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Hon. Justice Raliat Elelu-habeeb & Anor V. The Hon. Attorney General Of The Federation & Ors (2012) LLJR-SC

Hon. Justice Raliat Elelu-habeeb & Anor V. The Hon. Attorney General Of The Federation & Ors (2012)

LAWGLOBAL HUB Lead Judgment Report

MAHMUD MOHAMMED, J.S.C

The action that gave rise to the present appeal number SC.281/2010 was brought by Originating Summons filed on 6th May, 2009 at the Federal High Court Ilorin by Honourable Justice Raliat Elelu-Habeeb, as the Plaintiff against the National Judicial Council, the Hon. Attorney General of the Federation, the Honourable Attorney General of Kwara State and the House of Assembly of Kwara State as Defendants. The Originating Summons submitted two questions for determination followed by a request of 5 distinct reliefs from the trial Court. The questions for determination are-

“1. Whether by the combined interpretation of Section 153(1)(i) paragraph 21(a) of the 3rd Schedule and Section 271 of the Constitution of the Federal Republic of Nigeria, 1999, the 3rd Defendant has the power to initiate or carry out any exercise of disciplinary control and or proceedings on the Plaintiff in the exercise of powers, duties and obligation as occupier of the office of the Chief Judge of Kwara State.

  1. Whether the letter of 3rd Defendant dated 4th May, 2009 inviting the Plaintiff to Disciplinary proceeding in matters relating to, connected with and arising from the exercise of her functions as the Chief Judge of Kwara State does not amount to exercising the powers of the 1st Defendant under Section 153, 3rd Schedule, Part 1, paragraph 21 of the Constitution of the Federal Republic of Nigeria, 1999.”

While the reliefs sought are as follows-

“1. Declaration that a combined interpretation of sections 4, 153, 292 and paragraphs 20, 21 of the 3rd Schedule, Part 1 of the Constitution, it is only the 1st Defendant that has the exclusive power and authority to query, command, order or inquire into any complaint against the Plaintiff arising from or connected with the performance of her functions as a Judicial Officer and in her office as the Chief Judge of Kwara State or recommend to the Governor her removal as Chief Judge of Kwara State.

  1. A declaration that the letter of the Kwara State House of Assembly dated 4th may, 2009 is in breach and violation of the constitution of the Federal Republic of Nigeria, 1999 in so far as it relates to, connected with the Plaintiff in exercise of her functions in the office of the Chief Judge of Kwara State and therefore null and void.
  2. An order setting aside, nullifying and putting away the decision of the 3rd and 4th Defendants (Kwara State House of Assembly) contained in the 3rd Defendant’s letter dated 4th May, 2009 and any other steps taken thereon in so far as it relates to the office of the plaintiff, as the chief Judge of Kwara State, the same being inconsistent with sections 153, 197, 271 (2) of the 3rd Schedule of the constitution of the Federal Republic of Nigeria, 1999.
  3. An order of Perpetual Injunction restraining the Defendants particularly the 3rd Defendant and the Government of Kwara State by themselves, through their officers, privies or any other persons deriving power, command, authority,instruction or directives from any of the Defendants from acting or relying on, or continuing to rely on, act on, implement, give effect to or do anything to the prejudice of the Plaintiff based on the decision contained in the letter dated 4th May, 2009 in so far as the decision is related to the office of the Plaintiff as the Chief Judge of Kwara State.
  4. An order of Perpetual Injunction restraining the Defendants from acting on the decision arising from and connected with the 3rd Defendant letter dated 4th May, 2009 and from taking any actions, acts, decisions, conclusions, directives, command and such other Deeds geared towards the office of the Plaintiff or doing anything which may have the effect of enforcing, continuing to give effect to, implement or finally putting into effect the conclusions and decision of the Kwara State House of Assembly.”

Although there were preliminary objections raised by the 2nd and 3rd Respondents to the competence of the Plaintiff’s action on various grounds touching on the jurisdiction of the trial Court to entertain and determine the action, the learned trial Judge decided to hear the preliminary objections together with the substantive action. It is observed that all the Defendants/Respondents to the Plaintiff’s Originating Summons except the 1st Defendant/Respondent, raised objections to the competence of the trial Federal High Court to adjudicate on the matter, having regard to the fact that the complaint of the Plaintiff was against the Executive and Legislative decisions of the Kwara State Government with no allegation against the Federal Government or any of its agencies. After hearing the parties on the preliminary objections and the Plaintiff’s claims on the merit on the various affidavits, further affidavits, counter-affidavits filed by the parties in support of their respective stand on the issues raised in the preliminary objections and the Originating Summons, the learned trial Judge in the judgment of the trial Court delivered on 23rd July, 2009, overruled the Preliminary Objections by dismissing them in holding that taking into consideration that the case of the Plaintiff involves the interpretation of the provisions of the Constitution of the Federal Republic of Nigeria 1999, the trial Court was conferred with jurisdiction to hear and determine the action. In this respect, the learned trial Judge after considering the claims of the Plaintiff against the provisions of the Constitution in support of the claims and the Defendants’ opposition of the same came to the conclusion that the Plaintiff was entitled to all the reliefs claimed and preceded to grant them.

The 2nd, 3rd and 4th Defendants/Respondents who were aggrieved with the judgment of the trial Federal High Court immediately lodged their respective appeals against the judgment to the Court of Appeal Ilorin Division. The notices of appeal however excluded the 1st Defendant/Respondent at the trial Court from the list of parties in the appeals at the Court of Appeal. However, on the application by the 1st Defendant/Respondent, it was later joined in the appeals on the side of the Respondents. The appeals were heard by a panel of full Court of five Justices of the Court of Appeal having regard to the Constitutional importance of the issues that arose for determination. In a split judgment of 4 to 1, delivered on 2nd July, 2010, that Court came to the conclusion that the trial Federal High Court lacked the jurisdiction to adjudicate upon the case of the Plaintiff and held that the matter ought to have been taken to the High Court of Justice of Kwara State for hearing and determination having regard to the parties and the subject matter of the case. In the same judgment however, the Court of Appeal proceeded to hear the matter on the merit and came to the decision that the trial Federal High Court was right in its decision on the merit of the claims of the Plaintiff and consequently affirmed the decision of the trial Court. It is glaringly clear from the record of the this appeal that all the parties at the Court of Appeal except the Hon. Attorney General of the Federation, were not happy with the judgment of the Court and therefore decided to appeal and cross-appeal to this Court against parts of the judgment that the parties were not satisfied with.

While the Plaintiff at the trial Court and the 1st Defendant/Respondent in that Court, the National Judicial Council who were the Respondents at the Court of Appeal were not pleased with the decision of the Court of Appeal on the issue of jurisdiction of the Federal High Court to entertain and determine the case of the Plaintiff, the 3rd and 4th Defendants/Respondents at the trial Court, who were Appellants at the Court of Appeal, decided to challenge the decision of the Court of Appeal in deciding to hear and determine the matter on the merit in spite of its decision that the Federal High Court lacked jurisdiction to deal with the matter and therefore filed their respective cross-appeals against that part of the decision of the Court of Appeal. The Attorney General of the Federation, who was on the side of the Appellants at the Court of Appeal, has neither filed an appeal nor a cross-appeal, as the cross-appeal earlier filed on his behalf was later withdrawn and struck out before the appeals and the cross-appeals proceeded to hearing in this Court.

Taking into consideration the position of the parties at the trial Court, the Court of Appeal and in this Court where both Appellants/Cross-Respondents and the Respondent/Cross-Appellants chose to pursue their respective cases separately, I have decided to list the parties in this single appeal number SC.281/2010 as follows –

“1. Hon. Justice Raliat Elelu-Habeeb – 1st Appellant/Cross-Respondent

  1. National Judicial Council- 2nd Appellant/Cross-Respondent

AND

  1. The Hon. Attorney General of the Federation – 1st Respondent
  2. The Hon. Attorney General of Kwara State – 2nd Respondent/Cross-Appellant
  3. The House of Assembly of Kwara State – 3rd Respondent/Cross-Appellant.”

Henceforth in this judgment, the parties shall be referred to according to their respective designations specified above.

Before proceeding to deal with the issues arising for determination in the appeals and the cross-appeals respectively, I shall first tackle the two separate notices of Preliminary objection raised by the 2nd and 3rd Respondents/Cross-Appellants to the appeal filed by the 2nd Appellant, on the grounds that the appeal of the 2nd Appellant as a whole is incompetent, irregular and misconceived and that the same ought to be struck-out because:-

i. The Appellant is not an aggrieved person within the con of the judgment appealed against.

ii. The decision appealed against is not in any way prejudicial to any interest of the Appellant.

iii. The decision appealed against has not deprived the Appellant of any right.

For the 3rd Respondent/Cross-Appellant, it was urged by its learned senior Counsel that the appeal by the 2nd Appellant is incompetent and ought to be dismissed or struck-out on the grounds among others that:-

  1. The Appellant had no claim or counter-claim before the trial Court.

ii. No relief was also sought against the Appellant by any of the parties before the trial Court.

iii. The Court of Appeal in allowing the appeal of the 2nd and 3rd Respondents/Cross-Appellants did not also make any order against the Appellant.

iv. The grievances arising from the decision of the Court of Appeal were/are referable only to the 1st Appellant whose case before the trial Court was held incompetent on the ground of want of jurisdiction of the trial Federal High Court.

v. The Appellant does not fall within the meaning of an aggrieved person in law to justify its filing an appeal to this Honourable Court against the decision of the Court of Appeal.

vi. The Appellant has not suffered any legal grievance to justify its filing an appeal.

vii. The appeal by the Appellant is unsupportable in law and it is therefore an abuse of Court process.

viii. It is in the interest of justice to dismiss or strike-out the Appellant’s appeal.

For the 2nd Respondent/Cross-Appellant, it was argued by his learned Counsel that the Notice of Appeal as well as the Appellants brief of argument filed by the Appellant, are misconceived and incompetent, the Appellant not being a person aggrieved by the judgment of the Court of Appeal in the eyes of the law, if the definition of the term – ‘person aggrieved’ given by this Court in Ngige v. Obi (2006) All F.W.L.R. (Pt.330) 1041 at 1088; Societe General bank Nig. Ltd v. Afokoro (1999) 11 N.W.L.R (Pt.628) 521 at 537 – 538 and Sun Insurance Office Ltd v. Ojemuyiwa (1956) All N.L.R. 1, is taken into consideration; that with the appeal of the 1st Appellant/Cross-Respondent firmly on the ground against the judgment of the Court of Appeal on the issue of jurisdiction, the appeal by the Appellant on the same issue is an abuse of judicial process even on the fact of the pronouncement of the Court of Appeal that the Appellant must also have an input in the removal of the Plaintiff/1st Appellant/Cross/Respondent. Learned senior Counsel in further reliance on the case of Omotesho v. Abdullahi (2008) 2 N.W.L.R. (Pt. 1072) 526 at 543 – 544, asserted that the Appellant as a Defendant before the Court below, not having been deprived of something nor wrongfully refused anything to justify its complaint, had no business to appeal against the decision of the Court of Appeal and therefore urged this Court to sustain the preliminary objection and strike out the appeal.

The learned senior Counsel for the 3rd Respondent/Cross-Appellant also raised similar preliminary objection to the 2nd Appellants appeal virtually on the same grounds as raised by the learned senior Counsel to the 2nd Respondent/Cross-Appellant in that having regard to the decisions in Akinbiyi v. Adelabu (1956) S.C.N.L.R. 109 at 111; Mobil Production (Nigeria) Unlimited v. Monokpo (2003) 18 N.W.L.R. (Pt. 852) 346 at 398 – 399, the Appellant is not qualified as a person aggrieved to exercise any right of appeal against the judgment of the Court of Appeal and therefore urged this Court to sustain the preliminary objection.

What has to be determined in these preliminary objections is whether the learned senior Counsel to the preliminary objectors are correct in law in holding out or portraying the 2nd Appellant as a party which is not aggrieved or in anyway affected adversely by the judgment of the Court of Appeal on the issue of jurisdiction in that the trial Federal High Court lacked jurisdiction to hear and determine the claims of the Plaintiff/1st Appellant/Cross-Respondent in the Originating Summons filed in that Court. In the case of Akinbiyi v. Adelabu (1956) S.C.N.L.R. 109, Foster-Sutton, F.C.J. of the then Federal Supreme Court had this to say on a person entitled to appeal at page 111-

“The only person entitled to appeal is a person aggrieved. In Ex-parte Sidebotham 14 ch. D465 James L.J., said a ‘person aggrieved must be a man who has suffered a legal grievance”

This decision was cited and applied by this Court in a number of cases including Mobil Production (Nigeria) Unlimited v. Monokpo (2003) 18 N.W.L.R. (Pt. 852) 346 at 398 – 399 where Uwaifo, JSC put the position of the law thus-

“it is true that the judgment of the trial Court which was affirmed by the Court below was given against only the 2nd Defendant. In effect the first Defendant is not an aggrieved party that can appeal against the judgment of the Court below to this Court simply on the basis that it was a party to the proceedings in which judgment was given in reliance on the provision of Section 233(5) of the 1999 Constitution which says that:

Any right of appeal to the Supreme Court from the decision of the Court of Appeal conferred by “this Section shall be exercisable in the case of civil proceedings at the instance of a party thereto.” That provision must be understood to apply to an aggrieved person or party.

A party to the proceedings cannot appeal a decision arrived thereat which does not wrongfully deprive him of an entitlement or something which he had a right to demand. Unless there is such a grievance, he cannot appeal against a judgment which has not affected him since the whole exercise may turn out to be academic. Under no circumstance can it be argued that a party to proceedings who has not been affected by a decision may never-the-less appeal against it merely as a party.

Applying these decisions to the present case, it is not at all in dispute that the 2nd Appellant, the National Judicial Council was a party in the case at the trial Court as the 1st Defendant or 1st Respondent as the case was began by Originating Summons. It is also undisputed from the record of this appeal that the subject matter of the case brought before the trial Court, included the interpretation of the 1999 Constitution in Sections 153, 292 and paragraphs 20, and 21 of the 3rd Schedule, Part 1 thereof.

Although the preliminary objectors in their notices of appeal against the judgment of the trial Court to the Court of Appeal attempted to exclude the 2nd Appellant from the list of parties in the Court of Appeal, the Court of Appeal on an application joined the 2nd Appellant as a necessary party in the appeal before it as the 1st Respondent. As the decision of the Court of Appeal now being challenged in the appeal by the Appellant relates only to the aspect of the decision on the issue of jurisdiction, the Appellant as a party against whom the decision was given, has a right to appeal against it by virtue of Section 233(5) of the Constitution of the Federal Republic of Nigeria 1999. What remains to be determined in line with the decisions in the cases of Akinbiyi v. Adelabu (supra) and Mobil Production (Nig.) Unltd. v. Monokpo (supra), is whether the Appellant on the facts of this case has satisfied the requirement of being a person aggrieved, or a person who has suffered a legal grievance, or a person against whom a decision has been pronounced which has wrongfully refused him something or wrongfully affected his title to something. See Societe General Bank Nigeria Ltd v. Afokoro (1999) 11 N.W.L.R. (Pt. 628) 521 at 537 – 538.

Looking at the 4 grounds of appeal contained in the Appellant’s Notice of appeal and the lone issue identified from the grounds of appeal for determination of the Appellant’s appeal, the only part of the judgment of the Court of Appeal being appealed against is that part declaring that the trial Federal High Court lacked jurisdiction to adjudicate in the action brought before that Court by the Plaintiff/1st Appellant/Cross-Respondent. Since Section 153 of the Constitution and paragraphs 20 and 21 of Part 1 of the Third Schedule to the same Constitution which deal with the composition of the National Judicial Council and its powers and role in the appointment and discipline of Judicial Officers is the subject of interpretation and application in the case at the trial Court and the Court of Appeal, it is certainly not correct to say that the Appellant is not a person aggrieved in the present case. The Appellant as a party in the case at the trial Court and the Court of Appeal whose decision is the subject of this appeal, is definitely a person who has suffered a legal grievance and a person against whom a decision has been pronounced as to the appropriate Court that has jurisdiction to interpret and apply the provisions of the Constitution in relation to its powers and duties under the Constitution. This case is not on all fours with the case of Mobil Production (Nig.) Unltd v. Monokpo (supra) where the judgment of the trial Court affirmed by the Court of Appeal was given against only the second Defendant thereby turning the first Defendant who sought to appeal to the Supreme Court against the concurrent judgments of the Courts below to a person not aggrieved that can appeal against the judgment of the Court, In the case at hand however, the judgment of the Court of Appeal declaring that the trial Federal High Court which heard and determined the case lacked jurisdiction to adjudicate in the matter, was definitely given not only against the 1st Appellant/Cross-Respondent who was the Plaintiff at the trial Court but also against the 2nd Appellant as well. Thus, for the above reasons, I am of the view that the 2nd Appellant/Cross-Respondent’s appeal is quite competent. The preliminary objections of the 2nd Respondent/Cross-Appellant and the 3rd Respondent/Cross-Appellant having failed are hereby dismissed.

The Appeals

I shall now proceed to deal with the appeals of the Appellants starting with the 1st Appellant’s appeal. The learned senior Counsel for the 1st Appellant Chief Awomolo in his Appellant’s brief of argument, Appellant’s reply brief and oral submission, pointed out that from the judgment of the trial Court, it is quite clear that the trial Court confined itself to the claims of the Plaintiff in determining the jurisdiction of the Court under Section 251(1) (q) of the 1999 Constitution. It is for this reason that in the Appellant’s brief of argument; only one issue was raised for determination. The issue reads:-

“1. Whether the Court of Appeal was right when it declared that the Federal High Court has no jurisdiction to interpret the provisions of the Constitution as contained in the Originating Summons of the Appellant when the interpretation affects exercise of Constitutional powers of the National Judicial Council, a Federal Government agency.”

The learned senior Counsel in arguing this Issue asserted that the jurisdiction of Court to exercise judicial powers over any cause or matter is determined by the claims of the Plaintiff as stated in the case of Adeyemi v. Opeyori (1976) 9 – 10 S.C. 18 at 31. With regard to the exclusive jurisdiction of the Federal High Court under Section 251(1), learned senior Counsel called in aid several cases on the subject particularly Ladoja v. INEC and Ors, (2007) 7 S.C. 99 at 160 and Obi v. INEC & Ors. (2007) 7 S.C. 268 at 305 and argued that taking into consideration the parties in the case at the trial Court particularly the National Judicial Council which is directly connected with the appointment, discipline and removal of judicial officers under Section 153 and paragraphs 20 and 21 of part 1 of the Third Schedule to the Constitution, the Court of Appeal was in error in holding that the Federal High Court had no jurisdiction to determine the claims contained in the Originating Summons filed before it. Learned senior Counsel explained that the Appellant did not go to the trial Court to challenge her removal from office as erroneously held by the Court of Appeal but merely to complain against the conduct of the 3rd Respondent in its letter inviting her to the House of Assembly which falls within the jurisdiction of that Court under Section 251(1)(q) to adjudicate in all matters connected-with the interpretation and operation of the Constitution so far as it affects the Federal Government or any of its agencies. Learned senior Counsel concluded by citing the case of NEPA v. Edegbero (2003) F.W.L.R. (Pt. 139) 1556 to assert that the Federal High Court was right in holding that it has the jurisdiction to hear and determine the Appellant’s claims and therefore urged this Court to allow the appeal, set aside the decision of the Court of Appeal on the issue of jurisdiction and restore and affirm the decision of the trial Court.

See also  Jackie Phillips V. Arco Ltd (Pharmaco Biological Institute) (1971) LLJR-SC

In the 1st Respondent’s brief of argument filed on behalf of the Hon. Attorney General of the Federation by his learned senior Counsel Lawal Rabbana, the lone issue framed for the determination of the appeal is-

“Whether the lower Court was right in holding that the Federal High Court lacked jurisdiction to entertain and determine the Appellant’s case when there was no claim nor cause of action against any agent of the Federal Government.”

Learned senior Counsel opened his argument by pointing out that all what is required in resolving the issue for determination is to answer the question of whether the Federal High Court has the jurisdiction to entertain the Appellant’s claims under Section 251(1)(q) of the Constitution taking into consideration of the definition of the word ‘jurisdiction’ in the cases of D.E.N.R. Ltd v. Trand International Bank Ltd (2008) 18 N.W.L.R (pt.1119) 388 at 435 and Oduka v. Government of Ebonyi State of Nigeria & 3 Ors (2009) 3 – 4 S.C. 154 at 169; that from the questions for determination and the reliefs sought by the Plaintiff in the Originating Summons; it is glaring that the subject matter of the dispute in this suit is the removal from office of the Plaintiff/Appellant as the Chief Judge of Kwara State by the Kwara State House of Assembly and the Governor; that the subject matter of the suit is the office of the Chief Judge of Kwara State created by Section 271 of the 1999 Constitution which does not make it a Federal Government agency and that since the House of Assembly and the Governor of Kwara State whose actions are being challenged are not agents of the Federal Government within the contemplation of Section 251(1)(q) of the Constitution, the Federal High Court lacks jurisdiction over them and the subject matter of the action. Learned senior Counsel while conceding that the National Judicial Council and the Attorney General of the Federation are agents of the Federal Government, but as no cause of action had been disclosed against them to vest jurisdiction in the Federal High Court, the Court below was right in its decision that that Court lacked jurisdiction in the matter if decisions of this Court in Inakoju v. Adeleke (2007) 4 N.W.L.R. (Pt. 1025) 427 at 588 – 589; Omomeji v. Kolawole (2008) 14 N.W.L.R. (Pt. 1106) 180 at 206 and Attorney General Kano State v. Attorney General of the Federation (2007) 6 N.W.L.R. (Pt, 1029) 164 at 192, are taken into consideration, particularly as in this case where the Plaintiff/Appellant has no claim whatsoever against the 1st Respondent or the 2nd Appellant, the National Judicial Council. Learned senior Counsel therefore concluded by urging this Court to dismiss the appeal.

For the 2nd Respondent, the Hon. Attorney General of Kwara State, his learned senior Counsel, Adelodun in the Respondent’s brief of argument filed on 22nd September, 2010, saw the issue for determination in this appeal as follows-

“Whether having regard to the nature of this suit, particularly the reliefs sought, the lower Court was not right in holding that the Federal High Court had no jurisdiction to hear and determine the Appellant’s case.”

Learned senior Counsel to 2nd Respondent is also of the strong view that the law is well settled that in the determination of the question whether or not a Court has jurisdiction to adjudicate on a matter, the primary consideration is the Plaintiff’s statement of claim, which in this case is the Appellant’s Originating Summons showing the reliefs sought as laid down in Adeyemi v. Opeyori (1976) 10 N.S.C.C. 455 at 464, cited and applied in Inakoju v. Adeleke (2007) 4 N.W.L.R. (Pt. 1025) 427 at 588 – 589; including the affidavit in support of the Originating Summons to the exclusion of any other processes especially those filed by the Respondents. All the same, from the relevant process, the learned senior Counsel argued that the Appellant’s complaint and grievance before the trial Court was the action and the decision of the Kwara State Government, epitomized by the Governor and the House of Assembly; that the reliefs sought by the Appellant have nothing to do with any complaints against the National Judicial Council or the Attorney General of the Federation so as to vest the Federal High Court with jurisdiction in the matter under Section 251(l)(p)(q)(r) as rightly found by the court below particularly following the decisions of this Court in NEPA v. Edegbero (2002) 18 N.W.L.R. (Pt. 798) 79 and Dr. Taiwo Oloruntoba-Oju & 4 Ors. v. Professor Shuaib O. Abdul-Raheem (2009) 13 N.W.L.R. (Pt. 1157) 83 at 127. The learned senior Counsel relying on a number of decisions of the Court of Appeal in Enweremadu v. Ohajuruka (2001) 43 W.R.N. 53 at 6; N.N.P.C. v. Okwor & Ors. (1998) 7 N.W.LR. (Pt. 559) 637 at 650 and Minister for Works v. Tommas Nig. Ltd. & Ors. (2002) 2 N.W.L.R. (Pt. 752) 740 at 788, concluded that the Appellant’s case having failed to satisfy the two basic preconditions of the parties being Federal Government or any of its agencies and the subject matter of the action must relate to the validity or otherwise of the action or decision of the Federal Government or any of its agencies, the Court below was right in its decision that the Federal High Court lacked jurisdiction in the matter brought before it by the Plaintiff/Appellant and therefore urged this Court to dismiss the appeal most especially having regard to the cases of Odiase & Anor. v. Agho & Ors. (1972) 1 All N.L.R. (Pt.1) 170 and Nwabueze v. Okoye (1988) 2 N.W.L.R. (Pt.91) 664, the concurrent findings of fact by the two Courts below that the Appellant’s case is one challenging the decision of the Governor and the House of Assembly of Kwara State remains intact in the absence of any appeal against those findings.

For the 3rd Respondent, the Kwara State House of Assembly, in the Respondent’s brief of argument filed by its learned senior Counsel, Yusuf Ali on 29th October; 2010, the issue distilled from the 3 grounds of appeal filed by the 1st Appellant reads-

“Whether having regard to the complaints of the (sic) Respondents and the reliefs sought by her in her originating summons, the Court of Appeal was not right and correct in holding that the Federal High Court lacked jurisdiction to hear and determine her case”

Learned senior Counsel must have inadvertently referred to the Appellant as the Respondent in the above issue identified in the 3rd Respondent’s brief. The word ‘Respondents’ therefore in the issue as identified must be read as the ‘Appellant’. As far as the learned senior Counsel is concerned, the questions for determination and the reliefs sought by the Appellant in her Originating Summons reveal quite clearly that the Court of Appeal was right in its decision that the Federal High Court lacked jurisdiction to entertain the suit as formulated on the authority of the cases of Egbuonu v. B.R.T.C (1997) 12 N.W.L.R. (Pt. 531) 29 at 43 and Inakoju v. Adeleke (2007) 4 N.W.L.R. (Pt. 1025) at 588 – 589, as the Court will not examine the counter-affidavit of the Respondents even where it has been filed; that from questions for determination and the reliefs claimed in the Originating Summons, the Appellant’s case was against the action of the Respondent and the Governor of Kwara State as parties while the subject matter of the suit solely concerned the Government of Kwara State because there was no relief claimed against the National Judicial Council or the Attorney General of the Federation who were merely joined as Respondents without any basis.

On jurisdiction or competence of Court, learned senior Counsel relying on the leading authority on the subject in the case of Madukolu v, Nkemdelim (1962) All N.L.R. (Pt. 3) 581 at 589 – 590, (1962) 2 S.C.N.L.R. 241, argued that the trial Court wrongly entertained the matter since the subject matter of the case being the power of the 2nd and 3rd Respondents to remove the Appellant as the Chief Judge of Kwara State by the Governor and the House of Assembly of Kwara State, is not within the jurisdiction of the trial Court under Section 251 of the Constitution as claimed b y the Appellant. Several cases cited in support of this submission include Onuora v. K.R.P.C. Ltd. (2005) 6 N.W.L.R. (Pt. 921) 393 at 404 – 405 and Oloruntoba-Oju v. Abdul-Raheem (2009) 13 N.W.L.R. (Pt. 1157) 83 at 127. Learned senior Counsel referred to the finding of the trial Court at page 532 of the record to the effect that the Appellant was at the trial Court to challenge the decision of the Governor and the House of Assembly of Kwara State to remove her as the Chief Judge of the State and contended that the subject matter of the suit was clearly outside the jurisdiction of the trial Court and that the cases of Ladoja v. INEC (Z007) S.C. 99 at 160 and Peter Obi v. INEC (2007) 7 S.C. 268, heavily relied upon by the Appellant, are not relevant to the present case.

With regard to the stand of the Appellant that because the interpretation of the Constitution was involved in the case now at hand, the Federal High Court is the proper forum for the resolution of the dispute by virtue of Section 251(1)(q) and (r) of the Constitution, it is the view of the learned senior Counsel that by virtue of Section 272 of the Constitution, the High Court also has the vires to interpret provisions of the Constitution in cases before the Court. Learned senior Counsel for the 3rd Respondent concluded by pointing out that the cases of NEPA v. Edegbero (2003) F.W.L.R. (Pt. 139) 1556 and Osaigwe v. Federal College of Education (2010) 10 N.W.L.R. (Pt. 1201) 1 at 34 relied upon by the Appellant on the facts, are not relevant to the present case and therefore urged this Court to dismiss the appeal and affirm the .decision of the Court below.

Irrespective of the manner in which the issue for determination in this appeal was framed in the Appellant’s brief, the 1st, 2nd and 3rd Respondents briefs of argument respectively as earlier quoted in full in the judgment, the real issue for determination as agreed by all the parties is simply whether having regard to the two questions submitted for determination and the reliefs sought by the Appellant in the Originating Summons, the Court below was right in holding that the Federal High Court lacked jurisdiction to entertain and determine the Appellant’s suit.

The issue such as this, of when 2 Court has jurisdiction or competence, has long been settled in the jurisprudence of Nigeria from the time of the decision of this Court in the well known and highly celebrated case of Madukolu &, Ors. v. Nkemdelim & Ors. (1962) All N.L.R. (Pt. 3) 581 at 589 – 590 where the position of the law was laid down thus –

“Before discussing those portions of the record; I shall make some observations on jurisdiction and the competence of a Court. Put briefly, a Court is competent when:

  1. It is properly constituted as regard number and qualifications of the members of the bench, and no member is disqualified for one reason or another; and
  2. The subject matter of the case is within its jurisdiction; and there is no feature in the case which prevents the Court from exercising its jurisdiction; and
  3. The case comes before the Court of law and upon fulfilment of any condition precedent to the exercise of jurisdiction. Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided; the defect is extrinsic to the jurisdiction.”

Applying the above guiding pronouncements on the issue of jurisdiction to the case at hand, it is not difficult to see that there is no problem whatsoever with the Constitution of the trial Court or the qualification of its learned presiding Judge, nor is there any cloud surrounding the requirement that the case of the Appellant was brought before the trial Court upon fulfilment of condition precedent to the exercise of jurisdiction. However what calls for determination in the present case is whether or not the subject matter of the action is within the jurisdiction of the trial Court and that there is no feature in the case which prevents the Court from exercising its jurisdiction. While the Appellant is asserting that the suit brought to the trial Court was on a subject matter that was within the jurisdiction of that Court, the three Respondents to this appeal are saying that the subject matter of the Appellant’s action being essentially the removal of the Appellant from office of the Chief Judge of Kwara State by the 2nd and 3rd Respondents, the subject matter was entirely within the jurisdiction of the State High Court of Justice as found by the Court below that the trial Court lacked jurisdiction in the matter.

It is indeed a fundamental principle that jurisdiction of a Court of law is determined by the Plaintiff’s claim. See Izenkwe v. Nnadozie 14 WACA 361 at 363 and Adeyemi v. Opeyori (1976) 9 – 10 S.C. 51. That is to say, it is the claim before the Court that has to be looked at or examined to ascertain whether it comes within the jurisdiction conferred on the Court. See Western Steel Works v. Iron & Steel Workers (1987) 1 N.W.L.R. (Pt. 49) 284.

It should be emphasized that Judges have no duty and indeed no power to expand the jurisdiction conferred on their Courts but they have the duty and indeed jurisdiction to expound the jurisdiction conferred on their Courts as laid down by this Court in The African Press of Nigeria & Ors. v. The Federal Republic of Nigeria (1985) 1 All N.L.R. 50 at 175; (1985) 2 N.W.L.R. (Pt. 6) 137 at 165. See also some of the leading authorities on the subject of jurisdiction particularly of the Federal High Court vis-a-vis the State High Court in Tukur v. The Government of Gongola State (1989) 4 N.W.L.R (Pt. 117) 517 at 549; Adetayo v. Ademola (2010) All F.W.L.R. (Pt. 533) 1806 at 1825- 1826; Ladoja v. INEC (2007) 7 S.C. 99 at 160; Peter Obi v. INEC (2007) 268 and Inakoju v. Adeleke (2007) 4 N.W.L.R. (Pt. 1025) 427 at 588-589 where Tobi JSC expounded the law on how jurisdiction of a trial Court is determined especially where the action was commenced by Originating Summons supported by affidavit where he said:-

“In determination of whether or not a Court has jurisdiction, the Court process to be used is the pleadings of the Plaintiff, which is the statement of claim; it is the case put up by the Plaintiff that determines the jurisdiction of the Court. In this case, as the action was commenced by Originating Summons, the Court process to be used is the affidavit in support of the summons …”

Taking into consideration the foregoing authorities and many others too numerous to be listed, it is quite plain that in resolving the lone issue of jurisdiction in the case at hand, the Court processes to be examined are the Originating Summons of the Plaintiff/Appellant containing the questions submitted for determination, the reliefs sought in the Originating Summons to the exclusion of any other processes especially those filed in defence of the action by the Defendants/Respondents. I have earlier in this judgment quoted in full the two questions submitted by the Plaintiff/Appellant for determination and the reliefs sought. I do not consider it necessary to also quote the various paragraphs of the affidavit in support of the suit as constituted by the Originating Summons because to me the facts that led the Plaintiff/Appellant to seek redress at the trial Court, are not at all in dispute and are not different from the facts of the case I have already narrated.

Although all the three Respondents in this appeal have strongly submitted variously that the Plaintiff/Appellant went to the trial Court to challenge her alleged removal from office as the Chief Judge of Kwara State by the 2nd and 3rd Respondents, the Governor and the House of Assembly of Kwara State respectively, there is nothing in the two questions submitted for determination, the reliefs sought and the affidavit in support of the Originating Summons that talks of the removal of the Appellant from office, particularly in the absence of any copy of the letter of removal from office from the appropriate authority.

Removal of a public officer like the Chief Judge of a State is always signified by a letter to that effect clearly signifying the effective date of removal in the same way the appointment of such a public officer is also always signified by 2 letter of appointment clearly spelling out the effective date of such appointment. It is therefore not correct as erroneously assumed by all the Respondents that the alleged removal of the Plaintiff/Appellant can be inferred from the reliefs sought by the Appellant at the trial Court.

Therefore, quite contrary to the stand taken by the Respondents, from the two questions submitted for determination and the reliefs sought by the Plaintiff/Appellant at the trial Court, it is quite clear that the Plaintiff/Appellant did not go to that Court to challenge her removal from office. Rather, the questions for determination and the three declaratory reliefs and two injunctive reliefs sought are all rooted on the interpretation and operation of the provisions of Section 153(1)(i), 197, 271(2), 292 of the Constitution, paragraphs 20 and 21 of part 1 of the 3rd Schedule to the same Constitution of the Federal Republic of Nigeria, 1999 against the background of the 3rd Respondent’s letter dated 4th May, 2009, inviting the Appellant to appear before it. In other words, all the claims of the Appellant in her Originating Summons are rooted or hinged on the Constitutionality or lawfulness of the disciplinary proceedings commenced by the letter of the 3rd Respondent dated 4th May, 2009 against the Appellant. The interpretation and the correct operation of the affected provisions of the 1999 Constitution, was therefore the main subject of the suit of the Plaintiff’/Appellant and not her removal from office as asserted by the Respondents.

Next for determination is to examine the relevant provisions of Section 251(1)(q) of the 1999 Constitution to see if the Federal High Court has jurisdiction in the matter as found by the trial Court. The Section reads:-

“251(1) Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other Court in Civil Causes and matters-

(a.) xxxxx

(q,) subject to the provision of this Constitution; the operation and interpretation of this Constitution in so far as it affects the Federal Government or any of its agencies.”

It is quite clear from the above provisions of Section 251(1.)(q.) of the Constitution that any action which involves the operation and interpretation of the Constitution in so far as it affects the Federal Government or any of its agencies, the Federal High Court has jurisdiction to entertain and determine the action. The fact that the provisions of the Constitution in Section 153(1)(i.), 271(1); 292(1)(a)(ii) together with paragraphs 20 and 21 of Part 1 of Third Schedule to the same Constitution, the operation and interpretation of which affects the powers and duties of the National Judicial Council under the Constitution, coupled with the fact that there is no doubt whatsoever that the National Judicial Council is an agency of the Federal Government, the Court below, in my view, was wrong to say that the Federal High Court lacked jurisdiction in the matter. The power or jurisdiction of the Federal High Court to entertain actions connected with the operations and interpretation of the Constitution in so far as it affects the Federal Government or any of its agencies, have been determined in many decisions of this Court such as Ladoja v. INEC (2007) 7 S.C. 99 at 160 and Obi v. INEC & Ors. (2007) 7 5.C.268 at 305 just to mention a few. The observations of my learned brother Oguntade JSC in this case which are quite iluminating are-

“I wish to emphasize on indispensability of the jurisdiction of the Court to declaratory judgment in democratic governance. The jurisdiction to interpret the provisions of the Constitution and all statutes generally enables the constituent organ of the states to function smoothly. It is particularly invaluable to citizens whose constitutional rights are threatened with invasions. It seems to me that all the anxieties arising from litigation on a simple case as this is over the interpretation of simple provision of the Constitution, which provision is not in the least recondite and which has culminated in this appeal would have been removed by the interpretative jurisdiction conferred by Section 251(i)(q.) and (r.).”

In the present case therefore which principally involves the procedure for initiating and conducting disciplinary proceedings against a Chief Judge of a State where the National Judicial Council which had been given a role in the appointment and exercise of disciplinary control over judicial officers of the Appellant’s rank under the Constitution, it is not correct as argued by the Respondents that the entire matter in the case was a State Government affair.

The very fact that the operation and interpretation of the provisions of the Constitution affecting the powers and functions of a Federal Government agency is the main subject of this case, the 1st Respondent, the Honourable Attorney General of the Federation as the Chief Law Officer of the entire Federation appointed under Section 150 of the same Constitution, who is therefore not only the guardian of the Constitution but also the protector of the same, the Appellant’s action which sought to protect the violation of the provisions of the Constitution, is certainly not only regarded as an action against the National Judicial Council whose powers and functions were subject of the violation but also against the Honourable Attorney General of the Federation whose role in protecting the provisions of the Constitution from being violated, was in issue in the case. These features of this case are what brought the case within the jurisdiction of the Federal High Court.

I am not unaware of the argument of the learned senior Counsel to the 3rd Respondent that by virtue of the provisions of Section 272 of the Constitution, the High Court of Justice of Kwara State also has jurisdiction to interpret those same provisions of the Constitution placed before the Federal High Court for interpretation. I entirely agree. However, what the learned senior Counsel failed to realize however is the fact that the presence of the 2nd Appellant, the National Judicial Council and the Honourable Attorney General of the Federation as parties in the case, had pulled in a feature in the case which brought it out of the jurisdiction of the High Court taking into consideration the decision of this Court in Madukolu v. Nkemdelim (supra) earlier quoted in this judgment.

See also  Mrs Olayinka Adewunmi & Ors. V. Mr Amos Oketade (2010) LLJR-SC

For the foregoing reasons, this appeal has merit and ought to succeed.

Accordingly, the appeal is allowed. The judgment of the Court below declaring that the trial Federal High Court Ilorin lacked jurisdiction to entertain and determine the Appellant’s suit, is hereby set aside. The judgment of the trial Federal High Court Ilorin declaring that it has jurisdiction to entertain and determine the matter brought before it by the Plaintiff/Appellant is hereby restored and affirmed.

Appeal of the 2nd Appellant.

The National Judicial Council

The appeal by the 2nd Appellant is also against the decision of the Court of Appeal delivered on 2nd July, 2010. In the Appellants brief of argument filed by its learned senior Counsel on 17th January, 2011, the following issue was framed from the 4 grounds of appeal filed by the Appellant. The issue reads-

“Whether the Court of Appeal was correct when it held that the Federal High Court Ilorin lacked the jurisdiction under Section 251 of the 1999 Constitution to entertain a dispute filed by the Chief Judge of Kwara State challenging her purported removal as Chief Judge/Judge by the Governor and House of Assembly of Kwara State and contending in the same action that in matters relating to misconduct by any Judge including the Chief Judge only the N.J.C. can render such determination.”

The 1st Respondent in this appeal the Hon. Attorney General of the Federation did not file a Respondent’s brief in this second appeal filed by the 2nd Appellant, the National Judicial Council although a comprehensive brief was filed in opposing the 1st Appellant’s appeal which I have already determined.

The 2nd Respondent; the Honourable Attorney General of Kwara State however, filed a Respondent’s brief on 14th March, 2011 through his learned senior Counsel who not only responded to the issue of jurisdiction raised in the appeal but also raised a preliminary objection to competence of the appeal which I have earlier resolved in this judgment. The issue as identified in the 2nd Respondents brief is:-

“Was the Court of Appeal right in holding that the mere joinder of the N.J.C and the Attorney General of the Federation as parties is not enough to clothe the Federal High Court with the jurisdiction to adjudicate over the action of the Chief Judge of Kwara State challenging her removal from office, when the two did not play any role in the removal and when there was no reliefs sought against them.”

The learned senior Counsel to the 3rd Respondent; the Kwara State House of Assembly also reacted to this 2nd appeal through a Respondent’s brief of argument also containing a Notice of Preliminary Objection the appeal itself filed on 22 March, 2011. I have already resolved the preliminary objection against the Respondent. The issue distilled in this brief arising from the 4 grounds of appeal filed by the Appellant reads-

“Whether having regard to the complaints of the 1st Appellant and the reliefs sought by her in her Originating Summons, the Court of Appeal was not correct in holding that the Federal High Court lacked jurisdiction to hear and determine her case.”

It is quite obvious that the issues as identified by the parties in the Appellant’s brief of argument, the 2nd and 3rd Respondents’ briefs of argument respectively; are not different from the issues that were considered and determined in the 1st appeal between the same parties, namely – whether having regard to the questions for determination and the reliefs sought by the Plaintiff/Appellant in her Originating Summons, the Court of Appeal was right in its judgment that the Federal High Court Ilorin lacked jurisdiction to hear and determine the Plaintiff/Appellant’s case.

As the facts and the issue for determination in the present 2nd appeal are not different from those facts and issue already considered and determined in the 1st appeal, I hereby resolve the issue in the present appeal by holding that having regard to the fact that the Plaintiff/Appellant’s case substantially involves the operation and interpretation of the provisions of the Constitution in relation to the powers and duties of the Appellant in this appeal which undoubtedly is an agency of the Federal Government created under the same Constitution, the Federal High Court definitely is vested with jurisdiction under Section 251(1)(q) to hear and determine the action. This appeal is also hereby allowed. The judgment of the Court of Appeal is set aside and the judgment of the trial Court on the question of jurisdiction is restored and affirmed.

The Cross-Appeals

There are two Notices of Cross-appeals filed by the 2nd and 3rd Respondents in this appeal. The Notice of cross-appeal filed by the 2nd Respondent, the Honourable Attorney General of Kwara State contains 8 grounds of appeal while the Notice of cross-appeal filed by the 3rd Respondent, the House of Assembly of Kwara State contains 12 grounds of appeal. I shall start with the cross-appeal filed by the 2nd Respondent in respect of which a cross-Appellant’s brief of argument was filed on 22nd September, 2010 by the learned senior Counsel who also on 10th December, 2010 filed a cross-Appellant’s Reply brief to the 1st Appellant’s/Cross-Respondent’s brief of argument. From the 8 grounds of appeal filed by the cross-Appellant, 4 issues for the determination of the cross-appeal were formulated. These issues are-:

“1. Whether having regard to the myriads of affidavit filed by the parties; this case was not hostile as to render inappropriate the Originating Summons procedure in commencing same ground 1.

  1. Was the Court of Appeal right in entering judgment on the merits in favour of the 1st Appellant/Cross-Respondent after having held that the trial Court lacked the jurisdiction to adjudicate on the case and that the same ought to be returned to the High Court of Kwara State for proper adjudication – grounds 2 and 3.
  2. Whether the Court of Appeal correctly interpreted the provisions of Section 2.92(1)(a)(ii) of the Constitution of the Federal Republic of Nigeria, 1999 in affirming the decision of the trial Court that the Governor and the House of Assembly of Kwara State cannot remove the 1st Appellant/Cross-Respondent as Chief Judge without recourse to the National Judicial Council – grounds 4, 5 and 6.
  3. Whether the Court of Appeal did not err in making pronouncements on the procedure employed in the removal of the 1st Appellant/Cross-Respondent as Chief Judge when that point was neither an issue before it nor even before the trial Court. Grounds 7 and 8.”

In his argument in support of the first issue for determination, learned senior Counsel quoted the questions submitted by the 1st Appellant/Cross-Respondent in the Originating Summons for determination and the five reliefs sought and referred to the affidavit in support of the Originating Summons, two further affidavits in support of the same, counter-affidavit and further counter-affidavit filed in opposing the action by the Defendant/Cross-Appellant and submitted that the Court of Appeal was in grave error in affirming the decision of the trial Court in hearing the matter brought before it by Originating Summons. The cases of Adeyelu II v. Ajagungbade III (2007) 14 N.W.L.R. (Pt. 1053) 1 at 10 and P.D.P. v. Abubakar (2007) 3 N.W.L.R. (Pt. 1022) 515 at 551, were cited in support of the argument; that since the service of the letter written to the 1st Appellant/Cross-Respondent by the Cross-Appellant was in dispute or whether 1st Appellant/Cross-Respondent acted in consonance with her oath of office and the Constitution as alleged by her but denied by the Cross-Appellant or the allegations made against the 1st Appellant/Cross-Respondent were brought to her attention are matter raising disputed facts which made the case not suitable for being commenced by Originating Summons having regard to the decisions in several cases relied upon including N.B.N. Ltd. & Anor. v. Alakija & Anor, (1978) N.S.C.C. 470 at 477; Famja Oil Ltd. v. Attorney-General of the Federation (2003) F.W.L.R. (Pt. 184) 195 at 205 and Inakoju v. Adeleke (2007) All F.W.L.R. (pt. 353) 1 at 202.

For the Plaintiff/Appellant/Cross-Respondent, it was submitted that the entire case brought before the trial Court was centered or rooted in the letter dated 4th May, 2009, by the House of Assembly of Kwara State inviting the Plaintiff/Appellant/Cross-Respondent to appear before it and defend herself; that there is nothing in the counter-affidavits filed in defence of the action to pull out the relevant facts of this case outside the letter of 4th May, 2009, the proof of which requires no pleadings or oral evidence; that since the Cross-Appellant did not find it necessary to apply at the trial Court to call for oral evidence to resolve the alleged conflicting affidavit evidence in line with the cases of Falobi v. Falobi (1976) N.M.L.R. 169 and Noibi v. Fikolati (1987) 1 N.W.L.R. (Pt. 52) 619, it shows that there were no disputed facts in the case that would have made the case unsuitable for hearing and determination by Originating Summons procedure.

In his response to this issue, the learned senior Counsel for the 2nd Appellant/Cross-Respondent, had submitted that taking into consideration the reliefs sought in the Originating Summons revolved around the issue of unconstitutional removal of the 1st Appellant/Cross-Respondent as a Chief Judge, the procedure by Originating Summons is most suitable for the action at the trial Court particularly when cases such as Keyamo v. L.S.H.A (2002) 18 N.W.L.R. (Pt. 799) 605 at 613 and Pam v. Mohammed (2008) 16 N.W.L.R. (Pt. 1112) 1 at 51, are taken into consideration. Learned senior Counsel therefore urged this Court to affirm the concurrent decisions of the two Courts below which were not perverse on the use of Originating Summons in initiating the present case at the trial Court.

However, in a Cross-Appellant’s Reply brief, learned senior Counsel to the 2nd Respondent/Cross-Appellant insisted that the concurrent decisions of the two Courts below were perverse to justify their being set aside relying on Obioha & Ors, v. Duru & Ors. (1994) 8 N.W.L.R. (Pt. 365) 631.

The law is indeed well settled that Originating Summons procedure for initiating action is not suitable and therefore not available for action involving hostile proceedings where the facts are seriously in dispute as the case in Adebayo Doherty and Another v. Richard Ade Doherty 1968 N.M.L.R. 241. This Court has decided in many cases some of which are Keyamo v. L.S.H.A. (2002.) 18 N.W.L.R. (Pt. 799) 605 at 613 and Pam v. Mohammed (200S) 16 N.W.L.R. (Pt. 1112) 1 at 51, that Originating Summons can be used in matters that involved the interpretation of contracts, documents, Constitution and other statutes where matters or facts are not in dispute.

In the present case, the real issues raised are centered around the interpretation of the provisions of the 1999 Constitution prescribing the procedure for exercising disciplinary proceedings dealing with the exercise of powers under the same Constitution to remove a Chief Judge of a State from Office. I entirely agree that the two Courts below were on very firm ground that the action at the trial Court was correctly and rightly began by Originating Summons procedure.

The second issue raised by the 2nd Respondent/Cross-Appellant is whether the Court below was right in entering judgment on the merit in favour of the Plaintiff/Appellant/2nd Respondent in that Court after holding that the trial Court lacked jurisdiction in the matter which ought to have been returned to the High Court of Kwara State for hearing. Learned senior Counsel therefore argued that the Court of appeal was in error in proceeding to decide the merit of the case ahead of the High Court of Kwara State which that Court had held as having the jurisdiction to properly adjudicate on the matter, thereby ignoring the principles of stare decisis necessary for judicial discipline in our Courts as stated in Amaechi v. INEC (2008) 5 N.W.L.R. (Pt. 1080) 227 at 379, particularly when the cases relied upon by the Court below in deciding to go into the merits of this case, were grossly misapplied.

It was however pointed out by the learned senior Counsel for the 1st Appellant/Cross-Respondent that the Court below acted in pursuance of its powers under Section 16 of the Court of Appeal Act and several binding decisions of this Court in proceeding to hear the case on its merits after deciding that the trial Court lacked jurisdiction to hear and determine the case; that having regard to several decisions of this Court such as Okonji v. Njokauma (1991) 7 N.W.L.R. (pt. 202) 131 at 150 and Brawah Shipping (Nigeria) Ltd v. F. I. Onwa Dike Co. Ltd. (2000) 11 N.W.L.R. (Pt. 678) 387 at 403, all lower Courts are enjoined to pronounce, as a general rule, on all issues properly placed before them for determination in order apart from the issue of fair hearing, so as not to risk the possibility that the only issue or issues decided by them could be faulted on appeal; that there is also the requirement of the law as laid down by this Court in Alhaji Bello v. Dioceasan Synod of Lagos & Ors. (1973) 3 S.C. 72 at 82, Katto v. Central Bank of Nigeria (1991) 9 N.W.L.R. is (Pt. 214) 126 at 149 and Adah v. N.Y.S.C. (2004) 13 N.W.L.R. (Pt. 891) 639 at 643, that since the appeals in this case to the Court of Appeal were in respect of both the issues of jurisdiction or competence and the substantive case on the merits, the Court below not being a final Court, had a duty to decide the merits of the case upon the issues canvassed before it not withstanding that it resolved the issue of jurisdiction to the effect that the trial Court lacked jurisdiction in the matter. Learned senior Counsel therefore urged this Court to resolve this issue against the 2nd Respondent Cross-Appellant.

The stand of the learned senior Counsel for the 2nd Appellant/Cross-Respondent on this issue is that the Court below was quite correct in proceeding to hear the merits of the case after its decision that the trial Court lacked jurisdiction to hear the case; that the Court below was singularly concerned about its Constitutional position as a penultimate Court that does not enjoy the finality that this Court enjoys as the apex Court, there is every possibility that the decision of the Court below on jurisdiction may not be upheld; that in such situation, penultimate Courts are enjoyed to render their decisions on those matters hitherto displaced by an earlier but not final decisions.

In a Cross-Appellant Reply brief on this issue, learned senior Counsel to the 2nd Respondent/Cross-Appellant contended that having regard to the circumstances of this case, section 16 of the Court of Appeal Act was inapplicable as stated by this Court in Dapianlong v. Dariye (2007) 8 N.W.L.R. {Pt. 1036} 332 at 404; that the cases relied upon by the Appellants/Cross-Respondents on this issue namely, Alhaji Bello v. The Dioceasan Synod of Lagos & Ors (supra) and Katto v. C.B.N (supra) are not applicable to the present case.

The main question for determination in this second issue in the cross-appeal is whether the Court below was right in proceeding to take and determine the substantive case on its merits after deciding that the trial Court lacked jurisdiction in the case that was brought before it by Originating Summons. It is quite clear from the record of this appeal that the 2nd Respondent/Cross-Appellant lost its preliminary objection to the jurisdiction as well as the merits of the case by the ruling and the final judgment of the trial Court. That is why the appeals that came to the Court below were in respect of issues of jurisdiction/competence and the substance of the case on the merit. In situation such as this, the Court below had no option than to be guided by the law as contained in particular the case of Katto v. Central Bank of Nigeria {1991} 9 N.W.L.R. (Pt. 214) 126 at 149 where Akpata JSC, (of blessed memory) stated the position of the law thus-

“As rightly submitted by Mr. Aluko-Olokun, the Court of Appeal ought to have proceeded in the alternative on the basis that the trial Court could have been right, to give its views and decision on the issues raised in the grounds of appeal. Where a trial Court after holding that it had jurisdiction proceeded to determine the matter before it and an intermediate Court of Appeal thinks the trial Court lacked jurisdiction, the said intermediate Court should in the alternative resolve the complaints in the appeal, unless both Counsel, particularly Respondent’s Counsel, concede that the trial Court lacked jurisdiction in the matter. While the Supreme Court, being the final Court of Appeal, can afford not to pronounce on other issues placed before it where it finds that the trial Court lacked jurisdiction, the Court of Appeal whose stance on jurisdiction may be faulted by the Supreme Court should not ignore other issues raised in the appeal. It should pronounce on them. The position now is that issues which ought to have been resolved by the Court of Appeal in its judgment dated 30th January, 1989, about three years ago, will now have to be sent back to it for hearing and determination.”

See also the case of Adah v. N.Y.S.C. (2004) 13 N.W.L.R. (Pt. 891) 639 at 643 where faced with similar position as in the present case in the issue at hand, Uwaifo JSC said:-

“The Court below not being the final Court had a duty to decide the merits of the case upon issue canvassed before it not issue of jurisdiction to the effect that the Benue State High Court lacked jurisdiction. This is because if on an appeal to this Court, it was reserved on that issue, it would prevent the necessity of remitting the appeal to it, to resolve the other issues arising from the appeal as originally made to it. The Court below was in error to have failed to resolve all the issues canvassed before it rather than confine itself only to issue of jurisdiction.”

In the instant case therefore when the Court below after deciding that the trial Federal High Court lacked jurisdiction and proceeded in the alterative on the basis that the trial Court could have been right in its decision on the issue of jurisdiction to give its views and decision on the remaining issues raised in the grounds of appeal on the merits of the case, the Court below in my view, did exactly what this Court mandated it to do in line with the decisions in Katto v. C.B.N. (supra) and Adah v. N.Y.S.C. (supra).

In this respect, the Court below was on a very solid ground and indeed acted prudently by pronouncing on all the issues submitted by the Cross-Appellant in the Appellant’s brief of argument for determination of the Court below. In other words, that Court acted within its powers under the law as pronounced by this Court, lawfully in the interest of justice to avoid waste of time and resources in deciding the merits of the case thereby making it possible to place the entire case before this Court for determination on appeal. The second issue is therefore also resolved against the Cross-Appellant.

The 3rd issue in the cross-appeal is whether in affirming the decision of the trial Court that the Governor and the House of Assembly of Kwara State cannot remove the 1st Appellant/Cross-Respondent as Chief Judge without recourse to the National Judicial Council, the Court below correctly interpreted the provisions of Section 292(1)(a)(ii) of the Constitution of the Federal Republic of Nigeria, 1999. Learned senior Counsel to the 2nd Respondent/Cross-Appellant after quoting the provisions of Section 292(10(a)(i), (ii), (b)(i), (ii) of the 1999 Constitution, submitted that whereas the first mode of removal which is provided for by Section 292(i)(a)(ii) of the Constitution deals with Judicial Officers of the status or cadre of Chief Judge of a State, Grand Khadi of Sharia Court of Appeal or President of a Customary Court of Appeal of a State, the second mode, stipulated by Section 292(1)(b) deals with other Judicial Officers of the State who do not hold any of the offices listed under Section 292(1)(a)(ii); that the foregoing interpretation is so logical and lucid as to present no difficulties whatsoever in its acceptance; that the Court of Appeal in affirming the decision of the trial Court on the interpretation of Section 292(1)(a)(ii) of the Constitution wrongly adopted the purposive approach resulting in applying a broad or liberal interpretation by combining the interpretation of Section 292(1)(a)(ii) with other provisions of the Constitution in Sections 271(2), 153(1)(i) and paragraphs 20 and 21(d) and (c) of part 1 of the 3rd Schedule to the Constitution thereby arriving at a wrong decision. Learned senior Counsel considered this approach to the interpretation of Section 292(10(a)(ii) of the Constitution by the Court of Appeal as gravely erroneous since the words of the Section are quite clear having expressed without any ambiguity the provisions contained therein as stated by this Court in Aluminium Manufacturing Co. v. N.P.A. (1987) 2 S.C.N.J. 94 at 115; that since the provisions of the Section shows there are different procedures for the removal of categories of judicial offices such as the Chief Judge of a State from those categories of Judicial Officers like the Judges of the High Court, the reference and reliance by the Courts below on the provisions of Sections 271(2), 153(1)(i) and paragraph 21(d) of the 3rd Schedule to the 1999 Constitution in the interpretation of Section 292 in the guise of a purposive reading of the Constitution, to limit the scope of Section 292(1)(a)(ii), of the Constitution is untainable because all what was required in the interpretation of 2 clear and unambiguous provisions of the Constitution, the duty of the Court is to accord the provision its plain, simple grammatical meaning without any recourse to extraneous aid as held in Dapianlong & Ors. V. Dariye & Anor. (2007) 8 N.W.R.L (Pt. 1036) 239 at 412. Learned senior Counsel concluded that the Court of Appeal had committed grave error in its interpretation of Section 292(1)(a(ii) of the Constitution to mean that the National Judicial Council must have an input before the powers conferred by the Section can be exercised, because this is not only to read into that Section words that are not contained therein, but indirectly to render the Section superfluous and ineffectual which is not within the powers of the Court and therefore urged this Court to resolve the issue in favour of the Cross-Appellant.

See also  Chief Chukwuemeka Odumegwu Ojukwu V. Chief Olusegun Obasanjo & Ors (2004) LLJR-SC

On this 3rd issue in the cross-appeal, learned senior Counsel to the 1st Appellant/Cross-Respondent contended that the Court below was right in holding that Section 292(1)(a)(ii) of the Constitution cannot be interpreted in isolation because discipline and removal of judicial officers, irrespective of the office they occupied is related, interwoven and all the relevant provisions of the Constitution must be heard and interpreted together quite contrary to the position taken by the Cross-Appellant at the Court below and in this Court that Section 292(1)(a)(ii) and Section 292(2), are independent with one another being related to different categories of judicial officers; that as the removal of any judicial officer is a process and not a concluded act within the powers and bounds of the Governor and the House of Assembly, all the relevant provisions of the Constitution must be read together in line with the decision in Anya v. Attorney General of Borno State (1984) N.C.L.R. 225 at 229 – 230. In conclusion, learned senior Counsel agreed with the two Courts below in adopting a holistic interpretation rules, the intendment of the Constitution is made relevant, clearer and purposive and urged this Court to resolve this issue against the Cross-Appellant.

For the 2nd Appellant/Cross-Respondent, its learned senior Counsel in the Cross-Respondent’s brief of argument and oral submission, had agreed entirely with the two Courts below in their approach to the interpretation of Section 292(1)(a)(ii) of the Constitution together with other relevant provisions of the same Constitution dealing with the removal from office of a Chief Judge of a State without the involvement, one way or the other, of the 2nd Appellant/Cross-Respondent, the National judicial Council; that the submission of the learned senior Counsel to the Cross-Appellant that the Constitution has prescribed two alternative methods or procedure for the removal of a Chief Judge of a State is not correct as nowhere in the Constitution is this dual mandate approved. Learned senior Counsel observed that since all the parties in this case have set out in their respective briefs relevant provision of the Constitution applicable to the removal of the Chief Judge of a State, there is only one procedure for the exercise especially where the basis of such removal is misconduct; that since our Constitution is unique, tailored along our specific needs- and backed up by our experience through the years, the approach to the interpretation of the provisions of the Constitution mere technical rules of interpretation, more suitable for ordinary statutes should not be applied in a way as to defeat the principles of government enshrined in the Constitution as outlined by this Court in Nafiu Rabiu v. The State (1981) N.C.L.R. 293 at 326; that it is not disputed even by the two Courts below that the Governor of a State has the Constitutional powers to remove the Chief Judge of a State but that that power can only be exercised after compliance with all stipulations and or conditions set out in Section 292(1)(a)(i) and (ii) of the 1999 Constitution. Learned senior Counsel explained that the principal constituent of this provision is not in the manner in which the Chief Judge can be removed but it also rests on the grounds for which he can be removed which in this case according to the allegation level against the 1st Appellant/Cross-Respondent herein if proved amounts to proven misconduct. The question is without throwing the entire system of Government into anarchy can the Governor and the House of Assembly, by a simple address and resolution come to the conclusion that the Chief Judge of a State is guilty of misconduct. The answer is obviously in the negative in spite of the provisions of Section 128 of the 1999 Constitution prescribing powers of a State House of Assembly to conduct investigation, asserted the learned senior Counsel who urged the Court to resolve this issue against the Cross-Appellant.

In a Cross-Appellant’s Reply brief, learned senior Counsel to the 2nd Respondent/Cross-Appellant had maintained that the Court of Appeal was in manifest error in hiding behind its decision in Anya v. Attorney General of Borno State (supra) to refuse to accord Section 292(1)(a)(ii), independent and neutral interpretation and urged this Court to hold that Section 292(1)(a)(ii) ought not to have been interpreted together with other provisions of the Constitution in determining the powers of the Cross-Appellants to remove the 1st Appellant/Cross-Respondent.

The issue for resolution is whether the Court of Appeal was right in its judgment in interpreting the provisions of Section 292(1)(a)(ii) of the Constitution of the Federal Republic of Nigeria, 1999 in affirming the decision of the trial Federal High Court that the Governor and the House of Assembly of Kwara State cannot remove the Chief Judge of the State without recourse to the National Judicial Council. Over the years of its existence as the apex Court of Nigeria, the Supreme Court had laid down several guidelines on the interpretation of not only statutes but also the provisions of our Constitution in many of its land mark decisions. In Attorney-General of Bendel State v. Attorney-General of the Federation (1981) 10 S.C. 1 (1981) 1 F.N.L.R. 179, Obaseki JSC laid down 12 guidelines to be observed in interpretation of statutes, most especially the provisions of our Constitution as follows:-

  1. Effect should be given to every word used in the Constitution.
  2. A construction nullifying a specific clause in the Constitution shall not be tolerated, unless where absolutely necessary.
  3. A Constitutional power should not be used to attain an unconstitutional result.
  4. The language or the Constitution, where clear and unambiguous must be given its plain and evident meaning.
  5. The Constitution of the Federal Republic of Nigeria is an organic scheme of Government to be dealt with as an entirety hence a particular provision should not be severed from the rest of the Constitution.
  6. While the language of the Constitution does not change, the changing circumstances of a progressive society for which it was designed, can yield new and further import of its meaning.
  7. A Constitutional provision should not be construed in such a way as to defeat its evident purpose.
  8. Under the Constitution granting specific powers, a particular power must be granted before it can be exercised.
  9. Declaration by the National Assembly of its essential legislative functions is precluded by the Constitution.
  10. Words are the common signs that men make use of to declare their intentions one to another, and when the words of a man express his intentions plainly, there is no need to have recourse to other means of interpretation of such words.
  11. The principles upon which the Constitution was established rather than the direct operation or literal meaning of the words used should measure the purpose and scope of its provisions.
  12. Words of the Constitution are, therefore not to be read with “stultifying narrowness.”

Also in the case of Ishola v. Ajiboye (1994) 7 – 8 S.C.N.J. (Pt. 1) at 35, Ogundare JSC (of blessed memory) after adopting the 12 guidelines above, added four other guidelines as follows-

  1. Constitutional languages is to be given a reasonable construction and absurd consequences are to be avoided;
  2. Constitutional provisions dealing with the same subject matter are to be constructed together; –
  3. Seemingly conflicting parts are to be harmonized, if possibly so that effect can be given to all parts of the Constitution;
  4. The position of an article or clause in the Constitution influences its construction.

The golden rule governing the interpretation of Constitutional provisions is that the words used in the provisions must prima facie be given their ordinary meaning where such words are not ambiguous. The words used in the provisions of the Constitution must also be given liberal interpretation as stated in the leading cases on the subject of Constitutional interpretation in Nafiu Rabiu v. The State (1980) 8 – 11 S.C. 130 at 149 and Senate of the National Assembly v. Momoh (1983) 4 N.C.L.R. 269.

In the present case, there is no doubt whatsoever that the dispute that was brought before the trial Federal High Court in the Originating Summons that was filed before it involves the subject of provisions dealing with the procedure made in the 1999 Constitution for taking disciplinary action against a Chief Judge of a State found wanting in the discharge of his functions to warrant his removal from office. It is therefore necessary in my view to examine all the relevant provisions contained in the Constitution governing the procedure for the appointment and removal of judicial officers. This is because while a Constitutional power should not be used to attain an unconstitutional result, the language of the Constitution, where clear and unambiguous must be given its plain and evident meaning. Although the Cross-Appellant is insisting that in the determination of this 3rd issue, the Court should confine itself to the interpretation of the provisions of Section 292(1)(a)(ii) of the Constitution alone to the exclusion of the other relevant provisions of the same Constitution, I entirely agree with the learned senior Counsel for the Appellants/Cross-Respondents that the Court should examine all the relevant provisions of the Constitution in order to find adequate guidance in arriving at the correct decision.

The National Judicial Council is one of Executive Bodies established for good governance of the Country under Section 153 of the Constitution which states –

“153(1) There shall be established for the Federation the following bodies, namely-

(a) xxx

(i) National Judicial Council

(2) The composition and powers of each body established by sub-section (1) of this Section are contained in part 1 of the Third Schedule to this Constitution.”

What is relevant for determination of this issue is-to- fish out and examine the powers of the National Judicial Council in Paragraph 21 of Part 1 of the Third Schedule to the Constitution which reads-

“21. The National Judicial Council shall have power to –

(a) recommend to the President from among the list of persons submitted to it by

(i) the Federal Judicial Service Commission, persons for appointment to the offices of the Chief Justice of Nigeria …

(ii) xxx

(b) recommend to the President the removal from office of the Judicial Officers specified in sub-paragraph (a) of this paragraph and to exercise disciplinary control over such officers.

(c) recommend to the Governor from among the list of persons submitted to it by the State Judicial Service Commissions persons for appointment to the offices of the Chief Judges of the States and Judge of the High Courts of States, the Grand Kadis and Kadis of the Sharia Court of Appeal of the States and the Presidents and Judges of the Customary Courts of Appeal of the States.

(d) recommend to the Governors the removal from office of the judicial officers specified in sub-paragraph (c) of this paragraph, and to exercise disciplinary control over such officers.”

It is quite plain from the provisions of paragraph 21 sub-paragraphs (c) and (d) of Part 1 of the Third Schedule to the Constitution of the Federal Republic of Nigeria 1999, that the National Judicial Council is the body that had been assigned the duty and responsibility of recommending to the Governors of the States of the Federation suitable persons for appointments to the offices of Chief Judges of the States and other Judicial Officers in the States. In addition to its role in the appointment of Chief Judges of the States and other Judicial Officers, the same National Judicial Council is also empowered under Sub-paragraph (d) of paragraph 21 to recommend to the Governors of the States the removal from office of the Chief Judges of the States and other Judicial Officers of the States and also to exercise disciplinary control over such Chief Judges of the States and other Judicial Officers of the States. Therefore, from these very clear provisions of the Constitution -which are very far-from being ambiguous, the Governors of the States and the Houses of Assembly of the States cannot exercise disciplinary control touching the removal of Chief Judges of States or other Judicial Officers in the States.

Going back to Section 271(1) of the 1999 Constitution, it is also glaringly clear that the National Judicial Council has been given a role to play in the appointment of Chief Judges of the States where the Section states –

“271(1) The appointment of a person to the office of a Chief Judge of a State shall be made by the Governor of the State on the recommendation of the National Judicial Council subject to the confirmation of the appointment by the House of Assembly of the State.

It can be seen here again, although the Governor of a State has been vested with the power to appoint the Chief Judge of his own State, that power is not absolute as the Governor has to share the power with the National Judicial Council in recommending suitable persons and the State House of Assembly in confirming the appointment. It is in the spirit of the Constitution in ensuring checks and balances between the Three Arms of Government that the role of the Governor in appointing and exercising disciplinary control over the Chief Judge of his State is subjected to the participation of the National Judicial Council and the House of Assembly of the State in the exercise to ensure transparency and observance of the rule of law.

The Cross-Appellant has made heavy weather on the interpretation and application of Section 292(1(a)(ii) of the 1999 Constitution which is said to have conferred unfettered powers on the Governor of Kwara State and the House of Assembly of Kwara State to remove the Chief Judge of Kwara State from office on an allegation of misconduct. The relevant Section of the Constitution states:-

“292(1) A Judicial Officer shall not be removed from office or appointment before his age of retirement except in the following circumstances:-

(a.) In case of-

(i.) The Chief Justice of Nigeria

(ii ) The Chief Judge of a State, Grand Kadi of a Sharia Court of Appeal or President of a Customary Court of Appeal of a State, by the Governor acting on the address supported by two-thirds majority of the House of Assembly of the State, praying that he be so removed for his inability to discharge the functions of his office or appointment (whether arising from infirmity of mind or of body) or for misconduct or contravention of the code of conduct.”

The provisions of Section 292(1(a)(ii) of the Constitution above also deals with the power of the Governor to remove the Chief Judge of a State in conjunction with the House of Assembly of the State. Although, it is true as argued by the learned senior Counsel to the Cross-Appellant that the above Section 292(1) made no provision for the National Judicial Council to play any role in the removal of a Chief Judge of a State, the fact that the Council has a vital role to play in the appointment, removal and exercising control over a Chief Judge of a State under Section 271(1) of the Constitution and also under paragraph 21 of part 1 of the Third Schedule to the same Constitution is not at all in doubt. Furthermore, the conditions specified under Section 292(1)(a)(ii,) of the Constitution for the exercise of the power of removal must be satisfied before such power can be validly exercised by both the Governor and the House of Assembly. This is because any exercise of power to remove a Chief Judge must be based on his:-

  1. Inability to discharge the functions of office or appointment;
  2. The inability to perform the functions of his office could arise from infirmity of the mind or of body
  3. For misconduct or
  4. The contravention of the code of conduct

All these conditions or basis for the exercise of power to remove a State Chief Judge must be investigated and confirmed by credible evidence and placed before the Governor and the House of Assembly before proceeding to exercise their power of removal granted by the Section of the Constitution. For example the ground of removal for inability to perform the functions of his office or appointment cannot be ascertained and confirmed by the Governor or the House of Assembly in the absence of any input from the National Judicial Council under which supervision the Chief Judge discharges his functions as Judicial Officer and which body also is directly responsible for exercising disciplinary control over the said State Chief Judge. It is not difficult to see that for the effective exercise of the powers of removal of a Chief Judge of a State by the Governor and House Assembly, the first port of call by the Governor on his journey to remove a Chief Judge of the State shall be the National Judicial Council which is equipped with the personnel and resources to investigate the inability of the Chief Judge to discharge the functions of his office) the subject of disciplinary action of removal through the Committees of the Council and where the infirmity of the mind or body is involved) the services of a medical board to examine and submit appropriate report on the Chief Judge to be affected) could also avail the Council in the process of investigation. It is for the foregoing reasons that I hold the view that in the resolution of the issue at hand, the entire provisions of the 1999 Constitution in Sections 153(1)(i)(2), 271(1), 292(1)(a)(ii) and paragraph 21 of Part 1 of the Third Schedule to the Constitution of the Federal Republic of Nigeria 1999 dealing with the appointments removal and exercise of disciplinary control over Judicial Officers, must be read) interpreted and applied together in resolving the issue of whether or not the Governor of a State and the House of Assembly of a State can remove a Chief Judge of a State in Nigeria without any input of the National Judicial Council. This is because the combined effect of these provisions of the Constitution has revealed very clear intention of the framers of the Constitution to give the National Judicial Council a vital role to play in the appointment and removal of Judicial Officers by the Governors and Houses of Assembly of the State. In the result, I entirely agree with the two Courts below that having regard to these relevant provisions of the 1999 Constitution the Governor of Kwara State and the House of Assembly of the State cannot remove the Chief Judge of Kwara State from Office without the participation of the National Judicial Council in the exercise. The 3rd issue therefore is also resolved against the 2nd Respondent/Cross-Appellant.

The 4th and last issue is whether the Court of Appeal did not err in making pronouncement on the procedure employed in the removal of the 1st Appellant/Cross-Respondent as Chief Judge when that point was neither an issue before it nor even before the trial Court. I am afraid this issue has already been effectively determined and resolved under issue No. 3 which I have resolved against the Cross-Appellant. The entire case in fact principally involves the procedure prescribed under the 1999 Constitution for the removal or taking disciplinary action against a Chief Judge of a State. The Court below was not in error at all in delving into the matter.

Coming to the cross-appeal filed by the 3rd Respondent, the House of Assembly of Kwara State, 12 grounds of appeal were filed in the Notice of cross-appeal by its learned senior Counsel from which the following 3 issues were distilled for the determination of the cross-appeal in the Cross-Appellant’s brief of argument. The issues are:-

(i) Whether having regard to the hostile nature of the proceedings coupled with the hotly contested facts in support of and in opposition to the Originating Summons, the Court of Appeal was not in error in upholding the use of Originating Summons in initiating the case.

(ii) Whether the Court of Appeal was not in error in delving into the merit of the substantive case after having correctly held that the trial Court lacked jurisdiction and making an order transferring the matter to the Kwara State High Court for hearing on the merit thereby depriving the Kwara State High Court of any opportunity to consider the case on the merit.

(iii) Whether the Court of Appeal was not in error in the way and manner it interpreted the provisions of the Constitution especially Section 292 thereof and in coming to the conclusion that the 2nd and 3rd Respondents/Cross-Appellants cannot remove the 1st Appellant/Cross-Respondent from office as Chief Judge of Kwara State without recourse to and input/participation of the 2nd Appellant/Cross-Respondent, the National Judicial Council and in setting up a new case for the 1st Appellant/Cross-Respondent without hearing the Cross-Appellant herein.”

These three issues in the 3rd Respondent/Cross-Appellant’s appeal have been effectively covered in the four issues identified and resolved in the 2nd Respondent/Cross-Appellant’s cross-appeal. In other words, on the interpretation and application of the provisions of Section 153(1)(i); 271(1); 292(1)(a)(ii) and paragraph 21 of Part 1 of the Third Schedule to the Constitution of the Federal Republic of Nigeria 1999, the Governor of Kwara State and the House of Assembly of Kwara State cannot remove the Chief Judge of Kwara State from office without recourse to and input or participation of the National Judicial Council. That is to say for the purpose of emphasis, the Constitution of the Federal Republic of Nigeria 1999, does not give the Governor of Kwara State acting in conjunction with the House of Assembly of Kwara State absolute power to remove the Chief Judge of the State from his/her office or appointment before the age of retirement without the recommendation of the National Judicial Council.

Thus, in the final analysis in the appeals and the Cross-appeals in this matter, the appeals which succeed are hereby allowed, the judgment of the Court below which held that the trial Court lacked, jurisdiction in entertaining the action is hereby set aside. The judgment of the trial Court declaring that it has jurisdiction to entertain and determine the matter brought before it by the Plaintiff/Appellant is hereby restored and affirmed. In the same vein the two cross-appeals of the 2nd and 3rd Respondents/Cross-Appellants having failed are hereby dismissed.

Taking into consideration the circumstances of this case, I do not regard it appropriate to make any order on costs.

SC.281/2010

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