Judicial Immunity In Nigeria

For an effective administration of justice and judicial integrity is the need for judicial immunity in Nigeria. Judicial immunity has gained currency in disparate jurisdictions, such as the United States of America and India respectively. However, the protectionist shield enjoyed by judicial officers is not absolute. The application of judicial immunity, the extent of it, and a rational approach to judicial immunity will be envisioned in this work.

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.
        The doctrine of judicial immunity is not only observed in our conventional courts. It is a doctrine that was observed by common law, and the immunity granted at common law to the judge is based on public policy.

            The rationale for judicial immunity is founded in public policy. The reason is not because the Judge has any privilege to make mistake or to do wrong. It is so that he should be able to do his duty with complete independence and free from fear. 

After all, if the impartial judge is weakened with the fear of the common man, how shall he carry out his duty effectively?
 

Limitation Of Judicial Immunity

      Judicial immunity is not absolute, there is a limit to which judicial immunity can be exercised.  A serving judicial officer who is resplendently robed does not enjoy the protectionist shield when it comes to matters in which such judicial officer involved or has committed a crime, where there is an infamous and gross misconduct from the end of such judicial officer. Judicial immunity will not avail such erring judicial officer. Judges enjoy judicial immunity but it does not extend to matters that are rooted in  criminality. However, there are certain procedures that ensues before a judicial officer can be tried for a criminal offence in a court of law. It is a condition precedent which must be satisfied before such judicial officer can be arraigned.
    Any serving judicial officer that is alleged to have committed a crime can not be arraigned before a court of law directly. The prosecuting body must firstly seek a recourse to the national judicial council, the national judicial is saddled with the responsibility of conducting an investigation of the allegations against the judicial officer, upon completion of the investigation, if the national judicial council is satisfied with the allegations made against the judicial officer, the national judicial council or state judicial council will exercise the power vested on it to recommend such judicial officer for removal.
      The prosecuting body can not peradventure interfere, direct or control the investigations of the national judicial council. If the judicial officer is removed by the president or governor upon recommendations of the national or state judicial council, the judicial officer will then face the wrath of the law. If the national judicial council is not satisfied with the outcome of the investigation, such judicial officer will remain immune. In a circumstance like that, 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 other jurisdictions like India, the President consults the Chief Justice of India who will consider all the materials placed before him and render his advice to the President for giving sanctions to launch prosecution.

             
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’s an exercise in futility. Judges uphold the spirit and character of the constitution, it is important they are held in high esteem, it is on this premise I agree with the recourse to an investigation being carried out in a with accordance with the law. In my own opinion the investigation should be conducted with a panel comprising individuals of good character and integrity who are not members of the national judicial council to ensure absolute transparency. The judiciary is the last hope of a common man, 80 percent of the national judicial council consists of judicial officers, both active and retired judicial officers, lets take for instance a serving judicial officer is 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 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 in other not to indulge in matters tainted with criminality and also uphold the integrity of the Nigerian judiciary.

 Conclusion

      Judicial immunity is exercised in Nigeria, but it is not infinite. A judge cannot be guilty for words uttered or malicious actions made by him as a result of the exercise of his judicial duty. This immunity does not extend to crimes committed by him far close to his judicial responsibility. The National Judicial council will not cleanse him from his criminal act. It is my humble opinion therefore that he who commits a crime needs be punished irrespective of his position. 

About Author

Uzayr Abdulwahab is a 300 Level Law Student of Ahmadu Bello University, Zaria. He is an advocate, oralist, researcher and a legal writer.