NATIONAL JUDICIAL COUNCIL & ORS. V. HON. MR. JUSTICE C.P.N. SENLONG & ORS.
(2010)LCN/3844(CA)
In The Court of Appeal of Nigeria
On Thursday, the 3rd day of June, 2010
CA/A/81/2008
RATIO
FAIR HEARING: NATURE OF FAIR HEARING
Fair trial or fair hearing is a fundamental prerequisite for a just determination of disputes between parties.
The establishments of the likelihood of bias on the part of a person exercising judicial function in a proceeding vitiates those proceedings for a violation of the maxim. ‘Nemo debet esse judex in propria sua’ – no one should be a Judge in his own cause – knocks at the very root of a fair adjudication under our system. The test of bias is whether there is a reasonable suspicion of bias looked at from the objective standpoint of a reasonable person and not from the subjective standpoint of an aggrieved party.
Fair hearing is not a technical doctrine but a rule of substantial justice and to affect a judgment based on its breach, it has to be shown to have been infringed or clearly threatened with infringement and not merely suspected to have been infringed. Akoh v. Abu (1988) 3 NWLR (pt. 85) 696 at 720 per Oputa JSC.
Fair hearing in the con of section 36(1) of the 1999 Constitution encompasses the platitude of natural justice in the narrow technical scene of the twin pillars of justice, to wit: audi alteram pattern (hear the other party) and nemo judex in causa sua (no one should be a judge in his own cause) as well as in the broad sense of what is not only right and fair to all concerned but also seems to be so. University of Nigeria Teaching Hospital Management Board v. Nnoli (1994) 8 NWLR (pt. 363) 376 at 402; Mohammed v. Olawunmi (1990) 2 NWLR (pt. 133) 458; Nwokoro v. Onuma (1990) 3 NWLR (pt. 136) 22 at 31.
In the observance of the principles of natural justice and the essential requirement of fair hearing, there is a distinction between the recommendation of an investigating panel which has no statutory powers, and the action on the recommendation by a statutory body with requisite statutory powers. Whereas the recommendation of the investigation panel will not affect the civil rights and obligations of the person whose act or omission is being investigated, like the appellant in the instant case, the acting upon such recommendation does. U.N.T.H M.B. v. Nnoli (1994) 4 NWLR (pt. 363) 376 at 404; Aiyetan v. NIFOR (1987) 3 NWLR (pt. 59) 48, Olatunbosun v. NISER (1988) 3 NWLR (pt. 80) 25; Falomo v. Lagos State Public service Commission (1977) NSCC 230 at 239 – 240.
In the realm of administrative law it is settled by a long line of decisions that two cardinal principles – namely, that no person shall be condemned unheard and that none shall be a judge in his own case – are implicit in the concept of fair adjudication by any authority with any duty of exercising supervisory authority and has taken the view that it is no longer necessary, in order to establish that a duty to act judicially applies to the performance of a particular exercise by an administrative body, person or tribunal, to show that the exercise is essentially or analytically of a judicial character or that it involves a determination of a dispute between parties. But a duty on the part of an administrative body to act judicially – in the sense of applying the principle of audi alterem partem may be excluded, expressly or by necessary implication, by statute.
Where a statutory provision excludes the need for prior hearing of the party whose rights are to be affected by the decision of an administrative body, the Courts have in such cases held that if, in addition, the statute contains provisions for an administrative appeal from, or judicial review on, the merits of the decision of that body these are sufficient to negative the existence of any implied duty on the part of such a body (i.e. The administrative body) to apply the audi alteram partem rule before the original decision is made. Falomo v. Lagos State Public Service Commission (1977) NSCC 230 at 239 – 340; In Ex-Parte H.M.H. Publishing Company Inc (1964) Queensland Reports 261 at 289. PER MARY U. PETER-ODILI, J.C.A.
APPEAL: ATTITUDE OF THE APPELLATE COURT TOWARDS THE EXERCISE OF DISCRETION OF THE TRIAL JUDGE
An appellate court would not generally question the exercise of discretion of the trial judge merely because it would have exercised the discretion in a different way if it had been in the position of the trial court. It would however do so if as a result of such exercise, injustice is meted out to either of the parties or that the trial judge gave no weight or gave insufficient weight to important considerations. Per Ogundare JSC. Owodunni v. Registered Trustees of Celestial Church of Christ (2000) 10 NWLR (pt. 675) 315 at 352; Solanke v. Ajibola (1968) 1 AH NLR 46; Saffieddine v. C.O.P (1965) 1 All NLR 54; Enekebe v. Enekebe (1964) 1 All NLR 102. PER MARY U. PETER-ODILI, J.C.A.
EVIDENCE: WHAT SHOULD CONSTITUTE THE ALLEGATION OF BIAS
An allegation of bias or likelihood of bias on the part of a-judge other than on the basis of pecuniary interest must be supported by substantial and unequivocal evidence. It is not enough that the evidence relied on creates suspicions. PER MARY U. PETER-ODILI, J.C.A.
EFFECT OF THE LIKELIHOOD OF BIAS ON ANY DECISION MADE BY THE COURT
Once the likelihood of bias is established, it destroys the foundation of any decision reached or puts a hold on other steps in the cause or matter by the adjudicator. Pavex Int. Co. Ltd. v. International Bank for West Africa (1994) 5 NWLR (pt. 347) 685 at 701 per Uwaifo JSC; Akoh v. Abuh (1988) 3 NWLR (pt. 85) 696; Legal Practitioners Disciplinary Committee v. Fawehinmi (1985) 2 NWLR (pt. 7) 300. PER MARY U. PETER-ODILI, J.C.A.
JUSTICES
MARY U. PETER-ODILI Justice of The Court of Appeal of Nigeria
JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria
ABDU ABOKI Justice of The Court of Appeal of Nigeria
Between
1. NATIONAL JUDICIAL COUNCIL
2. MR. KEHINDE SOFOLA SAN
3. HON. JUSTICE I.A. SOTUMINU
4. MR. T.J. ONOMIGBO IKPOKO SAN
5. HON. GRAND KADI U.Y. ABDULLAHI Appellant(s)
AND
1. HON. MR. JUSTICE C.P.N. SENLONG
2. PRESIDENT OF THE FEDERAL REPUBLIC OF NIGERIA
3. HON. ATTORNEY GENERAL OF THE FEDERATION Respondent(s)
MARY U. PETER-ODILI, J.C.A. (Delivering the Leading Judgment): This is an appeal by the 1st, 4th to 7th Defendants against the judgment of Adah J. of the Federal High Court, Abuja, delivered on 2nd August, 2007. By the said judgment, the trial court granted in favour of the Plaintiff reliefs 1, 2, 3, 6, 7 and 8 which in their full terms read as follows:-
Reliefs granted 1, 2, 3, 6, 7 and 8.
“1. DECLARATION that the proceedings and recommendations of the investigation committee set up by the 1st Defendant at its meeting held on the 6th and 7th of October, 2003 comprising Kehinde Sofola Esq. SAN, CON (Chairman), Hon. Justice I.A. Sotuminu, T.J. Onomigbo Okpoko, Esq. SAN, and Hon. Grand Kadi U. Y. Abudullahi (Members) together with the deliberations of the full council of the 1st defendant on the matter recommending to the 2nd defendants the dismissal of the Plaintiffs are unconstitutional, illegal and therefore null and void.
2. A DECLARATION that the purported removal of the Plaintiff as a judge of the Federal High Court by the 2nd, conveyed to him in writing by the Chairman of the 1st defendant, in as much as it was based on the proceedings of the Investigation committee and the recommendation of the 1st defendant is unconstitutional, null and void and of no effect.
3. A DECLARATION that the tenure of the plaintiff as a judge of the Federal High court is still subsisting.
6. AN ORDER setting aside the proceedings and recommendations of the Investigation committee set up by the 1st defendant at its meeting held on the 6th and 7th of October, 2003 comprising of Kehinde Sofola Esq. SAN, CON, (Chairman), Hon. Justice I. A. Sotuminu, T. J. Onomigbo Okpoko, Esq. SAN, and Hon. Grand Kadi U.Y. Abdullahi (members) together with the deliberations of the full council on the matter recommending to the 2nd defendant the dismissal of the plaintiff.
7. AN ORDER setting aside the removal of the plaintiff, as a judge of the Federal High Court of Nigeria by the 2nd defendant, which fact was communicated to him by the chairman of the 1st defendant through a letter dated the 16th of March, 2004.
8. AN ORDER reinstating the plaintiff to his office as a judge of the Federal High Court forthwith.
The learned trial judge dismissed Plaintiff’s reliefs 4, 5, 9 on the grounds that they were not proved.
INTRODUCTION:
1. The appellants are (1) the National Judicial Council (hereinafter referred to as the NJC (2) Hon. Justice I. A. Sotuminu, (3) Mrs. T.J. Onomigbo Okpoko and (4) Hon. Grand Kadi U.Y. Abdullahi. The NJC is a creature of the 1999 Constitution by virtue of the provisions of Section 153 and paragraphs 20 and 21 of the 3rd Schedule of the said Constitution. While the other appellants are council members who took part in the disciplinary proceedings which led to the removal of the 1st respondent who was dismissed from judicial service by exhibit 13, a letter dated 16th of March, 2004 under the hand of the then chairman of the 1st appellant Hon. M.L. Uwaise GCON formerly Chief Justice of Nigeria. Before the aforedescribed exhibit, the NJC had by exhibit 6 admitted in this lower court invited the plaintiff to appear before ‘the investigating committee’. In this regard, the report or petition of Hon. Matilda Adamu J. and other annexure were forwarded to the petitioner by the committee for the purpose of entering his representation and or defence when he appeared before the committee.
2. In a nutshell, the complaint or report of Hon. Matilda Adamu J. was to the effect that while carrying out her assignment as Chairman of the Akwa-Ibom Governorship Election Tribunal, the plaintiff made efforts to persuade her to favour ‘his friend’ one Dr. Samson Umanah in the resolution of the election petition filed by the latter before the said Tribunal. However, the Investigating committee of the NJC was also in the same process or transaction adjudicating over another petition or report, this time submitted by Dr. Umanah alleging that in the determination of his petition, his opponent, the incumbent governor of their State gave all the members of the Tribunal large monetary bribe, which they received (collected) and acted upon, to his detriment. 3. The NJC set up an Investigation Committee in commencement of the disciplinary procedure against the 1st respondent, the committee sat, took evidence and presented its report to the full body of the NJC. After deliberations, again with the 2nd – 4th appellants’ participating, the NJC recommended to the 2nd respondent the immediate removal from office as a judge of the Federal High Court which the former ie. the President accepted. Being aggrieved by these actions, particularly, his removal from office, the 1st respondent commenced action by way of a writ of summons and pleadings in the Federal High Court for declarations and injunctive orders to set aside his removal from office.
The learned trial Judge in a considered judgment granted the plaintiff’s reliefs 1, 2, 3, 6, 7 and 8 and in effect nullified the 1st Respondent’s removal as a judge of the FHC and ordered his immediate re-instatement
The 1st Respondent cross-appealed as Cross Appellant being dissatisfied with some aspects of the judgment. This will be dealt with later after consideration of the appeal.
The Notice and Grounds of appeal with their particulars are as follows:-
NOTICE OF APPEAL:
Take notice that 1st, 5th to 7th Defendants being dissatisfied with that part of the decision of the Federal High Court Sitting at Abuja contained in the judgment of Adah J. dated 2nd August 2007 particularly stated in paragraph 2 doth hereby appeal to the Court of Appeal upon the grounds set out in paragraph 3 and will at the hearing of the appeal seek the reliefs set out in paragraph 4. And the appellants’ further state that the names and addresses of the persons directly affected by the appeal are those set out in paragraphs.
2) PART OF THE DECISION OF THE LOWER COURT COMPLAINED OF: That part only granting 1st Respondent’s relief 1, 2, 3, 6, 7 and 8 of the amended statement of claim.
3) GROUNDS OF APPEAL:
i. The learned trial Judge erred in law in nullifying the proceedings of an investigating panel of the 1st Appellant on the ground that nominees of N.B.A. in 1st appellant participated in the panel investigation when:
a. the Judge found no proof that NBA nominees sat in Council meeting to exercise Council powers under clause 20 (b) of the 3rd Schedule of the 1999 Constitution of the Federal Republic of Nigeria.
b. the restriction on NBA nominees participation under clause 20(i) of the 3rd schedule to the constitution is only in respect of sittings of the Council itself.
c. Panel of investigation is not NJC and proceedings of such a panel is not proceeding or sitting of council within the proviso to Clause 20 (i) of the 3rd schedule to the Constitution or a proceeding to exercise Council’s power under Clause 21(b) of the 3rd schedule of the 1999 Constitution.
ii. The learned trial Judge erred in law in setting aside the recommendation of Council that 1st Respondent be removed as Judicial officer for misconduct on the ground of a composition of a panel of investigation set up by council to investigate allegations of misconduct against 1st Respondent in that:
a. Investigation of complaint against Judicial Officer received by Council is a condition precedent to any exercise of the powers of Council under Clause 20(b) of the 3rd Schedule of the 1999 Constitution of the Federal Republic of Nigeria.
b. Investigation of complaints against Judicial Officers received by Council is an inherent function which Council is entitled to delegate to any person or body of persons to investigate.
c. Composition of investigating Panel or the choice as to who serves in such a panel is an internal affair of Council.
d. Council is entitled to investigate complaints received through any person or body of persons as Council may in its absolute discretion determine.
iii. The learned trial Judge erred in holding that Investigating Committee/Panel set up by the 1st Defendant and consisting of Kehinde Sofola, SAN and Mr. T.J. Onomigbo Okpoko, SAN to investigate allegations of misconduct against the plaintiff was unconstitutional null and void when:
a. S.158 (1) of the 1999 Constitution of the Federal Republic of Nigeria provides that the National Judicial Council’s decisions disciplinary control of the plaintiff is not subject to the control of any authority.
b. The proviso to paragraph 20 of the third schedule, part 1 of the 1999 Constitution did not fetter the powers of the 1st Defendant to appoint legal practitioners into its committee for the purpose of investigating allegations of misconduct against a judicial officer.
iv. Further grounds of appeal may be filed upon receipt of records.
4. Relief sought from the Court of Appeal:
An Order allowing the appeal, set aside the judgment of the Federal High Court granting Plaintiff reliefs 1, 2, 3, 6, 7, and 8 of the Amended Statement of Claim and in its place, order a dismissal of the claim in its entirety.
Mr. Ajuyah SAN for the Appellants adopted their Brief filed on 3/4/09 and the Reply Brief filed on 30/9/09 and deemed filed on 20/9/09. He referred to an additional ground of appeal filed by leave on Court on 6/4/09 and the filing done on 31/3/09. The Appellant framed two issues for determination which are:-
(i) Whether the learned trial Judge wan right in holding that the proceedings and or recommendations of the 1st appellant and or its Committee were conducted in breach of Paragraph 20 (i) of part 1 of the 3rd Schedule of the Constitution of the federal Republic of Nigeria 1999.
(ii) Whether in the circumstances of this case, the learned trial Judge was right in granting the reliefs 1, 2, 3, 6, 7 and 8 in the amended statement of claim.
Mr. Okeaya-Inneh SAN learned counsel for 1st Respondent adopted their Appellant’s Brief which also contained their Cross-Appellants Brief filed on 17/6/09. He referred to their Preliminary Objection on 17/6/09 which arguments were incorporated in this 1st Respondent’s Brief. He formulated one issue for determination and that is:
Whether the learned trial judge was correct when he found that the participation of the two legal practitioners Messrs Sofola SAN (deceased) and Okpoko SAN in the process of the discipline of the 1st Respondent was contrary to the letter of the 1999 Constitution which absolutely barred legal practitioners in the NJC from participating in the discipline of judges thereby rendering the removal of the 1st Plaintiff null and void and of no effect.
For the 2nd and 3rd Respondents was filed no Brief because counsel on their behalf, Mr. Ndukwe said they were sitting on the fence. It is clear that I shall tackle the Preliminary Objection of the 1st Respondent before anything else.
PRELIMINARY OBJECTION:
The 1st Respondent’s Notice of Preliminary Objection pursuant to Order 10 Rules 1 – 3 of the Court of Appeal Rules are in the following terms:-
1. By a combination of the following factors (i) Non filing of an appeal by the 2nd and 3rd Respondents who were 6th and 7th Defendants at the Federal High Court Abuja against the judgment of Adah J. and (ii) The restoration c; Senlong 3. to his office by the President of the FRN through a letter of 9th August 2007 from the office of the Attorney-General of the Federation and Minister of Justice to the Chief Judge of the FHC these respondents have no disagreement or dissatisfaction with the judgment subject matter of this appeal and thus, there is no controversy or live issue between the present appellant’s and the 1st Respondent.
2. With the endorsement by the President of the FRN and the AGF (2nd and 3rd Respondents herein) of the judgment of Adah J. subject matter of the appeal, the 1st-4th Appellants have lost the locus standi to initiate and or continue with the present appeal and it should therefore be dismissed.
Mr. Qkeaya-Inneh SAN, learned counsel for the 1st Respondent in pushing for this objection referred to the 4 paragraph supporting affidavit to which a letter from the Attorney General addressed to the Chief Judge of the Federal High Court directing her to forthwith reinstate the 1st Respondent is annexed which directive has not been carried out. That the National Judicial Council (NJC) is a creature of the 1999 Constitution by virtue of Section 153 and paragraphs 20 and 21 of the 3rd Schedule of the said Constitution. That the powers of the NJC as they relate to judicial officers of the 1st Respondent’s caliber is fixed and definite and limited only to recommending to the President a course of action arrived at by council. Mr. Okeaya-Inneh stated that in this instance 1st – 4th Appellant’s recommended to the President the removal of the 1st Respondent, which recommendation the president accepted and 1st Respondent being aggrieved went to court which challenge was adjudged successful by Adah J. which decision the President of Nigeria did not appeal and so the 1st Respondent ought to have been re-instated, in accordance with the further directive of the President, through the Attorney General has not appealed that judgment of the Court below. Therefore making this appeal an anomalous situation and the appeal a dead matter. He cited Mobil Producing (Nig.) Unlimited v. Monokpo (2003) 18 NWLR (pt. 852) 346 at 399; Attorney-General of the Federation v. All Nigeria Peoples Party & 2 ors (2003) 18 NWLR (pt 851) 182 at 210.
That this Court should allow the Preliminary Objection and strike out the appeal.
In response to the Preliminary Objection, Mr. Ajuyah SAN for the Appellants, said by the judgment, the learned trial Judge made specific findings against the Appellants and consequently granted reliefs 1, 2, 3, 6, 7 and 8 which reliefs touch on the dudes and statutory functions of the Appellants as National Judicial Council and not the Federal High Court. That the Appellants as a statutory body and as parties sued in the case are entitled to be dissatisfied with the judgment notwithstanding the views of the other parties to the case. Mr. Ajuyah said the Attorney General does not and did not control or act for the Appellants. That the Appellants were established by the 1999 Constitution by paragraph 20 of the 3rd Schedule Part 1 of the 1999 Constitution. That 2nd and 3rd Respondents are not members of the 1st Appellant and cannot therefore control the 1st Appellant in matters connected with discipline. He cited Section 158(1) of the 1999 Constitution. Mr. Ajuyah SAN further stated that the letter dated 9th August, 2007 from the Attorney General to the Chief Judge of the Federal High Court cannot bind the Appellants and divest them of their Constitutional right of appeal. That the case of Mobil Oil Producing (Nig.) Unlimited v. Monokpo (supra) is distinguishable as the facts are not apposite. That the appeal raises live issues which cannot be correctly described as academic. He referred to the case of Attorney General of Federation v. All Nigeria Peoples Party & 2 ors (2003) 18 NWLR (pt. 851) 182.
The 1st Respondent’s contention in this Preliminary Objection is for this appeal to be terminated in limine and at this point on the basis that there is no live issue for determination. This stance the Appellants have rejected. On my part 1 shall recast section 158(1) of the 1999 Constitution, which has provided thus.
“In exercising its power to make appointments or to exercise disciplinary control over any person, the code of Conduct Bureau, the National Judicial Council (underlining Mine), the Federal Civil Service Commission, the Fiscal Commission, the Federal Character Commission, and the Independent National Electoral Commission, shall not be subject to the direction or control of any other authority or person”.
In line with this provision above quoted it is without doubt that the disciplinary control and powers exercisable by the Appellants are not to be scuttled or frustrated by any one in whatever position or authority. Also are the powers of the 1st appellant, National Judicial council to recommend to the President of Nigeria the removal from office of a Judicial Officer specified in paragraph 21 (4) (a) of the 3rd Schedule to the Constitution.
Taken together therefore the mere fact that the President or the Attorney-General acting on his behalf wants a removed officer re-instated by the judgment of Court of First instance to which the President and Attorney General have no wish to appeal against would not divest the Appellants if aggrieved as in this instance from ventilating that grievance at this stage. It is therefore to be noted that the case of Mobil Producing (Nig.) Unlimited v. Monokpo (2003) 12 SC (pt. 11) 50 has been quoted out of con by the Respondent as the circumstances in the Monokpo case are different to the case in hand. This is because in Monokpo’s case the Supreme Court found the 1st defendant not an aggrieved party that could appeal since it was not a party in the proceedings in the Court below. That is not the situation here, where the Appellants were parties in the Court of first instance and are therefore entitled to seek redress by appeal.
It is in the light of the facts in existence in this appeal that it is indeed wrong to describe this appeal as not a live issue or an academic one at that. There is enough upon which the appellants can and have indeed come here to ask some salient questions which this Court is duty bound to consider. It is on the reasons above stated that the case of Attorney General of the Federation v. All Nigeria Peoples Party & 2 ors (2003) 18 NWLR (p. 851) 182 cannot avail the Respondent to have this appeal extinguished at this point.
The Objection lacking in merit, I hereby dismiss it. I shall now proceed to the appeal proper in which I shall utilise the two issues formulated by the Appellants as they seem to me simpler to follow.
ISSUE No. 1:
Whether the learned trial Judge was right in holding that the proceedings and or recommendations of the 1st Appellant and or its Committee were conducted in breach of Paragraph 20(i) of part of the 3rd Schedule of the Constitution of the Federal Republic of Nigeria, 1999.
In arguing this issue 1 Mr. Ajuyah SAN for the Appellants referred to the evidence at the trial Court and the pleadings, contending that having regard to the state of the pleadings, the onus of proof rested on the 1st Respondent who asserted the breaches of the Constitution to discharge the burden of proof. That fair hearing was not denied the 1st Respondent in the investigation of the complaints of misconduct. He referred to Seismograph Services Nig. Ltd v. Mark (1993) 7 NWLR (pt. 304) 203; Ojo v. Charoro (2006) All FWLR (pt. 316) 197; Section 292 (i) of the Constitution.
Learned counsel for the Appellants submitted that the fact that Mr. Kehinde Sofola SAN 2nd Appellant and the 4th Appellant, Chief Onomigbo Okpoko SAN were legal practitioners and participated in the investigation of the complaints made against the 1st Respondent did not violate any provision of the 1999 Constitution. That by virtue of sections 158(1) and 160(1) and (2) of the 1999 Constitution, the 1st Appellant is entitled to regulate its own procedure for the purpose of discharging its functions under the Constitution including determining who to use for its internal investigations or fact finding committee and the 1st Appellant cannot be subjected to the control or direction of any authority in this regard, he cited paragraph 20 (1) of Part 1 in the 3rd Schedule of the 1999 Constitution; Bronik Motors Ltd & anor v. Wema Bank Ltd (1983) 6 SC 158 at 327; Akibu & 7 ors v. Mbadugha (1984) 7 SC 79 at 164; Peterside v I.M.B. (Nig.) Ltd. (1993) 2 NWLR (pt. 278) 712 at 731; Section 10 (2) of the Interpretation Act, Cap 192 Laws of Federation, 1999.
Learned counsel for the Appellants said that the allegation by the 1st Respondent that 4th Appellant and Mr. Kehinde Sofola SAN, 2nd Appellant participated in the taking of the decision in the meeting of Exhibit 8 whereat the 1st Appellant recommended the removal of the 1st Respondent from office was not proved. That as regards to the unchallenged evidence of the DW1 and DW3 that the deliberations and business of Council on 6th and 7th of October, 2003 and 13th and 14th of January, 2004 were not exclusively for discipline matters it is submitted that the 1st Respondent did not prove breach of Constitution by mere tendering of Exhibits 4 and 8. He cited Terab v. Lawan (1992) 3 NWLR (pt. 231) 569 at 590; Doukpolagha v. Alamieyeseigha (1999) 6 NWLR (pt. 607) 502 at 513.
Learned counsel for the Appellants stated that in the absence of a clear, precise and positive evidence of the participation of members of the Investigation Committee or the Lawyer members in the decision of the 1st Appellant.
That the judgment of the learned trial judge that 1st Appellant violated the Constitution is speculative since being one that should by proved by evidence and on the balance of probability to be discharged by the 1st Respondent which he failed.
Responding learned counsel for the 1st Respondent, Mr. Okeaya-Inneh SAN referred to the judgment and the Report submitted to the 1st Appellant and the minutes of the meeting of 1st Appellant and those present. He submitted that the fact that the presence of lawyers or legal practitioners in the disciplinary records of the NJC is clearly a violation of the 1999 Constitution. He referred to paragraphs 20, 21 and 22 of the 3rd Schedule to the Constitution and that by the literal and ordinary interpretation to the provision-; legal practitioners were to be excluded from matters of discipline of judicial officers. He referred to Odgers; Construction of Deeds and Statutes 5th Edition page 317; Erne v. State (1964) All NLR 409 at 43.
Mr. Okeaya-Inneh stated on that it was unconstitutional for the two eminent legal practitioners to have taken part in the council’s discipline or investigation of a judicial officer i.e plaintiff/ Respondent. That all bodies conferred with power under the constitution are expected to exercise such powers within the four corners of the constitution. He referred to Osafile v. Odi (No.l) (1990) 3 NWLR (pt. 137) 130 at 161; Anismic Ltd. v. The Foreign Compensation Commission & anor (1969) All ER 208 at 233; U.N.T.H.M.B. v. Nnoli (1994) 8 NWLR (pt. 363) 376 at 401, 413; Adigun v. Attorney General of Oyo State & ors (1987) 1 NWLR (pt. 53) 678 at 709; Madukolu v. Nkendilim (1962) 2 SCNLR 341; Attorney General Lagos State v. Dosumu (1989) 3 NWLR (pt. 11) 552.
He said that it is settled law that statutory disciplinary functions cannot be delegated. That the conduct and proceedings of the ‘Sofola Committee’ was entirely judicial and this body exercised powers no different from a court of law and so such a Committee in exercise of such powers ceases to be a fact finding panel and the Constitutional provisions as to mode of the exercise of those powers must be adhered to; otherwise their proceedings including recommendations would be a nullity. He cited Olaye v. chairman Medical and Dental Practitioners (1997) 7 NWLR (pt. 506) 550 at 565; Falomo v. L.S.P.D.C. (1977) 11 NSCC 230 at 239/240; 5th Edition of De Smith
Woolf and Jowell Judicial Review of Administrative Action PP 358 – 359.
In reply on points of law, Mr. Ajuyah for the Appellants said that 1st Appellant did not delegate the powers of investigation to the Committee nor did it delegate the powers to recommend the 1st Respondent for removal from office. He cited Idoniboye Obu v. NNPC (2003) 1 SC (pt. 1) 40; Adegoke Motors Ltd. v. Adesanya (1989) 3 NWLR (pt. 109) 250 at 265 – 266.
He further submitted that the case of Olaye v. Chairman Medical and Dental Practitioners Tribunal (1997) 5 NWLR (pt. 506) 550 and Falomo v. LSPDC (1977) 11 NSCC 230, did not apply herein since in Olaye’s case the disciplinary procedure adopted violated all known norms and principles for a fair hearing which fair hearing principles were not violated in the instant situation by the 1st Appellant.
On this matter of the contending parties different notions on whether the hearing by the Appellants especially the 1st Appellant was in compliance with the principles of fair hearing that is that the party must be properly given the opportunity to be heard and that the adjudicating body which in this instance was the 1st Appellant did not constitute itself into a judge in its own cause. The matter of fair trial or hearing has to be deeply explored. Fair trial or fair hearing is a fundamental prerequisite for a just determination of disputes between parties. The establishments of the likelihood of bias on the part of a person exercising judicial function in a proceeding vitiates those proceedings for a violation of the maxim. ‘Nemo debet esse judex in propria sua’ – no one should be a Judge in his own cause – knocks at the very root of a fair adjudication under our system. The test of bias is whether there is a reasonable suspicion of bias looked at from the objective standpoint of a reasonable person and not from the subjective standpoint of an aggrieved party.
Fair hearing is not a technical doctrine but a rule of substantial justice and to affect a judgment based on its breach, it has to be shown to have been infringed or clearly threatened with infringement and not merely suspected to have been infringed. Akoh v. Abu (1988) 3 NWLR (pt. 85) 696 at 720 per Oputa JSC.
Fair hearing in the con of section 36(1) of the 1999 Constitution encompasses the platitude of natural justice in the narrow technical scene of the twin pillars of justice, to wit: audi alteram pattern (hear the other party) and nemo judex in causa sua (no one should be a judge in his own cause) as well as in the broad sense of what is not only right and fair to all concerned but also seems to be so. University of Nigeria Teaching Hospital Management Board v. Nnoli (1994) 8 NWLR (pt. 363) 376 at 402; Mohammed v. Olawunmi (1990) 2 NWLR (pt. 133) 458; Nwokoro v. Onuma (1990) 3 NWLR (pt. 136) 22 at 31.
In the observance of the principles of natural justice and the essential requirement of fair hearing, there is a distinction between the recommendation of an investigating panel which has no statutory powers, and the action on the recommendation by a statutory body with requisite statutory powers. Whereas the recommendation of the investigation panel will not affect the civil rights and obligations of the person whose act or omission is being investigated, like the appellant in the instant case, the acting upon such recommendation does. U.N.T.H M.B. v. Nnoli (1994) 4 NWLR (pt. 363) 376 at 404; Aiyetan v. NIFOR (1987) 3 NWLR (pt. 59) 48, Olatunbosun v. NISER (1988) 3 NWLR (pt. 80) 25; Falomo v. Lagos State Public service Commission (1977) NSCC 230 at 239 – 240.
In the realm of administrative law it is settled by a long line of decisions that two cardinal principles – namely, that no person shall be condemned unheard and that none shall be a judge in his own case – are implicit in the concept of fair adjudication by any authority with any duty of exercising supervisory authority and has taken the view that it is no longer necessary, in order to establish that a duty to act judicially applies to the performance of a particular exercise by an administrative body, person or tribunal, to show that the exercise is essentially or analytically of a judicial character or that it involves a determination of a dispute between parties. But a duty on the part of an administrative body to act judicially – in the sense of applying the principle of audi alterem partem may be excluded, expressly or by necessary implication, by statute.
Where a statutory provision excludes the need for prior hearing of the party whose rights are to be affected by the decision of an administrative body, the Courts have in such cases held that if, in addition, the statute contains provisions for an administrative appeal from, or judicial review on, the merits of the decision of that body these are sufficient to negative the existence of any implied duty on the part of such a body (i.e. The administrative body) to apply the audi alteram partem rule before the original decision is made. Falomo v. Lagos State Public Service Commission (1977) NSCC 230 at 239 – 340; In Ex-Parte H.M.H. Publishing Company Inc (1964) Queensland Reports 261 at 289.
It is always necessary to exercise powers conferred by an enabling statute within the four corners of the statute.
In the exercise of its disciplinary authority over judicial officers, the National Judicial Council or Committee on behalf of the Council committee must observe the Rules of Natural Justice. Not only must it not be biased against the judicial officer whose conduct is being questioned but also it must not place itself in a position in which it may appear that there is a real likelihood of bias. These rules of natural justice apply to both judicial and administrative determinations. They are not limited to judicial decisions. Osafile v. Odi (No.1) 1990 3 NWLR (pt. 137) 130; Legal Practitioners Disciplinary Committee v. Fawehinmi (1985) 2 NWLR (pt. 7) 300.
The term “real likelihood” may not be capable of exact definition since circumstances giving rise to it may vary from case to case but it must mean at least a substantial possibility of bias. This may arise because of personal attributes and relationships such as personal hostility, personal friendship, family relationship, professional or vocational relationship, employer and employee relationship, partisanship in relation to the issue at stake and a whole host of other circumstances from which the inference of a real likelihood of bias may be drawn. The test is objective not subjective and any reasonable man faced with the facts and circumstances of the case will genuinely fear the likelihood of bias.
Legal Practitioners Disciplinary committee v. Fawehinmi (1985) 2 NWLR (pt. 7) 300 wherein the Supreme Court stated as follows:-
“The Legal Practitioners disciplinary Committee is a Tribunal created by Statute. This Committee is not a pre-trial Investigator and its duty is purely adjudicative to consider and determine any case charging a Legal Practitioner with misbehavior i.e breach of Code of conduct for Legal Practitioners. Its direction is equivalent to sentences passed by a Court of Law after conviction or a finding of guilt. It is the accepted law that basic procedural and other requirements of the Rules of Natural Justice have to be observed by every Tribunal or authority which is under a duty to Act judicially.”
The crucial part of the judgment of the learned trial judge will be captured here. Wherein he stated thus:-
“Exhibit 8 is the certified true copy of the minutes of the 1st Defendant on 13th and 14th January, 2004. The record shows that the 4th to 6th Defendants were listed as present. See the list of those present No. 16th, 13th, and 18th respectively. The 7th Defendant was listed as absent. In that exhibit 8 it was clearly indicated that the plaintiff’s issue was tabled there. Paragraph 6.26 states:-
“6.26 corruption by the Governorship and legislative Election Tribunal Akwa Ibom State:
The Chairman of the National Judicial Council Investigation Committee on the governorship and Legislative Election Petition Tribunal, Kehinde Sofola, Esq., CON, SAN, reported that the Committee had concluded its assignment.
Members took note”.
Then in paragraph 8 it was recorded:
Consideration of Investigation Reports on complaints of corruption by the Governorship and Legislative Election Tribunal, Akwa Ibom State:
The Chairman of the Investigation committee, Kehinde Sofola, Esq., CON, SAN, craved the indulgence of the Council for a Member of the Committee, T.J.O. Okpoko, and Esq., SAN, to present the Report on behalf of the Committee.
The request was granted.
………………………………
Thereafter, Mr. Okpoko presented the Report. He explained that only three of the Members of the Committee namely:
Kehinde Sofola, Esq. CON, San;
Hon. Justice LA. Sotuminu; and
T.J.O. Okpoko, Esq., SAN.
Signed the Report while the fourth Member, Hon. Grand Kadi, U. Y. Abdullahi, could not sign because he travelled to Saudi Arabia for medical treatment and to perform the Hajj.
He further reported that the Report was contained in two parts – A and B, while the conclusion and recommendations were at pages 76-78 and 78-80, respectively.
Hon. Justice P. Nnaemeka-Agu, CON, moved the motion for the adoption of the Report and was supported by Hon. Justice B.O. Babalakin, CON.
Thereafter, a Member noted that, given the volume of the Report and the proceedings, it had been a trying moment for the investigation Committee. He accordingly moved for the acceptance of the Report and recommended outright dismissal for the indicated Judicial Officers.
Another Member requested to know why the Hon. Chief Judge of Akwa Ibom State was exonerated.
A member of the Committee read out the portion that exonerated the Hon. Chief Judge and Council noted that the Hon. Chief judge and Council noted that the Hon. Chief Judge was given benefit of the doubt.
Another Member expressed regret that the politicians stayed behind the scene and used the Judicial Officers, who were Members of Tribunal, to commit an offence for which they were being punished. He wished that the politicians, who used the Judicial Officers, were linked to the matter and equally punished, A member also thanked the Committee for an excellent job and expressed regrets that Hon. Justice C.P.N. Senlong, whom she described as a good judicial Officer, got entangled in the sordid affair.
After further deliberations, Council accepted the Recommendation of the Investigation Committee that the following:
Hon. Justice Adamu, High Court of Plateau State;
Hon. Justice D.T. Ahura, High Court of Benue State;
Hon. Justice A. M. Elelegwu, Customary court of Appeal, Delta
State; And
Hon. Justice C.P.N. Senlong, Federal High Court, Lagos Division, should be removed from office by dismissal, as Judicial Officers.” (Underlining mine)
It is very evident and clear from Exhibit 8 that the Members of the investigation committee (except the 7th Defendant) were present in that meeting of the 1st Defendant and the 1st Defendant there and then deliberated on the report and accepted the recommendation of the investigation committee. There was no indication anywhere that the committee members after presenting their report were excused from the meeting before the deliberation of the report. There is no other presumption apparent in this circumstance other than the fact that the members of the Investigation Committee were present while the decision was taken on the report of their committee.”
From what was before the learned trial Judge to what he found and the conclusion he reached, there was a gaping hole which only the Appellants could fill and that is in connection with the allegation by 1st Respondent that two of the members of the Investigating Panel of 1st Appellant namely Chief Kehinde Sofola SAN and Onomigbo Okpoko SAN both Appellants were also part of the deciding body that considered the Report they submitted. That Report made by the two and other members of the Investigating panel after considering their investigative proceedings against the 1st Respondent. The 1st Respondent having elaborately raised these issues and referred to the Minutes the onus shifted to the Appellants to debunk that assertion which the Respondent established, and for the Appellants to show that the assertion that the same prosecutors, so to speak became part of the panel of judges thereby judging in their own cause. The Appellants failed woefully in this regard and nothing short of the fair hearing guaranteed by Section 36 of the 1999 Constitution would suffice. There is no shortcut. I place reliance on the following:
Akoh v. Abuh (1988) 3 NWLR (pt. 85) 696 at 720; University of Nigeria Teaching Hospital Management Board v. Nnoli (1994) 8 NWLR (pt. 363) 376 at 402; Aiyetan v. NIFOR (1987) 3 NWLR (pt. 59) 48.
The likelihood of bias” having been thrown up by possibly the negligent in the course of the proceedings of the 1st Appellant, it therefore becomes moot to enter into whether or not the Respondent committed the offence for which he was being tried. I refer to the case of the Legal Practitioners Disciplinary Committee v. Chief Gani Fawehinmi (1985) 2 NWLR (pt. 7) 300.
The 1st Appellant was right or had the power to empanel for investigation of any judicial officer either members of the council whether practicing legal practitioners or not or persons from outside the council. Also not important is whether or not legal practitioners are to be part of the investigating panel when there is a report against a judicial officer.
In answer to the issue I answer positively that the learned trial judge was right in holding that the proceedings and recommendations of the 1st Appellant and its Committee were in breach of Paragraph 20(1) of part of the 3rd Schedule of the 1999 Constitution of the Federal Republic of Nigeria, since the legal practitioners who participated in the investigation were also part of the membership of the Council that accepted and utilised the recommendations.
The proviso to Section 20 (i) of the 3rd Schedule was breached. I shall recast that proviso hereunder:-
“Provided that the five members shall sit in the Council only for the purposes of considering the names of persons for appointment to the Superior court of records”.
ISSUE NO. 2:
Whether in the circumstance of this case the learned trial judge was right granting the Reliefs 1, 2, 3, 6 and 8 in the Amended Statement of Claim.
Mr. Ajuyah SAN for the Appellants contended that by Exhibits 1 and 14 the act of misconduct is that the 1st Respondent interfered with the administration of justice by influencing members of the Tribunal in respect of an election petition before the tribunal, which allegation 1st Respondent did not deny stating that he travelled from Lagos to Jos and from Lagos to Calabar to make contact with members of the tribunal. That this act of misconduct raised the question of 1st Respondent’s integrity in the administration of justice. That the judgment did not exonerate 1st Respondent from the acts of misconduct. Learned Senior Counsel for the Appellants said 1st Respondent being a judicial officer, should have been above board and so the learned trial judge was wrong in granting the reliefs considering the grave consequences in the administration of justice. He placed reliance on Owodunni v. Registered Trustees of CCC (2000) 10 NWLR (pt. 675) 315 at 348-352; Armstrong v. Sheppard & Short Ltd (1959) 2 Q.B 384.
That since the learned trial Judge wrongly exercised the discretion in favour of the 1st Respondent wrongly, this Court should interfere to right the wrong.
In response, learned counsel for the 1st Respondent contended that there is manifest illegality in the composition of the 1st Appellant when it allowed a tainted committee of itself comprising 2 eminent lawyers to participate in the discipline of a judicial officer and so the conclusion of the trial court was correct and should be affirmed here.
To enter into this Issue No. 2 I shall like to have recourse to some decided cases either by this Court or the Apex in its consideration of the guiding principles.
An appellate court would not generally question the exercise of discretion of the trial judge merely because it would have exercised the discretion in a different way if it had been in the position of the trial court. It would however do so if as a result of such exercise, injustice is meted out to either of the parties or that the trial judge gave no weight or gave insufficient weight to important considerations. Per Ogundare JSC. Owodunni v. Registered Trustees of Celestial Church of Christ (2000) 10 NWLR (pt. 675) 315 at 352; Solanke v. Ajibola (1968) 1 AH NLR 46; Saffieddine v. C.O.P (1965) 1 All NLR 54; Enekebe v. Enekebe (1964) 1 All NLR 102.
Great caution need be taken when handling an employee accused of gross mis-conduct. It is not enough where a person is being accused of misconduct that may lead to termination of his appointment to invite him as a witness only before an investigation panel set up for the purpose nor can it be assumed that because he was invited to testify then he was aware of the nature of the allegations against him. There is nothing known to law like a charge by presumption or by implication. U.N.T.H.M.B. v. Nnoli (1994) 8 NWLR (pt. 363) 376 at 405, 407 – 408; Garba v. University of Maiduguri (1986) 1 NWLR (pt. 18) 550; Aiyetan v. NIFOR (1987) 3 NWLR (pt. 59) 48; Adeniyi v. Governing council of Yaba College of Technology (1993) 6 NWLR (pt. 300) 426, Adedeji v. Police Service Commission (1968) NMLR 102.
At the risk of over – emphasis in cases of misconduct bordering on criminality like the case in hand, some standard is expected in the process.
All that is required of an employer before similarly dismissing an employee is to give him fair hearing by confronting him with the accusation made against him and requiring him to defend himself. Stated differently, to satisfy the rule of natural justice and fair hearing a person likely to be affected directly by disciplinary proceedings must be given adequate notice of the allegation against him to afford him opportunity for representation in his own defence. See Arinze v. First Bank of Nigeria Ltd. (2004) 12 NWLR (pt. 888) 663 at 675 – 676, 679; Yusuf v. Union Bank of Nigeria Ltd (1996) 6 NWLR (pt. 457) 632; Nwobosi v. A.C.B. Ltd. (1995) 6 NWLR (pt. 404) 658; Olatubosun v. NISER (1988) 3 NWLR (pt.80) 25.
The Respondent had made quite some fuss that since the allegations against him were of a criminal nature nothing short of a trial in a Court of law would be sufficient before his employment would be terminated. It is to be said that in statutory employment, as well as in private employment, the employer can dismiss an employee where the accusation against such employee Is of gross misconduct involving dishonesty bordering on criminality, and in such a case, it is not necessary, nor is it required under Section 36 (1) of the 1999 Constitution that the employee is first tried in a court of law. Arinze v. First Bank of Nigeria Ltd. (2004) 12 NWLR (pt. 888) 663 at 673; 765, 676 – 677 (SC); Federal Civil Service Commission v. Laoye (1989) 2 NWLR (pt. 106) 652; Garba v. University of Maiduguri (1986) 1 NWLR (pt. 18) 550; Yusuf v. Union Bank of Nigeria Ltd. (1996) 6 NWLR (pt. 457) 632.
Where an employee is guilty of gross misconduct he could be lawfully dismissed summarily without notice and without wages. “Gross misconduct” has been defined as conduct of a grave and weighty character as to undermine the confidence which should exist between the employee and his employer or working against the deep interest of the employer. Ajayi v. Texaco Nigeria Ltd. (1987) 3 NWLR (pt.62) 577; Olaniyan v. University of Lagos (1985) 2 NWLR (pt. 9) 599; Sule v. Nigeria Cotton Board (1985) 2 NWLR (pt. 5) 17; Union Bank of Nigeria Ltd. Ogboh (1995) 2 NWLR (pt. 380) 647 (SC).
In the light of the foregoing and even with the answer to Issue 1 having direct relationship with this Issue 2, I answer the question raised positively and in favour of the Respondent. This is because the 1st Respondent’s right to fair hearing had been compromised, the learned trial Judge had no option but to grant the reliefs in 1, 2, 3, 6, and 8 in the amended Statement of Claim. The fair hearing rights of the Respondent taking a pride of place to the statutory or even the Common Law powers of the Employer.
Therefore I hold that this appeal lacks merit and is hereby dismissed. I affirm the judgment of the Court below including the orders granting reliefs 1, 2, 3, 6, 7 and 8 of the claim in the Amended Statement of claim.
I shall enter into the Cross-Appeal of the Respondent/Cross-Appellant by stating fully the Notice and Grounds of Appeal.
“NOTICE OF CROSS APPEAL:
TAKE NOTICE that the Plaintiff/Cross-Appellant being dissatisfied with that part of the judgment of the federal High Court Abuja per Hon. Adah 1.the 2nd of August, 2007 refusing to grant reliefs 4, 5 and 9 (remedies centered on the breach of the Plaintiff’s fundamental rights) doth hereby appeal to the Court of Appeal upon the grounds set out in paragraph 3 and will at the hearing of the appeal seek the relief set out in paragraph 4.
2. PART OF THE DECISION OF THE LOWER COURT COMPLAINED OF: That part wherein the trial court failed to resolve the issues of breach of fundamental rights and bias in the plaintiff’s favour, which culminated in the refusal to grant reliefs 4, 5 and 9 against the defendants.
3. GROUNDS OF APPEAL
1. ERROR IN LAW
The learned trial Judge Hon. Adah J. erred in law when in resolving the issue of whether or not there had been a breach of the Plaintiff’s fundamental rights he held in the following passage of his judgment thus:
“The next issue I wish to take on in these cases are issues 6 and 7 which deal with whether the rules of fair hearing were observed by the 1st defendant and the investigation committee. The ingredients of fair hearing under our Constitution in summary are basically on the duty of a tribunal to afford the opportunity to the person accused to be heard. This requires giving the person accused of knowing all the allegations against him. Giving such a person the opportunity to present his own side of the story to the best of his ability and even the opportunity to confront his accusers with adverse facts in his own domain. In the instant case, evidence abound that the plaintiff was duly put right into the picture of all the allegations against him. He was truly given a full opportunity of being heard over the allegations against him. There is therefore in my judgment no breach of the rule of fair hearing in this case and the contention of the plaintiff as to breach of his right to fair hearing is therefore rejected ”
PARTICULARS OF ERROR
(i) The complaint of the plaintiff as to breach of his right to be heard was not examined by the learned trial judge as the scope or definition set out above was too narrow.
(ii) Cross-Appellant’s complaint on lack of fair hearing was hinged on the complaint that stemming from the criminal nature of the allegations made against him, the NJC was not the appropriate forum to determine his culpability or guilt but a criminal court duly constituted.
(iii) To the extent that the NJC heard and purported to resolve all the allegations or charges made against him (which are all criminal in nature) the plaintiff’s right to fair hearing had been breached.
(iv) Consequently, the trial court ought to have granted the plaintiffs, reliefs’ nos 4, 5, and 9 as contained in the amended statement of claim.
2. ERROR IN LAW
The learned trial judge Hon. Adah 3, erred in law when in examining the plaintiff’s double barreled complaint of the existence of bias or likelihood of bias he came to the conclusion that those complaints of bias as presented were not proved and in the light of that conclusion occasioned a miscarriage of justice.
PARTICULARS OF ERROR
(i) When it was apparent from the record that members of the investigation panel of the NJC also took part in the final deliberations of the NJC as members of the body as a whole and to that extent offended the rules of bias and fair hearing.
(ii) When there was uncontroverted evidence on the record that one of the members had written a scathing petition against the plaintiff, contemporaneous with the NJC and yet failed to disqualify himself from the exercise.
(iii) Failure to disqualify himself tainted the proceedings of the NJC and the trial court should have so held.
CROSS-APPEAL
The 1st Respondent in the main appeal is the Cross-Appellant and he is dissatisfied with certain aspects of the judgment of the Hon. Adah J. The first ground of the cross-appeal relates to his complaint to the allegations or charges leveled against him by the investigating Committee upon which he stood trial and was indicted. The second ground relates to the allegations of bias or likelihood of bias made by the cross-appellant against a member of the investigating panel and against the participation of members of the investigating panel in the deliberations of the full council.
The learned counsel for the Cross-Appellant, Mr. Okeaya-Inneh SAN formulated three issues for determination which are as follows:-
1. Whether the Federal High Court was right when it held that the plaintiff’s fundamental right to fair hearing had not been brazenly infringed by the National Judicial Council’s inquiry into the sole charge to wit ‘perversion of the cause of justice by making corrupt offer of monetary inducement to Justice Matilda Adamu led Akwa Ibom State Governorship election Tribunal’ when both the said committee and the council were powerless and indeed constitutionally stripped of jurisdiction to determine criminal allegations.
2. Whether the rules of fair hearing were observed by the National Judicial Council in the determination of gross misconduct bordering on criminal allegations against the plaintiff now cross appellant.
3. Whether the Cross Appellant double – barreled complaint on the existence of a real likelihood of bias against him was established before the trial court and if so, whether his purported removal could also not have been faulted on that ground.
The Cross-Respondents objected to the Cross-Appellant’s 3 issues for determination which exceeded the two grounds of appeal. Also that the Issue No. 1 of the Cross Appeal did not arise from any of the grounds of appeal and so is incompetent and should be struck out. He cited Agu v. Ikweibe (1991) 3 NWLR (pt. 180) 385.
In response, learned counsel for the Cross-Appellant said it is not correct that the issue of fair hearing did not arise from any of the grounds of appeal. That it is correct that the issue of fair hearing did arise from the grounds of appeal. That it is correct that 2 issues were formulated out of one ground and that is allowable. He cited State v. Okoye (2007) 16 NWLR (pt. 1061) 607. That the objection is frivolous and should be struck out.
The Cross- Respondents couched two issues for determination which are:-
1. Was the learned trial judge wrong in holding that there was no breach of the Cross-Appellants’ right to fair hearing.
2. Was the learned trial judge wrong in holding that the allegations of bias or likelihood of bias was not proved.
It seems to me that this is one of the instances where the court would utilise its discretion to craft it’s issue or issues convenient to its proper consideration of the matter before the court as I do now with one issue formulated and that is:-
Was the learned trial Judge wrong in holding that there was neither a breach of the Cross-Appellants right to fair hearing or was the allegation of bias or likelihood of bias not proved.
Learned counsel for the Cross Appellant submitted that the conclusion of the trial court that it is not the law that crime related misconduct must be prosecuted in the appropriate court before a judicial officer can be found guilty of misconduct based on the same charges is erroneous. That the proper stance is that no person can be indicted or found guilty of any offence bordering on criminality without undergoing trial in a court of competent jurisdiction as prescribed by the Constitution. He referred to Amaechi v, INEC & 2 ors (2008) 5 NWLR (pt. 1080) 237 at 303 – 307.
Mr. Okeaya-Inneh SAN further stated that the learned trial judge had considered the issue of likelihood of bias as it was pleaded properly in the Amended Statement of Claim paragraphs 19, 23, 24 and 25. That it is the law that a person who performs or has a judicial duty to perform is disqualified from performing it if he had so conducted himself in relation to matters to be investigated as to lead a reasonable person to suspect that he may be biased. He cited Akoh v. Abuh (1988) 3 NWLR (pt. 85) 696; LPDC v. Fawehinmi (1985) 2 NWLR (pt. 7) 300 at 331-333.
He went on to say that the bias is anchored on Mr. Okpoko’s authorship of Exhibit 13, a petition to the chief Judge of the Federal High Court seeking a transfer of the case in which he was appearing as counsel before the plaintiff then sitting in Enugu Division of the Federal High Court. That the petition was written while the proceedings before the NJC had commenced. That the key to unraveling the bias lies in Mr. Okpoko’s non disclosure to both the plaintiff and the NJC during the Committee’s sitting that he had made some unpalatable remarks against him in Exhibit 13. Also a matter of bias is that all members of the investigatory committee participated in the deliberations of the full council that took place on the 13th and 14th January, 2004. He referred to Exhibit 8, the minutes of the confirmatory proceedings which confirmation being tainted by the afore-mentioned infractions are therefore null and void and the learned trial judge ought to have to held.
Responding, learned counsel for the Cross-Respondents, Mr. Ajuyah SAN said, 1st Cross-Respondent has the constitutional duties of disciplining a judicial officer for misconduct. That misconduct by its nature is the conduct not expected of a person in the circumstance in which the act alleged came about and includes any conduct that is capable of undermining the relationship of confidence. He cited Uzoho v. Task Force, Hospitals Management (2004) 5 NWLR (pt. 876) 627 at 644; Union Bank of Nigeria v. Ogboh (1995) 2 NWLR (pt380) 647; Yusuf v. Union Bank of Nigeria Ltd. (1996) 6 NWLR (pt.457) 632 at 648 – 649; Boston Deep Sea Fishing & Ice Co. v. Ansell (1888) 39 Ch. D. 339; Sule v. Nigeria Cotton Board (1985) 2 NWLR (pt. 5) 17.
That there was no proof that the trial judge did not find any proof that the complaint made against Cross Appellant in Exhibit 1 and investigated by the Cross Respondents is anything other than misconduct. He said they had not violated any provisions of the 1999 Constitution which guaranteed fair hearing. He referred to Arinze v. First Bank of Nigeria (2004) 12 NWLR (pt 888) 663.
Mr. Ajuyah of counsel for the Cross-Respondent said Cross appellant has not shown any bias for contending that the learned trial judge was wrong in deciding that the Cross Appellant’s right to fair hearing was not breached by the Cross Respondent.
On the matter of likelihood of bias, learned counsel for Cross Respondents said the reference to Exhibit 13, request for transfer of case before the 1st Cross Appellant was nothing other than what it portended, a request for transfer and no more and did not have the imputation ascribed to it by cross-Appellant. That no bias or likelihood of such had been proved by the cross-appellant and the trial judge was right in finding along those lines. He cited Amizu v. Nzeribe (1989) 4 NWLR (pt. 118) 755; Pavex Int. Co. Ltd. v. IBWA (1994) 5 NWLR (pt. 347) 685 at 701.
Learned counsel for the Cross Appellant in reply on point of law as stated in their Reply Brief said there was nothing more to add to their submissions in arguing the cross appeal.
I shall cite a decision of this Court in circumstances similar to the one in hand.
“The law that sets up the disciplinary tribunal for the Medical and Dental profession envisages or dictates that the tribunal in conducting disciplinary proceedings should eschew bitterness and leave its mind wide open to bring to hear on the trial civilised and ethical code of conduct expected of an impartial referee”. Olaye v. Chairman Medical & Dental Practitioner (1997) 5 NWLR (pt. 506) 568 per Acholonu JCA (as he then was).
The situation as seen in the case of the Olaye v. Chairman Medical & Dental Practitioners (supra) above is akin to what is at play in the case in hand and the admonition in the cited authority is relevant here.
It is to be noted that where a tribunal charged with a duty of fairness approaches its task with an attitude which strikes of preconception it cannot be said that the person whose conduct was being inquired into has had a fair hearing. In this situation is to seen, the letter of transfer of a suit before the 1st Respondent and during the pendency of the Investigation of his conduct by a panel including the 4th Appellant, the same appellant wrote Exhibit 13 to his Chief Judge to have the suit transferred to another judge.
When the proceedings of a tribunal are criticised on the grounds of unfairness, the appellate court is not concerned with the merit or otherwise of the decision since it would not be in a position to know if the decision and the findings on which it is made would have been the same had the proceedings been fair. Olaye v. Chairman Medical & Dental Practitioners Investigating Panel & Anor (1997) 5 NWLR (pt. 506) 550 at 568 per Ayoola JCA (as he then was).
An allegation of bias or likelihood of bias on the part of a-judge other than on the basis of pecuniary interest must be supported by substantial and unequivocal evidence. It is not enough that the evidence relied on creates suspicions.
Once the likelihood of bias is established, it destroys the foundation of any decision reached or puts a hold on other steps in the cause or matter by the adjudicator. Pavex Int. Co. Ltd. v. International Bank for West Africa (1994) 5 NWLR (pt. 347) 685 at 701 per Uwaifo JSC; Akoh v. Abuh (1988) 3 NWLR (pt. 85) 696; Legal Practitioners Disciplinary Committee v. Fawehinmi (1985) 2 NWLR (pt. 7) 300.
The procedure adopted by the National Judicial Council may be quick, convenient and time saving, but the dictates of justice demand that the legal principles of audi alteram partem and that of Nemo judex in causa sua must be obeyed no matter how cumbersome and inconvenient it may appear to the council. See Olaniyan v. University of Lagos (1985) 2 NWLR (pt. 7) 300 at 605. Where there is a lack of the strict adherence, to the fair hearing principles then is thrown up the nagging headache of the likelihood of bias.
That there is a likelihood of bias is by itself a species of partiality and an adjudicating authority must be impartial a quality accepted in jurisprudence to be of universal application and therefore applicable in Nigeria as much as to all civilized countries. The rule of audi alterem partem is not confined to the conduct of strictly, legal tribunals but is applicable to every tribunal or body of persons invested with authority to adjudicate upon matters involving civil consequences to individuals. Legal Practitioners Disciplinary Committee v. Fawehinmi (1985) 2 NWLR (pt. 7) 300 at 333.
When a statute directs that a certain procedure be followed before a person can be deprived of his right, whether in respect of his person, property or office, such a procedure must be strictly followed: otherwise, the court will declare void any act done not in accordance with the prescribed procedure.
Another way of saying it is that where a statutory requirement for the exercise of a legal authority is laid down, it is expected that the public body invested with such authority would follow the requirement to the details. The non-observance in the process of reaching any decision renders the decision itself a nullity.
Statutory provisions establishing a corporate body always empower the body to employ staff and to discipline them. Once the statutory provisions are clear as to how to deal with an earring servant, they must be adhered to strictly including a clear observation of the principles of fair hearing. An employee must be clearly told that he is being tried for disciplinary action and mere presence in a manner of an ordinary witness cannot be substituted for intimation of an accusation against him for him to offer his defence.
University of Nigeria Teaching Hospital Management Board v. Hope Chinyelu Nnoli (1994) 8 NWLR (pt. 363) at 407-408; Shitta-Bey v. Federal Public Service Commission (1981) 1 SC 40 Bankole v. N.B.C.(1968) 2 All NLR 372; Olaniyan v. University of Lagos (1985) 2 NWLR (pt. 9) 599; Olatunbosun v. NISER Council (1988) 3 NWLR (pt. 80) 25.
Where a public body fails to comply with certain procedural safe guards in an enabling act or regulation, there is a breach of a duty imposed on it and its decision in such circumstances is ultra vires. To render the decision void, however, the procedural provision must be mandatory and not merely directory. Thus where the procedural provision is mandatory a breach of it by the public body renders its decision ultra vires and void. University of Nigeria Teaching Hospital Management Board v. Nnoli (1994) 8 NWLR (pt. 363) 376 at 413 per Ogundare JSC.
Of great importance is the fact that it be not taken lightly that when a statute has conferred on anybody the power to make decisions affecting individuals as in the instant case, the court will not only require the procedure prescribed by the statute to be followed but will readily imply so much and no more to be introduced by way of additional procedural safe guards as will ensure the attainment of fairness as envisaged by statute and the Constitution having been compromised, the natural conclusion is that this cross-appeal should be upheld, since the 1st Appellant failed woefully to meet with the Constitutional requirements provided and expected. See University of Nigeria Teaching Hospital Management Board v. Nnoli (1994) 8 NWLR (pt. 363) 376 at 413 SC; Olatubosun v. NISER (1988) 3 NWLR (pt. 80) 25 at 47; Sections 153, 158 (1) 160 of the 1999 Constitution of Nigeria.
This Cross-Appeal as allowed and in addition to the reliefs hitherto granted in the appeal, I am hereby granting reliefs 4, 5 and 9 of the Amended Statement of Claim and these are:
4. A DECLARATION that the act of subjecting the plaintiff to the disciplinary procedure of the 1st defendant in as much as it was based on the petition (report) of Hon. Justice M. Adamu erstwhile Chairman of the Akwa Ibom governorship and Legislative Houses Tribunal for corruption and perverting the course of justice violated his fundamental rights guaranteed by Section 36 (4) of the Constitution of the Federal Republic of Nigeria (1999) and the African Charter on Human and Peoples Rights (Ratification and enforcement) Act Cap. 10, Laws of the Federation of Nigeria 1990 and is therefore unconstitutional, unlawful, illegal, null and void.
5. A DECLARATION that the 1st and 2nd defendants lack jurisdiction to try or investigate the plaintiff for charges of corruption and attempting to pervert the course of justice (offences punishable under the Corrupt Practices and other Offences Act No.5 of 2000 and the Criminal Code) pursuant to the petition/report of Hon. Justice M, Adamu erstwhile chairman of the Akwa Ibom governorship and Legislative Houses Tribunal.
9. AN ORDER of injunction restraining the defendants whether by themselves or by their Servants, officers, agents or privies or otherwise howsoever, from purporting to try, investigate or inquire into the role of the plaintiff so long as it is based on the petition (report) of Hon. Justice M. Adamu erstwhile chairman of the Akwa Ibom Governorship and Legislative House Tribunal for corruption and perverting the course of justice which are offences punishable under the Corrupt Practices and other Offences Act No. 5 of 2000 and the Criminal Code of Akwa Ibom State.
JIMI OLUKAYODE BADA, J.C.A: I had the opportunity of reading before now, the lead Judgment just delivered by my learned brother MARY U. PETER-ODILI, J.C.A.
My Lord has dealt with all the issues arising for determination in the Appeal and Cross Appeal in a very lucid form. I agree with the reasons contained in the Judgment as well as the conclusion that the appeal is unmeritorious and ought to be dismissed, and it is hereby dismissed.
I am of the view that there is merit in the Cross-Appeal and it is allowed by me. I endorse the consequential orders made in the said lead Judgment.
ABDU ABOKI, J.C.A.: I have read in draft the lead Judgment delivered by my learned brother, Mary U. Peter-Odili J.C.A. I agree with the reasoning and conclusions of my Lord. I also dismiss this Appeal whilst affirming the decision of the lower Court. The Cross-Appeal is also upheld as well as the reliefs granted therein.
Appearances
C. A. Ajuya SAN;
A.O. Odu (Mrs.)
A.O. Okeaya – Inneh SAN;
K. Sijuade (Miss)For Appellant
AND
Odiba NdukweFor Respondent
