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Kogi Deputy Gov's Impeachment: The Legality or Otherwise of the Seven-Man Panel Set up by the Kogi State Chief Judge

Source: Solomon Akobe, Esq.
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Premiumtimes.com on Saturday, the 24th day of August 2019, reported that the Chief Judge of Kogi State has set up a seven-man Panel to investigate the Deputy Governor of Kogi State over allegations of gross misconducts that was levelled against him by the Kogi State House of Assembly. It was further reported that a Vacation Judge of the Kogi State High Court of Justice, the Honourable Justice A. N. Awulu, had on 20th of August, 2019, granted an order of interim injunction, restraining the Chief Judge of Kogi State from setting up a Panel as requested by the Kogi State House of Assembly pending the determination of the motion on notice/suit before the Court. The said online newspaper platform reported further that the Chief Judge of Kogi State vacated the interim order made against him and then, proceeded to set up a seven-man Panel to investigate the Deputy Governor of Kogi State, Elder Simon Achuba on the 23rd day of August, 2019. It is these series of events that necessitated this legal opinion so as to xray the action and decision of the Chief Judge of Kogi State in the light of statutory and decided authorities and to also know if same are legal or illegal in the circumstances.

First of all, what is an order of interim injunction? An order of interim injunction is an order usually granted to maintain the status quo for a short period of time, which is sufficient to put the other party on notice. An interim injunction may be quia timet in nature, in the sense of being pre-emptive or preventive, that is, preventing the commencement of a threatened act. (See Ese Malami on "The Nigerian Constitutional Law" (2006): Princeton Publishing Co., at page 335. An order of interim injunction is usually granted exparte pending the hearing of a motion on notice over a subject matter in which a suit has already been filed before the court granting the order. By section 318 (1) of the 1999 Constitution, an order of interim injunction granted by a court also qualifies as a "decision" of a court which is binding unless and until same is set aside. Similarly, an order of interim injunction is also appealable although it is better and advisable for an aggrieved party affected by the order to first of all apply before the Judge that made the order or a brother Judge of the same court in order to have it set aside for being an outright nullity; in which case appealing against same becomes unnecessary. See EFCC v. Fayose & Anor. (2018) LPELR-44131 (CA) at pages 34-40; Kpema v. The State (1986) 1 NWLR (Pt. 17) 396 at 405-406 (SC); Eke v. Ogbonda (2007) ALL FWLR (Pt. 351) 1456 at 1473 (SC). It has also been held that application to set aside an order of interim injunction can even be made viva voce where it is patently clear that the order is a nullity. See Wema Bank Plc v. NAIC (2015) 16 NWLR (1484) 93 at 124 (SC).

Now, coming to the issues on ground in Kogi State, several questions are begging for answers in respect of the Chief Judge's action which culminated into the setting up of a seven-man Panel on Friday, the 23rd day of August, 2019. These questions shall be posed as issues for determination in this legal opinion, thus:

1. Whether it is within the constitutional powers/duties of the Chief Judge of Kogi State to set up a seven-man Panel to investigate the Deputy Governor of Kogi State as requested by the Kogi State House of Assembly. If answered in the affirmative, is such power or duty covered by the ouster clause in section 188(10) of the 1999 Constitution (as amended)?

2. Whether the Chief Judge of Kogi State who is a defendant in the suit in which an interim injunction was granted by a Vacation Judge (A.N. Awulu) has the power or jurisdiction to vacate an interim order granted against him and his fellow defendants by the Court.

3. Whether the Chief Judge of Kogi State acted legally when he vacated the interim order made by another Judge in the circumstance

ISSUE 1
1. Whether it is within the constitutional powers/duties of the Chief Judge of Kogi State to set up a seven-man Panel to investigate the Deputy Governor of Kogi State as requested by the Kogi State House of Assembly. If answered in the affirmative, is such power or duty covered by the ouster clause in section 188(10) of the 1999 Constitution (as amended)?

Without much ado, let me quickly point out here that by virtue of section 188 (5) of the Constitution of the Federal Republic of Nigeria, 1999 (as Amended), the Chief Judge of Kogi State has the constitutional power/duty to appoint a Panel of seven persons upon the request of the Kogi State House of Assembly to investigate the allegations of gross misconducts that was levelled against the Deputy Governor of Kogi State. However, the constitutional power or duty conferred on the Chief Judge in the said section in my humble view, is not exempted from injunctive orders of the court especially where it is patent that the House of Assembly did not follow the constitutional guidelines or provisions for impeachment exercise. I'm not oblivious of the provisions of section 188 (10) of the 1999 Constitution which provides that, "No proceedings of 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". This ouster clause provision in my humble view does not cover the power or duty of the Chief Judge to set up a Panel so as to clothe it with an exemption from courts' intervention by way of injunctive orders. The provision only exempt from courts' proceedings the determination or findings of the Panel and the decision of the House of Assembly based on the Panel's report. In other words, the purports of section 188 (10) of the 1999 Constitution is that the Panel's report as well as the decision of the House of Assembly thereon are not subject to litigation. But, then, this provision appears to run counter to the right of access to court as guaranteed under sections 6, 17 (2) (e) and 36 (1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). The Supreme Court of Nigeria took its time to consider these issues in the famous case of Inakoju v. Adeleke (2007) 4 NWLR (Pt. 1025) 423, where Niki Tobi, JSC (now of blessed memory) opined thus: "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)". The apex court proceeded to agree with the holding of the Court of Appeal that contrary to the decision in Abaribe v. The Speaker Abia State House of Assembly (2002) 14 NWLR (Pt. 788) 466, where the constitutional procedure for impeachment is not properly complied with, the ouster clause provided in section 188 (10) of the Constitution cannot be invoked to debar the courts from intervening over the process followed. Thus, since both the Panel's report and the determination of the House of Assembly arising from same are not totally shielded from litigation by way of ouster clause especially where constitutional procedures for impeachment was not followed, the power and duty of the Chief Judge to set up a Panel is also not shielded from Court's intervention by way of injunctive orders especially where the person sought to be impeached is of the view that constitutional provisions guiding his impeachment has not been complied with by the Legislature, and in this particular case, the Kogi State House of Assembly.

ISSUES 2 & 3
2. Whether the Chief Judge of Kogi State who is a defendant in the suit in which an interim injunction was granted by a Vacation Judge (A.N. Awulu) has the power or jurisdiction to vacate an interim order granted against him and his fellow defendants by the Court.

3. Whether the Chief Judge of Kogi State acted legally when he vacated the interim order made by another Judge in the circumstance.

(These two issues shall be taken together)
Nemo judex in causa sua is an age-long Latin maxim which means that one cannot be a judge in his own cause or case. This principle which is like Siamese twins with the maxim audi alterem patem (hear the other side), is the foundation of every judicial deliberation and decision. The principle of nemo judex in causa sua is a very essential aspect of fair hearing and as such where same was not followed, any action, step or decision taken is a nullity ab initio. See Ex Parte Olakunri: Olakunri v. Oba Ogunoye (1985) 1 NWLR (Pt. 4) 652; LPDC v. Fawehinmi (1985) 2 NWLR (Pt. 7) 300 (SC); Idakwo v. Ejiga (2002) 13 NWLR (Pt. 783) 156 (SC; Adigun v. A.G. Oyo State (1987 1 NWLR (Pt. 53) 678.

As reported by various newspapers and other online news platforms, the embattled Deputy Governor of Kogi State obtained an order of interim injunction restraining the Chief Judge from setting up a Panel to investigate him as requested by the Kogi State House of Assembly. The order of interim injunction was reportedly granted on the 20th day of August, 2019 by a Vacation Judge, the Honourable Justice. A.N. Awulu. The said order was reportedly vacated by the Honourable Justice Nasiru Ajana (the Chief Judge of Kogi State) who obviously is not a Vacation Judge, and there is no law to support the impression that he is an automatic vacation judge by virtue of his status as the Chief Judge of Kogi State. But, assuming without conceding that he is an automatic Vacation Judge by reason of his status, the very fact that he is a party to the proceedings in which the interim injunction was granted, robs him the jurisdiction to set aside the said order that was granted against him. Thus, in my humble view, the Chief Judge of Kogi State breached the principle of nemo judex in causa sua when he assumed jurisdiction over the application filed by the Kogi State House of Assembly to set aside the interim order that was made by the Honourable Justice A. N. Awulu which restrained the Chief Judge from setting up a Panel to investigate the Deputy Governor of Kogi State. Where a defendant (like the Kogi CJ) against whom an injunctive order was granted, assumed jurisdiction and set aside an order made in the proceedings in which he was forbidden by the court to act, the breach of the principle of nemo judex in causa sua can not be better explained or illustrated in any other way or manner than that. See Eriobuna v. Obiorah (1999) 8 NWLR (Pt. 616) 622 (CA); Obadara v. Ibadan WDC Grade B Customary Court (1964) ALL NLR 331.

The general rule is that an interim order which is a nullity can be set aside upon an application brought for that purpose by a party affected by the order. The application to set aside is preferably advised to be made before the judge that granted it. See EFCC v. Fayose & Anor. (2018) LPELR-44131 (CA) at page 69. Now, it is not in doubt that the said order of interim injunction was granted by Hon. Justice A.N. Awulu who sat as a Vacation Judge. The application to set aside the interim order was brought before the Chief Judge (against whom the order was made) who speedily vacated the order and set up the Panel as requested by the Kogi State House of Assembly. With all due respect to the Chief Judge of Kogi State, the action taken by him is tantamount to sitting on appeal in his own case. In as much as application to set aside an interim order can be brought before a Court of coordinate jurisdiction in limited circumstances especially where the order is a nullity (See SKEN Consult Nig. Ltd v. Ukey (1981) 1 SC 6), the very fact that the Chief Judge is a party to this case in which he went ahead to set aside an interim order granted therein, is a clear case of unsavoury competition between the Judges of our courts who ordinarily ought to guard one another's orders and jurisiction jealously. The Supreme Court per Pats Acholonu, JSC in Nigeria International Merchant Bank Ltd v. Union Bank of Nigeria Ltd (2004) 12 NWLR (pt. 888) 599 at 618-619, opined thus: "It is believed inelegant and a matter that would go against the grain of our procedural law for Courts of co-ordinate jurisdiction instead of endeavouring to shore up the jurisdiction of each other, engage in a form of unsavoury competition. They ought necessarily to avoid a situation where the Court by its being less cautious exposes itself by the nature of the order it makes to ridicule and the majesty and aura of its pronouncements are either compromised or treated with ignominy as a non-issue by the confused parties and I dare say with the common citizenry..."

Thus, assuming without conceding that the order of interim injunction was granted without jurisdiction thereby rendering same a nullity, I am of the firm opinion that for the very fact that the Chief Judge of Kogi State is a party affected by the order (interim injunction), he (the Chief Judge) lacks the jurisdiction to review the said order, not to talk of setting same aside. As a party affected by the interim injunction that was granted by the Honourable Justice A. N. Awulu, the proper thing for the Chief Judge of Kogi State to have done when the application for setting aside of the order was brought before him by the Kogi State House of Assembly, was to assign the application to another Judge or to transfer same to the Honourable Justice A. N. Awulu who made the order in the first place. A situation where a party affected by an order of the court sits not just to review it but also to set same aside, cast doubtful shadows on the concept of justice which must be rooted in confidence, the absence of which serious havoc is done to the principle of rule of law. Such action is a breach of the principle of natural justice. There are times when lawyers bring applications before Judges and ask for reliefs which they know are not supported by law. In such instance, lawyers merely test the legal strength of the judge(s). It is then left for the Judge(s) to refuse to fall for the tricks, gimmicks and intricacies as may have been set up for him by the lawyers. A judge must in all cases rise up to the occasion by refusing to be dragged into the mud by way of making ridiculous orders or granting laughable reliefs. This reminds me of my dictum in a judgment I delivered as the Chief Judge of Kogi State University, SUG Judiciary in a case between Abi Benjamin v. KSU SUG Parliament in 2013. I had the cause to state thus in my judgment: "The wisdom of the court is pinnacly higher than the craftiness of the lawyers that appear before it". Unfortunately, based on what is happening today, it appears the craftiness of lawyers is having upper hand over and above the wisdom of the courts! That's not the desideratum of our judicial system. Niki Tobi of blessed memory in Inakoju v. Adeleke (2007) 4 NWLR (pt. 1025) 423, admonished thus: " ...I am not unaware of the professional duty Counsel owe to their clients to present their cases to the best of their professional ability. This is the first and foremost duty Counsel owe their clients. And in the desire and zeal to perform that professional duty, Counsel can ask for any relief, meritorious or unmeritorious, under the sun (and a few of them ask for unmeritorious reliefs), but it is left for the court to separate the chaff from the grain in the context of the enabling law and grant or refuse the relief. There are times Counsel ask for a relief with the full knowledge that the law is not on the side of his client. In such a situation, Counsel merely test the legal strength of the Judge, who in his capacity as the unbiased umpire and master and expert of the law, should give judgment according to law. While the parties are the clients of the lawyers, the law is the Judge's clientele and constituency and he must apply it properly without fear or favour. That is the oath he took on the day he was sworn in as a Judge qua judex."

Unfortunately, many of our judges are falling short of the above solemn judicial admonition offered by Niki Tobi, JSC of blessed memory. In Nigeria today, politicians now use the bench to achieve their political interests. As a result of political manipulations, several instances abound in which one court gives discordant decisions, thereby exposing our courts to ridicule. It is a sad commentary that most of our jurists now dance to the music composed by politicians. When Judges dance to the tunes of political melodies, decisions and counter decisions are inevitable. It is believed that the narrative will change one day even as we hope for a national rebirth!

Conclusion
The order of interim injunction made by the Honourable Justice A.N. Awulu is binding on the Chief Judge of Kogi State and same still subsists until it is validly set aside by the Court of Appeal or by another Judge of the Kogi State High Court of Justice other than the Chief Judge himself who is not only a party in the case in which the interim order was granted but also the main party against whom the restraining order was directed at. The Chief Judge of Kogi State cannot be a judge in his own case. Hence, the purported setting aside of the interim order by the Chief Judge is in itself a nullity. Consequently, the Panel that the Chief Judge set up after purportedly setting aside the Honourable Justice A. N. Awulu's order of interim injunction, is also a nullity, having been done in disobedience to a valid court order. The Chief of Kogi State can not place something on nothing and expect it to stand. See Mac Foy v. UAC Ltd (1962) AC 153.

-Solomon Akobe, Esq, formerly with N.O.O. Oke (SAN) & Co., Ibadan, is now a State Counsel with the Kogi State Ministry of Justice.

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