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Hon. Michael Dapianlong & Ors v. Chief (DR) Joshua Chibi Dariye & Anor (2007) - SC


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CASE SUMMARY OF:
Hon. Michael Dapianlong & Ors v. Chief (DR) Joshua Chibi Dariye & Anor (2007) - SC
by PaulPipAr

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PARTIES
APPELLANT

Hon. Michael Dapianlong;
Hon. Nazifi Mohammed;
Hon. Rahila Baleri;
Hon. Nan Chang Napchwat;
Hon. Emmanuel Danboyi Jugul;
Hon. Dina Lar;

V.

RESPONDENT

Chief (Dr.) Joshua Chibi Dariye;
Mr. John Mark Samchi

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CITATION
(2007) LPELR-SC.39/2007;
(2007) 8 NWLR (Pt. 1036) 332;
2 (2007) 4 S.C. (Pt.III)118;
3 (2007) 4 S.C. (Pt.III)118

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COURT
Supreme Court

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LEAD JUDGEMENT DELIVERED BY:
WALTER SAMUEL NKANU ONNOGHEN, JSC

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LAWYERS WHO ADVOCATED
FOR THE APPELLANT
Chief Gani Fawehinmi, SAN

FOR THE RESPONDENT
Emmanuel J.J. Toro Esq, SAN

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FACT
Plateau State, like any other State in the Federal Republic of Nigeria, has a House of Assembly established under section 4(6) of the Constitution of the Federal Republic of Nigeria 1999 (hereinafter referred to/called the 1999 Constitution). The said House of Assembly comprise of 24 members. It is an undisputed fact that between 25th and 26th July, fourteen (14) out of the twenty-four (24) members of the Plateau State House of Assembly (including the Speaker and Deputy Speaker thereof) cross-carpeted from the Peoples Democratic Party (PDP), the platform on which they were elected to the House in 2003, to Advanced Congress of Democrats (ACD), a registered political party, as a result of which the said 14 members vacated their seats by operation of law leaving only 10 members of that House. Following the cross-carpeting of the said 14 members of the House including the Speaker and the Deputy Speaker, the 1st appellant became the new Speaker of the House and by a letter dated 5th October, 2006 invited the Chairman of Independent National Electoral Commission (INEC) to organize a by-election for the purpose of filling the vacant seats. The 1st appellant subsequently requested the Acting Chief Judge of Plateau State to set up a 7 man Panel to investigate the allegations of gross misconduct against the 1st respondent which was done. The said Panel was headed by the 2nd respondent. The Panel carried out their assignment and submitted a report to the Plateau State House of Assembly which report was adopted by the House on the 13th day of November, 2006 resulting in the removal of the 1st respondent as the Governor of Plateau State. At the stage of removal of 1st respondent the by-election had not been conducted. Throughout the processes and proceedings leading to and including the impeachment of the 1st respondent, the Plateau State House of Assembly had only ten members, eight (8) of who supported and voted in favour of the removal of the 1st respondent under section 188 of the 1999 Constitution.

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ISSUE
The 1st respondents counsel raised preliminary objections as to the grounds filled by the appellants containing questions as to fact, and stated that at the best the appellants ground 1, 2, 3, are of mixed law and fact. However, the Court overuled this preliminary objection and went ahead to hear the substantive matter brought before the Court for determination.
The issues formulated are as follows:
1. Whether having regard to this peculiar facts and circumstances in this cases the Court of Appeal was right in invoking the powers vested on it by section 16 of the Court of Appeal Act, Cap. 75 LFN, 1990. to hear and determine both the preliminary objections and the originating summons in this cases.
2. Whether the removal or impeachment of the respondent, Chief Joshua Chibi Dariye, by 8 out of 10 members of the Plateau State House of Assembly, at the relevant time, satisfy (sic) the requirements of section 188 of the Constitution of the Federal Republic of Nigeria, 1999. 14 members of the said House having vacated their seats by operation of law.

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HOLDING
1. Issue 1 was granted in favour of the respondents. The Supreme Court held further, "the powers conferred on the Court of Appeal by section 16 of the Court of Appeal Act are exercisable by that court where certain fundamental conditionalities are met, such as:
(a) availability of the necessary materials to consider and adjudicate in the matter;
(b) the length of time between the disposal of the action at the trial court and the hearing of the appeal; and
(c) the interest of justice by eliminating further delay that would arise in the event of remitting the cases back to the trial court for rehearing and the hardship such an order would cause on either or both parties to the cases. see Inakoju v. Adeleke supra at 691 - 692.
The Supreme Court held further, It is my considered view that from the facts and surrounding circumstances of this cases, the above preconditions existed in the instant cases and that the lower Court was right in acceding to the plea of the counsel for the parties to invoke its powers to take the decisions it took in the interest of justice, equity and good conscience.";
"It follows that proceedings commenced by originating summons are very expeditiously dealt with particularly as witnesses are rarely called and examined. It is therefore a must appropriate mode of commencing the instant action since impeachment proceedings are sui generis (in a class of their own) and time is of the essence. In this cases, the tenure of the 1st respondent is to expire by 29th May, 2007 and it is very important that a decision, one way or the other, has to be made.";
2. As for issue 2, the Supreme Court held that the removal of the Governor was unconstitutional. It stated that two-third majority must comprise of the 24 members slotted for as the members of the National Assembly. That even though 14 of the members defected, a by-election would have been conducted first before proceeding with the impeachment. The Court, per Onnoghen JSC, delivering the led judgement, further held, "In conclusion, it is clear that the appeal lacks merit and is accordingly dismissed by me with N10,000.00 costs against the appellants: I wish I could award more, but, my hands are tied. The judgment of the Court of Appeal restoring and reinstating the 1st respondent, Joshua Chibi Dariye to his office as the Governor of Plateau State of Nigeria with all rights, privileges, and perquisites of the said office is hereby affirmed."

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REFERENCED
S. 233(3) of the 1999 Constitution;
S. 188, 102, of the 1999 Constitution;
S. 16 Court of Appeal Act Cap. 75 LFN, 1990;
S. 90, 91, 102, CFRN 1999
Section 16 of the Court of Appeal Act enacts the following: "16. 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 of the proceedings had been instituted in the Court of Appeal as court of first instance and may re-hear the cases in whole or in part or may remit it to the court below for the purpose of such rehearing or may give such other direction as to the manner in which the court below shall deal with the cases in accordance with the powers of that court, or, in the cases of an appeal from the court below, in that court's appellate jurisdiction, order the cases to be re-heard by a court of competent jurisdiction."

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NOTABLE DICTA
It is settled law that jurisdiction is a radical and crucial question of competence because if a court has no jurisdiction to hear and determine a cases, the proceedings are and remain a nullity ab initio, however well conducted and brilliantly decided they might be since a defect in competence is not intrinsic, but extrinsic to the entire process of adjudication. Jurisdiction is therefore considered to be the nerve centre of adjudication; the blood that gives life to the survival of an action in a court of law in the very same way that blood gives life to the human being in particular and the animal race in general. - Walter Samuel Nkanu Onnoghen, JSC, Dapianlong v. Dariye (2007)

It is also settled law that section 16 of the Court of Appeal Act can be invoked in order to facilitate the speedy administration of justice as it is designed to avoid multiplicity of proceedings and hearings. Instead of sending the cases back to the trial Judge for a trial, section 16, in an appropriate cases empowers the Court of Appeal to assume the jurisdiction of the trial court and determine the real question in controversy between the parties so as to save much needed time in the administration of justice in this country. - Walter Samuel Nkanu Onnoghen, JSC, Dapianlong v. Dariye (2007)

The originating summons procedure is a means of commencement of action adopted in cases where the facts are not in dispute or there is no likelihood of them being in dispute and when the sole or principal question in issue is or is likely to be one directed at the construction of a written law, Constitution or any instrument or of any deed, will, contract or other document or other question of law or in a circumstance where there is not likely to be any dispute as to the facts. In general terms, it is used for non-contentious actions or matters i.e. those actions where facts are not likely to be in dispute. - Walter Samuel Nkanu Onnoghen, JSC, Dapianlong v. Dariye (2007)

It is settled law that the Constitution of any country is what is usually called the organic law or grund norm of the people. It contains all the laws from which the institutions of state derive their creation, legitimacy and very being. The Constitution is also the unifying force in the nation apportioning rights and imposing obligations on the people who are subject to its operation. It is a very important composite document, the interpretation or construction of which is subject to reorganized cannons of interpretation designed or crafted to enhance and sustain the esteem in which Constitutions are held [in] the world over. - Walter Samuel Nkanu Onnoghen, JSC, Dapianlong v. Dariye (2007)

It is true that section 188(10) of the 1999 Constitution ousts the jurisdiction of the courts in respect of the impeachment of a Governor or Deputy Governor but that must be subject to the rule that the legislature or the House of Assembly complied with all the constitutional requirements in section 188 needed for the impeachment as the courts have jurisdiction to determine whether the said constitutional requirements have been strictly complied with or not. - Walter Samuel Nkanu Onnoghen, JSC, Dapianlong v. Dariye (2007)

The impeachment or removal of a Governor or Deputy Governor is a very serious business. Certainly, it cannot be the intendment of the framers of the Constitution that the decision to impeach or remove anyone holding that high office should be left in the hands of very negligible few as 8 (eight) members as it has been argued. The provisions of the Constitution must be interpreted in a just and holistic manner. Francis Fedode Tabai, JSC, Dapianlong v. Dariye (2007)

If proved in accordance with the laws of our land, by the cardinal principle of morality, justice and democratic government that an offender guilty of crime should be sentenced by the court to such penalty as his crime merits, the 1st respondent must not be allowed to run away from justice. But before this can be done, due process of law must be followed from the beginning to the end. An act may be morally reprehensible unless there is a law properly enacted which makes that act punishable and goes ahead to prescribe the punishment for it, a Judge, indeed, any court of law is hamstrung to sentence and punish the perpetrator. - Francis Fedode Tabai, JSC, Dapianlong v. Dariye (2007)

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