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This matter was initially filed on the 4th January, 2011 at the High Court of Bauchi State in Suit No. BA/01/2011 by the claimant challenging the termination of his employment as Chief Magistrate Grade 1. The claimant’s appointment was terminated on the 30th of December, 2010. Consequent upon the 3rd Alteration to the 1999 Constitution of the Federal Republic of Nigeria which vested all employment matters to this court, the said Suit No. BA/01/2011 was transferred to this court on the order of transfer by the hand of Hon. Justice M.A. Sambo of the Bauchi State High Court on the 21st October 2011. The said transfer was consequent to a preliminary objection raised by the respondents” counsel that the State High Court was divested of jurisdiction in labour and employment matters by the provisions of Section 254(c) of the 1999 Constitution as amended. The said Suit No. BA/01/2011 was given Suit No. NICN/ABJ/77/2011. When the suit came up for hearing, , this court observed that the Bauchi State High Court had no provision under its enabling law or rules of court to transfer a suit to the National Industrial Court. As a matter of fact, the order of transfer did not refer to any enabling law which the Bauchi State High Court relied on to transfer the said suit to this court. Faced with this challenge, the claimant opted to withdraw the said suit which he did on the 13th February, 2012 and re-filed same on the 14th February, 2012 which is now Suit No. NICN/JOS/07/2012, the present Suit. The claimant’s claim is for:- (a) A declaration that the termination of the claimant’s employment vide a letter of termination dated and effective from the 30th December, 2010 is unconstitutional, illegal and null and void. (b) A mandatory injunction directing the 1st respondent to reinstate, promote and place the applicant in the same position with his colleagues who are still in the service and which he would have been but for the purported termination. (c) An order directing the respondents to pay the applicant forthwith all his salary, entitlements, benefits and perks attaching to his office from the date of the purported termination of his appointment. (d) A perpetual injunction restraining the respondents either by themselves, agents, servants or privies from interfering with the claimant’s judicial functions, privileges and or employment on account of the proceedings of 15th December, 2010. (e) The cost of this action. Attached to the complaint is a Statement of Facts, Claimant’s Written Statement on Oath, List of Witness, List of Documents to be relied on at the trial including Records of Proceedings of case No. CMC VII/310/2010. In reaction, the respondents through their counsel Aliyu Bin Idris, the Director of Civil Litigation, Ministry of Justice, Bauchi, entered a conditional appearance dated 23rd February, 2012 but filed on the 28th February, 2012. The respondents’ counsel equally filed a preliminary objection dated 23rd February, 2012 but filed on 28th February, 2012, which was later withdrawn and consequently struck out on 13th March, 2012. The respondents also filed a Statement of Defence, List of Documents to be relied upon at the trial and Witness Written Statement on Oath. The case of the claimant as can be gleaned from the Statement of Facts is that the claimant was an employee of the 1st and 3rd respondents from 20th February, 1998 when he was employed as a Magistrate until 30th December, 2010 when his employment was unlawfully determined. The claimant avers that from February 1998 when he was employed as a Magistrate, he immediately took oath of office and proceeded to serve the State in the said office. That his appointment notification dated 20/02/1998 offered him a pensionable appointment which was dated 4/09/2000. The claimant avers that he served efficiently and honestly and as a result enjoyed promotions and rose to the rank of Chief Magistrate Grade one. That between February 1998 and December 2010 he was transferred to different stations such as Toro, Tafawa Balewa, Bogoro and Bauchi Local Government Areas. That throughout the years he was in Service, he performed his official duties with utmost good faith, honesty and dedication, as he was never found wanting in that he was never queried, warned or subjected to any disciplinary action. That while serving at Bauchi he was assigned to Chief Magistrate Court 5 and was also overseeing Chief Magistrate Court 7. The claimant averred further that while sitting as Chief Magistrate Court 7, a case being prosecuted by the State Security Service (SSS) was brought to his court on 11/12/2010. That on arraignment of the accused persons, the prosecuting counsel, G.B. Longtsen Esq. applied that the accused persons be remanded in the SSS custody, and after considering the merits of the application, the claimant ordered that the accused persons be remanded in the SSS custody. That on the return date which was 15th December 2010, the accused persons were brought to court and upon the plea of guilty of the 1st accused person the claimant in his judicial wisdom decided to order that a summary trial be conducted. The claimant stated that the prosecuting counsel then applied to withdraw the charges against the 2nd accused person; consequently, the 2nd accused person was discharged. After the summary trial the 1st accused person was convicted and Sentence to eighteen months imprisonment with an option of fine. Continuing, the claimant stated the prosecuting counsel, dissatisfied with the findings and decision of the claimant against the 1st accused person, properly filed an appeal to the High Court of Justice, Bauchi State, on the date the case was decided. The claimant further averred that on 23rd December 2010, the Secretary of the 1st respondent on telephone orally told him that the Chief Judge wanted to see him on 24th December, 2010 without given him any reason. That on the said 24th December 2010, he went to see the Chief Judge only to discover that he was appearing before the 1st respondent. That upon his appearance, the 1st respondent apologized to him for not formally inviting him to the meeting and directed the Secretary of the 1st respondent to serve him with an invitation letter. That he was later that day served with an invitation letter demanding that he explain the trial he conducted in case No. CMCVII/310/2010. The claimant averred that he narrated how he conducted the proceedings in question. That on 30th December, 2010 the claimant appeared before the 1st respondent and was asked why he sentenced the 1st accused to two years rather than ten years to which the claimant explained that he was guided by the criminal procedure (punishment on summary conviction) Order NWLN No. 62 of 1966 as applicable in Bauchi State. The claimant averred further that on the 31st December 2010, he was served with a letter of termination dated 30th December 2010, a day after he appeared before the 1st defendant. To the claimant, in his capacity as a Chief Magistrate exercising a judicial act, he is entitled to immunity for judicial acts in the exercise of his powers whether of criminal or civil jurisdiction. The claimant pleaded the immunity or protection of judicial officers in Section 377 (1) of the criminal procedure code and Section 83 of the District Courts Law, Bauchi State 2006. The claimant further averred that his invitation by the 1st respondent to examine and review his judicial act and the subsequent disciplinary proceedings to wit the termination of his employment is contrary to the immunity or protection accorded judicial acts and powers as exercised by him and therefore unlawful, illegal, null and void. To the claimant the termination of his appointment was contrary to the Bauchi State Public Service Regulations 2001 as he was never queried nor accused of any misconduct. The claimant equally averred that the convening of the 1st respondent for the purposes of examining and reviewing his judicial proceedings of 15th December, 2010 which is a power only exercisable by an appellate court, is unconstitutional, illegal, null and void. That the 1st respondent has no power to sit on appeal over the proceedings conducted by him in his judicial capacity. The claimant also averred that he is entitled to his salary and allowances for the period of 1st December, 2010 when same was unlawfully stopped. That since he is without blemish, he is entitled to promotion and placement in the Service equal to his colleagues who are still in Service. The claimant averred also that as a direct consequence of the purported termination of his appointment, he and members of his family have suffered deprivation, hardship, humiliation and opprobrium. The claimant therefore claims against the respondents jointly and severally the reliefs stated in his complaint. In reaction to the Statement of Facts of the claimant, the respondents filed its joint statement of defence dated 19th April, 2012 and filed on the same date. In its Statement of Defence, the respondents denied that the claimant’s employment was unlawfully determined. The respondents averred that some accused persons were arraigned before the claimant for the offences of conspiracy and unlawful possession of fire arms contrary to Section 97 of penal code and Section 3 (1) of the Robbery and Fire Arms Act, 2004. That the claimant decided to try the accused persons and convicted them summarily since the law under which they were arraigned allows for that. That for reasons best known to the claimant he convicted the 1st accused person and sentenced him to 18 months imprisonment with an option of fine of N10,550.00. The respondents averred further that the law under which the accused was tried provides for a minimum sentence of 10 years imprisonment with no option of fine. That immediately after the judgment was delivered, tension heightened in the State metropolis and thus there were imminent signs of breakdown of peace and security. The respondents continued that immediately the security report reached the 3rd respondent, it requested the security personnel to find out the root cause of the tension within the town. According to the respondents, the security report indicated that it was as a result of the judgment of the claimant where he sentenced an accused who was found with illegal possession of sophisticated weapons with an option of fine which the general public believe was a technical way of screening the accused from facing the minimum punishment of his act which is 10 years imprisonment without option of fine. The respondents averred further that upon the receipt of the said security report by the 3rd respondent, a security council meeting was convened to deliberate on the report. That after thorough discussions and deliberations on the matter, the security council found that the act of the claimant was prejudicial to the security of the State and recommended that the matter be referred to the 1st respondent for investigation and necessary action. That the 3rd respondent wrote the 2nd respondent on 17th December, 2010 with Ref. No. GO/SS/SIR/14 to liaise with the 1st respondent to investigate the matter. The respondents further averred that upon receipt of the letter of request from the 3rd respondent, the 2nd respondent conveyed same to the 1st respondent. That the 1st respondent’s Secretary upon receipt of the letter communicated same to its Chairman who directed that a copy be given to the claimant for his comments and to summon an emergency meeting of the 1st respondent for 24th December, 2010 which directives was promptly complied with. The respondents continued that the claimant was invited by the 1st respondent to attend its sitting of 24th December, 2010. That during the sitting of the 1st respondent on 24th December, 2010 when the claimant appeared before it, he was informed of why he was invited which bordered on the security threat caused by the judgment he delivered. That the claimant was fully informed of the complaint put thereto and shown all the correspondences. That the claimant was asked to go to the office of the Secretary to the 1st respondent to sort out and receive all documents he needed in order to respond to the complaint which he did. That the claimant also collected the said case file which was earlier brought to the 1st respondent by the registrar of the claimant. That after the discussions of the 1st respondent with the claimant on the reasons for his invitation and his oral response thereto, the Secretary of the 1st respondent was directed to issue a query to the claimant, which the Secretary did. The respondents further averred that the claimant responded to the query of the 1st respondent through its Secretary on 29th December, 2010, which response was circulated to all members of the 1st respondent. That the 1st respondent not being satisfied with the response of the claimant requested him to make further clarifications and thus invited him to its meeting held on 30th December, 2010 where according to the respondents, the claimant admitted that he abandoned the provisions of the law to execute his personal wishes to the detriment of the security of the State. That after this second invitation of the claimant and his clarification of the issues raised, the 1st respondent found the response of the claimant not to be satisfactory and in clear violation of the rules of Service prejudicial to the security of State and magnanimously terminated his appointment instead of dismissing him. The respondents averred that the entire act of the claimant warrants the taking of disciplinary action against him. The respondents also averred that the claimant is not entitled to any of the reliefs, claims, declarations or injunction stated thereof or any claim at all. The respondents also averred that it will contend at the trial of this suit that the entire suit is incompetent and therefore robbed this court of jurisdiction to entertain same as it is in contravention of the JSC law of Bauchi State 2004, and that the suit is caught up by Section 2 (a) of the public officers (protection) law, Cap. 127, laws of Bauchi State 2007. The respondents therefore urged this court to strike out this suit for want of competence and jurisdiction and/or dismiss same in its entirety for lacking in both substance and merit. In his written statement on oath sworn to by the claimant on the 24th April 2012, the claimant deposed that his name is Emmanuel Sublime Danjuma, adult and a Nigerian citizen of Gwammadaji Village, Tafawa Balewa LGA of Bauchi State. That he was employed by the 1st respondent on behalf of the 3rd respondent on the 20th February, 1998, as a Magistrate. That he served the 1st and 3rd respondents faithfully and diligently throughout the period of his employment. That he was promoted progressively to the rank of Chief Magistrate grade 1 on the 1st September, 2010. That he knows as a fact that the 1st respondent is a creation of statute and empowered to employ, promote and discipline judicial officers, including Magistrates in Bauchi State on behalf of the 3rd respondent. That he also knows as a fact that his appointment, promotions and discipline as a Magistrate are governed by the Bauchi State Public Service Regulations 2001, and other laws. Also, that the 2nd respondent is the Chief Law Officer of the 3rd respondent. He deposed further that following his appointment he served the 3rd respondent as a Magistrate/District Court Judge with utmost good faith, honesty, dedication and diligence in Toro, Tafawa Balewa, Bogoro and Bauchi Local Government Areas. That while serving in Bauchi he was in charge of Chief Magistrate Court No. 5 and overseeing court No. 7 until his purported termination by the 1st respondent. That on the 1st December, 2010, the State Security Service (SSS) arraigned two people on First Information Report (FIR) to wit: John Andrew and Samaila Maikasuwa before him while sitting as Chief Magistrate Court 7 Bauchi. That upon the application of the prosecuting counsel, the case was adjourned to 15th December, 2010 and the accused persons were remanded in the SSS custody. Further, that on the return date, being December 15th 2010, the accused persons were brought to court and upon the plea of guilty by the 1st accused person, he in his judicial wisdom decided to order that a summary trial be conducted as to him same was the justice of the case, and upon the application of the prosecuting counsel to withdraw the charges against the 2nd accused, the 2nd accused was discharged. That this can be seen in the record of proceedings i.e. Exhibit E. That he convicted the 1st accused and sentenced him to eighteen months imprisonment with an option of fine. Also that the prosecuting counsel dissatisfied with the judgment, on the same day (December 15th 2010) appealed against the judgment to the State High Court, Bauchi. That the letter to the registrar of the Chief Magistrate Court No. 7 informing him of a Notice of Appeal and requesting him to forward records of proceedings dated 15th December, 2010 is annexed as Exhibit F. The claimant deposed further that he knows as a fact that in compliance with the request of the High Court of Bauchi State, the registrar transmitted the certified True Copy of the record of proceedings to the State High Court on the 16th December, 2010. That despite the pendency of the appeal against the judgment which he delivered, the 1st respondent’s secretary orally invited him to see the Chief Judge on 24th December, 2010. That upon his appearance in the Chief Judge’s Chambers, on the said date of 24th December 2010, he discovered that he was appearing before the 1st respondent. That the 1st respondent apologized to him for the informal invitation and directed its Executive Secretary to write and serve him with a written invitation. That on the same date 24th December 2010, he was served with 1st respondent’s letter requesting him to explain the general circumstances surrounding the trial proceedings, prosecution by SSS and conviction of the 1st accused and discharge of the 2nd accused person. That in response to the 1st respondent’s request, he wrote to the 1st respondent stating clearly how the accused persons were arraigned culminating in the conviction and sentence of the 1st accused person and the Appeal filed by the prosecuting counsel. That his written response dated 29th December, 2010 is annexed as Exhibit ‘H’. The claimant continued his deposition that in addition to the written response, he appeared before the 1st respondent on 30th December, 2010 where he reaffirmed the proceedings he conducted. That on 31st December, 2010 he was served with a letter dated 30th December, 2010 the same date he appeared before the 1st respondent terminating his appointment. That the 1st respondent never queried him at any material time for any misconduct or crime whatsoever at all material time as a Magistrate/District Court Judge in the service of the 3rd respondent. That at all time material to the matter before hand he was fully exercising a judicial Act or power as a Magistrate. That as a direct consequence of the purported termination of his appointment, he and members of his family have suffered deprivation, hardship, humiliation and opprobrium hence this action. Under cross examination, the claimant answered that he remembered that the offence for which he tried the accused person was for conspiracy under Section 96 of the penal code and Section 3 of Fire Arms Act. He agreed that the Fire Arms Act requires him to try an accused person summarily and that is what he did in this particular case. He equally agreed that the Fire Arms Act provides for 10 years minimum sentence, but that if the trial is done summarily, the law still gives the trial Judge or Magistrate discretion to invoke the summary criminal procedure under the criminal procedure code. That he tried the accused persons under the summary proceedings criminal procedure trial. He also responded that he will be surprised to hear that the criminal procedure code provides that where there is a minimum sentence, he cannot impose any other punishment other than that provided as the minimum. The witness was referred to Section 23 (1) and (5) of the criminal procedure code by counsel to the respondents and asked to read the said provisions in open court which he did. In answer to a question as to whether he was aware of the said provisions, he answered that he did not even advert his mind to Section 23 of the criminal procedure code rather that he relied on the Fire Arms Act which gave him the power to try the accused summarily after a plea of guilty which law also gave him the discretion to invoke the punishment under the Fire Arms Act or as provided under summary trial proceedings. He also agreed that there is a minimum punishment provided if one is using the Fire Arms Act. He denied that all invitations he got from the 1st respondent were in respect of the case he tried. That the first invitation did not disclose any reason why he was invited. He agreed that he honoured the invitation. He denied that when he honoured the invitation he was told why he was invited. That it was after he left that he was told to go and meet the secretary of the 1st respondent. He agreed that there were correspondences between him and the 1st defendant. That the correspondences were all in connection with the case he tried. The claimant answered also that he knows his criminal procedure code very well and that is why he used it in trying the case in question. That he did not use Section 23 (5) of the criminal procedure code because he invoked the provisions of the Fire Arms Act and the Criminal Trial of the Criminal Procedure Code. The claimant also agreed that he is aware of Section 23 (5) of the Criminal Procedure Code. He also answered that one person can be convicted for conspiracy depending on the facts and circumstances more so that the accused admitted committing the offence. There was no re-examination of the claimant by his counsel. Thereafter the claimant closed his case. The respondents also opened its case on the same date immediately after the claimant closed his case by calling its sole witness to adopt his written statement on oath. The respondents’ witness told the court that his name is L.H. Ibrahim, Male, Muslim, Adult and a Nigerian citizen. He deposed that he is the Executive Secretary of the 1st respondent in Bauchi. That he has the consent of the respondents who are his employers to depose to this statement on oath. He deposed that on the 23rd December, 2010 he received a mail from the office of the 2nd respondent conveying a request of the State Security Council pertaining to the claimant, a Chief Magistrate with the Bauchi State Judiciary, requesting the 1st respondent to investigate the judicial act of the claimant in respect of the case of the State v. John Andrew & Anor. Case No. CMCIV/310/2010 decided by the claimant. That in the discharge of his official responsibilities, he forwarded the said mail to the Chairman of the 1st respondent who directed him to make a copy of the letter to the claimant for his comments and to also invite him to appear before the respondent on 24th December, 2010 to comment on the contents of the mail as it affects him. That on the 24th December, 2010 when the claimant appeared before the respondent he made some explanations in response to the contents of the mail earlier made available to him and requested for all other documents in connection there to enable him properly respond to the mail. That as a result the documents were made available to the claimant. The respondents’ witness continued his deposition that the allegations against the claimant is that two accused persons were arraigned before the claimant for conspiracy and unlawful possession of fire arms contrary to Section 97 of the Penal Code and Section 3 (1) Fire Arms Act, 2004. That the claimant decided to try the accused persons and convicted them summarily since the law under which they were arraigned allows for that. That for reasons best known to the claimant he convicted the 1st accused person and sentenced him to 18 months imprisonment with an option of fine of N10, 550.00. That the law under which the accused was tried provides for a minimum sentence of 10 years imprisonment without an option of fine. That immediately after the judgment was delivered, tension heightened in the State Metropolis and thus there were imminent signs of breakdown of peace and security. That when the security report reached the 3rd respondent, it requested the security personnel to find out the root cause of the tension within the town. That the security report indicated that it was as a result of the judgment of the claimant where he sentenced an accused who was found in illegal possession of sophisticated weapons to eighteen months imprisonment with an option of fine which according to the witness, the general public believed it was a technical way of screening the accused from facing the minimum punishment of his act which is 10 years imprisonment without option of fine. The respondents’ witness continued that after thorough discussions and deliberations on the matter, the Security Council found that the act of the claimant was prejudicial to the security of the State and recommended that the matter be referred to the 1st respondent for investigation and necessary action. That the 3rd respondent therefore wrote to the 2nd respondent requesting him to liaise with the 1st respondent to investigate the matter. Upon receipt of the letter of request from the 3rd respondent the 2nd respondent conveyed same to the 1st and 3rd respondent. That the 1st respondent’s secretary (i.e. the witness) upon receipt of the said letter, communicated same to its Chairman who directed that a copy be given to the claimant for his comments and then to summon an emergency meeting of the 1st respondent for 24th December, 2010 which directives he complied with. That the claimant was invited by the 1st respondent to attend its sitting of 24th December, 2010. That during the said sitting of the 1st respondent on 24th December, 2010, the claimant appeared and was informed of the reason for his invitation which bordered on the security threat caused by the judgment he delivered. That the claimant was fully informed of the complaint and was shown all correspondences. The claimant was told to go to the Secretary of the 1st respondent to sort out and receive all the documents he needs in order to respond to the complaint which he did. That after this he the witness in his capacity as the Secretary to the 1st respondent was directed to issue a query to the claimant which he did. That the claimant forwarded his response to the 1st respondent on the 29th December, 2010 through him (the witness). Copies of which were circulated to all members of the 1st respondent. That the 1st respondent not being satisfied with the response of the claimant requested him to make further clarifications and so invited the claimant to its meeting held on the 30th December, 2010, where the claimant admitted that he abandoned the clear provisions of the law to execute his personal wishes to the detriment of the security of the State. That the respondents therefore found the response of the claimant not satisfactory and in clear violation of the rules of service and prejudicial to the security of the State and magnanimously terminated his appointment instead of dismissing him. That the claimant was given fair hearing to wit, he was invited by the 1st respondent to its meeting of 24th December and was issued the complaint containing the allegations leveled against him. That the claimant responded to the allegation against him. That the respondents were not satisfied with the answers and therefore issued the claimant a letter terminating his appointment. That the entire act of the claimant warrants the taking of disciplinary action against him. That the claimant is not entitled to any of the reliefs claimed and urged the court to dismiss his claim in its entirety for lacking in both merit and substance. Under cross examination by the claimants’ counsel, the respondents’ witness answered that he is a qualified lawyer. He also answered that he has never been on the bench. He answered that civil cases are usually filed by counsel who decide which court the counsel want the case to be filed. But that criminal cases are either filed by the Police directly or the cases are assigned through the Chief Registrar to the magistrate Court by the prosecutor. That criminal cases can also be initiated from the Attorney General Chambers, and can also be filed directly to the relevant Magistrate Court. The witness also answered that it is the opposing counsel if any, that challenges the appearance of another counsel in court. The witness answered that on the first sitting of the case in question, there were two accused persons brought to court. That on the second sitting of the court the second accused was not in court. The witness answered that he himself was not present in court throughout the period of the trial. That he only saw the record of proceedings. That the extract to Exhibit “A” was not attached to this document. That he did not know whether the accused person or convict had any notorious criminal record. He agreed that Exhibit “G” was not made available to the claimant because it is a minute of meeting of the commission. That he did not know if the appeal filed against the decision of the claimant was disposed of as at 30th December, 2010, when the claimant’s employment was terminated by the 1st respondent. The witness answered that the 1st respondent did not invite the State Security Service (SSS) that prosecuted the case to tell the 1st respondent how the case was prosecuted because according to the witness the 1st respondent was more concerned about the conviction which they thought was contrary to the Fire Arms Act. That the 1st respondent was not concerned with the general circumstances of the case. That Exhibit “G” is a minute of meeting of the 1st respondent which is administrative in nature. There was no re-examination of the witness. The defendants then prayed to close its case at this point which prayers were granted. The respondents’ counsel in his written address dated 2nd July, 2012 but filed on 3rd July 2012, raised two issues for determination: (1) Whether the conduct of the claimant amounts to a misconduct having regard to the provisions of the Public Service Rules. (2) Whether the claimant had been given fair hearing before his appointment was terminated. Arguing on issue one, counsel to the respondents the learned Director of Civil litigation Bauchi State Ministry of Justice submitted that the claimant while presiding as Chief Magistrate in the case of State v. John Andrew & 1 Other in apparent, negligent and deliberate disregard to the clear provisions of the law decided to convict and sentence the accused person who was arraigned before him to a term of imprisonment not provided for by the law with an option of fine equally not provided for by the law. That the accused persons were charged under Section 3 of the Fire Arms Act of which the minimum sentence prescribed under Section 27 of the law is 10 years imprisonment without an option of fine. That Section 27 (1) provides “Any person who contravenes any of the provisions of this Act specified in paragraph (a), (b) and (c) of this Section is guilty of an offence and liable on conviction: (a) As to any offences under any of the following: (i) Section 3 of this Act to a minimum of 10 years”. That the same law gives the claimant the powers to try the accused person summarily, based on which the claimant tried the accused person. That Section 27 (4) provides: “Any person charged with an offence under the provisions of subsection 1 (a), (b) or (c) of this Section may be tried summarily in any part of Nigeria. Also that Subsection 5 of the same Section provides – “every Magistrate shall without prejudice to any enactment relating to the jurisdiction of any other court of law, shall have and exercise jurisdiction for the summary trial of any person charged with an offence under the provisions of Subsection 1 (a), (b) and (c) of this Section and may impose the penalties prescribed herein not withstanding anything to the contrary contained in any enactment.” That the claimant admitted under cross examination that he knows the position of the Fire Arms Act but insisted that he used his discretion to apply the summary trial procedure under the criminal procedure code. That the claimant equally admitted knowing that the minimum sentence under the Fire Arms Act is 10 years imprisonment without option of fine. That the claimant maintained that position even after being referred to Section 23 (5) of the Criminal Procedure Code which he said he was very much aware of. Learned counsel further reproduced Section 23 (5) of the CPC thus: “The provision of this Section shall not apply in any case where a written law provides a minimum period of imprisonment to be imposed for the commission of an offence”. To counsel, mysteriously the claimant after charging the accused persons and tried them summarily under the Fire Arms Act deliberately and or negligently abandoned the punishment section of the law and went ahead and sentenced the accused person under a different law. That discretion should be used judiciously and judicially and in accordance with the law and not in total and deliberate disregard to the clear and unambiguous provisions of the law. Counsel also argued that this act of the claimant led to the breach of peace and security in the Bauchi Metropolis when it was realized that the accused person was released from custody after meeting the conditions of the sentencing, more so it came at a time of serious security threat/challenges and wanton destruction of lives and property by persons who can simply lay their hands on assorted rifles. Counsel further submitted that the claimant was then issued a query and invited to explain the circumstance that led to the breakdown of peace and order. That the 1st respondent, dissatisfied with the claimant’s response and in exercise of its powers, terminated his appointment in accordance with the provisions of Sections 3, 4, 5 and 6 of the Public Service Regulations. That Section 3 (Misconduct) of the Public Service Rules provides that: “Misconduct is defined as a specific misconduct to the scandal of the Government or to the prejudice of discipline and proper administration of the Government, foul language, insubordination, negligence, falsification….” That Section 5 provides for conduct prejudicial to the security of the State as follows: “Where it is considered that the conduct of an officer is prejudiced to the security of the State…” That Section 6 provided for retirement in public interest as follows: “Notwithstanding the provisions of this chapter, if the service commission considers that it is desirable in the public interest that an officer should be required to be retired from service, it shall retire the officer and the officers’ service shall accordingly terminate on the date as the commission may specify”. Respondents’ counsel therefore submitted that the claimant was clearly negligent when he tried the two accused persons before him under a particular law and mysteriously sentenced one of them under a completely different law when in fact the same law has provided for minimum punishment. To counsel, the conduct of the claimant having regard to current security challenges and wanton disregard for lives and property most a times by unknown gun men, caused serious tension within the metropolis, it took the timely intervention of security personnel to avert total breakdown of law and order after the claimant had released the convict. The respondents’ counsel submitted further that it is trite that a judicial officer has immunity if he is acting under judicial capacity, however, that immunity can be curtailed if at the time the judicial officer acted, did he did not act in good faith citing Egbe v. Adefarasin [1985] NWLR pt. 3. That Section 88 (1) of the High Court law provides as follows: “No Judge shall be liable for any act done by him or ordered by him to be done in the discharge of his judicial duty, whether or not within the limits of his jurisdiction, provided that he at the time, in good faith, believed himself to have jurisdiction to do or order to be done the act in question”. See Karibi – Whyte JSC at pp. 16 – 17. To counsel, since the claimant admitted that he knew all the relevant laws but chose to do what he wanted, he is not entitled to the defence of judicial immunity. The respondents therefore urged this court to resolve this issue in its favour and hold that the conduct of the claimant amounts to a misconduct having regard to the provisions of the Public Service Rules. On issue two, learned counsel to the respondents contended that fair hearing means a trial conducted according to all the legal rules formulated to ensure that justice is done to the parties citing Atejioye v. Ayeni [1998] 6 NWLR pt. 552 p. 132 at 135 R.5. Counsel therefore submitted that the claimant admitted in his written statement on oath that when he was initially invited he was not informed of the reason for the invitation but that the 1st respondent apologized and instructed that he be notified in writing and that was done. That the claimant responded to the allegations against him but that the 1st respondent was not satisfied with his responses and therefore terminated his appointment. That under the principles of fair hearing, the law only requires that a party be heard but not necessarily be believed, citing Osakew v. Nigerian Paper Mill Ltd [1998] 10 NWLR pt. 568 p. 1 at 3. In that case the Supreme Court held that where an employee is confronted with an allegation of crime by the employer and the former is given an opportunity of explaining himself, then he cannot later turn around to say that he was not given fair hearing. Furthermore, that the Judicial Service Law provides under Section 20 as follows – “Notwithstanding anything contained in any other law, all acts done or purported to be done, or omitted to be done, or proposed to be done by the Judicial Service Commission of the State shall be deemed to have been lawfully done under the law and shall have effect as if so done”. The respondents’ counsel therefore submitted that by the above cited law, this court should deem the act of the 1st respondent to have been lawfully done under the law and shall have effect as if so done. That is, this court should validate the said act of the 1st respondent. This court was therefore urged to resolve the second issue also in favour of the respondent and hold that the claimant has been given fair hearing. The respondents’ counsel finally urged this court to disregard the allegations of the claimant and resolve the issues formulated in favour of the respondents and hold that the claimant’s appointment was lawfully terminated. The claimant’s final written address is dated 6th July, 2012 but filed on 12th July, 2012. The claimant on his part raised the following issues for determination: (1) Whether the claimant’s employment has statutory flavor, and if so, whether the Bauchi State Public Service Regulations, 2001 were duly observed in terminating his appointment. (2) Whether the 1st respondent can exercise any judicial power to examine and review claimants’ judicial act in Case No. CMCVII/310/2010, State v. John Andrew and 1 other. (3) Whether the claimant enjoys judicial immunity under the law by virtue of his appointment as a Magistrate and having acted judicially in the matter beforehand. (4) Whether or not the claimant is caught up in the web of the said provision of Section 2 (a) of the Public Officers (Protection) Law Cap. 127 Laws of Bauchi State, 2007. (5) Whether S.20 of Bauchi State Judicial Service Committee Law Cap. 75 of 1983 is not inconsistent with the provisions of Section 6 (6) (b) of the Constitution of the Federal Republic of Nigeria 1999 as amended and whether it can avail the 1st respondent against prosecution. On issue one, the claimant’s counsel to the claimant submitted that the claimant was employed by the Bauchi State Judicial Service Commission in 1998. That his appointment was confirmed wherein it was clearly stated that he will be subject to all conditions of service as provided under the Civil Service Rules and other Government Regulations of Bauchi State, thus, bringing the claimants’ employment under the purview of the Bauchi State Public Service Regulations which is a subsidiary legislation made pursuant to the constitutional power conferred by Section 204 of the 1999 Constitution as amended. That the said Section gives the Governor of a State power to make rules for the purpose of discharging the functions of commissions created under S. 197 of the 1999 Constitution as amended. To the claimant, the position of the law is that a contract of service with statutory flavor is one where the contractual relationship between employer and employee is governed by a statute or regulations derived from the statute. The claimant referred to the case of Shitta-Bey v. Federal Public Service Commission [1981] 1 SC 40. That our courts have held severally that any action to terminate the employee’s service in such a relationship must comply strictly with the statute or regulation governing his employment otherwise the termination will be null and void and the employee will be entitled to remain in his employment, citing Attorney-General, Cross River State v. Okon [2007] AFWLR pt. 296, 843 at 854. Furthermore, that in ANAM V. BENUE STATE JUDICIAL SERVICE COMMISSION [2006] ALL FWLR (pt. 296) 843 at 854, it was held that where the contract of service is governed by the provisions of a statute or where the conditions of service are contained in regulations derived from statutory provisions as in the instant case, they must invest the employee with a legal status higher than the ordinary one of master and servant. They accordingly enjoy statutory flavor. The claimant’s counsel submitted that in the light of the foregoing, the Bauchi State Public Service Regulations 2001 (as revised) is the subsidiary legislation that regulates the condition of service of public servants in the State and the claimant in this case and so the Civil Service rules have statutory flavour. That in Shitta-Bey v. Federal Public Service Commission, Idigbe JSC said, “These civil service rules therefore, in my view have constitutional force and they provide a legal status which makes the relationship with the respondent and the government although one of master and servant certainly beyond the ordinary master and servant relationship”. Also that in Olaniyan v. University of Lagos & Anor [1985] 2 NWLR 559, Oputa JSC held: “The present appellants do not hold their office at the pleasure of anybody. They hold the same under provision of the University of Lagos Act No. 3 of 1967. The University of Lagos and University Council are both creatures of statute and cannot all except within and under the power conferred on them by the relevant statute, here the University of Lagos Act… The University of Lagos Act No. 3 of 1967 was made pursuant to S. 69 (1) of the 1963 Constitution”. Counsel then submitted that in the like manner the claimant in this case does not hold his appointment at the pleasure of the respondents but according to the rules governing his employment, namely: The Bauchi State Public Service Regulations and nothing else. To the claimant, the law is settled that for a claimant to succeed in an action for a declaration that the respondent’s act in terminating the claimant’s appointment is illegal and a nullity, the claimant must show: (i) That he is an employee of the respondent. (ii) How he was appointed and the terms and conditions of his appointment. (iii) Who can appoint and remove him, and (iv) The circumstances in which his appointment can be terminated, referring to Morohunfolu V. Kwara State College of Technology [1990] 4 NWLR (pt. 445) 525 at 526. That in the instant case, (i) There is uncontroverted evidence in exhibit A1 and B wherein the claimant was appointed by the 1st respondent as Magistrate in the service of the 3rd respondent. (ii) Chapter 2 Section 1 (6) (a) of exhibit A (the Public Service Rules of Bauchi State as applicable to the claimant) unambiguously states that the claimant’s appointment will be by letter, and that the provisions of the regulations shall apply to the claimant. (iii) Chapter 4 of the Regulations provides for the procedure the 1st respondent is to exercise disciplinary action on the claimant. (iv) By Chapter 4 of the Regulations, disciplinary procedure can only be initiated for misconduct as defined under the rules. That in line with the above, an employment with a statutory flavour can only be terminated in accordance with the rule of engagement and with valid and justifiable cause shown by the employer, referring to Article 4 of the International Labor Organization Instrument on Termination of Employment Convention (No. 158). Furthermore that in ISIEVWHORE V. NEPA [2004] 1 NLLR (pt. 1) 99, it was held that an employment with a statutory flavour must be terminated in the way and manner prescribed by the relevant statute, and that any other manner of termination inconsistent therewith is a nullity, citing also Olufeagba v. Abdul-Raheem [2010] ALL FWLR (pt. 512) 1033. Continuing, the claimant’s counsel argued that in Olaniyan v. University of Lagos (Supra) the Supreme Court reaffirmed this position thus: “Once there are grounds for removal of an Appointee…the University Council must follow the statutory procedure for removal and if it acts otherwise, the aggrieved appointee is entitle to seek a declaratory judgment declaring the removal null and void and also an order of injunction and in such case, the court has an unfettered judicial discretion to grant such declaration.” That in the instant case, the rule of engagement is as approved in Chapter 4 of Exhibit A which lists 5 conditions wherewith an employee may be disciplined. The procedure of disengagement is also provided under Section 3 of Chapter 4 particularly Rules 94, 95, 96, 97 and 98. That the claimant in this case was orally asked to appear for no stated reason. The accusation of any misconduct against him was not alleged nor a query served on him in accordance with the rules. More importantly, that the claimant acted judicially, and the case was already on appeal, which provided the respondents a window to right whatever perceived wrong the claimant had done in the course of so acting judicially. Also that in acting outside the purview of the enabling regulations, the respondents were, in fact judge and executioner on the matter, citing Federal Civil Service Commission v. Laoye [1968] 1 WLR 689 where the disciplinary action initiated, investigated and determined by the Ministry of External Affairs, the court declared such a situation as intolerable in our concept of justice and clearly a breach of the rules of natural justice. The claimant’s counsel further submitted that to underscore the respondents’ want of good faith in this matter, the Sections quoted to justify the termination of claimant’s appointment under the constitution, the Bauchi State Judicial Service Commission Law and the Public Service Regulations 2001 are misleading, unspecified and ambiguous since no specific constitutional or other provision of the law is alleged to have been infringed or breached. That no specific reference was made to a section of the Bauchi State Judicial Service Commission Law as alleged in the letter terminating the claimant’s appointment. That the reference to the provisions of Sections 3, 4, 5 and 6 of the Public Service Regulations in the letter did not specify which of the chapters of the Public Service Regulations is being referred since the regulations are not divided into Sections but Chapters. Therefore that the Sections of the Judicial Service Commission Law and the 1999 Constitution referred to in the purported letter of termination did not specify any offence or misconduct to warrant the termination of claimant’s appointment. Continuing, that even under Rule 98 of the Regulations, it requires that the offence which the officer has committed must be stated and the likely penalty must be specified in a letter of query issued to the officer. That this was not done in the case of the claimant which means the act of the respondents is equivalent to convicting an accused for an offence not known to law and so is a clear breach of the claimants’ right to fair hearing under Section 36 of the 1999 Constitution as amended. Concluding on this issue, learned counsel submitted that as shown above, the termination of contract of employment with a statutory flavour requires strict adherence to the procedure stated in the statute if it is to be valid in law, citing Iloabachie v. Phillips [2003] FWLR (pt. 115) 726, United Calabar Co. v. Elder Dempster Lines Ltd [1972] ALL NLR (pt. 2) 244. Counsel therefore urged this court to hold that the letter of disengagement dated 30th December, 2010, the procedure followed and other communications in this regard were a complete departure from the provisions of the regulations governing the claimant’s conditions of service and therefore illegal, null and void. On issue two, the claimant’s counsel argued that Section 6 (1) and (2) of the 1999 Constitution as amended, vests all judicial powers in the Federation and the State in the courts and no other body or persons. However, in the case of States, Section 6 (2) provides: “The judicial power of a State shall be vested in the courts to which the Section relates, being courts established subject as provided by this constitution for a State”. That there is no provision either in the Judicial Service Committee Law of Bauchi State 1984 or any other law vesting judicial power in the 1st respondent. That any attempt therefore by the 1st respondent to act judicially in any guise whatsoever would be unconstitutional and illegal. That it was held in Garba v. University of Maiduguri (Supra) that judicial powers are not vested in the private persons, administrative tribunals or other authorities. That any purported exercise of judicial powers by these bodies is a denial of the right to fair hearing under Section 33 (1) of the 1979 Constitution as amended. Counsel therefore submitted that the action of the 1st respondent in examining and reviewing or attempting to review the judgment of the claimant in Case No. CMCVII/310/2010 (State v. John Andrew & 1 Another) is, on this authority, unconstitutional and illegal as it amounts to usurpation of the appellate powers of the courts. On issue three, the claimant’s counsel argued that judicial immunity has its root from the English common law doctrines which has become part and parcel of our law. That in the old English Case of Floyd v. Barker [1607] 77 ER 1305, Lord Coke explained that the significance of judicial immunity lies in ensuring that judicial officers decide disputes before them freely and without fear of adverse consequences that may arise consequently it is trite that judges are not to be held liable for the legitimate exercise of their power. That this common law position was reaffirmed by Karibi-Whyte JSC in Egbe v. Adefarasin [1985] 1 NWLR (pt. 3) 549 at 560 where he held thus: “The provision has its origin in the rules of English common law and is of the highest antiquity. The general rule of the common law is that persons exercising judicial functions in a court or tribunal are immune from all civil liability whatsoever for anything done in their judicial capacity”. To counsel, it is law that judicial immunity is to be favoured over legislative intent, and that only express language in a statute will limit the doctrine. That for a judicial officer to earn this immunity, it was held in the above cited authority that one must be acting judicially and also have been acting in the discharge of his judicial duties. Further, that in Ajao v. Alkali Amodu [1960] NRNLR 8, it was held that an Alkali whose jurisdiction in the 1st schedule is only to convict for 18 months but sentence a convict for 20 months would still be protected under judicial immunity. That in the case at hand, the claimant, acting as Judicial Officer (Chief Magistrate Grade 1) acted judicially when he tried summarily, convicted and sentenced the 1st accused and discharged the 2nd accused person. Counsel submitted that on the 1st December 2010, the arraignment of the suspects in the claimant’s court was a judicial act. Likewise the conviction and sentence of the 1st accused and discharge of the 2nd accused were act done in his judicial capacity. That the offences are within the competence of the claimant to try. That the characteristics of what constitutes judicial action such as interpretation, application, enforcement and all the judicial norms were present and so in the circumstance, the claimant acted judicially and so automatically enjoys judicial immunity. Continuing, learned counsel submitted that Section 377 (1) of the Criminal Procedure Code applicable to Bauchi State reiterates and reinforces the immunity of Judicial Officers. It provides: “No Judge of a High Court, Magistrate or Justice of the Peace or President or Member of an Area Court shall be liable for any act done or ordered to be done by him in the course of any proceeding before him whether or not within the limits of his jurisdiction provided that at the time he, in good faith, believed himself to have jurisdiction to do or order to be done the act complained of”. That this provision is also replicated in the case of civil matters in Section 83 of the District Courts Law, Bauchi State, 2006. The claimant’s counsel finally submitted on this issue that on the strength of the foregoing provisions of the law as well as judicial authorities cited, urged this court to hold that the termination of the claimants’ appointment for performing a judicial act is against the judicial immunity which the claimant enjoys at Common Law and under the Criminal Procedure Code and District Court Law. On issue four, the claimant’s counsel gave a brief history of the antecedent of this case. That the claimant’s appointment was terminated on 30th December, 2010. The claimant immediately instituted an action against the claimants on the 4th January, 2011 in Suit No. BA/01/2011 challenging his termination. That the said suit was transferred by Justice Mohammed Sambo of the Bauchi State High Court which was given Suit No. NICN/ABJ/77/2011. That when this court informed the claimant that the Bauchi State High Court Law Rules has no enabling provision for transfer of cases to this court, the claimant herein immediately withdrew the suit on the 13th February, 2012 and on 14th February, 2012 which is the next day, filed the pursuant suit. That it is trite that in circumstances such as this the period of limitation start running from the day the case was struck out and not otherwise. That the Court of Appeal in Addax Petroleum Development (Nig) v. Emex International Operations & Ors [2012] All FWLR (pt. 621) 1585 at 1596 paras C – G held that: “The crucial issue to be resolved, however, is the effect of the striking out of the suit by the State High Court and the subsequent re-filing of the action in the Federal High Court. Learned counsel for the appellant had argued that the suit earlier filed in the High Court of Cross River State was only revived when it was re-filed in the Federal High Court, but learned counsel for the respondent are submitting to the contrary i.e. that since the cause of action arose on 5th January, 2005, and the suit was filed on the 25th February, 2005 by the time it was struck out on 14th July, 2005, the action has become statute barred at the time it was filed in the Federal High Court on 14th July, 2005. If the matter has been transferred from the State High Court to the Federal High Court, it would have created no problem, instead the suit was struck out and a fresh action have to be filed in the Federal High Court. Computation of time therefore started on the 14th July, 2005 and not 25th February 2005, when it was filed in the High Court”. The claimant’s counsel submitted that by the steps so far taken by the claimant indicates that he is desirous and diligent in pursuing his claim against the respondents and urged the court to so hold. The claimants counsel further submitted that in Lagos City Council v. Ogunbiyi [1969] 1 ALL NLR 279 at 299, the apex court submitted that: “The Public Officers Protection Act necessarily will not apply if it is established that the respondent had abused his position for the purpose of acting maliciously. In that case he had not been acting within the terms of the statutory or other legal authority. He has not been bona fide endeavoring to carry it out. In such a state of facts he has abused his position for the purpose of doing a wrong and this protection of this court, of course, never could apply to such a case”. That the courts have held that abuse of office and bad faith can deprive a party of the protection under the limitation law. That in line with this, Nnamani JSC said in Egbe v. Alhaji [1990] 1 NWLR (pt. 128) 546 at 573 that: “If a public officer is obviously acting outside the colour of his office or outside his statutory or constitutional duty, he loses the protection of the Act without question, where however, he is acting within the colour of his office, he can only loose the protection if he is sued within three months, and, if on the evidence in the case he is shown to have acted in pretended execution of his lawful duty, having improper motive”. To counsel, the acts of the 1st respondent in reviewing and or examining Exhibit ‘E’ and claimant’s purported termination were acts done unconstitutionally and in bad faith. Thus from the above judicial pronouncement, the claimants automatically loose their statutory protection under Section 2 (a) of the Public Officer (Protection) Law of Bauchi State, 2007 at it can no longer avail them. To counsel, the adjudication in this court is totally different from that of the High Courts in terms of informality, simplicity, flexibility, speed and user friendliness. That Section 12 (2) of the NIC Act and Order 1 Rule 1 (3) of the NIC Rules 2007 clearly provides that matters be heard in this court for the attainment of just, efficient and speedy dispensation of justice. In reference to the submission of the respondent that the claimant’s action is statute barred, the claimant referred the respondents to numerous decisions of this court to the effect that the ventilation of labour rights in a court of law is not covered by limitation laws and that the question of limitation of action is not one of jurisdiction but one of defence to an action. The claimant’s counsel referred to the following decisions of this court, Dr. Simeon Abiodun & Ors v. Governing Council, Oyo State College of Education & Anor (Unreported) Suit No. NIC/LA/4/2002, John Ovoh v. The Nigerian Westminster Dredging & Marine Ltd (Unreported) Suit No. NIC/9/2002, delivered on April 2008, Nupeng v. Gecoprakla Nig. Ltd. [2010] 20 NLLR (pt. 57) 372, PERESSA V. SSASCGOC & Ors Unreported Suit No. NIC/25/2007 delivered on March 3, 2008 and SSAUTHRIAI V. ASURI & Ors Unreported Suit No. NIC/LA/34/2008 delivered on March 2, 2010. The claimant therefore submitted that the jurisdictional objection raised by the respondent is ill-conceived and should be dismissed. On issue five, the claimant’s counsel submitted that the defence of the 1st respondent that by virtue of the provisions of Section 20 of the JSC law, actions of the 1st respondent cannot be challenged in any court of law is misconceived. That the 1st respondent is a non-corporate statutory body created under the 1999 Constitution and JSC Law of Bauchi State. That it is the instruments creating the 1st respondent that should define its powers, functions, rights and duties and consequently, whether the body can sue and be sued in relation to the exercise of the powers, functions, rights and duties. That it is trite law that if a legislature has created a thing which can own property, which can employ servants, and which can inflict injury it must be taken, to have impliedly given the power to make it suable in a court of law for injuries purposely done by its authority or procurement, citing Taff Vale Railway Co. v. Amalgamated Society of Railway Servants [1909] Ac 426 at 436. That in Thomas v. Local Government Service Board [1965] NMLR, 310, which is on all fours with the case at hand, the Supreme Court held thus: “We reject the submission that a statutory body with functions like those of the Local Government Service Board is not liable to be sued for a declaration and we do so more readily since the statutory provisions relating to the appellant’s office are such that injustice might result if the Board could not be made a respondent to any kind of proceedings”. Learned counsel submitted that by virtue of the powers, functions, rights and duties conferred on the 1st respondents by the 1999 Constitution and the JSC Law of Bauchi State, the 1st respondent becomes amenable to be sued. That the very act of terminating the claimant’s appointment causes injury to the claimant and by implication made the 1st respondent suable judging from the powers and duties performed by it. Also, that S.10 (2) of the Interpretation Act LFN 2004 provides that “An enactment which confers power to do any act shall be construed as also conferring all such other powers as are reasonably necessarily to enable that act to be done or are incidental to the doing of it.” To the claimant, this means that where a statutory body cannot fully discharge its functions without resort to litigation or where litigation are incidental to the discharge of the functions, the grant of the power to execute the function, by virtue of the provision of this section, implies also the grant of the power to sue or be sued. That more importantly, the provision of S. 24 of the JSC Law is inconsistent with the provisions of Section 6 (b) and Section 36 of the 1999 Constitution as amended which granted right to access to court to the claimant whenever his civil rights and obligations have been or are in danger of being violated or adversely affected, citing the case of Abraham Adesanya v. President of the Federal Republic of Nigeria & Anor [1981] 2 NLLR 358 at 385 – 386. Therefore that by virtue of the provision of Section 1 (3) of the 1999 Constitution as amended; Section 20 of the JSC Law of Bauchi State is null and void to the extent of its inconsistency. Concluding, the claimant’s counsel submitted that emphasis on security by the respondents which was never proved in evidence was held in Shugaba Darman v. Minister for Internal Affairs [1981] 2 NLLR 218 at 231 that a Minister for Internal Affairs or any government agency does not possess unfettered discretion in matters even involving national security where individual fundamental right is at stake. Therefore in this case that the claimant’s right cannot be infringed just on the altar of purported security reasons. As regards the summary trial proceedings, the claimant submitted that there is no ambiguity from the provisions of Section 27 (5) of Fire Arms Act that the claimant has a discretion either to convict under the Act or under the Criminal Procedure (Punishment on Summary Conviction) Order NNLN No. 62, 1966 as applicable to Bauchi State which is a mandatory provision in the light of Section 157 (2) of the Criminal Procedure Code of Bauchi State. That this is more so because the Fire Arms Act did not provide alternative procedure of summary trial. That summary trials are conducted only under the Criminal Procedure Code. That Section 27 (5) of the Fire Arms Act states that: “Every magistrate shall without prejudice to any enactment relating to the jurisdiction of any other court of law, have and exercise jurisdiction for the summary trial of any person charged with an offence under the provisions of Sub-Section 1 (a), (b) and (c) of this section and may impose the penalties prescribed herein not withstanding anything to the contrary in any other enactment”. The claimant then submitted in the light of the above provision that the pivotal point here regarding the discretion of the claimant is “may impose” does not make it mandatory but discretionary as held in the case of Amadi V. Acho [2006] All FWLR (pt. 334) 1949 at 1960 – 1961 paras H – A that: “Judge’s Discretion, if being governed by the rule of law, its resolution depends on the individual judge’s assessment of what is fair and just to do in a particular case”. On the whole, the claimant urged this court to find for the claimant as per his reliefs. There was no reply on points of law by the respondents. I have carefully considered the facts of this case, the evidence of the parties, and all the legal authorities and the submissions of counsel for both parties. To my mind, the following issues arise for the determination of this court. That is ; (1) Whether the act of the claimant amounts to misconduct and if so whether the employment of the claimant has statutory flavor , and if so, whether fair hearing was observed and the procedure of the Bauchi State Public Service Regulations, 2001 were duly observed in terminating his appointment. (2) Whether or not the claimant acted in a judicial capacity which entitles him to judicial immunity. (3) Whether the 1st respondent can exercise any judicial power to examine and review the claimant’s judicial act. (4) Whether section 20 of the Bauchi State Judicial Service Committee Law Cap. 75 of 1983 is not inconsistent with section 6 (6) or the 1999 Constitution of the Federal Republic of Nigeria as amended. Before I consider the issues, I wish to state here that it is only in the pleadings of the respondents that they stated that at the trial they will contend that the case at hand is statute-barred. In all the submissions of counsel to the respondents, no where did counsel raise any argument regarding the question of the case being statute-barred. What this means is that the respondent’s counsel must be read to have abandoned that issue. In any event, the preliminary objection of the respondents premised on this issue dated 27th February 2012 and filed on 28th February 2012 was withdrawn on the 13th March 2012 and consequently struck out by this Court on the said date. On the issue of judicial immunity, I must point out that both parties misconceive the concept of judicial immunity as can be seen in the submission of both parties on the issue. From the authorities relied on by both parties, it is clear after a careful analyses of the cited authorities that the yard stick for judicial immunity is immunity from liability from actions or suits. In the case at hand however, the claimant was not sued for summarily convicting the accused in giving him a lesser sentence, so the question of immunity does not arise. What is in issue however is that the claimant’s appointment was terminated for acting in a judicial capacity. Put in another way, the claimant is being disciplined for exercising a judicial discretion of convicting the accused in question and giving him a lesser sentence. The question is whether what the claimant did amounts to misconduct as to warrant the termination of his employment. In any event, the act for which the claimant is being penalized has been appealed against. The question to pose here is in penalizing the claimant, was the 1st respondent sitting on appeal over the decision of the claimant? Or assuming the High Court in its appellate jurisdiction approves or upholds what the claimant did, would the act of the claimant have amounted to misconduct? The decision of the 1st respondent to terminate the appointment of the claimant was taken at the meeting held on the 30th December 2010 when the appeal to the High Court was yet to be heard. So the issue really is that can you discipline a Judge or Magistrate as the case may be for the decision he gave when that decision is the subject of an appeal which appeal is yet to be heard and disposed? In my view I do not think so. The next issue is whether the conduct of the claimant amounts to misconduct and if so whether the procedure of the Bauchi State Public Service Regulations, 2001 was duly observed in terminating his appointment. On this issue the respondents’ counsel labored strenuously to convince the court that the conduct of the claimant in trying the accused person who pleaded guilty summarily, convicted him and gave him an option of fine amounts to a misconduct on the part of the claimant; that as a result of the said misconduct of the claimant, his appointment was terminated in line with the relevant provisions of the public Service Regulations or Bauchi State, 2001. The relevant section relied upon is section 3 (Misconduct of the Public Service Rules) which provides as follows: “Misconduct is defined as a specific misconduct to the scandal of the Government or to the prejudice of discipline and proper administration of the government, foul Language, insubordination, negligence, falsification….” Even though the respondents’ counsel at various times in his submission described the conduct of the claimant thus: “Mysteriously the claimant after charging the accused persons and tried them summarily under the fire arms Act deliberately and for reasons best known to him abandoned the punishment section of the law….” In all of these, the respondents did not lead any evidence to substantiate the particulars of the misconduct or the specific misconduct committed by the claimant. The respondents did not also prove a breach of any code of conduct by the claimant. Neither did the respondents cited nor refer to any code of conduct for all courts employees including magistrates throughout their submissions which the claimant has breached. I am of the strong view that it is only when the respondents have established a breach of the code of conduct by the claimant that such punishment prescribed for the said offence can be meted to the claimant. In other words, it is the breach of a code of conduct on the part of the claimant that can warrant termination or dismissal of a court employee including magistrates like the claimant as in this case. In the absence of any proven or established breach of any code of conduct regarding his employment and conduct, l am unable to see the basis and justification for meting out such punishment on the claimant as was done in this case as a result of the claimant¬¬s judicial act. It is in this sense that I view the action of the 1st respondent in terminating the appointment of the claimant unjustifiable. For instance there is no evidence to show that the claimant was compromised in the course of the discharge of his duties as a Magistrate as regards the case in issue. I am therefore unable to agree with the respondents on this issue regarding misconduct as it was not proved and I so hold. As to whether the conduct of the claimant prejudiced the security of the state, the respondents’ counsel only submitted that the claimant’s conduct led to the breach of peace and security in the Bauchi metropolis without more. There was no evidence led to establish this assertion, it is trite law that submission of counsel cannot take the place of evidence as counsel cannot give evidence from the Bar as learned counsel to the respondents tried to do in this case. Such piece of evidence from counsel is therefore discountenanced as it go to no issue. Also, respondents’ counsel reliance on section 6 of the Bauchi Public Service Regulations regarding misconduct which the respondents relied on to retire a public Servant in the Public interest if it considers desirable cannot be accepted by this court. This is because from the evidence adduced by the respondents on this issue, I find that the respondents have not proved the allegation of misconduct against the claimant to warrant him to be removed from office or terminated in the public interest. Further argument on this issue is whether or not the employment of the claimant had a statutory flavour and if so whether the required procedure for discipline has been complied with. On this point the claimant argued that his employment is governed by the Bauchi State Public Service Regulations 2001 and thus cloak it with statutory flavour. In N.I.I.A V Ayanfalu, (2006) All FWLR Pt. 325 P156, the Court of Appeal held that there are three categories of employment as follows:- (a) A pure master/servant relationship under the common law, (b) Employment where the office is held at pleasure, (c) Employment protected by statute. See Iderima V River State Civil Service Commission (2005) All FWLR (Pt. 285) 431, Olaniyan V University or Lagos (No.2) (1985) 2 NWLR (Pt.9) 599. In this case what the respondents are suggesting is that the claimant held his office at the pleasure of the respondents. That an employment with statutory flavour is that employment where the procedure for employment and discipline are governed by statute. The claimant on the other hand also argued that he was not accorded a fair hearing in the manner the procedure was adopted. Even though the respondents have argued that there is nothing to establish the claimant’s mode of employment procedure for discipline, I hold that the Bauchi State Public Service Rules are statutory in nature. That is to say the employment of the claimant has statutory flavour and that being the case the claimant’s employment can only be brought to an end if the required procedure provided in the statute is followed to bring his employment properly to an end. However, in the case at hand, a perusal of Exhibits A,B,C,D,E, and G shows that the 3rd respondent requested the 2nd respondent to implement its resolution that the claimant be investigated. The said request was dated the 17th of December 2010. On the 22nd December 2010, the 2nd respondent forwarded a memo directing the secretary of the 1st respondent to implement the resolution of the 1st respondent. On the 24th of December 2010 which was on Christmas Eve, the claimant was orally invited by the secretary of the 1st respondent to a meeting. On the same date after the said meeting of which the claimant had no prior knowledge of, he was afterward issued with a query in which he was given up to 12 noon of December 29,2010 to respond notwithstanding the Christmas and boxing day holidays in between. The claimant’s reply to the query was dated 29th December, 2010. On 30th December 2010, the 1st respondent met wherein the claimant was invited. Thereafter on the same date of the said meeting of the 1st respondent with the claimant i.e. 30th December 2010, the claimant’s appointment was terminated by the 1st respondent. The haste and the procedure adopted by the 1st respondent coupled with the period in question and the fact that the 3rd respondent had already appealed the judgment delivered by the claimant shows that the whole process was premeditated and so was devoid of fair hearing. This is more so that the 3rd respondent who was obviously not satisfied with the judgment delivered by the claimant had written Exhibit A against the claimant to the 2nd respondent. In view of the above scenario, I am of the view that the claimant was not accorded fair hearing. Since I have found that a case of misconduct has not been made out against the claimant, I therefore hold that the termination of the claimants’ employment was null and void, more so that the employment of the claimant was protected by statute .See U.T.C V Nwokoruku (1993) 3 NWLR (Pt. 281) 295, Imoloame v WAEC (1992) 9 NWLR (Pt. 265) 303. The next issue to be examined is whether the 1st respondent can exercise judicial power to examine and review the claimants’ judicial act. In other words whether the action of the 1st respondent is tantamount to sitting over appeal to examine the correctness or otherwise of the decision of the claimant. There is no gain saying that section 6(2) of the 1999 Constitution as amended vests judicial power in the courts. It is my considered view that the action of the 1st respondent in this scenario amounts to sitting on the appeal over the judgment of the claimant. This function is clearly not vested on the 1st respondent. I therefore agree with the claimant that there is no provision either in the Judicial Service Committee law of Bauchi State 1984 or any other law vesting judicial powers in the 1st respondent. The action of the 1st respondent to arrive at the conclusion that the judicial conduct of the claimant is wrong amounts to sitting on appeal over the decision of the claimant which in my view the 1st respondent has no power to do. I therefore set aside the action of the 1st respondent in examining and reviewing the judgment of the claimant in Case No. CMC VII/310/2010 in State v. John Andrew & 1 Anor as it amounts to a usurpation of the appellate powers of the High Court as the case maybe. The decision of the 1st respondent arising from that action is equally declared null and void. The last issue to be determined by this court is whether section 20 of the Bauchi State Judicial Service Committee Law Cap.75 of 1983 is inconsistent with section 6(6) of 1999 Constitution of the Federal Republic of Nigeria as amended. The respondents’ submission on this issue is to the effect that even if the action it took to terminate the employment of the claimant was unlawful, the said provision of section 20 of the Judicial Service Committee Law validates its action. The said section provides as follows: “ Notwithstanding anything contained in any other law, all acts done or purported to be done or omitted to be done, or proposed to be done the Judicial Service Commission of the State shall be deemed to have been lawfully done under the law and shall have effect as if so done.” In relying on the above provisions the respondents’ counsel urged this court to deem the act of the 1st respondent to have been lawfully done and to validate same. This submission in my view means that the 1st respondent has tactically admitted wrong doing in the manner it terminated the employment of the claimant and would want this court to come to its aid, by validating same. On this issue also, I am unable to go along with the respondents. I have already invalidated the process that led to the termination of the claimant’s employment and I cannot therefore validate the action of the 1st respondent. I agree with the submission of the claimant’s counsel that the provisions of section 24 of the Judicial Commission Law of Bauchi State is inconsistent with section 6(6) and section 36 of the 1999 Constitution of the Federal Republic of Nigeria as amended and is therefore null and void and I so hold. On the whole, the action of the claimant succeeds against the respondents. Consequently, and for the avoidance of doubt I hereby hold and declare as follows: (1) The termination of the claimants employment vide a letter of termination with effect from 30th December, 2010 is hereby set aside as it is illegal, null and void. (2) Since I have made a finding that the termination of the claimant was null and void, there is therefore no termination in the eyes of the law. What the 1st respondent did was therefore a nullity. I therefore order the 1st respondent to reinstate and place the claimant in his position without any loss of seniority and financial benefits. (3) I also order the 1st respondent to pay the claimant forthwith all his salaries and all allowances and entitlements due to him from the date his appointment was terminated till date. This should be done not later than 30 days from the date of this judgment. I make no order as to cost. Judgment is entered accordingly. …………………………………… Hon. Justice J. T. Agbadu-Fishim Presiding Judge