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

   1. HON.JUSTICE RALIAT ELELU-HABEEB    (CHIEF JUDGE OF KWARA STATE)    2. NATIONAL JUDICIAL COUNCIL    V    1. THE HON. ATTORNEY-GENERAL OF THE FEDERATION    2. THE HON. ATTORNEY-GENERAL OF KWARA STATE    3. THE HOUSE OF ASSEMBLY OF KWARA STATE      SUPREME COURT OF NIGERIA    MAHMUB MOHAMMED JSC (Presided and Read […]

   1. HON.JUSTICE RALIAT ELELU-HABEEB

   (CHIEF JUDGE OF KWARA STATE)

   2. NATIONAL JUDICIAL COUNCIL

   V

   1. THE HON. ATTORNEY-GENERAL OF THE FEDERATION

   2. THE HON. ATTORNEY-GENERAL OF KWARA STATE

   3. THE HOUSE OF ASSEMBLY OF KWARA STATE

     SUPREME COURT OF NIGERIA

   MAHMUB MOHAMMED JSC (Presided and Read the Lead Judgment)

   WALTER SAMUELNKANU ONNOGHEN JSC

   CHRISTOPHER MIT CHELL CHUKWUMA-ENEH

   MUHAMMAD SAIFULLAH MUNTAKA-COOMASSIE

   OLUFUNLOLA OYELOLA ADEKEYE JSC

   MARY UKAEGO PETER-ODILI JSC

   OLUKAYODE ARIWOOLA JSC

     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 5 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, 1 999. 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 me 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, in so far 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 in so far 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 in so far 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 -1 st 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 cantered 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 the 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. This is because while a constitutional power should not be used to attain an unconstitutional result the language of the Constitution where clear and unambiguous must be given its plain and evident meaning. Although the cross-appellant is insisting that in the determination of this 3rd issue the court should confine itself to the interpretation of the provisions of section 292(1)(a)(ii) of the Constitution alone to the exclusion of the other relevant provision; of the same Constitution, I entirely agree with the learned senior counsel for the appellant” cross-respondent that the court should examine all the relevant provisions of the Constitution in order to find adequate guidance in arriving at the correct decision.

   The NJC is one of executive bodies established for good governance of the country under section 153 of the Constitution which states:

   153(1) “There shall be established for the Federation the following bodies namely:

   (a)…

   (i) National Judicial Council (NJC)

   (2) The composition and powers of each body established by subsection (1) of this section are contained in Part 1 of the Third Schedule to this Constitution.”

   What is relevant for determination of this issue is to fish out and examine the powers of the NJC in Paragraph 21 of Part 1 of the Third Schedule of the Constitution which reads:

   “21. The NJC shall have power to:

   (a) recommend to the President from among the list of persons submitted to it by

   (i) The Federal Judicial Service Commission, persons for appointment to the offices of the Chief Justice of Nigeria…

   (b) recommend to the President, the removal from office of the judicial officers specified in sub-paragraph (a) of this paragraph and to exercise disciplinary control over G such officers.

   (c) recommend to the Governor from among the list of persons submitted to it by the State Judicial Service Commissions persons for appointment to the offices of the chief judge of the States and judge of the High Courts of States, the Grand Kadis and Kadis of the Sharia Court of Appeal of the States and the Presidents and Judges of the Customary Courts of Appeal of the States.

   (d) recommend to the Governors the removal from office of the judicial officers specified in sub-paragraph (c) of this paragraph, and to exercise disciplinary control over such officers.”

   It is quite plain from the provisions of paragraph 21 sub-paragraph (c) and (d) of the Third Schedule to the CFRN 1999, that the NJC is the body that; had been assigned the duty and responsibility of recommending to the Governors of the States of the Federation suitable persons for appointments to the offices of Chief judge of the States and other judicial officers in the States. In addition to its role in the appointment of Chief Judges of the States and other judicial officers, the same NJC is also empowered under sub-paragraph (d) of paragraph 21 to recommend to the Governors of the States, the removal from office of the Chief judges of the States and other judicial officer of the State, and also to exercise disciplinary control over such Chief Judges of the States and other judicial officers of the States. Therefore, from these very clear provisions of the constitution which are very far from being ambiguous, the Governors of the States and the Houses of Assembly of the States cannot exercise disciplinary control touching the removal of Chief Judges of States or other judicial officers in the States.

   Going back to section 271 (1) of the 1999 Constitution, it is also glaringly clear that the NJC has been given a role to play in the appointment of Chief Judges of the States where the section states:

   “271 (1) The appointment of a person to the office of a Chief Judge of a State shall be made by the Governor of the state on the recommendation of the NJC subject to the confirmation of the appointment b}’ the House of Assembly of the State.

   It can be seen here again, although the Governor of a state has been vested with the power to appoint the chief judge of his own state, that power is not absolute as the Governor has to share the power with the NJC in recommending suitable persons and the State House of Assembly in confirming the appointment. It is in the spirit of the Constitution in ensuring checks and balances between the three arms of government that the role of the Governor in appointing and exercising disciplinary control over the chief judge of his state is subjected to the participation of the NJC and the House of Assembly of the state in the exercise to ensure transparency and observance of the rule of law.

   The cross-appellant has made heavy weather on the interpretation and application of section 292 (1) (a) (ii) of the 1999 Constitution which is said to have conferred unfettered powers on the Governor of Kwara State and the House of Assembly of Kwara State to remove the Chief Judge of Kwara State from office 01: an allegation of misconduct. The relevant section of the Constitution states:

   “292(1) A judicial officer shall not be removed from office of appointment before his age of retirement except in the following circumstances:

   (a) in case of:

   (i) The Chief Justice of Nigeria…

   (ii) The Chief Judge of a State, Grand Kadi of a Sharia Court of Appeal or President of a Customary Court of Appeal of a State, by the Governor acting or, the address supported by two-thirds majority of the House of Assembly of the State praying that he be so removed for his inability to discharge the functions of his office or appointment (whether arising from infirmity of mind or of body) or for misconduct or contravention of the code of conduct.”

   The provision of section 292(1)(a)(ii) of the Constitution above also deals with the power of the Governor to remove the chief judge of a state in conjunction with the House of Assembly of the State. Although it is true, as argued by the learned senior counsel to the cross-appellant that, the above section 292(1) made no provision for the NJC to play any role in the removal of a chief judge of a state, the fact that the Council has a vital role to play in the appointment, removal and exercising control over a chief judge of a state under section 271 (1) of the Constitution and also under paragraph 21 of Part 1 of the Third Schedule to the same Constitution is not at all in doubt. Furthermore, the conditions specified under section 292(1 )(a)(ii) of the Constitution for the exercise of the power of removal must be satisfied before such power can be validly exercised by both the Governor and the House of Assembly. This is because any exercise of power to remove a chief judge must be based on his:

   1. Inability to discharge the functions of office or appointment;

   2. The inability to perform the functions of his office could arise from infirmity of the mind or of body:

   3. For misconduct; or

   4. The contravention of the code- of conduct

   All these conditions or basis for the exercise of power to remove a State Chief Judge must be investigated and confirmed by credible evidence and placed before the Governor and the House of Assembly before proceeding to exercise their power of removal granted by the section of the Constitution. For example, the ground of removal for inability to perform the functions of his office or appointment cannot be ascertained and confirmed by the Governor or the House of Assembly in the absence of any input from the NJC under which supervision the chief judge discharges his functions as judicial officer and which body also is directly responsible for exercising disciplinary control over the said State Chief Judge. It is not difficult to see that for the effective exercise of the powers of removal of a chief judge of a state by the Governor and House, of Assembly, the first port of call by the Governor on his journey to remove a chief judge of the state shall be the NJC which is equipped with the personnel and resources to investigate the inability of the chief judge to discharge the functions of his office, the subject of disciplinary action of removal through the committees of the council, and where the infirmity of the mind or body is involved, the services of a medical board to examine and submit appropriate report on the chief judge to be affected, could also avail the council in the process of investigation, it is for the foregoing reasons that I hold the view that in the resolution of the issue at hand, the entire provisions of the CFRN 1999 in sections 153(1)(i)(2), 27(i), 292(1)(a)(ii) and paragraph 21 of Part 1 of the Third Schedule to the CFRN 1999 dealing with the appointments, removal and exercise of disciplinary control over judicial officers, must be read, interpreted and applied together in resolving the issue of whether or not the Governor of a state and the House of Assembly of a state can remove a Chief Judge of a State in Nigeria without an input of the NJC. This is because the combined effect of these provisions of the Constitution has revealed very clear intention of the framers of the Constitution to give the National Judicial Council a vital role to play in the appointment and removal of judicial officers by the Governors and Houses of Assembly of the State, in the result. I entirely agree with the two courts below that having regard to these relevant provisions of the CFRN 1999, the Governor of Kwara State and the House of Assembly of the State cannot remove the Chief Judge of Kwara State from office without the participation of the NJC in the exercise. The 3rd issue therefore is also resolved against the 2nd respondent/cross-appellant.

   The 4th and last issue is whether the Court of Appeal did not err in making pronouncement on the procedure employed in the removal of the 1st appellant/cross-respondent as chief judge when that point was neither an issue before it nor even before the trial court. I am afraid this issue has already been effectively determined and resolved under issue No. 3 which I have resolved against the cross-appellant. The entire- case in fact principally involves the procedure prescribed uncle- the CFRN 1999 for the removal or taking disciplinary action against a chief judge of a state. The court below was not in error at all in delving into the matter.

   These three issues in the 3rd respondent/cross-appellant’s appeal have been effectively covered in the four issues identified and resolved in the 2nd respondent/cross-appellant’s cross-anneal. In other words, on the interpretation and application of the provisions of section 153(1 ) (i), 271 (1 )1, 292(1 )(a)(ii) and paragraph 21 of Part 1 of the Third Schedule to the CFRN 1999, the Governor of Kwara State and the House of Assembly of Kwara State cannot remove the Chief Judge of Kwara State from office without recourse to and input or participation of the NJC. That is to say for the purpose of emphasis, the CFRN 1999, does not give the Governor of Kwara State acting in conjunction with the House of Assembly of Kwara State absolute power to remove the chief judge of the state from his/her office or appointment before the age of retirement without the recommendation or the NJC.

   Thus, in the final analysis in the appeals and the cross-appeals in this matter, the appeal which succeed are hereby allowed, the judgment of the court below which held that the trial court lacked jurisdiction in entertaining the action is hereby set aside. The judgment of the trial court declaring that it has jurisdiction to entertain and determine the matter brought before it by the plaintiff/appellant is hereby restored and affirmed. In the same vein, the two cross-appeals of the 2nd and 3rd respondents/cross-appellants having failed, are hereby dismissed.

   Taking into consideration the circumstances of this case, I do not regard it appropriate to make any order on costs.

Counsel:

* Chief A. S. Awomolo (SAN) (with him O. A. Aiyemowa) – for the 1st Appellant/Cross-Respondent.

* J. B. Daudu (SAN. (with him. E. O. Maduka (Miss) and O. 0. Kehinde) – for the 2nd Appellant/Cross-Respondent.

* R.A. Lawal Rabana (SAN) (with him. Aliyu Saiki) – for the 1st respondent.

* A. 0. Adelodun (SAN) (with him. A Abuulraheem) – for the 2nd respondent/Cross-Appellant.

* Yusuf Ali (SAN) (with him. K. K. Eleja. T.B. Olurode (Miss). T.E.

* Akintade (Miss.) and K. T. Sulaiman (Miss)) -for the 3rd Respondent/Cross -Appellant