The dynamism of the recent suspension and her removal from office; combined with the hush-hush swearing-in of a new ‘Acting’ Chief Judge by the State Governor calls for caution and urgent need for judicial interpretation by our Courts on the legality, constitutionality or otherwise of the acts. The decision of the Supreme Court in the case of Hon. Justice Raliat Elelu-Habeeb & Anor v. Attorney General of the Federation & 2 Ors(2012) All NWLR (PT 629)1011 on the issue of sanctioning judicial officers for misconduct is very germane and on all fours with the current Abia State situation and/or happenstance.
Can an action can be taken against a judicial officer without National Judicial Council’s (NJC) approval?
A Review of Hon. Justice Raliat Elelu-Habeeb & Anor v. Attorney General of the Federation & 2 Ors. (Supra)
The judgment in the case was delivered by the Supreme Court on 17th February, 2012. Other parties in this case are the NJC as a Co-Appellant and Attorneys General of the Federation and Kwara State & Kwara State House of Assembly as co-Respondents.
The brief facts of the case as they pertain to the instant issue are that the Governor of Kwara State forwarded a letter to the Kwara State House of Assembly, making allegation of corruption against the Chief Judge of Kwara State and citing inability to discharge the functions of her office and acts of misconduct which contravened the code of conduct for judicial officers. Acting on the letter, the Chief Judge was invited by the House of Assembly with a view to exercising disciplinary control over her. Due to the absence of the Chief Judge on the appointed day, the Kwara State House of Assembly found all the allegations against her as established and she was removed as the Chief Judge.
She thereafter instituted an action at the Federal High Court, asking the court for a declaration that, by virtue of section 153(1), 27(1), 292(1) and paragraph 21 of Part 1 of the Third Schedule to the Constitution, the Kwara State House of Assembly had no power to initiate or carry out any exercise of disciplinary control and/or proceedings on her and that the NJC is the body vested with such power under section 153 and paragraph 21 of the Third Schedule to the 1999 Constitution. The court held that the removal was unconstitutional and null and void. The Respondents appealed to the Court of Appeal, which affirmed the judgment of the Federal High Court on the issue. The Chief Judge, however, appealed to the Supreme Court on another issue, and the Respondents cross-appealed on the issue and another. The appeal of the Chief Judge was allowed. The Supreme Court, Per Muhammed, JSC (at paras. A-E, pp. 1049-1050), affirmed the positions of the Court of Appeal and the Federal High Court on as follows:
“Therefore, from these 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…I entirely agree with the two courts below that having regard to these relevant provisions of the Constitution of the Federal Republic of Nigeria, 1999, 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.”
This was the unanimous holding of the fully constituted members of panel of the Supreme Court as delivered in the lead judgment by Mahmud Mohammad, JSC, and all the other seven members of the panel concurred with him.
Understanding The Stand of The Supreme Court
The case highlights two important points—
(a.) the NJC is not only instrumental to the removal of a judicial officer, but also has to compulsorily be the body through whom the procedure to remove a judicial officer must mandatorily commence; and
(b.) removal of judicial officers cannot commence from the executive (President or Governor) and/or the legislature, as it will be contrary to the principle of separation of power that is indoctrinated in the Constitution that highlights the roles to be played by the respective bodies involved in the triangular equation and how to play them. The NJC only recommends for removal, the President or Governor does the actual removal and the Senate arm of the National Assembly or the State House of Assembly ratifies the removal by not less than two-third majority votes. In the above case, the Supreme Court’s decision (which is final) is that there can never be removal of a judicial officer “without the participation of the National Judicial Council in the exercise.”
I do not understand why the Abia State Government didn’t requisite legal advice before the removal of the Chief Judge and subsequent swearing in of an Acting Chief Judge without consulting the National Judicial Council. The Supreme Court is clear on this issue and I say (without sentiments) that the decision of Abia State Government to suspend and remove the Chief Judge in this case is dead on arrival.
I will conclude with a quote from Law doyen and Master of Rolls, Lord Denning, who held in the case of Macfoy v. U.A.C. (1962) AC 158 that… “If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse…”
Dr Ralph Ibekwe
Barrister and Solicitor
Bolaji Ramos, (2016) Sanctioning Judicial Officers – The Supreme Court Speaks.