TOKODE v. NJC
(2021)LCN/15639(CA)
In the Court of Appeal
(ABUJA JUDICIAL DIVISION)
On Wednesday, September 15, 2021
CA/A/611/2018
Before Our Lordships:
Ignatius Igwe Agube Justice of the Court of Appeal
Olabode Abimbola Adegbehingbe Justice of the Court of Appeal
Abba Bello Mohammed Justice of the Court of Appeal
Between
HONOURABLE JUSTICE OLUSEGUN OLAYINKA TOKODE APPELANT(S)
And
NATIONAL JUDICIAL COUNCIL RESPONDENT(S)
RATIO
THE POSITION OF LAW ON THE GUIDING PRINCIPLES IN THE INTERPRETATION OF STATUTES
In the case of EJUETAMI v OLAIYA & ORS (2001) LPELR-1072(SC), the Supreme Court, per Ejiwunmi, JSC restated the guiding principles in the interpretation of statutes when the Court held, at pages 23-24, paras. F—C, as follows:
“I think it is desirable to remember some of the established principles governing the interpretation of the provisions of a statute. They are: (1) that it is the intention of the legislature that is being sought i.e. the intention of the “writer” of the document. (2) that that intention is to be desired from the words of the Act alone and not from other sources. (3) that the words used are to be given their “ordinary and natural sense” i.e., the legislature is to be presumed not to have put a special meaning on words. (4) that the Court is not concerned with the result of its interpretation: it is not the Court’s province to pronounce on the wisdom or otherwise of the Act but only to determine its meaning.”
A look at Paragraphs 13 and 21 of Part 1 of the Third Schedule to the CFRN, 1999 which I have reproduced above shows that the wordings used in those paragraphs are plain and unambiguous. The settled law is that where the words are clear and unambiguous they must be given their natural and grammatical meaning. This settled principle was reiterated by His Lordship Muhammad, JSC in SARAKI v FRN (2016) LPELR-40013(SC) at pages 90-91, paras. F—B, when he held that:
“In interpreting provisions of the Constitution or indeed any statute, the settled principle is that where the words used are devoid of ambiguity, same must be given natural meaning. In other words, where the words used are clear and unambiguous, they must be given their plain and ordinary meaning.”
See also: AMADI v INEC (2013) 4 NWLR (Pt. 1345) 595 at page 633, paras. D – F and 634-635, paras. H-C; and DANGANA v USMAN (2013) 6 NWLR (Pt. 1349) 50 at page 93, paras. B. PER MOHAMMED, J.C.A.
WHETHER OR NOT THE COURT MUST CONFINE ITSELF TO THE WORDS EXPRESSELY USED IN THE CONSTITUTION OR A STATUTE WHEN INTERPRETINNG THE PROVISIONS OF THE STATUTE
It is trite principle law that in interpreting the provisions of the Constitution or of a statute, the Court must confine itself only to the words expressly used and avoid adding to or subtracting from its provisions. In SKYE BANK v IWU (2017) LPELR-42595(SC), the Supreme Court had restated this legal position when His Lordship Ogunbiyi, JSC held at page 118, paras. B— C, as follows:
“The law is also well established that interpretation of statutes should always be given its ordinary meaning. Where however it is clear, unambiguous and to the point, an+—\\y addition or subtraction will be sequel to introducing an illegal back door amendment.”
See also: AGI v PDP & ORS (2016) LPELR-42578(SC), per Ogunbiyi, JSC at pages 52 – 53, paras. E- A. PER MOHAMMED, J.C.A.
WHETHER OR NOT THE COURT CAN RAISE AN ISSUE SUO MOTU ON BEHALF OF PARTIES BEFORE IT
As rightly contended by the learned Senior Counsel for the Appellant, the settled law is that in deciding a matter, a Court of law is bound to confine itself to the case made up in the parties’ pleadings. In NBCI v INTEGRATED GAS (NIG.) LTD & ANOR (2005) LPELR-2016(SC), the Apex Court, per Edozie, JSC held at pages 21—22, paras. E-F, that:
“A Court is not competent to make a case for the parties different from the case they made for themselves. This principle was recently restated by this Court in the case of Spasco Vehicle and Plant Hire Co. v. Alraine (Nig.) Ltd. (1995) 8 NWLR (Pt. 416) 655 at 669 where Iguh, J.S.C., observed – It is an elementary and fundamental principle of the determination of disputes between parties that judgment must be confined to the issues raised by the parties in their pleadings. It is not competent for the trial Court suo motu to make a case for either or both of the parties and then proceed to give judgment on the case so formulated contrary to the case of the parties before him… This principle of law is, without doubt, in accordance with common sense, as to permit trial Courts to wander out of issues raised by the parties in their pleadings and to found their judgment on such issues would not only take parties by surprise and make nonsense of pleadings, it might well result in the denial to one or the other of the parties of the right to fair hearing pursuant to the audi alteram partem rule as enshrined in the 1979 Constitution of Nigeria.”
See also: UNIVERSITY OF CALABAR v ESSIEN (1996) per Mohammed, JSC, at page 36, paras. D-F; KAYILI v YILBUK & ORS. (2015) LPELR-24321(SC), per Ogunbiyi, JSC at page 52, paras. A-F; and BANKOLE & ANOR v DENAPO & ANOR (2019) LPELR-46444(CA), per Ogakwu, JCA at pages 11-12, paras. E-A. PER MOHAMMED, J.C.A.
ABBA BELLO MOHAMMED, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Federal High Court (herein after referred to as the lower Court), delivered by Honourable Justice Nnamdi O. Dimgba on the 16th of April, 2018 wherein he dismissed the Appellant’s claims against the Respondent.
FACTS OF THE CASE:
The Appellant who was one of the candidates shortlisted for appointment as a Judge of the Federal High Court was by the extant Revised National Judicial Council (NJC) Guidelines and Procedural Rules for the Appointment of Judicial Officers required to complete NJC Form A and attach six (6) judgments in cases personally handled by him within the preceding 5 years. The Appellant duly filled and submitted the said NJC Form A and attached 6 copies of the judgments required. He attended two interviews in June and September, 2015 and was subsequently recommended and appointed as a Judge of the Federal High Court and was sworn in on 2nd December, 2015.
After the Appellant had functioned as a Judge of the Federal High Court for over a year, two separate petitions were presented against him. The first, dated 22nd December, 2016, was made by Socio-Economic Rights Accountability Project (SERAP), which was to the effect that the Appellant did not personally handle the six (6) cases he attached to the NJC Form A which he completed and presented to the Respondent as a requirement for his appointment as a Judge of the Federal High Court, because at all material times he was resident in Canada. The second petition against the Appellant which was dated 15th February, 2017 was of the same substance as the first one. It was made by the Presidential Advisory Committee on Corruption.
After the Appellant responded to the petitions, the Respondent set up an Investigation Committee before which the Appellant appeared with his Counsel on the 21st of November, 2017. Following the outcome of its investigations, the Respondent recommended to the President of the Federal Republic of Nigeria for the compulsory retirement of the Appellant with immediate effect and that the Appellant should refund all emoluments he received as a Judge of the Federal High Court.
The Appellant, as Plaintiff, then took up an originating summons against the Respondent, as Defendant, before the lower Court wherein he sought for the following reliefs:
1. A DECLARATION that the defendant, being constitutionally a “second tier” appointing and removing authority cannot commence the process of recommending the removal of the plaintiff as a Judge of the Federal High Court without first receiving a recommendation for the removal of the plaintiff from the Federal Judicial Service Commission which constitutionally is the “first tier” appointing and removing authority in respect of the plaintiff as a Judge of the Federal High Court of Nigeria.
2. A DECLARATION that even if (which is not conceded), the defendant can commence the process of recommending the removal of the Plaintiff as a Judge of the Federal High Court without first receiving any recommendation from the Federal Judicial Service Commission, the defendant cannot find the plaintiff guilty of misconduct with regard to the presentation of six cases to the Federal Judicial Service Commission when there has been no complaint from the Federal Judicial Service Commission to the defendant that the six cases relied upon by the plaintiff for his appointment as a Judge of the Federal High Court did not meet the requirements of the Federal Judicial Service Commission for shortlisting the plaintiff for appointment.
(underline mine for later emphasis)
3. A DECLARATION that even if (which is not conceded) the six cases presented by the plaintiff of his appointment as a Judge of the Federal High Court fall short of the requirements for his appointment and as a result the plaintiff is disqualified for appointment, the defendant can only find the plaintiff’s appointment void and as such cannot recommend the plaintiff for compulsory retirement pursuant to Section 292 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
4. A DECLARATION that the recommendation by the defendant of the plaintiff for removal as a Judge of the Federal High Court is in violation of Section 292 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), in that the defendant did not act on any other evidence apart from the documents that the defendant relied upon in recommending the plaintiff for appointment as a Judge of the Federal High Court.
5. A DECLARATION that the investigation by the defendant of a petition alleging lack of due diligence on the part of the Federal Judicial Service Commission and the defendant, with regard to the appointment of the plaintiff as a Judge of the Federal High Court, is in breach of the rules of natural justice as the defendant who is being accused of lack of the diligence cannot investigate itself with regard to the process of the appointment of the plaintiff or review the documents which the defendant had hitherto accepted as satisfactory for appointing the plaintiff as a Judge of the Federal High Court.
6. A DECLARATION that even if (which is not conceded) the six cases relied upon by the plaintiff do not satisfy the requirements of the defendant with regard to the plaintiff’s appointment as a Judge of the Federal High Court, the defendant, having accepted those six cases as satisfactory and without any other fresh evidence of any mutilation, alteration or misuse of those six cases on the part of the plaintiff, is estopped from reversing itself after the plaintiff relied irreversibly on the decision of the defendant to recommend the plaintiff as a Judge of the Federal High Court and has been appointed by the President on the said recommendation and has started functioning as a Judge of the Federal High Court.
7. AN ORDER setting aside the purported recommendation by the defendant to the President of the Federal Republic of Nigeria for the compulsory retirement of the plaintiff as a Judge of the Federal High Court.
8. AN ORDER setting aside the purported recommendation by the defendant to the President of the Federal Republic of Nigeria that the Plaintiff should forfeit all the emoluments that the plaintiff has received since his appointment as a Judge of the Federal High Court of Nigeria.
The Plaintiff’s (Appellant’s) Originating Summons and its accompanying processes are contained at pages 3—598 of the Record of Appeal).
In defence of the suit, the Defendant (now Respondent) raised a preliminary objection to the jurisdiction of the lower Court, and also opposed the originating summons with a counter-affidavit. The Defendant’s (Respondent’s) processes before the lower Court are at pages 599—673 of the Record of Appeal.
After hearing the parties, the lower Court delivered judgment on 16th April, 2018 wherein it dismissed defendant’s preliminary objection challenging its jurisdiction and subsequently dismissed the Plaintiff’s suit for lack of merit. The said judgment of the lower Court is contained at pages 682—727 of the Record of Appeal.
Dissatisfied with the judgment of the lower Court, the Appellant has brought this appeal vide Notice of Appeal dated 30th May, 2018 and filed on the 31st of May, 2018 which is at pages 728-733 of the Record. In the Notice of Appeal containing five grounds of appeal, the Appellant sought for an order setting aside the judgment of the lower Court and for an order granting the Plaintiff/Appellant’s claims as set out in the originating summons.
At the hearing of the appeal on 30th June, 2021, learned Counsel for the parties adopted their respective Briefs of Argument. The Appellant’s Brief of Argument, which was settled by O. A. R. Ogunde, SAN, is dated 26th September, 2018 and filed on 3rd October, 2018. On its part, the Respondent responded to this appeal with both a Notice of Preliminary Objection as well as a Respondent’s Brief of Argument all dated 31st October, 2018 and filed on 2nd November, 2018 which were settled by Steve O. Emelieze Esq. The Appellant also filed a Reply Brief dated 16th November, 2018 and filed on 19th November, 2018 wherein he also responded to the Respondent’s preliminary objection.
In his Brief of Argument, learned Senior Counsel for the Appellant, O. A. R. Ogunde, SAN distilled the following five issues for determination:
1. Whether the lower Court was right in law when it held that on an interpretation of Paragraphs 13 and 21 of Part 1 of the Third Schedule to the Constitution of the Federal Republic of Nigeria (CFRN), 1999, the Respondent can commence the process for removal of a judicial officer without receiving a recommendation for removal from the Federal Judicial Service Commission (FJSC) (Ground 1).
2. Whether the lower Court was right in law when it held that the Appellant had waived his right to complain about the lack of evidence from the FJSC with regards to his shortlisting for appointment having participated in the proceedings of the investigating committee of the Respondent despite accepting that the FJSC had the exclusive authority to determine whether or not the Appellant had been properly shortlisted. (Ground 2).
3. Whether the lower Court’s finding that the submission of one (1) judgment conducted personally by the appellant as a legal practitioner rendered the appellant unable to perform the functions of his office as a judicial officer and on that basis puts such officer within the purview of Section 292(1)(b) of CFRN, 1999 was right in law (Ground 3).
4. Whether the lower Court was right in law when it held that the respondent could reverse itself and recommend the appellant for removal on the ground that he had only personally conducted one (1) of the six cases he had submitted for appointment after finding that the requirement to submit six (6) cases was a discretionary and not a mandatory requirement forming part of other requirements that the FJSC considered for shortlisting the appellant. (Ground 4).
5. Whether the lower Court was right in failing to decide on the propriety of the respondent being the ‘judge’ in respect of the petition indicting both the FJSC and the respondent. (Ground 5).
In the Respondent’s Brief of Argument, learned Counsel Steve O. Emelieze Esq, distilled the following six issues for determination:
1. Whether the Appellant’s appeal is competent, when he had filed his Brief of Argument outside the statutory requirement of 45 days, without leave of Court.
2. Whether the Respondent (National Judicial Council) can commence process of retiring a judicial officer without recommendation from the Federal Judicial Service Commission in accordance with Paragraphs 13 & 21 of Part 1 of the Third Schedule to the Constitution.
3. If the question is answered in affirmative, can the Respondent (National Judicial Council) continue with the process of retiring a judicial officer without complaint from the Federal Judicial Service Commission (FJSC) that the 6 cases relied upon by the Appellant did not meet the requirement of the FJSC.
4. Can the Respondent (National Judicial Council) pursuant to Section 292 of the Constitution of the Federal Republic of Nigeria (CFRN) 1999 recommend the removal of the Appellant for misconduct over infraction committed as a legal practitioner and not a Judge?
5. Whether the Respondent (National Judicial Council) was right to have taken cognizance of the Appellant’s infraction without any other evidence except the 6 cases he had submitted for consideration.
6. Can the Respondent (National Judicial Council) invariably investigate itself, in that it had made a mistake in recommending the appointment of the Appellant without receiving fresh evidence other than the one it acted upon during the Appellant’s recommendation for appointment as a Federal High Court Judge?
I observe that the Respondent has argued its preliminary objection in the first issue of the Respondent’s Brief of Argument at pages 4— 7 thereof. This was responded to by the Appellant in his Reply Brief at pages 1—4 thereof.
In line with the trite legal position restated in SOGUNRO & ORS v YEKU & ORS (2017) LPELR–41905 (SC), per Peter-Odili, JSC at page 35, paras. C-E; andEKEMEZIE v IFEANACHO & ORS. (2019) LPELR-46518(SC), per Nweze, JSC at pages 12—13, paras. C-A, I shall proceed to first consider and determine the preliminary objection before delving into the substance of the appeal, since by its nature, the success of the objection may peremptorily determine the appeal.
THE RESPONDENT’S PRELIMINARY OBJECTION:
The Respondent had by a Notice of Preliminary Objection dated 31st October, 2018 and filed on 2nd November, 2018 challenged the competence of this appeal on the following grounds:
1. That the Appellant transmitted Record of Appeal entered on the 26th of June, 2018.
2. That the Appellant filed the Appellant’s Brief on the 3rd October, 2018.
3. That the Appellant has by the rules of this Court 45 days to file Appellant’s Brief.
4. That the Appellant’s Brief was filed in excess of 45 days provided by the rules of this Court.
5. That there is no leave nor application to file Appellant’s Brief out of time.
The first issue raised in the Brief of Argument of the Respondent which relates to the preliminary objection which was argued in paragraphs 4.0 – 4-08, is:
Whether the Appellant’s appeal is competent when he had filed his Brief of Argument outside the statutory requirement of 45 days without leave of Court.
It was the submitted on behalf of the Respondent that the instant appeal was filed in flagrant violation of the provisions of Order 19 Rule 2 of the Rules of this Court which mandates the Appellant to within forty five days of the receipt of the Record of Appeal from the Court below, file in Court a written brief of argument. The Respondent’s Counsel had argued that the use of the word “shall” imposes a mandatory obligation of compliance on the Appellant. He cited RUFAI-ADEYEMI v AKANDE(2016) All FWLR (Pt. 858) 652 at 713, paras. A-B.
Learned Counsel pointed out that from the record in the Registry of this Court, the Record of Appeal was transmitted from the Court below on the 26th of June, 2018 while the Appellant’s Brief of Argument was filed on the 3rd of October, 2018 in breach of Order 19 Rule 2 of the Court of Appeal Rules, 2016. He argued that the Appellant’s Brief ought to have been filed on or before 17th of August, 2018 and the failure of the Appellant to seek leave of Court to file his Brief in excess of the time stipulated in the Rules makes the instant appeal incompetent and liable to be dismissed for want of diligent prosecution. He referred the Court to Order 19 Rule 10(2) of the Court of Appeal Rules, 2016 and the case of BRITTANIA-U NIGERIA LIMITED V SEPLAT PETROLEUM DEVELOPMENT COMPANY LIMITED (2016) All FWLR (Pt. 826) 439, per Ngwuta, JSC at paras. G—H. He urged the Court to uphold the objection and dismiss the appeal as being incompetent.
In his counter submission, learned Senior Counsel for the Appellant conceded that the Record of Appeal was transmitted to this Court on 26th June, 2018 and the Appellant’s Brief of Argument was filed on 3rd October, 2018. He however submitted that if the vacation period of the Court of Appeal for the legal year of 2017—2018 is not excluded, the Appellant’s Brief was filed ninety-nine (99) days after the Record of Appeal was transmitted to the Court of Appeal. He urged the Court to take judicial notice of the fact that the vacation period of the Court of Appeal traditionally commences from the 3rd Monday in July till the 2nd Monday of September, and that the annual vacation for the year 2017/2018 commenced on 16th July, 2018 and ended on 10th September, 2018. Counsel submitted that when the vacation period is excluded, the Appellant had 20 days before the commencement of the vacation and 23 days thereafter. He argued that the Appellant’s Brief of Argument was therefore filed on the 43rd day after the Record of Appeal was transmitted.
Citing the Practice Direction No. 1 of 1988 made by the then President of the Court of Appeal, Honourable Justice Umaru Abdullahi, PCA, as well as the case of UGO v UMUNNA (2018) 2 NWLR (Pt. 1602) 102, per Kekere Ekun, JSC, Counsel urged the Court to hold that the Appellant’s Brief of Argument was filed within time and dismiss the Respondent’s preliminary objection.
Learned Senior Counsel also argued that though not conceded, even if the Appellant’s Brief of Argument was filed out of time, the Appellant was compelled by the Court of Appeal Registry to pay penalty for the period for which the brief was out of time. He urged the Court to hold that having paid the penalty, the Appellant’s Brief, though out of time, has been regularized by the payment of the default penalty fees.
Also relying on the cases of FBN PLC v A-G FEDERATION (2018) 7 NWLR (Pt. 1617) 121 at 146; LUNA v COP RIVERS STATE & ORS (2018) 11 NWLR (Pt. 1630) 269 at 283; and ODUNZE v NWOSU (2007) 13 NWLR (Pt. 1050) 1, learned Senior Counsel urged the Court to disregard the first issue formulated in the Respondent’s Brief of Argument which was on the basis of the preliminary objection. He argued that a preliminary objection cannot be made an issue for determination.
I have carefully considered the submissions of the parties on the competence or otherwise of this appeal. The sole basis of the objection is that the Appellant’s Brief of Argument was filed out of the 45 days stipulated by Order 19 Rule 2 of the Court of Appeal Rules, 2016 and extension of time to file same was not sought from the Court by the Appellant. It was argued that by Order 19 Rule 10(2), the appeal should be dismissed by the Court for want of diligent prosecution.
From the parties’ submissions, there is no controversy over the fact that the Appellant’s Brief of Argument was filed outside the 45 days stipulated by Order 19 Rule 2 of the Rules of this Court, 2016 which mandates that “the Appellant shall within forty-five days of the receipt of the record of appeal from the Court below file in Court a written brief, being succinct statement of his argument in the appeal.” Indeed, in paragraph 1.2 of the Appellant’s Reply Brief of Argument dated 16th November, 2018 and filed on 19th November, 2019, the Appellant has conceded that the Record of Appeal was transmitted to this Honourable Court on 26th June, 2018 while the Appellant’s Brief of Argument was filed on 3rd October, 2018.
The contention put forward by the Appellant however, is that there was an intervening annual Court vacation for the year 2017/2018 which by the Practice Direction No. 1 of 1988 made by the then President of the Court of Appeal, Hon. Justice Umaru Abdullahi, PCA, ought to be discounted, thus making the period within which the Appellant had filed his Brief of Argument 43 days, if the vacation period is excluded.
The said Practice Direction No. 1 of 1988 relied upon by the Appellant provides that:
For the purpose of giving effect to the provisions of the Court of Appeal Rules in respect of any period within which any application for leave to appeal or for filing appellant’s or respondent’s brief or reply brief, the period declared for the vacation of the Court shall not be taken into account for the computation of such period allowed by the Rules of Court.
By Order 21 Rule 7 of the Court of Appeal Rules, 2016, “the President may at any time, by notice, declare a practice of the Court as practice direction, and whenever the declaration is made, such practice direction shall be regarded as part of these Rules.” In UGO v UMMUNA(2018) 2 NWLR (Pt. 1602) 102, which was cited by the Appellant, the Supreme Court, per Kekere-Ekun, JSC considered the status of the said Practice Direction No. 1 of 1988 which is relied upon by the Appellant. The Apex Court held as follows:
“It is also not in dispute that Practice Direction No. 1 of 1988 was issued pursuant to the Court of Appeal Rules 1981. The Practice Direction No. 10 of 2002 made pursuant toSection 248 of the 1999 Constitutionspecifically revoked Practice Direction No. 1 of 1997. The 1988 Practice Direction, though still in force by virtue of Section 4(c) of the Interpretation Act, was not repealed. By virtue of Section 315(4)(b) of the 1999 Constitution, it is an existing law. It cannot be repealed by inference.”
See also on this: OMO-OGUNKOYA v OMO-OGUNKOYA & ANOR (1989) LPELR-20115(CA), per Akpata, JCA (as he then was) at pages 1—8, paras. F—C; and BAMISILE v ADOLLO & ORS (1989) LPELR-20112(CA), per Akpata, JCA (as he then was) at pages 1—7, paras. A—C.
As rightly posited by the Appellant, the record of this Court shows that the Record of Appeal was transmitted to the Registry of this Court on the 26th of June, 2018, while the Appellant’s Brief of Argument was filed on the 3rd of October, 2018. This Court’s annual vacation for the legal year 2017/2018 commenced on 16th July, 2018 and ended on the 10th of September, 2018.
It is therefore, evident that the vacation period of the Court having been discounted by virtue of the Practice Direction No. 1 of 1988, the Appellant’s Brief of Argument was filed within 43 days of the 45 days period stipulated by Order 19 Rule 2 of the Court of Appeal Rules, 2016.
Consequent upon the above, I hereby hold that this appeal is competent and accordingly dismiss the Respondent’s Preliminary Objection for lack of merit.
APPELLANT’S SUBSTANTIVE APPEAL:
On the substantive appeal, I observe that, as rightly posited by the learned Counsel for the Appellant, issue 2 and 3 raised by the Respondent are essentially the same with the Appellant’s issue 1, while issues 4, 5 and 6 of the Respondent though not flowing from the other four issues raised by the Appellant, derived from the arguments and submissions made in the Appellant’s Brief of Argument, and the Appellant has joined issues with the Respondent over them in his Reply Brief. I shall therefore adopt the five issues as raised by the Appellant in deciding this appeal.
ISSUE ONE: Whether the lower Court was right in law when it held that on an interpretation of Paragraphs 13 and 21 of Part 1 of the Third Schedule to the Constitution of the Federal Republic of Nigeria (CFRN), 1999, the Respondent can commence the process for removal of a judicial officer without receiving a recommendation for removal from the Federal Judicial Service Commission (FJSC).
On this issue which is derived from ground 1 of this appeal, learned Senior Counsel for the Appellant, O. A. R. Ogunde, SAN had submitted that the lower Court erred in law in its finding at pages 711—713 of the Record of Appeal that the constitutional process of removal of the Appellant as a Judge of the Federal High Court can be commenced in the absence of a recommendation for removal by the Federal Judicial Service Commission (FJSC). He contended that the words “shall have power” as used in Paragraph 13 of Part 1 to the Third Schedule of the Constitution of the Federal Republic of Nigeria (CRFN) 1999 applies to the entire provisions of Paragraph 13 which sets out the powers of the FJSC. He argued that the phrase “shall have power” as used in the paragraph connotes that the power of the FJSC is both for the purpose of nominating persons for appointment to and recommending persons for removal from the office of a Judge of the Federal High Court.
Learned Senior Counsel contended that it is a cardinal principle of constitutional interpretation that the provisions of the Constitution must be read together and no provision should be read in isolation of the other especially if they are related provisions. He relied on the cases of LAFIA L.G. v GOV. OF NASARAWA STATE & ORS. (2012) 17 NWLR (Pt. 1328) 94; AWOLOWO v SARKI & ANOR (1965-1966) VOL. 4 NSCC 209; and BRONIK MOTORS LTD & ANOR v WEMA BANK LTD (1983) VOL. 14 NSCC 227. He added that where the language of the Constitution is clear and unambiguous, it must be given its plain meaning. He cited A.G. BENDEL STATE v A.G. FEDERATION (1982) NSCC 314; OJOKOLOBO v ALAMU & ORS. (1987) 3 NWLR (Pt. 61) 37; and FALEKE v INEC (2016) 18 NWLR (Pt. 1543) 61.
Learned Senior Counsel further submitted that like Paragraph 13, Paragraph 21 of Part 1 of the Third Schedule to the CFRN, 1999, which relates to the powers of the Respondent, also opens with the words “shall have power to”. He argued that since both phrases are common to Paragraphs 13 and 21, all the powers which the Respondent can exercise by reason of Paragraph 21 are also available to the FJSC by reason of Paragraph 13. He submitted that it is plain from Paragraph 13b that the FJSC has power to recommend to the Respondent the removal from office of a Judge of the Federal High Court. He argued that the trial Judge violated the cannon of interpretation when he held at page 712 of the Record that the recommendation by FJSC is just one of many ways by which the NJC (Respondent) can initiate disciplinary proceedings against a judicial officer leading to a recommendation by the Respondent to the President for removal.
It was also the submission of the learned Senior Counsel that the lower Court was wrong when it equated the disciplinary powers of the Respondent with the Respondent’s power to recommend a Federal Judge to the President for removal. He contended that Paragraph 21b vests two types of powers to the Respondent; the power to recommend to the President for the removal of a Federal Judge and the power to discipline such officers. He argued that the Constitution has clearly made a distinction between removal and discipline which the lower Court failed to make and that it is the trial Court’s failure to make this distinction that has occasioned its erroneous finding.
Learned Senior Counsel submitted that the 1999 Constitution has introduced a two tier system of appointment and removal of judicial officers, and that paragraph 21b which empowers the Respondent to recommend to the President the removal of a Judge of the Federal High Court including the Appellant has been made subject to Paragraph 13b, and the Respondent cannot unilaterally commence the process of removal from office of the Appellant without receiving a recommendation from the FJSC for such removal. He submitted that in the instant case, the two petitions that resulted in the recommendation for removal of the Appellant from office were initiated in the Respondent and the FJSC played no part in the process.
Learned Senior Counsel for the Appellant contended that where there is a clear breach of a constitutional provision with respect to a mandatory step that must be taken, the entire process is null and void. He relied on IFEZUE v MBADUGHA (1984) NSCC 314. He argued that the fact that the Appellant participated in the proceedings that resulted in his removal cannot remedy the situation. He urged the Court to so hold and resolve this issue in favour of the Appellant.
Arguing per contra, learned Counsel for the Respondent, Steve O. Emelieze Esq, cited Paragraphs 13 and 21 of Part 1 of the Third Schedule to the CFRN, 1999 (as amended) and submitted that even as it is clear that the FJSC can receive petitions and rightly act on same and recommend to the Respondent the removal of a Federal Judicial Officer, where they are not served with the petition as in the instant case, where the petition was made to the Respondent, the FJSC is not expected to act on a petition which is not before it. Counsel submitted that the Respondent (the NJC) has the power to investigate misconduct allegation in a petition before it.
Learned Counsel contended that the recommendation for removal of a Federal High Court Judge is well within the ambit of the constitutional duty of the National Judicial Council (the Respondent). He referred toSection 292(1)(b) of the CFRN, 1999 (as amended) and the argument of the Respondent in the Court below which is contained in pages 609—613 of the Record of Appeal.
Citing the said Section 292(1)(b) of CFRN, 1999 (as amended), Counsel submitted that whilst it is conceded that the Respondent cannot recommend any person for appointment as a Federal High Court Judge without a recommendation from the FJSC, this is not necessary in situation of recommendation for removal. He pointed out that the power of the NJC encapsulated in Section 292(1)(b) of CFRN, 1999 leaves no room for doubt. He contended that by the combined reading of the provisions of Sections 153(1) and 292(1) of CFRN, 1999 (as amended), it is indisputable that the right to recommend the removal of a serving Judicial Officer to the President or Governor, as the case may be, lies with the NJC.
Learned Counsel submitted that the infraction of the Appellant which led to the recommendation for his removal from office relates to requirement for his appointment as a Judge, which is that he should present 6 cases personally handled by him in five years. He pointed out that in response to the petitions against him, the Appellant had admitted that he did not personally handle the cases presented by him and tried to argue that he need not personally handle the cases since he had superintended over the preparation of the cases. Counsel argued that this falls short of the requirement for consideration as a Judge as stipulated in the National Judicial Council Guidelines and Procedural Rules for Appointment of Judicial Officers of Superior Courts of Record in Nigeria made pursuant to the powers conferred by the Constitution, 1999. He referred to Exhibit OT1 contained in pages 25—29 of the Record of Appeal.
Learned Counsel submitted that the submission by the Appellant that the Respondent was wrong to act suo motu in the removal of the Appellant without the involvement of the FJSC was erroneous. He relied on the cases of NGANJIWA v FRN (2018) 4 NWLR (Pt. 1609) 301; ELELU-HABEEB & ANOR v A-G FEDERATION (2012) 13 NWLR (Pt. 1318) 423; OPENE v NJC (2011) LPELR-4795; and ABDULLAHI v GOVERNOR, KANO STATE (2014) 16 NWLR (Pt. 1433) 213, and urged the Court to hold that the Respondent is empowered receive petition against the Appellant and recommend to the President the removal of the Appellant.
In his Reply Brief, learned Counsel for the Appellant urged the Court to disregard the submissions of the Respondent in paragraphs 5.02 and 5.03 of the Respondent’s Brief, that the power of the FJSC to recommend the removal of a Judge to the Respondent is only exercisable if a petition is sent to the FJSC. He submitted that the Respondent’s submission went outside the judgment of the lower Court which held that the recommendation of the FJSC constitutes only one of the ways by which the Respondent’s power to recommend a Judge of the Federal High Court for removal can be invoked.
RESOLUTION OF ISSUE 1:
I have considered the submissions of the parties. In my respectful view, the resolution of this issue borders on the interpretation of the constitutional powers of the FJSC and the NJC (Respondent) in relation to the appointment and removal of the Appellant, as a Judge of the Federal High Court as provided in Paragraphs 13(a) and (b) and 21(a) and (b) of Part 1 of the Third Schedule to the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
For ease of reference and clarity, I reproduce hereunder, and in particular, Paragraphs 13(a) and (b) and Paragraph 21(a)(i) and (b) of Part 1 of the Third Schedule to the CFRN, 1999 which provide for the respective powers of the FJSC and the NJC (the Respondent) in relation to the appointment and removal of judicial officers:
For the FJSC, Paragraph 13(a) and (b) provides as follows:
13. The Commission shall have power to —
(a) advise the National Judicial Council in nominating persons for appointment, as respects appointments to the office of —
(i) the Chief Justice of Nigeria,
(ii) a Justice of the Supreme Court,
(iii) the President of the Court of Appeal,
(iv) a Justice of the Court of Appeal,
(v) the Chief Judge of the Federal High Court,
(vi) a Judge of the Federal High Court,
(vii) the President of the National Industrial Court,
(viii) a Judge of the National Industrial Court, and
(ix) the Chairman and members of the Code of Conduct Tribunal.
(b) recommend to the National Judicial Council the removal from office of the judicial officers specified in sub-paragraph (a) of this paragraph…
For the NJC, Paragraph 21(a)(i) and (b) provides:
21. The National Judicial Council shall have power to-
(a) recommend to the President from the list of persons submitted to it by-
(i) the Federal Judicial Service Committee, persons for appointment to the offices of the Chief Justice of Nigeria, the Justices of the Supreme Court, the President and Justices of the Court of Appeal, the Chief Judge and Judges of the Federal High Court, the President and Judges of the National Industrial Court, and
(b) recommend to the President the removal from office of the judicial officers specified in sub-paragraph (a) of this paragraph, and to exercise disciplinary control over such officers.
(underlining above made for emphasis)
The substance of the grouse of the Appellant in the interpretation given by the lower Court to the provisions of the above Paragraphs is as reproduced in paragraph 4.2 of the Appellant’s Brief of Argument, which interpretation of the lower Court is contained in pages 711—713 of the Record of Appeal. In those pages of the Record, the lower Court had held as follows:
“A careful analysis of the above provisions of the Constitution in my view, shows that in the appointment of a judicial officer at the federal level, the role of the FJSC is indispensable. That is to say, that the defendant cannot recommend anyone to the President for appointment without such a person being nominated first by the FJSC.
However, when it comes to the removal of a judicial officer, although from the tenor of the provisions of paragraph 13(b) of Part 1 of the Third Schedule set out above, a role for the FJSC in the removal of a judicial officer is not foreclosed, it is not true to argue that a recommendation from FJSC is a condition precedent for the defendant to take step if circumstances exist warranting the removal of a person as a judicial officer from office. The use of the phrase ‘shall have power’ in Part 13 (sic paragraph) when read together will simply read: “The Commission shall have power to recommend to the National Judicial Council, the removal from office of the judicial officers specified in sub-paragraph (a) of this paragraph.” The phrase ‘have power’ means no more than what it says. It means that when circumstances warrant and things come to the attention of the FJSC which makes it believe that a serving judicial officer is no longer deserving of the occupation of the exalted office of a Judge, the FJSC can make a recommendation to the NJC stating why the defendant should take steps to remove the said person from office. But it does not mean that save and until the FJSC has prompted it, that the defendant cannot exercise its powers to recommend to the President the removal of a judicial officer from office. If the makers of the Constitution had intended that a recommendation by the FJSC should be a condition precedent to the defendant exercising its powers under paragraph 21(b) of Part 1 to the Third Schedule of the Constitution, they would have clearly done so by subjecting, qualifying or limiting the provisions of paragraph 21(b) of the Third Schedule to those of paragraph 13(b) of the Third Schedule. For the avoidance of doubt, that the FJSC has the power to recommend to the NJC the removal of judicial officers does not in any way limit the ways and the sources by which the defendant can act. Recommendation by the FJSC is just one of the many ways by which the NJC can initiate disciplinary proceedings against a judicial officer leading to a recommendation by the defendant to the President for removal.
If the position were to be taken that the defendant can act only when the FJSC recommends, apart from not being supported by the language of the Constitution, it will unduly restrict the defendant in its function of maintaining and policing the sanity and the sanctity of the judicial hemisphere… As is also obvious from the tenor of the provisions set out above, the body explicitly vested with disciplinary control over judicial officers is the defendant, not the FJSC. It follows therefore that in the exercise of its disciplinary powers over serving judicial officers, the defendant can base its decision to recommend the removal of a Judge not only on a recommendation from the FJSC but on a wider range of sources including direct petitions to the defendant by other private and public bodies as was done in the present case through Exhibits OT3 and OT6.
Learned Senior Counsel for the Appellant had essentially contended that in its holding quoted above, the lower Court erred in law, because the Court ought not to have restricted its interpretation of the phrase ‘shall have power’ to the process of recommending a Judge for removal only; and having so found that in the appointment of judicial officers at federal level, the recommendation of the FJSC is indispensable, the lower Court should have held that the recommendation of the FJSC is also indispensable in the removal of such judicial officers.
In the case of EJUETAMI v OLAIYA & ORS (2001) LPELR-1072(SC), the Supreme Court, per Ejiwunmi, JSC restated the guiding principles in the interpretation of statutes when the Court held, at pages 23-24, paras. F—C, as follows:
“I think it is desirable to remember some of the established principles governing the interpretation of the provisions of a statute. They are: (1) that it is the intention of the legislature that is being sought i.e. the intention of the “writer” of the document. (2) that that intention is to be desired from the words of the Act alone and not from other sources. (3) that the words used are to be given their “ordinary and natural sense” i.e., the legislature is to be presumed not to have put a special meaning on words. (4) that the Court is not concerned with the result of its interpretation: it is not the Court’s province to pronounce on the wisdom or otherwise of the Act but only to determine its meaning.”
A look at Paragraphs 13 and 21 of Part 1 of the Third Schedule to the CFRN, 1999 which I have reproduced above shows that the wordings used in those paragraphs are plain and unambiguous. The settled law is that where the words are clear and unambiguous they must be given their natural and grammatical meaning. This settled principle was reiterated by His Lordship Muhammad, JSC in SARAKI v FRN (2016) LPELR-40013(SC) at pages 90-91, paras. F—B, when he held that:
“In interpreting provisions of the Constitution or indeed any statute, the settled principle is that where the words used are devoid of ambiguity, same must be given natural meaning. In other words, where the words used are clear and unambiguous, they must be given their plain and ordinary meaning.”
See also: AMADI v INEC (2013) 4 NWLR (Pt. 1345) 595 at page 633, paras. D – F and 634-635, paras. H-C; and DANGANA v USMAN (2013) 6 NWLR (Pt. 1349) 50 at page 93, paras. B.
A careful examination of the wordings used in Paragraphs 13 and 21 which I have reproduced above, shows that in both Paragraph 13 and Paragraph 21, the FJSC and the NJC were given powers relating to the appointment and removal of judicial officers, respectively. Their powers in relation to appointment are each expressly contained in sub-paragraph (a) of those Paragraphs, while those relating to removal are contained in sub-paragraph (b) of those Paragraphs.
The resolution of whether the lower Court was right in its interpretation of the above paragraphs, to the effect that the Respondent can commence the process of removal of a judicial officer without a recommendation for removal from FJSC, is, in my respectful view, easily ascertainable from the express provisions of the two Paragraphs. I start by observing that both Paragraphs 13 and 21 started with the opening words of “The Commission shall have power to – …” in Paragraph 13, and “The National Judicial Council Shall have power to… in Paragraph 21, before itemizing in sub-paragraphs (a) and (b) of those Paragraphs what the FJSC and NJC shall have power to do, respectively. Subparagraph (a) of each of those Paragraphs relate to appointment of judicial officers, while subparagraphs (b) of those Paragraphs relate to removal of such judicial officers. From the wordings of those Paragraphs, it is my considered view that what links the subparagraphs (a) and(b)are the opening words which I have quoted earlier. In other words, the powers of the FJSC and NJC in relation to appointment and removal of those two bodies are distinctly enumerated in those subparagraphs.
It is however clearly discernible from the express words used that, whilst in relation to the appointment of judicial officers at the federal level, it is expressly provided in subparagraph (a)(i) of Paragraph 21 of Part 1 of the Third Schedule to the CFRN, 1999, that the NJC shall have power to recommend to the President from among a list of persons submitted to it by the FJSC, persons for appointment to the judicial offices stated in that subparagraph, in subparagraph (b) of that Paragraph, which relates to removal of judicial officers, had only stated that the NJC shall have power to “recommend to the President the removal from office of the judicial officers specified in sub-paragraph (a) of this paragraph, and to exercise disciplinary control over such officers.” (underline mine for emphasis).
Thus, while the phrase “shall have power to” which is contained in the opening of Paragraphs 13 and 21 relate to the powers of the FJSC and the NJC in relation to appointment and removal of judicial officer as contained in subparagraph (a) and (b) of those Paragraphs, the power of the NJC to recommend the appointment of judicial officers as contained in subparagraph (a)(i) of Paragraph 21 has been qualified by the use of the words “from the list of persons submitted to it by the Federal Judicial Service Commission…”. This qualification or limitation does not exist in subparagraph (b) of the said Paragraph 21 which relates to the powers of the NJC to recommend the removal of such judicial officers.
In other words, unlike in subparagraph (a)(i) of Paragraph 21 of the Third Schedule to the CFRN, 1999 which has expressly limited the NJC’s powers to recommend to the President for appointment as judicial officer only persons recommended to it by FJSC, the NJC’s powers to recommend to the President the removal of judicial officers under subparagraph (b) of Paragraph 21 of the said Third Schedule to the CFRN, 1999, contains no such express limitation.
It is trite principle law that in interpreting the provisions of the Constitution or of a statute, the Court must confine itself only to the words expressly used and avoid adding to or subtracting from its provisions. In SKYE BANK v IWU (2017) LPELR-42595(SC), the Supreme Court had restated this legal position when His Lordship Ogunbiyi, JSC held at page 118, paras. B— C, as follows:
“The law is also well established that interpretation of statutes should always be given its ordinary meaning. Where however it is clear, unambiguous and to the point, an+—\\y addition or subtraction will be sequel to introducing an illegal back door amendment.”
See also: AGI v PDP & ORS (2016) LPELR-42578(SC), per Ogunbiyi, JSC at pages 52 – 53, paras. E- A.
From the express provisions of Paragraphs 13 and 21 of Part 1 of the Third Schedule to CFRN, 1999 which I have analyzed above, it is clear that whilst the FJSC is empowered in Paragraph 13 to recommend to the Respondent persons for appointment and removal as judicial officers, it is only the Respondent’s power to recommend persons to the President for appointment as judicial officers that is limited to only those shortlisted and recommended to it by the FJSC. The Respondent’s power to recommend serving judicial officers for removal is clearly not limited to those recommended by the FJSC.
Given the plain and unambiguous words used in Paragraph 21(a)(i) and (b) of Part 1 of the Third Schedule to the CFRN, 1999 as shown above, I find, with respect, that the argument advanced on this issue by the learned Senior Counsel for the Appellant is misconceived. In keeping with the trite principle of literal interpretation to the clear provisions of Paragraphs 13 and 21 of Part 1 of the Third Schedule to the CFRN, 1999, I find no error of law in the interpretation given by the learned trial Judge to those paragraphs.
It is also pertinent for me to add that one of the cardinal principles of interpretation of the Constitution and statutes is to give effect to the necessary intendment of the framers or the law makers, as the case may be. In GANA v SDP (2019) LPELR-47153(SC), the Apex Court, per Sanusi, JSC, stressed this position when it held at page 43, paras. B— E, that:
“It must be stressed here and it is even trite, that in the process of interpretation of statute, a Court must not give an interpretation which would defeat the intention and purpose of the law makers and should rather adopt a holistic approach and interpret the provisions dealing with a subject matter together so as to give true intention of the law makers.”
See also: BUHARI v INEC (2008) LPELR-814(SC), per Musdapher, JSC (as he then was) at page 208, paras. A-C; and ATTORNEY GENERAL OF THE FEDERATION v ATTORNEY GENERAL OF LAGOS STATE (2013) 16 NWLR (Pt. 1380) 249.
Given the intendment as can be discerned from the wordings in paragraph 21(b) of Part 1 of the Third Schedule to the CFRN, 1999, in which the framers of the Constitution have, apart from empowering the Respondent to recommend to the President the removal of judicial officers, also conferred upon the Respondent the powers “to exercise disciplinary control over such officers”, I also find the interpretation of the lower Court right when it held that “Recommendation by the FJSC is just one of the many ways by which the NJC can initiate disciplinary proceedings against a judicial officer leading to a recommendation by the Defendant to the President for removal.” There is no gainsaying the fact that removal from office is one of the outcomes which may result from disciplinary measures.
It is in the light of all the foregoing that I hereby resolve the first issue against the Appellant and hold that the lower Court was right when it held that on an interpretation of Paragraphs 13 and 21 of Part 1 of the Third Schedule to the CFRN, 1999, the Respondent can commence the process for removal of a judicial officer without receiving a recommendation for removal from the FJSC.
ISSUE 2: Whether the lower Court was right in law when it held that the Appellant had waived his right to complain about the lack of evidence from the FJSC with regards to his shortlisting for appointment having participated in the proceedings of the investigating committee of the Respondent despite accepting that the FJSC had the exclusive authority to determine whether or not the Appellant had been properly shortlisted. (Ground 2).
On issue 2, learned Senior Counsel for the Appellant referred to the finding of the lower Court at page 714 of the Record of Appeal, that the Appellant had, by participating in the proceedings of the investigating committee set up by the Respondent, waived his right to complain about the lack of evidence by the FJSC with regard to the process of shortlisting. He submitted that the finding is at variance with the case presented for determination. He pointed out that the Appellant’s case was that it was the FJSC and not the Respondent that had the responsibility of determining the suitability of the six (6) cases presented by the Appellant for appointment, and as such it was only the FJSC that could give any contrary evidence as to the suitability of the six (6) cases presented by the Appellant. He referred to pages 9—13 and 586—588 of the Record of Appeal.
He contended that by Paragraph 13(a) of Part 1 to the Third Schedule of CFRN 1999, the FJSC, to whom the Appellant had submitted the six (6) cases he relied upon, has the sole constitutional power to shortlist candidates for appointment as a Judge of the Federal High Court. He argued that having failed to receive any evidence from the FJSC either oral or documentary, there was no basis for the Respondent to conclude that the Appellant did not meet the requirements of the six (6) cases submitted. He added that the Appellant’s cases was simply one embedded in the age-old evidential principle of ‘he who alleges must prove’. He relied on Section 136(1) of the Evidence Act, 2011 and the cases of ABISI v EKWEALOR (1993) NWLR (Pt. 302) 643; IMANA v ROBINSON (1979) 3 -4 S.C. 1; and GEORGE v U.B.A (1972) 8-9 S.C. 264. He submitted that the burden of proof was on the petitioners to produce evidence that would sustain their petition that the Appellant did not meet the requirements for the shortlisting.
Learned Senior Counsel further submitted that the principle of waiver connoted an express or implied abandonment of a known legal right. Citing CARRIBEAN TRADING & FIDELITY CORP v N.N.P.C. (1992) 7 NWLR (Pt. 252) 159; TIKA TORE v ABINA (1973) Vol. 8 NSCC 642; and AUTO IMPORT EXPORT v ADEBAYO (2005) 19 NWLR (Pt. 959) 44 SC, he argued that the Appellant’s complaint is that as an adjudicator of the petition against the Appellant, the Respondent acted without evidence since the only constitutional authority that can help it clarify whether or not the Appellant had met the conditions did not testify. He added that in this respect, a waiver did not arise and submitted that by appearing before an adjudicator, the right of the party appearing to insist on proper adjudication and compliance with procedure and rules of natural justice can never be waived. He relied onARIORI v ELEMO (1983) NSCC 1; and ADEGOKE MOTORS v ADESANYA (1989) 3 NWLR (Pt. 109) 2501 and urged the Court to hold that the lower Court was wrong when it held that the Appellant’s appearance before the investigating committee deprived him of the right to insist that the committee must act on appropriate evidence in the determination of the petition filed against the Appellant.
In his counter submissions contained on pages 17—19 of the Respondent’s Brief of Argument, learned Counsel for the Respondent contended that the trial Court was right to have held that the Appellant had waived his right to complain having submitted himself to the jurisdiction of the NJC Panel by making written submissions to them in answer to the allegations against him. He submitted that the Appellant’s argument that this amounts to an error in law is misconceived.
Learned Counsel further contended that the settled law is that fair hearing must not involve oral representation provided the party was given the opportunity to state his case even if it is in writing. He cited the case of DUKE v GOVERNMENT OF CROSS RIVER STATE(2013) 8 NWLR (Pt. 1353) 366 at 374–375, and submitted that since the Appellant submitted himself voluntarily to the Respondent, he cannot complain now because the resolution of the petition is not in his favour, especially when what the NJC used to establish the Appellant’s misconduct was the Appellant’s written submission. He urged the Court to so hold.
RESOLUTION OF ISSUE 2:
I have considered the submissions of the parties over this issue. The crux of this issue is whether the lower Court was right when it held that having responded to the NJC Panel’s invitation to answer to the petitions against him and submitted a written response to same, the Appellant had waived his right to complain as to the competence of the NJC to consider the petitions against him in the absence of the FJSC.
The concept and principle of waiver has been adequately espoused in several judicial decisions of the appellate Courts. In FASADE & ORS. v BABALOLA & ANOR (2003) LPELR-1243(SC), the Supreme Court, per His Lordship Uwaifo, JSC highlighted the concept and principle of waiver when he held at page 21, paras. B— F, as follows:
“…The concept of waiver must be one that presupposes that the person who is to enjoy a benefit or who has the choice of two benefits is fully aware of his right to the benefit or benefits, but he either neglects to exercise his right to the benefit, or where he has a choice of two, he decides to take one but not both. The exercise has to be a voluntary act. There is little doubt that, a man who is not under any legal disability, should be the best Judge of his own interest. If therefore, having full knowledge of the rights, interests, profits or benefits conferred upon or accruing to him by and under the law, but he intentionally decides to give up all these, or some of them, he cannot be heard to complain afterwards that he has not been permitted the exercise of his rights, or that he has suffered by his not having exercised his rights. He should be held to have waived those rights, to put it in another way, he is estopped from raising the issue.”
See also on this: THE ADMIN. & EXEC. OF ESTATE OF ABACHA v EKE-SPIFF & ORS. (2009) LPELR-3152(SC), per Ogbuagu, Jsc at page 61, paras. C-F; UGWUANYI v NICON INSURANCE PLC (2013) LPELR-20092(SC), Per Chukwumah-Eneh JSC at page 33 paras. A–E; AUTO IMPORT EXPORT v ADEBAYO & ORS (2005) LPELR-642(SC), per Ogbuagu, JSC at page 82, paras. D-F; ARIORI & ORS. v ELEMO & ORS. (1983) 1 SCNLR 1, per Eso, JSC at page 25; and ADEGOKE MOTORS LTD. v DR. ADESANYA & ANOR. (1989) 3 NWLR (Pt. 109) 250, per Karibi-Whyte JSC at page 292.
As reproduced in paragraph 4.15 of the Appellant’s Brief of Argument, the specific part of the decision of the lower Court against which the Appellant has a grouse under this issue, is contained at page 714 of the Record of Appeal. It is as follows:
It is instructive that upon being invited by the defendant to answer to the petitions written against him, the Plaintiff never raise any objection to the competence of the defendant to consider the petitions against him in the absence of the FJSC. The Plaintiff voluntarily took part in the proceedings of the defendant as shown in Exhibits OT7 and OT9. In my view, this operates as a waiver. Beyond this point being taken to have been waived, I believe that there can be no doubt that it is the function of the FJSC to vet and shortlist candidates for judicial appointment in the first instance, and pass them to the defendant. But where an appointment has been made, as in this case, and years down the line a petition is subsequently received by the defendant that the appointment process was breached by a candidate having passed on cases conducted by others as if he was personally involved in conducting them in Court, and this defect passed through the verification system without being detected, I hold that the Defendant is duty bound to consider the petition to determine if it has merit or not. The fact that FJSC had earlier considered and did not detect the defect cannot tie the supervisory hands of the defendant.
The critical question is whether the trial Judge’s exercise of substantive discretion in holding, as he did above, that the Appellant had waived his right, is perverse (not supported by the evidence laid before him), or whether it has occasioned injustice to the Appellant. In my respectful view, this issue is easy to resolve even on the evidence and exhibits relied upon by the Appellant before the trial Court. In paragraphs 19—25 of the Appellant’s affidavit in support of the Originating Summons in Suit No. ABJ/CS/1240/2017, which is contained in pages 11—12 of the Record of Appeal, the Appellant had deposed as follows:
19. However, in February, 2017 I received a letter dated 21st February, 2017 from the Chief Judge of the Federal Capital Territory, Hon. Jusitce l. N. Auta informing me that a petition had been written against me to the defendant, which petition had been forwarded to the Hon. Chief Justice of Nigeria. A copy of the said letter dated 21st February, 2017 and the petition dated 22nd December, 2016 are attached herewith and marked Exhibits OT3 and OT4.
20. Another petition dated 15th February, 2017 was also forwarded to the Hon. Chief Justice of Nigeria by the Presidential Advisory Committee on Corruption under the cover of a letter dated 22nd February, 2017. A copy of the said letter dated 22nd February, 2017 and the petition dated 15th February, 2017 are attached herewith and marked Exhibits OT5 and OT6.
21. In response to the letter dated 21st February, 2017, I wrote a letter dated March, 2017 wherein I responded to all the allegations contained in the said petitions. A copy of the said response dated 10th March, 2017 is attached herewith and marked Exhibit OT7.
22. Pursuant to the petitions, I was invited to appear before a three member investigating committee constituted by the defendant. The panel consisted of the Honourable Chief Judge of Borno State, Hon. Justice Kashim Zannah OFR, the Honourable Chief Judge of Delta State, Justice Marshall Umukoro, the Honourable Chief Judge of Oyo State, Hon. Justice M . L. Abimbola.
23. The first time I appeared before the committee was on 31st October, 2017 and on this day I could not proceed as I sought an adjournment to enable me appear with my counsel. Thus, the matter was adjourned to 21st and 22nd of November, 2017.
24. On 21st November, 2017 I appeared with my counsel and the entire proceedings before the investigating committee lasted approximately one hour. No oral evidence was called by either party and no representative of the Federal Judicial Service Commission appeared to give evidence before the investigating committee of the defendant.
25. The investigating panel relied only upon documentary evidence, particularly the six cases that I submitted to the Federal Judicial Service Commission for my appointment as a Judge. Copies of the working papers used by the investigative committee are attached herewith and marked Exhibits OT8 and OT9.
Even from the Appellant’s depositions and exhibits quoted above, it is clear that he did not only submit a written response to the Respondent in answer to the two petitions against him (Exhibit OT7), he physically appeared before the investigating committee of the Respondent and at his request, was even granted an adjournment to enable him appear with his counsel. There is no evidence on the record before the trial Court that the Appellant had at that time raised any objection as to the competence of the Respondent to entertain the petition without any evidence from the FJSC. In fact, there is no evidence on the record that the Appellant had questioned the propriety of appearing before the Respondent’s investigating committee or the proceedings of the committee.
By his own showing as contained in his depositions quoted above, the Appellant, accompanied by his counsel, voluntarily participated in the proceedings of the Respondent’s investigating committee, leading to the determination of the petitions against him. There is also no evidence before the trial Court that the Appellant raised any objection as to the competence of the Respondent or the propriety of the proceedings leading to the determination of the petitions against him.
By the concept and principle of waiver as enunciated in the several judicial authorities cited above, the Appellant had by his Exhibit OT7 contained on pages 48—55 of the Record of Appeal, as well as his appearance (along with his counsel) before the Respondent’s investigating committee and participating in its proceedings leading to the determination of the petitions against him, clearly waived his right to complain as to the competence of the Respondent to consider the petitions against him in the absence of the FJSC. I therefore, find that the decision of the lower Court that the Appellant had waived his right to complain was grounded upon the evidence laid before that Court and the decision was neither perverse nor occasioned any injustice to the Appellant.
It is for all the foregoing reasons that I also resolve this issue against the Appellant and hold that the lower Court was right when it held that the Appellant had waived his right to complain about the lack of evidence from the FJSC with regard to his shortlisting for appointment, having participated in the proceedings of the investigating committee of the Respondent.
ISSUE THREE: Whether the lower Court’s finding that the submission of one (1) judgment conducted personally by the appellant as a legal practitioner rendered the Appellant unable to perform the functions of his office as a judicial officer and on that basis puts such officer within the purview of Section 292(1)(b) of CFRN, 1999 was right in law (Ground 3).
On this issue, learned Senior Counsel for the Appellant had submitted that this issue concerns the finding of the lower Court on pages 720 —722 of the Record of Appeal, that although the Appellant’s submission of one judgment conducted personally by him rather than six does not constitute misconduct in the context of Section 292(1)(b) of CFRN, 1999 to warrant his recommendation for removal as a Judge, the said act of submission still rendered him unable to discharge the functions of his office within the context of Section 292(1)(b) of CFRN 1999. He submitted that the finding of the lower Court is at variance with the case put forward by both parties before the lower Court. He pointed out that the recommendation which is being challenged is based on misconduct in the context of Section 292(1)(b) of CFRN 1999.
Learned Senior Counsel contended that a consideration of the documents annexed to the affidavits of the Appellant particularly Exhibits OT11—OT16 shows that the ground for recommendation for removal of the Appellant by the Respondent is misconduct. He contended that it is settled law that it is the claimant/plaintiff that shapes his case and it is the manner in which the case is framed that same is to be determined. He relied on the cases of REPTICO S. A. GENEVA v AFRIBANK NIG. PLC (2013) 14 NWLR (Pt. 1373) 172; and NKUMA v ODILI (2006) 6 NWLR (Pt. 977) 587, and pointed out that the Appellant’s case as accepted by the Respondent was rejected by the lower Court when it found that the reason for the recommendation could not constitute misconduct. He argued that this should have ordinarily resulted in the lower Court setting aside the recommendation, instead the lower Court made a fresh case for the Respondent in finding that the recommendation was valid under Section 292(1)(b) of CFRN 1999, by stating that the Appellant was unable to discharge the functions of the office because he submitted one personally conducted case out of six.
It was also the contention of learned Senior Counsel for the Appellant that the lower Court is duty bound to consider and determine a case in the manner framed by the parties strictly, and in the event the Court raises an issue suo motu, it is duty bound to call on the parties to address it on that issue before making a finding thereon, failing which such finding must be set aside. He relied on the cases of COMMISSIONER FOR WORKS BENUE v DEVCON LTD. (1988) 3 NWLR (Pt. 83) 407; AERMACCHI v AIC LTD (1986) 2 NWLR (Pt. 23) 508; and ABDULKAREEM v LAGOS STATE GOVT. (2016) 15 NWLR (Pt. 1535) 177.
Counsel further submitted that ‘inability to discharge the functions of his office’ as used in Section 292(1)(b) of CFRN 1999 is already qualified and can only arise in two instances: infirmity of the mind or infirmity of the body. He argued that the provision, which is unambiguous, ought to be interpreted literally. He relied on the cases of KNIGHT FRANK & ROTLEY v ATTORNEY GENERAL OF KANO STATE (1998) 7 NWLR (Pt. 556) 1; and ABACHA v FEDERAL REPUBLIC OF NIGERIA (2014) 6 NWLR (Pt. 1402) 43, and pointed out that the ground for the recommendation for removal of the Appellant was not one of health deficiency. He added that the express inclusion of the instances of inability has by implication excluded any other basis that may be argued to be the basis for the inability to discharge the functions of his office. He referred the Court to the maxim: expressio unis est exclusio alterius, and the cases of SHINKAFI v YARI (2016) 7 NWLR (Pt. 1511) 340; MILITARY GOVERNOR, ONDO v ADEWUMI (1988) 3 NWLR (Pt. 82) 2802 and urged the Court to set aside the finding of the lower Court that the recommendation of the Respondent was valid on the basis that the Appellant was unable to discharge the functions of his office and upon setting same aside, find that there is no ground predicated upon Section 292(1)(b) of CFRN 1999 upon which the recommendation for removal of the Appellant may stand.
In his counter submission while arguing his issue III, learned Counsel for the Respondent submitted that the Appellant’s infraction is made obvious by virtue of Rule 3, Paragraph 6 of the Guidelines for Appointment of Judges of Superior Courts, the infraction of which is made apparent by page 26 of the Record of Appeal. Counsel pointed out that the said Guidelines has made it culpable in Rule 4(ii)(g), (h) and (i) for an applicant seeking to be a Judge to deliberately, improperly or wrongly complete the NJC Form A with intent to deceive or mislead, or submit false credentials or deceitful or fraudulent Curriculum Vitae, or where an applicant is shown to have limited exposure to practice at the Bar in conducting cases in the superior Courts. He argued that the Appellant was found wanting in that respect, as was evident in the six (6) cases he presented.
Learned Counsel contended that Paragraph 13 of Part 1 of the Third Schedule to the CFRN, 1999 stands on its own, just as Paragraph 21 of the Schedule operates independently. He submitted that in the case of appointment of judicial officers, the role of the FJSC which is advisory is mandatory, but when it comes to the removal of such judicial officers, it is only in cases where there is a petition against a judicial officer presented to the FJSC that it can investigate and recommend to the Respondent for necessary action. He argued that in the instant case, it was impossible for the FJSC to recommend to the Respondent the removal of the Appellant whom it had not investigated. He pointed out that it was only the Respondent that has the investigative powers and the exclusive power to recommend to the President or Governor of a State for the appointment, discipline and removal of judicial officers. He cited the cases of NGANJIWA v FRN (2018) 4 NWLR (Pt. 1609) 301; ELELU-HABEEB & ANOR v A.G. FEDERATION (2012) 13 NWLR (Pt. 1318) 423; OPENE v NJC (2011) LPELR-4795; ABDULLAHI v GOVERNOR, KANO STATE (2014) 16 NWLR (Pt. 1433) 213. He urged the Court to so hold.
RESOLUTION OF ISSUE 3:
I have considered the submissions of the parties on this issue. At paragraphs 4.22—4.25 at pages 17—18 of the Appellant’s Brief of Argument, it was argued that the finding of the lower Court that the submission by the Appellant to the Respondent of one judgment personally conducted by him instead of six does not amount to misconduct to warrant the recommendation for his removal in the context of Section 292(1)(b) of CFRN, 1999, but it rendered the Appellant unable to perform the functions of his office within the context of the same Section, is at variance with the case put forward by both parties. He had submitted that the case put forward by the Appellant before the trial Court is that the recommendation of the Respondent was on the basis of misconduct on the part of the Appellant as shown in Exhibits OT11—OT16 attached to the Appellant’s affidavits.
As rightly contended by the learned Senior Counsel for the Appellant, the settled law is that in deciding a matter, a Court of law is bound to confine itself to the case made up in the parties’ pleadings. In NBCI v INTEGRATED GAS (NIG.) LTD & ANOR (2005) LPELR-2016(SC), the Apex Court, per Edozie, JSC held at pages 21—22, paras. E-F, that:
“A Court is not competent to make a case for the parties different from the case they made for themselves. This principle was recently restated by this Court in the case of Spasco Vehicle and Plant Hire Co. v. Alraine (Nig.) Ltd. (1995) 8 NWLR (Pt. 416) 655 at 669 where Iguh, J.S.C., observed – It is an elementary and fundamental principle of the determination of disputes between parties that judgment must be confined to the issues raised by the parties in their pleadings. It is not competent for the trial Court suo motu to make a case for either or both of the parties and then proceed to give judgment on the case so formulated contrary to the case of the parties before him… This principle of law is, without doubt, in accordance with common sense, as to permit trial Courts to wander out of issues raised by the parties in their pleadings and to found their judgment on such issues would not only take parties by surprise and make nonsense of pleadings, it might well result in the denial to one or the other of the parties of the right to fair hearing pursuant to the audi alteram partem rule as enshrined in the 1979 Constitution of Nigeria.”
See also: UNIVERSITY OF CALABAR v ESSIEN (1996) per Mohammed, JSC, at page 36, paras. D-F; KAYILI v YILBUK & ORS. (2015) LPELR-24321(SC), per Ogunbiyi, JSC at page 52, paras. A-F; and BANKOLE & ANOR v DENAPO & ANOR (2019) LPELR-46444(CA), per Ogakwu, JCA at pages 11-12, paras. E-A.
To determine whether the decision of the lower Court is at variance with the case presented by the parties, I have examined the Appellant’s Originating Summons and the supporting affidavit which he filed at the trial Court. These are contained on pages 3—13 of the Record of Appeal. From the 6 questions presented to the trial Court for determination, and the 8 reliefs sought by the Appellant in the Originating Summons, it is clear to me that the Appellant’s case before the trial Court essentially challenges the Respondent’s recommendation to the President for the Appellant’s removal on ground of misconduct and not on ground of inability to exercise the functions of his office.
For instance, in question one, the Appellant sought for a determination by the trial Court of whether in view of Paragraphs 13 and 21 of Part 1 of the Third Schedule to the CFRN, 1999, the Defendant (now Respondent) can commence the process of removing the Plaintiff (Appellant) from office as a Judge of the Federal High Court without receiving a recommendation from the FJSC, which the trial Court determined in the affirmative against the Appellant. In the second question sought for determination in the Appellant’s originating summons before the trial Court, the Appellant (then Plaintiff) had sought for determination of whether the Respondent (then Defendant) can find him “guilty of misconduct by holding that the plaintiff personally conducted only one of the six cases he relied on for securing his appointment as a Judge of the Federal High Court, when the defendant did not receive any complaint from the Federal Judicial Service Commission that the six cases relied upon by the plaintiff which were used by the Federal Judicial Service Commission for shortlisting the plaintiff for appointment as a Judge of the Federal High Court did not meet the requirements of the Federal Judicial Service Commission.” (underline mine).
The Appellant then essentially sought in questions 3-6 whether the he was rightly recommended by the Respondent for removal pursuant to Section 292 of the CFRN, 1999 for what the Appellant did as a legal practitioner in applying for appointment as a Judge especially when the Respondent did not act on any other evidence apart from the 6 cases presented to the FJSC by the Appellant; whether the FJSC and NJC (the Respondent) can proceed to investigate themselves and conclude that the Appellant had misled them in securing the appointment as a Judge; and whether having earlier accepted those documents and appointed the Appellant, the Respondent can reverse itself.
In question 2 of the Appellant’s Originating Summons, he sought for determination of whether or not the Respondent can find the Appellant guilty of misconduct by holding that the Appellant personally conducted only one out of the six cases he relied upon to secure his appointment as a Judge, when the Respondent never received any complaint from the FJSC which shortlisted and recommended the Appellant to the Respondent. Then in question three, the Appellant sought for a determination of whether he was rightly recommended for removal pursuant to Section 292 of CFRN, 1999 with regard to what he did as a legal practitioner in applying for the appointment.
Indeed a look at the Originating Summons shows that while the Appellant (as Plaintiff) essentially sought for a determination by the trial Court as to whether the Respondent (Defendant) can recommend him for the removal on the ground of misconduct under Section 292(1)(b) of CFRN, 1999, the learned trial Judge had, whilst interpreting the provisions of Section 292(1)(b) of the CFRN, 1999, deviated from the question sought for determination as presented by the Appellant and instead proceeded to old at pages 718—719 of the Record of Appeal as follows:
“What is clear from the above provision is that a judicial officer can be removed from office not only by reason of a misconduct committed by him, but also by reason of his “inability to discharge the functions of his office or appointment”. In the particular circumstance of the present case, the question is not exclusively one of whether a misconduct is present and established by the Defendant, but also a question of whether a judicial officer who got into judicial office on a false premise is really able to continue to function in that office. I believe the circumstances presented by the present case, is more of a situation of an inability to discharge the functions of his office or appointment. And I do think that the use of the phrase “of his appointment” is instructive. My belief is that if an appointment is flawed at the beginning, that is, obtained on a false premise, then the judicial officer cannot be taken to be able to discharge the functions of his office or appointment. The wrong appointment on the basis of a false premise such as submission of one judgment conducted personally by the judicial officer as a legal practitioner, when what the NJC Guidelines says is six judgments, in my view is a disabling factor in the context of Section 292(1)(b) of the Constitution. It may not necessarily be a misconduct, but it is a factor that disables a judicial officer from the continuation or functioning in that office or appointment. As said earlier, I believe the use of the phrase “of his office or appointment” is significant.
(underline mine for emphasis)
Clearly, in the holding above (especially the part I underlined), the learned trial Judge misdirected himself as to the case of the parties in interpreting the provisions of Section 292(1)(b) of the Constitution. He rather formulated a question arising from his belief and proceeded to determine same instead of the question sought for determination by the parties. His holding that the Appellant was properly recommended for removal as a Judge of the Federal High Court because the conduct of the Appellant in falsely presenting five of the six cases he relied upon as having been personally conducted by him, amounted to the Appellant to discharge the functions of his office is clearly not what the parties sought for determination from the trial Court.
Although, this holding of the learned trial Judge is undoubtedly perverse having being alien to the case presented by the parties, it is pertinent to observe that the Appellant’s suit was instituted by way of Originating Summons. It is therefore, a case which was basically fought on the basis of affidavit evidence and supporting documents. Hence, all the materials considered by the trial Court in delivering its judgment are contained in the Record of Appeal.
In CHIEF R. A. OKOYA & ORD v S. SANTILLI & ORS (1990) 2 NWLR (Pt.131) 172 at 207, the Supreme Court considered the powers of the Court of Appeal under Section 16 of the Court of Appeal Act, 1976, which is in pari materia with Section 15 of the extant Court of Appeal Act, 2004. In that case, the Apex Court held as follows:
“By virtue of Section 16 of the Court of Appeal Act, the lower Court has all the powers of the trial Court i.e. the powers the Federal High Court has in the matter before it which is now before us on appeal… in order to settle completely and finally the matters in controversy between the parties to this appeal in the matter before the lower Court and, in order to avoid multiplicity of legal proceedings concerning any of those matters can grant any remedy as any of the parties may appear to be entitled to.”
Indeed, in JADESIMI v OKOTIE-EBOH (1986) 1 NWLR (Pt. 16) 264 at 274 and 275, Karibi-Whyte JSC put this position of the law more concisely when he held that:
“Concisely stated, the powers of the Court of Appeal with respect to determination of appeals before it is by way of a re-hearing. The word re-hearing in this context means a hearing on printed records by reexamining the whole evidence both oral and documentary tendered before the trial Court and forwarded to it. It means an examination of the case as a whole. The Appeal Court is entitled to evaluate the evidence and may reject conclusions of the trial Judge from facts which do not follow from the evidence or may be regarded as perverse… Those are very wide powers which enable the appellate Court to exercise all the powers of a Court of first instance.”
See also on this: INAKOJU & ORS v ADELEKE & ORS (2007) LPELR-1510(SC), per Akintan, JSC at pages 211—212, paras. E—C, and per Tobi, JSC at pages 96—97, paras. F-A; AKPAN & ORS v OTONG & ORS (1996) LPELR-374(SC), per Onu, JSC at pages 14-16, paras. C-D, IN RE: ADEWUNMI (1988) 3 NWLR (Pt. 83) 483 at 501; and UNIVERSITY OF LAGOS v OLANIYAN (1985) 1 NWLR (Pt. 1) 156.
From the evidential analysis at page 716 of the Record of Appeal, it appears to me that, before the learned trial Judge deviated and formulated a different question from the one sought for determination, he started rightly when he observed as follows:
“Now in arguing that what the Plaintiff has done does not amount to “misconduct” meriting the sanction that was imposed on him reliance was placed by the Plaintiff on the provisions of Section 161(d) of the Constitution which defines a “misconduct” to mean a breach of the Oath of Allegiance or Oath of Office of a member or a breach of the provisions of this Constitution or bribery or corruption or false declaration of assets and liabilities or conviction for treason or treasonable felony”. With the greatest respect, I believe that the reliance on the definition of the word “misconduct” under Section 161 of the Constitution is erroneous. This is because that Section defines the word “misconduct” as used in that Part, which is Chapter VI, Part 1 of the Constitution, which Part is concerned with the creation and the composition of members of several executive bodies. The word “misconduct” as used in that part does not in any way relate to the judicial branch, and thus does not define misconduct in relation to the functions of Judges. The part of the Constitution that deals with the Judiciary is Chapter VII. And it is noteworthy that nowhere in Part IV of Chapter VII of the Constitution where Section 292(2) of the Constitution dealing with the removal of a judicial officer was the word “misconduct’ defined. As a matter of fact, Section 296 which is the interpretation section is silent on the meaning of the word “misconduct”. My view is that this is a deliberate policy choice and which has been expressed in the Constitution. I surmise that the intent of the makers of the Constitution is to leave the meaning of “misconduct’ as it relates to judicial officers wide, and to give the NJC maximum latitude and discretion as to what can amount to misconduct with respect to the discipline of a judicial officer.”
An examination of the affidavit evidence of the parties before the trial Court shows that the facts are not even contentious. In fact, even by the depositions contained in the Appellant’s affidavit, especially paragraphs 7—12 (see pages 9—10 of the Record), as well as the Appellant’s response to the petitions made against him, dated 10th March, 2017 and attached as Exhibit OT7 (see pages 48 – 55 of the Record of Appeal), the Appellant conceded that he did not personally conduct five out of the six cases he submitted to the FJSC and the Respondent, contrary to the Respondent’s Revised Guidelines and Procedural Rules for Appointment of Judicial Officers, as a result of which he was petitioned against and investigated by the Respondent and recommended for removal on the ground of misconduct under Section 292(1)(b) of the CFRN, 1999 (as amended). The question then is simply whether the Appellant’s admitted infraction amounts to misconduct within the contemplation of Section 292(1)(b) of CFRN, 1999.
Section 292(1)(b) of CFRN, 1999 provides:
(1) A judicial officer shall not be removed from his office or appointment before his age of retirement except in the following circumstances —
(b) in any case, other than those to which paragraph (a) of this Subsection applies, by the President or, as the case may be, the Governor acting on the recommendation of the National Judicial Council that the judicial officer be so removed for his inability to discharge the functions of his office or appointment (whether arising from infirmity of mind or body) or for misconduct or contravention of the Code of Conduct. (underline mine for emphasis).
A careful consideration of the opening words of Section 292(1) quoted above, especially those which I underlined, expressly indicates that a judge may be removed for reasons affecting his office or appointment. Subparagraph (b) of the Subsection then provides that those reasons which may warrant the removal of the judicial officer from his office or appointment may be for his inability to discharge the functions of his office or appointment (whether as a result of infirmity of mind or body) or for misconduct or contravention of the Code of Conduct.
Having found as he did at page 716 of the Record of Appeal that the word misconduct as it relates to removal of judicial officers under Section 292(1) has not been defined in the CFRN, 1999, and that this lack of definition is a deliberate policy choice by the framers of the Constitution in order to give the Respondent the latitude to discharge its functions of discipline of judicial officers, the learned trial Judge ought to have proceeded upon that premise to determine the question of whether the Respondent can find the Appellant guilty of misconduct by holding that the Appellant conducted only one out of the six cases he relied on in securing his appointment as a Judge of the Federal High Court when there was no complaint from the FJSC to that effect.
There is no doubt that the learned trial Judge rightly found, as he did above, that “misconduct” as it relates to judicial officers has not been defined in the Constitution, and that this may indeed be a deliberate policy choice by the framers in order to grant the body saddled with the discipline of judicial officers, the Respondent, the latitude to discharge its functions effectively.
As for whether what the Appellant admittedly did amounts to a misconduct within the contemplation of Section 292(1)(b) of CFRN, 1999, my understanding of the express wordings of Section 292(1)(b) of CFRN, 1999 is that a Judge may be removed from his office for misconduct relating to his office or to his appointment. Being a private legal practitioner, the Applicant was well aware that in seeking appointment as a Judge of the Federal High Court, he was, by the Respondent’s Revised Guidelines and Procedural Rules for Appointment of Judicial Officers, required to submit six cases personally conducted by him in completing his NJC Form A. By his own admission in his supporting affidavit to the Originating Summons, he had only personally handled one out of the six cases he presented to the FJSC and the Respondent. In other words, in procuring his appointment as a Judge, the Appellant deliberately misrepresented five out of the six cases he presented to the FJSC and the Respondent, as cases that were personally conducted by him. From this, I hold the considered view that, given the right finding of the trial Judge that the word “misconduct” as used in Section 292(1)(b) of CFRN has been left deliberately undefined to afford the Respondent the latitude to effectively discharge its functions of discipline of judicial officers, the Respondent was right to regard what the Appellant did in clear breach of its Revised Guidelines and Procedural Rules as misconduct relating to the Appellant’s appointment.
My position as held above is strengthened by the fact that the conduct of the Appellant in willfully passing to the FJSC and the Respondent five out of the six cases he relied upon as if those cases were personally handled by him, was in contravention of Rule 3(6) of the Extant Revised NJC Guidelines and Procedural Rules for the Appointment of Judicial Officers of all Superior Courts of Record in Nigeria of 3rd November, 2014 (Exhibit OT2). In fact, Rule 4(4)(ii)(g) of Exhibit OT2 provides that candidates for the high office of judicial officers shall be disqualified and shall not be recommended for appointment if found to have been involved in deliberate, improper or wrong completion of NJC Form A with intent to deceive or mislead. The conduct of the Appellant in this case was clearly done for no other purpose than to secure his appointment as a judicial officer. It is a conduct relating to the appointment which he secured as a Judge of the Federal High Court. It was not a conduct that is meant for his position as a legal practitioner.
It is for all the reasons espoused above, that I also resolve the third issue against the Appellant and hold that the willful misrepresentation by the Appellant to the FJSC and the Respondent of five out of the six judgments he relied upon as if they were personally conducted by him in order to secure appointment as a Judge of the Federal High Court, in contravention of the Respondent’s Revised Guidelines and Procedural Rules for Appointment of Judicial Officers, amounts to a misconduct and on that basis puts the Appellant within the purview of Section 292(1)(b) of CFRN, 1999.
ISSUE FOUR: Whether the lower Court was right in law when it held that the Respondent could reverse itself and recommend the Appellant for removal on the ground that he had only personally conducted one (1) of the six cases he had submitted for appointment after finding that the requirement to submit six (6) cases was a discretionary and not a mandatory requirement forming part of other requirements that the FJSC considered for shortlisting the appellant.
Learned Senior Counsel for the Appellant had referred the Court to the finding of the trial Court at pages 722—725 of the Record of Appeal and pointed out that the lower Court had drawn a distinction between mandatory requirements prescribed by Section 250(3) of CFRN, 1999 and those specified in the respondent’s extant guidelines contained in pages 29—30 of the Record of Appeal which it classified as discretionary. He submitted that as rightly observed by the lower Court, the foundation for appointment as a Judge of the Federal High Court is as stated in Section 250(3) of CFRN, 1999, which is that a person must be qualified to practice as a legal practitioner in Nigeria for a period of ten years. He argued that the key to this issue is the purported false premise discovered by the Respondent after the Appellant’s appointment, which is the six cases the Appellant submitted as required by the Respondent’s extant guidelines, which requirement is just one out of twelve requirements considered before the Appellant was shortlisted for appointment.
The learned Silk argued that there was no purported false premise because at the time the Respondent investigated the petitions against the Appellant and decided to reverse itself the six cases presented by the Appellant were in the same form they were at the time of his shortlisting and appointment. He submitted that given the distinct roles played by the FJSC and the Respondent, the purported right of reversal of the Respondent as found by the lower Court does not arise. He argued that it is at the stage of shortlisting that the requirement of submission of six cases was considered alongside other requirements prescribed in Exhibit OT2. He contended that the Respondent does not have constitutional responsibility of shortlisting candidates as this is constitutionally vested in the FJSC even by the Respondent’s Guidelines (Exhibit OT2). He submitted that the petitions which contested the shortlisting of the Appellant by the FJSC can only be upheld if the FJSC is to reverse itself since it has the exclusive responsibility of shortlisting candidates for appointment and not the Respondent. He pointed out that in its findings on page 722 of the Record of Appeal the lower had failed to see this distinction. He submitted that the conclusion by the Respondent that the six cases did not meet the requirements for shortlisting cannot arise and is one premised on the opinion of the Respondent and not the FJSC.
Learned Counsel concluded that the only instance when the discretionary requirement of the six cases may be challenged is when evidence is supplied to show that in purporting to meet the discretionary requirement of the FJSC, the Appellant misrepresented, concealed or perpetuated some fraud with respect to the true facts with regard to that discretionary requirement. He argued that having found in the report of its investigating committee that the Appellant did not conceal or commit any fraud with regard to the cases since they were in the same form he had submitted them for the purpose of being shortlisted for the appointment, the discretionary requirement with respect to those six cases had terminated upon the Appellant’s appointment and the only basis for any challenge to the Appellant’s appointment must be with regard to the mandatory requirement stipulated in Section 250(3) of CFRN.
In his counter submission, learned Counsel for the Respondent argued that the finding of the trial Court that the Appellant misled the FJSC and the Respondent in the filing of the NJC Form is an unchallenged fact and the investigating panel had found that the misconduct of the Appellant in the submission of the six cases as if they had been conducted by him warrant the recommendation for his removal. He submitted that the trial Court was right when it held on page 721 of the Record of Appeal that the concept of misconduct under Section 292 of CFRN 1999 is very wide and elastic to accommodate a situation like this where the Appellant’s misconduct was committed in the contest for his appointment into judicial office.
RESOLUTION OF ISSUE FOUR:
I have considered the submissions of the parties over this issue. I do not think I need to prolong the resolution of this issue, especially in the light of issue three which I have determined above. Suffice it to state, in considering issue 1, I had already held that by the wordings of Paragraph 21(b) of Part 1 of the Third Schedule to the CFRN, 1999, the Respondent can commence the process of removal of a Judicial officer without a recommendation from the FJSC. I have also resolved in issue three that what the Appellant did amounts to a misconduct relating to appointment within the purview of Section 292(1)(b) of CFRN, 1999.
As for the argument of the learned Senior Counsel for the Appellant, that there was no purported false premise because at the time the Respondent investigated the petitions against the Appellant and decided to reverse itself, the six cases presented by the Appellant were in the same form they were at the time of his shortlisting and appointment, that argument is, with respect, a misconceived argument. In the face of the Appellant’s depositions admitting that indeed five of the six cases he submitted were not personally handled by him, the argument of the learned Senior Counsel for the Appellant that there was no false premise cannot be a substitute for the Appellant’s evidence.
In fact, while evaluating whether following the discovery of the Appellant’s conduct the Respondent can reverse itself and recommend for the Appellant’s removal, the learned trial Judge had held at page 714 of the Record of Appeal that:
“Beyond this point being taken to have been waived, I believe that there can be no doubt that it is the function of the FJSC to vet and shortlist candidates for judicial appointment in the first instance, and pass them on to the Defendant. But where appointment has been made, as in this case, and years down the line a petition is subsequently received by the Defendant that the appointment of a judicial officer was wrongly procured in that a requirement in the appointment process was breached by a candidate having passed on cases conducted by others as if he was personally involved in conducting them in Court, and this defect passed through verification system without being detected, I hold that the Defendant is duty bound to consider the petition to determine if it has merit or not. The fact that the FJSC had earlier considered and did not detect the defect cannot tie the supervisory hands of the Defendant. In this case, even the Plaintiff conceded that only in one out of six cases he submitted did he appear in Court, while arguing that in the rest, even though he did not personally appear, as principal of the law firm, overall control and supervision rested on him. I do not think that the latter was what was intended by Exhibit OT2, the NJC Revised Appointment Guidelines.”
I must state that apart from the body constitutionally entrusted with matters relating to broad issues of policy and administration for the Nigerian Judiciary, the Respondent (NJC) is, also saddled with the all-important task of recommending the appointment and removal of all judicial officers of superior Courts of record as well as the exercising disciplinary control over such officers. (See: Paragraph 21 of Part 1 of the Third Schedule to the CFRN, 1999). Unlike in the case of appointment, its power to recommend the removal of judicial officers and exercise disciplinary control over them is not restricted by any recommendation from the FJSC. The Revised Guidelines and Procedural Rules for Appointment of Judicial Officers of Superior Courts of Record in Nigeria which stipulate the requirements for appointment of judicial officers was made by the Respondent in exercise of its constitutional role as the policy provider for the judicial branch of government. As stated while resolving issue three, Rule 3(6) of the Guidelines and Procedural Rules of the Respondent required a private legal practitioner seeking judicial office to submit six cases personally conducted by him, while by Rule 4(4)(ii)(g) of the same Guidelines, one of the grounds on which a candidate for such judicial office shall be disqualified or not recommended for appointment is “deliberate improper or wrong completion of NJC Form A with intent to deceive or mislead.” Having found that what the Appellant did in securing his appointment as a Judge amounts to misconduct, was the trial Court right in holding that the Respondent can reverse itself and recommend the removal of the Appellant?
In my respectful view, the learned trial Judge addressed this issue at page 719 of the Record of Appeal when he held as follows:
“The other contention is that the Defendant cannot reverse itself having initially accepted the six judgments submitted and recommended the Plaintiff for appointment on that basis. It is true that in appointing a judicial officer, the Defendant cannot act save and until the FJSC has made a recommendation to it. But a recommendation is simply an advice, and the Defendant is not bound to accept any recommendation made to it by the FJSC. Therefore, where an FJSC recommendation was accepted by the Defendant in error for whatever reason, and this error later on comes to light, the Defendant is competent to redress the error in the manner it deems appropriate, including recommending the name of the judicial officer wrongly recommended to the President for removal. Indeed, had the shortcoming come to light before the Defendant recommended the name of the Plaintiff to the President, it is plausible that the Defendant will not have made the recommendation to the President in the first place. Moreover, contrary to the assertion made by the Plaintiff, I believe that the Defendant can indeed review its decisions, being the highest body with oversight functions over the performance and qualification of judicial officers and their fitness to occupy judicial office.
For all the reasons I have earlier stated, I cannot agree more with the above holding of the learned trial Judge. Given the already highlighted constitutional mandate given to the Respondent to recommend the removal of judicial officers for misconduct and exercise disciplinary control over such officers, the Respondent is at liberty to consider and remedy any infraction relating to appointment to or discharge of the functions of the office of judicial officers. Accordingly, I also resolve this issue against the Appellant and hold that the trial Court was right when it held that the Respondent could reverse itself and recommend the Appellant for removal on the ground that he had personally conducted one of the six cases he had submitted for appointment.
ISSUE FIVE: Whether the lower Court was right in failing to decide on the propriety of the respondent being a Judge in respect of the petition indicting both the FJSC and the Respondent.
On this issue, learned Senior Counsel had submitted that a Court is duty bound to pronounce on every issue submitted before it for determination. Relying on IROLO v UKA (2002) 14 NWLR (Pt. 786) 195; and UNICAL v AKINTUNDE (2013) 3 NWLR (Pt. 1340) 34, he pointed out that from the record of appeal, it is clear that the lower Court never considered the arguments raised on this issue at pages 592—594 of the Record of Appeal and never decided this constitutional point which could have nullified the recommendation challenged in the Appellant’s suit. He argued that on the basis of this failure alone, the judgment of the lower Court ought to be set aside. Counsel however urged the Court to invoke Section 15 of the Court of Appeal Act since all materials necessary for the determination of the issue are contained in the record of appeal.
Learned Counsel submitted that from Exhibits OT4 and OT6 (the petitions at pages 33—42 and 43—47 of the record of appeal), it is apparent that the petitions were actually an allegation of lack of due diligence in the process of appointment of the Appellant conducted by the Respondent and the FJSC. He argued that the allegation against the Appellant that he did not meet the requirements for appointment is inextricably tied to the fact that the Respondent and the FJSC did not show due diligence whilst shortlisting the Appellant for appointment and recommending him to the President for appointment as a Judge of the Federal High Court. He added that in effect, the FJSC and the Respondent had been accused of being complicit such that when an inquiry was to be conducted in this regard, any intervention of the two bodies by way of investigating the merits of the allegation would amount to the said bodies being a Judge in their own cause. He relied on the decision in LPDC v FAWEHINMI (1985) 2 NWLR (Pt. 7) 300, and urged the Court to so hold and resolve this issue in favour of the Appellant.
In his counter argument, learned Counsel for the Respondent submitted that the finding of the trial Court that the Appellant misled the FJSC and the Respondent in the filling of the NJC Form is based on an unchallenged fact and there is no doubt as to whether the act was done by the Appellant and the facts were within his exclusive knowledge. He added that the investigative panel had found that the Appellant’s misconduct warrant the recommendation for his removal.
Learned Counsel submitted that the Respondent’s decision to investigate the process of the Appellant’s recommendation for appointment as a Judge of the Federal High Court is in itself self-indicting, and the decision to recommend the Appellant’s removal is remedial to the conceded neglect in allowing an unqualified person to emerge as a Judge.
Learned Counsel contended that the issue of want of fair hearing cannot arise. He pointed out that even as the Appellant had tried to muddy the waters, it is trite that facts admitted require no further proof and the Appellant’s admission to have conducted only one case is fatal to this appeal. He relied on Section 24 of the Evidence Act, 2011 and the case of ADIKE v OBIARERI (2002) 4 NWLR (Pt. 758) 537, Ratios 6 & 7; FOLORUNSHO & ANOR v SHALOUB (1994) 3 NWLR (Pt. 333) 413, paras. B-H; OKUPE v IFEMEMBI (1974) 3 S.C. 97 at 103; ALAGBE v ABIMBOLA (1978) 2 S.C. 39 at 40; and UBN LTD. v OGBOH (1995) 2 NWLR (Pt. 380) 647 at 654 & 669, and urged the Court to resolve this issue in favour of the Respondent.
RESOLUTION OF ISSUE FIVE:
The contention under this issue is that the trial Court failed to consider and determine the question of whether the Respondent could act as a Judge in respect of the petition which indicted both the FJSC and the Respondent. Going through the Record of Appeal, it is apparent that this was raised before the trial Court as question 5 for determination in the Originating Summons (see page 4 of the Record of Appeal), as well as issue 5 in the Plaintiff’s written address in support of the Originating Summons (See page 582 and 592—594 of the Record of Appeal). From the Record of Appeal, though raised, this was clearly not pronounced upon the trial Court.
As rightly contended by the learned Counsel for the Appellant, the trite law is that a Court of law is duty bound to consider and pronounce upon every issue presented before it for determination: NDIC v O SILVAWAX INT’L LTD. & ANOR (2006) LPELR-7695 (CA), per Adekeye, JCA (as he then was) at pages 28-30, paras. D–A; and TANZILLA PETROLUEM COMPANY LTD & ANOR v AMCON (2015) LPELR-40904(CA), per Abubakar, JCA at page 37-39, paras. F – D.
The learned Senior Counsel for the Appellant has urged this Court to invoke its powers under Section 15 of the Court of Appeal Act to consider the issue. Being a matter that was fought entirely on affidavit evidence and supporting document, all of which are in the Record of Appeal, I shall proceed in line with Section 15 of the said Act and the cases of CHIEF R. A. OKOYA & ORD v S. SANTILLI & ORS(supra); JADESIMI v OKOTIE-EBOH (supra); and INAKOJU & ORS v ADELEKE & ORS (supra), proceed to consider and determine this issue as urged.
The essential contention of the Appellant under this issue is that since the two petitions in Exhibits OT4 and OT6 were an allegation of lack of due diligence in the process of appointment of the Appellant conducted by the FJSC and the Respondent, the allegation against the Appellant that he did not meet the requirements for appointment is inextricably tied to the fact that the Respondent and the FJSC did not show due diligence whilst shortlisting the Appellant and recommending him to the President for appointment as a Judge of the Federal High Court. He argued that any intervention by the FJSC and the Respondent in investigating the petition would amount to the said bodies being Judge in their own cause. He relied on the case of LPDC v FAWEHINMI (1985) 2 NWLR (Pt. 7) 300.
In response to the Appellant’s (Plaintiff’s) contention, the Respondent drew attention to its constitutional responsibility and urged the Court to discountenance the Appellant’s (Plaintiff’s) contention refuse a declaration to that effect.
In resolving this issue, I had examined Exhibits OT4 and OT6, the petitions at pages 33—42 and 43—47 of the Record of Appeal. The Petition at pages 33-42 of the Record of Appeal, which was made to the then Chief Justice of Nigeria and Chairman National Judicial Council, (Walter Samuel Nkanu Onnoghen), by the Socio-Economic Rights & Accountability Project (SERAP). It is titled: Re: Request to investigate allegations of corrupt practices and lack of due diligence in the appointment of Justice Tokode Olusegun Olayinka to the Federal High Court.
A look at that petition shows that it essentially seeks that the then Chief Justice of Nigeria and Chairman of the National Judicial Council (NJC), the Respondent herein, Hon. Justice Walter Samuel Nkanu Onnoghen, should investigate allegations of corrupt practices and lack of due diligence in the appointment of the Appellant as a Judge of the Federal High Court and to make the findings of such investigations public. In particular, the petitioners stated in paragraph 3 of the petition that the Appellant who was called to the Bar in 1989 was at all material times resident in Canada, and that when he applied to become a Judge of the Federal High Court he had relied on six judgments and proceedings of Court which claimed to have personally handled while practicing in Nigeria as a legal practitioner. They urged the Chief Justice to investigate and find out the truth about the Appellant’s claim and whether there was due diligence done to find out exactly the truth about his claim before confirmation of his appointment.
Exhibit OT6 is a letter addressed to the then Chief Justice and Chairman, NJC by the Presidential Advisory Committee on Corruption (PAC), forwarding a petition addressed to it by one Ms. Abimbola Awogboro, Chief Magistrate (Admin). In the letter, the PAC requested the then Chief Justice and Chairman NJC to investigate the petition which has alleged fraud in the process of the appointment of the Appellant, in that the Appellant was alleged to have represented himself as counsel in some cases submitted by him in fulfillment of requirement for appointment of Judges.
In the attached petition of Ms. Abimbola Awogboro, she alleged under the heading: FRAUDULENT ACT OF OLUSEGUN TOKODE, that the Appellant, in an apparent bid to satisfy the requirement that every candidate who is a legal practitioner in private legal practice is required to submit 6 (six) judgments in cases which were conducted by him in the preceding 5 years before the application, submitted six judgments which were not personally handled by him but by one Miss Funke Loko. She stated that she was also a candidate for that appointment and the Appellant and herself were the two candidates shortlisted from Osun State and after they attended the interview, she was surprisingly dropped for the Appellant. She then stated that the Appellant could not have conducted the cases he relied upon because during the period and immediately before his appointment, the Appellant had relocated to and was living in Canada. She then requested the PAC to intervene in the matter.
From my scrutiny of the two petitions above, the petitioners are essentially against the Appellant, in that they allege that in fulfillment of the requirement for appointment as a Judge of the Federal High Court, he had misrepresented himself as having personally conducted the six cases he presented and relied upon and requesting the Chief Justice to thoroughly investigate the matter and take remedial action.
The Appellant who brought this appeal had, through his Counsel, made copious submissions in his Brief of Argument about the constitutional duties of the FJSC and the NJC (the Respondent herein), particularly citing Paragraphs 13 and 21 of Part 1 of the Third Schedule to CFRN, 1999. Indeed, the learned Silk had acknowledged on behalf of the Appellant that the Respondent had the power to recommend the removal of judicial officers and to exercise disciplinary control over such officers. The learned Silk had only tried to argue on behalf of the Appellant before the trial Court, that the Respondent can only exercise its power to recommend such removal after receiving a recommendation from FJSC, which argument the trial Court had discountenanced and which I have also affirmed while considering issue one in this appeal.
It is beyond doubt that from the provisions of Paragraph 21(b) and (g) of Part 1 of the Third Schedule to the CFRN, judicial officers of superior Courts of record in Nigeria and the staff of the NJC (the Respondent) are subject to the disciplinary control of the Respondent, and the Constitution expressly empowers the Respondent to exercise disciplinary control over erring Judges or its staff. Thus, as far as the issue of discipline is concerned, all serving Judges and Justices of superior Courts of record and the staff of the NJC are basically subjects of the NJC.
For the Appellant to now posit that investigating an alleged infraction by the Respondent in the process of appointment of a Judge of the Federal High Court who is alleged to have breached its guidelines and procedural rules by misrepresenting himself as having personally conducted the cases he relied upon, amounts to being Judge in its own cause appears to be a preposterous argument to me. The Respondent (the NJC) is undoubtedly empowered to exercise disciplinary control over judicial officers. See: NJC & ORS v ALADEJANA (2014) LPELR-24134(CA), per Yahaya, JCA at pages 50-53, paras. E-B and JUSTICE OKWUCHUKWU OPENE v NATIONAL JUDICIAL COUNCIL & ORS. (2011) LPELR-4795(CA), per Mustapha, JCA at pages 56 – 57, paras. E–A.
It is significant for me to state that the law recognizes that it is operated by human beings, with the deficient human attribute of fallibility. By nature, human beings are prone to human failings of inadvertence, mistake, deceit and being deceived. And they are also prone to being deliberate in their actions. It is for that reason the law provides for and makes allowance for such human failings and also punishes deliberate actions. I hold the respectful view that even if there is any failings on the part of officers of the Respondent, the Respondent is, as highlighted above, empowered to investigate and take remedial measures.
In the instant case, the wilfull misrepresentation by the Appellant in passing five out of the six judgments he presented to the FJSC and the Respondent as having been personally conducted by him in order to secure his appointment as a Judge of the Federal High Court, cannot on a scale of justice be elevated higher than the lack of due diligence by the Respondent in detecting such misrepresentation. The Appellant who knowingly misrepresented the five cases he presented to the FJSC and the Respondent did so hoping that the FJSC and the Respondent would not detect same. He cannot now turn around and accuse the FJSC and the Respondent just because they failed to detect same and for taking remedial measures after their attention was drawn to same. More so, when the Constitution expressly empowers them to so do.
It is in this light that I also resolve issue 5 of the Written Address of the Originating Summons which was unresolved by the trial Court, against the Appellant and hold that the two petitions in Exhibit OT4 and OT6 essentially complain against the Appellant’s conduct in presenting cases to the FJSC and the Respondent and misrepresenting same as if they were personally conducted by him in a bid to secure his appointment as a Judge of the Federal High Court, and in investigating same, the Respondent is not being a Judge in its own cause. It is indeed constitutionally empowered to so do.
Having resolved all issue in this appeal against the Appellant, I hold that this appeal lacks merit. Accordingly, it is hereby dismissed.
IGNATIUS IGWE AGUBE, J.C.A.: I had the advantage of reading in draft, the lead judgment just delivered by my Noble Lord, Hon. Justice Abba Bello Mohammed, JCA and I am in complete agreement with his reasoning and conclusion that the appeal lacks merit and same is dismissed whereas the judgment delivered by Honourable Justice Nnamdi O. Dimgba on the 16th of April, 2018 is hereby affirmed.
OLABODE ABIMBOLA ADEGBEHINGBE, J.C.A.: I had the privilege of reading the draft of the judgment, just delivered by A. B. Mohammed, JCA. I agree with the reasoning, conclusion and orders stated in the judgment.
Appearances:
Oluwole Aladedoye Esq. with M. D. Ojo Esq. For Appellant(s)
Respondent absent and unrepresented For Respondent(s)