FGN V CJN: Appeal Court Judgment on Justice Nganjiwa

(Full Judgment)

This is an appeal against the decision of the High Court of Lagos State; comra AKINTOYE, J., delivered on 23rd June, 2017, against the Appellant’s Notice of Preliminary Objection dated and filed on the 13th June 2017 challenging the

jurisdiction of the court to entertain and determine the instant information against the Appellant.

Justice Nganjiwa

The facts relevant to the determination of this appeal are that, the Appellant was by a 14-Count information dated 8th June, 2017 charged for offences ranging from unlawful enrichment by a public officer to making false information contrary to Section 82(a) of the Criminal Law Of Lagos State No. 11, 2011 and section 39(2)(a) of the EFCC (Establishment) act 2004. Appellant upon being served with the information filed a Notice of Preliminary Objection challenging the jurisdiction of the trial court to hear the case against him mainly on the ground that conditions precedent to the filing of the information had not been fulfilled. In its Ruling delivered on the 23rd June, 2017, the trial court dismissed the preliminary objection. Aggrieved with said Ruling, the Appellant appealed to this court vide a Notice of Appeal dated 7th July, 2017 containing four grounds of appeal.

The Appellant’s brief dated and filed 3rd August, 2017 was settled by Chief-Robert Clarke, SAN; I.B. Muhammed, Esq, MCIArb. (UK) and Omeniyi Onabule, Esq of Clarke, Pajko 82; Co. The Appellant also filed a Reply Brief dated 3rd October, 2017 and filed 17th October, 2017 but deemed as properly filed and served on the 24th October, 2017. The Appellant crafted two (2) issues for determination, thus:

1. “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).


2.    Whether in view of the constitutionally guaranteed doctrine of independence of the Judiciary, the lower court is right in reaching the conclusion that the executive arm of government (acting through the EFCC or any other authority) can directly prosecute a sitting judicial officer without first following due process as provided for in the Constitution by first referring the matter by way of petition to the National Judicial Council.”
The Respondent’s brief dated  October 3, 2017 was filed 9th October 24, 2017 but deemed  October, 2017 and same was settled by Rotimi Oyedepo Iseoluwa,  Nnaemeka Owewa,  and. LA. Mohammed,  of the Economic and Financial Crimes Commission, EFCC.

A sole issue was formulated thus: Onnoghen: Follow due process, UPU tells FG
“Whether in view of the facts and circumstances of this case, it can be said that the learned trial judge lack the requisite jurisdiction to hear and determine the information dated and filed on the 8th day of June, 2017.”  Having set out the preliminaries, I shall proceed to summarize the argument canvassed by the parties before considering and determining the issues based on the position of the law applicable herein.

Submissions Of Counsel

On the first issue, the Appellant’s Counsel submitted that they are not contending that the Appellant or any other judicial officer are not subject to criminal prosecution rather, they are contending that the Appellant like any other judicial officer, must first be subjected to the disciplinary jurisdiction of his or her employer which is the National Judicial Council before such officer can now be arraigned for criminal prosecution if his or her situation warrants so doing.

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That due process must be followed in order to maintain respect and sanctity of the rule of law. Learned Counsel cited Section 158(1) and paragraph 21(B) third schedule to the Constitution of the Federal Republic of Nigeria, 1999 (as amended) to submit that, the National Judicial Council has the first right to exercise disciplinary control over any allegation of misconduct levied against any judicial officer and that in exercising its constitutional powers, the National Judicial Council shall be supreme as it is not subject to the direction of any other authority. Learned Counsel submitted that this in effect means that neither the Executive nor the Legislature or the Judiciary can interfere with the constitutional powers of the National Judicial Council hence the constitutionally guaranteed principle of separation of powers.

Counsel submitted that the complainant before the trial court in Charge No. LD/47690/2017 did not satisfy the condition above and could not be held to have validly invoked the jurisdiction of the trial court and that the trial court misdirected itself when it assumed jurisdiction despite the fact that the Appellant drew the attention of the court to this fact. He relied on the cases of U.A.C v MACFOY (1961) 3 WLR 1405 at 1409; MADUKOLU v NKEMDILIM (1962) 1 ANLR 583; TUKUR v TARABA STATE (1997) 6 SCNJ 81; AG KANO v AG Federation [2007] 6 NWLR (PT 1029) 164; WAEC v Adeyanju [2008] 9 NWLR (PT 1092) 270; Ojo v INEC [2008] 13 NWLR (Fr 1105) 577 and urged this court to find merit in the appeal and allow same.

On the Appellant’s second issue, learned Counsel for the Appellant submitted that the Constitution of Nigeria guarantees separation of powers among the three arms of government and the National Judicial Council is a creation of the Constitution and as such, its power to discipline persons within its control cannot be interfered with by any authority including the EFCC and the Attorney- General of Lagos State. He relied on Sections 4-6, 153, 158, 160, 292, paragraph 21( B) and 318 of the 1999 Constitution, Federal Republic of Nigeria (as amended); as well as case law in the following cases. Samuel L Ekeocha v Civil Service Commission, Imo State (1981) 1 NCLR 155; Senator BC Okwu v Senator Wayas 8:. ORS (1981) 2 NCLR 522.

Learned Counsel submitted further that the removal of a judicial officer is what the Constitution contemplated and not conviction, because such conviction is not capable of removing the toga given to judicial officers.

Counsel contended that because of this, it is important for such judicial officers to be appropriately removed or suspended first by the NJC. He relied on the cases of Justice Opene v NJC & ORS (2011) LPELR-CA/A/324/O7; Elelu Habeeb v AG Federation [2012] 13 NWLR (PT 1318) 423; Abdullahi v Gov. Kano State [2014] 16 NWLR (PT 1433) 213 at 256, para A.

LearnedCounsel contended that the conclusion of the learned trial judge that the powers of NJC to discipline and punish wrongdoing by judicial officers do not include powers to determine criminal liability is erroneous. He contended also that the learned trial Judge missed the point when he held in its ruling that the charge against the Appellant can be sustained independently or concurrently with any administrative disciplinary procedure that may be initiated by the NJC.

He submitted that the offences brought against the Appellant is one that constitutes misconduct, which is as defined by Black Law Dictionary 8th edition at page 1019 and paragraph 19 of the fifth schedule to the 1999 Constitution ‘(as amended) and as such the NJ C has power to determine the misconduct/breach of code of conduct which may be criminal in nature.

Learned Counsel urged this court to apply the mischief rule of interpretation to the facts of this case where the literal interpretation of the sections of the Constitution relied upon by the Appellant will not lead to a clear and unambiguous interpretation/conclusion as suggested by the Appellant. He relied on Section 15 of the Court of Appeal Act and the cases of

Ifezue v Mbadugha (1984) NSCL 14; Wilson v Attorney-General of Bendel State [1985] 1 NWLR (PT 4) 572; Savanah Bank Of Nig Ltd v Ajilo [1989] 1 NWLR (PT 97) 305; Uwaifo v AG. Bendel State & ORS (1982) NSCC (Vol 13) 221: Adeyemi-Bero vs LSDPC [2013] 8 NWLR (PT 1356) 238 at 301 paras B-C, 304 paras F-G, 310 paras C-E for the purpose of mischief rule and when to apply same. He submitted that the mischief the 1999 Constitution was made to cure is the interference by the Executive arm of government in the Judiciary. He relied on Section 256 of the 1979 Constitution to buttress his point.

Learned Counsel submitted that the use of ‘shall’ in paragraph 21(B) of the third schedule to the 1999 Constitution (as amended) gives no room for the court’s discretion. He relied on the cases of Agbiti v Nigerian Navy [2011] 4 NWLR (PT 1236) 175 at 210, per Adekeye, JSC; National Assembly v 0.0.1 co LTD [2008] 5 NWLR (PT 1081) 519 at 540, per Omoleye, JCA, paras D-G; Section 10(2) of the Interpretation Act; Section 318(4) of the 1999 Constitution (as amended). He submitted that the power of NJC to discipline judicial officers cannot be interfered with until after NJC determines such cases, and where found guilty; NJC can recommend such judicial officers for removal and trial in a proper court. He submitted further that Section 272 of the 1999 Constitution relied upon by the learned trial judge to assume jurisdiction is subject to other provisions of the Constitution cited by the Appellant’s Counsel and that same was not considered by the trial court in giving its ruling. He relied on the cases of Labiyi v Anretiola [1992] 8 NWLR (PT 258) 139 at 163, per Ejiwunmi, J SC; Ebhota v Plateau Investment & Property Dev. Co. LTD [2005] 15 NWLR (PT 948) 266 at 283, paras B-E.

The Respondent’s Counsel on its sole issue submitted 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.

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He submitted that the Information preferred against the Appellant ensued as a result of the Appellant’s extra-judicial acts which contravene the provisions of the law under which the Appellant is charged. He relied on the cases of SBM Services Nig Ltd 8r. ORS v Okon & Ors (2003) LPELR-7292 (CA), per Ekpe, JCA, 30-33, paras BA); Candide-Johnson v Edigin (1990) LPELR-20108 (CA), per STATE & ORS (1982) NSCC (Vol 13) 221: Adeyemi-Bero vs LSDPC [2013] 8 NWLR (PT 1356) 238 at 301 paras B-C, 304 paras F-G, 310 paras C-E for the purpose of mischief rule and when to apply same. He submitted that the mischief the 1999 Constitution was made to cure is the interference by the Executive arm of government in the Judiciary. He relied on Section 256 of the 1979 Constitution to buttress his point.

Learned Counsel submitted that Section 158 of the Constitution relied upon by the Appellant does not grant him immunity from criminal prosecution and did not also create any condition precedent for the prosecution of a judicial officer and that to imply same will be tantamount to urging this court to embark on a voyage of discovery to destroy the true meaning and effect of Section 158 of the Constitution. He relied on the cases of Uwazuruike v Nwachukwu 82; ORS (2012) LPELR-15353 (CA), 51, paras C-E, per Abba Aji, JCA; AG Ogun State v Alhaji A Abernagba & ORS (1985) 4 SC (PT 1) 288 at 383; Oyeyemi v Commissioner for Local Government, Kwara State (1992) SCJN 266 at 280; Artra Ind. Nig Ltd v NBCI (1998) 13 SCJN 97 at 115; Bakare v NRC [2007] 17 NWLR (PT 1064) 639; Odutola Holdings Ltd v Ladejobi [2006] 12 NWLR (PT 994) 321 at 358; Unipetrol v E.S.B.I.R. [2006] 8 NWLR (PT 983] 624 at 641; Rivers State Government v Specialist Konsolt [2005] 7 NWLR ( PT 923) 145 at 179;  Tarzoor  very AVINE & ORS (2011) LPELR -5029 W15; “per Gumel, JCA, paras D-F.

Learned Counsel further submitted that paragraph 21(B) of the third schedule to the 1999 Constitution relied upon by the Appellant was to empower NJ C to recommend to the President the removal of judicial officers and to exercise disciplinary control over such officers.

He contended that both the criminal proceedings and the disciplinary proceeding of the NJC can go on simultaneously and that even where one should be suspended pending the conclusion of the other, it is the NJC’s proceeding that should wait.

He relied on the cases of Veritas Insurance Co Ltd v CITI Trust Investment [1993] 3 NWLR (PT 281) 343; Okafor V Madubuko [2000] 1 NWLR (PT 641) 473; Ekerete v UBA [2005] 9 NWLR (PT 930) 401; FRN v Vijay Lalwani Appeal (2013) LPELR-2037 6 (CA).

On the application of the mischief rule, learned Counsel submitted that this court cannot resort to same until it has established that the intention of the legislature was unclear or ambiguous. He relied on the cases of Fagbola vs ANOR v Kogi Chambers Of Commerce Industry. Mines & Agriculture & ANOR (2006) LPELR-5392 (CA) 18-19, per Rhodes-Vivou,  JCA, paras F-C.

Learned Counsel submitted that the Appellant is not covered under the provisions of Section 308 of the Constitution and that a specific provision of the law prevails over and above that which is general. He relied on the case of Ibori v Ogboru [2004] 15 NWLR (PT 895) 154 at 194 195; CAC v Davis. (2006) LPELR-11411 (CA) 15-16, per Owoade, JCA, paras F-C.

In reply to the contention of the Respondent, learned Counsel for the Appellant submitted that their argument borders on due process with respect to institution of criminal proceedings against a judicial officer and not absolute shield from criminal proceedings as argued by the Respondent. Counsel also contended that NJC’s . proceeding is quasi-criminal in nature that can either lead to removal, suspension and/or further proper criminal proceeding and not a civil one that can be commenced distinctively or simultaneously with criminal proceeding as argued by the Respondent. Furthermore, learned Counsel for the Appellant cited

Manchester City Council v Mccann (1999) 2 WLR 590, CA.  The Construction of  Statutes (2nd edition) To”rof1t6′: Butterworths 1988, pg. 75; Fagbola 82. ANOR v Kogi Chambers Of Commerce, Industry, Mines And Agriculture 8r. ANOR (2006) LPELR-5392 (CA) at 19, para C per Rhodfs Vivour, JCA to contend that the Respondent cannot blow hot and cold on the application of the mischief rule and urged this court to resolve the issues in their favour.

RESOLUTION

I observe that the two issues formulated by the Appellant can be subsumed under the Respondent’s sole issue and it is even my firm view that those issues can be determined in one sweep, as it appears, issue two is dependent upon the resolution of issue one.

Therefore, this appeal shall be determined by considering the two issues together.

Now, the National Judicial Council was established pursuant to the provisions of Section 153 (1) of the 1999 Constitution (as amended) and by subsection 2 thereof, the composition and powers of the Counsel are as contained in Part 1 of the Third Schedule to the constitution. Pursuant to this,  paragraph 21 of the Third Schedule states: .

21   The National Judicial Council shall have power to (a) (13) recommend to the President the                    removal from the office of the judicial officers specified in sub-paragraph (a) of this                           paragraph and  to   exercise disciplinary control over such officers….”

To be continued…

Source:https://samueljackson12.blogspot.com/2019/01/fgn-v-cjn-appeal-court-judgment-on.html