By CHRIS EKEKE, Abuja
Justice Hyeladzira Nganjiwa of the Federal High Court Tuesday challenged the powers of the Lagos State High Court sitting in Igbosere to try him over allegations of unlawful enrichment to the tune of $260,000 and N8,650,000 brought against him by the Economic and Financial Crimes Commission (EFCC).
Justice Nganjiwa, who is one of the five judicial officers recently recalled from suspension by the National Judicial Council (NJC), was to be arraigned by the EFCC on Tuesday on a 14-count charge filed before Justice Adedayo Akintoye but he failed to turn up in court.
Instead his lawyer, Robert Clarke (SAN) filed a preliminary objection insisting that the court did not have the jurisdiction to hear the case because it is only the NJC that is constitutionally empowered to discipline a serving judge.
Justice Nganjiwa also argued through his lawyer that that the charge ‘improperly’ addressed him by not referring to him as a judge.
Clarke, who cited Section 6 (6)(a) of the 1999 Constitution, submitted that the due process of law requires that any misconduct committed by a sitting judicial officer should firstly be investigated and handled by the NJC.
The senior lawyer said, “The prosecutor instituted a criminal charge against the defendant while he occupies a judicial office.
“The prosecutor is EFCC for Attorney-General of Lagos State, who are both members of the executive arms of government.
“The 1999 Constitution of Nigeria as amended has ensured separation of powers within the arms of the government and provided for discipline of erring judicial officers.
“The information filed offends the provisions of Section 158 (1) and Paragraph 21 of the third schedule of the constitution which established judicial precedents and authorities.
“This honourable court lacks the jurisdiction to try the defendant on the basis of the offences contained in the information.
“I’ll urge your Lordship to strike out the charge and follow due process,” Clarke said.
However, EFCC counsel, Rotimi Oyedepo, expressed sadness over the non-appearance of the embattled judge and urged the court to dismiss the preliminary objection for lack of merit.
Oyedepo submitted that “We are extremely disappointed by the willful refusal of the defendant to appear before my Lord. The defendant was served with the charge which he duly acknowledged. He was also informed of the proceedings before my Lord today.
“The issue as to the status of the defendant is not the issue before the court. As a matter of fact, before this court, all animals are equal. His status has nothing to do with his appearance,” he maintained.
The EFCC lawyer further contended that the application by the defence, “is asking the court to immune the defendant from prosecution because he is a sitting judge.”
Oyedepo, who cited Sections 308 and 35 (1) (c) of the Constitution to support his argument, stated that the defendant does not fall within the person’s immune from prosecution.
He also said the NJC has only administrative disciplinary powers to sanction the defendant for any misconduct.
The lawyer submitted that, “The charge was brought 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.
“It means that the court has jurisdiction to interpret the information. I urge this court to dismiss the objection and call the defendant to take his plea.”
Justice Akintoye after listening to the lawyers, adjourned the case until June 23 for ruling on the preliminary objection.
She, however informed Clarke to ensure that his client appear before the court on that date.
The commission in the charge marked LD4769C/17, accused Justice Nganjiwa of unlawfully receiving the monies (approximately N81,705,000) in naira and United States dollars.
The EFCC claimed that the $260,000 was paid into the judge’s personal account with Guaranty Trust Bank (GTB) in four tranches including $144,000 and $102,000, between January 18 and December 16, 2013 and January 6 to November 17, 2014.
The last two dollar payments of $10,000 and $4,000 were allegedly made on March 27, and April 30, 2015.
The judge also allegedly received through his Access Bank corporate account in the name of Awa-Ajia Nigeria Ltd, the sums of N750,000, N300,000, N5,000,000, N5000,000, N500,000, N500,000, N500,000, N100,000 and N500,000 (totaling N8,650,000).
The inflows were allegedly received on April 8, 17, 24 and November 8, 2013, April 10, September 16 and 28, 2014, October 30 and November 27, 2015, February 8, 2016.
The EFCC said the judge got the money, “so as to have a significant increase in your assets that you cannot reasonably explain the increase in relation to your lawful income.”
The agency also accused the judge of making a false statement to two of its officers on October 17, 2016 that the Awa-Ajia Nigeria Ltd account “was not operational by the time I was appointed.”