Alleged corruption: where is Justices Ngwuta, Nganjiwa?
By Suspended judges of the Supreme Court, Justice Sylvester Ugwuta and Lagos High Court judge, Justice Hyeladzira Nganjiwa, were recently freed of allegations of corruption preferred against them by the Federal Government of Nigeria.
Justice Ngwuta was implicated when in a ‘sting operation’ the Department of State Security (DSS), stormed the Abuja home of seven judges on Dec 7/8, 2016.
Sums of money, in both local and foreign currencies, which include N35 million, £35, 915, $319,096, 50 South Africa rands, €280, 000 (Euros), 380 Dirhams and 420 dalases, cash, were alleged to have been recovered from Ngwuta’s home, which the DSS said were proceeds from crime.
However, the court dismissed the allegation on the premise that his case was not first referred to their employer, the National Judicial Commission (NJC) as envisaged by the Constitution of the country. Same for Nganjiwa.
Since then there has not been a word from the prosecution agencies, the EFCC, the Ministry of Justice and office of the Attorney General of the Federation or the NJC.
This has kept tougues wagging if the matter has not been swept under the carpet or if they have been recalled to their various positions before the trial.
On May 15, 2018, the Code of Conduct Tribunal (CCT) sitting in Abuja, struck out 10-count charge the Federal Government preferred against Justice Sylvester Ngwuta of the Supreme Court who was accused of concealing some of his private assets.
The Federal Government had in the charge marked CCT/ABJ/01/17, alleged that Justice Ngwuta had between June 2, 2011 and July 19, 2016, refused to declare his ownership of 28 plots of land to the Code of Conduct Bureau, CCB.
It accused the apex court jurist of engaging in private business as a public officer, contrary to Section 6(b) of the Code of Conduct Bureau and Tribunal Act.
Federal Government alleged that Ngwuta’s refusal to declare his assets as a public officer, was contrary to section 15 of the Code of Conduct Bureau Act, Cap C15 Laws of the Federation of Nigeria 2004 and Punishable under Section 23(2) of the same Act.
However, before full-blown hearing could commence on the matter, the defendant, via a motion dated January 9, queried the jurisdiction of the tribunal to try him over charges he said was grossly incompetent.
He argued that by virtue of sections 318, 158(1) and Paragraph 21 (B) of the 3rd Schedule to the 1999 Constitution, the CCT, lacked the requisite jurisdiction to hear and determine the case against him.
Through his team of lawyers led by a former Attorney General of the Federation and Minister of Justice, Chief Kanu Agabi, Ngwuta contended that allegations against him were never referred to the National Judicial Council (NJC), before the criminal charge was entered against him.
He claimed that as a serving judicial officer by virtue of his appointment into the Supreme Court bench, the Federal Government ought to have in line with section 158 of the constitution, allowed the NJC to firstly exercise its disciplinary powers regarding all the allegations in the charge.
Ngwuta further drew the attention of the tribunal to the decision of the Court of Appeal in the case the Federal Government instituted against Justice Hyeladzira Nganjiwa of the Federal High Court, Lagos, wherein the appellate court held that serving judicial officers could not be prosecuted for judicial misconduct or breach of trust, without prior investigation by the NJC.
He insisted that allegations that culminated to the charge against him, were never referred to or determined by the NJC. However, in a written address it filed in opposition to Ngwuta’s motion, Federal Government maintained that the tribunal had powers and jurisdiction to try the case before it.
“More over, the defendant is before this tribunal, not as a Justice of the Supreme Court, but as a public officer who we have said had in the discharge of his functions, breached the code of conduct for public officers”, Federal Government’s lawyer, Mr. Abey Mohammed, argued.
Meanwhile, the Danladi Umar-led two man panel tribunal, upheld Justice Ngwuta’s argument and struck out charges against him.
While discharging the defendant, a member of the panel, William A. Atedze who read the ruling of the tribunal, held that Ngwuta being a serving judicial officer, was under the management, control and discipline of the NJC.
He maintained that NJC is a body whose independence from external control or interference is constitutionally provided for by section 158 (1) of the 1999 Constitution, as amended.
“What this means is that any allegation of official misconduct will first have to be referred to the National Judicial Council to the exclusion of any other body, court or Tribunal,’’ the CCT held.
Earlier, Federal High-tech Court in Abuja, had also struck out the 13-count criminal charge preferred against Justice Ngwuta.
The court, in a judgment that was delivered by trial Justice John Tsoho, on March 23, 2018, held that Federal Government failed to fulfill the condition precedent that is required before a serving judicial officer could be arrested or charged to court over corruption related offences.
Relying on a recent decision of the Court of Appeal in the case involving Justice Nganjiwa, who was also accused of engaging in acts of corruption, Justice Tsoho, maintained that Federal Government ought to allow the NJC to “appropriately scrutinize” allegations against judicial officers, before charging them to court.
“Any direct arrest and prosecution of a judicial officer by security agencies as in the present case should be declared a nullity”, the court held.
According to the court, it was not in dispute that Justice Ngwuta is a serving judicial officer, stressing that sections 152, 158 and Paragraph 21 Part 1 of the Third Schedule of the 1999 Constitution are clear and unambiguous to the effect that only the NJC has administrative and statutory powers to disciple judicial officers.
“No matter how incompetent the NJC may seem to the security agencies, its powers are constitutionally vested”, Justice Tsoho held, adding that such powers “cannot be switched or overrun under democracy”.
“This court is of the view that it will be tidier and safer that all kinds of offences against judicial officers must first pass through the NJC”.
He said the NJC should be allowed to “first consider cases involving judicial officers across all offences before the involvement of security agencies”. Besides, the court noted that some of the charges against Ngwuta were vague.
“This court has difficulty seeing a clear distinction as to whether the alleged acts are within the scope of Applicant’s performance of his official function or outside the scope of offences within the rank of theft, arson or murder.”
The court said it was not persuaded by Federal Government’s argument that the appellate court had in Nganjiwa’s case, held that judicial officers could be prosecuted for committing offences like theft, arson or murder, without recourse to the NJC.
It maintained that Federal Government has no option than to report erring judicial officers to the NJC, pending the filling of lacunas in the constitution.
“It is the humble opinion of this court that condition precedents to the filing of the charge herein against the Applicant was not fulfilled.
“Consequently, the jurisdiction of this court to try same was not properly invoked. Therefore processes herein before this court is declared a nullity. The charge is struck out and the applicant discharged”, Justice Tsoho held.
The case of Justice Nganjiwa of Federal High Court, Lagos, which formed the reference point in the judgments above, was decided on December 12, 2017 by Lagos Division of Court of Appeal.
The EFCC had arraigned the judge for allegedly receiving a total of $260,000 and N8.65m gratification to unlawfully enrich himself as a public official.
The anti-graft agency arraigned the judge on 14 counts before the Lagos State High Court in Igbosere on June 23, 2017.
Prior to Justice Nganjiwa’s arraignment on June 23, his counsel, Chief Robert Clarke had argued a preliminary objection challenging the court’s jurisdiction to hear the case.
The SAN had contended that by virtue of Section 158 of the 1999 Constitution, only the NJC had the power to deal with the kind of allegations brought by the EFCC against his client, a serving judge.
But the judge had dismissed the no case submission. Clark had appealed against it. However, in a judgment, the Appeal Court panel presided over by Justice Adejumo Obaseki quashed the 14 charges pressed against Nganjiwa.
The appellate court agreed with Clark that a judge could not be prosecuted until such judge had either been dismissed or compulsorily retired by the NJC.
However, since the judgment, the prosecution agencies, including the Attorney General of Federation, that prosecuted Ngwuta and the Economic and Financial Crimes Commission, have been silent about the cases.
Also, the NJC that suspended the judges during their trial has not been forthcoming. It has not made public whether the suspension has been lifted on them or otherwise.
Checks at the NJC revealed the judges have not resumed duties.
When contacted, Director of Press of NJC, Adesoji Oye, refused to comment on the issues.
But sources told Business Day that there petitions but was not sure if it has received any concerning Justice Ngwuta “but concerning other judges I think we have petitions against them which we are working on”.
According to the source, “you know right from the beginning they were wrong to have taken the judges to court without input from the NJC, according to the Constitution. May be they will stil writel to us about the findings before the NJC can take it up”, he said.
The source agreed that the judges can still be tried on the recommendation of the NJC after the allegations against them have been investigated and can be proven beyond reasonable doubt.
Wilson Uwugaren, the EFCC spokesman, said the agency was not involved in the prosecution of Ngwuta but was silent on the Justice Nganjiwa, who the EFCC took to court in Lagos.
But BusissDay independently learnt that the anti-graft agency may have written petitions against some judges it investigated on its own, without stating whether Nganjiwa’s name was include.
At the Ministry of Justice, Director of Press, Mrs Modupe Ogundoro pleased for time to find out the true position of things .
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