IN THE SUPREME COURT OF NIGERIA
ON FRIDAY, THE 17TH DAY OF FEBRUARY, 2012
SUIT NO: SC.281/2010
Between
1. HON. JUSTICE RALIAT ELELU-HABEEB
(Chief Judge of Kwara State)
2. NATIONAL JUDICIAL COUNCIL – Appellants
AND
1. THE HON. ATTORNEY GENERAL OF THE FEDERATION)
2. THE HON. ATTORNEY GENERAL OF KWARA STATE) – Respondents
3. THE HOUSE OF ASSEMBLY OF KWARA STATE)
Summary of Judgment
By an originating summons filed on 6/5/09 at the Federal High Court Ilorin by Justice Raliat Elelu-Habeeb Chief Judge Kwara State, against the A-G Federation, the A-G Kwara State and the House of Assembly Kwara State. Two questions were submitted for determination and five distinct reliefs sought from the Federal High Court, herein after referred to as trial court.
All the defendants, with the exception of the 1st defendant, Hon. A-G of the Federation, raised an objection one way or the other, as to the jurisdiction of the trial court to entertain and to determine the action by the plaintiff. In their preliminary objections they maintained that since the plaintiff’s action relates to an action or complaint against the Executive and legislative decisions of the Kwara State Government with no allegation against the Federal Government or any of its agencies, Federal High Court lacks jurisdiction to hear her case. Various affidavits and further counter-affidavits were filed by all parties in support of their respective stand on the issue raised in the preliminary objections and the originating summons. It was decided by the trial court that all the preliminary objections have no merit and same were dismissed by the trial court on 23/7/2009. That court’s reasoning was to the effect that the plaintiff’s case involved the serious interpretation of the provisions of the 1999 Constitution; the Federal High Court was therefore conferred with the jurisdiction to hear and determine the action. The trial court then held that the plaintiff, the Hon. CJ, Kwara State, was entitled to all her reliefs claimed and granted them. See pp. 676 at 719 – 720 of the record where learned trial Judge has this to say:-
“That a harmonious interpretation of all the related provisions aforementioned will show that the Governor of the State and the House of Assembly of the State can only exercise their powers of appointment and removal of the State Chief Judge in conjunction with the 1st defendant. It follows therefore that both cannot initiate disciplinary proceedings against the plaintiff as the Chief Judge without the input of the 1st Defendant which is in charge of all judicial affairs in this country. The letters of the Governor to the 3rd defendant which is not based on the recommendation of the 1st defendant and the letters of the 3rd defendant are all a nullity having not complied with the constitutional provisions aforementioned. I answer question one in the negative and question two in the positive. Consequently I hold as follows:-
1. By the combined effect of section 6,153(1)(i), paragraph (d) of the 3rd schedule to the Constitution, Section 271(1), and Section 292(1)(a)(ii) of the 1999 Constitution, the 3rd defendant has no power to initiate disciplinary proceedings against the plaintiff as the Chief Judge of the Kwara State. The power to initiate such disciplinary proceedings and make recommendations for the removal of the plaintiff as the Chief Judge of Kwara State is conferred by the above provisions of the Constitution to the 1st defendant, the National Judicial Council.
2. Consequently, the proceedings of the 3rd defendant triggered by the letter of the Governor of Kwara State written to it, and which led to the purported removal of the plaintiff as the chief Judge without the recommendation of the 1st defendant are declared null and void, and hereby set aside.
3. Any action or decision taken in pursuant of the proceedings of the 3rd defendant aforesaid against the plaintiff as the Chief Judge of Kwara State, without the recommendation of the 1st defendant are hereby declared null and void.
4. The 3rd defendant and the Government of Kwara State represented by the 4th defendant in this case are restrained from further acting on the conclusions reached against the plaintiff based on the letter dated 4th May, 2009”
Aggrieved by the above decision, 2nd, 3rd & 4th defendants/Respondents appealed to the Court of Appeal Ilorin Division. The three Notices of Appeal excluded the 1st Defendant/Respondent at the trial court from the list of parties in the appeals. However on a second thought the 1st defendant has applied to be joined on the side of the respondents which application was granted.
Full court formed a panel in the Court of Appeal. Split judgments of 4-1 were delivered on 2/7/2010.
The majority judgment was delivered on 2nd July, 2010 to show that the trial Federal High Court lacked jurisdiction to adjudicate upon the case of the plaintiff and held that the matter ought to have been taken to the High Court of Kwara State for hearing and determination having regard to the parties and subject matter of the action.
The Court of Appeal proceeded to hear the matter on its own merit and held that the decision they earlier on set aside was after all correctly decided by the trial court and the decision of the trial court was affirmed by the court below.
All the parties in the Court of Appeal, with the exception of the Hon. A-G of the Federation, were aggrieved and decided to lodge an appeal and cross-appeal to the Supreme Court against parts of the judgment that the parties were not satisfied with, appeal was then lodged to the Supreme Court. The supreme court after due consideration of the appeal before it held that the cross appeal lacks merit and dismissed it and it went ahead to uphold the decision of the trial court.
Appearances
Chief A. S. Awomolo (SAN) with O. A. Aiyemowa for the 1st Appellant/Cross-Respondent For the Appelants
J. B. Daudu (SAN) with E. O. Maduka (Miss) and O. O. Kehinde for the 2nd Appellant/Cross-Respondent
R. A. Lawal Rabana (SAN) with Aliyu Saiki for the 1st Respondent
A. O. Adelodun (SAN) with A. Abdulraheem for the 2nd Respondent/Cross Appellant
Yusuf Ali (SAN) with K. K. Eleja, T. B. Olurode (Miss), T. E. Akinriade (Miss) and K. T. Sulaiman (Miss) for the 3rd Respondent/Cross-Appellant.
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