National Judicial Council & Ors V. Hon Justice Jubril Babajide Aladejana & Ors (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOSEPH E. EKANEM, J.C.A. (Delivering the Leading Judgment)

The 1st respondent was appointed a judge of the High Court of Justice, Ekiti State, in November, 1998. In October,2006, the Ekiti State House of Assembly served an impeachment notice on the Governor of Ekiti State and his deputy. The House of Assembly, at the expiration of the period stated in the notice, requested the then Chief Judge of the state to constitute a seven-man panel to investigate the allegations contained in the impeachment notice.

The Hon.Chief Judge inaugurated a seven-man panel to investigate the allegations. Unhappy with the composition of the panel, the House of Assembly resolved on 11th October, 2006 to suspend the Hon. Chief Judge from his office. It also announced that the 1st respondent would hold forte as the chief Judge of Ekiti State.

After the panel set up by the Hon. Chief Judge submitted its report clearing the Governor and his deputy, the 1st respondent set up a fresh seven-man panel to investigate the allegations of misconduct levelled against the Governor and his deputy on 13th October, 2006.

On 13th October, 2006, the 1st respondent received a letter from the then chairman of the 1st appellant stating that any step he took as acting chief Judge would be unconstitutional. Following the report of the fresh panel set up by the 1st respondent, the Governor and his deputy were impeached by the state House of Assembly who invited the 1st respondent to swear in the speaker as the Acting Governor. He did so.

Subsequent to the above, the Chairman of the 1st appellant wrote to the respondent directing him to submit his comments on petitions relating to the saga summarised above written against him. He did so. He was thereafter directed to appear before an investigation committee of the 1st defendant on the 7th December, 2006. He appeared before the panel made up of 2nd – 6th appellants. The 1st respondent thereafter received a letter from the 1st appellant suspending him from office as a Judge of the High court of Ekiti State. The 1st respondent deposed that the 1st appellant had since the end of December, 2006, suspended the payment of his salary and allowances.

Aggrieved by the turn of events, the 1st respondent took out an originating summons at the Federal High Court, Abuja Division (the Lower Court “for short) asking for the determination of the following questions:

“1. Whether or not by the combined provision of S.271 (2) and S.292 (1) (b) of the Constitution of the Federal Republic of Nigeria, 1999. The Defendant possesses the constitutional power to suspend the plaintiff from office as a Judge of the high Court of Justice, Ekiti State without reference to the Governor of Ekiti State of Nigeria.

2. If the answer to the above is in the negative, whether the letter of 20th December, 2006 addressed by the 1st defendant to the plaintiff suspending him from office as a Judge of the High Court of Justice, Ekiti State of Nigeria is not unconstitutional and therefore null and void.
3. Whether any other steps taken by the Defendants pursuant to the letter of 20th December, 2006 is null and void.
4. Whether the failure of the 1st Defendant in bringing a formal charge of misconduct against the plaintiff pursuant to the letters of the 1st Defendant dated 13th October, 2006, 7th day of December and 20th day of December, 2006 respectfully in order to afford the plaintiff to either retain a solicitor of his choice, hear his accusers and their witness, and their witnesses and produce documents in his defence is not a denial of fair hearing as guaranteed under 5.36 (1) and 6 (a-c) of the 1999 Constitution.
5. Whether the 1st Defendant in its letter reference no.CJN/COR/SG/A.79/111/144 of 13h October, 2006 signed by its chairman had not taken an adverse position against the plaintiff without affording him a hearing therefore prejudging the issue in the Defendant’s letter of the 7th December, 2006.
6. if the answer to the above is in the affirmative, whether the 1st Defendants who by its letter reference no.CJN/COR/SC/A.79/111/144 of 13th October, 2006 had taken an adverse position in respect of the plaintiff is competent to constitute a panel vide 1st Defendant letter reference no. NJC/A4/5/28/1/003 of 7th December, 2006 wherein the 2nd to 6th Defendant were members in breach of the plaintiff’s fundamental right to fair hearing before an impartial panel.
7. Whether the 1st Defendant is competent to take the decision to suspend the plaintiff when the committee of the 1st Defendant made up of the 2nd to 6th Defendant did not form a quorum of the 1st Defendant.
8. Whether the decision of the committee of the 1st Defendant as constituted by 1st to 6th Defendants which sat on 14th and 15th December, 2006 despite the letter of the chairman of the 1st Defendant to the plaintiff dated 13th October, 2006 is not unconstitutional.
9. Whether the decision of 1st to 6th Defendants concerning the plaintiff considering the failure of the alleged three petitioners to appear in persons or to call witness to tender documents to substantiate their allegation against the plaintiff before the 2nd to 6th Defendants acting as committee of the 1st Defendant on the 14th and 15th day of December, 2006 was not a breach of audi alterem partem rule.
10. Whether the decision of the 1st Defendant to suspend the plaintiff and take further adverse step is competent when majority of its members were not members of the committee which sat on the 14 and 15th December, 2006 to listen to the plaintiff.
11. Whether the recommendations of the committee made up of 2nd – 6th Defendants can be adversely varied altered or amended by 1st Defendant without giving the plaintiff a fair hearing.
12. Whether the decision concerning the plaintiff following the 1st Defendant letters of 13th October, 2006 and 7th December, 2006 did not place the onus of proving his innocence on the plaintiff in breach of his fundamental rights.
13. Whether the 7th or 8th Defendants can take any adverse position touching and concerning the plaintiff or his office without affording him a hearing.
14. Whether the 7th Defendant can employ disciplinary measures against the plaintiff in his office in respect of the issues in the 1st Defendant’s letter dated 13th October, 2006, 7th December, 2006.
15. whether or not any disciplinary measure initiated or taken against the plaintiff by the 1st Defendant and or the 7th Defendant or his successor in office can be different or more grievous than that recommended by the 2nd – 6th Defendants or that contained in the 1st Defendant’s letter reference no. NJC/S.978/17 of the 20th December, 2006 would not amount to the double jeopardy”.

In anticipation of favourable answers to the questions above, the 1st respondent sought the following reliefs;

“1. A declaration that the letter of suspension dated 29th day of December, 2006 written by the 1st Defendant to the plaintiff without proof of any allegation of misconduct against the plaintiff is null and void.

2. A declaration that the letter suspending the plaintiff from his office as a Judge of the High Court, Ekiti State. Written directly to the plaintiff without recourse to the Governor of Ekiti State is unconstitutional and therefore null and void.
3. A declaration that the suspension imposed on the plaintiff by the 1st Defendant and any other recommendations emanating from the panel referred to in the 1st Defendant’s letter reference no NJC/A/7/S/28/11003 of 7th December, 2006 is in breach of the plaintiff’s right to fair hearing and therefore unconstitutional, null and void.
4. A declaration that the 7th and 8th Defendants and or their successor in office is incompetent to implement any adverse recommendation made in respect of the plaintiff pursuant to 1st Defendant letters of 13th October, 2006, 7th December, 2006 and 20th December, 2006.
5. An order of court declaring null and void any other steps taken by the 1st Defendant pursuant to the letter of suspension dated 20th December, 2006 regarding its advice to the Ekiti State Administrator purporting to affect the plaintiff’s office adversely.
6. An order restraining the 7th and 8th Defendant and or their successor in office from acting on any adverse recommendations made by the 1st Defendant touching and concerning the plaintiff pursuant to the 1st Defendant letter of 20th December, 2006.
7. An order directing the 1st and f Defendant and or his successor in office to pay the salaries and other emolument of office of the plaintiff from 20th day of December, 2006 till the day of judgment and thereafter.

After taking the addresses of counsel on all sides, the Lower Court delivered its judgment holding that the 1st appellant has the constitutional power to suspend the 1st respondent without reference to the Governor of Ekiti State; and that the 1st respondent was given a fair hearing before he was recommended for retirement. The Lower Court further held that in the face of the rejection of its recommendation of retirement for the 1st respondent by the Governor of Ekiti State, the disciplinary process set in motion by the 1st appellant had become spent and that the continual suspension of the 1st respondent had no legal basis and was therefore illegal, null and void. The court granted a declaration to that effect.

Aggrieved by the decision the appellants filed two notices of appeal against the judgment. With the leave of court the appellants filed an amended notice of appeal bearing nine grounds of appeal. It must be mentioned that with the leave of court granted on 30th October, 2013, the 1st respondent filed a cross-appeal against the judgment of the Lower Court. I shall deal with the cross appeal separately in this judgment. Briefs of argument were filed and exchanged by the parties. At the hearing of the appeal, counsel for the parties identified and adopted their briefs as follows;

1. Mrs. Olabisi O. Soyebe (SAN) of counsel for the appellants;

(a) Appellant’s brief of argument filed on 30th January 2012 but deemed filed on 30th October, 2013;

(b) Appellants’ reply brief dated and filed on 30th April, 2014 but deemed filed on 24h June, 2014; and 1st – 6th appellants/cross respondents’ brief of argument filed on 30th April 2014.