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2019 elections and question of national unity: Constitution and credible candidates (7)

This week I will continue my examination of the reported attempts by the Houses of Assembly of Benue and Imo States to impeach the Governors of the respective states.

It is settled principle of law that the Constitution is the supreme law of the land and the failure to follow any of its provisions renders any steps taken unconstitutional, null and void. In HOPE DEMOCRATIC PARTY (HDP) V. MR. PETER OBI & 5 ORS (2011) 12 SC (PT. II) 162, the Supreme Court stated that:

‘’The Constitution is the supreme law of the land; therefore the provisions are superior to every provision embodied in any Act or law and are binding on all persons and authorities in Nigeria. The failure to follow any of the provisions renders the steps taken unconstitutional, null and void. Such Act must be set aside by the Court.”

Supremacy of the legislature

The Courts have also held that supremacy of the legislature is subject to the overall supremacy of the Constitution and the legislature must exercise its powers within the limits of the provisions of the CFRN. Please see the case of INDEPENDENT NATIONAL ELECTORAL COMMISSION & ANOR V. BALARABE MUSA & ORS (2003) 1 SCM 62, where it was held that:

‘’The supremacy of the National Assembly is subject to the overall supremacy of the Constitution. Accordingly, the National Assembly in which the Constitution vest powers cannot go outside or beyond the Constitution. Where a situation arises, the Court will, in an action by the aggrieved party, pronounce the act unconstitutional, null and void.”

Placing reliance on the above-cited decisions of the Supreme Court, it is indisputable that the House of Assembly of a State must strictly comply with all listed procedure in Sections 188(1) – 188(9) of the CFRN before it can lawfully and constitutionally remove a person from the office of Governor or Deputy Governor. InINAKOJU & 17 ORS V. ADELEKE & 3 ORS (2007) 1 SC (PT. I) 1 @ PG. 135, LINE 5, it was stated that:

‘’The provisions of Section 188(1) to (9) must be strictly complied with before a Governor or Deputy Governor can be constitutionally removed from office.”

Please also hear his Lordship Ogbuagu, JSC at PG. 222-223 @ LINES 40-15, where his Lordship held that:

Seriousness or magnitude of the removal

‘’It can be seen that the draftsmen, were alert in respect of the seriousness or magnitude of the removal of a Governor or his Deputy. They chose their words and every word in this section or provision, is weighty and material. Therefore, in the removal of such officers, the procedure clearly specified, must be followed and strictly complied with before such removal becomes valid and constitutional. Any breach of any of the said provisions surely and certainly, renders such removal ineffective, null and void and of no effect. It is now settled firstly, that where a statute or Constitution, prescribes a procedure for seeking a remedy or the doing of anything or act and the language used, is clear and unambiguous, (as in the above section) that is the only procedure open to the parties concerned and any departure therefrom, will be an exercise in futility.”

It is thus clear that not all the conditions in Section 188(1) – 188(9) of the CFRN have to be breached before the impeachment can be declared unlawful and unconstitutional. A breach of any one of the conditions in Section 188(1) – 188(9) of the CFRN by the House of Assembly of a State is enough to render an impeachment unlawful and unconstitutional. Please see the case of INAKOJU & 17 ORS V. ADELEKE & 3 ORS (SUPRA) @ PG. 83 LINES 1 – 5, where it was held that:

Breach of one condition

‘’I should briefly take the above, not before I make an important point that all the above conditions need not be breached before a Court of law can hold that the procedure is unconstitutional. Breach of one condition is enough.’’

Having shown that the House of Assembly of a State must strictly comply with all the above-listed procedure in Sections 188(1) – 188(9) of the CFRN before it can lawfully and constitutionally remove a person from the office of Governor or Deputy Governor. The pertinent question to ask at this stage is whether or not the actions of the Benue State House of Assembly and Imo State House of Assembly are in strict compliance with Section 188(1) – 188(9) of the CFRN.

Whether or not the Benue and Imo State Houses of Assembly followed the proper procedure for impeachment?

For the sake of convenience I propose to analyze the respective actions of the Benue and Imo State House of Assembly individually in order to ascertain whether or not the respective State Houses of Assembly followed the procedure under Section 188(1) – 188(9) of the CFRN.

BENUE STATE

I will refrain from commenting on the legality and civility of the alleged storming of the legislative house with heavily armed policemen and operatives of the Department of State Security (DSS) and just focus on the constitutionality of the notice of allegation executed by the 8 legislators.

There are 30 legislators that make up the Benue State House of Assembly. A reading of the above-quoted section of the CFRN makes it clear that the notice of allegation must be signed by not less than one-third of the Benue State House of Assembly.

One-third of the members of the Benue State of House of Assembly is 10. Hence by virtue of Section188(2) of the CFRN any notice of allegation must be signed by not less than 10 members of the Benue State House of Assembly.

The notice of allegation signed by less than one-third of the members of the Benue State House of Assembly is a gross violation of the provisions of Section188(2) of the CFRN and any lawful/constitutional impeachment cannot be founded on the said notice of allegation.

It is settled law that where the law has prescribed a particular method of carrying out a duty only that method must be adopted. Please see the case of C.C.B. (NIG) PLC V. A-G., ANAMBRA STATE (1992) 8 NWLR (PT. 261) 528 @ PG. 556 (PARA G – H) where the Supreme Court, Per Nmaemeka – Agu, JSC held that:

‘’Now, it is the law that where a statue provides for a particular method of performing a duty regulated by statue, that method, and no other, must have to be adopted…”

In the case of PHARMA – DEKO PLC V. F.D.C. LTD. (2015) 10 NWLR (PT. 1467) 225 @ PG. 249 (PARA A), the Court of Appeal held that:

‘’…For example, once a law has prescribed a particular method of exercising a statutory power any other method of exercise of it is excluded.”

Unlawful and unconstitutional procedure

The procedure adopted by the 8 legislators in this case is not supported by the provisions of the CFRN. The impeachment proceedings have been kicked off on a totally unlawful and unconstitutional procedure. It is submitted that no subsequent action can cure this fundamental defect. It is settled law that one cannot put something on nothing and expect it to stand. Please see the case of AJI V. CHAD BASIN DEV. AUTHOURITY & ANOR (2015) 3-4 SC (PT. III) 1; HAMZAT V. SANNI (2015) 5 NWLR (PT. 1453) 486; MACFOY V. U.A.C. (1962) AC 158.

It is also settled law that where the pre-condition for carrying out an act has not been properly complied with any act subsequent thereto would be invalid, null and void. Please see the case of BEN OBI NWABUEZE V. JUSTICE OBI OKOYE (1988) 10-11 SC 79, where it was held that:

‘’Where the law prescribes the doing of a thing as a condition for the performance of another, the non-doing of such thing renders the subsequent act void.”

Dead on arrival

It is my opinion that the notice of allegation signed by less than one-third of the members of the Benue State House of Assembly is unconstitutional. Hence the impeachment proceedings commenced by the said 8 members of the Benue State House of Assembly having been commenced on a procedure other than as stated in the CFRN is dead on arrival. In the case of EKPENYONG V. UMANA (2010) ALL FWLR (PT. 520) 1387 @ PG. 1397, PARAS F-G, Per Ngwuta, JCA (as he then was), his Lordship held that:

‘’I accept the argument and the authorities to the effect that for the purpose of the issues of jurisdiction, Section 188(1) – (9) must be read together before it can be determined whether the ouster clause in subsection (10) bars the Court from intervention. For instance, suppose that contrary to Section 188(1), the notice of allegation is supported by 1/5 of the members of the House, this would be a violation of the Constitution itself and the Court would intervene.”

The notice of allegation signed by 8 out of the 30 members of the Benue State House of Assembly is unconstitutional. Any impeachment proceedings instituted, continued or concluded on the basis of the said notice of allegation would be unconstitutional, null and void.

 

To be continued.


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