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Hon. Muyiwa Inakoju v. Hon. Abraham Adeolu Adeleke (2007) - SC


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CASE SUMMARY OF:
Hon. Muyiwa Inakoju v. Hon. Abraham Adeolu Adeleke (2007) - SC
by PaulPipAr

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PARTIES
APPELLANT

Hon. Muyiwa Inakoju (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);

v.

RESPONDENT

Hon. Abraham Adeolu Adeleke (Speaker);
Hon. Barrister Titilayo Ademola Dauda (Deputy Speaker);
Oyo State House of Assembly;
Senator Rashidi Adewolu Ladoja;

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CITATION
(2007) 4 NWLR (pt. 1035) Pg. 403

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COURT
Supreme Court of Nigeria

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LEAD JUDGEMENT DELIVERED BY:
Niki Tobi, JSC

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LAWYERS WHO ADVOCATED
FOR THE APPELLANT
- Mr. O. Ayanlaja

FOR THE RESPONDENTS
- Chief Wole Olanipekun - 1st & 2nd respondents
- Yusuf Ali, Esq., SAN. - 3rd respondent

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FACT
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 Road, 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, 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.

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ISSUE
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 cases.
2. 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 [Senator Rashidi Adewolu Ladoja] as the Governor of Oyo State.
3. Whether the Respondents have the locus standi to institute this action.
4. Whether the Court of Appeal was not right, having regard to the peculiar circumstances of this cases 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.

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HOLDING
1. On Issue 1, the Supreme Court held that the ouster clause cannot in this cases help the appellant. The ouster clause could only apply if the condition precedent in subsection (1) to (9) of section 188 was complied with by the Court. But as in this cases the provisions were not complied with; ipso facto, it being the job of the judiciary to enforce the Constitution, the Court had jurisdiction to entertain the matter. It held, inter alia, "The section 188(10) ouster clause is clearly on proceedings or determination of the Panel or the House. It does not relate to or affect the procedure spelt out in section 188(1) to (6). Parliamentary proceedings which result in the Hansard cannot be the same as the procedure which Parliament invokes or adopts during the proceedings." The Court distinguished 'proceedings' from 'procedure'. The procedure leads to the proceedings. Hence, if the procedures are right then the proceedings cannot be questioned by any Court of law. But Courts of Law have power to determine if the correct procedure have been complied with.
2. On Issue 2, the Court held, that the Court possessed jurisdiction over the matter. On this Issue, the Court affirmed the Court of Appeal ruling, and overruled the High Court decision that ruled that the Court has no jurisdiction to entertain the matter.
3. On Issue 3, the Court ruled that the respondents have locus standi to commence the action as they did in the High Court of Justice, Oyo State. The Court further held, per Niki Tobi JSC, "In this cases, the respondents sought four declarations based on section 188 of 'the Constitution of the Federal Republic of Nigeria. This apart, the affidavit in support deposed to a number of violations of section 188 by the appellants. A community reading of the reliefs sought by the respondents and the affidavit in support clearly, in my view, vest locus standi on the respondents."; "Really, why should learned Senior Advocate submit that the plaintiffs 'are all busy bodies who are fighting the cause of Senator Rasheed Adewolu Ladoga'? Why should he import the minority principle in company or commercial law [cases] in a matter which is clearly constitutional and which the Constitution donates locus standi? Why should he say that the plaintiffs are busy bodies or why should he think so? I think I am repeating myself, I think I need the repetition for emphasis. Section 188 does not only mention the Speaker and the members of the House of Assembly, but also gives them functions to perform in the removal process. Can such persons be branded with any seriousness as busy bodies in a cases where the relevant section is violated, contravened or breached? This is quite new learning to me and I do not think I am prepared to learn it, not because I hate to learn or I am not willing to learn, but because there is nothing to learn. In sum, I come to the conclusion that the Speaker, Deputy Speaker arid members of the House of Assembly Oyo State have locus standi to commence action in this matter, and I so hold."
4. On Issue 4, the Court held, per Niki Tobi JSC, "real question in controversy in this appeal is whether the removal of the 3rd respondent complied with section 188 of the 1999 Constitution or whether it was in violation or in breach of that section. The grounds of appeal and their particulars before the Court of Appeal clearly donated the real question in controversy. And so the coast was clear for the Court of Appeal to decide on the real question in controversy by invoking its section 16 power."; "Instead of sending the cases back to the trial Judge for a trial, section 16 empowers the Court of Appeal to assume the jurisdiction of the trial court and determine the real question in controversy. This is to save the much needed time in the administration of justice.";
On the Issue of fair hearing, the Court ruled against the Appellant, it stated that fair hearing was granted to them, in fact they conjured up all possible means to delay the Court process, the Court stated, per Niki Tobi JSC, "party who seeks fair hearing from the court must also be fair in the litigation to the adverse party and to the proceedings. A party who intentionally files motions to delay the proceedings is not fair to the adverse party and the proceedings. He should not in any way annoy the proceedings. He has a duty to respond to the procedural needs or requirements of the litigation without applying any baits because the adverse party is a human being; not a fish. He must come out and embrace the litigation with all honesty and sincerity of purpose. Where he decides to plant mines in the judicial process to obtain victory in the event of a possible slip on the part of the court or the adverse party, such a party will not be in a position to ask for the fair hearing of a cases, because he has not shown raciness in the process itself. The principles of equity and fairplay will certainly deny him of the fair hearing principle that he refused to surrender in the judicial process. Although fair hearing is a constitutional guarantee, it has some resonance in the principles of equity and fairplay.";
The Court in closing held:
1. 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.
2. It is only when the provisions of section 188(1) to (9) are complied with that the ouster clause of section 188(10) can be invoked in favour of the House and to the disadvantage of the removed Governor or Deputy Governor.
3. It is only when section 188(1) to (9) is complied with that the jurisdiction of the courts is constitutionally ousted.
4. The provision of section 188(11), though generic and vague in its wording, cannot be extended beyond its onerously generic and vague nature to include misconduct which are not gross.
5. The specific act of misconduct. I have outlined in this judgment cannot be and should not be taken as exhaustive but should be taken as some acts of misconduct. This is not however a license for the Legislature to open a Pandora box of vendetta and rake up misconducts that are not gross.
6. Any business of the House should be held and conducted in parliamentary hours which are set out in the Rules governing the sitting of the House. On no account should business of the House be held in unparliamentary hours. Such business is unconstitutional and the courts will declare it null and void ab initio.
7. Every person involved in the removal exercise must be, like Caesar's wife, above board. They are the Speaker, the members of the House of Assembly, the Chief Judge and members of the Investigation Panel.
The Supreme Court, per Niki Tobi JSC, granted the following reliefs:
1. A declaration that the purported Notice of allegation of misconduct made against His Excellency, Senator Rasheed Adewolu Ladoja, the Governor of Oyo State as a preparatory step to his removal by the defendants is unconstitutional, null and void, and of no effect whatsoever, having regard to the provisions of S.188(1) and (2) of the 1999 Constitution of the Federal Republic of Nigeria.
2. A declaration that the purported Notice of allegation of misconduct made by the defendants against Senator Rasheed Adewolu Ladoja, the Governor of Oyo State not having been received and or served on each of the 32 (thirty two) members of the Oyo State House of Assembly as envisaged by S.188(2) of the 1999 Constitution of the Federal Republic of Nigeria is unconstitutional, null and void and of no effect whatsoever.
3. A declaration that the motion passed by the defendants on 22nd December, 2005 calling for the investigation of the allegation of misconduct against His Excellency, Senator Rasheed Adewolu Ladoja, the Governor of Oyo State, is in contravention of S. 188(3) and (4) of the 1999 Constitution of the Federal Republic of Nigeria, and to that extent, the said motion is unconstitutional, null, void and of no effect whatsoever.
4. A declaration that no valid Notice of allegation of misconduct has been issued by the defendants, same not having been passed through the Clerk of the Oyo State House of Assembly nor received formally by the Honourable Speaker of the Oyo State House of Assembly, Hon. Adeolu Adeleke, in accordance with the provisions of S.188(2) Para. (a) and (b) and S. 188(3) of the Constitution of the Federal Republic of Nigeria.
5. A declaration that the purported suspension of the Draft Rules of the Oyo State House of Assembly 1999, by the defendants on 13th December, 2005 preparatory to the issuance of the Notice of allegation of misconduct against His Excellency, Senator Rasheed Adewolu Ladoja, the Governor of Oyo State in the absence of the Honourable Speaker of the Oyo State House of Assembly, is unconstitutional, invalid and contrary to the provisions of S.101 and 102 of the 1999 Constitution and Rules 23(1) - (4) of the Draft Rules of Oyo State House of Assembly.
6. A declaration that the purported sitting of the defendants at the D'Rovans Hotel Ring Road Ibadan, where the purported Notice of allegation of misconduct was issued, and which is outside the designated official venue of the Oyo State House of Assembly is unconstitutional, invalid, null and void.
7. A declaration that the purported service of the Notice of allegation of misconduct on His Excellency, Senator Adewolu Ladoja, the Governor of Oyo State through piecemeal publication on the pages of the Nigerian Tribune Newspaper which was not addressed to Senator Rasheed Adewolu Ladoja is no service on His Excellency, it is of no effect and it is a breach of his constitutional right to fair hearing as contained in S.36 of the 1999 Constitution, of the Federal Republic of Nigeria.
8. Any order setting aside all the steps taken by the Defendants in relation to the issuance of Notice of allegation of misconduct, passage of motion to investigate same and the purported directive to the Honourable Chief Judge of Oyo State, the said steps having breached the provisions of Section 188 of the 1999 Constitution of the Federal Republic of Nigeria.
Finally, In the light of the foregoing, the 3rd respondent, Senator Ladoja, remains the legally, constitutionally, and democratically elected Governor of Oyo State, and I so order.

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REFERENCED
S.188 CFRN 1999;
S. 15 of the interpretation Act, Cap. 192, Laws of the Federation of Nigeria, 1990;

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NOTABLE DICTA
The action was commenced in the High Court by originating summons. Commencement of action by originating summons is a procedure which is used in cases where the facts are not in dispute or there is no likelihood of their being in dispute. Originating summons is also reserved for issues like the determination of short questions of construction and not matters of such controversy that the justice of the cases could demand the setting of pleadings. - Niki Tobi, JSC. Inakoju v. Adeleke (2007)

Is it really the law that a cases should be dismissed when the court has no jurisdiction to entertain it? With respect, that is not the law and that cannot be the law. The law is that when a court comes to the conclusion that it has no jurisdiction to entertain a suit, it will be struck out and not dismissed. - Niki Tobi, JSC. Inakoju v. Adeleke (2007)

Where an action is filed in a court which has no jurisdiction, it should be struck out and not dismissed in order to give the plaintiff another opportunity to file the action, if possible, in a court of competent jurisdiction or by way of amending the action to fall in line with the jurisdiction of the court it was initially filed. By this, the plaintiff is given an opportunity to have a second bite at the cherry and that is not bad. - Niki Tobi, JSC. Inakoju v. Adeleke (2007)

Ouster clauses are generally regarded as antitheses to democracy as the judicial system regards them as unusual and unfriendly. When ouster clauses are provided in statutes, the courts invoke section 6 [of the CFRN 1999] as barometer to police their constitutionality or constitutionalism. The courts become helpless when the Constitution itself provides for ouster clause, such as section 188. In such a situation, the courts hold their heads and arms in despair and desperation. They can only bark but cannot bite. Their jurisdiction is to give effect to the ouster clause because that is what is in the Constitution or what the Constitution says, it is in the light of this very helpless situation of the courts, the upholders of the rule of law, that parties should not urge them to interpret section of the Constitution as ousting their jurisdiction when it is not. Ouster clause is a very hard matter of strict law which must be clearly donated by the provision. It is not a subject of speculation or conjecture. In sum, I am of the view that in the circumstances of this cases, the wrong procedure adopted is clearly outside the section 188(10) ouster clause, and I so hold. - Niki Tobi, JSC. Inakoju v. Adeleke (2007)

In my humble view, a community reading of the two sections show that the intention of the Constitution is to make the House of Assembly sit physically in the building provided for that purpose. If I am wrong and the appellants are right, it will then mean that the Governor has to move to a Hotel to address the members anytime the House sits there and he wants to take advantage of section 108. Can that be the intention of the makers of the Constitution? Will that not be ridiculous? in Akntola v. Aderemi (1962) All NLR 440 at 443, it was held that anything done outside the House of Assembly to remove the Governor of the old Western Region was/is a nullity. The Governor is elected by the people - the electorate. The procedure and the proceedings leading to his removal should be available to any willing eyes. And this the public will see watching from the gallery. It should not be a hidden affair in a hotel room. - Niki Tobi, JSC. Inakoju v. Adeleke (2007)

A Legislature is not a secret organization or a secret cult or fraternity where things are done in utmost secrecy in the recess of a hotel. On the contrary, a Legislature is a public institution, built mostly on public property to the glare and visibility of the public. As a democratic institution, operating in a democracy, the actions and inactions of a House of Assembly are subject to public judgment and public opinion. The public nature and content of the Legislature is emphasised by the gallery where members of the public sit to watch the proceedings. Although I concede the point that a Legislature has the right to clear the gallery in certain deliberations for security reasons, do not think proceedings for the removal of a Governor should be hidden from the public. - Niki Tobi, JSC. Inakoju v. Adeleke (2007)

It is the law that to have locus stand, the plaintiff must show sufficient interest in the suit. One criterion of sufficient interest is whether the party could have been joined as a party to the suit. Another criterion is whether the party seeking the redress or remedy will suffer some injury or hardship from the litigation. If the Judge is satisfied that he will so suffer, then he must be heard as he is entitled to be heard. - Niki Tobi, JSC. Inakoju v. Adeleke (2007)

Where the competence of a plaintiff to institute an action is challenged or is in issue, the onus would be on him to establish that he is competent to sue as plaintiff. - Niki Tobi, JSC. Inakoju v. Adeleke (2007)

The law is elementary that where the Constitution or a statute contains a general provision as well as a specific provision, the specific provision will prevail over the general provision. - Niki Tobi, JSC. Inakoju v. Adeleke (2007)

I have no difficulty in coming to the conclusion that the suspension of the rules of the House of Assembly and the Speaker of the House in a hotel apartment were clearly male fide as the act was designed to carry out illegal and unconstitutional acts which were ultra vires section 188 of the Constitution. - Niki Tobi, JSC. Inakoju v. Adeleke (2007)

[For Issue estoppel] The appropriate circumstances are: (1) That the same question was decided in earlier proceedings. (2) That judicial decision said to create the estoppel was final. (3) That the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies. - Niki Tobi, JSC. Inakoju v. Adeleke (2007)

The plethora of removal proceedings in respect of Governors is not only frightening but is capable of affecting the stability of Nigeria. It is almost like a child's play as some State Legislatures indulge in it with all the ease and comfort like the way the English man sips his coffee on his breakfast table. Unless the situation is arrested, Nigerians will wake up one morning and look for where their country is. That should worry every good Nigerian. It does not only worry me; the idea frightens me so much. - Niki Tobi, JSC. Inakoju v. Adeleke (2007)

Good law, in my opinion, must have a human face. Good law should not patronise technicalities that will give rise or room to undeserved victories in litigation. Good law should discourage technicalities such as the one canvassed by the learned Senior Advocate for the appellants that the cases should be remitted to the trial Judge for trial on the so-called merits of the cases, when I know that the matter will never be concluded before the 29th May, 2007, when the office of Governor will be filled. Good law will not encourage a situation where a party in litigation will only return home with pyrrhic victory which in reality is no victory at all. After all, it is good law that courts of law do not give orders in vain and in the context of this cases, an order given after 29th May, 2007 restoring the 3rd respondent to his office of Governor, will certainly be in vain. I will never be a party to such a tall order which has teeth but cannot bite. Teeth that cannot bite are useless to their owner. - Niki Tobi, JSC. Inakoju v. Adeleke (2007)

It is not advisable in litigation for parties to put all their eggs in one and the same basket, particularly in a situation where the procedure to be adopted is not neat, but diverse and versatile, such as the procedure in this cases. This is because if the basket breaks, all the eggs are broken. This is what the appellants did. All their concentration was to play on safely in the litigation towards the 29th May, 2007 date so that they can go free with their acts unconstitutionally or constitutionally. And so they refused to enter appearance. They also refused to file a counter affidavit and they assured themselves that they had so much time to file the processes. They beat their chests in the Nigerian way in approval of their strategy with scene heroic mind. They did not accept the genuine offer of the decision in Senate President v. Nzeribe (supra) by Mr. Akintola. Unfortunately for them, the whole basket has broken and they find themselves in trouble. They will blame themselves and not this court. - Niki Tobi, JSC. Inakoju v. Adeleke (2007)

The Legislature is the custodian of a country's Constitution in the same way that the Executive is the custodian of the policy of Government and its execution, and also in the same way that the Judiciary is the custodian of the construction or interpretation of the Constitution. One major role of a custodian is to keep under lock and key the property under him so that it is not desecrated or abused. The Legislature is expected to pet the provisions of the Constitution like the way the mother pets her day-old baby. The Legislature is expected to abide by the provisions of the Constitution like the way the clergyman abides by the Bible and the Iman abides by the Koran. And so, when the Legislature, the custodian, is responsible for the desecration and abuse of the provisions of the Constitution in terms of patent violation and breach, society and its people are the victims and the sufferers; and in this particular context, the Oyo State society and the respondents, particularly the 3rd respondent. Fortunately, society and its people are not totally helpless as the Judiciary, in the performance of its judicial functions under section 6 of the Constitution, is alive to check acts of violation, breach and indiscretions on the part of the Legislature. That is what I have done in this judgment. I do hope that this judgment will remove the apparent wolf in the appellants as members of the House of Assembly of Oyo State, I am done. - Niki Tobi, JSC. Inakoju v. Adeleke (2007)

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