“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 victim or person disciplined from his regular occupation or calling, either for a fixed or terminal period or indefinitely. The disciplinary procedure gives the initiator 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.” –  University of Calabar v. Esiaga (1997) 4 NWLR (Pt.502) 719

SUSPENSION IS A DISCIPLINARY PROCEDURE WITHIN THE SOLE COMPETENCE OF THE NJC

According to the Court of Appeal in the case of University of Calabar v. Esiaga and which holding is consonant with recognized principles of labour law, suspension is a disciplinary procedure which may or may not result in disciplinary action. The Constitution, subsidiary legislations and our labour laws have made strict provisions for the discipline of workers, part of which may include suspension as part of or preliminary to disciplinary proceedings against any worker who is guilty of misconduct or general inefficiency. The 1999 Constitution thus provided that the body to exercise disciplinary control over judicial officers is the National Judicial Council (Paragraph 21(b) Part 1 Third Schedule).

  1. The National Judicial Council shall have power to –

(a) recommend to the President from among the list of persons submitted to it by –

(i) the Federal Judicial Service Commission, persons for appointment to the offices of 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, and

(ii) the Judicial Service Committee of the Federal Capital Territory, Abuja, persons for appointment to the offices of the Chief Judge and Judges of the High Court of the Federal Capital Territory, Abuja, the Grand Kadi and Kadis of the Sharia Court of Appeal of the Federal Capital Territory, Abuja and the President and Judges of the Customary Court of Appeal of the Federal Capital Territory, Abuja;

(b) recommend to the President the removal from office of the judicial officers specified in sub-paragraph (a) of this paragraph AND TO EXERCISE DISCIPLINARY CONTROL OVER SUCH OFFICERS;

You may equally find similar provisions for example in Rule 030102 of the Public Service Rules vesting the power to dismiss and to exercise disciplinary control over officers in the Federal Public Service in the Federal Civil Service Commission.

“030102 – The power to dismiss and to exercise disciplinary control over officers in the Federal Public Service is vested in the Federal Civil Service Commission. This power may be delegated to any member of the Commission or any officer in the Federal Civil Service.”

Pursuant to the powers conferred on it by the constitution as aforementioned, the NJC promulgated the JUDICIAL DISCIPLINE REGULATIONS 2017, to govern allegations and complaints of misconduct against Judicial Officers and proceedings initiated in exercise of the power of the National Judicial Council to exercise disciplinary control over Judicial Officers against whom allegation of misconduct has been made.

The provision concerning suspension of a judicial officer in the Regulations is contained in regulation 24. Titled INTERIM SUSPENSION PENDING FINAL DECISION and it reads

  1. “Prior to taking the final decision, the Council may suspend the subject from performing judicial functions.
  2. In the event of an interim suspension, the Council shall-
  3. notify the office holder of the suspension, the reasons for it and if the suspension is not immediate, the time when it comes into effect;
  4. notify the office holder of the factors that will be taken into account in determining when the suspension will end;”
  5. inform the office holder of any action required by the Council.

This provision is in compliance with the strict requirement of our labour laws that suspension of a worker in the federal civil service can only be applied where a prima facie case, the nature of which is serious has been established against an officer and it is considered necessary in the public interest that he/she should forthwith be prohibited from carrying out his/her duties. See Rule 030406 of the Public Service Rules reproduced below

“030406 – Suspension should not be used as a synonym for interdiction. It shall apply where a prima facie case, the nature of which is serious, has been established against an officer and it is considered necessary in the public interest that he/she should forthwith be prohibited from carrying out his/her duties. Pending investigation into the misconduct, the Federal Civil Service Commission or the Permanent Secretary/Head of Extra-Ministerial Office (if within his/her delegated powers) shall forthwith suspend him/her from the exercise of the powers and functions of his/her office and from the enjoyment of his/her emolument.”

In other serious cases that may lead to dismissal being instituted against an officer, but before a prima facie case has been made out, the Public service Rules provides for interdiction which is not provided for in the Judicial Service Regulations.

Thus under the Regulations interim suspension of a judicial officer is only applied by the NJC after the investigative committee set up by the Committee has submitted its report to the Council containing; findings of facts on each of the allegations in the complaint; whether the case is substantiated or not; if the case is substantiated the nature of misconduct or misconducts or disability found; whether disciplinary action should be taken, and if so what disciplinary action should be taken; and findings with regard to any other matters in its terms of reference.

The Power granted to the President under section 292 of the 1999 Constitution is the power to REMOVE listed judicial officers like the Chief Justice of Nigeria, acting on an address supported by two thirds majority of the Senate. This power if read alongside paragraph 21 (b) of Part 1, third Schedule, 1999 Constitution, paragraph 18(2), Part 1, fifth Schedule, may imply that prior to such address that must be supported by two thirds majority of the Senate, a recommendation may have been made for the removal of the CJN by the NJC or the Code of Conduct Tribunal must have imposed a punishment on the CJN requiring him to vacate his office after he had been found guilty of contravening the provisions of the Code.

The Power to remove is different and is even more stringently interpreted in employments with statutory flavor as in this case, but we have not even begun to talk about the power of removal. Granted that the CCT may have a constitutional role in the removal of the CJN going by a wholistic reading of the above provisions, but there is no statutory provision that clothes the CCT with power to order the CJN or any person appearing before it to step aside or recommend that the President should suspend the CJN or anyone appearing before it. Such a procedure amounts to denying the CJN or whoever has been subjected to such treatment by the CCT, his constitutionally guaranteed presumption of innocence and is an imposition of punishment by the CCT even before it has made a finding of guilt (which finding is even appealable to the Court of Appeal). Even after finding a person such as the CJN guilty of a contravention against the Code of Conduct the Constitution strictly lists the punishments it can impose on the guilty party (subject to his right of appeal) and the listed punishments do not include suspension or recommendation for suspension. It is putting the cart before the horse, and a violation of the rights of the accused to a fair trial, to suspend him from office while he is undergoing trial before your court when you are not his employer who has initiated disciplinary proceedings against him.

Thus, one can understand the rationale for leaving the power of suspending the public officer to the Federal Civil Service Commission or in the case of the CJN or judicial officers to the NJC. Neither the CCT (which is a federal executive body) nor the President (who is the head of the Executive) has a right to discipline by suspension the CJN or any judicial officer. They may prosecute them through the Police and Attorney-General or try them quasi-judicially through the CCT as a sequel to removing them, but the discipline of these officers is left to the judiciary and is to be exercised through the NJC as provided by the Constitution. This is the wisdom of the principle of separation of powers enshrined in the Constitution

RELEVANT CASE-LAW

The question of the power of suspension as a prelude to dismissal in labour relations was considered by both the Court of Appeal and the Supreme Court in Longe v. FBN. Plc (2010) 6 NWLR (Pt. 1189) 1 S.C. and Longe v. F.B.N. Plc. (2006) 3 NWLR (Pt.967) Pg.228

The decision of the Court of Appeal upholding the ultimate dismissal was reversed by the Supreme Court, but the statements of the law concerning the power to suspend, was not controverted by the Supreme Court except to the extent that the lower court misunderstood the import of suspension on the rights of the dismissed worker to be dismissed in compliance with the rules laid down in the Companies and Allied Matters Act. The relevant principle from the decision of the Court of appeal is that the right to suspend is a transient disciplinary procedure which gives the INITIATOR OF THE DISCIPLINE a period to make up his mind as to what should be done to the person facing the discipline. In other words, it is the PERSON WHO INITIATES THE DISCIPLINE that has the power to suspend. In this case, concerning a judicial officer, it is the NJC that constitutionally has that power, while the power of the president is to remove on the listed constitutional grounds and following the right procedure, on the advice of the same NJC.

The relevant portions of the Court of Appeal Judgment and Supreme Court Judgments are reproduced below

“It is in accord with judicial decision and business practice to ask the officer being investigated to stay away from the place of work to permit unhindered investigation to be carried out and also to allow peace to reign at his place of work. The period of suspension will keep such person out of further mischief and provide his employer further time for reflection and rumination. There are both foreign and local judicial decisions approving suspension of an employee pending the final determination of his involvement in the accusation. In University of Calabar v. Esiaga (1997) 4 NWLR (Pt.502) 719. at 739-740 this court stated the meaning of suspending an employee from his employment:- “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 victim or person disciplined from his regular occupation or calling, either for a fixed or terminal period or indefinitely. The disciplinary procedure gives the INITIATOR 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.” – per Salami JCA (capitalization for emphasis)

“I think, with respect, that the court below completely misunderstood, the import of suspension. Admittedly, an employer suspending his employee may impose terms of the suspension but in a general sense suspension of an employee from work only means the suspension of the employee from performance of the ordinary duties assigned to him by virtue of his office. Suspension is not a demotion and does not entail a diminution of rank, office or position. Certainly, it cannot import a diminution of the rights of the employee given to him under the law. To accept as the court below did, that suspension of the plaintiff would deny him the protection afforded him under Section 266 is to confer the right on the defendant to vary the status of the plaintiff without complying with the procedure laid down for doing so. The defendant cannot first suspend the plaintiff without notice to him of the meeting at which the suspension was discussed and agreed and then turn round to say that that suspension had removed the necessity to give him the notice as mandatorily required under Section 266(1) of C.A.M.A. THE COURT CANNOT GRANT TO A LITIGANT THE RIGHT TO DISOBEY THE LAW UNDER ANY ARTIFICE OR GUISE. Per Oguntade JSC (Capitalization for emphasis)

“every contract of employment contains the terms and condition that will regulate the employment relationship such as terms on determination, notice, wages, benefits are usually contained in the expressed contract of service or implied into it by common law and custom. The nature of employment generally affect the terms of the contract of employment. There are three categories of contracts of employment as follows: –
(a) Purely master and servant relationship.
(b) Servants who hold their office at the pleasure of the employer.
(c) Employments with statutory flavour.
In the master and servant relationship, the master has unfettered right to terminate the employment – but in doing so he must comply with the procedure stipulated in their contract. In a contract with statutory flavour – the employment is protected by statute. IN THE EVENT OF TERMINATION OF EMPLOYMENT WITH STATUTORY FLAVOUR, STRICT ADHERENCE MUST BE HAD TO THE STATUTE CREATING THE EMPLOYMENT FOR STATUTORY PROVISIONS CANNOT BE WAIVED
. – Per Adekeye JSC (Capitalization for emphasis)

SUSPENSION IS USUALLY A PRELUDE TO DISMISSAL FROM AN EMPLOYMENT. It is a state of affairs which exists while there is a contract in force between the employer and the employee, but while there is neither work being done in pursuance of it nor remuneration being paid. Suspension is neither a termination of the contract of employment nor a dismissal of the employee. It operates to suspend the contract rather than terminate the contractual obligations of the parties to each other. Per Adekeye JSC (Capitalization for emphasis)

Finally, as the Supreme Court recognizes, the right of an employer to suspend an employee whose contract is protected by statute as a prelude to dismissal which thereby terminates the terms of the contract must be exercised in strict adherence to the statute creating the employment, for statutory provisions cannot be waived. It also raises the fundamental question whether the Chief Justice of Nigeria is an employee of the President of Nigeria which highlights the catastrophe the principle of separation of powers enshrined in the constitution was meant to prevent. For the president to unilaterally suspend the Chief Justice of Nigeria contrary to the safeguards enshrined in the constitution, is subjecting the judiciary to the caprices and whims of the executive which is one step to provoking anarchy and the rule of self-help in the country.

CONCLUSION: The suspension of the CJN by the president under whatever guise constitutes a constitutional infringement of the principle of separation of powers and a usurpation of the disciplinary powers of the NJC enshrined in the Constitution. The power of removal granted under the constitution not being an absolute power but one predicated on specified conditions and requiring the participation of other actors alongside the President does not include the power to unilaterally suspend which is under of the disciplinary powers of the NJC.  As we have always maintained the decision in the Nganjiwa case, in blurring the delicate lines between disciplinary and penal proceedings may have unwittingly contributed to the desperation that led to this monumental blunder in suggesting to the minds of those ignorant of the workings of the law, that the judiciary was hell-bent on protecting its corrupt members and shielding them from the reach of the law. While the current blunder is inexcusable, we can feel the reverberating effect of the Nganjiwa case in the spate of court orders and applications that has trailed this particular case and finally culminated in this desperate measure whether well motivated or ill motivated. In the final analysis, this ill-advised move has rendered nugatory whatever credibility there seemed to be in the initial revelation of undeclared asset by the CJN and transformed the case into one of ill-advised abuse of power. Two wrongs do not make a right.

Nonso Robert Attoh is a law lecturer and writes from Enugu

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