Hon. Justice H.A. Nganjiwa v Federal Republic of Nigeria Revisited
As part of our Cover of January 9, 2018, we featured an article written by a past President of the NBA, J B Daudu, SAN titled“Nigerian Judiciary in 2018: Prospects, Hopes and Aspirations”. Daketima Kio in this Rejoinder, responds to the Learned Senior Adv
“THE JUDICIARY OF THIS NATION, MUST INSIST THAT ALL ACTIONS OF GOVERNMENT OFFICIALS MUST BE JUSTIFIED IN LAW, AND NO GOVERNMENT AGENCY, NO MATTER HOW HIGHLY PLACED, IS ENTITLED TO DISREGARD THE RULE OF LAW AND THE CONSTITUTION”
J. B. Daudu, SAN’s Position
I read with fascination the article on “Nigerian Judiciary in 2018: Prospects, Hopes and Aspirations by a Past President of the Nigerian Bar Association, Joseph Bodunrin Daudu, Senior Advocate of Nigeria published in THISDAY Lawyer of Tuesday 9th January, 2018. My interest in the said article however, diminished with the position of our revered Bar Leader in his reaction to the case of NGANJIWA
v FRN delivered by the Lagos Division of the Court of Appeal on December 11, 2017. In his considered view, the case of NGANJIWA v FRN, is an example of over reaction by the judiciary, and argued forcefully that the main premise on which the case was decided, with respect, is wrong. It is his hope that the Supreme Court will make the right adjustments, when called upon to do so in due course.
Faultless: Nganjiwa’s Decision
This is a sad commentary with the greatest respect, emanating from the weight and stature of our Past President. The view expressed by the very disciplined and learned Senior Advocate of Nigeria, is one that cannot be cheaply ignored having regard to his pedigree and position on matters of judicial corruption. However, I seek to differ with my Past President, that the decision handed down by the erudite jurist, Abimbola Osarugwe Obaseki- Adejumo, JCA and her brother Justices, Mohammed Lawal Garba and Yargata Byenchit Nimpar, JJCA, cannot be faulted having regard to the reasoning, as borne out from the given facts and peculiar circumstances of the case. The peculiar circumstance of this case, is that the Appellant is a serving judicial officer of the Nigerian Judiciary at the Federal level. The Judiciary in Nigeria, is an arm of government that shares sovereign powers with the other two arms of government, namely the Executive and the Legislature. The Appellant being a serving judicial officer, is primarily under the constitutional disciplinary powers of the National Judicial Council (NJC), a body specifically created under the Constitution with specified responsibilities, which include the discipline of Judges. The provisions of the Criminal Code Law of Lagos State, upon which the Appellant was arraigned, as well as the investigative and prosecutorial powers of the Respondent under the provisions of the EFCC Act, are all subject to the clear provisions of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). It was Lord Denning who observed rightly in his book, What Next in the Law (1982) on page 318, that the Judges are the guardians of our Constitution here, just as they are in the United States. According to the Master of the Rolls, we are under a constitution, but the constitution is what the judges say it is and the judiciary is the safeguard of our liberty and our property under the constitution. The Court of Appeal (Per Obaseki-Adejumo, JCA) in the
Nganjiwa’s case have said it, that by virtue of the provisions of Sections 153(1), 158(1), paragraph 21(b) of part 1 of the third schedule to the 1999 Constitution (as amended), the sole body with authority to exercise disciplinary control over judicial officers, is the NJC. This statement of the Court of Appeal, has been affirmed in a plethora of judicial authorities by the Supreme Court of Nigeria, including the case of ELELU-HABEEB & ANOR v ATTORNEY- GENERAL OF THE FEDERATION (2012) 13 NWLR (pt 1318) 423, where the incumbent Chief Justice of Nigeria, Onnoghen, JSC (as he then was), held that the exercise of the powers conferred upon the NJC under Section 153(1) of the Constitution, brooks no interference.
In the instant case, the Appellant, presently a serving Judge of the Federal High Court, was charged before the High Court of Lagos State (Coram: Akintoye, J.) vide a Criminal Information of a 14 Count Charge, wherein he was alleged to have committed offences ranging from unlawful enrichment by a public officer to making false information. It is important to note that, these counts of offences as contained in the Criminal Information breaches the Appellant’s Oath of Office as contained in the Revised Code of Conduct for Judicial Officers of the Federal Republic of Nigeria, published in February, 2016, as well as the National Judicial Policy of April, 2016. It is to be further noted that, violation of any Rules contained in these codes constitute judicial misconduct, and for which the NJC is the appropriate and sole body to investigate and exercise disciplinary control over such erring judicial officer.
Breach of Due Process
Where has the Court of Appeal gone wrong when it held, per
Lawal Garba, JCA, that in the exercise of the powers vested in it by the EFCC Act, the EFCC has a mandatory legal duty and constitutional obligation, to comply with the provisions of the Constitution, because as a public institution and authority, it is bound by the Constitution. In the exercise of its powers in respect of serving judicial officers in Nigeria, the specific procedure provided for in the Constitution for the discipline of such officers cannot be ignored, but should be respected and complied with. As My Lord, Nimpar, JCA in her contribution to the leading judgement queried: The question one will then ask, is whether due process was followed in this case? Absolutely not. The Respondent, without first complaining to the NJC, the body primarily responsible for the discipline of judicial officers who breach their oath of office, proceeded to the Court, instituting criminal proceedings against the Appellant. It is a breach of due process, that the Respondent would avoid the NJC in the prosecution of acts which principally border on misconduct of a judicial officer perpetrated in the course of the Appellant’s duty as a judicial officer. This ought not to be. This is not to say that the Appellant or judicial officials are precluded from prosecution for offences committed. No! Judges do not enjoy immunity under our law. The point being made, is that the Respondent must first report any infractions to the NJC to carry out its constitutional and disciplinary control over the Appellant, to establish a case before criminal proceedings. These law enforcement agencies are not above the law, and therefore, must also comply with specific provisions of the Constitution. The aim is not to shield any judicial officer, but to ensure that there is a ground to proceed against such person, before their prosecution. This is also to ensure that, there is no abuse by these agencies.
Role of Judges
Having had both the advantage and privilege of reading the 35 page leading judgement of Obaseki-Adejumo, JCA, as well as the contributions of Lawal Garba and Nimpar, JJCA, I found it difficult to locate where the Court of Appeal in NGANJIWA v
FRN went wrong. As a matter of fact, that is a decision that ought to be celebrated, because it is not only historical, but it equally demonstrates courage, creativity and forward looking philosophy about the law, if the judiciary will still remain the last hope of the common man. In his lecture titled Legal and Judicial Activism in an Emergent Democracy: The Last Hope for the Common Man
delivered at the first Hon. Justice Chike Idigbe Memorial Lecture, delivered at the Oduduwa Hall, Obafemi Awolowo University, Ile-Ife on 8th January, 2004, on page 15, Justice Chukwudifu
Akunne Oputa, observed that our judges should be motivated by a dynamic, progressive and forward looking philosophy of law. There has to be an enlightened approach, to the social and developmental engineering of law. What our judiciary urgently needs is a new humanism and a well founded and growing concern for the civil rights and liberties of our people. Law should never be an end in itself, but merely a means to an end – a means and instrument for safe guarding our people from arbitrariness, and from oppressive and repressive actions by government and its functionaries or by powerful conglomerates. Our judges should mould and interprete our laws to produce justice. They should realise that the majestic generalities of our Constitution and the laws, have content and a significance which vary from age to age. By the decision of the Court of Appeal, Lagos Division in
Nganjiwa’s case, it is made clearer that government and its agencies, in whatever hierarchy, must respect the principle of due process, the rule of law and the doctrine of separation of powers. In England, the Court of Appeal remains the focal point of English jurisprudence, as well as the mainspring of innovation and creativity. The Court of Appeal here in Nigeria, in the Nganjiwa case, has performed their appellate role in the development of the law, and that qualifies them to be jurists. It may be stated with respect, that being a judge, even an excellent judge, does not make a jurist. Excellence as a judge requires more, and the virtue required has traditionally been called wisdom. What seems to be involved, is the capacity to present a decision in a manner which makes it acceptable and legitimate to all concerned.
The decision of the Court of Appeal in Nganjiwa’s case, is both acceptable and legitimate in the development and evolution of our law. Law is a living organism and its vitality dependent upon renewal. The occasion cried out in Nganjiwa’s case for the renewal of the proper role of a judge, particularly that of an appellate judge. In his own judicial philosophy, Lord Denning had this to say on page 174 of his book, The Family Story (1981) on the proper role of a judge:
“My root belief is that the proper role of the judge, is to do justice between the parties before him. If there is any rule of law which impairs the doing of justice, then it is the province of the judge to do all that he legitimately can to avoid that rule – or even to change it – so as to do justice in the instant case before him. He need not wait for legislation to intervene, because that can never be of any help in the instant case. I would emphasise, however, the word ‘legitimately’: the judge is himself subject to the law and must abide by it”.
Conclusion
The Challenge of Justice (not the book in honour of B.M. Wifa, SAN made public on 01/02/2018 at the NBA House, Port Harcourt), is having an erudite, honest and independent judiciary in our democracy, a judiciary that is the hope of the hopeless, the help of the helpless, and a welcome hospice for the legally injured. The judiciary of this nation, must insist that all actions of government officials must be justified in law, and no government agency, no matter how highly placed, is entitled to disregard the rule of law and the Constitution. The Nigerian Constitution, which is the fountain of all our laws, is founded on the rule of law. The rule of law abhors the rule of men. A calm and intimate reading of Akinola Aguda’s books on The
Crisis of Justice (1986) and The Judiciary in the Government of Nigeria (1983), as well as The Judicial Process and the Third Republic (1992), will reveal the danger ahead, very close ahead of the sword of damocles made to hang over the Judiciary by the other arms of government. We must build strong institutions and not strong men, if our democracy must survive the assault on the Rule of law. May I draw inspiration from the Lecture titled: “Assault on
the Rule of Law: A Veritable Threat to Democracy” being the text of the First Annual Emeritus Professor David A. Ijalaye Lecture, delivered by Chief Wole Olanipekun, SAN on Monday, 27th day of February, 2006 at the Obafemi Awolowo University, Ile-Ife wherein he stated on pages 28-29 as follows:
“The Constitution has also delineated responsibilities between all functionaries who are donees of its powers... each of these donees is also expected to respect the Constitution and not to desecrate its sacredness, because by doing so, they would be assaulting the Rule of Law and threatening our democracy”.
We submit with respect, that no one would execute the judicial office upon the peril of being arraigned in Court by action or indictment, for everything done by a judicial officer in the course of his judicial functions. If such happens, no man but a beggar or a fool would be a Judge. The judicial pronouncements from the Apex Court, support the view that Nigeria is still governed by the rule of law and not the whims and arbitrariness of men, as shown recently by the House of Assembly Members in Abia State over the removal of the Chief Judge of that State. We believe strongly that, the Supreme Court will do what is proper in the Nganjiwa case when called upon to do so. Daketima Gabriel Kio, Legal Practitioner, Founding Partner, Lord Denning Chambers, Port Harcourt, Rivers State