ONNOGHEN: Does The CCT Have Power To Remove The CJN Based On Interlocutory Application Filed By FG ?

On the 19th day of January, 2019, Saturday Punch (Online) had an
interesting headline: “FG asks Court to remove Onnoghen as CJN, NJC
Chairman”.

Part of the news read thus: “The Federal Government prayed the
tribunal for an interlocutory order ‘directing the
defendant/respondent to step aside as the Chief Justice of Nigeria
and Chairman of the National Judicial Council over an allegation of
contravening the provision of the Code of Conduct Bureau and
Tribunal Act, CAP C15 Laws of the Federation of Nigeria 2004
pending the determination of the case’.

‘An interlocutory order of the honourable tribunal directing the
President of the Federal Republic of Nigeria to take all necessary
measures to swear in the most senior Justice of the Supreme Court
as an acting Chief Justice and Chairman of the National Judicial
Council in order to prevent a vacuum in the judicial arm of
government pending the determination of the case’ “.

It is for the reason of the above news that this write-up became
necessary so as to consider whether or not the Code of Conduct
Tribunal (CCT) actually has power(s) or jurisdiction to direct the
stepping aside and or removal of the Chief Justice of Nigeria (CJN)
from office or to grant any of the reliefs sought above based on an
interlocutory application filed before it by another arm of
government! In doing justice to this discourse, we shall consider
the constitutional provisions relating to the appointment and
removal of the CJN on one hand and the powers or jurisdiction of
the Code of Conduct Tribunal with reference to the punishments it
can impose and when it can impose same, on the other hand.

On the appointment of the CJN, section 231 (1) of the
Constitition of the Federal Republic of Nigeria, 1999 (as amended),
provides that it shall be done by the President upon recommendation
by the National Judicial Council (NJC) and subject to confirmation
of such appointment by the Senate.

On the removal of the CJN, section 292 (1) (a) (i) of the 1999
Constitution provides that, “A judicial officer shall not be
removed from his office or appointment before his age of retirement
EXCEPT in the following circumstances – in the case of
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”.

A close consideration of the above constitutional provision
clearly shows that the section has to do with the removal of
judicial officers who act as heads of Courts and whose appointments
are done by the President of Nigeria. The removal of other judicial
officers who are not heads of courts is covered under section 292
(1) (b) of the Constitution. In the latter provision, such removal
shall be done by the “President or, as the case may be, by 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”. I repeat, this latter
provision does not apply to heads of Courts whose removal must be
supported by two thirds majority of the Senate or House of Assembly
as the case may be.

Thus, whereas the removal of the Chief Justice of Nigeria and
other heads of federal courts requires the the support of two
thirds majority of the Senate, the removal of other judicial
officers other than heads of federal courts does not need the
approval of the Senate. In other words, the Constitition of the
Federal Republic of Nigeria requires the approval of the Senate in
the removal of the CJN just as it does in his appointment. This
constitutional approval by the Senate cannot be shortchanged by the
executive arm of government through the back door by way of an
interlocutory application before the Code of Conduct Tribunal or
any court at all. It therefore, goes without saying that being the
Head of the Supreme Court of Nigeria, Onnoghen, can only be removed
from office as CJN before his age of retirement “by the President
(Muhammed Buhari) acting on an address supported by two thirds
majority of the Senate”. Hence, apart from this trite procedure as
stipulated in our Constitution, no other form or means of removal
of the CJN or any other judicial officer mentioned in the said
section, is contemplated and or recognized in the Constitution of
the Federal Republic of Nigeria. Specifically, I make bold to say
that, the Constitution of the Federal Republic of Nigeria does not
contemplate or envisage the removal of the Chief Justice of Nigeria
or any judicial officer at all through an interlocutory application
in respect of an allegation of breach of Code of Conduct before the
Code of Conduct Tribunal for which the person alleged against is
still presumed innocent until proven guilty. See section 36(5) of
the 1999 Constitution (as amended). This is what the Nigerian
Constitution, the grundnorm, provides and it is supreme and binding
on all persons and authorities by virtue of section 1(1) of the
Constitution (as amended).

As a matter of fact, to have filed a motion before the CCT
praying for the removal of the CJN pending the determination of the
allegations against him as done by FGN, is tentamount to presuming
the CJN guilty already and calling on him to prove his innocence
before the Tribunal, which is contrary to the letters and spirit of
our Constitution. It must never be!

Under the Nigerian Constitution, the Code of Conduct Tribunal
has no jurisdiction to remove or to direct the removal/stepping
aside of any serving judicial officer and by extension any public
officer at all in Nigeria based on mere interlocutory application
filed before it. In the same vein, it is not within the
jurisdiction of the Code of Conduct Tribunal to direct the
appointment or swearing in of a judicial officer (Ibrahim Muhammad,
JSC) as acting CJN in place of another serving judicial officer
(Onnoghen, CJN) based on an interlocutory application in respect of
an allegation of which he has not been found guilty.

On the power(s) of the Code of Conduct Tribunal, section 18 (1)
of the Fifth Schedule, Part 1 of the Constitution of the Federal
Republic of Nigeria, 1999 (as amended) provides that, “Where the
Code of Conduct Tribunal finds a public officer guilty of
contravention of any of the provisions of this Code it shall impose
upon that officer any of the punishments specified under
sub-paragraph (2) of this paragraph and such other punishment as
may be prescribed by the National Assembly”. The guiding words in
this section are where the Tribunal “finds a public officer guilty
of contravention…” In other words, by the above constitutional
provision, the Code of Conduct Tribunal can only impose punishment
on a public officer (CJN inclusive) after (and not before) such
public officer has been found guilty of contravention of the Code
of Conducts for public officers. (See also section 23 (1) of the
Code of Conduct Bureau and Tribunal Act, Cap. C15, LFN, 2004).

Now, what are the punishments that the Code of Conduct Tribunal
can impose upon finding a public officer guilty of contravention of
the Code of Conduct? Section 23 (2) of the Code of Conduct Bureau
and Tribunal Act, which is also in the same spirit (but with little
variations) with section 18 (2) (a), (b) and (c) of the Fifth
Schedule, Part 1 of our Constitution provides thus:

‘The punishment which the Tribunal may impose shall include any
of the following-

(a) vacation of office or any elective or nominated office, as
the case may be;

(b) disqualification from holding any public office (whether
elective or not) for a period not exceeding ten years; and

(c) seizure and forfeiture to the State of any property acquired
in abuse or corruption of office.”

A cursory look at the above provisions shows that the FGN’s
application for the removal or stepping aside of the CJN before the
Code of Conduct Tribunal pending the determination of the
allegations against him, does not have any constitutional backup.
It is very strange to our legal system as it appears. It is, to say
the least, a birth of desperation in yet another suicidal assault
on the last hope of the common man (the judiciary). The Tribunal
has no power or jurisdiction to impose ‘punishment in the interim’
pending the conclusion of a trial before it. To allow this
unconstitutional style of “fighting” corruption is to set a very
bad precedent in the running of our legal system.

What is more, the Court of Appeal in NGANJIWA V. FRN (2017)
LPELR-43391 (CA), held that no serving judicial officer in Nigeria
can be tried for any alleged misconducts without first being
subjected to the investigatory and disciplinary jurisdiction of the
National Judicial Council (NJC). This is the law as it is for now
which is binding on all courts in Nigeria, including the Code of
Conduct Tribunal until same is upturned by the Supreme Court of
Nigeria. The questions therefore are; Has the Federal Government
petitioned Onnoghen, CJN for misconducts to the NJC? No! Is the
Federal Government’s determination to remove the CJN supported by
two thirds majority of the Senate? No! Can Justice Umar Danladi-led
Code of Conduct Tribunal order the removal or the stepping aside of
the CJN in fragrant disobedience to the Court of Appeal decision in
Nganjiwa v. FRN (supra) as well as the ruling of an Abuja Federal
High Court which ordered it to hold on until the determination of
the substantive application before it? To do so would amount to
judicial impenitence or rascality!

Thus, it is clear that the whole drama about Onnoghen’s case is
nothing but a persecution of a perceived obstacle in the
manipulation of the judiciary in respect of post-2019 election
petition cases which are bound to occur. This must not be allowed.
The executive arm of government in Nigeria under the regime of
President, nay, General Muhammed Buhari, must not be allowed to
continue to harrass, intimadate and desecrate other arms of
government with such impunity and shamelessness. The other time
time, it was a failed “police coup” to overthrow the leadership of
the National Assembly, and today, it is a desperate plot to remove
the CJN through an interlocutory application before the Code of
Conduct Tribunal. This prostitutional crackdowns on on our
cherished democratic institutions must stop, and stopping same must
be now.

(Solomon Akobe is a Constitutional Lawyer, formerly with
N.O.O. Oke (SAN) & Co., Ibadan, Southwest, Nigeria).