CASE TITLE: OPENE v. NJC & ORS (2023) LPELR-60656(CA)
JUDGMENT DATE: 14TH JULY, 2023
PRACTICE AREA: PUBLIC OFFICER (JUDICIAL OFFICER)
LEAD JUDGMENT: UGOCHUKWU ANTHONY OGAKWU, J.C.A.
SUMMARY OF JUDGMENT:
INTRODUCTION:
This appeal borders on Removal of a Judicial Officer.
FACTS:
This appeal is against the decision of the Federal High Court, Abuja Division.
The Appellant was a Federal Judicial Officer, a Justice of the Court of Appeal. On account of a complaint about the conduct of the hearing of an election appeal at the Enugu Division of the Court of Appeal, Petitions were written to the 1st Respondent against the Appellant. The 1st Respondent set up a Panel of Inquiry to investigate the said Petitions. The Panel investigated the matter, duly according the Appellant a fair hearing. The Panel thereafter submitted its Investigation Report to the 1st Respondent. The 1st Respondent deliberated on the Report, made its findings, and then recommended to the 3rd Respondent that the Appellant be removed from office for misconduct. The 3rd Respondent accepted the said recommendation, and the 1st Respondent then conveyed the decision to the Appellant in its letter attached as Exhibit DH1 to its Counter-Affidavit at the Federal High Court.
The Appellant commenced his action at the Federal High Court by way of application for judicial review. Upon the grant of leave, the Appellant claimed the following reliefs inter alia:
1. A DECLARATION that the recommendation of dismissal from judicial office of the Applicant by the Respondent is unconstitutional, null and void and of no effect.
2. AN ORDER OF PROHIBITION restraining the Respondents from acting on the recommendation of the panel of inquiry of the 1st Respondent recommendation to the 3rd Respondent that the Applicant be removed or dismissed from judicial office.
ALTERNATIVELY
3. A DECLARATION setting aside the removal or dismissal from office of the Applicant by the 3rd Respondent on the recommendation of the 1st Respondent.
In determining the suit, the Federal High Court dismissed same.
Dissatisfied with the decision of the Federal High Court, the appellant appealed to the Court of Appeal.
ISSUES FOR DETERMINATION:
The Appellant formulated three issues for determination, as follows:
“1. Whether the trial Court was right to cognize the recommendation of the 1st Respondent to the 3rd Respondent for the dismissal of the Appellant from Federal Judicial Service, when the 1st Respondent did not evince any prior recommendation to it in that regard by the Federal Judicial Service Commission?
2. Whether the trial Court was correct when it dismissed the Appellant’s case that complained of the 1st Respondent’s recommendation to the 3rd Respondent on the basis of the report of the 1st Respondent’s panel of inquiry which investigated criminal allegation and pronounced guilt thereon without recourse to a Court of Law?
3. Whether the lower Court was right when it entered its judgment based on speculation on facts that were not before the Honourable Court?”
The 1st Respondent equally distilled three issues for determination, namely:
“1. Whether the learned trial Judge was right in law when she dismissed the Appellant’s application for judicial review of the 1st Respondent’s recommendation to the 3rd Respondent for the removal of the Appellant from Federal Judicial Service in the absence of any recommendation from the Federal Judicial Service Commission?
2. Whether the judgment of the learned trial Judge was based on speculation and not on the basis that the Appellant failed to place before the lower Court material facts to prove his case against the Respondents?
3. Whether the learned trial Judge was right in law when in dismissing the case of the Appellant she refused to attach any probative value to the report of the 1st Respondent’s Panel of Inquiry (Exhibit A) alleged by the Appellant to be the basis of the 1st Respondent’s recommendation to the 3rd Respondent?”
The 2nd and 3rd Respondents crafted two issues for determination, thus:
“1. Whether the learned trial Judge was right when he affirmed the Constitutional functions of the 1st Respondent to recommend the dismissal of the Appellant to the 3rd Respondent?
2. Whether the trial Court was right when it held that the Appellant did not prove his case on its own strength?”
DECISION/HELD:
In conclusion, the Court of Appeal dismissed the appeal.
RATIOS:
- PUBLIC OFFICER- JUDICIAL OFFICER: Whether a serving judicial officer can be subjected to criminal prosecution without complying with the condition precedent of subjecting such judicial officer to the disciplinary jurisdiction of the National Judicial Council
- CONSTITUTIONAL LAW- REMOVAL OF A JUDICIAL OFFICER(S): Procedure for the removal of a judicial officer
- CASE LAW – DEPARTURE FROM PREVIOUS DECISIONS: Exceptional circumstances when the Court of Appeal would not be bound by its own decisions
- CASE LAW – FACTUAL DISTINCTIONS IN CASES: Need for a party to furnish facts/materials for the application of the principles in a decided case to his case
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