Itse Sagay: Onnoghen’s Trial Constitutional, in Order

• Taking his case to the NJC is a clear violation of the Constitution

By Bennett Oghifo

Constitutional lawyer Prof. Itse Sagay yesterday threw his weight behind the decision of the Code of Conduct Bureau to arraign the Chief Justice of Nigeria and Chairman of the National Judicial Council (NJC), Justice Walter Onnoghen before the Code of Conduct Tribunal, saying it is constitutional.

Prof. Sagay, in a statement yesterday said that the Code of  Conduct Bureau and Tribunal Act covers all public officers including, the President, Vice-President and the Chief Justice of Nigeria who are among the top public officers expressly listed as being subject to the Act.

He emphasised that the provisions of the Act includes that All public officers must declare their full assets: “(a) On taking public office; (b) Every four years thereafter; (c)And at the end of their Term of Office; (d)This must be done within 30 days of receiving the form from the Bureau. False Declaration of Assets, involving omission to declare or declaring what does not exist, constitute a breach of the Act. Also, where a public officer accumulates assets beyond his remuneration, there is a presumption that a breach of the Act has occurred.”

Furthermore, Prof. Sagay, faulted and dismissed the argument that the CJN should have been taken before the National Judicial Council (NJC). According to him, “some Senior Advocates of Nigeria have argued that even in a case involving the breach of the Code of Conduct, for which the law has already made express provisions, the matter shall be taken to the National Judicial Council rather than to the Code of Conduct Tribunal.  They can’t be serious.  They must obviously be speaking tongue in cheek.  Even a baby, three months old, must realise that no one can get justice against the Chief Justice of Nigeria at the NJC.  The CJN is not only the Chairman of the NJC, he also appointed of 20 out of the NJC’s 23 members.  The CJN is the NJC.  Only a grossly ignorant man or an extremely dishonest one could seriously suggest that a matter involving the CJN should be brought before the NJC for adjudication.

“Therefore, the whole idea of taking the present case to the NJC is a nonstarter.  For that would make the CJN the Chief Judge of his own case; a clear violation, not only of the Constitution, but also of a long standing common law principle coming all the way from Magna Carter in the year 1215.

“It should also be noted that in addition to the provisions of the Code of Conduct Bureau and Tribunal Act, the Constitution itself expressly provides for the establishment of the Code of Conduct Tribunal.  (See 5th Schedule of the Constitution, Part One Paragraph 15.) Infact, the Constitution itself makes the Code of Conduct and Tribunal Act, part of itself by including it as a schedule.  Therefore, in dealing with the scope and powers of the Code of Conduct Tribunal, we are dealing with a matter that is provided for in the Constitution, not a mere Act of the National Assembly.

“Also, It has been argued that the court of Appeal in the case of Justice Nganjiwa vs. F.R.N. [2018] 4 NWLR (Part 1609) pg. 301 held that no judicial officer can be charged before any Court or Tribunal until the N.J.C. has disposed of the case. It should be noted first, that this judgment contradicts the clear provisions of the Code of Conduct as established in the Constitution which gives the Code of Conduct Tribunal jurisdiction over all public officers including the Chief Justice of Nigeria.  (See 5th Schedule, Part One, of the 1999 Constitution).”

“Moreover, the Court of Appeal in Nganjiwa’s case was directing its judgment to a judicial officer committing an offence in the process of carrying out his duties as a judge, in a Court namely: demanding bribe from a party to the case before him.  Therefore the ratio decidendi in this case is much narrower in scope than is been touted by our all mighty S.A.Ns.  Filling an Assets Declaration Form is totally outside the ambit of a judicial officer’s work.  It applies to all public officers.  If one may ask?  Should a drunken Judge behind a car steering wheel, kill an innocent pedestrian, will the offence be taken before the NJC, before the police can act on the crime?

“Indeed, inspite of its defects, the Court of Appeal judgment in the Nganjiwa’s Case expressly limited reference to the NJC only to cases of a judicial officers’ misconduct in court whilst exercising his authority as judge in case before him in court.  According to the court: ‘It must be expressly stated that if a Judicial officer commits theft, fraud, murder or manslaughter, arson and the likes, which are crimes committed outside the scope of performance of his official functions, he may be arrested, interrogated and prosecuted accordingly by the State directly without recourse to the NJC.’

“This demonstrates the hollowness and invalidity of the argument that every offence committed by a judicial officer must first be brought before the NJC, before the Law Enforcement Agencies can entertain it.

“The Court of Appeal in Nganjiwa v. FRN infact clearly contradicted its own judgment in A-G Anambra v. Uba & Ors. [2005] 15 NWLR (Pt. 973) 44,  where it declared that it was unconstitutional for any Nigerian to go to Court to be shielded against criminal investigation and prosecution.

“In the same vein, a plaintiff cannot expect a judicial fiat preventing a constitutionally established Tribunal from exercising its constitutional power and authority. Thus, in Uba vs. FRN, the Court did not exclude Judicial Officers from this sweeping pronouncement on the subjection of all Nigerians to the power of investigation, arrest and prosecution by Law officers.

“Additionally, in my view, the Judgment of the Court of Appeal in Nganjiwa’s case is unconstitutional, invalid and an attempt to smuggle into our laws, a provision for immunity for all judicial officers, contrary to Section 308 of the Constitution. The Court of Appeal illegitimately attempted to usurp the powers of the National Assembly and all the State Houses of Assembly by a judicial amendment of the Nigerian Constitution.”

“One final point of interest is that by the very logic of the powers of the NJC, cases arising out of a breach of the Code of Conduct Bureau and Tribunal Act and the Code of Conduct provision in the Constitution cannot come before the NJC.  If the NJC first decides the matter before the defendant is arraigned in Court or at the Tribunal, what happens if the NJC had already found the defendant liable and had removed him from office as a Judge?  In that case, he ceases to be a Judicial Officer as well as a Public Officer. Can he therefore be tried as a public officer before the Code of Conduct Tribunal?  The answer is no, because he is no longer a public officer.  The extant provisions of the Constitution and the Code of Conduct Bureau and Tribunal Act would be rendered nugatory, by a prior NJC involvement.

“Why is Nigeria always a Theatre of the Absurd?  Today, we are only talking about preliminary objections, interim injunctions, challenge of jurisdiction, wrong procedure, etc., etc.  Nobody is talking about the substantive issue any longer.  That is now lost in the sands of time.  Did he do it?  Did he not do it?  The questions we should all be asking are: Did the CJN fail to submit a written declaration of all his assets and liabilities within three months after being sworn it? Did he omit to declare a domiciliary (US dollar) account No. 870001062650 maintained with Standard Chartered Bank? Did he falsely omit to declare a domiciliary (Euro) account No. 93001062686 maintained with the same bank? Did he falsely omit to declare a domiciliary (Pound Sterling) account No. 285001062679 with the Bank? Did he falsely omit to declare an e-Saver Savings (Naira) account No. 5001062963 maintained with the bank? Did he falsely fail to declare Naira Account 010001062667?

“These are the substance of this case, which is deliberately being abandoned by the SANs and some other Lawyers.  Nigerians should not allow themselves to be distracted by this vicious and dishonest campaign intended to sacrifice the substance of this case on the altar of technicalities. The truth must not be the first casualty in this matter”, the statement concluded.”