Justice Okwuchukwu Opene V. National Judicial Council & Ors. (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HON. JUSTICE PAUL ADAMU GALINJE, J.C.A. (Delivering the Leading Judgment)

On the 15th of May, 2005 the Federal High Court Abuja (henceforth to be referred to as the “lower court) granted to the Appellant leave to apply for judicial review. Pursuant to the leave so granted, the Appellant filed a motion on notice on the 2nd June, 2005 seeking for the following reliefs:-

“1. A declaration that the recommendation of dismissal from judicial office of the Applicant by the Respondents is unconstitutional, null and void and of no effect.

2. An order of prohibition restraining the Respondents from acting on the recommendation of the panel of inquiry of the 1st Respondent recommending to the 3rd Respondent that the Applicant be removed or dismissed from judicial office.

ALTERNATIVELY

3. A declaration setting aside the removal or dismissal from office of the Applicant by the 3rd Respondent on the recommendation of the 7th Respondent.
4. An order of certiorari removing the investigations, findings and recommendations of the panel of inquiry of the 1st Respondent against the Applicant into this Court for the purpose of being quashed.
5. And for such further Order (s) as this Honourable Court may deem fit to make in the circumstance.

In reaction to the motion on notice, the 1st and 3rd Respondents filed a Memorandum of Appearance on the 26th of May, 2005. Thereafter the first Respondent issued a preliminary objection to the hearing of the motion aforesaid, dated and filed on the 3rd of June, 2005. The 2nd and 3rd Respondents also issued a joint preliminary objection to the said motion on notice dated 4th of July, 2005 and filed on the 5th of July, 2005. Written addresses were ordered. These written addresses in which arguments on the preliminary objections were incorporated were variously adopted by learned counsel for respective parties on the 24th day of November, 2005. In a reserved and not so well considered judgment, the learned trial judge, Binta Nyako J. failed to consider the preliminary objections aforementioned, but proceeded to deliver judgment in the substantive suit which was dismissed on the ground that the Appellant did not place sufficient materials before the court.The law is settled that a preliminary objection properly raised and all other motions must be taken and disposed of first, before the final judgment in a pending suit. In OYEMA & ORS vs. EGBUCHULAM (1996) 5 NWLR (PT.448) 224 at 265, Kutigi JSC (as he then was) said:-

The Court had a duty to make its decision on the preliminary objection known to the parties before proceeding to decide the appeal thereby giving opportunity to anyone not satisfied with its decision to appeal against same. In the instant case, the Court did not only fail to rule on the preliminary objection as to the competence of the appeal but proceeded suo motu to decide the appeal without hearing the parties.”

See AHANEKU VS EKEUO (2002) 1 NWLR (PT.748) 301 at 309 paragraphs B-C, a decision of this Court. The Appellant did not appeal and canvass argument in respect of this lapse. I therefore do not need to comment further on this blunder.

The Appellant is dissatisfied with the decision of the lower court. Being dissatisfied and aggrieved, he has brought this appeal. The notice of appeal at pages 387-389 of the record of this appeal is dated 15th March, 2006 and filed on the 17th of March, 2006. This notice of appeal which contains two grounds of appeal was amended. The Amended notice of appeal which was filed on the 26th June, 2008 contains twelve grounds of appeal.

Parties filed and exchanged briefs of argument and reply briefs.

Mr. B.E.I. Nwofor, learned senior counsel for the Appellant, who also settled the Appellant’s brief of argument, formulated three issues for determination of this appeal. These issues read as follows:-

1. Whether the Appellant was denied his constitutional right to fair hearing in respect of the criminal accusations of bribery and corruption made against him on the basis of which he was dismissed from judicial office?
2. Whether the National Judicial council or any panel of inquiry or investigation committee set up by it has the constitutional power to investigate the criminal accusation of bribery and corruption made against the Appellant and to make a finding that the accusation are proved and to recommend the dismissal of the Appellant on those grounds.
3. Whether the learned trial judge was right in failing to set aside the removal or dismissal of the Appellant from judicial office by the 3rd Respondent on the recommendation of the 7th Respondent on the ground of bribery and corruption having regard to the peculiar facts of this case?

Mr. Rotimi Oguneso, learned counsel for the 1st Respondent formulated three issues for determination of this appeal. These issues are reproduced hereunder as follows:-

I. Whether the 1st Respondent is constitutionally empowered to investigate and/or appoint its three number investigation committee to investigate the allegation of bribery against the Appellant.

II. Whether from the facts and entire circumstances of this case, the Appellant was afforded fair hearing before he was dismissed from office on allegation of bribery made against him.

III. Whether from the facts and entire circumstances of this case, the Appellant was afforded fair hearing before he was dismissed from office on allegation of bribery made against him.