Govs can’t re­move, ap­point CJ with­out NJC in­put -SC

Daily Trust - - LAW REPORT - MAH­MUD MO­HAMMED JSC (De­liv­er­ing the lead judg­ment on 17th Fe­bru­ary 2012):

The ac­tion that gave rise to the present ap­peal num­ber SC.281/2010 was brought by orig­i­nat­ing sum­mons filed on 6 May 2009 at the Federal High Court, Ilorin by Hon­ourable Jus­tice Raliat Elelu-Habeeb as the plain­tiff against the Na­tional Ju­di­cial Coun­cil, the Hon. At­tor­ney-Gen­eral of the Fed­er­a­tion, the Hon­ourable At­tor­ney-Gen­eral of Kwara State and the House of As­sem­bly of Kwara State as de­fen­dants. The orig­i­nat­ing sum­mons sub­mit­ted two ques­tions for de­ter­mi­na­tion fol­lowed by a re­quest of five dis­tinct re­liefs from the trial court. The ques­tions for de­ter­mi­na­tion are:

1. “Whether by the com­bined in­ter­pre­ta­tion of Sec­tion 153(1)(I) Para­graph 21 (a) of the 3rd Sched­ule and Sec­tion 271 of the Con­sti­tu­tion of the Federal Repub­lic of Nigeria, 1999. The 3rd de­fen­dant had the power to ini­ti­ate or carry out any ex­er­cise of dis­ci­plinary con­trol and or pro­ceed­ings on the plain­tiff in the ex­er­cise of pow­ers, du­ties and obli­ga­tion as oc­cu­pier of the of­fice of the Chief Judge of Kwara State.

2. Whether the let­ter of 3rd de­fen­dant dated 4 May 2009 invit­ing the plain­tiff to dis­ci­plinary pro­ceed­ing in mat­ters re­lat­ing to, con­nected with, and aris­ing from the ex­er­cise of her func­tions as the Chief Judge of Kwara State does not amount to ex­er­cis­ing the pow­ers of the 1st de­fen­dant un­der Sec­tion 153, 3rd Sched­ule, part 1, Para­graph 21 of the Con­sti­tu­tion of the Federal Repub­lic of Nigeria 1999.

While the re­liefs sought are as fol­lows:

1. “Dec­la­ra­tion that by a com­bined in­ter­pre­ta­tion of sec­tions 4, 1 53. 292 and para­graphs 20- 2 1 or the 3rd Sched­ule, part 1 of the Con­sti­tu­tion, it is only the 1st de­fen­dant that has the exclusive power and author­ity to query, com­mand, or­der or in­quire into any com­plaint against the plain­tiff aris­ing from or con­nected with the per­for­mance of her func­tions as a ju­di­cial of­fi­cer and in her of­fice as the Chief Judge of Kwara State or rec­om­mend to the gover­nor for re­moval as Chief Judge of Kwara State.

2. A dec­la­ra­tion that the let­ter of the Kwara State House of As­sem­bly dated 4 May 2009 is in breach and vi­o­la­tion of the Con­sti­tu­tion of the Federal Repub­lic of Nigeria, 1999, in­so­far as it re­lates to, con­nected with the plain­tiff in ex­er­cise of her func­tions in the of­fice of the Chief Judge of Kwara State and there­fore null and void.

3. An or­der set­ting aside, nul­li­fy­ing and putting away the de­ci­sion of the 3rd and 4th de­fen­dants (Kwara State House of As­sem­bly con­tained in the 3rd de­fen­dant’s let­ter dated 4 May 2009 and any other steps taken thereon in­so­far as it re­lates to the of­fice of the plain­tiff, as the Chief Judge of Kwara State, the same be­ing in­con­sis­tent with sec­tions 153.197.271(2; of the 3rd Sched­ule of the Con­sti­tu­tion of the Federal Repub­lic of Nigeria, 1999.

4. An or­der of per­pet­ual in­junc­tion re­strain­ing the de­fen­dants par­tic­u­larly the 2nd de­fen­dant and the Govern­ment of Kwara State by them­selves, through their of­fi­cers, priv­ies or any other per­sons de­riv­ing power, com­mand, author­ity, in­struc­tion or di­rec­tives from any of the de­fen­dants from act­ing or re­ly­ing on or con­tin­u­ing to rely on im­ple­ment, give ef­fect to or do any­thing to the prej­u­dice of the plain­tiff based on the de­ci­sion con­tained in the let­ter dated 4 May 2009 in­so­far as the de­ci­sion is re­lated to the of­fice of the plain­tiff as the Chief Judge of Kwara State.

5. An or­der of per­pet­ual in­junc­tion re­strain­ing the de­fen­dants from act­ing on the de­ci­sion aris­ing from and con­nected with the 3rd de­fen­dant’s let­ter dated 4 May 2009 and from tak­ing any ac­tion, act, de­ci­sion, con­clu­sion, di­rec­tive, com­mand and such other deeds geared to­wards the of­fice of the plain­tiff or do­ing any­thing which may have the ef­fect of en­forc­ing, con­tin­u­ing to give ef­fect to, im­ple­ment, or fi­nally putting into ef­fect, the con­clu­sions and de­ci­sion of the Kwara State House of As­sem­bly.

Tak­ing into con­sid­er­a­tion the po­si­tion of the par­ties at the trial court, the Court of Ap­peal and in this court where both ap­pel­lants/cross­re­spon­dents and the re­spon­dent/ cross-ap­pel­lants chose to pur­sue their re­spec­tive cases separately, I have de­cided to list the par­ties in this sin­gle ap­peal num­ber SC. 281/201 as fol­lows:

“1. Hon. Jus­tice Raliat EleluHabeeb - 1st ap­pel­lant/crossre­spon­dent

2. Na­tional Ju­di­cial Coun­cil - 2nd ap­pel­lant/cross-re­spon­dent and

1. The Hon. At­tor­ney-Gen­eral of the Fed­er­a­tion -1st re­spon­dent

2. The Hon. At­tor­ney-Gen­eral of Kwara State - 2nd re­spon­dent/crossap­pel­lant

3. The House of As­sem­bly of Kwara State - 3rd re­spon­dent/ crossap­pel­lant.”

Hence­forth, in this judg­ment, the par­ties shall be re­ferred to ac­cord­ing to their re­spec­tive des­ig­na­tions spec­i­fied above be­fore pro­ceed­ing to deal with the is­sues aris­ing for de­ter­mi­na­tion in the ap­peals and the cross-ap­peals re­spec­tively.

In the present case, the real is­sues raised are cen­tred around the in­ter­pre­ta­tion of the pro­vi­sions of the Con­sti­tu­tion of the Federal Repub­lic of Nigeria, 1999 pre­scrib­ing the pro­ce­dure for ex­er­cis­ing dis­ci­plinary pro­ceed­ings deal­ing with the ex­er­cise of pow­ers un­der the same con­sti­tu­tion to re­move a chief judge of a state from of­fice. I en­tirely agree that the two courts be­low were on very firm ground that the ac­tion at the trial court was cor­rectly and rightly be­gun by orig­i­nat­ing sum­mons pro­ce­dure.

The sec­ond is­sue raised by the 2nd re­spon­dent/cross-ap­pel­lant is whether the court be­low was right in en­ter­ing judg­ment on the merit in favour of the plain­tiff/ap­pel­lant/2nd re­spon­dent in that court af­ter hold­ing that the trial court lacked ju­ris­dic­tion in the mat­ter which ought to have been re­turned to the High Court of Kwara State for hear­ing.

The main ques­tion for de­ter­mi­na­tion in this sec­ond is­sue in the cross-ap­peal is whether the court be­low was right in pro­ceed­ing to take and de­ter­mine the sub­stan­tive case on its mer­its af­ter deem­ing that the trial court lacked ju­ris­dic­tion in the case that was brought be­fore it by orig­i­nat­ing sum­mons. It is quite clear from the record of this ap­peal that the 2nd re­spon­dent/cross-ap­pel­lant lost his pre­lim­i­nary ob­jec­tion to the ju­ris­dic­tion as well as the mer­its of the case by the rul­ing and the fi­nal judg­ment of the trial court. That is why the ap­peals that came to the court be­low were in re­spect of is­sues of ju­ris­dic­tion/com­pe­tence and the sub­stance of the case on merit.

In the in­stant case there­fore, when the court be­low, af­ter de­cid­ing that the trial Federal High Court lacked ju­ris­dic­tion and pro­ceeded in the al­ter­na­tive on the ba­sis that the trial court could have been right in its de­ci­sion on the is­sue of ju­ris­dic­tion to give its views and de­ci­sion on the re­main­ing is­sues raised in the

“The golden rule gov­ern­ing the in­ter­pre­ta­tion of con­sti­tu­tional pro­vi­sions is that the words used in the pro­vi­sions must prima fa­cie be given their or­di­nary mean­ing where such words are not am­bigu­ous.

grounds of ap­peal on the mer­its of the case, the court be­low, in my view, did ex­actly what this court man­dated it to do in line with the de­ci­sions in Katto v. C.B.N. and Adah v. N. Y.S. C.

In this re­spect, the court be­low was on a very solid ground and in­deed acted pru­dently by pro­nounc­ing on all the is­sues sub­mit­ted by the cross-ap­pel­lant in the ap­pel­lant’s brief of ar­gu­ment for de­ter­mi­na­tion of the court be­low. In other words, that court acted within its pow­ers un­der the law as pro­nounced by the court law­fully in the in­ter­est of jus­tice to avoid waste of time and re­sources in de­cid­ing the mer­its of the case thereby mak­ing it pos­si­ble to place the en­tire case be­fore this court for de­ter­mi­na­tion on ap­peal. The sec­ond is­sue is there­fore also re­solved against the cross-ap­pel­lant.

The 3rd is­sue in the cross-ap­peal is whether in af­firm­ing the de­ci­sion of the trial court that the Gover­nor and the House of As­sem­bly of Kwara State can­not re­move the 1st ap­pel­lant/cross-re­spon­dent as chief judge with­out re­course to the NJC the court be­low cor­rectly in­ter­preted the pro­vi­sions of Sec­tion 292 (1 )(A) (ii) of the CFRN 1999.

The is­sue for res­o­lu­tion is whether the Court of Ap­peal was right in its judg­ment in in­ter­pret­ing the pro­vi­sions of Sec­tion 292(1)(a) (ii) of the CFRN 1999 in af­firm­ing the de­ci­sion of the trial Federal High Court that the gover­nor and the House of As­sem­bly of Kwara State can­not re­move the chief judge of the State with­out re­course to the NJC. Over the years of its ex­is­tence as the apex court of Nigeria, the Supreme Court had laid down sev­eral guide­lines on the in­ter­pre­ta­tion of not only statutes but also the pro­vi­sions of our con­sti­tu­tion in many of its land­mark de­ci­sions.

The golden rule gov­ern­ing the in­ter­pre­ta­tion of con­sti­tu­tional pro­vi­sions is that the words used in the pro­vi­sions must prima fa­cie be given their or­di­nary mean­ing where such words are not am­bigu­ous. The words used in the pro­vi­sions of the con­sti­tu­tion must also be given, lib­eral in­ter­pre­ta­tion as stated in the leading cases of the sub­ject of con­sti­tu­tional in­ter­pre­ta­tion in Nafiu Rabiu v. Kano State (1980) 8 - 11 SC 130 at 149 and Se­nate of the Na­tional As­sem­bly v. Mo­moh (1983) 4 NCLR 269.

In the present case, there is no doubt what­so­ever that the dis­pute that was brought be­fore the trial Federal High Court in the orig­i­nat­ing sum­mons that was filed be­fore it in­volves the sub­ject of pro­vi­sions deal­ing with the pro­ce­dure made in the CFRN 1999 for tak­ing dis­ci­plinary ac­tion against a Chief Judge of a State found want­ing in the dis­charge of his func­tions to war­rant his re­moval from of­fice. It is there­fore nec­es­sary in my view to ex­am­ine all the rel­e­vant pro­vi­sions con­tained in the con­sti­tu­tion gov­ern­ing, the pro­ce­dure for the ap­point­ment and re­moval of ju­di­cial of­fi­cers.

To be con­tin­ued next week

Hon. Jus­tice Mah­mud Mo­hammed, Jus­tice of Supreme Court

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