This piece is not connected to the legality or otherwise of the suspension of the Chief Justice of Nigeria, but it is meant to put the word “removed” in Section 292(1) within the purview of correct Interpretation as established in decided cases, despite the diverse incorrect interpretations attached thereto in recent times.
The production of the Section is however important at this point.
Section 292(1) of the 1999 Constitution provides in part:
“A judicial officer shall not be removed from his office or appointment before his age of retirement except in the following circumstances- (emphasis mine)
Based on the word “removed” above, can it be said to mean “suspension” ?
It is notable that the word “removed” appears three times within the entire Section. Two times in Subsection 1(a) and once in paragraph (b). While “suspension” does not appear at all.
Some writers tend to submit that once you are “suspended”, it implies the suspended person had been technically “removed”. As attractive as this submission is, it seriously missed the point in my view.
This because, in Law, ordinary meaning of a word may be different from its legal meaning. In the case of UTOMUDO V. MILITARY GOVERNOR, BENDEL STATE(2014) ALL FWLR PT. 746 @ 502 PAGE 528, it was held that:
“In law, words have their ordinary meaning if and only if no legal meaning has been attached to them. If any word or expression had been either statutorily or judicially defined, then, the legal meaning supersedes the ordinary meaning. When words have been legally or judicially defined, their ordinary meaning will surely give way to their meaning as legally or judicially defined.”
Then, what is the legal meaning of both words as recognized in the decided NWLR (Part 502) 719 at 723, the Court of Appeal held:
“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 transient disciplinary procedure which keeps away the victims 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.”
See also BERNARD OJEIFOR LONGE V. FIRST BANK OF NIG. PLC : (2010) LPELR-SC.116/2007 and Boston Sea Fishing Co. v. Ansell [1886 – 90] All ER 65.
Then, what is the appropriate Interpretation of “removal” within the Section ?
A correct synopsis of facts is relevant at this point in the case of NATIONAL JUDICIAL COUNCIL & ORS V. ALADEJANA(2015)ALL FWLR (PT.772) @1798.
In October, 2006, the Ekiti State House of Assembly suspended the Hon. Chief Judge of Ekiti State after he submitted an unfavorable report of the seven-man panel the Chief Judge constituted in order to investigate allegations of misconduct against the Governor and his Deputy for impeachment. Hon. Justice Aladejana was appointed as the new Chief Judge of the State.
On 13th day of October, 2006, the Chairman of the National Judicial Council (NJC) wrote a letter to the (new) Chief Judge informing him that any step he takes would be unconstitutional. The (new) Chief Judge constituted and submitted the report of a fresh seven-man panel meant to investigate allegations of misconduct against the Governor of Ekiti State and his Deputy. Hence, the duo were impeached.
In the light of this, the Chairman of NJC SUSPENDED the new Chief Judge till further notice from office as a High Court Judge of the State.
Therefore, the Chief Judge approached the Ekiti State Division of the Federal High Court in order to challenge his suspension amongst others .
He argued that based on Section 292(1) of the Constitution, he cannot be unilaterally ‘suspended’ by the NJC without the concurrence of the Governor.
Upon an appeal to the Court of Appeal by the NJC_ the Court of Appeal endorsed the power of the NJC to suspend him and further had to interpret the meaning of “removed” in Section 292(1) of the Constitution and held thus:
“It (suspension) does not imply a termination of his employment but a pause in his functioning in the office which he holds….Removal on the other hand implies dismissal from one’s job. See Oxford Advanced Learner’s Dictionary, 7th Edition, page 1234. It implies a permanent state and this is the context in which it is used in section 292(1)(d)(sic: b) of the Constitution.” (Emphasis mine).
Similarly, when one takes note of why there is separation between the words “removal” & “suspension” by the use of “OR” within Section 11(1)(b) of the Interpretation Act, LFN 2004, it appears to me that the two words are not meant to mean the same thing. Pertinently, the Supreme Court through Per Niki Tobi JSC (of blessed memory) stated obiter that the Interpretation Act is applicable when construing the Constitution. See INAKOJU vs. ADELEKE (2007) 4 NWLR (PT.1025) 425 AT 621 – 622.
Section 11(2)(b) of the Interpretation Act provides:
“(1)Where an enactment confers a power to appoint a person either to an office or to exercise any functions, whether for a specified period or not, the power includes-
(b) power to remove or suspend him;” (Emphasis mine)
When the word “or” is used in an enactment, Section 18(3) of the Interpretation Act provides that:
“The word “or” and the word “other” shall, in any enactment, be construed disjunctively and not as implying similarity.”
Furthermore, in the case of ALHAJI ATIKU ABUBAKAR vs. YAR’ADUA (2009) ALL FWLR (PT. 457) 1 at 76 – 86 paragraphs G – D., per KATSINA-ALU, JCA (as he then was) held that:
“The word “or” is defined in Black’s Law Dictionary, 6th Edition, in the following terms: A disjunctive participle used to express an alternative or to give a choice of one among two or more things.”
Based on the forgoing analysis, I am of the opinion that “suspension” does not mean “removal” as erroneously argued by some writers within Section 292(1) of the Constitution. This writer is not however to be misconstrued that being a disciplinary action, “suspension” of a Judge does not require the NJC, a disciplinary body envisaged for such by virtue of Item 21(d) of part 1 of the 3rd Schedule to the Constitution as decided in the cases of NJC v. ALADEJANA(Supra), BAMISILE V. NJC & 3 ORS. (Unreported) CA/B/223/08 delivered on 13th day of January, 2012.
BALOGUN SOFIYULLAHI is a student of Faculty of Law, Ahmadu Bello University, Zaria.
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