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Procedure for Impeachment in Nigeria (2)

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Procedure for Impeachment in Nigeria (2)

Notice of Impeachment

Section 188(2)[1] provides clearly that there must be a notice of allegations in writing signed by not less than one-third of the members of the House of Assembly stating that the Governor or Deputy Governor is guilty of gross misconduct in the performance of the functions of his office, specifying detailed particulars of the gross misconduct alleged. The notice of impeachment must be presented to the Speaker of the House of Assembly of the State concerned.[2]

From the provisions of the Constitution, it goes without saying that any purported notice of impeachment signed by less than one-third of the members is not valid. Similarly, vague and imprecise particulars should not receive the action of the Speaker.

In the case of Inakoju & Ors v. Adeleke & Ors,[3] the Supreme Court held inter alia that an impeachment notice signed by less than 11 members of the House of Assembly made up of 32 members was not valid. The notice was also not presented to the Speaker as provided. In his contribution in the same case, Akintan, J.S.C. held inter alia as follows:[4]

In the instant case, the requirement under section 188(2) is to the effect that a notice of any allegation of gross misconduct by the Governor in writing signed by not less than one-third of the members of the House of Assembly is to be presented to the Speaker (1st respondent). The averment in the affidavit is to the effect that the provision was not complied with since such was not presented to the 1st respondent. (Speaker of the House of Assembly of Oyo State)

Service of Impeachment Notice

One of the issues that characterised most impeachment proceedings in Nigeria has been the absence of notice and non-service of notice of impeachment or allegations on the Governor or Deputy Governor as the case may be. This was the case in Inakoju & Ors. v. Adeleke & Ors.[5] In resolving this issue, the Court of Appeal relied on the provisions of section 188(2)(b) which stipulates that:

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, and shall also cause any statement made in reply to the allegation by the holder of the office to be served on each member of the House of Assembly.

It was shown in affidavit evidence which was not controverted that 18 out of 32 members of the Oyo State House of Assembly who championed the impeachment proceedings against the State Governor Rasheed Ladoja (3rd respondent therein) did not serve notice of impeachment or allegation of gross misconduct on other members of the House of Assembly.

As a matter of fact, the notice of allegation of gross misconduct was purportedly served on the Governor through a newspaper advertisement. The Supreme Court on appeal to it affirmed the decision of the Court of Appeal, Ibadan that the provisions of section 188(2)& (3)[6] relating to notice and service of same was not complied with and therefore the purported impeachment was null and void.

In the same vein, the Court of Appeal nullified the purported impeachment of Governor Peter Obi of Anambra State on the ground inter alia, that the notice of impeachment was not effected on the Governor as provided by the relevant section of the Constitution.[7]

It is submitted that the service of notice of impeachment intended by the lawmakers under section 188(2) of the Constitution is personal service. Although the Constitution did not specifically provide for personal service of notice of allegation, it goes without saying that personal service will fulfil the fair hearing requirement enshrined in section 36(1) of the 1999 Constitution.

This is also the practice in Nigerian Courts’ Rules and Practice. Moreso, the main essence of service of process in judicial and quasi-judicial proceedings is to put the affected party on notice of the allegation or case against him. This cannot be achieved if the service of the notice is by any other means but personal service.

However, where effecting personal service becomes almost impracticable, a substituted means may be used such as publishing the notice at the notice board of the Government House as well a publication in any of the National Daily Newspapers as done in Ladoja’s case.

Quorum Requirement

Section 188(2) (4) and (9)[8] provides for two types of quorum to be complied with in the removal of the Governor or Deputy Governor as the case may be.

Similar provisions are made under section 143(2) and (9) of the Constitution[9] with regard to impeachment of the President or Vice President. To this effect there is the requirement of one-third of the members of the House who must sign the notice of impeachment against the Governor or Deputy Governor, the President or Vice President as the case may be.

There is equally another requirement of quorum of two-thirds majority of all the members who must determine during the debate whether the Governor, Deputy Governor, President or Vice President is liable to be impeached in line with the report of the Panel of seven members that recommended the impeachment against the office holder.[10] Failure to comply with any of these quorum requirements will render the impeachment a nullity. The issue of quorum featured extensively in virtually all the impeachment cases that took place between 1999 and 2020.

In the case of Inakoju & Ors v. Adeleke & Ors,[11] it was revealed through evidence on record that 18 out of the 32 members of Oyo State House of Assembly purportedly impeached Governor Ladoja. Mathematically two-third of 32 is approximately 21 members. That presupposes that to remove or impeach the Governor, at least 21 members ought to be present and vote in favour of the impeachment proceedings.

The Supreme Court had no difficulties in holding and approving the decision of the Court of Appeal which nullified the impeachment of Ladoja for non-compliance with quorum requirement of the Constitution.[12] Similarly in the case of Dapialong v Dariye,[13] the Plateau State House of Assembly became depleted when 14 members including the Speaker and Deputy Speaker, decamped to another party following which Independent National Electoral Commission (INEC) declared their seats vacant. That was the scenario when eight out of the remaining ten members commenced an impeachment process against the then Governor of Plateau State, Joshua Dariye.

The ten members claimed they had impeached the Governor who consequently rushed to court and challenged the constitutionality and validity of the impeachment process. The Court of Appeal nullified the purported impeachment on the ground inter alia, that the quorum requirement of the Constitution was not complied with as two-third of 24 could not by any imagination be said to be 8 as the respondents at the Court of Appeal contended. The Supreme Court in affirming the decision of the Court of Appeal held inter alia as follows:

the removal of a Governor or Deputy Governor from office is a very grave issue; it has import of criminality and little wonder that subsection (4) thereof stipulates that the motion calling for investigation of the allegation must be supported by not less than two-thirds majority of all the members of the House of Assembly…it is my view that two-thirds of a House of Assembly like Plateau whose membership is twenty-four, the minimum number of members that can grant the application to investigate the alleged gross misdeeds of the 1st respondent (Dariye) is 16 (sixteen) going by the provision of section 188(4). Eight (8) certainly is not two-thirds of 24.[14]

There was also the issue of whether by virtue of the provisions of section 96(1) of the 1999 Constitution the impeachment of Joshua Dariye was valid and constitutional. Section 96(1) of the Constitution provides as follows: “The quorum of a House of Assembly shall be one-third of all the members of the House.”

The Supreme Court in analysing this provision had this to say:

When the above provisions of the Constitution are read, the only conclusion… is that the legislators intend that the lawful quorum of the House of Assembly shall be one-third of all the members of the House. But in section 188(4) of the Constitution which deals with impeachment of a Governor, the quorum that can lawfully pass a motion initiating the process is two-thirds majority of all the members of the House of Assembly.[15]

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[1] Constitution of the Federal Republic of Nigeria, (as amended)

[2] This is in pari materia with section 143(2) of the Constitution relating to impeachment of the President or Vice President except that the notice is presented to the Senate President.

[3] Supra at p. 48 of SCNJ Report

[4] Ibid at p. 147

[5] Supra

[6] Constitution of the Federal Republic of Nigeria, (as amended)

[7] Balonwu & Ors v Peter Obi [2007] 5 NWLR (pt. 1028) p. 488

[8] Constitution of the Federal Republic of Nigeria, (as amended)

[9] Ibid

[10] Ibid

[11] Supra

[12] 188(4) equally requires that two-thirds majority must support a motion that the allegation of gross misconduct should be investigated before the Chief Judge will be requested by the Speaker to appoint a Panel of seven members.

[13] [2007] 4 SCNJ 286

[14] p. 357 per Aderemi, J.S.C

[15] Ibid

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