The Economic and Financial Crimes Commission (EFCC) has sent what it describes as a final address of its detailed allegations against suspended CJN Walter Onnoghen to the National Judicial Commission (NJC).
The final address sent to the NJC was reported by The Cable.
Read the full details below:
FULL TEXT OF EFCC’S FINAL ADDRESS TO THE NJC AS OBTAINED BY THECABLE
IN THE NATIONAL JUDICIAL COUNCIL HOLDEN AT ABUJA
BETWEEN: THE ECONOMIC AND FINANCIAL CRIMES COMMISSION AND JUSTICE WALTER SAMUEL NKANU ONNOGHEN GCON.
THE PETITIONER’S FINAL ADDRESS IN RESPECT OF PETITION ON FINANCIAL IMPROPRIETY, INFIDELITY TO THE CONSTITUTION AND OTHER ECONOMIC AND FINANCIAL CRIMES RELATED LAWS AGAINST HON. JUSTICE WALTER SAMUEL NKANU ONNOGHEN GCON.
My lords, by petition dated the 4th day of February, 2019 signed by the Ag. Executive Chairman, Economic and Financial Crimes Commission (hereinafter called, petitioner) to the Chairman, National Judicial Council, allegations of FINANCIAL IMPROPRIETY, INFIDELITY TO THE CONSTITUTION AND OTHER ECONOMIC AND FINANCIAL CRIMES RELATED LAWS were leveled against the Respondent. See exhibit P10.
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Furthermore, my lords, by another letter dated the 5th day of March,2019, the Petitioner forwarded additional facts and findings to the Chairman of the Council which letter was referred to this Honourable Committee for necessary action. The petitioner adopted this additional facts and finding before this Committee and was admitted and marked exhibit P10A.
My lords, at the hearing of this petition, the petitioner called 7 witnesses and tendered documentary evidence which were admitted and marked as shown in the table below:
It is also worthy of note that exhibits P17-P21 were tendered by the Respondent through PW7 Hary Erin, the Investigating Officer of the Petitioner.
My lords, the Respondent called the Acting Director of Finance and Account of the Supreme Court and also testified on his own behalf. In the course of his defence, the Respondent tendered documentary evidence through DW1 and himself. The exhibits are as shown in the table below:
ISSUE FOR DETERMINATION
We respectively submit that the sole issue for the determination of this Honourable Committee is whether in view of the evidence adduced by the Petitioner, it can be said that the Respondent has not breached the Code of conduct for Judicial Officers of the Federal Republic of Nigeria.
ARGUMENT ON THE ISSUE
My lords, it is our humble submission that from the evidence on record, it cannot be said that the Respondent has not breached the Code of Conducts for Judicial Officers. My lords by virtue of his appointment as a Judicial Officer, the Respondent has a duty to actively participate in establishing, maintaining, enforcing and observing a high standard of conduct that will ensure and preserve transparently the integrity of the Judiciary. The Respondent is also duty bond, in the performance of his duties to adhere and observe strictly the rules set out in the Code of conduct for Judicial Officer and failure to do so automatically constitutes misconduct. We humbly refer my lords to the Preamble to the Code of Conduct for Judicial
It is must be stated that the Code of Conduct for the Judicial Officers serves as the minimum standard of conduct to be observed by each and every judicial Officers. My lords, this explains why the preamble to the code provides: “therefore, this code of conduct for Judicial Offices of the Federal Republic of Nigeria is hereby adopted to serve as the minimum standard of conduct to be observed by each and every Judicial officer as defined in this code”
ALLEGATION OF INFIDELITY TO THE CONSTITUTION OTHER LAWS PROHIBITING ECONOMIC AND FINANCIAL RELATED OFFENCES
My lords, Rules 3 of the Code of Conduct for Judicial Officers states “A Judicial Officer should be true and faithful to the Constitution and the Law, uphold the course of justice by abiding with the provisions of the Constitution and the Law and should acquire and maintain Professional competence”
Also my lords, Rule 1 (1.3) of the Code of Conduct for Judicial Officers imposed an obligation on the Respondent to Respect and comply with the laws of the land and should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the Judiciary.
My lords, the take home points from the aforementioned provisions is that his Lordship is bound as a judicial officer to respect, comply with and abide the provisions of the Constitution and the various applicable laws in Nigeria.
My lords, by the provisions of section 11 (1) of the Code of Conduct for Public Officer, contained in the Fifth Schedule, Part 1 of the 1999 Constitution of the Federal Republic of Nigeria as amended, the Respondent is bound to immediately and upon assuming office as a Judicial officer submit before the Code of Conduct Bureau a written declaration of all his properties, assets and liabilities and those of his unmarried children under the age of eighteen years.
It is our humble submission that from the evidence on record before this Honourable Panel it is very clear that the Respondent failed to declare his asset in line with the provisions of the Constitution.
Upon his appointment as a judicial Officer in 1989 as justice of the High Court of Cross Rivers State, the Respondent is bound to declare his asset. There is no evidence before this Honourable Panel that the Respondent ever declared his asset until 2016 when he filled annexure E and F of exhibits R 6 and R7. My lords, in exhibit R7, the Respondent admitted that he failed to comply with the Constitutional provisions requiring him to declare asset on the ground that he forgot due to pressure of work. My lords, even in the conventional court where rules of evidence is applicable every admitted facts need no further prove. See Agbakoba v. SSS (1994) 8 NWLR (Pt.351) p. 475 and the case of Gov. of Akwa-Ibom State v. John Amah (2002) 7 NWLR (Pt.767) 730 at 778.
In view of this clear admission, the Petitioner is under no further obligation to prove that the Respondent failed to declare his asset in line with the provision of the Constitution.
In this case, the Respondent admitted the breach of the Constitutional provision. It is therefore our humble submission that his Lordship has violated Rules 1 (1.2) and Rule 3(3.1) of the code of Conducts for Judicial Officer which imposed the obligation on the Respondent to respect and comply with the laws of the land and to be faithful to the Constitution of the Federal Republic of Nigeria.
APPEARANCE OF FINANCIAL IMPROPRIETY AND FINANCIAL IMPROPRIETY
My lords, from the evidence on record it is clear that the Respondent failed to declare all the accounts and funds in exhibit P4-P4D when he declared his 2014 asset in November,2016. Your lordship will observe that the Respondent only declared his Salary account with the Union Bank exhibit P3 and failed to declare P4-P4D which are the accounts that warehoused funds that are far above the Respondent’s known and provable lawful income.
My lords, by the provisions of Rule 1.2 of the Code of Conduct for Judicial Officers it is clear that because members of the public expects a high standard of conduct from a judge, the Respondent is under the obligation to avoid impropriety and the appearance of impropriety in all his activities both in his professional and private life. It is our submission my lords, that any conduct of the Respondent that give rise to the appearance of impropriety is a judicial misconduct and same is punishable under the Code of Conduct for Judicial Officers.
It is our humble submission that the petitioner proved before this Honourable Panel that the Respondent was in possession of funds which are fairly not attributable to his known, proveable and legitimate source of income. The evidence shows that my lord earned a monthly salary in the sum of N750, 819.87 which is about N9, 000,000.00 per annum. My lords, as shown in exhibit P10A page 14 paragraph XXVI the Respondent only earned the sum of N91,962,362.49 as salary between September,2005 and October,2016. It is also on record that the exhibit P3 is the salary account of my lord wherein his salaries are paid.
My lords, the evidence before this Honourable Committee shows clearly that the Respondent opened United State Dollars account with the Standard Chartered Bank in 2009, exhibit P4 C. This USD account was opened by Mr. Joe Agi SAN and the first cash depositor of United State of America Dollars into the said account. We humbly refer my lords to the entry of the 29th day of June,2009. Though the Respondent claimed that he was the one who gave the learned SAN, Joe Agi the $30,000.00 to deposit to exhibit P4C, the Respondent could not give any reasonable explanation as to source of this money. My lords, the Respondent admitted under cross examination that the USD was not his salary and that he only received dollars as estacodes which is meant to for his official trips.
My lords, upon the opening of the USD account exhibit P4C, a lot of cash deposits in Dollars were made to this account. The evidence before my lords is that between 2009 and 2016 a lot of cash deposits were made into exhibit P4C as show in the table below:
My lords, from the evidence before this Honourable Panel it is clear that these huge sums of money were not earned by the Respondent as his salaries and allowances. It is our humble submission that the burden of proving the legitimate source or origin of the sum of $1,716,000.00 lies heavily on the Respondent.
My lords, in 2018 the Supreme Court in the case of DAUDU v. FRN (2018) LPELR-43637(SC) (Pp. 13-14, Paras. B-E) Per AKA’AHS J.S.C. held while construing section 19 (3) of the Money Laundering Prohibition Act held as thus: By Section 19(3) of the Money Laundering Act, if an accused person is in possession of pecuniary resources or property which is disproportionate to his known source of income, or he obtained an accretion to his pecuniary resources or property, the burden of giving a satisfactory account of how he made the money or obtained the accretion shifts to him. The prosecution is relieved of the burden of having to prove that the money so found in his account or in his possession is proceeds from illicit traffic in narcotic drugs or psychotropic substances or of any illegal act. To explain the point further, where A is a fixed salary earner and suddenly his account is credited with an amount beyond his income or has property which his legitimate income cannot afford, the burden shifts to him to explain how he got the money with which he bought the property or the legitimate transaction he was engaged in for which the account was credited.” (Underlining ours for emphasis).
My lords, in the instant proceedings, the burden of justifying the legitimate origin or source of these sums of money rest squarely on the Respondent. It is our humble submission that the Respondent failed to discharge this burden and the probable conclusion which this Honourable Panel should come to – is that these huge cash deposits are proceeds of unlawful activities.
The only feeble and frail attempt made by the Respondent to explain the source of these huge sum of money is contained in exhibit R7 page 2 wherein his lordship stated as follows: “The sources of these are from my savings from my days as foreign student and a successful private legal practitioner, as well as Estacodes for annual for annual vacations, medical expenses, international conferences, my earnings as a Justice of the Supreme Court of Gambia (See Annexure “B” referenced as ZD 129/186/01/P.II/(148), among others; conversion of Naira to Dollars which sometimes ago was very favorable. I also have returns from my off-shore investments in the foreign currencies which are clearly documented by the bank. I had an overdraft of $500,000 approved for me in the USD Dollars account in November, 2018. Up till now, the proceeds from the investments are paid into the account as and at when due. My investments with Standard Chartered Bank also include Federal Government Bonds as can be seen from the records for which I received dividends.”
My lords, the Respondent wanted this Honourable Panel to believe that when he was a foreign student in Ghana he accumulated such amount of money. My lords, how the Respondent accumulated money as foreign student was not stated to this Panel. My lords, the Respondent who purportedly cannot afford to pay N7, 000,000.00 to Joe Agi SAN in 2009 wanted this Honourable Panel to believe that he accumulated dollars to the tune of $1,716,000.00 in his house.
My lords, the Respondent who never declared having $1,716,000.00 in his asset declaration form as cash in hand wanted this honourable Panel to believe that he accumulated the said sum in his house and only deposited them in the bank between 2009 and 2016 in cash.
My lords, the Respondent also attempted to suggest to the Honourable Panel that the $1,716,000.00 cash deposit in exhibit P4C was earned by him upon his part-time appointment as Justice of the Supreme Court of Gambia. My lords, this explanation with due respect is laughable in that the Respondent was appointed on the 22nd day of November,2012. On the face of the appointment letter, it is clear that the Respondent is entitled to the Five Thousand pounds Sterling (5,000 GBP) and Twenty Thousand Dalasis which is payable per session to be determined by the Chief Justice of Gambia in line with the Rules of the Supreme Court of Gambia. The Respondent failed to show this panel that consequent upon his appointment in November,2012 and the assumption of that office in 2013 the number of sessions he sat as a member of the Supreme Court of Gambia. The Respondent also failed to state how much he earned from Gambia, how he was paid whether cash or through his account. What is clear is that if the Respondent is to earn any fee from Gambia it will be GBP and not USD. What is in issue is the USD paid in exhibit P4C.
The summary of our submission is that the Respondent has failed to show with credible evidence how he legitimately earned the sum of $1,716,000.00 which is far above his lawful and provable income.
Also my lords, coming to the $ 30.000.00 deposits made by Mr. Joe Agi SAN to exhibit P4C, which the Respondent claimed he gave to DW2 in cash to deposit for him. My lords, it is our humble submission that the explanation of the Respondent is not sustainable in law and we urge this Honourable Panel to reject same. My lords, even the purported depositor of the money, Mr. Joe Agi SAN stated in his statement exhibit P19, that he will be surprised to see that he ever received the sum of $30,000.00 from my lord as the said sum was a lot of money. My lords, in page 5 of exhibit P19, this is what the learned SAN said: “I will be surprised if the money onnoghen gave me was up to $30,000.00 as I cannot remember taking $30,000 USD from Justice Onnoghen. $30,000 USD is big money to take at a go”.
My lords, the amount DW2, Mr. Joe Agi SAN admitted was too big to take at a go is the amount the Respondent claimed he gave to the DW2. My lords, it was the amount that the DW2 said he will be surprised if the Respondent had given him was the amount the Respondent claimed he gave to the DW2. What these materials contradictions show my lords is that the claim of the Respondent is nothing but an afterthought and attempt to put a wool on the clear eyes of this honourable Panel.
My lords, we must ask ourselves how can a Senior Advocate of Nigeria, a regular practicing lawyer before the Supreme Court where the Respondent is privileged to preside as judicial officer suddenly become an errand boy for the Respondent to go to the bank for the purpose of depositing cash to the Respondent’s account.
THE CAR GIFT FROM JOE AGI
My lords, it was still the same DW2, Mr. Joe Agi SAN who gave Mercedes Benz GL 450 worth N7, 000,000.00 to the Respondent in the 2009 that also made a cash deposit of $30,000.00 on the 29th day of June,2009 to His Lordship account.
My lords in exhibit R7 annexure E, the Respondent declared on oath that he purchased Mercedez Benz 450 with Registration Number WSN 330 AD in 2010 with his Salary and Allowances. The Respondent was shown under cross examination exhibit P3, his salary account and asked to show the Honourable Panel how he acquired and paid for this vehicle with his salary and allowances the Respondent couldn’t do so as there is no such prove in the salary account.
My lords notwithstanding this declaration and failure of the Respondent to show how he paid for the vehicle from his legitimate income, the Respondent raised a defence that he knew Mr. Joe Agi SAN as a car dealer along side with his active practice of law and that he bought the said vehicle from Mr. Joe Agi SAN and paid for it in cash instalmentally.
To start with my lords, whereas DW2, Joe Agi SAN claimed that he received the full purchase price of the vehicle from the Respondent before proceeding to the United State to purchase same, the Respondent on the other hand claimed that it was upon delivery of the vehicle by DW 2 that he started paying instalmentally in cash. We humbly refer my lords to exhibit P19 pages Joe Agi SAN states “I got all the payment for the Vehicle before I travelled to America to buy it”.
We also refer my lords to exhibit R8 page 2 where the Respondent states “I have known the learned SAN to be a car dealer over the years besides his practice as a legal practitioner. Therefore, I made enquiries from him as to how I could get a black version of the same vehicle promising to pay by installments upon delivery. The learned SAN eventually delivered the vehicle and I paid him cash in instalments as agreed after which I registered the vehicle and put it to use.”
This is another major and material contradiction which shows this honourable panel that the defence of purchase of the vehicle by the Respondent from Mr. Joe Agi SAN is nothing but a ruse.
My lords, another issue are that the Respondent failed to show this Honourable Panel how he paid for the vehicle from his lawful earnings. As a matter of facts the Respondent was confronted with all his account before this honourable panel during cross examination to prove how and the source of the money he purportedly gave to Joe Agi SAN as purchase price of the vehicle but couldn’t as there is no such payment.
My lords, to add salt to the injured and lame defence raised by the Respondent, the DW2 who purportedly was the seller of the vehicle to the Respondent testified under cross examination as follow:
“Q: Will I be right to say that you trade in cars aside your legal practice.
A: I am not a car dealer in Nigeria. I do not trade in cars in Nigeria.
Q: In whose name is the company in United States registered?
A: I don’t know
Q: You agree that you have a dealership license in America?
A: I don’t know
Q: In whose name is the dealership licence you refer to P19.
A: I cannot remember
Q: Do you have the permission of the General Council of the Bar to sell cars?
A: I do not need permission as I do not sell car in Nigeria”
It is our humble submission that the Respondent’s contention to the effect that the Vehicle was sold to him by the DW2 Mr. Joe Agi SAN cannot stand in view of his unequivocal denial under cross examination that he doesn’t sell car in Nigeria.
My lords, it is appropriate to examine why will the Respondent put forward the aforementioned defences? Our findings and humble submission is that these defence shows clearly that the Respondent is fully aware that by virtue of his appointment as Judicial Officers, the receipt of car gift worth N7, 000,000.00 and $30,000 from a practicing legal practitioner is clearly misconduct under the code of Conduct for Judicial Officers. We therefore urge my lords to find in our favour that the Respondent received the car gift and the sum of $30,000.00 from the DW2 a practicing lawyer who had appeared, appearing and may still appear.
RECEIPT OF PECUNIARY GIFTS FROM PRACTICING LAWYERS
My lords, from the evidence on record, it is not only DW2 that the Respondent received pecuniary gifts from. In exhibit P10A, it is clear that the Respondent received various sums of money from practicing lawyers as shown in the table below:
It is also clear from the evidence on record that the aforementioned Senior Counsel had at one time or the other appeared before Supreme Court panel in which the Respondent was a Honourable Justice.
My lords, Rule 1 of the Code of Conduct for Judicial Officers provides: “propriety and the appearance of propriety, both professional and personal, are essential elements of a judge’s life. As members of the public expects a high standard of conduct from a judge, he or she must, when in doubt about attending an event or receiving a gift however small, ask himself or herself the question- how might this look in the eyes of the public?”
The Spirit behind the tenor of the above provision of the code is that because the member of the public expects a high standard of conduct from the Respondent, he must at all time before receiving any gift ask himself how will the receipt of same from practicing lawyers look in the eyes of the public. How will the public view the receipt of cash from counsel who had appeared, appearing or may appear before his Lordship. It is our humble submission that the impression that any reasonable member of the public will form is that the Respondent may not be able to dispense justice without fear of favour.
Also my lords, Rules 1 (1.4) also provides: “The Judge must be sensitive to the need to avoid contacts that my lead people to speculate that there is a special relationship between him and someone whom the judge may be tempted to favour in some way in the course of his judicial duties.”
My lords, Rule 1 (1.5) of the Code of Conduct for Judicial Officers also provides: “A judicial Officers must avoid social relationships that are improper or may give rise to an appearance of impropriety or that may cast doubt on the ability of a Judicial Officer to decide cases impartially.”
My lords, it is our humble submission that from the evidence on record it is clear that the social relationship that existed between Mr. Joe Agi SAN and the Respondent had given rise to an appearance of impropriety. My lords, Joe Agi SAN in exhibit P19 stated “I have appeared before his lordship Justice Onnoghen as a high Court Judge in Cross River State. … In the Supreme Court I appeared before Justice Onnoghen the following case (1) Chibuike Ameachi v Omehia as lawyer to Omehia and he gave judgment against us. (2) Ohakim V Rochas Okorocha about 2011 I represented Ohakim and we lost. (3) Ararume V Ohkim I represented Ohakim in 2009 and we won. (4) Honourable Jenkins & Another V DPP in the year 201, I represented DPP and we won. And others which I cannot remember for now.”
From the quoted portion of the exhibit P19 it is clear that the same counsel who made cash deposits of $30,000.00 to my lord’s USD domiciliary account and bought vehicle worth N7,000,000.00 for my lord is the same person that had appeared in those cases before my lord. If this does not amount to misconduct what will?
It is also not in doubt that by the provisions of Rule 2 of the Code of Conduct for Judicial Officers the Respondent is under the obligation to avoid situations which might reasonably give rise to the suspicion of or appearance of favouritism or partiality with individual members of the legal Profession who practice regularly in Court where the Respondent presides. We humbly refer my lords to Rule 2 (2.1) of the Code of Conduct for Judicial Officer.
My lords, although social contact between members of the judiciary and members of the legal profession is a long standing tradition and is proper, however, a Judicial Officers must exercise caution in this aspect of his social contact with members of the profession. In fact my lords, by the provision of Rule 2(2.2) of the Code of conduct for Judicial Officers, the Respondent is bound to avoid recurrent contacts with a lawyer appearing before him in the course of a particular case if this could lead to a reasonable perception that the judge and the lawyer have a close personal relationship.
My lords, Rule 2 (2.5) of the Code of Conduct for Judicial Officer prohibited the Respondent from receiving a pecuniary gift from a legal practitioner who may appear in a case before him. The said Rule 2 (2.5) provides: “A judge shall not accept gifts from a lawyer who might appear in a case before him if the gift is not one given to Judge generally at festive seasons such as Christmas or Salah gift; provided always that the gift is not more than that ordinarily given or is not of pecuniary nature.”
My lords, it is therefore our humble submission that the receipt of various sums of money from practicing lawyer who had appeared, appearing and might appear before my lord is clearly a violation of the Rule 2 (2.5) of the Code of Conduct for Judicial Officers which prohibited a judicial Officer from accepting a pecuniary gift.
My lords, it is our humble submission that it is not a defence under this code that the pecuniary gift received was small or big or that it cannot ground criminal conviction of gratification and bribery. What matters is the nature of the gift as it must not be of pecuniary nature.
MONEY LAUNDERING ALLEGATION
My lords the Petitioner also alleged that the Respondent in 2017 and 2018 infringed the provisions of the money laundering provision Act,2011 as amended by accepting cash payments of the various sum of money which exceeded the amount authorized by law. We referred my lords to paragraphs 2 (VI) AND (VII) of exhibit P10A.
My lords, PW6 was the person who made the cash payment whilst the Respondent who accepted the cash payment. PW6 maintained that he simply acted under instruction to pay the Respondent these various sum of United State dollars in cash for which the Respondent signed and acknowledged receipt. My lords, PW6 tendered the register signed by the Respondent acknowledging the receipt of the USD which was admitted as exhibit P8.
My lords, at the hearing of this petition, the petitioner also tendered P9 which is the treasury circular from the Accountant General of the Federation prohibiting the payment of cash by Central Pay officer to any officer. When PW6 was confronted with exhibit P9 he maintained that he was acting on instruction to pay in cash to the Respondent.
PW6 also stated that he was only acting under instruction when he paid estacodes to the wife of the Respondent as there is no any financial instrument or regulation they relied on in paying Estacodes to the wife of the Respondent who is neither a staff of the Supreme Court nor a Judicial Officer of the Apex Court. Even DW1, the Director of Account of Supreme Court confirmed to this Honourable Panel that there is no approval or any regulation authorizing or approving the payment of estacodes to persons who are not officers of the Supreme Court. He said the only instrument they acted on is exhibit P7 which approved estacodes to Judicial Officers only and not their spouses.
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My lords, the Respondent admitted collecting the said sum in cash and only raised a defence that it was the practice and convention in the Supreme Court to give estacodes in cash to judicial Officer and to pay 50% of the approved Estacodes to the spouse.
My lords, it is worthy of note that the very act or conduct of the Respondent accepting cash payment of the various sums of money which obviously exceeded the amount authorized by law is an offence under sections 1(a) and 16 (d) of the Money Laundering Prohibition Act, 2011 as amended and punishable under section 16 (2) (b) of the same Act.
My lords, on the 12th day of January,2018 the Apex Court under the headship of the Respondent had course to pronounce on this issue of cash payment to the public officer in the case of in the ADEYEMI SABIT IKUFORIJI V FEDERAL REPUBLIC OF NIGERIA (2018)LPELR-43884 (SC) PAGES 21-25 where per Aka’ahs held as follows:“It is submitted by the Appellant’s counsel that the Appellant did the act complained of in his capacity as the Speaker of Lagos State and that the acts “complained of were done legitimately within the ordinary function and duties of the office of the Speaker”. This submission insinuates a corporate crime. That is, an organizational crime committed by a corporation’s representative on behalf of the corporation. It is further submitted that, from the evidence of the PW.1 that “the monies collected were collected by the (appellant) in his capacity as the speaker and for the purpose of his office as speaker”, and that, because of that official purpose, no prima facie case under Section 1 of MLPA 2004 and MLPA, 2011 has been disclosed against the Appellant. It is further submitted that the office of the speaker “is a body corporate” and that unless the act or omission for which the Appellant is being charged falls outside the ambit and duties of the speaker of Lagos State House of Assembly” the appellant cannot be criminally responsible for the acts or omission of the said corporate body. These are clearly the defence the Appellant has to the allegations against him. Accordingly, I agree with the Respondent that “these are ordinarily not arguments meant for a no case submission”. I agree. That isÂ the argument the defendant in KALU v. F.R.N. (2012) LPELR – 9287 (CA) advanced. It was rejected as been premature as a defence at the stage of a No-case submission by the Court of Appeal. The Supreme Court in KALU v. FRN (2016) 9 NWLR (pt 1516) I affirmed the decision.
It appears that the purpose the cash received or accepted in excess of the prescribed threshold statutorily fixed by Section 1 MLPA 2004, or Section 1 MLPA, 2011 is immaterial. Let it not be forgotten that an agreement to do a lawful act unlawfully is also criminal offence. This point caught the attention of the lower Court and at page 2410 of the record it stated the law thus: (It) does appear to me that the Court below missed the finer point that, the purpose of Section 1 of MLPA, 2004, before its repeal, and (Section 1 of MLPA) 2011respectively is in my view and I so hold, to clearly and strictly bar the payments and or acceptance of cash payments above the set threshold irrespective of the purpose and authorization for the payments. Every payment above the threshold amount stated in Section 1, with the coming into effect of MLPA 2004, before its repeal, and MLPA, 2011must be made through a financial institution to be excluded from the operation of the MLPA. See NYAME v. FRN (2010) 7 NWLR (pt. 1193) 344 at p. 399.
The purpose of paying the money and accepting the money/cash in excess of the prescribed threshold may beÂ lawful in the defendant’s wishful thinking. However, in the penal statute; the payment and or acceptance of cash in excess of the prescribed threshold is illegal or unlawful, if not done through a financial institution. The purpose for either the payment or receipt of cash in excess of the prescribed threshold is not a mens rea defence under the MLPA, 2004 or MLPA, 2011. Ours, as the judex, is to interpret the law and declare what it is. In interpreting a statute, the object is to discover the intention of the legislature and bring it out. The intention of the statute is usually deduced from the language used in the statute. We cannot therefore go outside the words in the language of the statute. Therefore, as this Court held in MALLAM ABUBAKAR ABUBAKAR & ORS v. SAIDU USMAN NASAMU & ORS (2012) LPELR – 7826 (SC) – where the words used are clear and unambiguous they must be given their ordinary plain meaning, so as to avoid reading into the provisions meanings not intended by the lawmakers. See also ISHOLA v. AJIBOYE (1995) 1 NWLR (pt. 352) 506; P. D. P. v. C. P. C & ORS (2011) LPELR- 2909(SC). Accordingly, in its interpretative jurisdiction the Court does not, and must notÂ interprete a statute by placing a gloss on the provisions by reading into the provisions words neither used, contemplated nor included therein. Thus, as I stated elsewhere in OBI v. OJUKWU & ANOR (2009) LPELR 8511 (CA), when the words of a statute are plain and unambiguous; the plain duty of the Court interpreting the statute, is to bring out its overriding objective. The Court does not have inherent powers to say that the provisions, which are quite plain, mean what do not actually mean nor that the plain meaning should be ignored. The statute must be construed to mean what it means or to mean what it is intended to mean and not to mean what it clearly means. See VINOS v. MARKS & SPENCER (2001) 3 ALL E.R 784. Fortunately, the Courts, in their respective jurisdiction, have not yet imbibed the craft or art of “Double Speak”, predicted in George Orwell’s Nineteen Eighty Four; Where the Big Brother’s Yes Means No, and His No means Yes.
On the basis of all I have been saying, or trying to say, I find no substance in this appeal. It is accordingly dismissed in its entirety. The decision of the Court of Appeal delivered in the appeal on 26th November, 2014 in the appeal No. CA/L/1046A/2014 and consequently, the order made therein remitting the case “to the Chief Judge of the Federal High Court for reassignment to any Judge of the Federal High Court other than Buba J., for expeditious hearing and determination de-novo” are hereby affirmed.”
It is therefore our humble submission that the defence of “other people are doing it or have done it”, “it is our practice”, “it is the decision of the management of Supreme Court to pay estacodes in cash” raised by the Respondent is of no moment in the light of the above quoted decision of the Apex Court and the provisions of the money laundering Prohibition Act, 2011 as amended.
It is our humble submission that the enforcement of the provisions of an Act of National Assembly cannot be suspended by a mere convention or practice of the staff or management of Supreme Court. It is only the Court of law that can void the provisions of a Statute and no one else.
From the evidence on record it is vividly clear that the Respondent brazenly floated the provisions of the Money Laundering Prohibition Act,2011 as amended. He purportedly paid N7, 000,000.00 to buy a vehicle in cash from Joe Agi SAN; He purportedly gave Mr. Joe Agi SAN $30,000.00 in cash and he bought a farm worth N50, 000,000.00 in cash and. It is our humble submission that these conducts of the Respondent to say the least constitute serious breach of the code of Conduct for Judicial Officer particularly Rule 1 (1.2) & (1.3) and Rule 3 (3.1) which imposed obligation on the Respondent to obey, respect and abide with the provisions of the Constitution and the laws of the land.
We therefore urge my lords to find in our favour that an infringement of the provisions of the Money laundering Prohibition Act,2011 as amended constitutes breach of the Code of Conduct for Judicial Officer. My lords, who should obey, abide and comply with the laws of our land if not the Respondent; a serving Judicial Officer.
CONVERSION OF PUBLIC FUNDS TO THE PERSONAL USE OF THE RESPONDENT AND HIS WIFE
My lords, the next issue is the conversion of the public funds by the Respondent to his personal use as alleged in page 3 of exhibit P10A.
My lords, the evidence adduced by the Petitioner shows that the Respondent acted in concert with PW5 Laura Ngozi Okonkwo, Head Protocol Unit Supreme Court to convert to the use of the Respondent the total sum of N24,169,452.00 between 27/07/2017 and 05/11/2018 which sum represented the surplus of the ticket money requested for by PW5, head Protocol Supreme Court whose duty was to purchase the ticket for the Respondent. It was the evidence of PW5, that after the purchase of the ticket she was meant to return and or retire the surplus back to treasury but the Respondent directed her to pay the money to his account.
My lords, the height of this alleged fraudulent conversion of the public funds by the Respondent was as contained item 11 page 3 of exhibit P10A wherein the Respondent converted the sum of N9,203,602.00 property of the Supreme Court of Nigeria to his personal use. My lords, the evidence of PW5 was that the Respondent traveled sometimes in November,2018 from Abuja to Istanbul through Dubai and returned. But before the trip she got approval to buy the ticket from the Chief Registrar. The approval she got was for the purchase of the ticket for the Respondent’s trip from Abuja To Dubai, Dubai To Abuja And Abuja To Istanbul, Istanbul To Abuja. Upon securing the approval and the money released to her, PW5 bought a return ticket which covers the Respondent’s trip from Abuja to Istanbul through Dubai and Istanbul to Abuja through Dubai. PW5 maintained before this Honourable Panel that she routed the ticket to Istanbul through Dubai because Emirates Airline fly to Istanbul through Dubai. PW5 stated that the sum of N9,203,602.00 ought to be returned back to the treasury but she transferred same from exhibit P5 to the Respondent’s Naira account, exhibit P4 and P4A which are the Naira account opened by the Respondent in Standard Chartered Bank. We refer my lords, to the entry of 5th day of November,2018.
My lords, the Respondent did not deny this allegation but rather contended that the money was his entitlement. How the surplus of the approved sum of the ticket purchased by the protocol unit becomes the Respondent’s lawful entitlement only resides in the realm of imagination and not supported by the financial regulation. As a matter of fact, PW5 who was the officer that applied for the money stated before this panel that she was meant to retire and or return this money back to the treasury. Also my lords, PW6, the cashier of the Supreme Court maintained before this Panel that the money ought to be retired back to the treasury.
My lords, from the evidence on record it is clear that the Respondent also received estacodes for his wife who is neither a staff nor Justice of the Supreme Court of Nigeria. This conduct is contrary to the provision of Rule 130109 of the Public Service Rule.
My lords, paragraph 2 of National Judicial Policy,2013 provides: “a Judge must be accountable for public funds and property in their care and should be prudent in the management and use of resources.”
It is our humble submission that the conduct of the Respondent is a violent contravention of the national Judicial policy quoted above.
My lords, it is also submitted that this very act of converting public funds to personal use by the Respondent is a criminal offence such as criminal breach of trust as prescribed by section 315 of the Penal Code and decided in the cases of Onuoha .v. State (1988) 3 NWLR (pt.83) 460 at 471, Akwule .v. Queen (1963) NSCC 157, FRN .v. Martins (2012) 14 NWLR (pt.1320) 287 at 318, Uzoagbe .v. COP (2014) 8 NWLR (pt.1401) 441 at 456 and 463 and Mata .v. State (2013) 3 NWLR (pt.1342).
It is also our humble submission that the very act of transferring public funds which is proceeds of criminal breach of trust is prosecutable under section 15 (2) of the Money Laundering Prohibition Act, 2011 as amended.
My lords, we humbly submit that the various conducts of the Respondent which constitute offence under Money Laundering Prohibition Act, 2011 as amended, Penal Code, ICPC Act must perforce constitute a breach of the Code of Conduct for Judicial Officer and we urge my lords to so hold.
OUR SPECIFIC RESPONSES TO THE SUBMISSIONS OF THE RESPONDENT
At paragraphs 5.2.1 to 4.2.11 of the written address of the Respondent, it is submitted that the Mercedez Benz Car given by Joe Agi SAN to the Respondent was not bribe because (i) Mr. Agi only appeared for the first time in Suit No. SC/3/2010 at the Supreme Court, (ii) Mr. Agi was junior to 4 other Senior Advocates of Nigeria (iii) the Respondent sat with other Justices of the Supreme Court in the case (iv) And that Mr. Agi alleged that car issue happened in 2008.
My Lords, it is our submission that the above reasons advance by the Respondent are not known defences to allegation of bribery. Whereas Mr. Agi in his statement exhibit P19 prevaricated that the car transaction occurred sometime in 2008 or thereabout, the Respondent stated clearly in his asset declaration form that he acquired the said car in 2010. My Lords cannot be swayed by the excuses given by the Respondent to explain away the car gift. There was no time the Respondent disclosed any evidence of how he paid for the car. Thus no legitimate consideration was furnished by the Respondent for the car.
We commend section 119 of the Penal Code provides that: “Whoever being a public servant accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person any valuable thing without consideration of for consideration which he knows to be inadequate-
From any person whom he knows to have been or to be or to be likely to be concerned in any proceeding or business transacted or about to be transacted by such public servant or having any connection with the official functions of himself or of any public servant to whom he is subordinate;
From any person whom he knows to be interested in or related to the person so concerned,
Shall be punished with imprisonment for a term which may extend to five years or with fine or with both.”
The conduct of the Respondent in relation to this car shows he received it as a gift from someone concern in the business of a case he presided as a panel member and we urge my lords to so hold.
At paragraph 4.2.11 of the Respondent’s written Address, it was submitted that the complaint in relation to the car ought not to have been entertained since it was made 10 years after the incident by virtue of Rule 11(1) & (2) of the National Judicial Council’s Judicial Discipline Regulations of 29th June, 2017.
Although the Respondent did not press for the dismissal of the petition on this score apparently realizing that the said Regulation or Rule is not absolute. Rule 11(2) makes the application of Rule 11(1) subject to Rule 12. By Rule 12 (1), the Chief Justice of Nigeria/Chairman of Council may extend a time limit under these Regulations, whether or not the time limit has expire, where there is good reason to do so. My noble Lord, in the exercise of his power under Rule 12 (1), the car bribery allegation was accepted for the consideration/inquiry of this Honourable Panel. It is therefore too late for the Respondent to question the legitimate exercise of such power and we urge my noble Lords to so hold.
At paragraphs 6.1 to 7.15, the Respondent submitted that various funds lodged into his account by legal practitioners were received by him as part of customs and traditions when her daughter got married.
We respectfully re-adopt our submissions above in respect of these pecuniary gifts and urge your noble Lordships to discountenance the submissions of the Respondent.
At paragraphs 8.0 to 8.3 of the Respondent’s written address, it was submitted that the Respondent conducted himself properly by receiving estacode payments by cash above threshold allowed under Money Laundering since it was the practice at the Supreme Court.
My Lords, the impropriety cum criminally associated with the conduct of the Respondent in this regard has been abundantly examined in our submissions above. And we respectfully re-adopt same herein in urging your noble Lordship to discountenance the baseless contention of the Respondent.
At paragraphs 9.0 to 9.4 of the written address, the Respondent submitted that it is practice and convention at the Supreme Court for spouses of the Justices of the Supreme Court to accompany them to foreign travels and seminar at public expenses.
My Lords, it must be emphasized that the Respondent is listed among those who are regulated and bound by the provisions of the Public Service Rules (“PSR”). We respectfully refer your noble Lordships to rule 010101 thereof. According to the Respondent (then as JCA) in Oloruntoba –Oju v Lawal&Ors(2001) 31 WRN 171 at 186 lines 5-10, the Civil Service Rule, like every other contract of employment, regulates the relationship between the employee and employer. Undoubtedly therefore in the absence of the PSR as in the instant case, the alternative is arbitrariness, impunity, despotism, oppression and complete lack of discipline in the Public Service.
Having stated this, Rule 130109 of the PSR provides that – an officer on duty outside Nigeria shall be granted:
Air passage for himself/herself only; but where the duration of the officer’s duty is not less than 9 months, his/her spouse may accompany him/her at public expense; Reimbursement of actual expenditure or transport essential to the business of the visit; Estacode Allowance.
The PSR does not therefore entitle the Respondent to appropriate public funds to the benefit of his wife where the official trips were not up to 9 months. Anything short of this provision, only amount to criminal misappropriation. The fact that other Justices benefit for similar illegality does not justify the conduct of the Respondent. Liability in this instance is personal not collective. It is very instructive to point out that Annexure E (our exhibit P7) referred by the Respondent to back up his claim does not mention spouse of the Justices of the Supreme Court. It is rather curious and how the Respondent could place reliance on such circular titled “RECOMMEND ALLOWANCES PAYABLE TO JUDICIAL OFFICERS” as a basis to justify his financial malfeasance. We urge your Lordships to declare as illegal that which is clearly illegal.
My lords, at paragraphs 10.1 to 10.5, the Respondent argued that as practice he was entitled to any difference between the estimated Air fare cost and the actual cost.
My noble Lords, the above position of the Respondent is not borne out of legal justification but financial dishonesty. For emphasis Rule 130109 of the PSR provides that – an officer on duty outside Nigeria shall be granted: (b)Reimbursement of actual expenditure or transport essential to the business of the visit;
The instrument which authorizes the payment of airfare to the Respondent clearly provides that he is only entitled to actual amount expended. It is not open for him to convert the excess of the airfare for his personal use under the guise of following the practice.
PRECEDENTS TO BE CREATED
My lords, opportunity has presented itself for this Honourable Panel to create a precedent that will have lasting impacts on the integrity of the Judiciary and Judicial Officers in Nigeria. The precedents that my lords are about to create are:
Whether under the code of conduct for Judicial Officer, a serving judicial officer is permitted to receive pecuniary gifts from lawyer who may appear before him/her
Whether under the code of conduct for Judicial Officer, a serving Judicial Officer is permitted to disrespect, disobey and infringe penal statutes and whether such infringement is not misconduct under the Code.
Whether under the code of conduct for Judicial Officer, a serving judge who is in possession of pecuniary resources or property which is disproportionate to his known source of income and who failed to provide credible evidence on the legitimate source of such pecuniary resources or property, is fit and proper to continue to be on the bench.
Whether under the code of conduct for judicial officer, a serving judge who failed to avoid impropriety and appearance of financial impropriety is fit and proper to continue to be on the bench.
Whether a judicial officer who failed to avoid social relationships that had given rise to an appearance of impropriety is fit to remain on the bench.
Whether a judicial officer who failed to observe, protect and obey the Constitutional provisions and the Law of the land is fit to remain on the bench.
Whether the enforcement and the applicability of an Act of National Assembly such as Money Laundering Prohibition,2011 as Amended, ICPC Act, Penal Code, Code of Conduct for Public Officer e.t.c can be suspended by mere practice and convention of the management staff of Supreme Court.
Before concluding my I humbly refer my lords, to a book titled OUR TEMPLE OF JUSTICE written by his Lordship Honourable Justice Chukwudifu Oputa published in 1993 by Friends’ Law Publishers Ltd at 7 when my lord stated: “From 1980 to 1989 I was involved with lecturing newly appointed judges (under the auspices of the Institute of Advanced Legal Studies) on Judicial Comportment and Attitudes- the Dos and Donts of the Judicial Office. I christened those lectures “the Ten Commandments for the New Judges”. At the end of each lecture I was asked the pregnant question- Judges live in the large society, why should they be singled out for the observance of these strict rules of conduct? They buy from the same markets why should they not do what other members of the society are doing? My answers have always been the same: (1) it is not for fun that judges are addressed as Honourable justice so and so. Now justice is an attribute of God Himself. To share in this divine attribute our judges should at all cost ensure that the administration of law in our courts closely approximate to the administration of justice-that is to say: “our judges should judge the people with just judgments; they should not pervert justice, they should not accept bribes for a bribe blinds the eyes of the wise and subverts the course of righteousness; justice and only justice shall you follow.
(2) The poor conditions of judicial service are no excuse for any judge to be corrupt and dishonest. For one thing, no one is forced to accept appointment as a judge.
(3) No one goes to the Bench to amass wealth. The legal profession is a profession of honour and members of this honourable profession should not do dishonourable acts.
(4) Money corrupts and pollutes not only the channels of justice but also the very stream itself.
It is national calamity to have corrupt judges. The passing away of a great advocate does not pose such public danger as the appearance of corrupt judge on the Bench for in the latter instance, public interest is bound to suffer and public confidence in the judicial system undermined and eroded.
These are sugar coated words, you may say, but they are true. The question is do all our lawyers and judges accept them as the truth, the whole truth and nothing but the truth?”
My lords, by the Code of Conduct for Judicial Officers, members of the public expects a high standard of conduct from a Judge who at all time must avoid impropriety and the appearance of impropriety in all his activities both in his professional and private life. It is therefore our humble submission that in view of the evidence before this Honourable Panel the petitioner has established the breach of the Code of Conducts for Judicial Officers against the Respondent and we urge my lords to so hold.
We are most obliged.
Dated this 30th day of March, 2019.
EKELE IHEANACHO ESQ
ROTIMI OYEDEPO ISEOLUWA ESQ
COUNSEL TO THE PETITIONER
EFCC H/QTRS JABI ABUJA
FOR SERVICE ON THE RESPONDENT’S COUNSEL
R.A LAWAL-RABANA, SAN
OKON NNKNU EFUT, SAN
J.U.K IGWE, SAN
Legit.ng earlier reported that the trial of the suspended chief justice of Nigeria, Walter Onnoghen, took a different turn on Monday, April 1, when a witness on the matter approached to court with a script.
It was learn that when Onnoghen opened his defence on allegations of fraudulent declaration of assets, the witness, Lawal Olanrewaju Busari, who introduce himself as the CJN's official driver took the oath and entered the witness box.
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Onnoghen's Trial is Politically Motivated - APRJ | Legit TV