Was Resignation His Best Bet? | Nairalaw

After going through what has been touted by a
section of the public as the worst form of humiliations in the
hands of agents of the federal government, the suspended Chief of
Nigeria, Walter Onnoghen, last week resigned from his position
following recommendations of the National Judicial Council, and
which also exposed NJC’s perceived double standards in the matter
of his successor, Tanko Muhammad. In this report, Davidson Iriekpen
and Tobi Soniyi examine some of the intricate dynamics that are
currently playing out at the top echelon of the
judiciary.

After about three months of being in the thick of the storm, the
Chief Justice of Nigeria, Justice Walter Onnoghen, last Friday,
tendered his resignation. He was said to have sent his resignation
letter to President Muhammadu Buhari. THISDAY gathered that
Onnoghen turned in his resignation letter last Thursday evening, a
day after the National Judicial Council (NJC) recommended that he
be compulsorily retired for misconduct
The embattled CJN is still standing trial at the Code of Conduct
Tribunal (CCT) on an alleged six-count charge of failure to
disclose his assets as required by the law for public office
holders. The charge was preferred against him by the federal
government following a petition filed at the Code of Conduct Bureau
(CCB) by one Mr. Dennis Aghanya, an associate of President
Muhammadu Buhari, and a director of the Anti-corruption and
Research Database Initiative.

He alleged that Onnoghen owned “sundry accounts primarily funded
through cash deposits made by himself up to as recently as August
10, 2016, which appeared to have been run in a manner inconsistent
with financial transparency and the code of conduct for public
officials.”

The trial commenced at the CCT on January 14, 2019, but Onnoghen
was absent. It was then adjourned to the following week, because
the embattled former CJN faulted the summons procedure. The next
hearing was slated for January 22, 2019 but he again failed to show
up in court this due to three orders by the Federal High Court and
National Industrial Court.

Following his absence again, President Muhammadu Buhari
suspended him from office on January 26 and appointed Tanko Ibrahim
Muhammad as acting CJN. His office was thereafter sealed by the
police.

His Position as CJN Had Become Untenable
As the first Chief Justice of Nigeria to be arraigned for a
criminal offence, Justice Walter Onnoghen’s decision to retire from
the bench will save the judiciary from further embarrassment.

The sundry allegations levelled against him by the Economic and
Financial Crimes Commission including receiving money in foreign
currencies from lawyers and the findings by the National Judicial
Council that he could not offer valid defence to the allegations,
are such that make his continued stay in office as CJN
untenable.

Even though, the authorities may have difficulty proving beyond
reasonable doubt that he has committed an offence, the CJN has lost
the moral right to continue in office not just as the Chief Justice
of Nigeria but also as chairman of the National Judicial Council, a
body that disciplines erring judges.

The allegations even though unproven in a court of law have
significantly damaged Onnoghen’s moral standing and weakened his
reputation to such an extent that even if he was cleared of all
changes in his ongoing CCT trial, there was no way he could have
returned to office. He must have recognised this fact himself long
before he came to his decision to retire or resign.

What were the Options before Him?
Even though the option of resignation was a tough decision for
Onnoghen to make, THISDAY gathered from a credible inside source
that there were no other alternatives left for the embattled CNJ
under the current circumstance. The source disclosed that the
option of resignation was first put on the table for him, when he
refused to appear at the start of his trial before CCT, but he
ignored it, thinking that the case would fizzle out in no distant
time.
Investigation revealed that even though a lot of event unfolding in
the course of the trial might have immensely contributed to his
eventual resignation, the decision by the NJC to recommend his
compulsory retirement to President Buhari after deliberating on the
petition filed against him by the Economic and Financial Crimes
Commission (EFCC) may have seriously accentuated the option.

The NJC had last Wednesday said it had determined the petitions
against Onnoghen, and the acting CJN, Tanko Muhammad, and sent its
findings to the president for consideration. It was gathered that
members of the council unanimously agreed that Onnoghen had
particularly lost every moral authority to continue as CJN with the
litany of allegations bordering on misconduct.

Many now believe that with the resignation, it would save Buhari
from having to get two-thirds majority of the Senate to confirm
Onnoghen’s retirement as stipulated in Section 292 (1) of the 1999
Constitution, which might have been impossible to muster.

The section that “Judicial officer shall not be removed from his
office or appointment before his age of retirement except in the
following circumstances – (a) in the case of – (i) Chief Justice of
Nigeria… by the President acting on an address supported by
two-thirds majority of the Senate.”

Second are the humongous benefits that would accrue to him with
the resignation. Investigation revealed that Onnoghen’s retirement
benefits in cash and kind will cost tax payers about N2.5 billion.
As part of the package for a retired chief justice, a house will be
built for him in Abuja with a nine-digit sum for furnishing — in
addition to a severance gratuity that is 300 per cent of his annual
basic salary of over N3.3million, as well as pension for life.

Just like state governors, a retired chief justice is entitled
to a number of domestic staff and sundry allowances for personal
upkeep. This package for judicial officers was put together by the
NJC long before Onnoghen became the CJN in 2017. However, if he was
dismissed upon conviction by the CCT, he would not be entitled to
any benefits.
THISDAY gathered that those, who advised the embattled CJN to
resign might have thought that if he allowed the CCT to convict
him, not only would he forfeit the monies in the accounts, which he
did not declare to the federal government, he would also forfeit
the mouth-watering benefits he would enjoy should he not take the
option of resignation. In addition, he would be barred from holding
public office for 10 years.

Unprecedented Prosecutorial Speed
THISDAY checks revealed that one of the thinking that aided
Onnoghen’s resignation stemmed from the unprecedented speed that
characterised the petition, investigation, charges prosecution and
the body language of the tribunal chairman, Danladi Umar, which all
point to the fact that his conviction might have been
predetermined. These played out during trial.

For instance, the defence team had noted the speed with which
the charges against Onnoghen were filed and alleged connivance of
the CCB with the petitioner, whose charges had resulted in his
allegations.
The petition, which birthed the charge against the former CJN was
written by Dennis Aghanya, a member of the ruling All Progressives
Congress (APC) in Enugu State. Dated January 7, the petition was
received by the CCB on January, 9, according to the first
prosecution witness, James Akpala.

Akpala, a senior investigative officer with the Bureau, told the
tribunal that his office received the petition on January 9 and
began investigating on January 10. He added that a team of
investigators from his office visited Onnoghen’s office on January
11, where they obtained his written statement in addition to bank
documents to support the allegations.

Responding to questions from Onnoghen’s counsel, Adegboyega
Awomolo, Akpala admitted that they completed their investigation
and submitted their report to the CCT before the charge against his
client was drafted and filed that same January 11, nearly three
hours before the report was submitted to the tribunal.

The other concern was when the CCT rejected Onnoghen’s no-case
submission. As soon as Umar was done with the ruling on Friday, he
adjourned the hearing to Monday for the defendant to open his
defence. This led to uproar in the courtroom, as lawyers from the
defence objected to the short adjournment. They questioned the
speed in the trial when the tribunal could have given them enough
time to prepare their case.

While Awomolo was still on his feet, asking the tribunal
chairman to allow the defendant sufficient time to prepare, Umar
stood up and walked away, leaving other members of the tribunal to
chase after him. As if this was not enough, when the defence
announced the closure of its case, it asked the tribunal for a
14-day adjournment in line with practice direction of the court for
such situations for it to file its final written address.

But responding, prosecution counsel, Mr. Aliyu Umar SAN, argued
that no specific time duration was provided for in the practice
direction and urged the tribunal to use its discretion in granting
the request, adding that the tribunal should accord them the same
amount of whatever days given to the defense for them to file their
reply.
In a short ruling, tribunal chairman gave the defence three days to
file its final written addresses, following which the prosecution
can file in their response in another three days. He subsequently
adjourned till April 15 for the adoption of final written addresses
by parties and fixing of date for judgment and ruling on all
pending applications.

The Appeal Court Conspiracy
The final shocker for Onnoghen was the silence by the Court of
Appeal on his case. The former CJN currently has about four appeals
pending at the court, either challenging his suspension from office
or challenging the jurisdiction of the CCT to hear the charges
filed against him. But since February 28, when the appellate court
reserved for judgment, nothing has been heard from the justices of
the court.

The judgment, which could have long terminated the CCT trial,
particularly the appeal challenging the jurisdiction of the
tribunal to hear the case, has refused to come, setting tongues
wagging that the court might have been cautioned to stay away from
the case.

The first time the case came up in the court was January 22, was
when the embattled CJN, who was initially scheduled for arraignment
on January 14, 2019, ran to the court to stop the process. In a
motion on notice brought by his counsel, Awomolo, Onnoghen asked
the appeal court to restrain the CCT from going ahead with his
trial slated for January 22.

He also asked the court to stop the suit requesting him to step
down as the CJN. The senior lawyer submitted that it is settled law
that once a matter is before the appeal court, trial courts cease
jurisdiction, pending the determination of the matter at the
appellate court.

But a three-man panel of the court led by Justice Abdul Aboki,
while delivering ruling, refused request. It was therefore no need
for an order and adjourning till January 24 for hearing of
Onnoghen’s motion on notice. When the matter came up again on
January 30, the court dampened the hope of the former CJN for
reprieve, refusing to stay proceedings at the CCT. Instead, the
appellate court dismissed Onnoghen’s appeal and asked him to return
to his scheduled arraignment at the CCT.
Many had wondered why the same Court of Appeal which shut down the
trial of Justice Hyeladzira Nganjiwa could not save Onnoghen, when
it was the judgment that was used to save a fellow Supreme Court
judge, Justice Sylvester Ngwuta, when the federal government had
through the Bureau, accused him of false assets declaration shortly
after he was arraigned for alleged fraud at the Abuja Division of
the Federal High Court.

In a decision of the tribunal in March 2018, it struck out the
10 counts charges leveled against Ngwuta, citing an earlier
decision of the Court of Appeal, Lagos Division, which held that
serving judicial officers cannot not be tried and that the only
body empowered to first indict a serving officer of that capacity
is the National Judicial Council (NJC).

Muhammad’s Inordinate Ambition

Investigation revealed that the seniority war mainly waged from
Muhammad’s end, got to a head during an official function at the
National Judicial Institute (NJI), when he openly demanded from
Mohammed that he be allowed to sit next to him, as the most senior
justice of the Supreme Court, ahead of Onnoghen, who then, was the
most senior, officially recognised, by the judiciary
leadership.Many observers believe one reason why it was easy to get
Onnoghen was because of the inordinate ambition of the acting CJN,
Ibrahim Tanko Muhammad. Checks revealed that long before Onnoghen
became the CJN, against the order of tradition of seniority, the
man who succeeded him in acting capacity, had always claimed to be
senior on the Bench to him, and should be succeeding the then CJN,
Justice Mahmud Mohammed.

An enraged Mohammed said to have told Tanko point-blank that
longevity on the Supreme Court Bench must be followed. He reminded
him that Onnoghen got to the Supreme Court ahead of him and going
by tradition, the jurist from South-south was officially the most
senior of the court.

Despite the matter being resolved in Onnoghen’s favour, Tanko’s
camp was said to be upbeat, with sources claiming that he had been
assured by the powers-that-be in Buhari’s government, that he would
be appointed as Mahmud’s successor ahead of Onnoghen, the reason
Onnoghen’s confirmation was needlessly delayed. But following the
unsuccessful attempts to stop Onnoghen’s enthronement, the
suspended CJN got an early lead, but as things stand today,
Muhammad can be said to be having the last laugh.

Judiciary as the Weakest Link
There is no doubting the fact that the forced resignation of
Onnoghen has exposed how weak the judiciary is amongst the three
arms of government. Counsel to the former CJN, Awolomo, had last
week alluded to this when he lamented the ease with which the
executive arm of government has treated the nation’s number one
jurist with indignity, saying it showed that the judiciary was
weak, vulnerable and dependent.

The senior lawyer said his experience at Onnoghen’s trial has
brought to the fore, the urgent need for institutional reforms and
the need to ensure that agencies are made to be strong and
independent.

“The case has clearly shown that Nigerian judiciary is very
weak, vulnerable and not independent. The security of tenure of a
judicial officer is a mere wishful thinking. It is unthinkable that
the head of the judiciary will be treated the way Onnoghen was
treated and not a whimper came from the body of men and women of
highest distinction in the legal profession. Is it not dangerous
that the president can appoint a Chief Justice without the
recommendation of the National Judicial Council (NJC)?

“There is no association of Nigerian judges to speak a word. Let
no public officers or judicial officer at any level throw stones,
because if not all, most are guilty as Onnoghen. Nobody knows who
is next, a precedent has been laid. The honourable Attorney-General
of the Federation seems pleased. Men, who sit in judgment over
fellow human beings, are representative of God on the earth and
everyone shall face the almighty God, on the last day, to give
account of his stewardship. On that day all secrets shall be laid
bare.”

Awomolo carpeted the Nigerian Bar Association, saying by reason
of personal leadership ambition, tribal sentiments, has been
rendered ineffective, divided, weak and unable to speak boldly to
secure the independence of the judiciary. He said situation where
the executive arm of the federal government dominates other arms is
not good for democracy to thrive.

“The framers of the Constitution of the Federal Republic of
Nigeria, 1999 (as mended) omitted to give sufficient attention to
the need for the CCT, to secure its independence, impartiality and
non-interference from outside the court – a situation, where the
executive arm of the federal government, is the custodian of the
Code of Conduct for public officers, the enforcer of the Code of
Conduct through the tribunal. It is the appointing authority of the
members of the tribunal.

“In the proceedings in the tribunal, the executive is the
accuser, the investigator, prosecutor, the witness and the judge,
all roll together into one. This is unacceptable under the
Constitution that guarantees independence of the three arms of
government. There is urgent need for constitutional reform,” he
concluded.

…NJC’s Volte-face on Acting CJN
Call it double standards, and you will not be far from saying the
truth.
Until last week, the NJC would punish any judge, who accepted an
appointment from the executive arm of government without the prior
approval of the council.

In 2014, the then Rivers State governor and now Minister of
Transportation, Rotimi Amaechi appointed Justice Peter Agumagu as
the chief judge of the state. The NJC preferred Justice Daisy
Okocha. For accepting the appointment, the NJC under the leadership
of the then Chief Justice of Nigeria, Aloma Mariam Mukhtar, accused
Justice Agumagu of disregarding the council by accepting the
appointment.

He was consequently suspended.
The Rivers State governor had on March 18, 2014 sworn in Agumagu
after Hon. Justice Lambo Akanbi of a Federal High Court sitting in
Port Harcourt had declared the NJC’s action of nominating only Hon.
Justice Daisy Okocha for appointment as chief judge as
unconstitutional.
The court in Port Harcourt therefore nullified the recommendation
of the NJC in appointing Justice Okocha as the Chief Judge of
Rivers State. The trial judge said Amaechi was not bound and could
not be compelled to swear-in the individual recommended by the
NJC.

But that decision did not go down well with the NJC. The council
said Justice Agumagu pretended to be unaware of the provisions in
the 1999 Constitution as amended with regards to the appointment of
a chief judge. NJC ignored the judgment and punished Justice
Agumagu. His sin: accepting the appointment to be chief judge.
Last year, at its 85th meeting held on the 14th of March, 2018, NJC
recommended the compulsory retirement of Mr. Justice Obisike Oji of
Abia State High Court to Governor Okezie Ikpeazu of Abia State. A
statement signed by the council’s director of information, Mr Soji
Oye read: “Hon. Mr. Justice Obisike Oji was earlier queried by the
council for allowing himself to be sworn-in as acting Chief Judge,
and thereby colluding in, and aiding an unconstitutional process.
His reply was unsatisfactory and the council recommended his
compulsory retirement.”
At the council meeting where the decision to sack Justice Oji was
taken, Justice Tanko Muhammad was the deputy chairman of the NJC.
Justice Walter Onnoghen was the chairman.

By the precedent established by the NJC, it was fairly settled
that a judge needs the permission or approval of the NJC to accept
appointment from the executive.
Fast forward to 2019, now that it is the turn of Justice Muhammad,
it appears this is no longer the rule. The council did not find
anything wrong in Muhammad accepting his appointment as acting
Chief Justice of Nigeria from President Buhari following the
suspension of Onnoghen.

The fact that the council chose to be silent on the decision it
took pertaining to the petition against Muhammad further raises
suspicion that the council was up to some mischief.
In the said statement, reference was only made to Muhammad in the
introductory sentence which read: “The National Judicial Council
reconvened today in an Emergency Meeting to consider the Report of
the Five-Man Committee constituted to investigate the allegations
of misconduct made against Hon. Mr. Justice W. S. N. Onnoghen, GCON
and Hon. Mr. Justice I. T. Muhammad, CFR.”

Nothing was said about the decision taken in respect to the
petition against the Acting Chief Justice. However, it has since
become public knowledge that the council gave the Acting CJN a
clean bill of health. That decision contradicts previous decisions
taken by the council in dealing with similar infractions. As a
dynamic institution, the NJC is entitled to change its rule and can
depart from its previous decisions. However, there ought to be
sufficient explanation to the public on this otherwise the NJC
risks losing credibility before the public.

As it is now, it is difficult to see the council as an impartial
organisation. Rather, it has left the public with the impression
that the council is an institution where different rules apply to
different judges, depending on whose interest is affected. If
Justices Agumagu and Oji could be kicked out for accepting
appointments from their governors, there is no reason for Justice
Muhammad to go scot free especially that he was part of the
decision to kick out one of the justices.

The council, in punishing judges, who allow themselves to be
used by the executives, appeared to be strengthening the
independence of the judiciary. The decision to waive this rule now
potentially threatens to erode the gains made in the past.

Also in the light of this decision, can Justice Oji and possibly
Agumagu write to the NJC for a review of their cases? Or at best,
will the NJC be willing to apologise to them by admitting that the
council made a mistake in punishing them for accepting the
appointments to be chief judges of their respective states? The
council may have a better explanation to justify its decision and
it will not be out of place to concede to it the benefit of the
doubt. It would however serve the council better if this is made
public. But in the absence of a cogent and verifiable reason to
justify its decision, NJC might have done an incalculable damage to
its credibility and independence.

There is a need, indeed, an urgent one for that matter for the
council to explain or justify its decision with respect to the
clearance given to the Acting CJN. Otherwise, the council may end
up being seen as a cheap and willing tool in the hands of advocates
of nepotism and sectional gratification.

Culled from Thisday