Hon. Justice Yau Dakwang (Rtd) V. National Judicial Council & Ors (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MONICA B. DONGBAN-MENSEM, J.C.A (Delivering the Lead Ruling)

The Appellant/Applicant herein simply referred to as the Applicant was at all material times a Judge of the High Court of Plateau State of Nigeria sitting in High Court Number 6 in Jos. He was sixth in the hierarchy of Judges in the state. In the course of performing his judicial functions the Applicant received two petitions concerning the discharge of his judicial functions.

The 4th Defendant/Respondent directed that the Applicant should no longer conduct the proceedings and this was faithfully obeyed. Subsequent events showed that the then Governor of Plateau (2nd Respondent/Defendant) appointed the Applicant to act as the chief Judge of plateau state upon the removal of the former incumbent. This did not go down well with the National Judicial Council [1st Respondent/Defendant] the body that is constitutionally vested with supervisory and disciplinary powers over Judicial officers including the Applicant. The Applicant was initially suspended from the post of Acting Chief Judge and compulsorily retired from service with immediate effect based on the decision of the National Judicial Council [1st Defendant/ Respondent] on 5th January 2007.

On 16th January 2007 the Appellant/Applicant instituted an action in the Federal High Court of Justice, Jos, Plateau State challenging his suspension and compulsory retirement from office. Pleadings were filed and exchanged. Oral and documentary evidence was called by the plaintiff. The Respondents also submitted documentary evidence. Thereafter, learned counsel to the parties submitted written addresses. The Applicant’s claims were dismissed by Hon. Justice C. E. Archibong on 22nd November 2007. A notice of Appeal with nine grounds was filed on 23rd November 2007.

On 16th April 2010 G. S. Pwul of learned counsel filed a motion on Notice pursuit to Order 7 Rule 1, Order 4 Rule 7, and Order 6 Rule 4 of the Court of Appeal Rules 2007 praying for the following reliefs against the Defendants/Respondents.

1. AN ORDER granting the Applicant/Appellant leave to amend the name of the 4th Defendant from “Acting Chief Judge of Plateau State” to read “the Chief Judge of Plateau State.”
2. AN ORDER granting the Applicant leave to raise and argue on appeal fresh issues which were not raised in the Applicant/Appellant’s pleadings before the lower Court to wit:

i. That the presence and participation of members of the Investigative Panel i.e. Hon. Justice Umaru Abdullahi, CON, Hon. Justice C.O. Jacobs, Hon. Grand Khadi Muhammad S. Abubakar and Mrs. Rakiya Sarki Ibrahim at the meeting of the 1st Defendant/Respondent of 20th of December, 2006 constituted a violation of the Applicant/Appellant’s right of fair hearing.

ii. That the participation of the following legal practitioners:

a. Chief Bandele Aiku, SAN;

b. Chief Anthony O. Mogboh, SAN; and

c. Prince Lanke Odogiyon;

Inter alia, at the meeting of the 1st Defendant/Respondent of 20/12/2006 is unconstitutional and therefore, the meeting and the decision taken therein are null and void.

iii. The Plaintiff was denied the opportunity to make representations on the report of the Investigative Committee of the 1st Defendant/Respondent before same was accepted and acted upon by it.

3. AN ORDER granting the Applicant leave to amend his Statement of Claim in terms of paragraphs 25 (a), (b) and (c) of Exhibit “A” to bring it in line with the evidence led at the trial and also to reflect and plead the aforesaid fresh issues.
4. AN ORDER granting the Applicant leave to file and argue Additional Grounds of Appeal.
5. AN ORDER deeming the additional grounds of appeal as having been duly and properly filed and served.

The application is supported by a thirty paragraphs affidavit deposed to by S. D. Samchi a Legal Practitioner in the chambers of Messrs G. S. Pwul and partners. The affidavit was sworn on 16th April 2010 at the Court of Appeal Registry in Jos, Plateau State setting forth the grounds for bringing the application. To the application is annexed the “Plaintiffs Amended Statement of Claim” as Exhibit “JYD1” with thirty-one paragraphs. Exhibit “JYD2” is the three additional grounds of appeal to be argued upon grant of leave by this Court.

On 17th May 2010 the 1st Respondent deposed to a 6- paragraph counter- affidavit detailing reasons as to why the reliefs sought by the Applicant should not be granted. This prompted the Applicant to file a further and better Affidavit, deposed to by S. D. Samchi Esq. on 15th June 2010. A Counter Affidavit of 6 paragraphs was sworn to by Bulus Lenge, Litigation Secretary in the plateau state Ministry of Justice, Jos on behalf of the 2nd – 4th Respondents on 10th May 2010 to which was annexed the Applicant’s written address submitted at the Federal High Court Jos marked as Exhibit “A” dated 16:7:2007 and the letter of Compulsory Retirement from Service dated 5th January 2007 as Exhibit “B”. The Applicant responded with another 14 paragraph “Further and Better Affidavit in support of motion on notice dated 15th April, 2010” in answer to the issues raised by the 2nd – 4th Respondents in their Counter Affidavit, deposed to by S. D. Samchi Esp. of counsel on 18th May 2010.