In the Supreme Court of Nigeria holding in Abuja on February 17, 2012. before their lordships: Mahmud Mohammed, JSC; Walter Onnoghen, JSC; Christopher Chukwuma-Eneh, JSC; Muhammad Muntaka-Coomassie, JSC; Olufunlola Adekeye, JSC; Mary Peter-Odili, JSC and Olukayode Ariwoola, JSC.

Between

1. Justice Raliat Elelu-Habeeb
(Chief Judge of Kwara State)

2. National Judicial Council

And

1. The Attorney-General Of The Federation

2. The Attorney-General Of Kwara State

3. The House Of Assembly Of Kwara State

Although the governor of a state has been vested with the power to appoint the chief judge of his own state, that power is not absolute as the governor has to share the power with the NJC in recommending suitable persons and the State House of Assembly in confirming the appointment.

So held by a Justice of Supreme Court (JSC) Justice Mahmood Mohammed in a lead judgment he delivered with his learned brothers: Walter Onnoghen, JSC; Christopher Chukwuma-Eneh, JSC; Muhammad Muntaka-Coomassie, JSC; Olufunlola Adekeye, JSC; Mary Peter-Odili, JSC and Olukayode Ariwoola, JSC, concurring in allowing the appeal and affirming that state governor cannot appoint or remove a state Chief Judge without the recommendation of the National Judicial Council (NJC).

The fact of the case is that the action that gave rise to the present appeal number SC.281/2010 was brought by originating summons filed on 6 May 2009 at the Federal High Court, Ilorin by Honourable Justice Raliat Elelu-Habeeb. as me plaintiff against the National Judicial Council, the Hon. Attorney-General of the Federation, the Honourable Attorney-General of Kwara State and the House of Assembly of Kwara State as defendants. The originating summons submitted two questions for determination followed by a request of 5 distinct reliefs from the trial court. The questions for determination are:

The National Judicial Council is one of the executive bodies established for good governance of the country under section 153 of the Constitution.

It is in the spirit of the Constitution in ensuring checks and balances between the three arms of government that the role of the Governor in appointing and exercising disciplinary control over the chief judge of his state is subjected to the participation of the NJC and the House of Assembly of the stale in the exercise to ensure transparency and observance of the rule of law.

The cross-appellant has made heavy weather on the interpretation and application of section 292 (1) (a) (ii) of the 1999 Constitution which is said to have conferred unfettered powers on the Governor of Kwara State and the House of Assembly of Kwara State to remove the CJ of Kwara State from office on an allegation of misconduct.

All these conditions or basis for the exercise of power to remove a State CJ must be investigated and confirmed by credible evidence and placed before the Governor and the House of Assembly before proceeding to exercise their power of removal granted by the section of the Constitution. For example, the ground of removal for inability to perform the functions of his office or appointment cannot be ascertained and confirmed by the Governor or the House of Assembly in the absence of any input from the National judicial Council under which supervision the chief judge discharges his functions as judicial officer and which body also is directly responsible for exercising disciplinary control over the said State Chief Judge. It is not difficult to see that for the effective exercise of the powers of removal of a CJ of a state by the Governor and House, of Assembly, the first port of call by the Governor on his journey to remove a chief judge of the state shall be the NJC which is equipped with the personnel and resources to investigate the inability of the chief judge to discharge the functions of his office, the subject of disciplinary action of removal through the committees of the council, and where the infirmity of the mind or body is involved, the services of a medical board to examine and submit appropriate report on the chief judge to be affected, could also avail the council in the process of investigation, li is for the foregoing reasons that I hold the view that m the resolution of the issue at hand, the entire provisions of the Constitution of the Federal Republic of Nigeria, 1999 in sections 153(1)(i)(2), 27(i), 292(1)(a)(ii) and paragraph 21 of Part 1 of the Third Schedule to the Constitution of the Federal Republic of Nigeria. 1999 dealing with the appointments removal and exercise of disciplinary control over judicial officers, must be read, interpreted and applied together in resolving the issue of whether or not the Governor of a state and the House of Assembly of a state can remove a CJ of a State in Nigeria without an input of the NJC . This is because the combined effect of these provisions of the Constitution has revealed very clear intention of the framers of the Constitution to give the NJC a vital role to play in the appointment and removal of judicial officers by the Governors and Houses of Assembly of the State, in the result. I entirely agree with the two courts below that having regard to these relevant provisions of the Constitution of the Federal Republic of Nigeria, 1999, the Governor of Kwara State and the House of Assembly of the State cannot remove the Chief Judge of Kwara State from office without the participation of the National Judicial Council in the exercise. The 3rd issue therefore is also resolved against the 2nd respondent/cross-appellant.

These three issues in the 3rd respondent/cross-appellant's appeal have been effectively covered in the four issues identified and resolved in the 2nd respondent/cross-appellant's cross-anneal. In other words, on the interpretation and application of the provisions of section 153(1 )(i), 271 (1 )1, 292(1 )(a)(ii) and paragraph 21 of Part 1 of the Third Schedule to the 1999 Constitution. The Governor of Kwara State and the House of Assembly of Kwara State cannot remove the Chief Judge of Kwara State from office without recourse to and input or participation of the NJC. That is to say for the purpose of emphasis, the 1999 Constitution, does not give the Governor of Kwara State acting in conjunction with the House of Assembly of Kwara State absolute power to remove the CJ of the state from his/her office or appointment before the age of retirement without the recommendation or the NJC.

Thus, in the final analysis in the appeals and the cross-appeals in this matter, the appeal which succeed are hereby allowed, the judgment of the court below which held that the trial court lacked jurisdiction in entertaining the action is hereby set aside. The judgment of the trial court declaring that it has jurisdiction to entertain and determine the matter brought before it by the plaintiff/appellant is hereby restored and affirmed. In the same vein, the two cross-appeals of the 2nd and 3rd respondents/cross-appellants having jailed, are hereby dismissed.

Taking into consideration the circumstances of this case, I do not regard it appropriate to make any order on costs.

Lawyers:

Chief A. S. Awomolo (SAN) (with him O. A. Aiyemowa) - for the 1st Appellant/Cross-Respondent.

J. B. Daudu (SAN. (with him. E. O. Maduka (Miss) and O. 0. Kehinde) - for the 2nd Appellant/Cross-Respondent.

R.A. Lawal Rabana (SAN) (with him. Aliyu Saiki) - for the 1st respondent.

A. 0. Adelodun (SAN) (with him. A Abuulraheem) - for the 2nd respondent/Cross-Appellant.

Yusuf Ali (SAN) (with him. K. K. Eleja. T.B. Olurode (Miss). T.E.

Akintade (Miss.) and K. T. Sulaiman (Miss)) -for the 3rd Respondent/Cross -Appellant.