Note

CONSTITUTIONAL LAW NOTE

JUDICIAL ATTITUDE TO FEDERAL MILITARY DECREE

        The attitude of the supreme court towards ouster clauses in military decrees has been a source of discussion in legal and political circles. The supreme court has engaged itself directly with the might of the military regime. A confrontation that led to the unpalatable defeat of the court as evidenced in Council of University of Ibadan vs Adamolekun and EO Lakanmi & Ors vs Attorney General of The West & Ors. Thus a content analysis of the Supreme Court's attitude in this respect is fundamental in order to understand the role of the Supreme Court in Nigerian political system.

        In Adamolekun's case, while an appeal was pending on a decision of the High Court, an edict was promulgated establishing the Western region Court of Appeal. Thus precluding the appellant from direct access to the Supreme Court. The issue before the court was on interpretation of S.6 of Decree no 1 of 1966 which provides:

             "No question as to the validity of any.   decree or edict should be entertained in any court of law in Nigeria".

           The Supreme court held that S.6 was not an ouster clause, thus the Supreme Court could look into the validity of any decree or edict. However the court held that by S.6 it cannot question the competency of the authority to make a decree or edict. This case was in relation to an edict and thus, wasn't in direct confrontation with the Federal military government.

       The opportunity presented itself in the case of EO Lakanmi vs Attorney General of the West. This case involved the forfeiture of assets of named persons under an edict which was validated by Decree no 45 of 1968. In an uncompromising manner, the Supreme Court taking recourse to its earlier decision declared the law null and void.

      The decision of the Supreme Court in the above two cases generated a lot of argument among scholars, jurists, lawyers, political scientists and human rights activists. While some hailed the decision as courageous, momentous and decisive, others felt that the decision had the capability of placing the Supreme Court on collision with the might of the Federal Military Government. For instance, Abiola Ojo argued that the decision was too ambitious and lacked recognition of military intervention in Nigerian politics.

        The Federal Military Government did not take the decision lightly and reacted fifteen days later with the promulgation of Decree no 28 of 1970.  S.1(2) of the decree specifically provided that any court decision before or after the decree that nullified any decree or edict shall be null and void. Thus, the Supreme Court had to bow to the supremacy or might of the Federal Military Government. This was evidenced in the subsequent Supreme Court case of Akinremi vs Mobolaji Johnson.

THE SECOND REPUBLIC AND THE ATTITUDE OF THE COURT TO OUSTER CLAUSES

 With the advent of the second republic came the 1979 Constitution. This constitution changed the attitude of the court towards ouster clauses. The constitution through some of its provisions empowered the judiciary over matters regarding ouster clauses.

 In the first instance, the constitution provides for its supremacy in the provisions of S.1(1) & (3). It not only declares its supremacy it also renders invalid any law that contradicts the constitutional provision.

 Secondly, the constitution vests in the court the inherent powers and sanctions of a court of law. This was provided in S.6(6)(a) & S.236 1979 CFRN. These can be referred to as powers though not expressly listed are powers that normally accrue to a court.

 Thirdly, S.4(8) precludes the legislature from making any legislation that ousts or purports to oust the court's jurisdiction. It also provides that all legislative and executive actions are amenable to judicial review of the ordinary court of the land.

 Lastly, the democratic atmosphere of the time favoured the expansion of the courts power over matters regarding ouster clauses.

 The effect of the above is that during the period under review, no legislation ousting or purporting to oust the courts jurisdiction over came up for judicial review. However, the constitution did not have retrospective effect. This means that rights and obligations of parties in cases before the advent of the constitution were determine by laws existing at the time the action was filed.

  See: Uwaifor vs AG Bendel State (1982) NSCC @221; In this case, the plaintiff's property was forfeited to the Bemdel state government by virtue of Edict No 10 of 1977. The appellant contested this in court. Although it was heard by the supreme Court when the 1979 Constitution was extant, the court held that following the laws that were in place when the cause of action arose, it cannot question the validity of Decrees and Edicts applied during that period.

Adamu vs A.G Bendel State (1982) 3 NCLR @676.

Constitutional Ouster Clauses

 This implies the provisions of the constitution that oust or purports to oust the jurisdiction of the court. There are numerous such provisions in the constitution. The attitude of the court towards these was unquestionable submission to the will of the people as contained in the constitution.

 One of such ouster clauses was the provision of S.170(10) 1979 CFRN which ousted the courts jurisdiction on legislative proceedings regarding the impeachment of the executive. This means that no action regarding the legislative proceedings of impeachment the could be brought before any court.

 In the case of Balarabe Musa vs Hamza, the court held the S.170(10) CFRN 1979 was sacrosanct and inviolable. This implies that the provision of S.170(10) effectively ousted the court's jurisdiction and the court cannot enquire into any matter bordering on S.170 which is the removal/impeachment proceedings. It should be noted that despite series of irregularities alleged in the process of removing the governor the court closed its eyes to the irregularities because of S.170(10) that precluded the court's intervention in such matters.

 The court seems to have followed the liberal approach to constitutional interpretation as laid down in the case of Nabiu Rafiu vs The State where it was held that the provision of the constitution must be given a liberal interpretation. However, scholars like Nwabueze have described the decision in Balarabe Musa's case as an over liberal approach to constitutional interpretation. Unfortunately, the Supreme Court of Nigeria was not given an opportunity to make pronouncements on the provision of S.170(10) CFRN in that case.

 Another constitutional ouster of court's jurisdiction was S.6(6)(c) 1979 Constitution which provides the the powers of the court shall not extend to any issue as to whether any person or authority in government complies with the provision of Chapter II of the constitution. In other words, the provisions of Chapter II of the 1979 Constitution were not justifiable or enforceable. Since educational rights were contained under Chapter II , the court in the case of  Olubunmi Okogie vs AG Lagos State held that educational rights as contained in Chapter II was not enforceable or justiciable.

 The ouster clauses also applied to matters that are political in nature as the court tried to insulate itself from politics. See: Jideonwo & ors vs Governor of Brendel State (1981) 1 NCLR @4; Onuoha vs Okafor (1985) 6 NCLR 495:  In this case, there was a primary election where the rightful winner was denied the right to contest. The court held that notwithstanding what happens in the party. The fact that a party becomes a member of a party means that he has suffered his rights to the party. Thus, the court held that the matter is seen as a political question which the court should not entertain.

   Another area where ouster of court's jurisdiction occurred was S.6(6)(d) CFRN 1979. The provision seeks to prevent a situation where anybody will challenge or question the authority of the military regime to make a decree or to question any existing laws made by the military. In the case of Attorney General IMO vs AG Rivers 1983 NSCC@360, the court held that the courts power did not extend to any matter which sought to challenge the authority of a military regime to promulgate a decree or edict or to question them.

 Another provision is that of S.213(6) of the 1979 Constitution which provided that the order given by the president to the IGP cannot be challenged in any court.

SECOND PHASE OF MILITARY RULE

 With the end of civilian rule on 31 December 1983 the military took over power and started its operation on January 1 1984. The first action was to pass a decree known as Decree no 1 of 1984(Constitution suspension and modification decree). The effect of this decree was to suspend certain parts of the 1979 Constitution. Because of the experience of the military during the first phase, they became more exact, clearer and unambiguous in passing the decrees which were mostly interpreted by positivist judges.

 The attitude of the court at this period of time was to revert back to the pre-1979 situation although with some modifications. The modifications were due to the fact that there were many unsuspended parts of the 1979 constitution due to the fact that the local and international opinions actually favoured an expansion of the court's powers. The two major issues that dominated the court's decision at that time were:

• The effect of the organic decree(Decree no 1 of 1984) and constitutional decrees (federal military decrees) on the unsuspended parts of the 1979 Constitution: This was brought to fore in the case of Military Governor of Ondo State & ors vs Victor Adegoke Adewunmi 1988 1 NSCC @1136.In this case, the issue before the High Court was the validity of an appointment of a Chief. While the case was pending before the High Court, the governor of Ondo State enacted an edict known as Edict No 11 of 1984. The edict not only ousted the court's jurisdiction in chieftaincy matters, it also made it an offence for anybody to challenge the appointment of a Chief in court. The issue before the court was whether the court should submit to the effect of ouster clauses as contained in edict no 11.

 The court held that since the military did not suspend S.6 and 236 of the 1979 Constitution, the edict could not oust the court's jurisdiction as that would violate Decree no 1 of 1984 which spared the provision of SS.6 and 236. The court of appeal affirmed the decision of the high court. On further appeal to the Supreme Court, it held that an edict could not oust the jurisdiction of the court as that would violate Decree no 1 of 1984.

 It should be noted that the court in the above decision did not pronounce on the effect of an edict contradicting the unsuspended part of the 1979 Constitution. However, in the case of Dokun Ajayi Labiyi vs Alhajji Mustapha Moberuagba Anretiola 1992 10 SCNJ part 1, the issue before the court was the effect of S.2 Edict no 3 of 1985 which ousted the court's jurisdiction on chieftaincy matters on the unsuspended part of the 1979 Constitution. The supreme Court was clear in holding that any edict that ousted the courts jurisdiction should be declared null and void as that would offend the provisions of S.6(6) and S.236 of the 1979 Constitution that were left unsuspended. However, the court stated the hierarchy of laws under the military rule as follows:

1. Constitution Suspension and Modification Decree no 1 of 1984.

2. Federal Military government Decree

3. Unsuspended parts of the 1979 Constitution

4. Laws made by the national assembly before military takeover or having effect as if so made.

5. Edicts by State Military governors.

6. Laws made by state house of assembly or having effect as if so made.

• The effect of military decrees on rights of individuals as contained in chapter IV of the 1979 Constitution which was not suspended: The other issue that came for the court's determination was the effect of ouster clauses on fundamental rights of individuals as contained in Chapter IV of the 1979 Constitution which was not suspended. The Supreme court was clear on this issue by emphasising the fact that rights of individuals must be respected even during the military regime. Oputa JSC in the case of Military Governor of Lagos State vs Emeka Ojukwu 1986 1 NSCC @304, was of the view that the law is not a respecter of any person and rule of law must be obeyed even during the military regime.

 The attitude of the court was to give a strict interpretation to ouster clauses so as to prevent the rights of individuals from unnecessary violations.  See: Wilson vs Attorney General of Bendel State & Ors 1985 1 NSCC @911; In this case Nnaemeka Agu JSC reiterated that the courts have a duty to protect the right of citizens to prevent lawlessness. Thus any attempt by a competent authority to take away a citizen's right must be done in strict compliance to laid down rules and procedure.

 Nwosu vs Imo State Environmental Sanitation Authority 1990 4 SCNJ.

THE FOURTH REPUBLIC

 See: Abaribe vs The Speaker Abia State House of Assembly 2002 14 NWLR pt 788 @466;  the provision of section 188(10) came before the court for adjudication in relation to impeachment proceedings instituted against the Deputy Governor of Plateau State of Nigeria. The Court of Appeal was of the view that section 188(10) of the 1999 Constitution precludes all courts from allowing any proceedings or determination of a House of Assembly or its Panel with respect to proceedings under section 188 to be challenged before it. It also precludes all courts from allowing any matter relating to such proceedings and determination to be entertained before it. The Court came to this conclusion in this case because the issue of whether the House of Assembly complied with section 188(1-9) was not raised as an issue before the court. Consequently, the court invoked the ouster clause and held that its jurisdiction was effectively ousted by the section.

Jimoh vs Olawoye 2003 10 NWLR PT 828 @ 307; In this case, the court had to interprets the provisions if S.26 of the Local Govt Law of Kwara State 1999 which was similar to the provision of S.143 and S.188 of the Constitution. However S.26(10) contained an ouster clause similar to S.143(10) and S.188(10). The Court of Appeal held that in the first instance, the court'S jurisdiction can be ousted only when the proceeding provisions of S.26(1)-(9) have been proved to be complied with. Furthermore, the court held that since that S.26(10) is in contradiction to S.4(8), 272(1) and 1(3) of the Constitution. Thus the court declared it unconstitutional.

 Inakoju vs Adeleke 2007 4 NWLR PT 1025 423: section 188(10) of 1999 Constitution also came to court for interpretation. The Court was of the view that the entire section 188 sub-sections 1-11 must be read together. It noted that 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 (l)-(9) that preceded it. Subsection (11) makes it abundantly clear that it is the House of Assembly that decides whether or not a conduct is gross misconduct exists to warrant the removal of a Governor or Deputy Governor. This must depend on the facts and circumstances of each particular case. 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.

Dapianlong & Ors vs Dariye & Ors 8 NWLR 2007 PT 1036 289; This is also an impeachment case considering the ouster clause of S.188(10). The respondent was purportedly impeached and the impeachment had a lot of irregularities. One of such was that only 8 out of the 24 members of the house of assembly impeached the governor. The court held that the ouster clause of S.188(10) would only apply when the other provisions of the constitution in S.188(1)-(9) have been followed. Since they have not been followed, the court would have jurisdiction.

 Ekpenyong vs Umana 2010 AFWLR Pt 520 @ 1387: The Court noted that for ouster clause in section 188(10) of the Constitution to apply, the steps in subsection (1)-(9) of section 188 must be observed strictly to ensure that the Constitution is not violated.

CONSTITUTIONAL OBJECTIONS TO MILITARY RULE.

 As soon as the military gets power they exhibit certain unconstitutional and undemocratic features.  How the constitution reacts to this would be the focus of our discussion. This is due to the following:

1. Nature of military laws: The nature of military laws tend to be unitary in nature which is against the federal nature of laws in a democratic dispensation. The 1999 Constitution in S.2 emphasises the federal nature of the country and the federal nature of the legislature. Also the military laws such as decree and edicts offend the constitutional supremacy clause as contained in S.1(1) & (3) of the Constitution. Again, by S.1(2) of the 1999 Constitution, the country can only be ruled in accordance with the provisions of the constitution. See: Labiyi vs Anretiola where the constitution was rated as no 3.

2. There is absolutism and lack of clear separation of powers under the military rule: This is contrary to S.4,5 and 6 of the 1999 Constitution which clearly spells out the powers and functions of each arm of government. Namely Legislature, executive and judiciary. These provisions in a way prevent absolutism and tyranny in the government due to checks and balances.

3. The judiciary is usually desecrated in two major respects: Firstly, court judgements are treated with utmost disdain, disrespect as the military only enforces the judgement that pleases them. Apart from that, the military sometimes pass decrees in order to nullify or subvert the courts decision. See the reaction of the military in Decree no 28 of 1970 which nullified the cases of Adamolekun vs Council university of Ibadan and Lakanmi vs AG of the West.

 Secondly, the military usually had parallel judicial tribunals which tried criminal cases.

CITIZENSHIP

Every nation of the world has a way of determining the citizenship of her members in order to confer certain rights on the citizen. The word 'citizenship' is similar to 'nationality'. However, while nationality is used in international sense, citizenship has local connotation. The Nigerian constitution has clearly defined who becomes a citizen of Nigeria.

 Major political office holders such as the president, governor, members of the senate, members of house of reps and members of the state assemblies are required to be citizens of Nigeria and they become disqualified from holding such positions if they voluntarily acquire the citizenship of another country or they declare an oath of allegiance to such other country. See generally SS.66(1)(a); 107(1)(a); 137(1)(a) and 182(1)(a) CFRN 1999 as amended. Please note that these provisions are subject to S.28 of the 1999 Constitution. Under S.28 a person has the right of dual citizenship. However a person must forfeit the citizenship of Nigeria if he is not a citizen of Nigeria by birth, he acquires or retains the citizenship of another country of which he is not a citizen of that country by birth.

The constitution has created 3 three types of citizenship namely:

1. Citizenship by birth S.25

2. Citizenship by registration S.26

3. Citizenship by naturalisation S.27

Citizenship By Birth

The following categories of persons are regarded as citizens of Nigeria by birth:

1. Every person born in Nigeria before the date of independence either of whose parents or any of whose grandparents belongs or belonged to a community indigenous to Nigeria. Under this category a person whose parents or grandparents are not born in Nigeria cannot be regarded as citizen by birth; S.25(1)(a) CFRN 1999.

2. Every person born in Nigeria after the date of independence either of whose parents or any of whose grandparents is a citizen of Nigeria; S.25(1)(b).

3. Every person born outside Nigeria any of whose parents is a citizen of Nigeria; S.25(1)(c).

 Note that it is immaterial whether it was only one of the parents that is a citizen of Nigeria. See Shugaba vs Minister of Internal Affairs.

Citizenship By Registration

 A person who does not qualify as a citizen of Nigeria by birth can apply to be registered by the president as a citizen of Nigeria. This form of citizenship is known as citizenship by registration. To be qualified for this application S.26(1) provides that the person must be

1. Of good character

2. Have clear intention of his desire to be domiciled in Nigeria.

3. He must subscribe to the oath of allegiance as contained in the seventh schedule to the constitution.

Only two categories of persons can apply pursuant to S.26(2). They are:

• Any woman who is or has been married to a citizen of Nigeria.

• Any person of full age and capacity born outside Nigeria any of whose grandparents is a citizen of Nigeria. See: S.26(1) & (2) CFRN 1999.

Citizenship by Naturalisation

 A person not qualified as a citizen of Nigeria by birth or registration may apply to the president to be naturalised as a citizen of Nigeria. However, the following conditions as stated in S.27(2)(a) - (g) must be satisfied:

• That he is of full age and capacity

• He must be of good character

• He must have a clear intention to be domiciled in Nigeria

• He must in the opinion of the governor in the state where he intends to reside be acceptable to the local community and has assimilated into the way of life of such community.

• He is a person who has made or is capable of contributing to the progress, well being and development of Nigeria.

• He has subscribed to the oath of allegiance as contained in the seventh schedule of the constitution.

• He has lived in Nigeria for a period not less than 15 years immediately preceding the date of his application to be naturalised or he has resided in Nigeria for an aggregate period that is not less than 15 years.

 It should be noted that according to the provisions of S.307 CFRN 1999  a person who is a citizen by either naturalisation or registration cannot hold an elective or appointive post in a period of not less than ten years after acquiring the citizenship.

Read the following cases:

• Okogie vs Attorney General Lagos (1981) 2 NCLR@337.

• Jideonwo & ors vs Governor of Brendel State (1981) 1 NCLR @4

• Onuoha vs Okafor (1985) 6 NCLR 495:  In this case, there was a primary election where the rightful winner was denied the right to contest. The court held that notwithstanding what happens in the party, the matter is seen as a political question which the court should not entertain. the court held the nothing shall be outside a superior court's jurisdiction except that which specifically appears to be so.

• In Amechi vs INEC: The court interfered in a political primary with facts similar to the above case do removed the wrong

• Mustapha vs AG Lagos (1987) 1 NSCC @ 632

• Attorney General IMO vs AG Rivers 1983 NSCC@360:In this case, the court decided that due to the provision of S.6(6)(d) of the 1979 Constitution, bars enquiry into the competence of the military to make laws before the commencement of the second republic.

Dual Citizenship

 The law recognises a citizen of Nigeria to have another citizenship. However, S.28(1) CFRN 1999 provides that a person must forfeit the citizenship of Nigeria if he obtains or retains the citizenship of another country of which he is not a citizen by birth. This indicates that a person who is a citizen of Nigeria by birth cannot forfeit his citizenship under any circumstance. S.28 only applies to person who is a citizen of Nigeria by registration and by naturalisation.

 Please note that citizenship by registration will not be effective for a person who has the citizenship of another country by registration until he has effectively renounced that of the other country within a period of twelve months after registration or grant of certificate of naturalisation S.28(2) CFRN 1999.

Renunciation Of Citizenship

 The law allows a citizen of Nigeria to renounce his or her citizenship by making a declaration or application in a prescribed manner;S.29(1). The president shall cause the declaration to be registered and the person shall seize to be a citizen of Nigeria from the date of registration of the declaration; S.29(2). However, the president has the right to reject the application if it was made during any war in which Nigeria is physically involved. Or the president considers the application as contrary to public policy;S.29(3). See: S.29(1) & (2) CFRN.

Deprivation Of Citizenship

 The president has the power to deprive a citizen of Nigeria of his citizenship. However, under no condition can the president deprive a citizen of Nigeria by birth of his citizenship. See: Shugaba vs Minister of Internal Affairs. A person who is a citizen of Nigeria by naturalisation can be deprived of his citizenship if he is sentenced to at least three years imprisonment within the period of seven years of his naturalisation;S.30(1). In the same vein, a citizen of Nigeria by registration can be deprived of his citizenship by the president if he is considered to be disloyal to the Federal Republic of Nigeria. This consideration would be based on his acts or speech or after due enquiry by the president in a manner stated in the regulations. Please note that the act or speech must relate to what he did or said from the records of proceedings of a court of law or tribunal established by law;S.30(2).

 Also, the president may deprive a citizen by registration of his citizenship if he traded to the enemy of Nigeria during the period of war or conducts a business that is against the interest of Nigeria;S.30(2)(b). This applies to both registration and naturalisation.  See: S.30 CFRN 1999.

 Note finally, that the president has the power to make regulations that are not inconsistent with the provision of the constitution regarding the citizenship and the status of anybody subject to the rules of citizenship;S.32(1). The law requires that whatever regulations made by the president in respect of citizenship shall be laid before the national assembly;S.32(2) CFRN.

THE LEGISLATURE

 The legislative powers of the federation is vested in the National Assembly which shall consist of the senate and the house of representatives; S.4(1) CFRN 1999. While the legislative powers of each state of the federation is vested in the State's House of Assembly; S.4(6) CFRN. The National Assembly shall have powers to make laws for the peace, order and good governance in respect of matters contained in the exclusive legislative list and matters contained in the concurrent legislative list; S.4(2)&(4). The matters in the exclusive legislative list is to the exclusion of state houses of assembly;S.4(3) CFRN.

 Where there is a conflict between the laws made by the state houses of assembly and the laws validly made by the national assembly, the laws made by the national assembly shall prevail; S.4(5) CFRN 1999. It should be noted that the legislature does not have the powers to make laws which oust the court's jurisdiction and does not have the powers to make laws with retrospective effect especially in criminal matters. Actions of the legislature are subject to the jurisdiction other ordinary courts of the land; S.4(8) & (9).

Procedure For Removing the Chief Executive

 The President/Vice president, Governor/Deputy-governor may be constitutionally and democratically removed from office in line with the cumbersome procedure laid down in the constitution. The procedure are as follows:

1. A notice of allegation in writing signed by not less than 1/3rd of members of the National Assembly shall be presented to the President of the Senate 143(2)(a). The particulars of the allegation shall in details state the nature of gross misconduct as allegedly done by the office holder;S.143(2)(b) CFRN.

2. Within 7 days of receiving the notice of allegation the President of the Senate shall cause a copy of the allegation to be served on the office holder and the speaker of the House of Representatives and other members of the National Assembly. In case there is a reply from the officeholder, the representation will be served on the members of the national assembly; S.143(2) CFRN 1999.

3. Within fourteen days of presenting the notice of allegation to the President of the Senate, each house of the National Assembly shall resolve by motion without any debate that the matter be investigated. Please note that the motion must be supported by 2/3rd majority of all members of the National Assembly; 143(3) & (4) CFRN.

4. Within seven days of passing the motion the Chief Justice of Nigeria shall at the request of the president of the senate appoint a seven man panel to investigate the allegations. The panel must consist of persons who are of unimpeachable integrity, non members of the legislature, non members of the public service and non members of a political party ;S.143(5).

 Please note that the officeholder has the right to defend himself in person and be represented through a counsel of his own choice 143(6) CFRN. It should be noted that the legal practitioner to be chosen must not be one suffering from any legal disability; Awolowo vs Usman Sarki 1966 ANLR. In this case, the appellant was denied the right to any counsel because the counsel he wanted to use was one that was barred by the immigration laws of Nigeria from entering into Nigeria. Thus, he could not be counsel to the accused. Another exception to choosing counsel of your own choice is if the counsel is under lawful detention.

 The panel is expected to submit the report to each house of the National Assembly within 3 months from the date of constitution of the panel members; S.143(7)(b) CFRN.

5. If the report of the panel does not indict the office holder the proceeding dies a natural death. In other words, no further action shall be taken in respect of the matter; 143(8).

 However, if the report of the panel indicts the officeholder, each house of the national assembly shall within fourteen days of the submission of the report consider the report and if by a resolution supported by 2/3rd majority of all members of the National Assembly the report is adopted, the officeholder stands removed from office;S.143(9) CFRN.

 Please note that the proceedings of the panel and national assembly shall not be subject to any question in the court of law; S.143(10). This implies that the procedure and proceedings are not subject to judicial review. This was the position of the law in the cases of Balarabe Musa vs Hamza, Abaribe vs Speaker Abia State House of Assembly. However the supreme Court in the case of Inakoju vs Adeleke has held that the court could review the proceedings of the legislature once there is evidence of non compliance with the provision of S.188(1)-(9) which is in pari materia to 143(1)-(9).

 Please note that as held in the above case, the sitting of the legislature must not be at an unparliamentary hour and unparliamemtary place. The members cannot be suspended for the purpose of impeachment as what the law requires is 2/3rd majority of all members not members present.

 Finally, what amounts to gross misconduct is grave violation of the constitution or misconduct as amounting to same in the opinion of the national assembly;S.143(11).

REMOVAL OF THE PRESIDENT BY THE EXECUTIVE

 The constitution lays down even procedure for removing the president or vice president by the Executive Council of the federation. The same applies to state Governors. The procedure is as stated in S.144 with respect to the President or Vice President and s.189 with respect to the governor or deputy governor.  By S.144 the executive council of the federation may remove the president or vice president by using the following procedure:

1. The two third majority of the executive council of the federation makes a declaration that the office holder is suffering from infirmity of body or mind. Which has rendered him permanently incapacitated from performing the functions of his office.

2. The declaration is given to the president of the senate who shall cause a copy to be served on the Speaker of the House of Representatives.

3. The President of the Senate appoints a five man panel which shall consist of experts that have attained a high degree of eminence in the field of medicine and the personal physician of the office holder.

4. If the five man panel certifies that the office holder is truly suffering from infirmity of body or mind which has permanently incapacitated him from performing the functions of his office a declaration shall be published in the official gazette of the federation. After the publication the office holder ceases to hold the office.

REMOVAL BY RESIGNATION

 The law provides for the procedure that should be adopted in a situation where the president, vice president, president of the senate, speaker of the house of representatives, governor, deputy governor and members of the legislative houses want to resign from office. By S.306 the president of the Federal Republic of Nigeria is required to direct his resignation to the President of the Senate who must quickly inform the speaker of the House of Representatives. The Vice President on the other hand is expected to direct his resignation To the President of the Federal Republic of Nigeria. The Governor is expected to direct his resignation to the Speaker of the State House of Assembly while the Deputy Governor is required to address his resignation to the Governor of the state.

 In the same vein the president of the senate is required to direct his resignation to the clerk of the national assembly. The same thing applies to the speaker of the house of representatives. Members of the legislature such as members of the senate, house of reps and members of each state legislative assemblies are required to direct their resignation to their various heads of the house. The provisions of S.306 are mandatory requirements for effective resignation.

 In the case of Ngilari vs Adamawa State House of Assembly, the plaintiff who was the Deputy Governor of Nassarawa State submitted his letter of resignation to the Speaker of the State House of Assembly instead of the Governor. When the Governor was impeached the Speaker of the House was purportedly sworn in as acting Governor. Thus, the plaintiff went to court to challenge the eligibility of the Speaker to become acting Governor, while the the Deputy Governor had not resigned at law. The court held that since the resignation was not to the proper authority(the governor), the resignation was null and thus, the plaintiff still remained the Deputy Governor and should be sworn in as acting Governor.

THE EXECUTIVE

 The executive powers of the federation are vested in the President of the Federal Republic of Nigeria. The President has the right to exercise the executive powers either in person or through his Vice President and Ministers of government or other public officers appointed for that purpose. On the other hand, the executive powers of a state of the Federation are vested in the State Governors who may exercise such powers either in person or through his deputy governor and commissioners in that state or other public officers appointed for that purpose. See generally: S.5(1) & (2) of the Constitution.

 It should be noted that the executive powers of a state governor is subject to the executive powers of the federation.

  While the president is expected to execute or implement the constitution and Acts of the National Assembly, the State Governor is expected to implement or execute the constitution and laws made by the House of Assembly. To this extent, the executive powers of the state should not be exercised in such a way as to:

• Impede or prejudice the exercise of the executive powers of the federation.

• Endanger the assets of the federal government in that state.

• Endanger the continuance of the federal republic of Nigeria. See generally S.5(3) CFRN 1999 (as amended).

 Please note that the president is required to seek a resolution of the two Houses of the National Assembly seating jointly before he can declare a state of war between Nigeria and another country. A resolution in this instance means simple majority of the members of the National Assembly seating jointly. Similar situation applies to when the President seeks to deploy members of the armed forces to another country. What is required here is condition precedent to taking the action.

 However, with respect to a limited combat duty outside Nigeria the president may deploy members of the armed forces without prior approval of the Senate but must within seven days of the actual combat seek the approval of the senate. The Senate must resolve within fourteen days on whether or not to approve the deployment. See generally S.5(5) CFRN 1999.