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INTERPRETATION FOR THE APPOINTMENT & REMOVAL OF JUDICIAL OFFICERS

Dictum

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 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.

– Mahmud, JSC. Elelu-Habeeb v. A.G Federation (2012)

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DUE PROCESS FOR REMOVAL OF A STATE JUDGE

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.

– Mahmud, JSC. Elelu-Habeeb v. A.G Federation (2012)

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SIGNING OF ORIGINATING SUMMONS BY A JUDGE – FORM 2

It is clear from the provisions of the Fundamental Rights (Enforcement Procedure) Rules, 1979 that nowhere in the body of the Rules is it provided that whenever an originating summons is being taken out it must be signed by a Judge of the High Court to which the originating summons relates. The Rules are silent on such a provision. However, the form of the originating summons which is prescribed in the Appendix to the Rules as Form 2 implies that the originating summons would be signed by a Judge. But nowhere is it provided that it is mandatory for a Judge to sign the originating summons. That notwithstanding, a close examination of Form 2 will reveal that directives are being given to a prospective defendant in an action to do certain things. Some of the directions read as follows – “Let the defendant, within 14 days (or if the summons is to be served out of the jurisdiction, insert here the time for appearance fixed by the order giving leave to issue the summons and serve it out of the jurisdiction) after service of this summons on him, inclusive of the day of service, cause an appearance to be entered to this summons, which is issued on the application of the plaintiff…” “If the defendant does not enter an appearance, such judgment may be given or order made or in relation to him as the court may think just and expedient. The defendant may enter an appearance in person or by a solicitor by handing in the appropriate forms, duly completed, at the Federal High Court at or in the High Court of……..State sitting.” Surely, neither the plaintiff nor his counsel would be expected to issue these directives to the defendant, for the defendant who is at loggerheads with the plaintiff could ignore such directives and to no consequence, since neither the plaintiff nor his counsel could have any power to carryout or enforce the sanctions contained in the directions. It is only a Judge that is conferred with such coercive powers. It, therefore, follows that the Fundamental Rights (Enforcement Procedure) Rules, contemplate that an originating summons issued in the form of Form 2 thereof would be signed by a Judge. What would be the effect if any person other than a Judge signs the originating summons need not bother us here in view of what I intend to state anon.

— Uwais, JSC. Saude v. Abdullahi (1989) – SC.197/1987

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JUDGES SHOULD NOT BE CASTIGATED FOR PERFORMING THEIR DUTIES

The way politics in this country is played frightens me every dawning day. It is a fight to finish affair. Nobody accepts defeat at the polls. The Judges must be the final bus stop. And when they come to the Judges and the Judges in their professional minds give judgment, they call them all sorts of names. To the party who wins the case, the Judiciary is the best place and real common hope of the common man. To the party who loses, the Judiciary is bad. Even when a party loses a case because of serious blunder of Counsel, it is the Judge who is blamed. Why? While I know as a matter of fact that in every case, the Judge makes an additional enemy, if I use the word unguardedly, I must say that the Judge does not regard the person as his enemy. The Judge who has given judgment in the light of the law, should not be castigated in the way it is done in this country. That is a primitive conduct and I condemn it. It is a conduct that does not help the promotion of the administration of justice. It is rather a conduct that is likely to affect adversely the administration of justice in this country. I feel very strongly that Nigerian Judges should be allowed to perform their judicial functions to the best of their ability. I should also say that no amount of bad name-calling will deter Nigerian Judges from performing their constitutional functions of deciding cases between two or more competing parties. Somebody must be trusted in doing the correct thing. Why not the Nigerian Judge?

— Niki Tobi, JSC. Buhari v. INEC (2008) – SC 51/2008

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THE JUDICIARY WILL NOT BE INTIMIDATED DESPITE HARASSMENT

The 2nd Respondent presided over a state where anarchy was being supported and prevented Agents of the Government were allowed to malign the Judiciary. The Judges of this Tribunal were harassed, intimidated and made to run under cover. What is the offence of the Judiciary. It is the duty of the Judiciary to disperse Justice and no more. The Judiciary is an arm of Government constituted by the Constitution of the Federal Republic of Nigeria. As stated above the Respondents contributed heavily in the success of this petition. At the pleading stage they made critical admissions. At the trial stage they supplied critical and important documents. Yet at judgment stage the 20 Respondent does not want this Tribunal to stand by justice by stating the truth of the matter. They took the position as was widely reported in the media both print and social that if they loose the case, they will kill the Judges and put the Residence of Kano State on fire. They threatened to bring unrest and banditry to Kano State. We are also citizens of this country in Kano to discharge our lawful duties. We have not committed any offence by performing our duty of adjudication. My message to the bandits in politics who want to take power by force is that the Judiciary cannot be intimidated. The Judiciary will never shy away from justice. Every Judge is a Soldier of justice, we are blessed with the courage to call a spade a spade and to do justice according to the law without fear or favour. Where a party purport to have his eyes on the Judiciary and remove same from his case, the Judiciary will still do its work. You remove your eyes from your case, you abandoned your case and concentrated on distracting yourself by having your jaundiced eye on the Judiciary. The Judiciary as represented by the Honourable Judges will concentrates on their duty of adjudication and put their own eyes on the law and justice. All judicial activities must necessarily and with the final decision of the Court. This is called a judgment. Upon the judgment of the Court parties can only acknowledge the decision of the Court, accord it respect and if not satisfied, go on appeal. A party who looses a case or anticipates the loss of his case can only prepare to appeal against the decision of the lower Court or prepare to appeal. This is what is obtainable in a civilised society. Kano State as we all know is a cradle of civilisation. No party on the account of loosing a case or on the basis of speculation of the possible loss of a case threaten to go an rampage against the Court and Honourable Judges. It is wrong to threaten the entire polity of Kano State with violence. A party must not threaten terrorism and mayhem on the people. The decision of the court must not be taken personal as to warrant an attack and violence against the Judiciary Functionaries as threatened by the Agents of the 2nd and 3rd Respondents. I use this opportunity to condemn the gang of Red Cap wearers who like a violent and terrorist cult chased us out of Kano and put us in the fear of our lives. We believe that only Allah is the giver of power. Those who believe in Allah must bow to his will and submit to the authority of Governmental power. Resort to anarchy, violence and killing can never be a source of lawful power. Threatening to put Honourable Judges in the danger of their life as done in Kano by some disgruntled bandits parading as politicians is hereby condemned.

– Benson Anya, J. APC v INEC & Ors. (EPT/KN/GOV/01/2023, 20th Day of September, 2023)

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IT IS THE FUNCTION OF JUDGES TO KEEP THE LAW ALIVE

In Transbridge Co. Ltd. v. Survey International Ltd this court per Eso, JSC pronounced as follows: ‘I believe it is the function of judges to keep the law alive, in motion and to make it progressive for the purposes of arriving at the end of justice, without being inhibited by technicalities, to find every conceivable but accepted way of avoiding narrowness that would spell injustice, short of a judge being a legislator, a judge to my mind, must a possess an aggressive stance in interpreting the law.’

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PROCESS FOR REMOVAL OF A CHIEF JUDGE BY A STATE GOVERNOR

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.

– Mahmud, JSC. Elelu-Habeeb v. A.G Federation (2012)

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