Hon. Justice Mohammed Ladan Tsamiya -VS- National Judicial

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

BEFORE HIS LORDSHIP THE HONOURABLE JUSTICE E. N. AGBAKOBA

DATED 5TH FEBRUARY, 2019                                         SUIT NO: NICN/ABJ/435/2016

 

BETWEEN

HON. JUSTICE MOHAMMED LADAN TSAMIYA                             CLAIMANT

 

AND

  1. NATIONAL JUDICIAL COUNCIL                                             DEFENDANTS
  2. THE ATTORNEY GENEAL OF THE FEDERATION &

MINISTER OF JUSTICE  

 

REPRESENTATION

EYITAYO FATOKUN for the claimant with OLALYEY KUYE

JOHN MATHEW for the 1st defendant with O. RAFMA, C. OHAKIMMRS. J.SHUWA and J.O. OMERIGBE

  1. N. EKENG Senior State Counsel for the 2nddefendant

 

JUDGEMENT

 

  1.             The claimant by a Further Amended Complaint filed on 21st December, 2017 with the accompanying frontloaded documents, is claiming against the defendants as follows:

  1. A DECLARATION that the decision of the Defendants compulsorily retiring the Claimant on the conclusion that he demanded for the sum of Two Hundred Million Naira Only (N200,000,000.00) from one Nnamdi Iro Orji is unsubstantiated, unconstitutional , illegal , null and void.

  1. A DECLARATION that the recommendation of the 1 Defendant based on its Investigation Committee report relating to the Claimant in all its ramification is illegal, unconstitutional as it violates the Claimant’s right to fair hearing which include the right of natural justice guaranteed under section 36 of the Constitution of the Federal Republic of Nigeria 1999.

  1. AN ORDER setting aside the report/recommendation of the 1st Defendant that the Claimant is guilty of demanding for the sum of Two Hundred Million Naira Only (N200, 000,000.00k) from Mr. Nnamdi Iro Orji and the recommendation that retired him upon purported approval by the President of the Federal Republic of Nigeria being a gross infringement of the Claimants fundamental human right to fair hearing.

  1. AN ORDER of perpetual injunction restraining the Defendants, their agents, servants or privies from carrying into effect or executing or enforcing the recommendation dated the 22nd day of September 2016 or anything connected whatsoever with the said report or recommendation relating to the Claimant.

  1. AN ORDER directing the defendants to accept the Claimant’s letter of voluntarily retirement dated 28th September 2016.

Claimant’s Case

 

  1.             The Claimant was as a public officer, a Justice of the Court of Appeal, presiding over the Ilorin Judicial Division of the Court. He was appointed a Judge of High Court of Justice Sokoto State on the 18th day of May, 1992 and Justice of Court of Appeal on 7th March, 2005 and remained a judicial officer till his alleged compulsory retirement on the 13th day of October, 2016. He was born on 31st of December, 1949 and due for retirement 31st December 2019.

  1.             Claimant maintained that on or about the 30th day of March, 2016, he received a letter from the Honourable Chief Justice of Nigeria, mandating him to answer to allegations by a certain Nnamdi Iro Orji, within 14 days. The Claimant in response to the allegations, denied ever demanding any amount of money from the complainant, the said Mr. Nnamdi Oji.

  1.             The 1st Defendant set up a Fact finding committee to investigate the entire allegations against the Claimant and other Justices of the Court of Appeal who were involved in the petition and report back its findings. On the 14th, 15th, 20th and 21st day of September 2016, the Defendant’s fact finding panel sat to enquire into the petition, took evidence and decided on the said allegations levelled against the Claimant and other Honourable Justices of the Court of Appeal mentioned in the petition. And at the close of the sitting of the panel, the panel recommended that the Claimant be ‘sanctioned’ as it relates to the demand for money.

  1.             It is the Claimant’s case that the 1st defendant received the report of its committee and without hearing the Claimant, and went on to recommend to the President, the compulsory retirement of the claimant and the President, represented in this proceeding by his chief law officer, approved the compulsory retirement of the Claimant.

  1.             The claimant has therefore approached this Honourable Court on the issue of his indictment and compulsory retirement.

  1.             The defendants initial STATEMENT OF DEFENCE was filed on 14th March, 2017.

  1.             The Defendant admitted paragraphs 1 and 2 of the Claimant’s statement of claim only to the extent that the claimant was first appointed as a judge of the High Court of Justice, Sokoto State from where he was elevated to the Court of Appeal bench as a justice of the Court of Appeal before his compulsory retirement from service owing to a finding of misconduct against the Claimant.

  1.             The Defendant denied the claims contained in paragraph 9 of the Statement of claim and in response thereto stated that the petitioner, Mr. Nnamdi Iro Orji deposed to two separate affidavits before the Abia State High Court both dated the 5th day of May, 2016, one containing 12 paragraphs and the other 43 paragraphs wherein he categorically maintained his position that the Claimant demanded the sum of two hundred million Naira (N200, 000,000) from him.

  1.             The Defendant denies the claims contained in paragraph 16 (a-d) of the statement of claim and in response stated as follows:

  1. That the administrative panel set up by the Defendant was an investigative body which the Defendant has the statutory powers to empanel in the circumstance of this case.

  1. That the Claimant participated in the investigation by making both oral and written submissions and cross-examining witnesses at the proceeding wherein he was represented by senior counsel.

  1. That the Investigation Committee merely investigated the allegations and made appropriate recommendations to the Defendant which in turn made recommendations to the appropriate authority for sanction.

  1. That taking into cognizance the evidence that was presented before the Investigative Panel, its findings justified the recommendations made concerning the Claimant.

  1.             In reaction to paragraph 20 of the claim, the Defendant averred that the retirement of the Claimant based on the findings of the Investigative Panel which was arrived at after due consideration of the evidence from both the Petitioner and the Claimant is in the circumstance justified.

  1.             The Defendant denies the claims contained in paragraph 22 of the statement of claim and shall at the hearing contend that the decision recommending the retirement or the Claimant followed due process and the Claimant was afforded fair hearing.

 

  1.             2ND DEFENDANT’S STATEMENT OF DEFENCE filed on 26th January, 2018.

  1.             The 2nd Defendant admitted paragraphs 1 and 2 of the claimant’s further Amended Statement of Facts only to the extent that the claimant was a judicial officer up until his compulsory retirement on the 13th of October, 2016.

  1.             In response to paragraphs 9 and 10 of the claimant’s Amended Statement of facts, the 2nd Defendant stated that he was neither aware nor part of any fact finding committee set up by the 1st Defendant in respect of the allegations levied against the claimant. In response to the facts stated in Paragraph 16, 1 7, 18, 19 and 20 of the claimant’s further amended statement of facts, the 2nd Defendant stated that he has not received any report from the fact finding committee and their recommendation concerning the claimant. And that the 1st Defendant is constitutionally vested with the power to recommend to the President the removal or retirement from office of any judicial officer found guilty of any professional misconduct.

  1.             The 2nd defendant in specific response to the facts stated in Paragraph 21, averred that the recommendation of the claimant’s retirement was sequel to the findings by the council on the allegation contained in the petition written against the claimant by one Nnamdi Iro Oji and should not be subject to any questioning by the claimant. And that the 2nd Defendant neither employed, promoted nor instituted any disciplinary action leading to the removal or retirement of the Claimant at any time whatsoever. That the 2nd Defendant is not a government agency responsible for recruitment, promotion and discipline of judicial officers.
  2.             That the claimant’s action as constituted discloses no reasonable cause of action against the 2nd Defendant and that the mode of commencement of this suit by claimant is incompetent.

  1.             The 2nd Defendant contended that the claimant is not entitled to any of the reliefs sought in the statement of claim as the statement of claim is vague, speculative and bogus.

  1.             WHEREOF the 2nd Defendant prays this Honorable Court to strike this suit as presently constituted for being misconceived, unmeritorious, incompetent and an attempt by the Claimant to arm-twist the 2nd Defendant as the Claimant is not entitled to any reliefs sought.

 

  1.             1ST DEFENDANT’S AMENDED STATEMENT OF DEFENCE filed on 20th September, 2018.

  1.             The 1st Defendant admits paragraphs 1 and 2 of the Claimant’s statement of claim only to the extent that the claimant was first appointed as a judge of the High Court of Justice, Sokoto State from where he was elevated to the Court of Appeal bench as a justice of the Court of Appeal before his compulsory retirement from service owing to a finding of misconduct against the Claimant.

  1.             The 1st Defendant denied the claim contained in paragraph 14 of the statement of claim and in response thereto stated that the petitioner was able to establish that indeed the Claimant made a demand from him for the sum of two hundred million naira (N200, 000,000.00) which the petitioner refused to oblige him.

  1.             The 1st Defendant denied the claims contained in paragraph 18 (a-d) of the statement of claim and in response stated as follows:

  1. That the administrative panel set up by the 1st Defendant was an investigative body which the Defendant has the statutory powers to empanel in the circumstance of this case.

  1. That the Claimant participated in the investigation by making both oral and written submission and cross-examining witnesses at the proceeding wherein he was represented by senior counsel.

  1. That the Investigation Committee merely investigated the allegations and made appropriate recommendations to the 1st Defendant which in turn made recommendations to the appropriate authority for sanction.

  1. That taking into cognizance the evidence that was presented before the Investigative Panel, its findings justified the recommendations made concerning the Claimant.

  1.             The 1st Defendant admitted paragraph 19 of the claim only to the extent that the report of the Investigation Committee was presented to it and it considered the report and acted thereon but denied that members of the investigative Panel participated in the deliberations other than to present the report.

  1.             In reaction to paragraph 22 of the claim, the 1st Defendant avers that the retirement of the Claimant based on the findings of the Investigative Panel which was arrived at after due consideration of the evidence from both the Petitioner and the Claimant is in the circumstance justified.

  1.             The 1st Defendant denied the claims contained in paragraph 22 of the statement of claim and shall at the hearing contend that the decision recommending the retirement or the Claimant followed due process and the Claimant was afforded fair hearing.

  1.             The 1st Defendant admitted paragraphs 23 and 24 of the Claimant’s claims only to the extent that the President and Commander in Chief of the Armed Forces of the Federal Republic of Nigeria compulsorily retired the Claimant based on the recommendation of the 1st Defendant after accepting the findings of the Investigation Committee it set up to investigate a petition against the Claimant that the allegation made concerning the demand for money made by the Claimant to the Petitioner was credible.

  1.             WHEREOF the 1st Defendant shall urge the Court to dismiss the Claimant’s action with substantial costs.

  1.             At the trial, the claimant testified on his own behalf as CW; while Soji OYE Director of the 1st Defendant testified as DW. Thereafter, parties filed their respective written addresses. The claimant’s final written address is dated and filed on 9th November 2018, while the defendant’s final address was dated and filed on 23rd November 2018. The claimant’s reply on points of law was filed on 28th November 2018.

  1.             FINAL WRITTEN ADDRESS OF THE CLAIMANT filed on 9th November, 2018.

ISSUES

  1. Whether the 1st Defendant acted within the provisions of the Constitution of the Federal Republic of Nigeria 1999 (as amended) when it created and caused an ad-hoc investigative panel to investigate and recommend to it, the removal from office of the Claimant as a judicial officer

  1. Whether the Claimant was denied his rights of fair hearing by the panel of the 1st Defendant in the determination of the allegations against him;

  1. Whether the proceeding leading to the decision of the 1st Defendant recommending to the President, the removal from office of the Claimant as a judicial officer based on the recommendation of the ad-hoc Panel of Inquiry, is not against the spirit and letter of the Constitution of the Federal Republic of Nigeria.

 

  1.             ON ISSUE 1

Whether the 1st Defendant acted within the provisions of the Constitution of the Federal Republic of Nigeria 1999 (as amended) when it created and caused an ad-hoc investigative panel to investigate and recommend to it, the removal from office of the Claimant as a judicial officer.

 

  1.             Learned Counsel submitted that the NJC cannot receive petition, investigate and recommend to itself the removal of a judicial officer and at the same time recommend to the President, removal of the same officer. It is constitutionally mandatory for the NJC to first receive and consider the recommendation from the Federal Judicial Service Commission that a judicial officer be removed from office before it can recommend to the President the removal of the officer.

  1.             He submitted that the principle of interpretation is to the effect that where under the constitution, a specific power, duty and right is conferred, such a specific power, duty or right cannot be removed unless specifically stated in the law. AG BENDEL – V — AG FEDERATION (1981) 10 SC 1, 132 134, per Obaseki, JSC.

 

  1.             It is counsel’s submission that the Court in interpreting the power under paragraph 21(b) of the third schedule, the Court should break the powers into two; firstly, recommend to the President, removal of a judicial officer and secondly, exercise discipline and control over such officers where no recommendation is received from Federal Judicial Service Commission or where there arose an appeal against the recommendation of the FJSC on a judicial officer. That the FJSC no longer has power to discipline which now rests in the NJC and so NJC can in exercise of this new power substitute a disciplinary power of removal if recommended.

  1.             Furthermore, that the Constitution did not give the NJC power to create another institution, body or ad-hoc committee to recommend to it, the removal of a judicial officer as a basis for further recommendation to the President, removal from office of a judicial officer. ANYA – V — IYAYI (1993) 7 NWLR (pt. 305) 290 @ 314—315.

 

  1.             Counsel contended that the provisions of the Constitution do not admit of one section assuming express provision of other section or assimilation of another provision. That the basic rule of interpretation is that the Constitution must be read together as a single legislation; and where there is provision for a particular matter, the rule is that such express provision excludes any other presumptions or implied terms. KALU VS ODlLl (1992) 5 NWLR (PT. 240) 130 AT 170, 172.

  1.             He submitted that if the provisions of a legislation are clear, it is not permissible to have recourse to construction by implication. And that the law is that any legislation that is capable of affecting the right or property of a citizen must be construed strictly and where there is no doubt, the citizen is entitled to benefit of the court. Therefore, that the ad-hoc Committee set up by the NJC is unconstitutional, invalid, null and void. COMMERCE BANK Nig. Ltd. – V – AG ANAMBRA STATE (1992) 8 NWLR (pt. 261) 528 @ 556; NUHU SANI IBRAHIM – V — NEC (1999) 8 NWLR (pt. 614) 334 @352.

  1.             ON ISSUE 2

What is the fundamental nature of the doctrine of natural justice and Section 36 of the constitution?

 

  1.             Claimant’s Counsel posited that the age long principle is known to have two legs, which are usually expressed in the Latin maxim: Nemo debetess judex in propriacausua i.e. a man may not be a Judge in his own cause and audi altrem patem: the right to be heard. That the rule of audi altrem patem requires that a person liable to be directly affected by a proposed administrative act, decision or proceeding or against whom disciplinary action may be proposed, be given adequate notice of the allegation against him so as to give him opportunity to make preparation to answer the allegation/charges he has to meet. Hence, it is essential that the person involved be given prior notice of the case against him so that he can prepare to meet that case. AIYETAN – V – NIFOR (1987) 3 NWLR (pt. 59) 66.

  1.             Counsel submitted that where the person so accused was only as a witness to testify in an inquiry and the recommendations of such inquiry was later made the basis for his dismissal, that would be sufficient non-compliance with the principles of natural Justice. LPDC – V – FAWEHINMI (1985) 2 NWLR (pt. 7) page 300; JIBRIL – V — MILITARY ADMINISTRATOR OF KWARA STATE (2001) 3 NWLR (pt. 1021) 357 @387.

  1.             Posing the question: ‘’from the facts of the case, can one say, in good conscience that the Claimant has been given fair hearing as stated above and , can we say the purported investigation and subsequent trial of the Claimant met with the requirements of section 36 of the Constitution?, counsel responded that the reasonable answer is NO. JIBRIL – V — MILAD KWARA STATE (2007) 3 NWLR (pt. 1020) 357 @ 387. Submitting that this breach was not mere irregularity but it went to the substance of the matter. AIYETAN – V – NIFOR (supra)at page 66 per Nnamani, JSC; ADIGUN – V – AG OYO STATE(1987) 1 NWLR (pt. 53) 678 @ 709, per OBASEKI JSC (as he then was); Board of Education v Rice (1911) A.C. 179, 182 and Ceylon University v. Fernando (1960) 1 W.L.R. 223; (1960) I All E.R. 631 P.C; Malloch v. Aberdeen Corporation (1971) 1 W.L.R, 1578; ADEDEJI V. PUBLIC SERVICE COMMISSION (1968) N.M.LR. 102.

 

  1.             Counsel to the Claimant urged the Court to take judicial notice of and apply the Discipline regulations of the NJC (1st Defendant), Section 1 6. He noted that the Court has made it clear, over and over again, that the rules of court or rules of procedure are not only important, but are to guide the entire proceedings before this court/Tribunal. Also, that the rules made pursuant to the constitutional powers of Chief Justice of Nigeria, is as sacrosanct as the constitution. ABIA STATE UNVERSITY V. ANYAIBE (1996) 3 NWLR (PT.439)646@660.

 

  1.             Referring the Court to page 11 of Exhibit C7 paragraph 3.02, Claimants Counsel argued that the allegation of bias as stated by the claimant is well founded. ADIGUN – V — A.G. OYO STATE (1987) 1 NWLR (pt. 53) 678, per Hon. Justice Andrew Otutu Obaseki, JSC; UNIVERSITY OF CALABAR – V — ESIAGA (1997) 4 NWLR (pt. 502) 719 @ 745, particularly paragraphs D — F of pages 744 — 745; RV BARNSLEY LINCENCING JJ (1960) 2QB 167, 187; ONIGBEDE – V — BALOGUN (2002) 6 NWLR (pt. 762) 1 and Claimant’s Counsel went on to argue this point under 2 subheads

 

PERVERSE CONCLUSION OF THE PANEL

  1.             It is counsel’ submission that the investigative Panel was in error or mistake as it didn’t observe the standard of proof beyond reasonable doubt which was expected of it in case of a criminal allegation thereby denying the claimant, his right to fair hearing. And that the consequence of denial of fair hearing is that the proceeding is unconstitutional, null and void. Oyewalevs  Oyesoro (1997) 2 NWLR (Pt. 539) 663 at 679, per Abdullahi, JCA (as he then was); ADIGUN-V—AG Oyo (1987) 1 NWLR (pt53) 67.

FAILURE TO PRODUCE RECORD OF PROCEEDINGS OF THE 1ST DEFENDANT’S INVESTIGATIVE PANEL.

 

  1.             Counsel urged the Court to hold that a party who had evidence but withheld it and failed to produce it inspite of Notice to produce served on him had done so because if the evidence was produced it will be against the 1st Defendant. Section 148 (d) Evidence Act; TEWOGBADE – V — AKANDE (1968) NMLR 404; UZEGBU – V — PROGRESS BANK Nig. Ltd. RE — ADEWUMI & ORS (1988) 3 NWLR (pt. 87) 236.

 

  1.             Counsel urged the court to hold that the Defendants’ Panel which recommended that the Claimant be removed from the office of a Justice of the Court of Appeal used evidence only favourable to the Petitioner, Nnamdi lro against him. That it was a grievous and fatal misdirection in law. ABISI – V — EKWEALOR (1993) 6 NWLR (pt. 302) 643 @ 661; OKOTIEEBOH – V — MANAGER (2004) 18 NWLR (pt. 905) 242 @ 209.

 

  1.             ON ISSUE 3

Whether the proceeding leading to the decision of the 1st Defendant recommending to the President, the removal from office of the Claimant as a judicial officer based on the recommendation of the ad-hoc Panel of Inquiry, is not against the spirit and letter of the Constitution of the Federal Republic of Nigeria.

 

  1.             Counsel citing Section 292 of the constitution of the Federal Republic of Nigeria, submitted that this power which was delegated to the President by the constitution, however did not state that he can delegate same.

  1.             He posited that documentary evidence, is the best form of evidence and extrinsic evidence cannot be admitted to contradict, add or vary the provisions or terms contained in a document. ABIODUN JOSEPH VS FAJEMILEHIN (2012) LPELR-9849 AT PAGE 23 PARA A.

  1.             FINAL WRITTEN ADDRESS OF THE 1ST DEFENDANT filed on 23rd November, 2018.

ISSUES

  1. Whether the 1st Defendant has the statutory powers to recommend the compulsory retirement of the Claimant in the circumstance of this case.

  1. Whether the Claimant was afforded a fair hearing before the 1st Defendant recommended his compulsory retirement.

  1.             ON ISSUE 1

Whether the 1st Defendant has the statutory powers to recommend the compulsory retirement of the Claimant in the circumstance of this case.

 

  1.             Learned Counsel submitted that in matters of appointment of judicial officers, it is conceded that under paragraph 21(a) (i) of the third schedule to the Constitution, the 1st Defendant can only recommend to the President, a person for appointment from the list of persons submitted to it by the Federal Judicial Service Commission.

  1.             Thus, that in matters of appointment, the National Judicial Council must act together with the Federal Judicial Service Commission. In this sense, its powers of recommending persons for appointment must be jointly exercised. And in matters of discipline however, the 1st Defendant is not so circumscribed. That the wordings of paragraph 21(b) which donates the powers to the 1st Defendant to recommend to the President the removal from office of a judicial officer is clear and unambiguous. And that the 1st Defendant is not obliged to ‘wait on the Federal Judicial Service Commission before exercising its power.

  1.             He posited that the law is well settled when it comes to what the court must do when faced with the interpretation of clear and unambiguous words in a statute. That the wordings must be given their plain and ordinary meaning. COCA COLA (NIG) LTD v. AKINSANYA (2017) 17 NWLR (1593) 74 AT 121, Paras. D — G, 123, Paras A — C; 141, Paras D — F; 149-150, Paras E — A; AEROBELL (NIG) LTD v. N.I.D.C. (2017) 5 NWLR (1558) 203 AT 226 — 227, Paras H — C.

 

  1.             Counsel argued that it is clear from the wordings of paragraph 21(b) of the third schedule that the 1st Defendant’s power to recommend to the President the removal of the Claimant is not dependent on any input from the Federal Judicial Service Commission. That the input of the Federal Judicial Service Commission is obligatory in matters of appointment. Not so in matters of discipline as in this case.

  1.             ON ISSUE 2

Whether the Claimant was afforded a fair hearing before the 1st Defendant recommended his compulsory retirement.

 

  1.             Learned Counsel to the 1st Defendant  maintained that the Claimant was not only present, but had in attendance as his Counsels two eminent Senior Advocates in the person of Chief A.S. Awomolo SAN and Y.C. Maikyau, SAN leading other Lawyers who cross-examined the Petitioner and his witnesses at the hearing. That these facts were further admitted by the Claimant in his evidence elicited under cross examination before this Honourable Court. And that the Committee considered the evidence before it submitted a report to the 1st Defendant which is before this Honourable Court as Exhibit C7. Posing the question: ‘’does all the foregoing suggest an absence of fair hearing?’’, he responded on the weight of the following case law authorities: MR. YUSUF AMUDA GARBA & ORS v. UNIVERSITY OF MAIDUGURI (1986) LPELR-1305 (SC); (1986) 1 NWLR (PT 18) 550; (1986) ALL NLR 149; (1986) 2 SC 128.

  1.             He submitted that fair hearing in the World of work has been successfully watered down to just opportunity to be heard. SIMON ANSAMBE v. BANK OF THE NORTH LTD (2005) 8 NWLR (PT 928) 650.

  1.             Furthermore, that fair hearing does not necessarily mean an oral representation, it is enough if it is in writing. That the converse of this proposition is true with equal force i.e. fair hearing does not necessarily mean a written response; it is enough if there is an oral representation. All that matters is whether the employee was given the opportunity of fair hearing. ZIIDEEH v. RSCSC (2007) LPELR-3544(SC); (2007) 3 NWLR (PT 1022) 554; (2007) 1 — 2 SC 1; A.R. MOMOH v. CBN (2007) 14 NWLR (PT 1055) 508 CA AT 527, BENEDICT HIRKI JOSEPH v. FIRST INLAND BANK MG. PLC (2009) LPELR8854(CA), GUKAS v. JOS INTERNATIONAL BREWERIES LTD (1991) 6 NWLR (PT 199) 614, IMONIKHE v. UNITY BANK PLC (2011) LPELR-22629(CA), KAYODE AGBOLADE v. ECOBANK NIG. PLC unreported Suit No. NICN/LA/34/2012 the judgment of which was delivered on 30th October, 2013, MR ADEWALE AINA v. WEMA BANK PLC & ANOR unreported Suit No. NICN/LA/162/2o12 the judgment of which was delivered on January 28, 2016, MRS TITILAYO AKINSANYA v. COCA-COLA NIGERIA LIMITED & 2 ORS unreported Suit No. NICN/LA/4o/2o12, the judgment of which was delivered on 7th April, 2016, NEW NIGERIA BANK LTD v. G.O. ONIOVOSA (1995) 9 NWLR (PT 419) 327; ISONG UDOFIA v. INDUSTRIAL TRAINING GOVERNING COUNCIL (2001) 4 NWLR (PT 703) 281.

 

  1.             Counsel noted that the common feature running through all these cases is that the exact nature of the infraction(s), which the employee is expected to answer to was disclosed to the employee. That Exhibit C3 through which the petition against the Claimant was forwarded to him attached the petition itself. So, the Claimant knew exactly what he was meeting in terms of the infractions(s) he is accused of. In fact, that the concurring judgment of his Lordship Hon. Justice Rhodes-Vivour, JSC in IMONIKHE v. UNITY BANK PLC (supra) is quite emphatic. BAMISILE v. NATIONAL JUDICIAL COUNCIL (2013) All FWLR (PT 678) 911 AT 936 — 937 Paras G-C.

 

  1.             Counsel urged the Court to find no merit in the Claimant’s argument that because a copy of the report of the Investigative Committee was not made available to him, his right to fair hearing was thereby infringed. HON. JUSTICE BASSEY TAMBU EBUTA v. NJC AND 3 OTHERS. Unreported Suit No. NICN/ABJ/301/2016 delivered on the 13th day of July, 2017.

  1.             Counsel submitted that the position taken by the Claimant is either a gross misconception of the law or a deliberate attempt to mislead this Honourable Court but whichever is the case, the position of the law needs to be set out unequivocally. The question of bias or likelihood of bias is not one to be taken lightly and it is not every allegation of bias or likelihood of bias that merits attention. That such allegation must in fact be supported by evidence establishing the real likelihood of bias otherwise it is bound to be discountenanced. WOMILOJU v. ANIBIRE (2010) 10 NWLR (PT 1203) 545 AT 571 — 572 Paras B-G.

 

  1.             Learned Counsel submitted that a party who gives notice to produce a document he intends to rely on in prosecuting his case is not absolved of the burden of proving a particular point only on account of a failure by the party served the notice to produce the said document. That the service of a notice to produce only entitles the party serving such notice a right to lead secondary evidence on the point. EMEKA v. CHUBA IKPEAZU (2017)15 NWLR (PT 1589) 345 AT 375 Para C- F. NWEKE v. STATE (2017) 15 NWLR (PT 1587)120 AT 140 Paras B-C; BUHARI v. OBASANJO (2005) 13 NWLR (PT 941) 1 AT 236 Paras A-B, per EJIWUNMI, JSC.

 

  1.             He submitted that a party must be consistent in his case, that he cannot be allowed to setup one case in his pleadings and evidence in court and another in his final address. OKADIGBO v. EMEKA & ORS (2012) LPELR 7839(SC).

  1.             REPLY OF THE CLAIMANT TO THE 1ST DEFENDANT’S FINAL WRITTEN ADDRESS filed on 26th November, 2018.

  1.             On whether the recommendation of the removal of the Claimant is dependent on the input of the Federal Judicial Service Commission: counsel submitted that Paragraphs 13 (b) of the Third Schedule to the constitution of Nigeria 1999 as amended states as follows:

  1.             13.       The Commission shall have power to –

(b) recommend to the National Judicial Council, the removal from office of the judicial officers specified in sub-paragraph (a) of this paragraph;

That there can be nothing clearer than that.

  1.             He submitted that the word ‘shall’ in Offomah v. Ajegbo (2000) 1 NWLR (Pt. 641) Pg. 505 Paras, E — F was held thus;

‘There is nothing that an appellate court can do. In Achineku v. lshagba (1988) 4 NWIR (Pt.89) 411 the court had this to say about the use of the word shall in a statute. “The word shall in its ordinary meaning is a word of command and one which has always or which must be given a compulsory meaning as denoting obligation. It has a pre-emptory meaning and it is generally imperative and mandatory. It has the invaluable significance of excluding the idea of discretion to impose a duty which may be enforced.” Per Ubaezonu, J .C.A.

  1.             Counsel submitted that Paragraph 21(b) the third Schedule which empowered the 1st Defendant to make the recommendation to the President is pursuant to the recommendation by the FJSC as contained in Paragraph 13 of the 3rd Schedule. He conceded that the FJSC cannot of its own recommend to the President, the removal of the Claimant, urging the Court to discountenance the submissions of the 1st Defendant and uphold the submissions of the Claimant.

  1.             Counsel noted that the 1st Defendant has made heavy weather of the issue of fair hearing stating that the Claimant was indeed given fair hearing by being given a copy of the petition to respond to and furthermore, he was invited to the investigative panel sitting where he was also represented by counsel; and cited the cases of Mr. Yusuf Amuda Garba vs. UNMAID (1986) 1 NWLR PART 18 @550, ZIIDEEH VS RSCSC (2007) 3 NWLR PART 1022 @554; IMONIKHE VS UNITY BANK PLC. Counsel responded that these cases are not in any way related in fact or law to the circumstance of this case and urged the Court to discountenance them.

  1.             On 26th November, 2018 parties adopted their respective written addresses and adumbrated their positions accordingly and this matter was adjourned for this judgement.

Court’s Decision

  1.             I have carefully summarized the evidence of both sides, the arguments of opposing counsel and having carefully reviewed all the authorities cited, read through all the relevant processes and digested the contention of the parties and their written submission are herewith incorporated in this Judgement and specific mention would be made to them where the need arises.

  1.             I am inclined to adopt the issues for determination formulated by the defendants. This way all the areas raised by the defendant shall be resolved in answer to all the issues raised in this complaint

ISSUES

  1.       Whether the 1st Defendant has the statutory powers to recommend the compulsory retirement of the Claimant in the circumstance of this case.

  1.       Whether the Claimant was afforded a fair hearing before the 1st Defendant recommended his compulsory retirement.

  1.             The defendants in respect of this issue contend that in \matters of appointment of judicial officers, under paragraph 21(a) (i) of the Third Schedule to the Constitution, the 1st Defendant can only recommend to the President, a person for appointment from the list of persons submitted to it by the Federal Judicial Service Commission, the National Judicial Council must act together with the Federal Judicial Service Commission. In this sense, its powers of recommending persons for appointment must be jointly exercised. The 1st defendants however, contend that the 1st Defendant is not so circumscribed in respect to discipline of judges, arguing that the wordings of paragraph 21(b) which donates the powers to the 1st Defendant to recommend to the President the removal from office of a judicial officer are clear and unambiguous and that they, the 1st defendants are not obliged to ‘wait on the Federal Judicial Service Commission before exercising this power.

  1.             To the 1st Defendants clear and unambiguous words in a statute must be given their plain and ordinary meaning. Relying on COCA COLA (NIG) LTD v. AKINSANYA (2017) 17 NWLR (Supra) to argue further that paragraph 21(b) of the Third Schedule, clothing the 1st Defendant with power to recommend to the President the removal of the Claimant is not dependent on any input from the Federal Judicial Service Commission. That the input of the Federal Judicial Service Commission is obligatory in matters of appointment but not so in matters of discipline as in this case.

  1.             The Claimants position however is that a recommendation of the removal of a judicial officer such as the Claimant is dependent on the input of the Federal Judicial Service Commission. Relying on Paragraphs 13 (b) of the Third Schedule to the Constitution of Nigeria 1999 as amended
  2.  The Commission shall have power to –
  3.       (b) recommend to the National Judicial Council, the removal from office of the judicial officers specified in sub-paragraph (a) of this paragraph;
  4.             To argue that the use of the word ‘shall’ in its ordinary meaning is a word of command and one which has always and one which must be given a compulsory meaning as denoting obligation: Offomah v. Ajegbo (Supra) Continuing the argument that it  has a pre-emptory meaning and that ‘shall’ is generally imperative and mandatory.
  5.             To the Claimant, Paragraph 21(b) the Third Schedule which empowered the 1st Defendant to make the recommendation to the President operates pursuant to the recommendation by the FJSC as contained in Paragraph 13 of the 3rd Schedule.
  6.             With respect to the 1st Defendant who is the National Judicial Council the position of the law as regards the constitutional provisions governing the 1st Respondent are found in the Constitution of the Federal Republic of Nigeria 1999 as amended, particularly in Paragraph 21  of the Third Schedule;-
  7. 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, 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, the President and Judges of the National Industrial Court and

(ii) the Judicial Service Committee of the Federal Capital Territory, Abuja, persons for appointment to the offices of the Chief Judge and Judges of the High Court of the Federal Capital Territory, Abuja, the Grand Kadi and Kadis of the Sharia Court of Appeal of the Federal Capital Territory, Abuja and the President and Judges of the Customary Court of Appeal of the Federal Capital Territory, Abuja;

(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;

  1.             Also Section 158 of the 1999 CFRN provides that –
In exercising its power to make appointments or to exercise disciplinary control over persons, the Code of Conduct Bureau, the National Judicial Council, the Federal Civil Service Commission, the Federal Judicial Service Commission, the Revenue Mobilisation and Fiscal Commission, the Federal Character Commission, and the Independent National Electoral Commission shall not be subject to the direction or control of any other authority or person.

81.            Which in direct prose means that in exercising its power to make appointments or to exercise disciplinary control over persons, the National Judicial Council, shall not be subject to the direction or control of any other authority or person.

  82.            In JUSTICE OKWUCHUKWU OPENE V. NJC & ORS [2011] LPELR-4795(CA) Galinje, JCA (as he then was) defined the word “authority” in section 158(1) of the 1999 Constitution, and came to the conclusion “that the various Courts of the land are included as authorities which exert obedience to its commands as included in their judgments” and that the NJC “is at liberty to make its procedural rules and regulations without any form of control from any authority”, for which the NJC “does not have to wait for a Court verdict on a judicial officer who is found wanting, before it takes steps to save the judiciary from a situation that is considered to diminish the reputation and integrity of the judiciary, considering the length of time adjudication takes in this country”,

83.            Judicial Discipline Regulations October 2014  which came into force on the 3rd November 2014 and are the relevant regulations in respect of the claimants case being the precursor to the 2017 regulations. Regulation 2 gave scope to the regulations thus: “These regulations govern allegations and complaints of misconduct against judicial officers and proceedings initiated the exercise of the power of the National Judicial Council pursuant to part 1 of the Third Schedule to the 1999 Constitution of the Federal Republic of Nigeria as amended and to exercise disciplinary control over judicial officers against whom allegation of misconduct has been made. See HON. JUSTICE BASSEY TAMBU EBUTA v. NJC AND 3 OTHERS. Unreported Suit No. CA/A/708/2017 delivered on the 11th day of December, 2018.

  1.             Bearing in mind that it is the law that in interpreting the Constitution, the interpretation  should be done holistically, and that words should be given their ordinary meaning so as to give vent to the intent of the lawmaker, See DR OLUBUKOLA ABUBAKAR SARAKI V. FRN [2016] LPELR-40013(SC) and the cases of CHUKWUDI EZE VS. THE STATE LER[2015]CA/L/1198A/2010 following  OJUKWU VS. OBASANJO(2004) 12 NWLR (PT. 886) 169 AT 210 .
  2.             Which in turn this means Paragraph 21 of Part I to the Third Schedule to the 1999 Constitution then provides in sub-paragraph (a) that the NJC has power to recommend from the list of persons submitted to it by the Federal Judicial Service Commission persons for appointment as judicial officers of the State; and in sub-paragraph (b), the NJC is given the power to recommend to the President the removal from office of judicial officers, and to exercise disciplinary control over such officers.
  3.             The argument of the claimant that the Federal Judicial Service Commission is the sole body empowered to make recommendation to the NJC, to the extent that where the FJSC does not forward a petition to the NJC the process of disciplining a judicial officer would be inchoate, I find is untenable especially considering the provisions of Section 158 of the 1999 CFRN 1999 (as amended).
  4.             What this means is that the power of the NJC under paragraph 21(c) of Part I of the Third Schedule to the Constitution is not made contingent on anything;
  5.             A similar argument as to the role of the Federal Judicial Service Committee was made in the case of Suit No: NICN/ABJ/380/16 HONOURABLE JUSTICE GLADYS K. OLOTU Vs. PRESIDENT OF THE FEDERAL REPUBLIC OF NIGERIA & $ ORS delivered on the 17th September 2017, where this court considered the provisions governing the removal of judicial officers and held thus..  “

  1.             Now, looking at the relevant provisions I find that: Paragraph 13 of the 3rd Schedule of the Constitution creates the Federal Judicial Service Commission and provides in 13. The Commission shall have power to…………;

(a)    advise the National Judicial Council in nominating persons for appointment, as respects appointments to the office of: –

(i) the Chief Justice of Nigeria;

(ii) a Justice of the Supreme Court;

(iii) the President of the Court of Appeal;

(iv) a Justice of the Court of Appeal;

(v) the Chief Judge of the Federal High Court;

(vi) a Judge of the Federal High Court;

(via) the President of the National Court;

(vib) a Judge of the National Court; and
(iv) the Chairman and members of the Code of Conduct Tribunal.
(b) recommend to the National Judicial Council, the removal from office of the judicial officers specified in sub-paragraph (a) of this paragraph; and

(c) appoint, dismiss and exercise disciplinary control over the Chief Registrars and Deputy Chief Registrars of the Supreme Court, the Court of Appeal, the Federal High Court, the National Court and all other members of the staff of the judicial service of the Federation not otherwise specified in this Constitution and of the Federal Judicial Service Commission.

  1.             While Paragraph 20 provides for the National Judicial Council  and section 21 states that 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, 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, the President and Judges of the National Industrial Court and
    (ii) the Judicial Service Committee of the Federal Capital Territory, Abuja, persons for appointment to the offices of the Chief Judge and Judges of the High Court of the Federal Capital Territory, Abuja, the Grand Kadi and Kadis of the Sharia Court of Appeal of the Federal Capital Territory, Abuja and the President and Judges of the Customary Court of Appeal of the Federal Capital Territory, Abuja;
    (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;

  1.             Also worthy of in this consideration is Section 158 of the 1999 CFRN provides that –

“In exercising its power to make appointments or to exercise disciplinary control over persons, the Code of Conduct Bureau, the National Judicial Council, the Federal Civil Service Commission, the Federal Judicial Service Commission, the Revenue Mobilization and Fiscal Commission, the Federal Character Commission, and the Independent National Electoral Commission shall not be subject to the direction or control of any other authority or person”.

 
 
  1.             As far back as 1981, Obaseki JSC formulated cannons of interpretation, in the case of A.G. Bendel State Vs. A.G. Federation 12 NSCC 314 at 371 – 373. They are -(1) Effect should be given to every word.(2) A Construction nullifying a specific clause will not be given to the constitution unless absolutely required by the context.(3) A Constitutional power cannot be used by way of condition to attain unconstitutional result.(4) The language of the Constitution where clear and unambiguous must be given its plain evident meaning.(5) The Constitution of the Federal Republic of Nigeria is an organic scheme of government to be dealt with as an entirety; a particular provision cannot be dissevered from the rest of the Constitution.(6) While the language of the Constitution does not change, the changing circumstances of a progressive society for which it was designed yield new and fuller import to its meaning.(7) A Constitutional provision should not be construed so as to defeat its evident purpose.(8) Under a Constitution conferring specific powers, a particular power must be granted or it cannot be exercised.(9) Declaration by the National Assembly of its essential legislative functions is precluded by the Constitution

  1.             With these cannons as backdrop, we can now consider the question: What is the role of the Federal Judicial Council in the Removal of the Applicant or any Federal Judge.

  1.             The constitution is clear as to the role of the FSJC in the appointment of a Judge; that is 13 (a) (a) advise the National Judicial Council in nominating persons for appointment, as respects appointments. The provision goes to list the judicial appointments /officers that the FJSC is to advice on with respect to appointment. 13(a)(i) and (ii).
  2.             In sub (b) the provision states that the FJSC would recommend to the NJC on the removal of a Judicial officer and in sub (c) gives power to the FJSC to appoint, dismiss and exercise disciplinary control over the Chief Registrars and Deputy Chief Registrars of the Supreme Court, the Court of Appeal, the Federal High Court, the National Industrial Court and all other members of the staff of the judicial service of the Federation not otherwise specified in this Constitution and of the Federal Judicial Service Commission.

  1.             Looking at paragraph 21 the NJC is empowered to exercise disciplinary control over judicial officers.

  1.             While the constitution empowers the FJSC to exercise disciplinary control over Registrars and other staff of the commission.

  1.             Section 158 re-enforces the disciplinary control of the NJC in respect to Judicial officers such as the Applicant to the level of exclusivity, I find.

  1.             I do not agree with the Respondents that both the NJC and FJSC are empowered to receive petitions against judicial Officers, i.e. that a petitioner has a choice to send a petition to either organization, I find that only one organization is charged with disciplining judicial officers and that is the 2nd Respondent.

  1. Looking at paragraph 13(b) which empowers the FJSC to ‘recommend to the National Judicial Council, the removal from office of the judicial officers specified in sub-paragraph (a) of this paragraph’.  I find that this provision  relates to  or is limited to or is in respect of situations where the FSJC in the exercise of his  functions in sub  (a) or (c), that is if the FJSC subsequent to recommending an appointee to the post of a judicial officer becomes aware of circumstance which would or could impugn or lead to the removal of a judicial officer they would within sub (b) make a recommendation to NJC, See HONOURABLE JUSTICE BASSEY TAMBU EBUTA V. NATIONAL JUDICIAL COUNCIL & 3 ORS (Supra). Similarly if in the course of exercising disciplinary control over the Chief Registrar or other as listed in 13(a) facts become available which would require or lead to the investigation of a judge the FJSC would send a recommendation to the NJS under sub (b)

  1. What all this means is that the FJSC has a constitutional role to play in the removal of the judicial officer, but this role is contingent to the exercise of sub (a) and (c) especially as the Constitution did not categorically give the FJSC disciplinary control over Judicial officers.

  1. I find that paragraph 13 (b) does not create a condition precedent as the NJC is not subject to authority in disciplining judicial officer. I find and hold. The power of the NJC under paragraph 21(c) of Part I of the Third Schedule to the Constitution is not made contingent on anything; HONOURABLE JUSTICE BASSEY TAMBU EBUTA V. NATIONAL JUDICIAL COUNCIL & 3 ORS (Supra).”
  2. To contemplate a situation where both the NJC and the FJSC were both constitutionally empowered to receive petitions and make recommendation for the removal judicial officers simpliteur would mean that the constitution donated a single function to two separate bodies, without any direction for co-ordination. I find this could not be the intention of the law makers.

  1. Also in HON. JUSTICE RALIAT ELELU-HABEEB & ANOR V. THE HON. ATTORNEY-GENERAL OF THE FEDERATION & ORS SUIT NO: SC.281/2010, Supreme Court in these words escribed the 1st defendant: “….that for the effective exercise of the powers of removal of a Chief Judge of a State…the first port of call… shall be the National Judicial Council which is equipped with the personnel and resources to investigate the inability of the Chief Judge to discharge the functions of his office, the subject of disciplinary action of removal through the Committees of the Council…

  1. All of this is applicable to a Judge as it is to a Chief Judge. Two things must be noted though: the removal of a judge must be investigated and confirmed by credible evidence; and the burden of justifying the (recommendation for) compulsory retirement lies with the 1st Respondent; the NJC, (like it ordinarily would on an employer).

  1. The 1strespondent being a statutory corporation created Section 153(1)(j) of the 1999 Constitution, its functions provided for in paragraph 21(b) of the Third Schedule to the 1999 Constitution are public functions in execution of a public duty to investigate infractions by judicial officers amongst others. I find that the 1st  Respondent and its committees have the requisite scope and powers to entertain petitions and make recommendations to the President. I resolve this issue against the Claimant.
  2. That brings us to the second issue of fair hearing. It is the claimants contention that he was not afforded fair hearing based on three flanks
  3. Firstly that the purported investigation and subsequent trial of the Claimant did not meet with the requirements of section 36 of the Constitution,
  4. Secondly that the investigative Panel was in error or mistaken as it didn’t observe the standard of proof beyond reasonable doubt which was expected of it in case of a criminal allegation thereby denying the claimant fair hearing and thirdly that a copy of the investigation report was never served on the claimant and that a party who had evidence but withheld it and failed to produce it inspite of Notice to produce refused to produce it because the said evidence would be adverse to the 1st defendants position making an inference for the presumptions under Section 169(d) Evidence Act. 2014.

  1. The Defendant responded that the claimant was present with his lawyers during the investigation process and cannot raise the issue of fair hearing as he was afforded the legal requirement: Opportunity, relying on SIMON ANSAMBE v. BANK OF THE NORTH LTD (Supra). The 1st defendant also responded that concept of Notice to produced merely allowed the party giving such notice the vires to rely on what ever document in his possession without more. In respect of the third flank the defendant urged the Court to find no merit in the Claimant’s argument that because a copy of the report of the Investigative Committee was not made available to him, his right to fair hearing was thereby infringed. Relying on HON. JUSTICE BASSEY TAMBU EBUTA v. NJC AND 3 OTHERS. Unreported Suit No. NICN/ABJ/301/2016 delivered on the 13th day of July, 2017. it was held that

  1. The position of the law as regards fair hearing has been well established in the case of R.T.A.G.M.N. V. TORT (2016) 4 NWLR (PT. 1501) 105 CA “A party in every dispute before a court is entitled to be given an opportunity to be heard, or to have his matter heard by an important arbiter. [ARIORI V. ELEMO (1983) 1 NWLR (PT. SCNLR 1; EZOMO V. OYAKHIRE (1985) 1 NWLR (PT. 2) 195; AUTO IMPORT-EXPORT V. ADEBAYO (2005) 19 NWLR (PT. 959) 44 REFERRED TO.] (P. 115, PARAS. C-D)

 

  1. Also in the case of   AKWA IBOM STATE COLLEGE OF EDUCATION, AFAHA NSIT VS MRS. EKA (2008) Legalpedia CA S1HW) (suit number: CA/C/233/2007) Where the Learned Court of Appeal Justice Jean Omokri considered the purport of the doctrine of fair hearing and held as follows “The doctrine of fair hearing envisages that both parties to a case are given ample opportunity of presenting their respective cases without let or hindrance right from the commencement of such case to its logical conclusion. It also envisages that the court hearing a case should be fair and impartial, without showing any bias for or against any of the parties.” Continuing with regard to the essence of fair hearing the Learned JCA also held that “The very essence of fair hearing under section 36 of the 1999 Constitution of the Federal Republic of Nigeria is a hearing which is fair to all parties to the suit; whether the plaintiff, the defendant, the prosecution or the defence.” Omokri JCA had this to say as to the scope of fair hearing “Generally, the twin pillars of fair hearing are embodied in the Latin maxims Nemo Judex in causa sua, that is, “you shall not be a Judge in your own cause” and audi alteram partem, that is, “hear the other side” and
  2. “This rule connotes that a court or tribunal in the hearing and determination of a suit or dispute between parties must: 1. hear both sides; not only in the case but also on all material issues in the case before reaching a decision which may be prejudicial to any party in the case.2. give equal treatment, equal opportunity and equal consideration to all concerned.3. have regard to all the circumstances in every material decision in the case, justice must not only be done but must manifestly and undoubtedly be seen to have been done.”

  1. With regard to fair hearing, the position of the law as per the  recent decision of the Supreme Court in REV. PROF. PAUL EMEKA V. REV. DR. CHIDI OKOROAFOR & ORS [2017] 14 NWLR (PT. 1577) 410, where the Supreme Court, relying on BAKARE V. LSCSC [1992] 8 NWLR (PT. 266) 641 AT 699 – 700 and EKUNOLA V. CBN [2013] 15 NWLR (PT. 1377) 224 AT 262 – 263, held that breach of a fundamental right under section 36(1) of the Constitution arises only where the denial of fair hearing has been charged against a Court or tribunal established by law and not before a domestic or standing ad-hoc tribunal raised departmentally by parties. In other words, there would be no case of infringement of the right to fair hearing under Section 36(1) of the 1999 Constitution when the decision alleged to have violated one’s constitutional right to fair hearing, is that of a non-judicial body.

  1. While I hold “that a careful reading of REV. PROF. PAUL EMEKA V. REV. DR. CHIDI OKOROAFOR & ORS. Supra will reveal that the Supreme Court acknowledged that fair hearing comes in two forms: the constitutional form under Section 36 of the 1999 Constitution; and the common law form in terms of the rules of natural justice as expressed in the Latin maxims – audi alterem partem and nemo judex in causa sua”. The former relates to criminal trials in Courts of Tribunals whilst the latter is the yardstick of the domestic tribunes and administrative panels. I also find and hold that “The reliance by lawyers on Section 36 of the 1999 Constitution when challenging the disciplinary processes of employers is accordingly uncalled for and wrong. They have unwittingly taken to the realm of constitutional law what is rightly of the realm of administrative law. Under administrative law, by judicial review, the court can always set aside any disciplinary process that does not adhere to the common law rules of natural justice” See Suit No: NICN/ABJ/380/16 HONOURABLE JUSTICE GLADYS K. OLOTU Vs. PRESIDENT OF THE FEDERAL REPUBLIC OF NIGERIA & 4 ORS delivered on the 17th September 2017. So the claimant reference to Section 36 of the 1999 GFRN is of no import in this matter. I also agree with the 1st defendant as with regards to the effect of a Notice to Produce See CHUKWURA V. NDUKA & ANOR. [2008] LPELR – 3985 [CA] P. 29 – 30, PARAS. B – A which followed the position of law well amplified in BUHARI V. OBASANJO [2005] 13 NWLR [PT. 941] 1 AT 198 where the Supreme Court said as follows –
  2. “A party on whom Notice to produce is served is not under any obligation to produce the document. The service of the Notice to produce only entitles the party serving the Notice to adduce secondary evidence of the document in question by virtue of section 98 of the Evidence Act…

  1. Having said that I find that the 1st defendants argument with regard to the non service on the claimant with the copy of the Investigation Report of the 1st defendant and their reliance on HON. JUSTICE BASSEY TAMBU EBUTA v. NJC AND 3 OTHERS. Unreported Suit No. NICN/ABJ/301/2016 delivered on the 13th day of July, 2017 can no longer stand the test of time or be considered the correct position of the law. especially after carefully reading of See HON. JUSTICE BASSEY TAMBU EBUTA v. NJC AND 3 OTHERS. Unreported Suit No. CA/A/708/2017 delivered on the 11th day of December, 2018, wherein the Court of Appeal considered the provisions of  Regulations  of the National Judicial Council 2014;
  2. By clause 16(3) of the NJC Judicial Discipline Regulations 2014 (Exhibit C7), “the investigating committee shall submit…a comprehensive report of its investigation, including its findings and recommendations for Council action”.
  3. Regulation 14(5) of the NJC Regulations (Exhibit C7), which states that at any hearing of the investigating committee the subject Judge has the right to present evidence, to compel the attendance of witnesses, and to compel the production of witnesses to cross-examine, in person or by Counsel, committee witnesses.
  4. Regulation 16(1) The Council shall before it considers the report of the Investigating Committee forward a copy of the report to the subject Judge
  5. And held that these provisions were mandatory and not directory and a failure to comply with these regulations would vitiate a procedure. The Learned Justices of the Court of Appeal had this to say about these regulations, “that a community reading of these sections bring out the depth of safeguards and concerns for fair hearing in the matters of discipline of a judicial officer.
  6. To the Court of Appeal “the duty placed on the 1st respondent is to forward a copy of the report of the investigating committee to the subject judge before considering the report.”

  1. The Appeal Court described the duty of this procedure “as the all in important final step of letting the appellant have a copy of the investigation committee report…..” And the Court continued that “…. if this all-important step is not taken as it has occurred in the instant case any consideration of that report or the consideration thereof are a nullity being in breach of the fundamental rights of the appellant to fair hearing. “. Mr. Justice Abdul Aboki in his concurring judgement held ‘that the failure to give the appellant a copy of the report of the investigating committee is a naked affront of the doctrine of fair hearing, “ the Appeal Court went on to resolve this issue in favour of the Appellant.

  1. From the foregoing and in consideration of the facts of this instant case, the provisions of Regulation 16(1) of the JDR 2014 in requesting that a subject judge be afforded a copy of the Investigating Committees Report before the 1st defendant consider the report, creates a condition precedent to the validity of any further action of the 1st defendant. The provisions have been described as mandatory and as such failure of the 1st defendant to comply with this provision invalidates and nullifies all their subsequent actions as well as the incidental results and effects of their said action. In the circumstances and in line with the above authorities I resolve this flank of issue 2 in the claimant’s favour.

  1. The position of the law is as was stated in of AKWA IBOM STATE COLLEGE OF EDUCATION, AFAHA NSIT VS MRS. EKA (SUPRA) that “Courts are enjoined to observe compliance in regard to fair hearing in all cases such that a breach of it renders proceedings on the case null and void in any event, particularly in matters relating to the principle of audi alteram partem”. Per Jean Omokri JCA who went on to state that “…The principles of fair hearing entrenched in the constitution is so fundamental in the judicial process or the administration of justice that a breach of it will vitiate or nullify the whole proceedings.”

  1. With the resolution of the 2nd flank of issue two in favour of the claimant, the claimant suit succeeds, the right of the claimant to fair hearing was breached by the 1st defendant in considering the investigating committees report and any resultant effect of that consideration amounts to a nullity. (To wit, the recommendation for compulsorily retirement, the approval of the said recommendation by the President of the Federal Republic of Nigeria and the subsequent retirement of the claimant are hereby declared a nullity and are hereby set aside.)

  1. This means that decision of the 1st defendant in compulsorily retiring the claimant and all subsequent actions following therefrom are all null and void being based on a nullity.  The law has always remained that something cannot be put on noting and expected to stand See MACFOY V. UNITED AFRICAN COMPANY LTD “[1961] 2 NWLR 1405”, MEMMEH V. HAJO [2016] ALL FWLR (PT. 831) 1468 AT 1484 – 1485 and FABUNMI V. COP OSUN STATE [2009] 5 NWLR (PT. 1164) 229.  Reliefs a, b, and c therefore succeed and are granted in part. Relief d is for perpetual injunction restraining the 1st defendant from acting on the report and succeeds in whole, while relief e an order that the defendants consider the claimants application for voluntary retirement is unsubstantiated, in that there is nothing before the court to indicate that the condition for a voluntary retirement have been met, and therefore this relief cannot be considered by this court. The position of the law is that having declared the retirement wrong, unlawful, null and void, the law is that it is deemed not to have occurred in the first place. See HON. JUSTICE BASSEY TAMBU EBUTA v. NJC AND 3 OTHERS. Unreported Suit No. CA/A/708/2017 and E. P. IDERIMA V. RIVERS STATE CIVIL SERVICE COMMISSION [2005] 7 SC (Pt. III) 135 the effect of such a pronouncement is that the public servant was always and still is a public servant. The only order open to the court to make is one of reinstatement and it is hereby made. The claimant is at liberty to represent his application for voluntary retirement to the 1st defendant for their consideration, as this is not within the remit of this court.

  1. For avoidance of doubt the claimant case succeeds but only this far,
  2. It is hereby declared that the decision of the Defendants to compulsorily retiring the Claimant is unconstitutional, null and void.

  1. It is hereby declared that the recommendation of the 1s Defendant based on its Investigation Committee report relating to the Claimant in all its ramification is illegal, unconstitutional as it violates the Claimant’s right to fair hearing which include the right of natural justice.

  1. By an  order of this Court the report/recommendation of the 1st Defendant based on its Investigation Committee report relating to the Claimant the recommendation that he be retired upon purported approval by the President of the Federal Republic of Nigeria are hereby set aside being a gross infringement of the Claimants fundamental human right to fair hearing.

  1. By an order of this court the Defendants, their agents, servants or privies  are hereby by this perpetual injunction restrained from carrying into effect or executing or enforcing the recommendation dated the 22nd day of September 2016 or anything connected whatsoever with the said report or recommendation relating to the Claimant.

  1. The defendants shall accordingly re-instate the Claimant to his office as Judge of the Court of Appeal and pay him all his salaries, emoluments, allowances  and benefits from the date when the defendants withdrew al such salaries, emoluments, allowances and benefits from the Claimant.

  1. This is the Court’s judgement and it is hereby entered.

…………………………………………

HON JUSTICE E. N. N. AGBAKOBA

Judge.