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SIGNING OF ORIGINATING SUMMONS BY A JUDGE – FORM 2

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Dictum

It is clear from the provisions of the Fundamental Rights (Enforcement Procedure) Rules, 1979 that nowhere in the body of the Rules is it provided that whenever an originating summons is being taken out it must be signed by a Judge of the High Court to which the originating summons relates. The Rules are silent on such a provision. However, the form of the originating summons which is prescribed in the Appendix to the Rules as Form 2 implies that the originating summons would be signed by a Judge. But nowhere is it provided that it is mandatory for a Judge to sign the originating summons. That notwithstanding, a close examination of Form 2 will reveal that directives are being given to a prospective defendant in an action to do certain things. Some of the directions read as follows – “Let the defendant, within 14 days (or if the summons is to be served out of the jurisdiction, insert here the time for appearance fixed by the order giving leave to issue the summons and serve it out of the jurisdiction) after service of this summons on him, inclusive of the day of service, cause an appearance to be entered to this summons, which is issued on the application of the plaintiff…” “If the defendant does not enter an appearance, such judgment may be given or order made or in relation to him as the court may think just and expedient. The defendant may enter an appearance in person or by a solicitor by handing in the appropriate forms, duly completed, at the Federal High Court at or in the High Court of……..State sitting.” Surely, neither the plaintiff nor his counsel would be expected to issue these directives to the defendant, for the defendant who is at loggerheads with the plaintiff could ignore such directives and to no consequence, since neither the plaintiff nor his counsel could have any power to carryout or enforce the sanctions contained in the directions. It is only a Judge that is conferred with such coercive powers. It, therefore, follows that the Fundamental Rights (Enforcement Procedure) Rules, contemplate that an originating summons issued in the form of Form 2 thereof would be signed by a Judge. What would be the effect if any person other than a Judge signs the originating summons need not bother us here in view of what I intend to state anon.

— Uwais, JSC. Saude v. Abdullahi (1989) – SC.197/1987

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DUE PROCESS FOR REMOVAL OF A STATE JUDGE

This is because any exercise of power to remove a Chief Judge must be based on his:
1. Inability to discharge the functions of office or appointment;
2. The inability to perform the functions of his office could arise from infirmity of the mind or of body;
3. For misconduct or
4. The contravention of the code of conduct.
All these conditions or basis for the exercise of power to remove a State Chief Judge 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.

– Mahmud, JSC. Elelu-Habeeb v. A.G Federation (2012)

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GOVERNOR CANNOT REMOVE JUDICIAL OFFICER WITHOUT RECOURSE TO NJC

In other words, on the interpretation and application of the provisions of Section 153(1)(i); 271(1); 292(1)(a)(ii) and paragraph 21 of Part 1 of the Third Schedule to the Constitution of the Federal Republic of Nigeria 1999, 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 National Judicial Council. That is to say for the purpose of emphasis, the Constitution of the Federal Republic of Nigeria 1999, does not give the Governor of Kwara State acting in conjunction with the House of Assembly of Kwara State absolute power to remove the Chief Judge of the State from his/her office or appointment before the age of retirement without the recommendation of the National Judicial Council.

– Mahmud, JSC. Elelu-Habeeb v. A.G Federation (2012)

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THE EFFECT OF BIAS ON A JUDGE

On the subject of bias, I make bold to say that the allegation once made is a serious one. This in my opinion is more serious because in this instance, the integrity of the Judge is being attacked. The language of bias is indicative of a deliberate action by the Judge to look outside the law and the facts to decide a matter. Accusing a judicial officer of bias is to say that the judicial officer is not fit to take over the responsibility of such great honour and a direct affront to the oath of office that he took on the day he was sworn in. In fact, a Judge is a representative of God on earth and therefore should imbibe the principle of justice and therefore jealously guide this divine calling. To be a judicial officer takes more than knowledge of the law and been intelligent but must more requires good character in both the strict and general sense of the word. An appeal on grounds of bias is a challenge on the character, the integrity of the judicial officer. It is a challenge that takes away from him the covering of decency as a judicial officer. I am going into all that to drive home the point that lawyers should be very careful in accusing a judicial officer of bias except when there is convincing evidence to buttress that. I make bold to say that the time has come for disciplinary action to be taken against lawyers who accuse a Court or Judge of bias which he can not establish. Once a Court has been accused of bias, unfortunately it cannot be taken back and no matter how clean the judicial officer is, there is a dent on his integrity even if it is by one person who earlier held him in high esteem. – EBIOWEI TOBI, J.C.A. Abdul v. State (2021)

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THE JUDICIARY WILL NOT BE INTIMIDATED DESPITE HARASSMENT

The 2nd Respondent presided over a state where anarchy was being supported and prevented Agents of the Government were allowed to malign the Judiciary. The Judges of this Tribunal were harassed, intimidated and made to run under cover. What is the offence of the Judiciary. It is the duty of the Judiciary to disperse Justice and no more. The Judiciary is an arm of Government constituted by the Constitution of the Federal Republic of Nigeria. As stated above the Respondents contributed heavily in the success of this petition. At the pleading stage they made critical admissions. At the trial stage they supplied critical and important documents. Yet at judgment stage the 20 Respondent does not want this Tribunal to stand by justice by stating the truth of the matter. They took the position as was widely reported in the media both print and social that if they loose the case, they will kill the Judges and put the Residence of Kano State on fire. They threatened to bring unrest and banditry to Kano State. We are also citizens of this country in Kano to discharge our lawful duties. We have not committed any offence by performing our duty of adjudication. My message to the bandits in politics who want to take power by force is that the Judiciary cannot be intimidated. The Judiciary will never shy away from justice. Every Judge is a Soldier of justice, we are blessed with the courage to call a spade a spade and to do justice according to the law without fear or favour. Where a party purport to have his eyes on the Judiciary and remove same from his case, the Judiciary will still do its work. You remove your eyes from your case, you abandoned your case and concentrated on distracting yourself by having your jaundiced eye on the Judiciary. The Judiciary as represented by the Honourable Judges will concentrates on their duty of adjudication and put their own eyes on the law and justice. All judicial activities must necessarily and with the final decision of the Court. This is called a judgment. Upon the judgment of the Court parties can only acknowledge the decision of the Court, accord it respect and if not satisfied, go on appeal. A party who looses a case or anticipates the loss of his case can only prepare to appeal against the decision of the lower Court or prepare to appeal. This is what is obtainable in a civilised society. Kano State as we all know is a cradle of civilisation. No party on the account of loosing a case or on the basis of speculation of the possible loss of a case threaten to go an rampage against the Court and Honourable Judges. It is wrong to threaten the entire polity of Kano State with violence. A party must not threaten terrorism and mayhem on the people. The decision of the court must not be taken personal as to warrant an attack and violence against the Judiciary Functionaries as threatened by the Agents of the 2nd and 3rd Respondents. I use this opportunity to condemn the gang of Red Cap wearers who like a violent and terrorist cult chased us out of Kano and put us in the fear of our lives. We believe that only Allah is the giver of power. Those who believe in Allah must bow to his will and submit to the authority of Governmental power. Resort to anarchy, violence and killing can never be a source of lawful power. Threatening to put Honourable Judges in the danger of their life as done in Kano by some disgruntled bandits parading as politicians is hereby condemned.

– Benson Anya, J. APC v INEC & Ors. (EPT/KN/GOV/01/2023, 20th Day of September, 2023)

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A JUDGE IS EXPECTED TO BE STRAIGHTFORWARD IN HIS JUDICIAL EXERCISE

A Judge by the nature of his position and professional calling is expected to be straightforward, upright, diligent, consistent and open in whatever he does in court and in any other place of human interaction and human endeavour that he happens to find himself. This is because his character as a Judge is public property. He is the cynosure of the entire adjudication in the court, and like caesar’s wife of Ancient Rome, he is expected to live above board and above suspicion, and he must live above board and above suspicion, if the judicial process should not experience any reverse or suffer any detriment. A Judge should know that by the nature of his judicial functions, he is persistently and consistently on trial for any improper conduct immediately before, during and immediately after the trial of a case. In Bakare v. Apena and others (1986) 4 NWLR (pt. 33) 1, Obaseki, JSC said that “a trial Judge ought to know that he is on trial for any improper conduct during the trial of a case before him and immediately thereafter”. By his judicial functions, a Judge is expected to hold the balance in the litigation process and he must be overtly seen as holding the balance evenly.

— Niki Tobi, JCA. Nnamdi Eriobuna & Ors. V. Ikechukwu Obiorah (CA/E/77/99, 24 May 1999)

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JUDGES ARE TO BE CURRENT WITH THE TIMES

Gbadamosi v. Kabo Travels Ltd (2000) 8 NWLR (Pt. 668) page 243 at paragraphs 288/289, it was held thus:- “Judges are required to keep abreast of time and not to live in complete oblivion to happenings around them. They are to keep pace with the time.”

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