ISSUE THREE: WHETHER HAVING REGARDS TO THE EXPRESS AND UNAMBIGIOUS PROVISION OF SECTION 188(5) OF THE 1999 CONSTITUTION AS AMENDED, THE THIRD RESPONDENT AS THE ACTING CHIEF JUDGE OF TARABA STATE WAS COMPETENT TO HAVE PERFORMED THE FUNCTION OF THE CHIEF JUDGE OF TARABA STATE UNDER SECTION 188(5) OF THE 1999 CONSTITUTION AS AMENDED. At the lower Court, His Excellency, Alh. Sani Abubakar Danladi as Plaintiff contended that the 3rd Respondent (Acting Chief Judge) was not competent to have appointed a Seven Man Investigative Panel pursuant to Section 188(5) of the 1999 Constitution (as amended). It is not In dispute that at the material time when the 3rd Respondent appointed the Seven Man Investigative Panel, she was the acting Chief Judge of awaiting confirmation as substantive Chief Judge. She was therefore not the Chief Judge within the contemplation and meaning of Section 188(5) of the Constitution. The Constitution used the word “Chief Judge” not “acting Chief Judge”. The law is settled that in construction of a statute the express mention of a thing or person excludes the other not mentioned. See the case of BUHARI VS YUSUF (2003)6 SCNJ PG344 at 360. In the case of DAPIALONG VS DARIYE (2007) 8 NWLR (PT 1036) 239 AT 239-330 PARAS H-A, this Honorable Court per AKHAAS JCA held that where the Constitution refers to the Speaker of the House and not Speaker Pro-tempore as a person who shall request the Chief Judge to appoint a panel, the request from the person acting as Speaker pro-tempore is not within the contemplation of the Constitution. In his words: “Another anomaly in the exercise is that Hon. Michael Dapialong was made Speaker Pro Tempore was also one of those who signed the impeachment notice. The one-third of the members required to sign the notice does not include the Speaker as envisaged by Section 188(2) even the request to the acting Chief Judge to constitute the panel to investigate the allegation was not made by the appropriate authority known to the constitution. The request should have been made by the Speaker and not somebody tagged ‘Speaker Pro Tempore’…” His Excellency, Alh. Sani Abubakar Danladi through his learned Senior Counsels submitted that since the Constitution expressly mentioned “Chief Judge” it will not be the function of the Court to insert “acting Chief Judge” as that will amount to a judicial amendment of the Constitution. His Excellency, Alh. Sani Abubakar Danladi was guided by the Supreme Court judgment of OLOWU VS ABOLORE (1993) (6) SCNJ pg 19-20 paras 40 where the Supreme Court held; “It is not the function of the court when construing statutes to supply omissions therein. See Customs Vs Barau (1982) 10 S.C 48. It is one of the cardinal rules of interpretation to avoid judicial legislation and avoid nonsense of the statutes in order not to defeat the manifest intention of the legislation. See Osho vs Phillips (1972) 4 S.C 259”. His Excellency, Alh. Sani Abubakar through his Senior Learned Counsel submitted that if the framers of that Constitutional provision had intended to give serious issue to acting Chief Judge, it will expressly said so. Even in the proceedings of the debate giving birth to that provision, it had intentionally refused to give that sensitive duty to someone who is acting because of the obvious fear that the an acting Chief Judge who wants to be confirmed as the substantive Chief Judge of the state is more likely to be cajoled, intimidated and harassed by the legislature and executive who have the mandate of confirming his appointment. Thus, it was seen as safer not to add the words “or Acting Chief Judge” to that provision. It is therefore the submission of His Excellency Alh. Sani Abubakar Danladi that the 3rd Respondent been an Acting Chief Judge at that material time awaiting confirmation as Chief Judge under section 185(5) to have appointed a Seven Man Panel to investigated the allegation of gross misconduct against the Appellant (His Excellency Alh. Sani Abubakar Danladi). It is the submission of His Excellency, Alh. Sani Abubakar Danladi through his Senior Learned Counsel Yunusa Ustaz Usman SAN that the appointment by the acting Chief Judge of Taraba State under Section 185 (5) was a nullity and the learned trial Judge of Taraba State High Court was in error to have held that Section of the Constitution was complied with in the impeachment of the Appellant (Alh. Sani Abubakar Danladi). His Execellency, Alh. Sani Abubakar Danladi through his Senior Learned Cousel accordingly urge the Court of Appeal to allow this appeal based on this issue and declare the act of appointment of the Seven Man Panel by the 3rd Respondent (Acting Chief Judge) as unconstitutional, null and void.
Posted on: Sun, 16 Jun 2013 11:07:45 +0000
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