This is because while a constitutional power should not be used to attain an unconstitutional result, the language of the constitution where clear and unambiguous must be given its plain and evident meaning. Although the cross-appellant is insisting that in the determination of this 3rd issue the court should confine itself to the interpretation of the provisions of Section 292(1)(a)(ii) of the Constitution alone to the exclusion of the other relevant provision; of the same constitution, I entirely agree with the learned senior counsel for the appellant cross-respondent that the court should examine all the relevant provisions of the constitution in order to find adequate guidance in arriving at the correct decision.
The NJC is one of executive bodies established for good governance of the country under Section 153 of the constitution.
It is quite plain from the provisions of paragraph 21 sub-paragraph (c) and (d) of the Third Schedule to the CFRN 1999, that the NJC is the body that; had been assigned the duty and responsibility of recommending to the governors of the states of the federation suitable persons for appointment to the offices of chief judge of the states and other judicial officers in the states.
In addition to its role in the appointment of chief judges of the states and other judicial officers, the same NJC is also empowered under sub-paragraph (d) of paragraph 21 to recommend to the governors of the states, the removal from office of the chief judges of the states and other judicial officer of the state, and also to exercise disciplinary control over such chief judges of the states and other judicial officers of the states.
Therefore, from these very 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.
Going back to Section 271 (1) of the 1999 Constitution, it is also glaringly clear that the NJC has been given a role to play in the appointment of Chief Judges of the States where the section states:
“271 (1) The appointment of a person to the office of a Chief Judge of a State shall be made by the Governor of the state on the recommendation of the NJC subject to the confirmation of the appointment by’ the House of Assembly of the State.
It can be seen here again, although the governor of a state has been vested with the power to appoint the chief judge of his own state, that power is not absolute as the governor has to share the power with the NJC in recommending suitable persons and the State House of Assembly in confirming the appointment. 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 NJC and the House of Assembly of the state in the exercise to ensure transparency and observance of the rule of law.
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 NJC 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 NJC 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, it is for the foregoing reasons that I hold the view that in the resolution of the issue at hand, the entire provisions of the CFRN 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 CFRN 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 NJC. 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 CFRN 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 NJC 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 under the CFRN 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.
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-appeal. 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 CFRN 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 NJC. That is to say for the purpose of emphasis, the CFRN 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 NJC.
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 failed, are hereby dismissed.
Taking into consideration the circumstances of this case, I do not regard it appropriate to make any order on costs.
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 Abdulraheem) – 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.
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