It must be noted that there is no legislation in Nigeria today as to how the above conundrum could be approached. The only thing closest to an answer could be found in the Court of Appeal decision in the case of NGANJIWA v. FRN. (2017) LPELR-43391(CA).
The following two scenarios will make the understanding of the purpose of this article better.
1. What shall be the first course of action against a medical practitioner whose patient dies in the table while operating on the patient. Will the patient relatives go to the police to get the medical practitioner arrested for murder. Will the patient relatives go to court for negligence proceedings against the medical practitioner and the hospital management. Will the patient relatives go to Medical and Dental Council of Nigeria to report the matter. If all these are options available to the patient relatives, what is the option available to the medical practitioner in his defence and protection, the patient having died in the course of his professional duty. It must be stressed that medical treatment is not one of those constitutional derogations to the right to life in Nigeria. The written medical laws in Nigeria also do not afford protection to the practitioners. The afforded protections can only be found at Section 32 of the Interpretation Act by legal expeditions and voyage to England prior to 1900.
2. What shall be the first course of action against a female legal practitioner whose male client claims that she has converted proceeds of his suit to her personal use without his consent or authorization. Will the client go straight on to report to police that the practitioner stole his money. Will the client go to court for a recovery suit. Will the client channel his complaints through the Legal Practitioners Disciplinary Committee. If all these routes are open to the client one way or the other to pick and choose from, what is the option available to the legal practitioner in his defense and protection, the alleged imbroglio having occurred in the course of her discharge of her professional duties to the client.
The above scenarios depict the quagmire encountered in the course of discharge of professional duties. The case of Ngangiwa illustrated the course of action taken against a judicial officer who had a coincidence of misconducts in the discharge of official duties. Apart from official duties as a judicial officer, other forms of official duties where coincidence of misconducts can occur include duties of a civil servant and duties of public servants.
The decision in Ngangiwa is to the effect that before a judicial officer could face the criminal justice system in situations where official misconduct coincides with criminal offence, the criminal justice system will pause until the official disciplinary processes of the regulatory body have been concluded. Expanding this ratio to professional misconduct would mean that a practitioner of a particular profession is prevented from facing the criminal justice system in Nigeria until his professional brethren and regulatory bodies have concluded the professional disciplinary actions against his conduct. This appears sweet to the taste bud of the practitioner, but bitter to the aggrieved persons and state. But since time does not run against the state in criminal justice matters, the bitterness of this prerequisite disciplinary precondition weighs down mainly on the aggrieved person that seek immediate justice.
I have gone through the whole length and breath of Ngangiwa, and I have seen nothing in the cited laws that definitively led to that judgement. All I saw was the vestigies of judicial dictatorship. According to a former U.S. Attorney General Edwin Meese:
"In no other democracy in the world do unelected judges decide as many vital political issues as they do in America today".
Meese headed the commission that documented the human tragedy that had been perpetrated on the American soil by pornographers, aided and abetted by judges who regard the First Amendment as a license to destroy innocence and abolish decency. To the opponents of judicial dictatorship, what the social revolution federal judges were imposing on America was an assault on their constitutional system, and ultimately, their freedoms. And since most Americans did not understand that the real fight was not over abortion or affirmative action or even crime, but over whether federal judges have the authority to make these decisions. In the end, the judges keep winning. They argued that the federal judiciary had become the most undemocratic and the most powerful branch of the government. And President Clinton was appointing more "judge-legislators" than ever before.
John Leo of U.S. News & World Report recently wrote that the most galling aspect of the revolution in the courts "is that it remains invisible to most Americans."
A book, Judicial Dictatorship, compels readers to rethink their most basic assumptions about the Court. Quirk and Bridwell maintain that the problem lies not with the way the Court has interpreted the Constitution: rather, they question the entire institution of judicial review. Contrary to nearly all other scholars, they hold that the Supreme Court should not be the ultimate arbiter of the Constitution. In their view, America is a democracy, and judicial supremacy cannot be consistently combined with popular rule.
"The judiciary, led by the Supreme Court, is in the vanguard of the elite imposing non-majority values and policies on the country. They are, as Jefferson said, the 'miners and sappers" of democracy. The traditional view was that the separation of powers made the legislature and executive responsible for change and the Court the guardian of continuity and stability. The Court, however, over the past thirty years, has made itself the major agent for change--one that operates without democratic check to accomplish ends that could not be achieved by democratic process"
The decisions of our superior courts in Nigeria is law. So no matter how we look at it, Ngangiwa remains the law on the procedure for bringing a judicial officer face to face with the criminal justice system until the Supreme Court strikes the decision down, or Legislature enacts a new law to the contrary. That is the reality of judicial dictatorship.
The keywords in this article are:
1. Criminal Investigation
2. Criminal Prosecution
3. Regulatory body's recommendation for appointment and removal
4. Disciplinary Investigation and prosecution
5. Administrative/Official/Judicial Misconduct
6. Professional Misconduct
7. Offence and Misconduct
The Court of Appeal, per OBASEKI-ADEJUMO, J.C.A., while delivering the leading judgment in Ngangiwa, acknowledged the National Judicial Council (NJC) as the sole body with authority to recommend to the President for the appointment and removal of any Judicial Officer at the federal level and also exercise disciplinary control over Judicial Officers.
She went further to explain the proper procedure where a judicial officer has committed an offence which are tantamount to a breach of his Oath of office as in the instant case. She said:
“Whenever a breach of judicial oath occurs, it is a misconduct itself, then the NJC is the appropriate body to investigate such breaches by the judicial officer and if 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…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.”
I must make haste to report that the above pronouncement was not a reproduction of any written law. Rather, the Honourable Justice was pronouncing her belief and convictions. The laws only prescribed on the recommendation for appointment and removal of a judicial officer as well as on disciplines. The laws made no prescription on the order of proceedings in the case of coincidence of misconduct.
Honourable Justice went further to emphasise that:
“Any act done by the law enforcement Agent or Agency in violation of the above is tantamount to denying the NJC its powers to discipline Judges in accordance with the provisions of Section 153(1) and Paragraph 21 Part 1 of the Third Schedule of the 1999 Constitution (as amended)........
“The issue is not whether judges possess immunity for non- judicial acts but whether there are laid down procedures to be followed and complied with before arresting & prosecuting a serving Judge? ........ It must be expressly stated 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. These classes of criminal acts are not envisaged and captured by the provisions of Paragraph 21, Part 1 of the Third Schedule. On the other hand, 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 and Paragraph 21 Part 1 of the Third Schedule, thereby inhibiting, and interfering with and obstructing the NJC from carrying out its disciplinary control over erring judicial officers as clearly provided by the Constitution.”
Further elucidating this position, NIMPAR, J.C.A. said
“That is not to say that the Appellant or judicial officials are precluded from prosecution for offences committed. No! The point I am trying to make is that the Respondent must first report any infractions to the NJC to carry out its Constitutional and disciplinary control over the Appellant, to establish a case before criminal proceedings. The Constitution is the grundnorm and supersedes any Act of the National Assembly”.
The Justices eventually entered judgement in favour of the Appellant. She also imported the term PROFESSIONAL MISCONDUCT in the submissions. I do not think that a judicial officer in the instant situation is considered in light of the legal professional capacity rather than in his judicial/official capacity. The job of a judicial officer is not a professional duty as envisaged by the provisions of Item 49 of the Second Schedule of the Nigerian Constitution. But before we unequivocally accept the judgment, let us examine the Issues For Determination in that appeal to know if in fact the judgment matched the elucidations proffered by the Honourable Justices in their judgement.
The Court adopted Appellant’s two (2) issues for determination thus:
1. Whether the lower Court can validly exercise criminal jurisdiction over a sitting judicial officer (the Appellant) whilst still occupying such office without first satisfying the condition precedent of subjecting such judicial officer to the disciplinary jurisdiction of the National Judicial Council as provided for in the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
2. Whether in view of the constitutionally guaranteed doctrine of independence of the Judiciary, the lower Court is right in reaching the conclusion that the executive arm of government (acting through the EFCC or any other authority) can directly prosecute a sitting judicial officer without first following due process as provided for in the Constitution by first referring the matter by way of petition to the National Judicial Council.
We can glean that this appeal questions the decision of the lower court to assume criminal jurisdiction over a matter involving a sitting judicial officer (whether or not in course of his official duties), without first allowing NJC to conclude its disciplinary jurisdiction. Thus, having allowed the appeal, the Honourable Justices have decided that criminal proceedings cannot be brought against a sitting judicial officer. It is that simple. This is in contrast to the elucidations within the judgment which tended to distinguish between acts in course of duty and acts outside the contemplations of duty. Even if we accept the judgment to cater for acts done in the course of official duty, can we say that the judgment derived from any written laws? It is submitted with utmost respect that the decision is devoid of any statutory flavour. The Honourable Justice went on:
"The Appellant, presently a Judge of the Federal High Court, was charged vide a Criminal Information for conduct/acts which are tantamount to a breach of his Oath of office and breaches contained in the Revised Code of Conduct of February, 2016 and which are at the same time offences under the Criminal Law. The Judicial Oath is administered at the swearing in of a Judicial Officer as contained in the 7th Schedule of the Constitution. As a serving judge, the Appellant is under the management, control and disciplinary jurisdiction of the National Judicial Council as envisaged under Paragraph 21 (b) Part 1 of the Third Schedule to the 1999 Constitution (as amended). The foregoing has been affirmed in a host of judicial authorities including ELELU – HABEEB & ANOR v A.G. FEDERATION (supra); OPENE v NJC (supra); ABDULLAHI v GOVERNOR, KANO STATE (supra). The allegations against the Appellant are purportedly committed against the guidelines contained in the Revised Code of Conduct. See Rule 7 and 10 thereof......
"I need to emphasize that the Constitution of this Country, being the grund norm, and fundamental legal order of the state clearly recognizes and guarantees the doctrine of separation of powers and checks and balances. Sections 4, 5 and 6 thereof contain provisions relating to the legislative, executive and judicial arms of the Government. In most known democracy, the judiciary is always accorded the freedom to conduct its affairs without fear of interference, intimidation, threat, ill-will from any other arm of Government. It is in order to ensure that this is done that the NJC was established under the Constitution and specifically given the power to discipline any of its Judicial officer who misconducts himself in accordance with the provision of Paragraph 21 (b) Part 1 of the 3rd Schedule of the 1999 Constitution (as amended) of the Federal Republic of Nigeria. See EZE v FRN [1987] NWLR (PT 51) 506."
It is submitted with profound respect that the medidiate paragraph is not supported. Separation of powers is not the same as the isolation of powers. Separation of powers is a doctrine of interdependence, checks and balances. In fact, in the instant case, the primary function of investigation and prosecution is that of the Executive arm of government. If there is a case of usurpation, assuming Separation of Powers is now Isolation of Powers, it is the NJC that is at fault. The Executive cannot be said to be dabbling into its primary function. That was why the Supreme Court of Nigeria Court aptly captured the principle behind separation of powers in A.G. ABIA STATE & ORS v A.G. FEDERATION (2003) LPELR – 610 (SC) 23 – 24, paras E – A, per BELGORE, JSC where the Court held:
“The principle behind the concept of separation of powers is that none of the three Arms of Government under the Constitution should encroach into the powers of the other. Each arm – the Executive, Legislative and Judicial – is separate, equal and of coordinate department and no arm can constitutionally take over the functions clearly assigned to the other. Thus the powers and functions constitutionally entrusted to each arm cannot be encroached upon by the other. The doctrine is to promote efficiency in governance by precluding the exercise of arbitrary power by all the arms and thus prevent friction.”
The claims that the Judicial Discipline Regulation of May, 2017 contains steps to be taken 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, is not conceded by the author of this article as a law guiding criminal proceedings in the instant situation. This is because a subsidiary legislation cannot expand the scope and limits of the enabling legislation. Yet, her Lordship stated:
"All I have been saying is that a combined reading of Section 6, 153, 158, 292(1) and Paragraph 21 (b) of Third Schedule of 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. NJC is the sole body empowered by the Constitution to determine allegations of misconduct against judicial officers even on criminal allegations of bribery and corruption made against its officers. The NJC is created by the Constitution to solely regulate affairs of the appointed judicial officer without interference from any authority.....It is only and only when, the NJC has given a verdict and handed over such judicial officer (removing his toga of judicial powers) to the prosecuting authority that he may then be investigated and prosecuted by the appropriate security agencies......
"The NJC does not have to wait for a Court to finish before exercising its disciplinary powers. I think the wisdom behind the Constitutional Provision is to ensure that, the erring Judicial officer does not carry along with him the dignity and respect accorded the office of a Judicial officer, I also think the Society today is replete with such instances, where even public officers occupying highly responsible positions are subjected to investigation by administrative committees, and are relieved of their appointments, after the Committees submit their reports, and recommended for prosecution. I am convinced that the lower Court did not consider the purport of Section 158(1) of the Constitution".
I humbly disagree. The mere fact that the law gave NJC the power to discipline judicial officers does not mean that such disciplinary action must be anterior to criminal prosecution. The fact that NJC absolves a judicial officer of all disciplinary infirmities, does not mean that the judicial officer is clean of criminal offences. The position of the Court is not supported albeit it is now the law. This position can only be extended to the disciplinary proceedings of other regulatory bodies especially professional regulatory bodies. By so doing, practitioners of the different professions will have some measurable certainty about the order of proceedings in their disciplinary and criminal investigation and prosecution, and thus guard them jealously. Thus, a medical practitioner whose patient died on the table would have to be investigated by the Medical and Dental Council of Nigeria (MDCN) to know if the patient died out of medical misconduct or not. It is only after the outcome of the disciplinary proceedings of the MDCN that law enforcement authorities and courts would be seized of the matter. This is an attractive procedure as the issue of regularity of professional practice will have been undertaken by members of the profession in their professional investigation panel. This is even more so in the light of the further submissions of the Honourable Court below:
"It is settled and trite that time does not run out for the State in the prosecution of crimes. If due investigations are conducted and a case made out, there is no reason precluding the Respondent from making a formal complaint to the NJC and attaching such a report to guide NJC in its constitutional duties........
"The role of the NJC is synonymous to being the glory or cover for judicial officers. How then does one intend to attack its members without first going through it? A standard procedure has been set for the discipline of judicial officers which should be strictly complied with, else, the gates will be open for all sorts of intimidation and threats against judicial officers who refuse to bow to the whims and caprices of those who believe they have authority to also deal with judicial officer".
The above situations also apply to members of professional bodies in the discharge of their professional duties. The Honourable Justices went on to adumbrate thus:
"I take judicial notice by virtue of Section 74 of the Evidence Act, 2011 of the recent event in this country wherein the Presidency setting up a panel of investigation in-house of allegations made against the Director General of the National Intelligence Agency and the Secretary to Government. It was after accepting the report that security agencies took over the investigation and potential prosecution of the matter arising. Another analogy is in relation to Armed Forces, wherein orderly room trial is conducted before an officer is made to face the Court martial and even the Civil Service has similar procedures from them. I also take judicial notice of that similar process was followed in the case of Auta, J. of the Kano State Judiciary, at the end of the investigation and his dismissal, the matter was handed over to the prosecuting agency. This is also akin to the situation adopted in Ghana wherein the judicial officers were first disciplined by the body saddled with that responsibility before the State subsequently prosecuted them. The correct procedure is that the NJC should be allowed to carry out its constitutional duty of exercising its disciplinary powers over its judicial officers as set out under the Constitution before any information is filed."
I humbly disagree with vehemence. The procedures taken judicial notice above are incidental rather than statutory. That it happened that way does not make it the law. The authorities involved adopted convenient methods, and convenient methods cannot materialize into a law.
Her Lordship did not end it there. She elucidated further thus:
"The implication of above provisions particularly Paragraph 21(b) Part 1 of the Third Schedule to the 1999 Constitution is that the Constitution gives the NJC the power to exercise disciplinary control over erring judicial officers where there is breach of the code of conduct. The Judicial code of conduct made pursuant to a Constitutional power is subsidiary legislation and therefore has the power of law. The appointment and removal of the judicial officers by the President is based on the recommendation of the NJC. In between, the administration and disciplinary actions to be leveled against serving judges are also subject to the NJC. Judicial officers are under the covering and control of the NJC and there is procedure set out for dealing with such issues which are provided for by the subsidiary legislations. If there is any allegation of misconduct therefore brought against a Judge in the execution of his official duties, which is a breach of the Code of Conduct, it must first go through and be dealt with by the NJC before any other step is taken by anybody or person with other powers and who still desires to proceed against such a judicial officer........
“The word misconduct used as a reason for removal of Judicial Officer is known to those who framed the Constitution to be a criminal offence and yet the responsibility to recommend to the President, the removal of such officer is given to the National Judicial Council. If the Constitution intended that such misconduct must be subject to trial by Court it would have said so … rather the Constitution that gave the court power to try criminal offences also gave the NJC power to investigate allegations of misconduct against Judicial Officers and make recommendations for their removal. It is my firm view that the procedure adopted by the NJC is sustainable… The Appellant has constitutional power to investigate the criminal allegations made against the Appellant and to make a finding that the allegations are proved…...."
It is respectfully submitted that the first paragraph is only true if the breach of the Code of Conduct does not coincide in criminal breach. Official misconduct of a judicial officer lies squarely in the hands of NJC as long as the breach does not constitute a concern of the criminal justice system.
Our courts have in myriad of cases differentiated criminal investigation and prosecution from disciplinary investigation and prosecution. Both are not the same. Criminal investigations and prosecution are for the law enforcement authorities, courts and state tribunals, while disciplinary investigation and prosecution are for the official or professional regulatory authorities. The procedures adopted by both divides are not exactly the same. The Constitution of the Federal Republic of Nigeria which also created NJC, gave all the power of criminal investigation and prosecution to the law enforcement authorities, the courts and state tribunal. The Constitution did not subrogate these powers to some official or professional tribunals. The provisions of Section 157 and 158 of the Constitution will be instructive.
“157. (1) Subject to the provisions of subsection (3) of this section, a person holding any of the offices to which this section applies may only be removed from that office by the President acting on an address supported by two-thirds majority of the Senate praying that he be so removed for inability to discharge the functions of the office (whether arising from infirmity of mind or body or any other cause) or for MISCONDUCT.
(2) This section applies to the offices of the Chairman and members of the Code of Conduct Bureau, the Federal Civil Service Commission, the Independent National Electoral Commission, the National Judicial Council, the Federal Judicial Service Commission, the Federal Character Commission, the Nigeria Police Council, the National Population Commission, the Revenue Mobilisation Allocation and Fiscal Commission and the Police Service Commission .......
"158 (1) In exercising its power to make appointments or to exercise disciplinary control over persons, the Code of Conduct Bureau, the National Judicial Council, the Federal Civil Service Commission, the Federal Judicial Service Commission, the Revenue Mobilisation and Fiscal Commission, the Federal Character Commission and the Independent National Electoral Commission shall not be subject to the direction or control of any other authority or person.”
If the submission of her Lordship in her second citation above were true, then all other federal executive bodies mentioned in Sections 157 and 158 of the Constitution also have the authority to undertake criminal investigation and prosecution like NJC as they were also mandated by the Constitution to discipline their members as well as recommend on misconduct like NJC. I do not think that was intended by the framers of our Constitution in any way.
I must grudgingly submit that there is a small knack in this for the practitioners of our statutory professions. The Justices of the Court of Appeal appear to understand misconduct as a criminal offence in Ngangiwa. This is in contradistinction to what is traditionally known as misconduct, as opposed to criminal offences. Her Lordship in Ngangiwa, stated:
“The word misconduct used as a reason for removal of Judicial Officer is known to those who framed the Constitution to be a criminal offence..... ".
Code of Conduct in the 5th schedule of CFRN stated:
"Misconduct" means breach of the Oath of Allegiance or oath of office of a member or breach of the provisions of this Constitution or a misconduct of such nature as amounts to bribery or corruption or false declaration of assets and liabilities".
In GARBA & ORS VS UNIVERSITY OF MAIDUGURI at page 582 paragraph D, the Supreme Court’s definition of misconduct reads as follows:-
“There is however no doubt that in the context in which the term is used in Section 17 of the Act, the complaints to wit arson, willful destruction to properties, looting and assault made against the Appellants fall within the definition.....
” Black’s Law Dictionary 6th Edition defines ‘misconduct’ to include ‘offence’. ‘Offence’ is defined by the same dictionary as ‘a felony or misdemeanor, a breach of the criminal laws, violating of law for which penalty is prescribed’......
"The Black Law Dictionary 8th Edition defines ‘misconduct’ in office as ‘official corruption’ or ‘political corruption’ in cases of officers and public employees”Per GALINJE, J.C.A.(Pp. 49-50, paras. D-A)
Misconduct has been defined by the Black’s Law Dictionary, 9th Edition at page 1089, thus:
"(1) Dereliction of 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......."
Misconduct, albeit professional type, was described in Okonkwo v MDCN:
"A code of ethics, no doubt, sets a standard of professional conduct. An infraction of the code may amount to professional misconduct but not every infraction amounts to infamous conduct in the sense in which that term has been used in Allinson v. General Council of Medical Education and Registration; or, In Re Idowu: : A Legal Practitioner; or, as it is generally understood. In the case of Allinson "infamous conduct" in relation to a practitioner was described as conduct "regarded as disgraceful or dishonourable by his professional brethren of good repute and competency". In Re Idowu. this court cited with approval the opinion, expressed in the Australian case Ex-parte Meehan, Medical Practitioner's Act [1965] NSWR 30, that the expression 'infamous conduct in any professional respect refers to conduct which, being sufficiently related to the pursuit of the profession is such as would reasonably incur the strong reprobation of professional brethren of good repute and competence. It may well be added that in the Australian case, the Australian court went on to hold that the word 'infamous' must be understood by reference to the context of professional disapprobation and conduct may be infamous either in general estimation or merely in the special professional sense or in the professional sense accompanied by some element of moral turpitude. (See 33 The Digest No 2369 at page 297).......
"In Rule 9 of the Rules of Professional Conduct referred to by counsel for the respondent an infraction of the rules was to be regarded as "professional misconduct" while the Act, apart from penalty that can be imposed consequent on conviction of a registered person., provided for penalty to be imposed on a registered person who is adjudged by the disciplinary tribunal to be guilty of infamous conduct in any professional respect. There is thus an apparent incongruity in the Rules and the Act. However, it is generally accepted that the words "infamous conduct" mean the same as "serious professional misconduct". A note to that effect is contained in 33 The Digest p. 2360 as follows:
"The words 'serious professional misconduct' first enacted in the Medical Act 1969 as an amendment to the original phrase 'infamous conduct in any professional respect' (Medical Act 1956 s 33 (1) (b) and earlier enactments) were not intended to change the law but to replace outdated phraseology.........
"A breach of the rules may amount to misconduct but not every conduct that may be open to objection will amount to infamous conduct. To attract that classification the conduct must be a serious misconduct. By way of analogy, in Davies v. Davies [1960] 3 All ER 248, 253-254, it was held that:
"If, in conducting proceedings, a solicitor follows a course which, although possibly open to objection does not infringe any clear Practice, what he does will not amount to conduct unbefitting a solicitor..........
"From what I have said, it should be clear that the myriad of circumstances that may constitute infamous conduct cannot be exhaustively set out in a code. The proper approach is first to ask, what facts have been alleged? The next step is to ascertain whether they have been proved. When facts alleged have been proved, the next step is to determine whether they amount to infamous conduct. When, therefore, the respondent was charged with infamous conduct and particulars were given in the charge of the acts or omission alleged to amount to infamous conduct that, in my judgment, is sufficient. The respondent could only be pronounced guilty and penalised pursuant to section 16 (1) and (2) of the Act if the facts alleged and proved lead reasonably to his being adjudged guilty of "infamous conduct in any professional respect." At best, reference to particular breaches of rules in the particulars of the charge is an optional matter of details which can be dispensed without injustice to the person charged. What is important is that the person charged should have sufficient notice of the acts alleged to have been committed by him which add up to "infamous conduct."
Now, going further to the professional disciplinary bodies, Section 15(3) of the Medical and Dental Practitioners Act will serve as a template:
"15 (3) There shall be established a body to be known as the Medical and Dental Practitioners Investigation Panel (hereafter in this Act referred to as “the Panel”), which shall be charged with the duty of: (a) conducting a preliminary investigation into any case where it is alleged that a registered person has misbehaved in his capacity as a medical practitioner or dental surgeon, or should for any other reason be the subject of proceedings before the Disciplinary Tribunal".
The above provision permits, and the Supreme Court in Okike's case affirmed, that any person can initiate and conclude such disciplinary proceedings, including a third party. This is different from what is obtained in criminal justice system. The big question is whether the law enforcement authorities can arrest a practitioner whose misbehavior in professional capacity constitutes a criminal offence according to the criminal laws in Nigeria, without first allowing the Medical and Dental Council of Nigeria to discipline the affected medical practitioner.
It is submitted that if the reasoning in Ngangiwa is permissible, then the role of the MDCN should precede the arrest and criminal proceedings against the medical practitioner. That is the crux of this article, and I so submit.
This case may be contrasted from what happens in other jurisdictions like the United States of America. Mr Conrad's, Michael Jackson's personal physician's, case could be a reference point.
In conclusion, it appears that the civil service of the federation is under the public service of the federation. According to the Interpretation section of the Nigerian Constitution:
"civil service of the Federation" means service of the Federation in a civil capacity as staff of the office of the President, the Vice-President, a ministry or department of the government of the Federation assigned with the responsibility for any business of the Government of the Federation;
"civil service of the state" means service of the government of a state in a civil capacity as staff of the office of the governor, deputy governor or a ministry or department of the government of the state assigned with the responsibility for any business of the government of the state;
"public service of the Federation” means the service of the Federation in any capacity in respect of the Government of the Federation, and includes service as—
(a) Clerk or other staff of the National Assembly or of each House of the National Assembly;
(b) member of staff of the Supreme Court, the Court of Appeal, the Federal High Court, the National Industrial Court, the High Court of the Federal Capital Territory, Abuja, the Sharia Court of Appeal of the Federal Capital Territory, Abuja, the Customary Court of Appeal of the Federal Capital Territory, Abuja, or other courts established for the Federation by this Constitution and by an Act of the National Assembly;
(c) member of staff of any commission or authority established for the Federation by this Constitution or by any Act of the National Assembly;
(d) staff of any area council;
(e) staff of any statutory corporation established by an Act of the National Assembly;
(f) staff of any educational institution established or financed principally by the Government of the Federation;
(g) staff of any company or enterprise in which the Government of the Federation or its agency owns controlling shares or interests; and
(h) members or officers of the armed forces of the Federation or the Nigerian Police Force or other government security agencies established by law;
"public service of a State’ means the service of the State in any capacity in respect of the Government of the State and includes service as:
(a) Clerk or other staff of the House of Assembly;
(b) member of staff of the High Court, the Sharia court of Appeal, the Customary Court of Appeal; or other courts established for a State by this Constitution or by a Law of a House of Assembly;
(c) member or staff of any commission or authority established for the State by this Constitution or by a Law of a House of Assembly;
(d) staff of any local government council;
(e) staff of any statutory corporation established by a Law of a House of Assembly;
(f) staff of any educational institution established or financed principally by a government of a State; and
(g) staff of any company or enterprise in which the government of a State or its agency holds controlling shares or interest;
Section 172 CFRN: A person in the public service of the Federation shall observe and conform to the Code of Conduct.
"public office" means a person holding any of the offices specified in Part II of this Schedule; and
"public office" shall not include the chairmanship or membership of ad hoc tribunals, commissions or committees
Part II: Public Officers for the purposes of the Code of Conduct:
1. The President of the Federation.
2. The Vice-President of the Federation.
3. The President and Deputy President of the Senate Speakers and Deputy Speaker of the House of Representatives and Speakers and Deputy Speakers of Houses of Assembly of States, and all members and staff of legislative houses.
4. Governors and Deputy Governors of States.
5. Chief Justice of Nigeria, Justices of the Supreme Court, President and Justices of the Court of Appeal, all other judicial officers and all staff of courts of law.
6. Attorney-General of the Federation and Attorney-General of each State.
7. Ministers of the Government of the Federation and Commissioners of the Governments of the States.
8. Chief of Defence Staff, Chief of Army Staff, Chief of Naval Staff, Chief of Air Staff and all members of the armed forces of the Federation.
9. Inspector-General of Police, Deputy Inspector-General of Police and all members of the Nigeria Police Force and other government security agencies established by law.
10. Secretary to the Government of the Federation, Head of the Civil service, Permanent Secretaries, Directors-Generals and all other persons in the civil service of the federation or of the State.
11. Ambassadors, High Commissioners and other officers of Nigeria Missions abroad.
12. Chairman, members and staff of the Code of Conduct Bureau and Code of Conduct Tribunal.
13. Chairman, members and staff of local government councils.
14. Chairman and members of the Boards or other governing bodies and staff of statutory corporations and of companies in which the Federal or State Governments or local governments councils.
15. All staff of universities, colleges and institutions owned and financed by the Federal or State Governments or local government councils.
16. Chairman, members and staff of permanent commissions or councils appointed on full time basis.
Having gone through the above, an acceptance that NJC can conduct criminal investigation and prosecution on judicial officers in Nigeria as held in Ngangiwa will literally convert all the federal and state executive bodies into criminal investigators and criminal prosecutors. This cannot be the intentions of the drafters of our Constitution. With utmost respect, I hereby suggest that the reasoning in Ngangiwa be allowed in part.
Awkadigwe Fredrick Ikenna (MBBS, LLB, MWACS, DSC)
awkadigweikenna@gmail.com
08039555380
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