NATIONAL JUDICIAL COUNCIL V. HON. JUSTICE YA’U IBRAHIM DAKWANG & ORS (2019)

Background

This appeal concerned the validity of an interlocutory ruling of the Court of Appeal and the scope of appellate discretion in allowing a litigant to introduce fresh legal issues and amend pleadings. The first respondent, Hon. Justice Ya’u Ibrahim Dakwang, was a judge of the Plateau State High Court and was appointed Acting Chief Judge following the political and judicial crisis arising from the purported impeachment of the then Governor of Plateau State, Chief Joshua Dariye, and the removal of the then Chief Judge, Hon. Justice Lazarus Dakyen.

The National Judicial Council (NJC), the appellant, constituted a committee to investigate whether judicial officers involved in the events had committed misconduct. Following the investigation, the NJC found Justice Dakwang guilty of misconduct, suspended him and recommended his compulsory retirement. Justice Dakwang commenced an action at the Federal High Court challenging his suspension and proposed removal. The Federal High Court dismissed his claims on 22 October 2007.

Justice Dakwang appealed to the Court of Appeal and subsequently filed an application seeking leave to raise fresh issues, including alleged violations of his right to fair hearing and the alleged unconstitutional participation of members of the investigative panel and certain legal practitioners in the NJC meeting at which the decision was taken. He also sought leave to amend his statement of claim so that it would reflect the evidence and issues emerging from the proceedings.

Issues

1. Whether the Court of Appeal ruling was a nullity because one of the justices who participated in delivering or concurring in the ruling did not hear the application.
2. Whether the Court of Appeal exercised its discretion judicially and judiciously when it granted leave to raise fresh issues and amend the statement of claim on appeal.

Preliminary Objection

The first respondent challenged the competence of the appeal, arguing that the notice and grounds of appeal were defective, that some grounds required leave because they involved facts or mixed law and fact, and that the issues formulated did not properly arise from the grounds. The Supreme Court rejected the objection. It held that the appeal was directed against the ruling of the Court of Appeal, not the judgment of the Federal High Court. Therefore, the use of the descriptions “plaintiff” and “defendant” rather than “appellant” and “respondent” was a mere misnomer that did not invalidate the appeal.

The Court further clarified that a single ground of appeal should not allege both error in law and misdirection in fact because those concepts are distinct and mutually exclusive. However, issues may be distilled from more than one ground where the issues genuinely reflect and substantiate those grounds. Once competent issues have been formulated, arguments are based on the issues, while the grounds of appeal provide their foundation.

Ratio Decidendi

The Supreme Court held that the Court of Appeal ruling was not a nullity. Section 294(2) of the Constitution permits a justice who did not sit during the hearing to pronounce or read the opinion of a justice who did participate. More importantly, section 294(3) provides that the decision of a multi-judge court is determined by the opinion of the majority. The Court distinguished cases in which a trial panel changes while oral evidence is being taken, because credibility and demeanour may then be affected, from appellate proceedings determined substantially from the record.

Where an appellate judge who did not hear the application improperly contributes an independent opinion, that circumstance may amount to an irregularity, but it does not automatically destroy the valid majority decision. The opinions of the justices who heard the application and constituted the majority remained effective. The extraneous contribution could be severed without invalidating the ruling.

The Court also held that pleadings bind both the parties and the court. A court cannot base its decision on facts that were not pleaded. Nevertheless, amendment of pleadings should generally be allowed where it is necessary to determine the real controversy, including at the appellate stage, unless it would cause injustice, surprise, embarrassment, irreparable prejudice, or demonstrate mala fides.

Court Findings

The fresh issues sought to be raised by Justice Dakwang involved substantial questions of law, particularly fair hearing and the constitutional validity of the NJC procedure. The Supreme Court held that an appellate court may permit a fresh issue where it is a substantial legal question and no further evidence is required, especially where refusing permission could occasion a miscarriage of justice. The evidence and documents already on the record sufficiently connected the proposed issues with the dispute.

Judicial discretion was defined as the power of a court to decide according to judgment, fairness, legal principles and the circumstances of the case. An appellate court may review the exercise of discretion, but it should not interfere merely because it might have reached a different conclusion. Interference is justified only where the discretion was exercised mala fide, arbitrarily, illegally, on irrelevant considerations, without regard to material matters, or contrary to the ends of justice. No such defect was established in this case.

Conclusion

The Supreme Court unanimously dismissed the appeal and upheld the Court of Appeal’s ruling granting leave to raise fresh issues and amend the statement of claim. The Court made no order as to costs, directing that the parties bear their respective costs.

Significance

The decision is significant for Nigerian appellate practice. It confirms that a change in the membership of an appellate panel does not necessarily render a decision void where the matter is resolved from the record and a valid majority opinion exists. It also reinforces the distinction between nullity and irregularity in judicial proceedings. In addition, the judgment restates the liberal approach to amendments designed to resolve the real dispute, while preserving the court’s power to refuse amendments that cause prejudice. Finally, it explains that fresh issues of substantial law may be entertained on appeal in exceptional circumstances, particularly where no new evidence is needed and doing so would prevent a miscarriage of justice.