Onnoghen Asset Declaration Dispute: A Dispassionate Look At NBA, Its Traducers And The Verdict Of History (An Opinion By Sylvester Udemezue)

There are insinuations in some quarters that the Nigerian Bar
Association (NBA) is in support of the embattled CJN, Hon Justice
WSN Onnoghen in his trial at the Code of Conduct Tribunal (CCT) on
charges related to non-declaration or late declaration of his
assets as required by the Code of Conduct for Public Officers
contained in the 5th Schedule to the Constitution of the Federal
Republic of Nigeria (CFRN), 1999 (as amended).

Those who hold this view are quick to suggest that NBA’s support
is a deliberate attempt at derailing the “war against corruption”
in Nigeria. It is my humble view that neither the NBA leadership
nor the NBA as a body is in support of CJN Onnoghen as a person.
All I think the NBA and its leadership have been doing is merely to
demand and insist on decorum and observance of due process of law,
as opposed to arbitrary desecration of the Constitution. NBA’s
stand is made more rational when one recalls the famous declaration
in a 1998 book titled, Lex, Rex, or the Law and the
Prince: A Dispute for the Just Prerogative of King and
People^[1] written
by Samuel Rutherford whose view I would paraphrase
or re-phrase to read, “arbitrary application of laws has no
alliance with God.” Besides, one must not forget that, by the
very peculiar nature of their office, judicial officers are not
ordinarily able to speak out for themselves in matters such as
this. The Bar serves as the mouth piece of the Bench, in deserving
situations, because the Bar and the Bench are like Siamese twins —
conjoined and inseparable in the attainment of justice. Let me
pause to quickly reiterate that the Nigerian Bar Association (NBA)
and its leadership would lose my sympathy the day it chooses to
overtly or covertly support, encourage or condone acts of
corruption – whether against public funds or against rule of law. I
shall now proceed to lay out the legal foundations for this humble
opinion of mine in the hope that this would enflame further
dialogues on whether the role being played by NBA is reasonably
justifiable or justified in the circumstances.

• In the case of MADUKOLU v. NKEMDILIM
  (1962) 1 ALL NLR 589, the Nigerian Supreme Court provided a guide
  on how to determine whether a court has or does not have
  jurisdiction in any particular case. Hon Justice Vahe
  Bairamian (FJ), while delivering the lead judgment in that
  case was of the view that a court is considered competent when,
  among other factors, “the case comes before the court initiated
  by due process of law, and upon fulfilment of any condition
  precedent to the exercise of jurisdiction.” In this
  respect, I refer us to the decision in the case of JUSTICE
  HYELADZIRA AJIYA NGANJIWA v. FEDERAL REPUBLIC OF NIGERIA
  (2017) LPELR-43391(CA) where the Court of Appeal in its judgment,
  laid the following mandatory rule of procedure, which was cited by
  Nonso Robert. Attoh, with approval, in his article titled,
  “Constitutional Issue Raised By The Proposed
  Trial Of The Chief Justice Of Nigeria By The Code Of Conduct
  Tribunal,” and^[2]
  published on 14 January 2019 on
  www.educationalresourceproviders.com:

Whenever a breach of judicial oath
occurs, it is
a misconduct
itself, then the NJC is the appropriate body to
investigate such breaches by the judicial officer and if found to
be so, such judicial officer shall face disciplinary action and the
NJC may recommend the removal of such a judicial officer to the
appropriate authority which is either the President in the case of
a Federal Judicial Officer or the Governor of the State in the case
of a State Judicial Officer and/or take other actions
appropriately. When this is done and accepted by the appropriate
authority in compliance with the provisions of the Constitution,
then the relevant law enforcement Agent or Agency is at liberty to
make the said judicial officer face the wrath of the law. Any act
done by the law enforcement Agent or Agency in violation of the
above is tantamount to denying the NJC its
powers to discipline Judges in
accordance with the provisions of Section
153(1) and Paragraph 21 Part 1 of the Third
Schedule of the 1999 Constitution (as amended).
See Paragraph 21 (a) & (b) of the Third
Schedule, Part 1 of the 1999 Constitution (as
amended) respectively. Whenever there is an allegation
of official misconduct
against a judicial officer and the above stated process is not
adhered to, it amounts to jumping the gun and ipso facto a direct
violation of the Constitution. Recourse to the National Judicial
Council is a condition precedent as clearly set out by the
Constitution, and any
attempt by any Agency of
Government to
by-pass the Council will amount to failure to
observe condition precedent thereby leading to flagrant violation
of the Constitution.

In view of this decision, can anyone say straight from the
shoulder that CJN Onnoghen could validly be arraigned and tried by
the CCT at a time when the National Judicial Council (NJC) is yet
to sit and give a determination over the same case? As noted by
Nonso Attoh in the work cited above, the Ngajiwa
judgment remains the law for what it decided until it is either set
aside or overruled.

The stance of the CCT in CJN Onnoghen’s case becomes more
curious when one recalls the judgment of the same CCT in
FRN V. SYLVESTER NGWUTA, another Justice of the
Supreme Court. The CCT had in that judgment, delivered on 15 May
2018, discharged Hon Justice Ngwuta over false assets declaration
charges brought against him by the Federal Government. Hon Justice
William A. Atedzeb (a member of the CCT who delivered the judgment
of the CCT) had held that as a serving judicial officer, Hon
Justice Ngwuta was under the management, control and discipline of
the National Judicial Council (NJC) and also that the NJC is a body
whose independence of external control or interference is
constitutionally provided for in section 158 (1) of the 1999
Constitution (as amended). The judge then accepted and upheld
the decision in HYELADZIRA NGAJIWA V. FRN (supra)
as constituting the guiding precedent, and quashed all charges
preferred against Hon Justice Ngwuta, noting that “any
allegation of official misconduct against a judicial officer would
first have to be referred to the NJC to the exclusion of any other
body, court or tribunal.” (See https://guardian.ng/news/cct-discharges-ngwuta-over-false-assets-declaration/^[3]
accessed on 17 February 2019). Why then the summersault in
Onnoghen’s case? Is sauce for the goose not sauce for the gander?
Or, are there things we are not being told?

• The second issue is to look at the processes leading to CJN
  Onnoghen’s suspension from office and to determine whether they are
  not a breach of due process of law. Section 292 (1) (a) and (b) of
  the Constitution of the Federal Republic of Nigeria (CFRN),
  1999 (as amended) provides thus:

A judicial officer shall not be removed from his office or
appointment before his age of retirement except … by the President
of the FRN 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; and in any other case, by the
President … 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 respectfully submit the following as necessary
implications of the provisions of section 292(1) CFRN, 1999 (as
amended):

• Under no circumstance may a judicial officer be removed without
  the recommendation of the NJC (National Judicial Council) or a
  prior resolution of the Senate of the FRN. Accordingly, the
  suspension of the CJN without first complying with this provision
  is a violation of the constitution.
• I agree that under paragraph 18 of Part I of the
  5^th Schedule of the Constitution of the
  Federal Republic of Nigeria (CFRN), 1999 (as amended), one
  of the punishments the Code of Conduct Tribunal (CCT) may impose on
  its convict is “vacation of office,” I however respectfully submit
  as follows:

1. The CCT may only impose punishment after full trial and
   conviction:

The CCT is not entitled to impose any such punishment unless and
until trial is completed and upon the defendant being found guilty
before it. Consequently, the ex parte order purportedly
given by the CCT on 23 January 2019 was an illegal order, having NO
legal justification whatsoever, anywhere in Nigeria’s statute books
or case law. I have given other legal reasons why the said order is
null.  (see
was-onnoghen-properly-suspended-is-nbas-position-in-support-of-or-against-rule-of-law-sylvester-udemezues-response-to-abu-orisankoko-oris/)

1. The CCT does not have any powers under the Constitution
   to unilaterally suspend or remove a judicial officer from
   office:

In a statement published on February 01, 2019 on www.legalnaija.com^[4], celebrated
constitutional lawyer and Senior Advocate of Nigeria (SAN),
Professor Ben Nwabueze, had submitted that “It
is clear from paragraph 18 that: (a) only the CCT itself can order
vacation of or suspension from office; the President is not
empowered to do so, and cannot be ordered or directed by the CCT to
do so; (b)  more importantly, the CCT cannot make an order
vacating an office or suspending a person from office until the
trial before it is completed and the accused person is found
“guilty of contravention of any of the provisions of this Code”;
the trial in this case is only just commencing.” The learned
professor of constitutional law had then gone ahead to conclude
that this applies to a judicial officer in Nigeria, thus ascribing
to the CCT a unilateral power to remove a serving
judicial officer, albeit upon conviction of such judicial officer.
With the greatest respect to the revered learned Professor-Silk,
I strongly disagree with any suggestion that the CCT can
unilaterally remove or suspend a serving judicial officer without
the mandatory participation of both (A) the President/Governor and
(B) the NJC/Senate/House of Assembly, as the case may, in
line with section 292, CFRN. I will explain.

Paragraph 18 (2) (a) of Part I of the 5th Schedule of the CFRN,
1999 is a GENERAL provision relating to all public
officers and as such does not and cannot override the provisions of
section 292 (1) of the same CFRN, 1999 which is a SPECIFIC
provision relating exclusively to (only) judicial officers. Section
292(1) clearly states that “a judicial officer SHALL NOT be
removed from office or appointment before his age of retirement
except in the following circumstances.” There are only two
such circumstances in section 292 — the first is on the request
made vide a resolution supported by two-third majority vote of the
Senate of the Federal Republic or the House of Assembly of the
affected State, as the case may be; the second is on the
recommendation of the NJC. And in each instance, removal
may only be made by the President or the Governor
(as the case may be).

I accordingly respectfully submit that although the CCT may,
upon convicting a public officer, unilaterally give an order that
the “public officer” should immediately vacate his or her office,
the CCT does not have similar powers with respect to a “judicial
officer.” The guiding principle is the Latin legal maxim and canon
of statutory interpretation, “generalia specialibus non
derogant.” The maxim states that “general provisions
in a statute must yield to special or specific provisions in the
same statute.” See DORE V. VERDOM [1997] 2 SCR
862. Thus, when a matter falls under any specific
provision, then it must be governed by that provision and not by
any later general provision in the same statute.
General provisions in a law must admit or submit to specific
provisions in the same law, on the same subject. This is why, in my
opinion, section 292 (1) of the CFRN (a special provision
made for judicial officers) must necessarily prevail over
para 18 (2) (a) of Part I of the 5th Schedule of the CFRN (which is
a general provision made for all public
officers).

The reason offered by the courts in support of this principle of
interpretation is that the legislature, having had its attention
directed to a special subject, and having observed all the
circumstances of the case and provided for them, does not intend by
a later general enactment or provision to derogate from its own act
when it makes no special mention of its intention so to do. See
LALONDE V. SUN LIFE [1992] 3 SCR 261;
IBORI V OGBORU (2004) 15, NWLR (PT 895) 154; In
AKINDOLIRE V. AKINDOLIRE (1977) 1 FCAR, 148, the
Court explained thus:

On the maxim of generalia specialibus non derogant,’ the
position of an earlier Special Act will not be affected by that of
a later general Act although inconsistent with the earlier
particular Act and although they deal with the same subject
matter.

The above suggestion of mine is strengthened by the provisions
of section 23 (3) of the Code of Conduct Bureau & Tribunal
Act, 1991, Cap C15, Laws of the Federation of Nigeria (LFN),
2004 (hereinafter referred to as the (CCB&T
Act) which provides that “the punishments
mentioned in subsection (2) of this section shall be without
prejudice to the penalties that may be imposed by any law where the
breach of conduct is also a criminal offence under the Criminal
Code or any other enactment or law.”

I therefore suggest that the proper approach where a judicial
officer is found guilty by the CCT of breach of the Code of Conduct
is to make an order recommending vacation of office of the affected
judicial officer, which order could or would then be a ground for
the action of the NJC or the Senate/House of Assembly of a State,
as provided for in section 292 (1), as the case may be. On the
clear provisions of section 292 (1) CFRN, 1999, the ground upon
which the NJC or the Senate/House of Assembly of a State may
recommend the removal [or suspension] of a judicial officer include
“his inability to discharge the functions of his office or
appointment…, or for misconduct or contravention of the
Code of Conduct.” Accordingly, issues relating to
Code of Conduct are well within matter that the NJC has powers to
look into in respect of a judicial officer. Any removal or
suspension of the CJN pursuant only to a purported court order is
improper in law as such amounts to a disregard of the condition
precedent put in place in section 292(1) CFRN which makes
participation of the Senate/NJC a sine-qua-non.

• The third issue to consider is the conduct/attitude of the CCT
  Chairman on the last date of adjournment of the Tribunal (CCT) in
  the Onnoghen case. It would be recalled that the CCT Chairman had
  all along insisted (against existing legislation and case law
  supporting the contrary) that CJN Onnoghen’s arraignment must
  precede the hearing of pending interlocutory applications
  questioning CCT’s jurisdiction to hear the case.
  EFCCV.
  PHILIP ODIGIE (2013)
  17 NWLR (pt. 1384) 607 is among the cases
  cited by the Defence in the Onnoghen case, to show that
  jurisdiction is the lifeblood of any court proceedings and that
  once raised it is in the interest of justice to first resolve it
  because any proceedings conducted without jurisdiction is s
  nullity. The CCT Chairman had however rejected all those legal
  authorities and this had culminated in the issuance of a Bench
  Warrant by the CCT Chairman against CJN Onnoghen, who had then
  decided to end the drama by personally coming to the CCT on 15
  February 2019. It was however most stupefying and flummoxing to all
  reasonable men that when, on 15/02/2019, CJN Onnoghen entered the
  dock (on the orders of the CCT Chairman) and the arraignment
  commenced, the following scenario was reported to have
  happened:

As the Charge was being read to the Defendant, the CCT
Chairman suddenly stopped the Clerk from continuing with reading of
the charge. This was after the Clerk had read only count one. The
Chairman then asked the Defence team whether it (the Defence) would
prefer that pending interlocutory applications be taken first. The
Defence team answered that since the Defendant was already present
in the tribunal, the Defendant’s plea should be taken
first.

With due respect, is it not alarming that the CCT Chairman would
suddenly beat a retreat in a such a manner by deciding to do the
right thing (that is, to hear the applications questioning his
jurisdiction), after he had compelled the attendance of the
defendant who was now in the dock and set for his own
arraignment.  In BAFARAWA V STATE (2014)
LPELR-22322 (CA), it was held by the Court of Appeal (Per Awotoye,
JCA) as follows:

… determination of jurisdictional issues come before trial
and since the presence of the accused is only required when the
High Court is ready to commence trial then when jurisdictional
issues are yet to be determined, accused’s presence in court is not
mandatory.

Section 266 (b) Administration of Criminal Justice Act
(ACJA), 2015 provides that the presence of the accused
person is mandatory throughout his trial “unless at the
hearing of an interlocutory application.” See also
EZEZE v. STATE (2004) LPELR-CA/L/370/2003;
(2004)14 NWLR (Pt.894)491; and B.B APUGO v. F R N
(2017)
LPELR-41643(CA).^[5] Issues relating
to a court’s jurisdiction are fundamental and lack of jurisdiction
is fatal as emphasized in OTUKPO v. JOHN (2000) 8
NWLR (669) 507; BRONIK MOTORS v. WEMA BANK (1983)6
S.C. 158; and OMOKHAFE v. MILITARYT ADMINISTRATOR
(2005) 2 MJSC 173. These and more are what the NBA and its
Leadership are worried about, and which inform its principled
stance in favour of due process, no matter what the outcome would
be. Honestly, to me, it really does not matter if
CJN Onoghen is in jail or is removed from office, provided due
process of law is strictly complied with in either case.

• The fourth point to consider is Nemo Judex In Causa
  Sua. In METROPOLITAN PROPERTIES CO. (F.G.C.)
  LTD. v. LENNON (1969) 1 Q.B. 577, 598, Lord Denning, M.R.,
  after reviewing the facts in the case before him, held that “a
  man may be disqualified from sitting in a judicial capacity on one
  of two grounds. First, a “direct pecuniary interest” in the subject
  matter. Second, ‘bias’ in favour of one side or against the
  other.” It was the same Lord Denning, MR who, in v.
  AMBER VALLEY DC, EX PARTE JACKSON [1985] 1 WLR
  298, [1984] 3 All ER 50, gave the following insight into the
  determining factor regarding the likelihood of bias:

The court looks at the impression which would be given to
other people. Even if he was as impartial as could be, nevertheless
if right-minded persons would think that, in the circumstances,
there was a real likelihood of bias on his part, then he should not
sit. and if he does sit, his decision cannot stand”. It is
irrelevant whether he was in fact biased, because “justice is
rooted in [public] confidence.

This rule has been applied in several Nigerian and foreign cases
to strike down decisions reached in spite of or in disregard of
such reasonable likelihood of bias. See R. v. BOW STREET
MAGISTRATE EX PARTE PINOCHET (No. 2) [2000] 1 AC
119, [1999] 1 All ER 577; R. v. Secretary of State ex
parte Kirkstall [1996] 3 All ER 304; and
ZAMAN v. STATE (2015) LPELR-24595(CA). In
OLIVE. v. ENENWALI (1976) 1 NMLR 49 at 50, the
Supreme Court of Nigeria (quoting the dictum of Brett, Ag. C.J.N,
in the case of Obadara & Ors. v. The President, Ibadan West
District Grade “B” Court (1964) 1 All NLR 336) held as
follows:

The principle that a judge must be impartial is accepted in
the jurisprudence of any civilized country and there are no grounds
for holding that in this respect the law of Nigeria differs from
the law of England or for hesitating to follow the English
decisions.

It is therefore distressing that the CCT Chairman had insisted
that CJN Onnoghen must appear before the CCT in spite of the
pending application praying that he (CCT Chairman) should recuse
(himself) from the case on grounds of breach of nemo judex in
causa sua. So, one should not be frightened nor
discombobulated that NBA and its Leadership are seriously worried,
vigorously complaining and persistently protesting. The protest or
complaint is not about the person of Onnoghen himself. NBA knows
that CJN Onnoghen is not above the law. NBA’s position, I believe,
is that if you must punish CJN Onnoghen or indeed anyone for
violation of any extant law, the procedure and processes for meting
out such punishment must be in strict compliance with due process
of law. NBA’s apprehensions are therefore over the aforesaid, which
NBA feels constitute a grave threat to due preservation of the rule
of law, separation of powers, constitutionalism, and the
independence of the judiciary. Further, as can be gleaned from
NBA’s published stand, rule of law and an independent judiciary
(free from external influence or unnecessary harassments) are
necessary to checkmate abuse of political powers and stop Nigeria
from degenerating into a tyrannical State headed by totalitarian
leaders evocative of Thomas Hobbes’ Leviathan (the Monster-like
leaders), whose personal whims and caprices hold sway as opposed to
separation of governmental powers, rule of law and preservation of
individual liberty of citizens.

• The fifth issue for consideration is that the Code of Conduct
  Bureau (CCB) itself is in gross breach of due process of law when
  it proceeded to file the current charges against CJN Onnoghen
  notwithstanding the latter’s written admission in
  response to the allegations made against him as they relate to
  late-declaration and non-declaration of some aspects of his assets.
  A close look at section 3 of the Code of Conduct Bureau &
  Tribunal Act (CCB&T Act), Cap C15 relating to
  functions of the CCB would help us appreciate this position.

The functions of the Bureau shall be to receive assets
declarations by public officers in accordance with the provisions
of this Act; examine the assets declarations and ensure that they
comply with the requirements of this Act and of any law for the
time being in force; take and retain custody of such assets
declarations; and receive complaints about non-compliance with or
breach of this Act and where the Bureau considers it necessary to
do so, refer such complaints to the Code of Conduct Tribunal
established by section 20 of this Act in accordance with the
provisions of sections 20 to 25 of this Act:

Provided that where the person concerned makes a
written admission of such breach or non-compliance, no reference to
the [Code of Conduct] Tribunal shall be
necessary.

The singular question arising from the proviso to section 3 of
the CCB&T Act is as to why the CCB, after having received CJN
Onnoghen’s written admission in respect
of his asset declaration, still proceeded to file charges against
the CJN at the CCT. Are there no other processes and procedures put
in place for dealing with a situation in which the affected public
officer tenders a written admission, as his Lordship, Hon Justice
Onnoghen, had done in this instance, since the CCB&T Act leaves
no one in doubt in its command that no reference to the [Code of
Conduct] Tribunal shall be necessary where the person concerned
makes a written admission of such breach or non-compliance (proviso
to section 3)? With the greatest respect, it leaves much to be
desired and gives some justification to the feeling in some
quarters that there might be more to all this drama than meets the
ordinary eye. One could then understand why the NBA feels
bothered.

All in all, the foregoing, and nothing more pretentious, I
respectfully believe, is the position of the NBA and its leadership
on what they see as a brazen suppression of law and due process.
And this, I submit further, is the position each and every
certified, responsible and reasonable Nigerian Lawyer ought to take
and support. If the Nigerian Bar Association (NBA) fails, refuses
or neglects to stand up in defence of rule of law and the course of
justice, I wonder which other institution in Nigeria we would
expect to so do. By the way, it would amount to a gross abdication
of its core mandate and primary responsibly for the NBA to be
looking elsewhere while Nigeria’s Constitution is being trampled
upon and due process of law ditched with impunity. Rule 1
of the Rules of Professional Conduct for Legal Practitioners in
Nigeria (RPC), 2007, commands all Lawyers in Nigeria to at
all times “uphold and observe the rule of law, promote
and foster the course of justice.” Or, did we expect
the NBA to act when or after things have gone too bad? For no other
purposes, other than those of amplifying why NBA’s position or
stand is justified and reasonably understandable and defensible,
and regarding the role of lawyers in safeguarding respect by all
(leaders and the led) for rule of law, I beg to be permitted to
humbly draw our attention to John W. Whitehead’s
wise, bold admonition in his great book titled, A
Government of Wolves: The Emerging American Police State,
published on June 25th 2013. Says he:

The time to act is now, before it’s too late. Indeed, there
is power in numbers, but if those numbers will not unite and rise
up against their oppressors, there can be no resistance. You can’t
have it both ways. You can’t live in a constitutional republic if
you allow the government to act like a police state. You can’t
claim to value freedom if you allow the government to operate like
a dictatorship. You can’t expect to have your rights respected if
you allow the government to treat whomever it pleases with
disrespect and an utter disregard for the rule of law.

What is more? Leaders and followers in a country would not be
able to defend their nation if they are not held accountable to the
country’s laws. Ours is governance of limited power under the
Constitution. We must learn to work out our problems on the basis
of rule of law and respect for the constitution. W. K.
Arnold appears to have captured this point more
objectively in his book, The Reign in Spain: Fall &
Rise of the Spanish Monarchy^[6], published on
23 July 2016. Hear him out:

Civilized existence is one which respects the law, both wise
and good laws as well as bad laws, whose constitutional basis is
the will of the people. When one does not like a particular law,
the remedy resides in modifying it or revoking it by the procedures
established for that very purpose. That methodology is the sole
means of guaranteeing that popular will cannot be seized and held
captive by… with… extreme interpretations.

I rest my case here. May God help Nigeria, my country! Amen!

Respectfully,

Sylvester Udemezue