Nganjiwa, the judge as a verb

There is hardly any jurisdiction in the common law world in which a man with his current record could still sit as a judge of a superior court of record. In Nigeria, however, Hyeladzira Nganjiwa proudly sits on the bench of the Federal High Court and currently serves in Abakaliki, Ebonyi state in southeast Nigeria. From this perch, he advertises everything squalid about the current state of Nigeria’s judiciary.

Nganjiwa went to Government Secondary School, Damaturu, when it used to be part of Borno state, finishing in 1978. In 1979, the University of Lagos admitted him to read law. In 1984, he enrolled to become a lawyer in Nigeria. Nganjiwa did his compulsory national service with the Ajaokuta Steel Company, before finishing it in 1985 with the Ministry of Justice in Ilorin when both were part of old Kwara state.

Thereafter, Nganjiwa returned to his native Borno state, from where he compiled a career as a public prosecutor, rising to the rank of Chief Legal Officer at the National Drug Law Enforcement Agency (NDLEA) until 1995 when he became Deputy Director of Public Prosecutions in the Borno State Ministry of Justice. Nganjiwa thereafter returned to private practice from where President Goodluck Jonathan appointed him a judge and he was sworn to the bench of the Federal High Court on May 28, 2012.

Less than a few years into his judicial career, Nganjiwa was rolling in incredible money. According to the Economic and Financial Crimes Commission, in two years between 2013 and 2015, Nganjiwa, the judge, received extra-judicial payments totalling over $260,000 into his bank accounts from unknown sources. Over the same period, he similarly received over N8.2 million also from undisclosed sources. He was not the beneficiary of a trust fund or inherited money.

Persuaded that the judge was transacting in shady judicial business, the EFCC arraigned Nganjiwa a mere five years into his judicial career on June 23, 2017, on 14 counts of unlawful enrichment. This was a charge of judicial graft.

A judge who takes their office seriously will be affronted by such a charge and will make it a priority to clear their name. This was the least of Nganjiwa’s concerns, however. Instead, he asserted impunity, claiming that the court could not try him when he had not yet been disciplined by the National Judicial Council, NJC. This was worse than an odd argument to make for three reasons.

First, the NJC polices judicial misconduct alright but is neither the police nor a public prosecutor. Second, the NJC lacks the wherewithal by itself to investigate unlawful enrichment. Third, it was akin to saying judges are lawless. Rule 1(1) of the Code of Conduct for Judicial Officers, which the NJC enforces, requires all judges to “respect and comply with the laws of the land….” That would include the laws on unlawful enrichment.

At the High Court of Lagos, Justice Adeola Akintoye was not much persuaded by this objection and threw it out. Nganjiwa appealed to the Court of Appeal, which agreed with him. On December 11, 2017, the Court of Appeal ruled that he could not be prosecuted unless the NJC had disciplined him on the matter.

Interestingly, in the same judgment, the court observed that: “If a judicial officer commits theft, fraud, murder or manslaughter, arson and the likes, which are crimes committed outside the scope of the performance of his official functions, he may be arrested, interrogated and prosecuted accordingly by the State directly without recourse to the NJC”. The Court of Appeal was able to see that theft, fraud, murder or manslaughter were not part of the job specification for a judge. But they seemed to believe that judicial corruption could be but we digress.

A dis-satisfied EFCC appealed to the Supreme Court, which at the end of May 2022, threw out the appeal and discharged Nganjiwa. It did not acquit him though. So, the Supreme Court set him free but fully blemished with the whiff of judicial corruption.

In any other jurisdiction, this would have been the end of Nganjiwa’s judicial career but in the weird logic of the NJC, however, it was its rejuvenation instead. On the 10th anniversary of his appointment as a judge of the Federal High Court, Nganjiwa, who had been under suspension all these years while the proceedings went on, returned to the bench with a license once more to go judging.

Last November, the latest postings by the Chief Judge of the Federal High Court took Nganjiwa to Abakaliki. As if by divine synch, one month later on December 20, Godswill Akpabio, president of the Senate, formally declared vacancies for certain seats in the upper chamber, including that for Ebonyi South, formerly represented by David Umahi who now serves as a minister in the federal cabinet.

Two days thereafter, on December 22, the Independent National Electoral Commission (INEC) issued a notice of by-elections covering the seats which the Senate president had declared vacant. It required the parties to conduct their primaries to select their candidates between January 5-9 and to complete candidate nomination formalities by January 13. In all, the parties had 17 days (including weekends) to complete candidate selection and another four days to complete all filings with INEC. The Commission fixed actual voting in the by-elections for February 3.

On January 9, five persons claiming to be “intending delegates” in the primaries of the Peoples’ Democratic Party (PDP), initiated proceedings in Nganjiwa’s court in suit no. FHC/AI/CS/6/2024 between Chief Stanley Okochie Nkaa & 4 Others v. PDP, INEC & 2 Others, asking the judge to exclude the party from the by-election because the selection of its candidate, Silas Onu, four days earlier was not preceded by 21 days’ notice. The law only allows aspirants to sue.

In the course of the proceedings, one of the named plaintiffs told the court that he had not instructed anyone to initiate the case in his name. His name was removed from the list of parties. That should have told most judges that something was not right. But not this one. 23 days after the case was filed, on February 1, Nganjiwa issued a 57-page judgment granting the claimants everything they asked for. He specifically issued “an order of perpetual injunction” restraining INEC from recognizing the PDP candidate in the by-election, “and his name shall not be included in the election”.

This was exactly two days before the by-election. As a practical matter, this was not an order that the INEC could have complied with without postponing the ballot in Ebonyi South because it had printed all the ballot papers and deployed significant electoral capability ahead of the date. As most sensible lawyers know, injunctions are equitable remedies and equity does not act in vain.

Having made these serious orders against INEC (a defendant) in the proceedings, however, Nganjiwa very curiously also awarded costs of N1 million in its favour to be paid by the PDP and its candidate whom he had just directed the Commission to exclude.

It seemed clear even on the face of the judgment that the case was a joint enterprise between the plaintiffs, the judge and INEC officials in Abakaliki. In the course of his judgment, Nganjiwa felt called upon to justify why he had to accept everything INEC said as gospel. He described the Commission as “an unbiased Empire” (sic), proclaiming that as the reason why he had “no doubt in my mind to doubt whatever information(s) supplied by the (INEC)” (sic). When you end up with a court judgment that induces moral and jurisprudential indigestion on this scale, there is a word for it: you have been Nganjiwad.

A lawyer and a teacher, Odinkalu can be reached at [email protected].