Impeachment: You have acted well by rejecting Ondo Speaker’s Request —Lawyer, Femi Emodamori tells CJ

IN COMMENDATION OF THE CHIEF JUDGE OF ONDO STATE FOR REJECTING THE PRE-MATURE REQUEST OF THE STATE HOUSE OF ASSEMBLY TO CONSTITUTE THE SEVEN-MAN INVESTIGATION PANEL FOR THE IMPEACHMENT OF THE STATE DEPUTY GOVERNOR.

(By: Barr Femi Emmanuel Emodamori)

The report that the Chief Judge of Ondo State has received but declined a request by the Ondo State House of Assembly to constitute the seven-man Investigative Panel envisaged in Section 188(6) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), as part of the ongoing impeachment process of the Deputy Governor of Ondo State, is absolutely commendable.

The request by the Lawmakers to the Chief Judge in that regard is premature and constitutes a procedural breach of the clear provisions of Section 188(1)-(11) of the Constitution which, to use the parlance in Information and Communication Technology world, is a clear Google Map for a successful cruise to the impeachment destination.

The Speaker of the House of Assembly may present or re-present that request to the Honourable Chief Judge at a later time, when all the constitutional righteousness prior to the setting up of the Panel must have been fulfilled.

I have published three write-ups in the past few days on the constitutional provisions and/or procedures for impeachment. I have also appeared on ‘This Morning’ broadcast by TVC between 11:00am and 11:30am on Wednesday 8th July, 2020, and been interviewed by N.T.A, and radio stations, on the same constitutional procedures for impeachment. I have always meticulously restated the constitutional provisions and or procedures for impeachment in all the write-ups and press interviews.

It is a notorious fact that 14 out of the 26 members of the Ondo State House of Assembly signed and presented a notice of allegation of gross misconduct against the State Deputy Governor, to the Speaker, during their plenary on 7th July, 2020. That is the first constitutional hurdle to be crossed. They have therefore complied with Section 188 (2) of the Constitution which requires only one-third of the members to sign the notice of allegation of gross misconduct. That is the first stage.

The notice would thereafter be served on the Deputy Governor within seven days after same was presented to the Speaker. I have read the claim and counter-claim of the Clerk to the House of Assembly on the one hand, and that of the Deputy Governor on the other hand, as to whether or not the Notice had been served on the latter.

There are also unsubstantiated claims that the Deputy Governor has locked himself up in his personal house somewhere in Ijapo, Akure, to avoid being personally served the notice. I am not prepared to believe that His Excellency would have any reason to be jittery of the service of such notice to the extent of going on ‘self-isolation’ as a protective measure. He seems to have prepared for the impeachment battle.

Assuming there is any iota of truth in such reports however, I opine that he could be served the notice without him personally acknowledging the receipt, particularly when the law stipulates that he should be served within seven days and there are no specific provisions in the Constitution as to how he must be served.

Assuming a Governor or Deputy Governor deliberately becomes unavailable within the seven days period to avoid being served, the notice would have expired after the seven days, which is a constitutional limitation period. The State House of Assembly cannot institute an action against the Deputy Governor within the seven days in any court to seek for an order for ‘substituted service’, because the same Constitution does not only confer immunity on the Governor and the Deputy Governor in section 308 thereof against personal actions, but equally prohibits the courts from entertaining any action relating to the impeachment as long as the constitutional procedures are being followed, by virtue of Sections 188(10) of the Constitution.

As a matter of fact, Section 188 (7) of the same Constitution even stipulates that the Panel to be appointed by the Chief Judge shall “have such powers and exercise its functions in accordance with such procedure as may be prescribed by the House of Assembly” which would definitely include how the office holder sought to be impeached and/or other parties or witnesses could be served appropriate notices by the Panel.

The Speaker of the State House of Assembly, in my opinion, ought therefore possess the constitutional power to serve the notice on the Governor or Deputy Governor other than through ‘personal service’ so as to comply with the 7-day constitutional time limit. This is especially so if the holder of such office is deliberately sabotaging all attempts at personal service, even when he is still in office, and therefore expected to be present in the office to perform his official functions.

Before rushing to the Honourable Chief Judge with a request to constitute the Seven-man Panel, the Deputy Governor should not only be served the notice, but also be given the opportunity to react to the notice, if he chooses to do so. That is the second stage of impeachment process.

The third and equally important stage or hurdle to be crossed before the Honourable Chief Judge would be requested to constitute the Panel, is another motion to be passed by two-thirds of the members of the State House of Assembly, without any debate, as categorically stated in Section 188(3)-(4) of the Constitution, calling for the Deputy Governor to be investigated based on the allegation(s) against him and his response to same, if any. It is after the second motion by two-thirds of the members, that the Speaker of the House will “request” (not order) the Honourable Chief Judge to set up the Panel.

Flowing from the above, the House of Assembly clearly jumped the gun and/or put the cart before the horse, by rushing to the Honourable Chief Judge of Ondo State with a request for the constitution of the Panel on the same 7th July, 2020, when only the first of the above three hurdles had been crossed.

His Lordship was therefore upholding the integrity of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and that of the office of the Chief Judge, by declining the request at this stage. Since we know how to criticize those who do it wrong, we must also learn to commend those who stand for things to be done properly. I therefore commend His Lordship.

There is no doubt that the State House of Assembly can re-present their request to the Chief Judge for the constitution of the Panel, after complying with the above stated constitutional procedures that must have been activated before the investigative hearing.

Before concluding this piece, it is important to correct some press reportage stating that the House of Assembly has “ordered” the Chief Judge to constitute the seven-man Panel. The word “ordered” as used by my fantastic friends in the media is obnoxious and derogatory of the office of the Honourable Chief Judge and the entire Judiciary. Neither the Legislative nor the Executive Arm of Government has the power to “order” the Judiciary. It is the Judicial Arm of Government and/or the Court of Law that could “order” both the Executive and Legislative Arms of Government to do anything which the law imposes an obligation on them to do, or refrain from doing anything that the law prohibits them from doing.

To say that the House of Assembly “ordered” the Honourable Chief Judge to do anything at all is bringing the Court or the Judiciary, and by extension Legal Practitioners, into ‘disrepute’.

I however believe we could tamper justice with mercy by treating men of the fourth estate (my great friends in the media) who used such derogatory words as first offenders; and I hope they would go and sin no more.

I must also sincerely comment on what I consider, with due respect, an improper comment by His Lordship the Honourable Chief Judge in His Lordship’s letter to the Speaker declining the constitution of the Panel at this stage of the impeachment proceedings, since His Lordship’s letter is now freely being circulated on social media. The part of the said letter of the Chief Judge states as follows:

“Furthermore, I wish to bring to your notice the copy of letter which I received earlier today from Kayode Olatoke, SAN which letter tells me clearly that the matter of impeachment of Hon. Alfred Agboola Ajayi, Deputy Governor of Ondo State is sub judice.”
There is no doubt that My Lord, and indeed every Chief Judge, must be circumspect in the discharge of the constitutional duty placed on that office by virtue of Section 188(5) of the Constitution to constitute a Panel of Investigators at the request of the Speaker, after the above procedures, which His Lordship also copiously quoted in the letter, must have been complied with.

My lord however ‘erred’, with due respect, by invoking the doctrine of sub judice based on the purported fundamental rights case instituted by the Deputy Governor at the Federal High Court in Abuja on 26th June, 2020, even before the impeachment process actually begun.

I published an eleven page write-up titled: “FUNDAMENTAL RIGHTS SUIT INSTITUTED BY THE ONDO STATE DEPUTY GOVERNOR AGAINST HIS ANTICIPATED IMPEACHMENT; A FUTILE VOYAGE IN THE EYES OF THE LAW” two days ago, before his Lordship’s letter even became public. I copiously cited and quoted several Supreme Court and Court of Appeal judgments which prohibit any court from interfering with the impeachment process, provided the lawmakers act and continue to act in line with the procedures stipulated in S. 188(1)-(9) of the Constitution, based on the clear provision of Section 188 (10) thereof.
Due to the sensitivity of this matter, I respectfully seek to quote the relevant portions of the judgment of the Appellate Courts as earlier quoted in the write up, particularly the case of ABARIBE V. ABIA STATE HOUSE OF ASSEMBLY (2002) 14 NWLR (PT 788) 466, which is completely on all fours (virtually the same) with the case instituted by Hon. Agboola Ajayi which My Lord the Honorable Chief Judge referred to in the letter.

In Page 500, PARAS D-G of the reported judgment, the Court of Appeal held that:

“This calls for examination of the provision. It provides:
“(10) No proceeding or determination of the panel or of the House of Assembly or any matter relating to such proceedings or determination shall be entertained or questioned in any court.”

“The language here seems to me too clear and direct, to brook any equivocation. It forbids all courts from allowing any proceedings or determination of the 2nd respondent or its panel to be challenged before it. For the avoidance of all doubt and, to drum in the message regarding the depth and breadth of the matter prohibited, it also forbids all courts allowing any matter relating to such proceedings and determination to be entertained before it.”(Underlining Mine)

The same court also held in page 486, Paras E-G of the same judgment, that that:

“Constitutionally, the issue of impeachment is a political matter and the court cannot intervene therein. Though the court may not close its eyes to serious injustice relating to the manner an impeachment procedure is being carried out, the court should not however attempt to assume for itself power it is never given by the Constitution by carelessly entering the political arena.”

Most importantly, the Court further held in PARAS H-A in pages 506-507 of the reported judgment, that:
“The only circumstance in which there can be said to have been non-conformity is where the investigating panel disallows the affected officer from presenting his case in defence of himself.

It is when this happens that it becomes necessary to consider whether or not such non-conformity can or does rob the alleged ouster clause in section 188(10) of its potency. As that stage had not been reached in this case before the appellant rushed to court the necessity for such consideration has not arisen. The appellant jumped the gun, crying foul when no foul had in fact been committed.”(Underlining mine).

Based on the clear provision of Section 188(10) of the Constitution and the above judgments of the appellate Court which are binding on my lord the Chief Judge, it becomes pertinent to admonish His Lordship to be extra vigilant and avoid being lured into the “political arena”, to use the exact words of the appellate court quoted above.

This is more so as impeachment is strictly constitutionally time bound, with specific provisions of the Constitution stipulating the period within which to carry out each of the procedural steps in the process. There is also no order from any Court directed against your lordship from performing the constitutional duty of setting up such panel. And I venture to say that no court would do that, provided the House of Assembly complies with the due constitutional process.

If and when the Ondo State House of Assembly subsequently complies with the procedure in Section 188(1)-(4) of the Constitution preceding the setting up of the Panel, His Lordship the Honourable Chief Judge would have no option than to constitute the Panel, and of course, His Lordship would be blameless for fulfilling the law.

Signed:
Femi Emmanuel Emodamori
(An Akure-based Legal Practitioner)
10th July, 2020

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