Applying S.11 Interpretation Act to the Question of the Power of the President to Exercise Disciplinary Power of Suspension Over the CJN – Nonso Robert Attoh

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PRELIMINARY CONSIDERATIONS

A simple fact that will aid understanding of Section 11 of the Interpretation Act and help in the appreciation of possible future developments in the interpretation of this section, is the fact that section 11 of our Act parallels the Crown’s power under the common law (Source: Report no. 17 of the Law Commission of New Zealand. Our section 11 is the same as s.12 of the Interpretation Act of New Zealand). These powers were called the prerogative powers and included the power of the crown to fire at will, all those who held their office at his pleasure. Modern realities like human rights etc. have tended to whittle down such powers without eliminating it. One can easily confirm this by examining the decisions of courts of commonwealth countries like Canada, Australia, New Zealand etc. and of course our own courts as well.

Equally of importance in understanding the judicial approach to the application of this section to the peculiar case of judges is the history of the tenure of English Judges from the initial situation where they held their office at the pleasure of the Crown, to later holding office for good behavior up till the Act of Settlement of 1701 which provided that “Judges Commissions be made quamdiu se bene gesserint and their salaries ascertained and established but upon the Address of both Houses of Parliament it may be lawful to remove them.”

A quick word about the address method of removing judges which is retained in our constitution, C. H. McIlwain points out that the term “address” is actually a word that gradually came to supersede the word petition which meant a communication from one or both houses of parliament to the Crown. One can then appreciate the statement from McIlwain that “THE MAIN PURPOSE OF THE ENGLISH ACT OF SETTLEMENT WAS TO MAKE JUDGES INDEPENDENT OF WHAT IN THE SEVENTEENTH CENTURY HAD CLAIMED TO BE THE SOVEREIGN POWER IN THE STATE – THE CROWN”. It was the duty of both houses of parliament to vote for an address, after they have carried out their investigation. The Kings part was just to act on the communication from the houses and remove the judge as the symbol of the state even though he was not bound to give effect to the address. Thus, we see that following this procedure, the king had had no hand in removing a judge except to give effect to the resolution or address of the Houses of Parliament.

This history is also very relevant to remember whenever we are tempted to advocate for external control of judges, as it was recorded that prior to the Act of Settlement of 1701, during the reign of king James, 4 judges were removed in one day in 1686 for refusing to decide for the dispensing power, and two in the next year for declining to transfer the execution of a convicted deserter from the county where he had been tried to Portsmouth where his execution would have a greater effect on the troops. This is just a tip of the iceberg of the shameful (but justifiable in the prevailing social setting at the time) interference of the Crown in the judicial arm of government that sparked the agitation that led to the promulgation of the Act of Settlement and its protection of the tenure of judges.

RELEVANT JUDICIAL PRONOUNCEMENTS ON THE APPLICATION OF S.11

The following principles from the decisions of the Courts in Nigeria will be employed in attempting to decide whether section 11 can be invoked to vest disciplinary powers on the President

  1. Where the words used in the enactment (as for example in Section 141 of the Electoral Act) are clear and unambiguous they must be given their literal meaning without recourse to the Interpretation Act.  Per Bada J.C.A. in Mohammed Baba Ibaku & Ors. v. Umar San Ebini & Ors. (2009) LPELR-19779(CA).
  1. It is only where there is no express provision in the Decree (read enactment) that the Interpretation Act is a relevant factor in construing its provisions. Per Coker, J.S.C. in Oke v. Atoloye (1985) NWLR (Pt.9)578.
  1. “The power to dismiss [the appellant] as a public officer from the public service of the state or to EXERCISE DISCIPLINARY CONTROL OVER HIM AS SUCH OFFICER IS VESTED BY THE CONSTITUTION IN THE PUBLIC SERVICE COMMISSION OF THE STATE. That being the case, it seems to us that, by referring the disciplinary aspect of the matter to the military governor for a decision as the public service commission of the Rivers State had done in the case in hand, the commission had abdicated its constitutional responsibility in the matter. THERE IS NO DOUBT THAT WHAT THE MILITARY GOVERNOR DID IN THE CASE IN HAND WAS ULTRA VIRES HIS CONSTITUTIONAL POWER. This renders his order that the appellant be retired from the public service a nullity.” – Per Fatayi Williams JSC in Athanasius Kalada Hart vs. The Military Governor of Rivers State (1976) 11 SC 211.
  1. “By virtue of the provisions of Section 202 of the 1999 Constitution, it is the Cross-River State Civil Service Commission that is empowered to discipline the appellant and this is not subject to the direction and control of any authority or person…His tenure was subject to the relevant statutes and regulations made thereon and not subject to the whims and caprices of the respondents… It is therefore, not enough that a statute has conferred a particular power on a public functionary; it is of the essence that the recipient should be capable of exercising such power both in fact and in law. – Per Omokri, J.C.A in Chief Augustine A. Nawa v. Attorney-General, Cross River State & ors. (2007) LPELR-8294(CA).
  1. “From the very clear provisions of the Constitution 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…. 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 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 – Per Mahmud Mohammed, J.S.C in Hon. Justice Raliat Elelu-Habeeb & Anor v. the Hon. Attorney General of the Federation & Ors. (2012) 2 iLAW/SC.281/2010.
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THE INTERPRETATIVE CONUNDRUM

Section 11 of the Interpretation Act in its relevant portion provides;

“Where an enactment confers a POWER TO APPOINT A PERSON EITHER TO AN OFFICE OR TO EXERCISE ANY FUNCTIONS, whether for a specified period or not, THE POWER INCLUDES− (b) POWER TO REMOVE OR SUSPEND HIM; (c) power, exercisable IN THE MANNER AND SUBJECT TO THE LIMITATIONS AND CONDITIONS (IF ANY) APPLICABLE TO THE POWER TO APPOINT− (ii) to appoint a person to act in his place, either generally or in regard to specified functions, during such time as is considered expedient by the authority in whom the power of appointment in question is vested (capitalization supplied for emphasis)

It is also important to note that the Act provides in its section 1 that “This Act shall apply to the provisions of any enactment EXCEPT IN SO FAR AS THE CONTRARY INTENTION APPEARS IN THIS ACT OR THE ENACTMENT IN QUESTION”. (capitalization supplied for emphasis).

The section therefore that calls for interpretation is section 231 which vests the power to appoint the CJN as follows: “The appointment of a person to the office of Chief Justice of Nigeria shall be made by the President on the recommendation of the National Judicial Council subject to confirmation of such appointment by the Senate.”

PRELIMINARY INTER-CONNECTED ISSUES

(i) Power to appoint a replacement under s.11(1)(c) Interpretation Act.

The provision of section 11(1)(c) of the Interpretation Act, which provides for the power of the appointer to appoint a person to act in the place of the person previously appointed by him must BE EXERCISED IN THE MANNER AND SUBJECT TO THE LIMITATION AND CONDITIONS APPLICABLE to the ab initio power to appoint. Therefore, in this case relating to the power to appoint the CJN, the constitution requires that any exercise of the power to appoint a replacement for the CJN must comply with section 231 of the Constitution which stipulates that such appointment of a replacement must be on the recommendation of the NJC and such appointment of a replacement must be subject to confirmation by the Senate.

(ii) Section 231(4) and (5) 1999 Constitution on power to appoint the most senior Judge of the Supreme Court where the office of the CJN becomes vacant…

It is also important to address a related issue in section 231(4) of the Constitution that provides that where the office of the CJN is vacant or if the person holding the office is for any reason unable to perform the functions of the office, the President SHALL appoint the most senior justice of the Supreme Court to perform the function of the CJN until a person has been appointed to and has assumed the functions of the CJN. This section may have provided the impetus for the order of the CCT to the President to appoint the most senior Justice of the Supreme Court as a replacement for the CJN.

It is pertinent to note that the Constitution prescribed that for this power to appoint the most senior justice of the Supreme Court to replace the CJN, to become exercisable, the CJN’s office must have become vacant or that the CJN is unable to perform the functions of his office for whatever reason. It however, failed to define the criteria for determining whether the office of the CJN has become vacant or in which circumstances the CJN can be said to be unable to perform the functions of his office and who has the duty of making the determination.

However, since the Constitution clearly states when these conditions are fulfilled in the case of the President, Vice-President, and Chairmen and members of the Executive Bodies created under the Constitution, in sections 146(1), 146(3) and 157(1), then one would suggest that, based on some of the guidelines laid down by the Supreme Court per Obaseki JSC, in Attorney-General of Bendel State v. Attorney-General of the Federation (1981) 10 S.C. 1 (1981) 1 F.N.L.R. 179, and by Ogundare JSC in  Ishola v. Ajiboye (1994) 7 – 8 S.C.N.J. (Pt. 1) at 35,  the same conditions prescribed for the officers listed above should be applied mutatis mutandi, to interpret the same provisions in respect of the CJN.

Also, as the Supreme Court recognized in Hon. Justice Raliat Elelu-Habeeb & Anor v. the Hon. Attorney General of the Federation & Ors, the indispensable role constitutionally assigned to the NJC in the discipline and dismissal of judicial officers, it should also be the function of the NJC to determine when these condition have been met and call on the President to appoint the next senior Justice of the Court to replace the CJN. Subsection 5 of section 231 also seems to confirm this interpretation when it provides that the appointment of a replacement in the case of vacancy or inability of the CJN to perform his functions shall cease to have effect after 3 months except on the recommendation of the NJC. It is ultra vires the CCT whose powers are clearly enumerated and circumscribed in the constitution to perform this function. This option seems to be most appropriate in a case such as this where investigations and trials are still going on and reserves the possibility of the CJN returning to his office when the supervening incapacity has been removed by an acquittal on the merits in Court.

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Some of the relevant Supreme Court guidelines already mentioned earlier, that support this interpretation are; 1. a Constitutional power should not be used to attain an unconstitutional result; 2.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; 3. Constitutional provisions dealing with the same subject matter are to be constructed together; 4. Constitutional language is to be given a reasonable construction and absurd consequences are to be avoided; 4. Seemingly conflicting parts are to be harmonized, if possibly so that effect can be given to all parts of the Constitution; 5. a Constitutional provision should not be construed in such a way as to defeat its evident purpose; 6. Under the Constitution granting specific powers, a particular power must be granted before it can be exercised; 7. the position of an article or clause in the Constitution influences its construction; 8. a construction nullifying a specific clause in the Constitution shall not be tolerated, unless where absolutely necessary.

APPLICATION OF THE PRINCIPLES TO THE QUESTION

Getting to the real issue whether the power of the President to appoint the CJN as provided by section 231(1) also includes the power to remove and suspend him based on the provision of section 11 of the Interpretation Act, the first consideration will be whether the constitution reveals a contrary intention to giving such powers to the President. (section 1 of the Interpretation Act)

In attempting to address this issue, we will immediately realize that the Constitution expressly makes provisions for the Powers of removal as well as discipline of the CJN. These provisions are contained in sections 292(1) and paragraph 21, Part 1 of the third Schedule.

Going by the summary of the holding of Coker, J.S.C. in Oke v. Atoloye reproduced above, since the Constitution contains express provisions on the disciplinary powers over judicial officers, the Interpretation Act is not a relevant factor in interpreting the powers of suspension over judicial officers.

Secondly, the wordings of the section vesting the disciplinary powers over judicial officers in the NJC are clear and unambiguous they must be given their literal meaning without recourse to the Interpretation Act, according to the holding of Bada J.C.A. in Mohammed Baba Ibaku & Ors. v. Umar San Ebini & Ors.

Furthermore, based on the rule of interpretation of statutes which states that the express mention of one thing means the exclusion of others (expressio unius est exclusio alterius), the direct vesting of the disciplinary power which includes suspension, compulsory retirement (Mohammed Baba Ibaku v. Umar San Ebini and Ors. (supra), etc. on the NJC is the exclusion of the same power being exercised by the President at the same time.

Going beyond excluding the use of the Interpretation Act, the guideline laid down by Obaseki JSC that under the Constitution granting specific powers, a particular power must be granted before it can be exercised, the fact that the disciplinary power is expressly granted to the NJC while appointment and removal are granted to the President, evinces an intention that the President cannot exercise the power of suspension that was not granted to it under the constitution.

Going by the holdings of Omokri, J.C.A in Chief Augustine A. Nawa v. Attorney-General, Cross River State & Ors and the decision in Athanasius Kalada Hart vs. The Military Governor of Rivers State, the NJC should be capable of exercising the power of discipline vested in her both in fact and in law and cannot abdicate that role by referring it to the government without doing its part.

Finally, Mahmud Mohammed, J.S.C is unequivocal in Hon. Justice Raliat Elelu-Habeeb & Anor v. the Hon. Attorney General of the Federation & Ors that the Executive and the Legislature cannot exercise disciplinary powers over judicial officers except the power of removal granted to them by the Constitution, and even in exercising such power, they must receive input from the NJC. This seals the lid on the question whether the President can exercise disciplinary powers over a judicial officer without the concurrence of the NJC. The answer is a resounding no, despite the provision of section 11 of the Interpretation Act.

CONCLUSION

All the above exercise to establish that the President, as the head of the Executive, cannot constitutionally exercise disciplinary powers over the head of the Judiciary is basically unnecessary for anyone who appreciates the basic principles of separation of powers, checks and balances and independence of the judiciary. Because I am constrained by the desire not to make this article too long, I have had to delete sections reproducing international standards and best practices and comments of the Human Rights Committee on independence of the judiciary, requiring that states adopt effective measures to ensure that the judiciary is shielded from pressures and influences from the executive branch due to the lack of any independent mechanism responsible for the recruitment and discipline of judges. Our Constitutional scheme ensures this separation and independence, in line with the British tradition, by ensuring that no one arm of government can unilaterally remove the CJN or judicial officers, but the Legislature, the Executive and the NJC must work in unison before such a removal can be possible. I have simply examined the law without attempting to prejudge the guilt or innocence of the CJN or give undue attention to the sentiments of political, religious and tribal nature being bandied about carelessly to fan embers of hatred and disunity and distort the ability to reason rationally about the issues on ground. The media trial of the CJN clearly goes against the Basic Principles on the Independence of the Judiciary which demands that the examination of a complaint or charge against a judge in his/her judicial and professional capacity at its initial stage shall be kept confidential, unless otherwise requested by the judge. Apart from the trial of the CJN, such media trial of accused persons makes it difficult to explain to laymen that losing what may be considered a good case in court may have nothing to do with a corrupt judge but everything to do with an inept counsel who is unable to meet the evidential burden required of him by the law or who is not prepared to navigate through the deep waters of technicalities which characterize the law. The public who has been swayed by such media trials cannot understand that no matter how much sympathy a judge has for any case, he is not permitted to make out a case for counsel which the counsel has not canvassed before the Court, and apart from giving the counsel general tips in court, the judge cannot descend into the arena to help the counsel meet the evidential and procedural burdens laid on him/her by the law. As such, media trials are often resorted to, in order to sway the public mind, when legal pundits know that they are unprepared to handle the rigours of litigation. We cannot as lawyers base our assessment on media evidence, some of which are contrived, exaggerated and may not be admissible in the real court room battle. I have always insisted that the dangerous precedents being set up in this case is as a result of the false assumption created in the minds of pseudo lawyers, that the decision of the Court of Appeal in Nganjiwa’s case must be followed by the CCT as it had done in the case of Ngwuta JSC. This is without considering that the judge and counsel faced with an unpleasant precedent that is binding on the Court, can always resort to the technique of “distinguishing” or find the decision of a superior court that is even more binding on the Court to displace the precedent it does not wish to follow, without declaring the case per incuriam which it has no power to  do.  Also, administrative tribunals are not bound to follow their own precedents, though they usually do so in order to achieve consistency in the law. It is even more worrisome that the courts countenanced these applications to delay the trial at the CCT, when the CCT has not even exercised the right that belongs to every court (except in the relatively few cases where a Prohibition Order or an injuctive order can be granted to restrain the lower tribunal from exercising a jurisdiction it does not have), to decide on whether it has jurisdiction to entertain the case before it. But practitioners know that the fact that a court has permitted applicants before it to be heard on their application does not mean that it must automatically grant the discretionary remedies sought by the applicant, where the applicant does not meet the conditions required for the grant of the remedy. The wheels of justice may grind slowly, but they do grind surely and anyone who has confidence in the machinery of justice, will not be fazed by the delays caused by these developments. The danger of having a verified Demas who has abandoned his oath of allegiance to Truth and Justice, cannot compare to the danger the entire society will face if the wisdom of the fathers of democracy, in providing for the separation of powers between the arms of government, ensuring the independence of the judiciary and only allowing for checks and balances among the arms, is blatantly swept aside as it has just been done. The adversarial system has been accused of promoting the sporting theory of justice, but that is the system we practice, and we all have to improve our game, whether as the prosecution or defense in order to meet its challenging demands. These unpleasant happenings surrounding this case cannot justify the interference of the Executive in the disciplinary proceedings of the Judiciary in absolute disregard for the constitution that protects the Nigerian State. SERAP just demonstrated the wisdom of those who wish to build rather than to tear down by addressing a petition to NJC to carry out its constitutional functions or be compelled by the process of the Court to do so. If, because of tribal, religious, political, or financial considerations or ignorance of the principles that underpin our constitutional democracy and the freedoms we enjoy, we justify and support executive lawlessness or judicial rascality, we will soon wake up to realize that we have been thrust back into the dark ages where might is right and all of us have become wolves to one another, because we have violated the terms of our pactum unionis and created a monster that cannot be restrained by any legal means. “…he who bids the law rule may be deemed to bid God and Reason alone rule, but he who bids man rule adds an element of the beast; for desire is a wild beast, and passion perverts the minds of rulers, even when they are the best of men.” (Aristotle, Politics, Book III, Part XVI).

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Nonso Robert Attoh is a law lecturer and writes from Enugu, Nigeria

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