THE LEGALITY OR OTHERWISE OF THE PROCEDURE IN THE REMOVAL OF THE CJN HON. JUSTICE WALTER ONNOGHEN

INTRODUCTION

On 25 January 2019, President Muhammadu Buhari suspended the Chief Justice of Nigeria, Walter Onnoghen from office. And immediately swore in the most senior Supreme Court Justice, Justice Ibrahim Muhammed, as the Acting Chief Justice of Nigeria.

According to the President, he took the action following an order from the Code of Conduct Tribunal (CCT) directing him to suspend the embattled CJN, who was on trial at the CCT for failure to declare some of his assets in foreign currency.

The suspension of the CJN has continued to generate a lot of debate. Arguably, no other issue in recent times has elicited so much division in public opinion. But the big question is, does the president have the power to suspend or remove the CJN, Walter Onnoghen? The law on this issue is straightforward.

CONSTITUTIONAL PROVISIONS ON THE REMOVAL AND DISCIPLINARY CONTROL, OVER JUDICIAL OFFICERS IN NIGERIA.

A Judicial Officer is a public officer chosen or elected to preside over and to administer the law in a court of justice. He is the one who controls the proceedings in a courtroom and decides questions of law or discretion.[1] A judge is a court officer authorized to decide legal cases.

Judicial Officer is not specifically defined in the CFRN 1999. However, it provides that reference to a “judicial officer” is a reference to the holder of a judicial office. As mentioned in the CFRN 1999.

Judicial office means: The office of the Chief Justice of Nigeria, or Justice of the Supreme Court, the Office of the President or Justice of the Court of Appeal, the office of the Chief Judge or a Judge of the Federal High Court, the Office of the President or Judge of the National Industrial Court, the office of the Chief Judge or a Judge of the state high court. Etc.

The removal of a judicial officer has been provided for in the constitution of the Federal Republic of Nigeria, 1999 (as amended) and it is on the basis of the supremacy of its provision that this paper looks at the constitutionality or otherwise of the purported removal of the CJN, Hon. Justice Walter Onnoghen.

It is instructive to note that the removal or disciplinary measures of a Judicial officer are purely a constitutional matter, and must follow the relevant steps or procedures provided for under the constitution.[2] One must therefore take note not to cite any other law whatsoever when talking about the constitution in this respect.

Section 153 of the constitution established the federal executive bodies, of which the National Judicial Council (NJC) is one of them. These bodies are listed in the Third Schedule to the constitution.

Paragraph 21 (b) of the Third Schedule states clearly that the NJC “shall have power to 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.”

This is, of course, in line with Section 292 of the 1999 Constitution, which states that a judicial officer cannot be removed without approval of two-thirds of the senate on recommendation of the National Judicial Council.

To wit, that section reads: “(1) A judicial officer shall not be removed from his office or appointment before his age of retirement except in the following circumstances–(a) in the case of–(i) Chief Justice of Nigeria, President of the Court of Appeal, Chief Judge of the Federal High Court, Chief Judge of the High Court of the Federal Capital Territory, Abuja, Grand Kadi of the Sharia Court of Appeal of the Federal Capital Territory, Abuja and President, Customary Court of Appeal of the Federal Capital Territory, Abuja, by the President acting on an address supported by two-thirds majority of the Senate.

“Praying that he be so removed for his inability to discharge the functions of his office or appointment (whether arising from infirmity of mind or of body) or for misconduct or contravention of the Code of Conduct;

(b) in any case, other than those to which paragraph (a) of this subsection applies, by the President or, as the case may be, the Governor acting on the recommendation of the National Judicial Council that the judicial officer be so removed for his inability to discharge the functions of his office or appointment (whether arising from infirmity of mind or of body) or for misconduct or contravention of the Code of Conduct.”

A cursory reading of the section quoted above shows that the constitution does not make provision for the suspension or removal of the CJN by the president acting alone. The President can only take such an action on the recommendation of the National Judicial Council and an address supported by two-thirds majority of the Senate over the person’s misconduct.

In Elelu-Fabeeb v A.G Fed.[3] the court made the pronouncement that a Judicial Officer in Nigeria can neither be removed nor subjected to any disciplinary control without the input of the National Judicial Council.

Suffice to state that the CJN holds office at the pleasure of the Nigerian constitution and can only be removed from office by death or on attainment of age 70, whichever, or the relevant steps provided for under the constitution.

An officer whose office is provided for under the constitution cannot be removed from office except inline with the relevant procedures provided for under the constitution. See the case of Abubakar v AG Federation.[4]

Where the constitution provides for the compliance of an act, it must be strictly followed. In the case of A.G Bendel State v Aideyan[5] the court held that a statute which seeks to provide the procedures for the doing of an act, is construed strictly.

More so, while the constitution provides what is required for the CJN to be removed, it was mute on his suspension from office.

However, it is important that we understand whose power is exercised first. From the understanding of the above provisions, the legislative arm of government is expected to first make an address supported by a two-third majority before the president can act.

The address for removal of a Federal Judicial Officer is not given as a matter of course, but is or should be predicated on any of the following grounds; inability to discharge the functions of his office or appointment, whether arising from infirmity of mind or of body, or for misconduct or contravention of the Code of Conduct which the CJN has been accused of.

This goes to show that since the legislature cannot raise the address in a void, there must be a petition alleging the breaches upon which the address of the legislature would be based.

In view of the priceless value attached to the judicial office, removal of a judicial officer is not peremptorily done, the two-third majority required to support an address for removal of a judicial officer must be strictly observed.

Where any of the legislative seat is vacant as such that a two-third majority cannot be reached, the law is that the vacant seat must first be filled through a by-election so that the required number necessary for the removal of a judicial officer under the provisions of the law can be attained. (An incident of separation of constitutional power)

THE POWERS OF THE CCT

The recent judgment of the Supreme Court conferring quasi-criminal jurisdiction on the Code of Conduct Tribunal (CCT), to try criminal offences before it, raises several issues in Nigeria’s constitutional democracy.[6] The issues are the constitutionality of a court or tribunal not covered under Sections 6 and 36 of the 1999 Constitution, as amended, can be validly said to exercise judicial powers to try criminal offences, if they are not derived from the Grundnorm.

A professor of Constitutional Law, a Senior Advocate of Nigeria (SAN) and a former Minister of Education, Ben Nwabueze, an Octogenarian, opined that the Supreme Court judgment granting the CCT quasi-criminal powers to try offenders will not stand the test of time as the judgment in question is at all times, at variance with the Constitution, adding that any attempt to enforce the judgment will spell doom for the county’s democracy.[7]

According to the learned Professor, our constitutional system is based on legislative power, which is vested in the National Assembly under Section 4 of the 1999 Constitution, as amended, the executive power, vested in the President, under Section 5 of the Constitution and the judicial power, vested in the courts, under Section 6 of the same Constitution. These are the pillars of our constitutional system. Anything that will undermine this pillar (judicial power) will put us into trouble.[8]

The Supreme Court in its decision tried to suggest that CCT has quasi criminal jurisdiction by saying that there are various terms and expressions in the Constitution that suggest that the CCT has a quasi-criminal jurisdiction.

Quasi-criminal jurisdiction or criminal jurisdiction means that the CCT can try people for criminal offences and punish them. Whereas Section 36 (12) says clearly that you cannot try, convict and punish a person for a criminal offence unless that offence is defined in written law and the punishment, therefore, is also prescribed by the written law. It goes on to say that the written law under this provision means an Act of the National Assembly, a Law of the State House of Assembly, Subsidiary Legislation or Instrument.

It does not mention the Constitution. So, you cannot try anybody or punish anybody under the Constitution for a criminal offence unless there is a law defining the offence. Therefore, there is no way the CCT can derive its quasi-criminal jurisdiction from the Constitution. Where the CCT tries to derive it’s quasi-criminal jurisdiction from the Constitution. It will be contrary or at variance with this provision of the Constitution and therefore null and void.

Again, you cannot derive the quasi-criminal jurisdiction from the Constitution, because of Section 36 (12) of the 1999 Constitution as amended. You can also not derive it because of Section 6 of the Constitution, which is a more complex issue. Section 36 (12) can be seen and understood that the argument based on Section 6 is a little too intricate for non-lawyers to understand, even for lawyers, not all lawyers will appreciate it. It is Section 6 that vests judicial powers in the courts, just like the legislative power is vested in the National Assembly under Section 4 and the executive power is vested in the President under Section 5.

The issue of CCT’s status and its quasi-criminal jurisdiction remains a constitutional issue and must be resolved in line with proper laws. According to the President, he took the action following an order from the Code of Conduct Tribunal (CCT) directing him to suspend the embattled CJN, who was on trial at the CCT for failure to declare some of his assets in foreign currency while the CCT is not vested with any power under the Constitution or the Code of Conduct Tribunal Act to order the Executive Branch of Government to suspend a public officer who is undergoing trial before it from office.

Is the CCT one of the courts in whom judicial powers are vested? Section 6 (5) lists the courts that judicial powers are vested with. The CCT is not one of them. Even in the Residual Clause, CCT is not also covered in the Clause. No one can contest that CCT is not one of the courts in which judicial powers are vested. What are the implications of vesting judicial powers in the courts?

This has been established by an authority long time ago from the High Court of Australia, which is the highest court in that country, which is equivalent to our Supreme Court where it said that ‘an exclusive incident of judicial power is the power to try, convict and punish people for criminal offences. That criminal jurisdiction appertains exclusively to judicial power.’ These were the words used by the high court by Sir Samuel Walker Griffiths Chief Justice and Premier of Australia, who delivered the judgment for the court.

Any court or tribunal in which judicial power is not vested cannot try, convict or punish people for criminal offence.

This decision of the High Court of Australia has been followed by our own courts, by our Supreme Court in Sofekun v. Akinyemi[9], a judgment of Justice Fatai Williams, CJN, as he then was, in a unanimous judgment that included the best of the judges we had had at the Supreme Court. They ruled that once you have accused a person of a criminal offence, he must be tried before a court of law in which judicial power is vested. This is so laid down as part of our constitutional system.

The point been made is that the so-called quasi-criminal jurisdiction that the apex court claimed for CCT, cannot be derived from the Constitution because of Section 36 (12) to Section 6. But the Supreme Court tried to derive it not only from the Constitution but also from the law of the National Assembly.[10]

CONCLUSION

It’s safe to conclude that the case against the CJN, albeit valid, must fail because of wrong procedure, the suspension and the removal from office, is patently illegal and unconstitutional. It is disingenuous for anyone to argue to the contrary. And it is puerile to argue that the mode of suspending or removing the CJN from office, as clearly defined by the Constitution, can be circumvented by reliance on any statute whatsoever, Inferior, as compared to the Constitution, the Supreme Law of the Land.

Again, I don’t believe it to be constitutional because the provisions are clear with regard to the removal or disciplinary measures that can be taken against a sitting CJN.

The removal of the CJN cannot be constitutional without an address supported by two-third majority of the senate, in other words, the executive and the legislative arm of government must work together in the removal of a judicial officer for the removal to be valid and constitutional. The exercise of the combined powers here acts as a check on the powers of the executive arm of government.

The conclusion of this paper is that while the law on the removal and exercise of disciplinary control over the CJN is well spelt out in the CFRN 1999, it is mute on his suspension from office. Hence, one can say that the suspension of the Chief Justice of Nigeria is legally defensible. However, the wrong procedure used by the President makes this action questionable and unconstitutional.


[1] http://dictionary.thefreedictionary.com/Judicialofficer. Accessed 22nd February, 2019.

[2] Section292(1)(b) CFRN 1999

[3] (2012)13 NWLR (Pt 13) 423

[4]  (2007) 10 NWLR (Pt. 1041) 13

[5] (1989) 4 NWLR ( Pt 118) 646 S.C

[6] Saraki v FRN (2016)3 NWLR(Pt. 1500) 531 at 578

[7] ‘Court not vested with judicial powers cannot try, punish criminal offenders.’ Available at https://guardian.ng/features/court-not-vested-with-judicial-powers-cannot-try-punish-criminal-offenders/ Accessed 22nd February, 2019.

[8] Ibid

[9] (1981) 1 NCLR 135

[10] That law is the Code of Conduct Bureau (CCB) and CCT Act made by the National Assembly.

About the author:

Tochukwu Alagor is a law graduate of Abia State University. He is a seasoned legal Author and Researcher.

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