The planned arraignment of the highly revered Chief Justice of Nigeria (CJN) Honourable Justice Walter Annoghen has understandably attracted mixed reactions across the country with some persons describing the move as outright witch hunt and intimidation by the executive arm of government against the judiciary ahead of the 2019 election and some others stating that it is a sign that no man is above the law. This intervention does not seek to address the purported witch hunt (if any) or the innocence or otherwise of the respected CJN. It merely attempts to briefly examine the legal regime in the circumstance.  

The propriety of subjecting a sitting judicial officer to a criminal trial in our courts has since been rested by the Court of Appeal in the case of Nganjiwa V. FRN (2017) LPELR  - 43391 (C.A), where the court stated unequivocally  as follows: 

“…Whenever a breach of judicial oath occurs, it is a misconduct itself, then the NJC is the appropriate body to investigate such breaches by the judicial officer and if found to be so, such judicial officer shall face disciplinary action and the NJC may recommend the removal of such a judicial officer to the appropriate authority which is either the President in the case of a Federal Judicial Officer or the Governor of the State in the case of a State Judicial Officer and/or take other actions appropriately. When this is done and accepted by the appropriate authority in compliance with the provisions of the Constitution, then the relevant law enforcement Agent or Agency is at liberty to make the said judicial officer face the wrath of the law. Any act done by the law enforcement Agent or Agency in violation of the above, is tantamount to denying the NJC its powers to discipline Judges in accordance with the provisions of Section 153(1) and Paragraph 21 Part 1 of the Third Schedule of the 1999 Constitution (as amended). See Paragraph 21 (a) & (b) of the Third Schedule, Part 1 of the 1999 Constitution (as amended) respectively. Whenever there is an allegation of official misconduct against a judicial officer and the above stated process is not adhered to, it amounts to jumping the gun and ipso facto a direct violation of the Constitution. Recourse to the National Judicial Council is a condition precedent as clearly set out by the Constitution, and any attempt by any Agency of Government to by-pass the Council will amount to failure to observe condition precedent thereby leading to flagrant violation of the Constitution? I have examined the Charge which is mainly made up of 13 allegations of corruption allegedly committed by the Appellant as a sitting Judge of the Federal High Court and the last count relates to statements made to the EFCC during investigation. It is obvious from the various counts that the Appellant is purportedly being charged with "unlawful enrichment by Public Officer..." while being a Judge of the Federal High Court. It must be expressly stated that if a judicial officer commits theft, fraud, murder or manslaughter, arson and the likes, which are crimes committed outside the scope of the performance of his official functions, he may be arrested, interrogated and prosecuted accordingly by the State DIRECTLY without recourse to the NJC. These classes of criminal acts are not envisaged and captured by the provisions of Paragraph 21, Part 1 of the Third Schedule. On the other hand, if any Judicial Officer commits a professional misconduct within the scope of his dutyand is investigated, arrested and subsequently prosecuted by security agents without a formal complaint/report to the NJC, it will be a usurpation of the latter's constitutionally guaranteed powers under Section 158 and Paragraph 21 Part 1 of the Third Schedule, thereby inhibiting, and interfering with and obstructing the NJC from carrying out its disciplinary control over erring judicial officers as clearly provided by the Constitution. This will thus amount to a violation of the constitutionally guaranteed independence of (a fundamental component) of the judiciary. See ELELU - HABEEB & ANOR v A.G. FEDERATION (supra).” 

With fraud stated as one of the exceptions to the rule in Nganjiwa V. FRN (supra), the natural instinct is for anyone to conclude that once particulars of fraud are mentioned in any charge the general rule in Nganjiwa V. FRN (supra) must blow muted trumpet. Fraud is defined as wrongful and criminal deception intended to result in financial or personal gain. Acts of corruption are also fraudulent acts.  The infractions listed in the charges against the CJN border on his purported failure to declare his asset as a judicial officer. Does the purported failure fall within the exceptions in Nganjiwa V. FRN (supra)?

Interestingly, the Court of Appeal further held in that case as follows: 

“This underscores the point that the NJC is not a Court trying criminal matters. Far from it! In OPENE v NJC (supra}, this Court, per GALINJE, JCA said at pages 40 - 50 paras A - F made it clear on whether the NJC had powers to investigate and prove criminal allegations against judicial Officers that: "...The word misconduct used as a reason for removal of Judicial Officer is known to those who framed the Constitution to be a criminal offence and yet the responsibility to recommend to the President, the removal of such officer is given to the National Judicial Council. If the Constitution intended that such misconduct must be subject to trial by Court it would have said so ... rather the Constitution gave the court power to try criminal offences also gave the NJC power to investigate allegations of misconduct against Judicial Officers and make recommendations for their removal. It is my firm view that the procedure adopted by the NJC is sustainable... The Appellant has constitutional power to investigate the criminal allegations made against the Appellant and to make a finding that the allegations are proved..."… All I have been saying is that a combined reading of Section 6, 153, 158, 292(1) and Paragraph 21 (b) of Third Schedule of 1999 Constitution (as amended) is to the effect that 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.NJC is the sole body empowered by the Constitution to determine allegations of misconduct against judicial officers even on criminal allegations of bribery and corruption made against its officers.”

The underlining in the above quoted reference is done advisedly. It is therefore baffling that notwithstanding the unequivocal decision in Nganjiwa V. FRN (supra) the Federal Government through the Code of Conduct Tribunal (CCT) chose to file criminal charges against the CJN without first lodging a complaint against the CJN with the National Judicial Council (NJC). From the charge sheet already in the public space, one wonders how the instant case falls outside the purview of the judicial adjuration in Nganjiwa V. FRN (supra) to warrant the planned arraignment of the CJN at the CCT. 

Granted, the decision in Nganjiwa V. FRN (supra) may somewhat  pass for judicial immunity for judicial officers against criminal prosecution until the NJC gives the green light for their prosecution, but we have no choice in this matter than to live with that decision until the Supreme Court decides otherwise. After all, in this same Nganjiwa V. FRN (supra), the Lagos State High Court had in its rulingdelivered on 23rd June, 2017 held that recourse to the NJC was not a condition precedent for preferring criminal charges against a sitting judge before same was subsequently upturned by the Court of Appeal.

In reality, the law is not what the legislature says it is by the dry letters of the law. The law is what the court says it is. In the case of Adegoke Motors v.  Adesanya (1983) 3 NWLR (Pt. 109) 250 @ 274 -275, Oputa JSC fondly called the Socrates of the Supreme Court and the philosopher - judge said of the Supreme Court thus:

“We are final not because we are infallible, rather we are infallible because we are final”.  

The import of the above judicial imprint by Oputa JSC (whom I refuse to refer to in past tense having gloriously joined his ancestors) is that the Supreme Court could err in its decision, but even at that the decision remains final and binding on all persons and authorities. Ipso facto, the decision of the Court of Appeal is binding on all persons and authorities including the CCT until the Supreme Court decides otherwise.

Query: Who gave the legal advice that culminated in this whole legal drama?  Was the Attorney General of the Federation (AGF) in the know of the charges before same were filed? I am tempted to believe that the AGF was not in the know of the charges otherwise he likely would have advised against this very approach in proceeding against the CJN in view of the decision in Nganjiwa V. FRN (supra). 

However, the AGF will have the opportunity to clear the doubt if he fails to intervene by dropping the charges or entering a nolle prosequi (if the planned arraignment takes place) and thereafter advise that a formal complaint be forwarded to the NJC in that regard. 

This is because beyond the razzmatazz of arraignment, the charges may well be dead on arrival unless the Supreme Court upturns the Court of Appeal decision in Nganjiwa V. FRN (supra) before the expected preliminary objection by the defence is pronounced upon by the CCT that is BOUND to follow the decision of the Court of Appeal. Therefore, this is a clear case of premature prosecutorial ejaculation. 

The likely apprehension that the CJN is the head of the NJC vested with the powers to discipline erring judicial officers is not sufficient basis to want to side step the due process of law as declared by the Court of Appeal in the circumstance. The CJN will definitely not be part of the NJC’s panel that will handle any complaint that maybe lodged with the NJC against him.   

All over the world, there is no perfect system. Every system is a work in progress and Nigeria will not be an exception.  

Stanley Imhanruor Esq.

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