Lawyers Welcome Appeal Court Judgment on Prosecution of Judges


•Say it promotes separation of powers

Tobi Soniyi in Lagos

Senior lawyers in the country have commended the justices of the Lagos Division of the Court of Appeal for upholding the principle of separation of powers when they held that a serving judge could not be prosecuted until such judge had either been dismissed or compulsorily retired by the National Judicial Council (NJC) for alleged corruption.

The justices of the Appeal Court on Tuesday consequently struck out the corruption charges filed by the Economic and Financial Crimes Commission (EFCC) against a serving judge of the Federal High Court, Justice Hyeladzira Nganjiwa.

The judgment, which has far-reaching consequences, has been the subject of discussion among top lawyers in the country.
But EFCC, in its reaction shortly after the ruling on Tuesday, vowed to head to the Supreme Court to upturn the judgment, terming it a dangerous precedent that has no basis in law.
However, a former president of the Nigerian Bar Association (NBA), Mr. Olisa Agbakoba (SAN) who spoke to THISDAY on the issue said the Appeal Court justices had upheld the doctrine of separation of powers.

“The court has not said that judges cannot be prosecuted. It has only said that the National Judicial Council (NJC) is constitutionally authorised to make the decision that will lead to their prosecution.
“That is the correct position, I entirely agree with that decision. So many Supreme Court cases back it up.
“Where a panel is set up to investigate a person constitutionally, that panel will have to first deal with the matter and recommend whatever punishment that is appropriate.

“The power to discipline a judge does not rest with the EFCC, the power to prosecute a judge rests with the EFCC upon the recommendation of the NJC.
“The judgment absolutely has implications for the separation of powers. The judgment confirms that executive interference in the judiciary will no longer be tolerated. That is what the judgment says,” he explained.

Another past president of the NBA, Chief Wole Olanipekun (SAN) said the judgment had raised new issues.
He noted that the judges were now being prosecuted through a procedure hitherto un-witnessed in the annals of the judiciary – the raid of their respective residences by the security agencies.
According to Olanipekun, “The issue is recondite. It is novel. It has never happened before.

When you weigh all these against the clear provisions of the Constitution as to the roles, the position, the jurisdiction, the powers of the NJC to employ, to discipline, to reprimand, to sanction, to suspend, to promote, to hire and fire judges, then you will see the more recondite nature of the issues involved.”
He commended the creativity of the lawyers of the appellant, saying that that is the way it should be.

“The law evolves, it is never static. But to my mind, it is an issue that will definitely get to the Supreme Court. Let the Supreme Court have the final say on it.”
He also commended the courage of the justices of the Court of Appeal, adding that the judgment was not something that could just be dismissed by the wave of the hand.
He urged both the prosecution and the defence to prepare to further argue the case at the Supreme Court.

“My advice is let us keep our fingers crossed while we encourage the parties involved to prepare for fireworks at the Supreme Court,” he added.
Olanipekun also advised lawyers to stop condemning judgments without reading them.
He observed that the Constitution provides for the way and manner through which elected executive officers such as the president, vice-president, governors and their deputies, as well as members of the legislature, can be removed from office, pointing to the impeachment process for the executive and recall process for lawmakers.

Also reacting, Chief Mike Ozekhome (SAN) said the judgment was in tune with the Constitution.
According to him, the judgment satisfied the doctrine of separation of powers.
He said: “I totally hail the judgment of the Court of Appeal delivered on Tuesday as being jurisprudentially correct, being constitutionally right and meeting the end of justice.

“Particularly because it satisfies the hallowed doctrine of separation of powers ably propounded by great philosophers such as Aristotle, Socrates, Plato, Thomas Hobbs, Rousseau, but most ably popularised by the great French philosopher Baron de Montesquieu in 1748 to the effect that there are three arms of government – the legislature, the executive and the judiciary – and that each arm of government is independent in its own realm with checks and balances.”

Ozekhome argued that using that doctrine, the Court of Appeal was right to invoke the provisions of Section 158 of the 1999 Constitution dealing with the powers of the NJC to punish erring judges before they are railroaded into the courts for criminal trials.
He said: “The power of the EFCC to try any person can be found in the EFCC Establishment Act of 2004. This Act is far inferior to the provisions of the Constitution, which gives the NJC the power and superintendency over judges.

“Therefore any conflict between the provisions of that Act which attempts to try judges who are already subject to a punitive inquisition, and punishment by the NJC, such powers are contrary to the provisions of the Constitution. By virtue of Section 1(3) of the Constitution, the exercise of those powers by EFCC are null and void.”
Ozekhome noted that even though he had not read the full judgment, he was convinced that the judgment was right both in content and principle.

“The judgment has removed the judiciary from the terrorizing apron strings of the executive that has been using the EFCC and DSS to settle scores with judges that have given judgment against them, thereby intimidating and browbeating the judiciary,” he added.
A Lagos lawyer, Ebun-Olu Adegboruwa, further observed that the decision was sound in law and logic in helping to assert the much-desired independence and autonomy of the judiciary.

He noted that in recent times, judicial officers had been under mindless attacks by the executive, arising from the expressed disaffection for the third arm of the realm (judiciary) by the president, who is the head of the executive and had stated severally that the judiciary was his headache.
Adegboruwa said: “The hallowed democratic principle of separation of powers requires that the three arms of government should be independent of each other but work together for the effective administration of the realm.

“In the present dispensation, the executive arm has totally hijacked and captured the legislative and judicial arms, both of which have not been allowed to function effectively and independently as anticipated by the Constitution.
“It is therefore a welcome relief indeed that judicial officers will no longer be under the fear and tremor of intimidation of the executive in the discharge of their official duties.

“A judge should be free to deliver his judgment according to his conscience and according to the law without fear or favour, without affection or ill will.
“Under and by virtue of Paragraph 21(b) and (d) of the Third Schedule to the 1999 Constitution, the NJC is to exercise the power of disciplinary control over all judicial officers.

“Thus, where there is an allegation of corruption against a serving judicial officer, such should be tabled before the NJC first, as it is a matter arising from the discharge of official duties by the judge.
“Otherwise, judges will become liable to do the bidding of the executive once it is possible to just pick up a judge and lock him up whenever he delivers a judgment that is not favourable to the executive.”

He, however, warned that this judicial immunity should not be a blanket one, adding: “It should only be limited to matters involving the discharge of judicial duties.
“Consequently, a judge involved in the common crimes of murder, rape, etc, all committed outside the performance of his judicial duties, should still be held accountable in the normal course of criminal justice administration.

“So, I salute the rare courage of the justices of the Court of Appeal, who have taken this landmark step to free our nation from dictators and fascists in political garb and I commend the boldness of My Lords, for rescuing the judiciary from the choking harassment of the executive.
“Since time does not run against the prosecution of offences in law, the government can always commence a prosecution against any judicial officer found wanting after the NJC has concluded its own statutory role in the discipline of such judicial officer.”

The EFCC had arraigned Justice Nganjiwa for allegedly receiving a total of $260,000 and N8.65m gratification to unlawfully enrich himself as a public official.
He was charged on 14 counts before the Lagos State High Court in Igbosere on June 23, 2017. He, however, pleaded not guilty.
When the trial commenced before Justice Adedayo Akintoye, the accused raised a preliminary objection.
The objection was overruled. He consequently appealed to the Court of Appeal.

  • Omooba Adekunle Orafidiya

    Going by this strange judgement, can’t the executive arm of Government also covenant that Ministers can’t be prosecuted for any wrong doing until the Federal Executive approves? The so-called senior lawyers who are applauding the senseless judgement ought to submit themselves for psychiatric evaluation.

  • Fula

    Lawyers and their inanities. Should the Supreme Court reverse this decision, these same set of people will come here to say the Judgement is unconstitutional. The law is an ass.

  • Nnamdi Nwachuku

    the senior lawyers that are commending this perverse decision of the court of appeal are those who are neck deep in bribing judges. this amounts to conferring immunity on judges through the back door. it is a way of protecting themselves in case the efcc has data on their misdeeds.

    • Omooba Adekunle Orafidiya

      Don’t mind the certified reprobates.

  • Romla

    If it is so in the constitution,it must be respected.It is ironic though that many of these Judges who have been complicit in the systemic failure to respect the constitutional rights of many alleged criminal are now shouting about constitiutional provision as it affects them.Also it is extremely difficult to get fair decisions and Justice in a court controlled by “family members”.The final decision in most cases will be affected by emotions,sympathy and other indirect considerations.

  • Isreal Bethel

    But it was not so in another clan…………

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  • Arabakpura

    Interesting! Since the three arms have secured their salvation, I wonder who will save the People – the most important arm of the human circle!

    • Lawrenece Ifo

      The threee arms will now be forced to serve the people, so that the people will not withdraw their own salvation through popular revolt.
      It is better than having a situation where the whims of one man is used to determine who is guilty or not guilty.
      Let us abide by due process and constitutional stipulations.

      • Arabakpura

        My only concern is that the poor man not you have who will speak for him! Like our Lord JesyscChrist said: “Foxes have holes, birds of the air have nests, but, the son of man has nowhere to lay his head!” It is well with our souls!

  • Omooba Adekunle Orafidiya

    I totally disagree with these lawyers’ self-serving position. The judgement has no basis in law, logic or common sense. By extension, the implication is that members of the National Assembly could legislate that they can’t be prosecuted except the National Assembly so recommends. As far as I am concerned, it is a perverse judgement that portrays the Nigerian Judiciary as pro-corruption. The principle of separation of powers is being given an absurd and illogical definition in order to frustrate the ends of justice, which is shameful, preposterous and condemnable.

    • Nkem Okike

      How does this your comment relate to constitutional provisions as espoused by the legal luminaries? Must the rule of law be circumvented to the whims and caprices of one man?

      • Ubong

        Please ask him, particularly in this era when a not fit to be AGF Malami is the natipn chief law officer. A man who whimsically authorised the unprecedented raids of judges home by a lopsided brother in arms led kinsmen DSS. His activities and action of a chief law officer of the nation seeking legal opinion from a DSS DG on the consequences to meet Maina, is a testament to what two of the raided judges alleges about this corrupt AGF. AGF corrupt involvement in the entire saga of Maina and the raided judges is enough for the legal profession to rise up and protect the sanctity of the profession. I hope from this day, our judiciary will make sure bad eyes are flushed out and the temple of justice, again redeeming his once upon a time glory, when court pronouncement and judgement were authority that is respected. If this corrupt AGF is still retain as the chief law authorising officer of cases against individual and stare, it means its only the President that can honestly and independently tell Nigerians if actually he is fighting corrution and abused of position of public trust or fighting political enemies and suspected personal enemies. I salute the judgement of these appeal court judges but much more is needed to ride the bench of many other corrupt politically infested judiciary officers

        • Omooba Adekunle Orafidiya

          So, it is wrong to raid the homes of Judges who were keeping tons of proceeds of crime and unlicensed firearms in their homes? In point of fact, I wish those Judges were summarily executed by the DSS operatives. People like you (and I suspect you are a corrupt Judge or an Agent) are the problem of this country.

      • Omooba Adekunle Orafidiya

        If you have reading and comprehension difficulty, go back to school.

    • Goks

      Did you notice that almost all the big lawyers interviewed are defence lawyers and are defending those politicians accused of corruption?

      Since NJC has been recommending Judges for retirement, how many have they recommended for prosecution? Few Judges were actually dismissed by NJC such that they can’t collect pension after.

      By their arguments, it means that once a Judge is recommended for dismissal by NJC, he is actually guilty of the offence contained in the petition and how can a high Court judge now free such a judge found guilty by a panel composed of president of Appeal Court and Supreme Court? NJc should just pas sentence on his instead of just recommending him/ her for retirement / dismissal