Hon. Justice E.i. Isuama V. Governor of Ebonyi State of Nigeria & Ors (2005)
LawGlobal-Hub Lead Judgment Report
ADEKEYE, J.C.A.
The appellant/applicant Hon. E.I. Isuama was removed from the office of the Chief Judge of Ebonyi State by the Governor of Ebonyi State by a letter communicated to him on the 13th day of September, 2000. The removal was then supported by more than two-thirds majority of the Ebonyi State House of Assembly members in accordance with the provisions of section 292(1)(a) (ii) of the Constitution of the Federal Republic of Nigeria 1999. At that point in time, the National Judicial Council, a body charged with the responsibility to investigate any complaint or act of grave misconduct against any Judge or justice and make recommendation as deems fit, was taking the necessary steps in respect of the development in Ebonyi State involving their Chief Judge, the applicant. The appellant/applicant headed for the law courts to prevent any abuse of his rights and his removal from office. He sought leave of the Federal High Court Enugu in suit No. FHC/EN/CP/188/2000, pursuant to Order 47 rules 1(1), 3 and 10 of the Federal High Court Rules 2000 to apply for an order of certiorari and prohibition, which leave was granted by that court. He thereafter filed an application before the court for judicial review asking for declaration, damages, certiorari, prohibition, perpetual mandatory injunction and perpetual injunction against the governor of Ebonyi State, Clerk of Ebonyi State House of Assembly, Ebonyi State House of Assembly, Hon. Justice Elechi, Commissioner of Police Ebonyi State Command, Inspector General of Police and The National Judicial Council. The applicant predicated his argument before the court on Article 7(1)(a) of the African Charter on Human and Peoples Rights because his major grouse was that he was removed from office without being granted the opportunity of being heard by his accusers, which was an infringement of his right under the Nigerian Constitution and the African Charter. A preliminary objection was raised to the jurisdiction of the Federal High Court and that names of the 6th and 7th respondents, the Inspector- General of police and the National Judicial Council are struck out. The court dismissed the preliminary objection and found that it had jurisdiction. Being dissatisfied with the ruling, the respondent appealed to this court. The Court of Appeal granted the application to strike out the name of the 6th respondent from the suit, but retained that of the 7th respondent, the National Judicial Council being a necessary party. The appeal was however dismissed, thus confirming the jurisdiction of the Federal High Court but the order was made that the main case be tried by another Judge of the Federal High Court. Vide pages 219-239 of the record. The case was resumed at the Federal High Court before another Judge – Justice A.A.B. Gumel. By that time the applicant had by an order of court granted on the 26th of April, 2004 amended the reliefs sought and the application for judicial review was brought pursuant to Order 47 rule 5 of the Federal High Court (Civil Procedure) Rules, 2000 and Articles 3, 7 and 26 of the African Charter on Human and Peoples Right (Ratification and Enforcement) Act, Cap. 10 Laws of the Federation, 1990.
The respondents objected to this action for being incompetent and an abuse of court process. The issue of the jurisdiction of court to entertain the application arose as this was not properly addressed by the Court of Appeal in its judgment. It is the contention of the respondents that the reliefs being sought and the parties before the court do not come under the provisions of section 251(1) of the Constitution affecting the jurisdiction of the Federal High Court.
The 1st and 2nd respondents are State Agencies, while the facts of the case do not disclose any right of action against the 3rd respondent. The reliefs being sought are not predicated on the African Charter on Human and Peoples Rights and are therefore not cognizable before the Federal High Court.
The respondents before the court were reduced to three, the Governor of Ebonyi State, Ebonyi State House of Assembly and the National Judicial Council. The applicant relied upon the Court of Appeal’s decision in Governor of Ebonyi State & Ors. v. Isuama (2004) 6 NWLR (pt. 870) 511 to hold that the issue of jurisdiction cannot be reopened. If the court were to hold that the issue of jurisdiction is not res judicata, the court has ample jurisdiction over the matter. All the respondents have constitutional roles to play in the matter. The Federal High Court in its ruling declined jurisdiction in the matter. It held that the suit ought not to have been brought against the 3rd respondent based on the averments in the affidavit in support of the action. The case was struck out by the court based on the case of NEPA & Ors. v. Edegbero (2002) 18 NWLR (pt. 798) 79 and Arjay Limited v. Airline Management Support Lid. (2003) 2 SCNJ 148; (2003) 7 NWLR (Pt.820) 577.
Being aggrieved by the ruling delivered on the 14th day of July, 2004, the Hon. Justice E.I. Isuama appealed to this court. Processes of appeal were complied with in accordance with the Court of Appeal Rules, 2002. Briefs were filed and exchanged by the parties. At the hearing of the appeal, the appellant relied on his brief filed on 7/12/04 and the reply brief filed on 26/5/05. In the appellant’s brief two issues were settled for determination as follows:
(1) Whether the issue of jurisdiction raised suo motu by the learned trial Judge is not res judicata and if answered in the affirmative, whether the trial Judge could in law sit on appeal over the earlier finding of his learned brother and the Court of Appeal on the same issues and in the same suit after arguments inter parties.
(2) Whether in the circumstance of this case 3rd respondent – National Judicial Council acted as an agency of the 1st respondent or as an agency of the Federation pursuant to section 153 of the Constitution which conferred jurisdiction on the lower court?”
The respondents adopted and relied on the brief filed on 8/5/05 whereupon two issues were formulated as follows:-
(a) Whether res judicata operated in this case to rob the court the jurisdiction to entertain arguments on jurisdiction.
(b) If the answer is in the negative whether as constituted on the date the lower court directed the parties to address it on jurisdiction, the court was right in holding that it had no jurisdiction.
Since the issues raised by the respondents are subsumed in the appellant’s issues, I shall adopt the appellant’s issues for the purpose of this appeal. I also observe that both issues can be argued together.
The appellant argued and submitted that a State High Court though will have jurisdiction over the 1st and 2nd respondents, it definitely will not have over the 3rd respondent to grant order of prohibition, injunction and demand for payment of salaries against it. Where there is total jurisdiction over claims and parties in a matter as against another court with partial jurisdiction over claims and parties, the former with total jurisdiction would be more competent to hear and determine the matter. The learned Judge speculated into the possibilities of suits Nos. AD/90M/2000 and AB/1051/2000 in determining his jurisdiction when no material facts about these suits were placed before him. By considering those suits, the learned trial Judge took extraneous matters into consideration and that affected his decision on the issue of jurisdiction of his court. The appellant urged the court to allow the appeal, and referred to the cases of Brawal Shipping Ltd. v. E.C.S Ltd. (2001) 14 NWLR (Pt. 732) 172; FGN v. Oshiomhole (2004) 3 NWLR (Pt. 860) 305; NEPA v. Edegbero (2002) 18 NWLR (Pt. 798) 79; Unreported case of Olugbani v. Governor of Lagos State suit No. FHC/L/CS/99/2003; Mobil Oil (Nig.) Plc. v. IAL 36 Inc. (2000) 6 NWLR (Pt.659) 146; Cardoso v. Daniel (1986) 2 NWLR (Pt. 20) 1; Arubo v. Aiyeleru (1993) 3 NWLR (Pt. 280) 126; Fawehinmi v. Attorney-General of Lagos State No.2 (1989) 3 NWLR (Pt.112) 740; Oshatoba v. Olujitan (2000) 5 NWLR (Pt. 655) 159.
The respondent urged this court to dismiss this appeal as the cause of action upon which the court below initially held it had jurisdiction namely breach of the African Charter on Human and Peoples Rights did not feature in the amended reliefs sought and therefore res judicata does not arise.
The reliefs sought at the hearing did not include any legal grievance against the 3rd respondent.
The remaining two parties are clearly under the jurisdiction of the State High Court.
The appellant having attained his retiring age, the extant reliefs sought are clearly within the exclusive jurisdiction of the State High Court.
The respondent cited the case of Oloba v. Akereja (1988) 7 SCNJ (Pt. 1) 56; (1988) 3 NWLR (pt. 84) 508.
I have painstakingly considered the issues raised and submission of counsels in this appeal. It is however noteworthy that the appellant had to bow out of the service of Ebonyi State on attaining the statutory age of 65 years on the 12th of November, 2004. His grouse and the cause of action is the unsavoury way he had been relieved of his post as Chief Judge of Ebonyi State prematurely before his statutory retiring age of sixty-five years and without being afforded the opportunity of a hearing to defend himself. The notice of his removal from office was served on him by a letter dated the 13th of September, 2000 emanating from the executive Governor of the State acting on a resolution passed by the 2nd respondent. The 3rd respondent was joined in the suit by an order of this court as a proper party because of its role under the constitution in respect of the appointment and removal of superior court Judges of all cadres in the country, Vide section 153, and Part 1, item 21 paragraphs a-i of the third Schedule of the 1999 constitution of the Federal Republic of Nigeria. The 3rd respondent – National Judicial Council is a proper party to an application for judicial Review for the Removal of a High Court Judge from office. In this instance the National Judicial Council was in the process of exercising this power. Vide the letter dated 2nd of August, 2000 to the Governor of Ebonyi State Ref. No. NJC/S.584.11.780. The appellant’s efforts to seek redress in court against his removal from office had been stultified by the issue of a condition precedent, determination of which court is competent to entertain the suit as parties concerned are public officers, the 1st and 2nd respondents and even the appellant are state functionaries- Ebonyi State. In the circumstance of this case, the court will have to decide whether the National Judicial Council is a Federal or State Agency.
The issue of jurisdiction is fundamental being the crucial question of competence of a court. It is the power of the court to decide a matter in controversy and this presupposes the existence of a duly constituted court with control over the subject-matter and the parties. Courts are creatures of statutes and the jurisdiction is therefore confined, limited and circumscribed by the statute creating it. A court cannot give itself jurisdiction by misconstruing a statute. Ogunmokun v. Milad Osun State (1999) 3 NWLR (Pt.594) 261; African Newspapers of Nig. v. Federal Republic of Nigeria (1985) 2 NWLR (Pt.6) 137; Madukolu v. Nkemdilim (1962) 2 SCNLR 341.
Parties relied heavily on the case of NEPA v. Edegbero (2002) 18 NWLR (Pt.798) 79 (supra) which has suddenly become the locus classicus on the proper court for instituting an action against a Federal Government Agency. I would like to point out that the case arose from unlawful dismissal of the respondent – Edegbero based on a contract of employment. The Supreme Court held that it is the Federal High Court that has jurisdiction to entertain the suit. This case thereby established the new doctrine and concept of party jurisdiction, which in effect means that where the parties are agencies of the Federal Government irrespective of whatever the claim, whether for declaration, or injunction or damages, it is the Federal High Court that has jurisdiction. The case did not decide on subject-matter jurisdiction.
The National Judicial Council has a unique role to play in the affairs of the Judiciary of this country, in respect of the appointment, discipline and removal of justices or judges. It is empowered to play this role by the constitution to both Federal government and State government judiciary alike.
The National Judicial Council can be a party to a suit at any of the courts, Federal or State in which the issue of the appointment or removal of a judge is being questioned. I observe from the records that the reliefs sought at the lower court in the amended application covers judicial review brought pursuant to Articles 3, 7 and 26 of the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act, Cap. 10, Laws of the Federation 1990. By virtue of Order 1 rule 2 of the fundamental Rights (Enforcement Procedure) Rules made pursuant to the 1979 Constitution, a court is defined as the Federal High Court or the High Court of a State.
Section 46 of the 1999 Constitution is a special provision which deals with matters of fundamental Rights. It confers jurisdiction on any High Court in a state in matters of fundamental rights irrespective of who is affected by an action founded on such rights. Section 42 of the 1979 Constitution is now 46 of the 1999 Constitution. Decree 107 of 1993 did not repeal or abrogate the provision of Section 42 of the 1979 Constitution in respect of the enforcement of fundamental right; rather, the Decree preserved the provisions. In short, a person whose fundamental right is breached, being breached or about to be breached may apply to a High Court or Federal High Court in that state for redress. Jack v. University of Agriculture Markudi (2004) 5 NWLR (Pt.865) 208.
In this instance the appellant was relieved of his post as a Chief Judge by the same government which employed him and paid his salaries in his own State – Ebonyi State. He was not heard before he was served with a letter and moves were made to deprive him of all the rights and benefits attached to that post. The cause of action here to my mind should have been predicated on wrongful dismissal from employment or breach of a contract which is supposed to terminate on his attaining the age of sixty-five years, in other words, he was supposed to be in office until the 14th of November, 2004.
His relief cannot be brought under the Fundamental Rights Procedure. Wrongful dismissal is a relief under the common law which should be commenced by a writ of summons and the trial based on the pleadings of the parties to which the rules of pleadings must apply. Fundamental Rights Enforcement rules is constitutional and is a special procedure, it is not applicable to an action which is mainly and substantially for wrongful dismissal.
Tukur v. Government of Taraba State (1997) 6 NWLR (pt. 510) 549; Egbuonu v. Bomu Radio Television Corporation (1997) 12 NWLR (pt. 531) 29; Sea Trucks (Nig.) Ltd. v. Anigboro (2001) 2 NWLR (pt. 696) 159.
In view of the fact that the appellant is now statutorily out of office as a judicial officer, an action for wrongful dismissal would be more appropriate in which necessary parties must be brought before the High Court of Ebonyi State.
The appeal lacks merit and it is dismissed accordingly. No order as to costs.
Other Citations: (2005)LCN/1845(CA)
