“There cannot be any nascent democracy, if Judicial
Officers are placed in a precarious situation, wherein they are
exposed to potential intimidation, threat, harassment or incessant
arrest for any alleged act or conduct carried out in discharging
their judicial functions or an allegation of official misconduct,
without following due process/ procedure. The due process here,
involves making a complaint to the NJC, allowing it to act and
carry out its duties pursuant to its powers conferred by the
provision of the 3rd Schedule to the 1999 Constitution (as
amended”
In the Court of Appeal of
Nigeria
In the Lagos Judicial Division
Holden at Lagos
On Monday, the 11th Day of December,
2017
Before Their
Lordships
Mohammed Lawal Garba
Yargata Byenchit Nimpar
Abimbola Osarugue
Obaseki-Adejumo
Justices, Court of Appeal
CA/L/969c/2017
Between
Hon. Justice Hyeladzira Ajiya
Nganjiwa ………Appellant
And
Federal Republic of Nigeria
……Respondent
(Lead Judgement delivered by
Hon. Abimbola Osarugue Obaseki-Adejumo, JCA)
Facts
By a 14 Count Information dated 8th June, 2017, the Appellant
was charged for offences ranging from unlawful enrichment by a
Public Officer, to giving false information contrary to the
Criminal Law of Lagos State, No. 11 of 2011 and Section 39(2)(a) of
the EFCC (Establishment) Act, 2004. Upon being served with the
Information, the Appellant promptly filed a Notice of Preliminary
Objection. The Appellant challenged the jurisdiction of the trial
Court to hear the case, on the ground that the condition precedent
to the filing of the Information had not been complied with.
Delivering its Ruling on the Preliminary Objection, the trial Court
dismissed same, further to which the Appellant filed this appeal
against the decision.
Issue for Determination
Two issues were distilled by the Appellant for determination.
The Respondent on its part formulated a sole issue for
determination. The Court observed that the second issue formulated
by the Appellant can be subsumed under issue one, which encompassed
the Respondent’s sole issue –
Whether the lower Court can validly exercise criminal
jurisdiction over a sitting Judicial Officer (the Appellant),
whilst still occupying such office without first satisfying the
condition precedent of subjecting such Judicial Officer to the
disciplinary jurisdiction of the National Judicial Council, as
provided for in the Constitution of the Federal Republic of
Nigeria, 1999 (as amended).
Arguments Proffering arguments on the issue, Counsel for the
Appellant conceded that the Appellant, like any other Judicial
Officer, is not immune from criminal prosecution. Counsel however,
contended that the Appellant (and any other Judicial Officer), must
be first subjected to the disciplinary jurisdiction of the National
Judicial Council (NJC), before such Officer can be arraigned for
criminal prosecution (if need be). He argued that due process must
be adhered to, in order to maintain respect and sanctity of the
Rule of Law. In aid of his submission, he relied on Section 158(1)
and Paragraph 21(b) of the Third Schedule to the Constitution of
the Federal Republic of Nigeria, 1999 (as amended), in urging the
Court to hold that recourse must be had first to the NJC to
exercise disciplinary control over any allegation of misconduct
against a Judicial Officer. Having not satisfied this condition
before preferring the Charge against the Appellant, the Respondent
did not validly invoke the jurisdiction of the trial Court.
UAC v MACFOY (1961) 3 WLR 1405 at 1409; MADUKOLU v
NKEMDILIM (1962) 1 ANLR 583.
Counsel submitted further that, in exercising its Constitutional
powers, the NJC shall be supreme as it is not subject to the
direction of any other authority. He posited that, going by the
constitutionally guaranteed provisions on Separation of Powers, the
NJC is a creation of the Constitution and as such, its powers to
discipline persons within its control cannot be interfered with by
any authority, the Economic and Financial Crimes Commission (EFCC)
and the Attorney-General of Lagos State inclusive. He relied on
Sections 4 – 6, 153, 158, 160, 292, 318 and Paragraph 21(b) of the
Third Schedule to the 1999 Constitution. Counsel contended that
what was contemplated and provided for in the Constitution, is the
removal of a Judicial Officer and not conviction, because mere
conviction cannot remove the toga of such Officer. Hence, the need
for the NJC to appropriately remove or suspend the Judicial Officer
especially as the operative word “shall” in Paragraph 21(b)
thereof, gives no room for discretion of the Court.
For the Respondent, it was argued that, the doctrine of Judicial
Immunity does not protect a serving Judicial Officer against
criminal proceedings when he is reasonably suspected to have
committed a criminal offence. Counsel submitted that, the
Information preferred against the Appellant resulted from his
extra-judicial acts in contravention of the law under which he was
charged. CANDIDE-JOHNSON v EDIGIN (1990)
LPELR-20108(CA). He argued that Section 158 of the 1999
Constitution relied on by the Appellant, neither grants him
immunity from criminal prosecution nor create any condition
precedent(s) for the prosecution of Judicial Officers. He argued
that Paragraph 21(b) of the Third Schedule to the 1999
Constitution, was to empower the NJC to recommend removal of
Judicial Officers to the President and to exercise disciplinary
control over them. Thus, criminal prosecution and disciplinary
proceedings of the NJC can go on simultaneously, and if there is
any one that should be made to await the determination of the
other, it is the proceeding of the NJC. OKAFOR v
MADUBUKO (2000) 1 NWLR (Pt. 641) 473; FRN v VIJAY
LALWANI APPEAL (2013) LPELR-20376(CA).
Court’s Judgement and Rationale
Deciding the sole issue, Their Lordships held that the Criminal
Laws of Lagos State and the EFCC Act, 2004 provide for the
prosecution of any person suspected to have committed the offences
levelled against the Appellant. However, being a serving Judicial
Officer, the Appellant is under the disciplinary powers of the NJC
as provided for in the Constitution. By the combined reading of
Section 158(1) and Paragraph 21(b) of the Third Schedule to the
1999 Constitution, the NJC is the sole body with authority to
recommend the appointment and removal of a Judicial Officer; the
NJC also exercises disciplinary control over erring Officers.
Whenever a breach of Judicial Oath occurs, it is misconduct and
the NJC is the appropriate body to investigate such breaches by the
Officer; if found culpable, the Officer shall be subjected to
disciplinary actions such as recommendation to the President or
Governor for removal from office in line with The
Judicial Discipline Regulation of May, 2017. It is
upon acceptance of this recommendation by the appropriate
authority, that the relevant law enforcement agent or agency, can
prosecute the Judicial Officer. Any attempt to by-pass the NJC,
will be tantamount to failure to observe a condition precedent; a
direct violation of the provisions of the Constitution and
usurpation of the Constitutionally guaranteed powers of the NJC.
ELELU-HABEEB & ANOR. v A-G FEDERATION &
ORS (2012) 13 NWLR (Pt. 1318) 423; OPENE v NJC
& ORS (2011) LPELR-4795(CA).
The Court held further that, in the administration of justice,
it is a necessity that due process must be adhered to. A salient
condition for the exercise of jurisdiction of Court in a given
case, is that the suit must have been commenced by due process of
law and upon fulfilment of any condition precedent to assumption of
jurisdiction. MADUKOLU v NKEMDILIM
(supra). Thus, the power conferred on the NJC to
discipline erring Judicial Officers and the procedure stated in the
Constitution, must be adhered to first before any other action is
taken in the matter.
By the relevant provisions of the Constitution, no authority can
interfere with or direct the exercise of the powers of
the NJC without having shown that the NJC has concluded its
investigation (as the sole body empowered to determine allegations
of misconduct, inclusive of bribery and corruption, against its
Officers). It is only when the NJC has given a verdict and handed
such Officer (removing his toga of judicial powers) to the
prosecuting authority, that he may be investigated and prosecuted
by the appropriate security agencies. This is the purport of
Section 158(1) of the Constitution.
Interestingly, Section 158(1) and paragraph 21(b) of the Third
Schedule to the 1999 Constitution, were not contained in the
preceding Constitutions. This underscores the point that the
intention of the framers of the Constitution is to confer supremacy
over the affairs of the judiciary on the NJC, and this special
position cannot be superseded even by the powers granted to the
EFCC under the enabling Act or case law.
The Constitution is the grundnorm; it supersedes any
Act of the National Assembly. ADISA v OYINWOLA (2000)
LPELR-186(SC). The EFCC being a creation of the National Assembly,
is subject to the dictates of the Constitution – Section 1 of the
1999 Constitution. The EFCC, Department of State Security (DSS) or
any other law enforcement agency, have powers over all persons, but
when a Constitutional provision has set out what is to be done
before the exercise of such power, it must be complied with, else
the procedure will be a nullity.
It is to be noted that, time does not run against the State in
criminal matters; prosecution can be carried out at any time, but
with recourse to due process. Given the fact that the defined
condition precedent for filing a Charge against the Appellant was
not fulfilled, it follows that the trial Court lacked the requisite
jurisdiction to try the case. All the proceedings embarked on by
the Court amount to nullity.
Appeal Allowed; Charge No. LD/4768C/2017 was Struck
Out.
Representation: Robert Clarke, SAN with O. Oladele, I.S. Matesun
and Omoniyi Onabule for the Appellant.
Rotimi Oyedepo with I.A. Mohammed for the Respondent.
Reported by Optimum Law Publishers Limited (Publishers
of the Nigerian Monthly Law Reports (NMLR))
“There cannot be any nascent democracy, if Judicial
Officers are placed in a precarious situation, wherein they are
exposed to potential intimidation, threat, harassment or incessant
arrest for any alleged act or conduct carried out in discharging
their judicial functions or an allegation of official misconduct,
without following due process/ procedure. The due process here,
involves making a complaint to the NJC, allowing it to act and
carry out its duties pursuant to its powers conferred by the
provision of the 3rd Schedule to the 1999 Constitution (as
amended”
In the Court of Appeal of
Nigeria
In the Lagos Judicial Division
Holden at Lagos
On Monday, the 11th Day of December,
2017
Before Their
Lordships
Mohammed Lawal Garba
Yargata Byenchit Nimpar
Abimbola Osarugue
Obaseki-Adejumo
Justices, Court of Appeal
CA/L/969c/2017
Between
Hon. Justice Hyeladzira Ajiya
Nganjiwa ………Appellant
And
Federal Republic of Nigeria
……Respondent
(Lead Judgement delivered by
Hon. Abimbola Osarugue Obaseki-Adejumo, JCA)
Facts
By a 14 Count Information dated 8th June, 2017, the Appellant
was charged for offences ranging from unlawful enrichment by a
Public Officer, to giving false information contrary to the
Criminal Law of Lagos State, No. 11 of 2011 and Section 39(2)(a) of
the EFCC (Establishment) Act, 2004. Upon being served with the
Information, the Appellant promptly filed a Notice of Preliminary
Objection. The Appellant challenged the jurisdiction of the trial
Court to hear the case, on the ground that the condition precedent
to the filing of the Information had not been complied with.
Delivering its Ruling on the Preliminary Objection, the trial Court
dismissed same, further to which the Appellant filed this appeal
against the decision.
Issue for Determination
Two issues were distilled by the Appellant for determination.
The Respondent on its part formulated a sole issue for
determination. The Court observed that the second issue formulated
by the Appellant can be subsumed under issue one, which encompassed
the Respondent’s sole issue –
Whether the lower Court can validly exercise criminal
jurisdiction over a sitting Judicial Officer (the Appellant),
whilst still occupying such office without first satisfying the
condition precedent of subjecting such Judicial Officer to the
disciplinary jurisdiction of the National Judicial Council, as
provided for in the Constitution of the Federal Republic of
Nigeria, 1999 (as amended).
Arguments Proffering arguments on the issue, Counsel for the
Appellant conceded that the Appellant, like any other Judicial
Officer, is not immune from criminal prosecution. Counsel however,
contended that the Appellant (and any other Judicial Officer), must
be first subjected to the disciplinary jurisdiction of the National
Judicial Council (NJC), before such Officer can be arraigned for
criminal prosecution (if need be). He argued that due process must
be adhered to, in order to maintain respect and sanctity of the
Rule of Law. In aid of his submission, he relied on Section 158(1)
and Paragraph 21(b) of the Third Schedule to the Constitution of
the Federal Republic of Nigeria, 1999 (as amended), in urging the
Court to hold that recourse must be had first to the NJC to
exercise disciplinary control over any allegation of misconduct
against a Judicial Officer. Having not satisfied this condition
before preferring the Charge against the Appellant, the Respondent
did not validly invoke the jurisdiction of the trial Court.
UAC v MACFOY (1961) 3 WLR 1405 at 1409; MADUKOLU v
NKEMDILIM (1962) 1 ANLR 583.
Counsel submitted further that, in exercising its Constitutional
powers, the NJC shall be supreme as it is not subject to the
direction of any other authority. He posited that, going by the
constitutionally guaranteed provisions on Separation of Powers, the
NJC is a creation of the Constitution and as such, its powers to
discipline persons within its control cannot be interfered with by
any authority, the Economic and Financial Crimes Commission (EFCC)
and the Attorney-General of Lagos State inclusive. He relied on
Sections 4 – 6, 153, 158, 160, 292, 318 and Paragraph 21(b) of the
Third Schedule to the 1999 Constitution. Counsel contended that
what was contemplated and provided for in the Constitution, is the
removal of a Judicial Officer and not conviction, because mere
conviction cannot remove the toga of such Officer. Hence, the need
for the NJC to appropriately remove or suspend the Judicial Officer
especially as the operative word “shall” in Paragraph 21(b)
thereof, gives no room for discretion of the Court.
For the Respondent, it was argued that, the doctrine of Judicial
Immunity does not protect a serving Judicial Officer against
criminal proceedings when he is reasonably suspected to have
committed a criminal offence. Counsel submitted that, the
Information preferred against the Appellant resulted from his
extra-judicial acts in contravention of the law under which he was
charged. CANDIDE-JOHNSON v EDIGIN (1990)
LPELR-20108(CA). He argued that Section 158 of the 1999
Constitution relied on by the Appellant, neither grants him
immunity from criminal prosecution nor create any condition
precedent(s) for the prosecution of Judicial Officers. He argued
that Paragraph 21(b) of the Third Schedule to the 1999
Constitution, was to empower the NJC to recommend removal of
Judicial Officers to the President and to exercise disciplinary
control over them. Thus, criminal prosecution and disciplinary
proceedings of the NJC can go on simultaneously, and if there is
any one that should be made to await the determination of the
other, it is the proceeding of the NJC. OKAFOR v
MADUBUKO (2000) 1 NWLR (Pt. 641) 473; FRN v VIJAY
LALWANI APPEAL (2013) LPELR-20376(CA).
Court’s Judgement and Rationale
Deciding the sole issue, Their Lordships held that the Criminal
Laws of Lagos State and the EFCC Act, 2004 provide for the
prosecution of any person suspected to have committed the offences
levelled against the Appellant. However, being a serving Judicial
Officer, the Appellant is under the disciplinary powers of the NJC
as provided for in the Constitution. By the combined reading of
Section 158(1) and Paragraph 21(b) of the Third Schedule to the
1999 Constitution, the NJC is the sole body with authority to
recommend the appointment and removal of a Judicial Officer; the
NJC also exercises disciplinary control over erring Officers.
Whenever a breach of Judicial Oath occurs, it is misconduct and
the NJC is the appropriate body to investigate such breaches by the
Officer; if found culpable, the Officer shall be subjected to
disciplinary actions such as recommendation to the President or
Governor for removal from office in line with The
Judicial Discipline Regulation of May, 2017. It is
upon acceptance of this recommendation by the appropriate
authority, that the relevant law enforcement agent or agency, can
prosecute the Judicial Officer. Any attempt to by-pass the NJC,
will be tantamount to failure to observe a condition precedent; a
direct violation of the provisions of the Constitution and
usurpation of the Constitutionally guaranteed powers of the NJC.
ELELU-HABEEB & ANOR. v A-G FEDERATION &
ORS (2012) 13 NWLR (Pt. 1318) 423; OPENE v NJC
& ORS (2011) LPELR-4795(CA).
The Court held further that, in the administration of justice,
it is a necessity that due process must be adhered to. A salient
condition for the exercise of jurisdiction of Court in a given
case, is that the suit must have been commenced by due process of
law and upon fulfilment of any condition precedent to assumption of
jurisdiction. MADUKOLU v NKEMDILIM
(supra). Thus, the power conferred on the NJC to
discipline erring Judicial Officers and the procedure stated in the
Constitution, must be adhered to first before any other action is
taken in the matter.
By the relevant provisions of the Constitution, no authority can
interfere with or direct the exercise of the powers of
the NJC without having shown that the NJC has concluded its
investigation (as the sole body empowered to determine allegations
of misconduct, inclusive of bribery and corruption, against its
Officers). It is only when the NJC has given a verdict and handed
such Officer (removing his toga of judicial powers) to the
prosecuting authority, that he may be investigated and prosecuted
by the appropriate security agencies. This is the purport of
Section 158(1) of the Constitution.
Interestingly, Section 158(1) and paragraph 21(b) of the Third
Schedule to the 1999 Constitution, were not contained in the
preceding Constitutions. This underscores the point that the
intention of the framers of the Constitution is to confer supremacy
over the affairs of the judiciary on the NJC, and this special
position cannot be superseded even by the powers granted to the
EFCC under the enabling Act or case law.
The Constitution is the grundnorm; it supersedes any
Act of the National Assembly. ADISA v OYINWOLA (2000)
LPELR-186(SC). The EFCC being a creation of the National Assembly,
is subject to the dictates of the Constitution – Section 1 of the
1999 Constitution. The EFCC, Department of State Security (DSS) or
any other law enforcement agency, have powers over all persons, but
when a Constitutional provision has set out what is to be done
before the exercise of such power, it must be complied with, else
the procedure will be a nullity.
It is to be noted that, time does not run against the State in
criminal matters; prosecution can be carried out at any time, but
with recourse to due process. Given the fact that the defined
condition precedent for filing a Charge against the Appellant was
not fulfilled, it follows that the trial Court lacked the requisite
jurisdiction to try the case. All the proceedings embarked on by
the Court amount to nullity.
Appeal Allowed; Charge No. LD/4768C/2017 was Struck
Out.
Representation: Robert Clarke, SAN with O. Oladele, I.S. Matesun
and Omoniyi Onabule for the Appellant.
Rotimi Oyedepo with I.A. Mohammed for the Respondent.
Reported by Optimum Law Publishers Limited (Publishers
of the Nigerian Monthly Law Reports (NMLR))
Read more https://nairalaw.com/constitutionality-of-the-efcc-prosecuting-a-serving-judicial-officer/