FRN v. NGANJIWA (2022)

FRN v. NGANJIWA

(2022)LCN/16351(CA)

In The Supreme Court

On Friday, May 27, 2022

SC.794C/2019

Before Our Lordships:

Olukayode Ariwoola Justice of the Supreme Court of Nigeria

Chima Centus Nweze Justice of the Supreme Court of Nigeria

Amina Adamu Augie Justice of the Supreme Court of Nigeria

Uwani Musa Abba Aji Justice of the Supreme Court of Nigeria

Helen Moronkeji Ogunwumiju Justice of the Supreme Court of Nigeria

Adamu Jauro Justice of the Supreme Court of Nigeria

Emmanuel Akomaye Agim Justice of the Supreme Court of Nigeria

Between

FEDERAL REPUBLIC OF NIGERIA APPELANT(S)

And

HON. JUSTICE HYELADZIRA AJIYA NGANJIWA RESPONDENT(S)

RATIO:

PRINCIPLE GUIDING THE INTERPRETATION OF THE CONSTITUTION

From an intimate reading of the alluring reasoning in these decisions, the following broad rules, among others, may be concreted:
(a) there is the very fundamental prescription that, in interpreting the Constitution – which is the supreme law of the land – mere technical rules of interpretation of statutes are, to some extent, inadmissible in a way so as to defeat the principles of government enshrined therein, Nafiu Rabiu v State [1980] N. S. C. C. 292, 300; A-G For North South Wales v B. E. U. N. S. W. (supra), approvingly, adopted in Bank of New South Wales v The Commonwealth (supra).
Accordingly, where the question is whether the Constitution “has used an expression in the wider or in the narrower sense … this Court should, whenever possible, and in response to the demands of justice, lean to the broader interpretation, unless there is something in the text or in the rest of the Constitution to indicate that the narrower interpretation will best carry out the objects and purpose of the Constitution,” Nafiu Rabiu v State (supra).

PRINCIPLE GUIDING THE INTERPRETATION OF THE CONSTITUTION

Above all, the rationale of all binding authorities is that a narrow interpretation that would do violence to its provisions and fail to achieve the goal set by the Constitution must be avoided. Thus, where alternative constructions are equally open, 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, Dapianlong v Dariye [2007] 8 NWLR (pt 1036) 239.

PRINCIPLE GUIDING THE INTERPRETATION OF THE CONSTITUTION

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 [1989] 4 NWLR (pt 117) 517, 579, Aqua Ltd v O. S. S. C. [1985] 4 NWLR (pt 91) 622; Ifezue v Mbadugha and Anor [1984] 15 NSCC 314; Nafiu Rabiu v The State [1980] 8-9 SC 130.

THE LIVING TREE DOCTRINE OF CONSTITUTIONAL INTERPRETATION

This approach is consistent with the ‘living tree’ doctrine of constitutional interpretation enunciated in Edward v Canada [1932] AC 124 which postulates that the Constitution ‘must be capable of growth to meet the future,’ N. K. Chakrabarti, Principles of Legislation 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, No2, July, 2002 at 91 -134.

POSITION OF LAW ON THE DOCTRINE OF SEPARATION OF POWER

This must be so for one of the consequences of the doctrine of separation of powers, which we adopted in our 1999 Constitution, is that neither organ of Government [be it the Executive; the Legislature or the Judiciary] can invade the province of the other and neither may control, direct or restrain the action of the others, AG Bendel v AG, Federation and Ors (1981) LPELR – 605 (SC) 278 -279, Bribery Commissioners v Ranasinghe (1965) AC 172, 197, AG Abia State and Ors v AG Federation (2003) LPELR – 610 (SC) 23 – 24, E- A; AG Federation v Guardian Newspapers Ltd(1999) LPELR – 3162 (SC), 71, Kayili v Esly Yilbuk and Ors (2015) LPELR – 24323 (SC) 32.

THE FUNDAMENTAL POSITION OF THE PRINCIPLE OF SEPARATION OF POWER

This duty is a fundamental pillar of the rule of law, Elelu-Habeeb and Anor v A. G. Federation (supra) and a fundamental aspect of the principle of separation of powers of the three branches of government, Sections 4, 5 and 6 of the Constitution (supra); AG Bendel v AG, Federation and Ors (supra), Bribery Commissioners v Ranasinghe (supra), AG Abia State and Ors v AG Federation (supra), AG Federation v Guardian Newspapers Ltd (supra), Kayili v Esly Yilbuk and Ors (supra).
This entitlement to the independence of the Judiciary is enshrined in the European Convention on Human Rights, from which the Nigerian Constitution drives its potency, per Nweze, JSC, in Nweke v state (2017) LPELR – 42103 (SC) 17 – 21; A – D.
This entitlement in this section [that is, Section 36 (6) (b) and, indeed, the other fundamental rights guaranteed in Chapter IV of the 1999 Constitution, (as amended), were greatly influenced by the European Convention for the Protection of Human Rights and Fundamental Freedoms [ECHR, for short] which, in turn, was influenced by the United Nations’ Universal Declaration of Human Rights of 1948, see, per Lord Wilberforce in Minister of Home Affairs v Fisher (1980) AC 319, 329; G. Ezejiofor, Protection of Human Rights Under The Law (London: Butterworths, 1964) 182.

POSITION OF LAW ON THE APPOINTMENT AND REMOVAL OF A JUDICIAL OFFICER

My Lords, I have to emphasise this point for it, actually, requires the emphasis of this final Court in the land. No Court in Nigeria can proceed with the trial of a serving Judicial officer for allegations of crimes, which also bother on judicial misconduct, unless the said allegations are first subjected to disciplinary sanctions of the NJC as a condition precedent for the initiation of criminal proceedings.
Now, for most of our cherished years of statehood, the discipline and removal of judges lay with the Executive itself. This was until the creation of the National Judicial Council under the Constitution of the Federal Republic of Nigeria, 1999 (as amended), by virtue of Section 153 (1) thereof. Section 153 (2) directs that the composition and powers of these federal executive bodies are as contained in Part 1 of the Third Schedule to the Constitution. Pursuant to this, Paragraph 21 of the Third Schedule reads:
21. 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, the President and Judges of the National Industrial Court, and
(ii) the Judicial Service Committee of the Federal Capital Territory, Abuja, persons or appointment to the offices of the Chief Judge and Judge 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 the office of the judicial officers specified in Sub-paragraph(a) of this paragraph and to exercise disciplinary control over such officers.

WHETHER A HOLDER OF A JUDICIAL OFFICE IS IMMUNE TO CRIME

The true position, therefore, both in Nigeria and the United State of America, is that the title of a judicial officer does not render its holder immune to crime even when committed behind the shield of judicial office,United States v Hastings 681 F.2d. 706, 711 (11th Cir. 1982), Braatelein v United States 147 F.2d. 888, 895 (8th Cir.1945), State v Coruzzi, 460 A.2d. 120 (New Jersey, 1983), McFarland v state, 109 N.W. 2d. 397 (Nebraska, 1961).

WHETHER A HOLDER OF A JUDICIAL OFFICE IS IMMUNE TO CRIME

However, I am unable to discover any valid reason for holding that a Judge should be prevented from disciplinary action in cases involving criminal allegations from the same body that is vested with the prior power to discipline him/her for misconduct, otherwise than amounting to an offence, as urged by learned senior counsel for the appellant.
Here, it is important to note that, the constitutional prescription against double jeopardy, [Section 36 (9) of the Constitution], does not avail such a judicial officer. Thus, like a serving military officer, such a judicial officer cannot invoke the doctrine of autre fois convict, that is, the plea that the NJC had found him culpable would be unavailing.

CHIMA CENTUS NWEZE, J.S.C. (Delivering the Leading Judgment): The respondent herein is a serving Judge of the Federal High Court. He was arraigned before the High Court of Lagos State (hereinafter, simply, referred to “the trial Court) on a fourteen-count information. The alleged offences ranged from unlawful enrichment by a public officer to making false information contrary to Section 82 (a) of the Criminal Law of Lagos State, No. 11, 2011 and Section 39 (2) (a) of the Economic and Financial Crimes Commission (Establishment) Act, 2004 (“EFCC Act”).

Upon his said arraignment, the respondent filed a Notice of Preliminary Objection challenging the jurisdiction of the trial Court to hear the case against him. His main ground of objection was that, being a serving judicial officer, he should be first subject to the disciplinary control of the National Judicial Council. This, he stated, was a condition precedent to the filing of the information, which had not been fulfilled. The trial Court, in its ruling delivered on June 23, 2017, dismissed the preliminary objection and found in favour of the appellant.

Aggrieved, the respondent appealed to the Court of Appeal, [hereinafter referred to as “the lower Court”]. That Court, by its judgment delivered on December 11, 2017, found in favour of the respondent by allowing the appeal and setting aside the ruling of the trial Court. It, also, upheld the preliminary objection filed by the respondent at the trial Court. Dissatisfied with the judgment of the lower Court, the appellant appealed to this Court via a Notice of Appeal filed on April 16, 2019.

The author of the appellant’s Brief of Arguments, who appears to be ignorant of the art and wisdom of brevity, set down two issues for determination. They were couched thus:
1. Whether upon a proper and dispassionate construction and interpretation of Sections 153, 158, 292(1) and Paragraph 21(b) of the 3rd Schedule to the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the learned Justices of the Court below were right to hold as they did that Charge No. LD/4769C/2017 against the Respondent herein was not initiated in accordance with due process of law on the ground that no serving judicial officer can be prosecuted for allegations of criminal offences which also bother on judicial misconduct, unless such allegations are first subjected to disciplinary sanctions of the National Judicial Council as condition precedent for initiation of criminal proceedings?
2. Upon (sic) dispassionate construction and interpretation of the relevant provisions of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), can it be correct to hold as their lordships (sic) of the Court below did, that institution of criminal proceedings against a serving judicial officer for criminal offences under the relevant laws without first recourse to National Judicial Council and or a violation of the doctrine of separation of powers enshrined in the Constitution of the Federal Republic of Nigeria, 1999 (as amended).

The respondent, in his Brief of Arguments, distilled two similar issues, which are:
1. Whether that Charge No. LD/4769C/2017 preferred against the respondent was initiated by due process of law without first having recourse to the disciplinary sanction of the National Judicial Council vested with the powers under the 1999 Constitution of the Federal Republic of Nigeria (as amended) to discipline erring Judicial Officers for misconduct or breach of the code of conduct?
2. Whether, in view of the constitutionally – guaranteed doctrine of separation of powers enshrined in the 1999 Constitution of the Federal Republic of Nigeria (as amended), it is right to institute criminal proceedings against a serving judicial officer for criminal offences under the relevant laws without first having recourse to the National Judicial Council for disciplinary sanctions and whether such actions constitute and usurpation of the powers of the National Judicial Council?

I have taken a close look at the two issues formulated by the appellant in his brief of argument. The respondent has more or less adopted them. I think I should point out early enough that issue two appears to be gulped up by issue one which seems too wide in its purport.

ISSUE ONE
APPELLANT’S SUBMISSIONS
J. S. Okutepa, SAN, learned senior counsel for the appellant, canvassed the view that the allegations against the respondent, as contained in the information, are criminal allegations. In his submission, they are outside the scope, authority and jurisdiction of the National Judicial Council (“NJC”), or any other body or authority except a Court of law. Reference was made to Section 36 (4) and (5) of the Constitution of the Federal Republic of Nigeria, 1999, (as amended); Garba v University of Maiduguri [1986] 1 NWLR (pt. 18) 550, Denloye v Medical and Dental Practitioners Disciplinary Committee (1968) 1 ANLR 306, 311, Dr. G.O. Sofekun v Akinyemi [1980] NSCC 175, 184- 185, Opene v National Judicial Council and Ors (2011) LPELR-4795 (CA).

Learned senior counsel, further, contended that the lower Court was in grave error when it held that a combined reading of Sections 6, 153, 158, 292 (1) and Paragraph 21 (b) of the Third Schedule to Constitution of the Federal Republic of Nigeria, 1999, (as amended), makes the NJC the sole body empowered by the CFRN to determine allegations of misconduct against judicial officers even on criminal allegations of bribery and corruption and that no prosecution can be initiated or instituted in any Court of law without first presenting such allegations to the NJC.

He posited that the Constitution of the Federal Republic of Nigeria, 1999, (as amended), is clear on who can exercise criminal jurisdiction over criminal matters. The NJC is not one of such institutions, Sections 6 (1), (2), (6) (a) and (b) and 36 (4) and (5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended); Garba v University of Maiduguri (supra).

He further argued that there is no legally – cognizable distinction arising from constitutional provisions between offences committed in the ordinary course of duties and offences committed outside the scope of one’s employment, as held by the lower Court.

According to learned senior counsel, except the appellant enjoys immunity from prosecution, as prescribed under Section 308 of the Constitution of the Federal Republic of Nigeria, 1999, (as amended), the State does not require the imputes or permission of the NJC before a serving judicial officer can be arraigned before the appropriate Court of law.

It is his opinion that a serving judicial officer, who chose to commit an offence against the penal law of the land, should not be given a protectionist shield, as was done by the lower Court.

It was further submitted that the lower Court was wrong when it held that the mischief rule of interpretation is most suitable for the interpretation of the provisions of Sections 6, 153 (1), 158 (1) and 292 (1) and Paragraph 21 (b) of the Third Schedule to the Constitution of the Federal Republic of Nigeria, 1999, (as amended), as there are no ambiguities, injustice or absurdity in those provisions, to necessitate the adoption of the mischief rule of interpretation. He added that the lower Court ought to have applied the literal rule of interpretation. He relied on Aigboje AIG-Imoukhuede v Dr. Patrick Ifeanyi Ubah and Ors (2014) LPELR-23965 (CA), Onuoha v State [1998] LPELR-1655 (SC); Dr. Victor Okezie Ikpeazu v Dr. Sampson Uchechukwu Ogah and Ors. (2016) LPELR- 40845 (CA), Fagbola and Anor v Kogi Chambers of Commerce Industry, Mines and Agriculture and Anor (2006) LPELR- 5392 (CA), Attorney General of the Federation and Ors v Alhaji Atiku Abubakar (2007) LPELR-8595 (CA).

Learned senior counsel further contended that the prosecutorial power of the state supersedes the administrative and disciplinary power of the NJC to try criminal offences. He cited Garba v University of Maiduguri (supra), Federal Civil Service Commission v Laoye [1989] All FWLR 350. He urged the Court to resolve issue one in favour of the appellant and to allow this appeal in the interest of justice.

RESPONDENT’S SUBMISSIONS
Ahmed Raji, SAN, Learned Senior Advocate of Nigeria, for the respondent, submitted that the respondent, like any other judicial officer, must first be subjected to the disciplinary jurisdiction of the NJC in accordance with the Constitution before he can be arraigned for criminal prosecution, if the situation warrants such.

Turning to the Judicial Discipline Regulations 2017, learned senior counsel posited that the appellant cannot prosecute or investigate the respondent until due process of law for the discipline of erring judicial officers (which involves laying a complaint before the NJC, investigation of complaint by the NJC and sanctions where judicial officer is found guilty), as contained in the regulations is followed.

He, further, contended that the respondent, who is presently a judicial officer, within the meaning of Section 318 of the Constitution of the Federal Republic of Nigeria, 1999, (as amended), is subject in the very first place, to the disciplinary jurisdiction of the NJC and this is a precondition to any subsequent or other disciplinary measure that may be taken against him.

Placing reliance on Section 158 (1) along with Paragraph 21 (b) in Part 1 of the Third Schedule to the Constitution of the Federal Republic of Nigeria, 1999, (as amended), learned senior counsel opined that the NJC has the first right of disciplinary control over any allegation of misconduct levied against any judicial officer. In the exercise of its constitutional power, the NJC is supreme and is not subject to the direction of any other authority (such as the EFCC) or person.

He further posited that the due process of law was not adhered to according to the Judicial Discipline Regulations 2017, as there was no evidence that any form of complaint was brought before the NJC before the fourteen-count charge was initiated against the respondent at the Court of first instance, hence, that Charge No: LD/4769C/17, brought against the respondent, should be declared null and void and of no effect.

Hinging on Sections 153, 158 and Paragraph 21 (b) of the Third Schedule to the Constitution of the Federal Republic of Nigeria, 1999, (as amended), learned senior counsel argued that the powers of the NJC to control and direct the affairs of the judiciary as well as discipline of judicial officers, are not in conflict with the powers and jurisdiction of the Court to entertain criminal matters under Section 36 (4) and (5) Constitution of the Federal Republic of Nigeria, 1999, (as amended).

He further opined that the appellant is hiding under the guise of the powers of the Court under Section 36 (4) and (5) Constitution of the Federal Republic of Nigeria, 1999, (as amended), to circumvent the clear and unambiguous provisions of 158 and Paragraph 21 (b) of the Third Schedule to the Constitution of the Federal Republic of Nigeria, 1999, (as amended).

Mr. Raji, SAN, further posited that the NJC, in exercising its powers, is not subject to the direction and control of the EFCC, adding that the powers of the Economic and Financial Crimes Commission (“EFCC”) under the EFCC Act, is subject to the provisions of the Constitution as the Constitution supersedes the EFCC Act. He prayed in aid Section 1 (1) and 3 (3) of the Constitution of the Federal Republic of Nigeria, 1999, (as amended). See Olafisoye v FRN [2004] LPELR- 2553 (SC); Madumere and Anor v Okwara and Anor [2013] LPELR-20752 (SC); F.B.N Plc v T.S.A Industries Ltd [2010] LPELR-12285 (SC).

It is the submission of learned senior counsel that to allow the appellant to humiliate a serving judicial officer in the name of investigation and prosecution of criminal allegation without recourse to the NJC will not only amount to subjecting the NJC to the direction and control of the EFCC, but is also a case of usurpation of the powers of the Judiciary.

He further argued that the cases relied on by the appellant in his brief are distinguishable from the instant case. The respondent, in the instant case, is a serving judge who is temporarily protected from criminal investigation and prosecution while his status as a judicial officer subsists by virtue of Paragraph 21 (b) in Part 1 of the Third Schedule to the Constitution of the Federal Republic of Nigeria, 1999, (as amended).

Learned senior counsel reminded this Court that time does not run against the State in criminal matters. As such, the appellant can initiate a criminal proceeding against the respondent or any judicial officer after the fulfilment of the necessary condition precedent, Atolagbe v Awuni [1997] 9 NWLR (pt. 525) 537. He added that the appellant, if dissatisfied with the outcome of the disciplinary measures adopted by the NJC, also has the option of applying to the Court for Judicial Review. He urged the Court to resolve issue one in favour of the respondent and in effect also dismiss Charge No: LD/4769C/17.

RESOLUTION OF ISSUE ONE
My Lords, the reasoning of the lower Court that elicited the above submissions of the appellant’s counsel, was expressed thus:
“…a combined reading of Section 6, 153, 292 (1) and paragraph 21 (b) of the Third Schedule of [the] 1999 Constitution, (as amended) is to the effect that no authority can interfere with or direct the exercise of the powers of the NYC without having shown that the NJC has concluded its investigation….”
[page 167 – 168 of the record; italics supplied for emphasis]

J. S. Okutepa, SAN, learned senior counsel for the appellant, contended that the lower Court was in grave error in so holding. He therefore invited the Court to construe and interpret Sections 153, 158, 292 (1) and Paragraph 21 (b) of the Third Schedule to the Constitution. The Court should, in so doing, determine the question whether a serving judicial officer can be prosecuted for allegations of crimes, which also bother on judicial misconduct, unless the said allegations are first subjected to disciplinary sanctions of the NJC as a condition precedent for the initiation of criminal proceedings.

In my humble view, it is only appropriate to begin with Okutepa, SAN’s invitation to “construe and interpret” the said constitutional provisions, Luckily, I have had occasion to deal with this in Sky Bank v Iwu (2017) LPELR – 42595 (SC) 26 – 32; B- F. Speaking for this Court, Nweze, JSC, had these to say:
“This Court, like other commonwealth Courts which operate a written Constitution, has admirably warehoused a robust corpus of what may be termed “the jurisprudence of constitutional interpretation.” The decisions are, truly, legion – they are numerous. Examples include: A-G, Bendel State v A-G, Federation and Ors [1981] N. S. C. C. 314, 372-373, Buhari v Obasanjo [2005] 13 NWLR (pt 941) 1, 281, FRN v Osahon [2006] All FWLR (pt 312) 1975, 2019, Savannah Bank Ltd v Ajilo [1989] 1 NWLR (pt 97) 305, 326, A. D. H. Ltd v A. T. Ltd (No 2) [2007] All FWLR (pt 392) 1781, A. G., Abia State v A. G. Federation [2005] All FWLR (pt 275) 414, 450, A. G. Ondo State v Ekiti State [2001] FWLR (pt 79) 1431, 1472-1473 etc
They include Ndoma v. Egba [2004]; AG, Ogun v Aberuagba [1985], AG, Federation v AG, Lagos State [2013], Obi v INEC [2007] All FWLR (pt 378) 1116, 1213, Ifezue v Mbadugha [1984]; Kalu v Odili [1992]; Ojukwu v Obasanjo [2004] All FWLR (pt 222) 1666; N.U.R.T.W. v R.T.E.A.N. [2012] 10 NWLR (pt 1307) 170; Governor of Kwara State v Dada [2011] All FWLR (pt 592) 1638.
Courts, elsewhere in the commonwealth, have espoused the same approaches, Martin v Hunter 1 Wheat 304, 4 L. Ed 97; Cooper v Telfair 4 Dal 14, 1 L. Ed; United States v Lefkowitz 285 US 452, 52 S. Ct. 420, 76 L. Ed. 877; United States v Classic 313 US 299, 61, S. Ct. 1031, 85 L. Ed. 1368, Lake County v Rollins 130 US 662, 9 S. Ct. 651, Fairbank v United States 181 US 283, 21 S. Ct. 648, 45 L. Ed. 862, United States v Sharpnack 355 US 286, 78 S. Ct. 291, approvingly, cited in A-G, Bendel State v A-G, Federation and Ors (supra); A-G For North South Wales v B. E. U. N. S. W. (1908) 6 C. L.R. 469, 611 – 612, approvingly, adopted in Bank of New South Wales v The Commonwealth (1947 – 1948) 76 C. L. R. 1, 332.
From an intimate reading of the alluring reasoning in these decisions, the following broad rules, among others, may be concreted:
(a) there is the very fundamental prescription that, in interpreting the Constitution – which is the supreme law of the land – mere technical rules of interpretation of statutes are, to some extent, inadmissible in a way so as to defeat the principles of government enshrined therein, Nafiu Rabiu v State [1980] N. S. C. C. 292, 300; A-G For North South Wales v B. E. U. N. S. W. (supra), approvingly, adopted in Bank of New South Wales v The Commonwealth (supra).
Accordingly, where the question is whether the Constitution “has used an expression in the wider or in the narrower sense … this Court should, whenever possible, and in response to the demands of justice, lean to the broader interpretation, unless there is something in the text or in the rest of the Constitution to indicate that the narrower interpretation will best carry out the objects and purpose of the Constitution,” Nafiu Rabiu v State (supra).

(b) as a corollary, all sections are to be construed together and, hence, it is impermissible to construe sections in isolation, A-G, Federation v Abubakar [2007] All FWLR (pt 389) 1264, 1289-1291, Elelu – Habeeb v A-G, Federation (2012) LPELR -SC. 281/2010, INEC v Musa [2003] 3 NWLR (pt 806) 72, 102; A. T. Ltd. v A. D. H. Ltd [2007] 15 NWLR (pt 1056) 118, 166 -167, Marwa and Ors v Nyako (2012) LPELR -7837 (SC).
(c) where the words are clear and unambiguous, a literal interpretation will be applied, that is, they will be accorded their plain and grammatical meaning; N. E W. Ltd v Denap Ltd (supra), Ojokolobo v Alamu (supra), Olanrewaju v Governor of Oyo State (supra), Egbe v Yusuf (supra), Yarokun v Adeleke (supra), Ahmed v Kassim (supra).
(d) however, where there is inherent ambiguity in any section, a holistic interpretation would be resorted to in order to arrive at the intention of its framers, A-G, Federation v Abubakar (supra); Elelu- Habeeb V A-G, Federation (supra), INEC v Musa (supra), A. T. Ltd. v A. D H. Ltd (supra); Marwa and Ors v Nyako (supra); Obi v INEC (supra); Ojukwu v Obasanjo (supra).
(e) since the draftsperson is not known to extravagate words or provisions, it is anathematic to construe a section in such a manner as to render other sections redundant or superfluous, N. U. R. T. W. v R. T. E. A. N(supra) 212;
(f) as a follow-up to the rule against “ambiguity,” if the words of a statute are ambiguous, then the Law Maker’s intention must be sought, first, in the statute itself, then in other legislation and contemporary circumstances and by resort to the mischief rule. The AG of Ekiti State and Ors v Adewumi and Anor [2002] 1 SC 47, 51, Ugwu v Ararume [2007] 12 NWLR (pt 1048) 365.
(g) In all, the proper approach to the construction of the Constitution “should be… one of liberalism; a variation on the theme of the general maxim ut res magis valeat quam pereat. As such, it would be improper to construe any of the provisions of the Constitution as to defeat the obvious ends the Constitution was designed to serve where another construction, equally, in accord and consistent with the words and sense of such provisions will serve to enforce and protect such ends,” Nafiu Rabiu v State (supra) 300 – 301; A-G of North South Wales v B. E. U. N. S. W. (supra) 611 – 612, Bank of New South Wales v The Commonwealth (supra) 332.
Only recently, this Court summed up these prescriptions in Saraki v FRN [2016] 3 NWLR (pt. 1500) 531, 631 – 632, in these words [per Nweze, JSC]:
…one of the guiding posts in the interpretation of the provisions of the Nigerian Constitution is that the principles upon which it [the Constitution] was established, rather than the direct operation or literal meaning of the words used, measure the purpose and scope of its provisions, Global Excellence Communication Ltd v Duke [2007] 16 NWLR (pt 1059) 22; AG, Bendel v AG, Federation [1982] 3 NCLR 1.
Above all, the rationale of all binding authorities is that a narrow interpretation that would do violence to its provisions and fail to achieve the goal set by the Constitution must be avoided. Thus, where alternative constructions are equally open, 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, Dapianlong v Dariye [2007] 8 NWLR (pt 1036) 239.
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 [1989] 4 NWLR (pt 117) 517, 579, Aqua Ltd v O. S. S. C. [1985] 4 NWLR (pt 91) 622; Ifezue v Mbadugha and Anor [1984] 15 NSCC 314; Nafiu Rabiu v The State [1980] 8-9 SC 130.
This approach is consistent with the ‘living tree’ doctrine of constitutional interpretation enunciated in Edward v Canada [1932] AC 124 which postulates that the Constitution ‘must be capable of growth to meet the future,’ N. K. Chakrabarti, Principles of Legislation 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, No2, July, 2002 at 91 -134.
I therefore endorse the position that the construction of any document [and this includes the construction of the precious and organic document known as the 1999 Constitution] is a holistic endeavour, United Sav. Ass’n of Tex v Timbers of Inwood Forest Assocs Ltd 484 U.S. 365, 371 (1988) (per Scalia, J), see, generally, A. Scalia and G. Garner, Reading Law: The Interpretation of Legal Texts (St. Paul, MN: Thomson/West, 2012) 167 – 168; also Abegunde v The Ondo State House of Assembly [2015] Vol 244 LRCN 1, 374.”

Section 158 (1) (supra) provides inter alia
In exercising its powers … to exercise disciplinary control over persons, … the National Judicial Council, … shall not be subject to the direction or control of any other authority or person
[Italics supplied for emphasis]
On its part, paragraph 21 (b) of the Third Schedule to the said Constitution provides that:
The National Judicial Council shall have power to
(b)… exercise disciplinary control over such officers
As indicated earlier, the lower Court, in interpreting the above provisions, took the view that:
… a combined reading of Section 6, 153, 292 (1) and paragraph 21 (b) of the Third Schedule of [the] 1999 Constitution, (as amended) is to the effect that no authority can interfere with or direct the exercise of the powers of the NJC without having shown that the NJC has concluded its investigation….
[page 167 – 168 of the record; italics supplied for emphasis] I entirely agree with this reasoning. Surely, it is the primary prerogative of the NJC to exercise primary disciplinary control over all judicial officers. Thus, the exclusion of the prior involvement of the NJC in any form of the exercise of disciplinary control [including criminal prosecution] over judicial officers is a negation of the observance of the rule of law, Elelu-Habeeb and Anor v A G. Federation [2012] 13 NWLR (pt 1318) 423.
This must be so for one of the consequences of the doctrine of separation of powers, which we adopted in our 1999 Constitution, is that neither organ of Government [be it the Executive; the Legislature or the Judiciary] can invade the province of the other and neither may control, direct or restrain the action of the others, AG Bendel v AG, Federation and Ors (1981) LPELR – 605 (SC) 278 -279, Bribery Commissioners v Ranasinghe (1965) AC 172, 197, AG Abia State and Ors v AG Federation (2003) LPELR – 610 (SC) 23 – 24, E- A; AG Federation v Guardian Newspapers Ltd(1999) LPELR – 3162 (SC), 71, Kayili v Esly Yilbuk and Ors (2015) LPELR – 24323 (SC) 32.
With respect, Okutepa, SAN’s submission would appear inconsistent with the duties of all branches of the government to respect and protect the independence of the judiciary, Section 17 (2) (e), read harmoniously with Section 36 (1), of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
This duty is a fundamental pillar of the rule of law, Elelu-Habeeb and Anor v A. G. Federation (supra) and a fundamental aspect of the principle of separation of powers of the three branches of government, Sections 4, 5 and 6 of the Constitution (supra); AG Bendel v AG, Federation and Ors (supra), Bribery Commissioners v Ranasinghe (supra), AG Abia State and Ors v AG Federation (supra), AG Federation v Guardian Newspapers Ltd (supra), Kayili v Esly Yilbuk and Ors (supra).
This entitlement to the independence of the Judiciary is enshrined in the European Convention on Human Rights, from which the Nigerian Constitution drives its potency, per Nweze, JSC, in Nweke v state (2017) LPELR – 42103 (SC) 17 – 21; A – D.
This entitlement in this section [that is, Section 36 (6) (b) and, indeed, the other fundamental rights guaranteed in Chapter IV of the 1999 Constitution, (as amended), were greatly influenced by the European Convention for the Protection of Human Rights and Fundamental Freedoms [ECHR, for short] which, in turn, was influenced by the United Nations’ Universal Declaration of Human Rights of 1948, see, per Lord Wilberforce in Minister of Home Affairs v Fisher (1980) AC 319, 329; G. Ezejiofor, Protection of Human Rights Under The Law (London: Butterworths, 1964) 182.
Surely, these imperatives of their universal character prompted this Court’s view that, in interpreting the provisions of the Constitution, particularly, the fundamental rights provisions thereof, it would be well-guided by decisions of international and domestic Courts which have interpreted provisions, similarly, worded like the fundamental rights provisions of our Constitution, Olawoyin v C O. P. (1961) LPELR (24984) 4; A-D.
In effect, long before the advocacy for the espousal of a “global conversation about common legal issues…,” see V. C. Jackson, Constitutional Engagement in a Transnational Era (Oxford: Oxford University Press, 2010) 102, this Court had, admirably, explored the dividends of that comparative approach to judicial dialogue: an approach which it endorsed in Nafiu Rabiu v. The State [1981] 2 NCLR 293; [1980] 8-11 SC 130, Senator Adesanya v. President of the Federal Republic of Nigeria [1981] 5 SC 112, Attorney General of Bendel State v. Attorney General of the Federation [1981] 10 SC 1, Ogugu and Ors v The State [1994] 9 NWLR (pt.366) 1, 22-28.
Instructively, this pro-active approach to the “extraterritorial interpretation” of such constitutional provisions has gained currency in many disparate jurisdictions. Instances include: The United States of America, Thomson v Oklahoma [1988] 487 US 815, Washing v Glucksburg (1997) 521 US 702, 718, Lawrence v Texas (2003) 539 US 558, Atkins v Virginia (2002) 536 US 394, Canada, US v Burns (2001) SCR 283, Australia, Leask v Commonwealth (1996) 187 CLR 579, 615 -616, Hong Kong, Shum KKwok Sher v HKSAR (2002) 2 HKLRD 793 etc.
Academic writers have, equally, endorsed this approach; see, for example, N. J, Udombana, “Interpreting Rights Globally; Courts and Constitutional Rights in Emerging Democracies,” (2005) 1 AHRLJ47-69; C. M. Zoethout, “The Dilemma of Constitutional Comparativism,” ZaoRV 71 (2001) 787- 806; C. M. Zoethout, “The European Court of Human Rights and Transnational Judicial Dialogue, References to Foreign Law and the Quest for Justification,” (2015) ICL Journal, 9 (3), 396-416; A. Stone, “Comparativism in Constitutional Interpretation,” [2009] UMelbLRS 15; S, E. Fields, “Constitutional Comparativism and the Eight Amendment: How A Flawed Proportionality Requirement can Benefit from Foreign Law,” Boston University Law Review [Vol. 86: 963, 2006] 963 etc.
Clear evidence of this judicial approach could be seen in several decisions of this Court [the apex Court in Nigeria]. Thus, in the interpretation of certain provisions of our Constitution, it [this Court] has had recourse to decisions from such other jurisdictions like Tanzania, Mbushuu and Anor v The Republic (decision of the Tanzanian Court of Appeal); Zimbabwe, Catholic Commission for Justice and Peace v Attorney General, Zimbabwe and Ors, (1993) (4) SA 239]; South Africa, State v Makwanyane and Anor (1995) (6) BCLR 665 (CC); (1995) SACLR LEXIS 218]; India, Becan Singh v State of Punjab (1983) (2) SCR 583; the US, Gregg v Georgia 428 U.S. 153, 176 -187 (1976); District Attorney for Sulfork District v James Watson and Ors (1980) 381 Mass. 648; Hungary, Jones v Wittenberg 33 FSUPP. 707.
Others include cases from Jamaica, Noel Riley and Ors v AG for Jamaica and Anor (1983) 1 A.C. 319 (PC) 726, Earl Pratt and Anor v AG for Jamaica and Anor (1944) 2 A. C. (PC) 28, 29, Commonwealth of Bahamas, Fisher v Minister of Public Safety and Immigration and Ors (1998) 3 WLR 208 (PC), Republic of Trinidad and Tobago, Lincoln Anthony Guerra v Cipriani Baptist and Ors (1996) 1 A. C. 396 (PC). See generally, Onuoha Kalu v State (1998) LPELR -1655 (SC) 41 et seq.
It is against this background that I, now, turn to the Indian jurisdiction. In K. Veeraswami v Union of India [1991] 3 – SCC – 665, the Indian Supreme Court held that the President of India shall not grant sanction to prosecute a [Judge], if the Chief Justice is of the opinion that it is not a fit case for grant of sanction for prosecution of the Judge concerned.
According to the Court, undoubtedly, respect for the judiciary and its public credibility and dignity have to be monitored in order to ensure respect for the Judges in public and also for the decisions rendered by the Judge.
In order, therefore, to adequately protect a Judge from frivolous prosecution and unnecessary harassment, the President will consult the Chief Justice of India who will consider all the materials placed before him and render his advice to the President for giving sanctions to launch prosecution.
The above legal position has been spelt out in State of Uttah Pradesh v Parash Nath Singh and Anor [2009] 6 – SCC- 372 and Subramanium Swamy v Malmohan Singh and Anor [2012] 3 – SCC – 64.
In view of the above settled position, no Judge in India can be prosecuted without a prior sanction whether the alleged offence is punishable under the provisions of the Corruption Act, 1988 or under the Indian Penal Code or under any other law. In the words of the Indian Supreme Court “[i]n order to launch a prosecution against a Judge of a Superior Court for criminal misconduct … the previous sanction of the authority competent to remove a Judge… from his office is imperative,” (italics supplied for emphasis),K. Veeraswami v Union of India and Ors [1991] INSC 164 (25 July, 1991).
That is the intendment of Sections 158 (1) and Paragraph 21 (b), Part 1 of the Third Schedule of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). Thus, by these provisions, the NJC is the ultimate Guardian that guards the guardians of the Constitution, (Judges). This must be so for the prosecution of a Judge, who is still, resplendently, adorned in his judicial robes, would amount to the desecration of the fount of justice. Hence, without the sanction of the NJC, a serving judicial officer cannot be prosecuted for allegations of crimes, which also bother on judicial misconduct, unless the said allegations are first subjected to disciplinary sanctions of the NJC as a condition precedent for the initiation of criminal proceedings. As this Court held in Sken Consult Nig Ltd v Ukey [2004] 1 NSCQR 656, 674 “a Court can only be competent if, among other things, the conditions precedent for its having jurisdiction are fulfilled;” Madukolu and Ors v Nkemdilim (1962) 1 All Nir 587, 594.
Simply put, therefore, here in Nigeria, that role of the Chief Justice of India in rendering advice to the President of India for giving sanctions to launch criminal prosecution against a Judge is performed by the NJC. In the words of the lower Court “The Judicial Discipline Regulation of May, 2017, contains steps to (sic) regarding the making of a formal complaint to the NJC, who after due consideration shall recommend the appropriate action to be taken and if need be, hand such matter over to the security agencies,” [page 166 of the record] italics supplied for emphasis].
My Lords, I have to emphasise this point for it, actually, requires the emphasis of this final Court in the land. No Court in Nigeria can proceed with the trial of a serving Judicial officer for allegations of crimes, which also bother on judicial misconduct, unless the said allegations are first subjected to disciplinary sanctions of the NJC as a condition precedent for the initiation of criminal proceedings.
Now, for most of our cherished years of statehood, the discipline and removal of judges lay with the Executive itself. This was until the creation of the National Judicial Council under the Constitution of the Federal Republic of Nigeria, 1999 (as amended), by virtue of Section 153 (1) thereof. Section 153 (2) directs that the composition and powers of these federal executive bodies are as contained in Part 1 of the Third Schedule to the Constitution. Pursuant to this, Paragraph 21 of the Third Schedule reads:
21. 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, the President and Judges of the National Industrial Court, and
(ii) the Judicial Service Committee of the Federal Capital Territory, Abuja, persons or appointment to the offices of the Chief Judge and Judge 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 the 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 person 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 Courts of the States, the Grand 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 Governor the removal from office of the judicial officers specified in Sub-paragraph (c) of this paragraph, and to exercise disciplinary control over such officers;
(e) collect, control and disburse all money, capital and recurrent, for the judiciary;
(f) advise the President and Governors on 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 of the staff of the Council;
(h) control and disburse all monies and capital and recurrent, for the services of the council; and
(i) deal with all other matters relating to broad issues of policy and administration.
[Italics supplied for emphasis] From these provisions, it can be gleaned that the Council [that is, the NJC] has the plentitude of powers to handle the matters of the Judiciary.
Now, the Judiciary is the only one of the three branches of government for which a separate administrative body has been established to review the performance of its officials who had been elevated to the Higher Bench. One rationale for the creation of this body is to ensure the independence of the judiciary, as guaranteed by Section 17 (1) (e) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). Oputa JSC, made this observation by stating Inter alia, that an important aspect of judicial independence is independence in administration, Oputa, The Law and the Twin Pillars of Justice, (Pretoria, South Africa: Government Printer, 1981) 115.
The Indian Supreme Court, in a language so densely, couched, captured the logic of this argument in these immortal words:
“A Judge of the Supreme Court as well as a Judge of the High Court is a constitutional functionary and to maintain the independence of the judiciary and to enable the Judge to effectively discharge his duties as a Judge and to maintain the rule of law, even against the Central Government or the State Government, he is made totally independent of the control and influence of the executive
…”
K. Veeraswami v Union of India and Ors [1991] INSC 164 (25 July, 1991) [italics supplied for emphasis]
The independence of the National Judicial Council in exercising its powers as spelt out under the Third Schedule is established by virtue of Section 158 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
A combination of the Constitution, statutes, and regulations, creates a constitutionally-recognized sequence through which the NJC exercises its inherent power to purge unfit and corrupt Judges from the Judiciary. The initial process of disciplinary matters is performed by the NJC. The Council receives and investigates complaints, conducts hearings in accordance with Section 36 (1) of the Constitution. It, finally, returns a verdict either absolving the Judicial officer or finding him culpable.
It has long been settled here, and elsewhere, that any misconduct, criminal, private or professional, which reveals lack of the character and integrity essential for the judge’s position, constitutes a basis for discipline.
As rightly held by the lower Court:
“Misconduct has been defined by the Black’s Law Dictionary, 9th Edition at Page 1089, thus:
(1) Dereliction of a duty or improper behavior, official misconduct has also been defined by the same dictionary and on the same page.
A public Officer’s corrupt violation of assumed duties by misconduct in office or official corruption, also corruption in office, when a judicial officer is said to have misconducted himself/herself in office it means he has corruptly violated his duties.
Whenever a breach of judicial oath occurs, it is a misconduct itself, the NJC is the appropriate body to investigate such breaches by the judicial officer and if so 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 the Federal judicial officer or the Governor of a 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 enforcement agent or agency is at liberty to make the said Judicial Officer face the wrath of the law.”
Where, as in the instant case, a judicial officer is alleged to have committed a series of fraudulent and corrupt practices, amounting to offences, during his subsisting office – actions that cannot by any stretch of the imagination, be rationally deemed judicial or official acts – it would, indeed, be sadly anomalous to conclude that the Judiciary cannot cleanse itself of such unfit member on any theory that judicial robes protected such conduct. An allegation that one Judge is corrupt and accepts bribes is an allegation on the entire judiciary.
A Judge’s role is so intimate a part of the process of justice that misbehavior as a Judge must inevitably reflect upon his qualification to bear the toga of the judicial office. Hence, the disciplinary power of the NJC should apply, unless expressly restrained by some provisions of the Constitution. The Constitution of the Federal Republic of Nigeria, 1999 (as amended), nowhere expressly excludes misconduct of a criminal nature of a judicial officer in office, from the scope of NJC’s disciplinary power.
I align my reasoning with that of the lower Court that time does not run against the State in criminal matters. The sanction of suspension or removal by the NJC, if it finds the respondent to be culpable, does not exclude other sanctions which such misconduct would otherwise require to be exerted on the respondent for the sake of public interest. I can think of no reason why the prior requirement of the exercise of disciplinary action by the NJC for one purpose, should be found to speak to an intention to deny the State and prosecution agencies, the power to protect the public or to immunize the perpetrator from the further consequences of his act, as contended by the appellant, K, Veeraswami v Union of India (supra), Utah Pradesh v Parash Nath Singh and Anor (supra) and Subramanium Swamy v Malmohan Singh and Anor (supra).
The true position, therefore, both in Nigeria and the United State of America, is that the title of a judicial officer does not render its holder immune to crime even when committed behind the shield of judicial office,United States v Hastings 681 F.2d. 706, 711 (11th Cir. 1982), Braatelein v United States 147 F.2d. 888, 895 (8th Cir.1945), State v Coruzzi, 460 A.2d. 120 (New Jersey, 1983), McFarland v state, 109 N.W. 2d. 397 (Nebraska, 1961).
However, I am unable to discover any valid reason for holding that a Judge should be prevented from disciplinary action in cases involving criminal allegations from the same body that is vested with the prior power to discipline him/her for misconduct, otherwise than amounting to an offence, as urged by learned senior counsel for the appellant.
Here, it is important to note that, the constitutional prescription against double jeopardy, [Section 36 (9) of the Constitution], does not avail such a judicial officer. Thus, like a serving military officer, such a judicial officer cannot invoke the doctrine of autre fois convict, that is, the plea that the NJC had found him culpable would be unavailing.
The further submission of Okutepa, SAN, that the exercise of the disciplinary powers of the NJC over a judicial official is subject to the direction and control of the Economic and Financial Crimes Commission does great violence to the organic law of this country, the Constitution. That submission is, truly speaking, an unmitigated affront on the said Constitution which vests itself with the toga of supremacy, Section 1 (1) and (3) of the Constitution of the Federal Republic of Nigeria, 1999, (as amended), Inakoju v Adeleke [2007] 4 NWLR (pt 1025) 423, AG Lagos v AG, Federation [2004] 18 NWLR (pt 904) 1, FBN Plc v T. S. A. Industries Ltd (2010) LPELR -12285 (SC) and invalidates all laws inconsistent with its provisions, Osagie v Ogbemudia (1973) LPELR – 2660N(SC) 4 -5, Edjerode v Ikine [2001] 18 NWLR (pt 745) 446, Uwaifo v AG, Bendel State [1982] 7 SC 124, AG, Ogun State and Ors V AG, Federation (2002) LPELR – 62 (SC) 19 -20.
The independence of the referees of government must not be compromised nor Judges intimidated by the State through prosecution agencies that fail to remember that their function is not only to protect the public from Judges who violate the Code of Judicial Conduct but also to protect the Judges, who exercise the sovereign judicial power of the State, from harassment and unsubstantiated charges, K. Veeraswami v Union of India (supra); Uttah Pradesh v Parash Nath Singh and Anor (supra) and Subramanium Swamy v Malmohan Singh and Anor (supra).

One final word on this issue, Okutepa, SAN, learned senior counsel for the appellant, cited Garba v University of Maiduguri [1986] 1 NWLR (pt 18) 550, Denloye v Medical and Dental Practitioners Disciplinary Committee [1968] 1 ANLR 306, 311, Sofekun v Akinyemi [1980] NSCC 175, 184 – 185. From all indications, it would seem very obvious that learned senior counsel did not read these decisions. If he did read them, he did not do so with the finery of a toothcomb.
I am under obligation to point out that it does not serve any useful purpose to suffuse a brief of argument with cases that would not assist the Court in the resolution of the main issues before it. This is so for it may not only be counter-productive, it may actually obfuscate the Court’s perception of the issues.
More importantly, that tendency merely underscores a penchant for grandstanding: an unwarranted relapse into pedantry! As much as possible, it should be discouraged! After all, the law is that: “cases are decided on their facts and ratio decidendi is based on the facts of the case before the Court. A ratio cannot be determined outside the facts of the case”, Onyia v State (2009) All FWLR (pt 450) 625, 640. I shall say no more on this.

ISSUE TWO
APPELLANT’S ARGUMENTS
On this issue, learned senior counsel for the appellant contended that the lower Court was in grave error when it held that 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 of the Nigerian Constitution and paragraph 21 in Part 1 of the Third Schedule, thereby inhibiting, and interfering with and obstructing the National Judicial Council from carrying out disciplinary control over erring judicial officers as clearly provided by the Constitution.

He further submitted that the cases of Elelu-Habeeb and Anor v Attorney-General of the Federation [2012] 13 NWLR (pt. 1318) 423 and Justice Opene v NJC and Ors (2011) LPELR-4795 (CA) relied on by their lordships of the lower Court do not determine that the NJC possesses the judicial power of the Court to try criminal offences. Rather, that the decision of the Court in those cases, recognized only the administrative disciplinary measure on the judicial officers.

He further argued that the prosecution of the respondent without first reporting him to the NJC for its disciplinary sanction has not breached the principle or doctrine of separation of powers and checks and balances, pursuant to Sections 4, 5 and 6 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).

He further posited that, in the proper exercise of the constitutional powers of the appellant, the Courts and the NJC, rather than being in conflict as held by the Court below, are complementary for the moral conduct of public office holders particularly in position of trust like judicial officers, and such proceedings can run concurrently. He added that if this Court finds that the two proceedings cannot co-exist simultaneously, the prosecutorial power that is constitutionally donated to the State must take precedence over any administrative disciplinary proceeding of the NJC. Reference was made to the Public Service Rules.

In his further submission, learned senior counsel canvassed the view that if the judgment of the lower Court was upheld, it would limit and curtail the constitutional powers of the Court to hear and determine the criminal liability of citizens within a reasonable time and this could lead to loss of evidence and witnesses. On the other hand, it would amount to abdication of the coercive power of the Court to try criminal offences. On this point, he referred to Sections 6 (1), (5) and 6 (b) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).

He further argued that it is the position of the law that no Court has power to stop the investigative powers of the Nigerian Police Force or the EFCC or any agency established to investigate crimes. He placed reliance on the case of Hassan v EFCC [2014] NWLR (pt. 1389) 607, 631, para. G.

He urged the Court not to uphold the decision of the lower Court. In his submission, the said decision seems to grant extra-judicial protections to the judicial officers outside the Constitution and law.

RESPONDENT’S SUBMISSIONS
Learned senior counsel for the respondent contended that a combined reading of Sections 153 and 158 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) shows that the NJC is a creation of the Constitution. As such, he pointed out, its powers cannot be interfered with when appointing or disciplining persons within their control, by any authority, particularly, the appellant herein. He cited the case of Nwaogwugwu v President of the Federal Republic of Nigeria (2007) All FWLR (pt. 358) 1327, paragraphs D – F.

He argued that the NJC is the body saddled with the constitutional power to entertain allegations of misconduct before a judicial officer is recommended for removal. It is, he said, only after removal that the prosecution agency can initiate criminal charges against such judicial officer.

He further opined that the conviction of such a judicial officer is not capable of removing the toga given to the judicial officer. Hence, it is important for such judicial officer to be appropriately removed or suspended first by the NJC, who is the sole body to exercise such powers, Justice Opene v National Judicial Council and Ors (2011) LPELR – CA/A/324/07, Elelu Habeeb v Attorney-General of the Federation [2012] 13 NWLR (pt. 1318) 432, Abdullahi v Gov. of Kano State [2014] 16 NWLR (pt. 1433) 213, 256, paragraph A.

Learned senior counsel further posited that the establishment of the NJC, by the Constitution of the Federal Republic of Nigeria, 1999 (as amended} guarantees the separation of powers and enhances checks and balances between the three arms of government. This, he opined, is to ensure independence of the judiciary from political departments and executive lawlessness, without which the rights of the people, separation of power, due process and rule of law and constitutionalism would be merely cosmetic. The independence of the Judiciary and the powers of the Court cannot be guaranteed if the Executive is allowed to usurp the Constitutional powers of NJC.

He further submitted that the 14-count information filed against the appellant without due regard and recourse to the constitutional powers of the NJC is a clear violation of the principle of separation of powers, breach of due process of law and affront and threat to independence of the judiciary, Inakoju v Adeleke [2007] 4 NWLR (pt. 1025) 423, Attorney-General of Lagos State v Attorney-General of the Federation [2004] 18 NWLR (pt. 904).

He maintained that if the appellant is allowed to continue with the prosecution of a sitting judicial officer without showing the involvement or the sanction of the NJC, it will be tantamount to the executive arm of government, conducting discipline of Judges contrary to the intendment of the Constitution. He urged the Court to dismiss the instant appeal and uphold the decision of the Court below.

APPELLANT’S REPLY BRIEF
In reply, Okutepa, SAN, for the appellant contended that the respondent, unfortunately, appeared to confuse the exercise of the NJC’s disciplinary powers with the prosecutorial powers of the appellant. He further submitted that, in filing the information against the respondent at the trial Court, the appellant was not in any way directing or controlling the exercise of the NJC’s disciplinary powers.

He further opined that the allegations brought against the respondent are of a criminal nature and do not just bother on simple allegations of misconduct as the respondent laboriously tried to downplay. He added that, where there are serious allegations of embezzlement or fraud, the matter is beyond the power of an administrative panel, as it is of a more serious nature requiring proper judicial process.

RESOLUTION OF THE ISSUE
My Lords, the contention of J. S. Okutepa, SAN, learned senior counsel for the appellant, is that the prosecutorial power that is constitutionally – donated to the State must take precedent over any administrative disciplinary proceeding of the NJC.
With profound respect, this submission seems to me, clearly, preposterous. Surely, consistent with the doctrine of judicial independence, in order to adequately protect a Judge from frivolous prosecution and unnecessary harassment, the exercise of the prosecutorial powers of the State must abide the prior involvement and decision of the NJC, State of Uttah Pradesh v Parash Nath Singh and Anor (supra), Subramanium Swamy v Malmohan Singh and Anor (supra).
In effect, like I had indicated earlier, no Court in Nigeria can proceed with the trial of a serving Judicial officer for allegations of crimes, which also bother on judicial misconduct, unless the said allegations are first subjected to disciplinary sanctions of the NJC as a condition precedent for the initiation of criminal proceedings, State of Uttah Pradesh v Parash Nath Singh and Anor (supra); Subramanium Swamy v Malmohan Singh and Anor (supra).
True, indeed, there would appear to be something monstrous in Okutepa, SAN’s submission that the prosecutorial power that is constitutionally – donated to the State must take precedent over any administrative disciplinary proceeding of the NJC.
Unarguably, the endorsement of that approach would poison the source of justice. It would introduce a system of servility utterly inconsistent with the constitutional independence of the Judge – an independence which had been the work of ages to establish. It would be utterly inconsistent with the preservation of the rights and liberties of the subject, Egbe v Adefarasin (1985) LPELR-1031 (SC) 32; A -E.
True, indeed, Okutepa, SAN’s submission is that an Executive body, like the NJC, should stay the exercise of its disciplinary jurisdiction over a judicial officer until after his criminal prosecution in Court is concluded. The inevitable inference is that criminal prosecution should be pursued before disciplinary proceedings should be taken. I do not think that the provision of the law and effective administration contemplate or admit the exercise of such a circuitous route to the discipline of professional misconduct of a judicial officer, Dongtoe v CSC Plateau State [2001] 9 NWLR (pt.717) 132 at 159.
It is important to appreciate that the respondent, by insisting that the NJC must first exercise its disciplinary jurisdiction over him, did not imply that the NJC was to conduct a criminal prosecution on his account. An Executive or administrative body which acts on the professional misconduct of an accused person has not tried the accused person and has not violated the provisions of the Constitution, and cannot be said to have usurped the criminal jurisdiction constitutionally – vested in the Courts, Dongtoe v C.S C Plateau State (supra).
To arrive at a reasonable construction of a statute, the Court is entitled, following the rule in Heydon’s case, to consider how the law stood when the statute was passed, what the mischief was for which the old law did not provide, and the remedy, which the new law has provided to cure that mischief. See Wilson v Attorney -General, Bendel State [1985] 1 NWLR (pt.4) 572, Savannah Bank of Nigeria Ltd v Ajilo [1989] 1 NWLR (pt.97] 305; Ifezue v Mbadugha [1984] NSCL 14; Uwaifo v Attorney- General of Bendel State and Ors [1982] NSCC (Vol. 13) 221; Adeyemi- Bero v L.S.P.D.C.[2013] 8 NWLR (pt.1356) 238 at 301, paras B-C, 304 paras F-G, 310, paras C-E.
The NJC, as I have already noted above, is a novel constitutional arrangement devised as a Guardian to guard the guardians of the Constitution, namely, Judges. None of the previous Constitutions – 1960; 1963; 1979 – had provisions similar to Sections 153 (1) 158 (1); 160; 292 (1) (b) and paragraph 21 (b) of Part 1 to the Third Schedule to the 1999 Constitution (supra). The NJC, therefore, was introduced into our constitutional jurisprudence inter alia as a prior clearing house for disciplinary sanctions of judicial officers as a condition precedent for the initiation of criminal proceedings, State of Utah Pradesh v Parash Nath Singh and Anor (supra); Subramanium Swamy v Malmohan Singh and Anor (supra).
The meat and substance of all I have been saying is that the answer to the second issue put forward by Okutepa, SAN, for the appellant, is that the institution of criminal proceedings against a serving judicial officer without a first recourse to the NJC constitutes an unconstitutional usurpation of the powers of the said NJC. It is a grievous assault and an affront on the separation of powers which the 1999 Constitution consecrates in Sections 4 and 6 of the Constitution. This Court, the apex Court in Nigeria, cannot sit, idly, and watch the enthronement of an such a constitutional albatross.
To endorse Okutepa’s submission would be allow a situation that would “create a serious in-road on the dignity, respect, credibility and integrity of the high office which a superior Judge occupies resulting in the erosion of the dignity and respect for the high office of the Judges in the estimation of the public,” K. Veeraswami v Union of India and Ors (supra). May that never be the fate of the Nigerian Judge!!!

Accordingly, I hereby enter an order dismissing this appeal. I uphold the decision of the lower Court.
Appeal dismissed.

OLUKAYODE ARIWOOLA, J.S.C.: I had the privilege of reading in draft, the lead judgment of my learned brother Nweze, JSC just delivered. I agree entirely with the reasoning and conclusion of the lead judgment that the appeal lacks merit and deserves to be dismissed. Accordingly, it is dismissed by me.
Appeal dismissed.

AMINA ADAMU AUGIE, J.S.C.: I had a preview of the lead judgment just delivered by my learned brother, Nweze, JSC, and I agree with him that this appeal totally lacks merit. He dealt decisively with the issue at stake in this appeal, which is whether the institution of criminal proceedings by an executive agent against a serving judicial officer, without recourse to the National Judicial Council [NJC] first, is unconstitutional.

NJC, as my learned brother put it, is a novel constitutional arrangement “devised as a Guardian to guard the Guardians of the Constitution – Judges”, therefore, with NJC in place, the institution of criminal proceedings against a serving judicial officer without recourse to NJC first is clearly unconstitutional.

I also dismiss this appeal and affirm the decision of the Court of Appeal.

UWANI MUSA ABBA AJI, J.S.C.: I was availed a draft of the judgment just delivered by my learned brother, C.C. Nweze, JSC, and I concur to his reasoning and conclusion that the appeal be dismissed.

The Respondent being a serving Judge of the Federal High Court and arraigned for unlawful enrichment by a public officer to making false information contrary to Section 82 (a) of the Criminal Law of Lagos State and Section 39 (2) (a) of the Economic and Financial Crimes Commission Act, 2004, challenged the jurisdiction of the trial Court, inter alia, that being a serving judicial officer, he should first have been subject to the disciplinary control of the National Judicial Council, as a condition precedent to the filing of the information against him. The trial Court dismissed the objection of the Respondent and found in favour of the Appellant. On appeal, the lower Court found in favour of the Respondent, hence this appeal by the Appellant.
The criminal architecture is to cover all manners of crimes against all persons in the country. However, there are people that by virtue of their functions and offices enjoy the protection of the law or to an extent some immunity as in the case of the Executives as constitutionally provided or some condition precedents must be fulfilled for their prosecution. Same applies to serving judicial officers.
The National Judicial Council is a constitutional body established by Section 153 and mandated in Paragraph 21 of Part 1 of the Third Schedule of the CFRN, 1999 to inter alia, recommend the appointment and removal of judicial officers of superior Courts of record in Nigeria and exercise disciplinary control over such officers. This is the constitutional body that disciplines judicial officers before they are handed over for criminal prosecution by any of the criminal Courts or agencies.
The NJC does not give immunity or stop judicial officers from being criminally prosecuted but ensures their proper and constitutional discipline or prosecution in accordance with the law and laid down condition precedent. When the Constitution has stated steps that must be taken before an action can proceed, omitting to do so would render such an act one made in futility. See …
A condition precedent for the criminal prosecution of the Respondent has not been followed by the Appellant to imbue it with power and give the trial Court the jurisdiction to prosecute the Respondent.

A condition precedent is an additional formality super-imposed on the law. Per MOHAMMED, JSC, in AMADI V. NNPC (2000) LPELR – 445(SC) (PP. 55-56 PARAS. F). A condition precedent is defined as one which delays the vesting of a right until the happening of an event. See Per OGBUAGU, JSC, in NIGERCARE DEVELOPMENT CO. LTD V. ADAMAWA STATE WATER BOARD & ORS (2008) LPELR-1997(SC) (PP. 18 PARAS. C).
This appeal fails and is hereby dismissed.

HELEN MORONKEJI OGUNWUMIJU, J.S.C.: I here had the privilege of reading the exhaustive judgment of my learned brother CHIMA CENTUS NWEZE JSC. I agree with the reasoning and conclusions therein and adopt them as mine. The institution of criminal proceedings by an executive agent of government against a serving judicial officer without first recourse to the National Judicial Council is unconstitutional, and the proceedings would be null and void and of no effect. This is mainly because of the doctrine of separation of powers inherent in a constitutional democracy to prevent incursion of one arm of government into the affairs of the other. The N.J.C. acts as the buffer to protect serving judges from the whims and caprices of serving Presidents, Governors and other principal officers of the executive arm of government. There must be a balance of rights. The right of the state to prosecute persons accused of committing criminal offences (without exception) and the rights of a group of people whose independence, and impartiality is equally guaranteed by the constitution. How can a serving judicial officer maintain his fierce independence in the face of systemic executive policy to intimidate the judiciary. Democracy is a bird that flies with 3 parts, the two wings that give impetus and the tail that gives balance. The judiciary is the tail that gives balance to the executive and the legislature in a classic democratic setting. It is very important that the public confidence in the judiciary is not totally eroded by displaying a serving judicial for criminal trial. I align myself with the view in the lead judgment that a judicial officer who is alleged to have committed a criminal offence which can also be an allegation of violation of his judicial oath must go through the administrative process laid down by the National Judicial Council which is the supervisory body empowered to discipline judges of superior Courts of record pursuant to Section 153(1)(i), Section 158 (1) and paragraph 21 (b) of part 1 of the 3rd Schedule of the 1999 Constitution. The process should include a formal complaint of the judicial officer by the prosecuting agency to the NJC by making available to the NJC the evidence against the judicial officer before the arrest of the judicial officer. An investigation by a panel constituted by the NJC to decide if the judicial officer should be delivered over for prosecution as a serving judicial officer. The NJC can recommend the next course of action to the Attorney General of the Federation or the Attorney General of the State as the case may be. The initial process would be no more than an administrative enquiry. The disciplinary proceedings of the NJC against such an officer should be started immediately after the conclusion of the administrative enquiry and the officer can also be recommended for criminal prosecution.
The law now is that where an employee commits an offence which impacts on his character and his ability to sustain the trust of his employer and his ability to continue to do his job efficiently and effectively like fraud, stealing, bribery and corruption etc. then the employer is at liberty to disengage the employee before the conclusion of criminal proceedings. If the criminal offence is one that does not impact on the character or ability of the employee to do his job, then the employer has to wait for the conclusion of criminal proceedings before the disciplinary proceedings can start. Offences like assault, murder, traffic offence etc have to await the outcome of criminal prosecution before any disciplinary proceedings can be initiated and concluded by the employer. See Yusuf v. UBN Ltd (1996) 6 NWLR Pt. 457 Pg. 632, Arinze v. First Bank (2004) LPELR-551 (SC) especially the concurring judgments of Onu JSC and Katsina Alu JSC in Olanrewaju v. Afribank Nig. Ltd. (2001) LPELR-2573 (SC) relying on Yusuf v. UBN Ltd (Supra) held that prosecution before a Court of law is not a sine qua non for summary dismissal or disciplinary action. Thus, if the NJC finds that the judicial officer had violated his oath of office, he can be retired or dismissed by the NJC before the outcome of criminal prosecution so that the erring officer faces the law as an ordinary individual and not as a judicial officer.
No doubt, the powers of the AG federation and the A.G. of a State to institute and discontinue prosecution of a criminal offences pursuant to Section 174 & 211 of CFRN has not been hampered by a liberal interpretation of Section 153, 158 and Paragraph 21 (b) of the 3rd Schedule to the Constitution of Federal Republic of Nigeria (as altered). In other words, Section 174 and Section 211 are not disturbed so long as the condition precedent to the exercise of the Court’s jurisdiction have not been ignored or breached. For these and other erudite and fuller reasons given by my learned brother, I dismiss the appeal. Appeal dismissed.

ADAMU JAURO, J.S.C.: I read in draft the lead judgment of my learned brother, Chima Centus Nweze, JSC just delivered. I am in agreement with the decision and the conclusion contained therein.

The issues raised in the instant appeal have been eruditely dealt with by my learned brother in the lead judgment. I however wish to add few comments in support of the position taken by my brother, Chima Centus Nweze, JSC. Considering the facts of the instant appeal vis-a-vis the relevant Constitutional provisions copiously expounded in the lead judgment, I am of the firm view that the submissions and arguments of learned senior counsel for the Appellant cannot sail through in the light of the powers of the National Judicial Council as provided under Paragraph 21 (b) to the Third Schedule of the Constitution. Where a serving judicial officer commits a crime that also borders on judicial misconduct, recourse must first be made to the National Judicial Council. The assurance of a conviction or how implicating the readily available evidence is against a serving judicial officer will not obviate the need to first make recourse to the disciplinary power of the National Judicial Council before instituting a criminal action in Court.
The powers of the Attorney General of the Federation and a State to institute, continue or discontinue a criminal matter under Sections 174 & 211 of the Constitution have not been eroded in anyway as submitted by learned senior counsel for the Appellant. Sections 153, 158 and paragraph 21 (b) of the Third Schedule to the Constitution of Federal Republic of Nigeria, 1999(as amended) controls and directs the affairs of the Judiciary as well as discipline of Judicial Officers to protect the sanctity of Judiciary. The said sections are not in conflict with the powers and jurisdiction of Court to entertain criminal matters.
I am inclined to pitch my tent of reasoning beside that of Ahmed Raji, SAN, learned senior counsel for the Respondent that considering the fact that time does not run against the State in criminal matters, the power of the Court to exercise criminal jurisdiction over the Respondent is only kept in abeyance and will only take effect after the fulfillment and compliance with the provisions of paragraph 21 (b) of the Third Schedule to the Constitution of Federal Republic of Nigeria, 1999 (as amended).

For these reasons and of course for the detailed ones adumbrated in the lead judgment of my learned brother just delivered, I find it seemingly impossible to take a divergent view from the one taken by the Court below. Consequently, I too, hold that the appeal lacks merit. Same is unreservedly dismissed.

EMMANUEL AKOMAYE AGIM, J.S.C.: I had a preview of the judgment delivered by my learned brother, Lord Justice CHIMA CENTUS NWEZE, JSC. I completely agree with the reasoning, conclusions and orders in the judgment that is bristling with erudition and resourcefulness.

Section 35(1)(b) and Section 36(4) to (12) of the Constitution of the Federal Republic of Nigeria provides a constitutional basis for the criminal prosecution of any person reasonably suspected of having committed a criminal offence, without exempting judicial officers that constitute Courts from such prosecution or making the initiating of the criminal process against the judicial officer subject to the fulfillment of any conditions precedent. Yet Section 36(1) of the 1999 Constitution requires that a Court be constituted in such manner as to secure its independence and impartiality. This situation gives rise to competing constitutional, rule of law and public interest imperatives and values and competing paramount necessities, where the person reasonably suspected of committing a crime is a serving judicial officer.
Experience has established that the arrest, detention and criminal trial of a judicial officer erodes his human and judicial confidence and dignity and his independent judicial mind, diminishes his human and judicial personality and makes him timid and easily afraid and erodes all courage in him, renders him unsure of himself, resulting in loss of some measure of personal decisional independence. Due to the psychological trauma of the stigma of criminal prosecution, a judicial officer that has gone through any stage of the criminal process hardly recovers his full judicial personality and mind.
There have been several incidents of the abusive use of the criminal process by the executive to intimidate, harass and humiliate judicial officers on account of their judicial decisions. Such moment generate a thick cloud of fear of malicious criminal process against judicial officers.
A Court constituted by a judicial officer that is or has been the subject of a criminal process or a Court system in which judicial officers are exposed to routine criminal processes including arrest and detention cannot be said to be constituted in such a manner as to secure its independence. So the constitutional provision that a person reasonably suspected of having committed a crime be subject to the due criminal process, competes or even works against the constitutional requirement that a Court be constituted in such a manner as to secure its independence and impartiality, where the person reasonably suspected of having committed a crime is a judicial officer because of the impact of the stigma of the criminal process in eroding his judicial mind. Also the rule of law that requires that the law be applied to all persons equally, except as permitted by law, requires that the Courts be constituted in a manner as to make them independent and impartial for without independent and impartial Court the rule of law would be endangered. Also while it is the public interest that the due process of criminal law lie against any person that is reasonably suspected of having committed an offence, it is also in the public interest that the Courts be constituted by judicial officers with independent judicial mind, with no fear or favour, to secure their independence and impartiality.
Our duty here is to lay the pathway to be followed by all institutions and persons, particularly law enforcement agencies in dealing with situations where the person reasonably suspected of having committed a crime is a judicial officer, to ensure that the enforcement of criminal law against judicial officers does not make it impossible for the Courts to be constituted in a manner that secures their independence. This duty involves balancing the said competing imperatives and values to ensure that criminal law is not applied and enforced in such a manner as would destroy the independence and impartiality of the Courts and so that the independence of the Court is not misused to provide immunity against criminal law and create a safe heaven for crimes by judicial officers and impunity for the said crimes.

The starting point in this balancing process is to determine the appropriate approach to interpret and apply the constitutional provisions that have generated these competing imperatives. In this process, it is useful to call to mind the established practice on how to interpret and apply a national constitution. As I restated in Nwali V EBSIEC & ORS (Judgment of Court of Appeal at Enugu in CA/E/510/2014 delivered on 5-10-2014) “The Courts across jurisdictions have, through the cases laid down the conceptual tools that should be used in Constitutional and fundamental rights adjudications and in the process evolved the principled criteria upon which the interpretation of the Constitution must proceed. Just as the criteria for the interpretation of statutes differ between statutes according to the subject matter of each statute, the criteria for the interpretation of statutes and other documents must be different from those for the interpretation of the Constitution because of its sui generis nature as the fundamental and supreme law of the Land, an organic document and a predominantly political document. Therefore it must be interpreted in line with principles suitable to its spirit and character and not necessarily according to the general rules of interpretation of statutes and documents.
One of the principles suitable to its sui generis nature is that it must be given a benevolent, broad, liberal and purposive interpretation and a narrow, strict, technical and legalistic interpretation must be avoided to promote its underlying policy and purpose. In interpreting the part of the Constitution providing for the protection of certain fundamental rights in a constitutionally established democratic culture, the Court must do so on the basis of principles that give the provision a meaning that promotes the values that underlie and are inherent characteristics of an open democratic society. Therefore, in interpreting any legislation in relation to any fundamental right provision of the constitution, the Court must promote the spirit, the purport and objects of the fundamental rights provisions of the Constitution.
Where the Constitution states a word or phrase generally or without any limiting words, it is obvious that it intends that the word or phrase should have a general meaning and application, unless other provisions in the Constitution state or suggest the contrary. If there are no other provisions of the Constitution requiring or suggesting the contrary, the Court must apply the word or phrase generally, and will have no power to restrict its application to specific situations.”
As it is, a progressive application of interpretative criteria from the literal, through golden, mischief and others, rather than a selective and isolated application of an interpretative criterion would be a better interpretative process of attaining the objectives of the constitution in situations such as in our present case, without defeating any of the competing constitutional values.
This progressive application of the interpretative criteria includes considering each rule in relation to the relevant constitutional provisions and to find out which one brings out a meaning that the words can reasonably bear and enable the attainment of the overall objectives of the Constitution. If the application of the literal rule would yield a meaning that defeats a fundamental objective of the constitution, then another criteria has to be applied. The golden rule which involves considering the provisions as a whole and purposively to attain a meaning that meet the objective of the Constitution is generally preferred in interpreting and applying a national Constitution.

In our present case, it is obvious that the use of the literal rule in interpreting and applying the said provisions of our Constitution would not help the judicial balancing of the competing constitutional values to ensure that they are not applied in such a manner as to defeat each other and the overall objective of the Constitution. I think that a holistic and purposive application of those provisions would help a proper balancing of the competing imperatives so that the public enforcement of criminal law against serving judicial officer would have regard to and not destroy the protection of the independence of the Courts and so that protection of the independence of the Courts must not defeat the enforcement of criminal law. To ensure that criminal law is not enforced against a serving judicial officer in such a manner as to disrepute the entire judiciary, erode public confidence in the judiciary and weaken the independence of the judiciary, it is necessary that where a serving judicial officer is reasonably suspected of having committed an offence, a full report of the matter including every information forming the basis of the allegation against him or her be first made to the National Judicial Council for its consideration and release of the judicial officer to go through the pre-trial and trial processes as a condition precedent to the initiation of any criminal process against him including invitation to police station or office of the relevant agency, arrest and detention thereat. This would enable the initiation of the criminal process to be managed in such a manner that it would not hinder the independence of the Court or would not appear as if it is a malicious and oppressive process to intimidate and harass the judicial officer so as not to disrepute both the Judicial system and the criminal process. Why such a report should be made to the NJC is because it is the body established by Section 153(1)(i) of the 1999 Constitution and vested with the primary power of disciplinary control of judicial officers of the Courts listed in Section 6 (5) of the Constitution by 158(1) and paragraph 21(b) of Part I of the Third Schedule to the 1999 Constitution.
Therefore the criminal prosecution of the appellant, a serving judicial officer for offences allegedly committed in the discharge of his judicial duties without first making a report of the matter against him to the NJC for its consideration is unconstitutional and void as it does not fit into the tenor, framework and objectives of the 1999 Constitution.
Reporting the matter to NJC as a condition precedent to the initiation of a criminal process against a serving judicial officer does not restrict or erode the prosecutorial powers of the law enforcement agencies or the jurisdiction of Courts to try any criminal case against a serving judicial officer because the NJC is not reviewing the decision to prosecute and is not trying the allegation of commission of crime.
It is important to note that where the alleged act is both a crime and judicial misconduct, the NJC, upon receipt of the report of the case against a serving judicial officer, can proceed to try the judicial misconduct and not the criminal character of the said act, without prejudice to any subsequent criminal prosecution of the said judicial officer. The disciplinary proceedings of the NJC against such officer on the basis of such report should take place before his or her criminal prosecution.
Relying on our decisions in Denloye V Medical and Dental Practitioners Disciplinary Committee (1968) 1 ALL NLR 306 at 311, O.G Sofekun V Akinyemi (1980) NSCC 175 at 184-185, Garba V University of Maiduguri (1986) 1 NWLR (Pt.18) 550, learned SAN for the appellant argued that because of the criminal character of the act, the NJC cannot deal with the aspect of the act that constitute judicial misconduct until a Court had tried the aspect of the act that constitutes a crime. This notion is no longer tenable in view of our decisions in Yusuf V Union Bank Ltd (1996) 6 NWLR (996) 6 SCNJ 201, Dongtoe V C.S.C Plateau State & Ors (2001) 4 SCNJ 131, Arinze V FBN Ltd (2004) 12 NWLR (Pt.888) 663 and other cases that the prosecution of an employee in a Court is not a sine qua non to the exercise of the disciplinary power by an employer for an act of misconduct that is also a crime. In any case, assuming the notion conveyed in our decisions in Denloye V Medical and Dental Practitioners Disciplinary Committee (supra), O.G Sofekun V Akinyemi (supra), Garba V University of Maiduguri (supra) that criminal prosecution of an employee in a Court for an act of misconduct that is also a crime must precede the exercise of the employer’s disciplinary power still applies as an inflexible rule, those decisions cannot apply to cases such as this because none of them involved a serving judicial officer, the constitutional provisions considered here were not considered in those cases and the Courts were not confronted with the competing imperatives of paramount necessity of preserving the independence of the Courts and at the same time ensuring that infractions of criminal law are properly investigated.
The position of this Court in this case accords with the law across jurisdictions. For example, the Supreme Court of India in various landmark cases acknowledged the competing constitutional and rule of law imperatives developed guidelines to be followed in arresting a judge suspected to have committed a crime. It described the competing constitutional and public interest values as the paramount necessity of preserving the independence of judiciary and at the same time ensuring that infractions of law are properly investigated. Example is Delhi Judicial Services Association v. The State of Gujarat & Ors., 1991 in which the Supreme Court of India held that the arrest of the Chief Judicial Magistrate is violative of Article 136 of the Constitution of India. The Apex Court opined that a magistrate, judge or judicial officer is liable for any offence like any other citizen but in view of the paramount necessity of preserving the independence of judiciary and at the same time ensuring that infractions of law are properly investigated, it laid down the guidelines to be followed before a criminal process can be brought against a judicial officer. Even though the decisions of the apex Court of India are not binding on Courts in Nigeria, the established judicial practice is that such decisions have very compelling persuasive influence and Courts in Nigeria are bound to give good reasons for not such decisions on the same law, issues and facts because the use of comparative jurisprudence from another jurisdiction involving similar circumstances and law is encouraged to support the integrity and reasonableness of the decision, particularly a novel one.

In the light of the foregoing, I also dismiss this appeal.

Appearances:

J. S. Okutepa, SAN, with him, Wahab Dhittu, Rotimi Oyedepo, Abiola Kolawole and Abdulkareem Musa For Appellant(s)

Ahmed Raji, SAN with him, Yinka Ajana and Olabode Aliyu For Respondent(s)