That protest judgment of the Court of Appeal on judges, by Femi Falana

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I am unable to persuade myself to share the views of some learned colleagues who have argued that the judgment delivered on Tuesday, December 12, 2017 by the Lagos Judicial Division of the Court of Appeal in the case of the Honourable Justice Hyeldzira Ajiya Ngangiwa v Federal Republic of Nigeria (Appeal No CA/L/969c/2017) has clothed Nigerian judges with immunity. It is indisputable that the sole legal issue decided by the Court is that a serving judicial officer cannot be charged with a criminal offence in any court by any prosecution agency unless and until he/she has been subjected to the disciplinary jurisdiction of the National Judicial Council.

The Honourable Justice Abimbola Obaseki-Adejumo who read the leading judgment of the Court and her learned brothers who concurred with her Ladyship are not unaware of the case of Fawehinmi v Inspector-General of Police (2002) NWLR (PT 767) 606 wherein the Supreme Court held that notwithstanding the immunity conferred on the President and state governors they can be investigated even though they cannot be charged with any criminal offence until the expiration of their term of office.

The Court of Appeal has not said that judges cannot be investigated by the anti graft agencies. On the contrary, the Court conceded that judges can be investigated but that the report of any criminal investigation indicting them should be turned over to the National Judicial Council which will deal with it as a complaint of misconduct and possibly recommend the removal and prosecution of such judges to the appointing authorities before they can be arraigned in court. Realising that the judgment might be misunderstood or misinterpreted the Court made it abundantly clear that “no judicial officers is covered by immunity from prosecution under the Constitution as the Constitution only grants the powers to discipline judicial officers for official misconduct to the NJC.”

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Having read and digested the landmark judgment which has generated an interesting debate in legal circles I have come to the irresistible conclusion that it was a protest judicial decision against the special treatment being accorded to certain personalities and criminal suspects by the Buhari administration in the prosecution of the war against corruption. Hence the Court did not cite any decided case in Nigeria or any other common law country.

In fact, their Ladyship and Lordships said, ex abundanti cautela, that the judgment had taken judicial notice of the decision of the President of the Republic to set up a panel of inquiry to probe a former Secretary to the Government of the Federation and a former Director-General of the National Intelligence Agency. As far as the Court is concerned, indicted judges deserve to be treated, in like manner, before they can be properly prosecuted in a court of law. It is however doubtful if the Court of Appeal was aware of the fact that the Economic and Financial Crimes Commission (EFCC) had reported the judges on trial to the National Judicial Council which had endorsed the prosecution and placed the judges on suspension pending the conclusion of their trial. The position of the NJC cannot be faulted in the circumstance because the Supreme Court has ruled in the cases of Garba v University of Maiduguri 1986) 2 NWLR (Pt 18) 559 and Federal Civil Service Commission v Laoye (1989) All N.L.R 350, that administrative bodies lack the vires to determine the civil rights and obligations of any person accused of committing a criminal offence in Nigeria.

Regrettably, our colleagues who have been celebrating the landmark judgment have not considered the fact that it has exposed our judges to greater danger. For instance, the criminal case filed against of one of the judges arrested by the Department of State Security (DSS) last year was dismissed by the trial court in his favour. Consequently, the judge was reinstated and was allowed to resume duty in his court.

He has just been recommended for compulsory retirement by the NJC following another case of misconduct. But assuming that the President had dismissed the judge based on the recommendation of the NJC which might have found him guilty of the allegation of corrupt practices levelled against him by the DSS he would not have been reinstated since the dismissal would have been premised on the civil offence of misconduct. It is common knowledge that the age long practice of interdicting public officers on trial pending the conclusion of criminal cases pending against them is to prevent a situation whereby they are removed from the public service on account of criminal allegations that have not gone through the crucible of cross examination. But once they are discharged and acquitted they are reinstated with all the rights and privileges.

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Therefore, by asking that judges be disciplined by the NJC before they are prosecuted the Court of Appeal has made it impossible to reinstate such judicial officers even if they are eventually discharged and acquitted. With respect, such unintended consequence of the judgment has made a mockery of judicial independence and further exposed our judges to danger.

However, since the judgment has seriously questioned the inconsistency of the federal government in the prosecution of the war on corruption the Court of Appeal has equally challenged our judges to apply the law to all citizens without fear or favour. Out of ingenuity some lawyers are going to invoke the constitutional right of equality of all citizens before the law to challenge the validity of the criminal cases pending against some civil servants on the grounds that the administrative jurisdiction of the Federal Public Service Commission has not been invoked against them. More so, that the NJC, the Federal Civil Service Commission and other executive bodies have been created by section 158 of the Constitution of the Federal Republic of Nigeria 1999 as amended.

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Even professionals in the private sector who are standing trial for corruption will rely on the judgment of the Court of Appeal and insist on going through administrative procedure before they can be prosecuted in any court. For instance, a medical doctor who is charged with murder in a state high court for killing a patient in a hospital due to criminal negligence may challenge the case on the grounds that the Medical and Dental Practitioners Tribunal has not been given the opportunity to try the allegation of professional misconduct which informed the criminal prosecution. If such preliminary objections are filed the trial courts may have no choice than to uphold them as they are bound to follow the judgment of the Court of Appeal in the case of the Honourable Justice Hyeldzira Ajiya Ngangiwa v Federal Republic of Nigeria (supra).

Finally, in view of the foregoing, it is indubitably clear that the judgment has far reaching implications for the judiciary, the anti graft agencies and other law enforcement agencies as well as the Buhari administration which has loudly proclaimed to be fighting a war against corruption and impunity in the country. It is therefore hoped that the EFCC will not hesitate to challenge the controversial judgment of the Court of Appeal at the Supreme Court.

Mr. Falana is a Senior Advocate of Nigeria.