A lot of ink has flowed, countless articles written in both traditional and social media on the controversial decision of the Court of Appeal in the case of Hon. Justice Hyeladzira Nganjiwa v. Federal Republic of Nigeria CA/L/969C/2017 (Unreported).
To many a commentator, including yours sincerely, the initial reaction was that judges now enjoy immunity from criminal prosecution. Hence, it is important to revisit the concept of judicial immunity, with a view to situating the decision of the Court of Appeal in the above-mentioned case in its rightful place in our jurisprudence.
The Osborne Concise Law Dictionary, 9th Edition defined immunity as: “exemption from legal proceeding”. This definition sees immunity as strictly dealing with legal proceedings. The proceedings could be either criminal or civil proceedings or no more. The definition is restrictive and may not be helpful in undertaking a very meaningful discussion on the subject of immunity.
However, the Blacks’ Law Dictionary 10th edition, gives a more elaborate definition of the term. The Black’s Law Dictionary gives the meaning as: “any exemption from a duty, liability or service of process; esp., such an exemption granted to a public official”. Further quoting Edward J. Kionka, the Black’s Law Dictionary goes on to define the term as;
“An immunity is a defense to tort liability which is conferred upon an entire group or class of persons or entities under the circumstances where considerations of public policy are thought to require special protection for the person, activity or entity in question at the expense of those injured by its tortious acts…”
From the above definitions, it appears the following could be deduced; that immunity, at least from the perspective of the editors of both Osborne Concise Dictionary and Black’s Law Dictionary implies an exemption from a court process, a duty and liability, mostly civil liability.
The concept of immunity has received judicial interpretation in Nigeria. Although, this interpretation is strictly in respect of the Constitutional immunity granted to the Governor, the Deputy Governor, the President and the Vice President, it is important we reckon with it, since we are dealing with the concept of immunity generally. In the words of Karibi-Whyte, JSC;
“It would seem unarguable that apart from the matters excluded in s. 308(2) there is an absolute bar to actions in civil or criminal proceedings against the persons named in section 308(3). Concisely stated, civil or criminal proceedings in a private capacity against the persons named in section 308(3) cannot be initiated during their tenure and if pending before they assumed office shall not be continued.”
 Edward Kionka, Torts in A Nutshell 341(2d ed.1992)
JUDICIAL IMMUNITY – WHETHER COVER CRIMINAL MATTERS?
Judicial immunity is that protection granted to persons carrying out judicial functions. This ranges from judges of superior courts of records to Magistrates and Members of Tribunals. According to De Smith, “judicial immunities from suit are conferred not for the benefit of judges but for the benefit of the administration of justice.” This immunity extends to civil liabilities arising from the performance of judicial duties.
Judicial immunity has a long history that predates modern Constitutions. Lord Denning traces the concept to an era long before 1613 .According to the Master of Rolls, “it has been accepted in our law that no action is maintainable against a judge for anything said or done by him in the exercise of a jurisdiction which belongs to him. The words which he speaks are protected by an absolute privilege. The orders which he imposes, cannot be made the subject of judicial proceedings against him…of course if the judge has accepted bribes or been in the least degree corrupt, or has perverted the course of justice, he can be punished in the criminal courts.” [Emphasis Supplied] To Lord Denning, where the Judge was not acting judicially and within his jurisdiction, he would not be covered by immunity.
In the case of Onitiri v. Ojomo , the defendant Magistrate was presiding at a court where the plaintiff was a party in a certain proceeding, the plaintiff had applied to transfer the case from the defendant’s court. Upon reading a paragraph of his application for transfer at the request of the defendant, the plaintiff was informed by the defendant that he had committed a contempt of court. The defendant formulated a charge against him and remanded him in custody pending his trial before another Magistrate. Subsequently, the plaintiff instituted an action against the defendant claiming damages for unlawful imprisonment. It was held by the Court per De Commarmand S.P.J, that the defendant was entitled to immunity under the then Section 6(1) of the Magistrates’ Courts Ordinance, which provided that:
“No Magistrate, Justice of the Peace or other person acting judicially, shall be liable to be sued in any civil court for any act done or ordered to be done by him in the discharge of his judicial duty whether or not within the limits of his jurisdiction. Provided that he at the time, in good faith, believe himself to have jurisdiction to do or order the act complained of.” [Emphasis Supplied]
Tinubu v. IMB Securities Plc (2001) LPELR SC
 De Smith, Foundations of Law, Constitutional and Administrative law, P.372, Penguin Books, 4th ed.
Sirrors v. Moore(1975)QB118
Sirrors v. Moore(supra)
In T.A. Awosanya v. Board of Custom , the appellant, a Magistrate, was found guilty of criminal contempt of court by the Federal Revenue Court (now Federal High Court) for disobedience to an order of the court to stay proceedings in a case which the appellant was trying. On appeal to the Supreme Court, the appellant was held not guilty of criminal contempt and was accordingly discharged and acquitted. The principle, according to Elias, CJN, was that:
“An error of judgment on the Magistrate’s part whether as to jurisdiction or as to the precise order to make in the circumstances with which he was confronted can hardly be characterised as criminal and no amount of argument as to a suspected improper motive would make it a criminal offence in itself.”
Although, judicial immunity is not provided for by the Constitution, there are certain statutory authorities for it. The statutory provisions for immunity from criminal liability of judicial officers for acts done in their judicial capacity can be found in section 31 of the Criminal Code Act Cap C38 Laws of the Federation, 2004. The said section provides as follows:
“Except as expressly provided by this Code or the enactment constituting the offence, a judicial officers is not criminally responsible for anything done or omitted to be done by him in the exercise of his judicial functions, although the act done is in excess of his judicial authority or although he is bound to do the act omitted to be done.”
NGANJIWA v. FRN (supra)
The Appellant was arraigned before the High Court of Lagos State presided over by Akintoye J. on a 14 Count Information dated 8th June 2017 bothering on unlawful enrichment by a public officer and making of false information contrary to certain sections of the Criminal Code Law of Lagos State.
(1975) 3 S.C. 33
Upon his arraignment, the Appellant raised a preliminary objection to the jurisdiction of the Lagos State High Court to try him on the ground that as a judicial officer under the employment of the National Judicial Council (“NJC”), the due process of law was not followed before he was arraigned for criminal prosecution before the Court, therefore that the Court lacked the jurisdiction to try him. The Trial Judge dismissed the objection, holding that he had jurisdiction in the matter. Being dissatisfied with that decision, the Appellant appealed to the Court of Appeal.
In a well-considered decision, the Court of Appeal held that the condition precedent for the Appellant to be tried before the lower Court has not been fulfilled hence the High Court lacked jurisdiction to try the Appellant.
According to the Court of Appeal, though there is no Constitutional immunity for judicial officers, however, where a serving Judge who is under the management, control and disciplinary jurisdiction of the National Judicial Council commits a crime tantamount to a violation of his judicial oath, such a judicial officer can only be tried if and when the NJC had exercised first its powers under the Constitution to investigate the alleged breach by the judicial officer and where it finds merit in the allegation against the judicial officer, the officer shall face disciplinary actions and the NJC may recommend the Judicial officer for removal to the appropriate authority which is either the President or the Governor and or take other appropriate actions. When this is done and accepted by the appropriate authority in accordance with the Constitution, then the relevant law enforcement agent is at liberty to make the judicial officer face the wrath of the law. Any attempt to by-pass the NJC when filing information against a judicial officer will amount to a failure to observe a condition precedent, and a violation of the Constitution. Where, on the other hand, a Judicial officer commits theft, fraud, murder or manslaughter, arson and the likes which are offences outside the scope of the performance of his duty, he may be arrested and prosecuted directly by the State without any recourse to the NJC.
The law is and remains crystal clear that judicial officers have no constitutional immunity from criminal prosecution. In fact, it was even conceded by the Appellant in the Ngajiwa v. FRN (Supra) Case that there is no Constitutional immunity for judicial officers. However, the decision has radically changed the position of the law on the due process of law or condition precedent to the arrest and prosecution of judicial officers.
 See the lead Judgment delivered by Hon. Justice Osarugue Obaseki-Adejumo
Before now, the position of the law on this matter is as provided for under the Criminal Code Act . Under the Act, the procedures for arresting a judicial officer and for initiating proceedings against the judicial officer on charges of judicial corruption were well spelt out. The law is that the judicial officer cannot be arrested without warrant. Further, a judicial officer cannot be proceeded against except on information duly signed by or on behalf of the Attorney General of the Federation or that of the State in appropriate cases .
The current position of the law now is that where a judicial officer has been accused or is alleged to have committed a crime, which crime also amounts to a violation of the oath of office of a judicial officer, that is, the conduct also breaches the Code of Conduct for Judicial Officers, the condition precedent for a valid arrest and prosecution, is that the judicial officer is first subjected to the disciplinary jurisdiction of the NJC. The powers of the NJC to investigate the officer and exercise its disciplinary functions cannot be obstructed; it must be done first before any valid trial can be conducted. This new position is aptly captured in the lead Judgment of Osarugue Obaseki-Adejumo JCA, thus:
“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 and prosecuting a serving Judge”?
Re-echoing the same point, Y.B. Nimpar JCA added in his concurring judgment;
“Thus, when the Constitution bestowed upon the NJC the process of carrying out an act of disciplining a judicial officer, the process must first be complied with before any other action is taken in the matter. Though not explicitly stated but by implication NJC must be first point of contact before proceeding against such a judicial officer.”
It is therefore clear from the above that the decision of the Court of Appeal in this case, is not an authority on judicial immunity but an authority on condition precedent that must be fulfilled before arresting and prosecuting serving judicial officers.
By their own holding, the Court of Appeal has redefined the law on even when the prosecutorial agencies even the Attorney General can duly exercise their powers to initiate criminal prosecution. For the authorities concerned, except where the offence is not a violation of the oath of office of a judicial officer as outlined in the Code of Conduct for Judicial Officers made by the NJC, no valid prosecution can be commenced except the NJC has exercised its disciplinary powers.
 Sections 98, 98A of the Criminal Code Act
 Section 98C of the Criminal Code Act