By Vincent Adodo, Esq

When falsehood perpetually thrives unchallenged, it invariably wears the toga of truth- Anonymous

Introduction

On the 21st day of December 2015, the Civil Society Network Against Corruption (CSNAC) petitioned the National Judicial Council (NJC) alleging against a Judge of the Federal High Court, The Hon. Justice Mohammed Nasir Yunusa what it termed abuse of power in that, according to it, his Lordship granted injunctive orders targeted at gagging the Economic and Financial Crimes Commission (EFCC) from discharging its statutory functions.

The NJC accepted the report of its panel constituted to investigate the allegations and on the 15th July 2016 recommended His Lordship for compulsory retirement.

In compliance with section 292 of the Constitution of the Federal Republic of Nigeria 1999 (as amended), the NJC submitted its recommendation to President Muhammadu Buhari for action and subsequent approval. However, since the NJC’s recommendation was submitted to the President in 2016, the President, in his wisdom, took no action thereon. Consequently, his Lordship remained suspended pending the approval of the recommendations of the NJC by the President.

The allegations, the sentiments and the facts

The fulcrum of CSNAC’s allegation against his Lordship was that the Hon. Judge in six of his judgments granted restraining orders targeted at preventing the EFCC from discharging its statutory functions. The judgments are briefly summarised:

Suit No: FHC/L/CS/1471/2015 – Mr. Simon John Adonmene & 3 Ors v. EFCC- the Hon. Judge found that the EFCC directed the applicant’s bankers to freeze the applicant’s accounts without the Commission first obtaining a court order contrary to the requirement of section 34(1) of the EFCC (Establishment) Act 2004. It was based on this unchallenged finding that the Hon. Judge granted the declaratory and injunctive reliefs sought by the applicant in the fundamental rights enforcement action instituted by him against the EFCC.

Suit No: FHC/L/CS/1342/15 – Senator Stella Odua v. Attorney General of the Federation, EFCC, ICPC & IGP- the Hon. Judge refused to grant the injunctive prayer 2 sought by the applicant against the EFCC but directed that the respondents (including the EFCC) be put on notice to enable them respond to the application.

Suit No FHC/L/CS/1445/2015- Dr. Martins Oluwafemi Thomas v. Economic and Financial Crimes Commission- the Hon. Judge found for the applicant in a fundamental rights enforcement application challenging the detention and seizure by EFCC of $2,200,000 (Two Million Two Hundred Thousand dollars) belonging to the applicant. The Hon. Judge found for the applicant because the seizure and detention of the money was carried out by the EFCC without a Court Order.

Suit No: FHC/L/CS/1269/2015 – Honourable Shamsudeen Abugun v. EFCC & 3 Ors, applicant sought declarations that his detention by the EFCC for eight (8) days between the 4th to 12th June 2015 without an order of court is unlawful, illegal and unconstitutional. The Hon. Judge found that the applicant was arrested without any court order and that the basis of the applicant’s arrest and detention by the EFCC was a contractual relationship. It was on the basis of these findings that the Hon. Judge granted the reliefs sought by the applicant therein.

Suit No: FHC/L/CS/1285/2015 – Jyde Adelakun & Anor v. The Executive Chairman, Economic and Financial Crimes Commission (EFCC) and Anor. The Hon. Judge found that the applicant was arrested without a warrant and also that his account was frozen without a court order contrary to section 34(1) of the EFCC Act and section 44(1) of the Constitution of the Federal Republic of Nigeria. The Judge also found that the seizure of the 1st applicant’s international passport was unconstitutional. Based on these findings, the Hon, Judge granted the reliefs sought by the applicant.

Suit No: FHC/L/CS/487/14- Federal Republic of Nigeria v. Michael Adenuga which was also named in the petition was not decided by the Hon. Justice Yunusa as same was subsequently re-assigned to another Judge who concluded the case.

Apparently, none of the decisions rendered by The Hon. Justice Yunusa in these matters amounted to injudicious use of judicial powers. While a Judge is not immuned from errors, it is settled that the proper procedure to correct such errors where it occurs is for the aggrieved party to file and pursue an appeal and not to resort to petition writing. Rather than diligently prosecute an appeal, the EFCC launched and promoted a carefully orchestrated media war against the person and reputation of Hon. Justice Yunusa. Yet, based on a critical evaluation of the facts, as the NJC later did, none of the actions of the Judge in the cases aforementioned constituted an abuse of judicial power.

EFCC’s Appeal against the judgments dismissed

It must be stated for the sake of posterity that the EFCC appealed to the Court of Appeal against the decisions which CSNAC in its petition had complained were made in abuse of judicial powers by the Honourable Judge. The Appeals lodged by the EFCC against the decisions of His Lordship were dismissed, thus confirming that the complaints were unfounded and further that His Lordship exercised his judicial powers and discretion judicially and judiciously in arriving at those decisions.

Unfounded bribery allegations

In addition to allegations of abuse of judicial power peddled against The Hon. Justice Yunusa, His Lordship was also alleged of receiving a bribe of N225, 000 from Mr. Ricky Tarfa, SAN to influence him in the discharge of his judicial duties. This particular allegation which was accorded wide and negative publicity in the media court of public opinion was found by the NJC to be false and mischievous. The allegation was an orchestrated plan to destroy the image of His Lordship.

After the EFCC had concocted this allegation and circulated it widely in the electronic, print and social media, a counsel in the law firm of Mr. Ricky Tarfa, SAN, Mohammed Auwal Yunusa deposed to an affidavit on the 23rd day of February 2016 stating that his principal gave him the sum of N225, 000 to support him for his Master of Laws programme and that he owns the account which was falsely peddled as the account of his Lordship. Since Mr. Yunusa deposed to the affidavit attaching evidence of bank statements, call to the Bar certificate etc to support his claims, the EFCC has been unable to debunk the factual and truthful position that the said sum of N225,000 was not paid to his Lordship’s account but was paid to the account of someone else.

Thus, contrary to the falsehood with which the public was sufficiently fed with in the media, his Lordship never received the said money from Ricky Tarfa, SAN.

The Rule of Law majestically prevails

While facts could be embellished and/or distorted, the law remains what it is, brooking neither sentiments nor emotions. In November 2017, His Lordship, through his team of lawyers, approached the NJC for a review of the disciplinary action taken against him. His Lordship’s Appeal to the NJC was predicated on seven grounds disclosing several violations of due process and infraction of his Lordship’s right to fair hearing especially as it relates to the fact that his Lordship’s suspension was effected in violation of specific NJC Fair hearing Regulation applicable to discipline of judicial officers and furthermore that the 2016 Code of Conduct for Judicial Officers was retroactively applied to his lordship’s case when the facts and the events upon which the petition was based occurred before the issuance of the 2016 Code of Conduct. His Lordship further contended that the petition was not brought in good faith as the petitioners had an interest to serve; and in addition, the NJC was invited to reconsider its action on the grounds that judicial independence would be endangered if a judicial officer could be suspended from office or otherwise punished without compliance with due process.

Validity of the NJC Report indicting Hon. Justice Yunusa

Flowing from his lordship’s grounds of complaint as summarized above, it is important to examine the legal status of the report of the NJC Committee that recommended the suspension of His Lordship. The report did not comply with due process as it was produced in violation of paragraph 16 of the NJC Judicial Discipline Regulations dated the 3rd November 2014. The provisions of paragraph 16(1) of the Regulations provides that the Council shall, before it considers the report of the Investigating Committee, forward a copy of the report to the subject judge. This crucial provision which was intended to ensure fair hearing and accuracy of the findings of fact made by the Committee was not complied with by the NJC. The non-compliance with this provisions resulted in the erroneous findings of facts made by the panel. Apparently, such findings arrived at in violation of the fair hearing provision of the NJC Regulations would not stand in law. Being a quasi-judicial body, the NJC is bound by the rules of natural justice which necessitates that a person whose fate is to be decided must be availed the opportunity to controvert or dispute any fact or evidence proffered against his interest. In Judicial Service Committee, Cross River State v. Young (2013) 11 NWLR (pt. 1364) 1 at 21, the Supreme Court per Peter-Odili, JSC affirmed this immutable position of the law when His Lordship held as follows:

‘The natural law concept or principle of fair hearing which is of course fundamental and a bedrock of adjudication or administrative inquiry is as enshrined in section 36 of the 1999 Constitution of Nigeria, the nation’s grundnorm so deep rooted there is no escape therefrom. The interpretation that has been given to section 36(1) of the 1999 Constitution or its successors or even just the matter of fair hearing is that apart from the Court, the other adjudicating bodies like tribunals though not expected to act fully like a court of law is enjoined in their hearing of mattes to act in good faith and fairly listen to both sides before deciding. In that regard, such bodies even if administrative must always give the parties before them the opportunity to controvert, correct or contradict any relevant statement prejudicial to their view.’’

The NJC Judicial Discipline Regulations being a subsidiary legislation have the force of law and ought to have been complied with by the NJC in its discipline of judicial officers, especially when such disciplinary actions could result in dare consequences such as suspension or even removal from office. It is also settled that where a statute prescribes the method for the exercise of a statutory power, such statutory power can be exercised by such method alone and no other: Ogualaji v. Attorney General of Rivers State (1997) 6 NWLR (pt. 508) 209.

Another infraction which fundamentally tainted the validity of the report was that the recommendation of the Committee was based on the Revised 2016 Code of Conduct for Judicial Officers, in other words, the Revised 2016 Code of Conduct for Judicial Officers was retroactively applied to the matter. This infraction becomes apparent when regard is had to the NJC letter dated 15/07/2016 with ref No. NJCPFRN/11/9/02/1/25 which shows that although the petition against his Lordship dated 21/12/2015 was based on facts which occurred before the existence of the 2016 Code of Conduct for Judicial Officers. Although the Committee was not bound to follow the practice and procedure of a Court of law, it is bound to observe and comply with the principles of natural justice because acting on the recommendation will invariably affect the civil rights of the person affected thereby. The law is settled that the law to be applied in proceedings is the law applicable when the cause of action arose.

Salutary decision of the NJC reviewing and reversing its erroneous decision

Upon the Appeal made by his Lordship through his solicitors, the NJC under the chairmanship of the Chief Justice of Nigeria, His Lordship, The Hon. Justice I.T. Muhammad, CFR considered the plea of his Lordship and reversed its decision on the matter having found that the decision was fraught with violations of due process which necessitated a revisit and review of same. The NJC’s approach resonates the pronouncement of the Supreme Court in Adegoke Motors Limited Adesanya (1989) NWLR per Oputa, JSC (of blessed memory) that ‘it is better to admit an error than to persevere in error’. The courage exhibited by the NJC in revisiting and reversing its decision is indeed salutary considering the unsavoury precedent that the reversed decision would have constituted.

Conclusion

The imperative to stamp out corruption from all public institutions (including the judiciary) cannot be over emphasized. In so doing however, the million dollar question is whether putting the rule of law aside and violating due process to fight corruption is not itself a form of corruption? Were not for the intervention of the NJC, Justice Yunusa would have been an unsung victim of a corruption fight carried out in violation of due process and disregard for the Rule of Law. With the intervention of the NJC after four uneasy years however, the rule of law has finally prevailed over sentiments.

Long live the National Judicial Council,

Long Live the Nigerian Judiciary

Long Live the Federal Republic of Nigeria.

Vincent Adodo, Esq. is a legal practitioner and social justice advocate. He was a member of the legal team that made representations to the National Judicial Council on behalf of His Lordship, the Hon. Justice M.N. Yunusa.