Laide Raheem, Abeokuta The National Chairman of the Social Democratic Party of Nigeria (SDP) Olu Falae has slammed the Buhari administration for failing Nigeria in the areas of security and the economy. Falae, who bemoaned the continuous and wanton spate of killings around the country, said he had expected President Buhari to critically appraised the…
On December 11, 2017, the Court of Appeal, Lagos division, in the lead judgement delivered by Justice Adejumo Obaseki, quashed the 14-count charge against Justice Hyeladzira Nganjiwa before the Lagos State High Court and ruled that the EFCC does not have the powers to investigate or prosecute serving judicial officers except where they had been first dismissed by the National Judicial Council (NJC). For the record, it is the NJC that has disciplinary control over judges as provided for in Section 158 and paragraphs 21(b) and (d) of the Third Schedule to the 1999 Constitution, as altered. Some commentators have either disagreed with or supported this decision. I support it. I will give my reasons anon. As held by the intermediate court, there is such a principle of law known as the doctrine of separation of powers (thank you, Baron de Montesquieu, for your 1748 treatise that has shaped governance and division of powers within government itself. Thank you, Adam Smith for the concept of division of labour). The doctrine of separation of powers is a complete bar to the Executive riding roughshod on judges (belonging to the Judiciary), in spite of the clear provisions of Section 158 of the 1999 Constitution, as altered, and paragraphs 21(b) and (d) of the third schedule to the said 1999 Constitution. This doctrine has received constitutional imprimatur in sections 4,5 and 6 of the same 1999 Constitution. We must all unite to rescue the brazenly buffetted judiciary from the despotic jackboots of the Executive, which traduces judges with untrammelled impunity. To do this, we need more of such creative judicial interventionist activism. Judges in Nigeria today are no longer safe, or free to deliver judgments without looking over their shoulders for fear of rampaging Executive agencies that break down their houses in ungodly hours of the night, and terrorise and dehumanise them and their families. Judges now operate under a situation of fear, not wanting to deliver judgements against an intolerant Executive, even where the law is as clear as crystal. They operate under morbid fear of blaring sirens of power and executive lawlessness, an Executive that treats judicial orders with disdain and utmost contempt. Remember the Dasukis and El-Zakzakys of this world? Numerous courts, including the sub-regional ECOWAS Court, have since ordered their immediate release with payment of damages for unlawful detention, but the Executive has flagrantly refused to obey the said orders. This is an obvious invitation to chaos and anarchy. Any attempt by the EFCC to rely on its enabling law, the EFCC (Establishment) Act, 2004, a far inferior law to the grundnorm, to undermine the clear provisions of the Constitutuon, is liable to be struck down, by virtue of Section 1(3) thereof. Lord Denning, MR, in Comb v Comb, once famously declared in the following words or words to the like effect: “What is the argument on the other side? Only this. That no case appears in which it has been done before. That argument does not in the least appeal to me. If we never do anything because it has not been done before, the society will move on and the law will stand still, and that will be bad for both”.
It was with this rare insightful activist orientation that he ploughed new fields and opened up new legal vistas that resulted in imperishable creations such as the doctrines in the “High Trees” case, Mareva Orders and Anton Pillar Orders. I totally support the Court of Appeal in this LANDMARK judgement that has the effect of clipping the tyranical claws of the EFCC and its sister agencies in always viewing the judiciary as an annex of Aso Villa. I salute the rare courage, daring bravado and jurisprudential correctness of this historic and epochal judgement. On matters concerning alleged corruption by judges in the ordinary course of their judicial functions (not heinous crimes committed on a frolic of their own outside the call of their official duties), let such corrupt judges be smoked out by the NJC, heard out, given a right of defence, and be adequately dealt with in accordance with laid down punishment through cautioning, reprimand, suspension, forced retirement, or outright dismissal, as the case may be. When the judge is thus stripped of his stained judicial robes, the anti-graft agencies can immediately move in. After all, time never runs against trial of criminal offences. It is most unfair, nay, reprehensible and unconscionable, to continually harass and intimidate judges and keep judges, who are already under close NJC scrutiny, a second tier form of “double jeopardy,” in the nature of yet another close microscopic monitoring by an overbearing, unaccountable, extremely corrupt omnipresent “big brother” Executive. Paradoxically, this is the same Executive that has refused to remove the log from its eye before seeking out the speck in the Judiciary’s eye.
Are there some corrupt judges that work hand-in-gloves with some despicable collaborating lawyers of odious infamy? Yes! By all means, ferret and winnow out and deal with these few Judas Iscariots. But, for God’s sake, do this in accordance with due process and laid down constitutional and statutory provisions. Let the aggrieved party appeal the judgement. That is the civilized thing to do, not unleashing further threats, abuses, curses and expletives on the already beleagered judiciary as an institution. I am ready, able and willing to defend, pro bono, this ground-breaking judgement that would help the cause of justice, lubricate the tired wheels of the rule of law, reshape our legal jurisprudence and remove the judiciary from the seering clutches and apron strings of the other two arms of government, especially the Executive. This will give the judiciary true autonomy and independence.
The brouhaha over Justice Adeniyi Ademola’s resignation
Hon. Justice Adeniyi Ademola was a judge of the Federal High Court, Abuja. He is the grandson of Adetokunbo Ademola, who was appointed Nigeria’s first indigenous Chief Justice of Nigeria in 1958, and remained in that position till 1972, making him the longest serving chief justice in the history of Nigeria. His father was Justice Adenekan Ademola, who was the presiding justice of the Court of Appeal. Little wonder he toed the path of his illustrious forebears. Justice Adeniyi is known for his charisma and ability to sit at 9am prompt, except otherwise, where the court registrar would have to inform counsel about this.
The Nichodemous visitation by the Department of State Services (DSS)
Operatives of the Department of State Services (DSS) had Nichodemously broken his residence at Apo Legislative Quarters, on October 7, 2016, in what was later referred to by DSS as a “sting operation.” His residence was part of the houses of some judges crudely raided before he and seven judges were whisked away by the DSS like common criminals.
The DSS had alleged that huge amounts of money (local and foreign currencies) were found in his residence. He was later charged to court on the strength of the DSS allegation.
Justice Ademola’s suspension from sitting by NJC
Following this ungodly midnight raid by DSS, the NJC suspended the already embattled Justice from further sitting over cases pending in his court. This was allegedly to enable him attend to his trial. Was it really?
His case before the FCT High Court
The trial of Justice Ademola commenced at the High Court, when the federal government arraigned him alongside his wife, Olubowale, and a lawyer, Joe Agi, SAN, on an 18-count charge of alleged conspiracy, giving and receiving of gratification and illegal possession of firearms before Hon. Justice Jude Okeke.
The prosecution team, led by Segun Jegede, presented about 18 witnesses. In Justice Okeke’s ruling on the no-case submission filed by Onyechi Ikpeazu, his counsel, the trial judge dismissed all the charges and discharged and acquitted the defendants. He held that the prosecution had not linked the defendants with any of the 18 counts in the charge and there was, therefore, no basis to call on the defendants to open defence in the matter.
Justice Ademola’s reinstatement by NJC
Following the judicial clean bill of health given by the honourable court, in discharging and acquitting him of the charges against him, the NJC directed that Justice Ademola resume work immediately. Justice Ademola consequently resumed sitting on June 7, 2017.
Justice Ademola’s decision to leave the Bench
Upon his resumption of duty, Justice Ademola handled a plethora of cases, before he decided to write to the NJC, notifying the NJC of his retirement from the Bench with effect from April, 2018.
The legal implication of Justice Ademola’s intention to retire
Justice Ademola wrote a letter dated September 25, 2017, wherein he notified the NJC of his plan to retire next year. He would have in March, 2018, proceeded on retirement when he would have attained 65 years, the statutory retirement age of high court judges.
Section 291(2) of the 1999 Constitution (as altered), provides that:
“A judicial officer appointed to any other court, other than those specified in sub-section (1) (Supreme Court and Court of Appeal) of this section may retire when he attains the age of 60 years and he shall cease to hold office when he attains the age of 65 years.”
The judge would have been 65 years of age, by March 2018. That is the constitutional age for judges of the Federal High Court to retire. But, Justice Ademola, after his initial arrangement of retiring next year, decided to cut same short, by tendering his resignation letter, dated December 6, 2017, to the Acting Chief Judge of the Federal High Court, Justice Adamu Kafarati.
Unnecessary rancour over his retirement letter of December 6, 2017
Justice Ademola’s letter of retirement has generated acrimonioous controversy. The NJC in its report said the Council was only aware of the November 25 letter, stating among others that he (Justice Ademola) would be due for retirement in April next year at the mandatory retirement age. The Council also said that it had at the end of its 84th meeting in Abuja recommended him and Justice O.O. Tokode for retirement from the FHC Bench. But his counsel, Chief Robert Clarke, has argued that Justice Ademola retired voluntarily immediately he was freed by the court of any infractions over the allegations levelled against him by the government. The questions, therefore, are, was Justice Ademol’s appointment ‘terminated’? Was he ‘retired’, or ‘removed’ or “sacked”, or did he “abandon” his duties?
Let us take a look at the legal definitions of these terms, as defined by a court of law.
In Agienoji v C.O.P. Edo State (2007) 4 NWLR (Pt. 1023) 23 at 27 paras. A – B (CA), the intermediate court defined abandonment of public office as:
“Abandonment of public office is a specie of resignation, but differs from resignation in that resignation is a formal relinquishment, while abandonment is a voluntary relinquishment through non-user. It is not wholly a matter of intention, but may result from the complete abandonment of duties of such a continuance that the law will infer a relinquishment. It must be total, and under such circumstances as clearly to indicate an absolute relinquishment.”
In Wilson v AG Bendel State & Ors (1985) LPELR-3496 (SC), the apex court defined “retirement” and “dismissal” to mean:
“In its ordinary and popular meaning retirement from the public service would imply a withdrawal from that service, which itself will further mean that the appellant is no longer a member of that service. Again, ordinarily, dismissal imports a release from, a discharge from service or office. It follows then, and ordinarily also, that when a person has left an office or has retired from a certain service he cannot again be dismissed from that same office or service.” Per OPUTA, J.S.C (P. 63, paras. E-G)
On the above posited questions, Omokri J.C.A. in Nawa v Att-Gen Cross River State (2008) ALL FWLR (Pt. 401) 807 at 833 – 834, paras. B – C (CA), defined the word ‘to remove’; and whether the word ‘remove’ as used under Section 208(1) of the 1999 Constitution includes retirement. His Lordship stated as follows:
“The expression ‘to remove’ and the word remove’ is not defined in the Black’s Law Dictionary (with Pronunciations), 6th Edition but at page 1295 the expression ‘removal from office’ is defined as follows: ‘Deprivation of office by act of competent superior acting within scope of authority. ‘Suspension’ is the temporary forced removal from the exercise of office; ‘removal’ is the dismissal from office’. In the same book at page 1316, the word ‘retirement’ is defined as follows: ‘Termination’ of employment, service, trade or occupation upon reaching retirement age, or earlier at election of employee, self-employed, or professional. Removal of fixed asset from service. In the Oxford Advanced Learner’s Dictionary, 6th Edition, page 992, the word ‘remove’ is defined, inter alia, to mean: ‘to take something or somebody away from a place; or to make something disappear or to dismiss somebody from their position or job.’ In the same page, the word ‘removal’ is defined to mean: ‘The act of taking somebody or something away from a particular place, or getting rid of somebody from their job.’ At page 1005 of the same Dictionary, the word ‘retire’ is defined to mean: ‘to stop doing your job especially because you have reached a particular age or because you are ill/sick/’. At the same page, the word’ retirement’ means: ‘the fact of stopping work because you have reach a particular age.’ From the above definitions, it is clear that there is a world of difference between the words ‘remove’ and ‘retire’ or ‘removal’ and ‘retirement’.
From the above, it is crystal clear that what Justice Ademola did was to put in his letter of resignation even before his compulsory retirement age of 65 years. He beat the NJC to it. There is absolutely nowhere in our laws that says that a judge cannot retire voluntarily as he has done in this case. He had been cleared of all forms of allegations and discharged and acquitted in all of them. Who is after Justice Ademola? It is my prayers that God will see him through in all his man-made travails.
Thought for the week
“At the end of the day, the goals are simple: safety and security.” – Jodi Rell