EFCC vs Nganjiwa: ‘Appeal court verdict is wrongly decided’

The Principal Counsel at Jiti Ogunye Chambers, Jiti Ogunye has reacted to the verdict passed by the appeal court on the case of EFCC and Justice Nganjiwa.

Jiti Ogunye said: The judgment of the Court of Appeal in Justice Nganjiwa v FRN , quashing the criminal charge preferred again Justice Nganjiwa and holding that the EFCC and any other anti corruption agency cannot investigate any criminal allegation bordering on judicial misconduct against any serving judicial officer , nor prosecute any serving judicial officer for any criminal offence bordering on misconduct without the NJC first exercising its disciplinary power over such serving judicial officer is wrongly decided, in our humble view. We say this with no aim to disrespect the learned justices of the Court of Appeal who decided this Apoeal.

The learned justices, interpreting the provisions of Sections 253, 158, and 292 of the Constitution, Paragraphs 20 and 21 of Part 1 of the Third Schedule to the Constitution, and provisions of the National Judicial Policy and other protocols and regulations governing discipline of serving judicial officers , rightly held, that the NJC is vested with disciplinary powers over serving judicial officers. But the Court erroneously held that unless the NJC exercises these powers in relation to a judge accused of misconduct and removes the Judge from judicial office, the EFCC cannot investigate a serving judicial officer accused of commission of crime , bordering on corruption ( which is also categorised as an act of misconduct under the NJC’ s disciplinary protocols) let alone prosecute him .

We make bold to say that there is no interpretation of these referred to provisions in the Constitution, no matter how liberal or elastic , that can yield the conclusion reached by the learned justices of the Court of Appeal.

In the decision of the Supreme Court in Fawehinmi v IGP, the Supreme Court held that every public officer in Nigeria , especially those clothed with executive immunity under section 308 of the Constitution can be investigated, while they enjoy the executive immunity. They may not be prosecuted until they drop the togs of the immunity. Instructivelý, the Court of Appeal’ s judgment has ” overruled ” the decision of the Supreme Court in Fawehinmi v. IGP by holding that serving judicial officers against whom there is corruption allegation cannot be investigated by the EFCC unless they cease to be judicial officers .

The judgment also has expanded the doctrine of judicial immunity beyond its legal boundaries . Section 158 of the Constitution merely provides for the independence of the bodies named therein, including the NJC, in the conduct of their administrative proceedings.. section 158 does not grant the immunity now being claimed by the learned justices of the Court of Appeal. .

In any case , the outcomes of the decisions of these bodies estalished by section 153 and granted independence of deliberations and proceedings under section 158 are still subject to court’ s power of judicial review under section 6 (6)(b) of the Constitution; and for the NJC in particular, as far as appointment and disciplinary actions are concerned, it only recommends the disciplinary actions to be taken by the Executive. The appointing authority is the President or Governor , subject to the approval of the Senate or House of Assembly in appropriate cases. Ditto for disciplinary actions. It only recommends disciplinary actions. So, the argument that the NJC has the absolute authority to first discipline an erring judge as a condition precedent before a court can assume criminal jurisdiction over the judge or before the judge can be investigated is not part of our laws.

This judgment is a blatant legislative or creative judgment. The judiciary has just decided to create its own immunity law. By this new radical and fundamental remaking of the law of judicial immunity, the NJC is now made the sole authority to decide if and when any serving judicial officer in Nigeria should be ” released ” to the EFCC or any other anti corruption agency for prosecution. This is not the intendment of the makers of the Constitution.

Of course, there is judicial immunity. But it is that immunity protecting a judge from civil liability in the performance of his judicial duty . Thus, a judge cannot be sued in civil action for ” misjudging ” a case or for not judging it quickly thereby giving an advantage to an adversary. Nothing the Judge says or writes in the exercise of his judicial duty can be become actionable against him .This judicial immunity does not extend to or cover criminal culpability of a judex.

In the case of Obi v INEC, the Supreme Court , per Aderemi J.S.C, as he then was, decided that in its task of interpretation, the judex cannot supplement the provisions of a law by adding provisions that are deemed necessary but are ” missing ” in a law being interpreted. The law can expounded upon but the law cannot be expanded . Certainly, there is no provision in the Constitution to the effect that judicial officers cannot be investigated or tried for crimes unless they are first disciplined by a sanction of removal from office by the NJC.

The larger implications of this judgment are that it would engender in the minds of Nigerians a feeling that there is no equality of law , the cardinal principle of the rule of law in Nigeria anymore.

The Legislature in Nigeria is craving immunity. Beyond the legislative immunity granted by the Legislative Houses Powers and Privileges Act, they want to insulate themselves from criminal prosecution. The Executive are recklessly extending the cover of immunity to cronies that are facing criminal charges but who are being shielded from prosecution. And now , the Judiciary seems to be snatching immunity against criminal prosecution by this Judgment.

Other persons , public officers and non public officers may now latch onto this judgment to truncate criminal investigations or prosecutions against them, insisting that their own administrative bodies first must exercise disciplinary actions over and against them before they could be investigated or prosecuted by law enforcement agencies. These bodies are , for example, Medical and Dental Council of Nigeria’ s Disciplinary Committee trying doctors for professional misconduct, FCSC, even Legal Practitioners Disciplinary Committee. We must note that some lawyers who currently are facing criminal prosecution for bribing judges may now argue that since the judges they are alleged to have bribed have not first being tried for misconduct by the NJC and removed from the Bench , they , the alleged bribe givers ought not to be tried.

The arguments that serving judges cannot be or should not be arrested which was peddled when judges were arrested recently is now given judicial validation by this Judgment .

The judgment appears to have brought into being an era of judicial protectionism in Nigeria. This is a terrible Christmas gift for the Justice loving people of Nigeria. The anti corruption fight has become harder to fight.