As NJC Sits Over Onnoghen, EFCC Details Allegations Of Misconduct (Full Text)

The Economic and Financial Crimes Commission (EFCC) has
sent a “final address” to the National Judicial Council (NJC)
over allegations of “financial impropriety, infidelity to the
constitution and other economic and financial crimes related laws”
against Walter Onnoghen, the chief justice of Nigeria
(CJN).

The NJC will sit on Wednesday to determine the fate of the CJN
who has been on suspension following allegations levelled against
him over his asset declaration.

In the final address prepared by Ekele Iheanacho and Rotimi
Oyedepo Iseoluwa, council to EFCC, the commission the NJC should
declare that Onnoghen has breached various laws.

If the NJC upholds the allegations, Onnoghen could be removed as
CJN and asked to face criminal trial.

This is different from the asset declaration case currently
before the Code of Conduct Tribunal.

FULL TEXT OF EFCC’S FINAL ADDRESS TO THE
NJC

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.

INTRODUCTION

1.01  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.

Furthermore, my lords, by another letter dated the
5^th 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 29^th 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^[1]) LPELR-43637^[2](SC) (Pp. 13-14^[3], 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
22^nd 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
29^th 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.

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 12^th 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^[4] and
MLPA, 2011^[5] 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 is the
argument the defendant in KALU v. F.R.N. (2012^[6]) LPELR – 9287^[7] (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^[8]) 9 NWLR (pt 1516^[9]) 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^[10], or Section 1
MLPA, 2011^[11] 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^[12] 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^[13], before its repeal, and
(Section 1 of MLPA) 2011^[14] respectively 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^[15], before its repeal, and
MLPA, 2011^[16] must be made
through a financial institution to be excluded from the operation
of the MLPA. See NYAME v. FRN (2010^[17]) 7 NWLR
(pt. 1193^[18]) 344^[19] at p. 399^[20].
The purpose of paying the money and accepting the money/cash in
excess of the prescribed threshold may be 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^[21] or
MLPA, 2011^[22]. 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^[23]) LPELR – 7826^[24] (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^[25]) 1 NWLR
(pt. 352^[26]) 506^[27]; P. D. P. v. C. P. C
& ORS (2011^[28]) LPELR- 2909^[29] (SC). Accordingly,
in its interpretative jurisdiction the Court does not, and must
not 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^[30]) LPELR 8511^[31] (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^[32]) 3 ALL E.R 784^[33]. 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^[34] in the appeal No.
CA/L/1046^[35]A/2014^[36] 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
5^th 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
29^th 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.

CONCLUSION

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 30^th 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

Culled from TheCable