Ondo “Impeachment” Process: Akeredolu Chief Judge Is Not A Rubber Stamp

Controversy has trailed the move by Ondo State House of Assembly to remove the Deputy Governor of the state. Things came to head when the Chief Judge of the State declined the request to set up a panel to investigate the Deputy Governor. Before raising some few legal issues regarding the rejection, it is good to first give a brief background of the issue.

BACKGROUND FACTS

The Speaker of Ondo State House of Assembly, Bamidele Oleyelogun, wrote to the Chief Judge of the State requesting her to set up a panel for the purpose of removing the Deputy Governor of the state in line with section 188 (5) of the 1999 Constitution.

However, Hon. Justice Akeredolu, in a letter dated July 9 and addressed to the Speaker, said the lawmakers have not completed the constitutional process that would lead the Speaker to invite her to set up an investigative panel as stipulated by the Nigeria Constitution.

Justice Akeredolu drew attention of the Speaker to the letter she received from Kayode Olatoke SAN that the matter of the “impeachment” of Ajayi was subjudice.

LEGAL ISSUES INVOLVED

The question is: Have Ondo State Chief Judge the legal right to review the actions of the House of Assembly by rejecting the request to set up a panel? In other words, is her duty not to just constitute the panel?

 REFUSAL BY THE CJ ON THE BASIS OF INCOMPLETE CONSTITUTIONAL PROCESS

The CJ faulted the Speaker of the House on the basis that the removal process was incomplete. Is she correct? The procedures before setting up a panel by Chief Judge include:

1. Allegation in writing against the Deputy Governor for gross misconduct
2. The allegation must be signed by one-third of members of the House
3. Service of the Notice on the Deputy Governor and all members of the House within 7 days
4. Reply by the Deputy Governor on the allegations (if any) to be served on members
5. Motion to or not to investigate the allegations to be moved within 14 days (whether or not the Deputy Governor had responded)
6. The Motion to investigate must be supported by two-third majority of ALL MEMBERS of the House. then
7. Letter to Chief Judge requesting setting up of panel

Actually there was allegation in writing against the Deputy governor signed by 14 members of the House (above the one-third required number because even 7 members suffice). However, Premium Times Newspaper reported on 9^th July, 2020 that the Deputy Governor has denied been served with any allegation of gross misconduct while the House on the other hand insisted that they have served him. See https://www.premiumtimesng.com/regional/ssouth-west/402063-controversy-trails-issuance-of-impeachment-notice-to-ondo-deputy-governor.html accessed on the 11th of July, 2020 by 12:39 noon

The service of the allegation on him is a Constitutional requirement while his response to the allegation is irrelevant. But since there is controversy as to the service, it would be safe to count it out in determining whether the constitutional process were complete. But one thing that is certain is that the evidence of service on the Deputy Governor was not made available to the Chief Judge

Also in the letter, the Chief Judge said 14 members signed the Motion supporting investigation of the Deputy Governor. Section 188(4) of the constitution says “A motion of the House of Assembly that the allegation be investigated shall not be declared as having been passed unless it is supported by the votes of not less than two-thirds majority of all the members of the House of Assembly”

It should be noted that the members of the House are 26 and the two-third of the House is 17 members. This, therefore, means the required number was not met for Motion to investigate the allegation because they needed three more members.

In the light of the foregoing, the Chief Judge was, without doubt, correct when she said the constitutional process was incomplete.

But the question remains unanswered: could she have, on that basis, legally decline the request of the Speaker to set up a panel to investigate the Deputy Governor?

The constitution seems silent about it. But to take a stroll down memory lane, a distinguished law lord and an emeritus justice of the Apex Court, late Niki Tobi J. S. C. in Inakoju V Adeleke (2007)4 NWLR (Pt. 1025) 423 said a Chief Judge can actually decline to set up the panel. He said:

“It is merely saying the obvious that the Chief Judge can only invoke his constitutional powers under section 188(5) if the provisions of section 188(2), (3) and (4) are complied with. Putting the position in a negative language, the Chief Judge will not invoke his constitutional powers under section 188(5) if the provisions of section 188(2), (3) and (4) are not complied with. This, in my humble view, is the intendment of the makers of the Constitution. It will not be out of place for the Chief Judge to ask from the Speaker a certificate of compliance under the signature of the Speaker. I am not insisting on this because the Constitution does not so provide.”

We are in agreement with the judicial icon, it accords more with the intendment of the constitution. Suggesting otherwise will amount to endorsing disregard to due process.

On that premise, we are of the view that Hon. Justice Akeredolu was correct when she declined to set up a panel.

REFUSAL ON THE BASIS OF PENDING SUIT

Another reason given by Justice Akeredolu was that the removal matter was sub judice, meaning, there is pending suit on it.

“…I wish to bring to your notice a copy of letter which I received earlier today (Thursday) from Kayode Olagoke SAN, which tells me clearly that the matter of impeachment of Hon. Alfred Agboola Ajayi, Deputy Governor of Ondo State is sub judice.” Akeredolu C.J said

According to Wikipedia, sub judice is a Latin for “under a judge”, meaning that “a particular case or matter is under trial or being considered by a judge or court.” And the term may be used synonymously with “the present case” or “the case at bar”.

Under our administration of justice system, once a matter is pending in court, none of the parties is expected to take any other step in respect of the subject of litigation until courts make a decision on it. See UNIVERSITY OF ILORIN V. OLUWADARE (2006) 14 NWLR (Pt. 1000) 751, where the Expelled student rushed to court for the enforcement of his fundamental rights before the consideration of his appeal by relevant panel at University of Ilorin. The court held that  “Of course, having rushed to the court, the matter became sub-judice and there is nothing the Council or the appellants could have done, until the matter is determined by the court.”

The same position was taken in HARUNA, ESQ. & ORS v KOGI STATE HOUSE OF ASSEMBLY & ORS [2002] 7 NWLR (PT. 1194) 604. The court held as follows:

“Once parties have turned their dispute over to the courts for determination, the right to resort to self help ends. It is not Permissible for one of the parties to take any step during the pendency of the suit which may have the effect of foisting upon the court a situation of complete helplessness or which may give the impression that the court is being used as a mere subterfuge, to tie the hands of one party while the party helps himself extra judicially. Both parties are expected to await the result of the litigation and the appropriate order of court before acting further. Once the court is seized of the matter, no party has the right to take the matter into his own hands. In other words, it is a reprehensible conduct for any party to an action or appeal pending in court to proceed to take the law into his hands without any specific order of the court and to do any act which would pre-empt the result of the action. The courts frown against such conduct and would always invoke their disciplinary powers.

See also See BAMIGBOYE VS. OLUSAGA (1996) 4 NWLR (PT. 444) 520 AT 549., REGISTERED TRUSTEES, APOSTOLIC CHURCH VS OLOWOTENI (1990) 6 NWLR (PT 158) 514; COMBINE TRADE LTD VS A.S.T.B. LTD (1995) 6 NWLR (PT 404) 709; EZEGBU VS F.A.T.B. LTD (1992) 1 NWLR (PT 220) 699; and ABIODUN VS C.J. KWARA STATE (2007) 18 NWLR (PT 1065) 109.

To say that Akeredolu C.J was right by refusing to set up the panel is to state the obvious. Perhaps doing otherwise would have caused the wrath of courts on her as it happened in Danladi v. Dangiri (2015) 2 NWLR (Pt 1442.) 124. Here the court descended on lawyers who perpetrated illegality on removal of the Deputy Governor of Taraba State. Per NGWUTA, J.S.C, on page 168, paras. E-H fumed as follows:

“The most disturbing aspect of the Kangaroo panel is that it was headed by a man described in the processes before this court as a Barrister – one Barrister Nasiru Audu Dangiri. The third member of the panel was also described as a Barrister – one Barrister R. J. Ikitausai. If these two men are actually members of the noble profession to which your Lordships and my humble self, by the Grace of God have the honour to belong, and not people who, for self-aggrandisement adopted the nomenclature “Barrister”, the harm they have deliberately perpetrated in this matter is so serious that the attention of the Disciplinary Committee of the Bar ought to be drawn to it.”

REMARK ON REMOVAL PROCESS IN NIGERIA

It is submitted that politicians have continued to make mess of our judicial system unabated and acting with impunity. It is time for our judges to protect our constitution by refusing to dance to their tunes. Justice Akeredolu must be commended for her bold action. She will be remembered in history to have rejected a request for setting up a panel meant to unconstitutionally remove a sitting Deputy Governor. She has adopted a statement made by Lord Denning M. R. in Packer v. Packer [1954] P. 15 at p. 22, thus:

“What is the argument on the other side?  Only this, that no case has been found in which it had been done before.  That argument does not appeal to me in the least. If we never do anything which has not been done before, we shall never get anywhere. The law will stand still, whilst the rest of the world goes on and that will be bad for both”

An eminent Senior Advocate of Nigeria, Jibrin Samuel Okutepa, described the refusal by Chief Judge to set up the investigation panel as a good step in the right direction and an “obedience and fidelity to constitutional duty which his lordship sworn to defend and uphold.”

He expressed disappointment that the Chief Judge of Kogi State lacked the courage to do something similar when the then Deputy Governor of Kogi State had a pending matter challenging his removal. He commended Justice Akeredolu and said though the political class will not be happy with the decision, the right members of the legal profession must applaud her boldness.

“His lordship CJ of Ondo State, Hon Justice Oluwatoyin Akeredolu will go down in history as the first CJ that refused to set up a  panel to investigate the Deputy Governor when litigation was pending. He said it was sub-judice.

“That is what a good judicial officer should do. Kudos to Akeredolu CJ…

“The example of Akeredolu CJ must be copied by all heads of courts and other judicial officers when faced with decisions to defend our constitution.” Okutepa said.

There are important pronouncements of courts on issue of removal of Governors which are good for a write-up of this nature. Quoting two would be fine.

In Danladi v. Dangiri (2015) 2 NWLR (Pt 1442.) 124, Per NGWLTA, J.S.C. at page 168-164, paras. H-B said:

“Impeachment of elected politicians is a very serious matter and should not he conducted as a matter of course. The purpose is to set aside the will of the electorate as expressed at the polls. It has implication for the impeached as well as the electorate who bestowed the mandate on him. Whether it takes one day or the three months prescribed by law, the rules of due process must he strictly followed. If the matter is left at the whims and caprices of politicians and their panels, a State or even the entire country could he reduced to the status of a banana republic. The procedure for impeachment and removal must be guarded jealously by the courts.”

Per GALADIMA, J.S.C. at page 170, paras. G-H in his concurring judgment in the same case observed that:

“This appeal has once again brought to the fore the frequent impeachment of elected politicians, we have witnessed in recent times. As serious as the matter is, the legislators have found a veritable weapon to exit the faces of those they don’t like. It should not be so. The process of impeachment must be strictly and duly observed so as not to thwart the will of the electorate freely expressed at the polls.”

A BY THE WAY REMARK ON THE USE OF THE WORD “IMPEACHMENT” BY JUSTICE AKEREDOLU

Justice Akeredolu had in her letter to the Ondo State House of Assembly used the word “impeachment” to refer to the removal process in section 188 of the constitution. With profound respect she is not correct. Such word does not exist in that section and are not even synonymous. Impeachment is a criminal proceedings in the United States as a preliminary move to remove a sitting president.

A distinguished law lord and an emeritus justice of the Apex Court, Niki Tobi J. S. C. was in agreement with the point we are labouring to make. He held in Inakoju V Adeleke (2007)4 NWLR (Pt. 1025) 423 as follows:

“Section 188(1) and (2) does not provide for the word “impeachment”. The appropriate word is REMOVAL, although section 188(1) contains the verb “removed”. In the circumstances, the first relief should have used the word “REMOVAL” in the place of “IMPEACHMENT” (capitalized for emphasis)

Emphazing on the above, legendary Honourable, Sir Niki Tobi, J.S.C. of blessed memory added thus:

“Section 188… covers both civil and criminal conduct. I am not saying that the definition vindicates the totality of the impeachment provision of the United States Constitution. It is my view that the word should not be used as a substitute to the removal provisions of section 188. We should call spade its correct name of spade and not a machete because it is not one. The analogy here is that we should call the section 188 procedure one for the removal of Governor or Deputy Governor, not of impeachment.” (Emphasis mine)

CONCLUSION

In the light of what has so far been stated, it is our view that Justice Akeredolu has done the right thing and blazed the trail for other heads of courts to follow.

TheNigeriaLawyer Editorial