Petition to the National Judicial Council against Hon Justice Ibrahim N. Buba in relation to the Illegal Perpetual Injunctions he granted to Dr Peter Odili: Gross Incompetence and Flagrant Abuse of Powers amounting to Judicial Misconduct and Violations of the Code of Conduct for Judicial Officers.

Honourable Justice Idris L. Kutigi, GCON
Chief Justice of Nigeria & Chairman of the National Judicial Council
Supreme Court Complex
Three Arms Zone
PMB 308
Garki
Abuja
Nigeria

Your Lordship

THE PERPETUAL INJUNCTIONS RESTRAINING THE EFCC FROM CARRYING OUT  ITS STATUTORY FUNCTIONS IN RELATION TO THE ALLEGED  LOOTING OF THE RIVERS STATE TREASURY BY DR PETER ODILI: GROSS INCOMPETENCE AND FLAGRANT ABUSE OF POWERS AMOUNTING TO JUDICIAL MISCONDUCT AND BREACHES OF THE CODE OF CONDUCT FOR JUDICIAL OFFICERS BY HON JUSTICE IBRAHIM NYAURE  BUBA

INTRODUCTION

1. In January 2007 the Economic and Financial Crimes Commission (hereafter referred to as “the EFCC” or “the Commission”), in the exercise of its statutory powers under the Economic and Financial Crimes Commission (Establishment) Act 2004 (hereafter referred to as “the EFCC Act”), issued a report of its investigation into the finances of the Rivers State government under the then outgoing Governor Peter Odili. The “Interim Report of the EFCC on Governor Peter Odili” disclosed that “over 100 billion Naira of Rivers State funds have been diverted by the Governor, Dr. Odili” and contained serious allegations of fraud, conspiracy, conversion of public funds, foreign exchange malpractice, money laundering, stealing and abuse of oath of office against Dr Odili.

2. On February 22 2007, the then Attorney General and Commissioner for Justice for Rivers State filed a suit (No. FHC/PHC/CSI78/2007: Attorney-General for Rivers State v the Economic and Financial Crimes Commission & 3 Others) challenging the powers of the EFCC to probe the affairs of the State and claiming that the activities of the EFCC were prejudicial to the smooth running of the Government of Rivers State.

3. The case was fast-tracked by the court and appears to have been decided ex parte. Thus on March 23 2007, the trial judge, Honourable Justice Ibrahim Nyaure Buba, granted all the declaratory and injunctive reliefs sought by the Plaintiff. These include a declaration that the EFCC investigations are invalid, unlawful, unconstitutional, null and void; an injunction restraining the EFCC and the other defendants from publicising the report of the investigation; and an injunction restraining the EFCC from any further action in relation to the alleged economic and financial crimes committed by Dr Odili.

4. The EFCC appealed the judgement but continued its activity in relation to Dr Odili, having taken the view that since he was not a party to the case he could not benefit from the reliefs. Dr Odili then filed a claim against the defendants in suit no. FHC/PHC/CSI78/2007, including the Attorney-General of the Federation and Minister of Justice and the EFCC, seeking to enforce that judgment by way of an ex parte order barring the EFCC from investigating or arresting or prosecuting him. Justice Buba was said to have declined to issue the ex parte order but instead ordered that all parties be served notice of the motion.

5. Bizarrely, the Attorney-General of the Federation and Minister of Justice, who is also the Chief Law Officer of the Federation and the Guardian of the Public Interest, failed to file any defence to this thoroughly outrageous claim. The EFCC filed a preliminary objection challenging the jurisdiction of the court to oust its statutory powers and informed the court that its investigations had disclosed a prima facie case against Dr Odili. However, leading Counsel for Dr Odili, Chief Ifedayo Adedipe (SAN), argued that the earlier judgment of the court was a judgment in rem - that is, a subsisting order affecting not only the named parties in the case.

6. In the event, Hon Justice Buba rejected the EFCC’s submissions and agreed with Leading Counsel to Dr Odili. In a ruling delivered on 5 March 2008, the learned Judge held that: “The subsisting judgment of March 2007 by this court is binding on all parties. Therefore there is a perpetual injunction restraining the EFCC from arresting, detaining and arraigning Odili on the basis of his tenure as governor based on the purported investigation.”

7. By all indication, the EFCC and unsurprisingly the Attorney General of the Federation (who also superintends the EFCC) have either failed to appeal the judgement or neglected or abandoned any such appeal.

8. The judicial powers conferred on the learned Judge by section 6 of the 1999 Constitution are extensive and include all inherent powers of a court of law. However, these powers are not unlimited and must be seen to be the powers of a court of law. Therefore, the egregious errors of laws in the judgments of the Hon Justice Buba constitute gross incompetence amounting to judicial misconduct.

9. Furthermore, the flagrant violations of the constitutional principle of separation of powers and The Rule of Law in the judgments constitute abuse of powers amounting to judicial misconduct.

10. Specifically, these acts of judicial misconduct contravene the Code of Conduct for Judicial Officers of the Federal Republic of Nigeria (hereafter referred to as “Code of Conduct for Judicial Officers”), particularly the following provisions:

i. Rule 1.1 - A Judicial Officer should respect and comply with the laws of the land and should conduct himself at all time in a manner that promotes public confidence in the integrity and impartiality of the Judiciary.

ii. Rule 2.1 - 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.

EGREGIOUS ERRORS OF LAW CONSTITUTING GROSS INCOMPETENCE AMOUNTING TO JUDICIAL MISCONDUCT AND BREACHES OF RULES 1.1 AND 2.1 OF THE CODE OF CONDUCT FOR JUDICIAL OFFICERS

11. An injunction is an equitable order of a court requiring a person either to do a specific act or acts (mandatory or positive injunction) or to refrain from doing a specific act or acts (a prohibitory or negative injunction). Injunctions may also be classified in terms of the stage in the proceedings in which they are ordered and, following from that, the period of time for which the order is to remain in force: an interim or temporary or interlocutory injunction is granted on the hearing of a motion while a perpetual or final or permanent injunction is granted after a trial.

12. Therefore a perpetual injunction is usually granted after a trial on the merits, when the plaintiff has established the existence of his legal right and the defendant's duty plus the fact that the defendant has breached or is about to breach the said right. In exceptional cases, and with the defendant’s consent, the hearing of the motion can be treated as the trial of the action in which case a perpetual injunction will lie as long as the rights and duties of the parties are finally determined by the court.

13. In contrast, an interim injunction is a provisional measure taken at an earlier stage in the proceedings, before a court has had the opportunity to hear and weigh fully the evidence of both sides. Therefore where it is not known whether the plaintiff’s claim is well-founded but the plaintiff has shown that there is a serious question to be tried, an interim injunction may be granted pending a trial on the merits. Whether an interim injunction is granted depends on the balance of convenience, as the court balances the irreparability of injury to the plaintiff and inadequacy of damages if an injunction were not granted against the damage that granting an injunction would cause the defendant.

14. An injunction may also be granted even though the plaintiff's legal rights have not yet been infringed. In such a case the plaintiff is said to obtain the injunction quia timet ("because he fears") that his legal right will be violated by the defendant if the order is not made.

15. The one overriding requirement for any type of injunction is that the plaintiff must have a cause of action in law entitling him to substantive relief. In effect, an injunction is not a cause of action but a remedy.  Therefore, it is generally granted only to a plaintiff who shows that he has a cause of action against the defendant (or in the case of a quia timet injunction that there would be a cause of action if the defendant were to do the act which the plaintiff seeks to restrain). In other words, an injunctive relief protects some legal or equitable right of the plaintiff in respect of which the defendant owes him a legal duty.

16. Your Lordship must not perceive the preceding and following restatement of elementary principles of law as an attempt to teach one’s grandmother to suck eggs. The only intention is to demonstrate the egregious nature of the catalogue of basic errors that vitiate the judgments of learned Justice Buba by setting out and then applying these principles to the facts of the matter.

17. The subject matter of the jurisdiction of a Court of Equity is civil property. Injury to property, whether actual or prospective, is the foundation on which its jurisdiction rests. Therefore a Court of Equity usually lacks jurisdiction in matters which do not affect any right to real or personal property. Therefore on first principle, Justice Buba lacked the jurisdiction to grant any equitable relief to the Attorney-General of Rivers State or to the State Government or to Dr Odili on the facts of this matter. However the brazenness with which our Judges have showered these illegal injunctions like confetti on unmeritorious plaintiffs in the recent past is very well known.  

18. Similarly, contrary to the contention by learned counsel to Dr Odili, the fact that an injunctive relief is equitable means that, as a general rule, the order operates in personam (against particular persons) rather than in-rem  (against persons generally). Therefore the judge fell into grave error when he overruled the EFCC’s argument on this point.

19. Furthermore, there is no substantive claim against the EFCC upon which the injunctions are predicated. It is undoubtedly the case that there is no principle in Nigerian law that confers on Dr Odili (or any other person for that matter) a right to perpetual immunity from investigation, arrest, detention and prosecution by a law enforcement agency exercising lawful powers and functions. There is equally no principle in our law that imposes a legal duty on the EFCC not to investigate or arrest or detain or prosecute a suspected economic and financial criminal in perpetuity.

20. For the avoidance of doubt, it is pertinent to note that section 45 of the 1999 Constitution expressly subjects the fundamental human rights provisions that could conceivably be relevant to this matter to any law that is reasonably justifiable in a democratic society for the purpose of protecting the public interest. The EFCC Act being such a law, there is no question of breach of human rights arising from the lawful exercise of the Commission’s statutory powers in this matter.

21. As an exception to the general requirement for a substantive cause of action, it is possible to obtain an injunction without demonstrating any right which the plaintiff claims to have against the defendant, but this is usually done to protect or facilitate the effectiveness of the judicial process. Therefore the application of this exception to this matter would have seen the EFCC, had it applied for it, granted an injunction restraining Dr Odili from dealing with any proceeds of his alleged crimes pending trial on the criminal charge. However, there is no exception to the requirement for a valid cause of action that could have seen an injunction granted in favour of Dr Odili on the facts of this matter.

22. For completeness, it should be noted that the equitable and thereby discretionary nature of the remedy means that it may be refused even if the plaintiff does establish a cause of action (which is, in any event, emphatically not the case in this matter). Two main principles on which the court exercises this discretion are particularly relevant to this matter.

23. First, injunction will not be granted if the conduct of the plaintiff in respect of the matter has been inequitable. This principle is expressed in the oft-quoted maxim: “he who comes to equity must come with clean hands”. Without prejudice to Dr Odili’s right to presumption of innocence in a criminal trial, the fact that the EFCC, a lawful authority, informed the court that its investigation disclosed that 100 billion Naira grew wings and disappeared from the Rivers State treasury under Dr Odili’s watch indicates strongly that Dr Odili lacks the necessary clean hands to obtain an equitable relief in a civil case. Besides, corroborating evidence of this allegation in the form of glaring incongruity between the lack of improvements in Rivers State and the unprecedented oil wealth that accrued to the State under Dr Odili’s watch could not have escaped the attention of a judge of a High Court sitting in Port Harcourt.

24. Secondly, equitable relief is granted only if it will be followed by equitable conduct on the part of the plaintiff in respect of the matter. Hence the maxim: “he who seeks equity must do equity.”  Dr Odili has maintained his innocence but rather than seize the opportunity to clear his "good name" and "hard-earned reputation" by facing his accusers in a criminal trial (since a “clear conscience fears no accuser”)   he sought refuge in a Court of Equity of all places. Moreover, it beggars belief that this Court of Conscience would grant him any relief whatsoever in these circumstances, let alone the perpetual injunctions shielding him from investigation, arrest, prosecution etc.

25. The foregoing principle is a poignant demonstration of the legal impossibility of the plethora of perpetual injunctions handed down to Dr Odili by Justice Buba.  Section 40 EFCC Act provides that “subject to the provisions of the constitution of the Federal Republic of Nigeria 1999, an application for stay of proceedings, in respect of any criminal matter brought by the commission before the High Court shall not be entertained until judgment is delivered by the High Court”. However, a High Court has the power (under its inherent powers under the Constitution) to grant an interim, but not a perpetual, injunction against the commencement or continuation of criminal proceedings which raise a question that is the subject of civil proceedings before it if it would be vexatious for the criminal proceedings to proceed before judgment is given in the civil action. Invariably, the requisite cause of action and legal rights and duties for the grant of the injunction must be established.

26. Therefore, if (for the sake of completeness) it is assumed that Dr Odili had proved that the EFCC would do irreparable injury to his legal rights pending the determination of the existence or extent of his right, an interim injunction could have been ordered to maintain the status quo pending a trial on the merits in which the existence of the rights will be finally determined. But this was not the case here as there was no interim injunction or any trial on the merits. Instead, without establishing the exact legal right Dr Odili has to immunity from investigation or arrest or prosecution, the learned Judge issued unprecedented perpetual injunctions that not only obviated the need for such a trial to determine the existence of any such right but most significantly stopped any future investigation or arrest or prosecution.

27. Your Lordship will find no principle in our law by which the injunctions ordered by Justice Buba can be supported; nor will Your Lordship find any recorded precedent in the law of any other common law jurisdiction.

28. In all the above-stated circumstances, the egregious errors of laws in the judgement of the learned Justice Buba constitute clear violations of Rule 1.1 of the Code of Conduct for Judicial Powers (which requires him to comply with the law and to promote public confidence in the integrity and impartiality of the Judiciary) and Rule 2.1 of the Code of Conduct for Judicial Powers (which requires him to be faithful to the Constitution and the law and to acquire and maintain professional competence in them).

29. Furthermore, the nature and seriousness of the gross incompetence evident in the judgments reasonably indicate bad faith and demonstrate that Justice Buba has not maintained a professional competence in the law and is not fit to hold judicial office.

VIOLATIONS OF THE CONSTITUIONAL PRINCIPLE OF SEPARATION OF POWERS AND THE RULE OF LAW CONSTITUTING A FLAGRANT ABUSE OF POWERS AMOUNTING TO JUDICIAL MISCONDUCT AND BREACHES OF RULES 1.2  AND 2.1 OF THE CODE OF CONDUCT FOR JUDICIAL OFFICERS

30. Under the principle of separation of powers embodied in sections 4 to 6 of the 1999 Constitution, the powers of the Federation are divided into an executive, a legislature and a judiciary, each with separate and independent powers and areas of responsibility. Section 4 vests the legislative powers of the Federation in the National Assembly while section 5 vests the executive powers of the Federation in the President, to be exercised by him either directly or through officers in the public service of the Federation. These executive powers, according to section 5, shall extend to the execution and maintenance of the Constitution and all laws made by the National Assembly.

31. Thus in the exercise of its legislative powers, the National Assembly enacted the EFCC Act. This Act charged the Commission with the responsibility, amongst other things, for:

i. examining and investigating all reported cases of economic and financial crimes with a view to identifying the persons involved;
ii. investigating all financial crimes, co-ordinating and enforcing all economic and financial crimes laws and enforcement functions conferred on any other person or authority;
iii. adopting measures to identify, trace, freeze, confiscate or seize proceeds derived from economic and financial crimes and related offences;
iv. adopting measures to eradicate the commission of economic and financial crimes;
v. identifying and determining the whereabouts and activities of persons suspected of being involved in economic and financial crimes,
vi. taking charge of, supervising, controlling, coordinating all the responsibilities, functions and activities relating to the current investigation and prosecution of all offences connected with or relating to economic and financial crimes; and
vii. carrying out such other activities as are necessary or expedient for the full discharge of all or any of the functions conferred on it under the Act.

32. Section 7 emphasises that the Commission has the power to investigate whether any person has committed any economic and financial crimes.

33. However, despite these very clear provisions of our law, the Hon Justice Buba abused flagrantly the judicial powers conferred on him by section 6 of the Constitution and violated the constitutional principle of the separation of powers by effectively rendering nugatory the powers conferred on the EFCC by the National Assembly and stopping the Commission from exercising its statutory powers and functions in relation to Dr Odili.

34.The terms of the judgement of March 5 2008 are very instructive. In addition to the decision stated in paragraph 6 above, the learned Judge held, inter alia, that:

i.“In the light of the final and subsisting judgment of the Federal High Court in suit number FHC/PH/CS/78/2007, a declaration that the 2nd defendant [the EFCC] cannot arrest, detain, arraign and/or prosecute the plaintiff on the basis of the alleged investigations conducted into the affairs of Rivers State between 29th May, 1999 and 29th May, 2007, is hereby made.”

ii."In view of judgment in suit number FHC/PH/CS/78/2007, a declaration that the purported findings of the investigation team of the 2nd defendant [the EFCC] into the activities of the Rivers State government between the period of 29th May, 1999 and the 29th May, 2007, the said investigation being subject-matter of a suit FHC/PH/CS/78/2007, are invalid, unlawful, unconstitutional, null and void.”

iii."In the light of the judgment in suit number FHC/PH/CS/78/2007, an order of this court, restraining the defendants, jointly and severally, from arresting, detaining, arraigning and/or prosecuting the plaintiff in any court pursuant to any purported investigation by the second defendant, which investigation is the subject of the aforesaid suits is also hereby made.”

iv."In view of the subsisting valid judgment of this court, delivered on 20/3/2007, an order of perpetual injunction restraining the defendants jointly and severally from disseminating, publishing, circulating or distributing the report of the alleged investigation conducted by the second defendant into the activities of the Rivers State government under the tenure of the plaintiff, which said investigation is nullified in suit number FHC/PH/CS/78/07 is also hereby made."

35.It is highly significant that at no time did the learned Judge declare the EFCC Act unconstitutional or illegal. Indeed, Your Lordship’s Court has in an established line of cases notably Attorney General of Ondo State and Attorney General of the Federation (2002) and Attorney-General of Abia State v. Attorney-General of the Federation (2004) given short shrift to similar challenges. Rather, the effect of the judgments of Justice Buba is that the legislation applies to everybody bar Dr Odili. This is a subversion of The Rule of Law, of which equality before the law is an overriding principle and which requires that all persons and authorities, without exception, be bound by and entitled to the benefit of the ordinary laws of the land administered in the ordinary courts of the land. 

36.The judgments are particularly damaging to the integrity of the criminal justice system in view of the fact that Dr Odili effectively procured a judge-made immunity shortly before he lost his constitutional immunity from prosecution as a Governor. It is even more glaring that this immunity by judicial fiat has greater breadth (extending beyond prosecution to include investigation etc) and length (extending beyond a tenure in office to a lifetime) than the constitutional immunity.

37. As Your Lordship is no doubt aware, in Fawehinmi v Inspector-General of Police [2002], Your Lordship’s Court upheld the constitutional immunity but held emphatically that it does not extend to investigation by law enforcement agencies.  In the words of Justice Uwaifo:  "That a person protected under section 308 of the 1999 Constitution, going by its provisions, can be investigated by the police for an alleged crime or offence is, in my view, beyond dispute. To hold otherwise is to create a monstrous situation whose manifestation may not be fully appreciated until illustrated".

38.    This erstwhile unimaginable monstrosity has now been amply illustrated by the learned Honourable Justice Buba, despite settled superior authority to the contrary and despite his obligations under section 15 of the Constitution to use his good offices to abolish all corrupt practices and abuse of power.

39.    In the circumstances, the above-mentioned flagrant violations of the constitutional principle of separation of powers and The Rule of Law in the judgments constitute serious violations of Rule 1.1 of the Code of Conduct for Judicial Officers (which requires the learned Judge to respect the laws of the land) and Rule 2.1 of the Code of Conduct for Judicial Officers (which requires him to be true and faithful to the Constitution and the law, and to uphold the course of justice by abiding with the provisions of the Constitution and the law).

40.Furthermore, the nature and gravity of these violations of the laws of the land reasonably indicate bad faith and demonstrate that Justice Buba is not fit to hold judicial office.

FAILURE OF THE NATIONAL JUDICIAL COUNCIL TO INTERVENE CONSTITUTES A GRAVE AND CONTUNUING DANGER TO THE INTEGRITY OF THE JUDICIARY

41.The miscarriages of justice perpetrated by Justice Buba present a clear and present danger to the law enforcement activities of the EFCC in particular and to the entire criminal justice system in general. Therefore, the fact that these injunctions remain subsisting is an indisputable indictment on both the leadership of the Commission and the Attorney-General and Minister of Justice. The debilitating effect on the criminal justice system of the incompetence displayed by the EFCC and the Attorney-General on this matter was recently thrown into sharp relief when another Federal High Court, this time sitting in Abuja, granted a not dissimilar injunction restraining the EFCC from arresting, detaining, prosecuting or embarrassing the self-same Dr Odili over a 189 million Naira debt he is said to owe a commercial bank.

42.However, the abject failure of these vital institutions of the executive arm of government to bring a successful appeal against these injunctions does not absolve the National Judicial Council (hereafter referred to as “the Council”) of its constitutional obligations to exercise disciplinary control over judicial officers and to deal with all matters relating to broad issues of policy and administration of the judiciary. This is particularly so bearing in mind the first paragraph of the preamble to the Code of Conduct for Judicial Officers, which emphasises that “an independent, strong, respected and respectable Judiciary is indispensable for the impartial administration of Justice in a democratic State.”

43.In these circumstances, it is troubling that the Council has to date failed to take disciplinary action against Honourable Justice Buba. Instead, according to media reports, the Federal Judicial Service Commission (of which Your Lordship is Chairman) apparently advised the Council (of which Your Lordship is equally Chairman) earlier this year to recommended the very same Hon Justice Buba to the President for appointment to the office of Justice of the Court of Appeal.

44.It thus appears that Your Lordship is unaware of the circumstances detailed above. I am therefore bringing those circumstances to Your Lordship’s attention in view of Your Lordship’s imminent retirement as the Chief Justice of Nigeria and Chairman of the Council.  As Your Lordship is no doubt aware, the appearance of impropriety outlawed by Rule 1 of the Code of Conduct for Judicial Officers (which provides that “a Judicial Officer should avoid impropriety and the appearance of impropriety in all his activities”) and the imperative of public confidence in the impartiality of the judiciary raise issues that must be viewed from the standpoint of the perception of the public. The question is not what a judicial officer does or does not do, but what right-thinking members of the public think he has done.

45.Furthermore, the second paragraph of the preamble to the Code of Conduct for Judicial Officers makes clear that “a Judicial Officer should actively participate in establishing, maintaining, enforcing, and himself observing a high standard of conduct so that the integrity and respect for the independence of the Judiciary may be preserved.”

CONCLUSION

46.Therefore, in view of the above-stated circumstances,  Your Lordship is humbly requested to use Your Lordship’s remaining days in office as the exalted Chairman of the Council to ensure that the Council discharges its constitutional duties in relation to this matter with a view to recommending the removal of Justice Ibrahim Buba from office.

Yours faithfully

Osita Mba

 

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