Can the SC/NJC Separate Buhari from Justices Onnoghen/Muhammad?

The controversy over the suspension of the Chief Justice of
Nigeria, Hon. Justice Onnoghen by President Buhari assumed another
dimension last week, with two separate, but interrelated
developments: a suit reportedly filed by the Senate at the Supreme
Court to challenge it, and the 7-day ultimatum issued by the NJC to
both the CJN and his stand-in, Justice Muhammad, to respond to
petitions of misconduct levelled against them. The former
development supposedly compelled the Upper House of the National
Assembly to defer consideration of the matter in a plenary session,
as it ordinarily would have done. Unfortunately (or, fortunately,
depending on which side of the debate you are on), the Senate
Leader (the leader of the majority party in the Senate, the All
Progressive Congress), Distinguished Senator Ahmed Lawan, promptly
issued a press statement in which he distanced the APC caucus from
the move.

According to him, the matter was never discussed by the Senate
as a body and, accordingly, no resolution was passed by the Senate
to authorise it. So, who gave the instruction to do so? That is the
question. Clearly, the disclaimer by the APC Senate caucus has
thrown a spanner in the works and directly questioned the validity
of the suit. At the risk (once again) of breaching the sub
judice rule, one cannot but wonder about its credibility.
Assuming it was duly authorized by a valid resolution of the
Senate, what happens to the plethora at least 5 (at the last count)
similar suits currently pending in various courts on the issue?
What is the legal position of such a scenario?

As for the latter, I believe it raises a number of troubling
questions: what are the prospects of the NJC being fair to either
or both men, particularly Justice Muhammad? This question is
pertinent because of the structure and composition of the NJC. By
virtue of Paragraph 20 of Part 1 of the Third Schedule to
the Constitution, the CJN directly appoints fully 19 out
of the 25 members of the NJC. Of the remaining 5,they consist of
the CJN himself (who is the Chairman), the Acting CJN, (the Deputy
Chairman), the Chief Judge of the Federal High Court and the
President of the National Industrial Court – two judges of which
have issued separate orders in favour of the Justice Onnoghen in
relation to the allegations which the NJC is now investigating.

Can the NJC realistically be expected to be fair to the Acting
CJN in the circumstances? Should anyone be genuinely surprised if
the NJC exonerates the CJN? It remains to be seen. Suffice it to
say that the apex court in LPDC vs. FAWEHINMI
(1985) 2 NWLR pt. 7 pg. 300 @ 390, held that: “if there are any
circumstances so affecting a person or body of persons called upon
to determine the rights of fellow human beings as to be calculated
to create in the mind of a reasonable man a suspicion of those
persons’ impartiality, those circumstances in themselves and by
themselves alone, are sufficient to disqualify the person or
persons from adjudicating”.

Basis of the Senate’s Intervention

The Senate apparently filed the case to assert its position
under Sections 231(1) and 292(1)(a)(i) of the 1999
Constitution, which confer it with the power of confirming
the appointment or removal, respectively, of the Chief Justice,
amongst other judicial officers. That is fair enough: any attempt
to by-pass the Senate in the circumstances contemplated by those
constitutional provisions (as is clearly the case with the
suspension of the CJN) would suggest a prima case of breach of, at
least, the latter.

But, why the Supreme Court?

This is the million-naira question. This poser is not
unwarranted, and is prompted by the fact that the Supreme Court is
ordinarily a court of last resort, the final court in the judicial
hierarchy, which only acts after other courts lower than it have
had their say and the loser exercises his or her right of appeal
thereto. This is, indeed, the case by virtue of Section 233
of the Constitution. However, the apex court does have a
limited original jurisdiction under Section 232(1) of the
Constitution to adjudicate over disputes “between the
Federation and a State or between States”. Strictly speaking,
therefore, the ongoing controversy over the CJN’s suspension would
appear to be unprovided for under the Constitution, at least as far
as the original jurisdiction of the Supreme Court is concerned.

However, Section 1(1)(a) of the Supreme Court
(Additional Original Jurisdiction) Act, 2002, confers the
Supreme Court with original jurisdiction in respect of “any
dispute between the National Assembly and the President”. The
conditions under which this jurisdiction may, however, be invoked
are spelt out, inter alia, in Section 2
and Paragraph 2 of the Schedule to the Act
thus:“No legal proceedings shall be instituted by or on behalf
of the National Assembly except upon the resolution which has been
passed by both Houses of the National Assembly by a simple majority
of the members of each House present and sitting at the time the
resolution is put to vote”.

Needless to say, only the Senate is involved in this situation.
Accordingly, only a simple majority of Senators is required to
approve its said litigation. The cracks in the Senate over such an
approval have obviously raised doubts about the trajectory of the
suit. How far will it go? Only time will tell. Justice Onnoghen
warned us not to engage in such speculation a year ago. Suffice it
to say that in GANI vs. UBA (2000) FWLR pt. 13 pg.
2227 @ 2239B, the Court of Appeal held that “where there is
non-compliance with a stipulated condition for setting a legal
process in motion, any suit initiated in contravention of the
precondition is incompetent and the court is equally incompetent to
entertain the suit”.

What about the other pending litigations?

This is yet another dimension to the matter. The Senate did not
initiate any of the other 5-odd pending legal challenges to Justice
Onnoghen’s suspension. Four of them are on-going at the Federal
High Court, the High Court of the FCT, the National Industrial
Court and the Code of Conduct Tribunal – whilst an appeal from the
last is pending at the Court of Appeal. Notwithstanding the
similarities of their subject matters (and the said provisions of
Section 1(1)(a) of the Supreme Court (Additional Original
Jurisdiction) Act), the Senate’s case at the Supreme Court
is somewhat incongruous.

This is because it puts the other courts lower to the apex court
who are handling the other suits in an awkward position, as the
Senate is, through its action, asking the Supreme Court to
overreach those courts and resolve the self-same dispute over the
heads of the latter, notwithstanding the fact that theirs were
earlier in time. No value judgement on the propriety of this will
be made as it would be grossly inappropriate. Suffice it to say
that in REGD TRUSTEES OF THE LIVING CHRIST MISSION vs.
ADUBA (2000) FWLR pt. 6 pg. 911, the Supreme Court held
that where two courts are faced with substantially the same
questions, it is desirable that the questions are debated upon in
only one of those courts.

The apex court held further that where two proceedings are
pending simultaneously before Court ‘A’ and Court ‘B’, and the one
in the former relates to a number of issues, only one of which is
raised in Court ‘B’, it is preferable that the lone question in
Court ‘B’ be determined by Court ‘A’, since a resolution by that
court will dispose of all the issues, including the lone issue
raised before Court ‘B’.

Beyond this, more worrisome, in my view, is the undeniable fact
that both the CJN and Justice Muhammad are colleagues of all the
judges of the same Supreme Court which is now tasked with
determining their respective fates, if not professional careers.
There is surely a sense in which the apex court is being asked to
choose its own head. Does the court have that power under the
Constitution? It remains to be seen. Besides, it cannot be
seriously argued that all the serving Justices of that August body
are already familiar with the details of matter with which they are
now directly confronted. This is clearly undesirable, because the
apex court itself has held that foreknowledge of the facts of a
case disqualifies a court on the ground that it is likely to
influence his or her mind. See ADIGUN vs. ATT-GEN. OF OYO
STATE (1987) 1 NWLR pt. 53 pg.678 @ 724.

Conclusion

Seldom in our constitutional history have all three arms of
government – the Executive, the Judiciary and the Legislature –
been locked in such a seeming battle for supremacy. In this unique
three-cornered face-off, all bets are off. Who blinks first?

Abubakar D. Sani,
Esq. Kano.08034533892

Maintenance Policy will Drive SMEs- FG

The Honourable Minister of Power Works and Housing, Mr.
Babatunde Raji Fashola, SAN has made public the approval of a
National Public Buildings Maintenance Policy for the country, by
the Federal Government of Nigeria. This was made known at a Press
Briefing held in the Ministry’s office Headquarters in Abuja.

Mr. Fashola said the approval of the Maintenance Policy marks an
end to the era of agonizing on maintenance in the country. He
highlighted the fact that no other governments before now deemed it
fit to approve such a policy but the President Muhammadu Buhari-led
Administration has acted in the right direction.

He said “if there is anything I have participated in as the
Federal Minister over the past three years that I’m particularly
proud of, it is this Maintenance Policy”. Maintenance, he
emphasized is not a cultural issue but an economic issue, an issue
viable for economic prosperity.

The Minister disclosed that the Memorandum presented to the
Federal Executive Council (FEC) revealed that only about 23% of
employment in the built industry, involves design, governance and
construction, while maintenance carries the lion share.

This policy, in the big picture, would culminate into
incremental employment opportunities within the country and
eventual output in the Gross Domestic Product (GDP), hence growth
for Nigeria’s Small and Medium Enterprise (SMEs) and the economy as
a whole, he explained.

Fashola called on all relevant stakeholders including the office
of the Head of Civil Service of the Federation, the National
Assembly, Bureau for Public Procurement, National Orientation
Agency and other stakeholders to come together in a common purpose
to achieve the desired goal.

Speaking earlier, the Head of Civil Service of the Federation,
Mrs Winifred Oyo-Ita, who was represented by the Director, General
Services Office (GSO/ OHCSF) Mrs. Toyin Alade, expressed delight
that the Policy will open a new vista in the overall maintenance of
public assets and facilities in the country.

The Chairman, House Committee on Housing, Hon. Mahmud Mohammed
expressed happiness over the approved Policy, stressing that this
would reduce wastage and increase labour and productivity.

Also, Deputy Chairman, House Committee on Works, Hon. Dr.
Abubakar Kannike opined that if maintenance was being
institutionalized, the government will in turn save cost. He
admonished Nigerians to adopt in the maintenance culture over their
private properties as well.

Mrs Adenike Adekanbi, the Consultant charged with drafting of
the Memorandum, reiterated that as it were, the future of public
infrastructure depended wholly on the survival of the Policy
recently approved by the government.

While presenting an overview of the Policy Framework, she
revealed that a pilot study conducted using different public
infrastructure to generate data from site analysis and condition
assessments to determine the current status of the buildings,
revealed the enormous untapped employment potentials available.

Mrs. Adekanbi said if such analysis were conducted on all public
buildings, there was bound to be a proliferation of employments for
artisans, welders, plumbers, electricians and so on.

The Consultant added that the policy trust asserts all public
buildings to be maintained in a manner to preserve their values and
ensure that they serve the purpose for which they were built.

Mrs. Renate M. Michael
PIO(Press &PR)
For: Director Information