Why Onnoghen Remains CJN Despite Buhari’s Bluff

Just yesterday, news broke that President Muhamadu Buhari had
purportedly suspended the Hon. Justice Walter Onnoghen as Chief
Justice of Nigeria. This is what the President said, ‘Fellow
Nigerians, a short while ago I was served with an order of the Code
of Conduct Tribunal issued on Wednesday 23^rd January,
2019, directing the suspension of the Chief Justice of Nigeria,
Honourable Justice Walter Nkanu Samuel Onnoghen from office pending
final determination…’

However this is patently untrue. There was no order directing
the President to suspend or directing the suspension of the CJN.
This is what the alleged order of the Code of Conduct Tribunal
said, IT IS HEREBY ORDERED 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 of notice dated 10^th January
   2019.
2. That the President of the Federal Republic of Niger shall take
   all necessary measures to swear in the most senior Justice of the
   Supreme Court as Acting Chief Justice of Nigeria and Chairman
   National Judicial Council in order to prevent a vacuum in the
   Judicial Arm of the Government pending the determination of the
   Motion on Notice.

Most lawyers agree that an irregular court order is binding
until set aside. But an irregular executive action is not.

Looking at order one, which concerns stepping aside of the CJN,
the question is where in this order did the Tribunal order the
President to suspend the CJN? Nowhere!

First of all the first order is not directed at the President,
rather it is directed at the CJN. So in a government with at least
three Senior Advocates of Nigeria including the Vice President Mr.
Osinbajo, the Attorney General Mr. Malami and the Minister of
Planning Senator Udo Udoma, there is nobody who can read a legal
document and interpret a simple order and tell the President who is
not a lawyer that the order did not clothe him with power to
suspend any one? Troubling.

Second, there is nothing vaguely resembling suspension in the
order. The language used is ‘step aside.’ It is only the person who
has the legs that can step aside, another man cannot step aside for
him. It is similar to saying a person should vacate a premise or an
office. It is the person and only that person that can obey the
order. What happens if he fails to obey? The court must make a
further order to commit him to prison for failing to obey by
himself, only then can the Executive Branch through the police
become involved. The President jumped the gun and revealed his true
intentions.

So, in spite of President Buhari’s shenanigans, Hon. Justice
Walter Onnoghen remains the Chief Justice of Nigeria.

Thirdly, the law is settled that a person cannot be bound by an
ex parte order obtained behind his back unless and until he has
been served with that order. The clearest statement of the law is
contained in the Supreme Court decision of Ralph Uwazurike vs
Attorney General of the Federation. In that case the Supreme
Court went on to say it is the duty of the person who obtained the
order ex parte to prove that he has served it, otherwise the person
against whom it was obtained is not bound by the order.

It is a little disturbing that an order allegedly obtained on
23^rd of January was not served on the Chief Justice of
Nigeria on the same day to enable him decide to obey it or
otherwise. Instead the order was served on the President on the
25^th of January 2019. This action in itself is in
violation of the Court of Appeal order of the 24^th of
January 2019 which stayed all further proceedings [which includes
actions of the prosecutors] until 30^th of January
2019.

The CJN was deprived of the opportunity of being aware of the
alleged order of the CCT. He is not even bound to obey it himself.
But more profoundly, the President has no power to suspend the CJN
as he purported to do.

In other words, the President has no business in ‘assisting’ the
CJN to step aside. No part of that order was directed at the
President. President Buhari by purportedly suspending the CJN was a
meddlesome interloper. As Lord Denning said long ago, you cannot
put something on nothing and expect it to stand, it will fall. The
President’s action [suspending the CJN] is standing on nothing. It
must fall. Not even an irregular order is holding it up. All it has
going for it is an irregular understanding of a simple straight
forward order. It cannot go on for much longer.

Some legal magicians have been parroting Section 11 of the
Interpretation Act which provides that where an enactment confers
the power to appoint that includes the power to suspend.

If that is the case the President did not need a court order to
do so. His speech did not say he was exercising any statutory power
to suspend, however specious. He said clearly in his address to the
Executive Council that he was served with an order of court and
that he was acting in obedience to that order. But there is no such
order.  Clearly the President has taken laws into his own
hands.

This situation is just like a court ordering a tenant to vacate
a house, and a police officer who is related to the landlord on
being shown the order decides to break the door and throw out the
tenant without a writ of possession issued or even a bailiff of
court directing him to do so. In law that is trespass.

But to an ignorant police man all that is nonsense, because at
the end of the day, a police officer will be required to enforce
the order of court, so why can’t  he just enforce the order
willy-nilly, at this point? Happily, Nigerian police men are a
little better than that, they will ask for the appropriate court
papers before embarking on such an adventure.

Without the necessary court process the police officer has no
right to ‘enforce’ orders of a court. In the same manner, if a
judge in handing down a death sentence to an armed robber says the
armed robber should be hanged by the neck until he dies and the
executioner decides to use a karate kick to break his neck or stabs
him to death, it is murder and not a lawful execution.

While the second order above, mandates the President to swear in
an acting Chief Justice, it is clear that that can only happen
after the first order has been complied with, whether voluntarily
or by further process of law.  This is because order two talks
of ‘preventing a vacuum in the Judicial Arm of Government.’ Until
the CJN ‘steps aside’ validly, there can be no vacuum.

Thus, even a Supreme Court Justice was caught in the web because
of the resort to self help by the President, resulting in the
anomalous situation where there a substantive Chief Justice of
Nigeria and a putative acting Chief Justice of Nigeria.

Again, the President has put something on nothing and it cannot
stand.

If it is allowed to stand it means that 20-something legislators
can meet, dispense with constitutional formalities and declare the
President and Vice President impeached, then the Senate President
can take over the reins of Government in accordance with S. 146(2)
of the 1999 Constitution.

If you think the legislators should follow the formalities
prescribed by the Constitution in removing the President/Vice
President then you must agree that the President must follow the
formalities laid down by law to do whatever he wants to do in
removing the CJN.

Otherwise, all bets are off.

Emmanuel Jakpa, a legal practitioner can be
reached at japsmanuel@gmail.com.