NJC lacks power over assets declaration offence – Sagay

…justifies trial of Justice Onnoghen before CCT

The Chairman of the Presidential Advisory Committee Against Corruption, Prof. Itsey Sagay, yesterday said that the National Judicial Council (NJC) lacks power to sit over the case of any judge that is accused of not declaring his assets according to the provision of the Code of Conduct Bureau (CCB).

Sagay, who spoke on the controversy trailing the six count criminal charge filed against the Chief Justice of Nigeria (CJN), Justice Walter Onnoghen by the Federal Government before the Code of Conduct Tribunal (CCT), faulted the position of some lawyers that the matter should have first been referred to the NJC.

Sagay noted that if going by the submission that an allegation of a breach as it relates to assets declaration is first referred to the NJC and the council finds the judge liable, he will be removed from office as a judge, but queried whether he would still be tried as a public officer.

“If he is removed from office by the NJC and 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,” he said.

Onnoghen was billed to be arraigned before the tribunal on Monday, but the arraignment was stalled due to his absence, which was attributed to lack of service personally on the defendant. But the chairman of the tribunal, Danladi Umar, ordered a fresh service of the summons on the CJN personally and consequently adjourned till January 22 for arraignment.

While controversies have continued to trail the legality and otherwise of the powers of the tribunal to adjudicate over a matter involving the CJN, Sagay noted that cacophony of shrill and angry voices has completely drowned out any calm analysis of the situation. He, however, stated that CCCB Act covers all public officers including the CJN.

Speaking further on the powers of the tribunal, he noted that where it finds an officer guilty of a breach of the Act, it can inflict necessary punishment on the individual.

Speaking on appearance before the tribunal, he said: “After a perusal of the application and evidence in support, and if satisfied with such evidence, the tribunal shall cause the defendant to be brought before it on such a date and such a time as it may direct.

“When the tribunal is ready to commence trial, the defendant shall be brought before it and the tribunal shall read or cause to be read to the defendant the substance of the complaint against him and he shall be asked whether he is guilty of the offence or offences as charged.”

Sagay further noted that almost all Senior Advocates of Nigeria (SANs), who have argued that even in a case involving the breach of the Code of Conduct, for which the law has already made express provisions, that the matter shall be taken to the NJC rather than to the CCT can’t be serious.

According to him, “they must obviously be speaking tongue in cheek. Even a baby must realize 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 is also the appointor of 20 out of the NJC’s 23 members. The CJN is the NJC. Only a grossly ignorant man or an extremely mischievous one could seriously suggest that a matter involving the CJN should be brought before the NJC for adjudication.”

He added: “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). In fact, 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.

“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 NJC has disposed of the case.

“It should be noted first, that this judgement 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 being touted by our all mighty SANs.

“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, in spite of its defects, the Court of Appeal judgement 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.

“Why is Nigeria such 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?

“Did the CJN fail to submit a written declaration of all his assets and liabilities within prescribed period of three months after being sworn it? Did he omit to declare a domiciliary (US dollar) account No. 870001062650 maintained with Standard Chartered Bank Nigeria Limited?

“Did he falsely omit to declare a domiciliary (Euro) account No. 93001062686 maintained with the 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?

“That is 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 fraudulent campaign, intended to sacrifice the substance and justice of this case on the altar of technicalities. The truth must not be the first casualty in this matter.”

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