05 Mar 2013
Justice Charles Efang Archibong
President Goodluck Jonathan, acting on the recommendation of the National Judicial Council (NJC), compulsorily retired Justices Charles Efang Archibong, of the Federal High Court, Lagos. The NJC also recommended the retirement of Justice T.D Naron, of the Plateau High Court to the Governor, Chief Jonah Jang. Taking a cursory look at their trajectory, Davidson Iriekpen exposes some the cases that eventually consumed the judges
President Goodluck Jonathan, last week, approved the compulsory retirement of Justice Charles Efanga Archibong of the Federal High Court, Lagos Division with immediate effect. Jonathan’s approval was sequel to the recommendation of the National Judicial Council (NJC) under the chairmanship of the Chief Justice of Nigeria (CJN), Justice Aloma Mariam Mukhtar, at its emergency meeting held penultimate Wednesday.
Also recommended for retirement by the NJC is Justice Thomas Naron of the Plateau State High Court of Justice, but since it is the prerogative of the governor to sack a state judge, Governor Jonah Jang was appropriately directed to retire Naron. The two judges were found guilty of professional misconduct by the NJC.
However, Archibong was recommended for compulsory retirement for dismissing grievous charges against an accused person, a former Managing Director of Intercontinental Bank Plc, Mr. Erastus Akingbola, without even taking his plea. He, thereafter, refused to release the Certified True Copy of his ruling to lawyers in the case.
The judge was also accused of making unfounded and caustic comments on the professional competence of some Senior Advocates of Nigeria (SAN), as well as issued bench warrants on some officials of the Peoples Democratic Party (PDP) at a time that the counsel who was directed to serve them had filed an affidavit to the effect that he had not been able to serve them the contempt application. There were also said to be glaring procedural irregularities in some of his decisions, which queried his understanding of the law and court procedures.
On his part, Justice Naron was recommended for retirement because the NJC found that there were constant and regular voice calls and exchange of text messages between him and Mr. Kunle Kalejaiye, one of the lead counsels to former governor of Osun State, Mr. Olagunsoye Oyinlola, during hearing of the petition brought against Oyinlola’s election by Mr. Rauf Aregbesola, at the Osun State Governorship Election Petitions Tribunal. This was contrary to the Code of Conduct for Judicial Officials of the Federal Republic of Nigeria vide Section 292 (1) (b) of the 1999 Constitution, as amended.
Naron, thereafter, dismissed Aregbesola’s petition and declared Oyinlola the validly elected winner of the 2007 governorship election in Osun State. His judgment was, however, overturned by the Court of Appeal, which declared Aregbesola the rightful winner of the election. The two judges had since been suspended from their duties.
Since the decision of the NJC, many analysts had commended the council for putting its foot down on the matter of questionable conduct of judges in the nation’s judicial system. The judiciary, stakeholders argue, is so critical to the sustenance of justice and democracy, that Nigerians cannot allow anyone bastardise or allow it fall into disrepute.
For some years now, reports of the tainting of the hallowed chambers of the Nigerian judiciary with corruption have become commonplace. The reported goings-on in courts, especially the election petitions tribunals, have become stranger than fiction. Tales have been told of tens and hundreds of millions of naira exchanging hands between litigants and judges in their cases, with judgments reportedly going to those who pay the highest.
But the CJN has always been unequivocal in her disposition to these embarrassing anomalies, showing as much grit to rid the judiciary of the rot to the minimum.
However, while many people may not know Naron because he is a state judge, the same cannot be said of Archibong who had for some time, been at the Federal High Court Lagos.
For a long time, Archibong has attracted so much attention to himself. Recently, he reversed himself after issuing an order for the closure of the three commercial banks that were recently nationalised by the Central Bank of Nigeria (CBN). The banks are Keystone Bank, Mainstreet Bank and Enterprise Bank. Archibong, after hearing an ex-parte application filed by Chuks Nwachuku, on behalf of some aggrieved shareholders of the Bank PHB, now Keystone Bank, issued an order halting their operations pending the determination of the motion on notice filed by the aggrieved shareholders.
Sensing that the order could get him into trouble, less than 48 hours after, he reversed himself. THISDAY findings revealed that the pressure for Archibong to reverse himself came from both the top echelon of the CBN and the Chief Judge of the court, Justice Ibrahim Auta, who thought that the judge went too far, considering the consequences of the order on the economy.
It was gathered that part of the worries was that the order by Archibong could not be made without hearing the parties against whom it was sought and without giving them notice and that such orders have to consider the balance of convenience of all parties.
The order had caused panic in the banking industry and among depositors with analysts describing it as “reckless.” But in reversing himself, Archibong said the order was not made to halt the operations of the banks but to freeze the dealings in the equity of the affected banks in relation to the relief in the main application of the applicants for enforcement of their fundamental rights.
He added that the order was not intended to freeze the day-to-day business or banking operations of the affected banks. But it was gathered that as soon as the order was reported, a top official of the Central Bank of Nigeria (CBN), cried foul, and wondered which judge would order the closure of three banks in the country and send panic across the financial sector.
It was argued that the best ruling the judge could have given was for the plaintiffs to put the defendants on notice instead of the blanket order halting the operations of the banks. Auta, it was said, immediately ordered Archibong to find a way round the order by reversing himself.
Investigation further revealed that in order to get a soft landing, Archibong immediately allegedly arranged for an “interested party” who was neither one of the plaintiffs nor defendants in the suit to move a motion that the order was misunderstood.
Another case where attention was focused on him was the one involving the Federal Government and the Managing Director of Folio Communications Limited, Fidelis Anosike. The Federal Government had slammed a 21-count charge of conspiracy, asset stripping and stealing of over N3billion worth of properties belonging to Daily Times of Nigeria on Anosike at the Federal High Court, Lagos.
According to the charge sheet marked FHC/L/274c/10, and signed by one, E.K. Ugwu, an Assistant Chief State Counsel on behalf of the Attorney-General of the Federation and Minister of Justice, the accused persons were alleged to have sometime in June 2004, conspired among themselves to obtain about 140,252,900 units of shares.
The shares, however, comprised about 56 per cent of the total of 233,754,840 shares of Daily Times of Nigeria Plc valued at the sum of N750million from the Bureau of Public Enterprise (BPE) by false pretence and with representation of possessing the means to pay for the acquisition of same with fresh funds which they did not possess, but with intent to defraud the Federal Government.
They were alleged to have acquired the said shares from BPE by mortgaging the assets and selling off properties of Daily Times of Nigeria Plc to realise the acquisition of the said shares. The case was assigned to Justice Pat Ajoku. But the judge kept adjourning until the time the police will arrest and bring the accused persons before her for arraignment.
For over eight sittings, the police could not arrest the accused persons neither did they voluntarily appear in court. About a year after the suit was instituted, the accused filed a suit before Justice Archibong seeking to quash the charges, which was before a sister judge and he did.
Justice Ajoku refused to hands off the case.
Another grievance against Archibong was when he issued a bench warrant on some officials of the Peoples Democratic Party (PDP) for contempt even when the counsel who was directed by the court to serve them an affidavit had not been able to serve the contempt application.
Even the judges of the Court of Appeal are said never to have enjoyed the kind of judgments and rulings emanating from Justice Archibong. On several occasions, the court had lambasted him for poor judgments. For instance, in the case between Nabaruma v Offodile 2004 12NWLR, Justice Coram Dongban-Mensem of the Court of Appeal described his decision thus: “the Federal High Court Enugu and his Lordship Archibong went beyond the realms of his jurisdiction. As rightly stated in the lead judgment, the Federal High Court has a duty to restrain itself from straying outside its jurisdictional purview. The Federal High Court is a specialised court,” the judge said.
Also, in the case: FRN v Daniel (2012) 4 NWLR (Pt. 1289) 40, pp. 58c-59c, where Archibong acquitted a man in spite of his guilty plea, the Court of Appeal faulted the decision thus: “Regarding poor condition of service, it was postulated therein that poor condition of service is antithesis to the rule of law. This is absolutely so because, very often than not, a poorly paid judge stands the risk of becoming a prey and an endangered species, thus likely to fall foul of the veritable standards highly expected of him as a priest in the sacred temple of justice.”
Yet, in the case involving Danish Car Carriers vs F.S. & Co Nigeria Ltd, reported in 2012 2NWLR, Justice Mukhtar of the Court of Appeal while not satisfied with Archibong’s decision held that: “It is an elementary principle of law that judgment or any decision of a court of law could only be written by the particular judge who conducted the trial proceedings and heard the entire evidence, having the opportunity of observing the demeanour of the witnesses during their testimonies before him.
“Archibong who took over the case after conclusion of the trial ought to have heard the case de novo (afresh). Judgment must be based upon sound and credible evidence heard by the particular judge who writes it otherwise, it will be no more moot trial.
“One wonders how a judge who has not heard evidence during trial could write judgment based on evidence, which he simply read in the file. The learned judge who never was a trial Judge in the case was in serious blunder by merely writing and delivering judgment in respect of a case heard by another Judge. The lower court was in grievous error by adopting such peculiar and lazy procedure of one judge who did not conduct trial simply using evidence in trial conducted by another judge to prepare and deliver judgment,” the judge said.
Meanwhile, Lagos lawyer, Mr. Femi Falana (SAN), has commended the CJN for the decision of the NJC to recommend the sack of the judges. Falana, in a statement, described NJC’s decision as “a determined move to restore confidence in the Judiciary of the country. The NJC has sent a clear message that the days of judicial impunity are over.”
Also, the Coalition Against Corrupt Leaders also commended the NJC for its recommendations. The Executive Chairman of the coalition, Adeniran Debo, in a statement said: “This is a giant stride by the NJC to rid our bench of the bad eggs. It is a welcome development that the NJC is now waking up to its responsibilities. The sack of Justice Naron and his colleague will go a long way to restore the hope of the masses in the judiciary,” he said.