Landmark Judgement

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IN THE SUPREME COURT OF NIGERIA

HOLDEN AT ABUJA

ON FRIDAY, THE 1ST FEBRUARY, 2019

BEFORE THEIR LORDSHIPS

MARY UKAEGO PETER-ODILI-JUSTICE, SUPREME COURT

KUMAI BATANG AKAAHS-JUSTICE, SUPREME COURT

KUDIRAT MOTONMORI OLATOKUNBO        –  KEKERE-EKUN-JUSTICE, SUPREME COURT

AMIRU SANUSI-JUSTICE, SUPREME COURT

EJEMBI EKO-JUSTICE, SUPREME COURT

SC.63/2010

BETWEEN:

1.KWARA STATE JUDICIAL SERVICE COMMISSION

2.HON. JUSTICE TIMOTHY OYEYIPO

(CHAIRMAN, KWARA STATE JUDICIAL SERVICE COMMISSION…………………… APPELLANT

3.MRS. OLALERE, SECRETARY JUDICIAL SERVICE COMMISSION

4.ATTORNEY-GENERAL OF KWARA STATE

AND

MISS YETUNDE ZAINAB TOLANI ……………………………………..…………………………… RESPONDENT

JUDGMENT

(Delivered by EJEMBI EKO, JSC)

My learned brother, MARY IKAEGO PETER-ODILI, JSC, before now had made available to me, in draft, the judgment just delivered. It represents my views in the appeal and I hereby adopt it.

The Judicial Service Commission (JSC) of Kwara State established pursuant to or by Section 197 of the 1999 Constitution, as amended, is not just a mere or ordinary State Executive Body. Its duty to act responsibly is adumbrated by Section 202 of the same Constitution that charges it, to wit –

In exercising its power to make appointment or to exercise  disciplinary control over pensions, —, the State Judicial Service commission – shall not be subject to the direction and control of any other authority or person.

This great responsibility thrusted on it is reflected by the caliber of men and women that its membership is comprised of, as can be seen from Paragraph 5 of Part IIB of the Third Schedule to the Constitution defining the power of the JSC provides, inter alia – The Commission shall have power –

(c)           to appoint, dismiss and exercise Disciplinary control over              —– Magistrates – and all other

members of the staff of Judicial Service of the State not otherwise Specified in this Constitution.

The mere vesting in the JSC by the Constitution the power to exercise disciplinary control over Magistrates and/or other officers mentioned in paragraph 6(C) of the Third Schedule thereto connotes the intention of the makes of the Constitution that the JSC, in exercising its power to dismiss or discipline, is a quasi-Judicial body. The Public Service Commission of Mid-Western Nigeria vested similar powers of disciplinary control over Public Servants was in WILSON v. A.H. BENDEL STATE (1985) LPELR – 3496 (SC) held obligated to observe the principles of natural justice in the exercise of its disciplinary powers. It is trite that a body as the JSC that is by law imbued legal authority either to discipline others or to determine any question affecting the civil rights and obligations of individuals is said to exercise judicial functions: LPDC v. CHIEF GANI FAWEHINMI (1985) LPELR – 1776 (SC); A.G. v. RYAN (1980) 2 WLR 143.

Perversity is mot am accepted attribute of any judicial or quasi-Judicial body. A decision is said to be perverse when the trial body, as the JSC, takes into account matters which it ought not to take into account in its decision, or where its decision is against the weight and trend of evidence, or when the decision taken is spurious and unreasonable: ATOLAGBE v. SHORUN (1985) LPELT – 592(SC).

The Respondent’s appointment as a Magistrate was terminated on the ground that she lied on oath in her application Form, Exhibit 9, wherein she stated that she was “SINGLE” for her marital status. The only basis for the finding by the Appellant that the Respondents lied on oath in Exhibit 9 was the unsubstantiated allegation, contained in an anonymous petition authored by a faceless character named “Abdul-Rasak Tunde Raji”, that the Respondent misrepresented her marital status in Exhibit 9. The JSC, the Appellant, through her Secretary the DW1, admitted in his testimony that marital status of an application for the position of Magistrate was not a material fact for consideration for such appointment. The Appellant nonetheless relied on such irrelevancy, by their own admission, to terminate the appointment of the Respondent as a Magistrate. In so doing they jettisoned the very basic rule of common sense or logic that what is alleged without proof can be denied without proof. Sections 134(1) and 135 (now Sections 131(1) and 132) of the Evidence Act, 2004 placed the burden of proving a fact asserted on the party alleging it. It is most preposterous and very perverse for the Appellant in their decision to terminate the Respondent’s appointment to rely on the unfounded rumour peddled by an anonymous petitioner, Abdul-Rasak Tunde Raju. That is what made their decision very unreasonable, particularly in the face of the undiscredited evidence marshaled by the Respondent in her defence, even though she was under no obligation to rebut what had not been proved or substantiated against her. The JSC had definitely let down not only the Respondent, but the entire body of the Magistrates holding their appointment and discharging their functions under it, who fervently looked up to their employer for support and protection in their arduous and hazardous lines of duty.

I find no substance in this appeal. I hereby affirm the decision of the Court of Appeal. Appeal dismissed.

EJEMBI EKO

JUSTICE, SUPREME COURT

Appearances:

J.A. Mumini, Edq., Director, Public Prosecution, Kwara State, with A.B. Daramola, Esq. for the Appellant

Salman Jawondo, Esq. with Abdu Wasiu Lawal Esq. and Andrew Apeh, Esq. for the Respondent

 

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