NJC v. TSAMIYA & ANOR (2020)

NJC v. TSAMIYA & ANOR

(2020)LCN/14647(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Thursday, October 08, 2020

CA/A/450/2019

RATIO

RELIEF: PRINCIPLES GOVERNING ALTERNATIVE PRAYERS

In legalese, the prayers are said to be in the alternative; see The M.V. CAROLINE MAERSK & ORS V. NOKOY INVESTMENT LTD. (2002) 12 NWLR (PT. 782) 472, where the Supreme Court per Ayoola, J.S.C. explained as follows:
“Where a Plaintiff is uncertain whether the facts he relies on would entitle him to a relief either in addition to a first relief or merely as an alternative, he can claim the subsequent relief as a “further” or “alternative relief”. Where the first and principal relief is exhaustive of his remedy, there would be no need to grant the subsequent relief claimed as a further or “alternative relief”. In other words, after granting the main prayer, it is no longer open to the trial Court to consider the alternative prayer not to mention of granting it since an alternative relief cannot succeed unless the main relief fails – See AGIDIGBI V. AGIDIGBI (1996) 6 NWLR (PT. 454) 300 SC AND UBA PLC. V. MUSTAPHA (2004) 1 NWLR (PT. 855) 443…”
Most importantly, the appellant’s notice of appeal leaves no doubt as to what the appellant is appealing against. It is against the decision of the National Industrial Court, sitting in Abuja, presided by Hon. Justice E.N.N Agbakoba in suit No NICN/ABJ/45/2016; and even if the argument of learned counsel were accepted, the Court is always at liberty to grant or refuse a prayer, depending on the circumstances of each case. See ILEKURE V. OTELABI & ORS (2017) LPELR 43414 (CA). PER MUSTAPHA, J.C.A.
DISCIPLINE REGULATIONS: POWER OF THE NATIONAL JUDICIAL COUNCIL TO DISCIPLINE A JUDGE

Section 16 of the Discipline Regulations of the National Judicial Council which came into force on the 3rd of July, 2014 provides as follows:
1. “The council shall before it considers the report of the investigating committee forward a copy to the subject Judge.
2. Upon consideration of the report of the investigating committee, the council may decide:
a) That the case is unsubstantiated and is dismissed;
b) The case is substantiated wholly or in part, but does not require further action and is dismissed.
c) The case is substantiated wholly or in part but should be dealt with informally by the chief justice/chairman of the council or any person nominated by him where the misconduct is grave.
d) The case is substantiated wholly or in part and-
i) The council will exercise one or more of its disciplinary:
1) To censure or reprimand the subject judge; or
2) To suspend the subject judge; or
3) To direct that the subject judge; or put on a ‘watch list’ for the purpose of monitoring and reporting his conduct or ability to perform the functions of his office for a period specified by the council; or
4) …” PER MUSTAPHA, J.C.A.
INTERPRETATION: GUIDING PRINCIPLE OF INTERPRETATION OF STATUTES

the guiding principle of interpretation of statutes is settled by a plethora of authorities, the one that readily comes to mind is AMAECHI v. I.N.E.C (2008) 5 NWLR (Pt. 1080) 227 S.C; where the Supreme Court held in unambiguous terms that:
“It is settled law that in the construction of a statute, the primary concern of the Judge is the attainment or ascertainment of the intention of the legislature by examination of the language used therein. Where the language used in the legislation or statute or Constitution is clear, explicit and unambiguous, as found in the instant case, the Judge must give effect to it as the words used speak the intention of the legislature.” See also KRAUS THOMPSON ORGANISATION V NIPSS (2004) 17 NWLR (Pt. 901) 44.
This approach, without doubt, is predicated on the need for the Courts to as far as possible give effect to the intentions of the law makers by looking at the words of an enactment and giving them their literal, plain, ordinary and natural meanings. This is called the Literal Rule or Golden Rule approach in the interpretation of statutes. Courts are not allowed to derogate from the intentions of the legislature where the words of a statute are certain, plain and unambiguous, as in this case, especially where they do not attract any other context other than their plain and natural meanings; see OKOTIE EBOH V. MANAGER and ORS (2004) 12 SCNJ 139 and BABATUNDE V. PAN ATLANTIC SHIPPING & TRANS AGENCIES LTD & ORS (2007) 4 SCNJ 140.
To simplify matters, the Supreme Court went further to set out these guidelines in BASINCO MOTORS LTD. v. WOERMANN LINE & ANOR (2009) 13 NWLR (Pt. 1157) 149 as per ADEKEYE, JSC at 189 – 190 H – A, to guide the Courts in the interpretation of statutory provisions. They are:
(a) It is the intention of Legislature that should be sought, and same is to be ascertained from the words of the statute alone and not from other sources;
(b) Where the words used in the provisions of a statute are clear, simple and unambiguous, they should be given their simple, natural and ordinary meanings;
(c) The Court is not concerned with the result of its interpretation of statutory provisions i.e.; it is not in the Court’s province to pronounce on the wisdom or otherwise of the statute but only to determine its meaning;
(d) The Court must not import into a legislation words that were not used by the legislature and which will give a different meaning to the text of the statute as enacted by the legislature;
(e) The Court must not bring to bear on the provisions of a statute its prejudices as to what the law should be, but rather should interpret the law from the clear words used by the Legislature; and
(f) The Court must not amend the statute to achieve a particular object or result.
For emphasis, the Supreme Court went so far to hold that anything enacted by the Legislature must be enforced, however harsh or absurd or contrary to common sense the result may be; See IGUH, JSC in his contribution to the lead judgment of AYOOLA JSC in ADISA V. OYINWOLA (2000) 10 NWLR (Pt. 674) 116 at 202 E. PER MUSTAPHA, J.C.A.
FAIR HEARING: RIGHT TO FAIR HEARING

The Regulations are meant for the sole purpose of guiding the appellant; they are more so, as rules that relate to the Fundamental Rights of parties to fair hearing, which need to be complied with, at all times see; VICTINO ODDS LTD V OJO (2010) 8 NWLR part 1197 page 486, where the Supreme Court held that:
“…the right to fair hearing is a cardinal principle that is provided in Section 36 (1) of the 1999 Constitution of the Federal Republic of Nigeria…it is certain that fair hearing by a Court or judicial Tribunal under Section 36(1) of the 1999 Constitution, the grundnorm incorporates the audi alteram partem rule. It is that a man can never have a verdict entered against him on a matter relating to his civil rights or obligation before such a Court or Tribunal without being given an opportunity of being heard…see KANO N.A V OBIORA (1959) SCNLR 577.
In its real essence, fair hearing lies in the procedure followed in the determination of the case, not in the correctness of the decision. It is only when the party aggrieved has been heard that the trial judge would be seen as discharging the duty of an unbiased umpire…” PER MUSTAPHA, J.C.A.
INTERPRETATION: EFFECT OF THE USE OF THE WORD “SHALL”

In our laws, it has been held in a plethora of cases that the word ‘shall’ denotes command. In Adewumi & Anor V. A.G. Ekiti State (2002) 2 NWLR (Pt. 751), Onu, JSC, held that:
“The word “shall” as copiously used in these rules make the provisions mandatory, peremptory and failure to comply therewith is a fundamental error in the proceeding. See Onajobi v. Olanipekun (1985) 4 SC. 156 at 163; Olubode v. Salami (1985) 2 NWLR (Pt. 7) 282, Gwonto v. The State (1983) 1 SCNLR 142 and Bankole v. Pelu (1991) 6 NWLR (Pt. 211) 545. See also Chief Ifezue v. Mbadugha (1984) 1 SCNLR 427 and Oyeyipo v. Oyinloye (1987) 1 NWLR (Pt. 50) 356.”
See also Madumere & Anor v. Okwara & Anor (2013) LPELR – 20752 (SC), where Fabiyi, JSC, held that:
“The word “shall”, as employed in the stated Section, denotes obligation or a command and gives no room for discretion. It imposes a duty and enjoins a peremptory mandate. See: Bamaiyi v. Attorney General Federation & Ors. (2001) 12 NWLR (Pt. 723) 468 – 497.” STEPHEN JONAH ADAH, J.C.A.

Before Our Lordships:

Stephen Jonah Adah Justice of the Court of Appeal

Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal

Mohammed Mustapha Justice of the Court of Appeal

Between

NATIONAL JUDICIAL COUNCIL APPELANT(S)

And

HON. JUSTICE MUHAMMED LANDAN TSAMIYA 2. THE HONOURABLE ATTORNEY GENERAL OF THE FEDERATION RESPONDENT(S)

MOHAMMED MUSTAPHA, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the National Industrial Court of Nigeria, sitting in Abuja, delivered on the 5th of February, 2019 in suit No NICN/ABJ/435/2016, by Hon. Justice E. N. Agbakoba.

The appellant is a body established by Section 153 of the 1999 Constitution of the Federal Republic of Nigeria, as amended, while the 1st respondent was a justice of the Court of appeal, who was compulsorily retired by the appellant on the 13th of October, 2016; and the 2nd respondent the chief Law officer of the Federal Republic of Nigeria.

FACTS IN BRIEF:
A petition was written against the 1st respondent to the appellant, alleging corrupt behavior, malice and vindictiveness in the discharge of the 1st respondent’s judicial functions, particularly by demanding the sum of N200, 000,000 from the petitioner, one Nnamdi Iro Orji. The petition was forwarded to the 1st respondent, leading to his invitation to make representation in person or through his counsel.

At the conclusion of the proceedings, the investigative committee of the appellant found the petition credible, as it

related to the demand for money, leading in the end to the compulsory retirement of the 1st respondent.

The 1st respondent commenced an action at the trial Court contending that he was not afforded fair hearing, and sought declaratory and injunctive reliefs including an order setting aside the proceedings and recommendations of the appellant’s investigative committee. The writ of summons containing the reliefs claimed and the accompanying processes are at pages 1- 69 of the record of appeal; the reliefs claimed are as follows:
(a) A Declaration that the decision of the Defendants compulsorily retiring the Claimant on the conclusion that he demanded for the sum of Two Hundred Million Naira only (N200,000,000.00) from one Nmamdi Iro Orji is unsubstantiated unconstitutional, illegal, null and void.
(b) A declaration that the recommendation of the 1st Defendant based on its Investigation Committee report relating to the claimant in all ramification is illegal, unconstitutional as it violates the Claimant’s right to fair hearing which include the right of natural justice guaranteed under Section 36 of the Constitution of the Federal Republic of Nigeria 1999.

(c) An ORDER setting aside the report/recommendation of the 1st Defendant that the Claimant is guilty of demanding for the sum of Two Hundred Million Naira only (N200,000,000.00) from Mr. Nnamdi Iro Orji and the recommendation that retired him upon purported approval by the president of the Federal Republic of Nigeria being a gross infringement of the Claimants fundamental human right to fair hearing.
(d) AN ORDER of perpetual injunction restraining the Defendants, their agents, servant or privies from carrying into effect or executing or enforcing the recommendation dated the 22nd day of September 2016 or anything connected whatsoever with the said report or recommendation relating to the Claimant.
(e) An ORDER directing the defendant to accept the claimant’s letter of voluntary retirement dated 28th September, 2016.

Upon conclusion of trial, judgment was entered for the 1st respondent and all the reliefs sought were granted except relief (e). Dissatisfied with the outcome, the appellant appealed to this Court vide notice and grounds of appeal filed on the 13th day of March, 2019, contained at pages 671-674 of the

record of appeal, from which a sole issue was formulated for determination. The appellant’s brief settled by John A. Mathew Esq., of counsel, filed within time on the 5th day of June, 2019 was essentially adopted by Eyitayo Fatogun Esq., on behalf of the 1st respondent.

The 1st respondent filed a preliminary objection on the 29th of July, 2019 on the ground that the appeal is incompetent as a result of defect in the notice of appeal. The objection is argued at pages 7-9 of the record of appeal. It is necessary to resolve it first, one way or the other, before proceeding to the substance of the appeal, if need be.

PRELIMINARY OBJECTION:
It is submitted for the 1st respondent that the prayers of the appellant for an order allowing the appeal, setting aside the judgment of the trial Court and affirmation of the decision of the investigative committee of the appellant, as contained at page 673 of the record of appeal, when read conjunctively is defective, because this Court cannot sit on appeal over the decision of the investigative committee of the appellant; learned counsel referred the Court to Section 240 of the 1999 Constitution, as amended

and BUHARI V YUSUF (2003) FWLR part 174 page 329 to buttress the jurisdiction of this Court.

In response, it is submitted for the appellant that the appeal is clearly against the decision of the National Industrial Court, as the notice of appeal attests to that; and also that even if relief three is defective the Court is at liberty to disregard it, or the appellant can abandon same; indeed, the appellant urged the Court to disregard the said relief.

RESOLUTION:
The appellant prayed for the following before this Court:
a) An order allowing this appeal.
b) An order of this Court setting aside the judgment of the Court below delivered on the 5th of February, 2019, and
c) An order affirming the decision of the investigative committee set up by the appellant recommending the compulsory retirement of the claimant (now 1st respondent).
The 1st respondent’s major grouse, and contention, is that the third prayer, if granted would be akin to this Court sitting on appeal over the decision of the investigative committee set up by the appellant.
Section 240 of the Constitution of the Federal Republic of Nigeria 1999, as amended

referred to, indeed simply outlined the exclusive jurisdiction of this Court to hear appeals from the Federal High Court, the High Court of the Federal Capital Territory, the High Court of a state, Sharia Court of Appeal of the FCT, Sharia Court of a State, Customary Court of Appeal and Court Martial or other tribunals; and does not include the decisions of the investigative committee of the NJC.
The argument of learned counsel to the 1st respondent with all due respect is farfetched, not least because the three prayers cannot be read conjunctively as suggested. This is so because each one of them stand alone, independent of the other. It is a clear case of either this or that, and not this and that. In legalese, the prayers are said to be in the alternative; see The M.V. CAROLINE MAERSK & ORS V. NOKOY INVESTMENT LTD. (2002) 12 NWLR (PT. 782) 472, where the Supreme Court per Ayoola, J.S.C. explained as follows:
“Where a Plaintiff is uncertain whether the facts he relies on would entitle him to a relief either in addition to a first relief or merely as an alternative, he can claim the subsequent relief as a “further” or “alternative

relief”. Where the first and principal relief is exhaustive of his remedy, there would be no need to grant the subsequent relief claimed as a further or “alternative relief”. In other words, after granting the main prayer, it is no longer open to the trial Court to consider the alternative prayer not to mention of granting it since an alternative relief cannot succeed unless the main relief fails – See AGIDIGBI V. AGIDIGBI (1996) 6 NWLR (PT. 454) 300 SC AND UBA PLC. V. MUSTAPHA (2004) 1 NWLR (PT. 855) 443…”
Most importantly, the appellant’s notice of appeal leaves no doubt as to what the appellant is appealing against. It is against the decision of the National Industrial Court, sitting in Abuja, presided by Hon. Justice E.N.N Agbakoba in suit No NICN/ABJ/45/2016; and even if the argument of learned counsel were accepted, the Court is always at liberty to grant or refuse a prayer, depending on the circumstances of each case. See ILEKURE V. OTELABI & ORS (2017) LPELR 43414 (CA).
In any case, the appellant did indeed withdraw the offending prayer; regardless of whether it was withdrawn or not, the Appellate Court is not bound, as of necessity to grant

every relief sought, even if the appeal succeeds. OKONKWO V. INEC & ORS (2014) LPELR – 22486 (CA).
The preliminary objection is dismissed accordingly without much ado.

THE APPEAL:
Whether the trial Court was right to have nullified the proceedings and decision recommending the compulsory retirement of the 1st respondent on the basis that the right to fair hearing of the 1st respondent was breached by the appellant. Ground one.

It is contended for the appellant that the 1st Respondent’s right to fair hearing was not breached in the least, because there is ample evidence that he fully participated in the investigative committee’s hearing, in addition to which he was given the opportunity to make representations, which counsel argued constituted the ‘opportunity to be heard’.

That the trial Court was wrong in its exposition of the clear and unambiguous provisions of Regulation 16 (1) of Judicial Discipline Regulation, 2014, by stretching it to hold that, service of the investigation report on the subject judge creates a condition precedent to the appellant’s consideration of the Report, and that failure to serve the subject

judge a copy of the Report invalidated and nullified all subsequent actions of the appellant.

That a careful reading of the said section will reveal that no penalty is prescribed for failure to serve a copy of the report on the subject judge; and the essence of appointing an investigation committee to come up with a report is set out in Regulation 15 (3) which provides that:
“The investigating committee shall immediately submit to the council through the chairman of the council a comprehensive report of its investigation, including its findings and recommendations for council action.”

That by this regulation, once the investigating committee comes up with a report, it is submitted to the council for the sole purpose of the council’s action, and nothing is expected to happen after the submission of the report, except action by the council.

It is further submitted that even though the subject judge is to be served a copy of the investigation report, no further representation is expected from him; and it is for this reason that the trial Court erred by holding that the failure to serve the 1st respondent a copy of the report amounted to a

denial of his right to fair hearing.

That if the intention of the makers of the regulation was to avail an opportunity for further representation to the subject judge, they would have provided so, and in the circumstances, non-service of the report would rightly have amounted to a breach of the right to fair hearing of the subject judge, but that is not the case.

That also in the instant case, the trial Court imported into the regulations what was not contemplated by the makers of the regulations and thereby gave it a different interpretation to express simple, clear and unambiguous words in Regulation 16 (1); learned counsel referred the Court to A.G. FEDERATION V A.G. LAGOS STATE (2013) 16 NWLR part 1380 page 249 at 317.

That the only regulations in the whole of the Judicial Discipline Regulations dealing with representations by the subject judge are Regulations 10(3) iv, 11(1), 11(7) and 14 (1) (b); learned counsel submits that the issue of fair hearing can only arise where the subject judge is not afforded the opportunity to make representations with regard to those provisions that require representation to be made by the subject judge.

Learned counsel contends as settled that, once a party is given the opportunity to make representation in a proceeding, the requirement of fair hearing is satisfied;S & D CONSTRUCTION CO. LTD V AYOKU (2011) ALL FWLR part 604 page 1 and OKIKE V LPDC (2005) 15 NWLR part 949 page 471 at 514.

Learned counsel urged the Court to resolve the sole issue in favour of the appellant, and set aside the decision of the trial Court and allow the appeal.

In response, it is submitted for the 1st respondent that Courts are enjoined to observe compliance in regard to the right to fair hearing in all cases, such that a breach renders proceedings in the case null and void in any event; and that hence, a person liable to be directly affected by a decision, administrative act or proceeding or against whom disciplinary action may be taken out, be given adequate notice of the allegation against him, so as to give him opportunity to prepare his answers to the allegation against him; AIYETAN V NIFOR (1987) 3 NWLR part 59 page 66 and LPDC V FAWEHINMI (1985) 2 NWLR part 7 page 300.

That from the facts of this appeal, the 1st respondent cannot be said to have been

given fair hearing because the purported investigation and his subsequent trial did not meet the requirements of Section 36 (1) of the Constitution.

That also rules of Court or rules of procedure are not only important, but are a guide to the entire proceedings, and the rules of the appellant, made pursuant to the constitutional powers of the chief justice of Nigeria are sacrosanct; ABIA STATE UNIVERISTY V ANYIBE (1996) 3 NWLR part 439 page 646.

It is further submitted for the 1st respondent that the allegation as found by the panel, a delegate of the council must be put to the 1st respondent by the council; that the 1st respondent deserved a right to fair hearing, a copy of the report of the panel and the alleged ‘misconduct’ for which he was to be removed or compulsorily retired; DR. TAIWO OLORUNTOBA OJU & 4 ORS V PROFESSOR SHUAIB O. ABDULRAHEEM & 4 ORS (2009) 13 NWLR part 1157 page 83.

RESOLUTION:
Section 16 of the Discipline Regulations of the National Judicial Council which came into force on the 3rd of July, 2014 provides as follows:
1. “The council shall before it considers the report of the investigating committee

forward a copy to the subject Judge.
2. Upon consideration of the report of the investigating committee, the council may decide:
a) That the case is unsubstantiated and is dismissed;
b) The case is substantiated wholly or in part, but does not require further action and is dismissed.
c) The case is substantiated wholly or in part but should be dealt with informally by the chief justice/chairman of the council or any person nominated by him where the misconduct is grave.
d) The case is substantiated wholly or in part and-
i) The council will exercise one or more of its disciplinary:
1) To censure or reprimand the subject judge; or
2) To suspend the subject judge; or
3) To direct that the subject judge; or put on a ‘watch list’ for the purpose of monitoring and reporting his conduct or ability to perform the functions of his office for a period specified by the council; or
4) …”
This case is all about the propriety or otherwise of failure to serve the investigative report on the 1st respondent, a fact not denied; and its consequences if any on the decision of the Appellant.

This regulation in question is particularly plain and straight forward, and ought to be read as it is because the guiding principle of interpretation of statutes is settled by a plethora of authorities, the one that readily comes to mind is AMAECHI v. I.N.E.C (2008) 5 NWLR (Pt. 1080) 227 S.C; where the Supreme Court held in unambiguous terms that:
“It is settled law that in the construction of a statute, the primary concern of the Judge is the attainment or ascertainment of the intention of the legislature by examination of the language used therein. Where the language used in the legislation or statute or Constitution is clear, explicit and unambiguous, as found in the instant case, the Judge must give effect to it as the words used speak the intention of the legislature.” See also KRAUS THOMPSON ORGANISATION V NIPSS (2004) 17 NWLR (Pt. 901) 44.
This approach, without doubt, is predicated on the need for the Courts to as far as possible give effect to the intentions of the law makers by looking at the words of an enactment and giving them their literal, plain, ordinary and natural meanings. This is called the Literal Rule or Golden Rule approach in

the interpretation of statutes. Courts are not allowed to derogate from the intentions of the legislature where the words of a statute are certain, plain and unambiguous, as in this case, especially where they do not attract any other context other than their plain and natural meanings; see OKOTIE EBOH V. MANAGER and ORS (2004) 12 SCNJ 139 and BABATUNDE V. PAN ATLANTIC SHIPPING & TRANS AGENCIES LTD & ORS (2007) 4 SCNJ 140.
To simplify matters, the Supreme Court went further to set out these guidelines in BASINCO MOTORS LTD. v. WOERMANN LINE & ANOR (2009) 13 NWLR (Pt. 1157) 149 as per ADEKEYE, JSC at 189 – 190 H – A, to guide the Courts in the interpretation of statutory provisions. They are:
(a) It is the intention of Legislature that should be sought, and same is to be ascertained from the words of the statute alone and not from other sources;
(b) Where the words used in the provisions of a statute are clear, simple and unambiguous, they should be given their simple, natural and ordinary meanings;
(c) The Court is not concerned with the result of its interpretation of statutory provisions i.e.; it is not in the Court’s

province to pronounce on the wisdom or otherwise of the statute but only to determine its meaning;
(d) The Court must not import into a legislation words that were not used by the legislature and which will give a different meaning to the text of the statute as enacted by the legislature;
(e) The Court must not bring to bear on the provisions of a statute its prejudices as to what the law should be, but rather should interpret the law from the clear words used by the Legislature; and
(f) The Court must not amend the statute to achieve a particular object or result.
For emphasis, the Supreme Court went so far to hold that anything enacted by the Legislature must be enforced, however harsh or absurd or contrary to common sense the result may be; See IGUH, JSC in his contribution to the lead judgment of AYOOLA JSC in ADISA V. OYINWOLA (2000) 10 NWLR (Pt. 674) 116 at 202 E.
For the avoidance of doubt, it is not out of place to reiterate, at least, that the National Judicial Council, the appellant in this case is the maker of the Judicial Discipline Regulations, 2014; and it is one of the bodies established under Section 153 (1) (i) of the 1999 Constitution, as amended, with its

composition and powers laid down in Part 1 of the Third Schedule to the Constitution. The Regulations are meant for the sole purpose of guiding the appellant; they are more so, as rules that relate to the Fundamental Rights of parties to fair hearing, which need to be complied with, at all times see; VICTINO ODDS LTD V OJO (2010) 8 NWLR part 1197 page 486, where the Supreme Court held that:
“…the right to fair hearing is a cardinal principle that is provided in Section 36 (1) of the 1999 Constitution of the Federal Republic of Nigeria…it is certain that fair hearing by a Court or judicial Tribunal under Section 36(1) of the 1999 Constitution, the grundnorm incorporates the audi alteram partem rule. It is that a man can never have a verdict entered against him on a matter relating to his civil rights or obligation before such a Court or Tribunal without being given an opportunity of being heard…see KANO N.A V OBIORA (1959) SCNLR 577.
In its real essence, fair hearing lies in the procedure followed in the determination of the case, not in the correctness of the decision. It is only when the

party aggrieved has been heard that the trial judge would be seen as discharging the duty of an unbiased umpire…”
From the onset, the 1st respondent stated that he was never given a fair hearing by the appellant’s investigative panel, who clearly failed to give him a copy of its report. This much is clear in evidence, stated at paragraph 16 of the witness statement on oath:
C. “The 1st respondent’s panel was wrong in arriving at the conclusion of believing the petitioner (Nnamdi Orji) instead of me, when I denied the allegation and it was manifestly unsupported even under cross examination.
D. That I never had the benefit of knowing the reason or the basis for holding the evidence of Nnamdi Orji being regarded as credible and disbelieving my own which was untainted and unshaken.”
It is not in dispute that the 1st respondent never had the benefit of seeing Exhibit C7 i.e. the report of the appellant’s committee; the trial Court went on to resolve the failure to serve the report of the committee on the 1st respondent this way:
“…in consideration of the facts of this instant case, the provisions of Regulation 16 (1) of the JDR 2014

in requesting that a subject judge be afforded a copy of the investigating committees Report before the 1st defendant consider the report creates a condition precedent to the validity of any further action of the 1st defendant. The provisions have been described as mandatory and as such failure of the 1st defendant to comply with this provisions invalidates and nullifies all their subsequent actions as well as the incidental results and effects of their said action. In the circumstances…l resolve this flank of issue 2 in the claimant’s favour.”
It is contended for the appellant that there is neither penalty prescribed for failure to serve a copy of the report on the subject judge nor a provision or purpose for which a copy of the report is to be served on the subject judge.
It is further submitted for the appellant that the provisions for making representation by a subject judge are contained only in Regulations 10 (3) iv, 11(1), 11(7) and 14 (1) (b); and that fair hearing or its absence can only arise where the subject judge is not afforded opportunity to make representations with regard to those provisions that require representations to be made.

Stretching these arguments will lead to the invariable conclusion that there is no consequence for failure to serve the report. That conclusion would be absurd; and the absurdity will stem from the fact that the Regulations providing for service to the subject judge is not for the fun of it. It is there to ensure fairness to the subject judge; failure to serve cannot therefore simply be discountenanced or wished away. It has consequences. The connection between Regulation 16 (1) and (2) is very clear and seamless, so much so that the contention of learned counsel for the appellant, with all due respect is misconceived.
The makers of the Regulation know exactly what they hope to achieve by the provision. It is very important not to lose sight of the fact that the issue under consideration is the removal of a judicial officer from office under Section 292 (1) (b) of the 1999 Constitution, as amended.
Service of the report on the 1st respondent is surely meant to enable the subject judge have knowledge of what the investigative report contains, for the purpose of exercising his fundamental right to fair hearing, to write to the council,

if he wishes, where he finds his rights have been infringed upon before the council takes final decision as it affects him. Section 36 (1) of the Constitution does not allow for compromise; it is for this reason that this Court held emphatically in HON. JUSTICE BASSEY TAMBU V. NJC & 3 ORS IN CA/A/708/2017 unreported, – per Adah JCA that:
“…the demand of the fundamental right to fair hearing under Section 36 of the 1999 Constitution is much more than substantial compliance, the seriousness is such that if there is 99% compliance of the Regulations and the 1% left of the noncompliance is more for the right to fair hearing. The 1% non-compliance outweighs the 99% compliance with the Regulations and voids the entire proceedings…”
The submission of learned counsel to the appellant to the effect that there is nothing in Regulation 16 of the Judicial Discipline Regulations, 2014 requiring that the 1st respondent be given an opportunity to make representation before presentation of the report to the appellant, is not only flawed but misplaced, because the law is clearly against that view.
“Natural justice demands that a party must be

heard before the case against him is determined…once an appellant shows that there is an infringement of the principle of natural justice against him…he need show nothing more. The finding that there is an infringement of the principle is sufficient to grant him a remedy. This is not a case of where one, after showing injuria would need to proceed further to show damnum. The injuria herein, is proof positive of the damnum.” Per Eso JSC in ADIGUN V A.G. OF OYO STATE (1987) 1 NWLR part 53 page 678.”
A community reading of Sections 14, 15 and 16 of the Regulations brings out in clear light the depth of the safeguard and concern for fair hearing in the regulations as it relates to the discipline of a judicial officer.
From the record before this Court, the appellant admirably carried out all the preliminary steps in the direction of fair hearing, except the very important step of letting the 1st respondent have a copy of the investigative committee report, contrary to the provisions of Regulation 16 (1). This failing, unfortunately renders all considerations of the report a nullity, for breaching the fundamental right to fair hearing of the

1st respondent. Even though the appellant ostensibly afforded the 1st respondent the right to make representation with one hand, it appeared to have taken it right back with the other, by failing to make available to him the vital document, a copy of the investigative committee report.
The trial Court impeccably found in this regard that:
“the principle of fair hearing entrenched in the Constitution is so fundamental in the judicial process or the administration of justice that a breach of it will vitiate or nullify the whole proceedings… the 1st defendant in compulsorily retiring the claimant and all subsequent actions following there from are null and void being based on a nullity…”
It is for these reasons that I now resolve the sole issue for determination in this case in favour of the 1st respondent, against the appellant. The Judgment of the trial National Industrial Court, sitting in Abuja, presided by Hon Justice E.N. AGBAKOBA in suit No NICN/ABJ/435/2016 is hereby affirmed.

STEPHEN JONAH ADAH, J.C.A.: I was privilege to read in draft the judgment just delivered by my learned brother, Mohammed Mustapha, JCA.

This appeal is centered on the interpretation and the operation of Paragraph 16(1) of the Discipline Regulations of the NJC, which came into force on the 3rd day of July, 2014.
In the instant case, a very serious petition was written against the 1st Respondent, a judicial officer, accusing him of corrupt behaviour. An Investigating Committee was set up to investigate the allegations. The Investigating Committee finished its investigation and forwarded its report to the appellant. This was in line with Regulation 15(3) of the Discipline Regulations of the appellant. Paragraph 16(1) of the Discipline Regulations provides:
The Council shall before it considers the report of the Investigating Committee forward a copy to the subject judge.
In our laws, it has been held in a plethora of cases that the word ‘shall’ denotes command. In Adewumi & Anor V. A.G. Ekiti State (2002) 2 NWLR (Pt. 751), Onu, JSC, held that:
“The word “shall” as copiously used in these rules make the provisions mandatory, peremptory and failure to comply therewith is a fundamental error in the proceeding. See Onajobi v. Olanipekun (1985) 4 SC. 156 at 163;

Olubode v. Salami (1985) 2 NWLR (Pt. 7) 282, Gwonto v. The State (1983) 1 SCNLR 142 and Bankole v. Pelu (1991) 6 NWLR (Pt. 211) 545. See also Chief Ifezue v. Mbadugha (1984) 1 SCNLR 427 and Oyeyipo v. Oyinloye (1987) 1 NWLR (Pt. 50) 356.”
See also Madumere & Anor v. Okwara & Anor (2013) LPELR – 20752 (SC), where Fabiyi, JSC, held that:
“The word “shall”, as employed in the stated Section, denotes obligation or a command and gives no room for discretion. It imposes a duty and enjoins a peremptory mandate. See: Bamaiyi v. Attorney General Federation & Ors. (2001) 12 NWLR (Pt. 723) 468 – 497.”
In the instant case, from the provisions of Regulation 16(1) of the Discipline Regulations, the word ‘shall’ without doubt makes it mandatory for the Council (appellant) to forward a copy of the investigative report submitted to it, to the 1st Respondent before it can consider or act on it to the detriment or otherwise of the 1st Respondent.
Regulation 16(1) was not inserted in the Discipline Regulations for fancy. It is the diadem or crown cap on the fundamental right of a subject judge to fair hearing. The appellant who made the

Regulations had the best of intentions which apparently is to enhance the protection of the security of tenure of a judicial officer by offering a judicial officer his right to fair hearing. It is by dint of classical reality for a judge to be judged but when a judge is to be judged for misconduct, the regulations or rules put in place by the appellant to forestall injustice must be complied with.
In the instant case, this all important regulation was not complied with. This therefore has compromised the right of the 1st Respondent to fair hearing. The lower Court was therefore right in its decision of 5th February, 2019.

I therefore, fully agree with my learned brother in the lead judgment that the appeal is lacking in merit. I accordingly agree with the lead judgment that this appeal be and it is hereby dismissed. I abide by the consequential order made therein.

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I had the privilege to preview the draft of the lead judgment delivered by my learned brother, Muhammed Mustapha, JCA.
I agree with the reasoning and conclusion reached therein and therefore also affirm the judgment of Hon.

Justice E. N. Agbakoba in Suit No. NICN/ABJ/ 435/2016.
I make no order as to costs

Appearances:

John Mathew, Esq. For Appellant(s)

Fatogun, Esq., with him, A. ArosanyinAnth D. Bhedmus and Chike Nwogbo, Esq. for the 1st Respondent.

Bailiff: 2nd Respondent served on the 7/9/2020 For Respondent(s)