Hameed Ajibola Jimoh

Just few days a go, there came a land mark decision of the Court of Appeal of Nigeria, Lagos State Division, to the effect that a serving judicial officer can not be arraigned for criminal prosecution by the prosecuting agency of the government unless and until such a judicial officer has first been subjected to the disciplinary jurisdiction of the National Judicial Council. This decision has really generated serious controversy between the executive arm of the government and the judiciary and among some concerned legal practitioners and the general public.

This paper aims at a constructive criticism of the said decision of the Court of Appeal in the suit which was an appeal against the decision of the High Court of Lagos State, coram 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.

The writer of this paper was so delighted to have been able to grab a soft copy of the said decision of the Court of Appeal on TheNigerialawyer.com blog, without which it would have been a bit difficult to write this paper. After downloading the said judgment of the Court of Appeal, on 12th day of December, 2017, at about 10pm o’clock or so soon thereafter, the writer of this paper took the hobby of reading through till around 2 am o’clock or so soon thereafter of the following day, in order to ensure a much more constructive and enlightening legal opinions on the decision, hence, the mature analysis of this paper.

First and foremost, it must be affirmed that it remains the trite position of law that ‘…there is always a presumption of correctness in favour of a court’s judgment. And until that presumption is rebutted and the judgment is set aside, it subsists and must be obeyed’. See the case of FATB v Ezegbu (1994) 9 NWLR (Pt. 367) 149. In other words, the decision of the Court of Appeal shall subsists and bind all authorities and persons where applicable until the decision is set aside by the Supreme Court of Nigeria.

Also, there is much for the writer of this paper to say on this subject matter but the challenge of not making this paper a lengthy legal opinion.

The writer of this paper has read through the entire soft copy of the certified true copy of the judgment which is 41 pages in total. The writer of this paper has read through the arguments and submissions of the Appellant’s Counsel as well as his two issues formulated as highlighted in the judgment, the arguments and submissions which are in accord with the opinions and decisions of the three Honourable Justices of the Court of Appeal. The writer of this paper has also read through the arguments and submissions of the Respondents’ Counsel as well as the issues he has formulated for determination. The writer of this paper has also considered most professionally and legally, the legal authorities cited by the Appellant’s Counsel, the Respondent’s Counsel and the Honourable Court of Appeal in its appellate jurisdiction and constitution, including provisions of the Constitution, especially: sections: 4-6, 153, 158, 160, 292, paragraph 21(b) of the Third Schedule and section 318 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended)-herein after referred to as the Constitution, the provisions of Nigerian statutes and decided cases-judicial precedents. The writer of this paper has also paid a rapt attention towards discovery of the correctness or otherwise of the judgment of the Court of Appeal. And in the overall summation, the writer of this paper came to the arguments and submissions below made. Though, it must be emphasized by the writer of this paper that this paper is never an attempt at tarnishing the image of the judiciary or the Honourable Court of Appeal or to be an appeal of the judgment or any person, rather it is an academic and constructive criticism of the judgment for a way forward in the Nigeria law.

It is the respectful submission of the writer of this paper, with due respect to the Honourable Justices of the Court of Appeal who decided the case, that the decision was absolutely made in error. And in total open consideration and appreciation of the above sections cited by the Appellant’s Counsel and the Court, which was the basis for setting aside the decision of the lower court, the sections are very inapplicable in this case, especially, sections 158(1) and paragraph 21(b) of the 3rd Schedule to the Constitution, have been interpreted erroneously. From the facts and the legal authorities referred to in reaching the decision, it is the writer of this paper’s submission that the issue is not on whether the National Judicial Council of Nigeria has power to discipline such alleged erring judicial officer, rather, it bothers on whether the prosecuting agency of government can prosecute such a judicial officer either without having recourse to the NJC or alongside the disciplinary jurisdiction of the NJC. And if this is the question to be determined, the writer of this paper then, with due respect to the Honourable Justices of the Court of Appeal and the needless arguments and submissions made by the Appellant’s Counsel, submits that the question ought to be answered in the affirmative as that is the position of the law as of now and ever since for a very long time immemorial. Therefore, the writer of this paper totally agrees with the arguments and submissions of the Respondent’s Counsel in their entirety. The writer of this paper has also read painstakingly, the views of the eminent Professor of Law, Professor Itse Sagay on the outcome of the judgment of the Court of Appeal. The writer of this paper is most honestly and sincerely, in total agreement with the arguments espoused.

The NJC’s functions and power on disciplinary measures to be meted on any judicial officer who has been alleged whether wrongly or rightly is an administrative procedure which is guided by administrative laws and procedures in force, for instance, Revised NJC’s Code of Conducts for Judicial Officers of the Federal Republic of Nigeria of February, 2016, among others. All these laws are administrative laws and procedures in the realm of public laws and public laws litigation. Administrative law has been defined by Professor E.C.S. Wade of high repute in administrative laws and Professor A.W. Bradley in their written book Constitutional Law. 10th ed. 1985, p. 593, thus ‘Adminsitrative law is a branch of public law which is concerned with the composition, powers, duties, rights and liabilities of the various organs of government which are engaged in administration, or more concisely, the law relating to public administration’. No wonder the assertion of Professor F.A.R. Adeleke of the Lagos State University, Ojo, Lagos, the able role model of the writer of this paper in public laws, in one of his administrative laws lecture that ‘ a lawyer is not complete without administrative laws knowledge’.  Hence, the relevance of the appreciation of the administrative laws in this case.

Furthermore, it is the submission of the writer of this paper that the judgment of the Court of Appeal most respectfully, has the implication of crowning the judiciary with immunity from prosecution for criminal prosecution whereas, there is no such immunity under the law.

Also, the principles governing interpretation of constitutional provisions has been laid down in plethora of judicial precedents (and as in this subject matter), that ‘the courts are enjoined to approach the construction of the provision liberally. By this, it meant to construe, where the question is as to whether the expression used in the Constitution should be applied in the wider or narrower sense, the court should, whenever, possible and in the interest of justice lean to the broader interpretation, unless there is something in the text or the rest of the Constitution indicating that the narrower interpretation will best carry on the object and purposes of the Constitution.  See the case of A.G. Lagos State v .A.G. Fed. (2014) 9 NWLR (Part 1412)217 SC.at page 269, paras. F-H. It is the writer of this paper’s submission that with due respect to the Honourable Justices of the Court of Appeal, the proper principle of interpretation in this case is the liberal/literal rule and not the mischief rule.

Finally, the Economic and Financial Crimes Commission for the Federal Republic of Nigeria-herein after referred to as EFCC- is therefore encouraged to appeal this erroneous decision as assessed by the writer of this paper, in the interest of the public and that of justice. More so, the affairs of government of which the judiciary is an arm, should not be that everyone will utilize his power to his favour all at the detriment of the public and justice, else, chaos and disorderliness might be imminent.

e-mail: hameed_ajibola@yahoo.com

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