension by the President of the Federal Republic of Nigeria of 'the office of the Executive Governor . . . and the House of Assembly' of Plateau State and the Proclamation, published in the Federal Government Gazette as Statutory Instrument No 4 of 2004, by which the suspension was effected, are not a violation of the provisions of sections 176 and 90 of the Constitution of the Federal Republic of Nigeria, 1999 which establish those organs for the government of the State.
ISSUE B:
Whether the said Constitution, either expressly or by implication of its provisions, authorises the President of the Federal Republic of Nigeria, by Proclamation published in the Federal Government Gazette as Statutory Instrument No 4 of 2004, to suspend the duly elected Executive Governor and members of the House of Assembly of Plateau State from exercising the functions and powers of their offices, and to appoint in their place an Administrator, with power to administer the affairs of the State, and whether the suspension is not a positive contravention of the explicit prohibition contained in section 11(4) and (5) of the said Constitution.
ISSUE C:
Whether the Emergency Powers Act, 1961 from which the President claims to derive power to issue Regulations as additional authority or 'basis' for the suspension of the 'the office of Governor and House of Assembly' of Plateau State and the Establishment of an emergency administration under an Administrator was as at 18 May 2004, part of the laws of the Federation as an existing law under section 315 of the said Constitution and, if so, whether the Act is not inconsistent with that Constitution.
ISSUE D:
Whether, except with respect to a law for maintaining and securing public safety and public order and for providing, maintaining and securing designated essential supplies and services, or when the Federation is at war,
under section 11(1) and (3) of the said Constitution, the National Assembly has power to make laws generally for peace, order and good government of Plateau State on matters within the exclusive competence of the State under the Constitution otherwise than as provided in section 11(4) and (5) of the said Constitution or has power to make law or to pass resolution removing or suspending or authorising the removal or suspension of the Governor or Deputy Governor of the State.
2. RELIEFS CLAIMED
The plaintiffs claim the following reliefs:-
(i) A DECLARATION that the suspension by the President of the Federal Republic of Nigeria of 'the office of the Executive Gov-ernor . . . and the House of Assembly' of Plateau State and the Proclamation, published in the Federal Government Gazette as
Statutory Instrument No 4 of 2004, by which the suspension was effected, are unconstitutional, null and void as a violation of the provisions of sections 176 and 90 of the Constitution of the Federal Republic of Nigeria, 1999 which establish those organs for the government of the State.
(ii) A DECLARATION that the suspension from office by the President of the Federal Republic of Nigeria by Statutory Instrument No 4 of 2004 of the duly elected Governor and Chief Executive and Members of the House of Assembly of Plateau State and their replacement by an emergency Administrator appointed by the President, with power to 'administer' the State for the duration of the emergency, are unconstitutional, null and void on the ground that it is not only unauthorised by any of the provisions of the 1999 Constitution of Nigeria but is also a positive contravention of the explicit prohibition contained in section 11(4) and (5) of the said Constitution.
(iii) A DECLARATION that the Emergency Powers Act, 1961 by virtue of which the President of the Federal Republic of Nigeria claims to have power to issue Regulations as the 'basis' on which the Emergency Administrator is to 'operate' in the administration of the Plateau State was not as at 18 May 2004 part of the laws of the Federation, and even supposing it to be an existing law within the meaning of section 315 of the Constitution aforementioned, it is unconstitutional, null and void on the ground of inconsistency with section 11(4) and (5) of the said Constitution.
(iv) A DECLARATION that the Emergency Powers Act, 1961, supposing it to be an existing law within the meaning of section 315 of the said 1999 Constitution, is unconstitutional, null and void as an abdication of the legislative powers vested in the National Assembly by section 4 of the Constitution.
(v) A DECLARATION that, even supposing the Emergency Pow-ers Act, 1961 to be an existing law as at 18 May 2004 and to be a valid law under the 1999 Constitution, the Regulations made by the President pursuant thereto and on the basis of which the Governor and members of the House of Assembly of Plateau State were purportedly suspended and the emergency Adminis-trator operated in the administration of the State are null and void on the ground that, having been made some days after 18 May 2004, they are inconsistent with the enabling Act which does not authorise the making of Regulations with retrospective effect, and with section 36(8) which prohibits criminal offences and penalties with retrospective effect.
(vi) A DECLARATION that, except with respect to a law for maintaining and securing public safety and order and for providing, maintaining and securing designated essential supplies and services, or when the Federation is at war, under section 11(1) and 3 of the 1999 Constitution, the National Assembly has no power to make laws generally for peace, order and good Government of Nigeria or any part thereof on matters not included in the Legislative Lists, otherwise than as provided in section 11(4) of the said Constitution, and accordingly any law enacted for Plateau State in contravention of that subsection is unconstitutional, null and void.
(vii) A DECLARATION that by reason of section 11(5) of the 1999 Constitution the National Assembly has no power, by means of a law or a mere resolution, to remove or to authorise the President to remove or suspend the Governor or Deputy Governor of Plateau State and accordingly any law enacted or resolution passed in contravention of that subsection is unconstitutional, null and void.
(viii) A DECLARATION that the Government of Plateau State headed by Chief Joshua Dariye as the constitutional and duly elected Governor and Chief Executive of Plateau State is entitled to be paid compensation by the Federal Government for the deprivation of its Constitutional right to administer the affairs of the State during the six months, 18 May to 17 November 2004, by its unlawful suspension by the President of the Federal Republic of Nigeria.
(ix) A DECLARATION that the House of Assembly, Plateau State, as the constitutional and duly elected legislative organ of the State, is entitled to be paid compensation by the Federal Government for the deprivation of its constitutional right to make laws for the State and to exercise other functions vested in it by the Constitution of the Federal Republic of Nigeria, 1999 during the six months, 18 May to 17 November 2004, of its unlawful suspension by the President of the Federal Republic of Nigeria.
(x) A DECLARATION that as the constitutional functionaries of Plateau State, duly elected and sworn-in, the Governor, Deputy Governor and Members of the House of Assembly of the State as well as the Commissioners of the State Government are entitled to be paid compensation for the loss of their emoluments, including allowances, accommodation, transport and other privileges and perquisites, during the six months May 18 to November 17, 2004 during which they were unlawfully suspended from their respective offices by the President of the Federal Republic of Nigeria.
(xi) A DECLARATION that Governor Joshua Dariye is entitled to be paid compensation by the Federal Government for the damage caused him not only by the false and malicious information supplied by its functionaries to the London Metropolitan Police that 'Chief Dariye in his current status as suspended Governor of Plateau State is not entitled to and does not have diplomatic privilege status in the UK' but also by the unwarranted and unlawful action of the Attorney-General of the Federation and Minister of Justice, Chief Akinlolu Olujinmi SAN in confirming to the London Metropolitan Police that 'he has waived without any reservation, any immunity from arrest and prosecution that he (Chief Dariye) may claim to have.'
(xii) A MANDATORY ORDER compelling the Federal Govern-ment to pay to the Plateau State Government and the House of Assembly of the State the sum of Six Billion Naira only and One Billion Naira only respectively for the deprivations mentioned in paragraphs (viii) and (ix) above of the Reliefs.
(xiii) A MANDATORY ORDER compelling the Federal Govern-ment to pay to Chief Joshua Dariye, Governor and Chief Execu-tive of Plateau State and the Deputy Governor jointly the sum of N2 Billion (Two Billion Naria only), to the Commissioners of the Government N500 million (Five Hundred Million only) and to the Speaker and each of the other Members of the House of Assembly a total sum of N1 Billion (One Billion Naira only) as compensation for loss of emoluments, including allowances, accommodation, transport and other privileges and perquisites, during the six months' period of their suspension.
(xiv) A MANDATORY ORDER compelling the Federal Govern-ment to pay to Governor Joshua Dariye the sum of One Billion
3. GROUNDS
(a)
(b)
(c)
Naira only as compensation for the damage caused him by the false and malicious information and action mentioned in paragraph (xi) above of the Reliefs.
On 18 May 2004, by the State of emergency (Plateau State) Proclamation, 2004, published as Statutory Instrument No 4 of 2004, the President of the Federal Republic of Nigeria declared a State of emergency in Plateau State of Nigeria.
The Proclamation suspended 'the office of the Executive Governor . . . and the House of Assembly' of Plateau State with effect from 18 May 2004 and that 'the State shall for the duration of the emergency be administered by an Administrator who shall be appointed by me and operate on the basis of such Regulations that may, from time to time, be issued by me.'
These acts above mentioned were stated to be done or made 'in exercise of the powers conferred upon me by section 305(1), (3), (c) and (d) of the Constitution of the Federal Republic of Nigeria 1999 and of all other powers enabling me in that behalf."
The originating summons was supported by an affidavit. In paragraphs 4, 5, 6 and 7 it is averred thus:-
"4. That His Excellency Governor Joshua Dariye, his Deputy and the House of Assembly of Plateau State were duly elected and sworn into office in accordance with the 1999 Constitution.
5. That Mr Simon Lalong, Speaker of the House of Assembly, Plateau State, informed me and I verily believe him as follows:-
(a) That there were civil disturbances in some parts of Plateau State between September 2001 and May 2004.
(b) That the parts of the State affected by these civil disturbances formed a relatively small part of the total area and population of Plateau State.
(c) That by reason of the disturbances and while strenuous efforts were being made by the authorities of the State Government to contain the situation, President Olusegun Obasanjo, by the state of emergency (Plateau State) Proclamation 2004, published in the Federal Government Gazette as S.I. No 4 of 2004, declared a state of emergency in Plateau State on 18 May 2004.
(d) That the Proclamation aforementioned also suspended 'the office of Executive Governor . . . and House of Assembly' of Plateau State.
(e) That thereafter President Olusegun Obasanjo appointed Major-General M.C. Alli (Rtd) as emergency Administrator to administer the affairs of Plateau State for an initial period of 6 (six) months effective from 19 May 2004 subject to ratification of the National Assembly.
(f ) That at the time of the suspension of the constitutional organs of the Government of Plateau State and their replacement by an Administrator appointed by the President, there were no Regulations made under the Emergency Powers Act, 1961 and pursuant to which the suspension and the appointment could have been made.
(g) That the National Assembly ratified the declaration of a state of emergency, the suspension of the Executive Governor, Deputy Governor and the State House of Assembly, Plateau State, and the appointment of Major-General M.C. Alli (Rtd) as the Administrator of the State for a period of 6 (six) months.
(h) That following their suspension from office and the take-over of the State Government by the Administrator, the Governor, Deputy Governor and the House of Assembly, Plateau State, were prevented from exercising the functions of their offices, although they remained able and willing to do so.
(i) That the deprivation mentioned in paragraph (h) above continued until 18 November 2004 when the emergency and the suspension expired by effluxion of time.
(j) That during the entire period of their suspension, the Governor, Deputy Governor, Commissioners, Speaker and members of the House of Assembly, Plateau State, were deprived of the right not only to exercise the functions of their offices, but also the right to the emoluments attached to those offices, including allowances, accommodation, cars and other privileges and perquisites.
(k) That further to paragraph (j) above the parties aforementioned suffered untold hardship and emotional trauma, loss of esteem and influence.
6. That Governor Joshua Dariye of Plateau State informed me and I verily believe him:-
(i) That the defendants have engaged in an intense and relentless campaign to malign and disgrace him with a view to forcing him out of office as Governor of Plateau State.
(ii) That as part of that campaign, the defendants instigated the London Metropolitan Police to arrest him, and to raid and search his home and hotel room in London on allegations of criminal offences on or about 2 September 2004.
(iii) That the search, arrest and raid of Governor Joshua Dariye's house and hotel room were consequent upon the false and malicious information given by the defendants to the London Metropolitan Police that 'Chief Dariye in his current status as suspended Governor of Plateau Status is not entitled to and does not have diplomatic privilege status in the UK,' and that his 'immunity from arrest and prosecution has been waived without any reservations' by the Attorney-General of the Federation, Chief Olujinmi, SAN.
(iv) That the campaign has been carried further by bringing an officer from the London Metropolitan Police to testify against Governor Dariye in a criminal case before the Federal High Court in Kaduna when his name has been struck out from the case on the ground that he is covered by immunity under section 308 of the Constitution, and when the evidence given by the officer from the London Metropolitan Police, Mr Peter Clark, is totally irrelevant to the charges before the Court, especially after the name of Governor Dariye and counts one and four of the charges had been struck out by the order of the Court in Kaduna.
(v) That the campaign against Governor Dariye aforementioned has imposed severe stress and trauma upon him, which have so adversely affected his entire life.
7. That I am informed by Counsel in charge of the case, Professor B.O. Nwabueze, SAN, and I verily believe him, that a Court of competent jurisdiction the Federal High Court in Abuja, has held that the suspension of Chief Joshua Dariye from office as Governor of Plateau State, even supposing the suspension to be valid in law, does not remove his immunity under section 308 of the Constitution, and that the Federal Government has not appealed against that decision."
A counter-affidavit to the affidavit in support of the originating summons was filed by the first defendant. It is averred in paragraphs 5-29 thus:-
"5. That paragraphs 5(a)-(k) are prevaricated and or slanted? paragraphs 6(i)-(v) and 8 are false while paragraph 7 is totally irrelevant to the plaintiff's case.
6. The first defendant shall by way of objection to the competence of this suit contend that the first and second plaintiffs did not authorise this action and no instruction was given by the plaintiffs for the filing of this case at the time it was filed.
7. Furthermore, the second plaintiff is not a juristic person and cannot maintain this action as constituted.
8. That on 24 June 2004, when this case was instituted, I know as a matter of common knowledge that Major-General M.C. Alli (Rtd) was the Administrator of Plateau State.
9. That in that capacity, the said Major-General M.C. Alli was the alter ego of Plateau State and its directing mind.
10. That any decision to commence action on that day by the first plaintiff could only be taken by the said Major-General Alli and no one else.
11. That the said Major-General M.C. Alli told me and I verily believe that he did not authorise the filing of this case and that he gave no instruction to plaintiffs' Counsel or to anyone at all to file this action.
12. That Counsel to the plaintiffs is a mere busybody who has without any authority whatsoever employed the name of the first plaintiff to institute this action.
13. That at all times material to the institution of this case, the second plaintiff was suspended and remained suspended until end of the emergency.
14. That I therefore verily believe that there was no time when the second plaintiff took a decision to institute this action.
15. Accordingly, there was no time that Counsel was instructed by the second plaintiff to institute this action.
16. That some members of the second plaintiff who claimed to be aggrieved by the suspension of the second plaintiff instituted an action in their personal capacities at the Federal High Court, Jos to ventilate their alleged grievances.
17. That the said action is still pending before the Federal High Court, Abuja, the same having been transferred from Jos to Abuja.
18. That the first defendant shall contend in the circumstance that this action is an abuse of Court process by Counsel who employed the name of the plaintiffs to institute this action.
19. That the second plaintiff did not instruct Counsel and did not pay any fees to Counsel to institute the action.
20. That His Excellency, Chief Joshua Dariye was sworn in as the Governor of Plateau State on 29 May 1999 and occupied the said office pursuant to the provisions of the 1999 Constitution.
21. Shortly thereafter and specifically from March 2001, the State was plunged into incessant crisis and civil disturbances arising from animosity and prejudices among the people of the State along ethnic and religious divisions.
22. The crisis and disturbances were not checked by the Governor with its adverse implications on the State of Public Order and Security.
23. That the crisis consequently escalated leading to complete breakdown of public order and public safety in Plateau State with attendant massive loss of lives and properties and creating human calamity within and outside the State.
24. That the Governor did not take any effective step to stem down the tide and made no request to the President to issue a proclamation of a state of emergency in the State.
25. That the effect of the public breakdown of order in the State went beyond the State and extended to other parts of the Federation as to require extra-ordinary measures to avert the situation.
26. That it was as result of these that the President and Commander-in-Chief of Armed Forces of the nation issued a proclamation of a state of emergency in Plateau State to deal with the situation.
27. The state of emergency lasted for six (6) months from 18 May 2004 to 17 November 2004 and has since lapsed.
28. That having regard to the fact that peace was restored to the State during the period of the State of Emergency, the emergency rule was not extended and the arms of Government that were suspended had been restored since 18 November 2004.
29. That the plaintiff's case is vexatious, unmeritorious, unauthorised, lacking in merit and a gross abuse of the Court process."
The plaintiffs also filed a reply to the first defendant's counter-affidavit above. Paragraph 4 of the reply reads as follows:-
"4. That leading Counsel for the plaintiffs, Professor Ben Nwabueze SAN, informed me and I verily believe him as follows:-
(i) The averments in paragraphs 6 and 12-15 of Mr Bankole Akomolafe's counter-affidavit that "the first and second plaintiffs did not authorise this action and no instruction was given by the plaintiffs for the filing of this action at the time it was filed" raise a point of law, which does not need to be controverted in an affidavit? insofar, however, as they may be said to be averment of fact, the plaintiffs deny it and put the defendants to the strictest proof thereof.
(ii) Being a statement of law, the averments in the said paragraphs 6 and 12-15 of Bankole Akomolafe's counter-affidavit are incompetent and invalid as they offend against sections 86 and 87 of the Evidence Act Cap. E14, (sic) Laws of the Federation, which provide as follows:-
'86. Every affidavit used in the Court shall contain only a statement of facts and circumstances to which the witness deposes, either of his own personal knowledge or from information which he believes to be true' (Emphasis supplied.)
87. An affidavit shall not contain extraneous matter, by way of objection, or prayer, or legal argument or conclusion.
(iii) The averment in the said paragraphs 6 and 12-15 of the counter-affidavit are incompetent and invalid on another ground which will be taken up at the hearing of the suit, should it be necessary to do so.
(iv) Being also a statement of law, the averment in paragraph 7 of the said counter-affidavit that 'the second plaintiff is not a juristic person and cannot maintain this action as constituted' is likewise incompetent and invalid as offending against the above quoted sections 86 and 87 of the Evidence Act? in any case, like the first defendant (the Office of the Attorney-General of the Federation) and the second defendant (the National Assembly), the House of Assembly of Plateau State is a body established by the supreme law of the land - section 90 of the Constitution, 1999.
(v) The averments in paragraphs 8-11 of the said counter-affidavit are likewise incompetent, as they pre-empt the very issue before the
Honourable Court for determination, namely, whether or not the Constitution of Nigeria 1999 authorises the suspension of the elected Government of Plateau State for the six (6) months period of the emergency, the appointment of Major-General M.C. Alli as Administrator during that period and the consequent deprivation of the constitutional right and power of the elected Government of the State to administer the affairs of the State during the period? the averments (paragraphs 8-11) unwarrantedly presume that the suspension, the appointment of the Administrator and deprivation of the rights and powers of the elected Government of the State are so authorised and are legally valid, the effect of which would be to deprive the elected Government (the Executive Governor and House of Assembly) of their right of recourse to the Court to determine the issue as well as to deprive the Court of jurisdiction to entertain their suit? if the suspension and the appointment of the Administrator are unconstitutional, null and void, then, they are so ab initio, so that the elected Executive Governor and House of Assembly remained de jure Government of the State during the period of the emergency and the lawful authority to administer its affairs, including authorising the filing of the present suit? the Administrator was simply a usurper, whose de facto authority, such it was, cannot be set up against that of the lawful Government of the State? the numerous decided authorities on the point will be examined during the hearing of the suit, should it be necessary to do so.
(vi) The averments in paragraphs 21-28 are irrelevant as well as incompetent, in that the declaration of a state of emergency in Plateau State, whether or not it was constitutional and valid having regard to the situation
prevailing in the State at the time, is not an issue before the Honourable Court for determination in this suit, but rather whether the Constitution grants the President power and authority, following the emergency declaration, even assuming without conceding the constitutional validity of the declaration, to suspend the elected Government of the state and to appoint an Administrator.
(vii) The issue of abuse of Court process averred in paragraphs 16-19 of the said Courier-Affidavit is incompetent as it raises a point of law contrary to sections 86 and 87 of the Evidence Act quoted above? in any case, the plaintiffs, not being a party to the suit in the Federal High Court, cannot have abused Court process by instituting the present suit in the Supreme Court, more so as the constitutionality of the declaration of a state of emergency challenged in the suit in the Federal High Court, is not an issue for determination in the present suit, the suspension of the elected executive government of the State is not an issue in the Federal High Court suit as it is in the present suit, and as any decision given by the Supreme Court in the present suit is binding on all other Courts in the country, including the Federal High Court.
(viii) Contrary to the averment in paragraph 29 of the said Counter-Affidavit, the present suit is not vexatious or unmeritorious, but one of great national interest and importance relating to the government of the country under the Constitution."
Preliminary objections
Notices of preliminary objections were filed by both the first and second defendants. They also raised them in their briefs of argument. The first defendant objects to the competence of the suit and the jurisdiction of the court. The grounds of the objection are as follows:-
"(1) That the suit is devoid of any live issue and it is being maintained merely for academic and advisory purposes only.
(2) The suit is not authorised by the first plaintiff.
(3) The suits seeks reliefs for individuals who are not parties to the case and who have no competence to maintain an action in this case.
(4) The action, as constituted is misconceived.
(5) The action is an abuse of Court process having regard to the suit in Exhibit 'CA1', attached to the first defendant's Counter-Affidavit. This is a suit at the Federal High Court, Jos now transferred to Abuja.
(6) Both plaintiffs herein are by virtue of section 20 and section 3 of the Supreme Court Act and Supreme Court (Additional Original Jurisdiction) Act Cap. S16 LFN 2004 (sic) respectively, have no requisite locus standi to institute this action.
(7) There is no reasonable cause of action.
(8) The Jurisdiction of the Honourable Court is not extended to the enforcement of rights which were suspended in the Regulations but limited to whether or not the Laws and Regulations relating to the state of emergency in Plateau State were properly made or not."
The second defendant objects to the suit on the sole ground that the issue before the Court is "lifeless, spent, academic, speculative and hypothetical."
It is clear to me that the single ground raised by the second defendant is the same as first defendant's ground (1) above.
Arguing the grounds of preliminary objection together, learned Counsel for the first defendant, Okunloye, SAN, said going by the affidavit evidence before the Court, the state of emergency was declared on 18 May 2004 and ended on 17 November 2004 when the situation in Plateau State normalised. Consequently there cannot be any live issue in respect of that emergency declaration which has since expired. That it is a notorious fact that all structures, and public officers suspended are now back on duty. That what is before the Court is therefore an academic, speculative and hypothetical issue. He said reliefs (i), (ii), (iii), (iv), (v), (vi) and (vii) claimed by the plaintiffs are spent, lifeless, hypothetical and academic and that the Court should decline jurisdiction to entertain them.
It was also contended that individual claims are not cognisable under the original jurisdiction of this Court by virtue of section 232(1) of the Constitution. Consequently reliefs (x), (xi), (xiii) and (xiv) are incompetent and should be struck out. In addition these reliefs are being claimed by persons who are not even parties to the suit. That Governor Joshua Dariye, his Deputy, members of the House of Assembly and Commissioners of the State are not parties to the case before the Court. That a non-party cannot claim any relief in a suit to which he or she is not a party. That this Court has the jurisdiction to strike out part or parts of a relief or reliefs sought and or dismiss part or parts. A number of cases were cited in support. They include - Obasanjo v Yusuf (2004) 9 NWLR (Part 877) 144? Attorney-General of Federation v A.N.P.P. & 2 others (2003) 18 NWLR (Part 851) 182? Okesade v Ogunkayode (1994) 1 NWLR (Part 318) 26? Trade Bank v Benilux (Nigeria) Ltd (2003) 9 NWLR (Part 825) 416? Obasuyi v Business Ventures Ltd (2000) 5 NWLR (Part 658) 668? Imana v Robinson (1979) 3-4 SC 1 and Kurubo v Zach Motison (Nigeria) Ltd (1992) 5 NWLR (Part 239) 102.
It was further submitted that the action is incompetent because it was not authorised. That on 24 June 2004 when the action was instituted, the Adminis-trator Major-General, M.C. Alli (Rtd) was the alter-ego of Plateau State and its directing mind. That Major-General M.C. Alli (Rtd) has deposed in his counter-affidavit and further counter- affidavit that he did not direct the institution of this action nor authorised anybody to file same. That the second plaintiff which could only have acted by resolutions passed at its sitting or as directed by its principal officers, was as at 24 June 2004 when this action was instituted, not in session and its principal officers were also not in office. Clearly, therefore the suit was not authorised by the plaintiffs and or the Emergency Administrator.
We were therefore urged to hold that this action is unauthorised and therefore incompetent.
It was also conten