CORAM
PARTIES
HON. JOHN B. YEP & ANOR
HON. CHRISTOPHER D. SAMUEL & ORS
AREA(S) OF LAW
Not Available
SUMMARY OF FACTS
The Plaintiffs/Appellants are the elected Chairman and Vice Chairman of Sardauna Local Government Council of Taraba State who were elected for a tenure of three years from the date they were sworn in into office. The 1st to 12th Defendants/Respondents (the Councilors of the Local Government) served the Appellants with a suspension letter dated 27/072017 for a period of three months. After the expiration of the three months suspension, the Governor of Taraba State extended the suspension for an indefinite term by a letter. By an Originating Summons, the Appellants sought for the following declarations against the Respondents, among others: an order of this court declaring the act of 1st to 15th Defendants in purporting to suspend the Plaintiffs and thereafter proceed to investigate them as unconstitutional, illegal, null and void abinitio; an order of this court vacating the 11th Defendant from office as acting Chairman of Sardauna Local Government Council; an order of this court declaring the extension of the suspension of the Plaintiffs by the Defendants from their elected offices as unconstitutional, illegal, null and void. The lower Court heard and dismissed the case of the Appellants. Dissatisfied, the Appellants lodged an appeal before this court contending that Section 34 and 36 of the Taraba State Local Government Law, 2000 does not confer powers on a legislative council to suspend an elected Chairman and Vice Chairman.
HELD
Appeal Dismissed
ISSUES
Whether under the Taraba state Local Government Law 2000, the 1st to 12th Respondents are clothed with the statutory powers to suspend the Appellants from their respective offices as chairman and vice chairman of Sardauna Local Government Council. Whether the trial court was not wrong in law when after finding that the status of exhibit ‘D’ (the extension of suspension) is unlawful, yet proceeded to dismiss the Appellants’ suit instead of making a consequential order vacating the 11th Respondent from office. Whether the trial court was not wrong in law when it raised its issue 2 suo moto, and without inviting the parties to address it on same, it proceeded to dismiss the Appellants suit premised on the said issue. Whether the trial court was not wrong in law when it held that the Appellants need not to be accorded fair hearing by the Respondents before suspending them from their offices.
RATIONES DECIDENDI
PRELIMINARY OBJECTION – CONDITION PRECEDENT FOR PROPERLY RAISING A PRELIMINARY OBJECTION
“For clarity purposes, the Court of Appeal Rules 2016 especially Order 10 Rule (1) provides thus:
A Respondent intending to rely upon a Preliminary Objection to the hearing of the Appeal, shall give the Appellant three clear days notice thereof before the hearing, setting out the grounds of objection, and shall file such notice together with twenty copies thereof with the registry within the same time.
A careful look at the Preliminary Objection filed by 1st – 12th, 14th and 15th Respondents on 4/03/2019 falls short of the requirements of Order 10 Rule 1 as reproduced above. The objection contained the grounds and the particulars of errors as if he is arguing the main appeal. It was therefore improperly raised. The Preliminary Objection is therefore incompetent and is accordingly struck out.”
TARABA STATE LEGISLATIVE COUNCIL – SCOPE OF THE POWER OF THE TARABA STATE LEGISLATIVE COUNCIL
“For clarity purposes Section 36 (1) of the Taraba State Local Government Law provides:
“Subject to the provisions of this Law, a legislative Council shall have power by resolution published in its journal to direct or cause to be directed an inquiry or investigation into;
a)Any matter or thing with respect to which it has power to make Bye-Laws.
b)The conduct of the affairs of any person, authority or government department charged or intended to be charged with the duty of or responsibility for:
i)Executing or administering bye-laws made by the Legislative Council; and
ii)Disbursing or administering moneys appropriated by such Legislative Council.
36(2) That powers conferred on a Legislative Council under the provision of this section are exercisable only for the purpose of enabling the Legislative Council to:
a)Make bye laws with respect to any matter within its legislative competence and correct any defects in existing bye-laws and
b)Expose corruption, inefficiency or waste in the execution or administration of Laws within its Legislative competence and in the disbursement or administration of funds appropriated by it.
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TARABA STATE LEGISLATIVE COUNCIL – BASIS FOR THE EXERCISE OF THE POWER OF SUSPENSION BY THE TARABA STATE LEGISLATIVE COUNCIL
“From the provision of Section 36 of the Taraba State Local Government Law, 2000 it automatically follows that the power to suspend flows from the power of the 12th Respondent to investigate. Furthermore, Section 36 does not bar the 12th Respondent whether expressly or impliedly from exercising its discretion. In the case of Amasike v. The Registrar – General, Corporate Affairs Commission & Anor. (2005) LPELR- 5407 at 57 Paras. F-G
Unless a statute which confers expressly or by necessary implication this Court held: exclude the exercise of discretion or the duty demanded is such that leaves no room for discretion, discretionary powers are implied and whenever appropriate, exercised for salutary ends. See Fawehinmi v. I.G.P (2002) 7 NWLR (Pt. 767) 606 at 671 Paras B-C.
The action of the 12th Respondent in suspending the Appellants pending investigation of corruption and inefficiency was rightly done.”
CONCLUSION IN A JUDGMENT- IMPLICATION OF AN INCOHERENT CONCLUSION IN A JUDGMENT
“A conclusion in a Judgment ought to be very cogent, clear, specific, unambiguous and capable of easy digestion – Senator Amange Nimi Barigha v. Peoples Democratic Party &Ors. (2012) LPELR-19712. The conclusion of the lower Court “…..which is no doubt is unlawful” reveals incoherence as to what the lower Court is actually saying. This obviously results from a slip which hinders the expression of the manifest intention of the trial Judge. That slip cannot be the ratio decidendi of the Judgment because from the printed record issues were not joined by the parties as to the validity or lawfulness of the issuance of Exhibit ‘D’. This can be discerned from the two issues formulated by the Court and even the issues submitted to the lower Court by the Appellants for determination (page 705 of the printed record). Any issue outside them is extraneous and incapable of defining the Judgment. The consequences therefore is that such conclusion would only qualify as an Obiter Dictum and is not appealable – Senator Ita Solomon Enang v. Obong Nsima Umoh & Ors (2012) LPELR-8386 (CA) this Court held that:-
“An Obiter dictum is an observation which is not related to the issues submitted to that Court for resolution or determination. It is a view expressed by the Court which does not affect its decision on the issues that arise to be decided in the case…….However whether Obiter dictum or dissenting, such observations, opinions or views would not be the decision of the Court in the case, and so cannot be and do not amount to a binding authority in respect of the issues decided by the Court.”
ISSUES RAISED SUO MOTU – STEPS TO BE TAKEN BY COURT WHERE IT RAISES ISSUES SUO MOTU
“The Law has long been settled on the above issue that whenever a Court raises a point suo motu, the parties must be given an opportunity to be heard on such a point, particularly the party that may suffer some disadvantage or disability as a result of such a point raised suo motu. This approach will ensure not only that the parties are given fair hearing but that justice is seen to have been done in accordance with the principle of the audi alteram patem rule. However, this must not be misconstrued with the ample privilege a Court enjoys to redraft an issue in a manner to show the light to what is really in controversy in the interest of justice and to enable the Court find accuracy, clarity and brevity in doing substantial justice to the case at hand.”
COURT – ATTITUDE OF COURTS IN MATTERS INSTITUTED ON IMPROPERLY CRAFTED PROCESS
“The issue as formulated by the trial Court was nothing new to the case of the parties in that the Defendants at the trial court while relying on Section 36 of the Taraba State Local Government Law, 2000 had argued the issue of the power of the 1st to 12th Respondents to investigate the Appellants. The Appellants’ Counsel misconstrued the Law and interpreted a case of reformulation of issues by the trial Court to mean raising new issues suo motu. The Law has long been settled on this point. In Okeke v. State (2016) LPELR-26057 (SC) the Apex Court had this to say:
“Clearly what was the focus of the Court below was substantial justice which that court was not prepared to sacrifice for technical justice…. Stated in another way is that the Court of all cadres should be mindful of the paramount interest of justice and the right of a liigant to be protected even in the face of an improperly crafted process presented in a clumsy inarticulate way. Therefore the Court has to bring out with clarity what it is dealing even if it means reformulating the issues so long as they are not out side the presented in a clumsy inarticulate way….”
SUSPENSION- IMPLICATION OF SUSPENSION AS IT RELATES TO FAIR HEARING
“The word suspension has come under the thorough scrutiny of the courts of our land and the courts have never minced words on the meaning of the phrase and its implication as it relates to fair hearing. In Mr. Bernard Ojiefor Longe v. First Bank Of Nigeria Plc. (2006) LPELR-(CA) 44-47 Salami, JCA (as he then was) stated:-
I want to ask myself whether he ought to have been heard before his suspension. The appellant was suspended and eventually removed because it became necessary to do so… It is a desperate situation which demands drastic action. It cannot wait for legal finesse such as fair hearing or natural justice. That can wait!… the appellant will not be entitled to hearing prior to the suspension. The principle of fair hearing, at this stage, at least is shut out. In such circumstance, the long line of authorities are to the effect that the principle of natural justice is kept in abeyance…
While reaching the above decision, Salami (JCA as he then was) quoted the notorious English case of Lewis v. Heffer & Sons (1978) 3 All ER 254 at 364 where the famous Law Lord, Denning stated thus:
“Very often irregularities are disclosed in a government department or in a business house; and a man may be suspended on full pay pending inquiries. Suspension may rest on him; and so he is suspended until he is cleared of it. No one so far as I know, has ever questioned such a suspension on the ground that it could not be done unless he is given notice of the charge and an opportunity of defending himself, and so forth. The suspension in such a case is merely done by way of good administration. A situation has arisen in which something may be done at once. The work of the department or the office is being affected by rumours and suspicions. The others will not trust the man. In order to get back to proper work, the man is suspended. At that stage the rules of natural justice do not apply.
In placing a definite seal on the above enunciated principle, the Supreme Court also relying on the dictum of Lord Denning in Lewisv. Heffer & Sons (supra.) held thus in Bernard Ojiefor Longe v. First Bank of Nigeria Plc. (2010) LPELR-1793 (SC):
“The word ‘suspension’ means a temporary privation or deprivation, cessation or stoppage of or from, the privileges and rights of a person. The word carries or conveys a temporary or transcirnt disciplinary procedure which keeps away the victim or person disciplined from his regular occupation or calling either for a fixed or terminal period or indefinitely. The disciplinary procedure gives the initiation of the discipline a period to make up his mind as to what should be done to the person facing the discipline. Although in most cases, suspension, results in a disciplinary action, it is not invariably so. There are instances when the authority decides not to continue with the matter. This could be because the investigations did not result in any disciplinary conduct.”
The 1st to 12th Respondents (particularly the 12th Respondent i.e. Sardauna Local Government Legislative Council) has the power to investigate the Appellants by virtue of Section 36 of the Taraba State Local Government Law, 2000. If the Law empowers to investigate and checkmate, it is correct to say that the power to suspend is inherent. Upon the premise of the suspension, the Appellants are alleging breach of fair hearing on the ground that they were not heard before the suspension. As highlighted in the cases of Bernard Ojiefor Longev. First Bank Of Nigeria Plc. (Supra); Lewis v. Heffer & Sons (Supra) and University Of Calabar Teaching Hospital & Anor. v. Juliet Koko Bassey (2008) LPELR-8553 (CA) 30-31, Paras. C-D the principle of natural justice must be kept in abeyance under such circumstances.”
CASES CITED
Not Available
STATUTES REFERRED TO
Constitution of the Federal Republic of Nigeria 1999 (As amended)|Court of Appeal Act|Court of Appeal Rules 2016|Taraba State Local Government Law, 2000 (as amended)|