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Before Their Lordships
IBRAHIM TANKO MUHAMMAD Justice of The Supreme Court of Nigeria
OLABODE RHODES-VIVOUR Justice of The Supreme Court of Nigeria
MARY UKAEGO PETER-ODILI Justice of The Supreme Court of Nigeria
MUSA DATTIJO MUHAMMAD Justice of The Supreme Court of Nigeria
CLARA BATA OGUNBIYI Justice of The Supreme Court of Nigeria
CHIMA CENTUS NWEZE Justice of The Supreme Court of Nigeria
AMIRU SANUSI Justice of The Supreme Court of Nigeria
OLABODE RHODES-VIVOUR Justice of The Supreme Court of Nigeria
MARY UKAEGO PETER-ODILI Justice of The Supreme Court of Nigeria
MUSA DATTIJO MUHAMMAD Justice of The Supreme Court of Nigeria
CLARA BATA OGUNBIYI Justice of The Supreme Court of Nigeria
CHIMA CENTUS NWEZE Justice of The Supreme Court of Nigeria
AMIRU SANUSI Justice of The Supreme Court of Nigeria
Between
ADMIRAL MURTALA NYAKO –Appellant
AND
1. ADAMAWA STATE HOUSE OF ASSEMBLY
2. MR. BUBA KAIGAMA
(Chairman of the Seven Member Committee)
3. INSPECTOR GENERAL Of POLICE- Respondents
…………………….A…………………….
MUSA DATTIJO MUHAMMAD, J.S.C. (Delivering the Leading Judgment): The appellant, Admiral Murtala Nyako, a retired naval officer, was elected the Governor of Adamawa State on the 5th of February 2012 to serve for a term of four years from the date he subscribed to the oath of the office. On the basis of its allegation of misconduct against the appellant, the 1st respondent following a resolution it passed, commenced the process of appellant’s removal from the office of the Governor of Adamawa State he was elected to.
Aggrieved by 1st respondent’s failure to follow the laid down procedure prescribed by the Constitution for the removal of a Governor, the appellant, by an originating motion filed on 13th November 2014, challenged his purported impeachment by the 1st respondent and sought for his reinstatement at the Federal High Court sitting at Yola, hereinafter referred to as the trial Court.
1st respondent not only challenged the competence of the originating motion by way of preliminary objection on the grounds of the impropriety of appellant’s recourse to the fundamental rights enforcement procedure for the reliefs and its being an abuse of judicial process, it filed a counter-affidavit and a written address in opposition to the originating motion. Appellant’s originating motion and 1st respondent’s preliminary objection were heard together by the trial Court. In a ruling delivered on 21st May 2015, the Court adjudged appellant’s cause of action an abuse of judicial process and declined any pronouncement on the merit of same notwithstanding the availability of materials in support of the respective positions of the parties.
Dissatisfied with the trial Court’s ruling, the appellant appealed to the Court of Appeal, holden at Yola, hereinafter referred to as the lower Court, by which judgment of 11th February 2016, appellant’s appeal was allowed in part. The Court set aside the trial Court’s ruling, invoked Section 15 of Court of Appeal Act to consider and determine the merit of appellant’s originating motion and granted him reliefs 1 5 thereof. The 6th relief that had been abandoned by appellant’s counsel in the course of arguing the appeal was, struck out
Aggrieved by the lower Court’s order striking out his 6th relief, the appellant has appealed to this Court on a notice containing three grounds.
Parties have settled and exchanged their briefs of arguments, including appellant’s reply briefs and, at the hearing of the appeal, adopted same in prosecution or opposition of the appeal.
The sole issue distilled by the appellant at Paragraph 3 of his brief reads:-
“Whether upon declaring his purported removal from office as Governor of Adamawa State unconstitutional, null and void, the Court below was not under a legal duty to reinstate the Appellant?”
The issue formulated in the 1st respondent’s brief as arising for the determination of the appeal reads:-
“Given that the tenure of the Appellant as the former Governor of Adamawa State expired and/or became spent on 29th of May, 2015 by constitutional imperative, whether the learned Justices of the Court of Appeal were not right in striking out Relief No. 6 of the Appellants Originating Motion?”
At paragraph 3.1 of Page 7 of his brief the issue the 2nd respondent presented for the determination of the appeal reads:-
“Whether the learned Justices of the Court of Appeal were right in striking out Relief No. 6 of the Appellant’s Originating Motion in view of the fact that the tenure of the Appellant had already expired and become spent as graciously conceded by the Appellants counsel.”
The more apposite issue distilled at paragraph 2.1 of page 14 of the 3rd respondent’s brief and on the basis of which the appeal is to be determined, reads:-
“Whether in view of the fact that the tenure of office of the Appellant had already expired and become spent as rightly graciously conceded by his counsel, the learned Justices of the Court of Appeal were wrong in striking out the Appellants relief No. 6.
On the lone issue, learned senior counsel for the appellant submits that the lower Court has the sacred duty of protecting the very Constitution, the groundnorm, that prescribes and sets the limits of the Powers of all organs and persons. The appellant whose Powers as the Governor of Adamawa State flows from Section 180(1) & 2 of the 1999 Constitution as amended, it is contended, cannot be prevented from exercising the functions of that office purely on the basis of his counsels admission that the tenure has elapsed. The lower Courts refusal to
1st respondent not only challenged the competence of the originating motion by way of preliminary objection on the grounds of the impropriety of appellant’s recourse to the fundamental rights enforcement procedure for the reliefs and its being an abuse of judicial process, it filed a counter-affidavit and a written address in opposition to the originating motion. Appellant’s originating motion and 1st respondent’s preliminary objection were heard together by the trial Court. In a ruling delivered on 21st May 2015, the Court adjudged appellant’s cause of action an abuse of judicial process and declined any pronouncement on the merit of same notwithstanding the availability of materials in support of the respective positions of the parties.
Dissatisfied with the trial Court’s ruling, the appellant appealed to the Court of Appeal, holden at Yola, hereinafter referred to as the lower Court, by which judgment of 11th February 2016, appellant’s appeal was allowed in part. The Court set aside the trial Court’s ruling, invoked Section 15 of Court of Appeal Act to consider and determine the merit of appellant’s originating motion and granted him reliefs 1 5 thereof. The 6th relief that had been abandoned by appellant’s counsel in the course of arguing the appeal was, struck out
Aggrieved by the lower Court’s order striking out his 6th relief, the appellant has appealed to this Court on a notice containing three grounds.
Parties have settled and exchanged their briefs of arguments, including appellant’s reply briefs and, at the hearing of the appeal, adopted same in prosecution or opposition of the appeal.
The sole issue distilled by the appellant at Paragraph 3 of his brief reads:-
“Whether upon declaring his purported removal from office as Governor of Adamawa State unconstitutional, null and void, the Court below was not under a legal duty to reinstate the Appellant?”
The issue formulated in the 1st respondent’s brief as arising for the determination of the appeal reads:-
“Given that the tenure of the Appellant as the former Governor of Adamawa State expired and/or became spent on 29th of May, 2015 by constitutional imperative, whether the learned Justices of the Court of Appeal were not right in striking out Relief No. 6 of the Appellants Originating Motion?”
At paragraph 3.1 of Page 7 of his brief the issue the 2nd respondent presented for the determination of the appeal reads:-
“Whether the learned Justices of the Court of Appeal were right in striking out Relief No. 6 of the Appellant’s Originating Motion in view of the fact that the tenure of the Appellant had already expired and become spent as graciously conceded by the Appellants counsel.”
The more apposite issue distilled at paragraph 2.1 of page 14 of the 3rd respondent’s brief and on the basis of which the appeal is to be determined, reads:-
“Whether in view of the fact that the tenure of office of the Appellant had already expired and become spent as rightly graciously conceded by his counsel, the learned Justices of the Court of Appeal were wrong in striking out the Appellants relief No. 6.
On the lone issue, learned senior counsel for the appellant submits that the lower Court has the sacred duty of protecting the very Constitution, the groundnorm, that prescribes and sets the limits of the Powers of all organs and persons. The appellant whose Powers as the Governor of Adamawa State flows from Section 180(1) & 2 of the 1999 Constitution as amended, it is contended, cannot be prevented from exercising the functions of that office purely on the basis of his counsels admission that the tenure has elapsed. The lower Courts refusal to
…………………….B…………………….
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