The Story

K.S.J.S.C V. Tolani [2019] 7 NWLR (Pt. 1671) 382

Miss Yetunde Zainab Tolani was employed by the Kwara State Judicial Service Commission (“KSJSC” or “the Commission”) as a Magistrate Grade II by a letter of appointment dated 23/12/2004. Shortly after her employment, the Commission received a petition from one Abdul-Rasaq Tunde Raji alleging that Miss Tolani misrepresented her marital status by stating in her application form that she was single whereas she was married. The Commission forwarded the Petition to her for her reaction. She denied the allegation, maintaining that she was single. The Commission disbelieved her and consequently terminated her appointment by its letter of 8/2/2005.

The Legal Battle

Aggrieved, Miss Tolani sued the Commission, its Chairman, Secretary and the Attorney General of Kwara State claiming re-instatement and all entitlements due to her. The trial Court delivered Judgment on 15/1/2007 wherein it held that the withdrawal of appointment of Miss Tolani as a Magistrate Grade II on Grade Level 10 with the Kwara State Judicial Service Commission was not unlawful and that Miss Tolani was entitled to only damages and, as such, not entitled to a re-instatement. The trial Court awarded her one month salary in lieu of notice.

Dissatisfied, Miss Tolani appealed to the Court of Appeal which allowed her appeal by its Judgment delivered on 20/1/2009. The Court of Appeal made an Order accordingly re-instating her as Magistrate Grade II and further granted her all entitlements due to her as claimed.

Aggrieved with the decision of the Court of Appeal, the Commission (and others sued alongside) appealed to the Supreme Court. It was the argument of the Commission that Miss Tolani was removed not on the ground of misrepresentation of her marital status but on the ground that she lied on oath, the application form having been attested to by a Commissioner for Oaths.

Eko, JSC would have none of that, and did not mince words at all. His Lordship considered the position of the Commission as ‘very unreasonable” and came down heavily on the Commission and all the players involved:

“The Respondent’s appointment as a Magistrate was terminated on the ground that she lied on oath in her application Form, Exhibit 9, wherein she stated that she was “SINGLE” for her marital status. The only basis for the finding by the Appellant that the Respondent lied on oath in Exhibit 9 was the unsubstantiated allegation contained in an anonymous petition authored by a faceless character named “Abdul-Rasaq Tunde Raji”, that the Respondent misrepresented her marital status in Exhibit 9. The JSC, the Appellant, through her Secretary, the DW1, admitted in his testimony that marital status of an applicant for the position of Magistrate was not a material fact for consideration for such appointment. The Appellant nonetheless relied on such irrelevancy, by their own admission, to terminate the appointment of the Respondent as a Magistrate. In so doing, they jettisoned the very basic rule of common sense or logic that what is alleged without proof can be denied without proof. Sections 134(1) and 135 (now Sections 131(1) and 132) of the Evidence Act, 2004 placed the burden of proving a fact asserted on the party alleging it. It is most preposterous and very perverse for the Appellant in their decision to terminate the Respondent’s appointment to rely on the unfounded rumour peddled by an anonymous petitioner, Abdul-Rasaq Tunde Raji. That is what made their decision very unreasonable, particularly in the face of the undiscredited evidence marshaled by the Respondent in her defence, even though she was under no obligation to rebut what had not been proved or substantiated against her. The JSC had definitely let down not only the Respondent, but the entire body of the Magistrates holding their appointment and discharging their functions under it, who fervently looked up to their employer for support and protection in their arduous and hazardous lines of duty.”

Mary Peter-Odili, JSC also explained that the allegation of lying on oath was a criminal offence which ought to have been dealt with according to law and not with levity or in a simplistic manner as was done. Her Ladyship said:

“…There is no escaping the fact that the complaint by the accusers or Appellants must be ventilated in public wherein the Respondent would be assured of a fair trial and the necessity for prior judicial determination before the termination or withdrawal of the service could be visited on her as what she is accused of in the matter of lying on oath is a commission of a criminal offence and it must be dealt with according to law.”

Aka’ahs, JSC had to add to the chastisement of the Commission as follows:

“The Appellants had no justifiable reason for terminating the appointment. The decision taken by the Kwara State Judicial Service Commission smacks of petty mindedness. She was not employed to superintend a novitiate and so the action taken by the Appellants was clearly illegal.”

On the whole, the Supreme Court dismissed the appeal on 1/2/2019, affirming the decision of the Court of Appeal. The apex Court held that the employment of Miss Tolani is one braced with statutory flavour (by virtue of Section 197(1)(c) of the 1999 Constitution and Part II of the Third Schedule thereto, Sections 4 and 8 of the Criminal Procedure Code Law of Kwara State 1994) and so entitles her to an order for re-instatement, together with other entitlements as claimed.

Judicial Institutions must step up

It is indeed saddening that some of our institutions of Government, especially an institution attached to the judiciary such as the Kwara State Judicial Service Commission could go so low in failing to uphold the expected standards in handling affairs of this nature. Worse still, the Commission had to spend tax payers money in pursuing a baseless appeal up to the Supreme Court.

Recently, in Thomas v. F.J.S.C [2019] 7 NWLR (Pt. 1671) 284, the former President of the Court of Appeal laid a complaint at the Federal Judicial Service Commission against a former Chief Registrar of the Court of Appeal, Bode Thomas, for insubordination and misconduct. The allegations included unilaterally fixing his salary contrary to the regulations, recruiting several junior staff without clearance from the President of the Court of Appeal and approving foreign trips for some staff of the Court of Appeal without the approval of the President.

The Federal Judicial Service Commission set up a panel to investigate the huge allegations. The President of the Court of Appeal who laid the complaint sat with the Commission throughout the deliberations which culminated in a decision for the compulsory retirement of Bode Thomas. Mr. Thomas challenged the decision of the Commission up to the Supreme Court for breach of fair hearing. The apex Court upheld his contention holding that the proceedings of the Commission together with the decision reached amounted to a nullity for failure to adhere strictly to the rules of natural justice. The former President of the Court of Appeal ought not to participate in the investigation proceedings of the Committee in the manner he did.

The opportunity to consider the merits of the heavy allegations levelled against the former Chief Registrar was disgracefully lost. Galinje, JSC was displeased. His Lordship lamented:

“Nigerian Judiciary is the branch of the Government of this country that is invested with power to apply the law of the land for the preservation of the rights of citizens and protect their lives and properties. Those in charge of affairs in the country must position it as a mirror to other arms of government. A situation where its affairs are conducted with reckless abandon does not portray the institution as a citadel of justice.”