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ono (m)
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Make una no vex o. I don come again (Warri boy!).
Em, I like reading newspapers a lot, and when I stumbled across this Alams matter again, I say make I post am for my people to read.
Please do not read if you don't like long postings. And don't fire missiles at me this time, but to Prof Ben Nwabueze.
Eddie, abeg, take some minutes out of your busy schedule and read this write up. Maybe u go change your mind. Don't get me wrong o, Alams na thief. Dem don catch am. He dey Lagos dey dance to the music wey him pay for.
Alamieyeseigha's removal: Coup against Constitution, Rule of Law
By chairman of The Patriots, foremost Constitutional lawyer, Prof. Ben Nwabueze
THE resolution adopted at a meeting of the House of Assembly on Tuesday November 29, 2005, requesting the state Chief Judge to appoint a seven-man panel under Section 188(5) of the constitution to investigate the allegation of gross misconduct contained in the impeachment notice, was passed by 15 members out of the membership of 24, which is one member less than the two-thirds majority of ALL the members required for the purpose by section 188(4). The meeting also purported irregularly to suspend the members who refused to join in passing the resolution. For this meeting, the 15 members who passed the resolution were brought to Yenogoa, the state capital, from Abuja where they were being quartered and taken back there after the meeting, for which reason they were referred to as "hostage" members, as indeed they were. They were certainly not free agents but were acting as directed by the Federal Government and the EFCC.
Fifthly, the power to appoint a seven-man panel to investigate the allegations of gross misconduct is, for good reason, entrusted to the state chief judge because he represents the third arm of government that is supposed to be independent of both the Executive and Legislative arms, and because he is an agent of the law enjoined by his oath of office to uphold the law impartially and faithfully without fear or favour.
In going ahead to appoint the investigating panel under section 188(5), notwithstanding the unconstitutional interference by the Federal Government and the EFCC in the impeachment process, it is obvious that the Chief Judge, Justice Emmanuel Igoniwari, acted not as a free agent, but under fear and irresistible pressure. As he, himself complained in a report in The Punch of Tuesday December 6, 2005:
"I was under unbelievable pressures from all corners. It was like a tsunami... Requests turned to threats and this was compounded by wicked or evil rumours. Some of the rumours and requests were even to the effect that a list of panel members would be drawn up for me to sign and the list would be taken away from me. Further that I might be whisked away and forced to sign a list, if continued to say no to offers or requests."
From a letter dated 2 December by Alamieyeseigha protesting the inclusion of four persons in the membership of the panel and similar protest by one of his supporters, it may be inferred that the Chief Judge might not entirely have resisted the pressures and threats.
Sixthly, of the many allegations of gross misconduct levelled against Governor Alamieyeseigha, only two, namely, jumping bail and failure to inform the House Assembly of his arrest and pending trial for money laundering in London, were considered and reported on by the investigating panel because, being notorious, self-evident and uncontroverted facts, they required no proof. These two alleged misconducts were not in the original list of allegations contained in the impeachment notice served on the Governor, and were only subsequently added. The other allegations were left for consideration in a future report because they require exhaustive investigation that is "bound to take a lot of time, resources an effort."
The panel was quite unsparing in the language used in its report to describe the gross nature and grave consequences of the misconduct of jumping bail, for which it so roundly and brutally condemned Alamieyeseigha, but it said nothing at all, not even one word, about the all-important question whether, as specifically stipulated in Section 188(2) of the Constitution, the act and omission in question amount to gross misconduct by Alamieyeseigha "in the performance of the functions of his office" as Governor of Bayelsa State. The failure by the panel to address this question could not have been other than that it was deliberately intended to avoid the conclusion that the two alleged misconducts did not constitute an impeachable offence in terms of Section 188(2) of the Constitution.
Only at the cost of doing great violence to language can it be said that Chief Alamieyeseigha was performing the functions of the office of Governor when he jumped bail or when he failed to inform the House of his arrest and pending trial for money laundering in London, gross as the misconduct on these two grounds might be. In any case, he was on leave of absence from office at the time, a fact on which the Speaker of the House was insistent when he said that the person recognised by the House as responsible for performing the functions of the office of Governor at the material time was, not Alamieyeseigha, but his Deputy whom the House had earlier appointed as acting Governor in the absence of Alamieyeseigha away on leave. It would be a manifest contradiction both to maintain that Alamieyeseigha was absent from duty on leave and at the same time that he was performing the functions of the office of Governor while on leave and while his Deputy was acting in the same office.
It is not without reason that only acts or omissions committed by the President or State Governor in the performance of the functions of his office are made the only impeachable offences by the Constitution. Otherwise the door would have been left so wide open for all sorts of allegations of gross misconduct, like rape or acts done before he assumed the office, to be trumped up against him but which have no connection whatsoever with the performance of the functions of his office.
Last but perhaps more decisive than the six illegalities listed above, the removal of Governor Alamieyeseigha in accordance with the rigorous and laborious process prescribed by Section 188 of the Constitution was dogged by yet another legal barrier more immediately calculated to frustrate and defeat the avowed determination of President Obasanjo to send him back to London from whence he had escaped to return to Nigeria. Two such barriers had suddenly but not unexpectedly sprung up.
The suspended members of the Bayelsa House of Assembly had, on Friday December 2, 2005, filed a suit in the State High Court against their 15 colleagues who earlier adopted the resolution requesting the Chief Judge to appoint an investigating panel. Joining the Chief Judge as co-defendant, they prayed the court, among other reliefs, for an injunction restraining the Chief Jude "whether by himself, agents, privies and servants from giving effect to any request from the 1st - 15th November 2005 or any other day whatsoever to appoint any investigative panel to investigate the governor of Bayelsa State." On the same day another suit was filed in the Supreme Court by the Attorney-General of Bayelsa State against the Attorney-General of the Federation claiming, among other reliefs, an order of injunction "restraining President Obasanjo and agencies of the Federal Government from any attempt to forcibly remove or induce the removal of Governor Alamieyeseigha from office" and from "further unlawful and unconstitutional interference in the administration of the state."
The effect of the filing of a suit seeking an injunction to restrain a defendant from doing certain acts is that his hands become as effectively tied as if an order of injunction has actually been made, provided he has notice of the suit. The position of the law upon this point is stated as follows by Obaseki JSC in Military Governor of Lagos State v. Ojukwu & Anor. (1986) NSSC (pt 1) 304 at pages 312 - 313, relying on a passage in the judgment of the U.S. Supreme Court in Edward Jones v. Securities and Exchange Commission 298 U.S. 1, at page 33.
"The rule is well settled both by the courts of England and of this country that where a suit is brought to enjoin certain activities, for example, the erection of a building or other structures, of which suit the defendant has notice the hands of the defendant are effectively tied pending a hearing and determination even though no restraining order or preliminary injunction be issued... He acts at his peril and subject to the power of the court to restore the status wholly irrespective of the merits as they may be ultimately decided" (emphasis supplied).
In Daniel v. Ferguson (1891) 2 Ch 27, one of the English decisions cited by the U.S. Supreme Court, a suit was brought to restrain the defendant from building so as to darken the plaintiff's lights. After receiving notice of a motion for temporary injunction and before the motion was heard, the defendant put a large number of men to work on the building, running a wall up to a height of about 39 feet from the ground in anticipation of the order of the court. The court of Appeal (England) ordered the wall to be pulled down. Kay L.J. said at page 30:
"Whether he turns out at the trial to be right or wrong, a building which he has erected under such circumstances ought to be at once pulled down, on the ground that the erection of it is an attempt to anticipate the order of the court. To vary the order under appeal would hold out an encouragement to other people to hurry on their buildings in the hope that when they were once up the court might decline to order them to be pulled down. I think that this wall ought to be pulled down now without regard to what the result of the trial may be."
Depending on the facts of each case, the appropriate order which the court may make in order to restore the status quo between the parties may be an order to pull down a building an order declaring the defendant's act in question null and void or an order restraining the continuation or repetition of such offending act. The decision of Egbue J. in Isiadinso & Others v Igwe Osita Agwuna III & Another, Suit No. A/98/92 is a case in which the last two remedies were applied. After being served with notice of a motion to restrain them from holding a meeting scheduled for a specified date to consider the revised Constitution of Enugwu Ukwu Town, the defendants went ahead and held the meeting as scheduled, at which the Revised Constitution of Enugwu Ukwu Town was considered.
The Court, after positing to itself the question, "what then is the court to do in the circumstance of this application? Proceeding to make an order (I) declaring null and void the meeting held by the defendants on the scheduled date insofar as it considered or in any way dealt with the Revised Constitution of Enugwu Ukwu Town (ii) restraining the defendants, their servants agents and privies from holding any meeting to consider or in any manner deal with the Revised Constitution of Enugwu Ukwu Town. In the words of the Learned Judge:
"The action of the defendants is calculated to lower the authority of this court and to interfere with the course of justice... The cases show that where a party with notice or even knowledge of the motion hurried and concluded the act sought to be retrained by an injunction, the court does not accept the act as a fait accompli. The court has always redressed the balance as between the parties at page 10 of the cyclostyled judgment (emphasis supplied).
Thus the report of the investigating panel and the removal of Alamieyeseigha, based on the report, with knowledge of the pendency of the two suits are null and void under the principle of law laid down in these decided authorities.
To anticipate the legal consequences arising from the filing of the two suits, the members of the Bayelsa State House of Assembly were again brought, under heavy police and military escort, from their temporary base in Abuja to Yenagoa. With the House surrounded by soldiers armed to the teeth, it sat, approved the panel's report and adopted a resolution removing Alamieyeseigha from office as Governor of Bayelsa State. This had to be done because it would have been an intolerable affront to the President to have allowed the law to override his will and power.
Conclusion
The plain, undeniable truth is that Governor Alamieyeseigha was removed from office, not by the members of the Bayelsa State House of Assembly in accordance with the process provided by the constitution but by President Obasanjo, backed by the police and military forces under his control, and using the members of the House as mere tools or agents. That is a federal system the Federal Government should unconstitutionally arrogate to itself power to suspend the Governor of a State from office, as it did in Plateau State in May 2004, or to remove him completely, as happened in Bayelsa State in December 2005, is a subversion of federalism and a coup against the constitution.
It is sad that the true character of these events as a subversion of and a coup against the Constitution is being concealed from the Nigerian people by dressing them up in the garb of a "war' against corruption, which is a highly emotive cause intensely popular among the population. The Nigerian pubic sees every corrupt official as a criminal undeserving of the protection of the Constitution and the laws. But a people incapable of rising above this kind of depraved mob sentiment is not ripe for constitutional democracy. We must not let our understandable abhorrence of corruption overbear our faith in constitutional democracy and the Rule of Law as the most acceptable system for the government of human society. It is more regrettable that lawyers subscribe to this mob sentiment.
Finally, the war against corruption is a noble cause, which should be supported wholeheartedly and energetically by all Nigerians, but it should be fought according to, not in subversion of the rule embodied in the supreme law of the country.
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