Hon. Justice Raliat Elelu-habeeb & Anor V. The Hon. Attorney General Of The Federation & Ors (2012)

LAWGLOBAL HUB Lead Judgment Report

MAHMUD MOHAMMED, J.S.C

The action that gave rise to the present appeal number SC.281/2010 was brought by Originating Summons filed on 6th 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, 1999, the 3rd Defendant has 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 4th 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 a combined interpretation of sections 4, 153, 292 and paragraphs 20, 21 of 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 her removal as Chief Judge of Kwara State.

2. A declaration that the letter of the Kwara State House of Assembly dated 4th 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 4th 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 3rd 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, act on, implement, give effect to or do anything to the prejudice of the Plaintiff based on the decision contained in the letter dated 4th 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 letter dated 4th May, 2009 and from taking any actions, acts, decisions, conclusions, directives, 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.”

Although there were preliminary objections raised by the 2nd and 3rd Respondents to the competence of the Plaintiff’s action on various grounds touching on the jurisdiction of the trial Court to entertain and determine the action, the learned trial Judge decided to hear the preliminary objections together with the substantive action. It is observed that all the Defendants/Respondents to the Plaintiff’s Originating Summons except the 1st Defendant/Respondent, raised objections to the competence of the trial Federal High Court to adjudicate on the matter, having regard to the fact that the complaint of the Plaintiff was against the Executive and Legislative decisions of the Kwara State Government with no allegation against the Federal Government or any of its agencies. After hearing the parties on the preliminary objections and the Plaintiff’s claims on the merit on the various affidavits, further affidavits, counter-affidavits filed by the parties in support of their respective stand on the issues raised in the preliminary objections and the Originating Summons, the learned trial Judge in the judgment of the trial Court delivered on 23rd July, 2009, overruled the Preliminary Objections by dismissing them in holding that taking into consideration that the case of the Plaintiff involves the interpretation of the provisions of the Constitution of the Federal Republic of Nigeria 1999, the trial Court was conferred with jurisdiction to hear and determine the action. In this respect, the learned trial Judge after considering the claims of the Plaintiff against the provisions of the Constitution in support of the claims and the Defendants’ opposition of the same came to the conclusion that the Plaintiff was entitled to all the reliefs claimed and preceded to grant them.

The 2nd, 3rd and 4th Defendants/Respondents who were aggrieved with the judgment of the trial Federal High Court immediately lodged their respective appeals against the judgment to the Court of Appeal Ilorin Division. The notices of appeal however excluded the 1st Defendant/Respondent at the trial Court from the list of parties in the appeals at the Court of Appeal. However, on the application by the 1st Defendant/Respondent, it was later joined in the appeals on the side of the Respondents. The appeals were heard by a panel of full Court of five Justices of the Court of Appeal having regard to the Constitutional importance of the issues that arose for determination. In a split judgment of 4 to 1, delivered on 2nd July, 2010, that Court came to the conclusion that the trial Federal High Court lacked the jurisdiction to adjudicate upon the case of the Plaintiff and held that the matter ought to have been taken to the High Court of Justice of Kwara State for hearing and determination having regard to the parties and the subject matter of the case. In the same judgment however, the Court of Appeal proceeded to hear the matter on the merit and came to the decision that the trial Federal High Court was right in its decision on the merit of the claims of the Plaintiff and consequently affirmed the decision of the trial Court. It is glaringly clear from the record of the this appeal that all the parties at the Court of Appeal except the Hon. Attorney General of the Federation, were not happy with the judgment of the Court and therefore decided to appeal and cross-appeal to this Court against parts of the judgment that the parties were not satisfied with.

While the Plaintiff at the trial Court and the 1st Defendant/Respondent in that Court, the National Judicial Council who were the Respondents at the Court of Appeal were not pleased with the decision of the Court of Appeal on the issue of jurisdiction of the Federal High Court to entertain and determine the case of the Plaintiff, the 3rd and 4th Defendants/Respondents at the trial Court, who were Appellants at the Court of Appeal, decided to challenge the decision of the Court of Appeal in deciding to hear and determine the matter on the merit in spite of its decision that the Federal High Court lacked jurisdiction to deal with the matter and therefore filed their respective cross-appeals against that part of the decision of the Court of Appeal. The Attorney General of the Federation, who was on the side of the Appellants at the Court of Appeal, has neither filed an appeal nor a cross-appeal, as the cross-appeal earlier filed on his behalf was later withdrawn and struck out before the appeals and the cross-appeals proceeded to hearing in this Court.

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.281/2010 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, I shall first tackle the two separate notices of Preliminary objection raised by the 2nd and 3rd Respondents/Cross-Appellants to the appeal filed by the 2nd Appellant, on the grounds that the appeal of the 2nd Appellant as a whole is incompetent, irregular and misconceived and that the same ought to be struck-out because:-

i. The Appellant is not an aggrieved person within the con of the judgment appealed against.