Intellectual property

THE REMOVAL OF CHIEF JUSTICE ONNOGHEN: AN ABERATION OF DUE PROCESS?

INTRODUCTION

“Internships are never a waste of time. 

Today, day 4 of Week 12 of my law school program, we had a lecture on the Appointment and Discipline of Judicial Officers. In the course of explaining the discipline of Judicial Officers, the lecturer referred severally to the 2019 incidence of the Removal of the Chief Justice of Nigeria, Justice Walter Onnoghen. I immediately remembered an article I had written on the trend in the course of my internship at Funmi Roberts & Co. As I re-read this article, it all made more sense so I am sharing it here for you. I particularly like that this piece has a dramatic plot.

It is now impossible to miss the fast-spreading news that the doors to the theatre of the absurd, a branch of which is now situated in the Federal Capital Territory, Abuja, are now wide open, welcoming viewers from within and without the country. The drama being played out is one that is both hilarious and reflective. The show commenced on January 25th,2019, title is “The fierce chase of the Effigy of Justice by the two horses on the Coat of Arms”. In the light of the prominence of this discussion, it is expedient that its plot and themes are well deciphered by legal minds, which is what this article is set to do.

As a central theme, the whole plot lends credence to two moral principles, one is scribbled in the holy book thus, “A false witness shall not be unpunished, and he that speaketh lies shall not escape”, and the other is that “Corruption must be tackled, but not by corrupt means“.

Examining the plot from the climax, this incident features the body which has jurisdiction over the discipline of a Judicial Officer alleged to have committed an offense in breach of the code of conduct. The play begins with combat between the National Judicial Council (NJC) and the Code of Conduct Tribunal (CCT). The NJC, by virtue of the provision of Paragraph 21, Part 1 of the Third Schedule to the 1999 constitution of the FRN, as amended, is vested with definite powers, including the “power to recommend persons for appointment to the offices of the Justices of the Supreme Court, the President and Justices of the Court of Appeal, the Chief Judge and Judges of the Federal High Court, recommend to the President the removal from office of the Judicial Officers specified in sub-paragraph (a) of this paragraph, and to exercise disciplinary control over such Officers; advise the President and Governors in any matter pertaining to the judiciary as may be referred to the Council by the President or the Governors; appoint, dismiss and exercise disciplinary control over Members and staff of the Council.

On the other hand, the Code of conduct tribunal, by virtue of the provision of the Code of Conduct Bureau and Tribunal Act, is vested with powers relating to “

(a) receiving assets of declarations by Public officers  in  accordance with  the  provisions  of  this Act;

(b) examining the assets declarations and ensure that they comply with the requirements of  this  Act  and  of  any  law  for  the  time  being  in force; 

(c)  taking  and retaining custody of such assets declarations;  and 

(d)  receiving  complaints  about non-compliance with  or  breach  of  this Act  and  where  the  Bureau  considers it necessary to do so, refer such complaints to  the  Code  of  Conduct  Tribunal”.  Section 15(2) & (3) of the Act provides that “(2) Any statement in any  declaration  that  is found to  be  false  by  any authority  or  person  authorized  in  that  behalf  to  verify it shall be  deemed  to  be  a  breach  of  this  act. (3)  Any property or assets acquired by  a  public  officer  after  any declaration  required  by  subsection  (1)  of  this section and  which  is  not fairly  attributable  to  income,  gifts  or  loan  approved  by this Act shall be deemed to  have  been  acquired  in  breach  of  this  Act  unless  the contrary is proved.

In the subsequent scenes, the CCT Chairman had on January 23rd issued the exparte order directing the President Buhari to suspend the CJN which was subsequently followed by the appointment of Justice Mohamad Tanko as Acting CJN.

The Chief Justice of Nigeria, the head and symbol of the Nigerian Judiciary, thus, a primary public officer, Chief Walter Onnoghen, has been charged with the offense of Falsely declaring his assets. The question that pops up in the mind of the scholarly audience is “which of these two bodies is competent enough to try the all-mighty Chief Justice of Nigeria?”; Whether the CCT had the jurisdiction to give the order suspending the CJN without the authorization of the NJC? Whether the President of the FRN is competent to remove the CJN upon such CCT order?

As the scholarly audience roar in argument, some voices are louder and can be detected above the hullabaloo. Such voices include that of Professor Sagay, who stated, giving clearly defined premises, that the suspension of the CJN is constitutional because the President is empowered to remove the CJN for breach of the Code of Conduct Bureau and Tribunal Act.

As the learned silk rounded up his averment, another voice could be heard in the background, stating with due respect, that the learned professor is turning the law on its head – that Professor Sagay’s line of argument is inconsistent with Section 36(5) of the 1999 CFRN, Justice Onnoghen being yet to be convicted by any court or tribunal. The uproar continues.

Delving into an attempted analysis of the issues raised, with respect to which of the bodies is competent, the holding of the court in NGANJIWA V FRN (2017) LPELR- 43391(CA) comes to mind. In this case, the court held that no judicial officer can be tried before any Court or Tribunal until the NJC has deposed of the case. Having carefully perused the facts, the Court of Appeal was directing its judgment to a judicial officer committing an offense in the process of carrying out his duties as a judge, such as receiving bribe from a party in the bid to favorably tilt the scale of justice. It is rationally deducible that there is limited scope to the ratio of the court in this case.

More so, it is pertinent to note that this decision of the Court is an explicit contravention of the provision of the Code of Conduct Bureau and Tribunal Act, the provision of which is enshrined in the grundnorm of the Nigerian Law, giving the Code of Conduct Tribunal jurisdiction over all public officers including the Chief Justice of Nigeria (5th Schedule Part 1 of the 1999 constitution). The Constitution, being the grundnorm supersedes all laws operational in Nigeria, Section 1 of the 1999 Constitution.

As to whether the CCT had jurisdiction to give the order, the aforestated provision of the Code of Conduct Bureau and Tribunal Act, Section 15 comes to mind. This provision leaves us with no doubt as to the competence of the tribunal to try any public officer accused of a breach of the provision of the Act. The order of the CCT was for Justice Onnoghen to instantly step aside from his office as Chief Justice on the ground of allegations. It is pertinent at this point to refresh our minds on the penalties previously awarded to public officers who have been accused of the same offense the suspended CJN is charged with.

The first case that comes to mind is that of Mr. Orubebe, the former Mini of Niger Delta Affairs, who faced the charges of false declaration and had his assets seized with no other penalty. The CCT Chairman, Danladi Umar, is himself a subject of a pending criminal charge filed by Mr. Festus Keyamo at the Federal High Court on behalf of the EFCC. The CCT Chairman despite the pendency of the criminal charges against him has not stepped aside and has not been suspended.

Mr. Okoi Obono-obla, the President’s aide on Public Prosecutions, has not been fired, arrested, or prosecuted despite his indictment by the House of Representatives for certificate forgery as attested publicly by the West African Examination Council. Mr. Maina is yet to be prosecuted for allegedly stealing pension funds.

The play continues…

The CCT, without determining whether it has jurisdiction over Justice Onnoghen as required by law, proceeded to give a flagrantly illegal order purporting to suspend the CJN from office.

Another voice is heard above the chorus, making a claim as to the effect of the order given by the CCT. Dissecting this legal issue, it is important that we avert our minds to a very trite principle of law, poignantly stated by the learned retired Justice of the  Supreme Court, Justice Kariby- White, On the question of whether the Code of Conduct Tribunal can continue proceedings with respect to a matter while its jurisdiction is being challenged in the Court of Appeal he said: “My prompt reaction and answer is NO. It cannot.  “Where  a  Court  does  not  have  jurisdiction,  there  is  nothing  before  it  to adjudicate”. The law is firmly settled that once the jurisdiction of a court or judicial tribunal is challenged, the only jurisdiction the court has is to determine whether it has jurisdiction. The CCT having been seized of the frontal challenge to its jurisdiction, could not have granted an ex-parte order on the 23rd of January, 2019 without determining whether it has jurisdiction. In the recent case of ATTORNEY-GENERAL OF THE FEDERATION v. ATTORNEY-GENERAL OF LAGOS STATE (2017) LPELR-42769(SC), the Supreme Court reaffirmed this sacrosanct principle thus: “There is no gainsaying that

issue of jurisdiction is radical and a crucial point that when raised, is challenging the competence of the Court to hear and determine the case. Any proceedings conducted by a Court which does not have jurisdiction, no matter how well or brilliantly it was conducted is a nullity. See also Dapianlong vs Dariye (2007) 8 NWLR (pt. 1036) 332. That is the more reason why when a Court jurisdiction is challenged, the Court must first of all assume jurisdiction to decide whether in very clear and unambiguous terms, it has or lacks jurisdiction. See State Dosunmu Mansion vs Halliburton Energy Services Ltd (2007) 2 NWLR [pt.108) 211; Nnonye v Anyichie (2005) 2 NWLR (pt. 910) 623. Per SANUSI, J.S.C. (p. 43-45, pp. D – A).’’

From the circumstances of this case, there can be a legitimate deduction of bias on the part of the CCT chairman, this bias can be explained as an offshoot of “overzealousness”. This consideration is given to a recent instance of the manifestation of this nature during the trial of Bukola Saraki, the Senate President. In  that instance, some leading legal luminaries including former Justices of the Supreme Court had advised the Chairman of the CCT, Mr. Danladi Umar, to withdraw from presiding over the ongoing trial of Senate President Bukola Saraki over the same offense the suspended CJN is charged with, false asset declaration, to ensure fairness in the matter. The legal exponents stated thus: “It is not reasonable to be supposed or be expected that Mr. Danladi Umar can be impartial or unbiased in adjudicating the case between the Federal Republic of Nigeria (FRN) against Saraki”.There can be no greater mockery of the whole notion of impartiality in any adjudicatory system than that Umar with the threat of prosecution and removal from office by the FRN hanging over his head, should have been allowed to adjudicate as presiding judge in the circumstances of this case…The manner in which the trial was being conducted by Umar manifests a certain overzealousness that suggests at least a real likelihood of bias on the part of Umar against Saraki or a lack of impartiality “. In the light of the foregoing, the conduct of the CCT Chairman in the case at hand can be understood from the perspective of precedence.

The heat of the argument intensifies…

Those arguing that the President merely suspended the CJN and has not removed him are either oblivious of the law or willfully mischievous. The CJN does not hold office at the pleasure of the President. President Buhari cannot suspend the CJN in contravention with due process. The CCT cannot give an order directing the President to remove or suspend the CJN, having not dealt with the issue of its jurisdiction. The CCT cannot ask the CJN to ‘’step aside’’. This conspiratorial attack on the institution of the Judiciary is a dangerous precedent that will lead to a precipice of calamity for our Judiciary.

Someone with a deep baritone, from the audience, mounted the stage, disrupting the play, waving a red flag, shouting at the top of his voice, “An Aberration it is!!!”

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About Otitonijesu David

Otitonijesu David is a budding Intellectual Property lawyer and a prolific writer. She can be found on LinkedIn with the official name above or contacted via davidotitonijesu@gmail.com.