On Monday, the 11th of December, 2017, in a unanimous
decision of a three man panel of the Court of Appeal Lagos division
led by the Hon Justice Mohammed Lawal Garba and in a leading
judgment rendered by My Lady, the Hon. Justice, Abimbola Osarugue
Obaseki Adejumo, the appellate court set aside the decision of the
Lagos state High Court, Coram Akintoye who had overruled the
Preliminary Objection on grounds of jurisdiction at the
instance of the Appellant, a serving justice of the Federal High
Court who was the defendant at the lower court, by holding that the
court was seized of the jurisdiction to try the appellant who was
dragged before it on a 14-count information for several offences
bordering on misconduct in the discharge of his duties as a
judicial officer.
Aggrieved by this decision of the trial court, the Appellant had
appealed to the Court of appeal which said court in a decision
which forms the crux of this intervention, overruled the state High
Court and held that it had no jurisdiction to try the said judge,
the prosecuting agency, in this case, the Economic and Financial
Crimes Commission (EFCC) having not complied with the condition
precedent that would have clothed the court with jurisdiction, as
in the language of the appellate court, “it is not the norm to rush
to prosecution, when the bolts are still out”.
This novel decision which legal pundits have referred to as
controversial, has caused a ripple among stakeholders in the
judicial sector so much that some distinguished members of the bar
have advocated for a further appeal of the decision to the Supreme
Court, while some others have hailed it for emphasising the time
honoured principle of separation of powers as enunciated by French
political philosopher, Charles-Louis de Secondat, Baron de
Montesquieu and for its acting as a buffer that would prevent the
judiciary from undue exposure to ridicule and embarassment.
I had caught wind of this development on the back page of the
This Day Newspapers of Friday, 15th December, 2017 in an
article entitled, “The Protest Judgment of the Court of Appeal” and
authored by the legal giant( even though of a diminutive frame) and
Rights activist, Femi Falana, SAN wherein the erudite lawyer,
obviously aggrieved by the decision of the appellate court, which
was writ large in the said article, took the appellate court to
task for a decision which according to him was a protest by the
appellate court in the wake of the embarrassment the hierarchy of
the judiciary has been exposed to since the raid in the living
quarters of judges in different locations across the country. In
the words of the distinguished silk, “having read and digested the
landmark judgment which has generated and interesting debate in
legal circles, I have come to the irresistible conclusion that it
was a protest judicial decision against the special treatment being
accorded to certain personalities and criminal suspects by the
Buhari administration in the prosecution of the war against
corruption. Hence the court did not cite any decided case in
Nigeria or any other common law country.”
Not being seized of the facts of this case shorn of the
sensational reportage in the media, I had refrained from commenting
on the said legal debate until at a time when I am confronted with
the judgement of the appellate court and the reason(s) for its
decision thereof. Thanks to the ingenuity of the Law Pavilion
technology, I have been able to read and digest this landmark
decision of the appellate court, and have since come to the firm
and considered view that the said judgment was sound both in Law
and Equity against the cacophonous mutterings making the rounds
here and there.
It is against the backdrop of the foregoing, that we have
decided to weigh in on this debate as stakeholders in the scheme of
things, and also in the discharge of a duty we owe the general
society as custodians of the law and the practice of it. Before I
continue, let me say right away that having read this vexed
decision; I am of the view that the judgment, contrary to what the
learned senior advocate had submitted in his article, was not a
decision based on sentiments, nor was it a case of the Court of
Appeal playing Shylock to levy the judiciary’s “pound of
flesh”. Neither was it, in clearer terms the judiciary’s own
way of being selective in the anti-graft war in the same manner the
Buhari presidency has been alleged to be prosecuting the war
against corruption, in what may be called a ‘judicial esprit de
corps’ or comradeship. It is therefore unfair, we submit, to the
justices for a senior advocate of no mean status, to scandalise
their persons and rubbish their erudition with such an unfounded
and extravagant charge, which is at best a figment of his
imagination.
Also, whereas the senior advocate had alleged that the appellate
court did not cite any decided case to buttress its decision,
anybody who have read the landmark decision would readily discover
that the eminent legal practitioner, was being economical with the
truth and thus must have misled unsuspecting members of the public
who hold people of his pedigree at the bar, in high esteem. Against
this backdrop, I find it difficult not to come to the conclusion
that the learned senior advocate with the greatest deference is
indebted in terms of an unreserved apology to the three man panel
of the Court of Appeal, for his crass tarnishing of their
reputation in the estimation of their brother justices and general
members of the public.
Now, the cardinal issue that appear to have upset the
jurisprudential apple cart and which has led to the hoopla now
causing a storm among watchers of the events in the polity, as I
perceive it, is the somewhat ‘technical immunity’ which the said
decision is said to have conferred on judicial officers, a
development which many have criticised for being at poles with the
clear provisions of section 308(3) of the 1999 Constitution of the
Federal Republic of Nigeria (as amended) which confers immunity
from criminal prosecution to only the President, Vice president,
Governors of states and their deputies during the period of their
stay in office.
But a calm and measured consideration of the ratio
decidendi of the appellate court would reveal otherwise. The
panel must have envisaged this erroneous interpretation of their
decision, and as such left no one in any doubt when it held in the
report, “ no judicial officer is covered by immunity from
prosecution under the constitution as the constitution only grants
the powers to discipline judicial officers for official misconduct
to the National Judicial Council”.
The basic question that must be answered one way or the other in
order to unravel the legal puzzle however is: whether the EFCC
could prosecute a serving judicial officer for criminal offences
bordering on the discharge of his official duties without the NJC,
pursuant to the provisions of paragraph 21(b) of the Third Schedule
to the 1999 constitution, having recommended such judicial officer
to the president or governor as the case may be, for removal in
exercise of its peculiar disciplinary control over every serving
judicial officer? This poser, for its obvious jurisdictional
consequences is at the root of the instant debate.
Two schools of thought have since morphed out since the decision
became a common knowledge. On the one hand are those who argue that
being a prosecuting agency created by Statute, the EFCC need not
take the NJC runway towards prosecuting judicial officers found for
official misconduct while, on the other side of the gulf are those
who argue that before the EFCC could prosecute judicial officers
for offences bordering on official misconduct, it must abide the
removal of such judicial officer by the NJC after investigation and
recommendation to the president or governor thereof.
Against the backdrop of the parallel positions of the two
schools, it is apposite at this juncture to consider the provisions
of the law as it relates to the powers of the NJC in the discipline
and control of judicial officers. Firstly, Section 153(1) (i
) of the 1999 Constitution, establishes the National Judicial
Council among a host of other Federal Executive Bodies and
similarly in section 158(1), the same constitution provides that,
“in exercising its disciplinary control over persons……………the
council, SHALL not be subject to the direction or
control of any other authority or person” (emphasis
mine). The use of “shall” in a statutory provision
suggests a compulsion which cannot be pre-empted. In OJU L.G V.
INEC, [2007] 14 NWLR (PT. 1054), the Court of Appeal, per. ADEKEYE,
J.C.A observed poignantly as follows, “It is trite that where
‘shall’ is used in a statute, the intention of the legislators is
that it is capable of bearing many meanings. It may be implying
futurity or implying a mandate or direction or giving permission.
If it is used in a mandatory sense then the action to be taken must
obey or fulfil the mandate exactly, but if it is used in a
directory sense, then the action to be taken is to obey or fulfil
the directive substantially. Ifezie v. Mbadugha (1984) 1 SCNLR pg
427 Amadi v. NNPC (2000) 10 NWLR (Pt. 674) pg 76″. The
unmistakable import of section 158(1) it necessarily follows, must
be that in cases of misconduct on the part of judicial officers, as
played out in the instant case, it falls on the laps of the NJC to
investigate such officers, and after having found them guilty of
the allegations, recommend them for dismissal to the president or
governor as the case may be after having stripped them of their
judicial privileges and have them walk into the arms of the
by-standing prosecutorial agency for prosecution in open court.
It is argued by some persons, that the EFCC being a prosecuting
agency need not fetter its statutory powers to the NJC which
according to them is at best, an administrative and quasi-criminal
body and hence cannot exercise full criminal jurisdiction over its
members who have been founding wanting in the discharge of their
duties. But anybody with the basic knowledge of the workings of the
constitution would readily see that arguments of that kind are
misconceived. Firstly, the EFCC Act, though a creation of statute,
cannot override the provisions of the constitution. And at any
point the provisions of the Act comes at loggerheads with those of
the constitution, section 1(3) of the Constitution must operate so
as to render such provision of the Act, null and void to the degree
or extent of its inconsistency; the Constitution being the
grundnorm from which other laws owe their sustenance as propounded
by the legal philosopher Hans Kelsen in his “Pure Theory of
Law”.
Now, section 158(1) of the 1999 Constitution is clear to the
effect that in the discharge of its duties, the NJC would not be
subject to any form of external control. This goes to say that, the
constitution has in its wisdom conceded the discipline of judicial
officers to the Council where the offence in question borders on
the discharge of their official duties. And the reason for this
cannot be farfetched: it is to avoid an ugly scenario bad for any
democracy where a judge who is alleged to have committed a criminal
offence while discharging his duties stands his trial and at the
same time, presides over his court, since the criminal law presumes
anybody charged with a criminal offence innocent until their guilt
is proved beyond reasonable doubt. See the case of AGBITI V THE
NIGERIAN ARMY (2007) LPELR-4893(CA).
It therefore follows that where any prosecuting agency in
flagrant disobedience of this provisions of the constitution, goes
headlong into filing a charge or an information against a serving
judicial officer, such a step would be tangential to the provisions
of the constitution thus entitling the judicial officer in question
to challenge the jurisdiction of any court to preside over his
trial for not having complied with the prerequisites that would
have clothed the court with jurisdiction.
Lawyers understand the potency of jurisdiction in the
adjudicatory process and the landmark decision of the Supreme Court
in MADUKOLU V NKEMDILI (1962) LPELR-24023 (SC) is
almost a singsong in the profession for having laid down the three
ingredient which must coexist before a court of law could be said
to have the requisite jurisdiction to entertain a matter namely:
the proper constitution as per numbers and qualification of the
members of the bench; the subject matter of the case being that
which the court is constitutionally mandated to entertain and
finally, the initiation of such action through due
process of law(emphasis mine).These three ingredients are
condition precedents which must meet and mate before a court could
carry on with an action. Eminent jurist and former Chief Justice of
Nigeria, per. Muhammad Bello in a glowing phraseology captured the
mystique of jurisdiction in the adjudicatory process in the case of
UTIH & ORS V ONOYIVWE & ORS (1991) LPELR-3436 (SC), where
he held, “…moreover, jurisdiction is blood that gives life to the
survival of an action in a court of law and without jurisdiction,
the action will be like an animal that has been drained of its
blood. It will cease to have life and any attempt to resuscitate it
without infusing blood into it would be an abortive exercise…”
The sum of what i have been trying to submit therefore is, to
the extent that the EFCC circumvented the NJC runway for reasons
best known to it, without having allowed the NJC to exercise its
disciplinary powers over the said judicial officer and possibly
recommend him for removal, the appellate court was right on point,
when it held that the trial high court was robbed of the
jurisdiction to entertain the matter as section 272 of the 1999
Constitution of the Federal Republic of Nigeria (as amended) which
establishes the state high court, subjects its powers to other
provisions of the constitution amongst which are sections 153, 158
and paragraph 21(b) of the Third schedule to the same
constitution.
Now a salient question presents itself: what were the heads of
offences for the judicial officer in question was charged for? A
one of look at the 14 count information reveals that they bordered
on “unlawful enrichment by a judicial officer” which are well
within the precincts of “misconduct or contravention of the Code of
Conduct for judicial officers” pursuant to section 292(1)(a)(ii) of
the 1999 Constitution which may be criminal in nature and a host of
other disciplinary codes of the NJC. The Black’s Law Dictionary,
9th Edition at page 1019 defined the word “Misconduct”
as a “Dereliction of duty or improper behaviour”. Official
misconduct has also been defined by the same dictionary as “A
public Officer’s corrupt violation of assumed duties by misconduct
in office or official corruption”. It follows a
priori that “unlawful enrichment by a judicial officer” sits well
within acts of official misconduct which the constitution in its
superior wisdom ceded to the NJC the disciplinary vires. In
the earlier case of OPENE V NATIONAL JUDICIAL COUNCIL & ORS
(2011) LPELR-4795(CA), the Court of Appeal, Per. GALINJE JCA (as he
then was), while stating the peculiar role of the NJC in the
discipline of judicial officers opined succinctly as follows, “the
responsibility to recommend to the president the removal of
judicial officers is given to the National Judicial Council. If the
Constitution intended that such misconduct must be subject to the
trial court, it would have said so. It would have said for example,
that any judicial officer convicted by the court shall be removed
from office by the president on the recommendation of the NJC. The
Constitution did not make such provision. Rather the constitution
that gave the court the power to try criminal offences also gave
the NJC the power to investigate allegation of misconduct against
judicial officers and make recommendation for their removal…”
To be sure, it would have been a different ball game if the
criminal acts complained of do not flow from the discharge of the
official duties of a judicial officer. The NJC predictably would
not invoke its powers under paragraph 21(b) of the Third schedule
to the 1999 Constitution in a situation whereby a serving judicial
officer is charged with offences such as arson, manslaughter, rape,
sexual assault, armed robbery, theft and a whole lot of other
felonies and/or misdemeanours. That would tantamount to an undue
application of the import of those provisions. And the Court of
Appeal pointedly didn’t mince words about this when it
observed as follows in the report, “It must be expressly stated
that if a judicial officer commits theft, fraud, murder or
manslaughter, arson and the likes, which are crimes committed
outside the scope of the performance of his official functions, he
may be arrested, interrogated and prosecuted accordingly by the
State DIRECTLY without recourse to the NJC.
These classes of criminal acts are not envisaged and captured by
the provisions of Paragraph 21, Part 1 of the Third
Schedule”.
The argument of the counsel to the EFCC to the effect that the
criminal proceedings against a serving judge could go on
simultaneously with the administrative disciplinary processes of
the NJC, it is submitted with the greatest respect cannot hold
water as it paints an ugly picture of a person standing ‘trial’for
the same offence before two tribunals against the time honoured
principle of natural justice. It is counterintuitive to suggest
that the NJC have to wait for a court to finish before it can
exercise its disciplinary powers, this is more so as time does not
run against the commission of a criminal offence. What would have
been more proper to do here, was for the EFCC to petition the NJC,
forward relevant proofs of evidence indicting the judicial officer
in question to the council and allow the body to make a
recommendation one way or another, before filing information at the
High Court. This is the process that accords with good reason in
the face of the relevant provisions of the constitution. Anything
otherwise, would amount to an act of misfeasance, which the courts
are not wont to condone. And because they have taken a wrong
course, there is no way they could have gotten to their
destination. In the Rule of Law, the end does not justify the
means.
I have also noticed the bedlam proceeding from the aviary of the
EFCC and a section of the Civil Society suggesting that a decision
along this line would amount to granting immunity to the judiciary
which is not envisaged by the 1999 constitution. This position we
submit, amounts to a jurisprudential misconception of the issue
that was before the court. That would have been the case, if the
appellate court made a declaration to the effect that judicial
officers are not liable for criminal prosecution while they are
still on service. But that was not the decision of the court. It is
therefore pretty preposterous that the court is charged with
granting a sort of immunity to serving judicial officers. In any
event, what was before the court was not the question whether
section 308 of the 1999 Constitution applied to judicial officers?
On the contrary, the appellate court was asked to decide whether a
judicial officer could be prosecuted for a criminal offence that
proceeds from the discharge of his official duties, without having
been recommended for dismissal by the NJC. And anybody schooled in
the basic knowledge of the salient provisions of the constitution
would answer the later poser in the negative in ad idem with the
appellate court.
What remains is to validate the interpretation of the relevant
provisions of the constitution by the Court of Appeal in the manner
it did before it came to its sound conclusion. Now, Constitutional
provisions are not just a body of do’s and don’ts. It constitutes
the framework of the workings of the state. That is to say, the
peaceful and harmonious coexistence of the state is anchored on the
workings of the constitution and in appropriate cases the
interpretation of same by the courts. It has severally been
described as a “living document providing a framework for the
governance of a country not only for now but for generations yet
unborn”. It is for this reason therefore, that the Supreme Court
has in an avalanche of cases emphasised the need for law courts to
put a construction on constitutional provisions that would unearth
and strive to meet the intentions of the draftsman of the document.
In the old celebrated case of BRONIK MOTORS LTD & ANOR V WEMA
BANK LTD, (1983) LPELR-808(SC), the apex Court, per. NNAMANI AGU
(of blessed memory) observed poignantly as follows, “it has been
accepted by all our Courts that a broad and liberal spirit should
prevail in interpreting the provisions of our constitution although
one has to bear in mind the object, which such provisions were
intended to serve”. This much, was also beautifully emphasised by
the same court, Per.Udo Udoma (May the peace of the Lord be with
him) in the celebrated case of NAFIU RABIU V THE STATE (1980) 8-11
SC where the eminent jurist enthused, “My lords, it is my view that
the approach of this Court to the construction of the Constitution
should be and so it has been, one of liberalism, probably a
variation of the theme of the general maxim ut res magis valeat
quam pereat. I do not conceive it to be the duty of this court to
construe any of the provisions of the constitution as to defeat the
obvious ends the Constitution was designed to serve where another
construction equally in accordance and consistent with the words
and sense of such provisions will serve to enforce and protect such
ends”.
Now, a coterminous reading of the provisions of sections 6,
153(1), 158, 292(1)(ii) and paragraph 21(b) of the Third
Schedule to the 1999 Constitution, (since statutory provisions are
to be considered as whole and not in isolation), would make it
manifestly clear that it was not the intention of the draftsman of
the Constitution to subject judicial officers still in service to
trial in open court like common criminals. It must be for this
reason that the NJC, a body comprising of distinguished members of
the legal profession both at the Bench and Bar and curated by no
less a person than the Chief Justice of the Federation, was
established to see to the discipline of judicial officers alleged
to have committed acts of official misconduct, not minding whether
those acts of misconduct offend other provisions of the law. The
authors of our foundational documents must have thought it that
until the judicial toga is taken off serving judicial officers,
they carry with them that honour and integrity usually accorded to
judges by the general public. And since it is the NJC that have the
powers to take off this toga after having found the serving officer
guilty as alleged, and onward recommendation to the president or
governor for removal, it would be against the spirit of the laws to
subject such an officer to trial in open court by any prosecuting
agency without having stripped them of the privileges accorded a
judicial officer, which is usually in the form of outright
dismissal or removal.
The powers of the NJC must not be taken lightly when exercising
its powers of discipline and or other sundry powers over judicial
officers. It is not for nothing that the Constitution donates the
powers of appointment and removal of every serving judicial officer
on this body with the president and governors of state playing
little or no roles at all since they are bound by the decision of
the Council. The decision of the Supreme Court in the celebrated
case of HON. JUSTICE RALIAT ELELU-HABEEB & ANOR V THE HON.
ATTORNEY GENERAL OF THE FEDERATION & ORS (2012) LPELR-SC.
281/2010 to the effect that the governor of a state and the House
of Assembly of a state can only exercise their powers of
appointment and removal of the Chief judge of a state in
conjunction with the NJC and that both cannot initiate disciplinary
proceedings against a serving judge of the state without the input
of the NJC, up until this day stand tall as a monument of
protection to the judiciary in order to protect and shield it
from undue interference by the other arms of government
(id.est) the executive, in keeping faith with the
principle of separation of powers and emphasising the independence
of the judiciary.
The proper construction to be laid on the above provisions of
the constitution therefore is that which would not expose the
judiciary to undue ridicule and embarrassment such as would make
nonsense of its lofty position in any democracy, especially in a
burgeoning one such as ours. I therefore associate myself with the
sentiments of the Court of Appeal, to the effect that “any act or
action by any agency or the Executive Government of any part of the
Federation which tends to or may be seen as an attempt to cow a
vital component of the Judiciary from performing its constitutional
functions as envisaged under the Constitution must not be
encouraged or allowed if the tenets of democracy and the real true
and correct doctrine of separation of powers is to be entrenched.
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 the due process/procedure. The due procedure here
involves making a complaint to the NJC, allowing it to act and
carry out duties pursuant to its powers conferred by the provision
of the 3rd Schedule to the 1999 Constitution (as
amended)”.
It has also been canvassed by some persons that the decision
would open the floodgate of similar objections premised on grounds
of jurisdiction by civil servants in the employ of other agencies
of government established by section 153 of the 1999 Constitution
who may feel entitled to hide under the canopy of section 158 of
the 1999 Constitution to say that the High Court cannot exercise
criminal jurisdiction over them until the administrative
jurisdiction of the Federal Public Service Commission have been
invoked against them in the event they are alleged of committing
any acts of official corruption. The learned Senior Advocate in his
article put it thus, “…out of ingenuity, some lawyers are going to
invoke the constitutional right of equality of all citizens before
the law to challenge the validity of the criminal cases pending
against civil servants on the grounds that the administrative
jurisdiction of the Federal Public Service Commission has not been
invoked against them. More so that the NJC and other executive
bodies have been created by section 158 of the Constitution of the
federal Republic of Nigeria as amended.” He extended it beyond the
public service by suggesting that “even professionals in the
private sector who are standing trial for corruption will rely on
the judgment of the Court of Appeal and insist on going through
administrative procedure before they can be prosecuted in any
court”.
With the greatest deference, nothing can be more misleading. The
time honoured principle of judicial precedent is not a magic wand
that counsel could wave at will. The peculiar circumstances upon
which a case was decided by a superior court must be taken into
consideration for the decision thereof, to be binding in the case
at hand. This much has been re-echoed by the Supreme Court in a
plethora cases, hence why the doctrine of Distinguishing Precedent
has since emerged as an adjunct of the doctrine of judicial
precedent. In the recent case of UDO V STATE (2016)
LPELR-40721 (SC), the Supreme Court, Per. KEKERE-EKUN J.S.C
restated the position thus, “It is important to bear in mind that
the decision of a Court must always be considered in the light of
its own peculiar facts of circumstances. No case is IDENTICAL to
another, though they may be similar. Thus each case is only an
authority for what it decides, and nothing more. See SKYE BANK PLC
&ANOR V. CHIEF MOSES BOLALLE AKINPELU (2010)9 NWLR (PT 1198)
179; OKAFOR V. NNAIFE (1987) 4 NWLR (PT. 64) 129.” Any unscrupulous
civil servant who therefore intends to make a kill off the decision
would be “underestimating the sharp sense of perception and wisdom
of the appellate courts to sift the wheat from the chaff” as was
admonished by My Lord, Boloukuromo Moses Ugo, J.C.A in the recent
case of U.I.T.H.M.B V ABDULRAHAMAN [2017] 15 N.W.L.R. (PT 1589)
397.
Anybody who has followed events in the judicial sector would
agree that the NJC has always risen up to fight the prostitution of
its membership by unscrupulous and dubious judicial officers. Cases
abound of serving judicial officers who have severally been
dismissed by the council on petitions written to it from members of
the public. Last year, at the 78th meeting of the
Council, it recommended the compulsory retirement from office of a
serving justice of the Ilorin division of the Court of Appeal as
well as outright dismissal from service of a serving judge of the
Kano State High Court. The Council, it would be recalled, also
wielded its proverbial big stick last year against a former chief
judge of Enugu State who is currently being hounded by the
EFCC for offences bordering on official corruption. Also in an act
which could be described as a cleaning of the Aegean stables, the
NJC, sometime this year, sanctioned a judge of the Abia State High
Court and his counterpart in Zamfara for various acts of misconduct
bordering on official corruption. In April, 2016, the NJC it was
also reported fired two judges of the Lagos and Niger State High
Courts respectively for acts of judicial misconduct. Only two weeks
ago, the council wrote to the president of the Federal Republic of
Nigeria, recommending the dismissal from service of a former judge
of the Federal High Court. One could go on and on to rehash
different instances where the NJC has risen to its constitutional
mandate to exercise disciplinary actions against serving judicial
officers. It is therefore, most outlandish to suggest that the
council, seeks the protection of its own from any acts of
prosecution. In any event, the decision of the council is subject
to Judicial Review so as to enable anybody who feels the council
was bias in the discharge of petitions written to it, to approach
the courts for a review of the decision upon good cause shown.
In sum, we come to the conclusion that the judgement of the
Court of Appeal in the case at hand, deserves to be hailed for its
boldness in asserting the independence of the Judiciary and for
further sounding into the ears of those who would listen, that the
judicial arm of government must not kowtow to the whims and
caprices of any of the other arms of government nor would it allow
itself to be exposed to any undue embarrassment or ridicule from
any quarters. It is not a “protest judgment” as some persons have
alleged, neither was it reached out of comradeship at the bench. On
the obverse, it is a policy document for the enthronement of the
Rule of Law and a conscious reminder to prosecuting agencies that
Lady Justice does not approve of the circumventing of her process.
I find the case to be of equipollence in terms of the novelty of
what it decides, with the likes of AMAECHI V INEC (2007) 18 NWLR(PT
1065)98; INAKOJU V ADELEKE (2007) 4 NWLR (PT. 1025) 423; PETER OBI
V INEC (2007) 11 NWLR (PT. 1046) 560 among others for its relevance
in our democratic experiment and I have no doubt in my mind, that
should the decision be the subject of an appeal to the Supreme
Court, the latter would waste no time in affirming same and hailing
the industry of the appellate Court.
Nkannebe Raymond, a legal practitioner and public
interest litigator is of Synergy Attornies, Lagos state. Comments
and reactions to raymondnkannebe@gmail.com.
On Monday, the 11th of December, 2017, in a unanimous
decision of a three man panel of the Court of Appeal Lagos division
led by the Hon Justice Mohammed Lawal Garba and in a leading
judgment rendered by My Lady, the Hon. Justice, Abimbola Osarugue
Obaseki Adejumo, the appellate court set aside the decision of the
Lagos state High Court, Coram Akintoye who had overruled the
Preliminary Objection on grounds of jurisdiction at the
instance of the Appellant, a serving justice of the Federal High
Court who was the defendant at the lower court, by holding that the
court was seized of the jurisdiction to try the appellant who was
dragged before it on a 14-count information for several offences
bordering on misconduct in the discharge of his duties as a
judicial officer.
Aggrieved by this decision of the trial court, the Appellant had
appealed to the Court of appeal which said court in a decision
which forms the crux of this intervention, overruled the state High
Court and held that it had no jurisdiction to try the said judge,
the prosecuting agency, in this case, the Economic and Financial
Crimes Commission (EFCC) having not complied with the condition
precedent that would have clothed the court with jurisdiction, as
in the language of the appellate court, “it is not the norm to rush
to prosecution, when the bolts are still out”.
This novel decision which legal pundits have referred to as
controversial, has caused a ripple among stakeholders in the
judicial sector so much that some distinguished members of the bar
have advocated for a further appeal of the decision to the Supreme
Court, while some others have hailed it for emphasising the time
honoured principle of separation of powers as enunciated by French
political philosopher, Charles-Louis de Secondat, Baron de
Montesquieu and for its acting as a buffer that would prevent the
judiciary from undue exposure to ridicule and embarassment.
I had caught wind of this development on the back page of the
This Day Newspapers of Friday, 15th December, 2017 in an
article entitled, “The Protest Judgment of the Court of Appeal” and
authored by the legal giant( even though of a diminutive frame) and
Rights activist, Femi Falana, SAN wherein the erudite lawyer,
obviously aggrieved by the decision of the appellate court, which
was writ large in the said article, took the appellate court to
task for a decision which according to him was a protest by the
appellate court in the wake of the embarrassment the hierarchy of
the judiciary has been exposed to since the raid in the living
quarters of judges in different locations across the country. In
the words of the distinguished silk, “having read and digested the
landmark judgment which has generated and interesting debate in
legal circles, I have come to the irresistible conclusion that it
was a protest judicial decision against the special treatment being
accorded to certain personalities and criminal suspects by the
Buhari administration in the prosecution of the war against
corruption. Hence the court did not cite any decided case in
Nigeria or any other common law country.”
Not being seized of the facts of this case shorn of the
sensational reportage in the media, I had refrained from commenting
on the said legal debate until at a time when I am confronted with
the judgement of the appellate court and the reason(s) for its
decision thereof. Thanks to the ingenuity of the Law Pavilion
technology, I have been able to read and digest this landmark
decision of the appellate court, and have since come to the firm
and considered view that the said judgment was sound both in Law
and Equity against the cacophonous mutterings making the rounds
here and there.
It is against the backdrop of the foregoing, that we have
decided to weigh in on this debate as stakeholders in the scheme of
things, and also in the discharge of a duty we owe the general
society as custodians of the law and the practice of it. Before I
continue, let me say right away that having read this vexed
decision; I am of the view that the judgment, contrary to what the
learned senior advocate had submitted in his article, was not a
decision based on sentiments, nor was it a case of the Court of
Appeal playing Shylock to levy the judiciary’s “pound of
flesh”. Neither was it, in clearer terms the judiciary’s own
way of being selective in the anti-graft war in the same manner the
Buhari presidency has been alleged to be prosecuting the war
against corruption, in what may be called a ‘judicial esprit de
corps’ or comradeship. It is therefore unfair, we submit, to the
justices for a senior advocate of no mean status, to scandalise
their persons and rubbish their erudition with such an unfounded
and extravagant charge, which is at best a figment of his
imagination.
Also, whereas the senior advocate had alleged that the appellate
court did not cite any decided case to buttress its decision,
anybody who have read the landmark decision would readily discover
that the eminent legal practitioner, was being economical with the
truth and thus must have misled unsuspecting members of the public
who hold people of his pedigree at the bar, in high esteem. Against
this backdrop, I find it difficult not to come to the conclusion
that the learned senior advocate with the greatest deference is
indebted in terms of an unreserved apology to the three man panel
of the Court of Appeal, for his crass tarnishing of their
reputation in the estimation of their brother justices and general
members of the public.
Now, the cardinal issue that appear to have upset the
jurisprudential apple cart and which has led to the hoopla now
causing a storm among watchers of the events in the polity, as I
perceive it, is the somewhat ‘technical immunity’ which the said
decision is said to have conferred on judicial officers, a
development which many have criticised for being at poles with the
clear provisions of section 308(3) of the 1999 Constitution of the
Federal Republic of Nigeria (as amended) which confers immunity
from criminal prosecution to only the President, Vice president,
Governors of states and their deputies during the period of their
stay in office.
But a calm and measured consideration of the ratio
decidendi of the appellate court would reveal otherwise. The
panel must have envisaged this erroneous interpretation of their
decision, and as such left no one in any doubt when it held in the
report, “ no judicial officer is covered by immunity from
prosecution under the constitution as the constitution only grants
the powers to discipline judicial officers for official misconduct
to the National Judicial Council”.
The basic question that must be answered one way or the other in
order to unravel the legal puzzle however is: whether the EFCC
could prosecute a serving judicial officer for criminal offences
bordering on the discharge of his official duties without the NJC,
pursuant to the provisions of paragraph 21(b) of the Third Schedule
to the 1999 constitution, having recommended such judicial officer
to the president or governor as the case may be, for removal in
exercise of its peculiar disciplinary control over every serving
judicial officer? This poser, for its obvious jurisdictional
consequences is at the root of the instant debate.
Two schools of thought have since morphed out since the decision
became a common knowledge. On the one hand are those who argue that
being a prosecuting agency created by Statute, the EFCC need not
take the NJC runway towards prosecuting judicial officers found for
official misconduct while, on the other side of the gulf are those
who argue that before the EFCC could prosecute judicial officers
for offences bordering on official misconduct, it must abide the
removal of such judicial officer by the NJC after investigation and
recommendation to the president or governor thereof.
Against the backdrop of the parallel positions of the two
schools, it is apposite at this juncture to consider the provisions
of the law as it relates to the powers of the NJC in the discipline
and control of judicial officers. Firstly, Section 153(1) (i
) of the 1999 Constitution, establishes the National Judicial
Council among a host of other Federal Executive Bodies and
similarly in section 158(1), the same constitution provides that,
“in exercising its disciplinary control over persons……………the
council, SHALL not be subject to the direction or
control of any other authority or person” (emphasis
mine). The use of “shall” in a statutory provision
suggests a compulsion which cannot be pre-empted. In OJU L.G V.
INEC, [2007] 14 NWLR (PT. 1054), the Court of Appeal, per. ADEKEYE,
J.C.A observed poignantly as follows, “It is trite that where
‘shall’ is used in a statute, the intention of the legislators is
that it is capable of bearing many meanings. It may be implying
futurity or implying a mandate or direction or giving permission.
If it is used in a mandatory sense then the action to be taken must
obey or fulfil the mandate exactly, but if it is used in a
directory sense, then the action to be taken is to obey or fulfil
the directive substantially. Ifezie v. Mbadugha (1984) 1 SCNLR pg
427 Amadi v. NNPC (2000) 10 NWLR (Pt. 674) pg 76″. The
unmistakable import of section 158(1) it necessarily follows, must
be that in cases of misconduct on the part of judicial officers, as
played out in the instant case, it falls on the laps of the NJC to
investigate such officers, and after having found them guilty of
the allegations, recommend them for dismissal to the president or
governor as the case may be after having stripped them of their
judicial privileges and have them walk into the arms of the
by-standing prosecutorial agency for prosecution in open court.
It is argued by some persons, that the EFCC being a prosecuting
agency need not fetter its statutory powers to the NJC which
according to them is at best, an administrative and quasi-criminal
body and hence cannot exercise full criminal jurisdiction over its
members who have been founding wanting in the discharge of their
duties. But anybody with the basic knowledge of the workings of the
constitution would readily see that arguments of that kind are
misconceived. Firstly, the EFCC Act, though a creation of statute,
cannot override the provisions of the constitution. And at any
point the provisions of the Act comes at loggerheads with those of
the constitution, section 1(3) of the Constitution must operate so
as to render such provision of the Act, null and void to the degree
or extent of its inconsistency; the Constitution being the
grundnorm from which other laws owe their sustenance as propounded
by the legal philosopher Hans Kelsen in his “Pure Theory of
Law”.
Now, section 158(1) of the 1999 Constitution is clear to the
effect that in the discharge of its duties, the NJC would not be
subject to any form of external control. This goes to say that, the
constitution has in its wisdom conceded the discipline of judicial
officers to the Council where the offence in question borders on
the discharge of their official duties. And the reason for this
cannot be farfetched: it is to avoid an ugly scenario bad for any
democracy where a judge who is alleged to have committed a criminal
offence while discharging his duties stands his trial and at the
same time, presides over his court, since the criminal law presumes
anybody charged with a criminal offence innocent until their guilt
is proved beyond reasonable doubt. See the case of AGBITI V THE
NIGERIAN ARMY (2007) LPELR-4893(CA).
It therefore follows that where any prosecuting agency in
flagrant disobedience of this provisions of the constitution, goes
headlong into filing a charge or an information against a serving
judicial officer, such a step would be tangential to the provisions
of the constitution thus entitling the judicial officer in question
to challenge the jurisdiction of any court to preside over his
trial for not having complied with the prerequisites that would
have clothed the court with jurisdiction.
Lawyers understand the potency of jurisdiction in the
adjudicatory process and the landmark decision of the Supreme Court
in MADUKOLU V NKEMDILI (1962) LPELR-24023 (SC) is
almost a singsong in the profession for having laid down the three
ingredient which must coexist before a court of law could be said
to have the requisite jurisdiction to entertain a matter namely:
the proper constitution as per numbers and qualification of the
members of the bench; the subject matter of the case being that
which the court is constitutionally mandated to entertain and
finally, the initiation of such action through due
process of law(emphasis mine).These three ingredients are
condition precedents which must meet and mate before a court could
carry on with an action. Eminent jurist and former Chief Justice of
Nigeria, per. Muhammad Bello in a glowing phraseology captured the
mystique of jurisdiction in the adjudicatory process in the case of
UTIH & ORS V ONOYIVWE & ORS (1991) LPELR-3436 (SC), where
he held, “…moreover, jurisdiction is blood that gives life to the
survival of an action in a court of law and without jurisdiction,
the action will be like an animal that has been drained of its
blood. It will cease to have life and any attempt to resuscitate it
without infusing blood into it would be an abortive exercise…”
The sum of what i have been trying to submit therefore is, to
the extent that the EFCC circumvented the NJC runway for reasons
best known to it, without having allowed the NJC to exercise its
disciplinary powers over the said judicial officer and possibly
recommend him for removal, the appellate court was right on point,
when it held that the trial high court was robbed of the
jurisdiction to entertain the matter as section 272 of the 1999
Constitution of the Federal Republic of Nigeria (as amended) which
establishes the state high court, subjects its powers to other
provisions of the constitution amongst which are sections 153, 158
and paragraph 21(b) of the Third schedule to the same
constitution.
Now a salient question presents itself: what were the heads of
offences for the judicial officer in question was charged for? A
one of look at the 14 count information reveals that they bordered
on “unlawful enrichment by a judicial officer” which are well
within the precincts of “misconduct or contravention of the Code of
Conduct for judicial officers” pursuant to section 292(1)(a)(ii) of
the 1999 Constitution which may be criminal in nature and a host of
other disciplinary codes of the NJC. The Black’s Law Dictionary,
9th Edition at page 1019 defined the word “Misconduct”
as a “Dereliction of duty or improper behaviour”. Official
misconduct has also been defined by the same dictionary as “A
public Officer’s corrupt violation of assumed duties by misconduct
in office or official corruption”. It follows a
priori that “unlawful enrichment by a judicial officer” sits well
within acts of official misconduct which the constitution in its
superior wisdom ceded to the NJC the disciplinary vires. In
the earlier case of OPENE V NATIONAL JUDICIAL COUNCIL & ORS
(2011) LPELR-4795(CA), the Court of Appeal, Per. GALINJE JCA (as he
then was), while stating the peculiar role of the NJC in the
discipline of judicial officers opined succinctly as follows, “the
responsibility to recommend to the president the removal of
judicial officers is given to the National Judicial Council. If the
Constitution intended that such misconduct must be subject to the
trial court, it would have said so. It would have said for example,
that any judicial officer convicted by the court shall be removed
from office by the president on the recommendation of the NJC. The
Constitution did not make such provision. Rather the constitution
that gave the court the power to try criminal offences also gave
the NJC the power to investigate allegation of misconduct against
judicial officers and make recommendation for their removal…”
To be sure, it would have been a different ball game if the
criminal acts complained of do not flow from the discharge of the
official duties of a judicial officer. The NJC predictably would
not invoke its powers under paragraph 21(b) of the Third schedule
to the 1999 Constitution in a situation whereby a serving judicial
officer is charged with offences such as arson, manslaughter, rape,
sexual assault, armed robbery, theft and a whole lot of other
felonies and/or misdemeanours. That would tantamount to an undue
application of the import of those provisions. And the Court of
Appeal pointedly didn’t mince words about this when it
observed as follows in the report, “It must be expressly stated
that if a judicial officer commits theft, fraud, murder or
manslaughter, arson and the likes, which are crimes committed
outside the scope of the performance of his official functions, he
may be arrested, interrogated and prosecuted accordingly by the
State DIRECTLY without recourse to the NJC.
These classes of criminal acts are not envisaged and captured by
the provisions of Paragraph 21, Part 1 of the Third
Schedule”.
The argument of the counsel to the EFCC to the effect that the
criminal proceedings against a serving judge could go on
simultaneously with the administrative disciplinary processes of
the NJC, it is submitted with the greatest respect cannot hold
water as it paints an ugly picture of a person standing ‘trial’for
the same offence before two tribunals against the time honoured
principle of natural justice. It is counterintuitive to suggest
that the NJC have to wait for a court to finish before it can
exercise its disciplinary powers, this is more so as time does not
run against the commission of a criminal offence. What would have
been more proper to do here, was for the EFCC to petition the NJC,
forward relevant proofs of evidence indicting the judicial officer
in question to the council and allow the body to make a
recommendation one way or another, before filing information at the
High Court. This is the process that accords with good reason in
the face of the relevant provisions of the constitution. Anything
otherwise, would amount to an act of misfeasance, which the courts
are not wont to condone. And because they have taken a wrong
course, there is no way they could have gotten to their
destination. In the Rule of Law, the end does not justify the
means.
I have also noticed the bedlam proceeding from the aviary of the
EFCC and a section of the Civil Society suggesting that a decision
along this line would amount to granting immunity to the judiciary
which is not envisaged by the 1999 constitution. This position we
submit, amounts to a jurisprudential misconception of the issue
that was before the court. That would have been the case, if the
appellate court made a declaration to the effect that judicial
officers are not liable for criminal prosecution while they are
still on service. But that was not the decision of the court. It is
therefore pretty preposterous that the court is charged with
granting a sort of immunity to serving judicial officers. In any
event, what was before the court was not the question whether
section 308 of the 1999 Constitution applied to judicial officers?
On the contrary, the appellate court was asked to decide whether a
judicial officer could be prosecuted for a criminal offence that
proceeds from the discharge of his official duties, without having
been recommended for dismissal by the NJC. And anybody schooled in
the basic knowledge of the salient provisions of the constitution
would answer the later poser in the negative in ad idem with the
appellate court.
What remains is to validate the interpretation of the relevant
provisions of the constitution by the Court of Appeal in the manner
it did before it came to its sound conclusion. Now, Constitutional
provisions are not just a body of do’s and don’ts. It constitutes
the framework of the workings of the state. That is to say, the
peaceful and harmonious coexistence of the state is anchored on the
workings of the constitution and in appropriate cases the
interpretation of same by the courts. It has severally been
described as a “living document providing a framework for the
governance of a country not only for now but for generations yet
unborn”. It is for this reason therefore, that the Supreme Court
has in an avalanche of cases emphasised the need for law courts to
put a construction on constitutional provisions that would unearth
and strive to meet the intentions of the draftsman of the document.
In the old celebrated case of BRONIK MOTORS LTD & ANOR V WEMA
BANK LTD, (1983) LPELR-808(SC), the apex Court, per. NNAMANI AGU
(of blessed memory) observed poignantly as follows, “it has been
accepted by all our Courts that a broad and liberal spirit should
prevail in interpreting the provisions of our constitution although
one has to bear in mind the object, which such provisions were
intended to serve”. This much, was also beautifully emphasised by
the same court, Per.Udo Udoma (May the peace of the Lord be with
him) in the celebrated case of NAFIU RABIU V THE STATE (1980) 8-11
SC where the eminent jurist enthused, “My lords, it is my view that
the approach of this Court to the construction of the Constitution
should be and so it has been, one of liberalism, probably a
variation of the theme of the general maxim ut res magis valeat
quam pereat. I do not conceive it to be the duty of this court to
construe any of the provisions of the constitution as to defeat the
obvious ends the Constitution was designed to serve where another
construction equally in accordance and consistent with the words
and sense of such provisions will serve to enforce and protect such
ends”.
Now, a coterminous reading of the provisions of sections 6,
153(1), 158, 292(1)(ii) and paragraph 21(b) of the Third
Schedule to the 1999 Constitution, (since statutory provisions are
to be considered as whole and not in isolation), would make it
manifestly clear that it was not the intention of the draftsman of
the Constitution to subject judicial officers still in service to
trial in open court like common criminals. It must be for this
reason that the NJC, a body comprising of distinguished members of
the legal profession both at the Bench and Bar and curated by no
less a person than the Chief Justice of the Federation, was
established to see to the discipline of judicial officers alleged
to have committed acts of official misconduct, not minding whether
those acts of misconduct offend other provisions of the law. The
authors of our foundational documents must have thought it that
until the judicial toga is taken off serving judicial officers,
they carry with them that honour and integrity usually accorded to
judges by the general public. And since it is the NJC that have the
powers to take off this toga after having found the serving officer
guilty as alleged, and onward recommendation to the president or
governor for removal, it would be against the spirit of the laws to
subject such an officer to trial in open court by any prosecuting
agency without having stripped them of the privileges accorded a
judicial officer, which is usually in the form of outright
dismissal or removal.
The powers of the NJC must not be taken lightly when exercising
its powers of discipline and or other sundry powers over judicial
officers. It is not for nothing that the Constitution donates the
powers of appointment and removal of every serving judicial officer
on this body with the president and governors of state playing
little or no roles at all since they are bound by the decision of
the Council. The decision of the Supreme Court in the celebrated
case of HON. JUSTICE RALIAT ELELU-HABEEB & ANOR V THE HON.
ATTORNEY GENERAL OF THE FEDERATION & ORS (2012) LPELR-SC.
281/2010 to the effect that the governor of a state and the House
of Assembly of a state can only exercise their powers of
appointment and removal of the Chief judge of a state in
conjunction with the NJC and that both cannot initiate disciplinary
proceedings against a serving judge of the state without the input
of the NJC, up until this day stand tall as a monument of
protection to the judiciary in order to protect and shield it
from undue interference by the other arms of government
(id.est) the executive, in keeping faith with the
principle of separation of powers and emphasising the independence
of the judiciary.
The proper construction to be laid on the above provisions of
the constitution therefore is that which would not expose the
judiciary to undue ridicule and embarrassment such as would make
nonsense of its lofty position in any democracy, especially in a
burgeoning one such as ours. I therefore associate myself with the
sentiments of the Court of Appeal, to the effect that “any act or
action by any agency or the Executive Government of any part of the
Federation which tends to or may be seen as an attempt to cow a
vital component of the Judiciary from performing its constitutional
functions as envisaged under the Constitution must not be
encouraged or allowed if the tenets of democracy and the real true
and correct doctrine of separation of powers is to be entrenched.
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 the due process/procedure. The due procedure here
involves making a complaint to the NJC, allowing it to act and
carry out duties pursuant to its powers conferred by the provision
of the 3rd Schedule to the 1999 Constitution (as
amended)”.
It has also been canvassed by some persons that the decision
would open the floodgate of similar objections premised on grounds
of jurisdiction by civil servants in the employ of other agencies
of government established by section 153 of the 1999 Constitution
who may feel entitled to hide under the canopy of section 158 of
the 1999 Constitution to say that the High Court cannot exercise
criminal jurisdiction over them until the administrative
jurisdiction of the Federal Public Service Commission have been
invoked against them in the event they are alleged of committing
any acts of official corruption. The learned Senior Advocate in his
article put it thus, “…out of ingenuity, some lawyers are going to
invoke the constitutional right of equality of all citizens before
the law to challenge the validity of the criminal cases pending
against civil servants on the grounds that the administrative
jurisdiction of the Federal Public Service Commission has not been
invoked against them. More so that the NJC and other executive
bodies have been created by section 158 of the Constitution of the
federal Republic of Nigeria as amended.” He extended it beyond the
public service by suggesting that “even professionals in the
private sector who are standing trial for corruption will rely on
the judgment of the Court of Appeal and insist on going through
administrative procedure before they can be prosecuted in any
court”.
With the greatest deference, nothing can be more misleading. The
time honoured principle of judicial precedent is not a magic wand
that counsel could wave at will. The peculiar circumstances upon
which a case was decided by a superior court must be taken into
consideration for the decision thereof, to be binding in the case
at hand. This much has been re-echoed by the Supreme Court in a
plethora cases, hence why the doctrine of Distinguishing Precedent
has since emerged as an adjunct of the doctrine of judicial
precedent. In the recent case of UDO V STATE (2016)
LPELR-40721 (SC), the Supreme Court, Per. KEKERE-EKUN J.S.C
restated the position thus, “It is important to bear in mind that
the decision of a Court must always be considered in the light of
its own peculiar facts of circumstances. No case is IDENTICAL to
another, though they may be similar. Thus each case is only an
authority for what it decides, and nothing more. See SKYE BANK PLC
&ANOR V. CHIEF MOSES BOLALLE AKINPELU (2010)9 NWLR (PT 1198)
179; OKAFOR V. NNAIFE (1987) 4 NWLR (PT. 64) 129.” Any unscrupulous
civil servant who therefore intends to make a kill off the decision
would be “underestimating the sharp sense of perception and wisdom
of the appellate courts to sift the wheat from the chaff” as was
admonished by My Lord, Boloukuromo Moses Ugo, J.C.A in the recent
case of U.I.T.H.M.B V ABDULRAHAMAN [2017] 15 N.W.L.R. (PT 1589)
397.
Anybody who has followed events in the judicial sector would
agree that the NJC has always risen up to fight the prostitution of
its membership by unscrupulous and dubious judicial officers. Cases
abound of serving judicial officers who have severally been
dismissed by the council on petitions written to it from members of
the public. Last year, at the 78th meeting of the
Council, it recommended the compulsory retirement from office of a
serving justice of the Ilorin division of the Court of Appeal as
well as outright dismissal from service of a serving judge of the
Kano State High Court. The Council, it would be recalled, also
wielded its proverbial big stick last year against a former chief
judge of Enugu State who is currently being hounded by the
EFCC for offences bordering on official corruption. Also in an act
which could be described as a cleaning of the Aegean stables, the
NJC, sometime this year, sanctioned a judge of the Abia State High
Court and his counterpart in Zamfara for various acts of misconduct
bordering on official corruption. In April, 2016, the NJC it was
also reported fired two judges of the Lagos and Niger State High
Courts respectively for acts of judicial misconduct. Only two weeks
ago, the council wrote to the president of the Federal Republic of
Nigeria, recommending the dismissal from service of a former judge
of the Federal High Court. One could go on and on to rehash
different instances where the NJC has risen to its constitutional
mandate to exercise disciplinary actions against serving judicial
officers. It is therefore, most outlandish to suggest that the
council, seeks the protection of its own from any acts of
prosecution. In any event, the decision of the council is subject
to Judicial Review so as to enable anybody who feels the council
was bias in the discharge of petitions written to it, to approach
the courts for a review of the decision upon good cause shown.
In sum, we come to the conclusion that the judgement of the
Court of Appeal in the case at hand, deserves to be hailed for its
boldness in asserting the independence of the Judiciary and for
further sounding into the ears of those who would listen, that the
judicial arm of government must not kowtow to the whims and
caprices of any of the other arms of government nor would it allow
itself to be exposed to any undue embarrassment or ridicule from
any quarters. It is not a “protest judgment” as some persons have
alleged, neither was it reached out of comradeship at the bench. On
the obverse, it is a policy document for the enthronement of the
Rule of Law and a conscious reminder to prosecuting agencies that
Lady Justice does not approve of the circumventing of her process.
I find the case to be of equipollence in terms of the novelty of
what it decides, with the likes of AMAECHI V INEC (2007) 18 NWLR(PT
1065)98; INAKOJU V ADELEKE (2007) 4 NWLR (PT. 1025) 423; PETER OBI
V INEC (2007) 11 NWLR (PT. 1046) 560 among others for its relevance
in our democratic experiment and I have no doubt in my mind, that
should the decision be the subject of an appeal to the Supreme
Court, the latter would waste no time in affirming same and hailing
the industry of the appellate Court.
Nkannebe Raymond, a legal practitioner and public
interest litigator is of Synergy Attornies, Lagos state. Comments
and reactions to raymondnkannebe@gmail.com.