Continues from last week

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, of 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, li is for the foregoing reasons that I hold the view that m the resolution of the issue at hand, the entire provisions of the Constitution of the Federal Republic of Nigeria, 1999 in sections 153(1)(i)(2), 27(i), 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 an 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 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. 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 uncle- the Constitution of the Federal Republic of Nigeria, 1999 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-anneal. In other words, on the interpretation and application of the provisions of section 153(1 )(i), 271 (1 )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 or the National Judicial Council.

Thus, in the final analysis in the appeals and the cross-appeals in this matter, the appeal 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 jailed, are hereby dismissed.

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

Counsel:

Chief A. S. Awomolo (SAN) (with him O. A. Aiyemowa) – for the 1st Appellant/Cross-Respondent.

J. B. Daudu (SAN. (with him. E. O. Maduka (Miss) and O. 0. Kehinde) – for the 2nd Appellant/Cross-Respondent.

R.A. Lawal Rabana (SAN) (with him. Aliyu Saiki) – for the 1st respondent.

A. 0. Adelodun (SAN) (with him. A Abuulraheem) – for the 2nd respondent/Cross-Appellant.

Yusuf Ali (SAN) (with him. K. K. Eleja. T.B. Olurode (Miss). T.E.

Akintade (Miss.) and K. T. Sulaiman (Miss)) -for the 3rd Respondent/Cross -Appellant