RT. HON, AHMADU UMARU VS BALA JAMES NGGILARI

CORAM

UTHMAN MOHAMMED -JUSTICE COURT OF APPEAL

PARTIES

RT. HON, AHMADU UMARUACTING GOVERNOR, ADAMAWA STATE

BALA JAMES NGGILARITHE SPEAKER, ADAMAWA STATE HOUSE OF ASSEMBLYADAMAWA STATE HOUSE OF ASSEMBLYMURTALA HAMMAN YERO NYAKOINDEPENDENT NATIONAL ELECTORAL COMMISSION RESPONDENTS

AREA(S) OF LAW

SUMMARY OF FACTS

The Plaintiff/1stRespondent brought an action at the Federal High Court, Abuja against the Defendants, including the Appellants herein who were the 3rd and 4th Defendants seeking amongst others a declaration that by the combined provisions of section 306(1), (2) and (5) of the 1999 Constitution of Federal Republic of Nigeria (as amended), the Plaintiff/1st Respondent as Deputy Governor of Adamawa State, did not resign his office by addressing a letter of resignation to the Speaker, Adamawa State House of Assembly. Prior to this action the Plaintiff/1st Respondent was the Deputy Governor of Adamawa State. The 2nd and 3rd Defendants/Respondents declared the seat of the Plaintiff/1st Respondent vacant consequent upon a letter of resignation addressed to the 4th Respondent. A panel was set up to investigate allegations of gross misconduct leveled against the 4th and 1st Respondents as Governor and Deputy Governor respectively. The House eventually impeached the 4th Respondent. Consequent upon the resultant vacancies of the offices of the Governor and Deputy Governor, the then Speaker was sworn in as the Acting Governor of Adamawa State. The Plaintiff’s/1st Respondent’s case is that he did not properly resign from office as Deputy Governor as he did not forward his letter of resignation to the Governor and as such ought to have been sworn in as the Governor of Adamawa State after the impeachment of the then Governor, the 4th Respondent; hence he filed the suit in the court below.The Appellants filed a Notice of Preliminary Objection to the competence of the originating summons and jurisdiction of the Court. The Court overruled the Appellants’ Preliminary Objection and granted all the relief sought by the Plaintiff/1st Respondent. Aggrieved by the decision of the trial Court, the Appellant has appealed.

HELD

Appeal Dismissed

ISSUES

– Whether the Record of Appeal compiled and transmitted by the Registry of the lower court is not incompetent

-Whether the same persons can be both appellants and respondents in the same appeal and whether the 1st appellant can use the office of the 2nd respondent to seek office of the 2nd appellant

-Whether this appeal is not academic having been overtaken by events.

RATIONES DECIDENDI

RAISING AN OBJECTION ON A PROCEDURAL IRREGULARITY – APPROPRIATE TIME TO RAISE AN OBJECTION ON A PROCEDURAL IRREGULARITY

“The law is settled that the appropriate time to raise an objection on a procedural irregularity is at the earliest opportunity otherwise any such irregularity is deemed waived. See P.W.T.H. AG v- Ceddi Corp. Ltd (2012) 2 NWLR (Pt, 1285) 465 at 493; l.B.B. Ind. Ltd v. Mutunai Co. (Nig) Ltd (2012) 6 NWLR (Pt. 1297) 487 at 517”.

EFFECT OF TAKING STEPS IN A PROCEEDING WHERE AN IRREGULARITY HAS OCCURED – A RESPONDENT WHO TAKES STEPS IN THE PROCEEDINGS EVEN WITH THE KNOWLEDGE OF THE OCCURRENCE OF AN IRREGULARITY IS TAKEN AS HAVING WAIVED HIS RIGHTS

“It was held by the Supreme Court in Abubakar v. Nasamu (No 2) (2012) 17 NWLR (Pt. 1330) 523 at 582 thus –
“A respondent who takes steps in the proceedings even with the knowledge of their irregularity must be taken as having waived his rights.” See Oguno v. State (2013) 15 NWLR (Pt. 1376) 1 at 24.”

RECORD OF APPEAL – PRESUMPTION OF CORRECTNESS OF THE RECORDS OF APPEAL

“It is also trite that the law presumes the authenticity and correctness of the Record of Appeal compiled and transmitted to this court and same is binding on all parties unless successfully challenged in accordance with laid down guidelines. See S. 147 of the Evidence Act, 2011; Haske v. Magaji (2009) ALL FWLR (Pt. 461) 887 at 904.”

SUBSTANTIAL JUSTICE – THE PRINCIPLE OF THE COURT IS TO EMBRACE SUBSTANTIAL JUSTICE AS OPPOSED TO TECHNICALITIES

“The principle of the courts is to embrace substantial justice and denounce judgment by technicalities. The law reports are replete of such authorities – See Ukiri v. Geo-Prakla (Nig) Ltd (2010) 16 NWLR (Pt. 1220) 544 at 588; Anyegwu v. Onuche (2009) 3 NWLR (Pt. 1129) 659 at 670; Olorintoba v. Oju v. Abdul-Raheem (2009) 13 NWLR (Pt. 1157) 83 at 122”.

SUPREMACY OF THE CONSTITUTION – THE CONSTITUTION IS THE FUNDAMENTAL LAW OF A STATE AND COURTS ARE BOUND TO ENFORCE ITS PROVISIONS

“The Constitution is the organic and fundamental law of a nation or State. In other words, it is the grund norm and fundamental law of the land. It is essentially a document relating to and regulating the affairs of a nation. It is sacrosanct. It is imperative that for the stability, orderliness and sanrty of a nation the provisions of the constitution must be respected-All courts are bound to enforce the operation of the inviolable provisions of the constitution according to its dictates”.

INTERPRETATION OF THE CONSTITUTION – PRINCIPLES FOR THE INTERPRETATION OF THE CONSTITUTION

“The guiding principles for the interpretation of the Constitution were catalogued in the locus classicus case of A-G, Bendel State v, A-G Federation (1981) 10 SC 1, 12 NSCC 314 at 371-373.
They are –
1. Effect should be given to every word.
2. A construction nullifying a specific clause will not be given to the Constitution unless absolutely required by the context.
3. A Constitutional power cannot be used by way of condition to attain unconstitutional result.
4. The language of the Constitution where clear and unambiguous must be given its plain evident meaning.
5. The Constitution of the Federal Republic of Nigeria is an organic scheme of government to be dealt with as an entirety; a particular provision cannot be dissevered from the rest of the Constitution.
6. While the language of the Constitution does not change, the changing circumstances of a progressive society for which it was designed yield new and fuller import to its meaning.
7. A Constitutional provision should not be construed so as to defeat its evident purpose.
8. Under a Constitution conferring specific powers, a particular power must be granted or it cannot be exercised.
9. Declaration by the National Assembly of its essential legislative functions is precluded by the Constitution {Section 58 (4) and Section 4(1)}-
10. Words are the common signs that mankind make use of to declare their intention one to another and when the words of a man express his meaning plainly and distinctly and perfectly, there is no occasion to have recourse to any other means of interpretation.
11. The principles upon which the Constitution was established rather than the direct operation or literal meaning of the words used, measure the purpose and scope of its provisions.
12. Words of the Constitution are therefore not to be read with stultifying narrowness.
See also FRN v. Osahon (2006) 5 NWLR (Pt- 973) 361, A.T. Ltd v. A.D.H. Ltd, (2007) 15 NWLR (Pt. 1056) 118, Nyame v FRN (2010) 7 NWLR (Pt. 1193) 344”.

TENURE OF A SPEAKER AS ACTING GOVERNOR – WHETHER THE TENURE CAN BE ELONGATED – SECTION 191(2) OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA

“The tenure of a Speaker as Acting Governor pursuant to Section 191(2) of the Constitution is three months. The period cannot be elongated by any reason. There is no intervening circumstance that can be an excuse for the extension of the mandatory period of three months provided by the Constitution, otherwise section 191(2) will be construed to defeat its clear purpose”.

SUPREMACY OF THE CONSTITUTION – WHETHER THE TIME FIXED BY THE CONSTITUTION FOR PERFORMING ANYTHING CAN BE EXTENDED

“In the case of Marwa v. Nyako (supra) the Supreme Court was categorical on whether the time fixed by the Constitution can be extended. At page 286, it was held –
“The time fixed by the Constitution for doing of anything cannot be extended. It is immutable, fixed like the rock of Gilbrailer. It cannot be extended, elongated, expanded or stretched beyond what it states…”

ACADEMIC EXERCISE – ATTITUDE OF THE COURTS TO ACADEMIC EXERCISE

“An action becomes hypothetical or raises mere academic point when the issue in it has become spent. It is trite law that courts must not engage itself in academic exercise because they are not academic institutions. The courts are to determine life issues. Where a suit is hypothetical or academic, the court will dismiss it”.

CASES CITED

STATUTES REFERRED TO

Constitution of Federal Republic of Nigeria 1999, as amended

Court of Appeal Rules 2011.

Legal Practitioners Act, Laws of the Federation of Nigeria

Legalpedia Citation: (2015) Legalpedia (CA) 42701

In the Court of Appeal

HOLDEN AT ABUJA

Fri Mar 27, 2015

Suit Number: CA/A/619/2014