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Honourable Justice Bassey Tambu Ebuta -VS- National Judicial Council

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

BEFORE HIS LORDSHIP HON. JUSTICE B. B. KANYIP, PHD

 

DATE: JULY 13, 2017

 

SUIT NO. NICN/ABJ/301/2016

 

BETWEEN

Honourable Justice Bassey Tambu Ebuta                                –                                          Claimant

 

AND

  1. National Judicial Council
  2. Governor of Cross River State of Nigeria
  3. Attorney-General of the Federation
  4. Hon, Attorney-General of Cross River State –                                       Defendants

 

REPRESENTATION

Two E. Tawo SAN and Mba E. Ukweni SAN, with Messrs. P. T. Akan, I. I. Okim, Emmanuel Okang, David Adegbe, Abang Odak Ogar, Evelyn Eyang Takon, Sorochi Happiness Nnaji, Rita Aidelebe, Nneka Ngbaragbor, O. D. Atoyebi, Obinna Omehe and Joseph Okulaja, for the claimant.

John Matthew and Justin Chuwang, with Rodney Adzuanha for the 1st defendant.

Ikoi. E. Ikona, Director Civil Litigation, Ministry of Justice, Cross River State, for the 2nd and 4th defendants.

  1. I. Okpoko, Assistant Director, Federal Ministry of Justice, with Habiba U. Chime, Assistant Chief State Counsel, for the 3rd defendant.

 

JUDGMENT

  1. The claimant is a Judge of the High Court of Cross River State suspended by the National Judicial Council (NJC), the 1st defendant in this matter. The claimant, sitting in Calabar Judicial Division, had granted an ex parte order for leave in Suit No. HC/MSC 286/2014 to commence an action by way of judicial review, to wit, certiorari to quash the proceedings of a Chief Magistrate. Following a complaint by one Dr (Mrs) Ekanem Cobham, the 1st defendant/respondent in that suit, the 1st defendant herein (NJC) suspended the claimant and recommended to the 2nd defendant (the Governor of Cross River State) to compulsorily retire the claimant as a Judge of the High Court of Cross River State. Dissatisfied, the claimant filed the instant suit on 24th August 2016 by way of a complaint (accompanied by the statement of facts, list of witnesses, witness depositions on oath, list of documents and copies of the documents to be relied at the hearing). The claimant is praying for the following reliefs:
  • A declaration that the proceedings and recommendations of the Investigating/Fact Finding Committee set up by the 1st defendant, comprising of its members, under the Chairmanship of Honourable Justice B. A. Adejumo, the President of the National Industrial Court of Nigeria, to investigate the allegations contained in the petition of one Dr (Mrs) Ekanem Cobham dated 2nd June 2015 together with the deliberations of the full Council of the 1st defendant on the matter recommending to the 2nd defendant the compulsory retirement of the claimant, are unconstitutional, illegal, unlawful and therefore null and void.
  • A declaration that the non-compliance and breach of Regulations 16, 17 and 18 of the National Judicial Council Judicial Discipline Regulations, 2014 by the 1st defendant in the proceedings leading to his suspension and recommending his compulsory retirement from office as a Judge of the High Court of Cross River State infringes on his constitutional right to fair hearing and therefore null, void and of no effect whatsoever.
  • A declaration that the purported suspension of the claimant from office as a Judge of the Cross River State High Court by the 1st defendant conveyed to him in writing by the Chairman of the 1st defendant, in his letter of June, 2016 with Reference No. NJC/S.9/CR.HC/11/1/99 in so far as it was based on the report and recommendation of the Fact Finding Committee of the 1st defendant, is unconstitutional, null, void and of no effect whatsoever.
  • A declaration that the purported recommendation for compulsory retirement of the claimant as a Judge of the Cross River State High Court by the 2nd defendant conveyed to him by the Chairman of the defendant, in his letter of 3rd June, 2016 with Reference No. NJC/S.9/CR.HC/11/1/99 in so far as it was based on the report and recommendation of the Fact Finding Committee of the 1st defendant, is unconstitutional, null, void and of no effect whatsoever.
  • A declaration that the tenure of the claimant as a Judge of the Cross River State High Court is still subsisting.
  • An order setting aside the proceedings and recommendations of the Investigating/Fact Finding Committee set up by the 1st defendant comprising of its members under the Chairmanship of Honourable Justice B. A. Adejumo, the President of the National Industrial Court of Nigeria together with the deliberations of the full Council of the 1st defendant on the matter recommending to the 2nd defendant the compulsory retirement of the claimant.
  • An order setting aside the suspension of the claimant from office by the 1st defendant as a Judge of the Cross River State High Court which fact was communicated to him by the Chairman of the 1st defendant vide a letter dated the 3rd day of June, 2016.
  • An order setting aside the recommendation for compulsory retirement of the claimant as a Judge of the Cross River State High Court on the recommendation of the 1st defendant vide its letter dated the 3rd day of June 2016.
  • An order of mandatory injunction directing the defendants to forthwith reinstate the claimant to his office as a Judge of the High Court of Cross River State and to pay him all his salaries, emolument, allowances and benefits from 1st June 2016 when the defendants withdrew those entitlements from the claimant.
  • An order of perpetual injunction restraining the 2nd defendant whether by himself or by his servants, officers, agents or privies or otherwise howsoever from accepting or acting on the recommendation of the 1st defendant to compulsorily retire the claimant from office as a Judge of the High Court of Cross River State.

 

  1. In reaction, the 1st defendant entered formal appearance and then filed its defence processes comprising of the respective statements of defence, list of witnesses, witness deposition oath, list of documents and copies of the documents. By order of Court granted on 5th January 2017, the 1st defendant was permitted by this Court to amend its defence processes. Though the 2nd, 3rd and 4th defendants were represented by Counsel, they did not file any defence although they led evidence under cross-examination in their own defence. The claimant responded by filing a reply to the 1st defendant’s statement of defence, list of additional witnesses, additional written statements on oath of the additional witnesses, list of additional documents and copies of the additional documents. All of these were regularized by this Court by order granted on 31st October 2016.

 

  1. At the trial, the claimant called 4 witnesses. The claimant testified on his own behalf as CW1; Leonard Ashata Awogor, a retired Civil Servant, testified as CW2 for the claimant; Mrs Okoho Archibong Henshaw, a Civil Servant in the rank of Senior Litigation Officer with Cross River State Judiciary, testified as CW3 for the claimant; and Chief Onyebueke Fidelis Obi, a Legal Practitioner in private practice, testified as CW4 for the claimant. For the 1st defendant, Abiola Mulikat Balogun, an Assistant Director (Admin) with the 1st defendant testified as CW1; the 1st defendant dispensed with the subpoena it initially applied for to bring in additional witness. The 2nd, 3rd and 4th defendants did not call any witness. At the close of trial, the parties respectively filed their final written addresses. The 1st defendant filed its final written on 16th February, 2017. The 2nd and 4th defendants filed their final written address on 10th March 2017. The 3rd defendant filed his final written on 10th January 2017. The claimant on his part filed two final written address. The first was on 10th March 2017 in response to the 3rd defendant’s final written address. The second was on 31st March 2017 in response to the 1st, 2nd and 4th defendants’ respective final addresses; and on 8th June 2017, the claimant filed a list of additional authorities, which list was copied to the other parties. No defendant filed any reply on points of law.

 

THE SUBMISSIONS OF THE 1ST DEFENDANT

  1. The 1st defendant submitted three issues for determination, namely:
  • Whether the Honourable Court has the jurisdiction to hear and determine this suit as presently constituted.
  • Whether the claimant has discharged the burden of proving his claims before the Honourable Court to be entitled to the grant of the reliefs sought.
  • Whether the claimant was afforded a fair hearing by the 1st defendant before arriving at its decision to recommend the retirement of the claimant to the 2nd d

 

  1. Regarding issue (1), the 1st defendant submitted that it is the plaintiff’s claim that determines jurisdiction and not the defendant’s defence, citing Tukur v. Government of Gongola State [1989] 4 NWLR (Pt. 117) 517 at 549; and that the jurisdiction of the Court is the sine qua non to any adjudication process undertaken by the Court as well as the power of the Court to hear and determine any proceedings before it, which can be raised at any stage of the proceedings even orally, referring to Ladoga v. INEC & 3 ors [2007] 12 NWLR (Pt. 1047) 119 at 111. To the 1st defendant, jurisdiction also pronounces on the competency of a Court or Tribunal to hear and determine a suit filed before it; and the competence of a court is determined in accordance with the criteria laid down in Madukolu v. Nkemdilim [1962] 2 SCNLR 341. The 1st defendant urged the Court to take judicial notice of the processes before it especially as to the fact that the address for service of the 2nd and 4th defendants is in Calabar, Cross River State, and that the 2nd and 4th defendants were only allowed 14 days to appear. The 1st defendant proceeded to refer to Order 7 Rule 10 of the National Industrial Court (NIC) Rules 2007, which provides that service of a process on a party outside the jurisdiction of the Court may be allowed by the Court; as well as Order 11 Rule 1(1) of the NIC Rules 2007 dealing with motions on notice. To the 1st defendant, a combined reading of these two Rules means that this Court may allow service out of jurisdiction if the claimant files an application to that effect and is granted leave to serve out of jurisdiction by the Court. That in the instant case, the claimant neither filed such an application nor was he granted leave by the Court to effect such service; and this makes the processes void as no prior leave was sought or obtained to serve out of jurisdiction, urging the Court to so find and hold in dismissing the claimant’s suit for being incompetent.

 

  1. The 1st defendant went on that such leave is a condition precedent to the commencement of the suit by the claimant against the 2nd and 4th defendants and failure to obtain such leave renders the processes in the suit of the claimant void, referring to Deros Maritime Ltd v. M.V. “MSC Apapa” & ors [2014] LPELR-22720(CA), NEPA v. Onah [1992] 1 NWLR (Pt. 484) 680, Kida v. Ogunmola [2006] 13 NWLR (Pt. 997) 377 at 394, NNPC v. Elumah [1997] 3 NWLR (Pt. 492) 195 at 204, Caribbean Trading & Fidelity Corporation v. NNPC [1992] 7 NWLR (Pt. 252) “1617 @ 180”, Nwabueze & anor v. Justice Okoye [1988] 4 NWLR (Pt. 91) 664, Miti v. NNB Plc [1997] 3 NWLR (Pt. 496) 737 at 743 and Chidobi v. Ujieze [1994] 2 NWLR (Pt. 328) 554 at 566. The 1st defendant then urged the Court to find and hold that clearly the processes in this suit are for service out of jurisdiction and mandatory leave to issue and serve the claim was neither sought nor obtained rendering this suit null, void and of no effect whatsoever and to accordingly strike out same for want of jurisdiction.

 

  1. The 1st defendant continued that every process for service out of jurisdiction must bear a mandatory endorsement that it is to be served out of the State it is issued and in the State it is to be served. That this is the requirement of the Sheriffs and Civil Processes Act Cap 56 LFN 2004, section 97 of which provides as follows:

Every Motion on Notice for service under this Part out of the State or the Capital Territory in which it was issued shall, in addition to any other endorsement or notice required by the law of such State or the Capital Territory, have endorsed thereon a notice to the following effect (that is to say) –

This summons (or as the case may be) is to be served out of the…………………State (or as the case may be)………………………. and in the………………………State (or as the case may be).

That an evaluation of the claimant’s processes in this suit reveals that the mandatory endorsement required by the said section 97 is not contained in the said processes. This we submit make the process void and robs the Court jurisdiction to hear and determine the claimant’s complaint. That the endorsement is a mandatory requirement of the Sheriffs and Civil Processes Act Cap S6 LFN, citing Odu’a Investment Company Limited v. Joseph Taiwo Talabi [1997] L.PELR-2232(SC).

 

  1. Additionally, the 1st defendant referred to section 95 of the Sheriffs and Civil Processes Act 2014, where a writ of summons is defined as every process requiring the appearance of a party in response to a suit. This, to the 1st defendant, includes the claimant’s complaint, urging the Court to so find and hold. On the strength of the above submissions, the 1st defendant urged the Court to find and hold that it lacks jurisdiction to hear and determine this suit and to accordingly dismiss the suit. Further still, that section 99 of the Sheriffs and Civil Processes Act 2014 provides that where a process is to be served out of jurisdiction, it shall grant a defendant not less than 30 days to appear, which was not the case in the instant suit since the 2nd and 4th defendants were given only 14 days within which to appear, a violation of the said section 99. That this infraction renders the complaint of the claimant void, urging the Court to so find and hold in dismissing the claimant’s suit for want of jurisdiction.

 

  1. Issue (2) is whether the claimant has discharged the burden of proving his claims as to be entitled to the reliefs he seeks. That the 1st defendant is a statutory corporation created by section 153(1)(j) of the 1999 Constitution, its functions provided for in paragraph 21(B) of the Third Schedule to the 1999 Constitution are public functions in execution of a public duty to investigate infractions by judicial officers amongst others. That it is the execution of this public duty that the claimant (who was affected by its decision) seeks to set aside its decision by these very proceedings. It is the 1st defendant’s submission that being a public body, the only evidence legally acceptable of its proceedings are Certified True Copies of its records and proceedings as provided for by section 106(a)(iii) of the Evidence Act 2011 and judicially interpreted in Maduka v. Ubah & ors [2014] LPELR-23966(CA), which then held that a public document may be proved by the production of a copy of the document certified by the officer who made or issued such official communication or by the records of the government department concerned certified by the head of the department. That Exhibits C1 to C8 proffered by the claimant in evidence during the entire course of this trial are photocopies of documents presented to the 1st defendant during its investigations. That those documents, having become part of the official documents of the 1st defendant in view of section 106(a)(iii) of the Evidence Act 2011, ought to be certified in line with section 102 of the Evidence Act before being presented in evidence before this Court. That having not been certified, the Court in evaluating the evidence presented by the claimant should discountenance Exhibits C1 to C8, citing Falke v. Biliri Local Govt. Council & ors [2016] LPELR-40772(CA), which, relying on Ileogu v. LPDC [2009] 17 NWLR (Pt. 1171) 614, Onobruchere v. Esegine [1986] 1 NWLR (Pt. 19) 799 and Araka v. Egbue [2003] 17 NWLR (Pt. 848) 1, held that the only categories of public documents admissible in evidence are the original documents themselves, and in the absence of such original copies, their certified true copies and no other. To the 1st defendant, if the evidence of the claimant as contained in Exhibits C1 to C8 is excluded from evaluation by the Court, what is left are the mere oral assertions of the claimant. That it is pertinent to state that documentary evidence cannot be altered by, added to or subtracted from by oral evidence as provided for by section 128 of the Evidence Act 2014. That those proceedings (having become documentary evidence) the oral evidence of the claimant should entirely be discountenanced in the final evaluation of evidence by the Court, urging the Court to so find and hold in deciding that the claimant has not discharged his burden of proof in the instant case and, therefore, his claims must fail. It is thus the 1st defendant’s submission that the evidence offered by the claimant is unsupported by any legally admissible evidence and should, therefore, be discountenanced by the Court.

 

  1. The 1st defendant went on that the contradictions of the evidence of party on material point goes to affect the entire evidence of such a party to the extent that the Court should reject the said evidence as it is precluded from choosing which piece of evidence to believe or disbelieve, referring to Fatuga v. Aina [2008] All FWLR (Pt. 398) 394 at 400, Whyte v. Jack [1996] 2 NWLR (Pt. 41) 407, Fatunbi v. Olanloye [2004] All FWLR (Pt. 225) 150; [2004] 9 MJSC 161 and Jolayemi v. Alaoye [2004] All FWLR (Pt. 217) 584; [2004] 9 MJSC 93. That the evidence presented by the claimant is self-contradictory on material points such as the claim that the 1st defendant’s Investigating Panel prevented his witnesses from testifying. That from the testimony of the claimant (contained in paragraph 13 of his witness statement on oath), the 1st defendant allegedly prevented his witnesses from testifying before the Investigating Panel of the 1st defendant. That this evidence is sharply contradicted by the evidence of the claimant’s witness (CW4) who testified under cross examination as follows:

I was not invited by the NJC. It was the claimant who invited me. When I got to Abuja in my hotel room, the claimant called me and told me the NJC no longer needed me. As well as other witnesses like Ugochukwu Ugoji, Capt. Atubom and his son. No, the testimony given in this case was not given to the Investigation Panel of the NJC.

 

  1. Furthermore, that the claimant’s CW2 and CW3 stated under cross-examination, that they were never invited to testify by the investigating panel of the 1st defendant. It is the 1st defendant’s submission that the claimant (who felt the witnesses who are necessary to his case) ought to have called them and informed the 1st defendant’s Investigating Committee that the witnesses were to be invited to testify on his behalf. This he did not do. That the corollary to this piece of evidence is that it was the claimant, who not only left his only witnesses (not one but three witnesses) in a hotel room away from the venue of the proceedings of the Investigating Panel of the 1st defendant, but also the same person who called the witness and told him he was not needed by the 1st defendant. That the claimant’s assertions that CW4, Capt. Atubom and his son were not allowed to testify (although available) by the Investigating Panel of the 1st defendant is not explained; this evidence will have been critical in evaluating whether his witnesses were excluded by the 1st defendant’s Investigating Panel or not. To the 1st defendant, this evidence exists and it is the claimant who has withheld it and, therefore, section 167(d) of the Evidence Act should be invoked to find that having withheld same, the evidence must be deemed unfavourable the claimant who has withheld it, citing Akindipo v. The State [2012] LPELR-9345(SC). That the heavy weather made on the refusal of the 1st defendant to allow CW4 to testify goes neither here nor there (the same witness who claims emphatically under cross-examination that he was invited by the claimant – another material contradiction). That if CW4 was a witness invited by the 1st defendant, the 1st defendant is entitled to refuse to take his testimony. That the claimant (who deemed his testimony crucial to his defence before the Investigating Committee) did not invite him; neither did he invite any of the witnesses who have so far testified at this trial as witnesses to his defence during the proceedings of the 1st defendant’s investigating committee. That it has been long established that a party is not entitled to call all witnesses, only those necessary to resolve a fact in issue, citing Ngbongha & ors v. Ebak & ors [2016] LPELR-41228(CA), which held that it is not the quantity of evidence that matters in an action but the quality.

 

  1. The 1st defendant continued that if CW4 was invited by the claimant, it was the claimant who opted to keep his own witness away from the venue of the sitting of the 1st defendant’s Investigating Panel. That it is indeed a material issue in these proceedings that the claimant was denied a fair hearing and if proved, this would go on to vitiate the 1st defendant’s proceedings. That the evidence of the claimant that the “1st defendant’s witnesses” were prevented from testifying for him at the proceedings of the Investigating Panel is contradicted by this piece of evidence (which is to the effect that it was indeed the claimant who told his witness to stay in a hotel and further informed him that he was not required). That this material contradiction in the evidence of the claimant goes to make the entire evidence of the claimant as to the fact that he was denied a fair hearing by the 1st defendant’s Investigating Panel unreliable to the extent that such should be rejected by the Court, urging the Court to so find and hold. Juxtaposing the claimant’s evidence with the 1st defendant’s Exhibit D1, that it is crystal that not only was the claimant afforded a hearing, his evidence and submissions were clearly and exhaustively considered before the Investigating Committee found as a fact that the claimant issued a court order in the suit (which became the subject of the petition to the 1st defendant) without sitting. Indeed, that it was the evidence submitted by the claimant that led to the findings made by the 1st defendant’s Investigating Committee (as seen from Exhibit D1). That he submitted documents that were not only withheld in the 1st instance but were also not properly certified as required by law in the 2nd instance, urging the Court to find that the claimant has not proved his claims in resolving this issue against the claimant and in favour of the 1st defendant.

 

  1. Issue (3) is whether the claimant was afforded fair hearing by the 1st defendant in arriving at the decision to recommend his retirement by the 2nd defendant. The contention of the 1st defendant on this issue is that the claimant was indeed afforded the right to fair hearing in the circumstance of this case. In the first place, that it must be appreciated that the 1st defendant’s investigative panel which investigated the petition against the claimant was not acting in a judicial capacity. Therefore, all that is required of it in satisfaction of the right to fair hearing as envisage under section 36 of the 1999 Constitution is for it to observe the twin pillars of the rules of natural justice which are audi alterem partem (translated into hear the other side) and nemo judex in causa sua (no one shall be a judge in his own cause), citing Akwa Ibom State Civil Service Commission & ors v. Akpan [2013] LPELR-22105(CA), Military Governor, Oyo State v. Adekunle [2005] 3 NWLR (Pt. 912) 294, Hart v. Mil. Gov. Rivers State [1976] 11 SC 211, Sokwo v. Kpongbo [2003] 2 NWLR (Pt. 803) 111, Ibori v. Ogboru [2005] 6 NWLR (Pt. 920) 102 and Baba v. NCATC [1991] 5 NWLR (Pt. 192) 388.

 

  1. In applying Akwa Ibom State Civil Service Commission & ors v. Akpan to the instant case, the 1st defendant urged the Court to find and hold that there was full observance and compliance with the rules of natural justice by the 1st defendant in reaching the decision to recommend the retirement of the claimant to the 2nd defendant. Indeed, that from pages 6 – 10 of Exhibit D1, the claimant was not only afforded a hearing, his case was exhaustively considered before a finding was made against him. Considered along with the evidence of CW3 who indeed confirmed that no reference was made to the Court’s diary (which was available in open Court) when the matter leading to the petition was purportedly heard, makes such evidence incredible creating the inescapable conclusion that such evidence is dis-believable, urging the Court to so find and hold. That the claimant’s weighty testimony to the fact that the case leading to the petition was conducted in full compliance with the High Court of Cross Rivers State (Civil Procedure) Rules 2008 itself needs more than a passing consideration particularly the fact that the case was subsequently adjourned to a Saturday, which was allegedly arrived at by computing 14 days from the grant of the ex parte order on 5th December 2014. That a simple computation of 14 days from 5th December 2014 falls on 19th December 2014. Undeniably, that the finding that he did not sit emanated from the evidence of the claimant in his responses to the 1st defendant. This piece of evidence juxtaposed with Exhibit D3, (an application for Certified True Copy of the Record of Proceedings in the suit leading to the petition against the claimant to the 1st defendant), reveals clearly that records of proceedings did not exist, confirming the fact that the claimant did not sit on 5th December 2014 as asserted, urging the Court to so find and hold in dismissing the claimant’s claims.

 

  1. Furthermore, that the claimant’s oral deposition that he was not afforded a fair hearing was sharply contracted by Exhibit D1 which shows as follows:
  • That he was notified of the petition made against him to the 1st defendant (as seen from Exhibit D4);
  • His responses to the said petition were elicited (as seen from Exhibit 5);
  • He made responses and representations to the 1st defendant (as seen from Exhibit D1);
  • He appeared and was represented by counsel (no less a Senior Advocate of Nigeria) at the proceeding of the 1st defendant’s Investigating Panel (as seen from Exhibits D1 and D7);
  • He made representations to the Investigating Committee of the 1st defendant (as seen from Exhibits D1 and D7);
  • His representations and documents were received in evidence at the hearing of the 1st defendant’s Investigating Committee and exhaustively considered (as seen from Exhibit D1);
  • He filed a written address in support of his submissions (as seen from Exhibit 7);
  • The findings of the Investigating Committee of the 1st defendant were made in full observance of the rules of natural justice now enshrined in section 36(5) of the 1999 Constitution (as seen from Exhibit D1); and
  • The 1st defendant deliberated the findings of its Investigating Committee before arriving at its decision to recommend the claimant’s retirement (as seen from Exhibit D8).

To the 1st defendant, therefore, other than allow the claimant write the verdict of the Investigating Committee, no rule of fair hearing was breached, urging the Court to so find and hold in dismissing the claimant’s claims that he was denied a fair hearing.

 

  1. The 1st defendant proceeded that section 6(5) of the 1999 Constitution creates the superior courts of record for the country including Cross River State where the claimant was a High Court Judge. That the High Court of Cross River State (being a State created by section 3 of the 1999 Constitution) is also one of the States whose High Court was created under section 270 of the 1999 Constitution and is a superior court of record as per section 6(5)(e) of the 1999 Constitution. That being a superior court of record, it is only its records that can be relied on to determine what happens in the Court and in this instance from the nature of the allegations made against the claimant that led to this action, it was whether the Court sat or not. The only true record of what transpired should be found in the records themselves. That as can be seen from Exhibit D1, the evidence of the claimant to the Investigating Panel of the 1st defendant is so perverse that no reasonable person could rely on same to make positive findings of fact. That to have found otherwise, the Investigating Committee of the 1st defendant was supposed to upstage and ignore the provisions of section 6(5)(e) of the 1999 Constitution, urging the Court to so find and hold. That the full proceedings of the 1st defendant showed a robust consideration of the claimant’s case and a consideration of the issues in contention with the Council’s members while debating the several disciplinary options to be taken and the words of the then Honourable Chief Justice of the Federation reverberate. In Exhibit D8, the then Honourable Chief Justice of the Federation was echoed saying: “the Chairman noted that there was no sitting by the Judge on the day he granted an Ex-parte Order which is indeed was a serious manipulation of Court proceedings”; and another member of the Council during the deliberations leading to recommendation that the claimant be retired is said to observe thus: “Another Member stated that the case was a clear evidence of lawlessness on the part of the Judge and wondered the necessity of sitting on a rent matter on a Saturday. He craved to know what was worse than a judicial Officer manipulating documents”.

 

  1. The 1st defendant went on that as can be seen from Exhibit D1, the evidence substantially relied on by the Investigating Panel of the 1st defendant was offered by the claimant himself. He presented a handwritten copy of a record of proceedings that had not only been altered, but also was Certified as the name of the Officer Certifying was missing from the said certification. Indeed, that the acts of the claimant before this Court, juxtaposed with the presentation of two similar copies of the same documents, one certified and the other not certified in evidence as seen from Exhibits C15 and Exhibit D9(d), goes on to corroborate the findings of the Investigating Panel of the 1st defendant. That an evaluation of these exhibits reveals that while one of the exhibits was uncertified, the other was. The 1st defendant then urged the Court to find and hold that the claimant was afforded a fair hearing in the proceedings of the 1st defendant leading to its findings and recommendations to the 2nd defendant that the claimant be retired.

 

  1. The 1st defendant continued that that a party’s case must be consistent at all stages of the matter in dispute, citing Okadigbo v. Emeka & ors [2012] LPELR-7839(SC). That the claimant’s case and claims before this Court cannot and should not be different from the case earlier set up before the 1st defendant’s Investigating Panel; as such the claimant’s CW2 – CW4 who testified before the Court have all admitted that they were neither present at the proceedings of the Investigating Panel of the 1st defendant nor did they testify thereat. That the corollary to these pieces of evidence is that their testimony was neither received nor did it form part of the decision reached by the 1st defendant to recommend the claimant’s retirement; and that their testimony cannot be introduced to retry the proceedings of the 1st defendant with a view to substitute the findings of the 1st defendant with the one being sought by the claimant from this Court. In conclusion, the 1st defendant urged the Court to dismiss the claimant’s suit with substantial costs in favour of the 1st defendant.

 

THE SUBMISSIONS OF THE 2ND AND 4TH DEFENDANTS

  1. To the 2nd and 4th defendants, the claimant, by a letter dated 3rd June 2016 and titled “Suspension from Office” was suspended from performing the functions of a judicial officer by the 1st defendant, who subsequently recommended to the 2nd defendant that the claimant be compulsorily retired as a Judge of the High Court of Cross River State. That while the 2nd defendant, the Governor of Cross River State of Nigeria, was still studying the letter of recommendation for the retirement of the claimant, the claimant filed this suit on 24th August 2016 claiming the reliefs he presently seeks; and none of which affects the 2nd and 4th defendants, who are just nominal parties. The 2nd and 4th defendants then submitted a sole issue for determination, to wit: whether, having regard to the circumstances of this case, the 2nd and 4th defendants can be held liable for the compulsory retirement of the claimant.

 

  1. It is the 2nd and 4th defendants’ submission that they are not liable in this suit for the compulsory retirement of the claimant herein. That section 292(1)(b) of the 1999 Constitution provides that a judicial officer may not be removed except by the Governor acting on the recommendation of the National Judicial Council (NJC) that the judicial officer be so removed for his inability to discharge the functions of his office or appointment (whether arising from infirmity of mind or of body) or for misconduct or contravention of the Code of Conduct. That the powers of the 1st defendant are specifically provided for under Part I of the Third Schedule to the 1999 Constitution, paragraph 21(d) of which provides that “the National Judicial Council shall have the power to recommend to the Governor the removal from office of the judicial officers specified in sub-paragraph (c) of this paragraph, and to exercise disciplinary control over such officers”. That an examination of the case of the claimant, comprising of the complaint filed in this Court as well as the evidence presented before this Court, reveals that the acts complained of by the claimant were not acts carried out or authorised by the 2nd and/or 4th defendants. It is thus submission of the 2nd and 4th defendants that the claimant has no cause of action against them, citing Dantata v. Mohammed [2000] 7 NWLR (Pt. 664) 176, where the Supreme Court defined the phrase “cause of action” as “a factual situation the existence of which entitles one person to obtain a remedy against another person. It is a fact or combination of facts which when proved would entitle a Plaintiff to a remedy against a Defendant”. Also cited are Arabambi v. Abi Ltd [2006] 3 MISC 61, AGF v. Abubakar [2007] 6 MJSC 1 and University of Jos v. Ikegwuoha [2013] 9 NWLR (Pt. 1360) 478.

 

  1. To the 2nd and 4th defendants, the suspension of the claimant, and subsequent recommendation for compulsory retirement, was done by the 1st defendant pursuant to the powers granted to it by the 1999 Constitution as well as the Judicial Discipline Regulations 2014. Furthermore, that nowhere in the case presented before this Court by the claimant has it been established that the 2nd defendant had already acted on the recommendation of the 1st defendant and compulsorily retired the claimant prior to the claimant’s institution of this suit. Accordingly,the 2nd and 4th defendants submitted that the claimant has failed to establish any cause of action against them entitling him to the remedies sought. That he has not placed before this Court any evidence of any action of the 2nd and 4th defendants giving him a cause of action or causing any damage. In conclusion, the 2nd and 4th defendants prayed the Court to strike out the 2nd and 4th defendants since no cause of action has been disclosed against them.

 

THE SUBMISSIONS OF THE 3RD DEFENDANT

  1. Like the case of the 2nd and 4th defendants, the case of the 3rd defendant is that there is no lis between the claimant and the 3rd defendant in this suit at all as the claimant suit did not disclose any cause of action against the 3rd defendant. The sole issue submitted by the 3rd defendant for determination is accordingly whether the claimant’s suit as constituted and conceived discloses any cause of action or lis against the 3rd defendant; and the 3rd defendant answered in the negative. That the 3rd defendant is not member of the 1st defendant; as by the doctrine of separation of power as enshrined in section 6 of the 1999 Constitution, the 1st defendant is a separate arm of Government. In other words its affairs and management are not within the control of the 3rd defendant as the Chief Law Officer of the Federation. The 3rd defendant then advanced three reasons why the Court should decline to grant the claimant’s reliefs as sought against the 3rd defendant. The reasons are:
  • By paragraphs 5 to 27 of the claimant’s statement of facts and paragraphs 7 to 26 and 28 to 33 of the witness statement on oath, the claimant failed to make out a lis or cause of action against the 3rd defendant in this suit.
  • The fulcrum of the claimant’s complaint is his compulsory retirement as a judge of the High Court of Cross River State and in this regard the 3rd defendant has no role to play. In other words, there is no lis or cause of action between the claimant and the 3rd defendant on record.
  • The sole witness of the 1st defendant also testified under cross-examination that the 3rd defendant did nothing in the process that led to the compulsory retirement of the claimant and that the 3rd defendant is not a member of the National Judicial Council (NJC) or in any manner whatsoever howsoever in control of the process that led to the recommendation for the compulsory retirement of the claimant.

 

  1. The 3rd defendant then referred to Uwazuruonye v. Governor of Imo State [2013] 18 NWLR (Pt. 1355) 28, where cause of action was defined. Additionally, that the 3rd defendant is not a proper party in this suit, citing Green v. Green [1987] 3 NWLR (Pt. 61) 480, where Oputa JSC (of blessed memory) at page 492 stated that: “Under our law one reason which makes it necessary to make a person a party to an action is so that he should be bound by the result of the action”. That in the instant suit, there is no relief sought by the claimant that will compel the 3rd defendant to perform any act in compliance with the order of this Court whatsoever or howsoever; as such the 3rd defendant is not a necessary party at all in this suit and, therefore, the Court should strike out his name or decline to grant any relief thereof. That during the trial of this suit, none of the witnesses either in their witness statement on oath or in their testimony made any statement alleging any act of wrong doing by the 3rd defendant against the claimant. Also, that the claimant throughout his evidence did not make any statement of the wrongdoing of the 3rd defendant against him. That the law is well settled that for a plaintiff to invoke the judicial powers of the court as enshrined in section 6(6)(b) of the 1999 Constitution, he must show the court that the defendant he sued has injured him one way or the other, citing Rebold Industries Ltd v. Magreola & ors [2015] 8 NWLR (Pt. 1461) 210 at 225. The 3rd defendant accordingly urged the Court to strike out the name of the 3rd defendant from this suit. At best, that the claimant’s suit against the 3rd defendant is a mere academic exercise and raises hypothetical issues; more so, as the 4th defendant who acts as the Chief Law Officer to the 2nd defendant is in the suit, citing Salik v. Idris [2014] 15 NWLR (Pt. 1429) 36 at 66 – 67. In conclusion, the 3rd defendant urged the Court not to grant any relief of the claimant against the 3rd defendant because there is no lis or cause of action disclosed against the 3rd defendant in the statement of facts and witness statements on oath.

 

THE SUBMISSIONS OF THE CLAIMANT

  1. The claimant first made out his case. To him, his case is that as a judge of the High Court of Cross River State and in the course of his duties and functions he was assigned Ugochukwu Chijioke v. Dr. (Mrs) Ekanem Cobham & anor Suit No. HC/MSC 286/2014 on or about 5th December 2014. The said suit commenced by way of motion ex parte seeking leave of the court for the applicant to apply for a judicial review by way of certiorari to quash the judgment and orders of His Worship E. E. Itam (Mrs), Chief Magistrate Grade 1, sitting at the Chief Magistrate Court No. 2, Calabar in Dr (Mrs) Ekanem Cobbam & anor v. Ugochukwu Chijioke Suit No. MC’MSC 143/2014. That guided by the applicable Civil Procedure Rules of the High Court of Cross River State, to wit, Order 40 Rule 3 thereof, he granted the said leave for the applicant to commence the said judicial review proceedings. That he performed his duties as a judge by entertaining the matter assigned to him in open court and issued the relevant order and ruling which he delivered on the same Friday 5th December 2014 in view of the urgency as contained in the affidavit of urgency, to wit, someone was locked in the premises subject property of the suit and no more. That despite acting judicially and judiciously, the 1st respondent in that suit rather than appeal against the decision of the claimant wrote a petition to the 1st defendant.

 

  1. The claimant continued that the applicant in Suit No. HC/MSC 286/2014 then filed a motion on notice on 8th December 2014, after the claimant granted leave on 5th December 2014, while the 1st respondent/defendant in like manner filed on 22nd December 2014 a motion on notice seeking a dismissal or striking out of the suit and discharging the order ex parte made by this claimant on 5th December 2014 and therein admitted that this claimant sat in open court and made the ruling of order on 5th December 2014. That the motions were still pending when the Cross River State High Court proceeded on christmas break on 24th December 2014, which culminated in the national strike by Judicial Staff Union of Nigeria (JUSUN), which commenced on 2nd January 2015 to 15th September 2015 where no court in Cross River State sat throughout the period of the strike action. That the Honourable Chief Judge of Cross River State retrieved the case file from the claimant immediately he received the petition of the said Dr (Mrs) Ekanem Cobham and never returned same to him. That the 1st defendant in this suit did not consult its own laid down rules for the discipline of a judicial officer, which said rules are mandatory. They include regulations 7(5), 7(7), 11(2)(a), 11(2)(d), (e) and (f) or 14(2) of its Judicial Discipline Regulations 2014 nor were there other allegations of misconduct against the claimant. That the claimant was not given the opportunity of fair hearing as petitioner did not testify nor call witnesses nor were the witnesses of the claimant given opportunity to testify before its investigating committee of the 1st defendant, nor was cross-examination allowed or held. That the son of the petitioner in reaction made a statement on the matter on 6th October 2015 in reaction to the said petition against the claimant, so also did Ugochukwu Chijioke swear to an affidavit against the petition on 8th August 2016.

 

  1. The claimant went on that he reacted to the petition of the said Mrs. Cobham and was thereafter invited to appear before the 1st defendant’s investigating committee and believed he had answered the petitioner’s allegation satisfactorily; but surprisingly, the 1st defendant suspended the claimant by a letter dated 3rd June 2016 and recommended to the 2nd defendant to compulsorily retire him. That the 1st defendant being in a hurry to discipline him, failed to comply with the relevant rules and regulations relating to the discipline of a judicial officer by also failing to observe rules 14, 16, 17 and 18 of the said Judicial Discipline Regulations 2014, the extant regulations at all times material to this suit. The claimant contended that the acts of the 1st defendant were unjustified and without basis, highhanded and harsh as the 1st defendant acted without powers, denied him fair hearing and failed to evaluate the evidence before it in arriving at its decisions and recommendations.

 

  1. The claimant then submitted four issues for determination, namely:
  • Whether the Honourable Court lacks the vires or jurisdiction to hear and determine the claimant’s suit as constituted.
  • Whether having regard to the 1st defendant’s noncompliance with its Regulations, to wit, National Judicial Council Judicial Discipline Regulations 2014, and the rules of natural justice, the claimant was accorded fair hearing before the decision to recommend his compulsory retirement from the Cross River State High Court Bench was reached.
  • Whether having regard to the circumstances of this case and the totality of evidence adduced before the Court, the claimant is entitled to the reliefs sought.
  • Whether from the circumstances of this case, the 2nd, 3rd and 4th defendants are necessary and/or nominal parties in this suit.

 

  1. On issue (i), borne out of the 1st defendant’s preliminary objection as to jurisdiction raised in its final written address, the claimant noted that the said objection is predicated on the plank that the originating processes in this suit were issued and served on the 2nd and 4th defendants outside the jurisdiction of this Court without leave, the processes were not marked for service outside jurisdiction and the 2nd and 4th defendants were not given up to 30 days to enter appearance. To the claimant, the Court must note that the party raising this objection is the 1st defendant while the parties allegedly affected are the 2nd and 4th defendants; as such the 1st defendant has no locus to challenge the alleged infraction if any, on the right of the 2nd and 4th defendants. It is the claimant’s submission that the 1st defendant is not in a position to complain of the breach or non-compliance i.e. issuance and service of the originating processes on the 2nd and 4th defendants out of jurisdiction of this Court. That the provision of sections 97 and 99 of the Sheriff and Civil Process Act was meant to protect and for the benefit of the 2nd and 4th defendants and not the 1st defendant; as such the right to complain of the aforesaid breach or non-compliance falls on the 2nd and 4th defendants who can claim not to be subjected to the jurisdiction of the Court, referring to Mobil Prod. (Nig.) Unltd v. LASEPA [2002] 18 NWLR (Pt. 798) 1.

 

  1. The claimant proceeded that assuming without conceding that the 1st defendant has the locus to complain of the said non-compliance, a violation of sections 97 and 99 of the Sheriff and Civil Processes Act and Order 7 Rule 10 of the Rules of this Court, 2007 makes the said originating processes voidable not void. That the rights created therein are in a manner that they can be waived. That a similar issue came up at the Court of Appeal recently in the case of Davandy Finance and Securities Ltd & ors v. Aki & ors [2015] LPELR-24495 where a party sought to raise objection for the first time at the Court of Appeal on the strength that jurisdiction can be raised at any time to argue that the trial court lacked jurisdiction over the matter because the originating processes were issued without leave and the mandatory endorsement, the Court in its wisdom held that non-compliance with section 97 and/or section 99 of the Sheriffs and Civil process Act and the rule of court requiring leave of the court or a judge for a writ to be served out of jurisdiction renders the writ and/or service of it voidable and the defendant who complains of such non-compliance is entitled ex debito justitae to have same set aside provided he has not taken fresh steps in the matter which will amount to a waiver of the irregularity complained of. That the Court further held in the same judgment that the issue of leave to issue and serve outside jurisdiction or mandatory endorsement does not go to the jurisdiction of a court, but one that touches on compliance or non-compliance with rules of court i.e. a matter of procedure, which does not go to the jurisdiction of the court.

 

  1. On this basis, the claimant submitted that it is wrong to raise the objection at the address stage, parties having already joined issues and now at the concluding stage of the proceedings, which amounts to a waiver of its right to complain, citing Saude v. Abdullahi [1989] 3 NWLR (Pt. 116) 387 at 405. That Odu’a Investment Company Limited v. Joseph Taiwo Talabi [1997] 10 NWLR (Pt. 523) 1 at 51 is very apt in addressing the objection even though cited by the 1st defendant out of context. That it was a decision of the full court of the Supreme Court where the Court per Ogundare JSC (of blessed memory) after reviewing caselaw authorities held as follows:

…non-compliance with section 97 and/or section 99 of the Sheriffs and Civil Process Act and the rule of court requiring leave of the Court or a Judge for a writ to be served out of jurisdiction renders the writ and/or service of it voidable and the defendant who complains of such non-compliance is entitled ex debito justitiae to have same set aside as was done in Skenconsult, Nwabueze and NEPA, provided he has not taken fresh steps in the matter which will amount to a waiver of the irregularity complained of. Where the latter is the case, his application to set aside must be refused. I need point out, for the avoidance of doubt, that the power to set aside is without prejudice to the power of the Court, to allow, in appropriate cases, such amendments to be made and to make such order dealing with the proceedings generally as it thinks fit.

 

  1. T the claimant, the essence of leave of court to issue a writ of summons for service outside jurisdiction is to determine whether the person sought to be served outside the jurisdiction can be conveniently tried elsewhere in the interest of all the parties and for the ends of justice. Thus, the defendant did not complain that they would suffer a great inconvenience if the trial was held in Abuja. It, therefore, means that the objection to the hearing of the suit by the Court in Abuja was based on pure technicality which goes only to form, citing Broad Bank of Nigeria Ltd v. Olayiwola & Sons Ltd [2005] 3 NWLR (Pt. 912) 434 at 454. Moreover, that a party cannot be punished for the negligence or tardiness of the registrar in the performance of his duty, and whose duty is to endorse the notice that the writ of summons is for service outside jurisdiction of the trial. Thus the claimant cannot be punished for the failure of the registrar to so endorse the writ of summons, citing Broad Bank of Nigeria Ltd v. Olayiwola & Sons Ltd (supra) at 456 – 457. That the provisions of sections 97 and 99 of the Sheriff and Civil Process Act are directory and not mandatory; therefore, they can be waived by the party for the benefit of whom it was made, citing Odu’a Investment (supra). In view of the foregoing, the claimant urged the Court to dismiss the objection and resolve this issue in his favour.

 

  1. Issue (ii) is whether having regard to the 1st defendant’s non-compliance with its 2014 Regulations, and the disregard of the rules of natural justice, the claimant was accorded fair hearing before the decision to recommend his compulsory retirement from the Bench was reached. To the claimant, a breach of fair hearing in any proceedings, judicial or quasi-judicial, renders such proceedings a nullity, referring to Eshenake v. Gbinijie [2005] All FWLR (Pt. 289) 1270. That by the constitutional provisions, the 1st the defendant, NJC, is empowered to discipline, amongst other functions, judicial officers. That pursuant to its disciplinary powers the 1st defendant made regulations, to wit, National Judicial Council Judicial Discipline Regulations 2014 (Exhibit C7), to govern and regulate the process of discipline of judicial officers. Regulation 7 of Exhibit C7 provides the requirements for a complaint/petition against a judicial officer, which must be complied with before such complaint or petition would be accepted and entertained by the 1st defendant, NJC. Regulation 7(5) provides that: “A complaint must be signed by the complainant and accompanied by a verifying affidavit deposed to by the complainant before a court of record”. And Regulation 7(7) stipulates that: “The complaint must be verified in writing the truth of the facts alleged in the complaint. Any complaint not so verified shall be rejected for filing by the secretary or by the Preliminary Complaint Assessment Committee also known as the Sifting Committee”. That in interpreting regulations 7(5) and 7(7), the active word of “MUST” used by the draftsman in the regulations apparently implies a compelling and mandatory requirement and imperative with the failure to do so resulting in negative consequence, citing Associate Discount House Limited v. Amalgamated Trustees Limited [2006] 10 NWLR (Pt. 989) 653. That this literally implies that where these regulations are not followed and adhered to strictly the petition becomes null and void.

 

  1. To the claimant, the Black’s Law Dictionary 6th Edition at page 1561 defines verification as confirmation of correctness, truth or authenticity by affidavit, oath or deposition. That affidavit of truth of matter stated and object of verification is to assure good faith in averments or statements of a party sworn or equivalent confirmation of truth. That a verifying complaint typically must have an attached affidavit of the petitioner to the effect that the complaint is true, referring to Umeakuana v. Umeakuana [2009] 3 NWLR (Pt. 1129) at 598, Umukoro v. NPA [1997] 4 NWLR (Pt. 502) 656 and Ohakim v. Agbeso [2010] 19 NWLR (Pt. 1226) SC 172. That from the evidence before the Court, the petition against the claimant i.e. Exhibit D4 was neither accompanied by a verifying affidavit nor a statement verifying the truth of the facts of the alleged complaint as mandatorily required by regulations 7(5) and 7(7). That this fact was confirmed by DW1 in her testimony under cross-examination where she admitted impliedly that the requirement of a verifying affidavit in support of a petition cannot be waived when she stated under cross-examination thus: “Yes it is a requirement that a verifying affidavit should accompany a petition before it can be entertained”. The claimant referred to paragraph 12 of the minutes of the 76th meeting of the National Judicial Council (Exhibit D8) where a member of the 1st defendant Council, Hon. Justice S. A. Akintan, CON (Rtd), drew the attention of the 1st defendant to the regulation requiring accompanying verifying affidavit for a complaint to be entertained suggesting that there should be a provision where the requirement could be waived such as in the case of judicial officers; but another member pointed out that the essence of the affidavit deposed to even by law enforcement agencies while complaining against the conduct of a Judge, is to forestall perjury. To the claimant, that portion of the minutes confirms that a verifying affidavit as an accompaniment of a complaint or petition is mandatory and cannot be waived. That if an act is void, then it is in law a nullity; it is not only bad, but incurably bad. There is no need for an order of court to set it aside. It is automatically null and void without much ado, though it is sometimes necessary to have the court to declare it to be so; and every proceeding which is founded on it is also bad and incurably bad as one cannot put something on nothing and expect it to stay there, citing Macfoy v. United African Company Ltd “[1961] 2 NWLR 1405”, Memmeh v. Hajo [2016] All FWLR (Pt. 831) 1468 at 1484 – 1485 and Fabunmi v. COP Osun State [2009] 5 NWLR (Pt. 1164) 229. The claimant then submitted that on the strength of the foregoing, in the absence of a verifying affidavit to the purported petition and also the complaint or petition not having been verified in writing, the truth of the fact so alleged renders the petition ab initio incompetent and a nullity; the consequence of which is that there was no petition against the claimant before the 1st defendant.

 

  1. The claimant went on that the 1st defendant through the investigating committee also failed to comply with Regulation 16(1) of the Judicial Discipline Regulations 2014 requiring that its draft report; or part of the report; or a summary of the report excluding its recommendations be forwarded to the subject Judge and the complainant and invite each of them to make representation about the report within fourteen days. That the report was not sent to the claimant for it to make representation a fortiori a breach of his fundamental right to fair hearing. The claimant continued that he is not unmindful of the word “may” used in Regulation 16(1), which implies a discretion. However, that there are circumstances where the word “may” will connote “shall” or “must”, citing Iyoho v. Effiong [2007] 11 NWLR (Pt. 1044) 31 at 48, where the Supreme Court referring to the Black’s Law Dictionary, 8th Edition page 1000, which defined “may” inter alia as “Loosely, is required to; shall; must…In dozens of cases, courts have held may to be synonymous with shall or must, usually in an effort to effectuate legislative intent”. That Regulation 16(1) was meant to accord the parties fair hearing and any interpretation of that regulation that will effectively diminish the right to fair hearing will be contrary and offensive to the rules of natural justice; therefore the failure to comply with the said regulations amounts to a denial of fair hearing to the claimant. Furthermore, that Regulation 17(1) provides that: “The council shall before it considers the report of the investigating committee forward a copy to the subject judge”. The claimant then asked what is the essence or intendment of Regulation 17(1), which is mandatory bearing in mind the word “shall” in the regulation; and sneered that the import and object of the regulation is to give the subject Judge an opportunity to make representation on the report of the investigating committee to the Council, if he so desires before the council’s consideration of the report. That the 1st defendant did not comply with the regulation by not forwarding a copy of the said report to the claimant before a decision was taken on it, which occasioned a miscarriage of justice by depriving the claimant fair hearing in contravention of section 36 of the 1999 Constitution.

 

  1. To the claimant, the position of the law on employment is that where the basis of an accusation is a written report, the employee shall be given a copy of the report or that part that is relevant to his accusation. That where the report is not made available to the employee, the Court is likely to declare any proceedings arising thereof as unfair and invalid, citing Wilson v. Attorney-General of Bendel State [1985] 1 NWLR (Pt. 4) 577 SC and Bello v. NEPA [1978] 1 LRN 200. That in the exercise of its disciplinary powers, the investigating committee of the 1st defendant and the 1st defendant did not afford the claimant fair hearing. That for a hearing by a judicial, quasi-judicial body or tribunal to be fair, the right of the party affected must include the following:
  • To be present all through the proceedings and hear all the evidence against him.
  • To cross-examine or otherwise contradict all the witnesses that testify against him.
  • To have, read before him all the documents tendered in evidence at the hearing.
  • To have disclosed to him the nature of all relevant and material evidence including real evidence.
  • To know the case he has to meet at the hearing and to have adequate opportunity to prepare for his defence; and
  • To give evidence by himself, call witnesses if he likes and make oral submissions either personally or through counsel of his choice, referring to Judicial Service Commission of Cross River State v. Young [2013] 11 NWLR (Pt. 1364) 1 at 28.

 

  1. That another fundamental breach of the claimant’s right to fair hearing in the proceedings leading to the decision of the 1st defendant recommending the removal from office by compulsory retirement of the claimant is the fact that the petitioner did not adduce any evidence in support of her complaint before the investigating committee, which deprived the claimant from cross-examining or contradicting her evidence, citing National Electric Power Authority v. Ango [2001] 17 WRN 142 CA. Additionally, that the claimant was deprived of calling his witnesses, considering the fact that the evidence of his witnesses were very vital to the investigation. That the investigating/fact finding committee just did what they deemed fit without due regard to the law and regulations, citing R v. BBC, ex parte Lavelle [1982] IRLR 404, which held thus:

An employee who is accused of wrongdoing should be given adequate time to prepare his defense. He needs time to read through the allegations made against him, search for facts to defend himself, obtain witnesses who would testify in his favour where an oral hearing is called for, hire the services of a legal practitioner, if possible. Thus, the time needed to prepare his defense hinges on such factors as the nature of the charge and the source and kind of evidence needed to answer it.

To the claimant, there is nothing in Exhibit D1, the report of the investigating committee, to show that the petitioner testified at all before the committee not to talk of whether under oath or by affirmation or recorded, neither was there any recording of any oral testimony, nor transcript or electronic recording of the proceedings in contravention of regulation 14(2) of the Judicial Discipline Regulations 2014.

 

  1. Furthermore, that Exhibit D1 indicated that the petitioner mentioned some persons, namely, the Chief Bailiff of the High Court, the Registrar whom she allegedly applied to for the record proceedings of the 5th day of December 2014 and the Court Clerk who told her that the claimant’s court did not sit on the 5th day of December 2014. That these persons were neither called by the petitioner nor the investigating committee as witnesses. That the investigating committee relied on the said evidence which credibility was never tested under cross-examination by the claimant having been deprived the opportunity to do so. That one of the witnesses invited by the investigating committee of the 1st defendant, Ugochiikwu Chijioke, was not allowed to testify. Curiously, that the said Ugochukwu Chijioke was the applicant in Suit No. HC/MSC286/20l4 subject of the petition whose testimony was relevant and material to the investigation. The other witnesses who came at the instance of the claimant but were not allowed to testify, were Captain Akabom Bassey, Bassey Akabom Bassey and Chief Onyebueke Fidelis Obi, counsel to the applicant who filed the application ex parte in Suit No. HC/MSC286/2014. Furthermore, that the statements on oath of three of witnesses were never considered by the committee. To the claimant, the rule is that the disciplinary panel should not take irrelevant considerations into account nor should it close its eyes to relevant considerations when making its decisions. That the panel is required to consider the evidence as a whole, not merely the evidence in support of the employer’s view or assumption. In addition, that a person entrusted with discretionary powers must direct himself properly in law; he must pay his attention to the matter which he is bound to consider, citing Iwuji v. Federal Commissioner for Establishments [1985] 1 NSCC 580. That in the instant case, the investigating/fact finding committee did not at any material time in the course of the investigation call any single witness including the present witnesses who testified in this Court, Registrar and the Court Clerk at that material time in respect of the case at Cross River State High Court which gave birth to the petition.

 

  1. The claimant continued that a combined reading of paragraphs 10.5 and 10.6 of the amended statement of defence of the 1st defendant shows that “though the claimant filed a written address in his defence which was not considered by the investigating committee rather it was the finding of facts there were made against the Claimant”. That it is a clear breach of the claimant’s fair hearing arising from the committee’s failure and or refusal to consider the entire proceedings inclusive of the claimant’s written address and arriving at its findings and report. That the committee made out issues suo motu without hearing the parties and used same to decide the matter. That it is better that the parties raise and argue the issues themselves, citing Kemmer v. Okolo [2015] All FWLR (Pt. 804) 2001 at 2013. That fair hearing or lack of it lies in the procedure followed in the determination of a case; and where there is denial of fair hearing in any judicial proceedings, that proceedings will be declared a nullity, citing Chidoku v. First City Finance Co. Ltd [2001] 2 NWLR (Pt. 697) 216. That where the parties adopt a procedure or a course of action not authorized by law or specifically prohibited by it, the court (or panel) is under a duty to reject such a course of action, as parties “cannot by conduct or cannot alter the constitution or statute”, citing Abdulkareem v. Olufeegbe [2006] 17 NWLR (Pt. 1008) 280. That an action which is null and void cannot be waived being a mandatory statute, referring to Gbademosi v. Nigerian Railway Corporation [2006] LPELR-11668 and Uchendu v. Ogboni [1999] 5 NWLR (Pt. 603) 337. That it follows that the claimant cannot be said to have waive the regulations of the 1st defendant for discipline as a judicial officer.

 

  1. The claimant referred to Regulation 14(2) and (8) of the National Judicial Council Judicial Discipline Regulations 2014, which states thus:

2) All testimony taken at the hearing shall be given under oath or affirmation and recorded.

 

8) The investigating Committee must arrange for any evidence given orally to be recorded in a transcript or by electronic recording.

In the same manner, that Regulation 14(5) of the same Regulations states thus:

At any hearing of the investigating Committee the subject Judge has the right to present evidence, to compel the attendance of witnesses, and to compel the production of witnesses to cross examine, in person or by Counsel, committee witnesses.

That assuming but not conceding that such measures were taken, there is no evidence before the Court to prove same; as a result, one cannot but question the validity of the report presented to the 1st defendant by the investigating/fact finding Committee. That the 1st defendant has failed, refused and or neglected to put before this Court the proceedings of the investigating committee of the 1st defendant to show what transpired and establish whether due process or the rules of natural justice was adhered to or whether the claimant was accorded fair hearing. That Exhibit D3 is the report which does not convey what transpired before the investigating committee. That the withholding of the said proceedings, if any, is fatal and detrimental to the 1st defendant’s case.

 

  1. To the claimant, if the Regulation has a set of laid down rules to follow by the investigating/fact finding Committee and they still breached such rules, what consciously comes to one’s mind is the rationale behind such action. That if the Committee had no ulterior motive to be bias in their report why then did they not make provisions of the requirements set out by the regulation. That it is pertinent to point out that the removal of a judicial officer from office is constitutional matter, which requires due process. That before “a state judicial” can be removed from office by the NJC, the removal must be recommended by the State Judicial Service Commission as required by the Third Schedule Part II paragraph C 6(a) and (b) of the 1999 Constitution, which provides thus:

The Commission shall have power to-

  1. a) ……………………………
  2. b) subject to the provisions of this Constitution, to recommend to the National Judicial Council the removal of the judicial officers specified in sub paragraph (a) of this paragraph.

That DW1 in her testimony under cross stated that the 1st defendant did not receive any recommendation from the Cross River State Judicial Service Commission in respect of the claimant’s removal.

 

  1. The claimant went on that where an employer dismisses or terminates the appointment of an employee on grounds of misconduct, all that the employer needs to establish to justify his action is to show that the allegation was disclosed to the employee and that he was given a fair hearing. That is to say, that the rules of natural justice were not breached, and that the disciplinary panel followed the laid down procedure. That the 1st defendant has failed to show that it complied with the foregoing. Consequent upon the foregoing arguments, it is the claimant’s submission that the decision of the 1st defendant recommending the compulsory retirement of the claimant from office as a judicial officer is unconstitutional, null and void in the face of lack of fair hearing accorded him and non-compliance with the regulations of the Judicial Discipline Regulations 2014 of the 1st defendant, urging the Court to resolve this issue in favour of the claimant.

 

  1. Issue (iii) is whether the claimant is entitled to the reliefs sought. To the claimant, the 1st defendant in its statement of defence admitted paragraphs 1 to 9 of the statement of facts. For paragraphs 5, 6 and 7, that the 1st defendant stated that it was not in a position to admit or deny same, which is an admission. However, it is the claimant’s submission that the facts contained in paragraphs 5, 6 and 7 of the statement of facts were established by following evidence:

Paragraph 5 – by Exhibit C3, performance evaluation for judicial officers, which was not controverted was used to prove the facts in paragraph 5.

Paragraph 6 – Exhibit C23, register of assigned cases to the court, and the evidence of CW2 and CW3 both in chief and under cross-examination to the effect that the case, subject matter of the petition, was assigned to the court on 5th December 2014.

Paragraph 7 – Has to do with the applicable rules of court for judicial review. Order 40 rule 3 of the Cross River State High Court Civil Procedure Rules the applicable rule is very clear and unambiguous.

That the 1st defendant in its paragraph 5.0 of the amended statement of defence also admitted paragraphs 10 to 14, 15(C) and 16 of the claimant’s statement of facts where it stated that the merits or demerits of the claimant’s decision in Suit No. HC/MISC/286/2014 was not the subject of the investigation or findings leading to the decision of the 1st defendant against the claimant. That it is trite law that what is admitted needs no proof.

 

  1. The claimant went on that by the admissions of the 1st defendant the issue in contention is narrowed down to the following sub-issues:
  • Whether or not the claimant sat on December 5, 2014 to make the orders in Suit No. HC/MISC/286/2014 subject of the petition culminating to the finding of the investigating committee of the 1st defendant and the subsequent decision of the 1st defendant subject of the claimant’s action hereof.
  • And as a corollary whether the findings of the investigating committee that the claimant did not sit to make the orders in Suit No. HC/MISC/286/2014 and the eventual decision by the 1st defendant thereof was justified.

 

  1. On the sub-issue of whether or not the court sat on December 5, 2014 before making the orders in Suit No. HC/MISC/286/2014, it is the claimant’s submission that the testimony of all the claimant’s witnesses (CW 1 – CW4) points to the fact that the claimant sat in open court on the said date and made the orders in Suit No. HC/MISC/286/2014. That the evidence of the said witnesses was neither challenged, controverted nor discredited by the defendants at the trial. That there was evidence before the Court that the said suit was assigned to the claimant’s court on December 5, 2014 by the Administrative Judge as shown in Exhibit C23. Exhibits Cl1, C11(a) and C16, the proceedings of the court, ruling and cause list for the 5th day of December 2014 attest to the fact that the court sat on December 5, 2014. Furthermore, that the petitioner admitted on oath in Exhibit C13, affidavit of Dr (Mrs) Ekanem Cobham in support of motion, that the claimant sat.

 

  1. On the point of whether the investigating committee of the 1st defendant was right in its findings that the claimant’s court did not sit on 5th December 2014 before making the orders in Suit No. HC/MISC/286/2014, that the committee appeared to have relied on the allegations in the petition (Exhibit D4) which was not proven without considering the response to the petition by the claimant (Exhibit C8) who was the respondent thereof; more so, when there was no oral testimony of the petitioner. That the committee was gravely in error when it relied on the court’s diary of 4th December 2014 to conclude that the court did not sit on 5th December 2014 when the case was assigned to the court on 5th December 2014 and, therefore, the case should not appear or reflect in the case dairy of the previous day i.e. December 4, 2014.

 

  1. That at the hearing before the committee of the 1st defendant, the claimant was represented by counsel where he stated his defence clearly and addressed the committee with a written submission. That while investigating, the committee failed or indeed refused to consider the said defence. That if the said committee had considered the said facts in defence and submissions, it would have come to a different conclusion favourable to the claimant. For example, that the committee failed to consider the record of proceedings of the claimant of 5/12/2014, the cause list for that date, the affidavit of the petition dated 22/12/2014 where the petitioner admitted that the claimant sat on 5th December 2014. That the petitioner at the investigating committee never challenged any of these documents provided before it; rather, the said committee dwelt on legalities which they were not bound to rely on. That Regulation 15(4) of the NJC Judicial Discipline Regulation 2014, provides that “The rules of evidence do not apply to investigating committee’s hearings”.

 

  1. The claimant continued that in Exhibit D6, the petitioner’s written address to the committee, the issue of whether the claimant’s court sat or not was abandoned; rather, the merits of the order was addressed. Therefore, that at the committee sitting, counsel for the petitioner having abandoned in his address the fact in issue, to wit, whether the claimant sat or not and concentrated on the merits of the decision, and also at the instant trial, the counsel to the 1st defendant having abandoned the question of merit or demerit of the case, that it is save to state that before this Court on both parties the issue of whether the court sat or not and the merits or demerits of the decision in the suit in question is of no moment to any of the counsel. That the said committee set up a case for the petitioner who had abandoned same. To the claimant, the said committee had no duty to set up a case for the parties. Moreover, that the petitioner was entitled to succeed on the strength of her case and not on the weaknesses of the defence. That the committee ought not to have relied on the claimant’s defence but on the strength of the petitioner’s case at the investigation committee. The report of the committee (Exhibit D1) stated that the petitioner claimed that she applied for the record of proceedings for the 5th of December 2014 but was told by the clerk that the court did not sit and that she paid for the records but went back for the refund of the fees. That this allegation is very weighty and requiring concrete proof. That the court clerk and the Registrar were not called by the petitioner nor invited by the committee to give evidence in support of the allegation. That by section 167(d) of the Evidence Act 2011, there is an unfavourable presumption as to withholding of evidence against a party who should but refused to produce the evidence, citing Federal Republic of Nigeria v. Sani [2014] 16 NWLR (Pt.1433) 299 and Odogwu v. State [2013] 14 NWLR (Pt. 1373) 74.

 

  1. That the only evidence presented to the committee to establish that the claimant did not sit as reflected in the committee’s report (Exhibit D1) was Exhibit D3, a copy of purported letter written by one O. N. Nzewi Esq. of S. U. Ndah & Associates to the Registrar of the court, which copy was not certified by the Calabar High Court Registry. That the certification appearing on Exhibit D3 is that of NJC not Cross River State High Court Registry. That it is worthy of note that a different counsel C. J. Ekpenypng who settled Exhibit D6 represented the petitioner before the investigation committee. Surprisingly O. N. Nzewi Esq. who purportedly wrote Exhibit D3 was not called to state before the committee what steps he took, if any, as a followup to his letter, if at all he wrote Exhibit D3 for the records of proceedings of December 5, 2014. It is the claimant’s submission that Mr. Nzewi or another counsel from S. U Ndah & Associates would have been the proper person to provide evidence whether the said letter was delivered (on the face of the letter there is no acknowledgement of receipt) or not and the outcome of the request for the proceedings. The committee was gravely in error to have relied on the ipse dixit of the petitioner and unauthenticated letter (Exhibit D3) to arrive at its decision.

 

  1. That a further perusal of Exhibit D1, the report of the investigation committee, would reveal that certain facts contained therein needed further clarifications and explanations or representations, submitting that such further explanations or representations was the reason for the regulation requiring the report to be sent to the subject Judge before a decision is reached on the matter. For instance at pages 3 (633) 2nd paragraph to 4 (634) “Background facts to the Petition” the report stated thus:

In consequence of the above, the tenant filed an exparte application (MC/MSC/143/2014) before the Magistrate Court to unseal the property without the knowledge of the Petitioner. Incidentally when the Petitioner’s counsel went for another matter in Court, he saw the application listed for hearing and opposed it when it was heard. The case was stood down to 2:00p.m. but the court did not sit up till 3:00p.m.

 

The Petitioner stated that while she was waiting at the Magistrate Court for the application to be taken, she learnt that the Tenant’s counsel had gone to the High Court premises with a similar application. She then followed him to the High Court, Court 5, and waited till 5:30p.m. but the Court did not sit.

From the foregoing, that the questions that readily come to mind are:

  • At what time did the Petitioner leave the Magistrate Court to the High Court since the Magistrate Court did not sit until 3:00pm?
  • How did the Petitioner know that the case was in High Court 5 to have left the Magistrate Court directly to Court 5?
  • Whom did the Petitioner meet at Court 5?
  • Was the petitioner alone in the High Court 5?

That without definite answers to the above questions it would not be conclusive to hold that the court did not sit.

 

  1. To the claimant, it is in the same report of the investigation committee that was presented to the full council of the 1st defendant as stated in the amended statement of defence in paragraph 10.7. That the 1st defendant in its annual 76th meeting held on 2nd June 2016 was informed that the claimant made the ex parte order without sitting in court as the main allegation. However, that this turned out to be the basis upon which the 1st defendant reached its decision against the claimant ordering that the claimant be suspended from office and that the 2nd defendant compulsorily retire him as well. That the 1st defendant found:
  • That there appeared to be some manipulation of the proceedings of the event by the claimant and recommended a serious reprimand.
  • What the claimant committed was a minor error and nothing else and that the claimant be reprimanded.
  • That it was a clear evidence of lawlessness by the claimant as the claimant sat on a rent matter on a Saturday.
  • That the claimant was ignorant of the law and a grave danger to the judiciary.

The claimant then submitted that these findings by the 1st defendant were not borne out of the report of its investigation committee. That there was no finding anywhere that the claimant sat on a rent matter or that he sat on a Saturday. There was no finding or evidence of lawlessness by the claimant anywhere on the report. There was no allegation of manipulation of the proceedings of the event by the claimant anywhere either on the evidence or by the investigation committee. Indeed, that the 1st defendant found what it described as “a minor error and nothing else” and that claimant be “reprimanded”. The petitioner and her counsel never alleged that the claimant manipulated the records, or was lawless or that he sat on a rent matter or sat on a Saturday. Neither was it alleged or found that the claimant was ignorant of the law.

 

  1. The claimant went on that another reason given why the 1st defendant arrived at the decision it did against the claimant in Exhibit C6 was because according to them the claimant sat on a Saturday. That the reasoning and conclusion by the 1st defendant is misleading. The there is nothing in the record to support the conclusion that the claimant sat on a Saturday and no such allegation. That Suit No. HC/MISC/286/2014 was adjourned to 20th November 2014 in error as was stated in evidence. However, that assuming it was not an error which is not conceded, adjourning the matter to a Saturday the Supreme Court has held in Etsako West Local Government Council v. Christopher [2014] 14 NWLR (Pt. 1426) 73 that by the Public Holidays Act 2004, Saturday is not one of the days designated as public holiday. It is only a work free day. Thus Saturday was counted as one of the two clear days interval to qualify for the matter to be heard. Also, that in Anie v. Uzorka [1993] 8 NWLR (Pt. 309) 1 it was held that a higher court can make an order for a sitting to be held on a Saturday, a work free day, that day not having fallen to a vacation period to a period when the court was in session.

 

  1. The claimant continued that assuming (without conceding) that he committed the alleged offence, the 1st defendant in its Judicial Discipline Regulation 18 made reference to the term “WATCH LIST”, which from its understanding is a sort of reprimand of an erring Judge whose duty had in time past come up for questioning and is under monitoring. That the 1st defendant was harsh in its sanction of recommending the claimant to the defendant for compulsory retirement from the circumstances of the case.

 

  1. To the claimant, the 1st defendant breached its own Regulations by not complying with its rules. For instance, Regulations 16, 17 and 18 of the National Judicial Council Discipline Regulation 2014 requires the 1st defendant to serve the claimant with the draft report of the investigating Committee to enable him make his presentation, citing Nigeria-Arab Bank Ltd v. Barri Engineering Nig Ltd [1995] 8 NWLR (Pt. 413) 252, which held that a breach of a mandatory provision is more than a mere technicality, it is fundamental. That the 1st defendant is a creation of the 1999 Constitution and it is within the powers of the 1st defendant among others to engage in appointments and exercise disciplinary control over judicial officers but the law also provided procedures to be followed in implementing such power to avoid the abuse.

 

  1. The claimant then submitted that his suspension and recommendation of compulsory retirement by the 1st defendant is a nullity as it was predicated on a faulty proceeding and process and such be set aside, citing Macfoy v. United Africa Co. Ltd [1961] 3 WLR 1405 at 1409. That the employment of the claimant is one with statutory flavour and as such where the procedure for dismissal, termination or retirement prescribed in the relevant statute is not complied with, same becomes unlawful and the employee may be entitled to reinstatement by the Court, referring to Olaniyan v. University of Lagos [1985] 2 NWLR (Pt. 9) 559. That the position of the law is that where the contract of service is created by a statute and the procedure for the removal of employee is defined in the statute and by extension subsidiary legislation made pursuant thereto, non-compliance with the statutory provision renders the determination of such contract unlawful, null and void, referring to Ulegede v. The Military Administrator of Benue State [2001] 2 NWLR (Pt. 696) 73. That in the dismissal of an employee in an employment with statutory flavour, strict adherence must be had to the statute creating the employment because statutory provision cannot be waived, citing CBN v. Agwilo [2007] 14 NWLR (Pt. 1054) 986. That from the foregoing, it follows that under a contract of service with statutory flavour, an employer wishing to terminate the contract service must be meticulous in complying with the procedure set out in the relevant statutes or rules thereunder; any deviation from the stipulated procedure would render any act done in respect thereof invalid and liable to be set aside, citing SPDC (Nig) Ltd v. Addico [2016] All FWLR (Pt. 816) 436 at 456 and UNTHMB v. Nnoli [1994] 8 NWLR (Pt. 363) 378 at 413. That in matters of discipline or tenure of office or termination of appointment of such employee, the procedures laid down by the applicable statute or the regulations made pursuant to it must be fully complied with; failure to do so will render null and void any decision that affects the right or tenure of office of such employee, citing Tionsha v. Judicial Service Committee of Benue State [1997] 6 NWLR (Pt. 508) 307.

 

  1. The claimant went on that the 1st defendant in an attempt to argue issue (2) in his address as to whether the claimant has discharged the burden of prove to entitle him to the reliefs went on to rely very heavily on some provisions of the Evidence Act to ask that Exhibits C1 – C8 be expunged from the record of this Court. Although, the claimant did not concede to the argument because Exhibits C1 – C8 are all legally admissible documents and were rightly so admitted by the trial court, that the 1st defendant seems to have failed to avert its mind to the provisions of section 12 of the National Industrial Court Act 2006 which permits this Court to depart from the Evidence Act in the interest justice. It is the claimant’s submission that the argument of the 1st defendant on the admissibility of Exhibits C1 to C8 is misconceived. That all the exhibits tendered by the claimant are legally admissible as all the public documents were properly certified; and that even if the documents were not, this Court is bound to use all the exhibits before it save for the weight and probative value of same in the interest of justice. On the whole, it is the claimant’s submission that he has established his claim to entitle him to the reliefs, citing Yusuf v. Union Bank of Nigeria [1996] 30 NWLR (Pt. 457) 632 and University of Calabar v. Essien [1996] 10 NWLR (Pt. 477) 225 at 267. Consequently, the claimant urged the Court to resolve this issue in his favour.

 

  1. Issue (iv) as originally framed by the claimant and the claimant’s response to the 3rd defendant’s final written address are similar in that both deal with the issue whether the 2nd, 3rd and 4th defendants are necessary and/or nominal parties in this suit. To the claimant, the 2nd defendant, the Governor of Cross River State, is a necessary party in this suit on the ground that he is the final authority in the disciplinary hierarchy of the claimant. That the position of the 2nd defendant is very necessary to the extent that the removal from office of the claimant as a judicial officer can never be complete without the action of the 2nd defendant as the Governor of the State. That the 1999 Constitution as per paragraph 21 of Part 1 of the Third Schedule provides for the role of the 2nd defendant in the discipline of a judicial officer by the National Judicial Council. It states as follows: “recommend to the Governors the removal from office of the Judicial Officers specified in sub-paragraph (c) of this paragraph, and to exercise disciplinary control over such officer”. That in the instant case, the 1st defendant had made the recommendation to the 2nd defendant for the compulsory retirement of the claimant as a judicial officer, referring to Exhibit C6, which the 2nd defendant may act upon except restrained by this Court hence the extant suit and his joinder as a necessary party. That the essence of the joinder of the 2nd defendant in this suit is so that the judgment can be binding on him otherwise the outcome of the judgment cannot be binding if he is not made party to the suit. That it is the position of the law that the judgment of a court cannot bind a non-party, citing NDP v. INEC [2013] 6 NWLR (Pt. 1350) 404. However, that a person who is in privity with a party, is equally bound with the party, citing Osunrinde v. Ajamogun [1992] 6 NWLR (Pt. 246) 156 at 187.

 

  1. In the case of the 4th defendant, the Attorney-General of the State, as the Chief Law Officer of the State, that he is competent to be sued in any civil claim or complaint against the Government of the State, citing Attorney-General, Rivers State v. Attorney-General, Akwa Ibom State [2011] 8 NWLR (Pt. 1248) 72 at 202 and AG, Kano State v. AG, Federation [2007] 6 NWLR (Pt. 1029) 164. It is thus the claimant’s submission that the 2nd and 4th defendants are necessary parties to the claimant’s suit hereof so as to be bound by the decision of the Court.

 

  1. Regarding the 3rd defendant, it is the submission of the claimant that the 3rd defendant is the Chief Law Officer of the country and where the 3rd defendant is sued for the act of a Government agency or any other statutory agency of the Government issued in that behalf for the direct act of Government or the agency as the case may be, it is desirable that the functionaries be or is initiated against the Attorney-General. That the instant case is one of interpretation of the law, and the 3rd defendant as the Chief Law Officer will be affected directly or indirectly based on the outcome of the suit. It, therefore, flows from the above to hold that the 3rd defendant is a nominal party in this suit and as a matter of law, there is a cause of action against the 3rd defendant as whatever affects the Government, affects the 3rd defendant. That a person is made a nominal party not because he has an interest in the subject matter of the suit, but he is joined by virtue of his office just like in this present case. That the joinder of the 3rd defendant is proper. That in a case against a Federal Government Agency or Government institution, the proper defendant is the Attorney-General of the Federation or the Attorney-General of the particular State where such incident, occurred.

 

  1. Furthermore, that the purpose of joinder of a party is to enable the Court to bind parties who ought to be bound by the decision of the court, citing Carena v. Akinlase [2008] 14 NWLR (Pt. 1107) at 267. That by virtue of section 150(1) of the 1999 Constitution, the Attorney-General of the Federation, who is the Chief Law Officer of the Federation, is a competent party to be sued in any suit against the Federal Government; and so has the locus standi to defend actions against the Federal Government or any of the its agencies, citing AG, Rivers State v. AG, Akwa Ibom State [2011] 8 NWLR (Pt. 1248) at 72. Also that by virtue of section 20 of the Supreme Court Act Cap. S15 LFN 2004, any proceedings against the Federation in a dispute between a State and the Federation must be brought in the name of the Attorney-General of the Federation. Also, that the Attorney-General of a State or the Federation can be sued in any civil claim or complaint against the Government of the State or the Federation as the case may be, citing AG, Kano State v. AG, Federation [2007] 6 NWLR (Pt..1029) 167. That the Attorney-General is statutorily conferred the capacity to sue and be sued for and on behalf of the Government by the Petition of Right Act/Law, citing Ibrahim v. Judicial Service Commission [1998] 12 SCNJ 255 at 274. Furthermore, the Government of the Federation or of the State is inherently a corporate entity, and so rights are vested and duties imposed on each of them by the constitution but the Government can sue or be sued only through the Attorney-General as either plaintiff or defendant. That in reply and opposition to the 3rd defendant, the 1st defendant (NJC) is a body created by the 1999 Constitution as an agent of the Federal Government and as such the joinder of the 3rd defendant becomes lawful. Consequently, the cause of action which accrued by virtue of the activities of the 1st defendant is same as though it accrued directly from the 3rd defendant.

 

  1. The claimant then submitted that from the totality of the suit, the 3rd defendant did not file any defence to this suit except for this final written address. That the claimant or plaintiff in a matter succeeds on the strength of his case and not on the weakness of the defendant case though a plaintiff or claimant as the case may be can take advantage of the defendant’s case that supports his case, referring to Egrets v. Oyobobere [1992] 9 NWLR (Pt. 266) 438 at 442. The claimant concluded by urging the Court to dismiss the argument of the 3rd defendant in its entirety and grant all the prayers of the claimant.

 

  1. None of the defendants filed any reply on points of law.

 

COURT’S DECISION

  1. I start off the consideration of the merit of this case with the preliminary objection of the 1st defendant, and the complaint as to the competence of the suit as against the 2nd, 3rd and 4th defendants. The 1st defendant had raised an objection as to the jurisdiction of this Court to hear and determine this case on the grounds that the originating processes in this suit were issued and served on the 2nd and 4th defendants outside the jurisdiction of this Court without leave, the processes were not marked for service outside jurisdiction and the 2nd and 4th defendants were not given up to 30 days to enter appearance. The claimant’s response is that the party raising this objection is the 1st defendant, while the parties allegedly affected are the 2nd and 4th defendants; as such the 1st defendant has no locus to challenge the alleged infraction, if any, on the right of the 2nd and 4th defendants. In any event, according to the claimant, the 2nd and 4th defendants, having taken part in the proceedings this far in the case, must be read to have waived the issues raised by the 1st defendant as to service of the originating processes, relying a good deal on the Supreme Court decision in Odu’a Investment Company Limited v. Joseph Taiwo Talabi [1997] 10 NWLR (Pt. 523) 1.

 

  1. The 1st defendant’s objection is hinged on sections 95, 97 and 99 of the Sheriffs and Civil Process Act. This Court has in numerous cases considered the application of these provisions to the National Industrial Court (NIC). I am surprised that no counsel on either side of the divide deemed it fit to cite even one of such cases. We took the time in those cases to explain that in terms of structure and content, sections 95, 97 and 99 of the Sheriffs and Civil Process Act cannot, and is not meant to, apply to this Court. For what it is worth, I will reiterate the position of this Court as typified in the cases that the issue came up for consideration. Before doing that, I need to point out certain facts associated with this case. This suit was assigned to this Court by the Honourable President of the Court vide an internal memo dated 30th August 2016. See pages 233 to 234 of the case file of this suit. At page 234 of the said case file, I instructed Mr Ntah, the registrar of the Court, thus:
  • Fix the case for mention on Sept. 29, 2016 in Abuja.
  • Serve all the parties the court processes.
  • Serve all the parties the hearing notices.

I then signed as “PJ(Lagos)” with the date 31/8/2016. Now, the argument of the 1st defendant is that the claimant needs the leave of this Court to serve the originating processes on the 2nd and 4th defendants because they are out of jurisdiction. As an aside, given section 21 of the NIC Act 2006, this Court does not treat service within Nigeria as service out of jurisdiction; only service outside Nigeria is treated as such. Order 7 Rules 15 and 16 of the NICN (Civil Procedure) Rules 2017, the current Rules of Court, capture vividly the essence of the Court’s stance. I acknowledge, however, that the argument of the 1st defendant is based on the old Rules, the 2007 Rules of this Court. Even at that, on 31st August 2016, I directed that all the parties should be served the court processes. Of what leave then is the 1st defendant talking of, and which he wants the 2nd and 4th defendants to seek from this Court? It was Lord Steyn who said in R v. Secretary of State For The Home Department, Ex Parte Daly [2001] 3 All ER 433; [2001] 1 AC 532; [2001] 2 WLR 1622; [2001] UKHL 26 that “in law, context is everything”. The context of sections 95, 97 and 99 of the Sheriffs and Civil Process Act is one where the Judge rarely ordered service of originating processes, that being the function of the registry. So it is understandable that leave of court should be sought if service is to be out of jurisdiction, jurisdiction being delimited by geographic/territorial i.e. State boundaries. The requirement of up to 30 days to enter appearance be given to a defendant must also be understood that when that provision was made everything such as infrastructure in all senses conspired against the defendant to make any quick appearance. All of this incidentally is not the context today. Having thus directed that service of court process be made on all the parties, I do not see the need for any leave of this Court, or that the processes be marked for service outside jurisdiction, or that the 2nd and 4th defendants be given up to 30 days to enter appearance. I so find and hold.

 

  1. This aside, I indicated that in a number of cases, this Court held that sections 95, 97 and 99 of the Sheriffs and Civil Process Act as argued by the 1st defendant do not apply to this Court. The first of such cases was a considered ruling in Francis Oluyemi Olamiju Esq v. Local Government Service Commission, Ekiti State & anor unreported Suit No. NIC/LA/157/2011, the ruling of which was delivered on 5th March 2012; and cited and applied in Bright Chinedu Wodi v. Differential Aluminum and Steel Company Ltd & anor unreported Suit No. NICN/CA/75/2012, the judgment of which was delivered on 21st January 2014. Since Bright Chinedu Wodi v. Differential Aluminum and Steel Company Ltd & anor is more detailed, I crave the indulgence to quote it extensively. In the words of this Court:

…this Court had previously held that it is not contemplated under these provisions. In Francis Oluyemi Olamiju Esq v. Local Government Service Commission, Ekiti State & anor unreported Suit No. NIC/LA/157/2011 the ruling of which was delivered on 5th March 2012, this Court held as follows –

A look at the Sheriffs and Civil Process Act reveals that section 97 comes under Part VII of the Act. In that Part the use of the word “Court” is defined to mean a court to which Parts III, IV, V and VI applies. Only in Part III is the word “Court” defined to include “the High Court of the Federal Capital Territory Abuja or of the States” and “judge” is defined to mean “a judge of the High Court”. Part II of the Act, however, defines “Court” to include “a High Court and a magistrate’s Court”. What I can deduce from these definitions is that the courts contemplated for the application of the Sheriffs and Civil Process Act are specifically provided for. For instance, only in Part II is magistrate court contemplated. In other Parts, it is not so mentioned. The argument of the defendants’ counsel that the word “includes” used in the definitions must be read as not being exhaustive or even exclusive seems to, therefore, gloss over why a court like the magistrate court is mentioned in Part II and not in other Parts. The answer of counsel here that section 97 covers all courts of co-ordinate jurisdiction such as the National Industrial Court also does not answer the question whether the Sharia Courts of Appeal or Customary Courts of Appeal, all courts of co-ordinate status and power with the High Court, [are also covered]. In fact, it does not answer the question whether the Court of Appeal and the Supreme Court, when acting under their original jurisdiction, are bound by section 97 of the Sheriffs and Civil Process Act. My take on all of this is that not all courts are covered by section 97 of the Sheriffs and Civil Process Act; and I so find and hold. Since this is the case, I hold that this court is not covered in terms of the application of the said section 97.

 

My view point is reinforced by section 36(1)(g) of the Trade Disputes Act Cap. T8 LFN 2004 which permits this court to do all such things or give such directives as are necessary or expedient for dealing especially with matters before it. This provision is reinforced by section 12(2) of the NIC Act 2006. This court was not set up to be bound by the sort of technicality that section 97 of the Sheriffs and Civil Process Act represents.

 

Even aside from all of this, a look at section 97 of the Sheriffs and Civil Process Act will reveal that while its first part may apply to this court, its second part cannot; and statutes are to be construed holistically, not isolatedly. Section 97 provides as follows –

Every writ of summons for service under this Part out of the State or the Capital Territory in which it was issued shall, in addition to any other endorsement or notice required by the law of such State or the Capital Territory, have endorsed thereon a notice to the following effect…[emphasis is the Court’s].

 

From this provision, one will notice that references to State and Capital Territory implies territorial limitation in terms of the jurisdiction that the State High Courts or High Court of the Capital Territory suffers from, which this court does not in view of section 21 of the NIC Act 2006.

 

Secondly, in the underlined portion of section 97 quoted above, it can be discerned that aside from the endorsement required by section 97 itself, other endorsements may be required by State laws or laws applicable to the Capital Territory; again, the reference here conjures up the question of territorial law and limitations. In regards to this court, therefore, which State or Capital Territory Law can be said to apply to warrant the further application of section 97 in the manner depicted by the underlined part of the section quoted above?

 

I do not think, on the whole, that this Court is contemplated for purposes of section 97 of the Sheriffs and Civil Process Act, and even if it is, [whether] the section can apply when the totality of the Trade Disputes Act and the NIC Act 2006 is taken.

 

I must state that the cases of DENR Limited v. Trans Int’l Bank Limited [2008] 18 NWLR (Pt. 1119) 399 and Owners of MV Arabella v. NAIC [2008] 11 NWLR (Pt. 1097) 182 cited by the defendants were cases regarding the High Court, not cases where the cause of action was filed in this Court. The defendants did not show to this Court how this Court is contemplated under the Sheriff and Civil Process Act in order to be bound by DENR Limited v. Trans Int’l Bank Limited and Owners of MV Arabella v. NAIC. In this wise I agree with the submission of the claimant to the effect that sections 97 and 99 of the Sheriffs and Civil Process Act do not apply to processes emanating from this Court. My take, therefore, is that the emphasis in section 97 of the Sheriffs and Civil Process Act on service out of the State in which it was issued cannot be applicable to this Court especially if section 12(2) of the National Industrial Court (NIC) Act 2006, which permits the Court not to be formal, is taken note of. I must then note that, as held in Nwabueze v. Okoye [1988] 4 NWLR (Pt. 91) 664, the provisions of the Sheriffs and Civil Process Act have nothing to do with the issue of the writ of summons itself, a matter within the area of jurisdiction of the House of Assembly of a State whilst service of a writ of summons outside the State but within Nigeria is within the area of the jurisdiction of the National Assembly deemed to have enacted the Sheriffs and Civil Process Act. And Complete Comm. Ltd v. Onoh [1998] 5 NWLR (Pt. 549) 197 at 223 later held that based on the Rules of Court of the Anambra State High Court and section 96 of the Sheriffs and Civil Process Act, a writ of summons can be issued and served outside the State without first seeking and obtaining leave of Court.

 

In the instant case, the contention of the defendants is that the claimant did not comply with sections 97 and 99 of the Sheriffs and Civil Process Act and so the Court lacks the jurisdiction to hear and determine the case. However, the defendants did not show to the Court why it should depart from the reasoning of this Court quoted earlier in Francis Oluyemi Olamiju Esq v. Local Government Service Commission, Ekiti State & anor.

 

  1. The principle enunciated here has been followed by the NIC in Ikeegbulam v. Association of Senior Civil Servants of Nigeria [2011] 23 NLLR (Pt. 65) 263, Ifinedo Norris Ebibum v. Afribank Nigeria Plc (now Mainstreet Bank Ltd) & 2 ors unreported Suit No. NICN/EN/14/2012, the ruling of which was delivered on 24th September 2012, per Obaseki-Osaghae J, Mr. Ohaka Umesi David v. Mr. Kola T. Adefila & ors unreported Suit No: NICN/PHC/60/2014, the judgment of which was delivered on 6th February 2014, per Anuwe J) and Mr. Alfred Oyewole-Magnus & anor v. Federal Housing Authority [2015] 61 NLLR (Pt. 213) 193. As it is, the 1st defendant has not said anything to sway this Court to his side. In any event, I agree with the claimant that on the authority of Odu’a Investment Company Limited v. Joseph Taiwo Talabi [1997] 10 NWLR (Pt. 523) 1 the 2nd and 4th defendants in defending this case this far must be read to have waived any right to complain about inappropriate service of the originating processes on them. I accordingly hold that the service of the originating processes on the 2nd and 4th defendants was proper and that this Court has the jurisdiction to proceed as such in the hearing and determination of this case.

 

  1. I now proceed to the second issue, as to the competence of the suit as against the 2nd, 3rd and 4th defendants. Here, the case of the 2nd, 3rd and 4th defendants is that an examination of the case of the claimant, comprising of the complaint filed in this Court as well as the evidence presented before this Court, will reveal that the acts complained of by the claimant were not acts carried out or authorised by any of them; as such the claimant has no cause of action against them. As regards the 2nd defendant, the Governor of Cross River State, it is foolhardy to have raised this argument in the first place. The recommendation by the 1st defendant, the NJC, to compulsorily retire the claimant is constitutionally made to the 2nd defendant, the only constitutionally recognized person who can retire the claimant. The 2nd defendant is accordingly not only a necessary party, but a critical one at that. As the claimant rightly argued, but for the fact of the instant case and the fact that the 2nd defendant is made a party, there may have been nothing stopping the 2nd defendant from compulsorily retiring the claimant. I have no hesitation whatsoever as to the 2nd defendant being a proper party in this suit; and I so find and hold.

 

  1. The 3rd defendant is the Attorney-General of the Federation, while the 4th defendant is the Attorney-General of Cross River State. It is settled law that the Federal or State Government can be sued; and in their respective stead, the appropriate Attorney-General can be the party (claimant or defendant). See AG, Rivers State v. AG, Bayelsa State & anor [2012] LPELR-9336(SC). The same rule applies where any of the authorized agencies of government is involved or a government act is called to question. See Nigeria Engineering Works Ltd. v. Denap Ltd & anor [2001] LPELR-2002(SC); [2001] NWLR (Pt. 746) 726; [2001] 12 SC (Pt. II) 136. But there seems to be authority that where it is a government body that can sue or be sued in its corporate name, then the Attorney-General is not a proper party. For instance, relying on Ezomo v. AG, Bendel State [1986] 4 NWLR (Pt. 36) 448 and AG, Kano State v. AG, Federation [2006] 6 NWLR (Pt. 1029) 164; [2007] All FWLR (Pt. 364) 238, Mukhtar, JSC (as she then was) in AG, Anambra State v. AG, Federation (Reasons) [2007] LPELR-24343(SC) held thus:

The Attorney-General of the Federation can be sued as a defendant in all civil matters in which a claim can properly be made against the Federal Government or any of its authorized agencies, arising from any act or omission complained of. In the instant case, the Attorney-General of the Federation is not a proper party to the suit as the plaintiff’s claim as constituted cannot be effected against the Federal Government. The proper body to sue is Independent National Electoral Commission (INEC) which is a corporate body capable of suing and being sued.

Tobi, JSC (of blessed memory) in his own part in same case had this to say:

The office of the Attorney General of a State is created under section 195 of the Constitution. Although the constitution provides only for the duties of the Attorney General in Criminal prosecutions. The Attorney-General of a State is the Chief Law Officer of the State. And in that capacity, the Attorney-General of a state can sue and be sued in such matter affecting the state. Thus, the Attorney-General can only intervene in matters to secure the due execution of a public right but not a private right. Consequently, the Attorney-General cannot sue or be sued in civil matters affecting persons in cases which are personal or domestic to them and therefore not official. In the instant case,the reliefs sought were personal to Mr. Peter Obi who was at the material time the Governor of Anambra State. In the circumstance, the State could not be involved in the matter.

It must, however, be understood that AG, Anambra State v. AG, Federation (Reasons) was decided within the context of activating the original jurisdiction of the supreme Court. It is in this sense that the Supreme Court then held the Attorney-General of the Federation not to be a proper party since the issue at stake were personal to Mr Peter Obi, the then Governor of Anambra State. In others, an Attorney-General cannot elevate the personal dispute of a Governor or the President to the status of a State or Federal Government dispute as to activate the original jurisdiction of the Supreme Court. In this sense, AG, Anambra State v. AG, Federation (Reasons) is inapplicable to the instant case. I so hold.

 

  1. The 1st defendant is an agency of the Federal Government, an Executive body, established under section 153 of the 1999 Constitution, a section that comes under Chapter VI dealing with the Executive but more particularly under Part B dealing with the “Establishment of certain Federal executive bodies”; and reinforced under Part I of the Third Schedule to the Constitution. Because the 1st defendant is not provided for under Chapter VII of the Constitution dealing with the Judicature, the natural inference is that it remains an executive, not judicial, body. By this fact, the argument of the 3rd defendant that he is not member of the 1st defendant, as by the doctrine of separation of power the 1st defendant is a separate arm of Government, seems misdirected. What the 3rd defendant intended in his submission (and this stems from the 3rd defendant’s submission that the affairs and management of the 1st defendant are not within the control of the 3rd defendant as the Chief Law Officer of the Federation) is that though constitutionally the 1st defendant is an Executive body, it enjoins (in virtue of section 158(1) of the 1999 Constitution) an autonomy/independence from the Executive arm of government what no other Executive person of body enjoins. Section 158(1) provides that in exercising its power to make appointments or to exercise disciplinary control over persons, the National Judicial Council shall not be subject to the direction or control of any other authority or person. The use of the phrase “any other” in section 158(1) must be understood in the context of the executive bodies already mentioned in section 158(1) itself (i.e. the Code of Conduct Bureau, the Federal Civil Service Commission, the Federal Judicial Service Commission, the Revenue Mobilisation and Fiscal Commission, the Federal Character Commission, and the Independent National Electoral Commission); in which event, the phrase restricts the enjoyment of autonomy/independence by the 2nd defendant (as of other executive bodies mentioned in the said section 158) only against executive authorities/bodies or executives persons since by section 6(6)(b) of the 1999 Constitution, judicial powers “shall extend to all matters between persons, or between government or authority and to any persons in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person”. It should be noted that by section 6(6)(a) of the Constitution, judicial power “shall extend, notwithstanding anything to the contrary in this Constitution, to all inherent powers and sanctions of a court of law”. There are only two exceptions provided by section 6(6)(c) and (d) the Constitution where judicial powers do not extend to: first, matters under Chapter II of the Constitution dealing with fundamental objectives and directive principles of state policy (though a law may provide otherwise); and secondly, “any action or proceedings relating to any existing law made on or after 15th January, 1966 for determining any issue or question as to the competence of any authority or person to make any such law”.

 

  1. Courts are enjoined to interpret documents and statutes holistically. As Nweze, JSC puts it in Dr Olubukola Abubakar Saraki v. FRN [2016] LPELR-40013(SC), “…the construction of any document (and this includes the construction of the precious and organic document known as the 1999 Constitution) is a holistic endeavour”. So when Galinje, JCA (as he then was) in Justice Okwuchukwu Opene v. NJC & ors [2011] LPELR-4795(CA) defined the word “authority” in section 158(1) of the 1999 Constitution, and came to the conclusion “that the various Courts of the land are included as authorities which exert obedience to its commands as included in their judgments” and that the NJC “is at liberty to make its procedural rules and regulations without any form of control from any authority”, for which the NJC “does not have to wait for a Court verdict on a judicial officer who is found wanting, before it takes steps to save the judiciary from a situation that is considered to diminish the reputation and integrity of the judiciary, considering the length of time adjudication takes in this country”, it must be understood that His Lordship came to this conclusion only in terms of the definition of the word “authority’, not the phrase “any other authority”. Once the phrase “any other authority” is taken in its totality and interpreted holistically and in relation to other provisions such as section 6(6) of the Constitution (as enjoined by the Supreme Court such as in Dr Olubukola Abubakar Saraki v. FRN), then Justice Okwuchukwu Opene v. NJC & ors in that regard becomes distinguishable.

 

  1. As an agent of the Federal Government, the 1st defendant no doubt can sue and be sued in its name, with or without the 3rd defendant. In like manner, the 2nd defendant can also sue and be sued in civil matters. In FAAN v. Bi-Courtney Ltd & anor [2011] LPELR-19742(CA), FAAN, an agent of the Federal Government, had applied to be joined in Suit No: FHC/ABJ/CS/50/2009 where the Attorney-General of the Federation was already a party. The Court of Appeal held that the Attorney General is a proper party to be proceeded against in an action against the Federal Government and all or any of its agencies; as such the Attorney General (being a party to the suit) has covered the interest of the applicant as the applicant is an agent of the Federal Government. And Nigeria Engineering Works Ltd. v. Denap Ltd & anor acknowledged that the Attorney-General is a defendant or a nominal defendant in civil cases in which the Government is sued. This being the case, the presence of the 3rd and 4th defendants in this case, even if nominally, does not thereby make them improper parties as counsel to the 2nd to 4th defendants seem to argue. I accordingly hold that the 2nd to 4th defendants are proper parties in this suit.

 

  1. I now turn to the issue of the admissibility of some of the documents in this suit. At the Court’s sitting of 21st November 2016 when the claimant’s documents were admitted and marked, the Court noted that Exhibit 13 is not dated in terms of the date the Commissioner of Oath endorsed the deposition in question. Parties were then asked to address the Court on the issue in their final written addresses. None did; however, 1st defendant instead submitted that Exhibits C1 to C8, being public documents, were not certified in line with section 102 of the Evidence Act and so ought to be discountenanced by the Court. Exhibit C13 is an affidavit of Dr (Mrs) Ekanem Cobham filed in Suit No. HC/MSC.286/2014 in support of a motion she filed “to dismiss suit and discharge the order fraudulently obtained by the Applicant against me”. It has a stamp of receipt of the High Court Registry Calabar with the date 22/12/14; but it has no date of the endorsement of the Commissioner of Oaths. In terms of its validity as a sworn affidavit, Exhibit C13 is worthless. An undated document has no evidential value. See Global Soaps & Detergent Ind. Ltd v. NAFDAC [2011] All FWLR (Pt. 599) 1025 at 1047 and Udo & ors v. Essien & ors [2014] LPELR-22684(CA). I so hold.

 

  1. The 1st defendant contended that Exhibits C1 to C8 are public documents; and because they were not certified, they should not be admitted as such by this Court. Exhibit C1 dated 13th March 2006 is the letter of appointment of the claimant as a Judge signed by the Secretary to the Cross River State Government; by Exhibit C1(a), the appointment took retrospective effect from 8th March 2006. Exhibit C2 dated 2nd June 2015 is the petition by Dr (Mrs) Ekanem Cobham against the claimant to the NJC; it has a number of attachments. Exhibit C3 dated 16th October 2014 is a letter from the Committee on Performance Evaluation of judicial officers of superior courts of record addressed to the Chief Judge of Cross River State forwarding the Returns of cases received for the 1st and 2nd Quarters of 2014. Exhibit C4 dated 6th September 2015 is a letter to the claimant by “SA, Legal” of Cross River State Judiciary bringing to the claimant’s notice the petition (as per Exhibit C2 and its attachments) against him. Exhibit C5 dated 1st March 2016 is the invitation by the NJC Investigation Committee to the claimant asking him to appear before the Committee “along with all supportive documents, witnesses and counsel, if any” on 9th and 10th March 2016. Exhibit C6 dated 3rd June 2016 is the letter by NJC suspending the claimant and recommending to the Governor of Cross River State his compulsory retirement. Exhibit C7 is the NJC Judicial Discipline Regulations October 2014. And Exhibit C8 dated 6th October 2015 is the response of the claimant to the petition against him; it is addressed to the Hon. Chief Judge in Calabar. These are the documents that the 1st defendant argued are public documents under section 102 of the Evidence Act 2011 that must be certified under section 104 of same Evidence Act; and that because they were not so certified, they should not be admitted for purposes of this suit. The claimant’s response is to rely on section 12 of the NIC Act 2006, urging this Court to depart from the Evidence Act in the interest of justice.

 

  1. To start with, a good deal of these documents are the very documents the 1st defendant used in investigating the claimant, suspending him and recommending his compulsory retirement. In fact, some of the documents are even tendered by the 1st defendant such as the petition and the claimant’s response to the petition. It is accordingly surprising that the 1st defendant would now turn around and argue that Exhibits C1 to C8 are not certified and so should not be used by this Court. I acknowledge that by its rules, the 1st defendant is not bound by the Evidence Act when conducting disciplinary hearing against judges. For instance, under Regulation 14(3) of Exhibit C7, the NJC Judicial Discipline Regulations, “the rules of evidence do not apply to investigating committee’s hearings”. The same is the case with this Court if it chooses to rely on section 12(2) of its enabling law, the NIC Act 2006. In the instant case, this Court is called upon to adjudicate on what the 1st defendant did in suspending and recommending the compulsory retirement of the claimant. If the 1st defendant used public documents that were not certified in arriving at its conclusions/decisions, how can such be reviewed in this Court by the insistence of same 1st defendant that the same documents it used must first be certified in this Court? This certainly appears unjust.

 

  1. Exhibits C1 to C8 may accordingly be public documents given the definition of a public document in section 102 of the Evidence Act, but section 12(2) of the NIC Act 2006 permits this Court to depart from the Evidence Act in the interest of justice. The interest of justice in the instant case enjoins just that; and I so hold. Exhibits C1 to C8 are accordingly validly admitted before this Court, and so will be used as such. I so hold. I am not unmindful of SEC v. Abilo Uboboso unreported Suit No. CA/A/388/2013, the judgment of which was delivered on 21st December 2016. In this case, the NIC had admitted in evidence public documents that were not certified as such on the ground that section 12(2) of the NIC Act 2006 permitted the Court to depart from the Evidence Act. The Court of Appeal held that the provisions of section 12(2) of the NIC Act 2006 cannot operate to encumber the provisions of the Evidence Act 2011 especially as section 256(1) of the Evidence Act 2011 states that the Evidence Act 2011 shall apply to all judicial proceedings in or before any Court established in Nigeria. Part of the reasons upon which the Court of Appeal based its decision was that the Evidence Act 2011 was made by the National Assembly subsequent to the NIC Act 2006.

 

  1. This decision aside, there are four grounds upon which SEC v. Abilo Uboboso is distinguishable, grounds that were not brought to the attention of the Court of Appeal when SEC v. Abilo Uboboso was decided. The grounds are:
  • The first ground is section 4(2)(b) of the Interpretation Act Cap. I23 LFN 2004, which provides that where an enactment is repealed and another enactment is substituted for it then any reference to the repealed enactment shall, after the substituted enactment comes into force, be construed as a reference to the substituted enactment. It should be noted that by section 1 of the Interpretation Act, the Interpretation Act “shall apply to the provisions of any enactment except in so far as the contrary intention appears in this Act or the enactment in question”. By section 4(2)(b) of the Interpretation Act, therefore, the reference to the “Evidence Act” in section 12(2) of the NIC Act 2006, must be read to mean reference to the “Evidence Act 2011”. So the question of section 256 of the Evidence Act 2011 being subsequent to the NIC Act 2006 would not arise. A decision of my learned brother of the Federal Capital Territory (FCT) High Court, Hon. Justice Peter O. Affen, in The Federal Republic of Nigeria v. Emmanuel Owoicho & 5 ors unreported Suit No. FCT/HC/CR/192C/2015, the ruling of which was delivered on 14th December 2015, illustrates the point I make here. A preliminary objection had been raised in a criminal trial before His Lordship. One of the grounds of the objection was that the Economic and Financial Crimes Commission (Establishment) Act 2004 does not confer power to prosecute for offences under the Advance Fee Fraud Act 2006. His Lordship, in rejecting this argument held thus:

It is noteworthy that s. 7(2) of the EFCC (Establishment) Act, 2004 specifically refers to the Advance Fee Fraud and Other Related Offences Act of 1995 which has since been repealed and supplanted by the Advance Fee Fraud and Other Related Offences Act of 2006. On the face of it, it is quite arguable that since specific reference is made to the repealed 1995 Act, offences under the 2006 Act do not fall within the purview of the Acts the EFCC is empowered to administer and enforce. However, the Interpretation Act, Cap. I23 LFN, 2004 has clearly taken the wind out of the sails of that line of argument. The clear and unambiguous provision of s. 4(2)(b) of the Interpretation Act is that where an enactment is repealed and another enactment is substituted for it, any reference to the repealed enactment shall, after the substituted enactment comes into force, be construed as a reference to the substituted enactment. By s. 1 thereof, the Interpretation Act “shall apply to the provisions of any enactment except in so far as the contrary intention appears in this Act or the enactment in question.”  There is no gainsaying that the 2006 Act is a “substituted enactment” for the repealed 1995 Act of the same title, and it seems to me that a proper application of s. 4(2)(b) of the Interpretation Act would lead inescapably to the conclusion that the reference in s. 7(2)(b) of the EFCC Act of 2004 to the repealed 1995 Act shall be construed as a reference to the 2006 Act.

If the Court of Appeal’s attention in SEC v. Abilo Uboboso had been drawn to section 4(2)(b) of the Interpretation Act, the more plausible conclusion would have been that the reference to the Evidence Act in section 12(2) of the NIC Act 2006 would have been interpreted to read a reference to the Evidence Act of 2011.

  • The second ground is section 2 of the Evidence Act 2011 itself, which provides that ‘for the avoidance of doubt, all evidence given in accordance with section 1 shall, unless excluded in accordance with this or any other Act, or any other legislation validly in force in Nigeria, be admissible in judicial proceedings to which this Act applies’. I note the proviso to section 2, which provides that admissibility of such evidence shall be subject to all such conditions as may be specified in each case by or under the Evidence Act. This notwithstanding, section 2 acknowledges that there are existing laws that exclude the application of even the Evidence Act 2011.
  • The third ground is section 3 of the Evidence Act 2011, which provides that “Nothing in this Act shall prejudice the admissibility of any evidence that is made admissible by any other legislation validly in force in Nigeria”. A fortiori, if another legislation makes any evidence inadmissible, the intention of the legislature in that regard must be respected. In other words, section 3 must be read to mean nothing in this Act shall prejudice the admissibility or otherwise i.e. inadmissibility of any evidence that is made admissible or inadmissible by any other legislation validly in force in Nigeria.
  • The Fourth and last ground is that section 12(2) is not delimited by time or date. It talks of “Evidence Act”, not “Evidence Act 1990 or 2004”. So, the argument often advanced that the Evidence Act 2011 is subsequent to the NIC Act 2006 i.e. because the NIC Act was passed in 2006, it cannot be said that the Evidence Act 2011 was contemplated under it, cannot really hold ground as the NIC Act 2006 simply talks of the “Evidence Act”; not even in the side note to section 12 of the NIC Act 2006 is the 1990 Evidence Act referred to. This means that the draftsman intended the reference to the Evidence Act in section 12 of the NIC Act 2006 to be fluid. However, even if section 12(2) of the NIC Act were to be delimited by time or date, section 4(2)(b) of the Interpretation Act has taken care of the problem.

What all of this means is that the arguments advanced as to section 4(2)(b) of the Interpretation Act, sections 2 and 3 of the Evidence Act 2011 and the fact that section 12(2) of the NIC Act 2006 is not delimited by time or date, not raised and considered in SEC v. Abilo Uboboso, makes SEC v. Abilo Uboboso distinguishable. In the instant case thus, I rely on section 12(2) of the NIC Act 2006 and hold Exhibits C1 to C8 as admitted; they will be used as such in this judgment.

 

  1. The claimant’s case is that the acts of the 1st defendant were unjustified and without basis, highhanded and harsh as the 1st defendant acted without powers, denied him fair hearing and failed to evaluate the evidence before it in arriving at its decisions and recommendations. Before addressing these issues, I need to resolve a submission of the claimant. The claimant had submitted that from the evidence before the Court, the petition against him i.e. Exhibit D4/C2 was neither accompanied by a verifying affidavit nor a statement verifying the truth of the facts of the alleged complaint as mandatorily required by Regulations 7(5) and 7(7) of Exhibit C7. This may be so; but the question that presently arises is the effect of the non-observance of the said mandatory provisions. The claimant seems to think that because the petition forwarded to him had no verifying affidavit, the whole petition itself thereby fails. But is this the case? The claimant did not look at Regulation 7(7) more closely as to discern that in there lies the answer. Regulation 7(7) stipulates that any complaint not so verified shall be rejected for filing by the secretary or by the Preliminary Complaint Assessment Committee also known as the Sifting Committee. Now caselaw authorities abound indicating that a provision such as Regulation 7(7) is effective only to the extent that the secretary is empowered to reject the process in issue; but where the secretary accepts the faulty process, even a court of law is enjoined to accept and use it as such. In Nathaniel Agunbiade & anor v. Busayo Oluwole Oke & 9 ors unreported Appeal No. CA/AK/EPT/HR/68/2015, the judgment of which was delivered on 2nd September 2015, one of the issues that arose in the trial tribunal was whether failure to file a list of witnesses in accordance with paragraph 4(5)(a) of the First Schedule to the Electoral Act 2010 is fatal to the petition as paragraph 4(6) simply states that in such a case the secretary of the tribunal shall not accept the processes for filing. The trial tribunal held the non-filing of the list of witnesses to be fatal to the petition; but the Court of Appeal per the leading judgment of Abiriyi, JCA set aside that decision of the trial tribunal on the ground that since the secretary had accepted the processes in question with the defect, the trial tribunal must hear the petition on its merit. The principle enunciated by the Court of Appeal in Nathaniel Agunbiade & anor v. Busayo Oluwole Oke & 9 ors was subsequently followed by trial tribunals such as in Ogbonna Nwuke & anor v. Chief Jerome Amadi Eke & 3 ors unreported Petition No. EPT/RV/NASS/R/11/2015, the judgment of which was delivered on 12th October 2015, where the issue was that a final written address in excess of 40 pages allowed by the Rules was accepted by the secretary of the tribunal. The trial tribunal had to accept and use the final written address as such. And Sir Collyns Ajirikeneme Ndamzi Owhondah & anor v. Blessing Nsiegbe & 3 ors unreported Petition No. EPT/RV/NASS/R/15/2015, the judgment of which was delivered on 12th October 2015, where the trial tribunal felt bound to accept and use as such a process accepted by the secretary of the tribunal despite the petitioners’ counsel’ failure to affix his seal. What all of this means is that in the instant case, the argument of the claimant that in the absence of a verifying affidavit to the purported petition and also the complaint or petition not having been verified in writing renders the petition ab initio incompetent and a nullity, the consequence of which is that there was no competent petition against him before the 1st defendant, accordingly goes to no issue and so is hereby discountenanced. I accordingly hold that there was a valid petition against the claimant, which the 1st defendant heard.

 

  1. The claimant argued that he was not given fair hearing by the 1st defendant. The evidence before the Court is that there was a petition in writing against the claimant (Exhibit C2), which was forwarded to him by his Chief Judge (Exhibit C4/D4). He answered the petition vide Exhibit C8/D5. He was invited vide Exhibit C5 dated 1st March 2016 to appear before the NJC Investigating Committee on 9th and 10th of March 2016. Indeed, Exhibit C5 asked the claimant to appear before the Committee “along with all supportive documents, witnesses and counsel, if any”. He appeared before the Committee and through his counsel submitted a written address in support of his defence (Exhibit C22/D7). The Investigating Committee investigated the petition and submitted a report vide Exhibit D1. The NJC considered the report (see Exhibit D8, minutes of the 76th meeting of the NJC) and vide Exhibit C6 suspended the claimant, while also recommending for his compulsory retirement. Do all of these suggest the absence of fair hearing? I do not think so; at least not on the weight of modern caselaw authorities. Since Mr Yesufu Amuda Garba & ors v. University of Maiduguri [1986] LPELR-1305(SC); [1986] 1 NWLR (Pt. 18) 550; [1986] All NLR 149; [1986] 2 SC 128, fair hearing in the world of work has been successfully watered down to just opportunity to be heard. Only recently, I had to review the authorities. Thus in Tunde Ajani v. Zone 4 Energy Limited & 2 ors unreported Suit No. NICN/LA/216/2016, the judgment of which was delivered on 24th May 2017, this Court reviewed the authorities in these words:

By Simon Ansambe v. Bank of the North Ltd [2005] 8 NWLR (Pt. 928) 650, fair hearing does not necessarily mean an oral representation; it is enough if it is in writing. The converse of this proposition is true with equal force i.e. fair hearing does not necessarily mean a written response; it is enough if there is an oral representation. All that matters is whether the employee was given the opportunity of fair hearing. In Ziideeh v. RSCSC [2007] LPELR-3544(SC); [2007] 3 NWLR (Pt. 1022) 554; [2007] 1 – 2 SC 1, it was emphatically held thus: “it is now firmly settled that in statutory employment, just as in private employment, an employer can summarily dismiss the servant in all cases of gross misconduct provided of course, the employee is given the opportunity of fair hearing”. So once a Court makes a finding that the employee was given ample opportunity to defend himself/herself on the allegations in issue, then such an employee cannot complain of not being given fair hearing. See A. R. Momoh v. CBN [2007] 14 NWLR (Pt. 1055) 508 CA at 527, Benedict Hirki Joseph v. First Inland Bank Nig Plc [2009] LPELR-8854(CA), Gukas v. Jos International Breweries Ltd [1991] 6 NWLR (Pt. 199) 614, Imonikhe v. Unity Bank Plc [2011] LPELR-1503(SC); [2011] 12 NWLR (Pt. 1262) 624 SC, Avre v. NIPOST [2014] LPELR-22629(CA), Kayode Agbolade v. Ecobank Nig. Plc unreported Suit No. NICN/LA/34/2012 the judgment of which was delivered on 30th October 2013, Mr. Adewale Aina v. Wema Bank Plc & anor unreported Suit No. NICN/LA/162/2012 the judgment of which was delivered on January 28, 2016, Mrs. Titilayo Akisanya v. Coca-Cola Nigeria Limited & 2 ors unreported Suit No. NICN/LA/40/2012, the judgment of which was delivered on 7th April 2016, New Nigeria Bank Ltd v. G. O. Oniovosa [1995] 9 NWLR (Pt. 419) 327 and Isong Udofia v. Industrial Training Governing Council [2001] 4 NWLR (Pt. 703) 281. By his own acknowledgment, the claimant told this Court that he attended the disciplinary hearing set up by the defendants. That is opportunity sufficient to satisfy the fair hearing requirements of section 36 of the 1999 Constitution.

 

  1. The common feature running through all these cases is that the exact nature of the infraction(s), which the employee is expected to answer to, was disclosed to the employee. Exhibit C4/D4 through which the petition against the claimant was forwarded to him attached the petition itself. So the claimant knew exactly what he was meeting in terms of the infraction(s) he is accused of. In fact, the concurring judgment of His Lordship Hon. Justice Rhodes-Vivour, JSC in Imonikhe v. Unity Bank Plc (supra) is quite emphatic. In the words of His Lordship:

Accusing an employee of misconduct, etc by way of a query and allowing the employee to answer the query, and the employee answers it before a decision is taken satisfies the requirements of fair hearing or natural justice. The appellant was given a fair hearing since he answered the queries before he was dismissed.

In the instant case, it is not in doubt that the petition was sent to the claimant and he answered it; and even attended the disciplinary hearing. This to my mind satisfies the requirement of fair hearing if Imonikhe v. Unity Bank Plc is anything to go by. I so find and hold.

 

  1. An issue was made of the investigating committee of the NJC not using the claimant’s witnesses and documents when it investigated the claimant. Here, the claimant complained that relevant witnesses on both sides of the divide were not allowed to testify or be cross-examined. Yet, he cited Regulation 14(5) of the NJC Regulations (Exhibit C7), which states that at any hearing of the investigating committee the subject Judge has the right to present evidence, to compel the attendance of witnesses, and to compel the production of witnesses to cross-examine, in person or by Counsel, committee witnesses. The evidence of CW4 under cross-examination is that he was not invited by the NJC; it was the claimant who invited him. And that when he got to Abuja, in his hotel room, the claimant called him to say that the NJC no longer needed him as well as other witnesses like Ugochukwu Chijioke, Capt Akabonu and his son as witnesses; as such, the testimony given in the instant case was not given to the NJC investigating committee. CW3 as well testified that she was not present at the proceedings of the investigating committee because she was not invited; and that the testimony she gave in the instant case and Exhibit C23 (the register of cases, the original of which was sighted in open court) were not given to the investigating committee. I indicated earlier that Exhibit C5 asked the claimant to appear before the investigating committee of the NJC “along with all supportive documents, witnesses and counsel, if any”. It was the claimant who informed CW4 that NJC no longer needed him as well as the other witnesses. If these witnesses and the accompanying documentary evidence were critical to the claimant, it was for him to have insisted that these witnesses and documents be called and used by the investigating committee. In the recent case of Tunde Ajani v. Zone 4 Energy Limited & 2 ors (supra), the claimant had been asked to submit his First Bank account statement in order to prove his innocence regarding certain infractions bordering on fraud that he was accused of. This is what this Court held:

Under cross-examination, the claimant first testified that during his employment with the defendants, he operated 4 personal banking accounts, and then acknowledged that he was asked to bring his bank accounts of which he brought those of Diamond Bank and Access Bank. Why would the clamant give out two of his accounts but not others including First Bank that was specifically requested for by the defendants? This act is sufficient to fuel suspicion on the part of the defendants. When the defendants used the words, “To prove your innocence…we request that you submit your First Bank Account statement…”, given that the defendants had already found the claimant culpable (by the claimant’s reckoning), what the defendants meant was nothing more than “it is up to you to convince us otherwise”. The claimant did not take up the gauntlet, and now hides under the presumption of innocence rule when he himself had acknowledged that he was found culpable before Exhibit C5 was issued. The provision of section 36(5) of the Constitution is pretty clear in providing that nothing in section 36 “shall invalidate any law by reason only that the law imposes upon such person the burden of proving particular facts”. The claimant was found culpable by the defendants; it was up to the claimant to show the defendants that they were wrong. The claimant did not think that the First Bank statement of account would help his case, that is why he did not release them. This does not take away the fact that the defendants already found him culpable. As it is, therefore, I do not see Exhibit C5 as infringing section 35(6) of the 1999 Constitution…

In the instant case, the claimant was specifically asked to come along with any witnesses and documents that will help his case. He did, but chose to keep them at the hotel, only to later inform the witnesses that the NJC said that they are no longer needed. This error on the part of the claimant, if indeed it was one, cannot be blamed on the NJC. The claimant must take the full blame. He was given the opportunity, and he chose not to seize it. I so find and hold.

 

  1. Despite all of this, the major plank of the claimant’s case is that the NJC investigating committee did not properly evaluate the evidence available to it; and neither it nor the NJC followed its Regulations. When it comes to compulsory retirement, the yardstick is as laid down by Sanusi, JCA (as he then was) in Akinedo & ors v. Edo State Gov. & ors [2011] LPELR-4174(CA), relying on Uwaifo, JSC’s statement in Psychiatric Hospital Management Board v. Ejetagha [2000] 11 NWLR (Pt. 677) 154 at 160, where His Lordship held thus:

To force a public servant into retirement that is before he gets to his retirement age is an unusual action against him in his carrier. Such an action could, admittedly, be due to a variety of reasons including ill-health, redundancy, reorganization, retirement, inproductivity etc or even upon contractual or regulatory powers conferred on and exercised by the employer. When an employer relies on one or more of these reasons, he would be expected to have facts or the law in support. The burden is on him to satisfy the Court on this. To place the burden of proof wrongly on a party will usually lead to miscarriage of justice.

 

  1. Within the more specific sphere of judicial officers, Hon. Justice Raliat Elelu-Habeeb & anor v. The Hon. Attorney-General of the Federation & ors Suit No: SC.281/2010, the judgment of which was delivered on Friday, the 17th day of February 2012, though in relation to the office of the Chief Judge, the Supreme Court held that any exercise of power to remove a Chief Judge must be based on any of the following grounds: his inability to discharge the functions of office or appointment; the inability to perform the functions of his office, which could arise from infirmity of the mind or of body; for misconduct; or the contravention of the code of conduct. The Supreme Court went on in these words:

All these conditions or basis for the exercise of power to remove a State Chief Judge must be investigated and confirmed by credible evidence…For example the ground of removal for inability to perform the functions of his office or appointment cannot be ascertained and confirmed…in the absence of any input from the National Judicial Council under which supervision the Chief Judge discharges his functions as Judicial Officer and which body also is directly responsible for exercising disciplinary control over the said State Chief Judge. It is not difficult to see that for the effective exercise of the powers of removal of a Chief Judge of a State…the first port of call… shall be the National Judicial Council which is equipped with the personnel and resources to investigate the inability of the Chief Judge to discharge the functions of his office, the subject of disciplinary action of removal through the Committees of the Council…

All of this is applicable to a Judge as it is to a Chief Judge. Two things must be noted though: the removal of a judge must be investigated and confirmed by credible evidence; and the burden of justifying the (recommendation for) compulsory retirement lies with the NJC (like it ordinarily would on an employer).

 

  1. In the instant case, the claimant contended that the 1st defendant through the investigating committee failed to comply with Regulation 16(1) of the Judicial Discipline Regulations 2014 requiring that its draft report; or part of the report; or a summary of the report excluding its recommendations be forwarded to the subject Judge and the complainant and invite each of them to make representation about the report within fourteen days. The claimant went on that the report was not sent to him for him to make representation; a fortiori, a breach of his fundamental right to fair hearing. The claimant continued that he is not unmindful of the word “may” used in Regulation 16(1), which implies a discretion. However, that there are circumstances where the word “may” will connote “shall” or “must” especially in an effort to effectuate legislative intent. To the claimant, Regulation 16(1) was meant to accord the parties fair hearing and any interpretation of that regulation that will effectively diminish the right to fair hearing will be contrary and offensive to the rules of natural justice; therefore the failure to comply with the said regulations amounts to a denial of fair hearing to the claimant. I do not agree with the claimant that Regulation 16(1) is a mandatory provision, and that the word “may” used therein connotes a “shall” or “must”. Regulation 16(1) wherein the word “may” is used is even qualified by two phrases: “if it deems fit” and “as the committee deems material”. The provision, therefore, is that the investigating committee may, if it deems fit, forward a copy of its draft report; or a part of the report; or a summary of the report (without the recommendations), as the committee deems material, to the subject Judge. As can be seen a great deal of latitude is allowed the investigating committee. So, with all these qualifications, there is no way that Regulation 16(1) can be said to be a mandatory provision. In this sense, I do not agree with the claimant’s submission on that regard. It is accordingly discountenanced.

 

  1. Furthermore, the claimant referred to Regulation 17(1), which provides that: “The council shall before it considers the report of the investigating committee forward a copy to the subject judge”. The argument of the claimant is that the NJC did not froward a copy of the report of the investigating committee to him. In fact, the claimant asked what is the essence or intendment of Regulation 17(1), which is mandatory bearing in mind the word “shall” in the regulation; and sneered that the import and object of the regulation is to give the subject Judge an opportunity to make representation on the report of the investigating committee to the Council, if he so desires before the council’s consideration of the report. The claimant concluded that by not forwarding a copy of the report to him before it took a decision on it, the 1st defendant thereby failed to comply with its Regulation and so occasioned a miscarriage of justice by depriving the claimant fair hearing in contravention of section 36 of the 1999 Constitution. From the evidence before the Court, there is no proof that the claimant was given a copy of the investigation committee report as enjoined by Regulation 17(1). Regulation 17(1), however, is silent on what the consequence is if no report is given the subject Judge, the claimant in the instant case. Regulation 17(2) simply proceeds to state that upon a consideration of the report, the NJC may decide to do any of the following: decide that the case is unsubstantiated and dismiss it; decide that the case is substantiated wholly or in part but does not require further action and dismiss it; decide that the case is substantiated wholly or in part but should be dealt with informally by the Chief Justice/Chairman of NJC or any person he may nominate; decide that the case is substantiated wholly or in part and exercise one or more disciplinary actions as to reprimand, suspension, putting on ‘watch list’, or prohibit the nomination for promotion of the subject Judge; recommend the removal from office of the subject Judge. Now, beyond Regulation 17(1) mandating that the report of the investigating committee should be given to the subject Judge, nothing is said in the Regulations to suggest that no action under Regulation 17(2) can be taken unless Regulation 17(1) was met or complied with. In other words, the adherence to Regulation 17(2) is not hinged on Regulation 17(1); each is independent of the other. Alternatively put, there is no relationship or nexus between Regulation 17(1) and Regulation 17(2) as the claimant seems to think. The claimant argued that because Regulation 17(1) was not complied with, his right to fair hearing was compromised as he was thereby denied any further input. How is this so, when there is no relationship/nexus between Regulation 17(1) and Regulation 17(2)? Even if the report was given to the claimant, the NJC can proceed almost immediately to take any of the decisions as per Regulation 17(2) since there is no impediment of any kind for doing this under the Regulations. The point I seek to make is that the performance of the duty under Regulation 17(1) does not in anyway require anything else from the claimant as input before any of the decisions under Regulation 17(2) is taken; as such the question of his right to fair hearing being compromised or that he was denied any further input does not arise at all. I so find and hold.

 

  1. I take solace in all I have said so far in FJSC v. Bode Thomas [2013] 17 NWLR (Pt. 1384) 503. One of the issues that arose from this case relates to paragraph 030307 of the Public Service Rules, which stipulates a period of 60 days limitation within which disciplinary proceedings against any officer in the public service must be concluded. The trial court found this rule to be a mandatory provision, but which did not indicate any sanction for its breach. A subsequent finding and holding by the trial court that failure to keep to this rule infringes the right to fair hearing was upturned by the Court of Appeal as not being in consonance with the earlier finding of the trial court that no sanction was provided by the rule itself for its breach; as such, failure to observe the 60 days limitation rule did not vitiate the disciplinary proceedings. In like manner, I reiterate that the fact that the petition in the instant case was not accompanied by a verifying affidavit; or that the draft report, or part of the report, or a summary of the report excluding its recommendations was not forwarded to the claimant by the investigating committee; or that a copy of the report of the investigating committee was not forwarded to the claimant by the Council, is not sufficient to vitiate the disciplinary proceedings in this case. I so find and hold.

 

  1. In this sense, and as an additional point, the question of an injustice being meted out on the claimant by the 1st defendant in not forwarding the report to the claimant remains a non-issue. The claimant’s answer of being denied fair hearing because the report was not forwarded to him begs the question: how can, not forwarding a copy of the report to the claimant before a decision was taken on it, be said to occasion a miscarriage of justice as the claimant argued when the Regulations do not thereby grant any further or additional right or entitlement to him beyond merely receiving the report? I find it very difficult to see what right inured to the claimant in virtue of Regulation 17(1). The manner in which the claimant argued this point raises the further question whether fair hearing is a pre- or post-event issue? By the claimant’s answer, he appears to think of fair hearing as a post-event matter. I pointed out that Regulation 17(1) merely says, even if in mandatory terms, that the report of the investigating committee is to be given to the subject Judge. Even in saying that the NJC “shall before it considers the report…forward a copy to the subject Judge”, it must be noted that the regulation imposes, not a duty not to take a decision, but simply a duty to forward a copy of the report to the subject Judge. Regulation 17(1) does not stop the NJC from taking a decision; even if the regulation is breached the decision taken thereby cannot be impeached, without more, on the mere ground that the report was not forwarded before the NJC considered it. I so hold.

 

  1. I now turn to another plank of the claimant’s case i.e. that the NJC did not properly evaluate the evidence brought in defence of the claimant. Tied to this issue is the point I made earlier that the burden is on the NJC to justify the recommendation for compulsory retirement of the claimant. The petition against the claimant is that the petitioner, Dr (Mrs) Ekanem Cobham, had secured a court order against her tenant at the Magistrate Court. As a result of this court order, the premises in issue was sealed; but the tenant through his counsel proceeded to illegally cut the seal put against the premises. That the same tenant on 5th December 2014 went to the Magistrate Court and filed an ex parte motion to unseal and open the premises. That despite standing down the case, the court did not sit over the motion. The petitioner went on that the tenant’s counsel proceeded to the High Court on same 5th December 2014 and secured an order signed by the claimant in the instant case to unseal the premisses even when there was no court sitting on the said day. That the case for which there was no sitting was even adjourned to 20th December 2014, a Saturday. This is the complaint the petitioner made to the NJC against the claimant. It has two strands: that the claimant did not sit, yet signed a court order granting ex parte prayers sought; and that the claimant adjourned the case to a Saturday, a fact which shows that there was no actual sitting of the Court. The investigating committee put all of this as complaint against the claimant in terms of abuse of judicial power, suppression and illegal/forceful takeover of a property against Ugochukwu, using F. O. Onyebueke, in Suit No MC/RT/1216/14. See paragraph 1.1 of Exhibit D1, the report of the investigating committee. In his response (Exhibit C8), the claimant asserted on or about 5th December 2014 (note that the use of the phrase “on or about” here shows a level of uncertainty as to the date in issue), he received a case file in respect of Suit No. HC/MSC.286/2014, a motion ex parte, which was assigned to him; and he heard the matter in accordance with the Rules of Court. The claimant then asked:

If as alleged this court did not sit why did the Chief Bailiff state to the petitioner that the Order was from the court and the case adjourned to 20th December 2014? The only inference is that the chief bailiff got the order from the court and it was duly signed by me and issued by the Deputy Chief Registrar 1, Leonard A. Awogor Esq.

The claimant proceeded to give reasons why he had to grant the ex parte orders sought; reasons, I must say, that are not altogether relevant to the exact complaint of the petitioner.

 

  1. The claimant went on in Exhibit C8 to state thus:

I need to state that the petitioner in her motion in this suit on 22/12/2014 stated in paragraph 18 of her affidavit “…whilst the same Exparte Motion was also filed at High Court Registry, Calabar and taken up at High Court 5, Calabar at 3.30pm and granted…

 

The petitioner stated in her petition that on that 5.12.2014 that after 3pm she went to the High Court and there found no court sitting in the whole Judicial Division and waited there till 4.30pm when the court closed for the day. Certain questions arise which of the High Courts did she go to? If as she claimed, no Court sat why did she state in her affidavit of 22/12/2014 that I granted the order in High Court 5 at 3.30pm. The conflicting assertions by this petitioner should be discountenanced as she cannot make 3 conflicting assertions and be believed – it is either no court sat, or I sat in Court 5 or I sat in Chambers.

 

  1. As to the contention that the matter was adjourned to a Saturday, the claimant’s response was that:

By Order 3 rule 1 of the Cross River State High Court Rules, the Judge has the discretion to appoint any day or days for the hearing of causes and by rule 4 sittings of the High Court for the dispatch of Civil matters will be held on every week day and the exceptions do not include Saturdays. Thus it is not illegal to sit on Saturdays.

 

However, if the court in error fixed a matter for Saturday, that does not nullify the proceedings as same can be taken on the next working or sitting day. So the point is neither here nor there.

 

Let it be noted that by Order 40 rule 5(3) of the said rules the motion on notice shall be filed and entered for hearing within 14 days after the grant of leave. That date may have operated in the mind of the court and it appears to me, it did in the competition (sic) of time.

 

  1. Now part of the arguments of the claimant is that the investigating committee did not even consider his response; for if it did, it would not have suspended him and recommended his compulsory retirement. So, on face value, it is worthwhile to consider the merit of the claimant’s response. First, the claimant had asked why the bailiff stated to the petitioner that the Order was from the court and the case adjourned to 20th December 2014; and then inferred that the bailiff got the order from the court and it was duly signed by him (the claimant) and issued by the Deputy Chief Registrar 1, Leonard A. Awogor Esq. This, as the claimant himself puts it, is an inference. If the claimant actually signed the order, he must be able to say with absolute certainty that he signed the order; not that it should be inferred that he signed the order. In any event, that the bailiff stated that the order was from the court is only prima facie as such, certainly not conclusive that that is the case. The claimant needed to be more affirmative and conclusive than relying on inference. The investigating committee is one set up as a fact finding committee. The facts found cannot be the product of inference.

 

  1. Secondly, the claimant relied on the petitioner’s affidavit of 22/12/2014 to show the falsity of the petitioner’s claim that no court sat on 5th December 2014. The problem with the position of the claimant is that the said affidavit is Exhibit C13, which I earlier indicated is not dated in terms of the endorsement of the Commissioner of Oaths; and on the ground of which I held that in terms of validity as a sworn affidavit, it has no evidential value and is worthless. Being worthless, the claimant cannot rely on it in the manner he presently did. It cannot be helpful to the case of the claimant.

 

  1. Lastly, the claimant argued that it is not illegal to sit on a Saturday; and that even if the court in error fixed the matter on a Saturday, that does not nullify the proceedings. Additionally, that adjourning the case to a Saturday may have been influenced by the thought of the 14 days required to be given within which such a matter must be heard. Here again, we see the claimant’s reliance on inference and conjecture, not facts. But there are worrying angles to all of this. Under cross-examination, the claimant, testifying as CW1, was very categorical that throughout his judicial career, the only time he sat on a Saturday was during election petitions; and that the High Court does not ordinarily sit on Saturday, though Saturday itself is not an off-day. Now, if the claimant throughout his judicial career never sat on a Saturday (excepting when he served on election petitions) how come that 14 days may have operated in his mind as to fix a case on a Saturday? CW3, the only lady to testify in this matter, brought a measure of uncertainty into the mix on this issue. This is in addition to the fact that in answering questions posed under cross-examination as to the issue of adjourning the case to a Saturday, she hesitated a good deal. This is her testimony under cross-examination:

Yes I was in open court the day the matter in contention took place. The matter was a new matter and so was not reflected in our dairy.

The Court’s diary was on the table in open Court.

Yes, as soon as a case is adjourned entry is made in the court’s diary.

Yes, in the instant case, regarding the case at hand, when it was adjourned I [noticed] that it was adjourned to a Saturday and the entry was to a Saturday.

No, the Court did not sit on the day the matter was adjourned to because it was a [non-working day]. The matter was further adjourned. However, the Chief Judge of the State called for the file, which was sent to him.

No, the original register from which Exhibit C23 was extracted from does not have the dates cases are adjourned to. It only has dates that cases were assigned to our court.

Then under re-examination, CW3 testified thus:

The case was adjourned to a Saturday in error as I erroneously gave the Saturday as the adjourned date. It was after the order was drawn that we realised the error.

 

  1. All of this supposedly happened before the claimant responded to the petition against him; yet none of it is reflected in his response (Exhibit C8). Is the evidence of CW3 accordingly an afterthought? I think so. Secondly, CW3 owned up to the error in fixing, to a Saturday, the next adjourned date. In his response to the petition against him, the claimant was legalistic in his answers to the petition. If the error was CW3’s, why couldn’t the claimant simply say so in his response (Exhibit C8)? There is a third point to note; indeed a corollary. In her testimony under cross-examination, CW3 testified thus: “Yes, in the instant case, regarding the case at hand, when it was adjourned I [noticed] that it was adjourned to a Saturday and the entry was to a Saturday”. When CW3 testified here that “when it was adjourned I [noticed] that it was adjourned to a Saturday and the entry was to a Saturday” (the emphasis being on ‘it’), can it in all seriousness be conclusively said that it was CW3 that erroneously adjourned the case to a Saturday? The phrase “it was adjourned” used twice by CW3 and “I [noticed]” do not suggest that CW3 did the adjournment. They suggest that the adjournment was by some other person, certainly not CW3. Yet under re-examination, CW3 would testify thus: “The case was adjourned to a Saturday in error as I erroneously gave the Saturday as the adjourned date. It was after the order was drawn that we realised the error”. Between these two testimonies, the first suggests a certain aloofness or detachment on the part of CW3 different from what one perceives from the second testimony. As it is, therefore, and on face value, the claimant’s response to the petition (Exhibit C8) is not sufficient explanation in itself; it contains its own brand of contradictions as to make it unconvincing. I so find and hold.

 

  1. Exhibit D1 is the report of the investigating committee as to the petition against the claimant. It is the argument of the claimant that there is nothing in Exhibit D1 to show that the petitioner testified at all before the committee not to talk of whether under oath or by affirmation, neither was there any recording of any oral testimony, nor transcript or electronic recording of the proceedings in contravention of regulation 14(2) of the Judicial Discipline Regulations 2014. In paragraph 2.0 of Exhibit D1 under Methodology, it is indicated that the petitioner and the respondent were invited to come along with all supporting documents, counsel and witnesses, if any. And in paragraph 7.0 under findings, it is stated that “the Committee found as a fact by the evidence and exhibits tendered before and during the hearing from both parties and the final written addresses of the parties, as follows…” The use of the phrase “during hearing from both parties” signifies that both the petitioner and the respondent testified. There is another worrying angle here. The claimant is not really saying that the petitioner did not testify, only that Exhibit D1 does not indicate that she testified. In fact, there is no direct averment in the pleadings of the claimant (statement of facts) that the petitioner did not testify; as such, the argument of the claimant that the petitioner did not testify before the investigating committee is one that is not supported by the pleadings. It accordingly goes to no issue.

 

  1. Based on its investigation, the investigating committee in paragraph 7.0 of Exhibit D1 made 7 findings, namely:
  • The respondent claimed that he sat on 5th December 2014 and tendered some exhibits to the affect: viz: cause list of hearing as Exhibit R2, handwritten recording of proceedings as Exhibit R3 and certified true copy of the typewritten record of proceedings of that day as Exhibit R4. It is our view that though the said record of proceedings was stamped and certified, it was not endorsed nor dated by any one. Therefore, the source of the certificate is unknown.
  • The respondent did not present the diary of the court to show that he actually sat on the said day.
  • The petitioner, however, attached a copy of the court’s diary, which showed that there was a matter attended to on 4th December 2014 but there was no case slated for hearing on 5th December 2014. However, the exhibit was also neither certified nor dated, hence it is not a legal document.
  • The respondent did not properly enroll the order to show the court’s decision when the bailiff of the court went to unseal the premisses.
  • The petitioner submitted evidence that she applied for the certified true copy of the purported record of proceedings for the 5th December 2014 but was not given to her since there was no sitting by the respondent.
  • The committee also noted that the respondent did not attach Exhibits R2, R3 and R4 to his response to the Hon. the Chief Justice of Nigeria and that his claim that he could not find the case file appeared to be an afterthought since this was not stated in his earlier response to the petition.
  • The committee is of the view that the respondent, Hon. Justice B. T. Ebuta did not sit on 5th December 2014 as he claimed when he issued the ex parte

 

  1. The investigating committee then in paragraph 8.0 under Recommendations stated thus: “Based on the above findings, the Committee recommends that an appropriate sanction be meted on Hon. Justice B. T. Ebuta for his conduct”. By clause 16(3) of the NJC Judicial Discipline Regulations 2014 (Exhibit C7), “the investigating committee shall submit…a comprehensive report of its investigation, including its findings and recommendations for Council action”. Accordingly, the case of the claimant as per paragraph 27(a) of the statement of facts and paragraph 33(a) of the claimant’s sworn deposition of 24th August 2016 that the investigating committee as constituted has no powers to recommend disciplinary action against the claimant holds no water. I so hold.

 

  1. The NJC met on 2nd June 2016 at its 76th meeting and considered the report of the investigating committee and came to the conclusion “that Hon. Justice B. T. Ebuta should be compulsorily retired and mandated the Chairman to convey its decision to the Governor of Cross River State”. See Exhibit D8. The claimant’s case is that despite all of this, neither the investigating committee nor the NJC itself properly evaluated the evidence before it. The argument of the claimant cannot be. The investigating committee made its findings based on the evidence placed before it, which findings were accepted by the NJC. As it, in terms of the duty placed on the NJC as an employer to justify the recommendation that the claimant be compulsorily retired, I am satisfied that the 1st defendant discharged that duty; and I so find and hold. It is for the claimant, therefore, to impeach the findings; unfortunately, this has not been done in this case. I have indicated earlier how porous and unconvincing the claimant’s response to the petition is. I have also indicated how unconvincing the evidence of CW3 is. Importantly, the evidence sought to be advanced in this case admittedly was not advanced to the investigating committee. For instance, the original register from which Exhibit C23 was extracted was not advanced to the investigating committee; as such it throws up the suspicion that the relevant page was not in existence when the investigating committee sat to consider the issue. CW2 on his part testified under cross-examination that after transmitting the case file to the claimant, he went back to his office to await any feedback. He reconfirmed this testimony; and then stated that this testimony was not availed the NJC investigating committee given that he was not invited. The same is the case regarding the testimonies of CW3 and CW4, which were also not availed the investigating committee. Which evidence then did the claimant state was not evaluated by the investigating committee and the NJC when the said evidence was not made available to them? I do not accordingly see how the investigating committee or the NJC can be said to have erred here.

 

  1. It is the further case of the claimant that before a State Judge can be removed from office by the NJC, the removal must be recommended by the State Judicial Service Commission. To the claimant, DW1 in her testimony under cross-examination stated that the 1st defendant did not receive any recommendation from the Cross River State Judicial Service Commission in respect of the claimant’s removal. The claimant then relied on paragraph 6(b) of Part II of the Third Schedule to the 1999 Constitution, which provides that the State Judicial Service Commission shall have power to, subject to the provisions of this Constitution, recommend to the National Judicial Council the removal of the judicial officers specified in sub-paragraph (a) of this paragraph. The judicial officers so specified are: the Chief Judge of the State; the Grand Kadi of the Sharia Court of Appeal of the State, if any; the President of the Customary Court of Appeal of the State, if any; Judges of the High Court of the State; Kadis of the Sharia Court of Appeal of the State, if any; and Judges of the Customary Court of Appeal of the State, if any. Nweze, JSC in Dr Olubukola Abubakar Saraki v. FRN (supra) had enjoined that the Constitution must be interpreted holistically. Regarding the appointment of the Judges named in paragraph 6(a), the State Judicial Service Commission is simply given the power to advice the NJC on the suitability of persons for nomination to the respective judicial offices. Paragraph 6(a) is not made subject to the provisions of the Constitution. However, when paragraph 6(b) makes provision for the role that the State Judicial Service Commission will play in the removal from office of the judicial officers specified in paragraph 6(a), that sub-paragraph is made subject to the provisions of the Constitution. Paragraph 21 of Part I to the Third Schedule to the 1999 Constitution then provides in sub-paragraph (c) that the NJC has power to recommend from the list of persons submitted to it by the State Judicial Service Commission persons for appointment as judicial officers of the State; and in sub-paragraph (d), the NJC is given the power to recommend to Governors the removal from office of State judicial officers, and to exercise disciplinary control over such officers.

 

  1. The point being made is this: the power of the State Judicial Service Commission to recommend to NJC the removal from office of a judicial officer under paragraph 6(b) of Part II of the Third Schedule to the Constitution is made subject to the provisions of the Constitution; while the power of the NJC to recommend to Governors the removal from office of State judicial officers is not made subject to any provision of the Constitution. What this means is that the power of the NJC under paragraph 21(c) of Part I of the Third Schedule to the Constitution is not made contingent on anything; but the power of the State Judicial Service Commission is contingent on other provisions of the Constitution including paragraph 21 of Part II of the Third Schedule to the Constitution. So, the argument of the claimant that he cannot be recommended for retirement except it is the State Judicial Service Commission that makes the recommendation is one that is not convincing.

 

  1. I must also add that paragraph 6 of Part II of the Third Schedule to the Constitution permits the State Judicial Service Commission to recommend to the NJC the removal of a State judicial officer. What this means is that the State Judicial Service Commission may be seised of adverse information in respect of a State judicial officer. It will be foolhardy not to expect that the State Judicial Service Commission would investigate the information and, if adverse, recommend thereby to the NJC the removal from office of such a Judge. The argument of the claimant that the NJC cannot recommend his compulsory retirement except the recommendation came from the State Judicial Service Commission is accordingly one that is not convincing and sustainable. It is rejected and so discountenanced for purposes of this judgment.

 

  1. On the whole, and on balance, I do not see any merit in the claimant’s case. It fails and is accordingly dismissed.

 

  1. Judgment is entered accordingly. I make no order as to cost.

 

 

 

……………………………………

Hon. Justice B. B. Kanyip, PhD

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