KAYODE BAMISILE V. NATIONAL JUDICIAL COUNCIL & ORS.
(2012)LCN/5094(CA)
In The Court of Appeal of Nigeria
On Friday, the 13th day of January, 2012
CA/B/223/08
RATIO
THE TWIN FUNDAMENTAL PRINCIPLES OF NATURAL JUSTICE
The twin fundamental principles of natural justice recognized our law are audi alteram partem and nemo judex in causa sua i.e. “hear the other side” and “a man shall not be a judge in his own cause”. They have been entrenched in Section 36(1) of the 1999 Constitution which provides thus: 36.(1) “In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.” PER. KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.
MEANING OF FAIR HEARING
What is meant by fair hearing? It has, been held that fair hearing within the meaning of Section 33(1) of the 1979 Constitution (which is in pari materia with Section 36(1) of the 1999 Constitution) means a trial conducted according to all legal rules formulated to ensure that justice is done to the parties. It has been held to encompass not only the compliance with the rules’ of natural justice but also audi alteram partem. It also entails doing all things, whether in civil or criminal trials that would make an impartial observer believe that the trial has been balanced and fair on both sides- See: Amanchukwu Vs The Federal Republic of Nigeria (2009) 2 – 3 SC (Part 1) 93 @ 102 – 103; Alhaji Isiyaku Mohammed vs. Kano Native Authority (1968) 1 All NLR 424 @ 426; Pam & Anor. Vs. Mohammed & Anor. (2008) 5 – 6 SC (Part 1) 83 @, 134 – 135. Fair hearing has been defined as the right of a party to correct or contradict the evidence against him or in his favour. A denial of fair hearing is a denial of the opportunity to present a litigant’s case. See: Oni Vs Fayemi (2008) 8 NWLR (1089) 400 @ 432 E. PER. KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.
THE CONSTITUTIONAL PROVISIONS RELATING TO THE REMOVAL OF A JUDICIAL OFFICER FROM OFFICE.
A convenient place to start is a consideration of the Constitutional provisions relating to the removal of a judicial officer from office. Section 292(1)(a) (ii) of the 1999 Constitution (as amended) provides:
292(1) “A judicial officer shall not be removed from office before his age of retirement except in the following circumstances.
(a) in the case of-
(ii) the Chief Judge of a State, Grand Kadi of a Sharia Court of Appeal or President of a Customary Court of Appeal of a State, by the Governor acting on an address supported by the two-thirds majority of the House of Assembly of the State, praying that he be so removed for his inability to discharge the functions of his office or appointment (whether arising from infirmity of mind or body) or for misconduct or for contravention of the Code of Conduct.” (Emphasis mine). In Boston Sea Fishing Co. Vs. Ansell (supra) the Court held: “Mr. Ansell was dismissed and I think his dismissal must be taken to date from that meeting on October 19 and not from the day in September when he was suspended by the board because suspension is very different from dismissal. When a man is suspended from the office he holds, it merely amounts to saying “so long as you hold the office until you are legally dismissed, you must not do anything in the dischaof the duties which under your office you ought to do towards your employer.” His Lordship Oguntade, JSC went on to state at page 95 of Longe’s case (supra): “Admittedly, an employer suspending his employee may impose terms of the suspension but in a general sense suspension of an employee from work only means the suspension of the employee from the performance of the ordinary duties assigned to him by virtue of his office. Suspension is not a demotion and does not entail a diminution of the rights of the employee given to him under the law.”
THE CATEGORIES OF CONTRACT OF EMPLOYMENT
The Supreme Court in C.B.N. Vs. Igwillo (2007) 4 – 5 SC 154 @ 172 explained the categories of contract of employment thus: “The law is settled that there are now roughly three categories of contracts of employments, viz: (a) those regarded as purely master and servant; (b) those where a servant is said to hold office at the pleasure of the employer; and (c) those where the employment is regulated or governed by statute, often referred to as having statutory flavour; See Olaniyan Vs. University of Lagos (1985) 2 NWLR (9) 599. An employment is said to have a statutory flavor when the appointment is protected by statute or laid down regulations made to govern the procedure for employment and discipline of an employee. Any other employment outside that category is governed by the terms under which the parties agree to be master and servant.” See also; Imoloame vs. WAEC (1992) 9 NWLR (265) 303; Shitta-Bay vs. University of Lagos (1981) 1 SC 40 PER. KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.
JUSTICES
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
MOORE A. A. ADUMEIN Justice of The Court of Appeal of Nigeria
Between
KAYODE BAMISILE Appellant(s)
AND
1. NATIONAL JUDICIAL COUNCIL
2. ATTORNEY-GENERAL OF THE FEDERATION
3. EKITI STATE HOUSE OF ASSEMBLY
4. ATTORNEY-GENERAL OF EKITI STATE Respondent(s)
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A. (Delivering the Leading Judgment): The appellant herein was the Chief Judge of Ekiti state until 20th December 2006 when the 1st respondent, pursuant to a petition written against him by some concerned senior Lawyers of Ekiti State, suspended him from office as Chief Judge. His name was removed from the pay roll and the payment of his salaries, emoluments, allowances and other perquisites of office were stopped, Being dissatisfied with the 1st respondent’s action he filed an originating summons before the Federal High Court, Akure Judicial Division seeking the determination of the following questions:
1. Whether having regard to the provisions of Section 292 of the Constitution of the Federal Republic of Nigeria 1999, the National Judicial. Council, the 1st defendant herein, can solely remove the plaintiff as the Chief Judge of Ekiti State.
2. Whether having regard to the provisions of Section 292 of the Constitution of the Federal Republic of Nigeria 1999, the National Judicial Council, the 1st defendant can usurp, take over or exercise in any manner whatsoever the powers reserved for the Governor of Ekiti State and Ekiti State House of Assembly in the removal of a Judge or Chief Judge of Ekiti State.’
In the event that the questions were answered in the negative, he sought the following reliefs:
1. DECLARATION that under the provisions of Section 292 of the Constitution of the Federal Republic of Nigeria 1999, the 1st Defendant cannot solely remove the plaintiff as the Chief Judge of Ekiti State.
2. DECLARATION that under the provisions of Section 292 of the Constitution of Federal Republic of Nigeria 1999, the 1st Defendant cannot usurp, take over or exercise in any manner whatsoever the constitutional powers reserved for the Governor of Ekiti State and 3rd Defendant in the removal of a Judge or Chief Judge of Ekiti State.
3. DECLARATION that the decision of the 1st defendant acting alone in removing the plaintiff as Chief Judge of Ekiti State is illegal, unconstitutional, null and void and of no effect whatsoever.
4. DECLARATION that the Plaintiff is still in the judicial service of Ekiti State and the Chief Judge of Ekiti State not having been removed in accordance with the provisions of the Constitution of Federal Republic of Nigeria, 1999.
5. DECLARATION that the purported suspension of the plaintiff from office as the Chief Judge of Ekiti State as contained in the 1st defendant’s letter of 20th December 2006 without complying with the rules of Natural Justice, is unconstitutional, null and void and of no effect whatsoever,
6. ORDER declaring as null and void the purported suspension of the plaintiff from office as the Chief Judge of Ekiti State by the 1st defendant.
7. ORDER declaring as null and void the purported removal of the plaintiff from office as the Chief Judge
of Ekiti State by the 1st defendant.
8. ORDER setting aside the purported suspension of the plaintiff as contained in the 1st defendant’s letter of 20th December, 2006.
9. ORDER setting aside the purported removal of the plaintiff-from office as the Chief Judge of Ekiti State as contained in the letter of the 1st defendant referenced NJC/S972/1/53 dated 5th June 2007.
10. ORDER compelling the Defendants to pay the plaintiff’s salaries, emoluments, fringe benefits and other perquisites of the office of the Honourable Chief Judge of Ekiti State from 20th December, 2006 until he attains the constitutional age of retirement.
11. PERPETUAL INJUNCTION restraining the Defendants, their agents, servants or privies or anybody claiming authority through them from acting in any matter whatsoever on the letter dated 5th June, 2007 purportedly removing the Plaintiff from Office as the Chief Judge of Ekiti State.
12. PERPETUAL INJUNCTION restraining the Defendants, their agents, servants or privies or anybody claiming authority through them from disturbing, preventing, tampering with or stopping or hindering the plaintiff in any other manner whatsoever from discharging his constitutional duties and powers as a Judge and Chief Judge of Ekiti State.
13. PERPETUAL INJUNCTION restraining the Defendants, their agents, servants or privies or anybody claiming authority through them from taking any step or further steps whatsoever in pursuance of appointment of a Chief Judge or appointment of anybody as the Chief Judge of Ekiti State.”
The 1st, 3rd and 4th respondents filed counter affidavits to the originating summons. They also filed notices of preliminary objections to the suit contending that it was wrongly commenced by originating summons and that it was statute barred by virtue of Section 2(a) of the Public Officers Protection Act, having been filed more than three months after the cause of action arose. The learned trial Judge heard the preliminary objection along with the originating summons. In a considered judgment delivered on 12/3/08 he dismissed the preliminary objections and granted the appellant’s reliefs 1, 2 and 4. He refused all the remaining reliefs.
Being dissatisfied with certain aspects of the decision, the appellant filed a notice of appeal on 11/6/08 containing six grounds of appeal. The 1st respondent was also dissatisfied with part of the decision and filed a notice of cross appeal on 9/6/08 containing a single ground of appeal. Pursuant to an order of this court of 16/2/2010 it filed an amended notice of cross appeal containing an additional ground of appeal.
All the parties, except the 2nd respondent, which did not participate in the appeal, duly filed and exchanged briefs of argument. At the hearing of the appeal on 18/10/2011, OLUSOJI ODUNTAN ESQ., learned counsel for the appellant adopted and relied on the following briefs of argument:
i. The appellant’s brief dated 27/9/08 and filed on 2/10/08.
ii. Appellant’s reply brief dated 28/4/2010 and filed on 29/4/2010.
iii. Appellant/Cross Respondent’s brief dated 28/4/2010 and filed on 29/4/2010.
He urged the court to allow the appeal, dismiss the cross appeal and set aside the judgment of the lower court. MR. BABATUNDE AIKU, SAN, learned senior counsel for the 1st respondent adopted and relied on:
i. The 1st respondent’s brief dated 29/10/08 and filed on 30/10/08
ii. Cross Appellant’s brief dated 12/3/2010 and filed on 17/3/2010.
iii. Cross Appellant’s Reply brief dated 10/5/2010 and filed on 14/5/2010.
He cited an additional authority: Longe vs. First Bank of Nig. Plc. (2010) 6 NWLR (1189) 1 @ 60 C – D; F – G in response to the submission in paragraph 4,04 of the appellant’s reply brief filed on 29/4/2010 and urged the court to dismiss the appeal and allow the cross-appeal.
DAYO AKINLAJA ESQ., the Hon. Attorney-General of Ekiti State adopted and relied on the 3rd and 4th respondents’ brief dated and filed on 18/10/2010. He relied on some additional authorities and made some submissions in amplification of his brief. He urged the court to dismiss the appeal.
In respect of the main appeal, the appellant formulated three issues for determination:
1. Whether the learned trial Judge was correct in the interpretation placed on Exhibit “KB7”, namely that it did not constitute removal of Appellant as a judicial officer – Grounds a and b of the grounds of appeal.
2. Whether having regard to the circumstances of this case, the learned trial Judge was right in failing to nullify the Appellant’s suspension – Grounds c, e and f.
3. Was the learned trial judge right in failing to order the payment of Appellant’s salaries and other emoluments in view of his finding that the Appellant is still in the Judicial Service of Ekiti State – Ground d.
The 1st respondent and the 3rd and 4th respondents each formulated three issues for determinations that are the same in content as the issues formulated by the appellant. I shall therefore determine the appeal on the issues formulated by the appellant.
It is instructive to note that both sets of respondents raised and argued preliminary objections in their respective briefs. However they did not seek leave to rely on the said objections at the hearing of the appeal. They are therefore deemed abandoned and accordingly struck out. Having regard to the fundamental nature of the issue of fair hearing raised in issue 2, I shall consider it first.
Before considering the submissions of learned counsel, it is appropriate at this stage to briefly state the facts that gave rise to this appeal. Paragraphs 2 – 16 of the affidavit in support of the originating summons deposed to by the appellant are germane in this regard and are accordingly reproduced hereunder:
2. “That on or about 5th October, 2006, I was requested by the erstwhile Speaker of the Ekiti State House of Assembly Rt. Hon. Friday Aderemi to appoint a panel of seven persons to investigate the allegation of gross misconduct against the then Executive Governor of Ekiti State, His Excellency Chief Ayodele Fayose and his Deputy, Chief Mrs. Biodun Olujimi. A copy of the letter of request is attached as Exhibit KB1.
3. That in pursuance of that request I constituted a panel of seven members who in my opinion were people of proven integrity.
4. That subsequent to the constitution of the panel, the 1st defendant, by a letter dated 22nd ovember, 2006 through its then Chairman, Hon. Justice S.M.A. Belgore forwarded to me the copy of petition written by Concerned Senior Lawyers of Ekiti State calling for my response to the said petition. A copy of the letter is attached as Exhibit KB2.
5. That I duly responded to the matters raised in the petition.
6. That surprisingly on 20th December 2006, the 1st defendant through a letter written by its erstwhile Chairman, Hon, Justice S.M.A. Belgore suspended me from performing my duties as the Chief Judge of Ekiti State. A copy of the letter is attached as Exhibit KB3.
7. That following my suspension, the 1st defendant removed my name from the payroll and stopped the payment of my salaries, emoluments, allowances and other perquisites attached to the office of the Chief Judge.
8. That by a resolution passed by the Ekiti State House of Assembly on 10th May, 2007, the Ekiti State House of Assembly resolved that His Excellency the then Acting Governor of Ekiti State, Rt. Hon. Tope Ademiluyi should take necessary steps to recall me back to office as the Chief Judge of Ekiti State. A copy of the resolution is attached as Exhibit KB4.
9. That in pursuance of the said resolution, His Excellency the Acting Governor of Ekiti State by a letter dated 15th May, 2007 appealed to the 1st defendant to rescind its decision on me. A copy of the letter is attached as Exhibit KB5.
10. That also on the strength of the aforesaid resolution, the Ekiti State House of Assembly by a letter dated 15th May, 2007 jointly signed by the then Acting Speaker Rt. Hon. Olusola Omolayo and Clerk of the House Barr. (Pastor) A.O. Fasiku also appealed to the 1st defendant to rescind his decision on me. A copy of the letter is attached as Exhibit KB6.
11. That surprisingly, the 1st defendant, by a letter with reference no. NJC/S972/1/155 dated 5th June, 2007 written by its Chairman purportedly removed me from office as the Chief Judge of Ekiti State. A copy of the letter is attached as Exhibit KB7.
12. That before my purported suspension I was not given the opportunity of meeting with and cross-examining any of the petitioners on the matters raised in the said petition.
13. That since my purported suspension and/or removal I have not been paid my salaries, emoluments, allowances and other perquisites of my office.
14. That I know as a fact that before and after my purported removal from office as Chief Judge of Ekiti State neither the Governor of Ekiti State nor Ekiti State House of Assembly, the 3rd defendant herein took the steps listed in Section 292 of the Constitution of the Federal Republic of Nigeria in pursuance of my removal from office.
15. That I know as a fact that the 1st defendant cannot alone remove me from office as the Chief Judge of Ekiti State.
16. That I am still the incumbent Chief Judge of Ekiti State.”
Exhibit KB7, addressed to the Acting Speaker of the Ekiti State House of Assembly by the Chief Justice of Nigeria and Chairman of the 1st respondent, is also crucial to the resolution of this issue. It is at page 25 of the record and reads thus:
“Your letter of 15th May, 2007 on the above underlined was considered by the National Judicial Council at its last meeting which was held on 16th and 17th May, 2007. After deliberation, council found that it had already taken a decision on the matter and indeed recommended Hon. Justice Kayode Bamisile and Hon. Justice Jide Aladejana for removal from office to the then Administrator of Ekiti State, and would therefore not revisit the decision.
Consequently, they had since 21st December, 2006 when the Council forwarded the recommendation for their removal from office, seized to be on the Pay Roll of the National Judicial Council, as they are no longer serving judicial officers.”
In the course of the judgment the learned trial Judge at page 137 of the record interpreted Exhibit KB7 thus:
“It is clear to me beyond any per adventure that what Exhibit “KB6” that is, letter of 15th May, 2007 pleaded for, was a lift on the suspension of the plaintiff, inter alia, by the 1st Defendant. The reply in Exhibit “KB7″ is a refusal to lift the suspension and no more.” (Underlining mine).
Issue 2
Whether having regard to the circumstances of this case, the learned trial Judge was right in failing to nullify the appellant’s suspension.
It is the appellant’s contention that the 1st respondent failed to comply with the rules of natural justice by failing to afford him a fair hearing before his suspension. Learned Senior Counsel for the appellant argued on two grounds: the first is that the relationship between the appellant and the 1st respondent is not just one of master and servant under the common law but that of master and servant with statutory flavour. Secondly that the appellant ought to have been allowed to cross-examine the signatories to the petition, Exhibit KB2 particularly as some of the allegation bordered on corruption. He relied on; Garba vs. University of Maiduguri (1986) 1 NWLR (18) 550. Learned Senior Counsel was of the view that the fact that the appellant averred in his supporting affidavit that he was issued with a query, which he answered, does not meet the requirement of fair hearing in this case. He submitted that the decision, of the Court of Appeal in Longe Vs FBN Plc. (2006) All FWLR (313) 46; also found in (2006) 3 NWLR (867) 228 relied upon by the learned trial Judge wherein Salami, JCA (as he then was) opined that an employer, need not afford an employee a fair hearing before placing him on suspension was made obiter, as suspension was not an issue in the case. He submitted that the authorities relied upon by Salami, JCA in Longe’s case were in relation to master and servant cases decided on common law principles where the employment did not enjoy statutory flavour and in situations where the rule of natural justice was excluded because the suspension was to facilitate investigation into the subject matter of the suspension. Learned counsel submitted that in the instant case the suspension was a punishment meted out to the appellant after the 1st respondent had concluded investigation. He submitted that Exhibit KB3 shows that while the appellant appeared before a committee set up by the 1st respondent, the 1st respondent did not conduct any investigation of its own but merely, deliberated upon and accepted the Committee’s report and forwarded its recommendation to the Sole Administrator of Ekiti State. He submitted that where an investigating panel makes a recommendation to a statutory body, as in the instant case, the implementation must comply with the rules of natural justice. In other words, the 1st respondent ought to have conducted an inquiry of its own before recommending his suspension and before removing his name from the payroll. He relied on: Adeniyi Vs Governing Council, Yabatech (1993) 7 SCNJ 304; Aiyetan vs NIFOR (1983) 3 NWLR (59) 48; U.N.T.H.M.B. Vs. Nnoli (1994) 8 NWLR (363) 376 @ 404; Alhaji Baba Vs. N.C.A.T.C. (1991) 5 NWLR (192) 388 @ 418; Garba Vs University of Maiduguri (1986) 1 NWLR (18) 550. He urged the court to resolve this issue in the appellant’s favour.
In reaction, to the above submissions, learned senior counsel for the 1st respondent submitted, that the 1st respondent’s authority to investigate complaints or acts of grave misconduct against judicial officers and to make recommendation5 as it deems fit is derived from Section 292 and paragraph 21(d) Part 1 of the Third Schedule to the 1999 Constitution. He referred to: Gov. Ebonyi State Vs Isuama (2004) 6 NWLR (870) 511 @ 537 B – D. He submitted further that the relationship ‘ between the appellant and the 1st respondent is constitutional and not that of master and servant. Having regard to the fact that the petition against the appellant was in writing, that it was given to him for his comments and that he duly responded thereto, and also that he appeared before a disciplinary committee of members of the 1st respondent, learned senior counsel submitted that the appellant was given adequate opportunity to defend himself and that there was no evidence before the court to show that the appellant’s response required further explanation or that he made a request to cross-examine the petitioners, which was denied. He submitted that in observing the rules of natural justice, the tribunal must give the other side a fair opportunity of commenting on and contradicting the facts but need not necessarily call for cross-examination. He relied on several authorities including Adigun vs. A.G. Oyo State (1987) 1 NWLR (53) 678 @ 758; Adedeji vs. Police Service Commission (1968) NMLR 102 @ 107. He submitted that the case of Garba Vs University of Maiduguri (supra) is not applicable in this case as it deals with the incompetence of a statutory body to try complaints of a criminal nature while in the instant case the 1st respondent has a constitutional duty to investigate complaints or acts of grave misconduct against judicial officers and to make appropriate recommendations. He referred to: Gov. Ebonyi Vs Isuama (supra) and Okike vs. L.P.D.C. (2006) 1 NWLR (960) 67 @ 97 F – G and submitted that a charge of professional misconduct is civil in nature,
Learned senior counsel urged the court to disregard the submission that the 1st respondent did not invite any of the petitioners to testify on the ground that the issue that was fought before the lower court was the fact that the appellant was not given an opportunity to cross-examine them. He argued that the appellant is not entitled to raise a new issue on appeal without leave of court.
With regard to the submission that the 1st respondent ought to have conducted its own investigation, he submitted that the 1st respondent through its chairman made a copy of the petition available to the appellant in response to which he made written representation in his own defence and further that he appeared and defended himself before a committee of the members of the 1st respondent who investigated the allegations against him. He maintained-that neither the suspension nor the recommendation for. Removal was a punishment as contended by the appellant.
Learned counsel for the 3rd and 4th respondents made similar submissions to those of learned senior counsel for the 1st respondent. In addition he submitted that the appellant’s issues 1 and 2 appear to be in conflict with one another. Relying on the case of Comm. for Finance Vs Ukpong (2000) 4 NWLR (653) 363 @ 387 F – G, he submitted that a party must be consistent in presenting his case. He maintained, as did learned senior counsel for the 1st respondent that the opinion of Salami, JCA in Longe’s case was not o6itJ and that the case of Garba Vs University of Maiduguri (supra) is distinguishable from the facts of this case.
It is not in doubt that the 1st respondent has the constitutional responsibility to investigate complaints of acts of grave misconduct or contravention of the Code of Conduct against the judicial officers specified in paragraph (ii) of Section 292(1) of the Constitution. It has the power to exercise disciplinary control over erring judicial officers and in appropriate circumstances to recommend the removal from office of such judicial officers to the Governor of the State. The power to remove the Chief Judge of a State is vested solely in the Governor acting on an address supported by two-thirds majority of the House of Assembly of the State, It is clear therefore that the investigative and disciplinary powers conferred on the 1st respondent by the said provisions do not include the power of dismissal. In the exercise of the powers so conferred the 1st respondent exercises quasi-judicial functions and is bound to observe the rules of natural justice.
The twin fundamental principles of natural justice recognized our law are audi alteram partem and nemo judex in causa sua i.e. “hear the other side” and “a man shall not be a judge in his own cause”. They have been entrenched in Section 36(1) of the 1999 Constitution which provides thus:
36.(1) “In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.”
What is meant by fair hearing? It has, been held that fair hearing within the meaning of Section 33(1) of the 1979 Constitution (which is in pari materia with Section 36(1) of the 1999 Constitution) means a trial conducted according to all legal rules formulated to ensure that justice is done to the parties. It has been held to encompass not only the compliance with the rules’ of natural justice but also audi alteram partem. It also entails doing all things, whether in civil or criminal trials that would make an impartial observer believe that the trial has been balanced and fair on both sides- See: Amanchukwu Vs The Federal Republic of Nigeria (2009) 2 – 3 SC (Part 1) 93 @ 102 – 103; Alhaji Isiyaku Mohammed vs. Kano Native Authority (1968) 1 All NLR 424 @ 426; Pam & Anor. Vs. Mohammed & Anor. (2008) 5 – 6 SC (Part 1) 83 @, 134 – 135. Fair hearing has been defined as the right of a party to correct or contradict the evidence against him or in his favour. A denial of fair hearing is a denial of the opportunity to present a litigant’s case. See: Oni Vs Fayemi (2008) 8 NWLR (1089) 400 @ 432 E.
The appellant herein is not contending that he was not afforded a hearing. His complaint is that having regard to the circumstances of the case he was not given a fair hearing. The Supreme Court in Isiyaku Mbhammed Vs Kano Native Authority (supra) held that a fair trial of a case consists of the whole hearing and that the true test of fair hearing is the impression of a reasonable man, present at the trial, that justice has been done.
The undisputed facts in this case are that a petition signed by a group of lawyers described as “Concerned Senior Lawyers of Ekiti State” was addressed to the chairman of the 1st respondent requesting the appellant’s removal as the Chief Judge of the State on several grounds. The petition’,.(annexed to Exhibit KB2 in paragraph 4 of the supporting affidavit) and signed by more than twenty senior lawyers contains many far-reaching and damning accusations- of gross misconduct including corruption against the appellant.
The 1st respondent averred in paragraphs 6, 7 and 9 of its counter-affidavit thus:
6. “In the investigation of allegation of misconduct made against the plaintiff, the 1st defendant gave him adequate opportunity to defend himself.
7. Subsequent to the said investigation, the 1st defendant in exercise of its powers under the constitution of the Federal Republic of Nigeria:
(i) suspended the plaintiff from office by Exhibit KB3 attached to the plaintiff’s affidavit;.
(ii) recommended to the Administrator Ekiti State compulsory retirement/removal of the plaintiff from office by a letter dated 21 December 2006, a copy of which is attached hereto and marked Exhibit A; and
(iii) stopped payment of salary and emoluments of the plaintiff
9. The 1st defendant did not remove the plaintiff from office by Exhibit KB7 attached to the plaintiff’s affidavit. ”
In paragraph 7 (i) and (ii) of their counter affidavit the 3rd and 4th respondents averred as follows:
7: That with regards to paragraphs 11 to 20 of the plaintiff’s ‘ affidavit the said L.B. Ojo of Counsel has further informed me and I verily believe him:-
(i) that the plaintiff appeared before the 1st defendant’s investigation committee and subsequent removal from office as stated in Exhibit KB3 attached to the plaintiff’s affidavit
(ii) that the removal of the plaintiff was in accordance with the Constitutional provisions.”‘
At this, stage it is appropriate to reproduce Exhibit KB3 dated 20/12/06 and addressed to the appellant by the 1st respondent. It reads:
“Re: Investigation by the National Judicial Council of Petitions Against You on the Impeachment Proceedings Culminating in the Removal of the Immediate Past Governor of Ekiti State, Mr. Ayo Fayose.
You may wish to recall that the National Judicial Council set up a “Fact Finding Committee” comprising its members, under the Chairmanship of the President of the Court of Appeal, Hon. Justice Umaru Abdullahi, CON, to investigate the aforestated petitions, which had earlier been forwarded to you for your comments.
2. After the investigation, the Committee which you appeared before and was heard, submitted a report to the National Judicial Council, which was deliberated upon by the latter during its emergency meeting which was held on 20th December, 2006.
3. Consequently, acting pursuant to the powers conferred on it under the 1999 Constitution of the Federal Republic of Nigeria, the Council decided to suspend you with immediate effect from office as the Chief Judge of Ekiti State until further notice.
4. A copy of this letter is being forwarded to His Excellency, the Sole Administrator of Ekiti State.
Signed
S.M.A. Belgore, GCON
Chief Justice of Nigeria and Chairman, National Judicial Council.” (Emphasis mine).
The appellant’s reply to the petition was not exhibited. What is apparent from Exhibit KB3 above is that after considering the appellant’s written response to the matters raised in the petition, the fact finding committee set up by the 1st respondent found it necessary to invite the appellant to appear before it to afford him an opportunity to further clarify certain issues. It is not the contention of the appellant that he at any time requested that the petitioners be invited to enable him cross-examine them on any issue or that such a request was made and refused.
The proceedings before the fact-finding committee, the consideration of its report by the 1st respondent, the appellant’s subsequent suspension and the recommendation for his dismissal were steps taken by the 1st respondent in exercise of its powers under Section 292 and paragraph 21(d) of Part I of the Third Schedule to the 1999 Constitution. I agree with learned senior counsel for the appellant that the view of Salami, JCA (as he then was) in Longe Vs First Bank Plc (2006) 3 NWLR (967) 228 to the effect that the principles of natural justice are held in abeyance where the urgency of the situation requires the immediate suspension of an employee, is not applicable in the circumstances of this case. I also agree that the view was expressed obiter as His Lordship stated clearly at page 267 B – D (supra) that the suspension of the appellant was not an issue in the appeal. In the instant case the investigation had been conducted and conclusions reached upon which the 1st respondent based its disciplinary action and recommendation.
The case of Adeniyi Vs Governing Council, Yabatech (supra) can be distinguished from the facts of this case because in that case, the appellant, who was the Deputy. Registrar of Yaba College of Technology and the Secretary of the Governing Council conducting interviews for the vacant position of a Rector of the institution was invited as a witness before an investigating panel to shed light on the circumstances surrounding the leakage of a report. At the conclusion of the investigation and without calling on him, the Council decided to retire him voluntarily from the service of the College. It was held that he did not receive a fair hearing having regard to the fact that he appeared before the panel as a witness and no specific accusation of misconduct was made against him. The investigation was not as to his conduct but as to the circumstances of the leakage. It was held that once the panel found that the appellant was involved in the leakage, the accusation ought to have been put to him before disciplinary action was taken against him. That is not the case here.
I have also considered the submission of the learned Attorney-General for the 3rd and 4th respondents relying on the case of Nwawuba vs Enemuo (1998) 1 NSCC (Vol. 19) 930 to the effect that the appellant’s averment in his supporting affidavit that he duly responded to the matters raised i4 the petition amounts to admission against interest. The issue in this case is whether, notwithstanding the fact that the petition was made available to the appellant for his reaction and the fact that he was invited to appear before it, the fact-finding committee of the 1st respondent observed the rules of natural justice with regard to his suspension. A hearing can only be said to be fair when all the parties to the dispute are given a hearing or an opportunity of a hearing. In the instant case the appellant was not only given a hearing when he was asked to react to the petition against him, he was given a further opportunity to defend himself against the allegations made against him by the invitation to appear before the committee. He was duly heard threat. As observed earlier there was nothing before the court below to suggest that he made any request when he appeared before the committee to cross-examine the petitioners. There was also nothing before the court to suggest that the committee relied on any facts outside Exhibit KB2 and his response thereto in reaching its conclusions. It cannot be said that he was denied the opportunity of presenting his case, I am therefore of the view that in the circumstances of this case, the appellant failed to show that he was denied a fair hearing. The learned trial judge was therefore correct in refusing to nullify the suspension. This issue is accordingly resolved against the appellant.
Issue 1
Whether the learned trial Judge was correct in the interpretation placed on Exhibit “KB7”, namely that it did not constitute removal of Appellant as a judicial officer.
Exhibit KB7 has been reproduced earlier in the judgment. Learned Senior Counsel for the appellant submitted that the interpretation placed on the document is rather restrictive. He submitted that Exhibit “KB7” ought to have been construed as a whole in order to ascertain the meaning of the words conveyed by the document. He relied on: Mbani vs. Bosi (2006) 11 NWLR (Pt.991) 400 @ 417. He submitted that a community reading of Exhibit “KB7” clearly shows that it is wider in scope than the meaning- accorded it by the learned trial Judge. He contended that it is much more than a refusal to lift the suspension of the Plaintiff. He argued that the last paragraph of Exhibit “KB7” shows that the 1st respondent actually removed the appellant. He submitted that the removal of the Appellant’s name from its payroll is consistent with permanence. He compared the language employed in Exhibit KB3, the letter of suspension, with the language used in Exhibit KB7 and submitted that Exhibit KB7 shows that the 1st respondent wrongly exercised the power of removal conferred on the Governor of Ekiti State and 3rd Respondent respectively by virtue of provisions of Section 292(i)(a)(ii) of the 1999 Constitution of the Federal Republic of Nigeria.
In reaction to the submissions of learned senior counsel for the appellant, Mr. Babatunde Aiku, SAN submitted that Exhibits KB3 and KB7 were written pursuant to the powers of the 1st respondent under Section 292(1)(b) and 21(d) of Part 1 of the Third Schedule to the 1999 Constitution. He submitted that the failure of the appellant to file a further affidavit to challenge the averments in paragraphs 7, 8, 9 and 10 of its counter-affidavit, particularly to the effect that it did not remove him from office by Exhibit KB7 means that the said averments are deemed admitted. He submitted that the effect and implication of the appellant’s suspension is the cessation of the rights and privileges, including salary and emoluments, duties and powers attached to his office as Chief Judge and that the learned trial Judge rightly held that he is still in the service of Ekiti State as a suspended judicial office. He referred to the case of Longe vs. F.B.N. Plc. (2006) 3 NWLR (967) 228 @ 267A. He submitted that the appellant has not appealed against things finding and can therefore not be heard to question it on appeal. On the need to interpret the pleadings or documents as a whole he relied on: Apena vs. Aiyetobi (1989) 1 NWLR (95) 85 @ 96 C – D; Ibrahim vs. J.S.C. (1988) 14 NWLR (584) 1 @ 49 F – G and 66 – 67 D-A; Mbani vs. Bosi (supra) at 417 D; Ogbonna Vs. A.G. Imo (1992) 1 NWLR (220) 647 @ 685 E – G.
He submitted that a community reading of Exhibits KB3, KB6, KB7 attached to the affidavit in support of the originating summons and Exhibit A attached to its counter affidavit would reveal that Exhibit KB7 is a report/summary of the disciplinary steps taken against the appellant by the 1st respondent; that it cannot by inference be interpreted to mean that the appellant was thereby removed from office; and shows further that the appellant remains on suspension until removed by the Governor. He contended that the steps taken by the 1st respondent as averred in paragraphs 6 – 10 of the its counter-affidavit pursuant to Section 292(1)(b) and 21(d) of Part 1 of the Third Schedule to the 1999 Constitution show uncompleted disciplinary proceedings against the appellant as a judicial officer. He submitted further that since the Governor has not acted on the recommendation for the appellant’s removal he remains on suspension. He considered it significant that he is not challenging the recommendation for his removal under Section 292(1)(b) of the Constitution. He noted that from the last sentence of Exhibit KB7 the appellant ceased to be on the 1st respondent’s pay roll since 21st December, 2006 and not as a result of Exhibit KB7 in June, 2007. He submitted that the learned trial Judge was correct when he held that Exhibit KB7 does not have the effect of removing the appellant from office as a judicial officer. He contended that the only inference to be drawn from Exhibit KB7 is that the appellant was suspended from office without pay since 21st December, 2006 pending action by the Governor on the 1st respondent’s recommendation. He argued that the inference of the removal of the appellant’s name from the payroll is that the removal would last for the period of suspension and until action is taken on the recommendation for his removal.
He submitted that Exhibit KB7 addressed to the Speaker of the Ekiti State House of Assembly could not have the effect of dismissing the appellant, as the Speaker has no role to play in matters of discipline under Section 292(1)(b) of the 1999 Constitution. He submitted further that a careful reading of Section 292(1)(b) and 21(d) of Part 1 of the Third Schedule to the 1999 Constitution shows that the relationship between the appellant and the 1st respondent is constitutional and not that of master and servant and therefore the submissions relating to the removal of an employee’s name from the payroll in a master/servant relationship are inapplicable in the circumstances of this case.
The submissions of learned counsel for the 3rd and 4th respondents in respect of this issue are virtually on all fours with the submissions of learned counsel for the 1st respondent.
In response to the respondents’ submissions learned counsel for the appellant submitted that in so far as the averments in paragraphs 7, 8, 9 and 10 of the 1st respondent’s counter affidavit touch on the interpretation of Exhibits KB3 and KB7, the documents speak for themselves and no oral or other extrinsic evidence would be allowed to vary, alter or contradict their contents, As such a further affidavit to deny the averments referred to was not necessary in the circumstances. He relied on: Akwa vs. C.O.P. (2003) 4 NWLR (811) 461 @ 493; R,E,A,B, Vs. Aswani ile Ltd. (1992) 3 NWLR (227) 1 @ 13 D; Union Bank of Nig. Ltd. vs. Prof. A.O. Ozigi (1994) 3 nwlr (333) 385 @ 400 D – H. He maintained that Exhibit KB3 shows clearly that the appellant’s suspension was indefinite. He submitted that indefinite suspension has been construed in a number of cases to mean dismissal. He relied on: Olafimihan vs. Novo Lay-Tech. Ltd. (1998) 4 NWLR (547) 608 @ 619- 620; Oyelude vs. C.B.N. (1977) 4 CCHCJ 685 @ 694. He maintained that Exhibit KB7 goes beyond suspension and amounts to removal of the appellant as a judicial officer, an act which the 1st respondent lacks the constitutional power to carry out.
A convenient place to start is a consideration of the Constitutional provisions relating to the removal of a judicial officer from office. Section 292(1)(a) (ii) of the 1999 Constitution (as amended) provides:
292(1) “A judicial officer shall not be removed from office before his age of retirement except in the following circumstances.
(a) in the case of-
(ii) the Chief Judge of a State, Grand Kadi of a Sharia Court of Appeal or President of a Customary Court of Appeal of a State, by the Governor acting on an address supported by the two-thirds majority of the House of Assembly of the State, praying that he be so removed for his inability to discharge the functions of his office or appointment (whether arising from infirmity of mind or body) or for misconduct or for contravention of the Code of Conduct.” (Emphasis mine).
Paragraphs 21(c) and (d) of Part 1 of the Third Schedule to the 1999 Constitution provides:
21. “The National Judicial Council shall have power to-
(c) recommend to the Governors from among the list of persons submitted to it by the State Judicial Service Commissions persons for appointments to the offices of the Chief Judges of the States and Judges of the High Courts of the States, the Grand Kadis and Kadis of the Sharia Court of Appeal of the States and the President and Judges of the Customary Court of Appeal of the States;
(d) recommend to the Governors the removal from office of the judicial officers specified in paragraph (c) of this paragraph and to exercise disciplinary control over such officers.” (Emphasis mine).
The constitutional provisions are clear and unambiguous. In line with the cannons of interpretation of statutes it is a cardinal principle that where the words in a statute are clear and unambiguous effect must be given to them without resorting to any external aid. See: Awolowo vs. Shagari (1979) 6 – 9 SC 73; Bendel State vs. A.G. Federation (1982) 3 NCLR 1; Okotie-Eboh vs. Manager (2004) 11 – 12 SC 184 @ 191. From the above provisions, the power of the 1st respondent is limited to recommending to the Governor persons for appointment to the judicial offices specified in paragraph 21(c), exercising disciplinary over judicial officers and recommending to the Governor, in appropriate circumstances, their removal from office for reasons stated in paragraph 21(d) of Part 1 of the Third Schedule to the 1999 Constitution.
The suspension of the appellant vide Exhibit KB3 could be said to be in exercise of the 1st respondent’s power of disciplinary control over the appellant. Exhibits KB5 and KB6 were appeals to the 1st respondent from the Acting Governor of the State and Ekiti State House of Assembly to reconsider its suspension of the appellant and the recommendation for his dismissal and to reinstate him. Exhibit KB7 was written in response to the letter from the State House of Assembly. Although reproduced earlier Exhibit KB7 is reproduced again hereunder for ease of reference:
“Your letter of 15th May, 2007 on the above underlined was considered by the National Judicial Council at its last meeting which was held on 16th and 17th May, 2007. After deliberation, council found that it had already taken a decision on the matter and indeed recommended Hon. Justice Kayode Bamisile and Hon. Justice Jide Aladejana for removal from office to the then Administrator of Ekiti State, and would therefore not revisit the decision.
Consequently, they had since 21st December, 2006 when the Council forwarded the recommendation for their removal from office, seized to be on the Pay Roll of the National Judicial Coucnil, as they are no longer serving judicial officers.” (Emphasis mine).
There is no doubt, as submitted by learned counsel for the respondents that Exhibit KB7 is a clear refusal to revisit the suspension of the appellant. The question that arises is whether the underlined portion conveys more than a refusal to lift the suspension. Does it convey the dismissal of the appellant? I would state straight away that Exhibit KB7 is not a letter of dismissal. It is addressed to the Ekiti State House of Assembly in response to the request to lift the appellant’s suspension. It cannot by any stretch of the imagination be construed as a letter of dismissal, particularly as it is not addressed to the appellant. However, having so stated, what does Exhibit KB7 convey? It shows clearly that upon the appellant’s suspension and the recommendation for his removal from office, the 1st respondent had taken other steps affecting his civil rights and obligations. From the underlined portion of Exhibit KB7, the 1st respondent had taken the position that upon its recommendation for the appellant’s removal from office he had ceased to be a judicial officer and on that basis his name was removed from the payroll. This position is confirmed by the averment in paragraphs 7 of the 1st respondent’s counter-affidavit (reproduced earlier in this judgment) where it was averred in sub-paragraph (iii) that in the exercise of its powers under the constitution it had “stopped payment of salary and emoluments of the plaintiff.”
Essentially, the contention of the appellant is that the removal of his name from the payroll and the stoppage of his salary and emoluments is beyond the powers of the 1st respondent under paragraph 21(d) of Part 1 of the Third Schedule to the 1999 Constitution because the Governor of Ekiti State was yet to accept the recommendation for his removal from office. With the utmost respect to the 1st respondent, I am of the humble view that it amounts to a misconception of its powers under the Constitution to presume that a judicial officer ceases to hold office as such immediately a recommendation is made to the Governor for his removal from office. The Governor is certainly at liberty to reject the recommendation. Indeed, in the instant case, it was evident that the Acting Governor was reluctant to act on the recommendation and rather pleaded with the 1st respondent to temper justice with mercy.
The removal of the appellant’s name from the payroll of judicial officers was predicated upon his suspension “until further notice” vide Exhibit KB3. In Longe Vs. First Bank of Nig. Plc. (2010) 2-3 SC (Pt.III) 61 @ 94 – 95. His lordships Oguntade, JSC cited with approval the cases of University of Calabar Vs. Esiogu (1997) 4 NWLR (502) 719 @ 723 and Boston Sea Fishing Co. Vs. Ansell (1886 -90) All ER 65 on the nature and consequences of the suspension of an employee. In Boston Sea Fishing Co. Vs. Ansell (supra) the Court held:
“Mr. Ansell was dismissed and I think his dismissal must be taken to date from that meeting on October 19 and not from the day in September when he was suspended by the board because suspension is very different from dismissal. When a man is suspended from the office he holds, it merely amounts to saying “so long as you hold the office until you are legally dismissed, you must not do anything in the discharge of the duties which under your office you ought to do towards your employer.”
His Lordship Oguntade, JSC went on to state at page 95 of Longe’s case (supra):
“Admittedly, an employer suspending his employee may impose terms of the suspension but in a general sense suspension of an employee from work only means the suspension of the employee from the performance of the ordinary duties assigned to him by virtue of his office. Suspension is not a demotion and does not entail a diminution of the rights of the employee given to him under the law.” In the instant case the appellant, by his suspension, did not cease to be a judicial officer until the Governor had accepted and acted upon the 1st respondent’s recommendation. Thus, while Exhibit KB7 is not a letter of dismissal, it shows clearly that the 1st respondent exceeded its powers under paragraph 21(d) of Part 1 of the Third Schedule of the 1999 Constitution and usurped the powers of the Governor of Ekiti State under Section 292(1)(a)(ii) thereof and acted ultra vires by removing the appellant’s name from the payroll and treating him as having ceased to be a judicial officer. This issue is accordingly resolved in favour of the appellant.
Issue 3
Was the learned trial Judge right in failing to order the payment of the appellant’s salaries and other emoluments in view of his finding that the appellants is still in the Judicial Service of Ekiti State.
Learned senior counsel for the appellant submitted that there was evidence before the court that the appellant’s salaries and other emoluments have remained unpaid since the decision contained in Exhibit KB3 and that Exhibit KB7 confirms that his name has been removed from the payroll. He submitted that non-payment of salary cannot be indefinite and is considered a serious issue by the court. He referred to: Garba vs. Federal Civil Service Commission (1988) 1 NSCC 306 @ 328. He submitted that since investigation into the matter had been concluded, the court ought to have ordered the payment of his salaries. He noted further that the 3rd respondent who has a duty to act on the recommendation for his removal from office did not so act up till the institution of the action but rather called for his re-instatement.
Learned senior counsel for the 1st respondent contended that the appellant is not entitled to salaries and emoluments for work not done. He submitted that the learned trial judge found that he was still in the service of the State as a judicial officer on suspension. He referred to the decision of this court in Longe vs. First Bank of Nig. Plc. (supra) at 266 A – D and Abenga vs. B.S.J.S.C. (2006) 14 NWLR (1000) 610 @ 620 G – H. He submitted further that there is no evidence that he is entitled to the payment of salaries, emoluments and allowances during the period of suspension, or that any judicial officer on suspension ought to remain on the payroll during the period of his suspension. He submitted that the appellant failed to prove his case as required by Section 137 of the Evidence Act. He also referred to Alao vs. V.C. Ilorin (2008) 1 NWLR (1069) 421 @ 466 F – G. He submitted that the appeal to the 1st respondent to rescind the appellant’s suspension could not be construed as a refusal by the Governor to act on its recommendation for his removal. He submitted that the case of Garba vs. F.C.S.C. relied upon by learned senior counsel for the appellant is not applicable to the circumstances of this case.
Relying on the Court of Appeal decision in the case of Longe vs. First Bank of Nig. Plc. (supra), learned counsel for the 3rd and 4th respondents submitted that as long as the appellant remains on suspension, his duties, rights and privileges are also suspended. He referred to the case of Garba vs. F.C.S.C. (supra) at page 328 where the court held thus:
“Interdiction which… could have the effect of suspending an interdicted officer from his lawful duties and affect his pocket in that he is placed on half pay can not rightly be described as trifle. Indeed in some circumstances it could carry a greater hardship than retirement or compulsory retirement with full benefits.”
He contended that the above dictum supports the respondents’ position. He submitted further that the Governor of Ekiti State, who was not joined as a party in the suit is the person conferred with the constitutional duty to act on the 1st respondent’s recommendation and not the 3rd respondent. In his oral submissions at the hearing of the appeal, he submitted that even if Exhibit KB7 were improper, Exhibit KB5 (the letter of suspension) remains valid. He also contended that there was no prayer before the court seeking the payment of the appellant’s salaries during the suspension.
In his reply brief, learned senior counsel for the appellant pointed out the fact that the decision of this Court in Longe’s case is not an authority for the proposition ascribed to it by the respondents. He noted that in Longe vs. First Bank of Nig. Plc. (2010) 6 NWLR (1189) 1 @ 17 – 18, also found in (2010) 2 -3 SC (Part III) 61 @ 95 the Supreme Court per Oguntade, JSC disagreed with the reasoning of this Court on the import of suspension. He submitted that the Supreme Court made it clear that whilst on suspension the rights of the employee are still protected and not lost. He submitted further that the 1st respondent was wrong to have stated in Exhibit KB7 that the appellant had ceased to be a judicial officer and that his name had been removed from the payroll. He referred to the case of Adekunle vs. Western Region Finance Corporation (1993) WNLR 5 per Fatayi-Williams, J (as he then was) where it was held that by merely suspending the plaintiff from the performance of his duties the defendant corporation had allowed the contract of employment to subsist during the relevant period and that it could not escape liability for paying the plaintiff’s salary during the period by dismissing him retrospectively.
I have given careful consideration to the submissions of the respective learned counsel. With due respect to the learned Attorney-General for the 3rd and 4th respondents it would not be correct to state that there was no prayer for the payment of the appellant’s salaries, emoluments and other perquisites of office during his suspension as this relief is clearly sought in paragraph 10 of the originating summons.
In Longe’s case (supra) Oguntade, JSC held at apge 95 of the SC report:
“I think with respect, that the court below completely misunderstood the import of suspension. Admittedly an employee suspending his employee may impose terms of his suspension, but in a general sense suspension of an employee from work only means the suspension of the employee from performance of ordinary duties assigned to him by virtue of his office…
It is my firm view that the court below was wrong to have held that the suspension of the defendant on 22-04-02 robbed him of his status as a director of the defendant.”
Exhibit KB3 does not impose any terms of the suspension either on half pay or without pay. In the absence of a specific pronouncement on the issue the presumption is that the appellant is entitled to his salaries, emoluments and other perquisites of office pending a final decision being taken on his matter.
As the Governor of Ekiti State is yet to act upon the recommendation of the 1st respondent for the appellant’s removal from office, I hold that he is entitled to his salaries, emoluments, fringe benefits and other perquisites of the office of the Honourable Chief Judge of Ekiti State with effect from 21st December, 2006. I accordingly resolve this issue in favour of the appellant.
The appeal therefore succeeds in part. That part of the decision of the Federal High Court, Akure Judicial Division delivered on 12/3/08 refusing the appellant’s relief 10 is hereby set aside. The part of the judgment refusing reliefs 3, 5, 6, 7, 8, 9, 11, 12 and 13 is hereby upheld. The 1st respondent is hereby ordered to pay the salaries, emoluments and other entitlements of the appellant from 21st December, 2006 till the date of this judgment and thereafter until the Governor of Ekiti State takes a final decision on its recommendation for his removal from office.
Cross-Appeal
As stated earlier in this judgment, the 1st respondent/cross-appellant was dissatisfied with a portion of the judgment appealed against. It filed a notice of cross-appeal on 9/6/08 containing a single ground of appeal. Pursuant to an order of this court of 16/2/2010 if filed an amended notice of cross appeal containing an additional ground of appeal. Paragraph 2 of the Amended Notice of Cross-Appeal sets out the part of the decision complained of. It reads:
“The decision that the 1st defendant abandoned objection to the ground of its preliminary objection relating to competence of the originating summons.”
The grounds of appeal shorn of their particulars are as follows:
1. The learned trial judge erred in law when he treated the preliminary objection of the 1st defendant as abandoned except the ground touching on statute of limitation.
2. The learned trial judge erred in law by concluding that Section 2(a) of the Public Officers (Protection) Act does not apply to the plaintiff’s case and that the plaintiff’s case is not caught by the Act.
Ground 1 was the original ground of appeal while ground 2 is the additional ground. In the cross-appellant’s brief, ground 1 was abandoned, leaving ground 2 as the sole ground of appeal. A careful perusal of ground 2 however reveals that the said ground is not founded on the part of the decision complained of. The law is settled that a ground of appeal must be derived from the ratio decidendi of the decision of the court in ruling or judgment appealed against. Any ground of appeal, which does not arise from or flow from the judgment appealed against is incompetent and liable to be struck out. See: Nwankwo vs. Ecumenical Devt. Co-Opertive Society (EDCS) U.A. (2007) 5 NWLR (1027) 377; Obi vs. INEC (2007) 11 NWLR (1046) 560; Christaben Group Ltd. vs. Oni (2008) 11 NWLR (1097) 84 @ 105 C – E. The surviving Ground 2, which forms the subtraction of the cross appeal, is incompetent. It is hereby struck out. The issue formulated thereon is also incompetent and accordingly struck out. It follows that the cross appeal is incompetent. It is hereby struck out.
In the event that I am wrong in this view, I shall determine the cross-appeal on its merits.
Both parties formulated a single issue (although differently worded) for determination from ground 2. The issue formulated by the cross appellant is: Whether the plaintiff’s action is caught by Section 2(a) of the Public Officers (Protection) Act.
Learned senior counsel for the cross-appellant submitted that the acts complained of by the cross-respondent were done in execution of the cross appellant’s duty under paragraph 21(d) of Part I of the Third Schedule to the 1999 Constitution. He submitted that the terms of the cross respondent’s employment were not made an issue before the court below. He submitted that the only issue therefore was whether the cross appellant was entitled to protection under the Public Officers (Protection) Act. Learned senior counsel submitted that the learned trial Judge ought to have invited the parties to address him on the applicability of the Act to contract cases. He noted that the Supreme Court in the case of Ibrahim vs. JSC Kaduna (1998) 14 NWLR (584) 1 @ 46 F – H did not consider the applicability of the Act to contract cases. He contended that His lordships misapplied the Supreme Court decision in the case of FGN Vs. Zebra Energy Ltd. (2002) 18 NWLR (798) 162 to conclude that the Act does not apply to contract cases and erroneously dismissed the cross applicant’s preliminary objection. He referred to: Anyanwu Vs. Mbara (1992) 5 NWLR (242) 386 @ 400 E and Ibrahim Vs. JSC Kaduna (supra). He submitted that in so far as the acts complained were done in execution of the cross appellant’s public duty under the 1999 Constitution, this court should declare the cross-respondent’s action commenced outside the limitation period of three months stipulated by Section 2(a) of the Act statute barred and dismiss it accordingly.
Learned counsel for the cross-respondent, in reply to the above submissions, submitted that for the cross-appellant to enjoy the protection afforded by the Act, two conditions must co-exist, namely:
i. That the Public Officers or persons must have engaged in the execution of a public duty; and
ii. They must have acted within the confines of their public duty.
He submitted that once the Public Officers or persons concerned acted outside the colour of their office, they lose the protection afforded by the Act. He referred to: Alapiki Vs. Gov. of Rivers State (1991) 8 NWLR (211) 587 @ 598; Ibrahim Vs. JSC (supra) @ 32.
He submitted that the cross appellant acted outside the scope of its constitutional duties when it issued Exhibit KB7 and further that the cross respondent’s name could only be removed from the cross appellant’s payroll after the Governor and State House of Assembly have acted on its recommendation. He contended that the cross-appellant’s conclusion that he had ceased to be a judicial officer was premature. He rejected the contention of learned senior counsel for the cross-appellant that the learned trial Judge misapplied the decision in F.G.N. Vs. Zebra Energy Ltd. (supra). He conceded that the Supreme Court in F.G.N. Vs. Zebra Energy Ltd. held that the dissenting judgment of Ogundare, JSC in Ibrahim’s case (supra) wherein he considered the applicability of the Act to contract cases was not the binding decision of the apex court on the issue. He however submitted that the latter part of the judgment was in fact an endorsement of Ogundare, JSC’s position. He submitted that it was common ground that the relationship between the cross-appellant and cross respondent was that of master and servant with statutory flavor and therefore the learned trial judge was right to hold that the Act does not apply to contract cases.
The cross appellant’s reply brief is a reiteration of the arguments in the main brief. No useful purpose would be served by reproducing them.
Section 2(a) of the Public Officers (Protection) Act Cap. P41 Laws of the Federation of Nigeria, 2004 provides:
“2. Where any action, prosecution, or other proceeding is commenced against any person for any act done in pursuance or execution or intended execution of any Act or Law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such Act, Law, duty or authority, the following provision shall have effect-
(a) the action prosecution or proceeding shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of, or in the case of a continuance of damage or injury, within three months next after the ceasing thereof…”
The Supreme Court held in the case of Ibrahim Vs. JSC Kaduna (1998) 14 NWLR (584) 1 @ 44 F-G that the Act, applies to both natural and artificial persons.
One of the issues in contention in Ibrahim’s case was:
“Whether the respondents in this matter i.e. the Judicial Service Committee of Kaduna State and the Attorney-General of Kaduna State, howsoever defined, fall within the contemplation of the protection afforded public officers by the Public Officers (Protection) Law Cap 111, Laws of Northern Nigeria, 1963 as applicable to Kaduna State.”
The court, by a majority of 4 – 1 (Ogundare, JSC dissenting) held that the definition of “any person” in the Public Officers (Protection) Law admits and includes artificial persons such as a corporation sole, company or any boy of persons, corporate or unincorporated. Consequently, it answered the first issue in the affirmative. It follows therefore that the Act applies to a statutory body such as the cross appellant, which derives its existence from the Constitution. Whether it applies in the circumstances of this case is a different issue.
In his dissenting opinion, His Lordship Oguntade, JSC concluded by observing, in passing, that the alleged wrong for which the plaintiff sued the defendants was in relation to a contract of employment, which on the authority of Salako vs. L.E.D.B. 20 NLR 169 does not fall within the contemplation of Section 2(a) of the Act.
In the case of FGN Vs. Zebra Energy Ltd., the applicability of the Public Officers (Protection) Act to cases of contract was directly in issue. Learned counsel for the appellant in that case argued that Ibrahim’s case and the case of Sanda Vs. Kukawa LGA (1991) 2 NWLR (174) 379 @ 388 – 389 dealt with contracts of service. Reacting to this submission, Mohammed JSC, in the leading judgment noted that this was not one of the issues for determination in Ibrahim’s case (supra). He held that the dissenting opinion of Ogundare, JSC in respect thereof was not the binding decision on the issue. His Lordship at page 195 H – 198G (supra) then proceeded to consider other cases (N.P.A. Vs. Constuzioni Generali Farsura Cogefar SPA & Anor (1974) 1 All NLR (Pt.2) 463; Midland Railway Co. v. The Local Board for the District of Withington (1882 – 1883) 11 QBD 788 at 794 and Salako Vs. L.E.D.P. & Anor (1953) 20 NLR 169) relied upon by learned counsel for the respondent where the applicability of the Act to cases of contract was directly in issue and concluded that based on the decisions of the Supreme Court in those cases, an enactment such as the Public Officers (Protection) Act is not intended by the legislature to apply to specific contracts. In other words, while the Court did not agree with learned counsel’s argument that Ogundare’s dissenting opinion in Ibrahim’s case is authority for the proposition that the Act is not applicable to cases of contract, it concluded that this was the correct position of the law based on previous decisions in other cases that were directly on the point.
The Supreme Court in C.B.N. Vs. Igwillo (2007) 4 – 5 SC 154 @ 172 explained the categories of contract of employment thus:
“The law is settled that there are now roughly three categories of contracts of employments, viz: (a) those regarded as purely master and servant; (b) those where a servant is said to hold office at the pleasure of the employer; and (c) those where the employment is regulated or governed by statute, often referred to as having statutory flavour; See Olaniyan Vs. University of Lagos (1985) 2 NWLR (9) 599. An employment is said to have a statutory flavor when the appointment is protected by statute or laid down regulations made to govern the procedure for employment and discipline of an employee. Any other employment outside that category is governed by the terms under which the parties agree to be master and servant.”
See also; Imoloame vs. WAEC (1992) 9 NWLR (265) 303; Shitta-Bay vs. University of Lagos (1981) 1 SC 40.The terms of employment of judicial officers are embodied in the provisions of the 1999 Constitution. The employment is therefore akin to a contract of employment with statutory flavour. I am therefore of the considered view that the learned trial Judge correctly interpreted the decision in F.G.N. Vs. Zebra Energy Ltd. (supra) and correctly concluded that Section 2(a) of the Public Officers (Protection) Act does not apply to the cross respondent’s case.
Even where the Act is applicable, it must be shown that the public officer acted within the bounds of his for its) authority. In Ibrahim’s case (supra) at pages 32 D – F, His Lordships, Iguh, JSC held thus:
“It can therefore be said that Section 2(a) of the Public Officers (Protection) Law, 1963 gives full protection or cover to all public officers or persons engaged in the execution of public duties who at all material times acted within the confines of their public duty. Once they step outside the bounds of their public authority and are acting outside their statutory or constitutional duty, they automatically lose protection of that law.”
See also: Alapiki Vs. Gov. of Rivers State (supra) at 599 – 600 – A.
I had held in the course of resolving the main appeal that the cross appellant acted outside the scope of its authority by removing the cross respondent’s name from the payroll and deeming him to have ceased to be a judicial officer in the service of Ekiti State solely on the basis of its recommendation for his compulsory retirement from office when the Governor had not acted thereon. I am therefore of the view that even if the Act were applicable, the cross appellant was not entitled to protection under it having acted outside the bounds of its statutory duty.
In conclusion, I find no merit in the cross appeal. It is accordingly dismissed.
Thus the main appeal succeeds in part wile the cross appeal fails and is hereby dismissed. I make no order for costs.
CHINWE E. IYIZOBA JCA: I read before now the judgment just delivered by my learned brother, K.M.O. Kekere-Ekun, JCA. I agree with the reasoning contained therein and the conclusions arrived thereat.
The 1st Respondent acted within its constitutional powers in suspecting the appellant from office as the Chief Judge of Ekiti State. See paragraph 21(d) of Part 1 of the Third Schedule to the 1999 Constitution which confers on the 1st Respondent disciplinary powers over the appellant. Before the suspension, the 1st Respondent complied with the rules of natural justice and fair hearing by supplying the appellant with a copy of the written complaint against him and inviting him to respond to the complaint in writing. The appellant duly responded. He was again invited to appear before the fact finding committee set up by the 1st Respondent. The contention by the appellant that he was not given a fair hearing because he was not allowed to cross-examine the petitioners lacks substance and merit. The petitioner did not give any oral evidence against him.
Their petition was in writing. He duly responded to the written petition. If he had wanted to cross-examine the petitioners, he should have made the request. But he never did. The appellant was given fair hearing before he was suspended by the 1st Respondent.
Having found that the appellant is still in the judicial service of Ekiti State, the learned Trial Judge with respect was wrong in failing to order the payment of the appellant’s salaries and other emoluments. The contention of 1st Respondent is that since the appellant was still on suspension, he was not entitled to his salaries and emoluments. This contention with all due respect cannot be supported. Suspension of an employee from work only means suspension from ordinary duties assigned to him by virtue of his office. University of Calabar v. Esiaga (1997) 4 NWLR (Pt. 502) 719. Such suspension will not deny him of payment of his salaries where the suspension was not specifically stated to be without salary or on half salary. Where no such specification is made, the suspended officer is entitled to his salary and other emoluments during the period of the suspension. The appellant herein is consequently under no obligation as argued by the 1st Respondent to make out a case for payment of his salaries and emoluments while on suspension.
I also allow the appellant’s appeal with respect to relief 10 and dismiss the cross-appeal as lacking in merit. I abide by all the consequential orders in the leading judgment.
MOORE A.A. ADUMEIN JCA: l read the draft of the leading judgment just delivered by my learned brother, KEKERE-EKUN, JCA, His Lordship has comprehensively and conclusively dealt with all the issues in the appeal and cross appeal. My contribution is merely to “fulfil all righteousness-”
The appellant was suspended “with immediate effect from office as the Chief Judge of Ekiti State until further notice” by the 1st respondent on the 20th day of December, 2006 vide exhibit KB3. By exhibit KB7, dated however, the 1st respondent informed the then Acting Governor of Ekiti State that the appellant’s name “had since 21st December, 2006” been expunged or removed from “the Pay Roll of the National Judicial Council” because he was no longer a serving judicial officer. The claim of the 1st respondent in exhibit KB7 is tantamount to saying that upon its recommendation to the Acting Governor of Ekiti State, that the appellant be removed from office, he (the appellant) had automatically been removed as the Chief Judge of Ekiti State.
How a Chief Judge, Grand Kadi of a Sharia Court of Appeal or President of a Customary Court of Appeal of a State can be removed from office is clearly provided for in section 292(1)(a)(ii) of the Constitution of the Federal Republic of Nigeria, 1999. The role of the 1st respondent in the process of removing a Chief Judge, Grand Kadi of a Sharia Court of Appeal or President of a Customary Court of Appeal of a State is only to recommend to the Governor the removal of the said judicial officers See paragraph 21(c) of part 1 of the Third Schedule to the Constitution of the Federal Republic of Nigeria, 1999.
In the instant case, the 1st respondent over-estimated its powers and, therefore, put the ‘cart before the horse’ by immediately removing or deleting the appellant’s name from the Pay Roll of judicial officers, thereby depriving and denying him of his salaries and all other monetary or fringe benefits. The 1st respondent did not well appreciate its statutory position and powers in the matter of removal of judicial officers, otherwise it would not have seen itself as the appellant’s employer by taking such a preemptory step as stopping the appellant’s salaries and allowances while his employment, which is spiced with statutory flavour, had not been terminated as required by law or at all.
The 1st respondent has no power to dismiss, remove or retire compulsorily the Chief Judge, Grand Kadi of Sharia Court of Appeal or the President of the Customary Court of Appeal of a State. There is no constitutional provision that a recommendation, not matter how strongly framed or worded, by the 1st respondent for the removal of a judicial officer is equivalent to a fait accompli, meaning that the affected judicial officer has then ceased to be a judicial officer and should be immediately deprived or denied of his salaries and other perquisites of office. The person or persons statutorily empowered to act on a recommendation of the 1st respondent are not statute-bound to accept and implement such a recommendation.
In this case, the Governor (or Acting Governor) of Ekiti State and the House of Assembly of Ekiti State had not taken any final action or decision on the 1st respondent’s recommendation for the compulsory retirement of the appellant. The appellant’s suspension was from the 20th day of December, 2006 “until further notice”. Since the appellant’s suspension is without specified conditions, the appellant is entitled to his salaries and other entitlements.
For these reasons and the very elaborate reasons in the leading judgment of my learned brother, I too allow the appeal in part and dismiss the cross appeal.
I abide by all the orders in the lead judgment.
Appearances
Olusoji OduntanFor Appellant
AND
Babatunde Aiku, SAN,
Adebayo Awolusi,
Dayo Akinlaja Esq., Attorney-General, Ekiti State with
L.B. Ojo Esq., Acting Solicitor General,
A.E. Akpan Esq., Director, Civil Litigation and
Julius Ajibare Esq., Assistant Chief Legal Officer, Ministry of Justice Ekiti StateFor Respondent
