HON. JUSTICE GARBA ABDULLAHI v. THE EXECUTIVE GOVERNOR OF KANO STATE & ORS (2014)

HON. JUSTICE GARBA ABDULLAHI v. THE EXECUTIVE GOVERNOR OF KANO STATE & ORS

(2014)LCN/6815(CA)

In The Court of Appeal of Nigeria

On Monday, the 3rd day of February, 2014

CA/K/185/2006

JUSTICES:

THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria

ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria

HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria

Between

HON. JUSTICE GARBA ABDULLAHI – Appellant(s)

AND

1. THE EXEC. GOVERNOR OF KANO STATE
2. HON. ATTORNEY GENERAL KANO STATE
3. JUDICIAL SERVICE COMMISSION OF KANO STATE NATIONAL JUDICIAL COUNCIL
4. NATIONAL JUDICIAL COUNCIL – Respondent(s)

RATIO

THE PRINCIPLE OF SEVERANCE

THERESA NGOLIKA ORJI-ABADUA, J.C.A. (Delivering the Leading Judgment): The Appellant was the plaintiff at the lower court. He was appointed and sworn in as a Judge of High Court of Kano State in 1993. The employment was pensionable with a monthly salary that comprises several allowances and other perquisites of the office. His travail stemmed from one Alhaji Aminu Nabegu who allegedly planted some cash in his Judge’s Chambers and then turned round to accuse him of having demanded and accepted bribe from him. A complaint was lodged and he was later arraigned on a three count Charge No. K/ANTC/CR3/2002 by the Independent Corrupt Practices and Other Related Offences Commission. He was tried but was eventually discharged and acquitted, though an appeal had been lodged against the said decision. However, on the 31st May, 2004, the Appellant was served with a Letter of Dismissal dated the 27th May, 2004 from the Governor of Kano State stating he was dismissed from collecting bribe of N100,000.00 from the said Alhaji Aminu Nabegu. It was stated he was not confronted with any allegation of demanding and accepting a bribe from the said Alhaji Aminu Nabegu.

The second reason for the dismissal as stated in the said letter was that he intimidated some witnesses of the said Alhaji. Later, he received a letter of Invitation dated the 23rd December, 2012 from the National Judicial Council to appear before the Three Man Committee set up by the National Judicial Council for investigation of the allegation of oppression, victimization and continued infringement of right to liberty made by the said Alhaji Aminu Nabegu.

The Appellant appeared as mandated by the National Judicial Council, but, it was claimed that the findings of the Committee on the said allegation of oppression, victimization and continued infringement of the said Alhaji Aminu Nabegu were not communicated to him. Following the said Letter of Dismissal, the Appellant, by the Writ of Summons dated the 16th March, 2004, commenced a civil proceeding against the Respondents before the Kano State High Court. There were several Amended Endorsed Statements of Claim filed by the Appellant but the one referred to in the judgment of the lower Court at page 228-229 of the record was the one dated the 2nd June, 2005 captioned “Amended Endorsed statement of claim” and, in which he claimed against the Respondents as follows:
“a. declaration that the purported dismissal of the Plaintiff by the 1st Defendant based upon the recommendation of the 4th Defendant is contrary to law and therefore null and void and of no effect.
a1. A declaration that that the 4th Defendants recommendation to the first defendant for the dismissal of the plaintiff, is baseless having no evidence in support, wrong and contrary to law and in clear breach of the plaintiffs right to fair hearing.
b. An order of court setting aside the purported letter of dismissal from the 1st Defendant addressed to the Plaintiff and dated the 27th day of May, 2004.
c. A declaration that the Plaintiff is still in the employment of the Kano State Government as a Judicial Officer and is entitled to all rights and privileges pertaining to his office as a Judge of the High Court of Kano State.
d. The cost of this action.

Hearing was conducted in the suit and at the end of which the learned trial Judge dismissed the Appellant’s suit for lacking in merit.
Being distraught with the said judgment, the Appellant filed a Notice of Appeal which was later amended with the leave of this Court. He filed an Amended Notice of Appeal by the order of this Court dated the 20th June, 2011 which pivoted the appeal on fifteen grounds of appeal. The parties filed their respective Briefs of Argument in accordance with the Rules of this Court.
In the Appellant’s Amended Brief of Argument settled by his learned counsel, M. N. Duru, Esq. five issues were postulated for the consideration of this court. They are as follows:
“1. Whether the learned trial Judge was right when he applied the principles of severance in a case which involved imputation of criminal conduct?
2. Whether the learned trial Judge’s equivocation on the question of breach of the rules of fair-hearing did not lead to a miscarriage of justice in this case?
3. Whether or not the learned trial Judge was right to have suo motu raised the issue of the competence or otherwise of the Plaintiffs Reply and to proceed to strike out same, without first hearing from the Plaintiff who would obviously be aggrieved by his decision?
4. Whether the learned trial Judge was right when he dismissed the Plaintiff’s case in the light of the evidence adduced before the Court?
5. Whether the deliberations, finding and recommendations of the 4th Defendant concerning the Plaintiff and the subsequent ratification by the 1st Defendant are not ultra-vires and therefore null and void having regard to the provision of the 1999 constitution?”

The 1st 2nd and 3rd Respondents aligned themselves with the issues propounded by the 4th Respondent in his Brief of Argument. They equally adopted all the arguments tendered on behalf of the 4th Respondent as their own argument in this appeal.
The 4th Respondent also distilled four issues for determination by this Court. They are couched thus:
“1. Whether having regards to the circumstance of this case the Appellant could be heard to complain of denial of fair hearing by the 4th Respondent before the recommendation for his dismissal.
2. Whether having regard to the circumstance of the case, the recommendation for dismissal by the 4th Respondent and dismissal of the Appellant from the Kano State Judiciary was proper, valid and effective.
3. Whether the learned trial Judge rightly struck out the Appellant’s Reply to the 4th Respondent Statement of Defence and whether the Appellant suffered any miscarriage of justice to warrant the reversal of the judgment of the trial Court.
4. Whether the mere presence of three legal practitioners without more at the 4th Respondent’s 20th meeting invalidates the 4th Respondent’s recommendation for dismissal of the Appellant by the 1st Respondent.”

It was argued on behalf of the Appellant by his learned Counsel, M. N. Duru, Esq. that the learned trial Judge was wrong when he applied the principles of severance in the circumstances of this case. He referred to Exhibit F, the Appellant’s dismissal letter which portrayed that his dismissal was based on an allegation of a criminal conduct and of a mixture of both criminal and civil allegations. Learned Counsel made reference to the cases of Nwobodo v. Onoh (1994) NSCC 15 at 16; Koiki v. Magnusso (1999) 5 SCNJ 296 at 316; which reviewed Nwobodo v. Onoh (supra); Oketie v. Olughor (1995) 5 SCNJ 217 at 230; First Bank v. May Clinics (2001) 4 SCNJ 1 at 12; Section 138 of the Evidence Act; SPDC v. Olarewaju (2003) 1 FWLR (Pt. 140 page 1640, Ogbole v. Lamani (without the citation), Olarewaju v. Afribank (2001) 7 SCNJ 493 at 511; Achiakpa v. Nduka (2001) 7 SCNJ page 588 at 618, and Abimbola v. Abatan (2001) 4 SCNJ page 73 at 86, and strongly submitted that once a case, from the nature of the pleadings, involved a combination of criminal and civil allegation, it is not open to a Court to apply the principle of severance.
The entire allegation has to be proved beyond reasonable doubt. He stressed that in situations such as this, the principle of severance is inapplicable. He contended that the allegations of fraud and misrepresentation (read bribe) cannot be severed from the body of the pleadings, and, the question of what remains after the severance which the Plaintiff (read defendants) can rely on to prove their case does not equally arise. The Supreme Court further stated that where the commission of crime by the defendant is a fact directly in issue, the Plaintiffs (read the Defendants) are required in law to discharge the burden of proving the crimes or offences of fraud and misrepresentation beyond reasonable doubt. The standard of proof required to succeed is not that of balance of probability. He submitted that Exhibit F is self explanatory which was supported by the averments of the 1st, 2nd and 3rd Defendants in their Joint Statement of Defence at paragraphs 5, 6 and 7 in which they stated that the Plaintiff had demanded and received bribe from a named person. He, therefore, contended it was wrong for the trial Court to have severed the criminal allegations in the pleadings and settled on what he called “aggravated harassment of a citizen”, a term that was not used in the Plaintiff’s purported letter of dismissal. Learned Counsel further stressed that the burden of proving these allegations was on the defendants that it is not for the Plaintiff to first prove his innocence before the defendants can prove their assertions. He submitted that the standard required is proof beyond reasonable doubt which means the evidence must be clear and unequivocal. When evidence intended to discharge that burden is ambiguous or is capable of several interpretations, not all pointing to the criminal act alleged, the burden cannot be said to have been discharged.

He further posed the question, whether the contents of the dismissal letter (Exhibit F) have been proved beyond reasonable doubt by the defendant? Learned Counsel answered in the negative and even asserted that it was the Plaintiff who proved beyond every shadow of doubt that Exhibit F should be set aside. He stated that the trial Court ignored Exhibit F and relied heavily on Exhibits J and K, the minutes of the Three Man Investigation Panel, and minutes of meeting of the National Judicial Council. He contended that Exhibits J and K cannot, by any stretch of imagination be regarded as recommendation of the National Judicial Council to the Governor of Kano State as stipulated by section 292 (1) (b) of the Constitution of the Federal Republic of Nigeria. He argued that by relying on those two documents to dismiss the Plaintiff’s case, the trial Court erred seriously which has occasioned miscarriage of justice. He further said when a Court is faced with a situation like this it is not open to the trial Court to go outside the dismissal letter. He argued that by going outside Exhibit F, the learned trial Judge seemed to have made up his mind from the onset to uphold the dismissal of the Plaintiff. He further alleged that the learned trial Judge made a case for the Defendants outside the dismissal letter and destroyed that of the Plaintiff. It is exceedingly imperative to observe at this juncture that Counsel need not have cast aspersions of this magnitude on the learned trial Judge who merely performed his duties, in order to satisfy his client he was excellent at advocacy. To further decimate the person of the learned trial Judge, Counsel alleged that the learned trial Judge re-wrote the dismissal letter suo motu. Honestly, this is unbecoming, very unflattering. I could not fathom this uncontrollable rage against the learned trial Judge. Whatever learned Counsel’s motives were, he must realize that Law is no respecter of any person, both mighty and small, and, no matter how highly placed a human is, he must dance to the tune of the law when caught in a tangled web of misconduct or unconscionable activities. He stressed that re-writing the document without giving the plaintiff the opportunity to be heard over the matter occasioned a miscarriage of justice which only this Court can reverse. He argued that the trial Court ought to have given the Appellant the opportunity to be heard. He therefore urged that this issue be resolved in favour of the Appellant.

Regarding issue No. 2, learned Counsel submitted there was clear equivocation on the part of the trial Court as to whether the issue of infringement of the right of the Plaintiff to fair hearing was the case or not, and, its subsequent holding that the Plaintiff was accorded fair hearing. He submitted that the Appellant copiously raised the issue at paragraphs 13, 14, 15, 18 and 22 of the Plaintiff’s Amended Statement of Claim. In one breath the trial Court held that the plaintiffs, case was not based on breach of rules of fair hearing and in another breath, at page 274, it held the Plaintiff was given fair hearing. Learned Counsel submitted that these two findings are evidently self-cancelling because they contradicted each other. Learned Counsel relied on the cases of Agbamuje v. Bakare 1998 7 SCNJ 3 at 41; Atolagbe v. Shorun 1985 1 NWLR page 360 at 373; Odiba v. Azege 1998 7 SCNJ 119 at 127; National Bank of Nigeria v. Omotayo (2002) FWLR Part 114 page 454; Alake v. Abalaka (2002) FWLR Part 88 page 931, Akande v. The State 1988 7 SCNJ 314 at 322; TIV Traditional Council v. Zugu (2005) FWLR (Pt. 290), page 1532 at 1544; Federal Polytechnic Mubi v. Yusif (1998) 1 SCNJ II at 17; Uragbo v. Una (2002) FWLR Pt. 127, page 1024 at 1035; Ndu Kambo v. Kolomo (2005) FWLR (Pt. 249) page 1602; Gbamboye v. Unilorin (1999) 6 SCNJ page 295; University of Uyo v. Essel (2006) AWLR (Pt. 315) page 80; Fawehinmi v. LPDC (1992) 3 NCLR 719 and Obadina v. The President Customary Court Iddo (1985) NMLR 39 for his propositions. He expressed that each of the two findings was wrong having regard to the pleading and evidence adduced before the trial Court. He argued that by the order made by the trial Court on 2/6/08 granting leave to the Plaintiff to amend paragraph 25(c) of his Statement of Claim and all other paragraphs therein, it is clear that the Appellant’s case was based on a complaint of breach of his right to fair hearing, and that the holding of the trial Court was perverse by ignoring the fact that the Plaintiff’s case was based on breach of fair hearing. He further referred to Exhibits C, F and G and argued that the Plaintiff was merely invited to defend himself against a complaint of intimidation and infringement of right by one Aminu Nabegu but, the dismissal letter and the recommendation by the 4th Defendant contained allegations of demanding and receiving bribe, harassment of a witness of the complainant, etc, which were conspicuously absent in Exhibit C. He submitted that the Appellant was not confronted with those allegations contained in Exhibit F. He pointedly argued that since the Appellant was not confronted with those allegations, he had not been given fair hearing. He further argued that the trial Court was wrong when it ignored the discrepancy between Exhibits C and F respectively. Learned Counsel further submitted that dismissing the Plaintiff over an offence for which he was not investigated was against the rules of fair hearing. He stressed that once non-compliance was established the entire disciplinary proceedings would be null and void irrespective of whether some parts were right while others were wrong. Counsel further argued that at no time was the decision of the investigation panel communicated to the Appellant and such failure to convey the same contravened the Plaintiff’s right to fair hearing. He stated that the 4th Respondent in carrying out its disciplinary proceedings is an administrative body and as such it is bound by the principles of natural justice and fair hearing. Learned Counsel then urged that this issue be resolved in favour of the Appellant.

On issue No. 3, learned Counsel pointed out that at no time was the issue of the correctness or otherwise of the Plaintiffs Reply raised by any of the parties. It was raised by the learned trial Judge in the course of writing the judgment in the suit. He submitted that the learned trial Judge ought to have called upon the parties to address him on the issue so raised. He cited the cases of Achiakpa v. Nduka (supra); Hambe v. Hueze (2001) 2 SCNJ 31 at 40; Umar v. Onwudiwe (2003) FWLR (Pt. 161), page 1805 at 1819; Nnamdi Azikwe University v. Nwafor (1999) 1 NWLR (Pt. 584-588) page 116; University of Uyo v. Essel (2006) FWLR (Pt. 315) page 80 at 104; Aiyetan v. Nifor (1987) 3 NWLR (Pt. 59) page 48 Osumah v. Edo Broadcasting Service (2005) FWLR (Pt. 253) at 773; Adigun v. A.G. Oyo State (1987) 1 NWLR (Pt. 678); Iheanacho v. Chigere (2004) FWLR (Pt. 228) page 204 at 218 and Tatama v. Jalomi (2003) FWLR (Pt 181) page 1682 and submitted that where a Court raises an issue suo motu, the parties must be given the opportunity to be heard on the point, particularly the party that shall be aggrieved as a result of the resolution of the point. He contended that the decision of the trial Court to suo motu strike out the plaintiff’s Reply deprived the Plaintiff of his right to fair hearing. He argued that no new issue was introduced by the Appellant in the said Reply as both the Appellant’s statement of claim and the Reply were based on the same issue of breach of rules of fair hearing by the defendants. He stated that Exhibit K established that Justice Sabo Darazo, a member of the Investigation Panel, also participated at the meeting of the 4th Defendant where the fate of the Appellant was determined. The same Exhibit shows that Hon. Justice Mustapha Akanbi, the former Chairman of ICPC, a body that unsuccessfully prosecuted the Appellant on the issue of demanding and accepting bribe also participated in the same meeting of January, 2004. He contended that the participation of the aforementioned men clearly breached the rules of natural justice.

Arguing in respect of issue No. 4, learned Counsel emphasized that the Appellant tendered a total of six Exhibits. He referred to Exhibits D and E in particular. He also referred to the testimony of the Plaintiff in which he denied any wrong doing and maintained he neither demanded nor received bribe, and that he never knew the witnesses of the complainant who were allegedly harassed. He also stated that the 4th Defendant never brought the report of the Three Man panel to the notice of the Appellant so as to afford him the opportunity of challenging same in line with the principles of fair hearing. Counsel further referred to Exhibits J and K which he said were given high probative value and which showed that Justice Sabo Darazo also sat at the 20th meeting of the 4th Defendant. He argued it was wrong for the trial Court to have upheld Exhibit F in the light of Exhibit D. He remarked that the 1st, 2nd and 3rd Defendants filed a Joint Statement of Defence and failed to produce evidence in support of the same. Learned Counsel submitted that a Statement of Defence that is not supported by evidence is deemed abandoned. He further referred to Exhibits G and K tendered from the Bar by Counsel for the 4th Respondent and further contended that the Plaintiff was not given the opportunity to cross-examine on the said documents. He submitted that the trial Court ought not to have attached probative value to the said documents and it was wrong to have relied on Exhibit J without any evaluation of the same. He further argued that if the trial Court had properly evaluated Exhibit J, it would have discovered that the Appellant was not guilty of aggravated harassment of a citizen which in itself is an allegation of crime that required proof beyond reasonable doubt. He urged this Court to have a critical look at Exhibit J and then resolve the issue in favour of the Appellant.

On issue No. 5, i.e. whether the deliberations, finding and recommendations of the 4th Defendant concerning the Plaintiff and the subsequent ratification by the 1st Defendant are not ultra-vires and therefore null and void having regard to the provision of the 1999 constitution, Learned Counsel pivoted his argument therein on the provisions of sections 6(6), 36(1), 292(1) of the constitution of the Federal Republic of Nigeria and paragraph 20(i) of the Third Schedule to the said Constitution and the cases of Amaechi v. INEC (2008) ALL FWLR (Pt. 407) page 1 at 195; Amgbare v. Sylva (2008) ALL FWLR (Pt. 419) page 575 at 597 and Calabar v. Ekpo (2009) 2 SCNJ page 307 at 328 and 329. He asserted that the 4th Respondent pronounced the Appellant guilty of the allegations contained in Exhibit F which were criminal in nature, when there was no evidence to ground such a finding. He submitted that the 4th Respondent not being a Court or Tribunal, is not competent to pronounce the Appellant guilty of criminal allegations, no matter how well conducted their deliberations were. He equally referred to Exhibits K, G and F and again picked holes on the alleged trial Court’s failure to make a finding over the criminal allegations that allegedly struck at the foundation of the case. He reiterated that the 1st and 4th Respondents are not a Court let alone being a superior one. He further commented on the alleged presence of the late Kehinde Sofola, SAN, late A. N. Anyamene, SAN and T. J. O. Okpoko, SAN, private Legal practitioners at the meeting of the 4th Respondent where the discipline of the Appellant was being decided. He argued that it was unconstitutional and rendered the decision taken against the Appellant null and void.

Turning to the argument proffered on behalf of the 1st, 2nd and 3rd Respondents, their learned Counsel adopted all the submissions tendered on behalf of the 4th Respondent, and then explicated that at the 4th Respondent’s 20th Meeting under the caption “Complaint Against Hon. Justice Garba Abdullahi, High Court of Justice, Kano State,” the 4th Respondent deliberated on two distinct and separate allegations made against the Appellant to wit the issue of Bribery, Intimidation and Abuse of Court process, but, it didn’t reach any decision on the issue of Bribery. It only took decision bordering on the complaint of the Appellant’s irresponsible behaviour of aggravated harassment and intimidation against a citizen and in respect of which the 4th Respondent recommended for his dismissal as demonstrated in Exhibit K. Reference was, also, made to the findings and recommendation of the National Judicial Council Investigation Committee shown in Exhibit J. Learned Counsel stressed that the deliberations of the 4th Respondent at its 20th Meeting in respect of the complaint against the Appellant were hinged on the recommendation in Exhibit J which reads: “From the totality of the findings, the allegation of harassment and victimization are proved against the Judge. We consider the acts of the Hon. Judge as an abused of office. We therefore, recommend that he should be disciplined.” Counsel emphasized that it was only in respect of abuse of office i.e., a gross misconduct, the Appellant was disciplined for and which was within the competence of the 4th Respondent. He therefore urged that this appeal be dismissed.

The 4th Respondent’s learned Counsel, Oladipo Tolani, Esq.; argued in respect of the 4th Respondent’s issue No. 1 that the Appellant’s right to fair hearing was not infringed upon when the 4th Respondent recommended his dismissal from the Kano State Judiciary as a Judge of High court of Kano state. He referred to paragraphs 14, 19 and 20 of the Appellant’s Amended Statement of Claim and his issue No. 2 raised in his Brief of Argument, and, submitted that the Appellant was informed of the allegation against him, the evidence given against him, the statement made which affected him and, was even given the opportunity to correct and contradict such evidence which was not given in his absence, therefore, he cannot be heard now to complain of infringement of his right to fair hearing. He cited the cases of Olatubonsun v. Niger Council (1988) 3 NWLR (Pt. 80) page 25 at 52 paragraphs B – C; Mohammed v. Kano N. A. (1969) 1 All NLR page 424 and Garba v. University of Maiduguri (1985) 1 NWLR (Part 18) page 550 at 517 in support. He further referred to the Appellant’s evidence in chief and cross-examination where he said that Exhibit C specified the allegation against him, and that both himself and Aminu Nabegu appeared before the Three Man Investigation Panel of the 4th Respondent and they had the opportunity to call witnesses to substantiate their allegations and counter-allegations. Responding to the Appellant’s allegation that he was not confronted with the allegation in Exhibit F; learned.

Counsel referred to the cross-examination of the Appellant at pages 35-36 of the record regarding Exhibits C, E, F and G where the Appellant admitted not only he was aware of the allegation against him, that if it is true he procured the arrest and detention of the complainant, (Aminu Nabegu), it would amount to misconduct. He argued it amounted to an admission against interest. The Appellants’ answer at page 35 of the record under cross examination were equally referred to, where he spoke about the recommendation of the Investigation Panel that he should be disciplined as a result of their finding, that the allegations of harassment and victimization against him were proved and the same was considered as an abuse of office. As a result, the 4th Respondent via Exhibit E recommended the dismissal of the Appellant by the 1st Respondent. He explained that the Exhibit clearly showed that the Appellant intimidated a witness of the complainant and used a Chief Magistrate to intimidate and harass him on a trumped up charge and, in the subsequent paragraph it stated that the 1st Respondent has approved his dismissal for misconduct. Learned Counsel referred to the definition of the word “misconduct” in the 8th Schedule to the 1999 Constitution of Federal Republic of Nigeria (as amended) and submitted that the Appellant was not only confronted with the allegation of misconduct, he was equally given the opportunity to exercise his right to fair hearing which he indeed took advantage of and duly exercised the same. He, then, urged that issue No. 1 be resolved in favour of the 4th Respondent.

Submitting in respect of issue No. 2, the 4th Respondent adopted its submission under issue No. 1, and further referred to Exhibits H1, dated 14/8/2002, C, E and J. Exhibit H1 emanated from Aminu Nabegu complaining of misconduct and abuse of judicial office against the Appellant for oppression, victimization and continued infringement of his right to liberty, Exhibit C was the invitation to the Appellant to appear before the Investigation Panel to defend the allegation specified therein. He contended that by Exhibit J and the evidence adduced by the Appellant, it is clear he appeared before the Panel, submitted Exhibit E to the Panel, was cross-examined by Aminu Nabegu and even defended himself. Learned Counsel also pointed out the conclusion of the 4th Respondent’s Investigation Panel that the allegation of harassment and victimization were proved against the Appellant, the acts which the Panel considered as an abuse of office, and then recommended he be disciplined. He also referred to Exhibit K containing the resolution reached by the 4th Respondent at its 20th meeting, that the Appellant be dismissed from service owing to his irresponsible behavior of aggravated harassment and intimidation against a citizen. Learned Counsel further made reference to Exhibit G being the letter from the 4th Respondent’s Chairman to the 1st Respondent conveying the 4th Respondent’s decision recommending the dismissal of the Appellant from the Judicial Service of Kano State for misconduct. Counsel, also, referred to paragraph 21 of Part 1 of the Third Schedule to the 1999 Constitution which empowered the 4th Respondent to write Exhibit G and, then submitted that the 4th Respondent duly exercised its powers as provided for in the Constitution. Learned Counsel further relied on Nwaogwugwu v. President, Federal Republic of Nigeria (2007) 6 NWLR (Pt. 1030) page 237 paragraph F, section 292 (1) (b) of the Constitution, Exhibit F and then submitted that the recommendation for and the dismissal of the Appellant from the Judicial Service of Kano State for acts tantamount to misconduct by the 1st and 4th Respondents in the exercise of their statutory powers were proper and effectual. He urged this court to resolve issue No. 2 in favour of the 4th Respondent.

Dealing with the 3rd issue, the 4th Respondent’s Counsel made reference to paragraphs 15-19 of the Appellant’s Statement of Claim, the Statement of Defence of the 4th Respondent and submitted that at nowhere was the fact of membership of the Investigation Panel averred. He stated that membership of the 4th Respondent’s Investigation Panel was never made an issue both in the Statement of Claim and Statement of Defence, but the Appellant against all rules of pleadings, pleaded that in his Reply. It then made the issue of membership of the Panel a new issue in his purported Reply to the Statement of Defence knowing fully well that the 4th Respondent would have no opportunity to respond to it. Learned Counsel then reproduced the provisions of Order 25 Rule 11 of the Kano State High Court (Civil Procedure) Rules, Adeniyi v. Fetuga (1990) 5 NWLR (Pt. 150) page 375 at 391; Herbert v. Vaughan (1972) All Er 122; Olubodun & 4 Ors v. Lawal 7 Ors (2008) 6-7 SC (Pt. 1) page 1 at 22-23; Arubo v. Aiyeleru (1993) Part 3 NWLR Page 126 at 141; Usman v. Garke (1999) 1 NWLR (Pt. 587) page 466 at 474; Olubode v. Salami (1995) 2 NWLR (Pt. 7) page 282 at 288 paragraphs B-C; Imah v. Okogie (1993) 9 NWLR Part 315 page 159 at 178; Akaninwo v. Nsirim (2008) All FWLR (Pt. 410) page 610 at 663 paragraphs C-D; Ude v. Nwara (1993) 2 NWLR (Pt. 278) page 538 at 552 paragraphs F-G and submitted that the trial Court was right at law to have suo motu raised the issue of propriety of the Appellant’s Reply and struck the same out. He stated that in Olabodun’s case (supra) the Supreme Court did not countenance the Reply filed therein. He contended that the Appellant having raised a new issue in his Reply to the 4th Respondent’s Statement of Defence, did put the propriety of such a Reply in issue, therefore, the trial Court was right in law to have struck it out, having raised a new ground of claim which was not raised in the Writ of Summons or pleaded in the Statement of Claim. He further stressed that the Appellant has not shown that he suffered any miscarriage of justice, and as a result, he is not entitled to any reversal of the judgment of the trial court.

With regard to issue No. 4, learned Counsel leaned on the provisions of section 292(1) (b) of the Constitution of the Federal Republic of Nigeria, 1999 and the findings of the 4th Respondent and contended that the Appellant’s allegation that the presence of Kehinde Sofola SAN (of the blessed memory) Anyamene, SAN (of the blessed memory) too, and, T. J. O. Okpoko, SAN at the 20th Meeting of the 4th Respondent was in contravention of paragraph 20(1) of the third Schedule to the 1999 Constitution, is totally misconceived. He further argued that having made Exhibit K a ground in his Amended Notice of Appeal and argued that no probative value should be accorded it the Appellant cannot be allowed to make a roundabout turn and urge this Court to examine the same Exhibit K for the purpose of arriving at a decision acceptable to the Appellant. He stated it is tantamount to approbating and reprobating at the same time. He cited the cases of Akaninwo v. Nsirim (2008) ALL FWLR (Pt. 410) page 610 at 663 paragraphs C – D and Ude v. Nwara (1993) 2 NWLR (Pt. 278) page 538 at 662 paragraphs F – G in support. He further reproduced the provisions of paragraphs 20 (1) (sic) of the 1999 Constitution, and paragraph 6.12 of Exhibit K and submitted that the Appellant apart from stating that the said Senior Advocates were present at the meeting, has failed to lead evidence to establish that the said three learned Senior Advocates of Nigeria participated in the deliberation of the recommendation for his dismissal. He further stressed that nothing proved that the said three Senior Advocates of Nigeria played any role in the said recommendation for his dismissal. Counsel asserted that it is too late in the day for the Appellant to rake this argument that the mere presence of the three Legal Practitioners at the said meeting without more nullified the decision taken at the meeting particularly as it affects the Appellant. Learned Counsel urged this Court to invoke section 150(1) of the Evidence Act to presume that formal requisites for Exhibit K’s validity were complied with. He urged this Court to answer issue No.4 in the negative and then dismiss this appeal.

The Appellant’s first issue is whether the learned trial Judge was right when he applied the principles of severance in a case which involves imputation of criminal conduct?

To properly dissect this issue, it is appropriate to appreciate in great depth the connotation of principle of severance and, when it is usually invoked by the Court. In law to sever is to divide into parts. Plaintiffs in civil suits base their cases on a cause of action, i.e. facts that give the plaintiff the right to sue. The Court may order that the lawsuit be divided into two or more independent causes of action. This type of severance occurs only when each distinct cause of action could be tried as if it were the only claim in controversy. As a result of severance, the court renders a separate, final, and enforceable judgment on each cause. Such division of issues in a trial is sometimes also, called “bifurcation.”Therefore, if in a civil proceeding there is an allegation of commission of a crime which is not directly in issue or did not form the basis of the civil trial, the criminal offence can be severed from the civil aspect. In that respect, the standard of proof required will not be proof beyond reasonable doubt but, on the balance of probabilities. See Omoboriowo v. Ajasin (1984) ALL NLR 105, where it was held that under the rules of pleadings, a pleader who has pleaded more than he strictly need have done can always disregard the unnecessary or surplus averments and concentrate simply in the more limited ones. See, also, Aregbesola & 2 Ors v. Oyinlola & 2 ors (2010) LPELR-3805(CA), per Ogunbiyi, J.C.A., (as she then was); where she referred to the case of Olukayode Fayemi & Anor v. Olusegun Adebayo Oni & 7 others unreported, per Salami PCA and expressed that a significant feature of a severance principle is that where there are two causes of action embedded within the same claim before a court, the doing away with one cause of action would have no effect or bearing on the existence of the other. The existence of the two would amount to a surplusage of one to the other. The said view was enunciated in the case of Arab Bank Ltd. v Ross (1952) Q.B. 216, 229.
Further, in F.B.N. Plc. v. Akande (1997) 9 NWLR (Pt. 519), Muhammad, J.C.A., (as he then was) opined as follows:
“It is clear that where a person asserts the commission of a crime in any civil proceeding, and the criminal act is directly in issue, that person must prove the commission of that crime beyond reasonable doubt. See Benson Ikoku v. Enoch Oli (1962) 1 SCNLR 307. See also Nwobodo v. Onoh (1984) 1 SCNLR 1 where the Supreme Court considered the above provision and stated at page 4 that the Rule in Civil proceeding is subject to the principle of severance of pleadings. This principle is to the effect that if after severing the allegation of a crime from the body of pleadings, there still remain enough averments upon which the plaintiff can still rely to prove his case then the burden on the plaintiff in order to succeed, is one of balance of probability. What this means in effect is that if the allegation of crime is severed from the body of the Statement of Claim, would there still remain enough averments upon which the plaintiff would not require to prove this case? If that is so, the Plaintiff would not require to prove the case beyond reasonable doubt, it will be enough if he succeeds in proving his case on balance of probability.”
Bello, JSC (as he then was) in Nwobodo v. Onoh (1984) All NLR page 1 at 15, in interpreting Section 137(1) of the Evidence Act, held that where a Plaintiff makes an allegation of a crime in his pleadings but nevertheless can succeed in his claim without proving the crime it cannot be said that the alleged crime was a fact in issue or directly in issue. He relied on Nwaekwere v. Adewunmi (1967) NMLR 45 AT 48; and Denning L.J’s opinion in Arab Bank v. Ross (1952) QBD 216 at 229. He stated that the scope of section 137(1) of the Evidence Act may be summarized thus:
“Where in an election petition the petitioner makes an allegation of a crime against a Respondent and he makes the commission of the crime as the basis of his petition, the sub-section imposes strict burden on the petitioner to prove the crime beyond reasonable doubt. If the petitioner fails to discharge the burden, his petition fails.”
From the foregoing, it is clear that the provision of section 138(1) is subject to the principle of severance of pleadings. Thus, if in any civil proceedings the averments alleging crime are severable and if after such severance there still remain in the pleadings of the plaintiff or the petitioner sufficient averments devoid of the crime alleged against any party to the proceeding and on which the petitioner can succeed in his claim or petition, then the burden of proof upon the petitioner is to prove his case on the balance of probability. What the Evidence Act stipulates is, where the commission of a crime is directly in issue, i.e. being the only basis for the claim then the criminal allegation must be proved beyond reasonable doubt.
However, in the instant appeal, it ought to be remembered that it was the Appellant who claimed that those criminal allegations were made against him in his letter of dismissal by the 1st Respondent who instituted the civil suit at the lower Court against the Respondents. He was the one who raised the said criminal allegations and made his case looked as if it were wholly hinged on them, that is now contending that the burden is on the Defendants, he brought to Court. It should be recalled that none of the Respondents counter-claimed against him. He sued the Respondents as a result of his dismissal from work and raked the issue of commission of crime. The Law is, he who asserts must prove.

It is instructive to note that the complaint for which he was investigated by the 4th Respondent was quite distinct from the first limb of the allegations mentioned in Exhibit F which talked about demanding and collecting gratification in the sum of N100,000.00 from the complainant. All the documentary evidence tendered before the trial Court glaringly established that the Appellant was never and have not been investigated by the 4th Respondent for the allegation of demanding and collecting bribe. The allegation of demanding and accepting bribe is severable from that of irresponsible behavior contrary to the Code of Conduct of Judicial Officers.

In Koiki v. Magnusson (1999) 8 NWLR (Pt. 615) p. 492 referred to by the Appellant’s Counsel, it was held that the Commission of Crime by the defendant in that proceeding is a fact directly in issue and the Plaintiffs are required in law to discharge the burden of proving the crime or offence of fraud and misrepresentation beyond reasonable doubt. It was held therein that principle of severance is not applicable having regard to the pleadings. The allegations of fraud and misrepresentation cannot be severed from the body of the pleadings and the question of what remains after the severance which the Plaintiffs can rely on to prove their case does not equally arise.
I must express that the scenario in Koiki v. Magnusson (supra) cited by the Appellant’s Counsel is distinguishable from the present case. The facts are different. It should be recalled that in the present suit, it is the Plaintiff who, first in his pleading, stated that his dismissal was purely based on criminal allegations and that he was not given the opportunity to present his case nor was he confronted with the said allegations. However, the record shows that the Appellant was duly investigated in respect of the second limb of the allegations he attended the hearing and even cross-examined all the witnesses procured at the hearing. He also, submitted a written submission to the Three Man Panel set up by the 4th Respondent to investigate him.

It is clear in the record that the impeccably written and detailed judgment of the trial Court carefully considered all the legal principles presented by the parties and accorded the appropriate evaluation to all the documents tendered therein. It was the Plaintiff who alleged he was not confronted with the issue of demanding and accepting bribe or intimidating a witness of the complainant, but, he admitted being invited by the Committee set up by the 4th Respondent to investigate the allegation of oppression, victimization and continued infringement of right to liberty by the said Alhaji Aminu Nabegu. He admitted appearing before the Committee and made both oral and written representations to the Committee. See paragraphs 16 and 17 of his Amended Statement of Claim. This was also shown in his oral evidence before the trial Court. The author of Exhibit F sounded like an overzealous person though the Exhibit mentioned it approved the Appellant’s Dismissal from the Judicial Service of Kano State for ‘Misconduct’. Misconduct has been defined by Black’s Law Dictionary as ‘a dereliction of duty’, ‘unlawful’ or ‘improper behaviour’. Unlawful is described as ‘not authorized by law’ also the word improper is defined as ‘incorrect’, ‘unsuitable’ or ‘irregular’. One’s behavior may be irregular if it is not in accordance with the law, method or usage. Therefore, the word ‘misconduct’ used in Exhibit F, properly conveyed to the Appellant the decision of the 4th Respondent. It is equally noted that substantial part of Exhibit F is rhetorical but it indeed conveyed the reason for the dismissal of the Appellant to him when weighed in the fight of Exhibits C, E, G and K. In the present case, there were allegations of demanding of gratification of the sum of N100,000.00 and intimidation of the witness of Alhaji Aminu Nabegu, but the 4th Respondent investigated him only in respect of that of intimidation and harassment. He attended the hearing conducted and cross-examined the said Alhaji Aminu Nabegu in respect of which he was found wanting.

In the case of Military Governor of Imo State v. Chief B. A. E. Nwauwa (1997) 2 NWLR (Pt. 490) page 675 where the Plaintiff (Respondent) was the Traditional Ruler, i.e., the Eze of Izoube Autonomous Community in Imo State until 1958. Following allegations made against him by some members of the community which led to disturbances in the area on 12/12/87, the Military Governor exercised his powers under the Commission of Inquiries Law Cap 24, Laws of Eastern Nigeria Traditional Rulers and Autonomous Communities Law, No. 11 of 1981 and appointed a Panel of Inquiry to investigate the allegations. The Panel carried out its assignment and submitted a report to the Governor.
The learned trial Judge found that some of the allegations made against the Plaintiff and which the Panel of Inquiry was directed to investigate and report on were criminal in nature and consequently, the Panel would have no jurisdiction to determine such allegations. The learned trial Judge also found that there were other allegations of misconduct which raised moral and ethical questions and as regards such allegations the Panel was competent. The learned trial Judge would appear to have disregarded the findings of the Panel of Inquiry on the criminal allegations made against the Plaintiff and based its judgment on the findings of that Panel in regard to the non criminal allegations. The Court of Appeal was of the view that the trial Judge acted wrongly in severing the criminal from the non criminal allegations and basing its judgment on the findings on the non criminal allegations. Then Iguh, J.S.C stated:
“In the present case, the allegations or findings on criminal conduct against the Respondent cannot be said to be facts in issue or directly in issue as the non-criminal findings or grave misconduct against him are sufficient to arrive at the same verdict reached by the Panel or the State Government, that is to say, that acts of grave misconduct had been established against the Respondent. In my view the principle of severance does clearly apply to the facts of this case. The non-criminal allegations under paragraphs (iii), (iv) and (vii) of the terms of reference having been established, the Court of Appeal was in error by pronouncing that they could not be severed from the criminal allegation which, as I have stated, the panel had no jurisdiction to investigate.”
Further, Ogundare, J.S.C., then restated what the role of a court in matters of this nature is thus:
“The role of the court in the matter such as this, is one of a review and not appellate. I once had the opportunity of restating the law in this respect. In the Governor of Oyo State and ors v. Folayan (1995) 8 NWLR (Pt. 413) 292, 322-323 a said:
“As stated earlier in this judgment, the plaintiff’s case is for a judicial review of the Aboderin Commission, in relation to matters within a public body’s field of judgment the court conducts its review from the body’s stand point and must not intervene solely on the basis that it would itself have acted differently. The following principles are to be borne in mind by a reviewing court:-
(a) judicial review is not an appeal; (b) the court must not substitute its judgment for that of the public body whose decision is being reviewed; (c) the correct focus is not upon the decision but the manner in which it was reached; (d) what matters is legality and not correctness of the decision and (e) the reviewing court is not concerned with the merits of a target activity.
In a judicial review the court must not stray into the realms of appellate jurisdiction for that would involve the court in a wrongful usurpation of power – See R. v. Secretary of State for the Home Department, Ex parte Brind (1991) 1 AC 696, 7271. The power of the court as a reviewing tribunal is better clearly stated by Lord Green M. R. in Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation (1948) 1 KB 223, 234 when the noble Master of the Rolls said:
“The power of the court to interfere in each case is not as an appellate authority to override a decision of the local authority, but as a judicial authority which is concerned, and concerned only, to see whether the local authority have contravened the law by action in excess of the powers which parliament has confided in them.”
In exercise of his power of judicial review the court has no jurisdiction to substitute its own opinion for that of the public body whose decision is being reviewed for it is not part of the purpose of judicial review to substitute the opinion of the judiciary or of individual judges for that of the authority constituted by law to decide the matters in question:- Chief Constable of the North Wales Police v. Evans (1982) 1 WLR 1155, 160F per Lord Hailsham. What the court is concerned with is the manner by which the decision being impugned was reached. It is its legality, not its wisdom that the court has to look into. For the jurisdiction being exercised by the court is not an appellate jurisdiction but rather a supervisory one. It appears the court below exceeded its jurisdiction in trying to substitute its own views for the views of the Panel. My answer to Question (2) is that the principle of severance applies in this case.”
It seems to me clear that the case of Military Governor of Imo State v. Nwauwa (supra) appears applicable to this case.

The 4th Respondent is the body responsible for the recommendation of the appointment of the Appellant and his discipline to the 1st Respondent. This was copiously admitted by the Appellant both in his pleading and evidence proffered before the lower Court. A petition was forwarded to the 4th Respondent against the Appellant. Then, in accordance with the powers conferred on it by the Constitution of the Federal Republic of Nigeria, 1999, the 4th Respondent set up a Three Man Committee to investigate the allegations. The Appellant was only investigated in respect of the allegation of misconduct since the allegation of bribery was the object of the criminal trial against the Appellant which was then pending on appeal. It must be emphasized that the 1st Respondent’s inclusion of the allegation of demanding and collecting bribe of N100,000.00 does not detract from the fact that he had been fully investigated by the 4th Respondent and found wanting on the allegation of misconduct which amounted to abuse of office. Since there is a mixture of criminal as well civil matters in the proceeding filed by the Appellant against the Respondent, the trial Court, to me, was in order when it applied the principle of severance in its determination of whether there was proof any of the allegations contained in Exhibit F before it. Relying on Nwauwa’s case (supra), I hereby resolve issue No. 1 against the Appellant.

Regarding issue No. 2, I must admit I did not perceive any equivocation on the part of the learned trial Judge on the issue of fair hearing. The record clearly shows that the trial Court carefully examined all the steps taken by the Appellant right from the time Exhibit C was served on him for appearance before the 4th Respondent’s Three Man Committee to the time the allegation of misconduct was investigated and how the Appellant participated and cross-examined the witnesses who appeared and testified before the Committee. See the record of appeal at pages 273-275 where the trial Court fully considered the allegation of denial of fair hearing by the Appellant and then held it was satisfied from the testimony of the Plaintiff under cross-examination and the contents of the minutes of the proceedings of the Investigation Panel, Exhibit J, that the Plaintiff was given a fair opportunity to contradict or correct some evidence of the allegation against him. I am afraid; this finding by the learned trial Judge cannot be faltered. See also Nwauwa’s case in support.

With regard to the third issue, i.e. ‘whether or not the learned trial Judge was right to have suo motu raised the issue of the competence or otherwise of the Plaintiff’s Reply and to proceed to strike out same, without first hearing from the Plaintiff who would obviously be aggrieved by his decision’, it is important to note that a Reply in pleading is not meant for amendment of the reliefs sought by the Plaintiff in his Statement of Claim. It is equally trite that a reply is generally unnecessary if its sole purpose is to deny allegations contained in the statement of defence. A reply may, however, be filed to show facts which will make the defence untenable for example where the defence has pleaded statute of limitation or defence of confession and avoidance. See Hall v. Eve (1876) 4 CH. D. 341 and Azeez Akeredolu & 3 Ors. v. Lasisi Akinremi (1989)3 NWLR (Pt. 108) 164 at 172. In Akeredolu v. Akinremi (1989) 3 NWLR (Pt. 108) page 164 at page 172, Kawu, J.S.C. held that the rule of practice is that where no counter-claim is filed, a Reply is generally unnecessary if its sole object is to deny allegations contained in the Statement of Defence. The proper function of a Reply is to raise in answer to the defence, any matter which must be specifically pleaded which make the defence not maintainable or which otherwise might take the defence by surprise or which raises issues of fact not arising out of defence. This was also restated by Iguh, J.S.C., in the case of Ishola v. S.G.B (Nig.) Ltd. (1997) 2 NWLR (Pt. 488) 405. Further, in Ughutevbe v. Shonowo (2004) 16 NWLR (Pt. 899) p. 300, the Supreme Court, per Ejiwunmi, J.S.C., held that the plaintiff must not set up in his reply a new cause of action which is not raised either on the writ or in the statement of claim, since the plaintiff must not in his reply make any allegation of fact, or raise any new ground of claim inconsistent with his statement of claim. Inconsistent for this purpose does not mean ‘mutually exclusive’ but merely new or different. In other words, the reply must not contradict or ‘depart’ from the statement of claim, or it will be a ground for an application to strike out the reply in which the defect occurs. It was further stated therein that although the plaintiff is not allowed to make a ‘departure’ in his reply, yet he may ‘new assign’ New assignment was a pleading in the nature of a special reply, which explained the declaration in such a manner as to point out the real or supposed mistake of the defendant, and to show what the defence pleaded was either wholly inapplicable to the causes of action replied upon by the plaintiff, or was applicable only to a part of them. Such a reply is very seldom necessary under the present system of pleading owing to the greater particularity now required in a statement of claim; but it is still sometimes used. As a rule, however, if there be any mistake or possible ambiguity as to the precise nature or extent of the acts complained of or of the right which the defendant relies on as justifying those acts, the pleadings already served should be amended or further particulars ordered.

It is obvious in the facts contained in the Appellant’s Reply to the 4th Respondent’s Statement of Defence dated the 6th June, 2005 that an entirely new ground or issue not contained in the Appellant’s Amended Statement of Claim dated the 2nd June, 2005 was raised therein particularly at paragraphs 16 and 17. They should therefore not be countenanced. Be that as it may, it is glaring at pages 263 and 264 of the record that the learned trial Judge, after adequate consideration of the averments in the Appellant’s Reply and holding that it was not supported by any evidence from the pleading and deeming the same as being abandoned, somewhat digressed, and, raised the issue of competency of the said Reply suo motu. He, also, resolved the same suo motu in his judgment. There are numerous decisions of this Court and those of the Supreme Court on the point of raising an issue suo motu by a Court. It is an established principle of law that a Court of Law cannot raise an issue suo motu, and resolve it suo motu. No Court possesses the authority to raise an issue suo motu and relying on it, decide the case one way or the other without inviting the parties to be heard. It is also settled that such a dangerous path should not be taken by any Court no matter how clear the issue may appear to be and proceed to resolve the same without inviting the parties or their Counsel to address the Court on the point so as to avoid a breach of parties’ right to fair hearing. See Ejezie v. Anuwu (2008) 12 NWLR (Pt. 1101) page 466 and Amale v. Sokoto Local Government (2012) LPELR-SC.290/2003. With the above decisions in mind, I am afraid, the argument of learned Counsel for the Appellant on this point of the trial Court raising the issue of validity of the Appellant’s Reply suo motu and resolving the same suo motu without inviting the parties to address it is sustainable, it is therefore, valid. Accordingly, this issue is hereby resolved in favour of the Appellant.

At this juncture, I consider it appropriate to tackle issues four and five raised by the Appellant together. The fourth issue is, “whether the learned trial Judge was right when he dismissed the Plaintiffs case in the light of the evidence adduced before the Court?”, while the fifth one is, “whether the deliberations, finding and recommendations of the 4th Defendant concerning the Plaintiff and the subsequent ratification by the 1st Defendant are not ultra vire and therefore null and void having regard to the provisions of the 1999 Constitution?”

It is imperative to recollect that the Appellant was the only witness who testified in the entire proceeding. The Defence did not lead any evidence buttressing their pleadings but stated that all the documentary evidence needed to support their case had been tendered before the Court.

By Exhibit C, the 4th Respondent, the National Judicial Council invited the Appellant to appear before the Three Man Committee it set up for investigation of the allegation of oppression, victimization and continued infringement of right to liberty against the Appellant by one Alhaji Aminu Nabegu of Abnorm Industrial Enterprises Limited, Kano. He was requested to appear before the Committee if possible with witnesses on the 14th and 15th of January, 2003 at 10:00am. Exhibit J entitled, “The Minutes Of The National Judicial Council Investigation Committee Meeting On The Considerations of Complaints And Petition Against Hon. Justice Garba Abdullahi, High Court of Kano State”, shows that the Appellant, one Alhaji Yusuf Adamu Tafinta, Chief Magistrate Grade 1 and the said Alhaji Aminu Nabegu were in attendance at the meeting. During the hearing conducted at the said meeting, the said Alhaji Aminu Nabegu, the Appellant’s accuser, indicated he had witnesses while the Appellant, there present, stated he will not call any witnesses. The complainant told the Committee that he wrote to the Chief Judge of Kano State protesting the unwholesome practice of Hon. Justice Abdullahi inciting the Magistrates against him based on trumped up charges. He explained how he was detained by the Police at the orders of the said Alhaji Yusuf Tafinta, Chief Magistrate Grade 2, who issued the first bench warrant for his arrest on 30/5/2002. After his testimony, he was cross examined by the Appellant.

Then, the said Alhaji Yusuf Adamu Tafinta also, proffered evidence. Further, Alhaji Laman Adamu testified and was cross-examined by Alhaji Nabegu. He denied all that Alhaji Tafinta said about him. The Appellant made a written submission. The Committee evaluated the evidence and came to the following conclusion:
“a. The Committee found as a fact that the Complainant was arrested by the Police and charged to Court on the Petition written by Hon. Justice Garba Abdullahi to the Metropolitan Police, Kano State dated 27th May 2002. (Marked Exhibit B).
b. The Committee found as a fact that on the 10th June, 2002, the case was assigned to Chief Magistrate (DCR) Court 2 Bumpa Kano, Alhaji Faruk Lawan Adamu.
c. It was further established as a fact by the Committee that on that same day 10th June, 2002, before the Complainant was brought to Court, both Chief Magistrate Yusuf Adamu Tafinta and Hon Justice Garba Abdullahi called on the trial Chief Magistrate to enquire about the case.
d. The Committee further noted as a fact that Chief Magistrate Tafinta issued a detention warrant for the Complainant (The accused) marked Exhibit N to be detained in prison custody contrary to the advice the trial Chief Magistrate had given to his staff.
e. Although denied by Chief Magistrate Tafinta, it was admitted that Hon Justice Garba Abdullahi was in the Chambers of Chief Magistrate Tafinta on the day in question.
f. The Hon. Judge in his written memo, Exhibit ‘O’, explained that he took shelter in the chambers of
Chief Magistrate Tafinta because there was a heavy down pour. He explained further that it was the best alternative available to him since he could either stay in the rain or in the chambers of the trial Chief Magistrate. The Committee however found as a fact, that there were not only two Magistrates Courts but five in the complex. In the circumstances, the Committee did not consider the Judge taking shelter in Chief Magistrate Tafinta’s Chamber the best alternative as claimed.
g. It is a fact that the criminal case against the complainant (accused) Alhaji Aminu Nabegu, was terminated on nolle (exhibit C dated 27th June, 2002).”

Then, Exhibit K shows that at the 20th meeting of the 4th Respondent held on the 12th and 13th January, 2004, it was resolved that the Appellant should be dismissed from service owing to his irresponsible behaviour or aggravated harassment or intimidation against a citizen. The chairman was mandated to convey the decision to the Governor of Kano State.

Exhibit G dated 23/2/2004 is the letter from the 4th Respondent to the 1st Respondent informing the Governor of the two complaints against the Appellant. The 4th Respondent appointed a Committee to investigate the allegation. As a result, the 4th Defendant, in accordance with section 292(1)(b) of the 1999 Constitution and paragraph 21(d) of Part 1 of the Third Schedule to the 1999 Constitution recommended to the 1st Respondent the dismissal of the Appellant for misconduct.
Exhibit E dated 13/3/03 was the written submission of the Appellant to the Three Man Committee/Panel of the 4th Respondent in which he acknowledged the main thrust of the Petition of the said Alhaji Aminu Nabegu as being the allegation of intimidation, harassment and infringement of his right. He commented that both the oral submission and the Petition were silent as to how the acts of intimidation, harassment and infringement of right were committed.

Exhibit F dated 27/8/2004 emanated from the office of the Secretary to the State Government captioned, “Dismissal from the Judicial Service of Kano State.”

The Appellant averred at paragraph 14 of his Amended Statement of Claim that the inclusion of the issue of demanding and accepting bribe as a ground for his purported dismissal is an infringement of his, Plaintiff’s right to fair hearing, that it is deliberately malicious, mala fide and calculated to totally destroy his future. At paragraph 15, he further asserted that at no time whatsoever was he confronted with the allegation as contained in the second ground of the letter of dismissal, and stated categorically that he never intimidated any witnesses of the complainant or of anybody else either in any matter before the Plaintiff as a Judge or in the criminal case which he stood trial or still in the complaint made by the Plaintiff to the Police against Alhaji Aminu Nabegu.

I must recognize that notwithstanding the wording of Exhibit F from the 1st Respondent which clearly listed the complaints of the said Alhaji Aminu Nabegu against the Appellant, Exhibits, C, E, G, J and K clearly showed that the Appellant was purely investigated by the Three Man Committee/Panel of the 4th Respondent for the complaint or allegation of intimidation, harassment and infringement of the right of the said Alhaji Nabegu as was admitted by the Appellant in his written submission to the Committee, i.e. Exhibit E. The recommendation for his dismissal by the 4th Respondent was based on his irresponsible behaviour or aggravated harassment and intimidation against a citizen.
Section 292 (1) (b) of the 1999 Constitution of Federal Republic of Nigeria says:
“292(1) A Judicial officer shall not be removed from office before his age of retirement except in the following cases:
(b) In any case other than those to which paragraph (a) of this subsection applies, by the President or as the case may be, the Governor acting on the recommendation of the National Judicial Council that the Judicial Officer be so removed for his inability to discharge the functions of his office or appointment (whether arising from infirmity of mind or body) or for misconduct or contravention of the Code of Conduct.”
By the above provisions, the 4th Respondent is constitutionally empowered to recommend the removal of the Appellant as a Judicial Officer from office to the Government of his State on the ground of disability, misconduct or contravention of the Code of Conduct. It must be emphasized that the 4th Respondent did not pronounce on the incapacity of the Appellant with respect to the allegation of demanding and accepting bribe from the said Alhaji Nabegu. He was merely investigated for misconduct and/or breach of code of conduct.
Further, the provision of sub-paragraph (i) of paragraph 20 to the Third schedule to the 1999 Constitution of Nigeria states:
“Five members of the Nigerian Bar Association who have been qualified to practice for a period of not less than fifteen years, at least one of whom shall be a senior Advocate of Nigeria, appointed by the Chief Justice of Nigeria on the recommendation of the National Executive Committee of the Nigerian Bar Association to serve for two years and subject to re-appointment:
Provided that the five members shall sit in the council only for the purposes of considering the names of persons for appointment to the superior courts of record.”
See the case of Elelu-Habeeb v. A.G. Federation (2012) where the Supreme Court succinctly considered paragraph 20 of the third Schedule to the Constitution of Federal Republic of Nigeria and held:
“What is relevant for determination of this issue is to fish out and examine the powers of the National Judicial Council in Paragraph 21 of (Pt. 1) of the Third schedule to the constitution which reads- “21. The National Judicial Council shall have power to – (a) recommend to the President from among the list of persons submitted to it by (i) the Federal Judicial service commission, persons for appointment to the offices of the chief Justice of Nigeria … (ii) xxx (b) recommend to the president the removal from office of the Judicial officers specified in sub-paragraph (a) of this paragraph and to exercise disciplinary control over such officers. (c) recommend to the Governor from among the list of persons submitted to it by the State Judicial Service Commissions persons for appointment to the offices of the Chief Judges of the States and Judge of the High Courts of States, the Grand Kadis and Kadis of the Sharia Court of Appeal of the States and the Presidents and Judges of the Customary Courts of Appeal of the States. (d) recommend to the Governors the removal from office of the judicial officers specified in sub-paragraph (c) of this paragraph, and to exercise disciplinary control over such officers.” It is quite plain from the provisions of paragraph 21 sub-paragraphs (c) and (d) of Part 1 of the Third Schedule to the Constitution of the Federal Republic of Nigeria 1999, that the National Judicial council is the body that had been assigned the duty and responsibility of recommending to the Governors of the states of the Federation suitable persons for appointments to the offices of chief Judges of the states and other Judicial officers in the states. In addition to its role in the appointment of chief Judges of the states and other Judicial officers, the same National Judicial council is also empowered under sub-paragraph (d) of paragraph 21 to recommend to the Governors of the states the removal from office of the chief Judges of the states and other Judicial officers of the States and also to exercise disciplinary control over such Chief Judges of the States and other Judicial Officers of the States.”

It may, therefore, be necessary to reiterate part of Ogundare, J.S.C.’s, expression in Military Governor of Imo State vs. Chief B. A. E. Nwauwa, (supra) already quoted therein thus:
“The power of the court to interfere in each case is not as an appellate authority to override a decision of the local authority, but as a judicial authority which is concerned, and concerned only, to see whether the local authority have contravened the law by action in excess of the powers which parliament has confided in them.”
In exercise of his power of judicial review the court has no jurisdiction to substitute its own opinion for that of the public body whose decision is being reviewed for it is not part of the purpose of judicial review to substitute the opinion of the judiciary or of individual judges for that of the authority constituted by law to decide the matters in question: – Chief Constable of the North Wales Police v. Evans (1982) 1 WLR 1155, 160F per Lord Hailsham.
What the court is concerned with is the manner by which the decision being impugned was reached. It is its legality, not its wisdom that the court has to look into. For the jurisdiction being exercised by the court is not an appellate jurisdiction but rather a supervisory one.”

It is crystal clear that the 4th Respondent derived it powers to discipline the Appellant and all within his category from the Constitution of the Federal Republic of Nigeria, 1999. The moment it has exercised its constitutional power the only role the Court will play is to ascertain whether the manner in which the power was exercised conformed with fundamental principles of law but not whether the decision was wrong or right as the court has no jurisdiction to substitute it’s own opinion for that of the 4th Respondent. In Opene v. National Judicial Council & Ors, (2011) LPELR-4795(CA), Galinge, J.C.A., stated that the responsibility to recommend to the President, the removal of such officers is given to the National Judicial Council. If the Constitution intended that such misconduct must be subject to trial by Court, it would have said so. It would have said for example, that any Judicial Officer convicted by the Court shall be removed from office by the President on the recommendation of the NJC. The Constitution did not make such provision. Rather the Constitution that gave the Court the power to try criminal offences also gave the NJC the power to investigate allegation of misconduct against Judicial Officers and make recommendation for their removal. It is therefore my firm view that the procedure adopted by the NJC is sustainable in law. He further held that section 21(b) of the 3rd schedule Part 1 of the 1999 Constitution provides that the 1st Respondent shall have power to recommend to the President the removal from office of the Judicial Officers specified under sub-paragraph (a) of this paragraph, and to exercise disciplinary control over such officers. Those Judicial Officers mentioned in paragraph (a) include the Chief Justice of Nigeria, the Justices of the Supreme Court, the President and Justices of the Court of Appeal, the Chief Judge and Judges of the Federal High Court etc.
Regarding the contention of the Appellant that he was not shown a copy of the recommendation of the three Man Committee, it needs be stated that it is not an established law that the Appellant ought to have been invited the second time to be shown the recommendation of the said Three Man Committee.
In Mil. Gov. v. Nwauwa (supra), Iguh, J.S.C., said:
“There is also the suggestion that it was obligatory on the State Government to invite the respondent for another round of defence after it received the panel’s report but before publishing its decisions thereupon. Again, with respect, I cannot accept that the Imo State Executive Council was duty bound to invite the respondent a second time for the presentation of his case all over again or that failure by Government to invite him for the purpose aforesaid invalidated the decisions of the Military Governor on the Inquiry recommendations.
Section 18 of the Traditional Rulers and Autonomous Community Law No. 11 of 1981 as amended by Edict No. 5 of 1989 provides as follows-
“(1) Whenever there are allegations of grave misconduct against recognized Eze, the Military Governor may cause an administrative Inquiry to be held in respect of such allegations.
(2) …..
(3) …..
(4) Where the Military Governor after such enquiry is satisfied that such Eze has ceased to enjoy the popular support of the community, the Military Governor may withdraw the recognition of such Eze.”
It is clear from the above section of the law that where the Imo State Military Governor, after an inquiry, is satisfied that a recognized Eze has ceased to enjoy the popular support of his community, he may withdraw his recognition.
In the present case, the Imo State Government, following allegations of grave misconduct against the respondent, set up an Administrative Board of Inquiry which duly sat, investigated and submitted its recommendations to Government. The respondent fully put his case across to the panel at the investigation, at the conclusion of which exercise the panel submitted its report to Government. It cannot be disputed, on the law that the Military Governor under section 18(a) of the said law No. 11 of 1981 is fully entitled to withdraw the recognition of the respondent, with or without White Paper, if, after an inquiry set up by him, he is satisfied that the natural ruler concerned has ceased to enjoy the popular support of his community. This is what happened in the present case and I am unable to fault this exercise of discretion by the Imo State Military Governor in the instant case.
I think I ought to observe that the report of the panel or the Administrative Board of Inquiry in the present case was nothing but mere recommendations to Government and not decisions. It was the duty of the Government, having studied and deliberated on the report, to take its final decisions thereupon. The proceedings of the panel fully show the entire evidence with the respective cases and arguments of the parties concerned. They also reflect all the memoranda and exhibits submitted at the inquiry and I cannot accept that it is mandatory on the Imo State Executive Council to invite the respondent for his comment on either the panel’s report or the White Paper on it before the Military Governor’s decision on the matter can be valid.
On the evidence, the respondent fully knew the grave acts of misconduct levelled against him and made the fullest use of the opportunity offered him to defend his actions before the panel. In my view, the respondent having fully presented his case before the panel with the assistance of counsel was not by law entitled to be invited a second time for another round of defence before the Military Governor would validly make public his decisions on the panel’s findings and recommendations.”

The case of Nwauwa (supra) clearly demolished and shut out the argument of the Appellant that the report of the Three Man Committee was not brought to his notice so as to give him the opportunity to challenge the same. The same is hereby not countenanced.

I must observe that the allegation by Counsel that the learned trial Judge rewrote Exhibit F sounds very mean. The learned trial Judge merely interpreted the said Exhibit placed before it and nothing more. It should also be noted that no specific allegation of likelihood of bias against some members of NJC namely, Justice Sabo Darazo and Justice Mustapha Akanbi was raised in the Appellant’s Amended Statement of Claim. Further, there is no indication that the three learned Senior Advocates mentioned by the Appellant participated in the decision taking of the 4th Defendant regarding the disciplinary measures against the Appellant. I, therefore, disregard these points raised by the Appellant’s Counsel in his Brief.

In the end and for all the reasons I have given above, this appeal is found to be unmeritorious and ought to be dismissed. Accordingly, it is hereby dismissed. The decision of the lower Court is hereby affirmed.

ITA G. MBABA, J.C.A.: I have had the privilege of seeing and reading the lead judgment, delivered by her Lordship Hon. Justice T.N. Orji-Abadua J.C.A, and I agree with her reasoning and conclusion on the issues, that the appeal lacks merit and should be dismissed.
I too dismiss the appeal and abide by the consequential orders in the lead judgment.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now the lead judgment delivered by my learned brother, Theresa Ngolika Orji-Abadua, J.C.A. His Lordship has considered and resolved the issues in contention in this appeal. I agree with the reasoning and abide the conclusions reached therein. I have nothing more to add.

Appearances

M. N. Duru Esq. For Appellant

AND

Shuaibu Sule Esq., Director of Civil Litigation of Kano State;
Suraj S’aeda Esq, Kano State Ministry of Justice – 1st, 2nd and 3rd Respondent
Oladipo Tolani Esq. with Kabir Momoh Esq. – 4th Respondent For Respondent

LawCare Nigeria

HON. JUSTICE GARBA ABDULLAHI v. THE EXECUTIVE GOVERNOR OF KANO STATE & ORS (2014)

general

YOU MAY HAVE MISSED

The Difference between a Public and Private Company in Nigeria

How to Secure a Business Permit in Nigeria

LEGAL PITFALLS TO AVOID WHEN STARTING A BUSINESS IN NIGERIA

INSOLVENCY AND BANKRUPTCY PROCEDURES IN NIGERIA

general

Related Story

YOU MAY HAVE MISSED