WHY AIYEDATIWA DIDN’T RESPOND TO NOTICE FROM HOUSE OF ASSEMBLY – LAWYER
- Chief Judge urged to respect court order, halt impeachment process
Mr. Ebun Olu-Adegboruwa, Senior Advocate of Nigeria and lawyer to the Deputy Governor of Ondo State, Hon. Lucky Aiyedatiwa, has asked the Chief Judge of the State to ignore the directive to set up a probe panel by the State House of Assembly.
In a letter addressed to the Chief Judge on Thursday, Olu-Adegboruwa said it would be a contempt of court to proceed with the impeachment process when the parties are involved in two cases in the Federal High Court in Abuja and State High Court in Akure.
The lawyer said Aiyedatiwa did not respond to the notice sent to his office by the House of Assembly because of the restraining order already issued on the matter by the Federal High Court.
He said: “Under and by virtue of section 287(3) of the Constitution, “all persons and authorities in Nigeria” are to obey and give effect to the orders of the Federal High Court. Our Client swore on oath to defend the Constitution and he cannot act against the said Constitution to disobey the valid and subsisting order of the Federal High Court of Nigeria which has halted the removal proceedings.
“Our Client has not been personally served with any valid Notice of acts of gross misconduct as required by law. Our Client is not in receipt of any valid Notice of acts of gross misconduct properly so issued and bearing the authority of the House of Assembly of Ondo State to which he can respond.
“Our Client has filed and served two separate applications upon the Ondo State House of Assembly, seeking orders of interlocutory injunction against the removal proceedings and also to stay further proceedings in respect of the invalid Notice, which was illegally issued and improperly served.”
Olu-Adegboruwa added that since the House of Assembly has already joined matters in the court over the issue by filing an appeal against the restraining order, it will be against the law to continue with the impeachment process without awaiting the outcome of the case.
“The House of Assembly having submitted to the jurisdiction of the Court by filing processes in Suit No. AK/348/2023 pending before the High Court in Akure and also purporting to file a complaint before the National Judicial Council in Suit No. FHC/ABJ/CS/1249/2023 before the Federal High Court Abuja, is fully aware of and cognizant of the authority of the Court over the subject matter of the removal proceedings against our Client.
“Consequently, it is our considered view that the matter of the planned removal of the Deputy Governor of Ondo State is now subjudice. Parties should follow the due process of law, the House of Assembly itself being a creation of law, seeking to implement the provisions of law, rightly or wrongly. It cannot and should not be allowed to take the law into its own hands by openly disregarding a subsisting order of court and other court processes duly served upon it.”
Below us a letter from the Ondo State Deputy Governor’s lawyer to the state Chief Judge;
Our Ref: A&C/RC/L-05/10/2023
Wednesday, October 4, 2023
The Hon The Chief Judge of Ondo State, Ondo State Judiciary, High Court Complex, Hospital Road, Akure, Ondo State.
My Lord,
RE: WHY ONDO STATE HOUSE OF ASSEMBLY CANNOT PROCEED WITH REMOVAL PROCEEDINGS OF THE DEPUTY GOVERNOR OF ONDO STATE
1. SUIT NO. AK/348/2023 – AIYEDATIWA V. ONDO STATE GOVERNMENT & 5 ORS AND
2. SUIT NO. FHC/ABJ/CS/1294/2023 – AIYEDATIWA V. INSPECTOR GENERAL OF POLICE & 5 ORS.
The above matter refers. We are solicitors to His Excellency, the Deputy Governor of Ondo State, Mr. Lucky Orimisan Aiyedatiwa (“our Client”) on whose behalf we write this letter on the above subject matter. We refer to our letter dated September 25, 2023 written to My Lord on this matter, regarding the suit filed by our Client before the High Court, Akure in respect of the unlawful attempts of the Ondo State House of Assembly to conduct proceedings for his removal from office. The court processes in the said Suit No. AK/348/2023 have now been duly served on My Lord and all the defendants in the said suit, including the House of Assembly.
We will like to draw the attention of My Lord to the following undisputed facts:
1. On September 25, 2023, our Client filed a Motion on Notice for various orders of interlocutory injunction against his planned removal from office by the Ondo State House of Assembly. The said application has been served on ALL the defendants in the suit, including the House of Assembly.
2. Realizing that our Client had filed a suit before the Akure High Court, the Ondo State House of Assembly claimed to have served a Notice of acts of gross misconduct on some persons different from our Client in the late afternoon of September 25, 2023, after Suit No. AK/348/2023 had been filed, against the said removal proceedings. The said Notice is required by law to be served on our Client personally, for it to be effective.
3. On September 26, 2023, our Client filed a Motion on Notice before the Akure High Court, for an order to stay further proceedings on the said Notice by the Ondo State House of Assembly and indeed all the defendants in Suit No. AK/248/2023 supra. The said application has been served on all the defendants in the suit.3.
On September 26, 2023, it became a matter of public knowledge that the Federal High Court, Abuja in Suit No. FHC/ABJ/1294/2023, per Emeka Nwite, J., granted an order, RESTRAINING ALL THE DEFENDANTS IN THE SAID SUIT, INCLUDING THE ONDO STATE HOUSE OF ASSEMBLY, FROM PROCEEDING WITH THE PLANNED REMOVAL PROCEEDINGS
AGAINST OUR CLIENT.
My Lord is a defendant in the said suit upon whom the order of the Court
has been duly served. In particular, the Federal High Court granted an order, restraining My Lord from constituting any panel of investigation at the instance of the Ondo State House of Assembly.
4. The Speaker of the Ondo State House of Assembly, also restrained by the Order of the Federal High Court, issued a statement openly castigating the Court and vowing to disregard the said order by proceeding with the removal proceedings.
The Speaker arrogantly described My Lord of the Federal High Court as “a
certain judge”, threatening with reckless abandon, to deal with the judge.
WHY ODSHA CANNOT PROCEED WITH REMOVAL PROCEEDINGS
A. Section 188 (2) of the 1999 Constitution makes it mandatory that the holder of the office SHALL be served with the notice before the House of Assembly is conferred
with jurisdiction to sit on the removal proceedings. The House is in flagrant
violation of this section when it convened its plenary proceedings on September 20, 2023 before the holder of the office was served, in breach of the constitutional and fundamental right to fair hearing of our Client, the Deputy Governor.
Service of the Notice is personal, which was not done in this case. The
Notice being paraded by the House of Assembly was not served on the
Deputy Governor personally.
Under section 188 of the Constitution, the Assembly is authorized to sit for only two times in the course of removal proceedings; first under section 188 (3) when it convenes to move a motion to call upon the Chief Judge to constitute a panel of investigation and secondly under section 188 (9) when it convenes to
deliberate upon the report of the panel set up by the Chief Judge. In this case, the Assembly has already convened its full plenary and conducted proceedings on the Notice at least twice, in respect of the planned removal of the Deputy Governor; first on 20th September 2023 and again on 3rd October 2023. That being the case, the House has no jurisdiction to convene any further proceedings in respect of the planned removal, having exhausted the two sittings allowed under section 188 of the Constitution.
There is presently no valid Notice of acts of gross misconduct in existence to ground any removal proceedings against the Deputy Governor. First, the Notice presently in circulation was not served on the Deputy Governor in line with section 188 (2) before the Assembly convened its plenary session on 20th September 2023,
to deliberate on the said Notice. Second, the Notice was not personally served on the Deputy Governor.
Thirdly, upon proper examination, the Notice presently in circulation is not a document of the House of Assembly of Ondo State, properly so called. When My Lord probes the said Notice, it will be discovered that only thecover letter from the Speaker of the Assembly and the signature page bears the insignia and authority of the Ondo State State House of Assembly. The alleged Notice itself is not a document emanating from the House of Assembly of Ondo State, being a document foreign to the said Assembly.
WHY THE DEPUTY GOVERNOR CANNOT RESPOND TO THE “NOTICE”
Under and by virtue of section 287(3) of the Constitution, “all persons and
authorities in Nigeria” are to obey and give effect to the orders of the Federal
High Court. Our Client swore on oath to defend the Constitution and he cannot act against the said Constitution to disobey the valid and subsisting order of the Federal High Court of Nigeria which has halted the removal proceedings.
Our Client has not been personally served with any valid Notice of acts of
gross misconduct as required by law.
Our Client is not in receipt of any valid Notice of acts of gross misconduct
properly so issued and bearing the authority of the House of Assembly of Ondo State to which he can respond.
Our Client has filed and served two separate applications upon the Ondo State House of Assembly, seeking orders of interlocutory injunction against the removal proceedings and also to stay further proceedings in respect of the invalid Notice, which was illegally issued and improperly served.
JURISDICTION OF THE COURT TO INQUIRE INTO REMOVAL PROCEEDINGS
My Lord, it has now been settled beyond controversy, by the Supreme Court in the case of Inakoju v Adeleke, (2007) 4 NWLR (Pt.1025) 474, that the Court possesses the requisite jurisdiction to inquire into whether there is strict compliance with section 188 (1) – (9) of the Constitution before invoking the provisions of section 188(10). The House of Assembly, being an agency created by law, should join our Client to defend
all its illegal actions and proceedings before the Court.
“The entire section 188 sub-sections 1-11 must be read together. And a proper reading of the whole section will reveal that the ouster clause in subsection (10) can only be properly resorted to and invoked after due compliance with sub-sections (1)-
(9) that preceded it … Failure to comply with any of the provisions of subsections (1)- (9) will mean that the ouster clause of subsection (10) cannot be invoked in favour of
the House of Assembly.” Inakoju v. Adeleke (supra).
STAY OF FURTHER PROCEEDINGS
In line with the valid and subsisting order of the Federal High Court, Abuja and in the best traditions of due regard for due process of law and respect for the authority of the Court, WE HUMBLY URGE MY LORD TO DISREGARD ANY MOTION, LETTER, APPLICATION OR REQUEST FROM THE ONDO STATE HOUSE OF ASSEMBLY, FOR THE CONSTITUTION OF ANY PANEL OF
INVESTIGATION IN RESPECT OF THE DEPUTY GOVERNOR OF ONDO
STATE, until the two pending cases are fully decided by the various courts with jurisdiction over them.
“The Chief Judge can only invoke his constitutional powers under section 188 (5) if the provisions of section 188 (2), (3) and (4) are complied with. Putting it in anegative language, the Chief Judge will not invoke his constitutional powers under section 188 (5) if the provisions of section 188 (2), (3) and (4) are not complied with.” Inakoju v. Adeleke (supra).
The House of Assembly having submitted to the jurisdiction of the Court by filing processes in Suit No. AK/348/2023 pending before the High Court in Akure and also purporting to file a complaint before the National Judicial Council in Suit No. FHC/ABJ/CS/1249/2023 before the Federal High Court Abuja, is fully aware of and cognizant of the authority of the Court over the subject matter of the removal proceedings against our Client.
Consequently, it is our considered view that the matter of the planned removal of the Deputy Governor of Ondo State is now subjudice. Parties should follow the due process of law, the House of Assembly itself being a creation of law, seeking to implement the provisions of law, rightly or wrongly. It cannot and should not be allowed to take the law into its own hands by openly disregarding a subsisting order of court and other court processes duly served upon it. While thanking My Lord for the kind considerations, we extend the best assurances of our warmest regards, always.
Yours faithfully, EBUN-OLU ADEGBORUWA, SAN
CC:
1. Ondo State House of Assembly c/o Its Solicitors, Femi Emmanuel Emodamori & Co., Suites 28 & 29, Yafrato House, Alagbaka G.R.A. Akure, Ondo State.
[email protected]
2. Governor of Ondo State, The Governor’s Office, Government House, Akure, Ondo State.
