➥ CASE SUMMARY OF:
Hon. Justice Garba Abdullahi V. The Executive Governor of Kano State & Ors. (CA/K/185/2006, 3rd Feb 2014)
by Branham Chima (LL.B.)
➥ SUBJECT MATTER(S)
Dismissal of a Justice.
Severance of cause of action.
➥ CASE FACT/HISTORY
The Appellant was the plaintiff at the lower court. He was appointed and sworn in as a Judge of High Court of Kano State in 1993. The employment was pensionable with a monthly salary that comprises several allowances and other perquisites of the office. His travail stemmed from one Alhaji Aminu Nabegu who allegedly planted some cash in his Judge’s Chambers and then turned round to accuse him of having demanded and accepted bribe from him. A complaint was lodged and he was later arraigned on a three count Charge No. K/ANTC/CR3/2002 by the Independent Corrupt Practices and Other Related Offences Commission. He was tried but was eventually discharged and acquitted, though an appeal had been lodged against the said decision. However, on the 31st May, 2004, the Appellant was served with a Letter of Dismissal dated the 27th May, 2004 from the Governor of Kano State stating he was dismissed from collecting bribe of ₦100,000.00 from the said Alhaji Aminu Nabegu. It was stated he was not confronted with any allegation of demanding and accepting a bribe from the said Alhaji Aminu Nabegu. The second reason for the dismissal as stated in the said letter was that he intimidated some witnesses of the said Alhaji. Later, he received a letter of Invitation dated the 23rd December, 2012 from the National Judicial Council to appear before the Three Man Committee set up by the National Judicial Council for investigation of the allegation of oppression, victimization and continued infringement of right to liberty made by the said Alhaji Aminu Nabegu.
The Appellant appeared as mandated by the National Judicial Council, but, it was claimed that the findings of the Committee on the said allegation of oppression, victimization and continued infringement of the said Alhaji Aminu Nabegu were not communicated to him. Following the said Letter of Dismissal, the Appellant, by the Writ of Summons dated the 16th March, 2004, commenced a civil proceeding against the Respondents before the Kano State High Court. There were several Amended Endorsed Statements of Claim filed by the Appellant but the one referred to in the judgment of the lower Court at page 228-229 of the record was the one dated the 2nd June, 2005 captioned “Amended Endorsed statement of claim” and, in which he claimed against the Respondents as follows: “a. declaration that the purported dismissal of the Plaintiff by the 1st Defendant based upon the recommendation of the 4th Defendant is contrary to law and therefore null and void and of no effect. a1. A declaration that that the 4th Defendants recommendation to the first defendant for the dismissal of the plaintiff, is baseless having no evidence in support, wrong and contrary to law and in clear breach of the plaintiffs right to fair hearing. b. An order of court setting aside the purported letter of dismissal from the 1st Defendant addressed to the Plaintiff and dated the 27th day of May, 2004. c. A declaration that the Plaintiff is still in the employment of the Kano State Government as a Judicial Officer and is entitled to all rights and privileges pertaining to his office as a Judge of the High Court of Kano State. d. The cost of this action.”
Hearing was conducted in the suit and at the end of which the learned trial Judge dismissed the Appellant’s suit for lacking in merit. Being distraught with the said judgment, the Appellant filed a Notice of Appeal which was later amended with the leave of this Court.
➥ ISSUE(S)
I. Whether the learned trial Judge was right when he applied the principles of severance in a case which involves imputation of criminal conduct?
II. Whether the Appellant was given fair hearing?
III. Whether or not the learned trial Judge was right to have suo motu raised the issue of the competence or otherwise of the Plaintiff’s Reply and to proceed to strike out same, without first hearing from the Plaintiff who would obviously be aggrieved by his decision?
IV. Whether the learned trial Judge was right when he dismissed the Plaintiffs case in the light of the evidence adduced before the Court?
➥ RESOLUTION(S) OF ISSUES
[APPEAL DISMISSED]
↪️ ISSUE 1: IN RESPONDENT’S FAVOUR.
[THERE IS A MIXTURE OF CIVIL AND CRIMINAL MATTERS IN THE PROCEEDINGS AND THE TRIAL COURT WAS RIGHT TO APPLY THE PRINCIPLE OF SEVERANCE
‘It seems to me clear that the case of Military Governor of Imo State v. Nwauwa (supra) appears applicable to this case. The 4th Respondent is the body responsible for the recommendation of the appointment of the Appellant and his discipline to the 1st Respondent. This was copiously admitted by the Appellant both in his pleading and evidence proffered before the lower Court. A petition was forwarded to the 4th Respondent against the Appellant. Then, in accordance with the powers conferred on it by the Constitution of the Federal Republic of Nigeria, 1999, the 4th Respondent set up a Three Man Committee to investigate the allegations. The Appellant was only investigated in respect of the allegation of misconduct since the allegation of bribery was the object of the criminal trial against the Appellant which was then pending on appeal. It must be emphasized that the 1st Respondent’s inclusion of the allegation of demanding and collecting bribe of ₦100,000.00 does not detract from the fact that he had been fully investigated by the 4th Respondent and found wanting on the allegation of misconduct which amounted to abuse of office. Since there is a mixture of criminal as well civil matters in the proceeding filed by the Appellant against the Respondent, the trial Court, to me, was in order when it applied the principle of severance in its determination of whether there was proof any of the allegations contained in Exhibit F before it. Relying on Nwauwa’s case (supra), I hereby resolve issue No. 1 against the Appellant.’]
.
.
↪️ ISSUE 2: IN RESPONDENT’S FAVOUR.
[FAIR HEARING WAS ACCORDED THE APPELLANT
‘Regarding issue No. 2, I must admit I did not perceive any equivocation on the part of the learned trial Judge on the issue of fair hearing. The record clearly shows that the trial Court carefully examined all the steps taken by the Appellant right from the time Exhibit C was served on him for appearance before the 4th Respondent’s Three Man Committee to the time the allegation of misconduct was investigated and how the Appellant participated and cross-examined the witnesses who appeared and testified before the Committee. See the record of appeal at pages 273-275 where the trial Court fully considered the allegation of denial of fair hearing by the Appellant and then held it was satisfied from the testimony of the Plaintiff under cross-examination and the contents of the minutes of the proceedings of the Investigation Panel, Exhibit J, that the Plaintiff was given a fair opportunity to contradict or correct some evidence of the allegation against him. I am afraid; this finding by the learned trial Judge cannot be faltered. See also Nwauwa’s case in support.’]
.
.
↪️ ISSUE 3: IN APPELLANT’S FAVOUR.
[THE TRIAL JUDGE SHOULD NOT HAVE RESOLVED THE INCOMPETENCY OF THE APPELLANT’S REPLY SUO MOTO
‘Be that as it may, it is glaring at pages 263 and 264 of the record that the learned trial Judge, after adequate consideration of the averments in the Appellant’s Reply and holding that it was not supported by any evidence from the pleading and deeming the same as being abandoned, somewhat digressed, and, raised the issue of competency of the said Reply suo motu. He, also, resolved the same suo motu in his judgment. There are numerous decisions of this Court and those of the Supreme Court on the point of raising an issue suo motu by a Court. It is an established principle of law that a Court of Law cannot raise an issue suo motu, and resolve it suo motu. No Court possesses the authority to raise an issue suo motu and relying on it, decide the case one way or the other without inviting the parties to be heard. It is also settled that such a dangerous path should not be taken by any Court no matter how clear the issue may appear to be and proceed to resolve the same without inviting the parties or their Counsel to address the Court on the point so as to avoid a breach of parties’ right to fair hearing. See Ejezie v. Anuwu (2008) 12 NWLR (Pt. 1101) page 466 and Amale v. Sokoto Local Government (2012) LPELR-SC.290/2003. With the above decisions in mind, I am afraid, the argument of learned Counsel for the Appellant on this point of the trial Court raising the issue of validity of the Appellant’s Reply suo motu and resolving the same suo motu without inviting the parties to address it is sustainable, it is therefore, valid. Accordingly, this issue is hereby resolved in favour of the Appellant.’]
.
.
↪️ ISSUE 4: IN RESPONDENT’S FAVOUR.
[‘It is crystal clear that the 4th Respondent derived it powers to discipline the Appellant and all within his category from the Constitution of the Federal Republic of Nigeria, 1999. The moment it has exercised its constitutional power the only role the Court will play is to ascertain whether the manner in which the power was exercised conformed with fundamental principles of law but not whether the decision was wrong or right as the court has no jurisdiction to substitute it’s own opinion for that of the 4th Respondent. In Opene v. National Judicial Council and Ors. (2011) LPELR-4795(CA), Galinge, J.C.A., stated that the responsibility to recommend to the President, the removal of such officers is given to the National Judicial Council. If the Constitution intended that such misconduct must be subject to trial by Court, it would have said so. It would have said for example, that any Judicial Officer convicted by the Court shall be removed from office by the President on the recommendation of the NJC. The Constitution did not make such provision. Rather the Constitution that gave the Court the power to try criminal offences also gave the NJC the power to investigate allegation of misconduct against Judicial Officers and make recommendation for their removal. It is therefore my firm view that the procedure adopted by the NJC is sustainable in law. He further held that section 21(b) of the 3rd schedule Part 1 of the 1999 Constitution provides that the 1st Respondent shall have power to recommend to the President the removal from office of the Judicial Officers specified under sub-paragraph (a) of this paragraph, and to exercise disciplinary control over such officers. Those Judicial Officers mentioned in paragraph (a) include the Chief Justice of Nigeria, the Justices of the Supreme Court, the President and Justices of the Court of Appeal, the Chief Judge and Judges of the Federal High Court etc.’
IT IS NOT MANDATORY FOR THE APPELLANT TO BE SHOWN THE RECOMMENDATION OF THE 3-MAN COMMITTEE
‘Regarding the contention of the Appellant that he was not shown a copy of the recommendation of the three Man Committee, it needs be stated that it is not an established law that the Appellant ought to have been invited the second time to be shown the recommendation of the said Three Man Committee.’]
.
.
.
✓ DECISION:
‘In the end and for all the reasons I have given above, this appeal is found to be unmeritorious and ought to be dismissed. Accordingly, it is hereby dismissed. The decision of the lower Court is hereby affirmed.’
➥ FURTHER DICTA:
⦿ THE PRINCIPLE OF SEVERANCE IN CAUSE OF ACTIONS
it is appropriate to appreciate in great depth the connotation of principle of severance and, when it is usually invoked by the Court. In law to sever is to divide into parts. Plaintiffs in civil suits base their cases on a cause of action, i.e. facts that give the plaintiff the right to sue. The Court may order that the lawsuit be divided into two or more independent causes of action. This type of severance occurs only when each distinct cause of action could be tried as if it were the only claim in controversy. As a result of severance, the court renders a separate, final, and enforceable judgment on each cause. Such division of issues in a trial is sometimes also, called “bifurcation.” Therefore, if in a civil proceeding there is an allegation of commission of a crime which is not directly in issue or did not form the basis of the civil trial, the criminal offence can be severed from the civil aspect. In that respect, the standard of proof required will not be proof beyond reasonable doubt but, on the balance of probabilities. See Omoboriowo v. Ajasin (1984) ALL NLR 105, where it was held that under the rules of pleadings, a pleader who has pleaded more than he strictly need have done can always disregard the unnecessary or surplus averments and concentrate simply in the more limited ones. See, also, Aregbesola and 2 Ors v. Oyinlola and 2 ors (2010) LPELR-3805(CA), per Ogunbiyi, J.C.A., (as she then was); where she referred to the case of Olukayode Fayemi and Anor v. Olusegun Adebayo Oni and 7 others unreported, per Salami PCA and expressed that a significant feature of a severance principle is that where there are two causes of action embedded within the same claim before a court, the doing away with one cause of action would have no effect or bearing on the existence of the other. The existence of the two would amount to a surplusage of one to the other. — T. N. Orji-Abadua JCA.
⦿ BALANCE OF PROBABILITIES IN SEVERANCE
Further, in F.B.N. Plc. v. Akande (1997) 9 NWLR (Pt. 519), Muhammad, J.C.A., (as he then was) opined as follows: “It is clear that where a person asserts the commission of a crime in any civil proceeding, and the criminal act is directly in issue, that person must prove the commission of that crime beyond reasonable doubt. See Benson Ikoku v. Enoch Oli (1962) 1 SCNLR 307. See also Nwobodo v. Onoh (1984) 1 SCNLR 1 where the Supreme Court considered the above provision and stated at page 4 that the Rule in Civil proceeding is subject to the principle of severance of pleadings. This principle is to the effect that if after severing the allegation of a crime from the body of pleadings, there still remain enough averments upon which the plaintiff can still rely to prove his case then the burden on the plaintiff in order to succeed, is one of balance of probability. What this means in effect is that if the allegation of crime is severed from the body of the Statement of Claim, would there still remain enough averments upon which the plaintiff would not require to prove this case? If that is so, the Plaintiff would not require to prove the case beyond reasonable doubt, it will be enough if he succeeds in proving his case on balance of probability.”
From the foregoing, it is clear that the provision of section 138(1) is subject to the principle of severance of pleadings. Thus, if in any civil proceedings the averments alleging crime are severable and if after such severance there still remain in the pleadings of the plaintiff or the petitioner sufficient averments devoid of the crime alleged against any party to the proceeding and on which the petitioner can succeed in his claim or petition, then the burden of proof upon the petitioner is to prove his case on the balance of probability. What the Evidence Act stipulates is, where the commission of a crime is directly in issue, i.e. being the only basis for the claim then the criminal allegation must be proved beyond reasonable doubt.
⦿ WHERE SEVERANCE IS IMPOSSIBLE, CASE IS TO BE PROVED BEYOND REASONABLE DOUBT
In Koiki v. Magnusson (1999) 8 NWLR (Pt. 615) p. 492 referred to by the Appellant’s Counsel, it was held that the Commission of Crime by the defendant in that proceeding is a fact directly in issue and the Plaintiffs are required in law to discharge the burden of proving the crime or offence of fraud and misrepresentation beyond reasonable doubt. It was held therein that principle of severance is not applicable having regard to the pleadings. The allegations of fraud and misrepresentation cannot be severed from the body of the pleadings and the question of what remains after the severance which the Plaintiffs can rely on to prove their case does not equally arise. — T. N. Orji-Abadua JCA.
➥ LEAD JUDGEMENT DELIVERED BY:
Theresa Ngolika Orji-abadua, J.C.A.
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
M. N. Duru, Esq.
⦿ FOR THE RESPONDENT(S)
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
