Justice Hyeladzira Nganjiwa of the Federal High Court in Bayelsa scheduled to be arraigned in Lagos on Monday for alleged unlawful financial enrichment was stalled as a result of his absence in court.
His lawyer, Mr Robert Clarke (SAN) told the court that Nganjiwa was absent because he could not get a flight from Bayelsa to
“Today’s absence is not deliberate, this is a sitting judge of a federal high court. He called me and said that he could not get a
flight to Lagos,’’ he said.
However, Clarke had opposed the arraignment of the judge before a Lagos High Court sitting in Igbosere.
Newsmen report that the Economic and Financial Crimes Commission (EFCC) had slammed a 14-count charge bordering on unlawful financial enrichment to the tune of $260,000 (approximately N81.7 million) and N8.7 million against the judge.
But Clarke said the court presided over by Justice Adedayo Akintoye lacked the jurisdiction to hear and determine the case.
He said that his objection was brought pursuant to Section 6 (6), (a) of the 1999 Constitution.
According to him, the defendant, who is a sitting judicial officer as defined in the constitution, can only subject himself to the discipline of the National Judicial Council (NJC).
He insisted that any misconduct of a judicial officer should, in the first instance, be looked into by the NJC.
“Therefore, this case should be dismissed and due process followed.
“The prosecutor instituted a criminal charge against the defendant while occupying a judicial office.
“The prosecutor is EFCC for the Attorney General of Lagos State, who are both members of the executive arms of government, ” Clarke told the court.
“The 1999 Constitution as amended ensures separation of powers within the arms of the government and provides for discipline of erring judicial officers.”
He argued that the information filed offended the provisions of Section 158 (1) and paragraph 21 of the Third Schedule of the Constitution which established judicial precedents and authorities.
Clarke added:“This honourable court lacks the jurisdiction to try the defendant on the basis of the offences contained in the information.’’
But the EFCC Prosecutor, Mr Rotimi Oyedepo, urged the court to dismiss the preliminary objection, pointing out that the application is asking the court to immune the defendant from prosecution because he is a sitting judge.
Oyedepo cited Sections 308 and 35 (1) (c) of the Constitution to puncture the argument of the defence counsel on the issue of a sitting judge not being prosecuted.
He said that the defendant did not fall within the persons mentioned in provisions of Section 3 and therefore, could not enjoy immunity from prosecution.
Oyedepo also said that the NJC only had administrative disciplinary sanction against the misconduct of the defendant.
“The charge is not against the NJC, the charge is against Nganjiwa in his personal capacity.
“The applicant (defendant) misconstrued the charge, we are not asking for the removal of the applicant from office.
“The misconduct in the charge which constitutes an offence in Lagos State is still liable to be determined by this court.
“The charge is brought pursuant to Section 82 of the Criminal Law of Lagos State and Section 39 of the EFCC Act which alleged that the applicant, being a public official, enriched himself unlawfully,” he said, insisting that the court had jurisdiction to interpret the information.
“I urge this court to dismiss the objection and call the defendant to take his plea,’’ Oyedepo pleaded.
Justice Akintoye adjourned the case until June 23 for ruling on the preliminary objection.
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