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BARR. OMAKA NNACHI CHIMA -VS- EBONYI STATE JUDICIAL SERVICE

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABAKALIKI JUDICIAL DIVISION

HOLDEN AT ABAKALIKI

BEFORE HIS LORDSHIP: HON. JUSTICE O.O. AROWOSEGBE

 

DATE: THURDAY 5TH DECEMBER  2019               

 

  SUIT NO.NICN/ABK/25/2019

 

 

BETWEEN:

 

 

BARR. OMAKA NNACHI CHIMA………………………..APPLICANT

                    

AND

 

  1. EBONYI STATE JUDICIAL SERVICE COMMISSION
  2. THE SECRETARY, EBONYI STATE JUDICIAL

SERVICE COMMISSION                                                          RESPONDENTS

  1. EBONYI STATE GOVERNMENT
  2. PRESIDENT, CUSTOMARY COURT OF APPEAL,

ABAKALIKI

 

 

   

APPEARANCES:

  1. AMAKA NNACHI CHIMA – FOR HIMSELF [THE APPLICANT].
  2. I.M. NWIDAGU, PRINCIPAL STATE COUNSEL, EBONYI STATE  – FOR THE RESPONENTS.

 

 

JUDGMENT

INTRODUCTION

This suit was commenced by way of Certiorari 25/07/2019. The reliefs claimed are:

  1. AN ORDER granting leave to the Applicant to seek an Order of Certiorari for the purpose of quashing the decision of the 1st Respondent by wrongfully removing him as the Chairman of Unwana Customary Court, Afikpo, having been wrongfully removed for doing his legitimate job dutifully and without the due process of law.
  2. A DECLARATION that the removal of the Applicant by the 1st Respondent on the 2nd day of May, 2019, without justification, is both unlawful and flagrant abuse of Section 5(iii) of the Customary Court Law, Cap 47, laws of Ebonyi State, 2009.

iii.                       AN ORDER of Certiorari quashing the proceedings and the decisions of the 1st Respondent by wrongfully removing the Chairman of Unwana Customary Court, Afikpo, having been wrongfully removed without the due process of law.

  1. AN ORDER directing the 1st Respondent to serve the applicant the Panel’s Report and the Record of Proceedings of Justice Uche Uhuo led Panel.
  2. An Order awarding the Applicant as General damages the sum of N2,000,000.00 (Two Million naira) only, for acts of unlawful removal from office as Chairman Unwana of Customary Court, Afikpo.
  3. An Order reinstating the Applicant having been wrongfully removed as the Chairman, Unwana Customary Court, Afikpo.

vii.                     An Order of this Court mandating the 1st Respondent to pay the Applicant all his remunerations and other entitlements or allowances commencing from May, 2019, until judgment is delivered.

viii.                   And for such further order(s) as the court may deem fit and proper to make in the circumstance.

In support of the motion for certiorari, the applicant filed the following grounds upon which the application was brought:

  1. The Applicant is a bonafide [sic] citizen of the Federal Republic of Nigeria, resident in Ebonyi State, and duly appointed by the 1st Respondent to serve as the Chairman of Unwana Customary Court for three (3) years commencing from 5th June 2018, to May, 2021, by virtue of Section 5 (iii) of the Customary Court Law, Cap. 47 laws of Ebonyi State of Nigeria, 2009.
  2. The pivot or crux of this application is that the 1st Respondent maliciously fabricated that the Applicant flagrantly refused to stay proceedings in a matter before the Applicant which a motion for transfer was before the President of the Customary Court of Appeal, Abakaliki and given a speedy trial in a matter, a letter dated 2nd day of May, 2019 and served on the Applicant on 5th day of May, 2019 by the Chief.

iii.                        That based on the petition written by the Applicant, a panel was set up to investigate the petition the Applicant wrote to the President of Ebonyi State Customary Court of Appeal, Abakaliki. The said Panel headed by Hounurable Justice Uhuo, (one of the sitting judges of Ebonyi State Customary Court of Appeal, Abakaliki) led the 1st Respondent to remove the Applicant as the Chairman of Unwana Customary Court, Afikpo.

  1. The Applicant Applied for Certified True Copy of the Record of Proceedings of the Panel and documentary evidence that removed him as the Chairman of Unwana Customary Court but the 1st Respondent blatantly refused to grant the application till date.
  2. The Applicant is contending that his removal as Chairman, Unwana Customary Court, as the method of his removal if at that found wanting was not complied as x-rayed in the unhidden provisions of Sections 5(iii) of the Customary Court Law, cap 47 Laws of Ebonyi State, 2009.
  3. The Applicant is alleging that his fundamental right to fair hearing as enshrined in Section 36 of the 1999 Constitution of the Federal Republic of Nigeria (As Amended) was breached by the Justice Uhuo Panel who only pronounced his removal as the Chairman of Unwana Customary Court but failed to serve or furnish him with any document to enable him know the ground(s) of his removal.

The application was supported with the facts relied upon, the affidavit verifying the facts, and written address. The respondent reacted on 9th October 2019 by filing memo of appearance, counter-affidavit and written address. The applicant thereafter filed Reply on Points of Law [RPL] on 1st November 2019. The matter then came up before me on 24th October 2019 for the first time. It was adjourned on the agreement of counsel to the parties to 8th November 2019 for definite hearing. On the 8th November 2019, the matter came up as adjourned but could not go on as adjourned due to the absence of counsel to the respondents. Consequently, it was adjourned to 14th November 2019 for definite hearing; and it came up as adjourned.

Yet on this date too, the matter could not go once again, because of the learned counsel to the respondents, who stalled the proceedings because, he did not come to Court with the file of the case and applied for adjournment on the ground that, he was not with the process on which the learned applicant sought correction. The matter was further adjourned to the 21st November 2019 for definite hearing with a cost of N20,000 against the counsel to the respondents personally. It came up as adjourned and the learned applicant and the learned counsel to the respondents adopted their respective processes. The learned counsel to the respondents adumbrated further that; due process was followed in the termination of the appointment of the applicant. The learned counsel submitted that, the applicant was also accorded fair hearing and was terminated when he could not exculpate himself. The learned counsel argued that, the case has not, in any way, faulted the procedure adopted in the termination of the appointment. The learned counsel to the respondents urged the Court to dismiss this case with substantial cost. There ended the adoption and adumbration and the matter was adjourned to 5th December 2019 for judgment. Let me now proceed to the summary of the written addresses.

SUMMARY OF THE ADDRESSES OF THE PARTIES

  1. Applicant’s Address

O.N. CHIMA franked the written address. The learned counsel, who appeared on behalf of himself, submitted the following issues for the consideration of the Court:

  1.             Whether the Applicant was wrongly removed by virtue of Section 5 (iii) of the Customary Court Law, Cap. 47 Laws of Ebonyi State, 2009?
  2.             Whether giving a speedy trial/accelerated hearing to a matter is an offence known to Ebonyi State Customary Court Law, Cap 47, laws of Ebonyi State, 2009, and Section 36(12) CFRN, (1999) (as amended)

 III.            Whether the 1st Respondent acted in good faith and within the bounds of law in removing the Applicant as the Chairman, Uwana Customary Court Afikpo?

  1.             Whether the Applicant is entitled to any remedy/damages looking at the totality of the actions of the Respondents?
  2.             Whether the 1st Respondent’s refusal to furnish the Applicant with the Report of the Justice Uhuo led Panel does not amount to breach of fair hearing against the Applicant?

Under issue I, which was whether the applicant was wrongly removed, the learned counsel argued that, the applicant has not committed any offence known to law to justify his removal from office. The learned counsel referred the Court to section 36(12) of the 1999 Constitution. The learned counsel argued that, the 1st respondent removed him for the sole purpose of filling his position with his boy, who lived in his house. The learned counsel argued further that, the fact that one Mrs. Amanda Agha, who had admitted his allegations against her, was reinstated while he was sacked, is a pointer to the injustice meted out to him. The learned counsel argued that, after the applicant refused to collect bribe from Mrs. Amanda Agha, the said Mrs. Amanad U. Agha went to the 4th respondent to induce the transfer of the applicant so that, she could replace the applicant as the Chairman of Unwana Customary Court in order to enable her carry out the will and command of the 4th respondent.

The learned counsel referred the Court to paragraph 14 of the affidavit of Mrs. Agha’s response to the applicant’s petition, wherein it was stated that, the applicant pronounced openly in the courtroom on 31/10/2018 that he had been transferred and that he knew the transfer was political hence, his petition of 4/10/2018. The learned counsel submitted that, the fact that Mrs. Agha who was not in his Court on that date knew this, was signification of the fact that she and the 1st, 2nd, and 4th respondents jointly orchestrated his transfer with a view to removing him because, he had refused the bribe of Mrs. Amanada U. Agha, which frustrated the game plan of the conspirators. The learned counsel urged the Court to grant this application because the 4th respondent did not make any order on the applicant to stay proceedings in the case that brought this suit. The learned counsel cited section 44 of the Customary Court Law, Cap. 47, Laws of Ebonyi State, 2009 [CCL]. The learned counsel referred to Exhibit A, and submitted that, the decision of the respondent was too vague and failed to mention the specific section of the CCL the applicant breached and did not also mention the parties in the suit. The learned counsel submitted that, it was clear that, the 1st and 4th respondents were angry with the applicant because he refused to collect the bribe from Mrs. Agha, whom they are protecting.

The learned counsel submitted further that, his removal as the petitioner and reinstatement of Mrs. Agha, whom he petitioned, and which petition was found true, is significant. The learned counsel further opined that, the fact that, the learned Mrs. Amanda U. Agha, who claimed only to have accosted the applicant with the allegation that he collected bribe in one of the cases his principal handled before him, which the applicant allegedly admitted, failed to report this admission to the appropriate authorities is also significant. The learned counsel also submitted that, the fact that the litigant, who allegedly reported this allegation to the principal of Mrs. Amanda U. Agha, was not called to testify is equally significant. The learned counsel submitted that, all these are a pointer to an orchestration amongst the learned Mrs. Amanda U. Agha Esq., her principal, Barr. Ewa, the 4th respondent, in concert with the Justice Uhuo’s Panel, to remove him from office. There ended arguments on issue I and; the learned counsel moved to issue ii.

Under the 2nd issue, which is whether giving accelerated hearing to a case could amount to an offence, the learned counsel submitted that, the case in issue was a 2014 case and that, all adjournments on the case were done in the presence of the parties and none of them ever complained of bias against him or any of the members of the Court. The learned counsel submitted that, the simple reason for all the allegations against him is because of the selfish interest of the authorities of the Customary Courts. The learned counsel referred the Court to section 22(i) & (iii) of the CCL and submitted that, when the plaintiff’s counsel prayed for accelerated hearing of the case, the application was not opposed by the other side; and that, the present posture of the defence counsel is an afterthought.

The learned counsel submitted that, the defendants’ motion for transfer could not ground a stay of proceedings, though supported by Order XXI, Rule 6(1) of the Customary Court of Appeal Rules 2017 [CCAR] because, the said rule, being merely procedural, is in conflict with section 44 of the CCL, a substantive law, which says, application for transfer shall not act as stay of proceedings; and as such, the substantive statutory provision prevails, contrary to the postulations of the 4th respondent. Arising from this, the learned counsel urged the Court to hold that, the applicant did not disobey the 4th respondent and resolve this issue in favour of the applicant. Thereafter, the learned counsel moved to issue iii.

Under issue 3, which is centred on whether the 1st respondent acted in good faith and within the law in removing the applicant, the learned counsel cited section 5(1) of the CCL and submitted that, the 1st respondent lacked the vires to remove the applicant as Chairman of Unwana Customary Court, Afikpo. The learned counsel cited paragraph 2 of the applicant’s letter of appointment [Exhibit A] and submitted that, his appointment was only subject to good conduct and wondered what amounted to good conduct, if he had to be removed for refusing offer of bribe by Barrister Amanda U. Agha. The learned counsel argued that, his removal in this circumstance is evidence of bad faith on the part of the 1st respondent. The learned counsel urged the Court to find for the applicant under this issue and moved to issue 4.

Under issue 4, which is on the reliefs claimed, the learned counsel argued that, the applicant is entitled to both damages and reinstatement. The learned counsel argued that, the applicant is entitled to be put in the position he would have been had the termination not occurred. The learned counsel cited Anambra State Environmental Sanitation Authority v. Ekwenem (2009) 45 WRN 1 at 7, R. 4. The learned counsel also touched on exemplary and aggravated damages and cited Marine Mgt Asso. V. National Maritime Auth. (2012) 12 KLR (Pt. 320) 3863, R. 7, para. F and Odogwu v. AG Federation (1996) 6 NWLR (Pt. 455) 508 on the need to award damages that, would serve as deterrent against oppressive use of power. The learned counsel moved to issue 5.

On issue 5, which centred on refusal to furnish the applicant with the report of the panel, the learned counsel argued that, the 1st respondent breached his right to fair hearing when it refused to serve him with CTC of the report of the panel to enable him know the reasons for his removal despite the fact that, the applicant applied for the report twice. The learned counsel referred to paragraphs 27-29 of the affidavit in support. The learned counsel cited Aiyetan v. The Nigerian Institute of Oil Palm Research (1987) LPELR-SC 189/1985 on the right to be heard before a decision could be taken against a person. The learned counsel argued that the applicant has furnished the Court with all relevant materials to make its decision and cited Onwumechili & Anor v. Olajobi & Ors (1985) 1 NWLR (Pt. 13) 504. There ended the written address in support of the application. I move to the written address of the respondent against it.

 

 

 

  1. Written Address of the Respondents

PAUL MGBADA AWADA, DIRECTOR OF CIVIL LITIGATION, EBONYI STATE franked the respondents’ written address. The learned counsel formulated three issues:

  1. Whether by the combined effect of sub-sections (i), (iii), (iv) (section 5(vii) is erroneously expressed as ‘7’), paragraphs b, c, & d of section 5 of the Ebonyi State Customary Court Law, Cap. 47, Laws of Ebonyi State of Nigeria, 2009 and section 8(iii) of the Ebonyi State Judicial Service Commission as established under section 3 of Cap. 59, Laws of Ebonyi State of Nigeria, 2009, the removal of the applicant from office as Chairman Unwana Customary Court was unlawful?
  2. Whether the removal of the applicant from office as Chairman of the Unwanna Customary Court offended his right to fair hearing entrenched in the Constitution of the Federal Republic of Nigeria, 1999 as amended especially section 36(12)?
  3. Whether looking at the totality of the part played by the applicant in the case at hand, he is entitled to any remedy/damage?

Arguing issue 1, the learned counsel cited section 8(iii) of Cap. 59 to the effect that, it gave the Ebonyi State Judicial Service Commission [ESJSC] power to hire and dismiss the applicant herein. The learned counsel submitted that, this power of the ESJSC was partly replicated in section 5(i) of the CCL. The learned counsel argued that, section 5(vii)(b) & (c) further provides that, the ESJSC could remove on grounds of receipt of bribery or any act of corruption; and that, it could also remove if it appears to it that, any member of the Customary Court is unworthy of being a member for any other cause considered sufficient. The learned counsel argued further that, while the claimant was sitting on Suit No. CC/UN/3/2014 on 03/10/2018, he suddenly rose to the chambers and when he came back he announced that he had been transferred. The learned counsel submitted that the applicant did not dispute this evidence on 19/11/2018 when he appeared before the panel and Ewa gave this evidence. The learned counsel said that, the applicant wrote a petition dated 2nd October 2018 against the learned Mrs. Amanda U. Agha and copied Barrister Ewa and that, Mrs. Agha replied the petition on 8th     October 2018 by way of counter-petition while Barr. Ewa replied 25th October 2018. The learned counsel said Barr. Ewa raised the issue of receiving a bribe of N30,000 against the applicant in his reply and also corroborated this on orally before the panel.

The learned counsel said in an affidavit sworn 16th October 2018 and attached to this application, the 7th respondent said he was accosted on behalf of the applicant by the registrar of his Court to pay their N30,000 bribe. The learned counsel also stated that, the two counsel for the defendants made several oral applications for the transfer of the suit. The learned counsel argued that, the applicant did not deny the allegations of bribery at any point nor in all his processes before the Court. The learned counsel was of the view that the applicant rather chose to rely on technicality and his petition. The learned argued that the applicant decided to go with the case even in the face of allegations of corruption against him, placing reliance on section 44 of the CCL thus, making his defence technical. The learned counsel cited Ekpenetu v. Ofegobi (2012) 15 NWLR (Pt. 1323) 276 and some other cases on technicality and the need to eschew it. The learned counsel cited section 45(i) of the CCL, which he said the applicant did not advert his mind to while relying on section 44(b) of the CCL, and that; he could have, by it, suo motu transfer the case. The learned counsel was of the opinion that failure to utilize this section to transfer the matter showed the partisanship of the applicant in the case and cited Fawehnmi v. Akilu (1997) 4 NWLR (Pt. 67) 797 on the need for courts to be impartial.

The learned counsel cited Rule 1(1) of the Code of Conduct for Judicial Officers and catalogued the allegations against the applicant ranging from bribery, awareness of his transfer, which he acknowledged in Court, the demand of his registrar for bribe on his behalf, and the fixing of a motion for hearing before on 25th October 2018 before it was filed 29th October 2018. The learned counsel went on, cataloging the sins of the applicant and stated that; he also proceeded to visit the locus in the absence of the defendants despite application for adjournment by the defendants’ new counsel and took oral final address from the counsel to the plaintiffs without the defendants and their counsel and gave judgment on 31st October 2018. The learned counsel is of the view that, all these were done to fulfill the bribe collected. The learned counsel is of the view that, allegations of bias is proved against a judge when it is shown that, in his utterances and attention, he favours one side against the other. The learned counsel cited Wamiloju v. Abibire (2010) 42.2 NSCQR 878 at 893 and Azoukwu Nwaokakanma (2005) 22 NSCQR 385. The learned thereafter submitted that, the applicant having accepted that he was approached with a bribe in favour of one of the parties ought to have recused himself and cited Okpanachi v. Commissioner of Works (509) 482. The learned counsel submitted that, based on the above facts, the applicant had no justifiable reason to complain on his removal. Thus ended the address on issue 1 and the learned counsel moved to issue 2.

Under issue 2, which is on whether the removal infringed the right to fair hearing, the learned counsel submitted that, the petition of the applicant against Mrs. Agha and the counter-petition of the learned Mrs. Amanad U. Agha against the applicant raising allegations of corruption led to the setting up of the panel, which unearthed serious indictments against the applicant. The learned counsel argued that, the applicant appeared in the sittings of the panel with his counsel, gave evidence, cross-examined witnesses and was also cross-examined by the other side and that these facts are deposed in paragraphs 8-14 and 16 of the counter-affidavit. The learned counsel cited Baba v. Nigerian Civil Aviation & Anor (1991) 5 NWLR (Pt. 192) 388 and some other cases, to the effect that, the respondents satisfied the requirements of fair hearing in the removal of the applicant. There ended arguments on issue 2 and the learned counsel moved to issue 3.

Under issue 3, which is on the reliefs claimed, the learned counsel argued that, bearing in mind the arguments on the preceding issues; the applicant is not entitled to the reliefs claimed. The learned counsel also submitted that, the applicant, having not given any evidence as to the loss sustained, is not entitled to damages. The learned counsel argued that, address of counsel couldn’t substitute for evidence. The learned counsel submitted that, it is true that general damages need no proof, once a party wins a case but must fail where the applicant is unable to prove breach of any of his legal rights and cited Omamma v. Nwokoro (2012) 14 NWLR (Pt. 1321) 488. The learned counsel submitted that, the same thing applies to the reliefs for reinstatement and payment of remunerations. The learned counsel submitted that, the removal of the applicant was based on the recommendation of the panel that the applicant was not fit for the office he held. The learned counsel submitted that, since the applicant has failed to prove to the Court that his termination was unlawful, he is not entitled to any relief. The learned counsel cited FMC Ado[sic]-Ekiti v. Alabi (2012) 2 NWLR (Pt. 1285) 411 and thereafter concluded the written address of the respondents by urging the Court to dismiss the case. I shall now move to the reply on points of law.

 

 

  1. Reply on Points of Law

O.N. CHIMA franked the Reply on Points of Law [RPL] for himself as applicant. I shall only restrict myself to proper RPL. The learned counsel argued that, section 11(1-4) of the Labour Act enjoins that notice of termination be given before employment could be lawfully terminated; and submitted that, sections 5(vii) (b) (c) (7) of CCL which gave the respondents power to terminate without notice are in conflict with section 11(1-4) of the Labour Act, a Federal Act, and are as such, void to the extent of their inconsistency. The learned counsel conceded the issue raised by the respondent that he suddenly rose to chambers on 3rd October 2018 but that he did not sit again and did not announce that, he had been transferred and neither instructed his registrar to demand for bribe and that, these allegations were hearsay, as such inadmissible. He submitted they were hearsay because, the affidavit deposed by the 7th respondent on 16/10/2018 it was only reporting what the registrar purportedly said.

The learned counsel referred the Court to Exhibit C of the supporting affidavit and cited Miagoro v. Bashir (2000) FWLR (Pt. 19) 583, r. 7. The learned counsel said it was important to note that, the said registrar was not called as a witness and that in any event, section 9(5) of the Labour Act says an employee cannot be held responsible for the default or miscarriage of another employee. The learned counsel submitted that, the motion for transfer was filed under the Order XXI, Rule 6(1) of the CCAR and not under the Customary Court Rules 2017 [CCR], and as such, is not binding on the Customary Court, as the rules of one court are not binding on another. He submitted that, the said rule of the Customary Court of Appeal in issue, being in conflict with section 44 of the CCL, makes it much more, not binding on the Customary Court because, rules of courts give way to substantive laws in case of conflicts.

The learned counsel urged the Court to make an order directing the 4th respondent to produce the said order of stay of proceedings as enjoined by section 44 of the CCL, if truly any order like that was made, as allegedly contained in Exhibit G signed by the 2nd respondent and dated 2nd May 2019. The learned counsel also submitted that, the offence of giving speedy trial to a case despite motion for transfer filed with the President, Customary Court of Appeal [PCCA] and served on the applicant is not an offence known to law by virtue of section 36(12) of the 1999 Constitution. The learned counsel argued that, though, the respondents agreed that the applicant is entitled to the report of the panel and submitted that, despite this, the applicant was not given the report in order to prevent him from seeing that the panel approbated and reprobated in the report. The learned counsel argued that, the split decision of the panel signals that the chairman and 2nd respondent already made up their minds against the applicant. The learned counsel also said it should be noted that, the panel invited the defendants but failed to invite the claimants to testify on the allegations that they boasted before the defendants. The learned counsel submitted that, the evidence of the alleged boast was hearsay. The learned counsel submitted that, the applicant was therefore not afforded fair hearing. The learned counsel thereafter submitted that, since the applicant had deposed to evidence supporting his case in paragraph 43 of the affidavit in support, the applicant is entitled to the reliefs claimed.

Thus, ended the RPL. And that marks the end of the written addresses. I shall now proceed to give my judgment. Let me state that, I have carefully read all the processes filed and digested the contents. I have taken notice that this is a case fought entirely on affidavit. I am aware of the principles by which conflicts in affidavits are resolved. I am also aware of the principles of law governing applications for quashing decisions of inferior tribunals like certiorari, as in the instant case. I have also taken time to carefully read and digest the addresses of counsel. I have also noted the important cases and statutes cited and taken quality time to consult them. I have also done my personal research to arrive at reasonable and correct decision in this matter. To my decision I now go.

COURT’S DECISION

I will preface my decision on this case with the following preliminary observations. I observed that the letter removing the applicant did not make reference to the proceedings and report of the panel. It simply states:

“RE: REMOVAL FROM OFFICE AS CHAIRMAN, UNWANA CUSTOMARY COURT, AFIKPO

Following your refusal to obey the Rules and Procedure governing your engagement as Chairman, Customary Court Ebonyi State by flagrantly refusing to stay proceedings in a matter before you in which a motion for transfer to another Customary Court pending before the President Customary Court of Appeal Abakaliki and which motion was served on you and your Registrar of Court, you went ahead with the matter speedily and delivered judgment before the date for hearing of the said motion.

2.Consequent upon your deliberate action of refusal to stay proceedings in the matter even when you were aware of the Court Rules and Procedure governing motions for transfer in Customary Court, the Judicial Service Commission during her 108th Regular meeting held on 2nd May, 2019, resolved that you be removed from office as the Chairman, Unwana Customary Court.

  1. Consequent upon that resolution, I am directed to inform you that you have been REMOVED AS CHAIRMAN, UNWANA CUSTOMARY COURT.
  2. ACCORDINGLY, you are REMOVED from OFFICE forthwith.”

Since the respondents did not make reference to the proceedings and report of the panel, as activating the removal, the removal shall be viewed squarely from the prism of the letter of removal alone, tendered via the affidavit in support of the application for judicial review and marked as Exhibit G. The law is that, a document speaks for itself; and for this reason, in construing the contents, one cannot go outside the four walls of the document in issue  – see Okwusidi v. Ladoke Akintola University (2011) LPELR-4057 (CA) 29, D-E and Emeje v. Ihiabe Abdul Positive & Ors (2008) LPELR-4102 (CA) 19, B-C. One can only construe a document with another, if the one incorporates the other, otherwise, unconnected documents cannot be given composite construction. Exhibit G, which is the letter of removal did not directly or indirectly incorporate either the proceedings or report of the panel. It did not state what was taken into consideration in the 108th Regular Meeting of the Judicial Service Commission [the 1st respondent] other than, breach of the rules and procedure relating to motion for transfer. I cannot therefore go beyond the reasons given to delve into extraneous matters.

Nevertheless, let me state before delving into the real issue here that, I will still look at the proceedings and report of the panel [Exhibits DCL1 and DCL 4 respectively of the Counter-Affidavit] because, the applicant had prayed the Court in his relief (iii) for an order quashing the proceedings and decisions of the 1st respondent for wrongly removing him. And I found too, that, the respondents joined issue with the applicant on all the reliefs claimed and prayed the Court not to grant any; meaning that, the Court cannot decide on the reliefs relating to quashing the proceedings and decisions of the panel as contained in Exhibits DCL1 and DCLL 4 without examining these documents.

For the above reasons, and in all, I am of the view that, the facts and the reliefs in framed raised just three issues. I will therefore consecrate the myriad and prolix issues formulated by the parties into just three, as follows:

  1. Is the applicant lawfully removed as chairman Uwanna Customary Court of Appeal?
  2. Are the Record of Proceedings of the Panel and its Report liable to be quashed?
  3. If the answers to the above are in the positive, is the applicant entitled to the reliefs claimed?

 

I take the three issues one after the other:

 

ISSUE 1: IS THE APPLICANT LAWFULLY REMOVED AS CHAIRMAN UNWANA CUSTOMARY COURT, AFIKPO?

Since the instrument of removal, as earlier quoted above, states clearly that, the reason for the removal of the applicant is because of his failure to stay proceedings pending the determination of the motion for transfer filed before the PCCA, which was served on the applicant, the question of the applicant’s removal has to be determined squarely on this narrow point. The implication is that, the applicant was not removed for corruption or any other reason other than stated in the instrument of removal. The law is that, where an employer gives reason for the termination of employment/appointment, the burden is on the employer to justify the truthfulness of the reason – see U.T.C. Nigeria Limited v. Peters (2009) LPELR-8426 (CA) 19, C-D. Let us see if the respondents have justified the reason given for removing the applicant herein.

The learned applicant has said in the affidavit in support, the further affidavit and his written submissions that, he was justified in proceeding despite service of the motion for transfer on him because, no order under the hand of PCCA to that effect, was served on him, as required by law – section 44 of the CCL; and that, in addition, because, the rules of the Customary Court of Appeal [CCA], which require him to stay proceedings were in conflict with the CCL, which says motion for transfer shall not operate as stay of proceedings, he has not done wrong for according precedence to the CCL over the rules of CCA in issue. The learned counsel argued that, because, substantive laws of the state are superior to rules of court, in case of conflict, the substantive laws take precedence. The learned applicant, who represented himself, also argued that, the rules of CCA are not binding on the Customary Court because, rules of one Court do not bind another.

The learned counsel to the respondents argued contrariwise and submitted that, the learned applicant misconstrued the provisions of section 44 of the CCL by failing to take heed of the provisions of section 45(ii) of the same statute, which gives the Customary Court the discretion to suo motu report to the PCCA a matter which it feels, ought to be transferred to another Customary Court. The learned counsel for the respondent submitted further that, because, allegations of corruption were made against the learned applicant [Chairman of the Customary Court] he ought to have transferred the matter.

It should be noted that, the address of the learned counsel to the respondents did not contest the position of law canvassed by the learned applicant that, motion for transfer would not operate as stay of proceedings but only argued that, the learned applicant should have taken cognisance of section 45(ii) to know that, he ought to have transferred the suit under the circumstance of the case. I beg to disagree with the opinion of the learned counsel to the respondents. Section 45(ii) of the CCL did not in anyway detract from the potency of section 44 of the CCL. Section 45(ii) of the CCL is even expressly subjected to the provisions of the CCL, which includes section 44. Section 45(ii) only gives the Customary Court the discretion to initiate, on its own motion, application to the PCCA for a matter to be transferred from the particular Division of the Customary Court to another, if and only if, the presiding members are of the opinion that, such matter ought to be transferred to another division of the Customary Court. Section 45(ii) of the CCL dose not, therefore, in any manner state that, once a motion for transfer is filed before the PCCA, automatic stay of proceedings is implied. If the CCL intended such consequence, it would not have created section 44. The legislature is presumed not to use words in vain or make provisions in statutes in vain – see Ojibara & Ors v. The Governor of Kwara State & Anor (2004) LPELR-13002 (CA) 62, D-E, where the Court of Appeal stated the position thus:

“Before hazarding an answer I must bear in mind two established principles of interpretation 1) The legislature does not use words in vain. Therefore, 2) every word must, as far as possible, be given its natural and plain meaning.”

That section 44 of the CCL is created signifies that, the power therein conferred could be exercised at the discretion of the Customary Court. In fact, credence is given to section 44 when it provides that:

“The President of the Customary Court of Appeal may, at any stage of the proceedings before final judgment, by order stop the hearing of the cause or matter on such terms as he may consider just, and upon such order being made may, in his discretion…” – underlines for emphasis.

This simply means that, until order under the hand of the PCCA is received, stay of proceedings could not be taken as granted. In other words, the Customary Court is at liberty to continue with its proceedings. In fact, the Customary Court is under obligation to go on with the proceedings before it, until it receives order stopping it from going on, unless it is convinced otherwise – see section 22(1) & (iii) of the CCL. That is why it said that the PCCA would, by order, stop the hearing of the cause or matter. That this is the correct construction is evident from the fact the section says, at any time before final judgment, this order could be made. It simply suggests that, the Customary Court is enjoined, at its discretion, to go on with the matter until the order stopping it is received since, this order could be made at any stage before final judgment and that, the PCCA stops the hearing by an order before final judgment is entered; and logically, if final judgment had been delivered, it becomes a matter of appeal.

If this were not the intendment, section 44 would not have inserted the provision that, the order could be made at any stage before final judgement and that the PCCA needs an order to stop the hearing. It would just have provided that, immediately the application is filed, the Customary Court ceases to have jurisdiction. When the words of a statute are clear and unambiguous and their literal construction would not lead to absurdity, they must be interpreted literally – PDP v. INEC (2014) LPELR-23808 (SC) 34-35, D-A. The words of section 44 of the CCL are very clear and; giving them literal construction, would not lead to absurdity. It would rather bring to effect the tenor of the CCL.

 I think it is in realization of the abuse to which such application for transfer could be subjected that, the legislature, in its wisdom provided a safeguard by giving the trial court the discretion either or not to stay proceedings, pending the exercise of the administrative power of the PCCA either way; otherwise, the danger stares the administration of justice in the Customary Court in the face that, virtually no case would proceed to completion in the Customary Court of Ebonyi State by the time the abuse of the right to apply for transfer would take full swing; as countless number of frivolous applications for transfer would continue to be made and the trial Customary Court would have to perpetually wait for the return of the decision of the PCCA on each ad infinitum! This bizarre result cannot be the intendment of the CCL. I say this because, it has not been shown to me that, there is a limit to the number of times such applications could be made. In very similar situation in Ecobank (Nig) Ltd v. Anchorage Leisures Ltd & Ors (2018) JPL 47058 (CA), where the trial court decided not to await the administrative decision of the Chief Judge to assign a case, on application for transfer, to another judge and proceeded with accelerated hearing of the case, just like in the instant case, the Court of Appeal approved the trial court’s decision thus:

“It necessarily follows therefore that since the lower Court did not recuse itself and equally did not await the decision of the Chief Judge before proceeding further, it remains a life issue whether the lower Court arrived at the correct decision…The prime question involved in the appeal in my view is whether a Court, upon being informed that a party has lost confidence in the Presiding Judge and has made allegations in that respect for the Chief Judge to handle administratively, should recuse itself because the allegations have been made, or put in abeyance the discharge of its judicial duties as it relates to the matter…

The Court is not a timorous institution that would be cowed into ineluctably withdrawing into its shell in a snail-like manner whenever allegation of bias or likelihood of bias is made against it. If it were to be so, the society at large and the law in particular would be worse for it. The judicial oath of the judex enjoins him to do justice to all manner of persons without fear or favour, affection or ill-will…

The decision of the lower Court refusing to recuse itself based on the materials in the oral application is the correct decision. There is no basis on which to interfere with it since based on the facts, materials and lack of credible and tested evidence on which the Appellant predicated its oral application, the Court could not have recused itself.”

I take note of the fact that; no allegation of corruption was made in the case cited above but that of bias. But I am of the view; the decision remains binding precedent for this case. The Customary Court did believe that the allegations of corruption were baseless, even if deposed in affidavit, and refused to recuse itself, just like the High Court in the case cited, believed that the application to recuse itself from the case pending the decision of the Chief Judge on application for transfer was baselessness. It is the belief of the trail court that matters, based on the facts before it and the circumstances of the case. It does not seem to matter too, whether the application for recusal was made orally or the allegations were made orally before the trial court, what is material is that, this decision shows that, a court is not bound kowtow once accused corruption or bias and an application for transfer of the case lodged on those grounds to the Chief Judge or the head of court.

I take note too, that, in this particular instance, there is no allegation of corruption or even bias on the letter of removal. All that was contained therein [Exhibit G] was that, the learned applicant, as Chairman of the Customary Court, Unwana, committed offence merely for failing to recuse himself by failing to stay proceedings because, there was a motion for transfer before the PCCA, to his knowledge. The letter of removal harped on infringement of the rules of court. I cannot but agree with the learned applicant that, any such rule of CCA or the Customary Court, which conflict with the provisions of substantive law, being adjectival and subsidiary legislation, cannot inhibit the Customary Court and the learned applicant, as Chairman of the Unwana Customary Court, Afikpo from exercising the jurisdiction and powers or discretion conferred on the Customary Court and the presiding panel by section 44 of the CCL – see Duke v. Akpabuyo LG (2005) LPELR-963 (SC) 8, D-F and Kalu v. Odili & Ors (1992) LPELR-1653 (SC) 84, A-B.

In view of the above, I hold that Order XX1, Rule 6(1) of the CCAR is in conflict with section 44 of the CCL by totally depriving the Customary Court of the discretion granted it therein; and therefore void to the extent of its inconsistency. I accordingly strike down the said Order XX1, Rule 6(1) of the CCAR. I also note that, the letter of removal did not say anything about being transferred before the learned applicant went ahead to speedily hear the case and deliver judgment. I take it to mean that, disobedience of transfer was therefore not part of the reason why the learned applicant was relieved of his duties; and that, it would be academic to consider it in deciding issue 1 as formulated above. I also take note that the learned applicant said this is a 2014 case. The case is definitely old as at 2018 in the Customary Court system, not bugged down by technicality and procedures; and enjoined to fast-track cases – see section 22(1) & (iii) of the CCL. I don’t think this can be faulted, unless undue prolongation of cases is being encouraged at the Customary Court, against the spirit of section 22(1) & (iii) of the CCL.

I also wish to observe that, notwithstanding the use of the term motion in relation to the application filed before the PCCA for transfer, the application nonetheless, asked for administrative exercise of power and not judicial. I say this because; I observed that, the said motion in issue did not originate from any right of appeal exercised or to be exercised. The only way by which the CCA could be seised of matters pending before the Customary Court is when appeal emanating therefrom is filed before it. Any other application not connected with appeal, is merely requesting the exercise of administrative powers of the PCCA. That is why the said application was directed to the PCCA and not any other judge of the CCA, for; it is only the PCCA that has the right to exercise administrative powers over the Customary Court. I therefore entertain no hesitation in agreeing with the learned applicant’s contention in law that, the rules of one court is not binding on another; and for that reason, the rules of the CCA in issue do not bind him as Chairman of the Customary Court.

I agree that the rules of one court cannot bind another to the extent that there is no appeal or application to appeal. It is exercise of right of appeal or right connected with appeal that activates the rules of the appellate courts and connect them with or make them binding on the trial courts or lower courts. Where there is no appeal in sight or any application connected thereto or therewith, the rules of the appellate courts are meant for them alone; and not for the lower courts, and cannot therefore bind the lower courts. In the instant scenario, it is established that, there was no appeal or any application connected with right of appeal. The application for transfer was just filed above the Customary Court to the CCA without first applying to the Customary Court and thereafter, served on the Customary Court. The matter is not before the CCA on trial. And no appeal has been filed on the suit nor application for leave to appeal filed. The application is truly sue generis and anomalous; and has no place in the organogram of adjudication other than what it is: petition for exercise of the administrative power of the PCCA. The Supreme Court has settled this area of the law beyond disputation in Owoniboys Technical Services Limited v. John Holt Limited (Yamaco Div.) LPELR-2855 (SC) 15, D-E, when it held that:

“…appeals to the Supreme Court from the Court of Appeal are guided by the Supreme Court Rules, the Supreme Court Act 1960 as amended and section 213 of the 1979 Constitution. The Court of Appeal cannot in this respect make rules to bind the Supreme Court. In Nneji v. Chukwu (1998) 3 NWLR (Pt. 81) page 184 the Court held that the rules of practice made for one Court, cannot be binding on another Court, either higher or lower, in the judicial hierarchy.”

I think that settles the issue of the status of the rules of the CCA vis-à-vis their relationship to the Customary Court. The anomaly of Order XXI, Rule 6(1) of the CCAR becomes more poignant and repulsive when it is realised that it attempted to take away the discretion granted the Customary Court under section 44 of the CCL. It could not have been more invalid and liable to be struck down, as I have already done earlier in this judgment. I am of the very firm view too, that, the powers conferred on the PCCA under the rules of the CCAR is a direct affront to sections 22(i) & (iii) and 44 of the CCL and serves no useful purpose, other than to impede the administration of justice at the Customary Court level. Such wide power without restraint can only promote abuse of process by litigants who stand to benefit from such applications for transfer, knowing fully well that, however frivolous it might be, once filed, the trial court has to stay proceedings: this is a sure goldmine to the defendants especially. The correct position of law, and sensible one at that, is as provided under sections 22(i) & (iii) and 44 of the CCL, a substantive statute. I make haste to state that even in the absence of sections 22(i) & (iii) and 44 of the CCL, Order XX1, Rule 6(1) of the CCAR, could not have been binding on the Customary Court on the authority of the above-cited Supreme Court’s case. It should noted that, this very right to apply to the PCCA for transfer is not, a matter of appeal but, merely a right to apply for the administrative powers of the PCCA, which dose not affect the jurisdiction of the trial Customary Court but, one that has the propensity to perpetually delay the hearing of cases before the Customary Court. Jurisdiction of any court, be it inferior or not, cannot be clogged in such manner by mere rules of court.

It could have been understood, had it been that the matter was on appeal; the trial Customary Court would have been expected to await the decision of the CCA. It is not also a post-judgment application, where it could be said that, the res would be destroyed, if the judgment were enforced. The suit is land matter. If I may ask, if judgment is given, as has been done in this case, why are the defendants afraid to go on appeal and are hell bent on making sure that, judgment was never delivered in the matter? All the issues canvassed and all the points apparent on the letter of removal are points, which properly belong to appeal. When a trial court has exercised its jurisdiction and it is clear that, there is a law which suggests it could exercise the discretion one way or the other, such belongs to appellate court to determine whether the discretion has been properly exercised in a particular instance.

If I may ask, what was the new counsel coming to do in the matter different from that already done by the previous counsel that made the withdrawal of the previous counsel become necessary? In my view, the withdrawal was simply a ploy to get, by another means, the delay of the matter, which the erstwhile counsel had failed to get. This was made clear when the new counsel proceeded to file similar application for transfer like his predecessor and also asked for adjournment to enable him study the file. It is clear that, the sole purpose of the change of counsel was to stay proceedings and truncate the trial at all cost. If the previous counsel truly felt the trial Chairman did anything wrong, it was for him to take up the issue rather than procure another counsel, to get granted, by his withdrawal, an application he had earlier argued and which was turned down.

I think this is an abuse of process and the trial panel rightly refused the application, called on the defendants to participate in the trial and rightly foreclosed them when they said they were not ready to participate in the absence of their counsel, and proceeded with the trial and delivered judgment – see paragraph 3, page 7 of the report of the panel [Exhibit DCL1]. It should be noted that the trial is before a customary court devoid of undue technicality and procedure, which delay trial at the regular courts. The Customary Court could not be turned into regular courts. The previous counsel knew the case was adjourned for continuation of trial at the stage he withdrew because, the trial was not pleasing to him and decided to ask his clients to hire another counsel.

Now, this new lawyer refused to go on with the trial but, instead, proceeded to file exactly the same application for transfer or stay of proceedings and when it was refused, asked for adjournment. Is it not clear that, the purpose of the withdrawal of the previous counsel was to get, by another means, what he failed to get earlier on, on the merit? I wonder if there is no right of appeal on interlocutory and final decisions of the Customary Court to the CCA! Why did the previous counsel not appeal, and apply for stay of proceedings, if he felt strongly that his applications were meritorious and wrongly refused, so that, the CCA would be able to lay down a firm decision on an issue that had been determined and on which the trial panel had become functus officio, instead of procuring another counsel to get the same thing on which he had been overruled. The right to determine these questions on appeal is perhaps, still open to the defendants if they are still within time to appeal or if leave to appeal out of time is granted. Let them pursue the appeal instead of dissipating energy on a non-profitable venture.

A trial court would be shying away from its responsibility if it has to truncate a part heard matter because of a frivolous application that another counsel had just been hired and needed time to study the case file without giving cogent reasons than that he had just been briefed, as in the circumstances of this case. Now that judgment had been delivered in this case, let the defendants go on appeal instead of wasting time pursuing vendetta against the learned applicant for not dancing to their tune. This would not detract from the potency of the judgment against the defendants. It is only on appeal that the defendants and their erstwhile counsel could get the judgment set aside for being procured by fraud or by an application to the trial Court to set it aside for being procured by fraud. It is also on appeal that the defendants could get the judgment reversed and trial de novo ordered, if they can show that it was improper for the trial Court to have proceeded, as it did, in all ramifications or in any ramification; and not by an application for administrative exercise of the powers of the PCCA, which has been overtaken by the delivery of final judgment in the matter.

It is clear from the above that, the applicant did not infringe any rule of the Customary Court or that of the CCA. It is rather the 4th respondent that has infringed the provisions of section 44 of the CCL by making inconsistent provisions in Order XX1, Rule 6(1) of the CCAR, which the 1st respondent relied on to unlawfully truncate the career of the learned applicant. In view of all I have said under issue 1, I am of the firm view that, the respondents have no vires whatsoever to remove the applicant, as depicted in the letter of removal. Issue 1 is thus answered in the affirmative against the respondents and in favour of the learned applicant. I accordingly set aside the removal and quash the letter of removal [Exhibit G]. I move to issue 2, which is on whether the proceedings of the panel and its report are liable to be quashed.

ISSUE 2: ARE THE RECORD OF PROCEEDINGS OF THE PANEL AND ITS REPORT LIABLE TO BE QUASHED?

To answer the above question one must first review the evidence relating to the issue. Evidence or facts are the fulcrum for the application of law. When the facts are ascertained then, it would not be difficult to know the applicable law. First, it should be noted that, the very defendant who reported that the plaintiffs were boasting did not testify before the panel and neither did any of the defendants. The pastor who allegedly secretly recorded the conversation with the registrar did not equally testify before the panel and neither was any of the plaintiffs or their lawyer. My close scrutiny of the whole of the report of the panel did not yield the result that they testified, likewise the proceedings of the panel [Exhibit DCL4]. It was only recorded in the proceedings that the plaintiffs’ lawyers asked one question in cross-examination – see page 8A of the proceedings at page 237 of file. I also observed that the proceedings exhibited were incomplete having ended at page 9, which is page 238 of file.

But it appears that the remaining part only has to do with the decision of the panel and that the evidence adduced was complete. In the circumstance, it is clear that, the evidence given by both Barr Ewa and Mrs. Amanda U. Agha Esq. on the allegation that the applicant collected N30,000 bribe from the plaintiffs was patently hearsay of the highest quality and order, besides the fact that, any evidence given by both Barr Ewa and Mrs. Amanda U. Agha Esq. must be taken with a pinch of salt by any reasonable tribunal because, both agreed they actually set out to bribe the learned applicant, though, as agent provocateurs – see paragraphs 6(ii) & (iii) of the counter-affidavit.

The excuse that they were investigating the applicant for allegation of taking bribe from the plaintiffs to pervert justice cannot hold because, in actual fact, Mrs. Amanda U. Agha Esq., who is the instrument of this purported investigation did not actually investigate anything relating to the alleged bribe of N30,000 but admitted, she bated the applicant with another bribe – see paragraph 6(iii) of the counter-affidavit and paragraph 3 of the response of Mrs. Amandqa U. Agha Esq. to the petition of the applicant against her [Exhibit C of the affidavit in support of the certiorari]. She did not give evidence that she paid any bribe to the applicant; or that, the applicant collected any from her. The applicant said he rejected this offer – see paragraph 10 of the affidavit that accompanied the petition of the applicant [Exhibit B of the affidavit in support of the certiorari at p. 26-27 of file]. And the report of the panel admitted that, Mrs. Amanda U. Agha Esq. did not establish anything against the applicant directly – see finding 4 of the report of the panel at p. 10. It would be seen that, the scenario painted above does not depict investigation but actual attempt to bribe or tempt the applicant with a bribe.

Let me say that, for an agent provocateur to escape penalty for any offence committed, the authorities with powers to punish for the offence or to arrest for the offence must have approved him/her. The work of agent provocateur must be limited strictly to investigation by means of deception, which would make the accused to confess to the crime in issue or make statement that could lead to unravel the crime and not by means of committing another offence in an attempt to cull out evidence from the suspect. Offer of another bribe without any investigation of the one allegedly collected is purely another offence; and not one of the duties of agent provocateur – see Igbinovia v. The State (1981) LPELR-1446 (SC) 20-22, F-B:

“In…Rex v. Todd, the accused was induced to confess by two detectives who were police officers, representing that they were members of an organized gang of criminals and that to gain admission to the gang he must satisfy them that he had committed a crime of a serious nature…

While considering this police procedure of detection by deception in the case of R. v. Murphy (1965) N.I.138 commented ‘detection by deception is a form of police procedure to be directed and used sparingly and with circumspection but as a method it is as old as a constable in plain clothes and, regrettable though the fact may be, the day has not yet come when it would be safe to say that law and order could always be enforced and public safety protected without occasional resort to it.”

It is clear from the above that, the main aim of agent provocateur is to detect crime by deception and not to bate the accused to commit another crime. Otherwise, any common criminal would be able to claim the status of agent provocateur, in as much as s/he can get someone to collaborate with him/her, as in the instant case, where Mrs. Agha claimed that Barr Ewa allegedly directed her to investigate the allegation of bribery against the applicant. And as deposed in paragraph 6(iii) of the counter-affidavit of the respondents, what came out of the purported duty of agent provocateur assigned Mrs. Agha is as follows:

“Pursuant to the foregoing directive, Mrs Amanda Uchenna Agha tried to set up the applicant by psyching him to name a price for giving judgment in favour of the defendants…”

 It is clear from the foregoing and paragraphs 2 and 3 of page 3 of the report of the panel [Exhibit DCL1] and page 150 of file that, Mrs. Agha Esq. admitted trying to bribe the applicant and; not that, she investigated anything. In addition, the respondents are the authorities that can punish for the misconduct in issue. The respondents have not stated at any place that they were in concert with Mrs. Agha Esq. and Barr. Ewa to set up agent provocateur against the applicant. Hence, it is illogical for the respondents to come to the conclusion that, Mrs. Agha Esq. was a mere agent provocateur, when she clearly did not perform the functions of agent provocateur but that of an unsuccessful bribe giver. The conduct of Mrs. Agha Esq. becomes more worrisome in that she too is Chairman of another division of Customary Court in the State.

For the above reasons, I am shocked to hear the panel defend Mrs. Agha that she did not commit any offence but that, the applicant did, when it is clear that there is no iota of evidence against the applicant but mountain of evidence against Mrs. Agha, contained in serial admission against self – see recommendation 3 at page 13-14 of the report and page 160-161 of file. I am also shocked that, the 1st respondent ignored the recommendation of the panel, even though unfounded, that, both the applicant and Mrs. Agha Esq. be punished [see p. 13, recommendation 3 of the report and p. 160 of file] and decided to punish the applicant alone, against whom no guilt was proved, by issuing him the removal letter in issue but gave Mrs. Agha Esq. a pat on the back! These anomalies inclined me to the conclusion reached by the applicant that the panel was a rogue panel.

It is evident that the Customary Court sits in panel of three; and that, decisions are jointly signed, where there is no dissenting opinion. It has not been shown that any of the three panelists wrote any dissenting opinion on all the proceedings of the Customary Court chairmanned by the applicant and leading to this case. There was no dissenting opinion in the judgment too (Exhibit L). The three panelists jointly signed. I wonder why all the three panelists were not cited and punished for the alleged offence jointly committed. I wonder too, how the applicant was able to railroad his ways to pervert justice or disobey authorities without opposition from the other members. I wonder too, why it was only one of the two remaining members that, was called to appear in the panel while the other was not invited. Obviously, evidence of such an accomplice as the other member called, ought to be corroborated to induce any belief in the special circumstance of this suit – see Okosi & Anor v. The State (1989) LPELR-2499 (SC) 11-12, C-B.

This raises the presumption that, the evidence of that third panelist would not have favoured the respondents, which was why he was not fielded – see Ekweozor & Ors v. The Registered Trustees of Saviours Apostolic Church of Nigeria (2014) LPELR-23572 (CA) 60, A-B. This gives credence to the deduction of the applicant that the member called was suborned. I think with these lapses, one does not need to look far to perceive a malevolent motive in the harassment of the applicant. The evidence given by only one of the two remaining panelists should be seen for what it is: jaundiced. His joint signatures on all the proceedings in dispute signify consent to the regularity of the proceedings. Hence, his later summersault is evidence of inconsistency on his part, making his evidence liable to be disbelieved and discountenanced – Ekweozor & Ors v. The Registered Trustees of Saviours Apostolic Church of Nigeria [supra] 59-60, F-A.

It should be noted that, up till now, it is not established that the applicant was served with any order of transfer of the suit in question, nor any letter of transfer from the Customary Court, Unwana, Afikpo – see the report of the panel at p. 2, para. 2, penultimate line and sentence. The registrar of the Court seemed to be in the middle of everything and central to establishing any complicity against the applicant in the allegation of collection of bribe of N30,000. He was the one who allegedly made statements to the pastor of the defendants that his boss, the applicant, had collected bribe of N30,000 – see page 2, paragraph 8 of the response of Barr. Ewa at page 40-41 of file. He was the one who also allegedly orally informed the applicant that, he had been transferred. This same registrar was alleged to have refused to appear before the panel to testify. With the absence of the registrar, it could not be established that he actually gave the conversation in issue. The questions that led to the purported answers indicting the applicant were not stated and neither is the instrument by which the recording was done or containing the recording is before me. Barr. Ewa, who gave this evidence, did not state that he was there when this alleged conversation was being recorded. This fact makes the evidence hearsay evidence. In Utteh v. The State (1992) LPELR-6239 (SC) 11, C-E, the Supreme Court stated the law on hearsay as follows:

“In the Subramanian case…the Judicial Committee of the Privy Council did not say that in all cases hearsay evidence is inadmissible. At p. 970 of the Report, the rule against hearsay is stated as follows:- ‘Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and admissible when it is proposed to establish by evidence, not the truth of the statement, but the fact that it was made.”

The evidence of the recording of the alleged conversation is being proposed to be used to establish the fact that the applicant herein actually collected the bribe of N30,000 in issue. That is, it is being used to establish the truth of the collection of bribe of N30,000 against the applicant. It is therefore inadmissible by virtue of the Supreme Court’s ratio above quoted. Now, the learned counsel to the respondents had argued that the learned applicant did not deny the collection of the bribe but merely based his defence on technicality.  Nothing could be farther from the truth. At page 3, paragraph 1, 3rd sentence at lines 3-4 of the report of the panel, the applicant was reported thus, “He claimed that he has never accepted bribe though, he had been approached for bribery.” This definitely is a clear denial of ever receiving any bribe, which must include the one in issue. And this being admission in the report that the applicant denied ever receiving bribe, it is admission against self that the applicant disputed receiving bribe; and this denial cannot be disputed again – see NU Metro Retail Nigeria Ltd v. Tradex S.R.L & Anor (2017) LPELR-42329 (CA) 23, E-A.

Let me also state that, the law is that, where an employer gives reason for the termination of employment/appointment, the burden is on the employer to justify the truthfulness of the reason – see U.T.C. Nigeria Limited v. Peters [supra]. From the review of the evidence in the case and the inferences drawn therefrom, it is clear that, the inferences and conclusions reached in the report of the panel were unsupported by the evidence appraised and, therefore perverse. The report and proceedings of the panel set up to investigate the allegations against the applicant were therefore jaundiced and perverse. With the evidence on record, no reasonable tribunal would have reached the conclusions the panel reached its report.

I will not sign off this aspect without making a concluding observation on the scenario as painted in this case. With the accusations and counter-accusations of corruption and perversion of the administration of justice flying about in this case, it is thought that the respondents would have been more interested in getting to the roots of the allegations and counter-allegations. More so, when these allegations even extend to the authorities that tried the allegations. There are the allegations of transfer being political or malevolently influenced, pulling strings at the apex and interference at that level too. Whatever all these might mean or suggest, it is at least obvious that, the respondents were not well equipped to carry out the assignments involved, if in deed, they were interested in unraveling the allegations and putting an end to invasive corruption and perversion of justice in the Customary Court. They should have turned over the matter to the appropriate agencies that are equipped for the investigation and prosecution this type of allegations so that, they could get to the root and nip in the bud the cankerworm.

Mrs. Agha had also invited the respondents to cull from the MTN her discussions with the applicant. It is clear that, substantial parts of the alleged criminal conversations took place on GSM and that; it was absolutely necessary to cull these conversations from the network providers to unravel the truth. It was also clear that, the Registrar of the Customary Court Unwana, Afikpo was equally central to the allegations of pervasive corruption plaguing the Customary Court in issue. He did not testify before the panel. The role of Mrs. Agha and his principal is equally questionable, as explained above. It should not be forgotten that Mrs. Agha is herself Chairman of another Division of the Customary Court in Ebonyi State. This raises the issue of the wisdom in appointing practising private counsel who continue to practice after appointment, and especially those serving under senior partners or principals, to preside over customary courts. I do not see that this could not lead to abuse. The possibility of abuse has been quite demonstrated in this case. That serves as signal to the concern authorities to look into this with a view to remedying it.

The mere fact that the serving customary court Chairman would not appear in any customary court during the currency of his service as customary court Chairman does not seem to detract from the danger of abuse, when his chambers is allowed to continue to appear in customary courts in the state. This sort of alleged complex criminal activities could not in any way have been successfully investigated and concluded by the respondents, if they were serious about fighting corruption in the Customary Court. They ought to have turned over the case to the Police or ICPC or EFCC for thorough investigations of all mentioned and connected with the allegations, while in the meantime; the principal suspects were suspended or interdicted. This they ignored with contempt. They proceeded to carry out duties for which they were not suited, fueling speculations that there was a preconceived motive totally unconnected with stopping corruption in the Customary Court. I could not see any sense in the burial of truth and murdering of justice at the altar of speed.

It should not be forgotten these are purely criminal allegations, which the law requires to be proved beyond reasonable doubt at all times – see United Foams Products Nigeria Limited & Ors v. Opobiyi & Anor (2017) LPELR-43166 (CA) 63-64, F-C. Since there was no admission of guilt on the part of the applicant, the respondents could not have found the applicant guilty and proceeded to remove him thereby – see Dongtoe v. CSC, Plataea State & Ors (2001) LPELR-959 (SC) 35, C-F. May be, it is in realization of the worthlessness of the proceedings and report of the panel that the respondents quickly beat a retreat by deciding not to allude to it in their letter of removal. Having not had any justifiable evidence to find fault with the applicant, and they did, the proceedings and the report cannot therefore stand; and I so hold. That ends issue 2. Issue 2 is therefore resolved in favour of the applicant and against the defendants. It follows that, both the proceedings and the report of the panel are liable to be quashed and set aside. I hereby quash and set aside both the proceedings and the report of the panel that investigated the allegation of collection of bribe against the applicant. I now move to issue 3, which is on the reliefs claimed.

 

ISSUE 3: IS THE APPLICANT ENTITLED TO THE RELIEFS SOUGHT?

When all the live issues in a case are resolved in favour of the party suing, the next thing is to grant reliefs. But the law is that, a court only grants such reliefs which are justified by the facts pleaded and evidence adduced; meaning that, a party suing might claim some reliefs and yet not be entitled to them. Let me now examine the reliefs to which the applicant herein is entitled. First of all, relief (i) is unnecessary in view of Order 48, Rule 5(1) of the NICN Rules, which makes leave unnecessary, where application for judicial review was made within 3 months of the occurrence of the cause of action. The cause of action arose 2nd May 2019 when the letter of removal was issued and this suit was filed 25th July 2019, well within the 3 months grace thus, obviating the need for leave. The relief is accordingly struck out. I have already granted reliefs (ii) and (iii) by quashing and setting aside the letter of removal, the proceedings and report of the panel.

With regard to reliefs (v), which relates to general damages, I shall consider it along with relief (vi), which is asking for reinstatement. The damages usually granted in employment tainted with statutory flavour, where unlawful termination is proved, are reinstatement and payment of the arrears of salaries. There is no argument that the applicant has a tenured appointment with the 1st respondent for a period of three years. The conditions imposed are that, the appointment is subject to good conduct and government policy. Paragraph 2 of the letter of offer of appointment [Exhibit A of the affidavit in support] contains the tenure and the conditions of appointment. The applicant was removed for purported acts constituting bad conducts [disobedience to the rules of court and authority]. There is no doubt that, the 1st respondent is a creation of statute – see section 3(i) of the CCL. And the ESJSC, via section 5 of he CCL, gives the powers to the 1st respondent to appoint and discipline the applicant. There is no doubt too, that, the employment has statutory flavour. Elaborate statutory procedures have been followed in the removal. In fact, the respondents have not canvased the issue of the appointment not being with statutory flavour before me. That point is deemed conceded and agreed on by the parties. Where a court comes to the conclusion that a tenure employment/appointment has statutory flavour, the order made where such employment/appointment is unlawfully determined, as in this case, is reinstatement. The Court of Appeal stated the law in Adeleye & Ors v. Governor Ekiti State & Anor (2011) LPELR-8974 (CA) 42, D-G:

“…where the Chairman and members of a body or Commission created by the constitution are removed  in violation of the Constitution or the statute creating same, the Court will be quick and ready to order for their reinstatement. However, in a situation where reinstatement is not appropriate or possible, the Court may award damages in lieu of reinstatement.” [Underline supplied for emphasis]

I take note that the position of the applicant had been filled up – paragraph 38 of the supporting affidavit of the applicant. I note too, that, the applicant did not state the exact date another person was appointed to replace him and exactly when the report of the panel was released so, I could not know, if it was during the period the report of the panel was being awaited that his position was filled, as alleged. I note too that, at paragraph 39 of the counter-affidavit, the respondents replied that it was after the removal of the applicant that a replacement was made to avoid vacancy in the panel. This gives more credence to the evidence of the respondents that the applicant was removed before a replacement was made and not while the report of the panel was being awaited. I therefore feel that, reinstatement might not be appropriate in the circumstance.

This is more so that the appointment is for a short period of three years, substantial part of which had been spent. I am of the considered opinion that, the appropriate relief that would meet the justice of the case, is the grant of damages calculated on the basis of the arrears of emoluments and allowances, which the applicant would have earned had he not been illegally removed, from the date of removal till date of the expiration of his tenure – see Governor of Ekiti State v. Akinyemi (2011) LPELR-4218 (CA) 14, C-E, 49-50, G-B. I therefore refuse relief (vi) and; in its stead, order the respondents to pay to the applicant his remunerations and allowances from May 2019 to May 2021 when his tenure was expected to end. Relief (vii) is therefore spent, having been consumed in the order for payment of all remunerations and allowances to the applicant from the date of removal to the date his tenure was expected to terminate.

I come to the issue of damages – relief (v). While this Court would not hesitate to grant general damages in deserving cases of termination or dismissal, it would not order general damages in the instant case because, it takes note that, the applicant has been granted his remunerations and allowances from the date of removal till the date his tenure would have ended, had he been allowed to serve his tenure to the end. That is the normal damages granted in ordinary cases of truncation of tenured appointment – see Visitor, Imo State University & Ors v. Okonkwo & Ors (2014) LPELR-22458 (CA) 103-104, B:

“Once an employee whose appointment is governed by statute is dismissed or relieved of his post and it is found to be unlawful by the Court and such employee is restored, the employee would be paid only his salaries, emolument or other allowances due and accrued to him as if the unlawful removal never took place, award of damages in whatever form or however described will not be granted in favour of the employee.”

While the portion of the authority relating to not granting damages in whatever guise is no longer the law in Nigeria since the enactment of the Third Alteration Act, I am of the opinion that, the award of the salaries, emoluments and allowances to the applicant from the date of the letter of removal to the expiration of his tenure, serves as sufficient damages in this regard. So, I refuse relief (v). The proceedings and the report of the panel having been exhibited by the respondents before the Court and, having being quashed together with the letter of removal, it is not necessary again to order that the proceedings and the report of the panel be served on the applicant so, relief (iv) has become spent. I equally order the respondents to pay to the applicant cost of 200Thousand Naira (Two Hundred Thousand Naira Only). That ends discussions on all the reliefs claimed. I must now come to the end of the case.

 

CONCLUSION

I have considered all the reliefs claimed in the suit and granted those that are grantable in my view and refused those that I considered not feasible or academic. For the sake of clarity, it is necessary to restate the reliefs granted and those refused. I therefore restate the reliefs granted and those refused as follows:

  1. I grant relief (ii) by holding that the removal of the applicant is unlawful;
  2. I grant relief (iii) by quashing the Record of Proceedings [Exhibit DCL4 of the counter-affidavit], which is at page 223-238 of file; the Letter of Removal dated 2nd May, 2019 and signed by U.N.O. Nweze [Exhibit G of the applicant’s affidavit in support] at page 56-57 of file; and the Report of the Panel [Exhibit DCL1 of the counter-affidavit] which is on page 148-161 of file;
  3. The respondents are hereby ordered to pay to the applicant his remunerations/salaries and allowances from May 2019 to May 2021 when his tenure is expected to lapse;
  4. Cost of 200Thousand Naira [Two Hundred Thousand Naira Only] is granted in favour of the applicant and against the respondents;
  5. I declare relief (i) stale in view of Order 48, Rule 5(1) of the Rules of this Court, the application having been brought within three months of cause of action; and it is accordingly struck out.
  6. Relief (iv) has become spent the record of proceedings and the report having been quashed;
  7. Relief (v) is refused;
  8. Relief (vi) is refused; and
  9. Relief (vii) is merged in relief 3 as granted hereinabove.

The above is the judgment and orders of the Court. The judgment and orders are to be complied with within 30 days of the delivery, failing, which the monetary aspects shall begin to attract 10% interest.

Judgment is entered accordingly.

…………………………..

HON. JUSTICE OLUWAKAYODE O. AROWOSEGBE

Presiding JUDGE

ABAKALIKI DIVISION

NATIONAL INDUSTRIAL COURT OF NIGERIA

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