Unconstitutionality of Ekiti State governor’s removal procedure
THE fourth republic adventure by Nigeria has brought the 1999 constitution into prominence than any other constitution that has governed the entity called Nigeria. The Court has been heavily saddled with making pronouncements of constitutional substance that are germane to the progress and development of Nigeria’s nascent democracy.
However, of all the constitutional contentious issues brought before the Court, none has been notorious as the Removal of Governors and Deputy Governors under Section 188 Constitution of the Federal Republic of Nigeria (CFRN) 1999 3rd Alteration. Once, the House of Assembly is in a conflict with the Governor and/or Deputy Governor, it is not unusual to have the House of Assembly dangle the removal carrot before the eyes of the alleged aggressor, such is the case of the Ekiti State Governor.
The procedure for the removal of the governor has been succinctly laid down by Sec. 188 CFRN 1999 3rd Alteration. Removal procedure is not subject to wills and caprices but a full legal procedure that must be obeyed by the House of Assembly conducting the removal exercise.
Every action must be properly conducted for the whole exercise to be valid; sec 188 (1) to (9) CFRN 1999 must be followed seriatim and in full compliance; and in event of any breach of procedure, the Court would not hesitate to assume jurisdiction over the proceedings despite the oust provision of Sec. 188 (10) CFRN 1999.
In the case of Inakoju v. Adeleke (2007) 4 NWLR (pt 1025) 423, the Supreme Court has decisively laid to rest the interpretation of Sec. 188 CFRN 1999 3rd Alteration and has laid the proper foundation for any removal proceedings.
It is against the background of the Supreme Court interpretation that it becomes germane to examine the constitutionality of the Ekiti House of Assembly removal proceedings.
There have been several allegations and counter-allegations between the Governor Ayodele Fayose, the Seven (7) PDP lawmakers and the Nineteen (19) APC lawmakers in the House of Assembly.
All this accusation and counter-accusation has brought the state into chaos such that the House of Assembly now has two factional speakers; coupled with unrest which has started to claim the lives of the citizens of the state.
However, the crisis got to its head with the purported service of the Notice of Removal by the Ekiti State Nineteen (19) APC House of Assembly lawmakers.
The Nineteen (19) APC lawmakers had purportedly sat in an unknown location and moved the motion for the removal of the governor; the same motion having been passed was allegedly served according to the Nineteen 19 APC lawmakers by courier service, adverts and according to Governor Ayodele Fayose on the Internet.
The 19 APC lawmakers further went ahead to sit at Mary Hills Boys High School, Ado-Ekiti, amended the Ekiti State House of Assembly Rules by reference to Sec.101 CFRN 1999 3rd Alteration and moved a motion directing the Chief Judge to set up a panel to investigate the allegation of gross misconduct against the governor.
On the other hand, the 7 PDP lawmakers claim that there is no on-going removal proceeding against the governor and that the recognised speaker has not received any notice of allegation in writing, the Speaker of the House of Assembly has purportedly even described the whole proceedings by the 19 APC lawmakers has a distraction. The Governor lent a voice to the 7 PDP lawmakers by describing the Notice of Removal as a joke and also stating that he is yet to receive the Notice of Removal.
Since the removal of a governor is a matter of law it would be appropriate to place each event side by side the constitutional provision of the law. The constitution in Sec. 188 (2) CFRN 1999 3rd Alteration provides that: “Whenever a notice of any allegation in writing signed by not less than one-third of the members of the House of Assembly.
(b) stating that the holder of such office is guilty of gross misconduct in the performance of the functions of his office, detailed particulars of which shall be specified.
The speaker of the House of Assembly shall, within seven days of the receipt of the notice, cause a copy of the notice to be served on the holder of the office and on each member of the House of Assembly…”.
The position of the law is clear that the speaker and no one else shall cause the notice to be served on the Governor and all members. Unfortunately, this provision has been breached by the Nineteen 19 APC lawmakers has the Speaker of the House was not the one who served the notice. The law does not separate responsibilities from occupation, hence a person can not be given an office and the duty of the office is allocated to someone else by the law.
A person who is in Court challenging his removal can not turn around and execute the responsibility of the office save in the circumstances where the Court has made appropriate orders.
It therefore behooves that the right person to have served the Notice of Removal should have been the person occupying the seat and performing the responsibility assigned to the office.
The section has also provided that all members of the House of Assembly must be served the Notice of Removal by the Speaker. The 19 APC lawmakers also breached that position by not causing the Notice of Removal to be served on their 7 PDP counterparts.
The 19 APC lawmakers in passing the motion for the removal of the Governor sat at an unknown location and not within the complex of the Ekiti House of Assembly.
This action in itself has been declared illegal by the Court; the Court has even gone further to state that any decision of the House of Assembly reached outside the premises of the House of Assembly is a nullity, Akintola v. Aderemi (1962) All NLR 440 at 44. Nikki Tobi JSC, stated in Inakoju v. Adeleke (supra) “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 dictum of the learned Justice gives an insight to the inclination of the court to legislative proceedings carried outside the complex of the House of Assembly shall be declared a nullity.
It would therefore not be wrong to say that sitting of the House of Assembly in an unknown location to pass the motion for the Notice of the Removal and also sitting at Mary Hills Boys High School, Ado-Ekiti to pass the motion requesting the Chief Judge to set up an inquiry panel is alien to our law and also illegal.
The Removal proceedings under Sec.188 CFRN 1999 3rd Alteration is a quasi-judicial proceedings which must observe strict adherence to the principles of fair hearing as provided for under Sec. 36 (1), (6) (a) CFRN 1999 3rd Alteration. Sec. 36 (6) (a) provides expressly thus: “every person who is charged with a criminal offence shall be entitled to: (a) be informed promptly in the language that he understands and in detail of the nature of the offence.”
Thus the right of Governor to be duly informed is a sacrosanct responsibility that can not be abdicated by House of Assembly. Sec. 188 (2) (CFRN) 1999 3rd Alteration also provides “… the speaker of the House of Assembly shall, within seven days of the receipt of the notice, cause a copy of the notice to be served on the holder of the office…” Service of processes in any judicial proceeding in Nigeria is personal service; the Court has further held that non-service of an adverse party entitles the adverse party to have the judgment set aside Mbadinuju v. Ezuka (1994) 10 SCNJ 109. However, when the adverse party can not be served because of circumstances beyond the control of the other party, it may approach the court for substituted service.
It is therefore absurd that the Nineteen (19) APC lawmakers decided to effect service through courier and/or advertisement rather than through the Clerk of the House of Assembly.
The proper procedure would have been for the Nineteen (19) APC lawmakers to serve the Governor through the Clerk of Ekiti State House of Assembly.
The Court has never taken the issue of non-service lightly, and even a Court of first instance is empowered to set aside her own judgment if the adverse party brings an application for non-service.
Hence, the non proper service of the Notice of Removal by the Nineteen (19) APC lawmakers is a violation of the Governor’s right which can vitiate the whole removal proceedings, as the court may not turn her eye away from this violation.
It could be safe to conclude that, owing to the aforementioned contraventions of the constitutional provisions by the Nineteen (19) APC lawmakers, the removal of Ekiti State Governor may end up being declared a nullity by the Court. Akinpelu is a Lagos based Lawyer