A Federal High Court in Abuja has freed Justice Sylvester Ngwuta of the Supreme Court from his trial on corruption charges.
Justice John Tsoho, in a ruling, relied on the Court of Appeal decision in the case of Justice Hyeladzira Nganjiwa of the Federal High Court, and held that the prosecution in the Justice Ngwuta case failed to comply with the condition precedent before bringing charges against a judicial officer.
Justice Tsoho said it was difficult to distinguish which of the offences alleged against the defendant fall among those on which the Court of Appeal said a judicial officer could be tried without being first subjected to the scrutiny of the National Judicial Council (NJC).
The ruling was on an application by Justice Ngwuta, who relied on the Nganjiwa judgment to ask the Federal High Court to discontinue his trial.
He noted that the NJC was cautious when it used the word “may” in deciding that some offences could be prosecuted without first subjecting such judicial officer to NJC’s disciplinary process, because such distinction was always difficult to make.
Justice Tsoho rejected the argument by the prosecution led by Mrs. Femi Fatunde that the provision of the laws relied on by Justice Ngwuta in his application “be interested as it is and not as it ought to be.”
The judge noted that “such interpretation of the law cannot be meaningfully done without cognition of the necessary inference or inferences and implication. And if that must be done, the inevitable position will be that the NJC must first consider cases involving judicial officers across all offences before the involvement of law enforcement agencies.
“This position has to be weighed against the fact that the submission in paragraphs 4.6.1 to 4.6.4 of the respondents written address are largely inconsistent and self-defeating.,” the judge said.
The lead prosecution lawyer, Mrs. Fatunde had, at the hearing of Justice Ngwuta’s application, admitted that 9 of the charge’s 13 counts fell under the offences covered by the Court of Appeal in the Nganjuwa case.
Justice Tsoho added that: “It is very significant to draw closer attention to the pronouncement of the Court of Appeal at page 19 of the judgment in Nganjiwa case which Mrs. Fatunde laid heavy emphasis on.
“The relevant portion of that judgment, contained in paragraph 2 at page 19 thereof reads as follows: ‘it must be expressly stated that if a judicial officer commits theft, fraud, murder or manslaughter, arson or the likes, which are crimes committed outside the scope of the performance of his official functions, he may be arrested, interrogated and prosecuted accordingly by the state directly without recourse to the NJC.’
“This court holds the respective view that the use of the phrase: ‘He may be arrested,’ is very instructive. This is because the word: may connotes permissiveness, as opposed to being compulsory or mandatory. It shows that the Court of Appeal was being courteous in its use of language when it did not use any of the words: ‘must or shall,’ in that regard.
“It has to be realised that there could be some challenge in ascertaining or determining whether certain offences are committed within or outside the scope of the performance of the official functions of a judicial officer and whether such offence ranks in the category as theft, arson, murder and the likes.”
Justice Tsoho, after reviewing the four counts: 3, 10, 11and 13 of the charge, in respect of which the prosecution argued that the court could continue to prosecute the defendant, held that there was no clear distinction as to whether Justice Ngwuta committed the offences outside his official responsibilities.
Counts 3, 10, 11 and 13 relate to the allegations that Justice Ngwuta obstructed investigation, made false statement to acquire international passports, among others.
Justice Tsoho said, based on the Court of Appeal’s decision in the Nganjiwa case, he was of the view that, “for the purpose of averting such uncertainty, that it is preferable that the NJC be allowed to first scrutinise allegations against judicial officers in all facets of crimes before the involvement of law enforcement agency or agencies.
“Having regard, especially to the existing lacuna in the Constitution, this position stated by this court should stand until such that the gap is expressly eliminated by constitutional amendment. But until that happens, any direct arrest and or prosecution of judicial official, as in the present case, should be declared a nullity.”
The judge held that in view of the decision in the Ngwnajiwa case, the prosecution in the Ngwuta case failed to meet the condition precedent to bringing a valid charge against a judicial officer before a regular court.
He consequently set aside the proceedings so far conducted in the case, struck out the charge and discharged Justice Ngwuta.
The prosecution had called about for witnesses and was close to closing its case when Justice Ngwuta’s legal team led by Kanu Agabi (SAN) brought the application on which yesterday’s ruling was given.
