Justice Yunusa (Right) with his counsel

Was the decision by Justice Sherifat Solebo of the Special Offences Court sitting in Ikeja to continue hearing the corruption case against Justice Mohammed Yunusa of the Federal High Court an uncommon display of judicial courage or rascality? Davidson Iriekpen asks

Justice Sherifat Solebo of the Special Offences Court sitting in Ikeja, last week, ordered a suspended judge of the Federal High Court in Lagos, Justice Mohammed Yunusa, to face trial for the alleged corruption charges filed against him by the Economic and Financial Crimes Commission (EFCC). She gave the order while ruling on the preliminary objection filed by the embattled judge and his co-accused person.

The EFCC had arraigned Yunusa alongside Esther Agbo, a staff of the law chambers of Mr. Rickey Tarfa (SAN), on January 17, 2018 on a four-count charge bordering on attempted perversion of the course of justice and corruption by a public official, while Agbo was charged with offering gratification to a public official. They, however, denied the charges.

According to the EFCC, Yunusa had constant and confidential communications with Tarfa, who was handling three lawsuits marked FHC/L/CS/714/2015, FHC/L/CS/715/2015 and FHC/L/CS/716/2015 before him. It also alleged that Yunusa collected N1.5 million as bribe from Tarfa for the purpose of giving favourable rulings and judgments in the cases. The judge was also accused of receiving N750, 000 from another senior advocate between March 2015 and September, 2015, to get favourable judgment in some cases.

But the judge, through his counsel, Chief Robert Clarke (SAN), filed a preliminary objection on March 9, arguing that the embattled judge had been absolved of the corruption charges by the National Judicial Council (NJC). Citing the case of Federal Republic of Nigeria vs Justice Hyeladzira Nganjiwa, the counsel said for Yunusa’s dismissal to be valid, President Muhammadu Buhari had to give a recommendation for his suspension.

The counsel to Agbo, Mr. John Odubela (SAN), also asked the court to dismiss the charges against her on three grounds. The first is that the amended information was incompetent, because it was signed by Mr. E. E. Iheanacho, an EFCC official, instead of the Attorney-General (A-G) or an official from the A-G’s office. The other two grounds were that the National Industrial Court is the court with jurisdiction, because the alleged crime was made in the course of Agbo’s employment and that the case against her is unknown to law.
But Solebo, in a two-hour ruling, held a contrary view. Referring to a November 8, 2016 letter from the NJC to the EFCC suspending the judge, she noted that the NJC had already exercised disciplinary action against the embattled judge.

“I do not think that the defendant is a sitting judge having been suspended. I thereby agree that prosecution cannot be brought until the NJC exercises its disciplinary powers against a judicial officer. Going through Nganjiwa’s case, there is no evidence that the NJC investigated Nganjiwa but in the case against the first defendant (Yunusa) the NJC in its 76th meeting investigated him.

“What is left to be done? The NJC has done what it is empowered to do; it is my decision that I am not bound by Nganjiwa Vs Federal Republic of Nigeria. It is my conclusion that the first defendant has to defend himself in the information filed by the prosecution. It is my decision that this court has jurisdiction on the charges filed against the first defendant in this case and the notice of preliminary objection is dismissed,” Solebo said.

On Agbo, the judge dismissed the three grounds of the preliminary objection, citing Section 174 of the Constitution and maintained that. “The EFCC does not require a fiat or the consent of the A-G to prosecute as contained in Section 43 of the EFCC Act, noting that the offence for which Agbo was charged under Section 64(1)(a) of the Criminal Law of Lagos is known to law.

“General prosecutorial power has been delegated by the A-G to the EFCC. It is my modest view as presented, that the amended charge filed by the applicant is competent and validly signed by Iheanacho and this court is competent to adjudicate same,” Solebo said.
On the issue of jurisdiction, the judge said, “It is my modest opinion that for criminal matters, exclusive jurisdiction is not conferred on the National Industrial Court according to Section 254(C)(5) of the Constitution.

“I therefore hold that this court has concurrent jurisdiction with the National Industrial Court to hear criminal matters that arise in the course of employment. It is my opinion that the amended information is validly issued. I do not find merit in the objection and same is held in favour of the applicant.”
Reacting to the ruling, while the prosecution praised the judge for the courage to ignore the precedence set by the Court of Appeal in the case of Justice Nganjiwa, the counsel to Justice Yunusa sees it as judicial rascality, promising to appeal the decision at the Appeal Court.

Many analysts have also expressed reservations over the ruling. While some have argued that since Yunusa is still in service, he deserves to benefit from the judgment of Nganjiwa. According to them, the fact that the judge has not retired means that he should benefit from the judgment of the Court of Appeal.

Analysts further argued that the suspension placed on the judge by the NJC does not preclude him from benefitting from the judgment of the Court of Appeal.

But there are those who felt otherwise. They argued that the fact that senior lawyers, who were alleged to have bribed the judge are standing trial, makes dismissing his case impossible. They stated that in the case of Nganjiwa, those alleged to have bribed him were not put on trial.
“If you set Yunusa free, what happens to the lawyers, who were alleged to have given him bribe?” asked a source, who spoke to THISDAY off the record.

Nganjiwa’s case has been a major reference point on which corruption cases are now determined in the judiciary. The EFCC had arraigned the judge also of the Federal High Court in Lagos on a 14-count charge before Justice Adedayo Akintoye of the Lagos State High Court in Igbosere on June 23, 2017.

In the charges, the EFCC accused him of unlawfully enriching himself as a public official by allegedly receiving $260,000 and N8.65million through his bank account between 2013 and 2015. The judge pleaded not guilty and trial commenced.

But the judge’s counsel, Clarke, argued a preliminary objection challenging Justice Akintoye’s jurisdiction to hear the case. The SAN contended that by virtue of Section 158 of the 1999 Constitution, only the NJC has the powers to deal with the kind of allegations brought by the EFCC against his client, a serving judge.

But the prosecuting counsel for the EFCC, Mr. Rotimi Oyedepo, disagreed and maintained that despite being a serving judge, Nganjiwa did not have immunity against criminal prosecution.

“We must be bold enough to concede that the NJC has administrative power in the appointment and administrative discipline of a judicial officer; but Section 158 of the Constitution did not clothe the applicant with immunity from criminal trial,” Oyedepo had argued.
In her ruling, Akintoye upheld Oyedepo’s argument and dismissed Nganjiwa’s objection.

Displeased, the judge, through his counsel, appealed the decision. In its judgment, the Court of Appeal struck out the corruption charges. A panel presided over by Justice Adejumo Obaseki quashed the 14-count charge pressed against Nganjiwa on the grounds that a serving judge could not be investigated or prosecuted without being first disciplined by the NJC.
The appellate court agreed with Clarke that a judge could not be prosecuted until he or she had either been dismissed or compulsorily retired by the NJC. The court upheld Clarke’s argument that the case should have been referred to the NJC.

It was based on the above decision by the Court of Appeal that Justice John Tsoho of the Federal High Court in Abuja recently dismissed the 13-count charge of money laundering and passport fraud instituted by the federal government against Justice Sylvester Ngwuta, a serving justice of the Supreme Court, The jurist was among the judicial officers, whose houses were raided by the operatives of the Department of State Services (DSS) in October 2016. He was subsequently charged with various corruption offences by the Office of the Attorney-General of the Federation.

His counsel, Chief Kanu Agabi (SAN), had while arguing his client’s motion, submitted that by virtue of the said Court of Appeal’s judgment in Nganjiwa’s case and the provisions of section 158(1), Paragraph 21(8) of the Third Schedule to the Constitution, the charges instituted against his client were incompetent.

He maintained that going by the judgment of the Court of Appeal, the complaints forming the basis of the charges instituted against him ought to have been referred to the NJC and allowed the NJC to discipline him before instituting the charges.

In his ruling, Tsoho dismissed the charges, anchoring his decision on the Court of Appeal decision. He held that the pre-conditions for instituting charges against a judicial officer were not met before charging Ngwuta.

The way the EFCC asked the Supreme Court to upturn the judgment of the Court of Appeal and Court of Appeal to review the judgment in favour of Ngwuta is the same way Yunusa has promised to appeal the decision of the Special Offences Court sitting in Ikeja.

But from the way the cases are going, it is becoming obvious that it is only the Supreme Court that has the ultimate power to resolve the contentions.