All daily Newspapers in the last few days have been brimming and dripping with details of the order made by an Enugu State High Court directing the removal from office of the Governor of Anambra State , Chief (Dr) Chris Ngige.

The removal of an elected Governor is not a matter to trifle with and it is for this purpose that a little attention will be devoted to an analysis of the issues arising from the Court Order as may be considered germane in the light of the Ruling of the Court, the full text of which was published at pages 2 and 3 of VANGUARD, Tuesday, 6th January, 2004.

The opening paragraph of the Ruling makes it clear that the Court's Jurisdiction was invoked for the purpose of hearing and determining an application for the enforcement of the fundamental rights of the Applicant , Hon. Nelson Achokwu, who at all material times was a member of the Anambra State House of Assembly. It is instructive to note that the Applicant claimed six different reliefs a breakdown of which shows that while reliefs 1,2,3,4,5 and 7 had a material bearing on the application for the enforcement of the Applicant's fundamental rights, relief six had no nexus with the context of such proceedings as far as human rights jurisprudence is concerned.

For our present purposes, it is appropriate to reproduce the text of the said relief which prayed for an "Order directing 1st respondent to remove 3rd respondent from office in the same manner he put him in office on 10th July, 2003" after having resigned as Governor of Anambra State and left therefrom. (Italics for emphasis, only). The reader must first ponder whether it was the 1st respondent , the Inspector-General of Police , who put the Anambra State Governor in office. Constitutionally speaking, it is only the people of Anambra State who can put a Governor into office.

The first issue which merits significant attention is whether the Enugu State High Court could under any guise assume jurisdiction for the purpose of determining whether the Governor of Anambra State had ceased to hold office by virtue of a purported letter of resignation submitted to the Anambra State House of Assembly? It is fitting to note that the Enugu High Court Ruling indicates that the affidavit of service of the process of the Enugu State High Court which was meant for service in Anambra State was sworn to by a Bailiff of the Enugu State High Court without concurrent action from the Sheriff of the Anambra State High Court.

Besides, the originating process, that is, the Motion on Notice for the enforcement of fundamental rights of the Applicant was served on the 24th of December, 2003 and hearing took place on the 2nd January, 2004 and Ruling was delivered on the same date. Proceedings for the determination of the question as to whether or not a person's fundamental rights have been violated are generally guided by the Fundamental Rights (Enforcement Procedure) Rules, 1979.

By virtue of the aforesaid Rules, any person who alleges that any of the Fundamental Rights provided for in the Constitution and to which he is entitled, has been, is being, or is likely to be infringed may, apply to the Court in the State where the infringement occurs or is likely to occur, for redress (Order 1 Rule 1). Order 1 Rule 2 of the Rules direct that no application for an Order enforcing or securing the enforcement within that State of any such rights shall be made unless leave therefor has been granted in accordance with the rules. Order 1 rule 3 directs that an application for such leave must be made ex parte to the appropriate Court and must be supported by a statement setting out the name and description of the applicant, the relief sought, and the grounds on which it is sought and by an affidavit verifying the facts relied on.

Order 2 Rule 1 provides that when leave has been granted to apply for the order being asked for, the application for such order must be made by notice of motion or by originating summons to the appropriate court, and unless the Court or Judge granting leave has otherwise directed, there must be at least eight clear days between the service of the motion or summons and the date named therein for hearing.

What deduction can be made from this? There is nothing in the Court's Ruling as published which gives an indication that the Judge directed a waiver of the eight day gap provided for in the rules. Consequently, it is safe to assume that the Judge intended to hear the application after the expiration of eight days reckoned from the date on which the Notice of Motion was served on the respondents. We need to emphasize that by the rule established by the Supreme Court in Akeredolu V. Akinremi (1985) 2 NWLR (Pt. 10) 787, (see also Auto Import Export V. Adebayo and 2 others (2002) 18 NWLR (Pt. 799) 554, the time for the doing of an act under rule of court or as may be ordered by a court is reckoned by reference to the Gregorian Calendar and the calculation is by simple arithmetic. Thus, in the computation of time, the limited time does not include the day of the date or of the happening of the event, but commences at the beginning of the day next following that day.

In addition, the act or proceeding shall be done or taken at the latest on the last day of the limited time and where the time limited is less than five days, no public holiday, Saturday, or Sunday shall be reckoned as part of the time. Finally, under most of the rules, when the time expires on a public holiday, Saturday or Sunday the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterwards not being public holiday, Saturday or Sunday. Between the 24th of December 2003, and the 2nd January, 2004, there were three days considered as public holidays. Two other days were a Saturday and Sunday. Was it reasonable to expect the respondents to respond to such monumental court process between the 29th and 31st of December to enable the Court hear the matter on the 2nd? At any rate, was the court itself on vacation within the period? A casual perusal of any of the uniform Civil Procedure Rules indicates that subject to the direction of the Chief Judge, sittings of Court for the dispatch of civil matters shall be held on every week-day except on any public holiday, during the week beginning with Easter Monday, during the period beginning on Christmas eve and ending on 2nd January next following.

However, where such an action is urgent, or a Judge at the request of all the parties concerned, agrees to hear the action, proceeding may be entertained during the Easter week or the Christmas period noted above. So far, there is nothing to indicate that the removal of a Governor from office merits urgency and at any rate, an application for an urgent hearing shall be made by summons in chambers, and the decision of the Judge on such an application shall be final. Clearly, there is no indication that any such application was made or heard by the Judge. Our tentative conclusion is that the proceedings were highly irregular, being unguardedly hasty.

We have come to this conclusion bearing in mind that the originating process namely, the notice of motion was issued by the Enugu State High Court and was meant for service in Anambra State. For the avoidance of doubt, the process of a court does not run outside the Court's jurisdiction except as provided by law. In the instant case under consideration, the relevant law is the Sheriffs and Civil Process Act. It is sufficient to note that as provided in the Act, such a process must bear an endorsement indicating the State which has issued the process and the State in which it is to be served. The more significant point to note is that section 99 of the Sheriffs and Civil Process Act aforesaid provides that the period specified in a writ of summons (which by definition includes any writ or process by which a suit is commenced or of which the object is to require the appearance of any person against whom relief is sought in a suit) for service outside the state of issue as the period within which a defendant is required to answer before the court to the writ of summons shall not be less than thirty days after service of the writ has been effected.

This provision came up for consideration before the Supreme Court in Sken Consult (Nig) Ltd & Anor. V. Godwin Ukey (1981) 1 S.C. 1. The Supreme Court held that, by virtue of section 99 of the Act under consideration, where a writ of summons originates in one state for service in another state it is mandatory that there should be a period of at least thirty days between the date of service and the date that the defendant is required to appear in court and that any proceedings taken place after the service and appearance by the defendant in court but before the expiration of the thirty days are premature and a nullity.

From available facts, the motion issued by the Enugu State High Court and served in Anambra State was heard before the expiration of thirty days. The Enugu High Court was in grave error by so proceeding.

Chief Awa Kalu (SAN), Attorney General and Commissioner for Justice, Abia State.

To be continued next week