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Appeal Court squashes charge against judge, says EFCC lacks power to prosecute him



Respite, on Monday came the way of a serving judge of the Federal High Court, Justice Hyeladzira Nganjiwa, as a Court of Appeal, Lagos Division, struck out criminal charges filed by the Economic and Financial Crimes Commission against him.

The appellate court anchored its judgment on the principle of separation of powers between the three arms of government.

According to the court, in the above named case, the EFCC does not have powers to investigate or prosecute serving judicial officers except where such judicial officers have first been dismissed or retired by the NJC, adding that serving judicial officers can only be prosecuted for offences like murder, stealing etc if such offences are committed outside the discharge of their official duties; that once the offence is allegedly committed in the discharge of their duties, they must first be tried by the NJC and dismissed or retired before the EFCC can investigate or prosecute them.

Allowing the appeal against a decision of the Lagos High Court, Hon Justice Obaseki Adejumo JCA, who delivered the lead judgment for the Court of Appeal held that the condition precedent to filing of Charge No: LD/4769/2017 had not been fulfilled. He held that the NJC must first strip or remove the Appellant (judicial Officer) of his judicial standing before he could be charged with such alleged offence allegedly committed in the course of discharging his duties.

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The court therefore held that the High Court of Lagos State lacks the jurisdiction to hear and determine the charge against the serving judicial officer.

The Court of Appeal accordingly set aside the ruling of the Lagos High Court and upheld the preliminary objection of the appellant in the court below.

The charge against the appellant was dismissed.

The EFCC had on June 23 arraigned Justice Nganjiwa for allegedly receiving a total of $260,000 and N8.65m gratification to enrich himself as a public official.

The anti-graft agency claimed that the judge received the money through his bank account between 2013 and 2015.

It also claimed that the judge could not explain the source of the funds, adding that he acted contrary to Section 82(a) of the Criminal Law of Lagos State, No. 11, 2011.

Justice Nganjiwa was also accused of giving false information to operatives of the EFCC, which, the prosecution said, amounted to an offence under Section 39(2) of the EFCC (Establishment) Act, 2014. Justice Nganjiwa, had last month written to the Lagos Chief Judge, Justice Opeyemi Oke, that his case file be transferred to another judge.

Announcing her withdrawal from the case, Justice Akintoye, directed that the case file be returned to the CJ, for reassignment to another judge.

Justice Nganjiwa currently serving at the Bayelsa Division of the Federal High Court had earlier through his lawyer, Chief Robert Clarke SAN, petitioned the CJ seeking transfer of the case, alleging bias on the part of the trial judge.
According to him, the counts contained in the charge filed by the EFCC against a Senior Advocate of Nigeria (SAN), Rickey Tarfa, who is also standing trial before Justice Akintoye, are similar to his own and as such fair trial is likely to be tainted.

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In the letter dated November 10, 2017, Clarke said, “the trial judge is presiding over the charge number LD/2544/16, FRN v Rickey Mustapha Tarfa and the counts, facts of the charge against my client are substantially similar to the counts/facts of the charge against Ricky Mustapha Tarfa.

“In essence, my Lord, I am of the view that opinion formed by the learned trial judge as regards charge LD/2544/16 will invariably lead to same opinion in the information against my client.

“My Lord, as it stands, fair trial in the eye of a reasonable man is likely to be tainted as there is likelihood of bias”, the accused judge pleaded.

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