⦿ CASE SUMMARY OF:
Hon. Justice Raliat Elelu-Habeeb & Anor v. The Hon. Attorney General Of The Federation & Ors (2012) – SC
by PaulPipar
⦿ PARTIES
APPELLANTS
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
⦿ CITATION
(2012) LPELR-SC.281/2010
⦿ COURT
Supreme Court
⦿ LEAD JUDGEMENT DELIVERED BY:
Mahmud Mohammed, J.S.C
⦿ LAWYERS WHO ADVOCATED
* FOR THE APPELLANT
– Chief Awomolo, SAN (For the 1st appellant)
– Mr. Daudu, SAN. (For the 2nd appellant)
* FOR THE RESPONDENT
– Lawal Rabbana (For the 1st respondent)
– Adelodun SAN (For the 2nd respondent)
– Yusuf Ali (For the 3rd respondent)
⦿ FACT
The 1st appellant filed an originating summons at the Federal Hight Court, Illorin, challenging the authority of the House of Assembly to instruct her via a letter to appear before the House. Also the 1st Appellant is seeking the correct interpretation and operation of the provisions of Section 153(1)(i), 197, 271(2), 292 of the Constitution, paragraphs 20 and 21 of part 1 of the 3rd Schedule to the same Constitution of the Federal Republic of Nigeria, 1999 against the background of the 3rd Respondent’s same letter dated 4th May, 2009, inviting the Appellant to appear before it.
At the Federal High Court, the respondents objected stating that the Federal High Court has no jurisdiction to entertain the suit because the suit does not involve the Federal Government or any of its’ agencies. However, the Judge of the Federal High Court held that the Court had jurisdiction to entertain the matter.
The respondent then appealed to the Court of Appeal, the Court of Appeal allowed the appeal by holding that the Federal High Court lacked the jurisdiction to entertain the suit. But the Court of Appeal upheld the trial court’s finding and verdict as to the substance of the suit.
The appellant has herein appealed against that decision.
⦿ ISSUE(S)
1. Whether the Court of Appeal was right when it declared that the Federal High Court has no jurisdiction to interpret the provisions of the Constitution as contained in the Originating Summons of the Appellant when the interpretation affects exercise of Constitutional powers of the National Judicial Council, a Federal Government agency?
**CROSS-APPEAL
1. Whether having regard to the myriads of affidavit filed by the parties; this case was not hostile as to render inappropriate the Originating Summons procedure in commencing same?
2. 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?
3. 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 National Judicial Council, the Court below correctly interpreted the provisions of Section 292(1)(a)(ii) of the Constitution of the Federal Republic of Nigeria, 1999?
⦿ HOLDING & RATIO DECIDENDI
[APPEAL: ALLOWED]
1. Issue 1 was resolved in favour of the Appellant.
RATIO:
i. The fact that the provisions of the Constitution in Section 153(1)(i), 271(1); 292(1)(a)(ii) together with paragraphs 20 and 21 of Part 1 of Third Schedule to the same Constitution, the operation and interpretation of which affects the powers and duties of the National Judicial Council under the Constitution, coupled with the fact that there is no doubt whatsoever that the National Judicial Council is an agency of the Federal Government, the Court below, in my view, was wrong to say that the Federal High Court lacked jurisdiction in the matter.
**CROSS-APPEAL
[CROSS-APPEAL DISMISSED]
1. The Supreme Court held issue 1 of the cross-appeal against the cross-appellant.
RATIO:
i. In the present case, the real issues raised are centered around the interpretation of the provisions of the 1999 Constitution 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 began by Originating Summons procedure.
2. The Supreme Court held issue 2 of the cross-appeal against the cross-appellant.
RATIO:
i. It is quite clear from the record of this appeal that the 2nd Respondent/Cross-Appellant lost its 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.
ii. 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 this 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.
3. The Supreme Court held issue 3 of the cross-appeal against the cross-appellant.
RATIO:
i. In addition to its role in the appointment of Chief Judges of the States and other Judicial Officers, the same National Judicial Council 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 Officers of the States 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.
ii. 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 National Judicial Council and the House of Assembly of the State in the exercise to ensure transparency and observance of the rule of law.
⦿ REFERENCED
Section 251(1)(q) of the 1999 Constitution;
Section 153(1)(i) of the 1999 Constitution;
Paragraph 21 of Part 1 of the Third Schedule to the Constitution 1999;
Section 271(1) of the 1999 Constitution 1999;
Section 292(1(a)(ii) of the 1999 Constitution;
Section 233(1)(5) of the Constitution of the Federal Republic of Nigeria 1999;
⦿ SOME PROVISIONS
Federal High Court (Civil Procedure) Rules 2009; Order 3 Rules 6 – 7 stipulate as follows:
Rule 6: “Any person claiming to be interested under a deed, will, enactment or other written instrument may apply by originating summons for the determination of any question of constructing arising under the instrument and for a declaration of the rights of persons interested”.
Rule 7: “Any person claiming any legal or equitable right in a case where the determination of the question whether such a person is entitled to the right depends upon a question of construction of an enactment may apply by originating summons for the determination of such questions of construction and for a declaration as to the right claimed.”
⦿ NOTABLE DICTA
* PROCEDURAL
The law is indeed well settled that Originating Summons procedure for initiating action is not suitable and therefore not available for action involving hostile proceedings where the facts are seriously in dispute. – Mahmud, JSC. Elelu-Habeeb v. A.G Federation (2012)
The merits of the originating summons lie in the fact that proceedings commenced thereby are very expeditiously dealt with as the action is almost invariably ready for hearing after the defendant had filed his counter-affidavit. Pleadings are not filed by the parties; witnesses are rarely examined, while affidavit evidence is used. Proceedings for which it is used therefore usually involve question of law rather than disputed facts. An originating summons should not be adopted if the proceedings are hostile proceedings. – Adekeye, JSC. Elelu-Habeeb v. A.G Federation (2012)
* SUBSTANTIVE
In the present case therefore which principally involves the procedure for initiating and conducting disciplinary proceedings against a Chief Judge of a State where the National Judicial Council which had been given a role in the appointment and exercise of disciplinary control over judicial officers of the Appellant’s rank under the Constitution, it is not correct as argued by the Respondents that the entire matter in the case was a State Government affair. – Mahmud, JSC. Elelu-Habeeb v. A.G Federation (2012)
The very fact that the operation and interpretation of the provisions of the Constitution affecting the powers and functions of a Federal Government agency is the main subject of this case, the 1st Respondent, the Honourable Attorney General of the Federation as the Chief Law Officer of the entire Federation appointed under Section 150 of the same Constitution, who is therefore not only the guardian of the Constitution but also the protector of the same, the Appellant’s action which sought to protect the violation of the provisions of the Constitution, is certainly not only regarded as an action against the National Judicial Council whose powers and functions were subject of the violation but also against the Honourable Attorney General of the Federation whose role in protecting the provisions of the Constitution from being violated, was in issue in the case. These features of this case are what brought the case within the jurisdiction of the Federal High Court. – Mahmud, JSC. Elelu-Habeeb v. A.G Federation (2012)
However, what the learned senior Counsel failed to realize is the fact that the presence of the 2nd Appellant, the National Judicial Council and the Honourable Attorney General of the Federation as parties in the case, had pulled in a feature in the case which brought it out of the jurisdiction of the High Court taking into consideration the decision of this Court in Madukolu v. Nkemdelim (supra) earlier quoted in this judgment. – Mahmud, JSC. Elelu-Habeeb v. A.G Federation (2012)
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. – Mahmud, JSC. Elelu-Habeeb v. A.G Federation (2012)
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 National Judicial Council 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. – Mahmud, JSC. Elelu-Habeeb v. A.G Federation (2012)
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 1999 Constitution in Sections 153(1)(i)(2), 271(1), 292(1)(a)(ii) and paragraph 21 of Part 1 of the Third Schedule to the Constitution of the Federal Republic of Nigeria 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 any input of the National Judicial Council. – Mahmud, JSC. Elelu-Habeeb v. A.G Federation (2012)
In other words, on the interpretation and application of the provisions of Section 153(1)(i); 271(1); 292(1)(a)(ii) and paragraph 21 of Part 1 of the Third Schedule to the Constitution of the Federal Republic of Nigeria 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 National Judicial Council. That is to say for the purpose of emphasis, the Constitution of the Federal Republic of Nigeria 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 of the National Judicial Council. – Mahmud, JSC. Elelu-Habeeb v. A.G Federation (2012)
It is settled law that it is the case of the plaintiff as stated in the writ of summons and statement of claim, where the action is commenced by way of writ of summons or the questions, reliefs and supporting affidavit, where the action is commenced by originating summons, that determines the jurisdiction of the court to hear and determine same. – Onnoghen, JSC. Elelu-Habeeb v. A.G Federation (2012)
It has been firmly decided in many decided cases of this court that the Federal Attorney-General is the Chief Law Officer of the Federation; he is the custodian and protector of the Constitution. He is competent to be sued in any suit against the Federal Government or any of its agencies. Any case involving the (1) interpretation of the constitution as it affects our democratic system of governance. (2) The doctrine of separation of powers entrenched in our constitution, or any suit which poses a threat to the independence of any arm of government, the Attorney-General of the Federation must be an inevitable party. – Adekeye, JSC. Elelu-Habeeb v. A.G Federation (2012)
It cannot properly be said that in a situation where the scope of the powers of the NJC are called to question as to its role or otherwise in the removal from office of the chief Judge of a State is situated at the fore, that such a party would not be aggrieved or want to know the outcome not as a spectator but as a participant in the proceedings. – PETER-ODILI, JSC. Elelu-Habeeb v. A.G Federation (2012)
If the Governor alone is allowed to, in exercise of his Executive power, appoint directly, and discipline judicial officers of his State, this may, no doubt, lead to avoidable corruption and prevent judicial officers from carrying out their functions freely and without any intimidation by the Executive. Judicial Officers may become stooges of the Governor of the State for fear of been removed from office unceremoniously. – PETER-ODILI, JSC. Elelu-Habeeb v. A.G Federation (2012)
