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In the Court of Appeal of Nigeria
In the Lagos Judicial Division
Holden at Lagos
On Monday, the 11th Day of December, 2017
Before Their Lordships
Mohammed Lawal Garba
Yargata Byenchit Nimpar
Abimbola Osarugue Obaseki-Adejumo
Justices, Court of Appeal
CA/L/969c/2017
Between
Hon. Justice Hyeladzira Ajiya Nganjiwa ………Appellant
And
Federal Republic of Nigeria ……Respondent
(Lead Judgement delivered by Hon. Abimbola Osarugue Obaseki-Adejumo, JCA)
Facts
By a 14 Count Information dated 8th June, 2017, the Appellant was charged for offences ranging from unlawful enrichment by a Public Officer, to giving false information contrary to the Criminal Law of Lagos State, No. 11 of 2011 and Section 39(2)(a) of the EFCC (Establishment) Act, 2004. Upon being served with the Information, the Appellant promptly filed a Notice of Preliminary Objection. The Appellant challenged the jurisdiction of the trial Court to hear the case, on the ground that the condition precedent to the filing of the Information had not been complied with. Delivering its Ruling on the Preliminary Objection, the trial Court dismissed same, further to which the Appellant filed this appeal against the decision.
Issue for Determination
Two issues were distilled by the Appellant for determination. The Respondent on its part formulated a sole issue for determination. The Court observed that the second issue formulated by the Appellant can be subsumed under issue one, which encompassed the Respondent’s sole issue –
Whether the lower Court can validly exercise criminal jurisdiction over a sitting Judicial Officer (the Appellant), whilst still occupying such office without first satisfying the condition precedent of subjecting such Judicial Officer to the disciplinary jurisdiction of the National Judicial Council, as provided for in the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
Arguments Proffering arguments on the issue, Counsel for the Appellant conceded that the Appellant, like any other Judicial Officer, is not immune from criminal prosecution. Counsel however, contended that the Appellant (and any other Judicial Officer), must be first subjected to the disciplinary jurisdiction of the National Judicial Council (NJC), before such Officer can be arraigned for criminal prosecution (if need be). He argued that due process must be adhered to, in order to maintain respect and sanctity of the Rule of Law. In aid of his submission, he relied on Section 158(1) and Paragraph 21(b) of the Third Schedule to the Constitution of the Federal Republic of Nigeria, 1999 (as amended), in urging the Court to hold that recourse must be had first to the NJC to exercise disciplinary control over any allegation of misconduct against a Judicial Officer. Having not satisfied this condition before preferring the Charge against the Appellant, the Respondent did not validly invoke the jurisdiction of the trial Court. UAC v MACFOY (1961) 3 WLR 1405 at 1409 ; MADUKOLU v NKEMDILIM (1962) 1 ANLR 583.
Counsel submitted further that, in exercising its Constitutional powers, the NJC shall be supreme as it is not subject to the direction of any other authority. He posited that, going by the constitutionally guaranteed provisions on Separation of Powers, the NJC is a creation of the Constitution and as such, its powers to discipline persons within its control cannot be interfered with by any authority, the Economic and Financial Crimes Commission (EFCC) and the Attorney-General of Lagos State inclusive. He relied on Sections 4 – 6, 153, 158, 160, 292, 318 and Paragraph 21(b) of the Third Schedule to the 1999 Constitution. Counsel contended that what was contemplated and provided for in the Constitution, is the removal of a Judicial Officer and not conviction, because mere conviction cannot remove the toga of such Officer. Hence, the need for the NJC to appropriately remove or suspend the Judicial Officer especially as the operative word “shall” in Paragraph 21(b) thereof, gives no room for discretion of the Court.
For the Respondent, it was argued that, the doctrine of Judicial Immunity does not protect a serving Judicial Officer against criminal proceedings when he is reasonably suspected to have committed a criminal offence. Counsel submitted that, the Information preferred against the Appellant resulted from his extra-judicial acts in contravention of the law under which he was charged. CANDIDE-JOHNSON v EDIGIN (1990) LPELR-20108(CA). He
argued that Section 158 of the 1999 Constitution relied on by the Appellant, neither grants him immunity from criminal prosecution nor create any condition precedent(s) for the prosecution of Judicial Officers. He argued that Paragraph 21(b) of the Third Schedule to the 1999 Constitution, was to empower the NJC to recommend removal of Judicial Officers to the President and to exercise disciplinary control over them. Thus, criminal prosecution and disciplinary proceedings of the NJC can go on simultaneously, and if there is any one that should be made to await the determination of the other, it is the proceeding of the NJC. OKAFOR v MADUBUKO (2000) 1 NWLR (Pt. 641) 473; FRN v VIJAY LALWANI APPEAL (2013) LPELR-20376(CA).
Court’s Judgement and Rationale
Deciding the sole issue, Their Lordships held that the Criminal Laws of Lagos State and the EFCC Act, 2004 provide for the prosecution of any person suspected to have committed the offences levelled against the Appellant. However, being a serving Judicial Officer, the Appellant is under the disciplinary powers of the NJC as provided for in the Constitution. By the combined reading of Section 158(1) and Paragraph 21(b) of the Third Schedule to the 1999 Constitution, the NJC is the sole body with authority to recommend the appointment and removal of a Judicial Officer; the NJC also exercises disciplinary control over erring Officers.
Whenever a breach of Judicial Oath occurs, it is misconduct and the NJC is the appropriate body to investigate such breaches by the Officer; if found culpable, the Officer shall be subjected to disciplinary actions such as recommendation to the President or Governor for removal from office in line with The Judicial Discipline Regulation of May, 2017 . It is upon acceptance of this recommendation by the appropriate authority, that the relevant law enforcement agent or agency, can prosecute the Judicial Officer. Any attempt to by-pass the NJC, will be tantamount to failure to observe a condition precedent; a direct violation of the provisions of the Constitution and usurpation of the Constitutionally guaranteed powers of the NJC. ELELU-HABEEB & ANOR. v A-G FEDERATION & ORS (2012) 13 NWLR (Pt. 1318) 423; OPENE v NJC & ORS (2011) LPELR-4795(CA).
The Court held further that, in the administration of justice, it is a necessity that due process must be adhered to. A salient condition for the exercise of jurisdiction of Court in a given case, is that the suit must have been commenced by due process of law and upon fulfilment of any condition precedent to assumption of jurisdiction. MADUKOLU v NKEMDILIM (supra). Thus, the power conferred on the NJC to discipline erring Judicial Officers and the procedure stated in the Constitution, must be adhered to first before any other action is taken in the matter.
By the relevant provisions of the Constitution, no authority can interfere with or direct the exercise of the
powers of the NJC without having shown that the NJC has concluded its investigation (as the sole body empowered to determine allegations of misconduct, inclusive of bribery and corruption, against its Officers). It is only when the NJC has given a verdict and handed such Officer (removing his toga of judicial powers) to the prosecuting authority, that he may be investigated and prosecuted by the appropriate security agencies. This is the purport of Section 158(1) of the Constitution.
Interestingly, Section 158(1) and paragraph 21(b) of the Third Schedule to the 1999 Constitution, were not contained in the preceding Constitutions. This underscores the point that the intention of the framers of the Constitution is to confer supremacy over the affairs of the judiciary on the NJC, and this special position cannot be superseded even by the powers granted to the EFCC under the enabling Act or case law.
The Constitution is the grundnorm; it supersedes any Act of the National Assembly. ADISA v OYINWOLA (2000) LPELR-186(SC). The EFCC being a creation of the National Assembly, is subject to the dictates of the Constitution – Section 1 of the 1999 Constitution. The EFCC, Department of State Security (DSS) or any other law enforcement agency, have powers over all persons, but when a Constitutional provision has set out what is to be done before the exercise of such power, it must be complied with, else the procedure will be a nullity.
It is to be noted that, time does not run against the State in criminal matters; prosecution can be carried out at any time, but with recourse to due process. Given the fact that the defined condition precedent for filing a Charge against the Appellant was not fulfilled, it follows that the trial Court lacked the requisite jurisdiction to try the case. All the proceedings embarked on by the Court amount to nullity.
Appeal Allowed; Charge No. LD/4768C/2017 was Struck Out.
Representation: Robert Clarke, SAN with O. Oladele, I.S. Matesun and Omoniyi Onabule for the Appellant.
Rotimi Oyedepo with I.A. Mohammed for the Respondent.
Reported by Optimum Law Publishers Limited (Publishers of the Nigerian Monthly Law Reports (NMLR))
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