NATIONAL JUDICIAL COUNCIL & ORS v. HON JUSTICE JUBRIL BABAJIDE ALADEJANA & ORS
(2014)LCN/7618(CA)
In The Court of Appeal of Nigeria
On Monday, the 8th day of December, 2014
CA/A/72/2010
RATIO
APPEAL: GROUND OF APPEAL; WHAT IS PURPOSE OF A PRELIMINARY OBJECTION
It is remiss to file a preliminary objection to attack only a ground of appeal. A preliminary objection against an appeal is a move to terminate the whole appeal and cannot be used to attack only a ground of appeal. Where a respondent intends to attack one or more out of many grounds of appeal, he ought to file a motion on notice to that effect. See NATIONAL ELECTRIC POWER AUTHORITY V. ANGO (2001) 15 NWLR (737) 627 and OKEREKE V. JAMES (2012) 16 NWLR (1326) 339, 348 – 349. per. JOSEPH E. EKANEM, J.C.A.
APPEAL: GROUND OF APPEAL; CIRCUMSTANCES WHERE A GROUND OF APPEAL IS SAID TO BE VAGUE AND CONTRARY TO ORDER 6 RULE 2 (3) OF THE COURT OF APPEAL
A ground of appeal is said to be vague and therefore contrary to Order 6 Rule 2 (3) of the Court of Appeal Rules if,
(a) It is couched in a manner which does not provide any explicit standard for its comprehension; or
(b) Where it is so uncertain that it is incapable of being understood or
(c) When the complaint is not defined in relation to the subject, or
(d) It is not particularised or its particulars are irrelevant to the ground itself. See CENTRAL BANK OF NIGERIA V. OKOGIE (2002) 8 NWLR (768) 48, 61 and ADDAX PETROLEUM DEVELOPMENT (NIG) LTD V. ADDAX (2010) 1 NWLR (1196) 278, 294. per. JOSEPH E. EKANEM, J.C.A.
APPEAL: ISSUES FOR DETERMINATION; WHETHER PARTIES MUST BE CONFINED TO THE ISSUES PROPERLY RAISED BY THE PARTIES
It is a basic principle of law that the parties and the court are bound by the case presented by the parties and so must be confined to the issues properly raised by the parties and no more. A court is not permitted to extend the frontiers of the battle fought by both parties. See KUTI V. JIBOWU (1972) NSCC. 447, 454 455, IROM V. OKIMBA (1998) 3 NWLR (540) 19, 25, OGIDA V. OLIHA (1986) 1 NWLR (19) 786, 798 and UNION BANK OF NIGERIA PLC V. EMOLE (2001) 18 NWLR (745) 501, 517 and 518. per. JOSEPH E. EKANEM, J.C.A.
APPEAL: ISSUES FOR DETERMINATION; WHETHER IT IS THE PLAINTIFF OR DEFENDANT WHO NOMINATES ISSUES TO BE TRIED IN A SUIT
The law is that it is a plaintiff who by his statement of claim (in this case originating summons) primarily nominates issues to be tried in a suit and which he relies on to have the judgment of the court. For a defendant, it is only necessary to resist the plaintiff’s claim on the fact pleaded. It is not for a defendant to set up facts which would convey that it is not just setting up a defence but setting up a new case of his own. He can only do so by way of a counter – claim. See LONGE V. FIRST BANK (NIG) PLC (2010) 6 NWLR (1189) 1, 24 -25, OSOLA V. OSOLA (2003) 113 LRCN 2641, 2666 – 2667 and ORJI V. ORJI (2011) 17 NWLR (1275) 113, 135. per. JOSEPH E. EKANEM, J.C.A.
APPEAL: ISSUES FOR DETERMINATION; WHETHER A COURT SHOULD BE RELUCTANT IN RAISING AN ISSUE SUO MOTU
The law is that a court should be reluctant in raising an issue suo motu and where it does so, it must call on the parties to address on it before deciding on it. To act otherwise amounts to a breach of the right to fair hearing especially of the party affected by it. See UGO V. OBIEKWE (1989) 1 NWLR (99) 566, 582 and IBRAHIM V. JUDICIAL SERVICE COMMITTEE (1998) 1 NWLR (584) 1, 46. per. JOSEPH E. EKANEM, J.C.A.
CONSTITUTIONAL LAW: FUNDAMENTAL RIGHT TO FAIR HEARING; WHETHER FAIR HEARING MEAN ORAL HEARING
Fair hearing does not necessarily mean oral hearing. Hearing in writing is sufficient so long as the affected party is given opportunity to respond to the allegation against him. See ADEDEJI v. POLICE SERVICE COMMISSION (1967) NSCC (5) 59, 60-61, ONWUMECHILI v. AKINTEMI (1985) 3 NWLR (13) 504, 516, DUKE V. GOVERNOR of CROSS RIVER STATE (2013) I NWLR (1356) 311 and GYANG V. COMMISSIONER OF POLICE supra. per. JOSEPH E. EKANEM, J.C.A.
JUSTICES
ABUBAKAR DATTI YAHAYA Justice of The Court of Appeal of Nigeria
JOSEPH E. EKANEM Justice of The Court of Appeal of Nigeria
MOHAMMED MUSTAPHA Justice of The Court of Appeal of Nigeria
Between
1. NATIONAL JUDICIAL COUNCIL
2. HON. JUSTICE UMARU ABDULLAHI
3. HON. JUSTICE E. O. JACOB
4. GRAND KHADI ABUBAKAR SALEH
5. HAJIA RAKIA
6. HON. JUSTICE ANTONY IGUH (RTD) Appellant(s)
AND
1. HON JUSTICE JUBRIL BABAJIDE ALADEJANA
2. THE ADMINISTRATOR, EKITI STATE
3. THE HON. ATTORNEY-GENERAL AND COMMISSIONER OF JUSTICE EKITI STATE Respondent(s)
JOSEPH E. EKANEM, J.C.A. (Delivering the Leading Judgment): The 1st respondent was appointed a judge of the High Court of Justice, Ekiti State, in November, 1998. In October,2006, the Ekiti State House of Assembly served an impeachment notice on the Governor of Ekiti State and his deputy. The House of Assembly, at the expiration of the period stated in the notice, requested the then Chief Judge of the state to constitute a seven-man panel to investigate the allegations contained in the impeachment notice.
The Hon.Chief Judge inaugurated a seven-man panel to investigate the allegations. Unhappy with the composition of the panel, the House of Assembly resolved on 11th October, 2006 to suspend the Hon. Chief Judge from his office. It also announced that the 1st respondent would hold forte as the chief Judge of Ekiti State. After the panel set up by the Hon. Chief Judge submitted its report clearing the Governor and his deputy, the 1st respondent set up a fresh seven-man panel to investigate the allegations of misconduct levelled against the Governor and his deputy on 13th October, 2006.
On 13th October, 2006, the 1st respondent received a letter from the then chairman of the 1st appellant stating that any step he took as acting chief Judge would be unconstitutional. Following the report of the fresh panel set up by the 1st respondent, the Governor and his deputy were impeached by the state House of Assembly who invited the 1st respondent to swear in the speaker as the Acting Governor. He did so.
Subsequent to the above, the Chairman of the 1st appellant wrote to the respondent directing him to submit his comments on petitions relating to the saga summarised above written against him. He did so. He was thereafter directed to appear before an investigation committee of the 1st defendant on the 7th December, 2006. He appeared before the panel made up of 2nd – 6th appellants. The 1st respondent thereafter received a letter from the 1st appellant suspending him from office as a Judge of the High court of Ekiti State. The 1st respondent deposed that the 1st appellant had since the end of December, 2006, suspended the payment of his salary and allowances.
Aggrieved by the turn of events, the 1st respondent took out an originating summons at the Federal High Court, Abuja Division (the Lower Court “for short) asking for the determination of the following questions:
“1. Whether or not by the combined provision of S.271 (2) and S.292 (1) (b) of the Constitution of the Federal Republic of Nigeria, 1999. The Defendant possesses the constitutional power to suspend the plaintiff from office as a Judge of the high Court of Justice, Ekiti State without reference to the Governor of Ekiti State of Nigeria.
2. If the answer to the above is in the negative, whether the letter of 20th December, 2006 addressed by the 1st defendant to the plaintiff suspending him from office as a Judge of the High Court of Justice, Ekiti State of Nigeria is not unconstitutional and therefore null and void.
3. Whether any other steps taken by the Defendants pursuant to the letter of 20th December, 2006 is null and void.
4. Whether the failure of the 1st Defendant in bringing a formal charge of misconduct against the plaintiff pursuant to the letters of the 1st Defendant dated 13th October, 2006, 7th day of December and 20th day of December, 2006 respectfully in order to afford the plaintiff to either retain a solicitor of his choice, hear his accusers and their witness, and their witnesses and produce documents in his defence is not a denial of fair hearing as guaranteed under 5.36 (1) and 6 (a-c) of the 1999 Constitution.
5. Whether the 1st Defendant in its letter reference no.CJN/COR/SG/A.79/111/144 of 13h October, 2006 signed by its chairman had not taken an adverse position against the plaintiff without affording him a hearing therefore prejudging the issue in the Defendant’s letter of the 7th December, 2006.
6. if the answer to the above is in the affirmative, whether the 1st Defendants who by its letter reference no.CJN/COR/SC/A.79/111/144 of 13th October, 2006 had taken an adverse position in respect of the plaintiff is competent to constitute a panel vide 1st Defendant letter reference no. NJC/A4/5/28/1/003 of 7th December, 2006 wherein the 2nd to 6th Defendant were members in breach of the plaintiff’s fundamental right to fair hearing before an impartial panel.
7. Whether the 1st Defendant is competent to take the decision to suspend the plaintiff when the committee of the 1st Defendant made up of the 2nd to 6th Defendant did not form a quorum of the 1st Defendant.
8. Whether the decision of the committee of the 1st Defendant as constituted by 1st to 6th Defendants which sat on 14th and 15th December, 2006 despite the letter of the chairman of the 1st Defendant to the plaintiff dated 13th October, 2006 is not unconstitutional.
9. Whether the decision of 1st to 6th Defendants concerning the plaintiff considering the failure of the alleged three petitioners to appear in persons or to call witness to tender documents to substantiate their allegation against the plaintiff before the 2nd to 6th Defendants acting as committee of the 1st Defendant on the 14th and 15th day of December, 2006 was not a breach of audi alterem partem rule.
10. Whether the decision of the 1st Defendant to suspend the plaintiff and take further adverse step is competent when majority of its members were not members of the committee which sat on the 14 and 15th December, 2006 to listen to the plaintiff.
11. Whether the recommendations of the committee made up of 2nd – 6th Defendants can be adversely varied altered or amended by 1st Defendant without giving the plaintiff a fair hearing.
12. Whether the decision concerning the plaintiff following the 1st Defendant letters of 13th October, 2006 and 7th December, 2006 did not place the onus of proving his innocence on the plaintiff in breach of his fundamental rights.
13. Whether the 7th or 8th Defendants can take any adverse position touching and concerning the plaintiff or his office without affording him a hearing.
14. Whether the 7th Defendant can employ disciplinary measures against the plaintiff in his office in respect of the issues in the 1st Defendant’s letter dated 13th October, 2006, 7th December, 2006.
15. whether or not any disciplinary measure initiated or taken against the plaintiff by the 1st Defendant and or the 7th Defendant or his successor in office can be different or more grievous than that recommended by the 2nd – 6th Defendants or that contained in the 1st Defendant’s letter reference no. NJC/S.978/17 of the 20th December, 2006 would not amount to the double jeopardy”.
In anticipation of favourable answers to the questions above, the 1st respondent sought the following reliefs;
“1. A declaration that the letter of suspension dated 29th day of December, 2006 written by the 1st Defendant to the plaintiff without proof of any allegation of misconduct against the plaintiff is null and void.
2. A declaration that the letter suspending the plaintiff from his office as a Judge of the High Court, Ekiti State. Written directly to the plaintiff without recourse to the Governor of Ekiti State is unconstitutional and therefore null and void.
3. A declaration that the suspension imposed on the plaintiff by the 1st Defendant and any other recommendations emanating from the panel referred to in the 1st Defendant’s letter reference no NJC/A/7/S/28/11003 of 7th December, 2006 is in breach of the plaintiff’s right to fair hearing and therefore unconstitutional, null and void.
4. A declaration that the 7th and 8th Defendants and or their successor in office is incompetent to implement any adverse recommendation made in respect of the plaintiff pursuant to 1st Defendant letters of 13th October, 2006, 7th December, 2006 and 20th December, 2006.
5. An order of court declaring null and void any other steps taken by the 1st Defendant pursuant to the letter of suspension dated 20th December, 2006 regarding its advice to the Ekiti State Administrator purporting to affect the plaintiff’s office adversely.
6. An order restraining the 7th and 8th Defendant and or their successor in office from acting on any adverse recommendations made by the 1st Defendant touching and concerning the plaintiff pursuant to the 1st Defendant letter of 20th December, 2006.
7. An order directing the 1st and f Defendant and or his successor in office to pay the salaries and other emolument of office of the plaintiff from 20th day of December, 2006 till the day of judgment and thereafter.
After taking the addresses of counsel on all sides, the Lower Court delivered its judgment holding that the 1st appellant has the constitutional power to suspend the 1st respondent without reference to the Governor of Ekiti State; and that the 1st respondent was given a fair hearing before he was recommended for retirement. The Lower Court further held that in the face of the rejection of its recommendation of retirement for the 1st respondent by the Governor of Ekiti State, the disciplinary process set in motion by the 1st appellant had become spent and that the continual suspension of the 1st respondent had no legal basis and was therefore illegal, null and void. The court granted a declaration to that effect.
Aggrieved by the decision the appellants filed two notices of appeal against the judgment. With the leave of court the appellants filed an amended notice of appeal bearing nine grounds of appeal. It must be mentioned that with the leave of court granted on 30th October, 2013, the 1st respondent filed a cross-appeal against the judgment of the Lower Court. I shall deal with the cross appeal separately in this judgment. Briefs of argument were filed and exchanged by the parties. At the hearing of the appeal, counsel for the parties identified and adopted their briefs as follows;
1. Mrs. Olabisi O. Soyebe (SAN) of counsel for the appellants;
(a) Appellant’s brief of argument filed on 30th January 2012 but deemed filed on 30th October, 2013;
(b) Appellants’ reply brief dated and filed on 30th April, 2014 but deemed filed on 24h June, 2014; and 1st – 6th appellants/cross respondents’ brief of argument filed on 30th April 2014.
2. O.Olowolafe, Esq.; of counsel, for the 1st respondents;
(a) 1st respondent’s brief of argument dated and filed on 24th January, 2014 but deemed filed on 10th March, 2014.
(b) Cross-appellant’s brief of arguments dated and filed on 24th January, 2014 but deemed filed on 10th March, 2014; and
(c) Cross – appellant’s reply brief dated and filed on 24th June, 2014.
1. A. A. Morakinyo, Esq (Director, Citizens’ Right, Ekiti State) for 2nd and 3rd respondents;
(a) 2nd and 3rd respondents’ brief of argument dated 3rd March, 2014 and filed on 7th March, 2014; and
(b) 2nd and 3rd respondents’ brief relating to the cross-appeal dated 27th March, 2014 but filed on 28th March, 2014.
In her brief of argument, Senior Counsel for the appellants formulated the following issues for the court’s determination of the appeal;
“1. Whether or not the honourable trial court was right when if suo motu raised and made far reaching findings on issues not properly before it without hearing parties and which findings formed the basis of its decision.
2. Whether or not the honourable trial court was right when it granted a relief which the 1st respondent did not seek.
3. Whether or not the honourable trial court was right when it held that the disciplinary process set in motion by the 1st appellant became spent.
4. Whether or not the honourable trial court was right when it granted relief No.7 as contained in the 1st respondent’s originating summon.
Counsel for the 1st respondent formulated the following issues in his brief of argument.
1. Whether the Honourable trial Judge was wrong in rearranging and/or reformulating the issues before him to encompass the case of the parties and if such rearrangement reformulation of issues occasioned any injustice to the appellants.
2. Whether the learned trial Judge granted any relief that was not consequential or ancillary to the reliefs sought in the 1st respondent’s originating summons.
3. Whether the Learned trial Judge was wrong in holding that the appellant cannot use the instrumentality of suspension to permanently remove the 1st respondent from office as a Judge of Ekiti State High Court without the concurrence of the State Governor.
4. Whether the Learned trial Judge was wrong in ordering the payment of salaries, allowances emoluments of the 1st respondent’ (in terms of relief 7 in the originating summons) and if such was not consequential upon the declaration that the continuing suspension of the 1st Respondent was spent and unconstitutional”.
For the 2nd and 3rd respondents, one issue was identified in their brief, namely;
“Whether the 1st Appellant has the power to remove the 1st Respondent as a Judge of the High Court of Ekiti State without the concurrence of the Ekiti State Governor”.
After a careful consideration of complaints of the appellants, it seems clear to me that the issues which arise for the determination of this appeal are as follows;
1. Whether or not the Lower Court was right in raising and determining the issue as to the extent of the disciplinary powers of the 1st appellant over the 1st respondent.
2. Whether or not the Lower Court was right in holding that the disciplinary process set in motion by the 1st appellant had become spent.
3. Whether or not the Lower Court was right in granting the reliefs it granted.
Before counsel adopted their briefs, counsel for the 1st respondent drew the court’s attention to his preliminary objection notice of which is contained in the 1st respondent’s brief filed on 24th January, 2014, page 3. The argument thereon is contained in pages 3 to s of the said brief. He adopted the same. Learned Senior Counsel for the appellant responded to the same in pages 1 to 4 of her reply brief. She urged the court to dismiss the objection.
In essence the preliminary objection is an attack on ground 7 of the grounds of appeal and issue 1 of the appellants which is said to be partly drawn from it. It is argued that the ground is vague, nebulous and does not relate to the ratio of the case on appeal. It is further argued that even if the portion of the judgment quoted is a ratio, it is in favour of the appellants who cannot therefore appeal against it. Senior Counsel for the appellants argued to the contrary.
It is remiss to file a preliminary objection to attack only a ground of appeal. A preliminary objection against an appeal is a move to terminate the whole appeal and cannot be used to attack only a ground of appeal. Where a respondent intends to attack one or more out of many grounds of appeal, he ought to file a motion on notice to that effect. See NATIONAL ELECTRIC POWER AUTHORITY V. ANGO (2001) 15 NWLR (737) 627 and OKEREKE V. JAMES (2012) 16 NWLR (1326) 339, 348 – 349.
The preliminary objection is therefore incompetent and I accordingly strike out the same.
In case I am wrong it is my view that ground 7 of the grounds of appeal is not vague and nebulous. It states as follows;
“The honourable court erred in law when it held as follows;
…The issue of fair hearing can only be in relation to the recommendation made by the 1st Defendant for the retirement of the plaintiff from service and thereby occasioned a miscarriage of justice.
PARTICULARS
1. The 1st respondent only raised the issue of not being afforded a fair hearing in relation to his suspension from duties by the 1st Appellant.
2. The issue of fair hearing with respect to recommendation by the 1st appellant for the retirement of the 1st respondent from service was never property before the honourable trial court.
3. The honourable court determined an issue which did not form a part of the issues brought by the parties before it.
4. The Appellant never had an opportunity to address the honourable trial court on the said issue.
A ground of appeal is said to be vague and therefore contrary to Order 6 Rule 2 (3) of the Court of Appeal Rules if,
(a) It is couched in a manner which does not provide any explicit standard for its comprehension; or
(b) Where it is so uncertain that it is incapable of being understood or
(c) When the complaint is not defined in relation to the subject, or
(d) It is not particularised or its particulars are irrelevant to the ground itself. See CENTRAL BANK OF NIGERIA V. OKOGIE (2002) 8 NWLR (768) 48, 61 and ADDAX PETROLEUM DEVELOPMENT (NIG) LTD V. ADDAX (2010) 1 NWLR (1196) 278, 294.
The ground set forth above is not infected by any of the defects above. It is also my view that the holding of the Lower Court is appealable by the appellants since their contention is that the issue of fair hearing was not raised in relation to the recommendation of the 1st appellant that the 1st respondent be retired compulsorily. I also agree with senior counsel for the appellants that issue 1 of the appellants is based solely on ground 3 0f the grounds of appeal and so adding ground 7 as a part of the grounds of appeal from which the issue is derived is a mere surplusage which does no harm to the issue. See AIB LTD v. IDS LTD (2012) 17 NWLLR (1328) 1, 26 – 28.
I therefore discountenance the preliminary objection.
Senior counsel for the appellants proffered the following arguments in respect of the issues identified by her:
1. Whether or not the honourable trial court was right when it suo motu raised and made far reaching findings on issues not properly before it without hearing parties and which findings formed the basis of its decision.
The Learned Senior Counsel pointed out that the questions which formed the basis of the 1st respondent’s action dealt with the constitutionality of the 1st appellant’s action in suspending the 1st respondent from his office as a judge of the Ekiti State High Court of Justice without reference to the Governor of Ekiti State and in breach of the 1st respondent’s right to fair hearing in view of the provisions of Sections 271 (2), 292 (1) (b), 36 (1) and 6 (a) – (c) of the Constitution of Nigeria 1999. She referred to reliefs 1, 2 and 3 in the originating summons as well as 1st respondent’s issues before the Lower Court. She also noted that the Lower Court, after agreeing with the appellants that issues 1, 2 and 4 of the 1st respondent did not flow from the questions for determination, adopted issues formulated by the appellants with slight modification, namely; the extent of the power of the 1st appellant in disciplining the 1st respondent.
She was of the view that the slight modification was not an issue before the court and was raised suo motu by the Lower Court which made a finding on it without inviting parties to address on it. She added that this weighed heavily on the mind of the court and formed the sole basis upon which the Lower Court found in favour of the 1st respondent, granting relief No. 7. Citing several authorities including OGIDAH V. OLIHA (1986) 1 NWLR (19) 786 AND IREM V. OKEMBA (1998) 3 NWLR (540) 19, Senior Counsel urged the court to answer the issue in the negative.
2. Whether or not the honourable trial court was right when it granted a relief which the 1st respondent did not seek.
Senior Counsel quoted the relief granted by the Lower Court and submitted that it was never sought for and also flowed from the determination of an issue that was not properly before the Lower Court. On the authority of BROADBANK v. ODJEMU (2001) 7 NWLR (712) 477, 488 and other authorities cited by her, she urged the court not to allow it to stand.’
3. Whether or not the honourable trial court was right when it held that the disciplinary process set in motion by the 1st appellant had become spent.
Senior Counsel referred to item 21 (d) of the Third Schedule to the Constitution of Nigeria 1999 and submitted that the disciplinary powers of the 1st appellant contained therein are not limited in any manner nor are they restricted to any particular stage in the disciplinary process. She was of the view that the Lower Court made a sudden u-turn in proceeding to hold that the power was curtailed by the disinclination of the state Governor to accept the recommendation to remove the officer.
Continuing, Senior Counsel submitted that the only reason for tendering Exhibit ‘JBK – D2″ which the Lower Court relied upon to find that the suspension of the 1st respondent was spent was to prove that the 1st appellant had no power to remove him from office. She submitted further that the court cannot go outside the purpose for which a document is tendered. She then distinguished between the 1st appellant’s power to suspend which she said is unfettered and its power to remove which is not.
Citing the case of UNIVERSITY OF CALABAR v. ESIOGU (1997) 4 NWLR (502) 719, 723, she noted that the suspension of 1st respondent was “until further notice” and so it was wrong to hold that it had become spent once a recommendation was made to the Governor.
4. Whether or not the honourable trial court was right when it granted relief No. 7 as contained in the 1st respondent’s originating summons.
Senior counsel contended that a suspension deprived the person concerned of the enjoyment of his right and privileges of office. In any event, there was a paucity of evidence to establish the relief.
She finally urged the court to allow the appeal, set aside the part of the decision complained about and dismiss the suit in its entirety.
Ist respondent’s counsel proferred the following arguments in respect of the issues formulated by him:
1. Whether the Honourahle trial Judge was wrong in rearranging and/ or reformulating the issues before him to encompass the case of the parties and if such rearrangement/reformulation of issues occasioned a miscarriage of justice to the Appellants.
Counsel submitted that a court has unfettetered right to re-arrange or re-formulate issues for determination if this meets the justice of the case. He noted that the rower court re-formulated the issues and that the complaint of the appellant overlooked the fact that the 2nd and 3rd respondents raised the issue that the 1st appellant had the power to suspend, but the Governor must assent to the recommendation for removal. He was of the view that issues were joined as between the 1st respondent and the 2nd and 3rd respondents on the power of the 1st appellant to suspend and the extent of such powers.
Continuing, counsel submitted further that the appellants did not show that a miscarriage of justice had been occasioned by the reformulation of the issues and that the rower court did not make any finding from what was not before him.
2. Whether the learned trial Judge granted any relief that is not consequential or ancillary to the reliefs sought in the 1st respondent’s originating summons.
Counsel submitted that once an issue flows parties, from the case of the parties, the court has the power to grant prayers that are consequential to it though not expressly sought. He cited and relied on MUDA SHIRU V. ABDULLAHI (2011) 7 NWLR (1274) 501 in support.
3. Whether the learned trial judge was wrong in holding that the appellant cannot use the instrumentality of suspension to permanently remove the 1st respondent from office as a Judge of the Ekiti State High Court without the concurrence of the Governor.
Counsel submitted that the issue radiates around the interpretation of Section 292 (1) (b) of the Constitution of Nigeria 1999. He added that the provision of a constitution must be read and interpreted as a whole and related sections must be construed together. It was his view that a combined reading of Section 292 (1) (b) of the Constitution and item 21 (a) of part 1 of the 3rd schedule to the constitution vindicated the Lower Court’s position that the role of the 1st appellant in the removal of the Judge of a High Court of a State is limited to recommending the same to the Governor. He went on to submit that the 1st appellant could not use his power to suspend (which he did not concede) to remove the 1st respondent. He submitted further that Senior Counsel for appellants was not right in arguing that the power of the 1st appellant was unqualified.
Counsel referred to the case of BAMISILE V. NATIONAL JUDICIAL COUNCIL, unreported judgment of the Akure Division of Court of Appeal in CA/B/223/08 delivered on 13/1/2012 on the import of item 21 (d) of part 1 of the third schedule to the Constitution.
Counsel went on to argue that the Lower Court was right in relying on Exhibits JBK – D1, JBK – D2 since they were before the court which could draw inferences from them.
4. Whether the learned trial Judge was wrong in ordering the payment of salaries, allowances emoluments of the 1st respondent (in terms of relief 7 in the originating summons) and if such was not consequential upon the declaration that the continuing suspension of the 1st respondent was unconstitutional.
Counsel reiterated that once the Governor rejects the recommendation of the 1st appellant to remove a judge, his suspension becomes spent and the whole process is truncated. The Judge, he concluded, is entitled to be put back to his initial position. He finally urged the court to dismiss the appeal. Counsel for the 2nd and 3rd respondent entered a negative response in respect of his sole issue, viz,
whether the 1st appellant has the power to remove the 1st respondent as a judge of the High court of Ekiti State without the concurrence of Ekiti State Governor;
He relied on Section 292 (1) (b) of the constitution of Nigeria and item 21 (d) of the Third schedule to the constitution in support. He was of the position that the refusal of the Governor of the recommendation of the 1st appellant amounted to an exhaustion of any disciplinary control exercised by the 1st appellant over the 1st respondent. He finally urged the court to uphold the decision of the Lower Court.
In her reply brief, learned Senior Counsel for the appellants submitted, inter alia, that the declaration made by the Lower Court was not a consequential relief as it was not predicated or consequent upon any of the reliefs in the originating summons.
I shall treat the issues earlier identified by me serially hereunder;
1. Whether or not the Lower Court was right in raising and determining the issue as to the extent of the disciplinary power of the 1st appellant over the 1st respondent.
It is a basic principle of law that the parties and the court are bound by the case presented by the parties and so must be confined to the issues properly raised by the parties and no more. A court is not permitted to extend the frontiers of the battle fought by both parties. See KUTI V. JIBOWU (1972) NSCC. 447, 454 455, IROM V. OKIMBA (1998) 3 NWLR (540) 19, 25, OGIDA V. OLIHA (1986) 1 NWLR (19) 786, 798 and UNION BANK OF NIGERIA PLC V. EMOLE (2001) 18 NWLR (745) 501, 517 and 518.
In originating summons proceedings, the issues to be addressed are those raised in the originating summons. It does not lie in the mouth of a respondent to formulate his own issues for determination. If a respondent alleges that he has any claim or is entitled to his own relief he may counter-claim. See AGHU v. CROSS RIVER STATE (2009) 3 NWLR (1129) 475, 507. Furthermore, issues in a case are circumscribed by the claims before the court as constituted by the prayers. All arguments and findings not related to the prayers are amiss. See SALAMI V. WEMA BANK (NIG) PLC (2010) 6 NWLR (1190) 341, 353-354.
In the instant case, the questions for determination and the reliefs sought in the originating summons have already been set out in this judgment. It is my view that the questions or issues that arose therefrom were as to the constitutional powers of the 1st appellant to suspend 1st respondent from office as a Judge without reference to the Governor and if the 1st appellant breached his fundamental right to fair hearing. The originating summons did not raise a question as to the extent of the power of the 1st appellant to suspend the 1st respondent.
It is however the submission of the 1st respondent’s counsel that the issue was raised in the counter – affidavit of the 2nd and 3rd respondents and the further and better affidavit of the 1st respondent. I must state that I agree with senior counsel for the appellant that the 2nd and 3rd respondents did not raise the issue of the extent of the 1st appellant’s power to suspend the 1st respondent.
Even if they did so (which they did not) it would not avail the 1st respondent. The law is that it is a plaintiff who by his statement of claim (in this case originating summons) primarily nominates issues to be tried in a suit and which he relies on to have the judgment of the court. For a defendant, it is only necessary to resist the plaintiff’s claim on the fact pleaded. It is not for a defendant to set up facts which would convey that it is not just setting up a defence but setting up a new case of his own. He can only do so by way of a counter – claim. See LONGE V. FIRST BANK (NIG) PLC (2010) 6 NWLR (1189) 1, 24 -25, OSOLA V. OSOLA (2003) 113 LRCN 2641, 2666 – 2667 and ORJI V. ORJI (2011) 17 NWLR (1275) 113, 135.
Just as the 2nd and 3rd respondents could not nominate issues in the case, so also the 1st respondent could not expand the field of the battle beyond the questions and reliefs sought in the originating summons without amending the same to accommodate the new issue. The court’s undoubted power to rephrase issues cannot be used to expand the field of dispute beyond what has been marked out by the plaintiff. This is because the court is an impartial arbiter and it must not descend into the arena so as not to be covered by the dust of the contest. See LUTH V. ADEWOLE (1998) 5 NWLR (550) 406, 419 and LIMAN V. MOHAMMED (1999) 9 NWLR (617) 116, 137.
The Lower Court therefore erred and veered off the course of justice in expanding the issues for determination to include the extent of the power of the 1st appellant to suspend the 1st respondent and take other disciplinary actions against him.
The Lower Court was equally in error in adding the additional issue, determining it and relying on its determination of it to hold that the;
“Continued suspension of the plaintiff after the Governor’s polite rejection of the 1st Defendant’s recommendation to retire the plaintiff has no legal basis and therefore illegal, null and void.” I grant a declaration to that effect”.
Without inviting the parties to address it on it.
The law is that a court should be reluctant in raising an issue suo motu and where it does so, it must call on the parties to address on it before deciding on it. To act otherwise amounts to a breach of the right to fair hearing especially of the party affected by it. See UGO V. OBIEKWE (1989) 1 NWLR (99) 566, 582 and IBRAHIM V. JUDICIAL SERVICE COMMITTEE (1998) 1 NWLR (584) 1, 46.
I therefore answer issue 1 in the negative and resolve it in favour of the appellants.
2. Whether or not the disciplinary process set in motion by the 1st appellant had become spent.
I shall take this issue in case my stance in respect of issue one is found to be wrong since this court is an intermediary appellate court.
The facts relevant to this issue are as follows;
After its suspension of the 1st respondent, the 1st appellant wrote to the Governor of Ekiti State recommending the compulsory retirement of the 1st defendant. The governor declined the recommendation.
The Lower Court on that account held that,
“In the face of the rejection of its recommendation by the Governor of Ekiti State… disciplinary process set in motion by the 1st Defendant has become spent”. (See Page 244 of the record)
In determining the issue, recourse must be had to Section 292 (1) (b) of the Constitution of Nigeria 1999 and item 20 (d) of part 1 of the Third Schedule to the said Constitution. They provide as follows:
Section 292 (1) (b)
“A judicial officer shall not be removed from his office or appointment before his age of retirement except in the following circumstances
(b) ….. by ……. 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”.
Item 21 (d) of part 1 of the Third Schedule;
“The National Judicial Council shall have power to –
(d) Recommend to the Governors the removal from office of the judicial officers specified in sub- paragraph (c) Of this paragraph, and to exercise disciplinary control over such officers.
It is to be noted that sub – paragraph (c) includes Judges of the High Court of the States.
Certain canons of constitutional interpretation will help to interprete the provisions above. They are as follows;
(i) The language of the Constitution where clear and unambiguous must be given its plain evident meaning.
(ii) Constitutional provisions should not be construed to conflict with one another.
(ii) Provisions in the Constitution are of equal strength and constitutionality. No provision is superior to the other and no provision is inferior to the other.
(iv) Powers cannot be exercised inconsistently with the constitution. So a particular power must be granted or it cannot be exercised.
(v) Any provision of the Constitution which is inconsistent with the doctrine of separation of powers prevails over such doctrine.
(vi) Wider and liberal interpretation must be applied unless there is express provision to the contrary.
See ATTORNEY GENERAL OF BENDEL STATE V. ATTORNEY – GENERAL OF THE FEDERATTON and ORS (1982) 3 NCLR 1, INEC V. MUSA (2003) 106 LRCN 620, ATTORNEY-GENARAL OF ABIA STATE V. ATTORNEY GENERAL OF THE FEDERATTON (2003) 167 LRCN 979, 987 – 988 and ATTORNEY – GENERAL OF LAGOS STATE v. ATTORNEY- GENERAL of the FEDERATION (2003) 111 LRCN 1867, 1956.
It is clear from the provisions of the constitution under consideration that in matters of discipline of a Judge of a state High Court, the 1st appellant has the power to suspend him from office and this flows from its general power of exercising disciplinary control over him. See UNIVERSITY OF CALABAR v. ESIAGA (1997) 4 NWLR (502) 719, and BAMISILE v. NATTONAL JUDTCTAL COUNCIL and 3 ORS (unreported decision of the court of Appeal, Akure Division, in CA/B/223/08 delivered on 13/1/2012).
When it comes to removal from office, the power of the 1st appellant lies only in recommending a removal of the judicial officer to the Governor of the relevant state and no more. The word “recommend” means, inter alia, “to advise a particular course of action; to advise somebody to do something”. See OXFORD ADVANCED LEARNER’S DICTIONARY 7TH ED. P.1216. It follows therefore that the person advised is at liberty to accept or reject the advice or recommendation. In the case of BAMISILE v. NATIONAL JUDICIAL COUNCIL supra, KEKERE – EKUN, JGA, as he then was, stated that;
“The Governor is certainly at liberty to reject the recommendation”.
Suspension of a person from work is a temporary measure pending the outcome of the disciplinary process against him.
In the case of UNIVERSITY OF CALABAR V. ESIAGA supra. 739, TOBI, JCA as he then was stated that,
“The word (suspension) carries or conveys a temporary or transient disciplinary procedure which keeps away the victim or person disciplined from his regular occupation or calling, either for a fixed or terminal period or indefinitely” (word in bracket is mine for clarity).
This dictum was quoted with approval by SALAMI, JCA in LONGE V. FIRST BANK OF NIGERIA PLC (2006) 3 NWLR (967) 228, 266.
Thus suspension may be for a fixed or terminal period, or it may be indefinite.
There is no doubt as earlier stated that the appellant has the power to suspend the 1st respondent by virtue of item 21 (d)of part 1 of the third schedule to the Constitution of Nigeria (as amended). Section 158 (1) of the constitution provides, the inter aria, that in exercising its disciplinary control over persons, the appellant shall not be subject to the direction or control of any other authority or person. Thus the rejection of the appellant’s recommendation by the Governor of Ekiti State did not affect the suspension of the 1st respondent by the appellant which was until further notice” (by the appellant). The suspension of the 1st respondent therefore remained extant.
I therefore answer issue two in the negative and in favour of the appellant.
Issue 3 –
Whether or not the Lower Court was right in granting the reliefs it granted.
In view of my answer to issue number one, it follows that the Lower Court was not right in granting the declaratory relief that it granted and which was not asked for. A court cannot grant a relief that is not claimed. See EKPENYONG v. NYONG (1975) 2 SC 78, 81 and UNION BANK OF NIGERIA LIMITED V. OGBOH (1995) 2 NWLR (380) 641, 664.
It follows therefore that the declaratory relief was not a consequential relief as it did not take its life from the issues for trial.
As regards the grant of relief number 7,namely; .An order directing the 1st and 7th Defendant and or his successor in office to pay the salaries and other emoluments of the plaintiff from 20th day of December 2006 till the day of judgment and thereafter”,
In the case of LONGE V. FIRST BANK OF NIGERIA PLC supra. 60, ADEKEYE, JSC, stated that;
“suspension …. is a state of affairs which exists while there is contract in force … but while there is neither work being done in pursuance of it nor remuneration being paid… (underlining is mine for emphasis).
Our attention was drawn to the wording of this court in BAMISILE v. NATIONAL JUDICIAL COUNCIL and 3 ors supra that a suspended judge is entitled to his salaries etc, in the absence of a contrary statement in the letter of suspension, but this decision is not in line with the case of LONGE V. FIRST BANK (supra).
This was based on a dictum of OGUNTADE, JSC, IN LONGE V. FIRST BANK OF NIGERIA PLC supra. It must be stated that the dictum was in relation to whether or not the appellant, a suspended director of the respondent, was entitled to notice of the meeting at which the decision to suspend him was taken by virtue of Section 266(1) of the Companies and Allied Matters Act.
I shall with all due respect follow the above – quoted statement of the supreme court in LONGE v. FIRST BANK (supra) and hold that the Lower Court was not right in directing the payment of the salaries and other emoluments of the 1st respondent while on suspension.
I resolve issue No. 3 in favour of the appellants.
On the whole the appeal succeeds and I hereby set aside the judgment of the Lower Court and dismiss the suit of the 1st respondent.
CROSS APPEAL
The cross-appellant, as earlier stated, filed a notice of cross-appeal against the judgment of the Lower Court with the leave of this court. The notice of cross-appeal bears six grounds of appeal.
The parties filed their briefs of argument in respect of the cross-appeal which were adopted by their counsel at the hearing.
The cross – appellant’s counsel formulated two issues for determination viz:
1.Whether the Honourable trial Judge was right when he held that the 1st cross-respondent could suspend the cross-appellant without the concurrence of the Governor. (GROUND 2)
2. Whether the Learned trial Judge was right when he held that the 1st respondent did not breach the cross-appellant’s Fundamental Rights to fair hearing as encapsulated in Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999. (GROUND 4)
Learned Senior Counsel for the 1st to 6th appellants/cross-respondents adopted the issues. Counsel for the 2nd and 3rd cross-respondent sought leave to adopt the sole issue he raised in his brief in respect of the appeal that just has been disposed of. He also sought leave to adopt his arguments in the said brief.
It should immediately be stated that no issue has been distilled from grounds 1, 3, 5 and 6 of the notice of cross-appeal. They are therefore deemed abandoned and are hereby struck out. Counsel for cross-appellant proffered the following arguments in respect of the issues.
1. Whether the Honourable Trial Judge was right when he held that the 1st cross-respondent could suspend the cross – appellant without the concurrence of the Governor.
Counsel referred to Section 292 (1) (b) of the third schedule to the constitution and submitted that suspension is a degree of removal albeit temporary and could even amount to termination. He submitted further that the procedure for removal which he said includes suspension as set out in Section 292 (1) (b) must be followed as it is on the specific subject of removal as against the general subject of disciplinary control in paragraph 21 (d) of the Constitution. Thus, he stated, the 1st cross respondent can suspend a Judge to facilitate investigation or for any other reason but that ought to be done with the concurrence of the Governor. It was his further view that the suspension in this instance was not done for investigative purpose but as a punitive measure.
Concluding on this issue, counsel argued that by the provision of section 160 (1) and (2) or the constitution the 1st appellant/cross-respondents could not impose any duty on the cross-appellant except with the approval of the Governor.
Issue 2 –
Whether the Learned Trial Judge was right when he held that the 1st respondent did not breach the cross-appellant’s Fundamental Rights to fair hearing as encapsulated in Section 36 (1) of the Constitution of the Federal Republic of Nigeria, 1999.
Counsel argued that the chairman of 1st appellant/cross-respondent who had earlier drawn a conclusion on the unconstitutionality or otherwise of the action of the cross-appellant also presided over the constitution of the panel comprising the 2nd-6th appellants/cross respondents and the acceptance of its recommendation. This, he said, amounted to technical bias.
He submitted that the cross-petitioner was not given an opportunity to be heard as the panel referred to itself as an investigative panel and did not accede to the cross-petitioner’s request to be granted a public hearing etc. He expressed surprise that the Lower Court held that the cross-appellant had admitted the allegations made against him and needed not be given a hearing.
Continuing counsel stated that the 1st- 6th cross-respondents did not prove the existence of a quorum and also failed to produce documents in their possession on the issue of fair hearing inspite of a court order.
He finally urged the court to allow the cross- appeal.
Learned Senior Council for the 1st – 6th appellants/cross respondents proffered the following arguments in respect of the issues,
Issue One –
Whether the Honourable Trial Judge was right when he held that the 1st cross – respondent could suspend the cross-appellant without the concurrence of the Governor.
She submitted that the Lower Court correctly interpreted the relevant provisions of the Constitution. She distinguished between removal and suspension, and gave an affirmative response to the issue.
Issue Two –
Whether the Learned Trial Judge was right when he held that the 1st cross-respondent did not breach the cross – appellant’s fundamental right to fair hearing as encapsulated in Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999.
Learned Senior Counsel submitted that the cross-appellant had ample opportunity to defend himself. She went on to submit that the principles of natural justice can be satisfied where the person accused is allowed to respond in writing. She noted that there was no evidence that it was indeed the chairman of the 1st cross-respondent who constituted the investigation panel. She noted that the issue of the chairman constituting the panel is not contained in the affidavit of the cross-appellant but in his counsel’s address which cannot take the place of evidence. In any event, she stated, the complaint of technical bias would not succeed in the light of the decision in EX-PARTE OLAKUNRIN (1985) 1 NWLR (4) 652 where the rule of necessity was held to have come into play.
Senior Counsel went on to distinguish the cases cited by cross-appellant’s counsel from the case at hand.
She finally urged the court to dismiss the cross-appeal.
Counsel for the 2nd and 3rd cross-respondents as earlier stated adopted the argument in his brief in respect of the main appeal.
I shall adopt the two issues identified in the cross-appellant’s brief in determining the cross-appeal.
Issue One-
Whether the Honourable trial Judge was right when he held that the 1st cross respondent could suspend the cross-appellant without the concurrence of the Governor.
Section 292(1)(b) of the Constitution of Nigeria 1999 provides in part that a judicial officer shall not be removed from his office or appointment before his retirement except by the Governor acting on the recommendation of the National Judicial council. Item 21 (d) of part 1 of the Third schedule to the constitution provides that the 1st cross-respondent has the power to recommend to a Governor the removal from office a Judge of the High Court of a State and to exercise disciplinary control over such officers.
In the case of UNIVERSITY OF CALABAR V. ESIAGA (1999) 4 NWLR (502) 719, 723, it was held that suspension means,
“a temporary privation or deprivation, cessation or stoppage of or from the privileges and rights of a person. The word carries or conveys a temporary or transient disciplinary procedure which keeps away the victim or person disciplined from his regular occupation …….
It does not imply a termination of his employment but a pause in his functioning in the office which he holds. See also LONGE V. FIRST BANK OF NIGERIA PLC (2010) 2 -3 SC (111) 61, 94-95. This position applies whether or not the employment has statutory or constitutional flavour.
Removal on the other hand implies dismissal from one’s job. See OXFORD ADVANCED LEARNER’S DICTIONARY 7TH ED. P.1234. It implies a permanent state and this is the con in which it is used in Section 292 (1) (b) of the Constitution.
It follows therefore that the 1st appellant/cross – respondent pursuant to its disciplinary powers in item 21 (d) of part 1 of the Third schedule to the constitution acted constitutionally in suspending the cross- petitioner from office until further notice without recourse to the Governor. The Governor only comes into the scene where compulsory retirement or dismissal is recommended by the 1st appellant/cross-respondent. It is the prerogative of the Governor to accept or reject such recommendation,
In the case of BAMISILE V. NATIONAL JUDICIAL COUNCIL supra; KEKERE-EKUN, JCA as he then was, stated as follows;
“The suspension of the appellant…could be said to be in exercise of the 1st respondent’s power of disciplinary control over the appellant.
I therefore resolve issue one in the affirmative.
Issue two –
Whether the Learned trial Judge was right when he held that the 1st respondent did not breach the cross-appellant’s Fundamental Rights to fair hearing as encapsulated in Section 36 (1) of the constitution of Federal Republic of Nigeria, 1999.
Section 36 (1) of the Constitution of Nigeria provides as follows;
“In the determination of his civil rights and obligation including any question or determination by or against any government or authority a person shall be entitled to fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such a manner as to secure its independence and impartiality”.
The above gives constitutional teeth or flavour to the twin pillars of natural justice, viz; (1) Audi alterem partem and (ii) Nemo Judex in causa sua. The requirements apply not only to courts of law or tribunals only but also to administrative bodies acting judicially in the determination or imposition of decisions that are likely to affect the civil rights and obligations of a person. Such bodies are bound to strictly observe the principles of fair hearing. See HART v. MILITARY GOVERNOR OF RIVERS STATE (1976) NSCC 622 and GYANG V. COMMISSIONER OF POLICE LAGOS STATE (2014) 3 NWLR (1395) 547, 566.
The complaints of the cross-petitioner in respect of fair hearing may be summarized as follows:
(i) The panel was not constituted in a manner as to secure its independence and impartiality-
(ii) Inspite of his demand, he was not given a public hearing, he was not allowed representation by counsel, he was not allowed to cross – examine witnesses or offer his defence nor was a formal charge brought against him.
(iii) The panel sat without a quorum.
A party who alleges that he has been denied fair hearing has the burden of proving specific acts of such denial. See OLATUNBOSIN V. ANNENIH (2009) 15 NWLR (1165) 560, 573.
The remarkable point about these complaints is the absence of documentary evidence to back them. There are no minutes to show that the chairman of the 1st appellant/cross-respondent constituted the panel and that the panel sat without a quorum. The quorum of the panel and the number that sat is not stated. It was asserted that the Lower Court gave an order in favour of the cross-appellant for the production of the relevant documents but the 1st – 6th cross-respondents did not produce them. The order of the court is at pages 188 – 189 of the record of appeal. The conduct of the appellants/1st – 6th cross-respondents was to say the least unfortunate but it is not shown that the cross -appellant took any step to enforce the order for discovery by initiating committal proceedings or by applying for the counter – affidavit of the 1st- 6th appellants/cross-respondents to be struck out. The cross – petitioner cannot at this stage raise the point. See BUHARI v. OBASANJO (2005) 130 LRCN 1925, 2030 – 2031, YUSUF V. OBASANJO (2005) 18 NWLR (956) 96, 205 and UZOHO V. TASK FORCE HOSPITAL MANAGEMENT (2004) 5 NWLR (862) 627, 642 648 and NWADIALO’S CIVIL PROCEDURE IN NIGERIA 2ND ED, P.641.
Although some of the paragraphs of the affidavit of the cross-appellant in support of the originating summons were not controverted, yet this is of no moment as it has been held that uncontroverted facts are taken as true and should be acted on except where, inter alia, the affidavit is not supported by exhibits where it is expected that it be so supported as in this case. See EPE LOCAL GOVERNMENT V. KESHINRO (2009) 4 NWLR (1131) 405, 426. Thus the complaints of the cross – appellant have no leg to stand on.
Apart from the foregoing, even if it is accepted that the chairman of the 1st appellant cross -respondent constituted the panel, I agree with Learned Senior Counsel for the 1st – 6th appellants/cross-respondents that the doctrine of necessary as applied in EX – PARTE OLAKUNRIN (1985) 1 NWLR (4) 652, 669 – 670 and 671 by the Supreme Court would come into play.
Fair hearing does not necessarily mean oral hearing. Hearing in writing is sufficient so long as the affected party is given opportunity to respond to the allegation against him. See ADEDEJI v. POLICE SERVICE COMMISSION (1967) NSCC (5) 59, 60-61, ONWUMECHILI v. AKINTEMI (1985) 3 NWLR (13) 504, 516, DUKE V. GOVERNOR of CROSS RIVER STATE (2013) I NWLR (1356) 311 and GYANG V. COMMISSIONER OF POLICE supra.
An administrative body such as the panel of the 2nd -6th appellants/cross-respondents has the discretion to decide whether to deal with the matter before it by oral hearing or by merely on written evidence. Thus dealing with a matter on printed evidence or communication only is not by itself breach of fair hearing. See GYANG V. COMMISSIONER OF POLICE supra. 560. Since the cross-appellant had been served with the petitions against him vide EXHIBIT JBK – A17 and he replied thereto vide EXHIBIT JBKA 1-45, not acceding to his request for public hearing was of no moment as it was within the discretion of the panel to choose its procedure especially in this case in which the cross-appellant admitted the substance of the petition against him. See HART V. MILITARY, RTVERS STATE GOVERNOR supra 632.
It must be mentioned that the Lower Court was right when it held at page 233 of the record that
“…..in matters of suspension the person affected can hardly complain of not having been given a fair hearing nor can he demand that rules of natural justice should apply”.
This position is supported by the case of SHELL PETROLEUM DEV. CO. LTD. V. LAWSON JACK (1198) 4 NWLR (545) 249, 270.
On account of all that I have said pertaining to issue two, I enter an affirmative answer to the issue.
The cross-appeal is therefore without merit and I accordingly dismiss it.
In sum, the main appeal succeeds while the cross-appeal fails and is dismissed
The parties shall bear their costs.
ABUBAKAR DATTI YAHAYA, J.C.A.: I have read in advance the lead Judgment of my learned brother Ekanem JCA just delivered and I am of the opinion that the whole appeal succeeds. In Issue No. 1, trial court had raised the extent of the power of the 1st appellant to suspend the 1st respondent and take other disciplinary action against him, and this was raised by the trial court suo motu, without affording the parties the opportunity to address on it. That decision therefore, is in breach of the right to fair hearing and ought to be rejected. Hence the success of Issue No,1, in favour of the appellants.
However Issue 2 was resolved, in the lead judgment, in favour of the appellant, in case the stand of the court in Issue No.1, is wrong. This means that the holding of the trial judge at page 244 of the record, wherein he said –
In the face of the rejection of its recommendation by the Governor of Ekiti State to retire the plaintiff, the disciplinary process set in motion by the 1st Defendant has become spent.”is wrong, It is this aspect that I respectfully want to say a few words.
If a body is given the power to suspend an officer or employee, and it also has the power to dismiss that officer after its investigations are completed, but it declines to dismiss him, then the suspension may have been spent since it has the power both, to suspend and dismiss. But if that body only has the power to suspend, but the power to dismiss is vested in some other person or authority, and that person declines to dismiss the officer, that disinclination will not affect the power of that body to suspend the officer. In that scenario, the power of the body to suspend the officer, is not spent or taken away, but the suspension may be withdrawn. But if it is not withdrawn, the power to suspend the officer, reinforced by the findings in the investigations of his conduct which was found unwarranted, and which led to a recommendation for his removal, remains, and he will have to remain suspended.
In respect of the instant appeal, Constitutional provisions have spelt out the powers of the 1st appellant, and the powers of the Governor, in respect of disciplinary actions against a judicial officer and his removal from office.
In interpreting these constitutional provisions, it is well to remember that it is their plain, ordinary and liberal meaning that should be considered. The provision of the Constitution should be read together so that the intention of the framers, can be discerned. See ACN VS. INEC & ORS. (2013) 13 NWLR (Pt. 1370) 161 at 191; A.G ABIA VS. A.G OF THE FEDERATION (2002) 6 NWLR (Pt.763) 264.
The Power of the 1st appellant in relation to disciplinary control over judicial officers, can be seen in item 21 (d) of Part 1 of the Third Schedule to the Constitution of the Federal Republic of Nigeria 1999 as amended, thus –
“The National Judicial Council shall have power to –
(d) Recommend to the Governor the removal from office of the judicial officers specified in sub-paragraph (c) of this paragraph, and to exercise disciplinary control over such officers,”
The above provision has painted two scenarios in which the 1st appellant (a) has the power to recommend to the Governor the removal from office, of a judicial officer and (b) to exercise disciplinary control over the judicial officer. In other words, the 1st appellant, can exercise disciplinary control over a judicial officer, and this includes suspending such judicial officer from his duties, independently, without recourse to or interference by any other person or authority, provided it is not to remove such a judicial officer. If the disciplinary control it wants to exercise over a judicial officer extends to removing him from office, then its power is limited to a recommendation of such, to the Governor.
By Section 292(1)(b) of the Constitution 1999,
“A judicial officer shall not be removed from his office or appointment before his age of retirement except in the following circumstances –
by the Governor acting on the recommendation of the National Judicial Council that the judicial officer be so removed for his inability to discharge the functions of his office or appointment (whether arising from infirmity of mind or body) or for misconduct or contravention of the code of conduct.”
The above, clarifies further, the power of the 1st appellant to recommend only, to the Governor, the removal of a judicial officer for the stated reasons given. It is for the Governor to exercise his powers so given, to either accept the recommendation of the 1st appellant or to decline it. It clearly shows that the Governor has no power on his own, to remove the judicial officer but must receive a recommendation in that direction from the 1st appellant, the NJC. The NJC on its own also, cannot remove the judicial officer unless the Governor accedes to its recommendation. So item 21 (d) of Part 1 of the Third Schedule, which is a constitutional provision, donated the power of disciplinary control of judicial officers (including the power to suspend them but not remove them) to NJC, and it did not subject it to the action or inaction of any other person. The powers of NJC in that regard, to discipline a judicial officer, remain intact and independent and cannot be wittled away by the power of the Governor to approve a recommendation for the removal of a judicial officer. The power of NJC to exercise disciplinary control over a judicial officer, minus removing him, in item 21 (d) of Part 1 of the Third Schedule is independent of the power of the Governor, given under Section 292(1)(b) of the 1999 Constitution, to remove a judicial officer. So when the 1st appellant suspended the 1st respondent, investigated him and having found him unworthy of continuous occupation of his office and recommended his removal, his suspension still remains. It is not automatic, that once the Governor failed to remove him, then both the recommendation and the suspension are spent. No. The suspension remains especially as the investigation carried out by the 1st appellant had indicted the 1st respondent. The 1st appellant has the liberty, the power, to lift the suspension of the 1st respondent, or leave it in place. The suspension has not become spent. I therefore also resolve Issue No. 2 in favour of the appellant.
I agree that in Issue No. 3, the declaratory relief was not asked for and as it is not a consequential relief, it ought not to have been granted – AJAO VS. ADEMOLA (2005) 3 NWLR (Pt.913) 636. It is set aside.
In respect of relief 7 in Issue 3, on the payment of salaries, allowances and other emoluments of the 1st respondent, I am in full agreement with learned counsel for the 1st appellant, that suspension is a form of disciplinary action. Once a person is suspended, it follows that the rights and privileges attached to that office, would no longer be available to him.
In this respect, the 1st respondent was suspended “until further notice.” This, in my view, robs him of the right and power to continue to sit and perform his functions as a judicial officer. It also robs him of the right to enjoy the salaries and allowances attached to the office, until the suspension is lifted. Since the power of the Governor to remove him has not been exercised, the suspension imposed on him by the NJC is unaffected and so his suspension, and the right to enjoy the salaries and allowances attached to his office remain in place “until further notice.” As he did not enjoy his salaries and allowances from the date of his suspension to the time the Governor declined to effect or accept the recommendation of the NJC, then he must continue in that vein, until the NJC acts otherwise.
I find solace in LONGE VS. FBN (2006) 3 NWLR (Pt.967) 228 where this Court held that the Board of Directors had the power to hire and fire the Managing Director. It is not the same here, as the 1st appellant, has the power to suspend, but not to dismiss. The Court went on, per Salami JCA as he then was, to refer to, with approval, the meaning of suspension as defined in UNIVERSITY OF CALABAR VS. ESIAGA (1997) 4 NWLR (PT.502) 719 AT 739 – 740. It said that suspension means –
“a temporary provision or deprivation, cessation or stoppage of or from the privileges and rights of a person, The word carries or conveys a temporary or transient disciplinary procedure which keeps away the viction or person disciplined from his regular occupation or calling, either for a fixed or terminal period or indefinitely.”
This definition was re-emphasised by the Supreme Court when the case of LONGE VS. FIRST BANK (SUPRA) went before it on appeal. In LONGE VS. FIRST BANK PLC (2010) 6 NWLR (Pt. 1189) 1, the Supreme Court at page 60C held that suspension is “a state of affairs which exists while there is a contract in force between the employer and the employee” but that
“there is neither work being done in pursuance of it nor remuneration being paid.”(Underlines mine)
In the instant appeal, the suspension of the 1st respondent is “until further notice.” In such a situation, it does not end by the mere refusal of the Governor to act, to remove or retire him on the recommendation of the 1st appellant, a body that constitutes eminent, knowledgeable, fair-minded and well tested judicial personalities, legal practitioners and distinguished members of the public. As such, their recommendation concerning judicial officers whose conduct and judicial decisions it monitors regularly, and who are known to her more than the Governor who is not as well placed, should not be jettisoned as lightly as it has been done in this case. The suspension continues until the 1st appellant lifts it, or he is removed from office.
Furthermore, the cessation of the rights of the 1st respondent to earn salaries and allowances, was due to the suspension imposed on him, and from the time he was suspended. So, he cannot enjoy those rights, and privileges simply because the Governor had declined to approve his removal from office. The suspension is still subsisting. I hold therefore, that the 1st respondent is not entitled to enjoy his salaries and allowances attached to his office, unless and until otherwise stated by the body that suspended him in pursuance of its disciplinary control over him – the 1st appellant. I therefore set aside the Order made by the trial court in this regard. Issue No. 3 is thus also answered in favour of the appellants and against the respondents.
The appeal has merit and it therefore succeeds in its entirety. I set aside the judgment of the trial court in Suit No.FHC/ABJ/CS/167/2007 delivered on the 26th of June 2009. I dismiss the Suit.
I am in total agreement with my learned brother Ekanem JCA, that the cross-appeal has no merit and it fails. I too dismiss it, and I abide by the Order as to no costs.
MOHAMMED MUSTAPHA, J.C.A.: I had the privilege of reading in advance the lead judgment just delivered by my learned brother, JOSEPH EKANEM, JCA.
While the main appeal succeeds, I agree with my learned brother that the cross-appeal lacks merit and equally dismiss same.
I am particularly in full agreement with my learned brother on his interpretation of Section 292(1)(b) of the Constitution (1999 amended), to mean that the National Judicial Council can only recommend the removal of a judicial officer to the governor of the relevant state; and having done that, nothing prevents a governor from rejecting the recommendation. As a matter of both fact and law, it is my considered view that, the governor does not have to put his rejection of the recommendation in writing, simply doing nothing about it is as good as openly saying no. See JUSTICE OKWUCHUKWU OPENE V NATIONAL JUDICIAL COUNCIL & ORS. (2011) LPELR- 4795 CA.
Parties should bear their cost.
Appearances
Olabisi Soyebo (SAN) (with her, Mabruk Kunmi – Olayiwola, Esq) for Appellants/1st-6th Cross-Respondents.For Appellant
AND
O. O. Olowolafe, Esq (with him, O. Gbadeyan Esq, Mrs. I. Uwalaka and Miss F. Abiodun) for 1st Respondent/Cross-Appellant.
A. A. Morakinyo, Esq (Director, Citizens Right, Ondo State) for 2nd and 3rd Respondents/Cross-Respondents.For Respondent
