By Joseph Onyekwere
Following the recent discharge of a judge of the National Industrial Court (NIC), Justice James Agbadu-Fishim by a Lagos High Court and a serving Supreme Court Justice, Sylvester Ngwuta by the Code of Conduct Tribunal (CCT), the question on whether a Nigerian judge can in all honesty convict a colleague has been thrown up. Assistant Law and Foreign Affairs Editor, JOSEPH ONYEKWERE takes this issue before jurists for determination with additional report by GODWIN DUNIA.
It sounds so innocuous, but not many arguably have bothered to reason in this direction because there is no known precedent in Nigeria.
So, for the first time in our history, some judicial officers are either undergoing corruption related trials or were put on trial.
But the outcome of those trials in which many had hoped for the best turned out a disappointment.
A disappointment, not because the judges were not courageous enough to convict them or that the defence teams were fantastic, but because condition precedent was not followed before the judges were charged to court – which is that they must first be removed from office as judges.
The federal government had hurriedly filed charges against judicial officers over alleged involvement in corrupt practices, without patiently following due process and the outcome had been the dismissal of those cases one after the other.
The government had for instance filed charges bordering on assets declaration against Ngwuta before the CCT, while the Economic and Financial Crimes Commission (EFCC) filed corruption charges against Agbadu-Fishim before Justice Raliat Adebiyi.
Ngwuta was arraigned April last year on an eight-count charge bordering on alleged false and non-declaration of assets as a public officer.
Upon pleading not guilty to the charges, he was granted bail on self-recognizance after which the prosecution opened its case.
In a ruling delivered by Justice William Atedze, the tribunal however held that it was persuaded by the Ngwuta’s argument in paragraph 4.1 of his written address, that as a serving judicial officer, he was under the management, control and discipline of the National Judicial Council (NJC).
NJC according to the tribunal is a body whose independence from external control or interference is constitutionally provided for by section 158 (1) of the 1999 Constitution (as amended).
“This means that any allegation of official misconduct will first have to be referred to the National Judicial Council to the exclusion of any other body, court or Tribunal”, Justice Atedze stated.
Justice Adebiyi struck out the charges against Agbadu-Fishim, while ruling on an application filed by the defence team led by Prof. Amuda Kanike (SAN).
Kanike had cited the decision of the Court of Appeal in the case of Justice Hyeladzira Nganjiwa vs the Federal Republic of Nigeria to buttress his application, contending that the court lacks jurisdiction to hear the case.
“Based on the precedent set by the Nganjiwa case, the EFCC does not have the powers to investigate or prosecute serving judicial officers except where such judicial officers have first been dismissed or retired by the National Judicial Council (NJC).”
The judge therefore struck out the suit “due to non-compliance with the conditions precedent”, which is that Agbadu-Fishim was not investigated and dismissed by the NJC before being prosecuted by the commission.
The NIC judge was standing trial for unlawful enrichment contrary to Section 82 of the Criminal Law of Lagos 2011. After the ruling, Justice Adebiyi ordered the release of the international passports of Justice Agbadu-Fishim.
It is important to note that the Court of Appeal had in the case of Justice Hyeladzira Ngajiwa v. FRN, in what is considered a landmark judgment delivered in December 11, 2017 held that by virtue of Section 158 of the 1999 Constitution, only the NJC has the powers to try judicial officers for any misconduct while in office.
In interpreting section 158 of the Constitution, the Court held that a judicial officer could not be arrested and arraigned before a court of law where the complaint against him borders on an infraction of his oath of office and that in such circumstances, such a judge must first be found wanting by the NJC and removed as a judge, before he could be hauled before a court to face criminal prosecution.
Following that precedent, the tribunal held that a judge cannot be prosecuted by any court or tribunal until NJC has dealt with the allegations against him or her and take a decision of either dismissing such a judicial officer or compulsorily retiring him or her.
It consequently quashed the charges against Justice Ngwuta and discharged him. Ngwuta was one of the judicial officers, whose residents were raided by the officers of the Department of State Security Service for alleged corrupt practices.
A separate case bordering on corruption was filed against him before Justice John Tsoho of the Federal High Court, who also maintained that the prosecution in Justice Ngwuta’s case had failed to comply with the condition precedent before bringing charges against a judicial officer.
But before the appeal court decision, a High Court of the Federal Capital Territory (FCT) in Maitama, Abuja, on April 5, 2017 dismissed all the 18 counts, including gratification charges preferred against Justice Adeniyi Ademola of the Federal High Court, his wife Olubowale, who was the Head of Service, Lagos State and a Senior Advocate of Nigeria, Mr. Joe Agi.
Justice Jude Okeke discharged the three defendants in a ruling upholding the respective no-case submissions filed by the defendants.
Justice Okeke ruled that the prosecution was unable to make out a prima facie case with respect to any of the 18 counts, adding that the case of the prosecution was built on strong suspicion and speculation fueled by the feeling of fight against corruption, which no reasonable court could base any conviction on.
Curiously, there are few other judges who are still on trial, whose appointments as judicial officers are yet to be terminated.
They are Justices Rita Ofili-Ajumogobia and Mohammed Yunusa. Both are justices of the federal high court and are facing separate trials at the Lagos high courts.
Although NJC had recommended Yunusa’s compulsory retirement, it is not clear if any action has been taken, while Ofili-Ajumogobia is still a judicial officer.
Now the question is: can a trial judge be courageous enough to convict his colleague, assuming the first hurdle of disrobing the defendant is removed and the prosecution is able to prove its case beyond every reasonable doubt or the issue of camaraderie would come into play?
Jurists say yes, they can be convicted. Former Chief Justice of Nigeria (CJN), Justice Muhammad Uwais (rtd) said he does not even need courage to jail a judge. According to him, it is the oath of office of a judge to do justice to all before him.
His words: “I don’t need any courage because it is my job and also my oath of office. I will convict the judge just as I will convict anybody.
The oath of office of a judge is to do justice to all manner of people.
The only thing is if he is related to me or he is a close friend, I will disqualify myself because I will say that I might not be able to do justice in that circumstance.
Otherwise, nothing stops the conviction of a judge who trial is proven beyond every reasonable doubt.”
Similarly, the former Chief Judge (CJ) of the Federal High Court, Justice Abdullahi Mustapha asserted that a judge could be convicted.
He said any one who enters the dock has become like every other person irrespective of status in the society.
He said: “Why not? When anybody is facing trial before any court, he is like every other person as far as I am concerned.
Once any judge is arraigned before you and there is evidence that the criminal case has been proved beyond every reasonable doubt, there is no reason why such persons should not be convicted simply because he is a judge.
“When one is appointed as a judge, he takes an oath to do justice and be fair to all people. When you say to ‘all people’, that is inclusive of a judge.
If you convict him and sentence him, then you are upholding your oath, which you took the day you were sworn in as a judge.
So, it does not make any difference to me whether you are a judge or not.”
For former chairman of Body of Benchers, Chief George Uwechue (SAN), convicting a judge, who is found guilty of crime, is the expected quality of justice anywhere in the world.
“Why won’t you try and sentence a judge? When a judge is being tried, the judge who is trying him is also trying himself because he cannot afford to mess himself up.
Therefore, convicting a judge should not be so much an issue,” he declared.
As it is today, Nigerians will have to wait till the day a retired or dismissed judge is conclusively tried, convicted or freed based on the preponderance of evidence before the court, without acquittal on technical grounds. With the benefit of a foresight, such a day, perhaps, may not be far from now.
In his reaction, chief Ife Adedipe SAN said: “If an offence is established against a judge, the proper thing is to pronounce judgment. To do otherwise will be unconstitutional.
You know when a judge is being tried, it is like when any other person such as driver, lawyer, doctor, teacher and others in the face of the law.
According to him, that he is a judge is just a profession. “So if the evidence against the defendant is established and are strong, then he should be convicted. That is what the law say,” he declared.
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