The topic of this paper is an offshoot of the nationwide debate over the case against Honourable Justice Walter Samuel Nkanu Onnoghen at the Code of Conduct Tribunal which came up for the first time on 14 January 2018.
It is a six-count charge bordering on failure to declare his assets and operating a domiciliary account. He was charged with contravening the provisions of section 15(1) of the Code of Conduct Bureau and Tribunal Act Cap C15 Laws of the Federation of Nigeria 2004 and punishable under section 23(2) a, b, c, of the same Act.
The matter is pending at the Code of Conduct Tribunal and so our discussion here will be guided by the doctrine of sub judice. We shall also be guided by the principle that the construction of any document including the Constitution is a holistic endeavour.
See Tukur v. Government of Gongola State  4 NWLR (pt 117) 517, 579.
Thus, in interpreting the Constitution, a narrow interpretation which would do violence to its provisions and fail to achieve the goal set by the Constitution must be avoided.
Consequently, where alternative constructions are equally available, the construction that is consistent with the smooth working of the system, which the Constitution, read as a whole, has set out to regulate, is to be preferred.
See Dapianlong v. Dariye (2007) 8 NWLR (pt 1036) 239.
As noted by Nweze JSC in Saraki v FRN (2016), the principle that underlies this construction technique is that the Legislature would legislate only for the purpose of bringing about an effective result:
IMB v. Tinubu (2001) 16 NWLR (Pt.740) 690;
Tukur v. Government of Gongola State  4 NWLR (pt 117) 517, 579;
Aqua Ltd v O. S. S. C.  4 NWLR (pt 91) 622;
Ifezue v. Mbadugha  15 NSCC 314;
Nafiu Rabiu v. The State (1980) 8-9 SC 130.<br>
His Lordship also noted that this approach is consistent with the “living tree” doctrine of constitutional interpretation enunciated in Edward v. Canada  AC 124 which postulates that the Constitution “must be capable of growth to meet the future,”
N. K. Chakrabarti, Principles of Legislative and Legislative Drafting, (Third Edition) (Kolkata: R. Cambray and Co. Private Ltd, 2011) 560, citing Graham, “Unified Theory of Statutory Interpretation,” in Statute Law Review Vol 23, No 2, July, 2002 at 91 – 134.I.
II. JURISDICTION AND STATUS OF CODE OF CONDUCT TRIBUNAL:
The Code of Conduct Tribunal is a creation of the Constitution. See paragraph 15(1) Part I Fifth Schedule.
It is composed of three members and though not specifically mentioned as a superior court of record, it enjoys the same hierarchical status as a court of record for the following reasons:
A member of Code of Conduct Tribunal holds office till he attains the age of seventy years.
See paragraph 17 (1) Fifth Schedule Part I.
Note that statutory retirement age of seventy years is only available to the Justices of the Court of Appeal and the Supreme Court.
A member of Code of Conduct Tribunal may be removed from office only by the President upon an address supported by two-thirds majority of each House of the National Assembly.
See paragraph 17(3) Fifth Schedule Part I.
Note that removal of justices of the superior courts of record including the Chief Justice of Nigeria requires two-thirds majority of the Senate only. See section 292(1)(a)(i) of the 1999 Constitution.
An appeal against decisions of the Code of Conduct Tribunal shall lie as of right to the Court of Appeal.
See section 246 CFRN; paragraph 18(4) Fifth Schedule Part I.
Rules of court for the time being in force regulating the powers, practice and procedure of the Court of Appeal shall apply to matters of appeal.
See Paragraph 18 Fifth Schedule Part I.
A person does not qualify to be the Chairman of the Code of Conduct Tribunal unless he has held or is qualified to hold office as a Judge of a superior court of record in Nigeria.
See paragraph 15(2).
Indeed, it is not an inferior court. Thus, the provisions of the Constitution relating to prerogative of mercy shall not apply to any punishment imposed by the Code of Conduct Tribunal.
It should be noted that although the Code of Conduct Tribunal is not specifically mentioned as a superior court of record, there are three categories of superior court of record under section 6(5)of the Constitution, namely those courts specifically mentioned and those not specifically mentioned which are of two types.
The latter comes under the provisions of (i) and (k) thus:
Such other courts as may be authorised by law to exercise jurisdiction on matters with respect to which the National Assembly may make laws; and
Such other courts as may be authorised by law to exercise jurisdiction at first instance or on appeal on matters with respect to which a House of Assembly may make laws.
In other words, such other courts not specifically mentioned are superior courts of record.
Furthermore, in Saraki v. F.R.N. (2016) 3 NWLR (Pt. 1500) 531 at p. 579, the Supreme Court per Onnoghen, JSC (as he then was) held thus:
“From the totality of the provisions it is my view that it is clear that the intention of the legislature is to make the proceedings of the tribunal criminal proceeding to be regulated by criminal Procedure.”
Contrary to a popular view, the point should be made that the Supreme Court in Saraki v. F.R.N did not resolve the issue of whether or not the Code of Conduct Tribunal is a superior court of record.
However, in Metuh v FRN (2017) All FWLR @ 748-9 SC, Ogunbiyi, JSC stated in passing that the Supreme Court in Saraki v. F.R.N held that the Code of Conduct Tribunal is not a superior court of record. Please, read the cases.
From the foregoing, the Code of Conduct Tribunal is not inferior to a High Court. Both are courts of coordinate jurisdiction.
III. JURISDICTION OF NATIONAL JUDICIAL COUNCIL:
National Judicial Council is an executive body created under section 153 of the 1999 Constitution.
It is composed of 24 members, 19 of whom are appointed by the CJN. It is primarily an executive body. This is why it collects, controls and disburses all moneys, capital and recurrent, for the judiciary and the Council. Its disciplinary power is limited to judicial officers and members and staff of the Council.
IV. DISCIPLINARY POWERS OF THE NATIONAL JUDICIAL COUNCIL AND THE CODE OF CONDUCT TRIBUNAL
Whereas the disciplinary power is limited to judicial officers (not below the office of a High Court judge) and members and staff of the Council, the disciplinary power of the Code of Conduct Tribunal extends to all public officers in any arm of the government or State of the Federation. Thus, the Code of Conduct Tribunal has no jurisdiction over a non-public officer.
V. CHARGE AGAINST JUSTICE WALTER SAMUEL NKANU ONNOGHEN
A charge CCT/ABJ/01/19 was brought in the name of Federal Republic of Nigeria against Walter Samuel Nkanu Onnoghen, the incumbent Chief Justice of Nigeria, before the Code of Conduct Tribunal. See section 24(2) of the Code of Conduct Bureau and Tribunal Act.
The charge relates to allegedly breach of the Code of Conduct Bureau and Tribunal Act between 2005 and 2016. Where the issue is breach of the Code of Conduct Act, the Code of Conduct Tribunal is the appropriate forum.
See paragraph 12 Fifth Schedule Part I;
Ebere v. Imo State University (2016) LPELR-40619(CA);
Ahmed v. Ahmed (2013) LPELR- 21143 SC;
Ogbuagu v. Ogbuagu (1981) N.C.L.R 690.
It should be noted that public officer for the purposes of the Code of Conduct includes the Chief Justice of Nigeria.
See paragraph 19 Part I of the Fifth Schedule to the Constitution.
VI. RULE IN NGANJIWA V FRN
The rule in Nganjiwa’s case is that a judicial officer, though a public officer, shall not be brought before any institution for disciplinary purposes unless the National Judicial Council has had an opportunity to investigate him on the allegation.
The Court of Appeal in that case held thus:
Whenever a breach of judicial oath occurs, it is a misconduct itself, then the NJC is the appropriate body to investigate such breaches by the judicial officer and if found to be so, such judicial officer shall face disciplinary action and the NJC may recommend the removal of such a judicial officer to the appropriate authority which is either the President in the case of a Federal Judicial Officer or the Governor of the State in the case of a State Judicial Officer and/or take other actions appropriately. When this is done and accepted by the appropriate authority in compliance with the provisions of the Constitution, then the relevant law enforcementAgent or Agency is at liberty to make the said judicial officer face the wrath of the law.
Any act done by the law enforcement Agent or Agency in violation of the above is tantamount to denying the NJC its powers to discipline Judges in accordance with the provisions of Section 153(1) and Paragraph 21 Part 1 of the Third Schedule of the 1999 Constitution (as amended). See Paragraph 21 (a) & (b) of the Third Schedule, Part 1 of the 1999 Constitution (as amended) respectively. Whenever there is an allegation of official misconduct against a judicial officer and the above stated process is not adhered to, it amounts to jumping the gun and ipso facto a direct violation of the Constitution. Recourse to the National Judicial Council is a condition precedent as clearly set out by the Constitution, and any attempt by any Agency of Government to by-pass the Council will amount to failure to observe condition precedent thereby leading to flagrant violation of the Constitution.
VII. APPLICATION OF NGANJIWA V FRN IN NGWUTA’S CASE AT THE CODE OF CONDUCT TRIBUNAL
In FRN v Syslvester Nwali Ngwuta (unreported) CCT/ABJ/01/2017 dated 9 Jan 2018, the Code of Conduct Tribunal followed or applied the decision in Nganjiwa v FRN, struck out the charge against Justice Ngwuta by holding thus:
It is hereby held that the defendant/applicant, though a public officer, is also a judicial officer, and subject first to the discipline and management of the National Judicial Council. This is in line with section 158(1) of the 1999 Constitution of the Federal Republic of Nigeria, Paragraph 21(B) of Part 1 of the Third Schedule of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and the decision of the Court of Appeal in the case of Nganjiwa v FRN (supra), which forms a precedent binding on this Tribunal. Our hands are tied in light of the foregoing decision.
VIII. POLICY IMPLICATIONS OF NGANJIWA V FRN
It appears that Nganjiwa v FRN has been appealed to the Supreme Court. However, one may say that the Court of Appeal in that case did not point to any express provision of the Constitution which makes investigation of a judicial officer by the National Judicial Council a condition precedent to the proceedings before the Code of Conduct Tribunal. The powers and scope of jurisdiction of each institution are expressly provided in the Constitution. Each institution has its role.
As held in Ahmed vs. Ahmed (2013) 15 NWLR (Pt.1377) 274 SC,
“The Code of Conduct Tribunal has been established with exclusive jurisdiction to deal with all violations contravening any of the provisions of the Code as per Paragraph 15(1). This provision has expressly ousted the power of ordinary regular Courts in respect of such violation. The tribunal to the exclusion of other Courts is also empowered to impose any punishment as specified in Subsection (2)(a)(b) of Paragraph 18
It follows that the proceedings of the National Judicial Council on allegations bordering on contravention of the Code of Conduct are irregular and, unless expressly provided, cannot be a condition precedent to the exercise of the exclusive jurisdiction of the Code of Conduct Tribunal.
The sanctions given by the National Judicial Council are merely declaratory or recommendatory and, therefore, not binding.
On the other hand, the sanctions by the Code of Conduct Tribunal are executory and binding and may give similar sanction as an Election Tribunal or a Court.
For example, it may order vacation of office or seat in any legislative house.
See Paragraph 18(2)(a) Part I of the Fifth Schedule to the Constitution.
Furthermore, whatever the decision of the National Judicial Council on a matter is, it has no influence on the proceedings of the Code of Conduct Tribunal. This is so because both institutions may arrive at different decisions on the same issue.
Finally, where a public officer is brought before the Code of Conduct Tribunal, such a person is there as a public officer only. Thus, the charge does not reflect his title such as “Honourable Justice …”.
In other words, if the National Judicial Council investigates a matter of misconduct against a judicial officer and exonerates him, the Code of Conduct Tribunal should not be precluded from prosecuting the same person as a public officer and finding him guilty of the same misconduct.
According to the Court of Appeal in Nganjiwa v FRN, if the National Judicial Council investigates a matter of misconduct against a judicial officer, finds him culpable and recommends (to the President or the Governor) that he be relieved of his job, it is
“when this is done and (the recommendation) accepted by the appropriate authority …(that) the relevant law enforcement agent or agency is at liberty to make the said judicial officer face the wrath of the law”
such as prosecution at the Code of Conduct Tribunal.
The implications of Nganjiwa v FRN are far-reaching.
First, if the National Judicial Council investigates a matter of misconduct against a judicial officer and exonerates him, the Code of Conduct Bureau should not prosecute him because he remains a judicial officer.
Second, if the National Judicial Council delays in its investigation or its outcome, the Code of Conduct Bureau must wait for the National Judicial Council till whatever time it takes.
Third,if the appropriate authority receives the recommendation ofthe National Judicial Council but does nothing, the Code of Conduct Bureau must fold its arms in wait.
Fourth, if the appropriate authority does not accept the recommendation of the National Judicial Council, the Code of Conduct Bureau must not institute any proceedings.
Fifth,the Court of Appeal in Nganjiwa v FRN split a misconduct into two types and held thus:
“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 the performance of his official functions, he may be arrested, interrogated and prosecuted accordingly by the State DIRECTLY without recourse to the NJC.These classes of criminal acts are not envisaged and captured by the provisions of Paragraph 21, Part 1 of the Third Schedule. On the other hand, if any Judicial Officer commits a professional misconduct within the scope of his duty and is investigated, arrested and subsequently prosecuted by security agents without a formal complaint/report to the NJC, it will be a usurpation of the latter’s constitutionally guaranteed powers under Section 158 and Paragraph 21 Part 1 of the Third Schedule, thereby inhibiting, and interfering with and obstructing the NJC from carrying out its disciplinary control over erring judicial officers as clearly provided by the Constitution.”
This categorization may result in confusion. For example, if a judicial officer commits assault in office, is it a misconduct that requires the National Judicial Council to take a decision on it before any law enforcement agent may take up the matter?
It, therefore, shows that, besides the absence of any express provision for what the Court of Appeal termed a condition precedent, there is no justification for it.
Section 172 of the Constitution provides:
A person in the public service of the Federation shall observe and conform to the Code of Conduct.
By paragraph 19 Part I of the Fifth Schedule to the 1999 Constitution, public officers for the purposes of the Code of Conduct includes the Chief Justice of Nigeria.
Whether or not the investigation by the National Judicial Council precedes the proceedings at the Code of Conduct Tribunal, the fact that a public officer is alleged to have contravened the Code of Conduct Bureau and Tribunal Act cannot be wished away. It is a matter of time.
Nevertheless, proof of the allegation is a burden that must be discharged and the Code of Conduct Tribunal must have genuine reason to depart from Ngwuta’s case or not to follow Nganjiwa’s case.