KANO STATE PUBLIC COMPLAINT AND ANTI-CORRUPTION COMMISSION & ANOR v. BABA SALISU & ORS
(2019)LCN/12695(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 12th day of February, 2019
CA/K/447/2017
RATIO
PLEADINGS: AMENDMENT OF PLEADINGS
“The general principle of law regarding the amendment of pleadings is that pleadings may be amended at any stage of the proceedings before judgment is delivered upon good and proper reasons shown. An amendment may be granted to bring the real issues in controversy between the parties before the Court or in order to bring the pleadings in line with evidence already led at the trial. The power of the Court to permit an amendment, which is discretionary, must be exercised judicially and judiciously having regard to all the circumstances of the case. See Compagnie Generale De Geophysique (Nigeria) Limited v. Idorenyin (2015) 13 NWLR Part 1475 Page 149 at 174 Para A-C per Kekere-Ekun JSC.” PER OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.
DECLARATORY RELIEF: WHERE A PARTY SEEKS DECLARATORY RELIEF
“A party seeking a declaratory relief must adduce evidence upon which the relief is granted, I further hold. The Court has to be satisfied on the evidence led by the Plaintiff that he is entitled to the reliefs he seeks. The Claimant must succeed on the strength of his case and not on the weakness of his opponent, notwithstanding the admission of his opponent. See Addah v Ubandawaki (2015) 7 NWLR Part 1458 Page 325 at 212 Para D-F per Fabiyi JSC; Okereke v Umahi (2016)11 NWLR Part 1524 Page 438 Para B-D per Kekere-Ekun JSC; Ogboru v Okowa (2016) 11 NWLR Part 1522 Page 84 at 123 Para F per M.D. Muhammad JSC.” PER OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.
COURT AND PROCEDURE: WHO CAN SUE
“It was similarly held by this Court in the case of Etaluku v Nigerian Bottling Company Ltd (2004) 15 NWLR Part 896 Page 370 at 402-403 Para H-A per Augie JCA (as she then was), that it is the person invoking the jurisdiction of the Court that must be juristic and not the party being represented. It is undoubtedly true, as held in the case cited by Appellans Counsel of Governor Kwara State v Lawal (2007) 13 NWLR Part 1051 Page 347 at 379 Para B-C per Ogunwumiju JCA that as a general law, it is only juristic persons that can sue and be sued. Since the 1st-26th Respondents are natural persons, they are juristic, I hold, and can maintain the action. The deletion of the description suing for and on behalf of Judiciary Staff Union of Nigeria, Kano Branch does not detract from the legality of the Respondents, I further hold.” PER OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.
INTERPRETATION: INTERPRETATION OF THE CONSTITUTION
“This principle also applies in the interpretation of the Constitution. The well laid down position for the interpretation of the Constitution is that once the words used are clear and free from ambiguity they should be given their natural meaning without any embellishments. Provisions of the Constitution must always be interpreted to achieve the obvious ends for which the Constitution was promulgated. See Assams v Ararume (2016) 1 NWLR Part 1493 Page 368 at 387 Para A-C; (2016) All FWLR Part 821 Page 1481 at 1492 Para F-G, per Rhodes-Vivour JSC.” PER OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.
Justices
OBIETONBARA O. DANIEL-KALIO Justice of The Court of Appeal of Nigeria
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE Justice of The Court of Appeal of Nigeria
JAMES GAMBO ABUNDAGA Justice of The Court of Appeal of Nigeria
Between
1. KANO STATE PUBLIC COMPLAINT AND ANTI-CORRUPTION COMMISSION
2. THE ATTORNEY GENERAL, KANO STATEAppellant(s)
AND
1. BABA SALISU
2. ABUBAKAR ELYAKUB
3. ABUBAKAR B. ADAM
4. MUSA MINJIBIR
5. MUSTAPHA INUWA
6. AMINU ALI AHMED
7. ALH. SALISU IBRAHIM
8. ALH. ABBAS MAGASHI
9. RUFA’I TIJJANI
10. ABDULLAHI ABBA LAWAN
11. UMAR TIYA
12. JAMILU DANEJI
13. HAMISU MUSA
14. SANI NAMADI
15. MUSTAPHA I. TAMBURAWA
16. ADO MATO
17. ALH. MUJITTABA G. ABDULKADIR
18. ALH. AHMED DALLADI
19. JAFARU B. ABDULKARIM
20. RABI’U IBRAHIM KOKI
21. ABDULLAHI N. M. ALONAS
22. FARUK AHMED
23. ABUBAKAR HARUNA KHALIL
24. NURA WAZIRI
25. ALH. AUWALU AUDITOR
26. BALA TSAUNI
27. JUDICIARY STAFF UNION OF NIGERIA, KANO BRANCH
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.(Delivering the Leading Judgment):
The Respondents in this case were the Plaintiffs before the High Court of Kano State, the lower Court. The 1st-26th Respondents are members of the 27th Respondent and were alleged to have committed various corrupt practices, ranging from non-remittance and mismanagement of government revenue generated from Court fines and other charges, diversion of Government money, and false statements of return, all which are offences under Kano State Public Complaints and Anti-Corruption Law 2008 (as amended). Letters of invitation were sent to the 1st-26th Respondents to appear before the Commission (1st Appellant) for questioning.
Rather than appear before the Commission, they proceeded to the lower Court by Originating Summons, seeking, by their amended Originating Summons, the determination of the following questions:
A. Whether in the circumstances of this case vis-a-vis the provisions of Section 16 (1) (B) of the Kano State Public Complaints and Anti-Corruption Commercial Law 2009, the 1st Defendant has the powers to entertain the said complaint lodged before it.
B. Whether the issuance of letters of invitation/clarification dated 6th January, 2016, 19th January, 20th January, 2016 respectively to the Plaintiffs by the 1st Defendant is wholly or partly in conflict with or violate the provisions of Section 16(1) (B) of the Kano State Public Complaint and Anti-Corruption Commission Law 2009 which regulates the powers of the 1st Defendant.
C. Whether the 1st Defendant is competent to invite the Plaintiffs for investigation in a matter that is already before a Court of competent jurisdiction by virtue of Section 16 (1) (B) of the Kano State Public complaints Commission Law 2009 which has the made provisions covering the field in that area.
D. Whether by the clear provisions of Section 4(d) of the Kano State Judicial Service Commission Law and Section 3 of the Kano State Judicial (Administrative Machinery Law Cap 66 and Section 15(1) of Kano State Public Complaints and Anti-Corruption Commission Law 2009 the 1st Defendant has powers to exercise disciplinary control over the Plaintiffs.
The reliefs sought by the Respondents were the following:
1. A declaration that the 1st Defendant has no power and jurisdiction to entertain the complaint being a subject of complaint in Suit No. CV/112/3014 before the State Sharia Court of Appeal, Kano, being a Court of competent jurisdiction.
2. A declaration that the functions of the 1st Defendant are governed by the Kano State Public Complaints and Anti-Corruption Commission Law 2009 and cannot go contrary to the said law in carrying out its operation.
3. A declaration that the letters of invitations dated 6th January, 2016, 19th January, 2016 and 20th January, 2016 respectfully issued to the Plaintiffs for investigation of their activities over matters pending before Courts of competent jurisdiction by the 1st Defendant is ultra vires, unconstitutional and therefore null and void.
4. A perpetual injunction restraining, the 1st Defendant either by itself, servants, agents or privies or by whatever name so called or known from entertaining complaints brought before it or inviting or issuing letter of invitations to the Plaintiffs or their members for the purpose of investigating matters which are already before a Court of competent jurisdiction.
5. A declaration that only the judiciary and the Kano State Judicial Service Commission have the powers to exercise disciplinary control over the Plaintiffs.
6. For such order(s) as this Honourable Court may deem fit to make in the special circumstances of this case.
The lower Court, following a deliberation on the various affidavits before it and the written addresses of Counsel, in a judgment delivered by A.T. Badamasi J on 11/11/16 granted the reliefs sought by the Respondents, holding that the Appellants should have intimated the Chief Judge of the State before its invitation of the Respondents, as the powers of the Judicial Service Commission are superior to that of the body establishing the 1st Appellant. Furthermore, there was a suit pending in respect of the subject matter of the action.
He thus granted the following declarations:
1. The 1st Respondent has no power to entertain the complaint in issue same being a subject matter in suit No. 112/2014.
2. The letters of invitation sent to the Applicants for investigation of their activities over a matter that is pending before a Court of competent jurisdiction is ultra vires.
3. The 1st Respondent can only investigate the staff of the judiciary when it follows due process by intimating the Chief Judge of Kano State who is the Chairman of the State Judicial Service Commission.
Aggrieved, the Appellants appealed against this judgment by Notice of Appeal filed on 28/1/17. In the Appellants Brief of Arguments filed on 11/5/18 but deemed properly filed on 8/11/18 and settled by Usman Umar Fari Esq., of Hope Attorneys, three issues for determination were formulated, to be determined by this Court, namely:
1. Whether the learned trial Judge was wrong in law when he granted the Respondents application for amendment from suing for and on behalf of the Judiciary Staff Union of Nigeria to reflect suing for themselves and on behalf of the Judiciary Staff Union.
2. Whether the trial Judge was right when he held that the 1st Appellant can only investigate the staff of the Judiciary by intimating the Chief Judge of Kano State and whether there was fair hearing in the decision.
3. Whether the investigation initiated by the 1st Appellant against the 1st to 26th Respondents was a subject matter of litigation before any court, if the answer is in the negative whether the invitation letter issued to the said Respondents were ultra vires.
Learned Counsel representing all the Respondents, Ubi Utum Eteng Esq., of Rotimi Eteng & Co in the Respondents Brief of Arguments filed on 15/10/18, formulated three (3) issues for the determination of this Court, namely:
1. Whether the learned trial Judge was right in law when he granted the Respondents application for amendment deleting the words suing for and on behalf of Judiciary Staff Union of Nigeria, Kano Branch contained on the face of the originating summons.
2. Whether the learned trial Judge was right when he held that the 1st Appellant can only investigate the staff of the Judiciary when it follows due process by intimating the Chief Judge of Kano State who is the Chairman of the State Judicial Service Commission and whether by the said decision the 1st Appellant was denied fair hearing.
3. Whether the learned trial Judge properly determined the content of the investigation letters.
I note that the issues raised by both Counsel are similar. I shall thus adopt these issues, slightly rephrased for succinctness, as follows:
1. Whether the learned trial Judge was right in law when he granted the Respondents application for amendment deleting the words suing for and on behalf of Judiciary Staff Union of Nigeria, Kano Branch
2. Whether the learned trial Judge was right when he held that the 1st Appellant should inform the Chief Judge of Kano State before it carries out any investigation and if this decision denied the 1st Appellant of fair hearing
3. Whether the lower Court was right to grant the Respondents application on the ground, inter alia, that the letter of invitation to the Respondents was a subject matter of litigation and thus ultra vires.
The 1st issue for determination is:
Whether the learned trial Judge was right in law when he granted the Respondents application for amendment deleting the words suing for and on behalf of Judiciary Staff Union of Nigeria, Kano Branch contained on the face of the originating summons.
On this issue, the learned Counsel to the Applicant submitted that the trial Judge was wrong when he granted the 1st 26th Respondents application for amendment, contending that the 1st 26th Respondents initiated their case before the trial Court for and on behalf of the 27th Respondents who is not a natural person. At the time when the application for amendment was granted, there were no proper parties and thus no competent application capable of being amended. There was nothing to indicate or establish the juristic personality of the Kano State Chapter of the Judiciary Staff Union of Nigeria as there was no Certificate of Incorporation exhibited to indicate that the 27th Respondent was a juristic personality. He also submitted that the reason given for the amendment could not be true, as it is not possible for there to have been a mistake in stating the name. He cited the case of Kwage & Ors v Upper Sharia Court Gwandu & Ors (2017) LPELR 42508 at Pages 16 17, Paras E D and Gov. Kwara State vs Lawal (2007) 13 NWLR (Pt. 1051) 437.
In his response, the learned Counsel to the Respondents submitted that the argument of the Appellants Counsel that since the Judiciary Staff Union of Nigeria Kano Branch is not a juristic person, an amendment cannot be granted to substitute a juristic person is a misconception of the position of the law by the 1st Appellant Counsel. He cited the case of Olu of Warri vs Chief Sam Esi & Anor (1958) SC NLR; Ode & Ors v The Registered Trustees of the Diocese of Ibadan (1968) 1 ANLR 287 and So Safe Table Water Technology Ltd vs Oba Funmilayo Ayinoluwa & 1 Or (2014) All FWLR (Pt. 747) 647) 649. Learned Counsel contended further that, the Appellant did not file a counter affidavit in opposition to the motion for amendment by the Respondents but filed a reply on point of law to the effect that the plaintiff who sued on behalf of a non-juristic person cannot amend to substitute same with a juristic person, on this he submitted that in the absence of a counter affidavit, averments in an affidavit in support are generally admissible.
It was also submitted by learned Counsel that words put in a bracket further to the names of parties is for the purpose of qualifying the parties. These words did not bring before the Court the other party in the bracket, he said, citing Emespo J. Continental Ltd v Corona Shifah Rtsgesellschaft and Ors (2006) All FWLR Part 321 Page 1233 and Etaluku v Nigerian Bottling Co. Plc (2005) All FWLR Part 261 Page 353.
The initial Originating Summons before its amendment, dated and filed on 1/2/16, described the 1st-26th Respondents as Suing for and on behalf of Judiciary Staff Union of Nigeria, Kano Branch. The 27th Respondent was the Judiciary Staff Union of Nigeria, Kano Branch. By Motion on Notice filed on 13/7/16, leave was sought to amend the Originating Summons and all other processes by deleting the words suing for and on behalf of the judiciary staff union of Nigeria, Kano Branch, and for the addition of another question for determination. This application was opposed by the Appellant. The lower Court deferred ruling on this application until its final judgment.
In its judgment, the Court, ruling on this application, observed:
The present Applicant merely seeks to delete the words suing on behalf of Judiciary Staff Union of Nigeria Kano Branch that was mistakenly inserted.”
Granting the amendment sought, it held that Courts are enjoined not to be stampeded into chasing the shadows of blunders made by Counsel but face the substance of the justice of the case. In addition, the Appellants had not shown how they will be over-reached by the amendment sought.
The general principle of law regarding the amendment of pleadings is that pleadings may be amended at any stage of the proceedings before judgment is delivered upon good and proper reasons shown. An amendment may be granted to bring the real issues in controversy between the parties before the Court or in order to bring the pleadings in line with evidence already led at the trial. The power of the Court to permit an amendment, which is discretionary, must be exercised judicially and judiciously having regard to all the circumstances of the case. See Compagnie Generale De Geophysique (Nigeria) Limited v. Idorenyin (2015) 13 NWLR Part 1475 Page 149 at 174 Para A-C per Kekere-Ekun JSC.
In an application for amendment of pleadings, the Court will take into consideration a number of principles or factors, including:
i. The attitude of the parties in relation to the amendment;
ii. The nature of the amendment sought in relation to the suit;
iii. The question in controversy;
iv. The time when the amendment is sought.
Akaninwo v. Nsirim (2008) 9 NWLR Part 1093 Page 439 at 471-472, Para H-A per Tobi JSC.
In the initial Originating Summons, as aforesaid, the 1st-26th Respondents sued for and on behalf of Judiciary Staff Union of Nigeria Kano Branch. The amendment sought was to remove the capacity in which the 1st-26th Respondents sued, by deleting the words Suing for and on behalf of Judiciary Staff Union of Nigeria Kano Branch.”
I wonder at the submission of the Appellants Counsel, as the “Judiciary Staff Union of Nigeria Kano Branch is already the 27th Respondent. Counsel to the Respondents did not ask that the 27th Respondents name be removed as not being a juristic party. How can he then be heard to oppose the removal of the representative capacity in which the 1st-26th Respondents sued, when the party they sought to represent is already a party to the suit?
Even if the party in italics is not juristic, that party cannot divest the otherwise juristic 1st – 26th Respondents of their legality, I hold.
As held in the case of Okunta v Odeyh (2015) All FWLR Part 764 Page 136 at 152-153 Para G-G per Fasanmi JCA:
The words put in a bracket further to the names of parties is taken for the purpose of qualifying the parties. The words in the bracket do not bring before the Court the other party in the bracket. It was similarly held by this Court in the case of Etaluku v Nigerian Bottling Company Ltd (2004) 15 NWLR Part 896 Page 370 at 402-403 Para H-A per Augie JCA (as she then was), that it is the person invoking the jurisdiction of the Court that must be juristic and not the party being represented.”
It is undoubtedly true, as held in the case cited by Appellans Counsel of Governor Kwara State v Lawal (2007) 13 NWLR Part 1051 Page 347 at 379 Para B-C per Ogunwumiju JCA that as a general law, it is only juristic persons that can sue and be sued. Since the 1st-26th Respondents are natural persons, they are juristic, I hold, and can maintain the action. The deletion of the description suing for and on behalf of Judiciary Staff Union of Nigeria, Kano Branch does not detract from the legality of the Respondents, I further hold.
Courts have evolved from undue reliance on technicalities to doing substantial justice, to allow for a determination of cases on their merits.
The contention of Counsel that the reason given for the amendment could not be true, as it is not possible for there to have been a mistake in stating the name, is engaging in the realm of speculation, which Courts do not indulge in. I have no reason to disbelieve the reasons given by the Respondents in erroneously describing the capacity in which they sued. The lower Court, I accordingly hold rightly granted the application for amendment. I therefore resolve the 1st issue for determination against the Appellant.
The 2nd issue for determination, is:
Whether the trial Judge was right when he held that the law establishing the Judicial Service Commission of the State is superior to the law establishing the Kano State Anti-Corruption Commission with respect to the power to discipline its staff and whether this issue was taken suo motu.
The lower Court held:
The 1st Respondent should have intimate (sic) the Chief Judge of the State before he invites the Chief Registrar because at the end of its investigation, the matter will have to go through the JSC before any action is taken against the Chief Registrar.
On the remaining letter of invitation served on the other staff of the judiciary which relate to the allegation of corrupt demand by a person or persons, making false statement or returns contrary to Sections 24 and 27 of the Public Complaint and Anti-Corruption Commission Law 2009 it is glaring that the commission has power under the above quoted Sections to investigate any person who engages in corrupt practice and by the interpretation Section of the enabling law creating the 1st Respondent, it includes a person employed or engaged in any capacity in the public service of the State including the Sharia Courts the Magistrate and Tribunal.
The 1st 26th applicants being staff of Magistrate and Sharia Courts are staff under the Judicial Service Commission. They are not exempted from investigation on any allegation of crime, but as I said earlier, in fidelity with rule of law and due process, the Chairman of the State Judicial Service Commission should be in the know before they are investigated since his Commission has the power to discipline any of them. In further counter affidavit 2 of the 1st Respondent (sic), it is averred that the use of CV/112/2014 in the petition sent to the 1st Defendant in place of CV/1126/2014 is an over sight on the part of the petition.. when a matter..affects staff of the judiciary courtesy demands that the head of the Judicial Service Commission of the State who is the State Chief Judge should be informed because the law establishing his commission which gives it the power to discipline its staff is by far superior to the law that established the 1st Respondents Commission
Learned Counsel to the Appellants has submitted that the function of carrying out investigation for the purpose of detecting crimes and prosecution is exclusively vested in the Executive arm of Government as enshrined in the 1999 Constitution, as amended, and each of the organs and tiers of government must strictly stay within its boundaries, citing Section 5(2) (a) & (b) and 14 of the Constitution and the case of Adeyemi & Ors vs A. G. Oyo State & Ors (1984) LPELR 169 (SC) and the case of A. G. Ondo State vs A. G. of the Federation (2002) LPELR 623 (SC).
Any attempt to include the judicial arm of Government into performing the function of the executive by intimating the Chief Judge before any investigation is embarked upon must be provided and clearly spelt out in the same Constitution. The lower Court, he complained, did not cite a provision where the 1st Appellant is mandated to intimate the Chief Judge of Kano State before embarking, performing or discharging its statutory duty. Neither the Constitution or the Kano State Public Complaints and Anti-Corruption Law 2008 (as amended) had any provision for intimating the Chief Judge of Kano State before the 1st Appellant could commence investigating Staff of the Judiciary. The order of the lower Court can therefore not stand, being at variance and in clear conflict with the Constitution. Courts have no jurisdiction to impose a duty on the 1st Appellant which the law never imposed on them.
Citing the cases of Edebiri vs Edebiri (1997) 4 NWLR (Pt. 498) 165, Ogunsola vs Ibiyemi (2007) LPELR 8365 (CA at Page 17 Paras E F and Obu & Ors vs Onibudo and Company Limited (2009) LPELR 8255 (CA) he submitted that the lower Court was wrong when it granted the prayer in question, the parties having not asked for same. A Court has no power to make an order which has not been asked for and which the person against whom it is made had no opportunity of resisting. Such decision will be declared null by the appellate Court, as when a Court raises an issue suo motu and resolves same suo motu without affording parties an opportunity to address it on the issue the Appellate Court shall declare the decision a nullity. He cited the case of Stirling Civil Engineering (Nigeria) Ltd vs Yahaya (2005) LPELR 3118.
In his response, the learned Counsel to the Respondents submitted that the provisions of the Kano State Public Complaints and Anti-Corruption Commission Law 2009 which empower the 1st Appellant to investigate and prosecute the named offences in the law are subject to the provisions of the Constitution. He cited the case of HDP vs Obi & Ors (2011) 12 MJSC at 100, contending that the Constitution does not exempt, by way of immunity, serving Judiciary Staff from investigation and possible prosecution for offences which the 1st Appellant is vested with requisite authority and power to investigate and prosecute. The Constitution only provides for the procedure to be followed and complied with in the investigation and before possible prosecution of serving judiciary staff. He cited Section 202 of the 1999 Constitution (as amended) which exempts the State Civil Service Commission and the State Judicial Service Commission from direction and control of any authority or person and the provision of Sections 3, 4, and 7 of the Judiciary (Administrative Machinery) Chapter 66 Laws of Kano State.
Learned Counsel contended that the cumulative reading of these relevant provisions is that the State Judiciary Service Commission is the sole body with the authority to exercise disciplinary control over Judiciary Staff in which the Chief Judge of Kano State is the Chairman. He submitted that if any staff of the Judiciary commits a professional misconduct within the scope of their duty and is investigated without notifying the Chairman of the State Judicial Service Commission, it would amount to the usurpation of the constitutionally guaranteed powers under the Sections cited above and a violation of the constitutionally guaranteed independence of a fundamental component of the judiciary and the doctrine of separation of powers. He cited Section 4, 5 and 6 of the Constitution and the case of A. G. of Abia State and Ors vs A. G. Federation (2003) LPELR 610 (SC) 23 24 Para E A and the judgment of Ogunbiyi JSC in Goyang Kayili vs Esly Yilbuk & Ors (2015) LPELR 24323 SC at page 32 para B. Counsel reiterated that their contention is not that the Respondents are not subject to criminal investigation and possible prosecution but that the Respondents must first be subjected to the disciplinary jurisdiction of their employers, which is the Kano State Judicial Service Commission chaired by the Kano State Chief Judge and that due process must be followed in order to maintain respect and sanctity of the rule of law. He cited the case of Nganjiwa v FRN (2017) LPELR-43391(CA).
He denied that this issue was raised suo motu, as it was raised by the Respondent in the 5th relief sought by him, referring the Court to pages 88 and 90 of the record. Furthermore, a failure to give the parties the opportunity to be heard on any issue raised suo motu does not lead to reversal of the decision where the issue raised is one of law or jurisdiction. In addition, the Courts have powers to make consequential orders, which do not have to be specifically asked for.
In his Reply Brief, the learned Appellants Counsel, distinguishing the case of Nganjiwa v FRN Supra, submitted that Nganjiwa’s case was decided based on Paragraphs 20 of the 3rd Schedule to the Constitution, vis a vis the revised Code of Conduct for Judicial Officers made pursuant to the provision of Paragraph 21(1) of the Third Schedule to the Constitution. There is, however, no provision equivalent to Paragraph 21(1) of the 3rd Schedule in relation to State Judicial Service Commission. Counsel also contended that Nganjiwas case was in relation to purported breach of the oath of office in his position or while discharging his duties as judicial officer, while the present case is a diversion of public funds and making false return allegedly committed outside the scope of duties of the Respondents as judicial officers or judges, as the allegation is not in respect of any case being presided over by them, as none of them is a judicial officer.
A further distinguishing factor, he submitted, is that none of the Respondents is a judicial officer but merely alleged that the 7th, 8th, 17th, 18th and 25th Respondents are serving judges, which assertion was however not supported by evidence. The intendment of the Constitution cannot be that whenever any staff of the judiciary who is not a judicial officer is alleged to have committed criminal offences, he must be referred to the Judicial Service Commission before he could be investigated. Counsel denied that the order qualifies as a consequential order.
The 1st premise to proceed from is the appreciation that the cardinal principle of interpretation of statutes is that where the words used in a statute are clear and unambiguous the Courts should give them their ordinary natural and literal meaning in order to establish the intention of the law maker. It is only where the ordinary or literal meaning of the clear and unambiguous words fail to bring out the intention of the lawmaker or leads to an absurdity that resort is had to constructive interpretation. See Dickson v Sylva (2017) 8 NWLR Part 1567 Page 167 at 233 Para D per Kekere-Ekun JSC; Registered Trustees of the Airline Operators of Nigeria v Nigerian Airspace Management Agency (2014) 8 NWLR Part 1408 Page 1 at 41 Para B-C; (2015) All FWLR Part 762 Page 1786 at 1812 Para B-D per Okoro JSC.
This principle also applies in the interpretation of the Constitution. The well laid down position for the interpretation of the Constitution is that once the words used are clear and free from ambiguity they should be given their natural meaning without any embellishments. Provisions of the Constitution must always be interpreted to achieve the obvious ends for which the Constitution was promulgated. See Assams v Ararume (2016) 1 NWLR Part 1493 Page 368 at 387 Para A-C; (2016) All FWLR Part 821 Page 1481 at 1492 Para F-G, per Rhodes-Vivour JSC.
Where an interpretation will result in breaching the object of the statute, the Court will not lend its weight to such an interpretation – Dickson v Sylva (2017) 8 NWLR Part 1567 Page 167 at 233 Para E per Kekere-Ekun JSC.
However, where there is a gap, duplicity or ambiguity, or where the words of an enactment are capable of two meanings, a contextual, rather than a literal approach should be preferred, as it is the duty of the Court to give a meaning that will resonate with sense, order and a workable system. In so doing, the provisions of a statute must not be read in isolation, but the whole, to ascertain the true meaning of the statutes. See Buhari v Obasanjo (2005) All FWLR Part 273 Page 1 at 189 Para C-D per Pats-Acholonu JSC; Braithwaite v GDM (1998) 7 NWLR Part 557 Page 307 at 325 Para C-D per Ayoola JCA (as he then was); Akpamgbo-Okadigbo v Chidi No. 1 (2015) 10 NWLR Part 1466 Page 171 at 199 Para A-B per M.D. Muhammad JSC.
With these principles in mind, one now examines the statutes relied upon by the parties in this appeal.
– Kano State Public Complaints and Anti-Corruption Commission Law 2008, Law No. 2 of 2009.
This is the Statute clothing the Appellant with authority.
The salient parts of this statute, relevant to the issue for determination, are Sections 8, 9(1) (a), 15(a), 18(3) and (4), which provide as follows:
8. In exercising its powers under this law, the Commission shall not be subjected to the direction and control of any authority.
9.(1) The Commission shall have power to investigate either on its own initiative or following complaints lodged before it by any other person on any administrative action taken by:
a) Any Department or Ministry of the State Government; or Local Government or such other Government Agencies and Parastatals;
b) Any statutory corporation or public institution set up by the State Government any company incorporated under or pursuant to the Companies and Allied Matters Act (CAMA) 1990 owned by the State Government; or
c) Any officer or servant of any of the aforementioned bodies.
15 (1) Subject to the provisions of the Constitution of the Federal Republic of Nigeria 1999 and any other Law for the time being in force the Commission shall have power to:
a) Receive and investigate any allegation of corrupt practices against any person and refer the matter to the Attorney General of the State for necessary action
18(3) In every case where the Commission discovers that a crime may have been committed by any person, it shall refer the matter to the Attorney-General for necessary action
(4) In every case where the commission is of the opinion that the conduct of any person is such that disciplinary action against him be taken, it shall make a report in that regard to the appropriate authority which shall take such further action as may be necessary in the circumstances.
– Sections 197 and 202 of the Constitution of the Federal Republic of Nigeria 1999 (as amended), which provide as follow:
SECTION 197
1. There shall be established for each State of the Federation the following bodies, namely –
a. State Civil Service Commission;
b. State Independent Electoral Commission; and
c. State Judicial Service Commission.
2. The composition and powers of each body established by Subsection (1) of this Section are as set out in Part II of the Third Schedule to this Constitution.
SECTION 202
In exercising its power to make appointments or to exercise disciplinary control over persons the State Civil Service Commission, the State Independent Electoral Commission and the State Judicial Service Commission shall not be subject to the direction and control of any other authority or person.
– Part II Third Schedule of 1999 Constitution:
State Judicial Service Commission
6. The Commission shall have power to –
(a) Advise the National Judicial Council on suitable persons for nomination to the office of –
(i) the Chief Judge of the State
(ii) the Grand Kadi of the Sharia Court of Appeal of the State, if any,
(iii) the President of the Customary Court of Appeal of the State, if any,
(iv) Judges of the High Court of the State,
(v) Kadis of the Sharia Court of Appeal of the State, if any, and
(vi) Judges of the Customary Court of Appeal of the State, if any;
(b) Subject to the provisions of this Constitution, to recommend to the National Judicial Council the removal from the office of the judicial officers specified in Sub-paragraph (a) of this paragraph; and
(c) To appoint, dismiss and exercise disciplinary control over the Chief Registrar and Deputy Chief Registrar of the High Court, the Chief Registrars of the Sharia Court of Appeal and Customary Court of Appeal, Magistrates, Judges and members of Area Courts and Customary Courts and all other members of the staff of the judicial service of the State not otherwise specified in this Constitution.
– The Kano State Judicial Service Commission 1980 Cap 67 of the Laws of Kano State, Sections 4 and 9
4. The Commission shall have power subject to such conditions as may be prescribed:
a) To advise the Governor in nominating persons for appointment, subject to the approval of the House of Assembly of the State as respects appointment of:
i. The Chief Judge of the High Court of the State; and
ii. The Grand Khadi of the Sharia Court of Appeal of the State
b) To advise the Governor on the appointment of:
i. Judges of the High Court of the State; and
ii. Khadi of the Sharia Court of Appeal of the State.
c) To recommend to the Governor the removal from office of the Judicial Officers specified in paragraph (b) of this section and to exercise disciplinary control over such officers; and
d) To appoint, dismiss and exercise disciplinary control over the Chief Registrar of the High Court, the Chief Registrar of the Sharia Court of Appeal, Magistrate, Judges and member of Area Courts.
9. In exercising its power under Section 4 of this Law, the Commission shall not be subject to the direction and control of any authority or person.
– The Judiciary (Administrative Machinery) Law 1982 Cap 66 Laws of Kano State, Sections 3, 4 and 7 provides as follows:
3. Notwithstanding anything contained in any other enactment but subject to the provisions of the Constitution, the power to appoint, promote, dismiss and exercise disciplinary control over persons holding any office in the Judiciary shall vest in the judiciary.
4(1) For the purposes of exercising any of the powers conferred by Section 3, the Chief Judge shall constitute a committee to be known as the Judiciary Establishment Committee.
(2) The Committee constituted under Sub-section (1) hereof shall comprise of:
a) The Chief Registrar of the High Court of Justice as the Chairman
b) The Chief Registrar of the Sharia Court of Appeal of the State as the Deputy Chairman;
c) One representative each from the office of the Head of Service of the State; and
d) Such other officers of the State Judiciary as the Chief Judge may determines.
7. The Chief Judge may make regulations for the purposes of carrying into effect the provisions of this law.
It is clear from the statutes above that it is the Kano State Judicial Service Commission that has the power to appoint, dismiss and exercise disciplinary control over the officers named above. This, indeed is in consonance with the decision of this Court in the case of Nganjiwa v FRN (2018) 4 NWLR Part 1609 Page 301 at 343 Para F-G per Obaseki-Adejumo JCA that the Constitution of this country, being the grund norm and fundamental legal order of the state clearly recognizes and guarantees the doctrine of separation of power and checks and balances.”
It was also held in that case, per the same learned jurist, at Page 342 Para G-H that:
Whenever there is an allegation of official misconduct against a judicial officer and the above-stated process is not adhered to, it amounts to jumping the gun and ipso facto a direct violation of the Constitution. Recourse to the National Judicial Council is a condition precedent as clearly set out by the Constitution and any attempt by any agency of Government to by-pass the Council will amount to a failure to observe condition (sic) precedent thereby leading to flagrant violation of the Constitution.
The instant case is however not about the dismissal of the Respondents or the exercise of disciplinary control, but is a fact finding mission. The various letters written to the Respondents were exhibited to their Originating Summons and are variously headed Letter of Invitation/Clarification, another is headed Re: Investigation Activities. The letters informed the Respondents of complaints against them regarding corrupt practices and requested their attendance at the Commission at the times and dates stated.
It is after their investigation, in compliance with Section 9 of the Kano State Public Complaints Anti-Corruption Law, I hold, that if any of the Respondents is found culpable, that recourse must be had to the Kano State Judicial Service Commission, for the exercise of disciplinary control, as stipulated in the Constitution.
The Respondents can thus not take cover under the cases of Nganjiwa v FRN Supra and A/G Abia v A/G Federation Supra to avoid the invitation by the Appellants
It is true, as expressed by the lower Court, that it would have been courteous for the 1st Appellant to have informed the Chief Judge of their intention to investigate the Respondents, there is however no compulsion on them, by law or otherwise, to so do. The lower Court was accordingly in error to grant the reliefs sought by the Respondents on the ground, inter alia, that the Chief Judge must be informed before any investigation can be carried out by the Appellants.
I do not agree with the Appellants that this issue was taken suo motu by the lower Court, as the Respondents’ 5th Question for Determination and the 5th Relief sought in the Amended Originating Summons, raised this issue before the Court for determination. There is, however, no reason to belabour this point, in view of my resolution of the substance of this issue in favour of the Appellants.
The 3rd issue for determination is:
Whether the lower Court was right to grant the Respondents’ application on the ground, inter alia, that the letter of invitation to the Respondents was a subject matter of litigation and thus ultra vires.
The lower Court held:
The summary of what I am saying is that the 1st Respondent has enormous power under Public Complaints and Anti-Corruption Commission Law to investigate Administrative actions of any government Dept. or Agency as well as criminal complaints that border on corruption, their power is limited by Section 16 of its law. One of the exception under Section 16 is any matter that is pending before a Court of law.
Suit No. 112/2014 upon which the 1st Respondent received a petition is still pending hence the 1st Respondent has no power to carry out any investigation be it administrative or even on allegation of crime until after the conclusion of that case.
Section 16 of the Kano State Public Complaints and Anti-Corruption Commission Law relied upon by the lower Court, provides:
16(1) The Commission shall not investigate any matter:
(b) Which is pending before any Court of Law.
The learned Counsel to the Appellants has submitted that the subject matter of the 1st Appellants investigation against the 1st 26th Respondents was not in respect of a pending matter before any Court as held by the lower Court but in respect of issues relating to non-remittance of Government Revenue from fines and other charges and diversion of Government money. He pointed out that there was no record of proceeding of the Sharia Court of Appeal exhibited to the Respondent Originating Summons upon which the Court could have formed this opinion. He cited Section 128 of the Evidence Act, 2011. In a declaratory claim the onus, he said, is on the claimant to establish his claim, even if the opposing party has admitted the claim, citing the case of Ayanru vs Mandilas (2007) LPELR 670 (SC) at Pages 16 17 Paras E C.
Responding, the learned Counsel to the Respondents contended that this issue was not the subject of a ground of appeal and that when a matter is pending before a Court, no action can be taken in respect thereof in order not to undermine the Court or foist a fait accompli and overreach the adversary in litigation. He cited the case of Dunwin Pharm & Chemical Co Ltd vs Benek Pharm (2008) 11 NWLR (Pt. 689) 66 at 69. He contended further that the salient documents to have been exhibited were the letters of invitation and not the Record of proceedings.
I note, from the letters of invitation by the 1st Appellant to the Respondents, which letters were exhibited to the Originating Summons, that save the letter to the Chief Registry (sic) of the Sharia Court of Appeal, the letters exhibited are in respect of allegations of corrupt demands and making of false returns.
The letter to the Chief Registry is in respect of a letter of complaint against the Sharia Court of Appeal for its refusal to release the sum of N107,729.00 for distribution to the estate of the deceased, Re:CV/112/3014 Salihu Suleiman and Estate of Harira Ibrahim (City No. 1 Sharia Court Kano). They were invited to the 1st Appellants office along with necessary documents and clarify the issue pertaining the allegation (sic).”
Not only do the letters to the Respondents, save that to the Chief Registry bear no reference to any pending litigation, that to the Chief Registry is nowhere suggestive that litigation is still pending. Indeed the deduction from the tone of the letter is that litigation is already concluded but that the Registry refused to release the amount ordered. As rightly submitted by the Appellant Counsel, nothing short of production of a Record of Proceedings, showing pending proceedings, can constitute proof of same, I hold.
A party seeking a declaratory relief must adduce evidence upon which the relief is granted, I further hold. The Court has to be satisfied on the evidence led by the Plaintiff that he is entitled to the reliefs he seeks. The Claimant must succeed on the strength of his case and not on the weakness of his opponent, notwithstanding the admission of his opponent. See Addah v Ubandawaki (2015) 7 NWLR Part 1458 Page 325 at 212 Para D-F per Fabiyi JSC; Okereke v Umahi (2016)11 NWLR Part 1524 Page 438 Para B-D per Kekere-Ekun JSC; Ogboru v Okowa (2016) 11 NWLR Part 1522 Page 84 at 123 Para F per M.D. Muhammad JSC.
There being no proof of pending proceedings, the lower Court was in error, I therefore hold, to have granted the application on the ground, inter alia, that there were pending proceedings and which constituted an exception to the powers of the 1st Appellant to investigate the Respondents. I accordingly resolve the 3rd issue for determination in favour of the Appellant.
In consequence of the foregoing, and having resolved the issues as shown above, this appeal succeeds. The judgment of the lower Court is set aside. The Originating Summons of the Respondents at the lower Court is accordingly dismissed.
OBIETONBARA O. DANIEL – KALIO, J.C.A: I have read in draft form, the judgment of my Lord OLUDOTUN ADEBOLA ADEFOPE-OKOJIE JCA. I agree.
JAMES GAMBO ABUNDAGA, J.C.A: I have been privileged to read in draft, the judgment delivered by my learned brother, Oludotun Adebola Adefope-Okojie, JCA. I adopt all the reasoning and conclusions reached by her on all the germane issues for determination in this appeal.
I also allow the appeal, and in consequence set aside the judgment of the lower Court and return a verdict of dismissal of the Respondents originating summons at the lower Court.
Appearances:
Usman Umar FariFor Appellant(s)
Ubi Utum EtengFor Respondent(s)
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Appearances
Usman Umar FariFor Appellant
AND
Ubi Utum EtengFor Respondent
