Examining The Legality of Criminal Prosecution of a Serving Judicial Officer Without Prior Invocation of The National Judicial Council’s Disciplinary Jurisdiction

CASE TITLE: OPENE v. NJC & ORS (2023) LPELR-60656(CA)

JUDGMENT DATE: 14TH JULY, 2023

JUSTICES: ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, JCA
UGOCHUKWU ANTHONY OGAKWU, JCA
JAMILU YAMMAMA TUKUR, JCA

DIVISION: ABUJA

PRACTICE AREA: PUBLIC OFFICER

FACTS:
This appeal is against the decision of the Federal High Court, Abuja Division.

The Appellant was a Federal Judicial Officer and a Justice of the Court of Appeal. On account of a complaint about the conduct of the hearing of an election appeal at the Enugu Division of the Court of Appeal, petitions were written to the 1st Respondent against the Appellant. The 1st Respondent set up a Panel of Inquiry to investigate the said Petitions. The panel investigated the matter, and according to the Appellant a fair hearing was given. The panel thereafter submitted its investigation report to the 1st Respondent. The 1st Respondent deliberated on the report, made its findings, and then recommended to the 3rd Respondent that the Appellant be removed from office for misconduct. The 3rd Respondent accepted the said recommendation, and the 1st Respondent then conveyed the decision to the Appellant in its letter attached as Exhibit DH1 to its Counter-Affidavit at the Federal High Court.

The Appellant commenced his action at the Federal High Court by way of an application for judicial review. Upon the grant of leave, the Appellant claimed the following reliefs, inter alia:

1. A DECLARATION that the recommendation of dismissal from the judicial office of the Applicant by the Respondent is unconstitutional, null and void, and of no effect.
2. AN ORDER OF PROHIBITION restraining the Respondents from acting on the recommendation of the panel of inquiry of the 1st Respondent recommendation to the 3rd Respondent that the Applicant be removed or dismissed from judicial office.
   ALTERNATIVELY
3. A DECLARATION setting aside the removal or dismissal from office of the Applicant by the 3rd Respondent on the recommendation of the 1st Respondent.

In determining the suit, the Federal High Court dismissed same.

Dissatisfied with the decision of the Federal High Court, the appellant appealed to the Court of Appeal.

ISSUE(S) FOR DETERMINATION:
The Appellant formulated three issues for determination, as follows:

• Whether the trial Court was right to cognize the recommendation of the 1st Respondent to the 3rd Respondent for the dismissal of the Appellant from Federal Judicial Service, when the 1st Respondent did not evince any prior recommendation to it in that regard by the Federal Judicial Service Commission?

• Whether the trial Court was correct when it dismissed the Appellant’s case that complained of the 1st Respondent’s recommendation to the 3rd Respondent on the basis of the report of the 1st Respondent’s panel of inquiry which investigated criminal allegation and pronounced guilt thereon without recourse to a Court of Law?

• Whether the lower Court was right when it entered its judgment based on speculation on facts that were not before the Honourable Court?

The 1st Respondent equally distilled three issues for determination, namely:

• Whether the learned trial Judge was right in law when she dismissed the Appellant’s application for judicial review of the 1st Respondent’s recommendation to the 3rd Respondent for the removal of the Appellant from Federal Judicial Service in the absence of any recommendation from the Federal Judicial Service Commission?

• Whether the judgment of the learned trial Judge was based on speculation and not on the basis that the Appellant failed to place before the lower Court material facts to prove his case against the Respondents?

• Whether the learned trial Judge was right in law when in dismissing the case of the Appellant she refused to attach any probative value to the report of the 1st Respondent’s Panel of Inquiry (Exhibit A) alleged by the Appellant to be the basis of the 1st Respondent’s recommendation to the 3rd Respondent?

The 2nd and 3rd Respondents crafted two issues for determination, thus:

• Whether the learned trial Judge was right when he affirmed the Constitutional functions of the 1st Respondent to recommend the dismissal of the Appellant to the 3rd Respondent?

• Whether the trial Court was right when it held that the Appellant did not prove his case on its own strength?

COUNSEL SUBMISSIONS:

The Appellant’s submission on issue number two is that the constitutional right to fair hearing in Section 36 (4) of the 1999 Constitution, as amended, guarantees that an accused person must be tried in a Court of law for a criminal offence. The allegation of bribery and corruption against the Appellant were said to be offences contained in Sections 12 and 21 of the Corrupt Practices and Other Related Offences Act and Section 98 (1) (b) (ii) of the Criminal Code, which offences ought to be tried in a Court of Law and not by a panel of inquiry. It was stated that the 1st Respondent acted based on the Report of a Panel of Inquiry and that the lower Court ought to have attached probative value to the said Report, instead of holding that the Appellant failed to place material evidence in proof of his case before the Court.

It was opined that the Appellant placed the Report of the 1st Respondent’s (NJC) Panel of Inquiry before the lower Court instead of the 1st Respondent’s (NJC) Report containing the 1st Respondent’s (NJC) deliberation on the Report of the Panel and its recommendation to the 3rd Respondent (President, FRN).

It was posited that in the absence of the said crucial and fundamental document, that the Appellant did not place materials sufficient to prove his case and the declaratory reliefs sought which are to succeed on the strength of the Appellant’s case and not the weakness of the defence.

The 1st Respondent (NJC) states that the lower Court did not base its decision on speculation or conjecture as the basis for dismissing the Appellant’s action was the fact that the Appellant did not place sufficient materials before the Court and therefore did not prove his case as required by law. It was opined that a party dissatisfied with the decision of a Court must confine himself to what was decided and not import into the decision what the Court did not decide, and what did not form the basis of the decision of the Court.

The 1st Respondent’s (NJC) argument on its issue number three is that the Appellant was never tried by the Panel of Inquiry for criminal allegations of bribery and corruption, but rather the investigation was to ascertain the veracity of the allegations against the Appellant and that the Panel never stated that the Appellant was tried and found guilty of the allegations levelled against him. It was stated that the recommendation of the Panel of Inquiry was that the Appellant should be penalised in accordance with the provisions of Section 292 (b) of the 1999 Constitution, as amended. It was further stated that no authority can interfere with or direct the manner of exercise of powers of the 1st Respondent (NJC) in the matter of determination of allegations of misconduct against judicial officers and that even on criminal allegations, the 1st Respondent (NJC) did not have to wait for a Court to conclude a criminal trial before exercising its disciplinary powers.

It was maintained that the lower Court was correct in its decision that the relevant Report for consideration was the Report of the 1st Respondent (NJC), which was not placed before it, and not the Report of the Panel of Inquiry that was set up by the 1st Respondent (NJC). It was asserted that it was only from the Report of the 1st Respondent (NJC) that it would have been ascertained if the recommendation for the removal of the Appellant from office was based on the Appellant having been found guilty of a criminal act and that since the Report was never before the lower Court, it could nether set it aside, nullify it or quash it. It was stated that the 1st Respondent (NJC) having already deliberated on the Report of the Panel of Inquiry and made its recommendations to the 3rd Respondent (President, FRN), that the said Report of the Panel of Inquiry was no longer of any probative value and the lower Court rightly refused to attach any probative value to it.

In argument of their issue number two, the 2nd (AGF) and 3rd Respondent (President, FRN) contend that the Appellant’s submission that the lower Court engaged in speculation is a misrepresentation of the facts. It was opined that from the facts there were two different Reports, but that the Appellant only presented and relied solely on the Report of the Panel of Inquiry, instead of the recommendation of the 1st Respondent to the 3rd Respondent (President, FRN). It was maintained that the lower Court was correct by not according any probative value to the Appellant’s evidence. It was stated that the Constitution does not recognise the Panels set up by the 1st Respondent, but the recommendation of the 1st Respondent (NJC) itself is what the Constitution recognises.

DECISION/HELD:
The Court of Appeal dismissed the appeal.

RATIO:

PUBLIC OFFICER – JUDICIAL OFFICER: Whether a serving judicial officer can be subjected to a criminal prosecution without complying with the condition precedent of subjecting such judicial officer to the disciplinary jurisdiction of the National Judicial Council

“The Appellant’s contention on whether the Panel of Inquiry could investigate criminal allegations against him and based on that a recommendation made for his removal from office without recourse to a Court of law has now been settled beyond peradventure. In the first place, the Appellant was not removed from office because he was found guilty of any criminal offence. Exhibit DH1 is explicit that the 3rd Respondent accepted that the Appellant be removed from office in exercise of his powers under Section 292 of the 1999 Constitution, as amended. By Section 292 (1) (b) of the 1999 Constitution, as amended, a judicial officer shall be removed from office for, inter alia, misconduct.

So, the Appellant by Exhibit DH1 was removed from office for misconduct and not for commission of any criminal offence. In FRN vs. NGANJIWA (supra), the apex Court held that there is nothing which excludes the exercise of the disciplinary power of the 1st Respondent in misconduct of a criminal nature by a judicial officer. Indeed, the legal position as settled by the apex Court in FRN vs. NGANJIWA (2022) LPELR (58066) 1 at 20-39 is that a serving judicial officer cannot be subjected to a criminal prosecution without complying with the condition precedent of subjecting such judicial officer to the disciplinary jurisdiction of the 1st Respondent. As stated by Nweze, JSC in FRN vs. NGANJIWA (2022) LPELR (58066) 1 at 46-50: “… the institution of criminal proceedings against a serving judicial officer without a first recourse to the NJC constitutes an unconstitutional usurpation of the powers of the said NJC. It is a grievous assault and an affront on the separation of powers… This Court, the apex Court in Nigeria, cannot sit, idly, and watch the enthronement of such a constitutional albatross. To endorse (the) … submission would be to allow a situation that would ‘create a serious in-road on the dignity, respect, credibility and integrity of the high office which a superior Judge occupies resulting in the erosion of the dignity and respect for the high office of the Judges in the estimation of the public’…. May that never be the fate of the Nigerian Judge!”

In the circumstances, it is ineluctable that the Appellant’s issue number two must be resolved against him.

The Panel of Inquiry did not investigate and pronounce Appellant guilty of any criminal allegation. The Appellant was removed from office for misconduct and on the settled state of the law, it is only after the disciplinary powers of the 1st Respondent has been exercised that a serving judicial officer can be subjected to criminal prosecution.” Per OGAKWU, J.C.A.

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