In Landmark Ruling, A’Court Says EFCC Lacks Powers to Prosecute Judges

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court hammer

• Strikes out charge against Justice Nganjiwa
• Commission to appeal, says judgment is ‘ridiculous’
• FG explains why owners of recovered assets have not been charged

Iyobosa Uwagiaren, Chineme Okafor in Abuja and Davidson Iriekpen in Lagos

In a landmark ruling, the Court of Appeal in Lagos Monday held that the Economic and Financial Crimes Commission (EFCC) does not have the powers to investigate or prosecute a serving judicial officer and struck out the criminal charges filed by the commission against a serving judge of the Federal High Court, Justice Hyeladzira Nganjiwa.

Delivering judgment on the appeal filed by the judge, the appellate court held that the EFCC could only investigate or prosecute a judicial officer when such officer has been dismissed or retired by the National Judicial Council (NJC).

Should the EFCC appeal Monday’s ruling at the Supreme Court and it is upheld, the ruling by the Court of Appeal will have far-reaching implications for the war against corruption and would mean that all the alleged corruption cases instituted by the EFCC or any other law enforcement agency of government against other judges will collapse.

The EFCC had arraigned Justice Nganjiwa before a Lagos State High Court for allegedly receiving a total of $260,000 and N8.65 million gratification to enrich himself as a public official.
The anti-graft agency claimed that the judge received the money through his bank account between 2013 and 2015.

The EFCC claimed that the judge could not explain the source of the funds, adding that he acted contrary to Section 82(a) of the Criminal Law of Lagos State, No. 11, 2011.
Justice Nganjiwa was also accused of giving false information to operatives of the EFCC, which the prosecution said amounted to an offence under Section 39(2) of the EFCC (Establishment) Act, 2014.
The trial of the judge had commenced before the Lagos State High Court in Igbosere.

However, following an appeal by his lawyer, Chief Robert Clark (SAN), the Court of Appeal which anchored its decision on the principle of separation of powers between the three arms of government, ruled that serving judicial officers could only be prosecuted for offences like murder and stealing if such offences were committed outside the discharge of their official duties.

Justice Obaseki Adejumo who delivered the lead judgment, said once the offence was allegedly committed in the discharge of their duties, they must first be tried by the NJC and dismissed or retired before the EFCC can investigate or prosecute them.

He held that the condition precedent to the filing of charge number: LD/4769/2017 had not been fulfilled.
The appellate court judge further held that the NJC must first strip or remove the appellant (judicial officer) of his judicial standing before he could be charged with such alleged offence allegedly committed in the course of discharge of his duties.

He, therefore, submitted that the High Court of Lagos State lacked the jurisdiction to hear and determine the charge against the serving judicial officer.
The Appeal Court accordingly set aside the trial of Justice Akinbode of the Lagos High Court and upheld the preliminary objection by the appellant in the court below.

But in a swift reaction, the EFCC said Monday that it would appeal against the ruling of the Lagos Division of the Court of Appeal.

In a statement signed Monday night by the EFCC spokesman, Wilson Uwujiaren, the commission said it considered the ruling a dangerous precedent that has no basis in law, adding that it was confident that the Supreme Court will upturn the judgment.

“Criminal trials take precedence over administrative procedures and it is strange that the Court of Appeal wants to put the cart before the horse. This is ridiculous!
“The appellate court simply wants to confer immunity on public officers from prosecution for corruption, it will not stand,” the EFCC added.

‘Looters of Recovered Assets Can’t be Charged’

In a related development, the federal government Monday provided reasons why it had not filed charges against individuals from whom it had recovered purportedly stolen assets and money, saying it was based on the “strategic advice” it got from independent sources, anti-corruption committees and special panels it had set up for the recovery of the assets.

It made the clarification at the celebration of the 2017 International Anti-corruption Day organised by the Inter-agency Task Team (IATT) in Abuja, saying that while it campaigned in the 2015 elections to take on corruption and rout it out of the country, it had initiated processes to achieve this and was making progress, but requires the support of all Nigerians to continue the anti-corruption war.

Speaking at the event, Vice-President Yemi Osinbajo stated that within its plan to nip corruption in the bud, the government has been able to weed out 50,000 ghost workers from its payroll in the last two years, while the EFCC has charged 17 suspects to court for allegedly including ghost workers on the government’s payroll.

Represented by his Special Adviser on the Rule of Law, Mr. Akingbolahan Adeniran, the vice-president explained that assets were recovered from people he claimed stole from the government during Goodluck Jonathan administration, but they had not been charged to court because it has been advised against it.
“The administration has relied a lot on strategic advice, looking at the fight against corruption from a broad perspective, and basically relying on independent advice in order to move forward in fighting corruption.

“It is focused a lot on prevention, and this is one aspect that a lot of people do not talk about so much. Then enforcement, this is the key aspect of the fight against corruption, there has to be accountability for those who basically violate the law.

“Then asset recovery is a key element in the fight against corruption. As regards assets recovery, where there has been no conviction, it is because of the strategic advice that we were given,” Osinbajo said.
He explained that the government has approved a National Anti-corruption Strategy, with which it would engage all strata of the Nigerian society in the fight against corruption.
The strategy document, he explained, has five thematic areas and appeals to the efforts of international communities in the fight against corruption.

The vice-president further stated that the government had after the sack of the former Secretary to the Government of the Federation (SGF), Mr. Babachir Lawal, who was indicted for alleged corruption, referred him to law enforcement agencies in the country for further prosecution.

Insisting that it had made tremendous progress in its anti-corruption war, Osinbajo stated that international agencies and countries had in the last two years shown a greater interest in helping Nigeria fight corruption and recover most of its monies that were allegedly stolen and kept in foreign accounts by past government officials.
Also speaking at the event, the Minister of Solid Minerals Development, Dr. Kayode Fayemi, who doubles as the chairman of IATT, stated that the government would continue to make it increasingly difficult for corrupt practices to thrive in all its businesses.

Fayemi equally called on countries where financially corrupt Nigerians had stashed the monies they stole from the government to complement Nigeria’s efforts by depriving them of safe havens for their stolen wealth.
He said: “We acknowledge the fact that we have huge corruption problems. We are also not relenting in our efforts to deal with the issues. We continue to see a quickening of efforts in enforcement and sanctions as well as innovative methods to prevent corruption.

“However, there is still a lot to be done. For us to succeed in this fight, we must say no to impunity and eliminate the syndrome of sacred cows.
“Our emphasis must be on tackling corruption from the root and closing the doors to illicit activities before they happen. This will preserve the integrity of our systems and save us valuable resources for sustainable development.

“To demonstrate commitment as a people, there must be leadership by example. The highly placed must show example of following due process and avoiding impunity.
“This will speak louder than all the words and public enlightenment campaigns. Our international friends must stop to offer safe havens to illicit financial proceeds, and once they do, they must work with us to recover them,” he stated.

  • Tea

    Hahaha l dey laff. The judgement from the appeal court to my mind is sound. Even in the exco the Military MUST 1st deal with its officers before they are taken up by the civil authorities. That way the bodies which these ‘criminals’ are supposed to belong are exonerated from their action. Thus protecting these organisations from ridicule. The NJC is established by law to handle all cases of indiscipline levied against serving judicial officers. Let EFCC go to the supreme court and further embarrass this clueless govt

  • Basil Chijioke

    i feel pained when i hear people say NJC will protect corrupt judges, if judges in d discharge of their duties are not protected from criminal charges like members of the national assembly enjoy for any comment or action taken on the floor of the national assembly, the executive will become a bully. Efcc should have written a petition with facts to the NJC on the erring judge for appropriate actions and then prosecution. come to think of it did NJC protect justice Ademola?

  • Romla

    Ok learned Judges.This is as you oyinbo wig wearing old men say,a land mark judgement.Now the National Armed Robbers Council(NARC) and the National Kidnappers Council(NKC) will also henceforth discipline and recommend for prosecution their members before the police can prosecute.Una well don.Una do well.

    • Omooba Adekunle Orafidiya

      Fantastic post. Thank you. The Nigerian Judiciary is a poor joke and a huge scam.

    • Tea

      Please b serious for once, learned people are commenting here

      • Romla

        Yes o.Learned armed robbers, like ….Since you are so learned add the missing link.

  • Manuel Tobby

    Now our notorious judiciary have just hit another national and monumental low!
    Really, why did I expect these clowns to jail thr colleagues when after all they all operate bureau De Change at home! ??

    Now I am saying a final goodbye to war against corruption in Nigeria with these crop of clowns manning our judiciary!

    Do you have a right to sue your doctor for negligence without the Nigeria Medical and Dental Council first hearing/clearing out ?

    So until COREN acts no aggrieved Nigerian can sue an Engineer??? Insane judges.

    Since they claim they are lawyers they ought to know that many doctors have been sued without the doctor’s Council involvement at any stage!!!

    Or may to you and your fellow jokers called judges ARE NO LONGER CIVIL SERVANTS OR YOU ARE SUPERIOR AND TOO SPECIAL TO BE PROSECUTED like any other government employees?

    It’s just shocking to know you lawyers claiming to be learned fellows think you are the only proffesionals who has a regulatory and administrative council , OR you all think your own Council is superior to that of engineers, surveyors, doctors, nurses etc??

    Then let these clowning judges stop all cases involving senators and members of the house of Reps UNTIL THE ETHICS COMMITTEE OF THE LEGISLATURE DECIDE ON THE CASE!
    PITY!

    So you really think you members of the judiciary really have a reputation?

    Learned Rogues creating fabricated immunity!v

    • Vincent

      It would be polite to stop insulting npeople in your write-up. Go back and read the article, and remember your lessons in reading and cocomprehension, and your elementary government also. It may help you to understand the article.

      • Manuel Tobby

        When you’re ready ready to discuss the judiciary display of lawlessness then please repost your comment.

        Yours is totally empty, no single value added to the index issue.

        Not Elementary government , it’s primary government! Kidding.

        I repeat your judiciary is both a joke and a scam, you can convulse for all I care!

    • Tea

      Guy, what do u understand by separation of powers? when u do then u will retract this uneducated comment of yours.

      • Manuel Tobby

        Educated illetrates, to You separation of power means immunity to the members of the judiciary!
        You just removed all doubts about your mental health status.

  • Tony

    IT WAS A CASE DEAD ON ARRIVAL. QED. The govt should have known they were flogging a dead horse with the matter, trying to confuse the citizenry with their war on corruption.

  • IK

    I was surprised that all the lawyers (some with SAN) could not advise the executive properly on this basic fact!

    • DONALDSON

      it is very sad and disappointing that the executive knew this too well with their bunch of SANS, but they surreptitiously go ahead in a case that will not see the light of the day just to blackmail the judiciary and promote thier fake fight against corruption. apparently it is also a modalities for the executive and the presidential advisory comite on corruption to
      make huge millions by corruptly enriching them self in a case that is dead on arrival. because the constitution is clear, and has explicitly, elucidated the above jubject matter.

    • Vincent

      They could advice, because they know about the constitutional provision on separation of powers, but they are afraid of the boss. The executive wants them to achieve success at all costs, as such, rule of law will not be followed. When they lose the case, they cry “corruption is fighting back”

      • abodes_124

        I am not sure why their ‘independent advisers’ advice them to arrest and prosecute some and not to prosecute others or even mention their names. We can all guess who some of these unmentionables are. One Mr Burrattai per chance?

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  • Omooba Adekunle Orafidiya

    Extremely ludicrous! We probably need to start stoning members of the Judiciary like it happened in Mexico (or Colombia) sometime ago; when it became clear that Judges were working at cross-purposes with the populace. This is a perverse judgement – no matter how one looks at it.

    • austin

      Yes. But the court would look at the arguments presented by counsels; appellant and respondent. EFCC (government) counsels have not been up to scratch recently. They have been beaten blue black by the private practitioners.

      • Jaybanj

        NO – it says the judges CANNOT be prosecuted. Doesnt matter if they are guilty or not. This is why fighting corruption in Nigeria requires a different tact. We have been taken over by thieves who control the system. Very soon it wil be more than stoning, when revolution starts it will be direct action!

        • jasper123

          It did not say they cannot be prosecuted but that their prosecution must be based on their initial investigation and dismisal by the NJC which is the statutorily recognized disciplinary body for judges! You cannot prosecute the president unless he is impeached or leaves office! Separation of power allows for checks and balances! The executive cannot claim to be holier than though, leaving its own and be chasing other arms! 400m grass cutting deal is still there!

          • DONALDSON

            perfect and explicit explanation

          • Manuel Tobby

            Are you not confused? Read your comments above again!

          • Dele

            Apples and Oranges. The constitution has given certain offices immunity and for that reason they can’t be prosecuted with the process of impeachment going through its course. Should this same judgement then apply the Senate President and Speaker then? And their cases referred to the ethics committee before prosecution.

            The NJC is an administrative body and not above the courts if the land. So I believe any one except expressly stated has immunity can be prosecuted for any offence. Since the court is deemed fair and unbiased, the judges have nothing to fear.

            Irrespective of which party, region governs this country the citizens must demand for excellence. And i personally think this judgement is a disregard for our constitution and set back in our move towards a developed economy

          • abodes_124

            Ayez patience. The supreme court will rule. i hope we will all respect their judgement whichever way it goes.

    • DONALDSON

      you are too fake and one-sided in your conclusion. i wonder how you managed to pass your GCE exams.the judgment dose not preclude the judges from prosecution. but it says that the efcc should followd the condition precedent.by making sure they are dismissed or voluntarily retired by the NJC.

      • Omooba Adekunle Orafidiya

        You are an idiot. I stand by my post.

        • Netanyahu

          We know in your country, ignorance garnished with stupidity is a virtue.

          • Omooba Adekunle Orafidiya

            You are an idiot and a quarter.

          • Lawrenece Ifo

            Hahaha

      • Lawrenece Ifo

        Don’t mind him .As he seems to be struggling to appreciate that the well balanced judgment was anchored in upholding the foundational principle of separation of power which underpins Constitutional democracy founded on the supreme constitutional order.
        I wonder how EFCC can be talking about criminal law as if they do not know that actions or decision taken by presiding Judicial officers pursuant to their constitutional imposed duties cannot be subjected to criminal law scrutiny but can only be addressed through appeal and review. While discipline as opposed to criminal sanction is within the preview of the NJC.
        The NJC is a creation of the constitution and not merely an administrative organ.
        So they should go and learn or employ competent hands to advice them properly so that they will stop disgracing themselves.

    • Zico

      Very perverse. All they are doing is to insulate judges against prosecution knowing that the NJC will always shield the corrupt.

      • Omooba Adekunle Orafidiya

        My brother, our Judiciary is both a joke and a scam. Now, going by this precedent, armed robbers are at liberty to form an Association and decree that they must retire or dismiss their members before the State could prosecute them.

    • Tea

      Local champion why don’t u start by stoning the executive 1st after all no another arm of govt are as corrupt as they are