YEP & ANOR v. SAMUEL & ORS
(2020)LCN/15822(CA)
In The Court Of Appeal
(YOLA JUDICIAL DIVISION)
On Monday, June 15, 2020
CA/YL/167/2018
Before Our Lordships:
Chidi Nwaoma Uwa Justice of the Court of Appeal
James Shehu Abiriyi Justice of the Court of Appeal
Abdullahi Mahmud Bayero Justice of the Court of Appeal
Between
1) HON. JOHN B. YEP 2) HON. HASSAN YAJI APPELANT(S)
And
1) HON. CHRISTOPHER D. SAMUEL 2) HON. USMAN G. BUBA 3) HON. ABUBAKAR AHMADU NGAH 4) HON. CYPRIAN FIMCHIM 5) HON. OBADIAH CHALAH 6) HON. ADAMU UMARU 7) HON. IBRAHIM DABO 8) HON. YAU S. DANFULANI 9) HON. UMAR IMAM 10) HON. HAMIDU ISMAILA 11) HON. GODWILL SOL. (REV) 12) SARDAUNA LOCAL GOVT. LEGISLATIVE COUNCIL 13) THE ATTORNEY GENERAL OF TARABA STATE 14) ELKANAH MASHI 15) BARRISTER DONALD DABON RESPONDENT(S)
RATIO:
POSITION OF LAW ON THE CONCLUSION OF A JUDGMENT
A conclusion in a Judgment ought to be very cogent, clear, specific, unambiguous and capable of easy digestion – Senator Amange Nimi Barigha v. Peoples Democratic Party & Ors. (2012) LPELR-19712. ABDULLAHI MAHMUD BAYERO, J.C.A.
WHEN AN APPELLATE COURT CAN REFORMULATE THE ISSUES BEFORE THEM
The Law has long been settled on this point. In Okeke v. State (2016) LPELR-26057 (SC) the Apex Court had this to say:
“Clearly what was the focus of the Court below was substantial justice which that Court was not prepared to sacrifice for technical justice…. Stated in another way is that the Court of all cadres should be mindful of the paramount interest of justice and the right of a litigant to be protected even in the face of an improperly crafted process presented in a clumsy inarticulate way. Therefore, the Court has to bring out with clarity what it is dealing even if it means reformulating the issues so long as they are not outside that presented in a clumsy inarticulate way…” ABDULLAHI MAHMUD BAYERO, J.C.A.
THE PRINCIPLE OF FAIR HEARING
In Mr. Bernard Ojiefor Longe v. First Bank of Nigeria Plc. (2006) LPELR-(CA) 44-47 Salami, JCA (as he then was) stated:-
“I want to ask myself whether he ought to have been heard before his suspension. The appellant was suspended and eventually removed because it became necessary to do so… It is a desperate situation which demands drastic action. It cannot wait for legal finesse such as fair hearing or natural justice. That can wait… the appellant will not be entitled to hearing prior to the suspension. The principle of fair hearing, at this stage, at least is shut out. In such circumstance, the long line of authorities are to the effect that the principle of natural justice is kept in abeyance…” ABDULLAHI MAHMUD BAYERO, J.C.A.
MEANING OF THE WORD SUSPENSION AND PRINCIPLE OF NATURAL JUSTICE
While reaching the above decision, Salami (JCA as he then was) quoted the notorious English case of Lewis v. Heffer & Sons (1978) 3 All ER 254 at 364 where the famous Law Lord, Denning stated thus:
“Very often irregularities are disclosed in a government department or in a business house; and a man may be suspended on full pay pending inquiries. Suspension may rest on him; and so he is suspended until he is cleared of it. No one so far as I know, has ever questioned such a suspension on the ground that it could not be done unless he is given notice of the charge and an opportunity of defending himself, and so forth. The suspension in such a case is merely done by way of good administration. A situation has arisen in which something may be done at once. The work of the department or the office is being affected by rumours and suspicions. The others will not trust the man. In order to get back to proper work, the man is suspended. At that stage the rules of natural justice do not apply.”
In placing a definite seal on the above enunciated principle, the Supreme Court also relying on the dictum of Lord Denning in Lewis v. Heffer & Sons (supra.) held thus in Bernard Ojiefor Longe v. First Bank of Nigeria Plc. (2010) LPELR-1793 (SC):
“The word ‘suspension’ means a temporary privation or deprivation, cessation or stoppage of or from, the privileges and rights of a person. The word carries or conveys a temporary or transcript disciplinary procedure which keeps away the victim or person disciplined from his regular occupation or calling either for a fixed or terminal period or indefinitely. The disciplinary procedure gives the initiation of the discipline a period to make up his mind as to what should be done to the person facing the discipline. Although in most cases, suspension, results in a disciplinary action, it is not invariably so. There are instances when the authority decides not to continue with the matter. This could be because the investigations did not result in any disciplinary conduct.” ABDULLAHI MAHMUD BAYERO, J.C.A.
ABDULLAHI MAHMUD BAYERO, J.C.A. (Delivering the Leading Judgment): By an Originating Summons dated the Appellants/Plaintiffs sought for the following declarations against the Respondents/Defendants:-
1. An order of this Court declaring the act of 1st to 15th defendants in purporting to suspend the plaintiffs and thereafter proceed to investigate them as unconstitutional, illegal, null and void ab initio.
2. An order of this Court vacating the 11th defendant from office as acting chairman of Sardauna Local Government Council.
3. An order of this Court restraining the 11th defendant from continuing to parade himself as acting chairman of the Sardauna Local Government Council.
4. An order of this Court declaring the acts of the 1st to 11th defendants in constituting the 2nd, 5th , 8th, and 15th defendants as adhoc committee to investigate the Plaintiffs as unconstitutional, illegal, null and void.
5. An order of this Court declaring the extension of the suspension of the plaintiffs by the defendants from their elected offices as unconstitutional, illegal, null and void.
The Appellants are the elected Chairman and Vice Chairman of Sardauna Local Government Council of Taraba State who were elected for tenure of three years from 28/02/2017 the date they were sworn in into office. The 1st to 12th Respondents (the Councillors of the Local Government) served the Appellants with a suspension letter dated 27/072017 for a period of three months. After the expiry of the three months suspension, the Governor of Taraba State extended the suspension for an indefinite term by a letter dated 24/10/2017. The lower Court heard and dismissed the case of the Appellants.
Dissatisfied, the Appellants filed the Notice of Appeal on 1/11/2018 with five (5) grounds of Appeal. The record of Appeal was transmitted to this Court on 4th December, 2018, the Appellant’s Brief of argument was filed on 4/12/2018. The 1st to 12th, 14th and 15th Respondents’ Brief was filed on 4/03/2019. The 13th Respondent’s Brief of argument was filed on 12/02/2019. At page three (3) of the 1st to 12th, 14th and 15th Respondents Brief they raised a Preliminary Objection to the competence of some of the grounds of Appeal. We however observed that the P/Objection was not properly brought before us. For clarity purposes, the Court of Appeal Rules 2016 especially Order 10 Rule (1) provides thus:
“A Respondent intending to rely upon a Preliminary Objection to the hearing of the Appeal, shall give the Appellant three clear days’ notice thereof before the hearing, setting out the grounds of objection, and shall file such notice together with twenty copies thereof with the registry within the same time.”
A careful look at the Preliminary Objection filed by 1st – 12th,14th and 15th Respondents on 4/03/2019 falls short of the requirements of Order 10 Rule 1 as reproduced above. The objection contained the grounds and the particulars of errors as if he is arguing the main appeal. It was therefore improperly raised. The Preliminary Objection is therefore incompetent and is accordingly struck out. Having overruled the Preliminary Objection, I will now proceed to determine the main Appeal. The Appellant formulated four issues for determination in this Appeal thus:-
1) “Whether under the Taraba State Local Government Law 2000, the 1st to 12th Respondents are clothed with the statutory powers to suspend the Appellants from their respective offices as chairman and vice chairman of Sardauna Local Government Council (Distilled from ground 1 of the notice of appeal)”
2) “Whether the trial Court was not wrong in law when after finding that the status of exhibit ‘D’ (the extension of suspension) is unlawful, yet proceeded to dismiss the Appellants’ suit instead of making a consequential order vacating the 11th Respondent from office. (Distilled from ground 5 of the notice of appeal)”
3) “Whether the trial Court was not wrong in law when it raised its issue 2 suo moto, and without inviting the parties to address it on same, it proceeded to dismiss the Appellants suit premised on the said issue (Distilled from ground 4 of the notice of appeal)”.
4) “Whether the trial Court was not wrong in law when it held that the Appellants need not to be accorded fair hearing by the Respondents before suspending them from their offices (Distilled from ground 2 and 3 of the notice of appeal).”
On issue one, it is submitted that the trial Court dismissed the Appellant’s suit premised on its findings that the 1st to 12th Respondents are clothed with the statutory powers under Sections 34 and 36 of the Taraba State Local Government Law 2000 to suspend the Appellants from their respective offices as elected chairman and vice chairman of Sardauna Local Government Council. He referred to pages 707 to 708 and 713 of the printed record.
According to Counsel, the trial Court was wrong in interpreting the provisions of Sections 34 and 36 of the Taraba State Local Government Law 2000 as vesting on the 1st to 12th Respondent the powers to suspend the Appellants who are democratically elected chairman and vice chairman of a Local Government Council. That there is nothing in the two provisions that can be interpreted as vesting powers on the 1st to 12th Respondents to suspend the Appellants from office.
That the purpose of Sections 34 and 36 of the Taraba State Local Government Law, 2000 is to enable the legislative council make bye-laws with respect to any matter within its legislative competence and to expose corruption, waste, inefficiencies in the administration of laws within the legislative competence of the legislative council. That the Section does not confer powers on a legislative council to suspend an elected chairman and vice chairman. According to Counsel, to impute the power to do so into the two sections as done by the trial Court only amounts to re-writing the two Sections by the trial Court. He referred to the case of Lawrence v. P.D.P (2017) Vol. 71 Pt. 1 N.S.C.Q.R 159 at 174 and Kano State House Of Assembly & Ors. v. Muhammadu Falalu Umar (2014) LPELR, CA/K/138/2006. He urged us to resolve issue one in favour of the Appellant and against the Respondents
On issue two, it is submitted that one of the issues submitted for the determination of the trial Court by the Appellants in the Originating Summons as issue 3 at page 3 of the record is whether the extension of the suspension of the Appellants from office by the respondents contained in Exhibit ‘D’ exhibited to the affidavit in support of the Originating Summons is not unconstitutional, illegal, ultra vires, null and void. That in exhibit ‘D’ the Governor of Taraba State extended the suspension of the Appellants and empowered the 11th Respondent to continue to act as acting chairman of Sardauna Local Government Council. That the Appellants prayed the trial Court in reliefs 2, 3 and 5 of their Originating Summons (see page 4 of the record) to vacate the 11th Respondent from office and restrain him from parading himself as the chairman of Sardauna Local Government Council and to declare the suspension of the Appellants as unconstitutional, illegal, null and void. That the trial Court in its judgment at Page 173 of the Printed Record declared the extension of suspension of the Appellant conveyed in exhibit D as unlawful.
It is further submitted that since the trial Court declared the extension of the suspension conveyed by exhibit D as unlawful, the trial Court was on a wrong footing in dismissing the Appellants claim in its entirety. That this is more so when reliefs 2, 3 and 5 are consequential reliefs that must flow from resolution of question 3 (at page 3 of the record) in favour of the appellants. He urged this Court to invoke Section 15 of the Court of Appeal Act and make the necessary order that the justice of the case demands.
On issue three, it is submitted that the trial Court raised two issues for determination at page 705 of the record. Issue 2 thereof reads: “Whether the 1st to 12th Defendants as members of the 12th Defendant have power to investigate the Plaintiffs in their conduct of the affairs of Sardauna Local Government Council as Chairman and vice Chairman”.
That issue 2 raised above by the trial Court was raised suo moto as the Appellants never raised it. That the Appellants in their Originating Summons at Pages 3 to 4 raised four issues for the determination of the trial Court. That the lower Court did not invite Counsel on both sides to address it on the issue so raised. He referred to the case of Ojukwu v. Yaradua (2009) Vol. 38 (Pt. 1) N.S.C.Q.R. 492 at 596 and urged the Court to resolve issue three in favour of the Appellants and against the Respondents.
As to issue four, it is submitted that the trial Court was wrong when it held that there was no need for the Respondents to comply with the twin principle of fair hearing audi alteram partem and nemo judex in causasua.
That in the peculiar circumstance of this case, the Appellants were elected into office for a three year tenure, their suspension and extension of suspension for indefinite period will erode their three years tenure. Such suspension according to Counsel, cannot be described as a temporary disciplinary measure as the trial Court held.
It is submitted that since it is the 1st to 11th Respondents that levied the sixteen count allegations against the Appellants as contained in exhibit ‘A’ (see pages 12 to 16), then none of them can qualify to be a member of a committee to investigate the Appellants. That the inclusion of the 2nd, 5th and 8th Respondents as members of the committee clearly shows that the Respondents will be judges in their own case thereby breaching the principle of Fair Hearing as enshrined in Section 36 (1) of the Constitution of the Federal Republic of Nigeria 1999 (As amended).
We are urged to order the 1st to 13th Respondents to pay the salaries of the Appellants from the month of July 2017 to date with all other allowances due to them citing the case of Eze v. Governor of Abia State (2014) Vol. 60 N.S.C.Q.R. 407 at 448; allow the Appeal, set aside the Judgment of the lower Court and grant the reliefs claimed by the Appellants. In the response filed in the Brief of arguments of the 1st – 12th, 14th, and 15th Respondents, the following four issues were formulated for determination:-
(1) Whether the 12th Respondent acting under the provision of Section 36 of the Taraba State Local Government Law, 2000 (as amended), can be said to have rightly suspended the Appellants to make way for the investigation of the allegations levelled against them? (Distilled from ground 1).
(2) Whether the Appellants were entitled to be given a hearing before their suspension? Distilled from grounds 2 and 3.
(3) Whether issue two was actually raised suo motu to have warranted the Appellants to be heard before its resolution by the honourable lower Court? (Distilled from ground 4).
(4) Whether the trial Court did find that Exhibit D was issued by the Respondents illegally to have warranted the issuance of the consequential order vacating the 11th Respondent from office? (Distilled from ground 5).
On issue one, it is submitted that ground one of the grounds of Appeal as formulated by the Respondent, gives the case of the Appellants before this Court a different colouration from the case fought in the Court below. That the case of the Appellants at the lower Court was not that the 12th Respondent had no vires to suspend them. Their case was simply that the 12th Respondent could not have properly suspended them without complying with Section 40 of the Taraba State Local Government Law, 2000 (as amended) and without giving them a hearing. Counsel place reliance on the affidavit in support of the originating summons, deposed to by the 1st Appellant himself, particularly paragraphs 7-14 thereof as well as the issues submitted for determination.
That the issues for determination relative to the suspension could be gleaned from page 3 of the Printed Record.
According to Counsel, the resolution of issue one formulated by the lower Court to the effect that the 12th Respondent’s act of suspending the Appellants was lawful, legal and within the purview of Sections 34 and 36 of the enabling law was relative to the case of the Appellants that their suspension without compliance with Section 40 of the enabling law, that is to say without following the impeachment procedure was illegal. That it was not made at large. He referred to Pages 705-706 of the Printed Record. That the lower Court proceeded to hold that the Appellants were not entitled to be heard before the suspension and as such suspending them without a hearing was lawful as shown at Pages 708-709 of the Printed Record.
According to Counsel, in formulating issues for determination before the Appellate Court, a Counsel ought to take into cognizance the pleaded and contested facts read together with the reasons and conclusions of the lower Court. He called in aid the case of Mr. Valentine Chris Ogar Eneji & Ors. v. Ajor Idagu Agaji & Ors (2012) LPELR-9239 at 11 Paras. C-E (CA) and E. O. Fasoro & Anor v. Olalere A. Beyioku & Ors (1988) LPELR-1249, Para A (SC).
Counsel further submitted that the power to suspend flows from the power of the 12th Respondent to investigate. That it would be antithetical to public interest or inverse reasoning for the Appellants to insist on remaining in their offices during investigation of the 16 allegations made against them. That the exercise of discretion to suspend the Appellants for the enablement of free and fair execution of the power under Section 36 is implied and was properly exercised. He referred to the case of Bernard Amasike v. The Registrar-General Corporate Affairs Commission & Anor (2005) LPELR- 5407 57 Paras. F-G.
As regards the case of The Kano State House of Assembly & Ors v. Muhammadu Falalu Umar (Supra) relied upon by the Appellants at Paragraphs 9.0 – 10.0 of the Appellant’s Brief, it is submitted that apart from the fact of that case are at variance with the instant case, this Court was not called upon to make pronouncement on the suspension of the Respondents.
On issue two, it is submitted that the crux of the Appellants’ case as can be deduced from the affidavit in support thereof was that they were suspended under Section 40 of the Taraba State Local Government Law, 2000, without being heard on the allegations contained in Exhibit ‘A’. According to Counsel, the suspension handed down to the Appellants was to pave way for effective investigation under Section 36 of the enabling Law, that it is a temporary or transient disciplinary procedure aimed at keeping away a person from his regular place of work during investigation. He referred to the cases of Bernard Ojeifor Longe v. First Bank of Nig. Plc. (2010) LPELR-1793 (SC), Chris Ehikioya Eigbe v. Nigerian Union of Teachers (2007) LPELR-8310 at 27 Paras. B-D(CA) and Benedict Hirki Joseph v. First Inland Bank Nig. Plc. (2009) LPELR-8854 at 49 Paras. A-B.
Counsel further submitted that by the dint of Section 34(1) of the enabling Law, the Committee envisaged to be set up by the 12th Respondent is that of its members, therefore the inclusion of the members of the 12th Respondent which is the gravamen of issue 4 submitted for determination before the lower Court was uncalled for. The section provides thus:
34 (1) “A Legislative Council may appoint a committee of its members for any special or general purpose as in its opinion would be better regulated and managed by means of such a committee, and may by resolution, regulation or otherwise as it thinks fit delegate any functions exercisable by it to any such committee”.
On issues 3 and 4, Counsel submitted that they do not intend to waste the precious time of this noble Court in advancing long argument on these issues. That those issues are anchored on wrong/inexistent premise taking into cognizance the grounds upon which they are cast. He urged this Court to ignore the arguments thereon in their entirety and dismiss the Appeal for want of diligent prosecution. In his response, Counsel to the 13th Respondent submitted that the 13th Respondent submitted three issues for determination thus:-
1. “Whether by virtue of the Taraba State Local Government Law of 2000 and other enabling Legislation the 1st to 12th Respondents have power to suspend a Local Government Chairman and his Vice pending investigation of allegations of gross misconduct against them.” Distilled from grounds 1 and 5 of the Appellant’s Ground of Appeal.
2. “Whether it is in all circumstances when a Court raises an issue suo motu that it must invite parties to address her on same”. Distilled from ground 4.
3. “Whether suspension of the Appellants by the 12th Respondent pending investigation without first hearing the Appellants amounts to breach of their right to fair hearing.” Distilled from grounds 2 & 3.
On issue one, it is submitted that without doubt the 1st to 12th Respondents (particularly the 12th Respondent i. e. Sardauna Local Government Legislative Council) has the power to investigate the Appellants by virtue of Section 36 of the Taraba State Local Government Law, 2000. The said section provides thus;
36(1) “Subject to the provisions of this Law, a legislative Council shall have power by resolution published in its journal to direct or cause to be directed an inquiry or investigation into;
a. Any matter or thing with respect to which it has power to make Bye-Laws.
b. The conduct of the affairs of any person, authority or government department charged, or intended to be charged with the duty of or responsibility for:
i. Executing or administering bye-laws made by the Legislative Council; and
ii. Disbursing or administering moneys appropriated by such Legislative Council.
36(2) The powers conferred on a Legislative Council under the provision of this section are exercisable only for the purpose of enabling the Legislative Council to:
a. Make bye-laws with respect to any matter within its legislative competence and correct any defects in existing bye-laws; and
b. Expose corruption, inefficiency or waste in the execution or administration of Laws within its Legislative competence and in the disbursement or administration of funds appropriated by it.”
That the Law having clothed the 12th Respondent with the power to investigate and unravel corruption in the administration of the Local Government Council, it naturally follows that the powers to do other things reasonably incidental to the attainment of the set out objective is inbuilt. According to Counsel, contrary to the Appellants Counsel’s submission that the Executive Governor of Taraba State extended the Suspension of the Appellants, Exhibit ‘D’ only communicated the resolution of the 12th Respondent to the acting Chairman of Sardauna Local Government Council.
As regards issue two, it is submitted that the law is settled on the issue that whenever a Court raises an issue suo motu, the parties must be given an opportunity to be heard on such a point. That the Appellants have argued at page 10 of their Brief that the trial Judge raised two issues for determination without giving parties opportunity to address him on them particularly issue No. 2. (See page 705 of the Record of Appeal). That issue two formulated by the Court reads thus:-
“Whether the 1st to 12th defendants as members of the 12th defendant have power to investigate the Plaintiffs in their conduct of the affairs of Sardauna Local Government Council as Chairman and Vice Chairman.”
That a close look at the case of the parties before the trial Court will certainly reveal that the above issue as formulated by the trial Court was not strange to the case of the parties so as to warrant any party to be specially called upon to address the Court. That this assertion is further boosted by the Plaintiffs’ (now Appellants) relief 1 as can be seen at page 687 of the Records. That the said relief reads thus:-
“An ORDER of this Court declaring the act of the 1st to 15th Defendants in purporting to suspend the Plaintiffs and thereafter proceed to investigate them as unconstitutional, illegal, null and void ab initio.”
That the issue as formulated by the trial Court was nothing new to the case of the parties in that the Defendants at the trial Court while relying on Section 36 of the Taraba State Local Government Law, 2000 had argued the issue of the power of the 1st to 12th Respondents to investigate the Appellants. He referred to the cases of Ighodaro v. Iyayi (2015) LPELR-24906 (CA); Unity Bank Plc. v. Bouari (2008) All FWLR (Pt. 416) and Sanusi v. Ameyogun (1992) 4 NWLR (Pt.237) 327. On issue three, it is submitted that suspension pending investigation does not amount to breach of one’s right to fair hearing. According to Counsel, the 1st to 12th Respondents (particularly the 12th Respondent i. e. Sardauna Local Government Legislative Council) has the power to investigate the Appellants by virtue of Section 36 of the Taraba State Local Government Law, 2000. That as earlier posited, if the Law empowers to investigate and checkmate, it is correct to say that the power to suspend is inherent. That upon the premise of the suspension, the Appellants are alleging breach of fair hearing on the ground that they were not heard before the suspension. According to Counsel as highlighted in the cases of Bernard Ojiefor Longe V. First Bank of Nigeria Plc. (Supra); Lewis v. Heffer & Sons (Supra) and University Of Calabar Teaching Hospital & Anor. v. Juliet Koko Bassey (2008) LPELR-8553 (CA) 30-31 Paras. C-D, the principle of natural justice must be kept in abeyance under such circumstances and urged this Court to so hold.
I will determine this Appeal based on the four issues formulated by the Appellant which the 1st to 12th, 14th and 15th Respondents and the 13th Respondent adopted.
The first issue for determination is “Whether the 12th Respondent acting under the Provision of Section 36 of Taraba State Local Government Law, 2000 (as amended), can be said to have rightly suspended the Appellants to make way for the investigation of the allegations levelled against them”.
For clarity purposes Section 36 (1) of the Taraba State Local Government Law provides:-
“Subject to the provisions of this Law, a legislative Council shall have power by resolution published in its journal to direct or cause to be directed an inquiry or investigation into;
a) Any matter or thing with respect to which it has power to make Bye-Laws.
b) The conduct of the affairs of any person, authority or government department charged or intended to be charged with the duty of or responsibility for:
i) Executing or administering bye-laws made by the Legislative Council; and
ii) Disbursing or administering moneys appropriated by such Legislative Council.
36 (2) That powers conferred on a Legislative Council under the provision of this section are exercisable only for the purpose of enabling the Legislative Council to:
a) Make bye laws with respect to any matter within its legislative competence and correct any defects in existing bye-laws and
b) Expose corruption, inefficiency or waste in the execution or administration of Laws within its Legislative competence and in the disbursement or administration of funds appropriated by it”.
The case of the Appellants at the lower Court was that the 12th Respondent could not have suspended them without complying with Section 40 of the Taraba State Local Government Law, 2000 (as amended) without giving them a hearing. This is reflected at Paragraphs 7-14 of the affidavit in support of the Originating Summons deposed to by the 1st Appellant thus:
“7. That on the 27th day of July, 2017 the Defendants served a letter dated 27th July, 2017 on me and the 2nd Plaintiff wherein they made about sixteen allegations against us. A copy of the letter is attached to this affidavit and marked exhibit ‘A’.
8. That at Page 5 of exhibit ‘A’, the last paragraph thereof the Defendants conveyed to us that we have been suspended from our respective offices of Chairman and vice Chairman for three months.
9. That the Defendants did not give us the opportunity to respond to the sixteen count allegations made against us by the Defendants in exhibit A.
10. That the Defendants did not give the Plaintiffs the opportunity to explain our own side of the story as the allegations in exhibit A came with suspension.
11. That the Defendants did not inform us of the persons that made the allegations against us.
12. That the Defendants did not follow any laid down procedure under Section 40 of the Taraba State Local Government Law, 2000 before suspending us.
13. That there was no committee set up to investigate the numerous allegations contained in exhibit A as laid down in Section 40 of the Taraba State Local Government Law, 2000.
14. That the Defendants neither invited us to appear before it to clarify ourselves on the allegations nor did the Legislative Council set up any committee to investigate the allegations”.
From the provision of Section 36 of the Taraba State Local Government Law, 2000 it automatically follows that the power to suspend flows from the power of the 12th Respondent to investigate. Furthermore, Section 36 does not bar the 12th Respondent whether expressly or impliedly from exercising its discretion. In the case of Amasike v. The Registrar –General, Corporate Affairs Commission & Anor. (2005) LPELR- 5407 at 57 Paras. F-G this Court held:
“Unless a statute which confers expressly or by necessary implication exclude the exercise of discretion or the duty demanded is such that leaves no room for discretion, discretionary powers are implied and whenever appropriate, exercised for salutary ends. See Fawehinmi v. I.G.P (2002) 7 NWLR (Pt. 767) 606 at 671 Paras B-C”.
The action of the 12th Respondent in suspending the Appellants pending investigation of corruption and inefficiency was rightly done. Issue one is therefore resolved in favour of the Respondents and against the Appellants.
Issue two is:
“Whether the trial Court did find that Exhibit D was issued by the Respondents illegally to have warranted the issuance of the consequential order vacating the 11th Respondent from office?
A careful perusal of the Judgment of the lower Court will reveal that the only place where mention is made of Exhibit D relative to the finding of the Court below is the tail end of the Judgment. At page 713 of the printed record the Court held thus:-
“On the whole, the Court adjudged the suspension of the plaintiffs by the 12th Defendant on the basis of the resolution of the 1st to 11th Defendants to be lawful, legal and within the purview of law. Also the constitution of a committee by the 12th Defendant to investigate the Plaintiffs as contained in Exhibit ‘A’ is within the contemplation of law and therefore same was lawful and accordingly, the 12th Defendant acted within the law i.e. Section 34 of the Local Government Law of Taraba State, 2000 notwithstanding the status of exhibit “D” which is no doubt is unlawful”.
A conclusion in a Judgment ought to be very cogent, clear, specific, unambiguous and capable of easy digestion – Senator Amange Nimi Barigha v. Peoples Democratic Party & Ors. (2012) LPELR-19712. The conclusion of the lower Court “…..which is no doubt is unlawful” reveals incoherence as to what the lower Court is actually saying. This obviously results from a slip which hinders the expression of the manifest intention of the trial Judge. That slip cannot be the ratio decidendi of the Judgment because from the printed record issues were not joined by the parties as to the validity or lawfulness of the issuance of Exhibit ‘D’. This can be discerned from the two issues formulated by the Court and even the issues submitted to the lower Court by the Appellants for determination (page 705 of the printed record). Any issue outside them is extraneous and incapable of defining the Judgment. The consequences therefore is that such conclusion would only qualify as an Obiter Dictum and is not appealable – Senator Ita Solomon Enang v. Obong Nsima Umoh & Ors (2012) LPELR-8386 (CA) this Court held that:-
“An Obiter dictum is an observation which is not related to the issues submitted to that Court for resolution or determination. It is a view expressed by the Court which does not affect its decision on the issues that arise to be decided in the case… However whether Obiter dictum or dissenting, such observations, opinions or views would not be the decision of the Court in the case, and so cannot be and do not amount to a binding authority in respect of the issues decided by the Court”.
From the Judgment of the lower Court, the Court did not expressly stated that Exhibit ‘D’ was issued illegally as concluded by the Appellants in ground 5. This is because the pronouncement of the lower Court:- “notwithstanding the status of exhibit “D” which is no doubt is unlawful” reveals incoherence as to what the lower Court is actually saying. The afforested aspect of the Judgment is meaningless and it is not for the Appellants to ascribe to it a meaning that best serves their interest. Issue two is therefore resolved in favour of the Respondents and against the Appellants.
Issue three is “Whether issue two was actually raised suo motu by the lower Court to have warranted the Appellants to be heard before its resolution by the Court?
The Law has long been settled on the above issue that whenever a Court raises a point suo motu, the parties must be given an opportunity to be heard on such a point, particularly the party that may suffer some disadvantage or disability as a result of such a point raised suo motu. This approach will ensure not only that the parties are given fair hearing but that justice is seen to have been done in accordance with the principle of the audi alteram patem rule. However, this must not be misconstrued with the ample privilege a Court enjoys to redraft an issue in a manner to show the light to what is really in controversy in the interest of justice and to enable the Court find accuracy, clarity and brevity in doing substantial justice to the case at hand.
The Appellants have argued at page 10 of their Brief that the trial Judge raised two issues for determination without giving parties opportunity to address him on them particularly issue No. 2. (See page 705 of the Record of Appeal). The issue two formulated by the Court reads thus;
“Whether the 1st to 12th Defendants as members of the 12th Defendant has power to investigate the Plaintiffs in their conduct of the affairs of Sardauna Local Government Council as Chairman and Vice Chairman.” A close look at the case of the parties before the trial Court will certainly reveal that the above issue as formulated by the trial Court was not strange to the case of the parties so as to warrant any party to be specially called upon to address the Court. This assertion is further boosted by the Plaintiffs’ (now Appellants) relief 1 as can be seen at page 687 of the Records. The said relief reads thus;
“An ORDER of this Court declaring the act of the 1st to 15th Defendants in purporting to suspend the Plaintiffs and thereafter proceed to investigate them as unconstitutional, illegal, null and void ab initio.”
Placing issue 2 formulated by the trial Court side by side the above quoted relief as couched by the Plaintiffs (now Appellants), it cannot be said that the learned trial Judge formulated a new issue to warrant being addressed by all parties on same. At page 690 of the Records, paragraph 3 reads thus:
“The Court has carefully and also with meticulousness perused the processes filed by parties in this Originating Summons, it became so apparent that the crux of the plaintiffs case as can be deciphered from the processes filed before this Court is anchored and or predicated on the plaintiffs’ suspension and the constitution of a committee by the 1st– 11th Defendants to investigate the Plaintiffs on the allegations of gross misconduct.”
The issue as formulated by the trial Court was nothing new to the case of the parties in that the Defendants at the trial Court while relying on Section 36 of the Taraba State Local Government Law, 2000 had argued the issue of the power of the 1st to 12th Respondents to investigate the Appellants. The Appellants’ Counsel misconstrued the Law and interpreted a case of reformulation of issues by the trial Court to mean raising new issues suo motu. The Law has long been settled on this point. In Okeke v. State (2016) LPELR-26057 (SC) the Apex Court had this to say:
“Clearly what was the focus of the Court below was substantial justice which that Court was not prepared to sacrifice for technical justice…. Stated in another way is that the Court of all cadres should be mindful of the paramount interest of justice and the right of a litigant to be protected even in the face of an improperly crafted process presented in a clumsy inarticulate way. Therefore the Court has to bring out with clarity what it is dealing even if it means reformulating the issues so long as they are not outside that presented in a clumsy inarticulate way…”
The case at hand therefore is not one that required parties to address the Court below as nothing new was raised by the trial Court to so warrant, rather, the trial Court only reformulated issues in the light of already made out facts in order to bring out the real questions in dispute. Issue three is therefore resolved in favour of the Respondents and against the Appellants.
Issue four is:
“Whether the suspension of the Appellants by the 12th Respondent pending investigation of allegations of gross misconduct without first hearing the Appellants amounts to breach of their right to fair hearing.”
The word suspension has come under the thorough scrutiny of the Courts of our land and the Courts have never minced words on the meaning of the phrase and its implication as it relates to fair hearing. In Mr. Bernard Ojiefor Longe v. First Bank of Nigeria Plc. (2006) LPELR-(CA) 44-47 Salami, JCA (as he then was) stated:-
“I want to ask myself whether he ought to have been heard before his suspension. The appellant was suspended and eventually removed because it became necessary to do so… It is a desperate situation which demands drastic action. It cannot wait for legal finesse such as fair hearing or natural justice. That can wait… the appellant will not be entitled to hearing prior to the suspension. The principle of fair hearing, at this stage, at least is shut out. In such circumstance, the long line of authorities are to the effect that the principle of natural justice is kept in abeyance…”
While reaching the above decision, Salami (JCA as he then was) quoted the notorious English case of Lewis v. Heffer & Sons (1978) 3 All ER 254 at 364 where the famous Law Lord, Denning stated thus:
“Very often irregularities are disclosed in a government department or in a business house; and a man may be suspended on full pay pending inquiries. Suspension may rest on him; and so he is suspended until he is cleared of it. No one so far as I know, has ever questioned such a suspension on the ground that it could not be done unless he is given notice of the charge and an opportunity of defending himself, and so forth. The suspension in such a case is merely done by way of good administration. A situation has arisen in which something may be done at once. The work of the department or the office is being affected by rumours and suspicions. The others will not trust the man. In order to get back to proper work, the man is suspended. At that stage the rules of natural justice do not apply.”
In placing a definite seal on the above enunciated principle, the Supreme Court also relying on the dictum of Lord Denning in Lewis v. Heffer & Sons (supra.) held thus in Bernard Ojiefor Longe v. First Bank of Nigeria Plc. (2010) LPELR-1793 (SC):
“The word ‘suspension’ means a temporary privation or deprivation, cessation or stoppage of or from, the privileges and rights of a person. The word carries or conveys a temporary or transcript disciplinary procedure which keeps away the victim or person disciplined from his regular occupation or calling either for a fixed or terminal period or indefinitely. The disciplinary procedure gives the initiation of the discipline a period to make up his mind as to what should be done to the person facing the discipline. Although in most cases, suspension, results in a disciplinary action, it is not invariably so. There are instances when the authority decides not to continue with the matter. This could be because the investigations did not result in any disciplinary conduct.”
The 1st to 12th Respondents (particularly the 12th Respondent i. e. Sardauna Local Government Legislative Council) has the power to investigate the Appellants by virtue of Section 36 of the Taraba State Local Government Law, 2000. If the Law empowers to investigate and checkmate, it is correct to say that the power to suspend is inherent. Upon the premise of the suspension, the Appellants are alleging breach of fair hearing on the ground that they were not heard before the suspension. As highlighted in the cases of Bernard Ojiefor Longe v. First Bank Of Nigeria Plc. (Supra); Lewis v. Heffer & Sons (Supra) and University Of Calabar Teaching Hospital & Anor. v. Juliet Koko Bassey (2008) LPELR-8553 (CA) 30-31, Paras. C-D the principle of natural justice must be kept in abeyance under such circumstances. The fourth issue is resolved in favour of the Respondent and against the Appellants. Having resolved the four issues in favour of the Respondents and against the Appellants, the Appeal failed and is hereby dismissed. The Judgment of the lower Court is hereby affirmed.
CHIDI NWAOMA UWA, J.C.A.: I agree.
JAMES SHEHU ABIRIYI, J.C.A.: I agree.
Appearances:
D. O. Ovoyenta Esq. – for Appellants For Appellant(s)
S. N. Augustine Esq., holding the brief of E. A. Ibrahim Effiong for the 1st – 12th, 14th & 15th Respondents.
C. M. Samuel Esq., with him,D.G. Baridei Esq. – for 13th Respondent For Respondent(s)
