Introduction:
For the effective administration of justice and maintenance of judicial integrity, there is a need for judicial immunity. Judicial immunity has gained currency in disparate jurisdictions, such as the United States of America and India. However, the immunity enjoyed by judicial officers is not absolute. This work will envision the application of judicial immunity, its extent, and a rational approach to judicial immunity.
Concept and Application of Judicial Immunity:
Judicial immunity implies that a judge of a superior court of record is not liable in tort for any judicial act performed by him within his jurisdiction. No action lies for acts done or words spoken by a judge in the exercise of his judicial office, even if his motive is malicious and the acts or words are not done or spoken in the honest exercise of his office.
In the case of Onagoruwa v. I.G.P. the Court of Appeal held that:
The words which a judge speaks are protected by an absolute privilege. The orders he gives, and the sentences which he imposes cannot be made the subject of civil proceedings against him. No matter that the judge was under some gross error or ignorance, or was actuated by envy, hatred and malice, and all uncharitableness, he is not liable to an action. The remedy of the party aggrieved is to appeal to a court of appeal or to apply for habeas corpus, or a writ of certiorari, or take some such step to reverse his ruling .[1]
The doctrine of judicial immunity is not only observed in our conventional courts; it is a doctrine that was observed under common law. The immunity granted at common law to the judge is based on public policy.[2]
The rationale for judicial immunity is founded in public policy. The reason is not that the judge has any privilege to make mistakes or to do wrong; rather, it is so that he can perform his duty with complete independence and free from fear. [3] After all, if an impartial judge is weakened by the fear of being sued by the common man, how can he carry out his duty effectively?
Limitations of Judicial Immunity:
Judicial immunity is not absolute; there is a limit to which judicial immunity can be exercised. A serving judicial officer, even when resplendently robed, does not enjoy the protectionist shield when it comes to matters in which such judicial officer is involved or has committed a crime, or where there is infamous and gross misconduct on the part of such judicial officer. Judicial immunity will not avail such an erring judicial officer.[4]
Judges enjoy judicial immunity, but it does not extend to matters rooted in criminality. However, certain procedures must be followed before a judicial officer can be tried for a criminal offence in a court of law. It is a condition precedent that must be satisfied before such a judicial officer can be arraigned.[5]
Any serving judicial officer alleged to have committed a crime can not be arraigned before a court of law directly. The prosecuting body must first seek recourse to the National Judicial Council (NJC), which is responsible for investigating the allegations against the judicial officer. Upon completing the investigation, if the NJC is satisfied with the outcome, it may exercise its power to recommend the judicial officer for removal.[6]
The prosecuting body can not, by any chance, interfere with, direct, or control the investigations of the National Judicial Council.[7] If the judicial officer is removed by the president or governor upon the recommendation of the National or State Judicial Council, the judicial officer will then face the wrath of the law.
If the NJC is not satisfied with the outcome of the investigation, such judicial officer will remain immune. In such circumstances, the prosecuting body can only apply to the court for a judicial review. The rationale behind seeking recourse to the National Judicial Council is to protect judges from frivolous prosecution and harassment by any prosecuting body.
In India, for example, the President consults the Chief Justice of India, who considers all the materials placed before him and renders his advice to the President for granting sanctions to launch prosecution.[8]
Recommendation:
The condition precedent before arraigning an erring judicial officer, in the opinion of this writer, questions the transparency in it. It is settled that where a court assumes jurisdiction and convicts an erring judicial officer without first seeking recourse to the National Judicial Council, it amounts to an exercise in futility.
Judges uphold the spirit and character of the constitution; it is important that they are held in high esteem. It is on this premise that I agree with the recourse to an investigation being carried out in accordance with the law. In my own opinion, the investigation should be conducted by a panel comprising individuals of good character and integrity, who are not members of the NJC, in order to ensure absolute transparency.
The judiciary is the last hope of a common man; 80 per cent of the members of the National Judicial Council consist of judicial officers, both active and retired. Let’s take, for instance, a serving judicial officer facing a criminal allegation, and such investigation has to be carried out by his fellow judicial officers. Of course, it would be rigorous and almost impossible to prove such an allegation.
To have a fair outcome of the investigation, it should be carried out by neutral bodies. If such measures are taken, judicial officers would be more circumspective in carrying out their activities so as not to indulge in matters tainted with criminality and also uphold the integrity of the Nigerian judiciary.
Conclusion:
While the Nigerian Constitution grants certain immunities to the executive and legislative arms of government, the judiciary also enjoys a form of protection. However, this immunity is not absolute.
Judicial officers must remain cautious in their personal conduct, as any involvement in criminal activities resulting in gross or infamous misconduct, whether through direct action or complicity, renders them subject to investigation by the National Judicial Council, which may subsequently result in prosecution by a prosecuting body after such allegations are proven by the National Judicial Council.
About the Author:
Abdulwahab Uzayr is a 300-level Law student at the prestigious Faculty of Law, Ahmadu Bello University, Zaria. He’s a legal writer, advocate, oralist, and research-driven enthusiast. He can be reached at: [email protected] 08138798669
References:
[1] Onagoruwa v. I.G.P. (1991) 5 NWLR (Pt. 193) 593 CA [2] Egbe v. Adefarasin (1985) 1 NWLR(Pt.3) 549 [3] Emecheta v. Ogueri (1996) 5 NWLR (Pt. 447) 227 CA [4] F.R.N. v. Nganjiwa (2022) 17 NWLR (Pt. 1860) 407 SC [5] F.R.N. v. Nganjiwa (2022) 17 NWLR (Pt. 1860) 407 SC [6] Section 152&153 CFRN 1999 [7] Section 158 CFRN 1999 [8] State of Uttah Pradesh v. Parash Nath Singh and Anor (2009) 6 – SCC – 372 and Subramanium Swamy v. Malmohan Singh and Anor. (2012) 3 – SCC – 64.