The Economic and Financial Crimes Commission (EFCC) has urged the Court of Appeal in Lagos to list Mohammed Yunusa, a judge recently discharged of bribery charges, for re-trial.
The Lagos State High Court in Ikeja had in a ruling on January 25 discharged Mr Yunusa of the bribery charges, citing a December 23, 2020 letter by the National Judicial Council (NJC) which lifted the suspension slammed on him in July 2016.
EFCC’s prosecutor, Wahab Shittu, had called 10 prosecution witnesses with only about two more to be presented, when the court struck out Mr Yunusa’s name off the charges, and ordered his alleged co-accomplice, Esther Agbo, to continue facing the trial.
Dissatisfied with the trial court’s ruling, the commission filed a notice of appeal to challenge it at the Court of Appeal in Lagos on Wednesday.
The anti-corruption agency raised three grounds of appeal in the notice of appeal obtained by PREMIUM TIMES on Thursday.
It prayed for “an order setting aside the order of the trial court striking out the name of the 1st respondent (Mr Yunusa) and discharging the 1st respondent from the information.”
It also sought “an order directing the trial court to relist and restore the name of the 1st respondent as the 1st defendant in the Information before the trial court.”
‘Judges not immune from prosecution’
The agency said the trial judge’s ruling attempted to confer immunity on Mr Yunusa as a judicial officer even when the Nigerian Constitution does not grant such immunity to judges.
EFCC’s prosecutor, Mr Shittu, who filed the appeal quoted the trial judge as saying in her ruling, “Upon the application of the learned silk, J. A Odubela, SAN, and the document tendered admitted and marked as Exhibit A2, the 1st defendant having been recalled on the recommendation of the National Judicial Council is a sitting judicial officer of the federation, hence immune from criminal proceedings.”
Faulting the ruling, Mr Shittu argued that section 308 of the Nigerian Constitution confers immunity from criminal prosecution on only serving President, Vice- President, as well as governors and deputy governors of state, and not on any other persons or authorities.
He added that section 153(1), paragraph 21(b) of Part 1 of the Third Schedule of the Nigerian Constitution “does not give rise to the interpretation that a criminal allegation against a judge must be first disposed of by the National Judicial Council (NJC) before criminal proceedings against a judicial officer can be initiated by the state.”
“The exercise of criminal prosecutorial powers by the state is derived from constitutional and statutory provisions,” he added.
‘NJC’s disciplinary power distinct from EFCC’s power to prosecute’
In another ground of appeal, EFCC argued that “the trial court erred in law and misdirected itself in the interpretation of the decision in Nganjiwa vs FRN (“017 LPELR 43391CA.”
In the case referred to, the Court of Appeal had in 2017 ruled that a judge of the Federal High Court, Hyeladzira Nganjiwa, could not be prosecuted unless he was first disciplined by the NJC.
But Mr Shittu, in faulting the discharge of Mr Yunusa, noted that his trial commenced after a case against him had been referred to the NJC.
He argued that the Nganjiwa vs FRN case “did not decide that a matter determined by the NJC one way or the other cannot be subject to subsequent criminal proceedings against the serving judge in respect of alleged criminal offences.”
“Constitutional powers assigned to the National Judicial Council and law enforcement agencies are distinct and separate and the exercise of any of such powers is not dependent on the other.
“National Judicial Council is constitutionally vested with administrative and disciplinary jurisdictional powers against judicial officers while law enforcement agencies are vested with investigative and prosecutorial powers for criminal offences.”
‘NJC’s letter can’t stop criminal proceedings’
He argued that “the trial judge erred in law in holding that, ‘consequently, the case against the 1st defendant (Mr Yunusa) is hereby struck out and he is accordingly discharged’.”
As part of the “particulars of errors” raised under the grounds of appeal, Mr Shittu contended that “a judicial officer is not immune from criminal prosecution by constitutional or statutory provisions.”
He argued that the precondition for the prosecution of a judge as set in the Nganjiwa vs FRN case was fulfilled in Mr Yunusa’s case as his matter was first referred to the NJC before he was charged before the Lagos State High Court.
“Exhibit A2, letter dated January 11, 2021, admitted in the trial court from the Federal High Court of Nigeria and letter dated December 23, 2020, from the National Judicial Council being administrative actions cannot operate to terminate criminal proceedings involving the 1st respondent and the 2nd respondent which had reached an advanced stage leading to testimonies of 10 prosecution witnesses and the admission of several legally admissible evidential materials in the proceedings,” he added.
Mr Yunusa was a serving judge at the Enugu Division of the Federal High Court when he was, in July 2016 suspended by the NJC pending President Muhammadu Buhari’s approval of the council’s recommendation for his compulsory retirement.
His sanction was based on a petition by the Civil Society Network Against Corruption (CSNAC) accusing him of arbitrarily giving orders to restrain anti-corruption agencies from carrying out their statutory duties of investigation and prosecution.
In January 2018, the EFCC arraigned him on three counts of taking bribes from a Senior Advocate of Nigeria, Rickey Tarfa, who is also being separately prosecuted by the commission on similar charges.
The anti-graft agency, in February 2020, scaled the charges up to nine counts. It re-arraigned Mr Yunusa alongside Esther Agbor, a worker at Mr Tarfa’s law firm, who was accused of paying N1.5 million to the judge’s bank account.
The commission, in the amended charges, accused the two defendants of attempted perversion of the course of justice, corruption by a public official, use of office or position for gratification to the tune of N2,2 million.
The EFCC had called 10 prosecution witnesses when Serifat Solebo, the trial judge at the Special Offences Division of the Lagos State High Court in Ikeja discharged Mr Yunusa in a ruling delivered on January 25.
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