3PLR – GOVERNOR OF EBONYI STATE & ORS. V. HONOURABLE JUSTICE E. I. ISUAMA
POLICY, PRACTICE AND PUBLISHING, 3PLR, LAW REPORTS
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GOVERNOR OF EBONYI STATE & ORS.
V.
HONOURABLE JUSTICE E. I. ISUAMA
IN THE COURT OF APPEAL
[ENUGU DIVISION]
CA/E/163/2004
LN-e-LR/2003/82 (CA)
OTHER CITATIONS
(2003)6 NWLR (Pt.975)
BEFORE THEIR LORDSHIPS
IGNATIUS CHUKWUDI PATS ACHOLONU, JCA (Presided and delivered the leading judgment)
JOHN AFOLABI FABIYI, JCA
CLARA BATA OGUNBIYI, JCA
REPRESENTATION
- N. Anyamene, SAN with him N. N. Uko (Mrs.) – for the appellants.
- N. Udechukwu, SAN with him E. Nwanne (Mrs.) – for the respondents.
MAIN ISSUES
CONSTITUTIONAL LAW:- Meaning of Public Officer under the Constitution – Definition under Part II of the 5th schedule to the Constitution of Nigeria for the purpose of the application of the Code of Conduct – Whether restricted to purpose of Code of Conduct – Whether public officers defined under Part II, 5th Schedule are not the same as “Public Service of the State” as stated in section 318 (1) of the Constitution and “Public Officer” as defined under section 18(1) of the Interpretation Act Cap. 192 Laws of the Federation 1990
HUMAN RIGHTS AND CONSTITUTIONAL LAW:– Remedies for violation of rights – Rights of a party to seek all remedies provided by law including those under the African Charter on Human and Peoples Rights – Access to court – When procedural conditions restricting same may be in violation of the Constitution
HUMAN RIGHTS AND CONSTITUTIONAL LAW – AFRICAN CHARTER ON HUMAN AND PEOPLE’S RIGHTS:- Applicability in Nigeria – Whether expands window of options available to party in Nigeria which rights have been violated in any way not conforming to the treaty obligation of Nigeria – Articles 3 and 7(1)(a) of the Charter in review
EMPLOYMENT AND LABOUR LAW – MASTER AND SERVANT:– Public officer – who qualifies as same under section 11(2) of the State Proceedings Law Cap. 131 Laws of Anambra State.
ADMINISTRATIVE LAW – PRE-ACTION NOTICES:- Purpose of the requirement of pre-action notices before an action can be brought against a public officer – Meaning of a “Public Officer” and “Public Service of the State”- Constitutionality of – Attitude of court thereto – Effect of non-compliance therewith
PRACTICE AND PROCEDURE – ACTION:– Pre-action notice – Whether constitutional – Whether applicable to a state Governor, the House of Assembly and the National Judicial Council – Whether can be raised for the first time on appeal having not been pleaded and raised at trial court
PRACTICE AND PROCEDURE – JURISDICTION:– Competence of court – When issue of competence can be raised –Duty to thoroughly raise and examine the features of the case so as to ensure it satisfies prerequisite jurisdictional conditions including pre-action notices where necessary – Whether lies on court on defendants – Whether failure to raise same at the earliest opportunities disentitles party from relying on same
INTERPRETATION OF STATUTE:– Section 11(2) of the State Proceedings Law Cap. 131 Laws of Anambra State and the meaning of public officer.
WORDS AND PHRASES:- “Public Officer” – “Public Service of the State” – Meaning thereof
MAIN JUDGEMENT
IGNATIUS CHUKWUDI PATS ACHOLONU, JCA (Delivering the leading judgment):
The respondent in this case had applied In the Court below by a motion on notice for an order of certiorari compelling the 1st, 2nd and 3rd appellants (then respondents) to transmit their decision or records contained in the votes and proceedings of 24th July, 2000 and 12th September, 2000 to the High Court for being quashed or invalidated; and also an order of prohibition preventing the 1st, 3rd, 5th and the respondents from recommending or accepting the recommendations for approving or accepting the approval of swearing in into office of the 4th defendant.
Prior to that, the respondent in this case had in the statements in respect of the application for an order of certiorari objected in the most strenuous manner his removal from office as the Chief Judge; an act which he stated was unconstitutional having been in violation of section 292 of the Constitution and he asked the court below to declare his removal unconstitutional, and for an order of prohibition to prevent the parties therein from either approving or recommending the removal of the respondent. On being served with the motion on notice, the Attorney-General of Ebonyi State, filed a notice of preliminary objection for lack of jurisdiction of the court below or in the alternative to strike out the names of the 6th and 7th respondents.
At the date set down for hearing of both the motion and the preliminary objection, it was argued forcefully by the learned Attorney-General, that the names of the 6th and 7th respondents in that matter should be struck out and that the 5th respondent was acting as a mere agent of the state government, and he further canvassed that the inclusion of the names of the 6th and 7th respondent was mere dilatory, merely to confer jurisdiction on the court, (that is Federal High Court). Besides, he contended that the Federal High Court does not have exclusive jurisdiction in matters concerning the Federal Government or any of his agencies and he referred the court to D. Omosowan & Ors. v. F Chiedozie (1998) 9 NWLR (Pt. 566) page 477 at 479. In this he was supported also by Igboji Esq. who equally referred the court to the case of Aniniomye v. Nwadiye and Dr. Okoroma & Anor. v. Chief Christian Uba & Ors. (1999) 1 NWLR (Pt. 587) 359 at 367 – 9. The then applicants’ counsel now the respondents, replicando, submitted that the breach being complained about is the nature of the removal from office of the installation of the 4th respondent and he drew the attention of the court below to the provision of the African Charter on Human and People’s Right which was ratified by the government of Nigeria in Cap. 10 Laws of the Federation of Nigeria 1990. He stated that section 251 is not exhaustive of the jurisdiction of the Federal High Court, and that is what section 1 of the African Charter has done. Surprisingly he stated that the applicant is not concerned with the removal of the then respondent, but the legality of it. He further stated that although rules and remedies of African Charter were not stated in the application, in an appropriate case, resort could be made to it, he further continued in his address thus:
“It is not the business of this court to consider whether the respondent can remove the applicant, or whether the purported removal of the applicant can be justified, and what the court is called upon to do is to pronounce upon the legality or otherwise of the act of the respondent in purporting to remove the applicant in breach of the express treaty obligations in Nigeria relating to fair hearing and the respect for the independence of the judiciary.”
Hammering further he stated that the mentioning of African Charter was because the provisions raised questions touching on matters pertaining to the treaty obligations of Nigeria in relation to the equality of citizens before the law. In his ruling the court below dismissed the preliminary objection and assumed the jurisdiction to adjudicate on the case.
Dissatisfied with the judgment of the court below the respondent In the Court below (now the appellant) in this court filed notice and grounds of appeal and distilled therefrom five issues for consideration. They are as follows:
“(1) Was the suit against the Governor of Ebonyi State and the House of Assembly competent in the absence of notice of intention to institute the action as prescribed by the State Proceedings Law?
(2) Was the institution of the action in the Federal High Court not an abuse of judicial process by reason of the pendency of two actions in the High Court of Ebonyi State Nos. AB/90M/2000 and AB/105/2000 for the same relief?
(3) Was it competent for the court to convert an application for judicial review of judicial or quasi judicial proceeding to one for the enforcement of the African Charter on Human and People’s Rights having found that certiorari did not lie?
(4) he court below having found that the Nigerian government met its treaty obligations under the African Charter on Human and People’s Rights by adopting legislative measures to give effect to the rights embodied therein, and the plaintiff having brought his complaint under the said legislative measures, did the said African Charter provide alternative remedy for the applicant when he failed under the domestic law?
(5) Was the decision of the court below in all the circumstance correct?”
For the respondent only one issue was formulated which is:
“Whether the court below was right in its decision when it held that the court had jurisdiction to entertain the respondent’s application.”
The respondent holds the view that other issues of the appellant did not arise from the decision of the lower court.
Now the stand of the respondent is that the issue of pre-action notice never feature in the proceedings in the Court below; that it never arose and agitated, and there was no pronouncement by the court on the matter one way or the other in its decision. The courts have variously held that where there is prescribed a pre-action notice in order to confer jurisdiction, the court seised with such proceedings cannot competently assume jurisdiction without first thoroughly examining the features of the case to find out whether such pre-requisite condition has been met. It may be asked how would the court know this if the attention of the court was not drawn to it. It is a truism that an appeal is lodged on the decision of the court be it a ruling or judgment. Equally too where an important issue such as a jurisdictional matter is raised by a party and the court fails to consider it in its decision it follows then that a party affected adversely would make it a ground of complaint. Where however a party is well aware that a procedural process that ought generally to confer jurisdiction is not raised or shown such as the question of lack of pre-action notice, it becomes a moot question as to how the court would react to it. The matter of pre-action notice is a practice that should most importantly be brought to the attention of the trial court as it is considered the very essence of the defence case. In treating issue No. 1 in the matter, the appellant’s counsel relied on section 11(c) of the State Proceedings law of Anambra State now applicable to Ebonyi State. It is trite that the issue of competence can be raised at any time even In the Court of Appeal. In Tukur v. Government of Gongola State (1989) 4 NWLR (Pt. 117) page 517 at 549 Obaseki, JSC said; “The incompetence of the court to entertain and determine the principal opposition is enough to nullify the whole proceedings and judgments as there is no room for half judgment in any matter brought before the court … Judges have no duty and indeed no power to expand the jurisdiction conferred on them but they have a duty and indeed jurisdiction to expound the jurisdiction conferred on them. See The African Newspapers Ltd. v. The Federal Republic of Nigeria (1985) 1 All NLR 50 at 75; (1985) 2 NWLR (Pt. 6) 137 at 165.” Also in Tukur v. Government of Gongola State (supra) Oputa, JSC said at page 557: “In one of our earliest cases where the provisions of section 42(11) of the 1979 Constitution was invoked in Federal Minister of Internal Affairs & Ors. v. Shugaba Abdurrahaman Darman (1982) 3 NCLR 915, the applicant Darman applied to a High Court in Maiduguri Borno State. That was the correct venue. By going to Kano State the appellant contravened the very section 42(11) of the 1979 Constitution on which he attempted to build his case. The issue of venue was not taken up and argued in the parties briefs but being an issue of jurisdiction the court can take it up itself at any stage.” Now the question is this, assuming for the moment that the court below must necessarily entertain the argument on the assumption of jurisdiction, to whom does section 11 above apply. Before then let me state in extenso the provisions of section 11(2) Cap. 13 Laws of Anambra State to which Chief Anyamene SAN relies. Section 11(2) of the said law states:
“(2) No action shall be instituted-
(a) against the state; or
(b) against a public officer in respect of any act done in pursuance or execution or intended execution of, any written law, or of any public duty or authority or in respect of any alleged neglect or default in the execution of any such written law, duty or authority, until the expiration of a period of three months after notice in writing has been, in the case of the state delivered to the secretary to the government, and, in the case of a public officer, delivered to him, stating the cause of action, the name, description and place of residence of the proposed plaintiff and the relief which he claims, and the plaint when eventually prepared shall contain a statement that such notice has been so delivered and the state on which it was delivered.”
In the recent case of Honourable Charles Ogbonnia Asogwa & Ors. v. Chief Abel Chukwu & Anor. CA/E/124M/2002 delivered on the 25th day of November, 2002, (unreported) now on appeal to the Supreme Court this court had to consider who is a public officer within the contemplation of section 11 aforementioned. In that case the Court of Appeal per Pats Acholonu JCA held as follows:
“It is the argument of the learned counsel for the appellants that the defendants are public officers within the provision of the interpretation section of State Proceedings Law Cap. 131 Laws of Anambra State 1986. The definition runs thus:
“A public officer means an officer in a civil capacity.”
In their argument the appellants’ counsel ingeniously referred the court to part II of the 5th schedule to the Constitution of Nigeria which specifies those people who can be described as Public Officers for the purpose of Code of Conduct. In canvassing their stand on this matter appellants equally referred to section 18(1) of the Interpretation Act Cap. 192 Laws of the Federation 1990 and section 318(1) of the Constitution of Federal Republic of Nigeria. Now there is no definition of a public officer in the Constitution. However, there is a definition or the meaning of a public service of the state. The definition here is as follows:
“Public service of a state” means the service of the state in any capacity in respect of the government of the state and includes services as-
(g) Clerk or other staff of the House of Assembly;
(h) Member of staff of the High Court, the Sharia Court of Appeal, the Customary Court of Appeal or other courts established for a state by this Constitution or by a law of a House of Assembly;
(i) Member or staff of any commission or authority established for the state by this constitution or by a law of a House of Assembly;
(j) Staff of any local government council;
(k) Staff of any statutory corporation established by a law of a House of Assembly;
(l) Staff of any educational institution established or financed principally by a government of a state.
The learned counsel for the respondents in his submission stated that it would be an error of construction to carry over the description of the term “public officer” ascribed to that phrase for officers affected by the stipulations or prescription in the Code of Conduct. I have read the judgment of the Supreme Court in Federal Mortgage Bank of Nigeria v. Olloh (2002) 30 WRN 1; (2002) 9 NWLR (Pt. 773) page 275 to which this court has been referred. In that case Uwaifo, JSC in commenting on the appellant’s counsel’s interpretation of what public service connotes in section 277(1)(f) of the 1979 Constitution to which the learned jurist was of the view that the appellants construction was a bit wide off the mark made reference to another case and said as follows:
“It has been decided by this court in Okomu Oil Palm Co. Ltd. v. Iserhienrhien (2001) 21 WRN 161; (2001) 6 NWLR (Pt. 710) 660; (2002) FWLR (Pt. 45) 670; (2001) 85 LRCN 873, that the definition therein read along with the 5th schedule to that Constitution is essentially for the purpose of the Code of Conduct for public officers, that is to say to specify by definition who is a public officer to whom the Code of Conduct applies.”
I have carefully read the definition of the “Public Service of the State” as stated in section 318 (1) of the Constitution. I have already set down to whom it refers. It therefore goes without saying that neither the speaker nor the non statutory officer described as “majority leader (which term or office is unknown in our statutory law) nor any member of the house is a public officer for the purpose of section 318(1) aforesaid. So, section 318 does not include any member of the house at all.
In the Interpretation Act Cap. 192 Laws of the Federation 1990 the term public officer is defined as follows:
“Public Officer means a member of the public service of the federation within the meaning of the Constitution of Federal Republic of Nigeria and the public service of the state.”
It seems to me that somehow the two interpretations as contained in the two statutes are saying the same thing. In other words, the term public officer should only relate to the holders of the officers as reflected only in section 318 of the Constitution of the Federal Republic of Nigeria. That is to say, the term public officer referred to in the Interpretation Act can only be described to be referable to those enjoying employments with statutory flavour as reflected in section 318(1).”
Following that line of opinion of the court, it is evident then that neither the Governor of Ebonyi State nor Ebonyi State House of Assembly and the National Judicial Council can be considered as a public officer within the terms and intendment of section 11 of Cap. 13 of Anambra State Laws. In the case the only people who could be entitled to such a notice would be the clerk of Ebonyi State House of Assembly, honourable Justice Paul Elechi, the Commissioner of Police Ebonyi State Police Command and probably too the Inspector General of Police. Let me now discuss the nuances of pre-action notice as treated in some cases. In Ezenwa v. Bestway Electrical Manufacturing Co. Ltd. (1999) 8 NWLR (Pt. 613) at 61 in discussing pre-action notice as it affects the prerogative order procedure, Galadima, JCA said:
“The superior courts are quite all rights guided by certain principles which will be considered now, but I have not seen where an applicant is made to comply with pre-action notice. To insist on this is to allow the respondent to hide behind the mask of mere technicality to thwart, protract and defeat the consideration of an application on the merit.”
See Nnaemeka Udeme v. Rapheal Ugwuh (1997) 3 NWLR (Pt. 491) page 57; Attorney-General of the Federation & Ors. v. Chukwuemeka Agwuna (1995) NWLR (Pt. 388) page 234. In that case, it was stated that in respect of section 11 of State Proceedings Laws what is contemplated is an action commenced by writ of summons. In the case of Eze v. Okechukwu (1998) 5 NWLR (Pt. 548) page 43, Salami, JCA stated thus: “The issue was not raised either by way of preliminary objection nor by motion on notice in the trial court. The party that is the first defendant, whose protection the provisions were made did not protest In the Court below and are not on appeal … agree with the learned Senior Counsel for the respondent in the instant appeal that the 1st, 2nd and 3rd defendants ought to have pleaded in their statement of defence that the motion on notice of the respondents intentions to institute an action against them was not given nor served on them….” In the same case Niki Tobi, JCA (as he then was) said at pages 72 – 73, “In Uzokwe v. Nnadozie 14 WACA 361, the WACA held that failure to plead the jurisdiction of the High Court any issue within the provision of section 9(1) of the High Court Laws Cap. 44 Laws of Western Region 1959 must be raised bona fide. In the light of the above decisions and particularly the decision of the Supreme Court in Katsina Local Authority v. Makudawa. I am bound to hold that the appellant cannot rely on the defence of pre-action notice in this court, having failed to plead and raise same in the Court below. If I had my way, I would not so hold. I am bound by the principles of stare decisis so I bow.” Akpabio, JCA who dissented in that case stated emphatically that it was the responsibility of the initiator of the action to plead that it served the necessary pre-action notice in order to oust the court with jurisdiction to adjudicate on the matter. Akpabio after citing several cases where these issues have been extensively canvassed such as in Adigun v. Governor of Osun State (1995) 3 NWLR (Pt. 385) 513; Faleye v. Otapo (1995) 3 NWLR (Pt. 381); Chime v. Ude (1996) 7 NWLR (Pt. 461) 379 and Tukur v. Government of Gongola State (1989) 4 NWLR (Pt. 447) 186 said, “The most important thing to note in all these cases is that there was no where in which the Supreme Court held that the appellate court must close its eyes to the question of jurisdiction or incompetence, merely because an objection was not raised at the trial court by the defendant in his pleadings.” I must comment here tritely that before the Supreme Court or for that matter any court would comment on a matter or dispose of it, that issue ought generally be brought before it. It cannot be doubted that this is a very intractable and difficult state of affair where the defence failed at the initial stage to inform the court that there was no pre-action notice when they filed a notice of preliminary objection where they would have deposed of the fact of non pre-action notice. The issue of pre-action notice has been a turbulent one and I do recall that in N.N.P.C v. Fawehinmi (1989) 7 NWLR (Pt. 559) page 53, I dissented strongly holding the view that pre-action notice which by its very nature seeks to confer a specific privilege on the government or any of its agencies or officials was unconstitutional. Mine was a minority judgment. I am however well aware that the Supreme Court seems gradually to bear nibbling at this very disconcerting procedure of pre-action notice. What sort of equality does the constitution mean by equality before the law. It is for the Supreme Court to give a final statement on this matter. I had in my dissenting judgment which I had earlier referred to cited the American case of Brown v. Board of Education of Topeka 347 U.S 485, 745, 686; 98 L.Ed 873 where Warren J. said; “We consider that in the field of Public Education the doctrine of separate but equal has no place. Separate educational facilities are inherently unequal. Therefore we hold that the plaintiffs and others similarly situated for whom the actions have been brought are by reason of the segregation complained of deprived of the equal protection of the laws guaranteed by the 14th amendment.” In the consideration of the application or not of pre-action notice it is I believe desirable to consider the opinion expressed by Karibi-Whyte in J. Adediran & Anor. v. Interland Transport Limited (1991) 9 NWLR (Pt. 214) 155 “I think the high constitutional policy involved in section 6(6)(b) of the 1979 Constitution, is the removal of the obstacles created by common law requirements against individuals bringing actions before the court against the government and its institutions and the pre-conditions of the consent of the Attorney-General. This becomes the more important when the provisions are procedural enactments designed to protect peculiar social or political situations.” Let us also consider the case of Nigerian Ports Plc v. Ntiero (1998) 6 NWLR (Pt. 555) at 640 where Akpabio observed as follows:
“In this regard I must also say that failure of the defendants to have supported their pleadings with oral evidence at the trial did not make any difference as the necessity for pre-action notice was a legal requirement that needed no evidence from the defendants to prove a negative.”
It has been equally held variously in Texaco Panama Inc. v. Shell Petroleum Dev. Corp. of Nigeria (2000) 4 NWLR (Pt. 653) at page 480 and supported by Western Steel Works Ltd. v. Iron & Steel Workers Union of Nigeria (No.1) (1986) 3 NWLR (Pt. 30) at 117 and Gambari v. Gambari (1990) 5 NWLR (Pt. 152) at 572, “that where there is non compliance with a stipulated pre-condition for setting a legal process in motion any suit instituted in contravention of the pre-condition is incompetent.” Lastly I may refer to the case of Amadi v. N.N.P.C (2000) 10 NWLR (Pt. 674) 76 at page 110 – 111 where Karibi-Whyte, JSC has this to say;
“Regulations of the right to access to the court abound in the rules of procedure, and are legitimate. It seems to be accepted that where an enactment regulates the right of access to the court in a manner to constitute an improper obstacle to access to court, such enactment could be appropriately regarded as an infringement of section 1 rather than an infringement of section 6 of the Constitution … These are legitimate purposes of pre-action notice and are recognized procedural provisions. As was stated in Ngelegla v. Tribal Authority, Nongowa, Chiefdom (1953) 14 WACA 325 at 327. Such provisions are to give the defendant breathing time so as to enable him to determine whether he should make reparation to the plaintiff.”
I must state in passing that his extract from WACA was made in 1953 when the colonial government held sway in Nigeria and long before the advent of 1979 and 1999 Constitutions. Must we continue to abide by this seemingly anachronistic procedure which seeks to fly against the operation of the guarantees of the Constitution. Having said this, I would, like Tobi, JCA (as he then was) to bow to the view of the Supreme Court of the legality of pre-action notice. I have read the Supreme Court case of Adeyemi v. Opeyori (supra) to which the learned Jurist Tobi, JCA (as he then was) said he bowed to, and, it is not entirely in all forms with the case as the issue there is not reverted on pre-action notice per se but on a point of important fact which was not raised at the trial court. Although in this case the issue of pre-action notice was not raised but it would seem that from the decided cases, courts are now gravitating that the issue of pre-action notice could be entertained at any time being a point that determines the competence of the court to assume jurisdiction. In that case I would bow to the dictates of the various Supreme Court cases on this point regardless of how I may feel on this matter. Having so stated, I hold that pre-action notice does not apply to the Governor, the House of Assembly and the National Judicial Council, but to the other appellants. Their names are hereby struck out.”
The next question I wish to address is issue No. 3, as to whether the court could convert an application for judicial review to one of enforcement of African Charter on Human and Peoples Rights. The gravamen of the complaint of the respondent is that there was a serious flaw in the manner he was removed which can be described as not following the laid down procedure. In other words, there was non abidance of the rule of law. My understanding of the plea set up by the respondent is not that he has abandoned his original prayer of questioning the propriety of his removal but is drawing the attention of the court to the fact that apart from the alleged breach of the constitutional provisions as to the manner of removing the Chief Judge, his case is further strengthened by reference to the provisions of the African Charter on Human and Peoples Rights which this country has now incorporated on matters relating to fairness of hearing i.e. that Act of the government or any of its agency which does not conform to the treaty obligation of Nigeria. Let me state in extenso the provisions of articles 3 and 7(1)(a) of the Charter referred to above.
“Article (3)(1): every individual shall be equal before the law.
Article 7(1) (a): every individual shall have the right to have his cause heard.”
This comprises the right to an appeal against acts to competent national organs against acts relating to his fundamental rights as recognized and guaranteed by conventions, and treaty obligations and customs in force. Obedience to the rule of law by all the citizens but more particularly those who publicly took the oath of office to protect and preserve the constitution is a decideratum to good governance and respect to the rule of law. I must not fail to observe that the honourable Chief Justice of Nigeria M. L Uwais waded into the matter and advisedly cautioned against any indecent or untoward act on the part of the 1st appellant. Most unfortunately the Governor and his minions treated this letter dated 2/8/2000 with scorn and levity. It is an exhibit in the proceedings of the court below and I hereby reproduce its contents:
“Following the disagreement last year between the Abakaliki branch of the Nigerian Bar Association and the honourable Chief Justice of Ebonyi State, in connection with the legal year special session of the High Court, I request the President of the Nigerian Bar Association, Mr. T. J. O. Okpoko, SAN to intervene. Mr. Okpoko constituted a committee of the Nigerian Bar Association and co-opted into the committee the Chief Judges of the neighbouring states to Ebonyi State.
- The committee visited Ebonyi State on a number of occasions to listen to the grievances of the parties and finally submitted a report to me which I tabled before the National Judicial Council. The report contains allegations of impropriety and misconduct against the honourable Chief Judge of Ebonyi State and made recommendation for disciplinary action to be taken against the Chief Judge. This was not accepted by the National Judicial Council as it was not in the terms of reference of the committee.
- Instead, the National Judicial Council decided to constitute its own committee to investigate the allegations and submitted a report to enable the council take appropriate action. The committee of the council is headed by the Chief Judge of the Federal High Court, honourable Justice M. B. Belgore.
- As the report of Justice Belgore committee is being awaited by the National Judicial Council, honourable Justice Isuama has reported to me that proceedings to remove him from office had commenced in the Ebonyi State House of Assembly but that he had obtained injunction from the High Court of Ebonyi State restraining the house from proceeding further.
- I write this letter to appraise you of the steps being taken by the National Judicial Council under paragraph 21(d) of the third schedule to the Constitution of the Federal Republic of Nigeria, 1999. If the report of the committee of the National Judicial Council establishes misconduct against honourable Justice Isuama, which the council considers serious enough to call for his removal from office, the council will forward such recommendation to you.
- In the meanwhile, I appeal to you to appeal to the Ebonyi State House of Assembly to exercise restraint so that the action necessary might be taken in accordance with the constitution which we all took oath to protect and defend.” (Italics supplied)
In a democratic society where the rule of law is regarded as the norm, it is apostacy for the government to ignore the provisions of the law and the necessary rules made to regulate certain matters. Where a party conceives or becomes aware that there has been an infringement of the law which constitutes an infraction against his interests and right, I do not see why he should not avail himself of all remedies provided by the law of our land in our statute book to stoutly approach the court and assiduously with gusto [and] unction persuade the court to grant him the remedy he seeks. To tie him to a particular means of agitating for his rights if he can as well complement his quest for justice by reliance to various laws that would make attainment of justice realizable, is to be over technical, and nowadays jurisprudence does not kneel at the altar of form and technicality but on the premise of the living law that guarantees justice that is beholden and understood by the right thinking members of the society. With greatest respect to the submissions of the learned counsel for the appellant, I am not in the least enamoured by the submission that additional resort to the African Charter on Human and Peoples Rights has confused the case of the respondent. Nothing can be further than that. Can it in all honesty be said that the African Charter does not open a window of opportunity for an applicant to invoke its provisions. I have a great respect for the view expressed by the learned counsel for the appellants about the seeming midstream change. This case is unusual and to seek to do justice where the appellants by their decision and conduct traduced all regulations and provisions in this area, justice is not in vacuo. To remove the Chief Judge is a serious matter. It is therefore meet and just that the court to which the application is made looks at the matter forensically with a view to giving or making a decision that is worthy of note.
On another point, the appellants contended that the names of the 6th to 7th respondents ought to be struck out. Well, I have held earlier that the 7th respondent (appellant) needs no pre-action notice because there is no doubt that it is a necessary party and definitely its inclusion is in order. As for the 6th (respondent) appellant, having not been served with the pre-action notice his name should be struck out. Strictly speaking, I do not see the need for the inclusion of his name in this matter. The 7th (respondent) appellant is a very important party because it is the body charged by the Constitution to investigate any complaint of act of grave misconduct against any Judge or justice and make recommendation as it sees fit.
Heavy weather was made in respect of the argument of the appellants that the action of the respondent was an abuse of the process of the court as there were pending actions in other courts. I am not aware with greatest respect to the submission of the learned counsel for the appellants that these facts features in the proceedings in the Court below. In the circumstances the court would regard such matters as non issue, as they cannot constitute grounds of appeal.
I wish to observe that if the court has all the time to resort to forms, the public in time will think that we resort to mumbo jumbo to asphiaxate justice, and obedience and respect to the rule of law will suffer. Having so said, I hold that an attempt by the trial court to convert a mere preliminary point taken to a wholesome trial on the merits is wrong. While I hold that the appeal cannot succeed and is not successful it is hereby dismissed. I however order that the main case be tried by another Judge of the Federal High Court.”
I make no order as to costs.
JOHN AFOLABI FABIYI, JCA:
I had the advantage of reading before now the lead judgment just delivered by my learned brother – Pats-Acholonu, JCA. I agree with the conclusion therein reached that the appeal should be dismissed.
I need to state my stance on pre-action notice. Thereafter, I will be done. In Shaibu v. National Insurance Commission & Anor. (2002) 30 WRN 64; (2002) 12 NWLR (Pt. 780) 116, the appellant tried to fly a kite as he postulated that the requirement of a pre-action notice is an infringement on the exercise of the deducible powers secured under section 6(6)(b) of the 1999 Constitution. He felt that it is an abridgement of the citizen’s right of access to the court as provided in section 36(1) of the Constitution; the supremacy of which he stressed. In support of the alluring submission, the cases of Lakanmi v. A-G., Western Region of Nigeria (1971) 1 UILR 201; Doherty v. Balewa (1961) 2 SCNLR 256; (1961) NSCC 248; Kanada v. Governor, Kaduna State (1986) 4 NWLR (Pt. 35) 361 were cited.
In need to stress once more that regulation of the right of access to the court abound in rules of procedure. They are not out of place in deserving cases. They are in order where same is mandatory. Refer to Atolagbe v. Awuni (1997) 9 NWLR (Pt. 522) 536. Pre-action notices are recognized procedural provisions. Refer to Amadi v. N.N.P.C (2000) 10 NWLR (Pt. 674) 76 at page 80; N.N.P.C v. Fawehinmi (1998) 7 NWLR (Pt. 559) 598; Umukoro v. N.P.A (1997) 4 NWLR (Pt. 502) 656 at page 667.
I see nothing untoward in provisions for pre-action notices. They are designed to give room for the government or its official to consider settlement of the matter. The intention of the legislature, to my mind, is well founded. Refer to State of Andhra Pradesh v. Gundugola Goru AIR (1965) S.C 11; Marina Ammeyi v. Secretary of State AIR (1914) Mad. 446. Provisions for pre-action notices appear to have universal poise. They do not impede the constitutional right of access to court. It does not remove the adjudicatory powers of the court. See N.N.P.C v. Fawehinmi (supra). In an attempt to prop constitutional provisions due care must be exercised so as not to exceed the required limit.
In the mean time, I shall keep my peace and wait for an appropriate chance to fully ventilate my views on the propriety of pre-action notices.
I, too, hereby dismiss the appeal and endorse the order relating to costs in the lead judgment.
CLARA BATA OGUNBIYI, JCA:
The preliminary objection appealed against and on behalf of the respondents/applicants now the appellants was filed on the 10th October, 2000. Same also prayed the court for an order dismissing the case in suit No. FHC/C/EN/CS/88/2000 for lack of jurisdiction. Alternatively that an order be made striking out the names of the 6th and 7th respondents whose inclusion the learned Attorney General on behalf of the applicants argued, did not necessarily confer jurisdiction on the court in the case. At the end of the day the court per an interlocutory order overruled the objection raised and held that it had jurisdiction to hear the case: consequently, the preliminary objection of the respondents/ applicants was therefore dismissed on the 25th May 2001 and the motion challenging the jurisdiction was accordingly struck out.
The five issues formulated by the appellants from the grounds of appeal filed and also one by the respondent on their briefs respectively are well set out by my brother in the lead judgment. I completely subscribed and agree with the conclusion reached in his judgment that this appeal be dismissed.
I would however wish to state and expantiate further in respect of the 1st issue which puts premium on the competence of the suit in the absence of a pre-action notice. Where a statute lays down that a certain procedure ought to be followed before an action can be taken, it is incumbent and mandatory that such ought to be complied with in order to authenticate the act sought to be done for it to be justiciable. This is more so especially where the use of the word shall is stated and thus giving no room for an alternative option.
For instance the provision of section 11(2) Cap. 13 Laws of Anambra State under reference by the appellants’ counsel succinctly put states that for any action to be sustainable against the personalities enumerated thereunder and in respect of which contravention of any action or omission whatsoever ensues in the course of their official duties as public officers, there must be a pre-action notice of three month delivered.
This is a mandatory pre-requisite without which no action would lie. The propriety or not of the said provision may put into question the reason masterminding the said legislation which its purpose would do well for the proper placing of its objective interpretation.
The learned appellants’ counsel argued that the failure to give a pre-action notice rendered the suit incompetent and has therefore robbed the court below of its jurisdiction to entertain same. The appellants in their appeal cannot succeed on their reliance on the pre-action notice because they failed to raise the said defence at the trial court.
However, it would in the same light be interesting to consider the authority in the case of Madukolu v. Nkemdilim (2001) 46 WRN 1; (1962) 2 SCNLR page 341 at 346 a Supreme Court decision where it was held that a court is competently constituted only where the following conditions are met or fulfiled i.e to say when;
(i) It is properly constituted as regards numbers and qualifications of the members and qualifications of the members of the bench, and no members is disqualified for one reason or another.
(ii) 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
(iii) The case is initiated by due process of the law and upon fulfillment of any condition precedent to the exercise of jurisdiction.
I would like to emphasize the third condition relating to due process of the law and which requires fulfillment of any condition precedent to the exercise of jurisdiction.
As rightly in my opinion pointed out in the lead judgment, the issue of procedural compliance closely affects and relates to issue of jurisdiction of the court. Moreso, where the nature of such a procedure is mandatory by the use of the word shall. The requirement which I believe touches upon the root of the fundamental of the foundation.
It is therefore, needful to reiterate that every case has got to be considered within the context and circumstance of its own peculiarity.
This then brings to bear the view expressed by his Lordship Akpabio (JCA), as he then was, while considering a number of authorities relating to the issue wherein he opined that pronouncement can only be made on matters which are brought before the court and not otherwise. In other words, no pronouncement can be made in a vacuum or an abstract. The various cases which are precedents are those whose subject matters were placed before the court and therefore adjudicated upon and hence pronouncement.
In the result and having regard to the appeal before us, I also associate myself with the decision reached and the orders made as to costs. The appeal is hereby also dismissed.
CASES REFERRED TO IN THE JUDGMENT
Adediran v. Interland Transport Limited (1991) 9 NWLR (Pt. 214) 155.
Adigun v. Gov., Osun State (1995) 3 NWLR (Pt. 385) 513.
African Newspapers Ltd. v. Federal Republic of Nigeria (1985) 1 All NLR 50; (1985) 2 NWLR (Pt. 6) 137.
A-G., Federation v. Agwuna (1995) 4 NWLR (Pt. 388) 234.
Amadi v. N.N.P.C (2000) 10 NWLR (Pt. 674) 76.
Ammeyi v. Secretary of State AIR (1914) Mad. 446.
Atolagbe v. Awuni (1997) 9 NWLR (Pt. 522) 536.
Brown v. Board of Education of Topeka 347 U.S 485.
Chime v. Ude (1996) 7 NWLR (Pt. 461) 379.
Doherty v. Balewa (1961) 2 SCNLR 256; (1961) NSCC 248.
Eze v. Okechukwu (1998) 5 NWLR (Pt. 548) 43.
Ezenwa v. Bestway Electrical Manufacturing Co. Ltd. (1999) 8 NWLR (Pt. 613) 61.
Faleye v. Otapo (1995) 3 NWLR (Pt. 381) 1.
Federal Minister of Internal Affairs v. Darman (1982) 3 NCLR 915.
Federal Mortgage Bank of Nigeria v. Olloh (2002) 30 WRN 1; (2002) 9 NWLR (Pt. 773) 275.
Gambari v. Gambari (1990) 5 NWLR (Pt. 152) 572.
Kanada v. Gov., Kaduna State (1986) 4 NWLR (Pt. 35) 361.
Lakanmi v. A-G., Western Region of Nigeria (1971) 1 UILR 201.
Madukolu v. Nkemdilim (2001) 46 WRN 1; (1962) 2 SCNLR 341.
N.N.P.C v. Fawehinmi (1998) 7 NWLR (Pt. 559) 598.
Ngelegla v. Tribal Authority, Nongowa Chiefdom (1953) 14 WACA 325.
Nigeria Ports Plc v. Ntiero (1998) 6 NWLR (Pt. 555) 640.
Okomu Oil Palm Co. Ltd. v. Iserhienrhien (2001) 21 WRN 161; (2001) 6 NWLR (Pt. 710) 660; (2002) FWLR (Pt. 45) 670; (2001) 85 LRCN 873.
Okoroma v. Uba (1999) 1 NWLR (Pt. 587) 359.
Omosowan v. Chiedozie (1998) 9 NWLR (Pt. 566) 477.
Shaibu v. National Insurance Commission (2002) 30 WRN 64; (2002) 12 NWLR (Pt. 780) 116.
State of Andhra Pradesh v. Gundugola Goru AIR (1965) S.C 11.
Texaco Panama Inc. v. Shell Petroleum Dev. Corp. of Nigeria (2000) 4 NWLR (Pt. 653) 480.
Tukur v. Gov., Gongola State (1989) 4 NWLR (Pt. 117) 517.
Udene v. Ugwu (1997) 3 NWLR (Pt. 491) 57.
Umukoro v. N.P.A (1997) 4 NWLR (Pt. 502) 656.
Uzokwe v. Nnadozie 14 WACA 361.
Western Steel Works Ltd. v. Iron & Steel Workers Union of Nigeria (No.1) (1986) 3 NWLR (Pt. 30) 117.
STATUTES REFERRED TO IN THE JUDGMENT
African Charter on human and people’s rights s. 1, art 1,3 & 7(1) a.
Constitution of the Federal Republic of Nigeria Ss. 1, 6(6)(b),42(11), 277(1) (f), 292 & 318(1).
Interpretation Act Cap. 195 LFN 1990 s. 18(1).
State Proceedings Laws of Anambra State Cap. 131 s. 11(c) & (2).
