JUSTICE OKWUCHUKWU OPENE v. NATIONAL JUDICIAL COUNCIL & ORS. (2011)

JUSTICE OKWUCHUKWU OPENE v. NATIONAL JUDICIAL COUNCIL & ORS.

(2011)LCN/4272(CA)

In The Court of Appeal of Nigeria

On Thursday, the 3rd day of February, 2011

CA/A/324/07

RATIO

PRELIMINARY OBJECTION :WHETHER A PRELIMINARY OBJECTION PROPERLY RAISED AND ALL OTHER MOTIONS MUST BE TAKEN AND DISPOSED OF FIRST, BEFORE THE FINAL JUDGMENT IN A PENDING SUIT

The law is settled that a preliminary objection properly raised and all other motions must be taken and disposed of first, before the final judgment in a pending suit. In OYEMA & ORS vs. EGBUCHULAM (1996) 5 NWLR (PT.448) 224 at 265, Kutigi JSC (as he then was) said:- The Court had a duty to make its decision on the preliminary objection known to the parties before proceeding to decide the appeal thereby giving opportunity to anyone not satisfied with its decision to appeal against same. In the instant case, the Court did not only fail to rule on the preliminary objection as to the competence of the appeal but proceeded suo motu to decide the appeal without hearing the parties.” See AHANEKU VS EKEUO (2002) 1 NWLR (PT.748) 301 at 309 paragraphs B-C, a decision of this Court. PER HON. JUSTICE PAUL ADAMU GALINJE, J.C.A.

STATUTORY PROVISION: PROVISION OF Order 17 Rule 5 of the Court of Appeal Rules 2007 AS IT RELATES TO DUTY IMPOSED ON AN APPELLANT IN FILING A REPLY BRIEF

Order 17 Rule 5 of the Court of Appeal Rules 2007 provides as follows:- “The Appellant may also, if necessary, within fourteen days of the service on him of the Respondent’s brief, file and serve or cause to be served on the Respondent a reply brief which shall deal with all new points arising from the Respondent’s brief.” (underlining is mine) PER HON. JUSTICE PAUL ADAMU GALINJE, J.C.A.

REPLY BRIEF: PURPOSE OF A REPLY BRIEF

Clearly, a reply brief deals with only new points arising from the Respondent’s brief, where a point was not raised in the Respondents brief, any argument canvassed in the reply brief on such point goes to no issue. In MOZIE VS MBAMALU (2006) 15 NWLR (Pt.1003) 466 at 496 paragraph G-H, Tobi JSC had this to say; “It is not my understanding of the law of brief writing that a reply brief seeks a different relief outside the main brief. A reply brief is filed when an issue of law or argument raised in the Respondent’s brief call for a reply. A reply brief should deal with only new points arising from the Respondent’s brief. In the absence of a new point, a reply brief is otiose and the Court is entitled to discountenance it. A reply brief is not a repair kit to put right any lacuna or error in the Appellants brief. See ONWUDIWE VS FRN (2006) 10 NWLR (Pt.988) 382, OJUKWU VS OBASANJO (2004) 7 SC (PT.1) 117. PER HON. JUSTICE PAUL ADAMU GALINJE, J.C.A.

REPLY BRIEF : WHETHER A REPLY BRIEF MUST REPLY TO NEW ISSUES OR POINTS RAISED IN THE RESPONDENTS BRIEF

 In OJUKWU VS OBASANJO (supra) at page 154 lines 10-17, the Supreme Court said:-
Learned counsel for the Appellant virtually repeated his argument in the Appellant’s brief in the reply brief. A reply brief must reply to new issues or points raised in the Respondents brief. A mere repetition of the arguments in an Appellants brief with one or two new authorities does not qualify as a reply brief. PER HON. JUSTICE PAUL ADAMU GALINJE, J.C.A.

DUTY OF A RESPONDENT: POSITION OF THE LAW WHERE A RESPONDENT IGNORES THE GROUNDS OF APPEAL FILED BY THE APPELLANT WHEN FORMULATING HIS ISSUES FOR DETERMINATION

I agree with the learned senior counsel that where a Respondent ignores the grounds of appeal filed by the Appellant when formulating his issues for determination, he is deemed to have conceded to the complaints in the grounds of appeal. In other words in formulating his issues for determination, a Respondent can only formulate issues outside the Appellant’s grounds of appeal, if he also filed a cross appeal or a Respondent’s notice. In the instant case, the 1st Respondent’s 1st issue and the 2nd and 3rd Respondents 1st issue are related to ground 2 of the Appellant’s grounds of appeal. Even if the issues aforesaid were not related to the ground of appeal, such concession by the Respondent does not automatically confer victory on the Appellant who must win his appeal on the strength of his own case and not on the weakness of the Respondents case. PER HON. JUSTICE PAUL ADAMU GALINJE, J.C.A.

BRIEF OF ARGUMENT: WHETHER THE APPELLANT WILL AUTOMATICALLY WIN OR SUCCEED IN THE APPEAL ONCE A RESPONDENT FAILS TO FILE HIS BRIEF

 In ECHERE VS EZIKE (2006) 12 NWLR (PT.994) 386 at 405 paragraph B-C, the Supreme Court, per Ogbuagu JSC said:- “It is to be borne in mind and this also settled that, failure of a Respondent to file a Respondent’s brief is immaterial and of no moment. This is because, an Appellant, must succeed or fail in his own brief. In other words, that an Appellant, succeeds on the strength of his own case. It is not automatic that when once a Respondent fails to file his brief’ that is it, the Appellant automatically, must win or succeed in the appeal No.” PER HON. JUSTICE PAUL ADAMU GALINJE, J.C.A.

JUSTICES

MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria

PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria

REGINA OBIAGELI NWODO Justice of The Court of Appeal of Nigeria

Between

JUSTICE OKWUCHUKWU OPENE Appellant(s)

AND

1. NATIONAL JUDICIAL COUNCIL
2. ATTORNEY GENERAL OF THE FEDERATION OF NIGERIA
3. THE RPESIDENT OF THE FEDERAL REPUBLIC OF NIGERIA Respondent(s)

HON. JUSTICE PAUL ADAMU GALINJE, J.C.A. (Delivering the Leading Judgment): On the 15th of May, 2005 the Federal High Court Abuja (henceforth to be referred to as the “lower court) granted to the Appellant leave to apply for judicial review. Pursuant to the leave so granted, the Appellant filed a motion on notice on the 2nd June, 2005 seeking for the following reliefs:-
“1. A declaration that the recommendation of dismissal from judicial office of the Applicant by the Respondents is unconstitutional, null and void and of no effect.
2. An order of prohibition restraining the Respondents from acting on the recommendation of the panel of inquiry of the 1st Respondent recommending to the 3rd Respondent that the Applicant be removed or dismissed from judicial office.
ALTERNATIVELY
3. A declaration setting aside the removal or dismissal from office of the Applicant by the 3rd Respondent on the recommendation of the 7th Respondent.
4. An order of certiorari removing the investigations, findings and recommendations of the panel of inquiry of the 1st Respondent against the Applicant into this Court for the purpose of being quashed.
5. And for such further Order (s) as this Honourable Court may deem fit to make in the circumstance.
In reaction to the motion on notice, the 1st and 3rd Respondents filed a Memorandum of Appearance on the 26th of May, 2005. Thereafter the first Respondent issued a preliminary objection to the hearing of the motion aforesaid, dated and filed on the 3rd of June, 2005. The 2nd and 3rd Respondents also issued a joint preliminary objection to the said motion on notice dated 4th of July, 2005 and filed on the 5th of July, 2005. Written addresses were ordered. These written addresses in which arguments on the preliminary objections were incorporated were variously adopted by learned counsel for respective parties on the 24th day of November, 2005. In a reserved and not so well considered judgment, the learned trial judge, Binta Nyako J. failed to consider the preliminary objections aforementioned, but proceeded to deliver judgment in the substantive suit which was dismissed on the ground that the Appellant did not place sufficient materials before the court.The law is settled that a preliminary objection properly raised and all other motions must be taken and disposed of first, before the final judgment in a pending suit. In OYEMA & ORS vs. EGBUCHULAM (1996) 5 NWLR (PT.448) 224 at 265, Kutigi JSC (as he then was) said:-
The Court had a duty to make its decision on the preliminary objection known to the parties before proceeding to decide the appeal thereby giving opportunity to anyone not satisfied with its decision to appeal against same. In the instant case, the Court did not only fail to rule on the preliminary objection as to the competence of the appeal but proceeded suo motu to decide the appeal without hearing the parties.”
See AHANEKU VS EKEUO (2002) 1 NWLR (PT.748) 301 at 309 paragraphs B-C, a decision of this Court. The Appellant did not appeal and canvass argument in respect of this lapse. I therefore do not need to comment further on this blunder.
The Appellant is dissatisfied with the decision of the lower court. Being dissatisfied and aggrieved, he has brought this appeal. The notice of appeal at pages 387-389 of the record of this appeal is dated 15th March, 2006 and filed on the 17th of March, 2006. This notice of appeal which contains two grounds of appeal was amended. The Amended notice of appeal which was filed on the 26th June, 2008 contains twelve grounds of appeal.
Parties filed and exchanged briefs of argument and reply briefs.
Mr. B.E.I. Nwofor, learned senior counsel for the Appellant, who also settled the Appellant’s brief of argument, formulated three issues for determination of this appeal. These issues read as follows:-
1. Whether the Appellant was denied his constitutional right to fair hearing in respect of the criminal accusations of bribery and corruption made against him on the basis of which he was dismissed from judicial office?
2. Whether the National Judicial council or any panel of inquiry or investigation committee set up by it has the constitutional power to investigate the criminal accusation of bribery and corruption made against the Appellant and to make a finding that the accusation are proved and to recommend the dismissal of the Appellant on those grounds.
3. Whether the learned trial judge was right in failing to set aside the removal or dismissal of the Appellant from judicial office by the 3rd Respondent on the recommendation of the 7th Respondent on the ground of bribery and corruption having regard to the peculiar facts of this case?
Mr. Rotimi Oguneso, learned counsel for the 1st Respondent formulated three issues for determination of this appeal. These issues are reproduced hereunder as follows:-
I. Whether the 1st Respondent is constitutionally empowered to investigate and/or appoint its three number investigation committee to investigate the allegation of bribery against the Appellant.
II. Whether from the facts and entire circumstances of this case, the Appellant was afforded fair hearing before he was dismissed from office on allegation of bribery made against him.
III. Whether from the facts and entire circumstances of this case, the Appellant was afforded fair hearing before he was dismissed from office on allegation of bribery made against him.
III. Whether the learned trial judge was right when he dismissed the claim/relief of the Appellant.
For the 2nd and 3rd Respondents, three issues for determination of the appeal were formulated by their learned counsel, Mr. Ayodeji Makanjuola Esan, These issues read as follows:-
i. Whether the National Judicial Council either acting by itself or through any committee or panel of inquiry set up by it has the constitutional power to investigate allegations including bribery and corruption made against the Appellant and to make recommendations for the dismissal of the Appellant to the Respondent on account of such finding.
ii. Whether the Appellant was afforded fair hearing in respect of the allegations of bribery and corruption made against him before he was dismissed from office by the 3rd Respondent acting on the recommendation of the 1st Respondent.
iii. Whether the learned trial judge was right when he dismissed the claim of the Appellant having regards to the peculiar facts and circumstances of this case.
I have carefully gone through the issues formulated for determination of this appeal by all the parties and I find them to be similar. However I am of the firm view that the only issue calling for determination of this appeal is whether the National Judicial Council has the constitutional power to investigate the criminal allegations of bribery and corruption against the Appellant and make a finding thereupon, and if so, was the Appellant accorded a fair hearing.
Before I consider the submissions of counsel in this appeal, I deem it proper to set out the brief facts of this case. The then President of the court of Appeal, Hon. Justice Umar Faruok Abdullahi, set up a three man panel to hear election petition appeal in Enugu. The Appellant herein was the President of the panel, while Adeniji and Akaahs JJCA were members. This panel sat at Enugu on the 16th February, 2004 and took the appeal. Judgment was subsequently reserved for 26th of February, 2004 and was delivered accordingly, although the Court hall became rowdy towards the end of the session. After the judgment, several petitions were written against the Appellant and Hon. Justice Adeniji, alleging that the two Justices were given various sums of money as bribe and this had influenced the decision of the court. These petitions were addressed to the President of the Federal Republic of Nigeria and the Chief Justice of Nigeria and chairman National Judicial Council (NJC). As a result of the petitions aforesaid, the NJC set up a panel of inquiry under the Chairmanship of Hon. Justice Owolabi Kolawole, OFR (JCA RTD) to investigate the allegations of bribery and corruption made against the Appellant and Adeniji JCA. At the end of the investigation, the panel submitted its reports to NJC. In the report, the panel recommended the dismissal of the two justices on the ground of misconduct. Based on the Report of the Panel of Inquiry, the NJC recommended to the President of the Federal Republic of Nigeria the removal from office by dismissal of the Appellant and Adeniji, JCA. As a result of the recommendation, the President of the Federal Republic of Nigeria approved the recommendation aforesaid, wherewith the two justices were dismissed from their judicial office.
In his argument, Mr. B.E.I. Nwofor, learned Senior counsel for the Appellant submitted that the allegation of bribery and corruption made against the Appellant was never heard and determined by a court or other tribunal established by law and constituted in such a manner as to secure its independence and impartiality before the Appellant was punished by dismissal from his judicial office. According to the learned senior counsel, neither the 1st Respondent nor any panel of inquiry or committee set up by it has any power to investigate and determine criminal complaints as such its action in delving into such matters is ultra vires, unconstitutional and void’
In a further argument, learned senior counsel submitted that, the failure of the Respondent to cause the criminal complaints of bribery and corruption made against the Appellant to be properly investigated by the Police and prosecuted in a law court or judicial tribunal established by law resulted in a denial of the Appellant’s right to fair hearing. In aid, learned senior counsel cited the following authorities:- SOFEKUN VS AKINYEMI (1980) ALL NLR 153; DR. E. O. A. DENLOYE VS. MEDICAL & DENTAL PRACTITIONERS DISCIPLINARY COMMITTEE (1968) 1 ALL NLR 306; YESUFU AMUDA GARBA & ORS V. UNIVERSITY OF MAIDUGURI (1986) 1 NSCC 245; MEDICAL & DENTAL PRACTITIONERS DISCIPLINARY TRIBUNAL VS. OKONKWO (2001) 7 NWLR (PT.711) 206; MILITARY GOVERNOR OF IMO STATE & ANOR VS CHIEF B.A. NWAUWA (1997) 2 NWLR (PT.490) 675; FEDERAL CTVIL SERVICE COMMISSION & ORS VS LAOYE (1989) 2 NWLR (PT.106) 652, RT. HON. ROTTMI CHIBUIKE AMAECHT VS INEC & 2 ORS (2008)  5 NWLR (PT.1080) 227; ACTION CONGRESS VS. INEC (2007) 12 NWLR (PT.1048) 222; UNIVERSITY OF NIGERIA TEACHING HOSPITAL MANAGEMENT BOARD & ANOR VS. HOPE CHINYELU NNOLI (1994) 8 NWLR (PT.363) 376.
Still in argument, learned senior counsel submitted that the Appellant’s claims were not at all properly considered by the lower court and none of the issues raised and canvassed by the Appellant was determined before judgment was entered against the Appellant. Learned silk insists that such misjudgment must not stand as it is a travesty of justice.
According to the learned senior counsel, the learned trial judge had made references to the report of the investigating panel, which she acknowledged was before the court, it is therefore wrong for the same trial judge to have held that such evidence was not before the court. Learned senior counsel also insisted that there is no evidence of any civil misconduct on the part of the Appellant, and that the only reason for the dismissal of the Appellant is the allegation of bribery and corruption, as such the trial court clearly embarked on speculations when it held that the Appellant was dismissed on other reason not amounting to crime and that the allegation of bribery and corruption had been referred to ICPC for investigation. According to the learned counsel neither the parties nor the Court is permitted or entitled to speculate on anything. In aid the authorities in IKENTA BEST (NIG) LTD VS A.H, GENERAL RTVERS STATE (2008) 6 NWLR (PT.1084) 672 at 649 paragraphs F-G; OVERSEAS CONSTRUCTION CO. (NIG.) LTD V. CREEK ENTERPRISES (NIG) LTD (1985) 3 NWLR (PT.13) 407; BAKARE VS. ACB LTD (1986) 3 NWLR (PT.26) 47 and OLAWUYI VS. ADEYEMI (PT.147) 746 were cited and relied upon.
Finally, learned senior counsel urged the Court to allow the appeal. For the first Respondent, it is argued that it is constitutionally empowered to investigate and/or appoint its three member committee to investigate the allegation of corruption made against the Appellant and to recommend for his removal from office as a judge. According to Mr. Rotimi Oguneso, learned counsel for the 1st respondent, such investigation and recommendation do not ipso facto constitute a denial of fair hearing where the Appellant was given all the opportunity known to the law to defend himself. In aid learned counsel cited IBRAHIM VS SHERIFF (2004) 14 NWLR (P7.892) 43 at 66.
Finally learned counsel submitted that the lower court properly dismissed the Appellant case.
For the 2nd and 3rd Respondents, Mr. Ayodeji Makanjuola Esan Esq., of counsel submitted that the 1st Respondent is empowered under the Constitution to investigate the Appellant and recommend him for punishment on a finding of misconduct and has acted rightly and legitimately in recommending the Appellant to the 3rd Respondent for dismissal from service. In support of this learned counsel cited the following authorities, to wit:- UZOHO VS TASK FORCE HOSPITAL MANAGEMENT (2004) 5 NWLR (Pt.867) 627; ARINZE VS FIRST BANK OF NIGERIA LTD (2004) 12 NWLR (PT.888)  663 at 676-677; ASABE V. B.O.N. (2005) 8 NWLR (PT.928) 650 at 672; ATA POLY VS MAINA (2005) 10 NWLR (PT.934) 487 at 515-516. In a further argument, learned counsel submitted that the Appellant was afforded a fair hearing by the first Respondent before recommending for his dismissal from office. Learned counsel made reference to the affidavit in support of the Appellant’s application at the lower court and the uncontroverted fact that the Appellant was represented by a counsel of his choice throughout the proceedings before the investigating panel. The only area of complaint by the Appellant is that there were changes in the composition of the panel before the investigation was concluded. This, learned counsel submitted does not render the report of the panel a nullity. In aid learned counsel cited DR. CHRIS NGIGE VS. MR. PETER OBI & ORS (2006) 14 NWLR (PT.999) 1 at 232-233; SEN. DAVID MARK VS. ALHAJI USMAN ABUBAKAR & ORS. (2009) 2 NWLR (PT.1124) 79 at 136.
Finally, learned counsel submitted that the learned trial judge was right when he dismissed the Appellant’s claim. On this a number of authorities were cited.
In the Appellant’s reply brief to the 1st Respondents’ brief, Mr. Nwofor, learned senior counsel for the Appellant submitted that the 1n Respondent’s issues for determination of this appeal are at variance with the Appellant complaint embedded in ground two of the grounds of appeal. According to the learned silk, a Respondent who neither files a cross appeal nor Respondents notice, cannot formulate issues which are at variance with the grounds of appeal. In aid learned counsel cited EZE VS FEDERAL REPUBLTC OF NIGERIA (1987) 1 NWLR (Pt.51) 506; CHIA & OTHERS VS. THE STATE (1996) 6 NWLR (PT.455) 465.
In a further argument, learned senior counsel submitted that the 1st Respondent has failed to reply to the Appellant’s argument on the points that the 1st Respondent has no constitutional power to make a finding that the criminal accusations against the Appellant are proved, This being so, every material point canvassed in the Appellant’s brief which is not countered in the Respondents’ brief is deemed to have been conceded to by the Respondents. In aid learned senior counsel cited OKONGWU VS. NIGERIAN NATIONAL PETROLEUM CORPORATION (1989) 4 NWLR (PT.115) 296.
Still in argument, learned senior counsel urged this court to give plain natural, literal and ordinary meaning to the provision of paragraph 21 (b) and (d) of part 1 of the 3rd schedule to the 1999 constitution of the Federal Republic of Nigeria. Learned senior counsel cited several authorities, which I will consider in course of this judgment, and contended that the 1st Respondent does not have the power to investigate crime or to conclude, as it did in the instant case, that a crime has been proved.
In a further submission, learned senior counsel dwelt extensively on the issue of separation of power, an issue that was not raised in the 1st Respondent’s brief of argument. It will appear that the learned senior counsel has lost trend of what a reply brief is. Order 17 Rule 5 of the Court of Appeal Rules 2007 provides as follows:-
“The Appellant may also, if necessary, within fourteen days of the service on him of the Respondent’s brief, file and serve or cause to be served on the Respondent a reply brief which shall deal with all new points arising from the Respondent’s brief.”
(underlining is mine)
Clearly, a reply brief deals with only new points arising from the Respondent’s brief, where a point was not raised in the Respondents brief, any argument canvassed in the reply brief on such point goes to no issue. In MOZIE VS MBAMALU (2006) 15 NWLR (Pt.1003) 466 at 496 paragraph G-H, Tobi JSC had this to say;
“It is not my understanding of the law of brief writing that a reply brief seeks a different relief outside the main brief. A reply brief is filed when an issue of law or argument raised in the Respondent’s brief call for a reply. A reply brief should deal with only new points arising from the Respondent’s brief. In the absence of a new point, a reply brief is otiose and the Court is entitled to discountenance it. A reply brief is not a repair kit to put right any lacuna or error in the Appellants brief.
See ONWUDIWE VS FRN (2006) 10 NWLR (Pt.988) 382, OJUKWU VS OBASANJO (2004) 7 SC (PT.1) 117.
For the reasons I have set out here, I discountenance all the arguments and the authorities cited in connection with the doctrine of separation of power as enshrined in the Constitution of the Federal Republic of Nigeria.
The argument canvassed in the Respondent’s brief of argument is that there is no equivalent of the provisions of section 158 (1) of the 1999 constitution and paragraph 20 of the Third Schedule to the 1979 constitution in either the 1963 or 1979 constitution. The Respondent did not indicate in his brief that section 158 (1) of the constitution held out the first Respondent as a court of law. once again, the learned senior counsel seems to be repeating the argument contained in the Appellants brief of argument. For all intent and purposes, this approach is wrong. In OJUKWU VS OBASANJO (supra) at page 154 lines 10-17, the Supreme Court said:-
Learned counsel for the Appellant virtually repeated his argument in the Appellant’s brief in the reply brief. A reply brief must reply to new issues or points raised in the Respondents brief. A mere repetition of the arguments in an Appellants brief with one or two new authorities does not qualify as a reply brief.
However, Mr. Nwofor argued that a latter Section of the Constitution can only supercede the earlier one if there is conflict between the two sections. According to the Learned Silk, the 1st Respondent has failed to show that there is conflict between section 36 (4) and section 158 of the 1999 constitution and paragraphs 20 and 21 part 1 of the 3rd schedule to the constitution. In aid learned counsel cited the dictum of Oputa JSC in SAVANAH BANK VS. PAN ATLANTIC (1987) 1 NWLR (PT.49) 212, where the erudite jurist said:-
“If therefore there is any conflict between Section 230 (2) and Section (2) obviously Section 216 with prevail (underlining for emphasis).’
The issue of the nature of fundamental right was not raised in the first Respondent’s brief of argument, as such all the argument canvassed on the question of fundamental right and the authorities cited in support are hereby discountenanced. The two valid points, which I will attend to in the reply brief are:-
1. That the issues formulated by the 1st Respondent for determination of this appeal do not arise from the grounds of appeal.
2. That Section 158 of the 1999 Constitution and paragraphs 20 and 21 of the 3rd Schedule (Pt.1) to the Constitution do not supercede Section 36 (4) of the same Constitution since they are not in conflict.
In the Appellant’s reply brief to the 2nd and 3rd Respondents’ brief of argument, the following replies are canvassed as follows:-
I. The three issues formulated for the 2nd and 3rd Respondents do not flow from the grounds of appeal and so the vital point that the 1st Respondent has no constitutional power to make a finding that the criminal accusations against the Appellant are proved are deemed admitted, since they remain unchallenged.
II. That Section 758 of the Constitution and paragraph 21 of part I of the 7 Schedule to the Constitution should be given their plain and natural, literal and ordinary grammatical meaning in line with well settled principles of interpretation.
III. The 1st Respondent is neither a law court nor a judicial commission of inquiry and the 1st Respondents investigation panel is also neither a law court nor a judicial tribunal as such they are totally and absolutely incompetent to proceed to find as they did, that the criminal allegations of bribery and corruption made against the Appellant have been proved.
Learned counsel canvassed argument on the separation of powers as enshrined in the Constitution. I have held elsewhere in this judgment that such point was not raised in the 2nd and 3rd Respondents’ brief of argument; as such it cannot be raised in the reply brief.
Learned senior counsel also touched on what he says is abortive attempt at distinguishing the cases of Garba, Okonkwo and Nwauwa and contended that the lower court in its judgment had resolved that Garba’s case is at all fours with the instant case, and that portion of judgment has not been challenged on appeal, as such the trial judge was wrong when he refused to follow the said Garba’s case, because the finding that Garba’s case is at all fours with the instant case still stands. Learned counsel cited the case of THE FEDERAL CIVIL SERVICE COMMISSION & ORS VS LAOYE (1989) 2 NWLR (PT.106) 652 where the Supreme Court refused to overrule the decision in GARBA & ORS VS UNIVERSITY OF MAIDUGURI and contended that this court also cannot overrule Garba’s case because it is bound by that decision. Thereafter, learned counsel went on to proffer argument which were already canvassed in the Appellant’s brief of argument. These arguments are clearly unnecessary at this stage.
On the reply to the argument about severance and the allegation that the petitions which the 1st Respondent set up a panel to investigate contained more allegations than receiving of money, learned senior counsel urged this Court to ignore argument concerning the alleged eight non criminal acts of misconduct which were set out in the 2nd and 3rd Respondents joint brief of argument because there is no evidence to support those allegations. Learned senior counsel also referred to the cases cited in the 2nd and 3rd Respondents brief of argument on master/servant relationship and contended that these cases are inapplicable here because judiciary where the Appellant belonged is not a servant of the executive. Learned senior counsel also submitted that the Appellant’s claims at the lower court were not based on master/servant relationship in labour law. In aid learned counsel cited authorities in ARINZE VS FBN (supra) and ANYEBE VS. ADESIYUN & 5 ORS (1997) 5 NWLR (PT.505) 43.
After this point the Respondent made submissions on the issue of fair hearing. The issue of fair hearing was extensively canvassed in the Appellant’s brief of argument. The fact that the 2nd and 3rd Respondents made submissions on the point is not a reason for reply, since it is not a new issue. A reply brief should not become a comprehensive Appellant’s brief.
The reply brief is meant to tackle new issues that were not canvassed in the Appellant’s brief but are found to be included in the Respondent’s brief. It will appear in the instant reply brief, the Appellant seems to reargue his case. The adoption by the Appellant of all his arguments at pages 4t to 47 of the Appellant’s brief of argument at page 43 of the reply brief is unnecessary. Litigation is not about a do or die affair as obtained in the present political dispensation in the Country. Counsel should stop over flogging issues and should adhere strictly to the rules of the Court.
In the reply brief, the Appellant has challenged the competence of the issues formulated by the Respondents. I consider this as a preliminary issue that has to be dealt with first before I consider the submissions of counsel on the main appeal. This is so because a ruling upholding this submission will have the effect of excluding the Respondents briefs of argument from the consideration of the appeal. The Appellant’s argument is that the 1st Respondent in formulating its three issues for determination, totally departed from the complaint raised by the Appellant in ground two of his grounds of appeal. (See page 2 paragraph 4 of the reply brief to 1st Respondent’s brief) At page 2 paragraph 4 of the reply brief to 2nd and 3rd Respondents brief, the Appellant argued that none of the three issues for determination formulated by the 2nd and 3rd Respondents addressed the complaint made in ground two quoted above.
From the Appellant’s argument herein, it will appear that all the issues formulated by the Respondents must be directed and arise from ground two of the grounds of appeal. If the three issues formulated by the two sets of the Respondents were to arise from ground two certainly we will have a case of proliferation of issues, which is unacceptable in the practice of this Court.
However for the sake of clarity, Ground 2 of the grounds of appeal is set out hereunder as follows:-
“2. The learned judge erred in law when he dismissed the Appellants application, which among other things challenged the competence of the 1st Respondent to make a finding against the Appellant in respect of bribery and corruption, and thereby came to a wrong decision,
PARTICULARS OF ERROR
i. The terms of reference given by the 1st Respondent to its panel of inquiry was to investigate the allegations of bribery and official corruption made against the Appellant,
ii. 1st Respondent has no constitutional power to make a finding of guilt for bribery and corruption and recommend punishment of dismissal as it did against the Appellant,
iii. 1st Respondent usurped the judicial function of Courts established under Section 6 of the Constitution of the Federal Republic of Nigeria.
iv. The Report of 1st Respondent’s panel of inquiry embodying the proceeding and findings is a proper subject matter of judicial review.”
I have set out the issues for determination of this appeal as formulated by all the parties elsewhere in this judgment. However the first issue for determination of this appeal as formulated by the 1st Appellant, and the first issue so formulated by the 2nd and 3rd Respondents raised the question of the propriety of the investigative power of the 1st Respondent. It is common knowledge that at the conclusion of any investigation there must be a finding of culpability or innocence. It is the law that issues for determination of appeal must be formulated from or tied to the grounds of appeal. Issues for determination must arise from or relate to the grounds of appeal, and where they do not so relate or arise from the grounds of appeal, then they are at large and therefore go to no issue. See SANUSI VS AYOOLA (1992) 9 NWLR (PT.265) 275, CEEKAY TRADERS LTD VS GENERAL MOTORS CO, LTD (19921 2 NWLR (PT.222) 132; MOGAJI VS MIL. ADMIN, EKITI STATE (1998) 2 NWLR (PT.538) 425; OSSAI VS. WAKWAH (2006) 4 NWLR (PT.969) 208.
However, the issues formulated for determination of appeal, are not the argument on the issues. Such issues are only said to relate or arise from the grounds of appeal. They cannot be the same thing as the ground of appeal. In the instant case, the Respondents have in their briefs of argument raised sufficiently the issue of 1o Respondent’s power of investigation. By reference to the power of investigation, the issue of findings and proofs of facts are clearly within the purview of the issues so formulated by the Respondent. I therefore do not see how the issues formulated by the Respondents are at variance with ground two of the grounds of appeal.
Learned senior counsel for the Appellant forcefully argued that there is nowhere in the 1st Respondent’s brief where the 1st Respondent replied to the Appellant’s arguments on the point that the 1st Respondent has no constitutional power to make a finding that the criminal accusations against the Appellant are proved. This being so, learned senior counsel contended, that the 1st Respondent has conceded to the points so raised. It is the same argument in the reply brief to the 2nd and 3rd Respondents joint brief of argument. Learned counsel urged the court to hold that the 1st, 2nd and 3rd Respondents are deemed to have conceded to the points that the 1st Respondent has no constitutional power to make a finding that the criminal allegations of bribery and corruption made against the Appellant have been proved.
I agree with the learned senior counsel that where a Respondent ignores the grounds of appeal filed by the Appellant when formulating his issues for determination, he is deemed to have conceded to the complaints in the grounds of appeal. In other words in formulating his issues for determination, a Respondent can only formulate issues outside the Appellant’s grounds of appeal, if he also filed a cross appeal or a Respondent’s notice. In the instant case, the 1st Respondent’s 1st issue and the 2nd and 3rd Respondents 1st issue are related to ground 2 of the Appellant’s grounds of appeal. Even if the issues aforesaid were not related to the ground of appeal, such concession by the Respondent does not automatically confer victory on the Appellant who must win his appeal on the strength of his own case and not on the weakness of the Respondents case. In ECHERE VS EZIKE (2006) 12 NWLR (PT.994) 386 at 405 paragraph B-C, the Supreme Court, per Ogbuagu JSC said:-
“It is to be borne in mind and this also settled that, failure of a Respondent to file a Respondent’s brief is immaterial and of no moment. This is because, an Appellant, must succeed or fail in his own brief. In other words, that an Appellant, succeeds on the strength of his own case. It is not automatic that when once a Respondent fails to file his brief’ that is it, the Appellant automatically, must win or succeed in the appeal No.”
For all I have said here therefore is that the two sets of the Respondents have formulated issues that are related and do arise from ground 2 of the Appellant’s brief of argument and I so hold.
With this preliminary issue which constituted a preliminary objection to the competence of the issues formulated by the Respondents resolved, I will now proceed to consider the appeal on the basis of the briefs of argument filed by the respective parties.
The argument of the learned senior counsel for the Appellant that the 1st Respondent has no constitutional power to investigate the allegations against the Appellant and to make a finding that the allegations are proved is hinged on the provision of Section 36 (4) and (5) of the Constitution of the Federal Republic of Nigeria 1999 and the authority in the cases cited in the Appellant’s brief of argument.
Section 36 (4) and (5) of the Constitution makes the following provision:-
“36(4) Whenever any person is charged with a criminal offence, he shall, unless the charge is withdrawn, be entitled to a fair hearing in public within a reasonable time by a Court or tribunal…..
(5) Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty.
Provided that nothing in this Section shall invalidate any law by reason only that the law imposes upon any such person the burden of proving particular facts.”
It is clear from the provisions of Section 36 of the 1999 Constitution that a person accused of a criminal offence can be found guilty by a Court or tribunal of competent jurisdiction. This is the decision of the Supreme Court in a number of cases, some of which were cited in the Appellant’s brief of argument. In DR. E.O.A, DENLOYE VS MEDICAL & DENTAL PRACTITIONERS DISCIPLINARY COMMITTEE (supra) the Supreme Court, per Ademola CIN held at page 312 lines 30-39 thus:-
“In effect where the unprofessional conduct of the practitioner amounts to a crime, it is a matter for the Courts to deal with; and once the Court has found a practitioner guilty of an offence, if it comes within the type of cases referred to in Section 13 (1) (b), then the Tribunal may proceed to deal with him under the Act. In view of all these, we have come to the conclusion that the Tribunal was wrong to have proceeded to try offences punishable under the criminal code and the proceedings in this respect are null and void.”
The allegation against Dr. Denloye was investigated by Medical and Dental Practitioners Investigating Panel in accordance with Section 12 of the Medical and Dental Practitioners Act, 1963 (henceforth to be referred to as the Act) Although reference was made to Section 22(2) of the 1963 Constitution of Nigeria in that case, the Courts decision was principally based on Section 13 (1) (a) (b) and (c) of the Act. Section 22(2) of the 1963 Constitution of Nigeria which is the same as Section 36(4) of the 1999 Constitution of the Federal Republic of Nigeria provides as follows:-
(2) Whenever any Person is charged with a criminal offence, he shall unless the charge is withdrawn be entitled to a fair hearing within a reasonable time by a Court”
Section 13 of the Act provides as follows:-
“13 – (7) where
(a) A registered Person is judged by the tribunal to be guilty of infamous conduct in any professional respect or
(b) A registered person is convicted, by any Court in Nigeria or elsewhere having Power to award imprisonment, of an offence (whether or not an offence punishable with imprisonment) which in the opinion of the tribunal is incompatible with the status of a medical or dental practitioner, as the case may be; or
(c) The tribunal is satisfied that the name of any person has been fraudulently registered, the tribunal may, if it thinks fit, give a direction reprimanding that person or ordering the registrar to strike his name of the relevant register or registers”
Indeed it was on the basis of the provisions of section 13 of the Act which expressly provided for conviction by a Court, that the Supreme Court reached the following conclusion:-
“In effect where the unprofessional conduct of the practitioner amount to a crime, it is a matter for the Courts to deal with; and once the Court has found a practitioner guilty of an offence, if it comes within the type of cases referred to in Section 13 (1) (b), then the tribunal may proceed to deal with him under the Act.”
I have failed to see where the Supreme Court reached a conclusion in Denloye’s case that the tribunal had no power to investigate and find the allegation against the accused proved. On the contrary this is what the Supreme Court said about the investigative power of the tribunal:-
“We must point out for the benefit of the tribunal concerned that like any other tribunal of this nature, it is entitled to decide its own procedure and lay down its own rules for the conduct of enquiries regarding discipline……..
It is of the utmost importance that the enquiry be conducted in accordance with the principles of natural justice.”
In GARBA & ORS VS UNIVERSITY OF MAIDUGURI (supra), the Appellants were among a group of students who staged a demonstration in which destruction of property, looting and indecent assault were perpetrated in the University. It was not in dispute that the Deputy Vice Chancellor’s house as among the properties burnt. The Vice Chancellor set up various Investigating Panels to probe the students’ demonstration. One of such panel was the Disciplinary Investigating Board headed by the Deputy Vice Chancellor. At the end of the investigations, the various Committees submitted their reports to the Vice Chancellor. Based on the findings of the Committees Reports, the Appellants along with other students were expelled from the university. They challenged their expulsion at the High Court of Maiduguri and were successful. Their success was reversed at the Court of Appeal. They further appealed to the Supreme Court where the decision of the Court of Appeal was set aside and quashed. In its place the decision of the High Court Maiduguri was restored. At page 582 paragraph G-H, Obaseki JSC said:-
“What were the powers delegated to the Disciplinary Board? The provisions of Section 17(1), (b), (c) and (d) are clear and unambiguous, The Board has, like the Vice Chancellor, to satisfy itself that the Appellants were guilty of the offences charged as misconduct before proceedings to impose the punishment. There is under our law no sliding scale or elements of satisfaction as to guilt of a person of an offence. The appearance of guilt is not a delusory appearance of guilt. The appearance of guilt which can satisfy this Section is measured by the quantum of proof as laid down by law. It is for this reason that guilt in criminal matters is left for the ascertainment of Courts of law or other tribunals before it is accepted and acted upon by Administrative Tribunals.”
The Supreme Court further held that “the judicial powers vested in the Courts by Section 6 of the 1979 Constitution and defines in subsection 6 extends to all matters between persons or between government or authority and any person in Nigeria and to all actions and proceedings relating thereto for determination of any question as to the civil rights and obligations of that person. To that extent therefore judicial powers are not vested in private persons/Administrative Tribunals or other authorities. Where such administrative tribunals exercised judicial powers, any person injured is denied the right of fair hearing under Section 33 of the 1979 Constitution.
The case of GARBA was decided in1986 under the 1979 Constitution of Nigeria. However in 1996, the Supreme Court decided otherwise in the case of YUSUF VS UBN (1996) 6 NWLR (PT.457) 632 where their Lordships held that it is not necessary under the common law nor is it a 28 requirement of Section 33 of the 1979 Constitution that before an employer summarily dismisses his employee from his service, the employee must be tried before a Court of law where the accusation against the employee is for gross misconduct involving dishonesty bordering on criminality. Section 33 (4) of the 1979 Constitution is the same as Section 36 (4) of the 1999 Constitution which is under consideration in this case, that Section provides thus:-
“Whenever any person is charged with a criminal offence, he shall unless the charge is withdrawn be entitled to a fair hearing within a reasonable time by a Court or tribunal.” In the instant case, the Appellant herein was removed from office under the 1999 Constitution of the Federal Republic of Nigeria on the Recommendation of the 1st Respondent to the 3rd Respondent. The 1st Respondent was established by section 153 (1) (i) of the 1999 constitution. Section 158 (1) of the said constitution provides 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.

Section 21(b) of the 3rd schedule part 1 of the 1999 constitution provides that the 1st Respondent shall have power to recommend to the President the removal from office of the judicial officers specified under sub-paragraph (a) of this paragraph, and to exercise disciplinary control over such officers. Those judicial officers mentioned in paragraph (a) include the chief Justice of Nigeria, the Justices of the Supreme court, the President and Justices of the court of Appeal, the chief judge and judges of the Federal High Court etc. The provisions contained under Section 153 (1) (i) and 158 (1) of the 1999 Constitution and paragraph 21 (b) of the 3rd Schedule, Part 1 of the Constitution have been made for the first time in the constitutional history of Nigeria. They have no equivalence in the 1963 and 1979 Constitution. What then is the import of the sentence, it shall not be subject to the direction or control of any authority or person in Section 158 (1) of the Constitution. In order to appreciate the reason for the inclusion of that sentence, it is appropriate to find the meaning of the word ‘authority’. Authority is defined by the Black’s Law Dictionary, 6th Edition in the following words:-
“Permission. Right to exercise powers; to implement and enforce law; to exert obedience; to command, to judge, Control over jurisdiction often synonymous with power…”
By the definition which I have reproduced above, I am of the firm view that the various Courts of the land are included as authorities which exert obedience to its commands as included in their judgments. Section 158 (1) of the Constitution has clearly provided that the National Judicial Council (NJC) shall not be subject to the direction and control of any other authority in exercising its power to make appointments or to exercise disciplinary control over judicial officers. I do agree with Makanjuola Esq., of counsel for the 2nd and 3rd Respondents that while the exercise of power conferred by some statutes on conditions of employment can be held to be unconstitutional, and therefore null and void, the exercise of a duty and power conferred and imposed by the Constitution can never be held to be unconstitutional and therefore null and void as amounting to a violation of the right to be tried in a Court of law. In carrying out its duties the first Respondent is at liberty to make its procedural rules and regulations without any form of control from any authority. It 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.
In the Appellant’s reply brief to the 2nd and 3rd Respondents brief, the Court is urged to ignore those cases on master/servant relationship because they are totally inappropriate and inapplicable to the Appellant who was a judicial officer and belonged to a judicial arm of the Government before he was dismissed. This reason here is untenable. Learned senior counsel himself has alluded to the fact that judiciary is an arm of government. It follows therefore that the Appellant was an employee of the Government under the leadership of the 3rd Respondent. Section 6 (6) (b) of the 1999 Constitution provides as follows:-
“(6) The judicial powers vested in accordance with the foregoing provisions of this Section –
(b) Shall extend to all matters between persons, or between government or authority and to any person in Nigeria and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person.”
Section 6(1) of the Constitution provides that the judicial powers of the Federation shall be vested in the Courts to which the Section relates, being Courts established for the Federation sub-section 5 of Section 6 lists out the Courts to include the Supreme Court, the Court of Appeal, the Federal High Court, the High Court of the FCT the State High Courts and others. If persons accused of misconduct must be tried by Court before their employments are terminated, then those in the employment of statutory bodies and companies registered in Nigeria must not be treated differently as they also fall under section 6 (6) (b) of the constitution. It is to that extent that the case of YUSUF vs UBN (SUPRA) is relevant.

It is trite that when this court is faced with two conflicting decisions of the supreme court on an issue, it is bound to follow the latest. This is so because the Supreme court has an inherent power to overrule itself. If the latest decision is in conflict with the earlier one, it follows that the latest decision has overruled the earlier one. The case of YUSUF VS UBN was decided after the cases of DENLOYE, GARBA and LAOYE, as such I consider myself bound by that decision. see ALHAJI M. C. DAHIRU & 1 OR VS ALH. KAMALE (2005) 9 NWLR (PT.929) 8.

Section 292 (1) (b) of the Constitution provides as follows:-
In any case, other than those to which paragraph (a) of this subsection applies, by the president or as the case may be, the Governor acting on the recommendation of the National Judicial Council that the judicial officer be so removed for his inability to discharge the functions of his office or appointment (whether arising from infirmity of mind or of body) or for misconduct or contravention of the Code of Conduct.

In GARBA & ORS VS UNIVERSITY OF MAIDUGURI (supra) at page 582 paragraph D the Supreme Court’s definition of misconduct reads as follows:-
“There is however no doubt that in the con in which the term is used in Section 17 of the Act, the complaints to wit arson, willful destruction to properties, looting and assault made against the Appellants fall within the definition.”
Black’s Law Dictionary 6th Edition defines ‘misconduct’ to include ‘offence’. ‘offence’ is defined by the same dictionary as ‘a felony or misdemeanor, a breach of the criminal laws, violating of law for which penalty is prescribed’. The Black Law Dictionary 8th Edition defines ‘misconduct’ in office as ‘official corruption’ or ‘political corruption’ in cases of officers and public employees. Therefore the word ‘misconduct’ used as reason for removal of judicial officer is known to those who framed the constitution to be a criminal offence and yet the responsibility to recommend to the president, the removal of such officers is given to the National Judicial council. If the Constitution intended that such misconduct must be subject to trial by Court, it would have said so. It would have said for example, that any judicial officer convicted by the Court shall be removed from office by the President on the recommendation of the NJC. The Constitution did not make such provision. Rather the Constitution that gave the Court the power to try criminal offences also gave the NJC the power to investigate allegation of misconduct against judicial officers and make recommendation for their removal. It is therefore my firm view that the procedure adopted by the NJC is sustainable in law.
On the issue of whether the Appellant was given a fair hearing, I have resolved elsewhere in this judgment, that the first Respondent has the constitutional power to investigate the criminal allegations of bribery and corruption made against the Appellant and to make a finding that the allegations are proved.
From the Report of the panel of inquiry that was set up by the first Respondent to investigate the allegation of bribery against the Appellant and one other, at pages 9-75 of the printed record of this appeal, it is not in doubt that the Appellant was accorded fair hearing. At page 5g paragraph 2 of the report, it is stated clearly thus:-
Hon. Justice Okechuku Opene who led the panel made a written submission to the Hon, Chief Justice of Nigeria. He also testified and called witnesses, Hon. Justice D. A. Adeniji also made a written response to the allegation and also testified before the panel.”
This fact and the fact that the Appellant was represented by a counsel throughout the panel’s sitting has not been denied. It follows therefore that the Appellant was accorded his constitutional right of fair hearing in respect of the criminal allegation of bribery and corruption made against him on the basis of which he was dismissed.
For all I have said here, the sole issue formulated for determination of this appeal is resolved against the Appellant. The grounds of appeal are accordingly dismissed.
On the whole this appeal lacks merit and it is accordingly dismissed.

MOHAMMED LAWAL GARBA, J.C.A.: The draft of the lead judgment delivered by my learned brother GALINJE, JCA was read by me before today. My learned brother has as usual comprehensively and fastidiously considered the crucial issues that require decision in this appeal, i.e. whether NJC had the powers to investigate the allegations against the Appellant and make appropriate findings and recommendations to the 3rd Respondent for disciplinary action, and whether the Appellant was afforded a fair hearing in the NJC investigations.
The views so proficiently expressed in the read judgment on these issues are precisely the same with mine such that I find nothing more to say than I completely agree with them. In the result, I too find no merit in the appeal and dismiss it for all the reasons set out in the lead judgment. There shall be no order on costs.

REGINA OBIAGELI NWODO, J.C.A.: I had the privilege to read before now the Judgment of my learned brother Galinje, JCA just delivered. I agree with the reasoning contained therein and the conclusion arrived thereat.
The Courts of law have a duty to interpret the law and not to substitute or amend provisions which they consider improper. The court is not entitled to read into specific provisions in the constitution words which do not reflect the intention of the drafts men.
Therefore, where the provisions in the constitution are clear and unambiguous, effect must be given to the words without resorting to any extrinsic aid to interpret it.
The provision under S.158 (1) of the constitution is explicit. The duty of the court is to interprete the words used in that section to give effect to their intended meaning.
See A.G. Abia State v. A.G. Fed (2005) 12 NWLR (Pt.940) 452 SC.
S158 (1) of the constitution in conferring power on the National Judicial council used the phrase shall not be subject to the direction or control of any other authority. The National Judicial council does not have to wait for a court verdict where there is an allegation with criminal connotation before performing its disciplinary role.
For the above and the more detailed reasons contained in the lead Judgment, I too dismiss this Appeal. I abide by the order as to cost.

 

Appearances

Mr. B. E. Nwofor SAN, with J.N. Onyebuchi (Miss) and E. I. Osakwe Esq.For Appellant

 

AND

Mr. R. Oguneso with O. Balogun Esq., and A. Babanale
Mr. Ayodeji EsanFor Respondent