JUDICIAL SERVICE COMMISSION v. JAMES O. ISEDE, ESQ & ANOR
(2019)LCN/12704(CA)
In The Court of Appeal of Nigeria
On Thursday, the 14th day of February, 2019
CA/B/27/2013
RATIO
FUNDAMENTAL RIGHT: FAIR HEARING
“Furthermore in the case of FEDERAL POLYTECHNIC EDE & ORS VS ALHAJI LUKMAN ADEMOLA OYEBANJI (2012) LPELR 19696 (CA), this Court in analysing the constituents of fair hearing held at page 53 to 54 of the report that:- ‘In order to be fair therefore, ‘hearing’ or ‘opportunity to be heard’ in a judicial inquiry must encompass a party’s right:
a) To be present all through the proceedings to hear all the evidence against him/her.
b) To cross examine or otherwise confront or contradict all the witnesses that testified against him;
c) To read before him all the documents tendered in evidence at the hearing;
d) To have disclosed to him the nature of all relevant material evidence including documentary evidence, prejudicial to him, except in recognised exceptions;
e) To know the case he has to meet at the hearing and have adequate opportunity to prepare for his defence;
f) To give evidence by himself, call witnesses if he likes, and make oral submission either personally or through counsel of his choice. See NWANEGBO VS OLUWOLE (2001) 37 WRN 101; DAWODU VS NPC (2000) 6 WRN 116; DURWODE VS THE STATE (2001) 7 WRN 50.” PER SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.
JUSTICES
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
MOORE ASEIMO ABRAHAM ADUMEIN Justice of The Court of Appeal of Nigeria
Between
JUDICIAL SERVICE COMMISSION Appellant(s)
AND
1. JAMES O. ISEDE, ESQ
2. NATIONAL JUDICIAL COUNCIL Respondent(s)
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the judgment of the Federal High Court sitting in Asaba and delivered on the 1st day of December 2011 wherein an order was made reinstating the 1st Respondent who was earlier retired compulsorily from the service of the Appellant.
The 1st Respondent herein had as plaintiff initiated a suit against the Appellant and 2nd Respondent as the 1st and 2nd Defendants respectively. The said suit was filed in the Federal High Court, Benin but the conclusion and judgment was in the Federal High Court, Asaba consequent upon the order of the Chief Judge of the Federal High Court that the learned trial Judge, M.I. Awokulehin J., who had heard the matter to an advanced stage before his transfer from Benin to Asaba should conclude same.
Briefly put, the facts of the case was that sequel to the general election that held in Nigeria in 2003, election Petition Tribunals were constituted for the 36 states of the Federation and the Federal Capital Territory to hear and determine election petitions. The 1st Respondent herein was appointed and assigned as a member of a five man Governorship and Legislative Houses Election Petition Tribunal for Akwa-Ibom State.
In the course of their assignment, a party in one of the election petitions wrote and served a petition on the Chief Justice of Nigeria (CJN) alleging that the Tribunal members collected bribe to pervert justice.
The said petition was forwarded by the CJN to the National Judicial Council (2nd Respondent). A committee was set up by the 2nd Respondent to investigate the allegation. At the end of the investigation, the committee inter alia found that the Tribunal members were actually involved in financial inducements and recommended that the judges be removed from office while the Report of the said committee was forwarded to the Chief Judge of Edo State for necessary action against the 1st Respondent who is a Chief Magistrate.
Based on the said report, the Appellant with the Chief Judge as the Chairman sat and ordered the compulsory retirement of the 1st Respondent from the service of the Appellant as a Chief Magistrate.
The 1st Respondent reacted by instituting an action at the Federal High Court, Benin City challenging his retirement on the ground that he was not given a fair hearing before he was compulsorily retired. The claim as per paragraph 23 of the statement of claim dated 13/4/2004 reads thus:-
1. A Declaration that the decision by the 1st Defendant to retire the plaintiff from its service/employment through its letter of 20/2/2004 on the basis of the recommendation by the 2nd Defendant without giving him (plaintiff) a hearing was in flagrant violation of his right to fair hearing and therefore null, void and of no effect whatsoever.
2. A Declaration that the 1st Defendant being a separate and independent Legal Entity from the 2nd Defendant is not bound by or subject to its administrative directives or control.
3. A declaration that not being a judicial officer under and subject to its control, the 2nd Defendant cannot validly purport to try the plaintiff for any alleged misconduct in the discharge of his (plaintiff) official duties.
4. A declaration that the defendants lack the constitutional competence to purport to try the plaintiff for the criminal offences of fraud and/or receiving bribe and the findings of guilt are therefore null, void and of no effect whatsoever.
5. A declaration that the decision/conclusion of the 2nd Defendant touching and concerning the plaintiff pursuant to the investigation conducted into the allegation of bribery against the governorship and legislative election tribunal of Akwa-Ibom State are unjustifiable, unreasonable and perverse.
6. An order setting aside, nullifying or invalidating the letter dated 20/2/2004 by which the 1st Defendant purportedly retired the plaintiff from its service and directing/affirming that the plaintiff is still in the service of the 1st Defendant as a Chief Magistrate Grade 1.
7. An order directing the 1st Defendant to pay to the plaintiff all his emoluments from the date of the purported retirement.
8. An order of injunction restraining the 1st Defendant from taking any steps aimed at effecting its cessation of the plaintiff’s employment on the basis of the findings of the committee that conducted the investigations on behalf of the 2nd Defendant into the allegation of bribery of the governorship and legislative election petition Tribunal Akwa-Ibom State and/or its acceptance by the 2nd defendant.
At the conclusion of the trial at the lower Court, judgment was entered in favour of the appellant wherein an order of reinstatement was made.
The Appellant was not satisfied with the outcome of the judgment and consequently filed a notice of appeal on 29/2/2012. An amended notice and grounds of appeal was subsequently filed on 15/1/2016 but deemed properly filed on 24/5/2016. Thereafter and in compliance with the Rules of this Court, the Appellant and 1st Respondent filed and served their briefs of argument.
The Appellant’s brief of argument was filed on 15/1/2016 but deemed properly filed on 24/5/2016. Therein, the following two issues were formulated for determination:-
1. Whether the learned trial Judge was right in holding that 1st Respondent was not given a fair hearing.
2. Whether putting together all the circumstances of this case, the learned trial Judge was right in holding that the first Respondent was a statutory employee and that he has proved his case to entitle him to any of the reliefs sought.”
In the 1st Respondent’s brief of argument filed on 11/7/2016 but deemed filed on 31/10/2016, two issues were also distilled for determination as follows:-
1. Whether the 1st Respondent was given any fair hearing and/or fair hearing by the Appellant before it retired him from service compulsorily. (Ground 1).
2. Whether the 1st Respondent pleaded and led evidence on the point that his employment enjoyed statutory flavour and that he is entitled to the reliefs sought.
The 1st Respondent also filed a notice of preliminary objection on 30/3/2017 seeking the striking out of the two grounds of appeal on the following grounds:-
1. Ground 1 in the extant amended notice and grounds of appeal dated 8/2/15 and filed on 15/1/16 is incompetent in that whereas the ground complained of error in law, the particulars supplied in support thereof are essentially of facts simpliciter, requiring leave of this Honourable Court or the Court below. Appeal can only be of right where questions of law alone are involved. Vide Section 241 (1) (b) of the Constitution of FRN, 1999 (as amended), leave was not obtained by the Appellant.
2. Ground 2 of the grounds of Appeal is equally incompetent in that it also complained of misdirection whereas the particulars supplied are essentially of facts simpliciter.
By reason of Section 242 (1) of the Constitution of the Federal Republic of Nigeria 1999 as amended, leave of this Honourable Court or the Court below is required where the ground of appeal involves question of facts simpliciter or mixed law and facts, leave was not obtained by the Appellant.
In line with established authorities, I will address the preliminary objection first and the outcome will determine whether I shall proceed with the resolution of the main appeal. See MAGIT VS FEDERAL UNIVERSITY OF AGRICULTURE MAKURDI (2006) ALL FWLR (PT 298) 1313; TIZA VS BEGHA (2005) ALL FWLR (PT 272) 200; NSIRIM VS NSIRIM (1990) 3 NWLR (PT 138) 295; AJIDE VS KELANI (1985) 3 NWLR (PT 12) 248; SALAMI VS MOHAMMED (2000) 9 NWLR (PT 673) 469.
The 1st Respondent argument in support of the preliminary objection is embedded in pages 5 to 7 of the 1st Respondent?s brief of argument. Therein, it was submitted that all the particulars supplied in support of Ground 1 of the grounds of Appeal are based on facts and have nothing to do with law and when read together with ground of appeal it will be clear that the said ground 1 is not a ground of law but of fact or at best mixed law and fact.
The same virus is said to also afflict ground 2 of the ground of appeal.
It was then contended that where a ground or grounds of appeal are not of law alone, but of mixed law and fact or facts simpliciter, leave of this Court or the trial Court must first be sought and obtained before the appeal can be judged competent but in this case such leave was not sought or obtained as required by Section 241 (1) (b) of the 1999 Constitution and as such they are liable to be struck out. Reliance was then placed on the case of ORAKOSIM & 2 ORS VS MENKITI (2001) 87 LRCN 1536.
Replying on the said preliminary objection, learned counsel for the Appellant submitted that the said objection is misconceived and should be dismissed.
In this regard, reference was made to Order 7 Rule 2 (2) of the Court of Appeal Rules 2016; and Order 6 Rule 2 (2) of the 2011 Rules along with some authorities to submit that the law in this area of practice only forbids the inconsistencies, as stated in the Rules such as prolix, repetitive, narrative and argumentative presentation of particulars of law but does not preclude the Appellant from making recourse to stating clearly his particulars of errors vide factual statements relating to the complaints in the judgment complained against as done by the Appellant in the instant case.
In support, he cited the following cases OGBULI VS OGBULI (2008) 1 NWLR (PT 1068) 258 and GELO-PRAKLA (NIG) LTD VS UKIRI (2004) 1 NWLR (PT 855) 519; OGBECHIE VS ONOCHIE (1986) 2 NWLR (PT 23) 284.
It was also argued that the case of ORAKOSIM VS MENKITI supra cited by the 1st Respondent does not support his objection and is distinguishable from the instant case because the complaint is not that the particulars are vague, or difficult to ascertain, narrative, argumentative or hypothetical as was the situation in ORAKOSIM?S case.
Furthermore, it was submitted that the appeal being against the final judgment of the lower Court, it is therefore an appeal as of right and as such leave is not required having been filed within time. He relied on the following authorities:-AULT & WIBORG (NIG) LTD VS NIBEL INDUSTRIES LTD (2010) LPELR 639 (SC); ESUWOYE VS BOSERG & ORS; MADUKOLU VS NKEMDILIM (1962) NSCC 374 Section 241 (1) (a) of the 1999 Constitution as amended.
It was then urged on this Court to dismiss the preliminary objection.
Now the provisions of Sections 241 (1) and 242 of the Constitution of the Federal Republic of Nigeria 1999 as amended have clearly set out when appeals will be presented either as of right or with leave respectively of the Federal High Court, State High Court or the Court of Appeal as the case may be and this connotes that the right to appeal is statutory.
In the instant case, the 1st Respondent has hinged the preliminary objection on the provision of Section 241 (1)(b) of the 1999 Constitution and supported the stance with the case of ORAKOSIM & 2 ORS VS MENKITI supra.
The Appellant on the other hand had relied on Section 241 (1) (a) of the said constitution as well as a number of authorities to assert that this appeal is against the final judgment of the Federal High Court and as such the appeal is as of right, moreso that the said appeal was filed within the specified period allowed by statute.
Now Section 241 (1) (a) and (b) of the 1999 Constitution as amended provides thus:-
An appeal shall lie from the decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases:-
a. Final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance.
b. Where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings.”
To my mind, the above set out provisions is as clear as crystal and devoid of any ambiguity. Any party aggrieved with the final decisions of the Federal High Court or a High Court can appeal as of right to the Court of Appeal without much ado about examination or scrutiny whether such grounds of appeal borders on law or fact or mixed law and fact so long as it is a final decision of the aforestated Courts automatic right of appeal without any fuss about leave to appeal enures in favour of such Appellant courtesy of Section 241 (1) (a) of our grundnorm, the Constitution of the Federal Republic of Nigeria 1999 as amended. The only caveat is that such decision must be that of the relevant Court sitting at first instance and not on its appellate jurisdiction. See the case of STATE VS METSEAGHARUN (2017) LPELR 43554 (CA) where this Court held inter alia at pages 10 to 12 as follows:-
A calm appraisal of the above set out Sections discloses that while Section 241 (1)(a) allows for an absolute right of appeal against the final decisions of the Federal High Court, Section 241 1 (b) allows an Appellant to appeal to the Court of Appeal as of right on grounds of law on any decision of the lower Court (civil or criminal). But where the decision appealed against under the provision is interlocutory, the ground of appeal must be one of law before the Appellant can appeal as of right otherwise, leave of the lower Court or Court of Appeal must be sought and obtained under Section 242 (1).
In other words, appeals against interlocutory decisions must be with the leave of Court except it is on grounds of law. See NWADIKE VS IBEKWE (1987) 4 NWLR (PT 67) 718; TOTAL INTERNATIONAL LTD VS AWOGBORO (1994) 4 NWLR (PT 337) 100.
See also GLOBALWEST VESSEL SPECIALIST (NIG) LTD VS NIGERIA NLG LTD (2017) LPELR 41987 (SC).
To put it in clear terms, Section 241 (1) (b) of the 1999 Constitution applies to Appellate or interlocutory decisions of the Federal High Court of a High Court in which case appeal is also as of right if the grounds of appeal involve question of law alone.
In the instant case and as rightly submitted by learned counsel for the Appellant, the appeal is against the final decision of the Federal High Court delivered on the 1st day of December 2011 and as such does not require leave of the lower Court or this Court to appeal on any of the grounds contrary to the argument presented by the 1st Respondent.
Consequently, the preliminary objection is overruled and it is accordingly dismissed.
SUBSTANTIVE APPEAL
As earlier stated, the Appellant formulated two issues for determination in her brief of argument and the same goes with the 1st Respondent. The 2nd Respondent did not file any brief of argument. Given the similarities in the two issues raised by the parties, I will adopt those as formulated in the Appellant?s brief of argument in the consideration of this appeal.
ISSUE ONE
Herein, learned counsel for the Appellant submitted that the learned trial Judge erred in law when he held that 1st Respondent has been able to show by evidence that he was not given a fair hearing, given the facts and evidence as led at the trial.
Reference was then made to some part of the evidence adduced at the trial Court to submit that the Appellant not only gave the 1st Respondent a hearing, but a fair hearing, before the appellant took the decision to retire the 1st Respondent. He added that the 1st Respondent was not only given a fair hearing but he made use of the opportunities afforded him to state his own side of the case and defend himself based on the allegation against him.
Further referring to the finding of the learned trial Judge at pages 24 to 25 of the Record of proceedings, it was contended that the Appellant was able to prove that the 1st Respondent was formally invited to its meeting on 19/2/04 and it is immaterial that the invitation was by phone call, moreso that it was not made an issue at the trial.
Also referring to the case of ALAMONA VS BIDA (2000) 8 NWLR 186 at 187, it was submitted that fair hearing means no more than the opportunity to be heard and once the person is offered that opportunity, it is left for him as to the manner he proposes to exercise such right to fair hearing.
It was then urged on this Court to resolve the issue in favour of the Appellant.
ISSUE 2
Dwelling on this issue, learned counsel for the Appellant submitted that it was wrong for the learned trial Judge to hold that the 1st Respondent’s employment was with statutory flavour and that he has led evidence sufficient enough to clothe him with the reliefs sought, when no material was placed before the Court to that effect. Vide. UNOKA VS AGILI (2007) 43 WRN 93, and BUSARI VS EDO STATE CIVIL SERVICE COMMISSION (1999) 5 NWLR (PT 599) 377.
It was further argued that the 1st Respondent did not show by evidence that his employment was with statutory flavour and the learned trial Judge only reached that conclusion by reference to Exhibit ?I? which is the letter of appointment as a Senior Magistrate Grade 1.
In further contending that the fact that an employer is a statutory body does not mean that the conditions of service of its employee must be presumed to be coated with statutory flavour. He cited the following cases:- NRMAFC VS JOHNSON (2007) vol.49 WRN 123 at 175 and CBN VS ARCHIBONG (2011) 10 NWLR (PT 721) 492.
He added that the 1st Respondent failed to place before the Court his condition of service or terms of employment, and also failed to lead evidence to show the manner in which the terms and conditions were breached.
He cited the case of IBAMA VS SPAC LTD (2006) VOL 7 WRN 160 at 199 and AMODU VS AMODE (1990) 5 NWLR (PT 150) 356 at 370.
Learned counsel further submitted that argument of counsel no matter how brilliant cannot take the place of evidence not led at the trial and parties are expected to prove their case conclusively by evidence led in Court. He relied on the following cases: UTC VS NWOKORUKU (1993) 3 NWLR (PT 281) 295; ALAO VS AKANO (2005) LRCN 837 at 854; ADENIJI VS ADENIJI (1972) 4 SC 10; SKYE BANK PLC VS AKINPELU (2010) 19 WRN 92; BUKOYE VS ACTION CONGRESS (2009) 36 WRN 76.
This Court was then urged to resolve the issue in favour of the Appellant and allow the Appeal.
In his reply as per issue 1, learned counsel for the 1st Respondent submitted that he was not afforded any fair hearing by the Appellant before it took the decision to retire him compulsorily from service on the basis of an unproven allegation of inducement or bribe and this action amounts to a breach of Section 36 (1) of the 1999 Constitution.
He added that the assertion by the Appellant’s counsel that the 1st Respondent appeared before it on invitation via letter dated 6/11/2003 to defend himself is incorrect and the letter in question admitted as Exhibit ‘L’ did not emanate from the Appellant also that there is nothing in the letter to pass for an invitation to the 1st Respondent to appear before it to defend himself. Furthermore that the said letter was sent to the 1st Respondent by the Chief Judge of Edo State drawing his attention to a publication in TELL weekly magazine story about allegation of bribery by tribunal members in Akwa Ibom State. He added that the 1st Respondent via Exhibit ‘M’ responded to Exhibit ?L? and gave details of what transpired, therein denying any allegation of bribery as contained in the TELL magazine. Learned counsel further drew attention to the distinction between the office of the Chief Judge of Edo State and the Chairman of the Appellant as statutorily provided in which case his function as the Administrative head of the Judiciary in Edo State is separate from his function and duties as the Chairman of the Judicial Service Commission (Appellant) which administrative head is the Secretary to the Commission.
It was also submitted that the 1st Respondent is not a judicial officer and therefore not subject to the authority of the 2nd Respondent but to the Appellant with laid down rules and regulations as to the manner of appointment and discipline of officers of the lower bench which must conform with civil service Rules. In this regard, it was contended that Exhibit ‘M’ cannot be regarded as a response by 1st Respondent to the Appellant as Exhibit ‘L’ emanated from the office of the Chief Judge of Edo State and not Chairman of the Appellant. In this regard, the difference in the letter heading of Exhibit ‘L’ and Exhibit N was said to have shown that the two offices are not the same. Learned counsel further referred to Exhibit ‘N’ to state that it was only meant to convey to the 1st Respondent the findings made by the investigation committee of the 2nd Respondent counsel and not to invite him to offer any explanation on what transpired.
He added that it was therefore misleading and incorrect for the Appellant’s counsel to assert that the 1st Respondent responded to Exhibit ‘N’ by writing a 13 page reply when infact Exhibit ‘M’ predated Exhibit ‘N’ and any subsequent interaction with the Appellant.
Learned counsel also submitted that from the content of Exhibit P the Appellant merely adopted the report of the investigation committee of the 2nd Respondent and implemented same against the 1st Respondent who is not an employee of the 2nd Respondent. Further, that the Appellant who is the employer of the 1st Respondent did not present any charge or formal accusation of wrong doing against him to enable him offer any defence on explanation thereto and this constitutes clear denial of fair hearing to the 1st Respondent. On the conditions to be fulfilled to justify a fair hearing, he cited the case of ALHAJI ABDULAHI BABA VS NIGERIA CIVIL AVIATION & ANOR (1991) LPELR 692 (SC).
It was also contended that, given the contents of Exhibits ‘N’, ‘O’ and ‘P’, it is very clear that the 1st Respondent was not given the opportunity to be heard or defend himself before the Appellant even though he appeared before it. He cited the case of OSUMAH VS EBS (2004) 17 NWLR (PT 902) 332 and OLATUNBOSUN VS NISER (1988) 3 NWLR (PT 80) 25 at 48 – 49 which facts are said to be in all fours with the 1st Respondent’s case as he was not afforded any fair hearing by the Appellant before he was retired from service compulsorily.
On issue 2, learned counsel for the 1st Respondent referred to paragraph 17 of the statement of claim to submit that he specifically pleaded that his appointment is with statutory flavour and proceeded to give evidence of that in the Court. He added that this fact was not traversed or denied by the Appellant in her amended statement of defence and this amounts to admission of facts which needs no further proof. The following cases were cited in support: SALAWU VS YUSUF (2007) ALL FWLR (PT 384) 230; TAIWO VS ADEGBORO (2011) ALL FWLR (PT 584) 52 at 67; OSUMAR VS JCM (NIG) LTD (2014) 6 NWLR (PT 1402) 17; ADEYE VS ADESANYA (2001) FWLR (PT 411847).
It was however contended that the 1st Respondent nonetheless adduced copious evidence in support of the fact pleaded in paragraph 17 of the statement by claim as shown in P110 of the Record of appeal and this is in addition to the tendering and admission in evidence, of his letters of appointment as Exhibits ‘I’ and ‘I1’
Furthermore, it was submitted that the learned trial Judge was right to have held that he would take Judicial notice of the 1st Respondent’s employment being coated with statutory flavour under Section 74 of the Evidence Act 2004 and the Appellant did not appeal against the finding.
This Court was then urged to resolve the two issues in favour of the 1st Respondent and dismiss the Appeal.
In the Appellant’s reply brief of argument filed on 9/5/2018 and deemed properly filed on the same date. The arguments therein in response to the issues canvassed in the 1st Respondent’s brief of argument spans from page 8 to 14 of the said reply brief of argument. The points raised therein shall be addressed in the course of this judgment as the need arises.
I have given due consideration to the arguments proffered by the parties in support of the issues raised for determination. I have also carefully perused the record of appeal with particular reference to the judgment of the lower Court.
The Appellant’s grouse is that the learned trial Judge wrongly held that the 1st Respondent was not accorded fair hearing before he was compulsorily retired from service, when infact all the requirements of fair hearing were satisfied by the Appellant before it took the action.
For the 1st Respondent, his stance is that though initiated by the Appellant, no charge was laid against him to enable him respond accordingly and no witness was called to testify against him with regard to any charge, but that the Appellant simply relied on the report of the investigation committee set up by the 2nd Respondent to effect his compulsory retirement.
In Blacks Law Dictionary 9th Edition at page 789, fair hearing is defined as “A judicial or administrative hearing conducted in accordance with due process.”
The right of fair hearing entrenched in Section 36 of the Constitution of the Federal Republic of Nigeria 1999 as amended entails not only hearing a party on an issue which may or may not be resolved in his favour, but also ensuring that the hearing is fair and in accordance with the twin pillars of justice, to wit: audi alteram patem and nemojudex in causa sua. See ADENIYI VS GOVERNING COUNCIL OF YABA COLLEGE OF TECHNOLOGY ( 1993 – 1994) ALL NLR page 1.
Contemplated in fair hearing is the right to present evidence, to cross examination and to have findings supported by evidence. This implies that both sides be given an opportunity to present their respective case and that each side is entitled to know what case is being made against it and given the opportunity to respond thereto. See NDUKAUBA VS KOLOMO & ORS (2005) 1 SCM 114 and GODWIN CHUKWUMA (a.k.a Goddy) VS the FEDERAL REPUBLIC OF NIGERIA (2011) 5 SC (PT 11) 84.
However, where a party to a matter has been given the opportunity to be heard but failed or neglected or refused to utilise same, he cannot later be heard to complain of lack of fair hearing. See NJIDEKA EZEKIWE & ORS VS CHIEF SIR BENSON CHUKS (2010) 2 SC (PT 1 ) 2.
The issue whether the 1st Respondent was denied fair hearing in the whole transaction leading to his compulsory retirement was exhaustively addressed by the learned trial Judge where in the judgment held at pages 196 to 200 line 5 of the Record as follows:-
‘Taking on face value, the requirement of fair hearing would seem to have been complied with taking into consideration the facts, not even denied by the plaintiff that he had prior knowledge of the allegation against him from the contents of Exhibit ‘L’ and that he was present during the meeting of the Edo State Judicial Service Commission on 19/2/2004 when the matter as it concerned him was deliberated upon.
However, going painstakingly through those exhibits, some points came to light on the issue of fair hearing.
The last paragraph at page 3 of Exhibit ?N? is highly instructive and as such, I shall reproduce same verbatim. It goes thus:
‘The report has clearly indicted your worship and the stated judicial Officers of accepting bribe. The findings and recommendations made against the four (4) Judicial Officers have been duly accepted by the National Judicial Council. I am aware that the recommendations for the removal of the affected Judicial Officers from office are being implemented.
I shall table before the Judicial Service Commission this Report of the said Committee of the National Judicial Council as it affects your Worship at its meeting scheduled for Thursday 19th February, 2004. The decision of the Commission will be duly conveyed to your Worship please.”
Further, Exhibit ‘O’ in reference to the resolution of the Judicial Service Commission after the meeting of 19/2/2004 stated as follows and I quote:
“After due consideration of the 80 paged report of the National Judicial Council?s Investigating Committee referred by the Chief Justice and Chairman of the National Judicial Council to the State Judicial Service Commission and after listening to Mr. Isede at the meeting, it was decided that in the interest of the Service, Mr Isede be compulsorily retired with effect from 1st March, 2004.”
As of normal sequence, the Exhibit ‘O’ came after Exhibit ‘P’. Now what do we have at paragraphs 2.2 and 2.4 of Exhibit -P the contents of the two paragraphs go thus:
Paragraph 2.2 from line 18 at page 2 of Exhibit ‘P’:-
The commission also noted that the Edo State Judicial Service Commission could neither sit as an Appellate body over a body higher than it, nor re-open the investigation afresh?.
At paragraph 2.4, the minutes continues as follows:-
‘The Chairman informed him that he has been invited to appear before the Commission as a result of the letter written to him earlier. She further appraised him that the report about him from Abuja was very bad and that the situation was such that the Judicial Commission could not re-investigate it’.
There is only one deduction that can be made from the afore-reproduced portions of EXHIBITS ‘N’, ‘O’ and ‘P’ and that is, that the 1st Defendant did not carry out investigation of its own but rather relied on the outcome of the findings and recommendation of the investigation panel set up by the 2nd Defendant. If we cast our mind back, it will be noted that in dealing with issue 1 as raised by this Court, I did hold that the composition of the investigation panel set up by the 2nd Defendant is unconstitutional by virtue of the proviso to paragraph 20 of PART 1 of the THIRD SCHEDULE to the 1999 Constitution of the Federal Republic of Nigeria.
Furthermore, the 2nd Defendant has no control over the plaintiff since he is not a judicial officer. As a Chief Magistrate Grade 1 only the Judicial Service Commission had the powers by virtue of paragraph 6, PART 11 of the THIRD SCHEDULE to the 1999 Constitution to appoint, dismiss and exercise disciplinary control over the plaintiff. You cannot put something on nothing and expect it to stand. The position would have been different if on receipt of EXHIBIT ‘A’ with particular reference to paragraph 8B of page 78 by which the conclusions and findings were forwarded to the Judicial Service commission, Edo State for necessary action, the said commission had followed the footsteps of the investigation panel of the 2nd Defendant by just as was done in EXHIBIT ‘B’ formally invite the plaintiff to face a panel of the 1st Defendant (not by phone call as in the instant case) make him face his accusers, examine and cross-examine them where necessary and be afforded the opportunity of a counsel if he so desired.
I do not think that the fact that the plaintiff had interaction with the 1st Defendant and pleaded for the lesser of two options really meant an admission as canvassed by learned counsel for the Defendant.
In my view, the plaintiff was confronted with a fait-accompli and believed his fate had been sealed and can there and then only make such a plea.”
The above set out portion of the judgment of the trial Court was deliberately reproduced in extenso to bring to the fore the painstaking approach adopted by the learned trial Judge to justify his reasoning and conclusion and I am not reluctant to endorse same as a proper and rational finding of facts.
Indeed prima facie, it is quite tempting to quickly agree with the submission of the learned counsel for the Appellant that given the undeniable fact that the 1st respondent was invited to the meeting of the Appellant and given the opportunity to be heard before he was retired compulsorily.
However, a perusal of the relevant documents tendered and admitted as exhibits, particularly Exhibits ‘A’, ‘L’, ‘N’, ‘O’ and ‘P’, one wonders askance at the propriety of the assertion that the principle of fair hearing was adhered to with regard to the case of the 1st Respondent.
Dealing first with the 2nd Respondent, It is not in doubt that constitutionally and statutorily speaking, the National Judicial Council (NJC) that is the 2nd Respondent has no business whatsoever with the appointment, discipline, termination or retirement of the 1st Respondent. The functions and duties of the said 2nd Respondent are as contained in Part 11 of the Third Schedule of the 1999 Constitution as amended.
Paragraphs (21)(b) (d) and (g) thereof are relevant for this discourse and these are herein below set out:-
b. Recommend to the President the removal from office of the Judicial Officer specified in Sub-paragraph (a) of this paragraph and to exercise disciplinary control over such officers.
d. Recommend to the Governors the removal from the office of the Judicial Officers in Sub-paragraph (c) of this paragraph, and to exercise disciplinary control over such officers.
g. Appoint, dismiss and exercise disciplinary control over members and staff of the council.
From the above set out paragraphs, the National Judicial Council can only exercise disciplinary control over Justices of the Supreme Court and Court of Appeal as well as Judges of the Federal, FCT and State High Courts, Customary Courts of Appeal and Grand Khadis and Khadis of the Sharia Court of Appeal. The next cadre of person it can exercise power of appointment, dismissal and any disciplinary control are the members of staff of the council. It has no control whatsoever on the Chief Registrar, Deputy Chief Registrar, Magistrates and other members of staff of the State Judiciary. This is the responsibility of the Judicial Service Commission of the various states of Nigeria.
Hence it is provided in Part II of the 3rd Schedule to the 1999 Constitution particularly in paragraph 6 (b) and (c) as follows:-
6. The Commission shall have power to:-
b). Subject to the provisions of this Constitution, to recommend to the National Judicial Council the removal from the office of the Judicial Officers specified in subparagraph (a) of this paragraph; and
c). To appoint, dismiss and exercise disciplinary control over the Chief Registrar and Deputy Chief Registrar of the High Court, The Chief Registrars of the Sharia Court of Appeal and Customary Court of Appeal, Magistrates, Judges and members of Customary Courts and all other members of the staff of the Judicial Service of the state not otherwise specified in this Constitution.”
The 2nd Respondent duly acknowledged the limits of its powers with regard to the 1st Respondent who is a Chief Magistrate hence in the Report of the Investigation committee set up by the 2nd Respondent and subsequently approved and a copy forwarded to the Chief Judge of Edo State, it was stated in paragraph 8 (b) as follows:-
b). Chief Magistrate James O. Isede of Edo State Judiciary, not being a Judicial Officer within the meaning of the Constitution of the Federal Republic of Nigeria, Council is advised to forward to the Judicial Service Commission of Edo State, the conclusions and findings set out above for necessary action.”
The learned trial Judge in the judgment at page 190 of the Record of appeal addressed the issue wherein he held as follows:-
‘The question arises is, whether the plaintiff is a judicial Officer’. The short answer is No. That much is clear going by the provision of Section 318 of the 1999 Constitution of the Federal Republic of Nigeria. It is common ground and this was not contested by any of the Defendants that before the Plaintiff’s appointment as a member of the Akwa-Ibom State Governorship and Legislative Houses of Assembly Election Petition Tribunal, he was a Chief Magistrate 1 and thus not a judicial Officer. It follows that he is not under the control of the 2nd Defendant.
The PW1 who is Secretary to the Defendant said that much in his evidence when he stated that the 2nd Defendant does not deal with the lower cadre of the judiciary both in terms of appointment and discipline. I therefore, hereby hold that both in composition and the exercise of the powers of discipline over the plaintiff, the 2nd Defendant acted unconstitutionally. The purpose of the elaborate discussion on this issue shall soon come to light in the course of this judgment.”
In the light of the above clear cut conclusion that the 2nd Respondent lacks the constitutional or administrative power to appoint, promote or discipline the 1st Respondent, it follows that the Appellant is not under any constitutional or statutory obligation to work with the instruction or directive of the 2nd Respondent on matters relating to the discipline and albeit retirement of the 1st Respondent. The much it can do is to apply Exhibit ‘A’ (the Report of the NJC investigation committee) as a guide in its own investigation with regard to what information it received pertaining to the 1st Respondent who was sent on an assignment to the Akwa-Ibom state as a member of the election Tribunal.
It must also be emphasised that while the Chief Judge may be answerable to the 2nd Respondent in certain aspects relating to his office. He is not in any way answerable to the 2nd Respondent in his constitutionally assigned position as the Chairman of the State Judicial Service Commission (Appellant) which is a creation of the Constitution with its own powers, rules and regulations independent of the 2nd Respondent.
Consequently, it is an aberration and anomaly for the Appellant to rely on Exhibit ‘A’, the report of the investigation committee of the 2nd Respondent to conclude that the 1st Respondent was guilty as charged without setting out any charge of its own against him and allow him to defend himself in a manner consistent with fair hearing as per Section 36 of the 1999 Constitution.
The Appellant’s counsel had argued strenuously that the 1st Respondent was invited to the meeting of the Appellant and was given opportunity to defend himself, in which case there is no breach of the rule of fair hearing.
However, a perusal of Exhibits N and O provides the answer without much ado.
Paragraph 1 of page 1 of the said Exhibit N from the Chief Judge to the 1st Respondent and dated 10/2/2004 reads thus:-
“You will recall that the National Judicial Council set up a powerful committee comprising of its members to investigate the allegation of bribery against the Chairman and other members of the above named Election Tribunal of which you were a member. All the members of the Tribunal testified before the committee and it has concluded investigation. A copy of the committee’s report has been forwarded to me by the Hon. Chief Justice of Nigeria (CJN) for consideration and necessary action of the Edo State Judicial Service Commission. The conclusions reached and findings made by the committee as they are relevant to the case against your worship are reproduced below from the 80 paged Report….”
Concluding at page 3 of the said Exhibit ?N?, the Chief Judge stated thus:-
‘The Report has clearly indicted your Worship and the stated Judicial Officers of accepting bribe. The findings and recommendations made against the four (4) Judicial officers have been accepted by the National Judicial Council. I am aware that the recommendations for the removal of the affected judicial officers are being implemented. I shall table before the Judicial Service Commission this report of the said committee of the National Judicial Council as it affects your worship at its meeting scheduled for Thursday 19th February 2004. The decision of the commission will be duly conveyed to your worship please.”
From the above set out portions of Exhibit ‘N’, it is not in doubt that whatever subsequent action to be taken by the Appellant will be based and dependent on Exhibit ‘A’ (the report of the Committee set up by the 2nd Respondent without any effort by the Appellant of follow due process as required by the rule of National Justice given its own constitutionally independent set up.
Hence in Exhibit O (minutes of the meeting of the Appellant) held on 19/2/2004 to which the 1st Respondent was invited. The relevant portions of the said minute reads thus:-
Paragraph 2.1
‘The Chairman then pointed out that the Edo State Judicial Service Commission under which Mr. Isede was serving was at liberty to adopt the National Judicial Council?s position as it affected the other four Judges.
Paragraph 2.2
‘The Commission noted that a very powerful body had already investigated this matter and made its recommendations to the National Judicial Council in respect of the four judicial officers which recommendation had been accepted. It further observed that the committee did not deal with Mr. O. J. Isede’s case because he was not a judicial officer and therefore not its staff. The Commission also noted that Edo State Judicial Service Commission could neither sit as an appellate body over a body higher than it, nor re open the investigation afresh.”
(Underlining for emphasis).
Paragraph 2.4
The Chairman informed him that he had been invited to appear before the Commission as a result of the letter written to him earlier. She further advised him that the report about him from Abuja was very bad and that the situation was such that the Judicial Service Commission could not re-investigate it.
Paragraph 2.5
In his response, Mr O. J. Isede said that he did not want to question the recommendation of the National Judicial Council contained in the letter written to him. He said he was aware that the body (Judicial Service Commission) was not sitting as an appellate body and therefore could not challenge the allegations against him. He expressed his shock over the incident and remarked that much of the evidence could not stand before a regular Court. He said that he accepted what happened as his fate an d pleaded that his case should be looked into compassionately so as not to impose a very severe penalty to him.”
Paragraph 2.6
The Commission therefore agreed that Mr. O.J. Isede be removed from the service of the Edo State Judiciary. Accordingly he should on compassionate grounds be retired compulsorily from the service. It was also agreed that the Chief Justice of Nigeria and Chairman of the National Judicial Council be informed that Mr. O.J. Isede has been removed from the service.”
I have deliberately reproduced this much of the minutes of the meeting of the Appellant where the decision to retire the 1st Respondent compulsorily was taken.
What is glaring and indisputable is that the retirement of the 1st Respondent was based on nothing more than the report of the investigating committee of the 2nd Respondent, and which report, according to Exhibit O, the Appellant do not dare to sit on appeal being a very powerful and much superior body to the Appellant.
Much as I do not challenge the due reverence given to the 2nd Respondent, albeit the report of the committee. I must however add that such reverence must not becloud the primary responsibility of the Appellant as an independent constitutional body to ensure that the fundamental right of the 1st Respondent to a fair hearing is not breached in the bid to accede to or abide by the report of another body or institution which has no control whatsoever over the affairs of the 1st Respondent.
As was held by the Supreme Court in the case of THE COUNCIL OF FEDERAL POLYTECHNIC MUBI VS T.C.M. YUSUF & ANOR (1998) LPELR 3168 (SC) at page 10.
In all trials, whether judicial or administrative, the person against whom a complaint is laid must be heard in compliance with the principle of audi alteram patem. This is the crux of Section 33 of the Constitution of the Federal Republic of Nigeria, 1979 and always reflected in statutes where persons could be put on trial or investigated with possible consequence of reprimand and or punishment. For every accusation, there must be a right to be heard.?
See also BAKARE VS LAGOS STATE CIVIL SERVICE COMMISSION & ANOR (1992) 10 SCNJ 173. In GENERAL ELECTRIC COMPANY VS HARRY AKANDE & ORS (2012) 3 SC (PT IV) 74. It was held that the right to fair hearing enshrined in Section 36 of the Constitution entails not only hearing a party on an issue which may or may not be resolved on his favour, but also ensuring that the hearing is fair and in accordance with the twin pillars of justice to wit: audi alteram partem and nemojudex in causa sua.
Furthermore in the case of FEDERAL POLYTECHNIC EDE & ORS VS ALHAJI LUKMAN ADEMOLA OYEBANJI (2012) LPELR 19696 (CA), this Court in analysing the constituents of fair hearing held at page 53 to 54 of the report that:-
‘In order to be fair therefore, ‘hearing’ or ‘opportunity to be heard’ in a judicial inquiry must encompass a party’s right:
a) To be present all through the proceedings to hear all the evidence against him/her.
b) To cross examine or otherwise confront or contradict all the witnesses that testified against him;
c) To read before him all the documents tendered in evidence at the hearing;
d) To have disclosed to him the nature of all relevant material evidence including documentary evidence, prejudicial to him, except in recognised exceptions;
e) To know the case he has to meet at the hearing and have adequate opportunity to prepare for his defence;
f) To give evidence by himself, call witnesses if he likes, and make oral submission either personally or through counsel of his choice.
See NWANEGBO VS OLUWOLE (2001) 37 WRN 101; DAWODU VS NPC (2000) 6 WRN 116; DURWODE VS THE STATE (2001) 7 WRN 50.”
In the instant case, though the 1st Respondent was invited to the meeting of the Appellant which held on 19/2/2004, albeit through phone call, it is clear from Exhibit ‘O’ that his presence on that date at the meeting was not to be appraised with any charge or evidence to enable him cross examine the witnesses or even present his own case in defence but he was to all intents and purposes presented with a fait accompli to which he had no choice than to plead for mercy in the circumstance as per paragraph 2.5 of Exhibit ‘O’.
This also reflected in the 1st Respondents evidence in chief wherein he testified thus at page 112 of the Record:-
‘On 19/2/2004, the Chief Judge called me on phone and asked me to come to the conference hall of the High Court complex where the Judicial Service Commission was meeting. On seeing the Chief Judge, she told me that they have considered the report of the National Judicial Council, that it indicted me. She now asked if I had anything to say. I told her I was shocked that I was indicted and further that there is nothing to say. She told me that I should go as she cannot continue to keep me in service. I told her to consider the lesser of two options (1) retirement and is dismissal.”
This unfortunate situation was aptly addressed by the learned trial Judge who also rightly concluded at page 200 of the Record that:-
‘I do not think that the fact that the plaintiff had interaction with 1st defendant and pleaded for the lesser of the two options really meant an admission as canvassed by learned counsel for the Defendant. In my view, the plaintiff was confronted with a fait accompli and believed his fate has been sealed and can there and then only make such a plea.”
I indeed endorse the view as held above by the learned trial Judge as the correct and only rational conclusion to be drawn in the circumstance.
Therefore the only deduction that can be made from the earlier set out portions of Exhibit ‘N’, ‘O’ and ‘P’ and as rightly held by the learned trial Judge and also earlier addressed by this Court is that the Appellant did not carry out any investigation of its own but rather relied on the outcome of the findings and recommendations of the investigation committee of the 2nd Respondent (which has no authority over the 1st Respondent) to find him liable to a non existing charge and sentenced him to compulsory retirement without doing the needful. I therefore hold in the circumstance that the 1st Respondent was denied fair hearing by the Appellant.
This issue is therefore resolved against the Appellant.
ISSUE 2, that is whether putting together all the circumstances of this case, the learned trial Judge was right in holding that the 1st Respondent was a statutory employee and that he has proved his case to entitle him to any of the reliefs sought.
The contention of the Appellant on this issue is that the learned trial Judge erred in law to have held that the employment of the 1st Respondent is coated with statutory flavour having regard to the evidence adduced before Court, when infact no materials were placed before the Court to that effect such as the condition of service or terms of employment, or any civil service rule and how same was breached.
On the other hand, the 1st Respondent’s reaction is a reference to paragraph 17 of the statement of claim where it was specifically pleaded that the 1st Respondent’s appointment enjoys statutory flavour and this the Appellant admitted in paragraph 1 of the amended statement of defence. Therefore what is admitted needs no further proof.
Furthermore, that apart from the pleading, the 1st Respondent also gave copious evidence in support of the fact pleaded as shown in page 110 of the Record of appeal and tendered Exhibits ‘I’ and ‘I1’ in support. Added to that also is the holding of the learned trial Judge that he could take judicial notice of the 1st Respondent’s employment as one with statutory flavour under Section 74 of the Evidence Act Law of the Federation 2004 and the Appellant did not appeal against it.
To my mind, a veritable road map to a proper resolution of the issue in contention inhers in the classic decision of the Supreme Court in the case of BASHIR ALADE SHITTA-BEY VS THE FEDERAL PUBLIC SERVICE COMMISSION (1981)1 SC 26 where their Lordships per Idigbe JSC (now of blessed memory) at pages 35 – 36 expounded on the frontiers on employments with statutory flavour as follows:-
The Civil Service Rules of the Federal Public Service govern conditions of service of Federal Public Servants and they are made pursuant to the powers conferred on the Respondent by virtue of the constitutional provisions in the 1963 Constitution; and the Rules relevant to these proceedings were made in 1974, pursuant to the provisions of Section 160 (1) of the 1963 Constitution, Act No 20 of 1963. These Rules therefore, in my view, have constitutional force and they invest the public servant over whom they prevail, a legal status: a status which makes his relationship with the Respondent and government although one of master and servant certainly beyond the ordinary master and servant relationship. Under these Rules (i.e. the 1974 Rules which as I already pointed out, have statutory force and, therefore, ought to be ‘judicially noticed’).”
The deduction to be made from the above set out decision of the Apex Court is that an employee of government or any of its agency or institution created by statute shall, except it is otherwise specifically stated, enjoy statutory protection given that such institutions and departments of government makes rules and regulations pursuant to the statute creating them and these include terms and conditions of employment for its employees.
Thus given the statutory nature of their existence and the Rules so made, such rules ought therefore to be judicially noticed.
Consequently, such employees enjoy what is referred to as employment with statutory flavour and the only way to terminate such employment with statutory flavour is to adhere strictly to the procedure laid down in the statute or the Rules made pursuant thereto.
See also the case of OKOCHA VS CIVIL SERVICE COMMISSION OF EDO STATE (2004) 3 NWLR (PT 861) 494. Where the issue in contention was whether the Civil Service Rules vest public servants a legal status and whether they cannot be properly removed until the Rules are strictly complied with. Therein applying and relying on the case ofSHITTA-BEY supra it was held that the Civil Service Rule invest in public servants of Edo State a legal status and they cannot be properly removed until the said Rules are strictly complied with.
In CHIEF TAMUNOEMI IDONIBOYE-OBU VS NNPC (2003) 2 SCM 103, the Supreme Court held that an employment is said to have a statutory flavour if the employment is directly governed or regulated by a statute or a section or sections of the statute delegates power to an authority or body to make regulations or conditions of service as the case may be.
In other words, those whose appointment are governed by conditions within a statute are those who can claim that their appointment and conditions of service are with statutory flavour. See also FAKUADE VS OBAFEMI AWOLOWO UNIVERSITY TEACHING HOSPITAL COMPLEX MANAGEMENT BOARD (1993) 6 SCNJ 35; KUNLE OSISANYA VS AFRIBANK NIGERIA PLC (2007) 2 SCNJ 71.
In the instant case, the 1st Respondent pleaded in paragraphs 1(a), 1(b), 2 and 17 of the statement of claim as follows:-
1(a). The plaintiff was employed as a State Counsel in the Ministry of Justice, Edo State in 1984 and due to diligent and meritorious service, he was promoted to the rank of Senior State Counsel before he voluntarily transferred his service to the Judicial Service Commission, Edo State on 6/1/92 whereupon he was employed as a Magistrate in Edo State.
1(b). The plaintiff further states that he was promoted till he eventually became a Chief Magistrate Grade 1. The various letters of employment, confirmation and promotion, shall be founded upon at the hearing.
2. The 1st Defendant is a statutory body responsible for the employment, promotion, retirement and/or dismissal of any judicial officer appointed in the service of Edo State judiciary. The 1st defendant duly employed the plaintiff and eventually purported to retire him.
17. The plaintiff states that he had not attained the age of retirement under and by virtue of the rules governing his employment which has a statutory flavour.
At the trial, the 1st Respondent testified as PW2 and in the course of his testimony he tendered a number of documents including his letter of appointment as a State Counsel, Exhibit E, letter of confirmation of appointment dated 14/5/1987, Exhibit ?F?; letter of promotion as a Senior Magistrate dated 20/10/88; Exhibit G; letter of promotion to the rank of Chief Magistrate, in Exhibit ?J? and letters of appointment as a Senior Magistrate dated 23/2/91 and 6/1/92 respectively as Exhibit (I ? II). He further gave evidence as contained in page 110 of the Record as follows:-
‘As a Chief Magistrate on the employment of 1st Defendant, I was not at the control of the 2nd Defendant.
As at the time I was purportedly retired, I had not attained the age of retirement and by virtue of the Rules governing my appointment, I have statutory flavour. (I was then 48 years) and had put in 19 years in service.? (Underlining for emphasis).
In the light of the various documents tendered by the 1st Respondent in support of his evidence in Court and oral testimony above set out, I then wonder askance at what other evidence is expected of him to show or justify his claim that his employment is coated with statutory flavour.
For instance, Exhibit ?E?, the letter of probationary appointment was issued by the Civil Service Commission of Bendel State and dated 5/11/84. In paragraph 4, it was stated thus:-
4. Your appointment will take effect from the date on which you assume duty and will be subject to the terms and conditions laid down for the Civil Service of the Bendel State of Nigeria and to the Civil Service Rules and other Regulations in force for the time being. The appointment may be terminated by a month’s notice or by the payment of a month’s salary in lieu of notice.”
Exhibit ‘F’ is the letter of confirmation of appointment and reads thus:-
CONFIRMATION OF APPOINTMENT
1. I am directed to inform you that the Civil Service Commission has approved the confirmation of your appointment with effect from 2nd January 1987.
2. Necessary gazette action is being taken by the Civil Service Commission, please.
SIGNED
Exhibit J is a letter of promotion signed by the secretary to the Judicial Service Commission and dated 4/6/1999 wherein the 1st Respondent was promoted to the rank of Chief Magistrate Grade 1 with effect from 2nd January, 1999.
Either way, the Civil Service Commission and Judicial Service Commission of Edo State are creations of statues with Rules and Regulations.
To my mind therefore and contrary to the stance of the Appellant, the 1st Respondent adduced enough evidence to show that his employment is coated with statutory flavour.
The learned trial Judge was also right to have relied on Section 74 of the Evidence Act in taking Judicial Notice of that fact given the pronouncement of the Supreme Court in that regard as in the case of SHITTA-BEY VS THE FEDERAL PUBLIC SERVICE COMMISSION supra.
The question of a Court not being allowed to make a case for a party or that the Court cannot have recourse to the said provision in the absence of the 1st Respondent?s specific pleadings in that regard, as argued in the Appellant?s reply brief does not arise.
The said provision of Section 74 of the Evidence Act LFN 2004 is very clear to the effect that the Court shall take judicial notice of certain facts and this includes, all laws or enactments and any subsidiary legislation made thereunder, etc. As held in the case of SHITTA-BEY VS THE FEDERAL PUBLIC SERVICE COMMISSION supra, the civil service Rules which govern condition of service of public servants are made pursuant to the powers conferred on the Civil Service Commission whether Federal or State by virtue of the relevant constitutional provisions and this also applies to the Appellant.
This issue is also resolved against the Appellant.
On the whole, this appeal is found to be lacking in merit and it is hereby dismissed.
The judgment of the Federal High Court delivered by M.I. Awokulehin J. On the 1st day of December 2011 is hereby affirmed.
I make no order as to costs.
HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have read the erudite judgment of my learned brother SAMUEL CHUKWUDUMEBI OSEJI JCA and I am of the humble view that this appeal has absolutely no merit and should be dismissed. I read the equally painstaking and brilliant judgment of hon. Justice M. I. Awokuleyin J. on the intricate and interesting points of law thrown up by the case and the appeal.
The 1st Respondent had been implicated in bribery allegations following a report of an investigative panel set up by the 2nd Respondent. The 2nd Respondent having no Constitutional authority over the 1st Respondent, made a report to the Appellant which then considered the report of the 2nd Respondent’s Investigative Committee as its proof of the guilt of the 1st Respondent. The Appellant thereafter invited the 1st Respondent to face a Disciplinary Committee of its own where a perfunctory gesture of hearing the 1st Respondent was made. However, the Report by the Appellant’s Committee shows clearly that only lip service was paid to the fundamental issue of fair hearing at its end. In fact, the Appellant in its report stated thus:
“The commission also noted that Edo State Judicial Service Commission could neither sit as an appellate body over a body higher than it, nor re-open the investigation afresh.”
It is clear that the Appellant merely went through the motions but did not actually feel they could hear the side of the 1st Respondent. I agree intoto that the Appellant did not give the 1st Respondent fair hearing in this case and one of the pillars of our jurisprudence which is hear the other side Audi Alteram Partem was knocked down due to over anxiety that a superior authority’s decision could not be questioned or looked into. This unwillingness to perform in full as required by law their own Constitutional duty regarding the 1st Respondent has made their decision a nullity and it ought to be set aside and was rightly set aside. I too dismiss the appeal and make no order as to costs.
MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I read in draft form the judgment just delivered by my learned brother, Samuel Chukwudumebi Oseji, JCA.
I agree that this appeal lacks merit and, for the elaborate reasons given in the leading judgment, I also dismiss it.
There is no order as to costs.
Appearances:
THERESA I. EGHE-ABE MRS. (ASSISTANT DIRECTOR, MOJ) EDO STATE with HIM, I.O. KADIRI (SSC)For Appellant(s)
ENAHORO AGHOMO Esq., for the 1st Respondent.
H.E. AGHWANA Esq., for the 2nd Respondent.
For Respondent(s)
