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    ThrowBack: Industrial Court Validates Justice Bassey Ebuta Suspension by the NJC

     

     

    His Lordship, Hon. Justice B. B. Kanyip of the National Industrial Court  of Nigeria, Lagos Division on  17th July 2017 in a landmark judgment delivered dismissed a suit filed by Honourable Justice Bassey Tambu Ebuta against National Judicial Council And 3 ors challenging  his suspension from office by the National judicial council.

     

    The claimant is a Judge of the High Court of Cross River State suspended by the National Judicial Council (NJC), the 1st defendant in this matter. The claimant, sitting in Calabar Judicial Division, had granted an ex parte order for leave in Suit No. HC/MSC 286/2014 to commence an action by way of judicial review, to wit, certiorari to quash the proceedings of a Chief Magistrate. Following a complaint by one Dr (Mrs) Ekanem Cobham, the 1st defendant/respondent in that suit, the 1st defendant herein (NJC) suspended the claimant and recommended to the 2nd defendant (the Governor of Cross River State) to compulsorily retire the claimant as a Judge of the High Court of Cross River State. Dissatisfied, the claimant filed the instant suit on 24th August 2016 by way of a complaint (accompanied by the statement of facts, list of witnesses, witness depositions on oath, list of documents and copies of the documents to be relied at the hearing). The claimant is praying for the following reliefs amongst others:

     

    • A declaration that the proceedings and recommendations of the Investigating/Fact Finding Committee set up by the 1st defendant, comprising of its members, under the Chairmanship of Honourable Justice B. A. Adejumo, the President of the National Industrial Court of Nigeria, to investigate the allegations contained in the petition of one Dr (Mrs) Ekanem Cobham dated 2nd June 2015 together with the deliberations of the full Council of the 1st defendant on the matter recommending to the 2nd defendant the compulsory retirement of the claimant, are unconstitutional, illegal, unlawful and therefore null and void.

     

    • A declaration that the non-compliance and breach of Regulations 16, 17 and 18 of the National Judicial Council Judicial Discipline Regulations, 2014 by the 1st defendant in the proceedings leading to his suspension and recommending his compulsory retirement from office as a Judge of the High Court of Cross River State infringes on his constitutional right to fair hearing and therefore null, void and of no effect whatsoever.

     

    The claimant went on that he reacted to the petition of the said Mrs. Cobham and was thereafter invited to appear before the 1st defendant’s investigating committee and believed he had answered the petitioner’s allegation satisfactorily; but surprisingly, the 1st defendant suspended the claimant by a letter dated 3rd June 2016 and recommended to the 2nd defendant to compulsorily retire him. That the 1st defendant being in a hurry to discipline him, failed to comply with the relevant rules and regulations relating to the discipline of a judicial officer by also failing to observe rules 14, 16, 17 and 18 of the said Judicial Discipline Regulations 2014, the extant regulations at all times material to this suit. The claimant contended that the acts of the 1st defendant were unjustified and without basis, highhanded and harsh as the 1st defendant acted without powers, denied him fair hearing and failed to evaluate the evidence before it in arriving at its decisions and recommendations.

     

     

    In reaction, the 1st defendant entered formal appearance and then filed its defence processes comprising of the respective statements of defence, list of witnesses, witness deposition oath, list of documents and copies of the documents. By order of Court granted on 5th January 2017, the 1st defendant was permitted by this Court to amend its defence processes.

     

    Though the 2nd, 3rd and 4th defendants were represented by Counsel, they did not file any defence although they led evidence under cross-examination in their own defence.

     

    The claimant responded by filing a reply to the 1st defendant’s statement of defence, list of additional witnesses, additional written statements on oath of the additional witnesses, list of additional documents and copies of the additional documents. All of these were regularized by this Court by order granted on 31st October 2016.

     

    The 1st defendant NJC submitted three issues for determination, namely:

    • Whether the Honourable Court has the jurisdiction to hear and determine this suit as presently constituted.
    • Whether the claimant has discharged the burden of proving his claims before the Honourable Court to be entitled to the grant of the reliefs sought.
    • Whether the claimant was afforded a fair hearing by the 1st defendant before arriving at its decision to recommend the retirement of the claimant to the 2nd d

     

    The 1st defendant urged the Court to find and hold that there was full observance and compliance with the rules of natural justice by the 1st defendant in reaching the decision to recommend the retirement of the claimant to the 2nd defendant. Indeed, that from pages 6 - 10 of Exhibit D1, the claimant was not only afforded a hearing, his case was exhaustively considered before a finding was made against him. Considered along with the evidence of CW3 who indeed confirmed that no reference was made to the Court’s diary (which was available in open Court) when the matter leading to the petition was purportedly heard, makes such evidence incredible creating the inescapable conclusion that such evidence is dis-believable, urging the Court to so find and hold. That the claimant’s weighty testimony to the fact that the case leading to the petition was conducted in full compliance with the High Court of Cross Rivers State (Civil Procedure) Rules 2008 itself needs more than a passing consideration particularly the fact that the case was subsequently adjourned to a Saturday, which was allegedly arrived at by computing 14 days from the grant of the ex parte order on 5th December 2014.

     

    The 1st defendant went on that as can be seen from Exhibit D1, the evidence substantially relied on by the Investigating Panel of the 1st defendant was offered by the claimant himself. He presented a handwritten copy of a record of proceedings that had not only been altered, but also was Certified as the name of the Officer Certifying was missing from the said certification.

     

    Indeed, that the acts of the claimant before this Court, juxtaposed with the presentation of two similar copies of the same documents, one certified and the other not certified in evidence as seen from Exhibits C15 and Exhibit D9(d), goes on to corroborate the findings of the Investigating Panel of the 1st defendant. That an evaluation of these exhibits reveals that while one of the exhibits was uncertified, the other was.

     

    The 1st defendant then urged the Court to find and hold that the claimant was afforded a fair hearing in the proceedings of the 1st defendant leading to its findings and recommendations to the 2nd defendant that the claimant be retired.

     

     

    It is the 2nd and 4th defendants’ submission that they are not liable in this suit for the compulsory retirement of the claimant herein. That section 292(1)(b) of the 1999 Constitution provides that a judicial officer may not be removed except by the Governor acting on the recommendation of the National Judicial Council (NJC) that the judicial officer 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. That the powers of the 1st defendant are specifically provided for under Part I of the Third Schedule to the 1999 Constitution, paragraph 21(d) of which provides that the National Judicial Council shall have the power to recommend to the Governor the removal from office of the judicial officers specified in sub-paragraph (c) of this paragraph, and to exercise disciplinary control over such officers”. That an examination of the case of the claimant, comprising of the complaint filed in this Court as well as the evidence presented before this Court, reveals that the acts complained of by the claimant were not acts carried out or authorised by the 2nd and/or 4th defendants.

     

    In conclusion, the 2nd and 4th defendants prayed the Court to strike out the 2nd and 4th defendants since no cause of action has been disclosed against them.

     

     

    After reviewing the argument of the parties, the Court Presided by Hon. Justice B. B. Kanyip had this to say:

     

     

    I have listened to the oral and written submission of counsel in this matter and have also considered the argument of counsel contained in the addresses of counsel.  The question for determination here is “whether this court has the jurisdiction to entertain this suit”.

     

     

    The claimant argued that he was not given fair hearing by the 1st defendant. The evidence before the Court is that there was a petition in writing against the claimant (Exhibit C2), which was forwarded to him by his Chief Judge (Exhibit C4/D4). He answered the petition vide Exhibit C8/D5. He was invited vide Exhibit C5 dated 1st March 2016 to appear before the NJC Investigating Committee on 9th and 10th of March 2016. Indeed, Exhibit C5 asked the claimant to appear before the Committee “along with all supportive documents, witnesses and counsel, if any”. He appeared before the Committee and through his counsel submitted a written address in support of his defence (Exhibit C22/D7). The Investigating Committee investigated the petition and submitted a report vide Exhibit D1. The NJC considered the report (see Exhibit D8, minutes of the 76th meeting of the NJC) and vide Exhibit C6 suspended the claimant, while also recommending for his compulsory retirement. Do all of these suggest the absence of fair hearing? I do not think so.

     

    In the instant case, the claimant was specifically asked to come along with any witnesses and documents that will help his case. He did, but chose to keep them at the hotel, only to later inform the witnesses that the NJC said that they are no longer needed. This error on the part of the claimant, if indeed it was one, cannot be blamed on the NJC. The claimant must take the full blame. He was given the opportunity, and he chose not to seize it. I so find and hold.

     

    It is the further case of the claimant that before a State Judge can be removed from office by the NJC, the removal must be recommended by the State Judicial Service Commission. To the claimant, DW1 in her testimony under cross-examination stated that the 1st defendant did not receive any recommendation from the Cross River State Judicial Service Commission in respect of the claimant’s removal. The claimant then relied on paragraph 6(b) of Part II of the Third Schedule to the 1999 Constitution, which provides that the State Judicial Service Commission shall have power to, subject to the provisions of this Constitution, recommend to the National Judicial Council the removal of the judicial officers specified in sub-paragraph (a) of this paragraph.

     

    Paragraph 21 of Part I to the Third Schedule to the 1999 Constitution then provides in sub-paragraph (c) that the NJC has power to recommend from the list of persons submitted to it by the State Judicial Service Commission persons for appointment as judicial officers of the State; and in sub-paragraph (d), the NJC is given the power to recommend to Governors the removal from office of State judicial officers, and to exercise disciplinary control over such officers.

     

     

    I must also add that paragraph 6 of Part II of the Third Schedule to the Constitution permits the State Judicial Service Commission to recommend to the NJC the removal of a State judicial officer. What this means is that the State Judicial Service Commission may be seised of adverse information in respect of a State judicial officer. It will be foolhardy not to expect that the State Judicial Service Commission would investigate the information and, if adverse, recommend thereby to the NJC the removal from office of such a Judge. The argument of the claimant that the NJC cannot recommend his compulsory retirement except the recommendation came from the State Judicial Service Commission is accordingly one that is not convincing and sustainable. It is rejected and so discountenanced for purposes of this judgment.

     

    On the whole, and on balance, I do not see any merit in the claimant’s case. It fails and is accordingly dismissed.

     

    Judgment is entered accordingly. I make no order as to cost.

     

     

     

    For full Judgment, click here…

     

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