Controversy trails Appeal Court verdict on judge

NJC okays judge’s prosecution in letter to EFCC
Ï Judgment in order, good for judiciary -Ozekhome
Ï No, it will encourage corruption -Jiti Ogunye

Controversy is now trailing the Court of Appeal in Lagos judgment which held that the Economic and Financial Crimes Commission (EFCC), lacks the power to prosecute a serving judge on corruption charges.

While some some senior lawyers and civil society have lauded the judgment delivered by Justice Obaseki Adejumo JCA, others have condemned the verdict

Justice Adejumo on Monday struck out 14 count criminal charges filed by the Economic and Financial Crimes Commission against a judge of the Federal High Court, Justice Hyeladzira Nganjiwa on the ground that
the EFCC does not have powers to investigate or prosecute serving judicial officers except where such judicial officers have first been dismissed or retired by the NJC.

The judgment also stated that serving judicial officers can only be prosecuted for offences like murder, stealing etc if such offences are committed outside the discharge of their official duties; that once the offence is allegedly committed in the discharge of their duties, they must first be tried by the NJC and dismissed or retired before the EFCC can investigate or prosecute them.

But, a letter written by the National Judicial Council (NJC),as far back as last year in respect of Justice Nganjiwa and Justices Rita Ajumogobia expressly given permission for their trial.

In the said NJC letter which also formed the bases of a press statement, the council had informed EFCC and the public that the concerned judges had been directed “not to perform any judicial duties pending the conclusion of their cases.”

In essence, the Economic and Financial Crimes Commission (EFCC) was given permission by the National Judicial Council (NJC) to try Justice Hyeladzira Nganjiwa and other judges accused of bribery.

The letter specifically stated thus: “I have been directed to inform you that Council, at is Meeting which was held on 2nd and 3rd November, 2016 decided that indicted Judicial Officers should not perform Judicial duties until the anticipated cases against them are concluded.”

“I am to inform you that the Honourable, the Chief Justice of Nigeria and Chairman of the National Judicial Council, Hon. Justice W.S.N. Onnoghen, GCON has instructed their respective Heads of Court to direct them to stop sitting in line with Council’s decision of 1st and 2nd November, 2016, as charges have now been filed against them.”

By asking the accused judges to step down from their posts while they face trial, the NJC indicated that it would allow the judges to face trial.
So many believed that the judgment delivered by Justice Abimbola Adejumo-Obaseki on Monday at the Court of Appeal Lagos to the effect that no sitting judge could be tried by the EFCC contradicted the NJC position and for this reason the EFCC is at liberty to challenge the judgment at the Supreme Court.

In reaction to the judgment on Tuesday, an Abuja based legal practitioners Hameed Jimoh said the decision was not only held in error but it is a salvo on anti-corruption fight.

The judges are not immuned from corruption charges and to hold otherwise will lead to lawlessness & disorderliness of our legal system.” It means everyone is free to corrupt a judge”, he said.

He urged the ” EFCC to appeal the decision in the interest of justice and public,” as it remains binding until set aside by the Supreme Court.

Also commenting on the judgment , another legal practitioners and public commentator Daniel Bwala said “there is a distinction between National Judicial Council (NJC), and law enforcement agency of government.

” The whole gamut of the role of NJC is to determine conducts of judicial officers whether it is worthy of their rank as judges; it means the end game of their role is limited to conduct as against office (as judges)”

“On the other hand, the state try people for offenses against the state and not to determine whether their conduct run against their office. There is a wide distinction. Whether you go to America or England or France, these laws are the same.”

He said that the state does not have power to determine whether a judgment, ruling or proceedings are right or wrong, that power rest with NJC, in the same vein, NJC has no powers to determine the crime and punishment if the crimes are of a nature defined by law for which punishment is prescribed.

There is no law (substantive or procedural) that states that condition precedent for prosecuting a judge is NJC first. There is a vide difference between misconduct and crime . NJC has powers only over misconducts in relation to judicial duties while EFCC has powers in relation to economic and financial crimes.

However, Constitutional Lawyer and Human Rights Activist , Chief Mike Ozekhome (SAN) said the judgment is kudos to the judiciary in asserting its heavily assaulted independence.
He recalled that on December 11,2017, the Court of Appeal Lagos division,in the lead judgement delivered by Justice Adejumo Obaseki,quashed the 14 count charge against Justice Hyeladzira Nganjiwa before the Lagos state High court and ruled that the EFCC does not have the powers to investigate or prosecute serving judicial officers except where they had been first dismissed by the National Judicial Council(NJC).

For the records,it is the NJC that has disciplinary control over judges as provided for in section 158 and paragraphs 21(b) and (d) of the third Schedule to the 1999 Constitution,as as altered.

According to him, some commentators have either disagreed with,or supported this decision.I support it.I will give my reasons now.As held by the intermediate court,there is such a principle of law known as the doctrine of separation of powers (thank you, Baron de Montesquieu,for your 1748 treatise that has shaped governance and division of powers within government itself.Thank you Adam Smith for the concept of division of labour).The doctrine of separation of powers is a complete bar to the Executive riding slipshod on judges (belonging to the judiciary),in spite of the clear provisions of section 158 of the 1999 Constitution as altered and paragraphs 21(b) and (d) of the third schedule to the said 1999 Constitution.

This doctrine has received constitutional imprimatur in sections 4,5 and 6 of the same 1999 Constitution.We must all unite to rescue the brazenly buffetted judiciary from the despotic jackboots of the Executive,which traduces judges with untrammelled impunity.

To do this,we need more of such creative judicial interventionist activism.Judges in Niberia today are no longer safe,or free to deliver judgements without looking over their shoulders,for fear of rampaging Executive agencies that break down their houses in ungodly hours of the night,and terrorise and dehumanise them and their families.Judges now operate under a situation of fear,not wanting to deliver judgements against an intolerant Executive,even where the law is as clear as crystal.

They operate under morbid fear of blaring sirens of power and executive lawlessness,an Executive that treats judicial orders with disdain and utmost contempt.Remember the Dasukis and Elzakzakys of this world?

Numerous courts,including the sub regional ECOWAS Court,has since ordered their immediate release with payment of damages for unlawful detention,but the Executive has flagrantlty refused to obey the said orders.This is an obvious invitation to chaos and anarchy.Any attempt by the EFCC rely on its enably law,the EFCC (Establishment) Act,2004,a far inferior law to the grundnorm,to undermine the clear provisions of the Constitutuon,is liable to be struck down,by virtue of section 1(3) thereof.

Lord Denning,MR,in Comb v Comb,once famously declared in the following words,or words to the like effect:”What is the argument on the other side? Only this.That no case appears in which it has been done before.That argument does not in the least appeal to me.If we never do anything because it has not been done before,the society will move on and the law will stand still,and that will be bad for both”.It was with this rare insightful activist orientation that he ploughed new fields and opened up new legal vistas that resulted into imperishable creations such as the doctrines in the “High Trees” case,Mareva Orders and Anton Pillar Orders.

I totally support the Court of Appeal in this LANDMARK judgement that has the effect of clipping the tyranical claws of the EFCC and its sister agencies in always viewing the judiciary as an annex of the Aso Villa.I salute the rare courage,daring bravado and jurisprudential correctness of this historic and epochal judgement.

On matters concerning alleged corruption by judges in the ordinary course of their judicial functions (not heinous crimes committed on a frolic of their own outside the call of their official duties),let such corrupt judges be smoked out by the NJC,heard out,given a right of defence,and be adequately dealt with in accordance with laid down punishment through cautioning, reprimand, suspension,forced retirement,or outright dismissal,as the case may be.

When the judex is thus stripped of his stained judicial robes,the anti graft agencies can immediately move in.After all,time never runs against trial of criminal offences.It is most unfair,nay,reprehensible and unconscionable,to continually harass and intimidate judges and keep judges,who are already under close NJC scrutiny,a second tier form of “double jeopardy”,in the nature of yet another close microscopic monitoring by an overbearing,unaccountable,extremely corrupt omnipresent “big brother” Executive.Paradoxically,this is the same Executive that has refused to remove the log from its eye before seeking out the speck in the judiciary’s eye.

Are there some corrupt judges that Work hand-in-gloves with some despicable collaborating lawyers of odious infamy? Yes! By all means, ferret and winnow out and deal with these few Judas Iscariots. But,for God’s sake, do this in accordance with due process and laid down constitutional and statutory provisions.

Let the aggrieved party appeal the judgement.That is the civilized thing to do, not unleashing further threats,abuses,curses and expletives on the already beleagered judiciary as an institution.I am ready,able and willing to defend ,pro bono,this ground breaking judgement that would help the cause of justice,lubricate the tired wheels of the rule of law,reshape our legal jurisprudence and remove the judiciary from the seering clutches and apron strings of the other two arms of government,especially the Executive.This will give the judiciary true autonomy and independence.

Also Ebun Olu Adegboruwa see the judgment as judiciary assertion of its independence. He
welcomed the landmark judgment of the Court of Appeal, delivered on 11th Dec 2017, in the case of Hon Justice Nganjiwa.

In the said judgment, the Court of Appeal stated the process of discipline of a judicial officer for official misconduct is to be undertaken first by the National Judicial Council, NJC.

This decision is sound in law and logic, in helping to assert the much desired independence and autonomy of the judiciary. In recent times, judicial officers have been under mindless attack by the executive, arising from the expressed disaffection for the third arm of the realm, by the President, who is the head of the Executive, who has stated severally, that the judiciary is his headache.

The hallowed democratic principle of separation of powers requires that the three arms of govt should be independent of each other but work together for the effective administration of the realm.

In the present dispensation, the Executive arm has totally hijacked and captured the Legislative and Judicial arms, both of which have not been allowed to function effectively and independently, as anticipated by the Constitution.

It is therefore a welcome relief indeed, that judicial officers will no longer be under the fear and tremor of intimidation of the executive, in the discharge of their official duties. A judge should be free to deliver his judgment according to his conscience and according to law, without fear or favour, without affection or ill will.

Under and by virtue of Paragraph 21(b) and (d) of the Third Schedule to the 1999 Constitution, the NJC is to exercise the power of disciplinary control over all judicial officers. Thus, where there is an allegation of corruption against a serving judicial officer, such should be tabled before the NJC first, as it is a matter arising from the discharge of official duties by the judge.

Otherwise, judges will become liable to do the bidding of the executive, once it is possible to just pick up a judge and lock him up, whenever he delivers a judgment that is not favourable to the executive.

However, this judicial immunity should not be a blanket one; it should only be limited to matters involving the discharge of judicial duties. Consequently, a judge involved in the common crimes of murder, rape, etc, all committed outside the performance of his judicial duties, should still be held accountable in the normal course of criminal justice administration.

So I salute the rare courage of the justices of the court of appeal, who have taken this landmark step to free our nation from dictators and fascists in political garb and I commend the boldness of My Lords, for rescuing the judiciary from the choking harassment of the executive.

Since time does not run against the prosecution of offenses in law, the government can always commence prosecution against any judicial officer found wanting, after the NJC has concluded its own statutory roles, in the discipline of such judicial officer.

I also commend the EFCC for its rare display of courage in confronting the menace of corruption in our land. The proper step in this case is to appeal against the judgment, in line with the best traditions of respect for the rule of law and due process, and cease to attack judges in the media, for the discharge of their official duties.In it all, Nigeria will be the better for it.
However, the Nigerian Lawyers’ group condemned the appellate court’s dismissal of bribery charges against Justice Nganjiwa

The group said that the quashing of a 14-count charge against Justice Nganjiwa, would further promote corruption in the Nigerian judicial system.

It will not also help the course of purifying the judiciary, as it would increase corruption within the judicial system, Ago Ademiluyi the Group convener said.

“We protest the ruling by the Court of Appeal, Lagos Division, in the appeal on the criminal charge preferred against Justice Nganjiwa by the Economic and Financial Crimes Commission (EFCC). In our opinion, we consider this as reversing the drive to cleanse the judiciary of impunity,” Mr. Ademiluyi said.

The lawyers’ group is demanding the reversal of the ruling by the court and an immediate scrapping of executive immunity that has been utilized to allow heinous crimes to go unpunished.

Also commenting on same judgment a civil rights activist Austin Azuka said the judgment unjustly protected judges, detriment to the interest of the larger society.

He said that the law is not a respecter of any class of people therefore judges should attempt to exclude themselves from trial on offences that are covered by statue.

Any person who breaks the law must be charged before a competent court regardless of his or her professional calling, he said.
Meanwhile, the EFCC has said it will appeal against the decision of the court of appeal. According to the agency “criminal trial takes precedence over administrative procedures and it is strange that the Court of Appeal wants to put the cart before the horse. This is ridiculous!”.

“The appellate court simply wants to confer immunity on public officers from prosecution for corruption, and it will not stand.”

The EFCC had arraigned Justice Nganjiwa for allegedly receiving $260,000 and N8.7 million in gratification to enrich himself as a public official.

Andrew Orolua & Doosuur Iwambe, Abuja