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  • Onnoghen: Sagay knocks senior lawyers for ‘misleading public’

    Eminent professor of law Itse Sagay (SAN) has accused some senior lawyers of misleading the public by claiming that suspended Chief Justice Walter Onnoghen is not a public officer and subject to the code of conduct.

    He condemned the “fraudulent misconduct of some crooked lawyers”, who he said, have been lying “glibly” on television that judicial officers are not public officers.

    Sagay referred to Part 2, paragraph 5, Fifth Schedule of the 1999 Constitution, which defines a public officer thus: “Public Officers for the Purposes of the Code of Conduct:…(5) Chief Justice of Nigeria, Justice of the Supreme Court, Presidents and Justices of the Court of Appeal, all other Judicial Officers and all Staff of Courts of Law.”

    Sagay said: “You can now see that these lawyers, senior advocates and all have been indulging in monumental lies on television, misleading the public.

    “Another major lie is that a public officer, who commits a breach of the Code of Conduct by failing to declare some of his assets, is free from liability, provided he makes a written admission of such breach or non-compliance. For this, they rely on the proviso to Section 3 of the Code of Conduct Bureau and Tribunal Act 1989.

    “However, if one refers to the provisions of the Constitution, there is no such exemption from punishment. I refer specifically to the 5th Schedule Part 1, Paragraph 18 of the Constitution. That paragraph provides for the punishment for a breach of the Code of Conduct.

    “These punishments are: (a) vacation from office, (b) disqualification from holding office for 10 years, (c) seizure and forfeiture to the state of any property acquired in abuse or corruption of office.

    “There is absolutely no proviso whatsoever to the effect that an admission in writing of the offence will relieve the public officer of liability from punishment.

    “On the contrary, paragraph 18(3) goes further to state that the three punishments listed above are without prejudice to the penalty that may be imposed by any law where the conduct is also a criminal offence.”

    Sagay said there was, therefore, a clear conflict between the provision of the Code of Conduct Bureau and Tribunal Act and the 1999 Constitution.

    According to him, where there is a clash between the Constitution and any other law, Section 1(3) of the Constitution provides that the “Constitution shall prevail, and that other law shall to the extent of inconsistency be void”.

    Besides, Sagay said where there is conflict between two pieces of legislation covering the same matter, the latter in time prevails.

    “The Code of Conduct Bureau and Tribunal Act was enacted in 1989. On the other hand, the present Constitution took effect from 1999. So either way, the provisions of the Constitution prevail over the Code of Conduct Bureau and Tribunal Act.

    “It can, therefore, be seen that there is no exemption from punishment whatsoever for a public officer who admits his guilt with regard to a breach of the Code of Conduct.

    “One other opportunistic matter that the defenders of the Chief Justice are now raising, is the query that if the EFCC could petition the National Judicial Council (NJC) regarding  the $30, 000 allegedly deposited  in the Chief Justice’s Bank account, why was the earlier matter of the failure to fully disclose his assets not sent to the NJC?

    “The answer is simple for anyone thinking in good faith. The non-declaration of assets is Constitutional and mandatorily a matter for the Code of Conduct Tribunal exclusively.

    “On the other hand, payment by a lawyer into the account of a judge including the Chief Justice constitutes an offence committed by the judge as a judicial officer. Therefore, that matter according to the wrongly decided Nganjiwa’s case, goes to the NJC.

    “Failure to declare assets is not an offence committed in the process of Judge’s activities as a judicial officer.

    “Therefore, any complaint arising from such matter does not go to the NJC but to the Code of Conduct Tribunal (in cases of non-declaration of assets) or the ordinary Courts in other cases,” Sagay said.

     

  • Senior lawyers disagree over CCT’s order

    THE bench warrant issued yesterday by the Code of Conduct Tribunal (CCT) Chairman Danladi Umar for the arrest of suspended Chief Justice of Nigeria (CJN) Walter Onnoghen has become the subject of arguments by  senior lawyers.

    They are divided over the propriety of the CCT chair ordering the law officer’s arrest at a time his matter was pending before the National Judicial Council (NJC) and at the Court of Appeal.

    Eminent professor of law Itse Sagay (SAN) said Justice Onnoghen was not above the law.

    “So, the order to arrest him for failing to appear before the Conduct Tribunal (CCT) was in order,” Sagay said.

    He told our correspondent that the suspended CJN should have appeared before the CCT to demonstrate his regard for the rule of law.

    Said Sagay: “I don’t want to speak much on it, because whatever I say they will pour petrol and set fire on it. But from the beginning when this problem started, I said that no one is above the law.

    “Ask yourself, if you or I were the ones accused, would we not appear before the CCT? How is Onnoghen different from the rest of us legally and constitutionally? No way,” Sagay said.

    The Presidential Advisory Committee Against Corruption (PACAC) chairman disagreed with former Nigerian Bar Association (NBA) President Olisa Agbakoba (SAN), who said the CCT’s order was subversive of the rule of law since a petition against Justice Onnoghen was pending before the National Judicial Council (NJC).

    Sagay said: “I don’t want to criticise Agbakoba, but they should think of the future of this country. They should not create a privileged class that is not subject to law whilst others are subject to it. At the end of the day, it will bring the law into contempt.

    “I think Onnoghen should have appeared before the CCT to show that as the former head of the Judiciary, he has great respect for the rule of law.”

    Dr Agbakoba faulted the arrest warrant because it was subversive of rule of law and due process.

    He said the CCT should have waited for the NJC to determine a petition by the Economic and Financial Crimes Commission (EFCC) against Chief Justice Onnoghen.

    According to Agbakoba, the CCT chairman went “too far” by issuing the order.

    He said: “I am shocked that the CCT will issue a bench warrant for the arrest of Hon. Justice Walter Onnogen, knowing full well that its jurisdiction to try the case has been challenged and the application on challenge is on the CCT docket, and no hearing has occurred.

    “The CCT is aware that there is now before the NJC a petition against Justice Walter Onnogen on exactly the same charges at the CCT.

    “The CCT ought to await the outcome of the pending matters in the NJC, Appeal Court and Federal High Court.

    “The conduct of the CCT subverts the rule of law and due process.”

  • Nganjiwa’s acquittal: Senior lawyers hail verdict

    Nganjiwa’s acquittal: Senior lawyers hail verdict

    •Judgment ‘reflects separation of powers’

    The debate sparked by the Court of Appeal in the judgment on the appeal filed by Justice Hyeladzira Ngajiwa is still raging. Activists and senior lawyers state their positions on the powers of the Economic and Financial Crimes Commission (EFCC). JOSEPH JIBUEZE and ADEBISI ONANUGA highlight the key reasons given by the appellate court in striking out the charge.

    The dust raised by Monday’s judgment in an appeal filed by Justice Hyeladzira Nganjiwa of the Federal High Court is yet to settle.

    In a lead judgment delivered by Justice Abimbola Obaseki-Adejumo, the court struck out a charge filed by the Economic and Financial Crimes Commission (EFCC) against the judge.

    The graft-fighting agency, in a 14-count charge, accused the judge of corrupt enrichment and giving false information contrary to Section 82 (a) of the Criminal Law of Lagos State.

    Justice Nganjiwa had appealed against a ruling of the Lagos State High Court.

    He urged the appellate court to determine whether in view of the constitutionally guaranteed doctrine of independence of the judiciary, the lower court is right to conclude that the executive arm of government, acting through the EFCC, can directly prosecute a sitting judge without first following due process as provided in the Constitution, by referring the matter by way of petition to the National Judicial Council (NJC).

    Justice Nganjiwa’s lawyers, led by Robert Clarke (SAN), contended that although judicial officers were subject to prosecution, they must first be subjected to NJC’s disciplinary jurisdiction before such an officer can be arraigned for criminal prosecution.

    Besides, the lawyers said the Constitution guarantees the separation of powers, therefore, NJC’s powers to discipline judges cannot be interfered with by other arms.

    But, the EFCC argued that the doctrine of judicial immunity does not protect serving judges against criminal proceedings being instituted against them.

    The commission claimed Justice Nganjiwa engaged in extra-judicial acts which contravene the law, therefore, he was charged.

    The prosecutor said Section 158 of the Constitution does not grant any judge immunity from criminal prosecution and did not create any condition that must be met before a judge can be prosecuted.

     

    Lawyers react

     

    A human rights group, the Access to Justice (A2Justice) faulted the verdict.

    In a statement by its Executive Director Joseph Otteh, the group disagreed with the judgment.

    It said: “The ruling has grave implications for the ability of law enforcement agencies to function freely without hindrance and seriously infringes on the doctrine of separation of powers and the rule of law, that recognises that each branch of government is independent of the other and should function independently, without one branch seeking the permission of the other to execute the duties of its department.

    “The decision essentially says that law enforcement agencies must not execute their responsibilities when it involves judicial officers until the NJC has, in essence, given them permission to do so.

    “The decision will have negative derivative consequences as well. It would mean that, at the level of the states, no magistate’s, Khadi, Area or Customary Court judge can be investigated by law enforcement agencies until the State Judicial Service Commission (SJSC) has first ‘stripped’ such a ‘judicial officer’ of his or her ‘judicial standing’.

    “The same applies to court employees, who are under the disciplinary control of State Judicial Service Commissions.

    “It would also mean that no member of the police force could be investigated or prosecuted for any crimes committed in the course of discharging their functions until the Police Service Commission has first stripped them of their ‘standing’ as police officers.

    “The same too applies for public officials whose agencies retain a disciplinary body with powers of oversight on their conduct.

    “The constitutional basis or justification for this decision is, with respect to the Court of Appeal, contestable.

    “Even the NJC itself, as we understand it, has not asserted an exclusive or preeminent right to discipline erring judicial officers first before anti- corruption agencies can do their work.

    “It is important to remember that not all sanctions of the NJC result in the stripping of the ‘judicial standing’ of a judge and judges can be ‘warned’ only, with nothing further recommended against them.

    “Additionally, the NJC does not ‘remove’ a judge from his or her office. It can recommend the removal of judges, but it is ultimately the head of an executive branch (the President or State Governor) that does the removal of judicial officers.

    “Until that is done, the NJC has adopted the practice of ‘suspending’ that judicial officer. So, what the judgment may mean is that unless a judge is effectively removed from office by the President or Governor, law enforcement agents cannot do their work. And where a Judge is not so removed, their work cannot also be done.

    “The judgment of the Court of Appeal will not advance efforts to reform the judiciary and fight the vices that have persistently undermined it.”

    But, a Senior Advocate of Nigeria (SAN) Abiodun Owonikoko said he was amazed at some critics of the decision.

    He said: “They create the false impression that even if the faulted gestapo approach were to hold, there was ever any way that conviction or any form of sanction would have been possible outside of court trial.

    “The EFCC and DSS only have powers to investigate; their power of prosecution is merely delegated. That prosecutorial power can be taken over at any stage by the Attorney-General.

    “So, what really is the issue that subjecting judicial officers to pre-prosecution disciplinary process of NJC will promote corruption or indiscipline?

    “It’s a very sound reasoning that will redraw and restore the limits of executive incursion and overreach on judicial self-regulation and discipline of its personnel.

    “The judgment accords with the proper, purposive construction of the separation of powers scheme under the constitution.

    “The fact that bodies established by ordinary Acts of parliament like EFCC and DSS were surreptitiously undermining and sidestepping the NJC is bizarre.

    “They have now arrogated the power to directly summon, interrogate and arraign serving judicial officers on matters that border on the discharge of their judicial function – sometimes matters where those agencies are in fact litigants.

    “We hope the judiciary will, however, celebrate the judgment with an even higher sense of responsibility. They should not see it as blank cheque for immunity against their duty.

    “They should uphold the integrity of their calling and continue to earn the respect and trust of the public and the other arms of government. Good enough the incumbent CJN has hit the ground running and is swiftly guiding the NJC to live up to its mandate of delivering a trustworthy disciplined and respected judiciary.

    “Some judges were recently retired compulsorily by NJC to public acclaim even when the executive failed to secure conviction against them in court. It shows the NJC system works and should be insulated from undue executive second guessing and interference.”

    Another SAN Babatunde Fashanu lauded the ruling, describing it as well thought out and well-reasoned.

    Fashanu, leaning on Owonikoko’s submission urged the EFCC to approach the apex court is dissatisfied with the judgment.

    Activist-lawyer Ebun-Olu Adegboruwa said he welcomed the “landmark judgment”.

    According to him, the decision “is sound in law and logic” adding that it would help to assert the “much desired independence and autonomy of the judiciary.

    “In recent times, judicial officers have been under mindless attack by the executive, arising from the expressed disaffection for the third arm of the realm, by the President, who has stated severally that the judiciary is his headache.

    “The hallowed democratic principle of separation of powers requires that the three arms of govt should be independent of each other but work together for the effective administration of the realm.

     

     

     

     

     

     

     

     

    “In the present dispensation, the executive has totally hijacked and captured the Legislative and Judicial arms, both of which have not been allowed to function effectively and independently, as anticipated by the Constitution.

    “It is, therefore, a welcome relief indeed that judicial officers will no longer be under the fear and tremor of intimidation of the executive, in the discharge of their official duties.

    “A judge should be free to deliver his judgment according to his conscience and according to law, without fear or favour, without affection or ill will.”

    He added that by virtue of Paragraph 21(b) and (d) of the Third Schedule to the 1999 Constitution, the NJC is to exercise the power of disciplinary control over all judicial officers.

    “Thus, where there is an allegation of corruption against a serving judicial officer, such should be tabled before the NJC first, as it is a matter arising from the discharge of official duties by the judge. “Otherwise, judges will become liable to do the bidding of the executive, once it is possible to just pick up a judge and lock him up, whenever he delivers a judgment that is not favourable to the executive.

    “However, this judicial immunity should not be a blanket one; it should only be limited to matters involving the discharge of judicial duties.

    “Consequently, a judge involved in the common crimes of murder, rape, etc, all committed outside the performance of his judicial duties, should still be held accountable in the normal course of criminal justice administration.

    “So, I salute the rare courage of the justices of the court of appeal, who have taken this landmark step to free our nation from dictators and fascists in political garb and I commend the boldness of My Lords, for rescuing the judiciary from the choking harassment of the executive.

    “Since time does not run against the prosecution of offenses in law, the government can always commence prosecution against any judicial officer found wanting after the NJC has concluded its own statutory roles in the discipline of such judicial officer.

    “I also commend the EFCC for its rare display of courage in confronting the menace of corruption in our land. The proper step in this case is to appeal against the judgment, in line with the best traditions of respect for the rule of law and due process, and cease to attack judges in the media for the discharge of their official duties. In it all, Nigeria will be the better for it,” Adegboruwa said.

    Verdict tragic, self-serving, says Sagay 

    Presidential Advisory Committee Against Corruption (PACAC) Chairman Prof Itse Sagay (SAN) yesterday described the Court of Appeal judgment striking out the charge against Justice Hyeladzira Nganjiwa as a “tragedy”.

    He said judges do not have immunity from prosecution for corruption.

    Sagay described the judgment as “a negative step”, adding that it was self-serving and not back by the Constitution or any law.

    He disagreed with the appellate court’s position that NJC must first discipline a judge before anti-graft agencies can step in.

    The law professor said: “That is purely self interest, self protection. There’s nowhere in the Constitution where that is stated. Yes, there is provision for disciplinary measures by NJC over judges, but there’s nowhere in the Constitution that judges are given immunity from interrogation, arrest and prosecution. Only the President, governors, the Vice President and deputy governors are given immunity.

    “This is a creative judgment. In other words, the judges are making law, although they have no power to do that – taking over the power of the legislature in order to protect themselves from the consequences of their own misconduct. That’s what has happened. Judges are now a special breed of Nigerians.

    “If you have a civil servant who can be interdicted in the civil service, is there any law that says he cannot be prosecuted? There’s no difference between a judge and a civil servant in this regard. They have their own internal cleansing system.

    “The NJC and the civil service have in-house provisions for dealing with their members. That does not affect the overall authority of the state. It’s contained both in the Constitution and in our criminal law. So, what they have done is not in the law. It is a new law made by themselves. It is wrong because they have taken over the duties of the legislature.

    “It’s just to protect themselves from the consequences of misconduct and it’s a tragedy. And it’s an aspect of the underdevelopment of Nigeria and its rule of law process.” Sagay said.

    Sagay said the examples cited by the Court of Appeal about the Presidency setting up a panel to probe members of the executive before the EFCC stepped in, was inapplicable.

    The PACAC chief explained: “Those do not apply. The fact that the Presidency decided to set up a panel does not mean that EFCC could not have gone after them, at all. It doesn’t mean that. All the examples they have given are wrong. There’s no example that can suspend the application of the Constitution and our criminal laws. None.

    “There are many occasions in which NJC was reluctant to discipline its men who have committed crimes, who have been corrupt or engaged in misconduct. For instance, in the case of Justice (Adeniyi) Ademola, before he was arrested, he was cleared by the NJC. There are tens of such cases, which NJC turned down petitions in which there were concrete reasons to believe that they (the judges) did something wrong.

    “Are they saying the state should fold its arms and be looking on, because they’re reluctant to do the right thing?

    “I think the judgment is completely against the rule of law and it’s against our whole administration of criminal justice system, because it promotes a group of people above the law. And it’s a negative step.”

  • Senior lawyers: Senate’s directive on Magu illegal

    Senior lawyers: Senate’s directive on Magu illegal

    •Lawmakers accused of plotting to ground governance

    AFTER weeks of ‘ceasefire’, the Senate yesterday renewed hostility with the Presidency over the retention of Ibrahim Magu as the Acting Chairman of the Economic and Financial Commission (EFCC).

    The lawmakers announced the suspension of all confirmation of appointments until the Executive complied with National Assembly resolutions.

    The upper legislative chamber called on Acting President Yemi Osinbajo to remove Magu from office, saying the time has come for the Presidency to obey its resolutions.

    But senior lawyers, including the Presidential Advisory Committee Against Corruption (PACAC) Chairman, Prof Itse Sagay and some Senior Advocates of Nigeria (SANs), yesterday reacted to the senator’s directive.

    Others are constitutional lawyer and renowned legal author Sebastine Hon, Seyi Sowemimo, Chief Gani Adetola-Kaseem, Chief Emeka Ngige, Ahmed Raji, all SANs.

    According to them, the Senate lacked powers to direct the Acting President to remove Magu as the EFCC acting chair. They said the demand was illegal.

    Prof Sagay said the Senate should be ready to bear the consequences of bringing government to a halt should it make good its threat to suspended all confirmation of appointments until compliance with its resolution.

    He accused the Senate of trying to usurp the President’s powers on appointment.

    Besides, the PACAC chair said the provision in the EFCC Act that the commission’s chairman’s appointment was subject to Senate confirmation was invalid for being inconsistent with the Constitution.

    The eminent professor of law said: “This is a Senate that does not realise that it is part of the legislature and not an executive body. And they want to do both the legislative and executive work together, which will totally eliminate the principle of separation of powers. That’s the sort of people they are. They’re legislators, but they’re hungry to be the executive body.

    “If they threaten to bring government to a halt, they will bear the responsibility and consequences that will arise. Let them be ready to take the consequences of their actions.

    “In fact, it may be good for this country for them to expose themselves like that and let the country know the people who constitute a problem to good governance in Nigeria.”

    Sagay said that no law empowered the Senate to direct Prof Osinbajo to remove Magu.

    His words: “How can they say he should remove somebody? That is an executive power. The Constitution empowers the President to appoint the chairman of EFCC and other such agencies directly.

    “So, if they’re uncomfortable with the fight against corruption and feel threatened by a man who is upright, committed and will not be distracted from doing his job, if they’re not comfortable with that, it’s unfortunate. But nobody is going to listen to them as far as that is concerned.

    “If they want to indulge in the misadventure and danger of bringing government to a halt, then on their head will be the consequences.”

    On the provision of Section 2 (3) of the EFCC Act that the commission’s chairman’s appointment was subject to Senate confirmation, Sagay said it was not binding.

    The section reads: “The Chairman and members of the Commission other than ex-officio members shall be appointed by the President subject to the confirmation of the Senate.”

    On why the section is invalid, Sagay said: “It is invalid because it is in conflict with the provisions of the Constitution.”

    Ngige described the Senate’s demand as “ill-advised”, adding that threatening the executive amounted to arm-twisting.

    He urged the lawmakers to approach the Supreme Court for determination of the issue.

    Ngige said: “I think the action is ill-advised. The issue in contention is the correct interpretation of Section 171 of the 1999 Constitution as it pertains to whether Senate confirmation is required for certain class of political office holders.

    “My take is that the Senate should invoke the original jurisdiction of the Supreme Court on the issue and get a final and definitive pronouncement on the matter.

    “I think what the senate resolved to do by going on strike, as it were, is undemocratic and tantamount to arm-twisting the executive.

    “In my view, the issue of judicial interpretation of Section 171 of the Constitution is highly recommended because either side can win if tested in the apex court.

    “The matter should not be personalised on the status of Magu after his failed confirmation hearing.”

    Hon also said the Senate has no constitutional powers to compel Osinbajo to remove Magu.

    He argued that if the Senate was aggrieved, it could go to court and not result to grandstanding, which would needlessly heat up an already-charged polity.

    The senior advocate said: “The Senate lacks constitutional power to compel the Acting President, Prof. Osinbajo, to withdraw his statement on the need not to seek Senate’s confirmation of appointment of the EFCC Chairman, Mr. Magu.

    “The powers of the National Assembly are, by sections 4 (1), 58 and 59 of the Constitution, limited to lawmaking. Not even sections 88 and 89 of the Constitution, which provide for oversight functions of the National Assembly, imbue the Senate with such powers – since those provisions have nothing to do with a person expressing a personal opinion on an issue.

    “If the Senate is aggrieved, it can go to court and not resort to grandstanding, which will needlessly heat up the already charged polity.”

    Sowemimo likened the National Assembly’s demand on the Presidency to blackmail. He said the best approach was for the lawmakers to seek judicial opinion.

    The suspension of all confirmation of government appointments until compliance with its resolution, he added, was unedifying for the legislators.

    Sowemimo said: “I find the position of the National Assembly very strange. I don’t think in a presidential system of government one branch of government should blackmail the other. I don’t see why there are so much problems about Magu’s appointment.

    “The government has said it doesn’t need the Senate’s approval for such an office. I think the best thing is for the matter to be referred to court for it to determine whether the Presidency is right or whether it’s the National Assembly.

    “I don’t think it will take that long for them to decide that point. When they refer it to the judiciary it will strengthen the democratic process. Deciding to not consider the approval of other appointees of the government until they remove Magu is not an edifying approach for the National Assembly to take.

    “If they feel aggrieved I think they should seek judicial determination of the position of the Presidency.”

    Adetola-Kaseem wondered how the Senate hoped to compel the Presidency to obey its resolutions in the absence of an impeachable offence.

    Adetola-Kaseem said: “I’m not sure they have any locus, for example, if you’re talking of breach of statutes, that’s an impeachable offence, I’m not sure that a breach of a resolution of the Senate can amount to an impeachable offence. To that extent I don’t see how they can compel the executive to obey their resolution.”

    Raji urged the Senate to see judicial interpretation and to explore amicable solution to the problem.

    “My advice is that they should engage in further consultation rather than trying to issue ultimatums. Both sides should collaborate more and arrive at a consensus that will move the country forward.

    “I don’t think it’s a bad idea to approach the Supreme Court for interpretation of what the law says. To say that they would ground the activities of government is not good.

    “I think they should go and seek an interpretation of what he law says, and then we can move forward”, Raji said.

  • Senior lawyers hail NJC over recall of suspended judges

    Several Senior Advocates of Nigeria (SANs) yesterday welcomed  news of the judges’ recall from suspension with Messers Sebastine Hon, Mike Ozekhome , Abdullahi Ahmed, and Ben Chukwuka  arguing  that, although it was wrong to suspend the judges in the first place, the NJC was in order to have reversed its decision since the Executive has failed to establish  allegations of corruption against the judges.

    They spoke in separate interviews with The Nation Sunday in Abuja.

    Ozekhome, Chukwuka and Ahmed were particularly unhappy that Justice Ademola was not allowed to resume work immediately he was acquitted by Justice Jude Okeke of the High Court of the Federal Capital Territory (FCT), Abuja.

    Hon said: “The decision of the National Judicial Council (NJC) to lift the suspension of the Justices and Judges accused of corruption is a most welcome development.

    “The NJC, even though is under the  Constitution, is not subject to  any body’s direction or control, decided to tacitly support the anti-corruption drive of the government, by suspending those judicial officers – even when they were not arraigned and convicted.

    “Since the Executive could not arraign them or secure conviction, the NJC just did the needful, as some of us urged them to do so.

    “No country treats its citizens the way those judicial officers were treated; and the NJC just woke up to its constitutional and moral responsibility by taking this bold step.

    “Speaking for myself, I will say kudos to the NJC. I will also conclude by urging the security agencies not to see this as an attempt by the Judiciary to splash odious mud on their face, but as the discharge of a constitutional and moral obligation by the NJC.”

    Ozekhome said that in the eye of the law, having been discharged, Justice Ademola remains on solid ground to resume his duties.

    “The fact that an appeal has been filed against his discharge and acquittal does not stand as a ground that he cannot resume his duties.

    “The reason is simple. In law, and appeal does not act as a stay of execution. I am not aware that, in the case of Justice Ademola, the federal government has been able to secure any stay of execution against him or file an application for stay.

    “If they have applied, one would say that pending the determination of the application for stay of execution the judge cannot act. But I am not aware that any was applied for or that any had been granted.

    “In the absence of that, we cannot say that Justice Ademola should be in hibernation at the whims and caprices of the state.

    “I learnt the federal government has again, gone on a forum shopping at the Code of Conduct Tribunal, with a case against this same judge. That is no longer prosecution. It is persecution. That offends the principle of double jeopardy.”

    Ahmed argued that “it was wrong in the first place to ask the judicial officers to stop sitting because they were being investigated.”

    He commended the NJC for finding the initiative to recall the suspended judges.

    Chukwuka said it was wrong for the other judges, against whom the DSS and Fed Govt failed to prefer charges, to be left perpetually in the cold.

    “The doctrine fair hearing should work to the benefit of every citizen. We commend the NJC for eventually finding its voice.

    If the Court of Appeal decides otherwise in the case of Justice Ademola, we will still call for his prosecution. But, as it stands now, and without any order staying his resumption, I think the pendulum of justice is in Justice Ademola’s favour.

    “We await the AGF and the prosecution, in Justice Ademola’s case to convince the appellate court otherwise. It is not for you to raise allegation. The law requires you to prove beyond reasonable doubt,” Chukwuka said.

    A former Nigerian Bar Association (NBA) president Chief Wole Olanipekun (SAN) described the NJC decision as right.

    He, however, warned the council not to shield any corrupt judge.

    Olanipekun said: “The NJC decision is the right thing to do in the circumstances, particularly after placing the affected judges on suspension for seven to eight months without preferring charges against them.

    “We must avoid any situation whereby any Nigerian judge or citizen is first disgraced, ridiculed and embarrassed publicly for assumed or presumed criminal offences or misdemeanour, leading to his arrest and incarceration or detention.

    “Be that as it may , the NJC must not spare for a second any judge who has been found to have corrupted himself or engaged in any untoward act,” Olanipekun said.

  • Senior lawyers differ over appointment of CJN

    Senior lawyers differ over appointment of CJN

    A SENIOR Advocate of Nigeria (SAN), Sebastine Hon, has urged President Muhammadu Buhari to act fast in forwarding the name of the next most Senior Justice of the Supreme Court to the Senate to avoid a constitutional crisis.

    Hon said it was scary that, while the incumbent CJN, Justice Mahmud Mohammed, would retire on November 10, President Buhari was yet to send the name of the next in rank, Justice Walter Onnoghen, to the Senate for confirmation as required.

    But two Senior Advocates of Nigeria (SAN) said yesterday that there will be no vacuum in the judiciary should the President fail to confirm Justice Onnoghen as the substantive CJN before Thursday.

    Chief Gani Adetola-Kaseem, SAN and Mr. Seyi Sowemimo, SAN, said the constitution allowed the president three months to appoint an acting CJN, after which he must appoint a substantive one.

    The senior lawyer said in a statement yesterday that the delay was capable of creating crisis in the country and further dent the image of the judiciary, where a CJN retires without a ready successor.

    He said since Justice Onnoghen, a southerner, the delay by the President in sending his name to the Senate for confirmation was capable of sending wrong signals.

    The statement reads: “The name of Hon. Justice Walter Onnoghen, the next most Senior Justice of the Supreme Court, has since October 10, 2016, been forwarded to the President, who is expected, constitutionally, to forward it to the Senate for confirmation.

    “Till this moment, Mr. President has not forwarded Justice Onnoghen’s name to the Senate for confirmation. This is scary, to say the least.

    “Senate confirmation hearings are not jamborees, but are grave constitutional exercises, requiring incisive investigative and at times confrontational posturing.

    “In other words, the Senate needs to obtain the biodata of the CJN nominee ahead of time, to enable the upper legislative chamber to conduct a thorough investigation cum confirmation exercise.

    “The time to act is now, as the Senate must confirm Justice Onnoghen latest on Tuesday, to further enable his swearing in just before or just after Justice Mahmud bows out.

    “The image of the judiciary has nosedived in the recent times; and Mr. President must be seen to be preventing any further dent on the image of this crucial arm of government.”

    Incumbent Justice Mohammed, who turns 70, the mandatory retirement age for justices of the Court of Appeal and the Supreme Court, on Thursday, appointed Onnoghen as his replacement, but the President has yet to approve the appointment.

    Adetola-Kaseem said: “Nature itself abhors a vacuum. Therefore, the constitution has anticipated the possibility of a substantive appointment not being made within time and has provided in Section 231 (4) and (5) that where the office of CJN becomes vacant or the incumbent is unable to perform the functions of the office for any reason, the President is allowed to appoint the next most senior Justice of the Supreme Court to function in the office of the CJN for a maximum of three months.

    “So, as things are now,  it is very unlikely that the process of appointing the CJN can be completed between now and Thursday, when the incumbent will retire.

    “I expect that the President will have to appoint the next most senior Justice of the Supreme Court who, in this case is Justice Onnoghen, to function as an acting CJN as it were and that within the next three months, which is the maximum time allowed for such appointment, it will be possible to complete the process of somebody, whether Justice Onnoghen or whoever, as substantive CJN. So, that is what is likely to happen.

    Sowemimo agreed, adding that perhaps, the President was taking his time in reaching a decision because of the importance of the office of the CJN.

    He said: “It is a serious position and the President appears to be carefully considering his options before making the appointment.”

  • Arrested judges: Senior lawyers urge NJC to insist on due process

    Arrested judges: Senior lawyers urge NJC to insist on due process

    Senior lawyers under the aegis of the Body of Senior Advocates of Nigeria (BSAN) yesterday urged the National Judicial Council (NJC) to insist on due process in determining the fate of the judges arrested by the Department of State Services (DSS).

    It advised the NJC not to be swayed by the sentiments being expressed by members of the public on how best to handle the challenges facing the Judiciary.

    BSAN’s position is contained in a speech delivered on its behalf by a member, Adegboyega Awomolo (SAN), who represented the body’s leader, Alhaji Abdullahi Ibrahim (SAN), in Abuja at an event, marking the commencement of the 2016/2017 legal year of the High Court of the Federal Capital Territory (FCT), Abuja.

    Awomolo, who stressed the need for the NJC to act within its rules and procedures, noted: “Both the Bar and the Bench constitute the majority members of the NJC.

    “In this respect, the NJC must act within its rules, procedure and the law and not by the noise of the market. Judicial officers must be treated according to the law of the land.”

    He urged judges and lawyers to support efforts to rid the Judiciary of corruption and restore public confidence to its operations.

    Awomolo argued that although there was the need to rid the Judiciary of corruption, such effort must be within the confines of the law and due process.

    He urged judges to learn from the recent developments in the country and strive to be above board.

    Awomolo said judges must be above board like Ceasar’s wife in their private and public relationships.

    “Men and women of the bar and bench must discipline their hearts for godliness, their eyes for contentment and flesh for holiness.

    “There is urgent need to encourage ourselves because when the judiciary is cowed and when the bar is intimidated, the result is lawlessness and anarchy. God forbid.

    “As late as 1980, I recall Hon. Justice Saidu Kawu, Justice of the Supreme Court (of blessed memory), then as Chief Judge of Kwara State, warned judges of Kwara State judiciary that ‘politicians are to be feared, kept at distance and avoided even if they are your relations’.

    “Those words are now alive as great words of wisdom. My lords, distinguished members of the learned and noble profession of the law, let us from this day resolve to be part of the soldiers fighting against corruption, abuse of powers and misuse of the discretion so as to restore confidence in our judiciary as the last hope of the common man,” Awomolo said.

    The Chief Judge of the High Court of the FCT, Justice Ishaq Bello, expressed discomfort that the Judiciary has been grossly condemned by the public.

    He said although there were bad eggs within the system, the Judiciary was determined to rid itself of corruption.

    Justice Bello, however, added that the fight against judicial corruption must be done in line with due process.

    He urged the Economic and Financial Crimes Commission (EFCC), the Independent Corrupt Practices and other related Offences Commission (ICPC) and other prosecuting agencies to be serious in the handling of their cases because the court was no longer willing to tolerate delay.

    Justice Bello, who was unhappy about congestion in prisons, advised judges and magistrates within his jurisdiction to consider adopting liberal bail conditions to ease detainees access to freedom.

    He said he assembled some judges to address the backlog of criminal cases within specific period.

    “As a measure to address overcrowding, I have encouraged judges, magistrates and Area Court judges to be fair and firm, but at the same time, more liberal in the grant of bail so that the prisons will be decongested.

    “It is in this light also, that I made the point during my visit to the prison in Suleja and Kuje that I will set up some panels of judges that will address the backlog of cases within specific time frames in criminal trials.

    “I call on EFCC and ICPC that we will no longer hesitate to strike out your cases no matter how hostile the case is if you fail to do what you should do.”

    He said FCT has 37 judges and 65 magistrates, and that 15,673 cases were inherited from the previous year, bringing the total number of cases the High Court handled in the last legal year to 22,634.

    “Of this number, 9,895 were completely disposed. The magistracy recorded 16,947 in its docket in the 2015/2016 legal year.

    “A total of 5,931 were filed as fresh cases, while 11,016 were carried over from 2014/2015 legal year.

    “In total, 7,695 were disposed with 9,262 pending. The Abuja Multi-Door Courthouse dealt with 99 cases and disposed 67.”

     

  • Senior lawyers disagree on legality of governor’s frozen account

    Senior lawyers disagree on legality of governor’s frozen account

    Senior lawyers yesterday disagreed on whether it was legal for the Economic and Financial Crimes Commission (EFCC) to freeze Ekiti State Governor Ayo Fayose’s account.

    They agreed that immunity does not stop a governor from being investigated, but there was no consensus on whether a governor’s account can be frozen.

    Those, who spoke on the issue include former Nigerian Bar Association (NBA) presidents Chief Wole Olanipekun (SAN) and Dr. Olisa Agbakoba (SAN); Chief Emeka Ngige (SAN), George Oguntade (SAN), Jibrin Okutepa (SAN) and constitutional lawyer Ike Ofuokwu.

    Olanipekun and Agbakoba said only a court could decide whether the account of someone with immunity can be frozen.

    According to Olanipekun, the Supreme Court case of Fawehinmi v IGP (2002), which held that a sitting governor can be investigated while in office, might not be a direct authority to settle the question.

    He said: “A case is only authority for what it decides. The present position is dicey and fluid. To my mind, any sitting governor who’s shown to have attracted illicit funds to his personal account can and should be investigated. But the cardinal question is: can his account be frozen without him knowing why it has been frozen by any agent or agency of government?

    “I rather think otherwise, as freezing of account presupposes that an application has been made to and granted by the court to so do.

    “In addition, an enrolled copy of the order should be served on him, giving and specifying reasons for the freezing, so as to enable him challenge the order if he so wishes. All these conditions precedent have to be complied with as we operate a constitutional democracy rooted in the rule of law.

    “On the flip side, it can also be argued that if a sitting governor can only be investigated for the time being as the constitution clothes him with immunity from any civil or criminal proceedings, is freezing of his account on the order of court not another way of subjecting him to criminal prosecution, contrary to the clear imperatives of the constitution?

    “This is because there can’t be a freezing action without a prior court order; and for any freezing application to be filed in court, the name of the sitting governor has to be stated as the defendant/ accused.”

    He cautioned lawyers and commentators against “jumping into conclusion on any issue without weighing the implications of what we say or sell to the public”.

    For Agbakoba, while immunity does not stop criminal investigation against a sitting governor, he does not think EFCC was right to freeze Fayose’s account.

    “It is doubtful, however, if freezing account is within the scope of investigation. I think not. I think it is a case to be tested in the courts,” Agbakoba said.

    Ngige, however, believes EFCC did not err.

    “The EFCC has the power to freeze the account of any person suspected to be involved in the commission of a crime. This power is not restricted to accounts of any person enjoying immunity – be him a governor or president.

    “The immunity offered by Section 308 of the Constitution is limited to arrest and prosecution. It does not cover investigation of crime. Interim freezing of a bank account involved in suspicious activity like money laundering is neither illegal nor unlawful.”

    Oguntade backed EFCC, saying the commission was right to freeze the account. He said Section 34 (1) of the EFCC Act empowers the commission to freeze such an account “if satisfied that the money in the account of a person is made through the commission of an offence.”

    “On the issue of whether the bank account of a sitting governor can be frozen, given the provisions of section 308 of the 1999 Constitution (as amended), the answer is clearly in the affirmative.

    “That a person protected under section 308 of the 1999 Constitution, going by its provisions, can be investigated by the police for an alleged crime or offence is, in my view, beyond dispute.

    “The Supreme Court further held that ‘criminal investigation’ is totally different from ‘criminal proceedings’ in respect of which a governor enjoyed immunity under section 308 of the Constitution.

    “So, whilst a criminal charge cannot be preferred against a sitting governor, there is nothing that prevents the EFCC from investigating a sitting governor and to freeze his account in the course of doing so upon obtaining the requisite court order,” Oguntade said.

    Okutepa said a governor can be investigated and his account frozen, adding that there is “nothing illegal and unconstitutional about it if the condition precedent is followed.”

    Ofuokwu said: “If it is in a bid to trace stolen funds, I am of the firm opinion that the EFCC can freeze the account where the stolen funds are traced to. The constitution did not confer immunity from investigation.  Hence, I respectfully submit that immunity from prosecution does not confer on anybody whatsoever immunity from investigation.”

     

     

  • SANs disagree on legality of Fayose’s frozen account

    SANs disagree on legality of Fayose’s frozen account

    Senior lawyers Tuesday disagreed on whether it was legal for the Economic and Financial Crimes Commission (EFCC) to freeze Ekiti State Governor Ayo Fayose’s account.

    They agreed that immunity does not stop a governor from being investigated, but there was no consensus on whether a governor’s account can be frozen.

    Those who spoke on the issue include former Nigerian Bar Association (NBA) presidents Chief Wole Olanipekun (SAN) and Dr Olisa Agbakoba (SAN); Chief Emeka Ngige (SAN), George Oguntade (SAN), Jibrin Okutepa (SAN) and constitutional lawyer Ike Ofuokwu.

    Olanipekun and Agbakoba said only a court could decide whether the account of someone with immunity can be frozen.

    According to Olanipekun, the Supreme Court case of Fawehinmi v IGP (2002), which held that a sitting governor can be investigated while in office, might not be a direct authority to settle the question.

    He said: “A case is only authority for what it decides. The present position is dicey and fluid. To my mind, any sitting governor who’s shown to have attracted illicit funds to his personal account can and should be investigated. But the cardinal question is: can his account be frozen without him knowing why it has been frozen by any agent or agency of government?

    “I rather think otherwise, as freezing of account presupposes that an application has been made to and granted by the court to so do.In addition , an enrolled copy of the order should be served on him , giving and specifying reasons for the freezing , so as to enable him challenge the order if he so wishes. All these conditions precedent have to be complied with as we operate a constitutional democracy rooted in the rule of law.

    “On the flip side, it can also be argued that if a sitting governor can only be investigated for the time being as the constitution clothes him with immunity from any civil or criminal proceedings, is freezing of his account on the order of court not another way of subjecting him to criminal prosecution, contrary to the clear imperatives of the constitution?

    “This is because there can’t be a freezing action without a prior court order; and for any freezing application to be filed in court, the name of the sitting governor has to stated as the defendant/ accused.”

    He cautioned lawyers and commentators against “jumping into conclusion on any issue without weighing the implications of what we say or sell to the public.”

    For Agbakoba, while immunity does not stop criminal investigation against a sitting governor, he does not think EFCC was right to freeze Fayose’s account.

    “It is doubtful, however, if freezing account is within the scope of investigation. I think not. I think it is a case to be tested in the courts,” Agbakoba said.

    Ngige, however, believes EFCC did not err. “The EFCC has the power to freeze the account of any person suspected to be involved in the commission of a crime. This power is not restricted to accounts of any person enjoying immunity be him a Governor or President.

    “The immunity offered by section 308 of the Constitution is limited to arrest and prosecution. It does not cover investigation of crime. Interim freezing of a bank account involved in suspicious activity like money laundering is neither illegal nor unlawful.

    “Freezing of account is part of investigation and therefore no law has been violated more so when the huge sums of money found in the instant account is alleged to have come from the State treasury. EFCC should get to the root of the matter and charge those without immunity if there is a prima facie case disclosed,” Ngige said.

    Oguntade also backed EFCC, saying the commission was right to freeze the account. He said Section 34 (1) of the EFCC Act empowers the commission to freeze such an account “if satisfied that the money in the account of a person is made through the commission of an offence.”

    “On the issue of whether the bank account of a sitting governor can be frozen given the provisions of section 308 of the 1999 Constitution [as amended], the answer is clearly in the affirmative.

    “That a person protected under section 308 of the 1999 Constitution, going by its provisions, can be investigated by the police for an alleged crime or offence is, in my view, beyond dispute.

    “The Supreme Court further held that ‘criminal investigation’ is totally different from ‘criminal proceedings’ in respect of which a Governor enjoyed immunity under section 308 of the Constitution.

    “So, whilst a criminal charge cannot be preferred against a sitting governor, there is nothing that prevents the EFCC from investigating a sitting Governor and to freeze his account in the course of doing so upon obtaining the requisite court order,” Oguntade said.

    Okutepa said a governor can be investigated and his account frozen, adding that there is “nothing illegal and unconstitutional about it if the condition precedent is followed.”

    Ofuokwu said: “If it is in a bid to trace stolen funds, I am of the firm opinion that the EFCC can freeze the account where the stolen funds are traced to. The constitution did not confer immunity from investigation. Hence, I respectfully submit that immunity from prosecution does not confer on anybody whatsoever immunity from investigation.”