Funmilayo Odude, Legal Practitioner, Damod Law Practice

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Appeal Court sought to make new law in decision on Justice Nganjiwa 12 Jan 2018

Following the raid on the homes of nine serving and suspended judges in October 2016 by officers of the Department of the State Security Service (DSS), leading to the arrest of some of the judges, there was a widespread notion that the Judiciary would 'protect its own' at the appropriate time. And it would seem the Judiciary did just that through a judgment delivered by the Court of Appeal on the 11th of December, 2017 when the Court unanimously struck out the charges filed against Justice Hyeladzira Ajiya Nganjiwa by the Economic and Financial Crimes Commission (EFCC).
At the conclusion of an emergency meeting, which held four days after the raid on the 11th of October, 2016, the National Judicial Council (NJC) condemned the DSS action and stated that it “viewed the action as a threat to the Independence of the Judiciary, which portends great danger to our democracy; and also considered the action as a clear attempt by the DSS to humiliate, intimidate, denigrate and cow the Judiciary.”

Citing the provisions of Sections 153, 158 (1), 160 and Paragraph 21 of Part One of the Third Schedule to the Constitution, the NJC stated that no judicial officer should be invited by any institution without complying with the rule of law and due process. This position has been given judicial backing and thus the force of law.

The DSS raid, sometimes ridiculously tagged “sting operation,” created two schools of thought in the legal community. While some lawyers supported the government's actions, others denounced them. I had and still maintain that such brazen display of executive might was not the way to apprehend corrupt judicial officers. Moreover, the investigation of alleged corrupt acts and practices was outside the constitutional mandate and powers of the DSS.

I believe the overall cost of the actions against the judges outweigh the benefits. Indeed, as a result of the actions, the confidence of the citizenry in the Judiciary and the judicial system probably hit a new low. And for an arm of government that is not allowed to engage in the media as much as the other two arms of government, it was almost impossible to effectively carry out damage control.

But despite my reservations about the 'raid', 'sting operation' – or whatever other fancy term used to describe the DSS invasion – and the subsequent arraignment and prosecution of some judges without proper and detailed investigations, I believe that the Court of Appeal, in its interpretation of the Constitution, imported provisions not contained therein. In the process, the Court was engaged in making the law as opposed to merely expounding the law.

It is important to understand the reasoning behind the decision of the Court of Appeal – and ignore all the social media banters. Clearly, the Court did not create immunity against the prosecution of judicial officers. Justice A. O. Obaseki-Adejumo, in the lead judgment, stated: “For the avoidance of doubt, may I state clearly that no judicial officer is covered by immunity from prosecution under the Constitution…”

What the Court did was to create a condition precedent for the arrest and prosecution of judges by the relevant law enforcement agencies for actions relating to the performance of their judicial functions. The Court's judgement favoured a recourse to the disciplinary procedure of the NJC in addressing acts of impropriety by judicial officers.

The judgment provides that when a breach of the judicial oath occurs, the NJC is the appropriate body to investigate the breach. If the NJC finds the judicial officer culpable, then it can recommend the removal of such officer to either the President or the Governor of a state, as the case may be. It is only after this action of “removing the toga of his judicial powers” has been taken that the law enforcement authorities can be at liberty to prosecute the aberrant judicial officer.

What happens when the state is not satisfied with the decision of the NJC regarding a judicial officer? The Court of Appeal states that any dissatisfied person may first apply to a court for judicial review on that decision. In other words, unless the NJC says so or is overruled by a court of law, a judicial officer cannot be arrested or prosecuted for taking bribes or any other acts of misconduct.

It is important to note that this procedure only applies to acts relating to violations of judicial office. Where a judicial officer commits theft, murder or other crimes outside the scope of the performance of his official functions, the disciplinary powers of the NJC do not have to be first invoked.

There are three basic reasons I disagree with this position. First, I believe it goes against the principle of checks and balances, which underpins the principle of separation of powers. Secondly, I believe that the Court has created a procedure that is outside the Constitution or indeed any other law. And lastly, it goes against the settled principle of law that one set of facts can give rise to multiple causes of action.

The Court of Appeal largely based its decision on the need to maintain the independence of the Judiciary and the principle of separation of powers as entrenched in our Constitution, while relying heavily on the provisions of Sections 153, 158 (1), 160 and Paragraph 21 of Part One of the Third Schedule to the Constitution.

However, Section 153 of the Constitution merely creates fourteen bodies, including the NJC. It also states that the composition and powers of these bodies are set out in Part 1 of the Third Schedule to the Constitution. Section 158 (1) states that in exercising its powers to make appointments or exercise disciplinary control over persons, the NJC and several other bodies shall not be subject to the direction or control of any authority or person.  Section 160 allows the various bodies, including the NJC to, with the approval of the President, create rules or otherwise regulate their procedure, or confer powers and impose duties on any officer or authority for the discharge of their functions.

Paragraph 21 of Part One of the Third Schedule to the Constitution lists the powers of the NJC, which are: recommendation for appointment and removal from office of judicial officers; the collection, control and disbursement of all monies allocated to the Judiciary; providing advisory functions to the President and Governors on any matter pertaining to the Judiciary referred to them and dealing with appointment, dismissal and discipline of members of the Council as well as control and disbursement of all monies on behalf of the Council. Paragraph 21 also deals with all matters relating to policy and administration.

None of these provisions allows for the creation of the procedure set down by the Court of Appeal's judgement of 11th December, 2017. It needs to be made clear that Justice Nganjiwa was not being prosecuted for breaching the Code of Conduct of Judicial Officers or any other administrative regulation. Rather, he was accused of committing an offence under the Criminal Law of Lagos State.

Section 82 of the Criminal Law of Lagos State provides that: “Any public official who: (a) enriches himself so as to have a significant increase in his assets that he cannot reasonably explain the increase, in relation to his lawful income; (b) retires, resigns or is dismissed from service and cannot reasonably explain the increase in relation to his lawful income; or (c) after leaving office begins to derive economic benefits from favours he had conferred on third party or parties while in the office, is guilty of a felony and is liable to imprisonment for seven years.”

Also, Rule 10 (1)(iii) of the Revised Code of Conduct for Judicial Officers provides that: “a judge shall not give or take and shall not encourage or condone the giving or taking of any benefit, advantage, bribe however disguised for anything done or to be done in discharge of a judicial duty.”

There is no question about it, the accusations against Justice Nganjiwa relate to judicial misconduct and or misbehaviour under the Revised Code of Conduct for Judicial Officers. But the same alleged misconducts also constitute offences against the state under the Criminal Law of Lagos State. The idea that the offence against the state has to await the outcome of the disciplinary proceedings of the NJC does not have any statutory backing. Therefore, I respectfully disagree with the Court of Appeal that the criminal and administrative disciplinary proceedings cannot go together.

There are several instances where the same set of facts give rise to multiple causes of action and an aggrieved party can choose whether to pursue a particular remedy or the other, or even multiple ones. The independence of the Judiciary signifies a lack of interference with its processes, procedures, monies and the discipline of its members. It cannot, however, extend to curtailing the powers of the state to prosecute for offences against it.

Undoubtedly, this decision would be tested at the Supreme Court. It is my hope that the apex court would stick with the jurisprudence of the law and disregard extraneous factors. For example, the Appeal Court, in its judgement, referred to the decision of the security agencies to await the outcome of the investigation by an in-house, government-appointed panel before taking over the investigation and potential prosecution of former Director General of the National Intelligence Agency, Ayodele Oke, and former Secretary to the Government, Babachir Lawal, over the allegations of financial impropriety made against these individuals.

A Financial Nigeria columnist, Funmilayo Odude is a Lagos-based legal practitioner, and a public affairs analyst.