The President Did Not Suspend The Chief Justice Of Nigeria But The Code Of Conducts Tribunal Did Even Though The President Has The Valid, Legal, Constitutional And Democratic Power To Do So By: Hameed Ajibola Jimoh Esq.

On the 23^rd day of January,
2019, there was a report that the Code of Conducts
Tribunal-herein after referred to as the CCT- granted an Order
based on an ex-parte motion filed before it by the Code of Conduct
Bureau to the effect that the Chief Justice of Nigeria-herein after
referred to as the CJN- shall step aside as the Chief Justice of
Nigeria and Chairman of the National Judicial Council-herein after
referred to as NJC- over allegation of contravening the provisions
of the Code of Conduct and Tribunal Act, Cap C15, Laws of the
Federation, 2004, pending the determination of the Motion on Notice
dated 10^th day of January, 2019 and that the President
of the Federal Republic of Nigeria shall take measures to
swear-in-the most senior Justice of the Supreme Court of Nigeria as
Acting CJN and Chairman of National Judicial Council in order to
prevent vacuum in the Judicial Arm of Government pending the
determination of the Motion on Notice.

Also, at paragraph 16 of the speech delivered by the
President of the Federation, while swearing-in the
Acting Chief Justice of Nigeria, the President was reported to have
said that ‘16.    It is against this
background that I have received the Order of the Code of Conduct
Tribunal directing me to suspend the Chief Justice pending final
determination of the cases against him. It also explains why I am
not only complying immediately, but with some degree of relief for
the battered sensibilities of ordinary Nigerians whose patience
must have become severely over-taxed by these
anomalies.’. The question that this paper is asking
is who actually suspended the CJN? The President or the CCT? Even
assuming that it was the President that suspended the Honourable,
the CJN, will such suspension be valid, legal, constitutional and
democratic? All these questions are what this paper attempts to
answer.

First and foremost, on the question as to who actually suspended
the Honourable, the CJN? The President or the CCT? It is my humble
view and submission that it was the CCT that actually suspended the
CJN and not the President of the Federal Republic of Nigeria and
this can be ascertained from the Order of the CCT granted on the
23^rd day of January, 2019, which provides as
follows:

‘1. That the Defendant/Respondent shall step aside
as the Chief Justice of Nigeria and Chairman National Judicial
Council over allegation of contravening the provisions of the Code
of Conduct and Tribunal Act, Cap C15, Laws of the Federation, 2004,
pending the determination of the Motion on Notice dated
10^th day of January, 2019.

1. That the President of the Federal Republic of
   Nigeria shall take all necessary measures to swear-in-the most
   senior Justice of the Supreme Court of Nigeria as Acting Chief
   Justice of Nigeria and Chairman of National Justice Council in
   order to prevent vacuum in the Judicial Arm of Government pending
   the determination of the Motion on Notice.
2. This matter is hereby adjourned to the
   28^th day of January, 2019, for hearing.’. (Underlined
   words are mine for emphasis). Therefore, from the
   said Order of the Code of Conducts Tribunal, it is my humble
   submission that the CJN was only suspended by the CCT and not the
   President. Therefore, the paragraph 16 of the President’s speech
   which says that ‘16. It is against this background that
   I have received the Order of the Code of Conduct Tribunal directing
   me to suspend the Chief Justice pending final determination of the
   cases against him. It also explains why I am not only complying
   immediately, but with some degree of relief for the battered
   sensibilities of ordinary Nigerians whose patience must have become
   severely over-taxed by these anomalies.’. ‘ is with
   due respect, misconceived as there is nothing on the Order of the
   CCT that directed the President to suspend the CJN, rather, the CCT
   had by itself Ordered his Lordship’s suspension which takes effect
   with immediate effect and disobedience of which shall be deemed as
   a contempt of the CCT.

On the second question asking that even assuming that it was the
President that suspended the Honourable, the CJN, will such
suspension be valid, legal, constitutional and democratic? It is my
humble submission that the suspension would have been valid, legal,
constitutional and democratic. In support of my submission is the
provision of section 318(4) of the Constitution of the
Federal Republic of Nigeria, 1999 (as amended)- herein after
referred to as the Constitution- which provides thus
‘section 318 (4) thus ‘The Interpretation Act shall
apply for the purposes of interpreting the provisions of this
Constitution’. From this provision of the
Constitution, the writer of this paper submits that the provisions
of the Interpretation Act have the force of the Constitution as
though they are part of the Constitution. Also, the word
‘shall’ used by the constitution in this
section 318(4) (supra) gives support to
this submission. The word ‘shall’ has
been defined by courts of law as meaning
‘obligation’. The writer of this paper
humbly refers to the case of Tanko v Caleb (1999) 8
NWLR (pt. 616) 606 C.A. at page 611
(paragraph E) thus ‘Generally, the word
‘shall’ is a word of command and denotes obligation and gives no
room for discretion. It imposes a duty: See: Katto v CBN (1991) 9
NWLR (pt. 214) 126.’. And I had in one of my articles, advised
consultation with the Interpretation Act to interpret the
provisions of the Constitution on any issue and it is
my submission that considering the provisions of the Constitution
in section 318(4) of the Constitution,
the Interpretation Act has got another status which I could term
‘the Constitution’s twin brother’. In
other words, the Interpretation Act, having the force of the
Constitution by section 318(4) of the
Constitution, is more than an Act. Therefore,
lawyers, judges, law students and law readers should always
endeavour to place side by side the Constitution, the
Interpretation Act, whenever they seek to interpret the
constitution. Also, it is important to know that by the provisions
of section 11 of the Interpretation Act,
2004, the President who appointed the Honourable, the
CJN has been empowered and conferred the power to suspend the CJN
and such suspension is also constitutional under
section 318(4) of the Constitution. The
said section 11 of the Interpretation Act provides thus
‘(1)     Where an enactment confers
a power to appoint a person either to an office or to exercise any
functions, whether for a specified period or not, the power
includes-

(a)     power to appoint a
person by name or to appoint the holder from time to time of a
particular office;

(b)     power to remove or
suspend him;

(c)     power, exercisable in
the manner and subject to the limitations and conditions (if any)
applicable to the power to appoint,-

(i)     to re-appoint or
reinstate him,

(ii)     to appoint a person to
act in his place, either generally or in regard to specified
functions, during such time as is considered expedient by the
authority in whom the power of appointment in question is
vested

(2)     A reference in an
enactment to the holder of an office shall be construed as
including a reference to a person for the time being appointed to
act in his place, either as respects the functions of the office
generally or the functions in regard to which he is appointed, as
the case may be. (Underlined words are mine for
emphasis).

Furthermore, the President, with due respect, though
misconstrued the Order of the CCT, by making the speech contained
in paragraph 16 of the said speech that he has been directed by the
CCT, to suspend the CJN, I hold the view that assuming the fact
that the CCT never made the Order, the President by
sections 318(4) of the Constitution and section 11 of
the Interpretation Act, 2004, shall have the power to
suspend all persons that he appoints which in my humble views,
includes the CJN and all public officers in the Federation as
defined by the Constitution but to such extent that the President
appointed the said officer or person. More so, the
Constitution in sections 292 and 157 of the
Constitution only provide for removal of the CJN and
not suspension, whose power is pursuant to sections
318(4) of the Constitution and section 11 of the Interpretation
Act, 2004, conferred on the President, even without
the need for any Order of any Court to utilize his discretion.
Also, there is no law that prevents the President from suspending
the CJN from office.

Also, the President has pursuant to the Order of the CCT,
appointed the Most Senior Justice of the Supreme Court of Nigeria
as the CJN to perform all the functions of the CJN and assuming the
President had suspended the CJN without the CCT’s Order, the
President would have been able to appoint the Most Senior Justice
of the Supreme Court as CJN, by sections 318(4) and 11
(1)(c)(ii) and (2) of the Interpretation Act
(supra).

Finally, I hope this paper has been able to convince the reader
that the Order of the CCT never directed the President to suspend
the CJN rather, the CCT had by its Order, ordered the CJN to step
aside from his double offices, and that the President has the
valid, legal, constitutional and democratic power to suspend the
CJN and to appoint the Most Senior Justice of the Supreme Court as
the Acting CJN.

e-mail: hameed_ajibola@yahoo.com^[1]