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

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 […]

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/cross-respondents 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 Elelu-Habeeb – 1st appellant/cross-respondent
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/cross-appellant
3. The House of Assembly of Kwara State – 3rd respondent/ cross-appellant.”
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 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