In The Supreme Court of Nigeria
On Friday, the 12th day of January 2007
S.C. 272/2006
Between
Hon. Muyiwa Inakoju....... Defendants/Appellants
Ibadan South East
Hon. Fajimi Sikirulahi Adekunle
Ibadan South East
Hon. Fashola Emmanuel Olubowale
Ibadan North East
Hon. Salawu Kehinde
Ibadan North East
Hon. Ayilara Kazeem
Ibadan South West
Hon. Abiola Ayorinde
Ibadan South East
Hon. Akinrinade Oyewale
Akinyele II
Hon. Jelili Adeleke
Akinyele I
Hon. Isiaka Adeola
Ido
Hon Lekan Ganiyu
Oluyole
Hon.Ogunremi Mufutau
Ona Ara
Hon. Lawal Dauda Ademola
Lagelu
Hon. Taiwo Oluyemi
Ibarapa
Hon. Olu Oyeleye
Ogbomoso North
Hon. Ajadi Olateju
Ogbomoso South
Hon. Esuola Hamed Babatunde
Atiba
Hon. Atilola Morufu Olawale
Oyo East/West
Hon. Akanbi Idowu
Orire
And
Hon. Abraham Adeolu....... Plaintiff/Respondents
Adeleke
(Speaker)
Hon. Barrister Titilayo Ademola....... Plaintiff/Respondent
Dauda
(Deputy Speaker)
Oyo State House of Assembly
Senator Rashidi Adewolu Ladoja ....... Party Interested/Respondent
Judgment of the Court
Deliveredby
Niki Tobi. J.S.C.
On 7th December, 2006, I dismissed this appeal and I indicated that I will give my reasons on 12th January, 2007. I will do so here.
Senator Rasheed Adewolu Ladoja, the party interested and 3rd respondent became the Governor of Oyo State in May, 2003. I think he was sworn in as Governor of the State on 29th May, 2003.
Alao-Akala became the Deputy Governor. The relationship was cordial until some members of the Oyo State House of Assembly purportedly removed Senator
Ladoja as Governor of Oyo State and swore in Alao-Akala, the Deputy Governor, as Governor. As from that moment, things started falling apart not only between Senator Ladoja and the members who removed him from office but also between Senator Ladoja and
Alao-Akala.
Let me briefly tell the story leading to the removal of Senator Ladoja as Governor of Oyo State as told by the respondents in their affidavit in support of the originating summons. On 13th December, 2005, the Oyo State House of Assembly sat at the usual Assembly Complex Secretariat, Ibadan. The appellants sat at
D'Rovans Hotel Ring Read, Ibadan, where they purportedly suspended the Draft Rules of the Oyo State House of Assembly. The appellants purportedly issued a notice of allegation of misconduct against Senator Ladoja, the Governor, with the purpose of commencing impeachment proceedings against him. On 22nd December, 2005, without following the laid down rules, regulations and the Constitution of the Federal Republic or Nigeria, the appellants purportedly passed a motion calling for the investigation of the allegations of misconduct against Senator Ladoja without the concurrent consent and approval of the two-thirds majority of the 32 member House of Assembly. The purported notice of allegations of misconduct against the Governor was not served on each member of the House of Assembly.
Aggrieved by the procedure of removing Senator Ladoja, the respondents as plaintiffs, filed an action at the high Court of Justice, Oyo State by way of Originating Summons. They asked for six declaratory
reliefs and three orders setting aside the steps taken by the appellants/defendants in relation to the issuance of Notice of allegation of misconduct, passage of motion to investigate same and injunction restraining the appellants/defendants, their agents, servants, privies or through-any person or persons from taking any further steps, sitting, starting, or continuing to inquire or deliberate on the investigation and impeachment proceedings of His Excellency, Senator
Rasheed-Adewolu Ladoja." The action was supported by a 17 paragraph affidavit.
In a preliminary objection, the appellant as applicants contended that the court lacked jurisdiction to entertain the suit and that the plaintiffs lacked locus stands
to institute the suit. They also contended that the claims did not disclose a reasonable cause of action.
In his Ruling of 28th December, 2005, the learned trial Judge, Ige, J., upheld the preliminary objection that he had no jurisdiction to deal with the matter. He said at page 57 of the Record:
"When the House of Assembly is exercising its constitutional powers in relation to impeachment proceedings or any matter relating thereto, it is performing a quasi judicial function. Thus it is provided in sub-section 11 of Section 188 of the 1999 Constitution that the power to determine what constitutes gross misconduct or a conduct that will lead to impeachment proceedings lies with the House of Assembly and not in the Court. By the combined effect of the above provisions therefore, and having regard to the nature of the
reliefs claimed by the plaintiffs, it is clear beyond argument that the jurisdiction of- .this court is clearly ousted. Impeachment and related proceedings are purely political matters over which this court cannot intervene. The action is not
justiciable. See Chief Enyi Abaribe vs. The Speaker Abia State House of Assembly and Ors. (2002) 14 NWLR (Pt. 738) p.466 at p.492. It is not part of the duty of the Court to forage into areas that ought to vest either directly or impliedly in the Legislature such as the issue of .impeachment which is a matter that comes within the purely internal affairs of the House of Assembly. The Court will therefore decline jurisdiction in this matter. The objection of learned counsel for the Defendants/Respondents is upheld. The Originating Summons is accordingly dismissed."
On appeal to the Court of Appeal, Ogebe,
JCA, held that the High Court had jurisdiction to hear the matter. He said at page 486 of the Record:
"For all I have said in this judgment 1 have no hesitation in holding that the learned trial Judge was wrong in declining jurisdiction. Indeed he had jurisdiction to examine the claim in the light of section 188 subsections 1-9 of the 1999 Constitution and if he was not satisfied that the impeachment proceedings were instituted in compliance thereof, he has jurisdiction to intervene to ensure compliance. If on the other hand there was compliance with the pre- impeachment process that what happened thereafter was the internal affair of the House of Assembly and he would have no jurisdiction to intervene."
The learned Justice of the Court of Appeal invoked the powers conferred on the Court by section 16 of the Court of Appeal Act and took the merits of the matter before the High Court. He gave judgment to the respondents. Ogebe, JCA, said at page 489 of the Record:-
"It is my view that no factional meeting of any members of a State House of Assembly can amount to a constitutional meeting of the whole House of Assembly as envisaged and provided for in the Constitution. There was no counter-affidavit before the lower court to prove that any member of the House of Assembly of Oyo State was suspended or that the plaintiffs/appellants were removed as Speaker and Deputy Speaker in accordance with the provisions of the Constitution. It follows therefore that al the steps taken by the faction of the defendants/respondents purporting to initiate impeachment of Senator
Ladoja as Governor of Oyo State were not actions of the Oyo State House of Assembly under Section 188 of the 1999 Constitution. Consequently I allow the appeals of the plaintiffs/appellants and the interested party/appellant and set aside the ruling of the trial court declining jurisdiction. I hereby enter judgment for the appellants and grant the following
reliefs..."
Ogebe, JCA, granted eight of the nine
reliefs sought by the respondents. He did not grant the relief of injunction. It should be pointed out that Senator Ladoja was joined as an interested party in the Court of Appeal.
Dissatisfied with the judgment of the Court of Appeal, the appellants have come to us. As usual, briefs were filed and duly exchanged. The appellants formulated the following issues for determination:
"1. Whether the Court of Appeal was right in its determination that the High Court has jurisdiction to entertain the question of impeachment of the Party Interested/Respondent as the Governor of Oyo State without:
(a) a decision of the Lower Court as to whether or not there has been any non-compliance with Section 188(1)-(9) of the Constitution of the Federal Republic of Nigeria, 1999 and or
(b) proof of non-compliance with Section 188(1)-(9) of the Constitution of the Federal Republic of Nigeria? This issue is covered by ground 1 of the Grounds of Appeal contained in the Amended Notice of Appeal dated 20 th November, 2006 but filed on 21st day of November, 2006.
2. Whether the Court of Appeal was right in its determination that the High Court of Justice Oyo State has jurisdiction to entertain a question as to the impeachment of the Party Interested/Respondent as the Governor of Oyo State having regard to:
(i) the provision of Section 188(10) of the Constitution of the Federal Republic of Nigeria;
and
(ii) the question of locus of the Plaintiffs? This issue is covered by grounds 9, 10 and 11 of the Grounds of Appeal contained in the Amended Notice of Appeal aforesaid.
3. Whether the Court of Appeal was right in considering the merits of the Originating Summons and granting all the
reliefs sought by the Plaintiffs/Respondents pursuant to Section 16 of the Court of Appeal Act and in the absence of the power in the High Court of Oyo State in granting those reliefs as at the stage of proceedings before it and also in not affording the Defendants/Appellants the opportunity to present their own defence (by way of Counter-Affidavit) to the action. This issue is covered by grounds 2, 3, 4, 5, 6, 7 and 8 of the grounds of appeal contained in the Amended Notice of Appeal aforesaid
The 1st and 2nd respondents formulated the following issues for determination:
(i) Having regard to the circumstances of this case and a specific relief claimed by the Respondents praying the lower court to give them judgment as per the claims in their originating summons, whether or not the lower court did not act rightly in acceding to the Respondents' prayers pursuant to the powers vested in that court under and by virtue of section 16 of the Court of Appeal Act -grounds 3, 4, 5, 6, 7-and 8.
(ii) Whether by the decision of the lower court, Appellants were denied the opportunity to controvert the claims of the Plaintiffs - ground 2.
(iii) Whether the Respondents have the locus
standi to institute this action - around 9:
(iv) Whether the lower court was not right in its decision to the effect that section 188(10) of the 1999 Constitution could only, oust the jurisdiction of the trial High Court if sub-
sections (1)-(9) of the said section have been complied with - grounds 1, 10 and 11."
The 3rd respondent formulated the following issues for determination:
"1. Whether the Court of Appeal was not right in its construction and interpretation of the provisions of Section 188 of the 1999 Constitution and in coming to the conclusion that the Ouster Clause in Section 188 (10) of the same Constitution cannot avail the Appellants having regard to the peculiar facts and circumstances of this case.
2. Whether the Court of Appeal was not right, having regard to the peculiar circumstances of this case in invoking the provisions of Section 16 of the Court of Appeal Act in giving judgment in favour of the Respondents and whether the right to fair hearing of the Appellants was thereby breached.
3. Whether the court below was not right to have held that the 1st and 2nd Respondents had the locus
standi to institute the case that culminated into this appeal."
It should be mentioned that both the 1st and 2nd respondents and the 3rd
respondent raised preliminary objection on the competence of some of the grounds of appeal.
Mr. O. Ayanlaja, learned Senior Advocate of Nigeria, for the appellants in an apparent submission on Issue No . 1 pointed out that the affidavit in support of the originating summons did not warrant the calling on or of the defendants to enter a defence, as the action was obviously unsustainable and therefore constituted an abuse of court process. He cited AG of Duchy of Lancaster v. L and NWRLY 3 (1892) 3 Ch. 274. Counsel claimed that there was no admissible evidence in the affidavit in support of the originating summons. He reproduced the entire affidavit at pages 9 to 11 of his brief and argued that most of the averments offended sections 73 t 74, 86, 88, 89 and 113 of the Evidence Act. Relying on Nonye v. Anyichie (2005) 8
WNRl at 22; NDIC v. CBN (2002) 13 WRN 1 and Elabanjo v. Dawodu (2006) 15 NWLR (Pt. 1001) 76 learned Senior Advocate contended that in the determination of the issue of jurisdiction only the plaintiff's claims are looked into. Confining himself to paragraphs 6 to 11 of the affidavit in support, learned Senior Advocate submitted that as the averments contained therein are not admissible and cannot sustain the claims of the plaintiffs, it is useless and time wasting to call or expect the defendants to respond to the inadmissible averments.
On issue No . 2, learned Senior Advocate submitted that the plaintiffs have no
locus standi to maintain the action as the complaints in the plaintiffs claim show that all their grievances affect the personal rights of Senator Ladoja. He pointed out that as the plaintiff constituted only a minority, they did not show in their affidavit that they were acting for and on behalf of the House of Assembly of Oyo State. He cited Oloriode v. Oyebi (1984) 5 SC 1 at 28; In Re Ijelu (1992) 9 NWLR (Pt. 266) 414 at 422 to 423 and Thomas v. Qlufosoye (1986) 1 NWLR (Pt. 18)669.
Learned Senior Advocate submitted that section 188 of the Constitution is not
justiciable as it ousts the jurisdiction of the courts. He relied on Ritter v. United States 84 Ct. Cl. 293 (1936) Cert. Denied 300 US 668 (1837) and Baker v. Car 369 US 186, 218 to 219 (1962) . He argued that by the doctrine of separation of powers, the courts cannot inquire into the impeachment of Governors. He cited AG
Bendel State v. AG of the Federation (1932) 3 NCLR 1 at 69 and section 4(8) of the Constitution. Taking specifically section 188(10), learned Senior Advocate relied on Alhaji Musa v. Hamza (1982) 3 NCLR 229 at 253; Shell Petroleum Development Co (Nig) Ltd, v. Isaiah (2001) 11 NWLR (Pt. 723) 168; Abaribe v. The Speaker Abia State House of Assembly (2002) 14 NWLR (Pt. 788) 466 and Nwosu v. Imo State Environmental Sanitation Authority (1990) 2 NWLR (Pt. 135) 688.
On Issue No. 3, learned Senior Advocate submitted that the Court of Appeal having upheld the appeal of the plaintiffs against the decision of the High Court dismissing their case and setting the decision aside had no jurisdiction to proceed to consider the merits of the substantive case and grant all the reliefs claimed in the action. He cited section 241(1) of the Constitution. He contended that the Court of Appeal cannot assume jurisdiction on an issue upon which the trial court had no opportunity to express its opinion and that a Court of Appeal is limited in its consideration of the appeal and decision thereon to the issues formulated for consideration in the case. He cited A. W. Nigeria Limited v.
Supermaritime (Nigeria) Limited (2005) 6
NWLR (Pt. 922) 563 at 577 and 578; Jinadu v. Esurombi-Aro (2005) 14 NWLR (Pt. 944) 142 at 178-179; Ekpe v. Fagbemi (1978) 3 SC 209; Ikweki v. Ebele (2005) 11 NWLR (Pt. 936) 397 at 424 and 425; Isulight (Nigeria) Limited v. Jackson (2005) 11
NWLR (Pt. 937) 629 at 643 and Awuse v. Odili (2005) 16 NWLR (Pt. 982) 416 at 462.
Learned Senior Advocate argued that since the defendants were still within time to enter appearance and file counter-affidavit in reaction to the affidavit in support of the originating summons the Court of Appeal would have left them to take whatever steps were necessary to present their defence, including the entry of appearance and filing of counter-affidavit. He cited
Elabanjo v, Dawodu (2006) 15 NWLR (Pt. 1001) 75 at 127, 128 and 140; Okafor v. AG
Anambra State (2006) 15 WRN 103 at 113;
Egbe v. Alhaji (1990) 1 NWLR (Pt. 128) 546; Onibubo v. Akibu (1982) All NLR 207;
Qdiya v. Oboh (1974) 2 SC 23 and
Nwankwo v. Ononoeze-Madu (2005) 4
NWLR (Pt. 916) 470. Learned Senior Advocate urged the court to set aside the decision of the Court of Appeal . on the merits of the originating summons and remit the case to the High Court for trial on the merits, if the Supreme Court decides that the High Court has jurisdiction to hear the matter.
Counsel submitted that the reliance on the affidavit in support of the originating summons by the Court of Appeal to decide the case without giving the defendants any opportunity to controvert the affidavit constituted a breach of the defendants' right to fair hearing. He cited section 36(1) of the Constitution. He pointed out that at the time the Court of Appeal decided on the matter, the defendants still had up to twenty-five days to file their defence to the originating summons. He cited Elebanjo v.
Dawodu (2006) 15 NWLR (Pt. 1001) 76;
Ndukauba v.Kolomu (2005) 4 NWLR (Pt. 915) 411 at 429: Governor of Ekiti State v.
Osayomi (2005) 2 NWLR {Pt. 909) 67 at 90;
Unongo v. Aku (1983) 2 SCNLR 332 at 352;
Alsthom S.A. v. Saraki (2005) 3 NWLR (Pt. 911) 208 at 228 and 229; Okike v. LDDC (2005) 15 NWLR (Pt. 949) 531 at 532 and
Olumesan v. Ogundopo (1996) 2 NWLR (Pt. 433) 628.
Learned Senior Advocate submitted that the Court of Appeal was wrong in applying section 16 of the Court of Appeal Act, as the exercise of the court's power under the section is limited to taking decisions which the trial court could competently have taken in the circumstance. He said that the Court of appeal wrongly applied the case of
Attorney-General of Anambra State v. Okeke (2002) 12 NWLR (Pt. 782) 572. He urged the court to allow the appeal and set aside the decision of the Court of Appeal and dismiss the plaintiffs' case for lack of jurisdiction in the trial court, in the alternative, counsel urged the court to remit the case to the trial court where the appellants would be free to file counter affidavit to the affidavit of the plaintiffs/respondents for the matter to be heard and determined in accordance with the rules of the High Court of Oyo State.
Learned Senior Advocate for the 1st and 2nd respondents, Chief Wole Olanipekun, in his preliminary objection, submitted that Grounds 1, 2, 3, 4, 5, 5, 7, 9 and 11 are incompetent being grounds of mixed law and fact for which leave was required. As no, leave was sought, he urged the court to strike out the grounds. He dealt with the preliminary objection in some detail at pages 4 to 10 of the brief.
Arguing Issues Nos. 1 and 2 together; learned Senior Advocate called the attention of the court to the specific relief claimed by the respondents praying the Court of Appeal to give them judgment as per the claims in their originating summons and submitted that the Court of Appeal rightly invoked section 16 of the Court of Appeal Act. He cited UNTHMB v. Nnoli (1994) 8 NWLR (Pt. 363) 373 at 402; Mokelu v. Federal Commissioner of Works (1976) 3 SC 35; National Bank of Nigeria v. Alakija (1978). 9-10 SC 59 and
Achineku v. Ishagba (1993) 4 NWLR (Pt. 89) 411. He observed that the appellants as respondents in the Court of Appeal did not specifically reply to the above prayer that the Court should exercise its powers under section 16 of the Court of. Appeal Act. To learned counsel, what could be gleaned from the brief of the appellants in the Court of Appeal as respondents, was their appreciation in full measure the fact that the appeal fell and still falls within the narrow interpretation of section 188(10) of the Constitution and that was why they attached to their Brief of Argument an article written by Professor Ben Nwabueze, SAN, published in Thisday Newspaper of 3rd February 2006, titled "The Ouster Provision in Section 188(10)." Counsel called the attention of the court to pages 24 and 26 of the Record where according to him, the appellants as respondents, in their preliminary objection raised defence to the action of the plaintiffs. He said that everything or every subject material which needed to be considered was before the Court of Appeal and the judgment of the court completely covers the field.
Citing paragraphs 5, 6, 7, 8, 9, 10 and 11 of the affidavit in support and the cases of Jadesimi v. Okotie-Eboh (1986) 1 NWLR (Pt. 16) 264; CGG (Nig) Ltd, v. Ogu (2005) 8
NWLR (Pt. 927) 366 at 382; Arjay Ltd, v.
AMS Ltd. (2003) 7 NWLR (Pt. 820) 577 at 630 and 635; Yusuf vs. Obasanjo (2003) 16
NWLR (Pt. 847) 554 at 632 and 633 and Adeyemi v. Y. R. S. Ike-Oluwa and Sons Ltd. (1993) 8 NWLR (Pt. 309) 27 at 41,
learned Senior Advocate submitted that the Court of Appeal rightly invoked section 16 of the Court of Appeal Act. He justified the use of the case of A.G
Anambra State v. Okeke (2002) 12 NWLR (Pt. 782) 575 by the Court of Appeal.
On the issue of fair hearing, learned Senior Advocate referred the court to the proceedings of the High Court at pages 37 to 47 of the Record and contended that if anybody should complain of denial of justice they should be the respondents whose counsel was denied adjournment for no just reason known to law. He referred to Omo v. JSC Delta State (2000) 12 NWLR (Pt. 682) 444 at 456; Oyeyipo vs.
Oyiniloye(1987) 1N WLR (Pt 50) 356;
Orugbo vs. Una (2002) 16 NWLR (Pt. 792) 175 at 211 and 212.
In reacting to the appellants' argument that the case be sent back to the High Court to allow them give evidence, learned Senior Advocate asked the following questions:
"What type of evidence do they want to raise or give? Is it evidence of two-thirds of 32 members of the Legislative House? Or is it evidence in respect of sitting or conducting proceedings at D'Rovans Hotel, Ring Road, Ibadan? Or is it evidence in respect of the issues contained in their Notice to contend that the judgment of the trial Court be varied, which as demonstrated above, has been abandoned at the lower court?"
Counsel provided an answer in the following sentences;
"Surely what Appellants want to do is not aimed at justice but to further frustrate the speedy determination of the case, if peradventure, any such order is made so as to enable them file further questionable preliminary objections and plant additional landmines to obstruct a speedy administration of justice."
Counsel took time to enumerate what he regarded as frustrating the attainment of speedy justice in paragraph 4.18, pages 31 to 33 of the brief. Relying on the cases of
NNSC v. Sabana Ltd. (1938} 2 NWLR (Pt. 74} 23 and Famfa Oil Ltd, v. AG Federation (2003} 18 NWLR (Pt. 852} 453 at 467 , learned counsel said that if this court accedes to the request or prayer of the appellants by remitting this case to the trial court, the victory of the respondents will become a pyrrhic one and the justice would become technical, while the entire purpose of initiating the case by way of originating summons will be defeated.
Learned Senior Advocate quoted what the learned trial Judge said at page 39 of the Record to the effect that the issues for determination in the case "are basically on points of law in which no affidavit evidence is required" and submitted that the appellants did not file an appeal against the ruling of the court, which counsel argued now constitutes issue
estoppel. He cited Tltilove v. Olupo [1891] 7 NWLR (Pt. 205} 519; Yusufu v. Kupper
lnternational NV (1996) 5 NWLR (Pt. 446) 17; P. N. Udoh Trading Co. Ltd, v. Abere (2001} 11 .NWLR (Pt. 723} 114; Adebayo vs. Babalola (1995} 7 NWLR (Pt. 403} 383 at 401; Ikoku v. Ekeukwu (1995) 7 NWLR (Pt. 410) 537 at 652; Adesanva v. Otuewu (1993) 1NWLR (Pt. 270) 414 at 436; Kosile v. Folarin (1989) 3 NVVLR (Pt. 107) 1 at 16-17 and Mogaji v. Cadbury Nig Ltd. (1985)2 NWLR (Pt. 7) 393 at 408.
On Issue No .3, learned Senior Advocate relied on paragraphs 5, 6, 7, 8, 9, 10, 11 and 12 of the affidavit in support and paragraph 5 of the further affidavit and submitted that the Speaker and his deputy have locus stand to institute the action. He called in aid sections 92(1), 94(2) and 188 of the Constitution and the following cases: Owoduni v. Registered Trustees of CCC (2000) 10 NWLR (Pt. 675) 315 at 355; Ladejobi v. Oguntayo (2004) 18
NWLR (Pt. 904) 149 at.173; Adamawa State v. AG Federation (2005) 18 NWLR (Pt. 958) 581 at 623 and 654; Olagunju v.
Yahaya (1968) 3 NWLR (Pt. 542) 501;
Ogbuehi v. Governor Imo State (1995) 9
NWLR (Pt. 417) 53 and Okafor v. Asoh (1999) 3 NWLR (Pt. 593) 35.
On Issue No . 4, learned Senior Advocate submitted that the trial court abdicated its responsibility by nastily dismissing the plaintiffs' case. He referred to the word "provisions" in section 188(1) and argued that the word covers the entire section and not restricted to section 188(10). He contended that it is after full compliance with the mandatory provisions of section 188(2), (3) and (4) that the Chief Judge of a State can appoint a Panel of seven members. He pointed out that the Chief Judge shall only set up the Panel at the request of the Speaker of the House of Assembly and no one else, because the Constitution specifically restricts the person to request the setting up of the Panel to the Speaker. He cited the cases of Bamgboye v. Administrator General 14
WACA 615; Vera Cruz (1834) AC 59 at 68 and Martin Schroeder and Co. v. Major and Company (Nig.) Ltd. (1989) 2 NWLR (Pt.101) 1 and sections 92 and 188 of the Constitution, particularly the use of the word shall in section 188(2) of the Constitution. He cited Bamaiyi v. Attorney-General of the Federation (2001) 12 NWLR (Pt. 727) 488 at 497; Ifezue v.
Mbaduga (1984) 1 SCNJ 427 and Chukwuka v. Ezulike (1986) 5 NWLR (Pt. 45) 892.
Urging the court to read together section 188 of the Constitution, counsel cited
Rabiu v. .State (1931) 2 NCLR 293 ;
Attorney-General Bendel State v. Attorney-General Federation (1982) 3 NCLR 1 at 66;
Okogie v. Attorney-General Federation (1981) 2 NCLR 337 at 348 and 349 and
Anyah v. Attorney-General Bornu State (19S4) 5 NCLR 225. He submitted that subsections (1) to (9) of section 188 constitute condition precedent to the ouster clause in section 188(10) and full compliance with them must be demonstrated and proved before any court can say that its jurisdiction has been rightly ousted. He cited Sule v. Nigerian Cotton Board (1985) 2 NWLR (Pt. 5) 17;
Atologbe v. Awuni (1997) 9 NWLR (Pt. 522) 535; Labiyi v. Antetiola (1992) 8
NWLR (Pt. 252) 139) at 163 and 164; Aqua
Ltd v. Ondo State Sports Council (1986) 4
NWLR (Pt. 9) 622. On the requirement of two-thirds majority, counsel cited
National Assembly v. President (2003) 4
NWLR (Pt.824) 104 and argued that the defendants who went to the D'Rovans Hotel to congregate there did so on a frolic and not in pursuance of any constitutional implementation. He cited
Akintola v. Aderemi (1962) All NLR 440 at 443; Hamilton v. Alfayed (2000) 2 All ER 224 and Attorney-General of Bendel State v. Attorney-General of the Federation (1981) 2 NSCC 314.
On the ouster clause, learned Senior Advocate submitted that for it to operate or oust the jurisdiction of the court, the
donee of the power must act within the substantive and procedural limits prescribed by the enabling law. He cited
Anisminic Ltd, v. Foreign Compensation Commission (1969) 2 AC 147 and The Bribery Commissioner v. Ranasinghe (1965) AC 172. Examining decisions of the Court of Appeal on impeachment, learned Senior Advocate submitted that they are not binding. He examined Abaribe v. The Speaker Abia State House of Assembly (supra); Musa v. Hamza (supra); Ekpo v.
Calabar Local Government (supra); Jimoh v. Olawoye (supra) and Ekekeuqbo v.
Fiberisima (supra).
Learned Senior Advocate submitted that the issues formulated in the appellants' brief do not flow directly from the grounds of appeal and the arguments on the issues run counter, and not only to the groups of appeal but also to the formulated issues. He gave as an example the complaint that the affidavit in support of the originating summons offends some sections of the Evidence Act. He argued that as the appellants did not raise the issue of faulty affidavit in the Court of Appeal, they cannot now just wake up to raise the issue in the Supreme Court. He submitted that this court has no jurisdiction to countenance the complaints on the affidavit in support. He claimed that the appellants abandoned their grounds of appeal and by extension, the entire appeal; and a fortiori no proper brief has been presented to the court and urged the court to so hold.
Learned Senior Advocate for the 3rd respondent, Yusuf Ali, Esq., SAN, like Chief Olanipekun, raised a preliminary objection on the competence of the grounds of appeal and urged the court to dismiss the appeal. The grounds of objection took the same trend as Chief
Olanipekuns.
Arguing Issue No . 1, learned Senior Advocate said that it is the claim of the plaintiff/claimant that the court will look at in determining the issue of jurisdiction of the court. In other words, it is the case put forward by the plaintiff that will be taken into consideration in answering whether or not the trial court has jurisdiction. The defence of the defendant, whether imagined or real, is irrelevant, counsel contended. He cited
Okulate v. Awosanya (2000) 2 NWLR (Pt. 646) 530 at 555 and 556; Adeyemi v.
Opeyori (1976) 9-10 SC 31 at 51, Tukur v. Government of Gongola State (1989) All
NLR 579 at 599 and Egbuonu vs._BRTC (1997) 12 NWLR (Pt. 531) 29 at 43.
Taking Rabiu v. The State (1981) 2 NCLR 293 at 328 and 327; Anya (1993) 7 NWLR (Pt. 305) 290 at 315; Adisa v. Oyinwolu (2000) 10 NWLR (Pt. 674) 116; Salami v. Chairman LEDB (1989) 5 NWLR (Pt.123) 539; Ekpo v. Calabar Local Government (1993) 3 NVVLR (Pt. 281) 324 at 337 on the interpretation of the Constitution, learned Senior Advocate submitted that the High Court has jurisdiction to entertain the action. To learned Senior Advocate, a proper reading of the whole of section 188 of the Constitution will reveal that the ouster clause in that section can only be resorted to and invoked, after compliance with the other subsections that preceded it. He took pains to analyse each of the subsections in admirable detail in his brief. He cited AG Bendel State v. AG Federation (1931) All NLR 86 at 127 and 133; Jimoh v. Qlawoye (2003) 10 NWLR (Pt. 828) 307 at 338 and 339; Adebiyi v.
Sorinmade (2004) All FWLR (Pt. 239) 933 at 948.
Learned Senior Advocate submitted on issue No . 2 that what the Court of Appeal did was in consonance with the decision of this court in Jadesimi v. Okotie-Eboh (1986) 1 NVVLR (Pt. 16) 264 at 276. He also cited Imonkhe v. AG Bendel State (1992) 6 NWLR (Pt. 248) 396 at 410;
Adabla v. Aqama (1940) 5 WACA 25;
Okoya v. Santili (1990) 2 NWLR (Pt. 131) 172 at 207 and Akpan v. Otonq (1996) 10
NWLR (Pt. 476) 108 at 123, To counsel, section 16 is a residual provision to take care of the situation that has arisen in this case.
On the issue of fair hearing, learned Senior Advocate referred to paragraphs 6, 7, 8, 9, 10, 11 and 12 of the affidavit in support and submitted that the Court of Appeal and this court have the statutory authority to take judicial notice of the facts deposed in the paragraphs by virtue of section 74(1 )(c) of the Evidence Act as the facts deal with the course of proceedings of the Oyo State House of Assembly. He also referred to the ruling of the learned trial Judge to the effect that the Issues for determination in the originating summons in this case are basically on point of law in which no affida