NJC Has No Jurisdiction To Investigate Crime – Okoi Obono-Obla

 

Ever since some Judges of the High Court and Supreme Court Judges were arrested by the SSS last weekend arguments have raged between lawyers and public commentators alike as to the extent of the powers of the National Judicial Council whether or not it has the power to hear and determine complaints against Judges that border on criminality.

Two schools of thought have emerged concerning whether or not a Judge who has been accused of corruption, money laundering or official corruption can be disciplined by the National Judicial Council or be reported to law enforcement agencies for investigation and possible prosecution.

As usual with our country a very simple legal argument has been regrettably so distorted, twisted and muddled up by so much emotionalism and sentiments rather than dry law (even by lawyers who are learned in the law).

The National Judicial Council is one of the Federal Executive bodies established by Section 153 (1) (J) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).

According to Part 1, Section 20 of Paragraph I of the Third Schedule to the Constitution, the National Judicial Council shall comprise the following members –

(a) the Chief Justice of Nigeria who shall be the Chairman

(b) the next most senior Justice of the Supreme Court who shall be the Deputy Chairman;

(c) the President of the Court of Appeal;

(d) five retired Justices selected by the Chief Justice of Nigeria from the Supreme Court or Court of Appeal;

(e) the Chief Judge of the Federal High Court;

(f) five Chief Judges of States to be appointed by the Chief Justice of Nigeria from among the Chief Judges of the States and of the High Court of the Federal Capital Territory, Abuja in rotation to serve for two years;

(g) one Grand Kadi to be appointed by the Chief Justice of Nigeria from among Grand Kadis of the Sharia Courts of Appeal to serve in rotation for two years;

(h) one President of the Customary Court of Appeal to be appointed by the Chief Justice of Nigeria from among the Presidents of the Customary Courts of Appeal to serve in rotation for two years;

(i) five members of the Nigerian Bar Association who have been qualified to practice for a period of not less than fifteen years, at least one of whom shall be a Senior Advocate of Nigeria, appointed by the Chief Justice of Nigeria on the recommendation of the National Executive Committee of the Nigerian Bar Association to serve for two years and subject to re-appointment.

Provided that the five members shall sit in the Council only for the purposes of considering the names of persons for appointment to the superior courts of record; and

(j) two persons not being legal practitioners, who in the opinion of the Chief Justice of Nigeria, are of unquestionable integrity.

Part 1, Section 21, Paragraph I of the Third Schedule to the Constitution of the Federal Republic of Nigeria (supra), the National Judicial Council shall have power to –

(a) recommend to the President from among the list of persons submitted to it by –

(i) the Federal Judicial Service Commission, persons for appointment to the offices of the Chief Justice of Nigeria, the Justices of the Supreme Court, the President and Justices of the Court of Appeal, the Chief Judge and Judges of the Federal High Court, and

(ii) the Judicial Service Committee of the Federal Capital Territory, Abuja, persons for appointment to the offices of the Chief Judge and Judges of the High Court of the Federal Capital Territory, Abuja, the Grand Kadi and Kadis of the Sharia Court of Appeal of the Federal Capital Territory, Abuja and the President and Judges of the Customary Court of Appeal of the Federal Capital Territory, Abuja;

(b) recommend to the President the removal from office of the judicial officers specified in sub-paragraph (a) of this paragraph and to exercise disciplinary control over such officers;

(c) recommend to the Governors from among the list of persons submitted to it by the State Judicial Service Commissions persons for appointments to the offices of the Chief Judges of the States and Judges of the High Courts of the States, the Grand Kadis and Kadis of the Sharia Courts of Appeal of the States and the Presidents and Judges of the Customary Courts of Appeal of the States;

(d) recommend to the Governors the removal from the office of the judicial officers in sub-paragraph (c) of this paragraph, and to exercise disciplinary control over such officers.

(e) collect, control and disburse all moneys, capital and recurrent, for the judiciary;

(f) advise the President and Governors or any matter pertaining to the judiciary as may be referred to the Council by the President or the Governors;

(g) appoint, dismiss and exercise disciplinary control over members and staff of the Council;

(h) control and disburse all monies, capital and recurrent; for the services of the Council; and

(i) deal with all other matters relating to broad issues of policy and administration.

It is pertinent to note particularly Section 21 (g) of Paragraph I of the Third Schedule to the Constitution which provides that the National Judicial Council has the power to appoint, dismiss and exercise disciplinary control over members and staff of Council.

It follows that the National Judicial Council has no iota of power to dabble into investigation of criminal allegations (such as the ones levelled against the Judges of the High Court and Justices of the Supreme Court arrested by the SSS in its sting operation carried out over the weekend) as some lawyers and commentators would want us believe.

If the framers of the Constitution intended that NJC should have power to investigate and prosecute Judges accused of criminality, they would have certainly said so.

OKOI OBONO-OBLA

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CCT Postpones Trial Of Bukola Saraki As Lawyers Again Challenge Jurisdiction Of Tribunal

The trial of Senate President Bukola Saraki has been postponed by one week as his lawyers led by Kanu Agabi SAN surprisingly submitted an application to the Code of Conduct Tribunal challenging the jurisdiction of the tribunal to try him for failing to declare his assets.

A lawyer said the application challenging the jurisdiction of the tribunal came as a surprise since the Supreme Court had settled the issue of jurisdiction in its ruling, he also indicated that Saraki’s lawyers had not be shared their application with prosecutors before the commencement of today’s tribunal sitting.

SaharaReporters had revealed that Saraki’s sudden change of his lead attorney was due to his belief that Mr. Agabi could influence the judge and prosecutor because he was at a time their principal both at his law firm as well as during his tenure as Nigeria’s attorney general.

The tribunal adjourned the case till Friday next week for the continuation of hearing.

Mr. Agabi later addressed the media claiming the fresh application was in the “interest of justice”

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Rivers APC Hails Nigerian Supreme Court As Wike Loses Appeal On Jurisdiction

The Rivers State Chapter of All Progressives Congress, APC, has lauded the Nigerian Supreme Court on its decision to throw out the bid by Wike to declare the sitting of the Rivers State Election Petition Tribunal in Abuja as being against the law.

The apex court in its ruling on Tuesday said that the President of the Court of Appeal acted in line with the ?law in transferring the sitting of the tribunal to Abuja for security reasons.

The court also affirmed the judgement of the Court of Appeal, which had earlier okayed the decision of the Tribunal to assume jurisdiction.

“As a party, the APC is grateful that all seven eminent jurists of the Supreme Court unanimously agreed that there was sufficient violence before; during and after the elections to justify the relocation of the tribunal to Abuja and that the relocation of the tribunal to Abuja was to safeguard the lives of the tribunal chairman, members and witnesses.”

“The apex court likened the violence in Rivers to that of a theatre of war such as is prevailing in the North-East”, the party said in a statement signed by its Publicity Secretary, Chris Finebone in Port Harcourt today.

The APC noted with delight that Justice Okoro from Akwa Ibom State not only concurred but went further to say that Rivers State was a theatre of war and as such protection of life and limbs of members of the panel and interested parties was paramount and thus relocation of the Panel imperative.

The APC also commended the eminent Supreme Court Justices for once again re-affirming that they always dispense justice without fear or favour, saying that this is “despite the frequent boasts by Nyesom Wike that he has all the Justices of the Supreme Court in his pocket, whatever that means.”

“The significance of all seven eminent Justices of the Supreme Court speaking in one voice in today’s judgment according to the APC, is that the faith, hope and confidence of the ordinary Nigerian to get justice is assured in the Nigerian judicial system.” ?

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Preliminary Objections (Contesting Jurisdiction Of A Court And Substantive Suits), A Battle Of Priority By Olamide Owolegbon

At the commencement of a suit and upon the service of the writ, a defendant’s counsel should first consider the crucial question of competence (likelihood of raising a preliminary objection contesting the jurisdiction of the court) , if upon careful perusal of the originating processes and statement of claim, it is clear that the objection would be granted. This is pertinent, as it prevents a situation where parties embark on an exercise in futility.

The supreme court in the case of “Abubakar & ors V. Nasamu and ors [2012] 5 SCM, 1” held that jurisdiction is crucial and radical issue and it is mandatory to first resolve it before proceeding with the suit, the reason behind this being that issue one in the briefs of all the parties in the four consolidated appeals is jurisdictional in nature, it is mandatory to first and foremost resolve it one way or the other before proceeding to considering other issue in the appeals on the merit. The reason being that jurisdiction is a radical and crucial question of competence. Once there is a defect in competence, it is fatal and the proceedings are a nullity.

In A.-G, Adamawa State v. A.-G., Fed. [2014] 14 NWLR (Pt.1428) 570 per OGUNBIYI J.S.C. rightly alluded to Order 29 Rule 1 of the Federal High Court Rules, 2009 which provides thus:

  1. where a defendant wishes to –

(a) dispute the Court’s jurisdiction to try the claim; or

(b) argue that the Court should not exercise its jurisdiction, he may apply to the Court for an order declaring that it has no such jurisdiction or should not exercise any jurisdiction which it may have, and the Court may take such application together with the Plaintiff’s substantive suit in so far as the substantive suit does not involve the taking of oral evidence.

The position aforementioned leaves the consideration of the hearing of the application for preliminary objection solely or jointly with substantive suit at the mercy of the court.

Then in Lafia L.G. V. Exec. Govt. Nasarawa State [2013] ALL FWLR (pt 668) 956 S.C. @982 para H per Rhode- Vivour JSC pointed out that  jurisdiction is fundamental in every suit. It is a threshold matter, so once raised,  must be decided quickly before anything else. This is so because if a court lacks jurisdiction to hear a case, but goes ahead to hear the case, no matter how well the case is decided, the entire proceedings would amount to a nullity. It is the life and soul of a case. It is so important that it can be raised at anytime in the court of first instance, on appeal, and even in the Supreme Court for the first time. It can also be raised suo motu provided counsels are given the opportunity to address the court on it before a decision is taken.

Also in Ajayi V. Adebiyi [2012] ALL FWLR (pt 634) 1 S.C. @30 para C per Adekeye JSC mentioned inter alia, it is noteworthy that an application or preliminary objection seeking an order to strike out a suit for being incompetent on the ground of absence of jurisdiction is not a demurer and therefore can be filed and taken even before the defendant files his statement of defence or without the defendant filing a statement of defence. The reason being that the issue of jurisdiction can be raised at anytime. In addition, the relevant things to be considered by the court in determining the issue of jurisdiction are the facts as deposed to in affidavits, writ of summons and the statement of claim where one had to be filed and served. The statement of defence is not one of the relevant materials for that purpose.

In the case of National Deposit Insurance Corporation V. Central Bank of Nigeria (2002) FWLR (pt 99) 1021, the court identified the difference between demurrer and objection to jurisdiction by holding that “there is distinction between objection to jurisdiction and demurrer. It is misleading to equate demurrer with objection to jurisdiction. It is a standing principle that in demurrer, the plaintiff must plead and it is upon the pleading that the defendant will contend that accepting all facts pleaded to be true, the plaintiff has no cause of action, or where appropriate, no locus standi. The issue of jurisdiction is not a matter for demurrer proceedings. It is much more fundamental than that and does not entirely depend as such on what a plaintiff may plead as facts to prove the relief he seeks. What it involves is what will enable the plaintiff to seek a hearing in court over his grievance and get it resolved because he is able to show that the court is empowered to entertain the subject matter. It does not always follow that he must plead first in order to raise the issue of jurisdiction”

It is true that once an issue of jurisdiction is raised in any suit, the court must not give an order in the suit affecting the defendant until the issue of jurisdiction is settled. The trial court obviously made a wrong order in dismissing the application of the appellant based on issues of jurisdiction, locus standi of the plaintiff / respondent and limitation law.

In the case of  Petrojessica Enterprises Ltd v. Leventis Technical co ltd (1992) 5 NWLR (pt.244) 675 at 693, it was held that jurisdiction is the very basis on which any tribunal tries a case. It is the lifeline of all trials. A trial without jurisdiction is a nullity. This importance of jurisdiction is the reason why it can be raised at any stage of a case be it at trial.

Wrapping up, I submit that where preliminary objection touches upon the competence of the action or on the jurisdiction of the court to entertain same, it would be impulsive and reckless for any court to proceed with a suit which is deficient in that respect, as any proceedings or decision taken without jurisdiction, no matter how brilliantly or fussily conducted, would amount to nullity. As you cannot place something on nothing and expect it to stand. It will simply crumple like a pack of cards.

 

Olamide Owolegbon Esq.

@olamide_kaka

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