TOKODE v. PRESIDENT OF THE FRN & ORS
(2021)LCN/15640(CA)
In the Court of Appeal
(ABUJA JUDICIAL DIVISION)
On Wednesday, September 15, 2021
CA/ABJ/208/2019
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
1. THE PRESIDENT OF THE FEDERAL REPUBLIC OF NIGERIA 2. THE ATTORNEY GENERAL OF THE FEDERATION 3. NATIONAL JUDICIAL COUNCIL RESPONDENT(S)
RATIO
THE JURISDICTION OF THE LEGAL PRACTITIONERS DISCIPLINARY COMMITTEE
Firstly, the jurisdiction of the Legal Practitioners Disciplinary Committee is in relation to infractions of Legal Practitioners Rules of Professional Conduct. In stating the legal status of LPDC, Belgore, JSC (as he then was) held in OKIKE v LPDC (2005) LPELR-2450(SC), at page 39, paras. A–B, that “the Legal Practitioners Disciplinary Committee is exactly what it is called, a “Committee” to investigate and make recommendations. It is not a Tribunal or Court of law; it is a quasi-administrative body and because of the strategic importance of legal practice to administration of justice, it must maintain the highest standard of discipline.” PER MOHAMMED, J.C.A.
DEFINITION OF “REMOVAL FROM OFFICE
In my considered view, the above decision of the learned trial Judge cannot be faulted. I only need to add that within the context of this case, Blacks Law Dictionary, 6th Edition at page 1295 defined “removal from office” as “deprivation of office by act of competent superior officer acting within scope of authority.” In this content therefore, it will be right to the interpret the word “removal” as used in Section 292(1)(b) of CFRN, 1999 to mean deprivation of office of a Judge by a competent authority, (this time, the 3rd and 1st Respondents), acting within the scope of authority (which is recommendation for removal by the 3rd Respondent to the 1st Respondent and confirmation of such removal by the 1st Respondent as empowered by the same Section. Such a removal (deprivation of office) may then logically be by the various forms of “temporary suspension”, “compulsory retirement” or even “dismissal”, depending on the disciplinary measure adjudged by the removing authority to be commensurate punishment for the infraction of the judicial officer. Therefore, the only relationship between Section 292(1)(b) and Section 291(2) misconceivably relied upon by the Appellant therefore is that “compulsory retirement” as a mode of “removal” of judicial officers under Section 292(1)(b) is also a form of forced retirement, though neither voluntary nor statutory. Where a judicial officer has attained the period of service specified inSection 291(3) before he is compulsorily retired, he will then be entitled pension right as provided in the Subsection. Other than that relationship, there is no nexus between Section 291(2) of CFRN and the issue of removal of the Appellant under Section 292(1)(b) of CFRN which, in my respectful view, has been rightly interpreted and adjudged by the learned trial Judge.
It is for all the foregoing reasons that I also resolve the second issue in this appeal against the Appellant and hold that the trial Court was right when it held that the recommendation by the 3rd Respondent and the confirmation by the 1st Respondent that the Appellant be ‘dismissed’ from office rather than just being ‘removed’ still comes within Section 292(1)(b) CFRN 1999 as the distinction between “dismissal” and “removed” amounts to mere ‘hair splitting’. 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 (hereinafter referred to as “the trial Court”), delivered by Honourable Justice Nnamdi O. Dimgba on the 22nd of November, 2018 wherein he dismissed the reliefs sought in the Originating Summons of the Appellant. The judgment of the trial Court is at pages 760–787 of the Record of Appeal.
In the Originating Summons dated 23rd February, 2018 at pages 3–635 of the Record of Appeal, the Appellant challenged the recommendation of the 3rd Respondent and the confirmation by the 1st Respondent of the recommendation of the 3rd Respondent that he (the Appellant) be dismissed from office as a Judge of the Federal High Court for having personally conducted only one case out of the six cases he presented and relied upon to secure his appointment as a Judge.
Dissatisfied with the judgment of the trial Court, the Appellant brought this appeal vide Notice of Appeal dated 14th December, 2018 (at pages 788–795 of the Record of Appeal). Parties exchanged and adopted their respective briefs of argument at the hearing of the appeal on the 1st of July, 2021.
The Appellant’s Brief of Argument dated 3rd May, 2019 and filed on 8th May, 2019 was settled by O. A. R. Ogunde SAN and Olawale Falaiye, Esq. The Brief of Argument of the 1st and 2nd Respondents is dated 13th February, 2020 and filed on 18th February, 2020. It was settled by Ngosoo T. A. Uchegbu (Mrs.) and deemed properly filed and served on 30th June, 2021. That of the 3rd Respondent is dated and filed on 3rd June, 2019. It was settled by Steve O. Emelieze Esq.
In the Appellant’s Brief of Argument, the following seven issues were distilled for determination:
1. Whether the recommendation of the 3rd Respondent and the confirmation of the said recommendation by the 1st Respondent that the Appellant be dismissed from office as a Judge of the Federal High Court on account of having conducted only one (1) case out of six (6) cases submitted by him for appointment, is valid and constitutional when the recommendation and confirmation were based on the report of the 3rd Respondent’s investigation committee without the Appellant having been first investigated and tried for professional misconduct by the Legal Practitioners Disciplinary Committee (LPDC). (Ground 1).
2. Whether the trial Court was right in law when it held that the recommendation by the 3rd Respondent and the confirmation by the 1st Respondent that the Appellant be ‘dismissed’ from office rather than just being ‘removed’ still comes within Section 292(1)(b) CFRN 1999 as the distinction between ‘dismissal’ and ‘removed’ amounts to mere ‘hair splitting’. (Ground 2).
3. 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).
4. 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).
5. 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).
6. 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).
7. 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 2nd and 3rd Respondent’s Brief of Argument, the following two issues were distilled:
1 Whether the National Judicial Council (NJC) rightly assumed jurisdiction by trying the Appellant.
2. Whether the learned trial Judge was right in dismissing the Appellant’s claims in Suit No. FHC/ABJ/CS/194/18.
In the Brief of Argument of the 3rd Respondent, the following seven issues were raised for determination:
1. Whether the learned trial Judge was right to say that the confirmation by the 1st Respondent of the recommendation of the 3rd Respondent that the Appellant be dismissed as a Judge of the Federal High Court was in accordance with the Section 292(1)(b) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) (CFRN). (Ground 1)
2. Whether the lower Court was right when it held that the use of the word “dismissal” by the Respondent instead of “removal” as used by the Constitution amounted to mere “hair splitting” not of any significance. (Ground 2).
3. Whether the trial Court was right when it held that by an interpretation of Paragraphs 13 and 21 of Part 1 of the Third Schedule to the CFRN the 3rd Respondent can commence the process of removal of a judicial officer without necessarily receiving a recommendation from FJSC. (Ground 3).
4. Whether the lower Court was right when it held that the Appellant had waived his right to complain that the recommendation for his removal did not first come before the FJSC after he had fully participated in the investigation process by the Respondent. (Ground 4).
5. Whether the learned trial Judge was right when he held that by the Appellant submitting one judgment out of the required six before his appointment which was a prerequisite he was unfit or unable to discharge the functions of his office or appointment. (Ground 5).
6. Whether the Court was right when it held that the 3rd Respondent could reverse itself after recommending the Appellant for the appointment if it discovered that he did not comply with its guidelines for submitting 6 cases even though the 6 cases are not constitutional requirements. (Ground 6).
7. Whether the learned trial Judge did not make a finding on the 3rd Respondent acting as a Judge in a matter it had earlier recommended the Appellant to be appointed and if such failure had occasioned a miscarriage of justice. (Ground 7).
As stated in the Appellant’s Brief of Argument, the Appellant had earlier filed an Originating Summons against the National Judicial Council (NJC), the 3rd Respondent herein, in Suit No. FHC/ABJ/CS/1240/2017: HONOURABLE JUSTICE OLUSEGUN OLAYINKA TOKODE v NATIONAL JUDICIAL COUNCIL, essentially challenging the recommendation made by the NJC to the President, Federal Republic of Nigeria (FRN), the 1st Respondent herein, that he (the Appellant) be removed from office as Judge of the Federal High Court for presenting and relying on six cases as having been personally conducted by him when in truth he conducted only one of the six cases, pursuant to Section 292(1)(b) of CFRN, 1999. The judgment of the Federal High Court in that suit no. FHC/ABJ/CS/1240/2017 was what led to Appeal No. CA/ABJ/611/2018: HONOURABLE JUSTICE OLUSEGUN OLAYINKA TOKODE v NATIONAL JUDICIAL COUNCIL, whose judgment I have delivered earlier today.
Whilst the suit no. FHC/CS/1240/2017 was pending before the trial Court however, the Appellant had read in an online publication that the recommendation of the NJC for his removal as Judge of the Federal High Court has been approved by the President, FRN. As such, he instituted suit no. FHC/ABJ/CS/194/2018: HONOURABLE JUSTICE OLUSEGUN OLAYINKA TOKODE v PRESIDENT OF THE FEDERAL REPUBLIC OF NIGERIA; ATTORNEY GENERAL OF THE FEDERATION; & NATIONAL JUDICIAL COUNCIL, (this time joining the President, FRN and the Attorney General of the Federation as the 1st and 2nd Defendants, with the NJC as the 3rd Defendant). It is the trial Court’s judgment in that suit that has led to this second appeal no. CA/ABJ/208/2019: HONOURABLE JUSTICE OLUSEGUN OLAYINKA TOKODE v PRESIDENT, FEDERAL REPUBLIC OF NIGERIA & 2 ORS.
As highlighted in paragraphs 1.3–1.5 of the Appellant’s Brief of Argument, this appeal is therefore, inextricably related to appeal no. CA/ABJ/CS/1240/2017, and that grounds 3, 4, 5, 6 and 7 contained in the notice of this appeal are the same as the five grounds of the first appeal no. CA/ABJ/611/2018, whose judgment I had delivered earlier today.
Although, the learned Senior Counsel for the Appellant had previously indicated intention to seek the consolidation of the two appeals, no such consolidation was sought and obtained. Indeed, it is significant to observe that even the learned trial Judge that tried the two cases leading to the two appeals had in his judgment in the latter suit no. FHC/ABJ/CS/194/2018 which led to this appeal relied heavily upon his decisions in the earlier suit no. FHC/ABJ/CS/1240/2017.
As rightly stated in paragraph 1.3 of the Appellant’s Brief of Argument, the five issues in appeal no. CA/ABJ/611/2018 whose judgment I had delivered earlier today, are the same as issues 3–7 raised in this appeal. Suffice it for me to state that in the judgment earlier delivered dismissing appeal no. CA/ABJ/611/2018, I had succinctly determined those issues against the Appellant. In fact, it is instructive to observe that in dismissing the latter suit no. FHC/ABJ/CS/194/2018 leading to this appeal, the learned trial Judge had based his decision on his earlier judgment in FHC/ABJ/CS/1240/2017, whose appeal I had dismissed earlier today. What is left to be determined in this appeal therefore, are issues 1 and 2, since this Court had already determined in appeal no. CA/ABJ/611/2018 issues 3 –7 in this appeal. This Court and the parties to this appeal are therefore bound by that decision.
I shall therefore, proceed to consider the first two issues in this appeal which stand unresolved, while adopting the decision of this Court in appeal No. CA/ABJ/611/2018: HON. OLUSEGUN OLAYINKA TOKODE v NJC, in resolving issues 3–7 of this appeal.
ISSUE 1: Whether the learned trial Judge was right to say that the confirmation by the 1st Respondent of the recommendation of the 3rd Respondent that the Appellant be dismissed as a Judge of the Federal High Court was in accordance with the Section 292(1)(b) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) (CFRN). (Ground 1)
Arguing issues 1 and 5 together, learned Senior Counsel for the Appellant submitted that both issues relate to the interpretation of Section 292(1)(b) of CFRN, 1999. He essentially argued that the finding of the investigating committee of the 3rd Respondent that the Appellant only conducted 1 out of the 6 cases he submitted, cannot be a ground for the 3rd Respondent to recommend the “removal” or “dismissal” of the Appellant as a Judge of the Federal High Court and as such, the 1st Respondent had no ground for confirming the said recommendation. Counsel argued that his submission was because “the submission of the cases was done while the Appellant was still a legal practitioner and therefore even if, which is not conceded, this act constitutes a ground for the removal of the appellant from office, it is the Legal Practitioners Disciplinary Committee (LPDC) that retains jurisdiction to entertain complaints and make recommendations for the discipline against the appellant even after the appellant’s appointment as a Judge of the Federal High Court.
Citing Section 292(1)(b) of CFRN 1999, he pointed out that the recommendation made by the 3rd Respondent to the 1st respondent was based on the findings of the investigation committee of the 3rd Respondent in Exhibit OT18 at pages 596–605 of the Record of Appeal, which was that in applying to be shortlisted for appointment as a Judge of the Federal High Court and whilst he was still a legal practitioner presented six cases to the FJSC which he claimed to have personally conducted, but of which he only personally conducted one. Counsel contended that even if the act of the Appellant is proved to be true, it does not amount to misconduct or inability to discharge the functions of his office or contravention of the code of conduct within the meaning of the Section 292(1)(b) of CFRN 1999.
He pointed out the trial Court had in its judgment adopted its findings in Suit No. FHC/ABJ/CS/1240/2017 and found that the act of the Appellant did not amount to misconduct in the context of Section 292(1)(b) of CFRN 1999 but rendered the Appellant “unable to discharge the functions of his office.” He submitted that on the basis of the finding of the trial Court that the action of the Appellant does not constitute misconduct, the Appellant would advance no argument on that ground of removal or on contravention of the Code of Conduct. He stressed that the ground upon which they challenge the 3rd Respondent’s recommendation is on the basis that what the Appellant did, even if proved, was done in his capacity as a legal practitioner and the 3rd Respondent had no constitutional jurisdiction to investigate the acts or omissions of legal practitioners or even what appointed Judges did or omitted to do whilst being legal practitioners. He argued that the statutory power to discipline legal practitioners is vested in the LPDC. He relied on the case of NBA v HARRISON (2015) 4 NWLR (Pt. 1450) 578 at 582.
Learned Counsel urged the Court to hold that even if the 3rd Respondent need not refer the petitions against the Appellant to the LPDC, the finding of the 3rd Respondent that the Appellant only personally conducted one of the six cases he relied upon for appointment as Judge of the Federal High Court cannot constitute inability to discharge the functions of his office or appointment, as from the express provisions of Section 292(1)(b) of CFRN 1999, that can only arise from infirmity of mind or body. He cited KNIGHT FRANK & RUTLEY (NIG) v ATTORNEY GENERAL OF KANO STATE (1998) 7 NWLR (Pt. 556) 1; ABACHA v FEDERAL REPUBLIC OF NIGERIA (2014) 6 NWLR (Pt. 1402) 43; SHINKAFI v YARI (2016) 7 NWLR (Pt. 1511) 430; and MILITARY GOVERNOR, ONDO v ADEWUNMI (1988) 3 NWLR (Pt. 82) 280, and urged the Court to set aside the finding of the trial Court that the recommendation of the 3rd Respondent was valid on the basis that the Appellant was unable to discharge the functions of his office.
Learned Senior Counsel for the Appellant placed reliance on the decision in A.G. CROSS RIVER STATE v ESIN (1991) 6 NWLR (Pt. 197) 365, wherein “misconduct” within the meaning of Section 256(1) of the 1979 Constitution, a section in pari materia with Section 292(1)(b) of CFRN 1999, was held to relate to misconduct both in public and private life of a judicial officer. He argued that this means that the misconduct relates to anything after the judicial officer’s appointment and not before. He similarly argued that “functions” as used in the Section can only relate to judicial functions and not functions of a legal practitioner.
It was also the contention of learned Senior Counsel that a Court is bound to strictly consider and determine a case in the manner framed by the parties. He relied on COMMISSIONER FOR WORKS, BENUE v DEVCON LTD (1988) 1 NWLR (Pt. 83) 407; and AERMACCHI v AIC LTD (1986) 2 NWLR (PT. 23) 508. He added that where a Court chooses to raise a point suo motu, such a Court is duty bound to hear the parties on that point before making a finding thereon, failing which the finding must be set aside. He relied on COMMISSIONER FOR WORKS, BENUE v DEVCON LTD (supra); and ABDULKAREEM v LAGOS STATE GOVERNMENT (2016) 15 NWLR (Pt. 1535) 177. He urged the Court to set aside the finding of the trial Court in this regard and consequently the confirmation by the Respondent of the recommendations of the 3rd Respondent.
In his counter argument, learned Counsel for the 1st and 2nd Respondent submitted that the National Judicial Council (the 3rd Respondent) is a creation of the constitution and its role is provided in it. He cited Section 153 and Paragraph 21 of Part 1 of the Third Schedule to the CFRN 1999 and the case of NWAOGWUGWU v PRESIDENT, FRN (2007) All FWLR (Pt. 358) at 1356, paras. D–F; and OPENE v NJC & ORS (2011) LPELR-4795(CA), to the effect that by Section 158(1) of the Constitution the NJC, in exercising its powers to make appointments or to exercise disciplinary control over judicial officers shall not be subject to the direction or control of any authority. He submitted that the National Judicial Council acted within its constitutional powers and urged the Court to so hold.
On his part, learned Counsel for the 3rd Respondent submitted that the Appellant had wrongly dissipated energy arguing that the proper forum to discipline the Appellant if he committed infraction of the Guidelines of the 3rd Respondent for Appointment of Judges is the Legal Practitioners Disciplinary Committee and not the 3rd Respondent and that the invocation of Section 292(1)(b) of CFRN was wrong. He submitted that this argument of the Appellant is misconceived and the reliance by the Appellant on the case of NBA v HARRISON (supra), was wrong as that case was inapplicable because LPDC’s jurisdiction is limited to infractions committed against the Legal Practitioners’ Rules of Professional Conduct and not that of the 3rd Respondent. He added that in the case of NBA v HARRISON, trial against the professional conduct of the legal practitioner in question had commenced based on a complaint by NBA before she was appointed a Judge.
Learned Counsel argued that by submitting himself to the process of appointment and filling NJC Form A, he had at that moment submitted himself to the jurisdiction of the 3rd Respondent and subject to its disciplinary processes. He contended that the lower Court was therefore right in concluding that the invocation of Section 292(1)(b) of CFRN against the Appellant was proper and that the Appellant was not fit to discharge the functions of his office as a Judge.
On the Appellant’s arguments that “inability to discharge the functions of his office was wrongly interpreted by the lower Court, Counsel submitted that the cases relied upon by the Appellant were not relevant as they were not on interpretation of the Constitution and therefore did not interprete the phrase “inability to discharge the functions of his office or appointment.”
Learned Counsel pointed out that the 3rd Respondent’s Guidelines for Appointment had warned the Appellant not to mislead it in the filling of the Form for appointment because there are consequences for doing so. He cited Rule 4(ii)(g) of the Guidelines which warned of “Deliberate, improper or wrong completion of NJC Form A with intent to deceive or mislead.” He submitted that the Appellant had deliberately and wrongly filled the NJC Form A alleging that he had personally conducted six cases in the superior Courts of record five years preceding the date of his nomination, when in truth he had only conducted one case.
Counsel submitted that Section 292(1)(b) CFRN 1999 should not be given restrictive interpretation. Relying on the cases of NJC v HON JUSTICE JUBRIL BABAJIDE ALADEJANA (2014) LPELR-24134(CA); ATTORNEY GENERAL OF BENDEL STATE v ATTORNEY GENERAL OF THE FEDERATION (1982) 3 NCLR 1; INEC v MUSA (2003) 106 LRCN 620; and A.G. ABIA v A.G. FEDERATION (2003) 167 LRCN, he urged the Court to discountenance the argument that the trial Court had raised the issue of “inability to discharge the functions of his office or appointment” suo motu without hearing the parties, as same is not covered by any of the grounds of appeal. He urged the Court to resolve this issue in favour of the 3rd Respondent.
RESOLUTION OF ISSUE 1:
I have carefully considered the submissions of the parties over issue. Let me start by stating that as held in Appeal No. CA/ABJ/611/2017, the facts leading to this appeal are not contentious because by the depositions contained in his supporting affidavit to the Originating Summons in that case, the Appellant had admitted that he indeed personally conducted only one out of the six cases he presented and relied upon for his appointment as a Judge of the Federal High Court. Hence, there is no need belaboring those facts. As stated by the Appellant the crux of the matter bothers on the interpretation of Section 292(1)(b) in relation to the recommendation of the Appellant for removal as a Judge.
The first contention of the Appellant under this issue is that the Appellant submitted the six cases he presented to the 3rd Respondent while he was a legal practitioner under the jurisdiction of the LPDC, and as such the 3rd Respondent cannot recommend his removal as a Judge under Section 292(2) (1)(b) of the CFRN, 1999. With respect, I must state that I find this argument of the Appellant highly misconceived.
Firstly, the jurisdiction of the Legal Practitioners Disciplinary Committee is in relation to infractions of Legal Practitioners Rules of Professional Conduct. In stating the legal status of LPDC, Belgore, JSC (as he then was) held in OKIKE v LPDC (2005) LPELR-2450(SC), at page 39, paras. A–B, that “the Legal Practitioners Disciplinary Committee is exactly what it is called, a “Committee” to investigate and make recommendations. It is not a Tribunal or Court of law; it is a quasi-administrative body and because of the strategic importance of legal practice to administration of justice, it must maintain the highest standard of discipline.”
The National Judicial Council on the other hand, is a constitutional body established by Section 153 and mandated in Paragraph 21 of Part 1 of the Third Schedule of the CFRN, 1999 to inter alia, recommend the appointment and removal of judicial officers of superior Courts of record in Nigeria and exercise disciplinary control over such officers.
As rightly posited by the learned Counsel for the 3rd Respondent, from the moment the Appellant applied to become a Judge and presented six cases in the 3rd Respondent’s NJC Form A as if they were personally conducted by him when in reality he conducted only one, in breach of the 3rd Respondent’s Guidelines for Appointment of Judicial Officers, the Appellant had placed himself within the jurisdiction of the 3rd Respondent.
Secondly, in the judgment of this Court in Appeal No. CA/ABJ/611/2018: HONOURABLE JUSTICE OLUSEGUN OLAYINKA TOKODE v NATIONAL JUDICIAL COUNCIL, which I just delivered, I had set aside the finding of the trial Court that the Appellant’s conduct amounted to “inability to discharge the functions of his office or appointment” under Section 292(1)(b) of CFRN for being perverse to the case presented by the parties, which was removed on the ground of misconduct. I had, pursuant to Section 15 of the Court of Appeal Act and the Supreme Court decisions in CHIEF R. A. OKOYA & ORS v S. SANTILLI & ORS (1990) 2 NWLR (Pt. 131) 172 at 207;JADESIMI v OKOTIE-EBOH (1986) 1 NWLR (PT. 16) 264 at 274 & 275; 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, as well as others cited therein, proceeded to interprete Section 292(1)(b) of CFRN in relation to the Appellant’s conduct. In so doing, I had held as follows:
“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 upon in securing his appointment as a Judge of the Federal High Court when there was no complaint from the FJSC to that effect…
As for whether what the Appellant 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 Appellant 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 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.”
I do not think I need say more on this issue. Suffice it for me to add that the investigation of the Appellant’s conduct done by the committee of the 3rd Respondent was not made for the purpose of disciplining the Appellant as a legal practitioner, but for the purpose of disciplining him as a Judge, an office which the Appellant was already occupying at the time of the investigations.
Personally, I have known of no public office on which greatest public trust and confidence is reposed that the office of a Judge, deciding as it were, the legal rights and obligations between members of the public inter se, and between such members and the public authorities that govern them, to the extent of deciding matters of life and death. The office of a Judge is therefore, one office from which the public expect the highest standards, both in capacity and in attitude. These standards are what must be required of both people who aspire to, and those who occupy the office of a Judge.
It is for all the reasons stated above and those stated in the judgment of this Court delivered earlier today in the sister appeal no. CA/ABJ/611/2017: HON. OLUSEGUN OLAYINKA TOKODE v NJC, that I resolve the first issue in this appeal against the Appellant, and hold that the recommendation of the 3rd Respondent and the confirmation of the said recommendation by the 1st Respondent that the Appellant be dismissed from office as a Judge of the Federal High Court on account of having conducted only one (1) case out of six (6) cases submitted by him for appointment, is valid and constitutional as what the Appellant did relates to his appointment as a judicial officer and not his role as a legal practitioner and as such he need not be first investigated and tried for professional misconduct by the LPDC.
ISSUE 2: Whether the lower Court was right when it held that the use of the word “dismissal” by the Respondent instead of “removal” as used by the Constitution amounted to mere “hair splitting” not of any significance. (Ground 2).
On this issue, learned Senior Counsel for the Appellant had submitted that if it is conceded that the recommendation of the 3rd Respondent which was subsequently confirmed by the 1st Respondent fall within the grounds of Section 292(1)(b) of CFRN 1999, the Respondents must still cross the hurdle of the nature and scope of the recommendations and confirmation. According to the learned Silk, the recommendation must fall within the ambit of “removal” as provided in the subsection and no more. He argued that the 1st and 3rd Respondents have no power under the CFRN, 1999 to determine the nature of such removal, whether be it compulsory retirement or dismissal, because the provision of compulsory retirement had already been made in Section 291(2) of CFRN 1999. He posited that the 1st and 3rd Respondents cannot compulsorily retire or dismiss a judicial officer and urged the Court to bring to an end the practice of determining the nature of removal by classifying it as either dismissal or compulsory retirement.
He also urged the Court to resolve this issue in favour of the Appellant and hold that the recommendation and confirmation of the Appellant’s dismissal is unconstitutional being outside the purview of the powers of the 1st and 3rd Respondent in Section 292(1)(b) of CFRN 1999.
On his part, learned Counsel for the 1st and 2nd Respondents submitted that the 3rd Respondent had in its bid to carry out its constitutional duties enacted the Judicial Discipline Regulations which governs allegations and complaints of misconduct against judicial officers and proceedings initiated in exercise of its powers pursuant to Part 1 of the Third Schedule of CFRN 1999. He argued that the misconduct envisaged includes conduct prejudicial to the effective and expeditious administration of the business of Courts or any conduct described as misconduct in the constitution or the code of conduct for judicial officers of superior Courts.
Learned Counsel submitted that the trial Judge was right to have dismissed the Appellant’s suit as the 3rd Respondent acted judicially within its constitutions powers and the allegations against the Appellant were found to be true. He added that the trial Court did not occasion any miscarriage of justice to the Appellant.
On behalf of the 3rd Respondent, it was submitted that the 3rd Respondent is not bound to use constitutional expressions so long as the effect will be the same. He pointed out that what is not clear is that the particular expression used by the 3rd Respondent to convey its recommendation to the 1st Respondent had used the expression “dismissal” and the 1st Respondent converted it to “compulsory retirement”, while the Constitution used the expression “removal”. He submitted that all have the same effect and the trial Judge was right to have held so at page 782 of the Record of Appeal. He pointed out that the word removal also means dismissal and relied on the case of MAURICE DUMBO & ORS v CHIEF STEPHEN IDUGBOE (1983) LPELR-964(CA). He also posited that even if the 3rd Respondent used the word dismissal in its recommendation, the 1st Respondent is at liberty to accept of reject. He relied on NJC v ALADEJANA (supra), and urged the Court to resolve this issue in favour of the 3rd Respondent.
RESOLUTION OF ISSUE 2:
From the arguments and submissions of the learned Senior Counsel for the Appellant, it appears he has misconceived and mixed the constitutional provisions relating to retirement, removal and indeed the process of discipline of judicial officers. In trying to draw a seemingly impossible line between “removal” as used in Section 292(1)(b) of CFRN and the words “dismissal” and “compulsory retirement” stated in the recommendation of the 3rd Respondent and the confirmation by the 1st Respondent, the learned Silk had confused the provision of Section 291(2) of CFRN, 1999 by positing that it provides for voluntary and compulsory retirement. (See paragraph 4.15 of the Appellant’s Brief of Argument).
As far as I know, exit from public office generally may be voluntary, statutory and as a result of compulsion. A look at the provisions of Section 291(2) relied upon by the Senior Counsel for the Appellant shows that the provision provides an option for every judicial officer of superior Court of record other than of Supreme Court and the Court of Appeal to leave office by way of voluntary retirement from the time he attains sixty years, otherwise he shall statutorily retire when he attains the age of sixty five years. Apart from that, the judicial officer may also be compulsorily retired pre-emptory to the statutory period, usually as a result of disciplinary action against the judicial officer. Therefore, the provision of Section 291(2) of CFRN relates to retirement. However, the Section does not foreclose the option for judicial officers to also voluntarily resign at any time before the period when they may reach the age of voluntary retirement or statutory retirement. Therefore, that Section only related to retirement of judicial officers. It has only but a little relationship with “removal”, of which I shall soon explain.
On the relationship between “removal” as used in Section 292(1)(b) of CFRN, 1999 and “dismissal” or “compulsory retirement”, the learned trial Judge had in his judgment held at pages 781–783 of the Record of Appeal as follows:
“In my view, the findings and conclusions in Suit No. FHC/ABJ/CS/1240/2017 bind the parties in this suit, and I see no reason to issue a separate opinion. For the avoidance of doubt, as I held in that case, the 3rd Defendant acted properly and validly within its powers in all the steps it took in recommending to the 1st Defendant the compulsory retirement of the Plaintiff as a Judicial Officer by reason of the underlying infraction which informed such recommendation. For good measure, the 3rd Defendant having been found in Suit No. FHC/ABJ/CS/1240/2017 to have acted lawfully and constitutionally in making the recommendation, my view is that looking at the tenor of Section 292(1)(b) of the 1999 Constitution, the 1st Defendant also properly exercised its powers in accepting the recommendation. Other than a play with semantics, I do not see how the words “compulsory retirement” as used in the said recommendation is at variance or violates Section 292(1)(b) of the Constitution simply because the word “removal” was what was used in the said constitutional provision. In my view the expressions “removal” and “compulsory retirement” are both logical, legal and functional equivalents in so far as the import is the termination or disengagement of a judicial officer from office before the period of the said officer is statutorily or voluntarily bound to leave office.
In any event, my belief is that although the 1st Defendant is the constitutional appointing authority, the provisions of the Constitution by the Section 292(1)(b) thereof have been structured in such a manner that denies the 1st Defendant of the power to audit the recommendations made to him by the 3rd Defendant. It therefore follows that once a finding has been made that a recommendation for removal or compulsory retirement by the 3rd Defendant is constitutionally valid, as have already been done in this case following Suit No. FHC/ABJ/CS/1240/2017, the acceptance of that recommendation by the 1st Defendant can also not be found to be legally and constitutionally wanting.”
In my considered view, the above decision of the learned trial Judge cannot be faulted. I only need to add that within the context of this case, Blacks Law Dictionary, 6th Edition at page 1295 defined “removal from office” as “deprivation of office by act of competent superior officer acting within scope of authority.” In this content therefore, it will be right to the interpret the word “removal” as used in Section 292(1)(b) of CFRN, 1999 to mean deprivation of office of a Judge by a competent authority, (this time, the 3rd and 1st Respondents), acting within the scope of authority (which is recommendation for removal by the 3rd Respondent to the 1st Respondent and confirmation of such removal by the 1st Respondent as empowered by the same Section. Such a removal (deprivation of office) may then logically be by the various forms of “temporary suspension”, “compulsory retirement” or even “dismissal”, depending on the disciplinary measure adjudged by the removing authority to be commensurate punishment for the infraction of the judicial officer. Therefore, the only relationship between Section 292(1)(b) and Section 291(2) misconceivably relied upon by the Appellant therefore is that “compulsory retirement” as a mode of “removal” of judicial officers under Section 292(1)(b) is also a form of forced retirement, though neither voluntary nor statutory. Where a judicial officer has attained the period of service specified inSection 291(3) before he is compulsorily retired, he will then be entitled pension right as provided in the Subsection. Other than that relationship, there is no nexus between Section 291(2) of CFRN and the issue of removal of the Appellant under Section 292(1)(b) of CFRN which, in my respectful view, has been rightly interpreted and adjudged by the learned trial Judge.
It is for all the foregoing reasons that I also resolve the second issue in this appeal against the Appellant and hold that the trial Court was right when it held that the recommendation by the 3rd Respondent and the confirmation by the 1st Respondent that the Appellant be ‘dismissed’ from office rather than just being ‘removed’ still comes within Section 292(1)(b) CFRN 1999 as the distinction between “dismissal” and “removed” amounts to mere ‘hair splitting’.
ADOPTION OF THE DECISION IN CA/ABJ/611/2018 AS RESOLUTION TO ISSUES 3 – 7 OF THIS APPEAL:
As stated in the earlier part of this judgment, grounds 3–7 contained in the Notice of Appeal, which are also made issues 3–7 of the Appellant’s Brief of Argument have been effectively resolved by this Court in the sister Appeal No. CA/ABJ/611/2018: HON. JUSTICE OLUSEGUN OLAYINKA TOKODE v NJC, which judgment was delivered earlier today. As this Court and the parties are bound by that decision, I can only adopt in toto our decision in that appeal as a resolution of issues 3–7 of this appeal. Suffice it for me to state that since those issues have been resolved against the Appellant, all the issues in this appeal have also been resolved against the appellant. This appeal therefore also fails. It is accordingly hereby dismissed for lack of merit, that judgment of the trial Court is hereby affirmed. I make no order is made as to cost.
IGNATIUS IGWE AGUBE, J.C.A.: I had the privilege of reading in draft, the lead judgment just delivered by my learned Brother, 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 while the judgment of the lower Court delivered by Honourable Justice Nnamdi O. Dimgba on the 22nd of November, 2018 is hereby affirmed. I abide by the Order as to costs.
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)
Ngosoo T. A. Esq., for the 1st and 2nd Respondent
3rd Respondent absent and unrepresented For Respondent(s)
