By Prof Mike Ozekhome, SAN, CON, OFR, FCIArb, LL.M, Ph.D.
INTRODUCTION
The NJC under the current leadership of the Honourable Justice Olukayode Ariwoola, GCON, the Honourable Chief Justice of Nigeria, appears to be a retooled, re-invigorated, renewed and re-engineered NJC. It obviously seeks for justice – pure and undiluted justice. It shows humility and circumspection in handling matters. It bows to the superior reasoning in judgments delivered by competent courts of law. It accepts man-made errors. It does not attempt to play God; or hold aloft a presumptuously stainless banner of infallibility – an attribute belonging only to God Almighty. It does not arrogate to itself sainthood.
No doubt, it appears the members do read widely. They follow happenings in the land. They gauge the public temperature – especially with the barometer of stake-holders in the justice sector. The NJC just demonstrated these rare qualities in recalling and reinstating the Hon Justices Gladys Olotu and James Agbadu-Fishim. The NJC was mindful of its powers donated to it in sections 6, 153(1)(i), 158, 292(1) and paragraph 21(b) of the Third Schedule to the 1999 Constitution, as altered. It had, earlier, duly exercised these powers in reinstating Hon Justice Rita Ofili-Ajumogobia after winning her cases in several courts of law. It was the triumph of justice over brute force; the triumph of the Rule of law, rather than the rule of might or rule of the thumb. The NJC on 17th January, 2022, has also just done the right thing by recalling and reinstating the Hon Justices Gladys Olotu and James Agbadu-Fishim at the NJC’s 100th meeting.
SOME BACKGROUND FACTS
The above Jurists had fully exonerated by courts of competent jurisdictions after having their day in court; going through the ordeal of court trial; public trial, odium and opprobrium; mental torture and psychological trauma, spanning many years. Let us consider the case of a very brilliant Judge like Olotu, who was appointed a Judge of the Federal High Court on July 28, 2000; resumed duties on September 1, 2000; but compulsorily retired on February 27, 2014, after 14 years of meritorious service to her fatherland. Here is a Judge who had been glowingly recommended for elevation to the Court of Appeal Bench in 2013, by no less a person than the legal prodigy, doyen of Edo lawyers and leader of the Bar in the South-South, Chief K. S. Okeaya-Ineh. Her dreams evaporated; at least, temporarily. But, God always rights wrongs. Dissatisfied with her wrongful and premature termination of her appointment, Olotu took her case to the National Industrial Court of Nigeria (NICN), where she lost. She then appealed to the Court of Appeal in search of justice. In a lead judgment delivered by Hon Justice D. Z. Senchi, sitting on a panel presided over by Hon Justice Peter Ige, Olotu not only had her compulsory retirement by the NJC reversed; the Court of Appeal also ordered that she be paid and accorded all her benefits and privileges as a serving Judge of the Federal High Court. The court held that the “finding of the trial court is perverse, wrong and a miscarriage of justice…The decision of the trial court breached the right of the Appellant to fair hearing and such decision is a nullity”.
Hon Justice James Terseer Agbadu-Fishim, a Ph.D holder, author, prolific writer and former Senior Lecturer at the University of Abuja and Federal Polytechnic, Ilaro, Ogun State, had been arraigned in court for allegedly receiving N4.8 million from some senior lawyers, including some SANs, which the EFCC claimed amounted to unlawful enrichment. In his defence before the NJC, the cerebral Judge demonstrated graphically how the said sums were given to him by the lawyers, who had either been his friends for decades, or teaching colleagues. He averred that they never at any point in time had any influence over any of his judgments. Indeed, to his solid credit and character, one or two of the lawyers who gave him some money upon his bereavement and who had appeared before him, lost all their cases. Knowing that he was merely doing his job having taken the judicial oath of office, that never stopped them from providing succour to a friend who was in dire need, having lost his father, mother and in-law in quick succession. Hon Justice Raliat Adebiyi had no difficulty striking out the frivolous charges, following the decision in NGAJIWA V. FRN (2017) LPELR-43391(CA); a decision later upheld on 30th of May, 2022, by the full constitutional court of 7 Justices of the apex court.
The NJC did not bother to appeal Agbadu-Fishim’s victory, even as it did erroneously did in Olotu’s case. I had kicked against such a stance of the NJC appealing judgments which had faulted its disciplinary procedures and actions against Judges, based on insufficient facts. Now, a Daniel has come to judgment in the NJC. They appeared to have heard and worked with my humble opinion generated from a pure heart, in my uncommon defence of a beleaguered and traumatised Judiciary. In my piece dated December 15, 2022, titled, “Re-instatement of Hon Justice Ofili-Ajumogobia: Pristine Justice Finally Served”, which was widely published (see https://saharareporters.com/2022/12/15/re-instatement-hon-justice-ofili-ajumogobia-pristine-justice-finally-served-chief-mike; https://leadership.ng/ozekhome-hails-njc-for-reinstating-ajumogobia/; https://www.vanguardngr.com/2022/12/examining-njcs-reinstatement-of-justice-ofili-ajumogobia/; https://guardian.ng/opinion/reinstatement-of-justice-ajumogobia-and-matters-arising/), I wrote as follows:
“It remains to be said that the Common law or Anglo-Saxon system of jurisprudence which we operate in Nigeria is accusatorial and not the French model, which is inquisitorial. This means that a person is presumed innocent until proven guilty by the State, unlike the latter which is the other way round: a defendant is presumed guilty until he or she proves his or her innocence. Accordingly, to the extent that Hon. Justice Ajumogobia has undergone the rigours of a trial and came out unscathed, it is uncharitable for anyone to insist that she should continue to prove her innocence, as it were.
The role of the NJC in all this also deserves some commentary. This is because, as a constitutional body, its role should be no more than to dispassionately investigate allegations of misconduct against Judges and, where unproven or disproved, it should promptly reinstate them – in case they have been interdicted. Under no circumstances should NJC go so far as to appeal against a decision of a court which exonerates a judicial officer-as it is currently doing in respect of Hon. Justice Olotu and Agbadu-Fishim. This is wrong, and the NJC should discontinue and withdraw those appeals forthwith.
The NJC should only indict Judges in the clearest of cases and should not allow itself to be used, wittingly or unwittingly, by the other arms of Government (particularly the Executive), to hound or persecute hapless Judges. That would be grossly unfair; it amounts to a flagrant affront on the Constitution. Those arms of Government should first cleanse their Augean stables – where confirmed cases of corruption-on-steriods abound – before turning to the Judiciary. This is because, compared to them, the Judiciary – as a body – is a Saint”. And the NJC heard me loud and clear.
I am an Essayist and a prose writer; more, with all humility, in the mould of Chinua Achebe; George Orwell; James Baldwin; Joan Didion; and Elechi Amadi and Chimanda Adichie. I am certainly not a Poet – not a Wole Soyinka; Ola Rotimi; William Shakespeare; John Keats; T.S. Eliot; or John Milton. But, on this particular occasion, let me try my hands on a poem in honour of a reinvigorated and justice-driven NJC. Permit the poem’s obvious inelegance and inadequacy. Please, read on:
“As vocations go, theirs is possibly the most thankless of all;
Sitting in judgment, handing down sentences, reprieving some; yet condemning others, men and women;
But, over-worked, overwhelmed, underpaid, under-rated;
Peanuts they are paid; they retire into penury. Without roof or future, they despair; Suffering and smiling (aka, Fela Anikulapo Kuti), they pretend all is well. But, all is not well at all;
Such is the lot of Judges, since the dawn of time; and across the world.
Harassed by the Legislature; pauperized by the Executive;
Hounded on false allegations by hooded security agents;
Condemned by convention to reticence; and sworn to silence;
They are to be seen and not heard unless when delivering their verdicts.
They occupy the Judiciary, the weakest of the 3 arms of the State;
So said Alexander Hamilton in his Federalist Paper No.78;
Yes, indeed, because, it possesses neither purse nor sword;
Ever at the mercy of other arms, it is always forlorn.
Castigated and vilified by losers; but eulogised and celebrated by winners;
Yes, they do wield the axe of contempt, but it hardly deters;
So, in a curious paradox, they are most vulnerable, despite possessing enormous powers;
Being targeted by agents of the State and bearing the ire of sore losers.
The former includes the EFCC, ICPC, SSS and Policemen (both secret and not-so-secret);
And the Judges’ regulator – made up of fellow Judges -is the NJC;
It’s brief – to probe and punish judicial misconduct – is occasionally flawed;
Leading, ironically, to such injustice which can only be reversed in courts of law.
Such was the unfortunate fate of Justices Rita Ofili-Ajumogobia, Gladys Olotu and Agbadu-Fishim;
There were others – Justices Sylvester Ngwuta (JSC, now late); Niyi Ademola (rtd), H.A. Ngajiwa, and Musa Kurya;
Having been unjustly and wrongfully indicted and removed from office by the NJC, they were exonerated;
Whilst Ajumogobia was recently reprieved, Olotu and Agbadu-Fishim were initially not so lucky. They waited with bated breath and suspended animation for justice to come;
The Sword of Damocles still dangled over their innocent heads as they still lived in dread of the unknown.
Justices Ngwuta and Ademola had been similarly roped-in but escaped fortuitously; Ngwuta died shortly after- the aftermath of his ordeal, many believed; Ademola retired voluntarily after his acquittal;
The case of the former Chief Justice of Nigeria, Walter Samuel Nkanu Onnoghen (retd); was particularly egregious, having been dispatched from his exalted seat via a mere ex-parte order;
He was humiliated out on completely State-instigated trumped-up charges; The shame of a Nation!
Prompting the question: “where was the justice in all this?”;
Is it fair for judicial officers who have served their country well to be so humiliated, traumatised and hounded out of office?;
Is that how to reward them for the yeoman’s job they do?
The answer is obvious — and it was supplied by courts, too – No!
So, the apex court weighed in, in the causa celebre, NGANJIWA V FRN;
As a precedent, the case has changed the narrative, the goal-post of persecution by a vicious Executive;
Henceforth, no judicial officer can be indicted and removed from office unless the NJC says so after first investigating him;
Thus, ensuring that other innocent Judges suffer no such poor fate.
In those dark days, spoke I fiercely and fearlessly in Judges’ defence;
Very few joined me. Most scampered and supported the powers-that-be; in the name of fighting corruption; Courage took flight from them;
I pleaded with the NJC to reinstate the vindicated Justices; for they had been pronounced innocent;
And their exoneration had come through the courts – the last hope of the common man- and woman;
NJC fully agreed with me and fully reinstated them – to my eternal gratitude;
NJC, thank you sirs. Relent not in doing good.
It can safely be said that none of these Jurists suffered in vain;
They have unwittingly made history; and written their names in gold;
Their traducers, on the contrary, now hide their heads in shame;
The would-be preys prevailed; and over them, a light was shown;
The victims became the victors; the preys, the predators; what an oxymoron! What an irony! Life. God, how awesome thou art.
The light of justice – ever bright, luminous, constant; and incandescent;
Unwavering, unflickering, like the Northern Star;
Thus, proving, yet again, the triumph of good over evil;
Light over darkness and the virtue of rectitude over infamy.”