Knocking On The Door Of The Supreme Court Of Nigeria Soon 

-Nganjiwa Vs FGN Court Of Appeal Judgement

The most recent Nigeria Court of Appeal decision in Nganjiwa v FRN, delivered on 11th December 2017 has become a lightning rod for public discuss and controversy. While some Nigerians agree with the judgement, I believe the Court of Appeal in applying the principle of separation of powers within our constitutional framework ascribed to the three spheres of government ignored the basic principle that a statute should be read as a harmonious whole, with its separate parts being interpreted within their broader statutory context.

 Prior to this Court of Appeal decision which held that the Economic and Financial Crimes Commission [EFCC] does not have the powers to investigate or prosecute serving judicial officers except where they have first been dismissed by the National Judicial Council, perhaps hinging its deduction on S158 of the Nigerian Constitution and paragraphs 21[b] and [d] of the Third Schedule to the Constitution, EFCC could proceed against judges for criminal offences committed while on duty.

While I agree with the decision that complaints demanding ‘disciplinary’ action against a Court Judge in the performance of his legal duty should firstly  be referred to the National Judicial Council  to establish whether it would be appropriate to remove them  from office or apply other appropriate sanctions in circumstances where they have been found to have committed a criminal offence, I am less oriented to the Court of Appeal’s  views that  Judges can only be prosecuted for ‘selected criminal conducts‘ after the National Judicial Council has first administratively decided on their cases and not otherwise.

Simply put, I disagree with the Court’s interpretation as Judges in Nigeria are not above the law just like any other citizen. To say otherwise will meanmisinterpreting the constitutional provisions cited above or erroneously ascribing to Nigeria Judges constitutional immunity to criminal prosecution, even as existing provisions are limited to dismissal and/or disciplinary actions against serving judges but not extended to criminal prosecution if properly interpreted.

It is coherent to say that using the words ‘disciplinary control ‘by the framers of the constitution does not suggest a generative interpretation of those provisions to include ‘criminal prosecution’ for defined criminal conduct and therefore we must avoid the temptation of giving the word ‘disciplinary control’   a wider interpretation not envisaged by the Constitution. For if the law maker had intended such protection for judges, he would have explicitly said so in the Constitution or other Act of parliament [ that no Judge should be subjected to criminal prosecution, up until they have gone through disciplinary action of the National Judicial Council as exist in some other jurisdictions.]

The court of appeal view in fact reveals a deeper failure when it enumerated other criminal activities that can warrant criminal prosecution of Judges without resort to Administrative discipline by the National Judicial Council to include theft, fraud, murder or manslaughter, arson, and the likes, while excluding bribery and corruption offences which should be a mere official misconduct…………na true…………. crime under our statutory books na crime biko.

In conclusion, as far as the text and structure of the Constitution are concerned,

there is no reason to conclude that the EFCC and indeed any appropriate law enforcement body in Nigeria cannot initiate criminal proceedings against Judges based on any material facts which could show that a Judge committed a criminal offence outside the scope of his/her work even before the National Judicial Council takes appropriate disciplinary action against him/her.

Supreme Court of Nigeria, if they don’t ………. I shall be knocking on your door ASAP.

Eric O. Ifere

Solicitor [England]

Solicitor & Advocate [Nigeria]

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