analysisBy Mike Ozekhome
Lagos — I read with bemusement and even amazement the frenzied and impassioned arguments that raged on in the judicial landscape three weeks ago about the propriety or otherwise of the former Chief of Nigeria, the Honourable Justice Idris Legbo Kutigi, GCON swearing in his successor, the Honourable Justice Aloysius Iyorgyer Katsina-Alu, CON.
WHAT THE CONSTITUTION SAYS
There is nowhere in the 320 sections and 7 schedules of the 1999 Constitution where it is provided that only the President of Nigeria must swear in a new Chief Justice.
Section 290 of the said Constitution which deals with "Declaration of Assets and Liabilities, Oaths of Judicial Officers Seventh Schedule" provides as follows:
"(1)A person appointed to any judicial office shall not begin to perform the functions of that office until he has declared his assets and liabilities as prescribed under this Constitution and has subsequently taken and subscribed to the Oath of Allegiance and the Judicial Oath prescribed in the Seventh Schedule to this constitution."
"(2)The oaths aforesaid shall be administered by the person for the time being authorized by law to administer such oaths."
It is clear beyond dispute from this provision that Section 290 does not disclose who administers "the Oath of Allegiance and Judicial Oath prescribed in the Seventh Schedule". It merely prescribes that "the Oaths aforesaid shall be administered by the person for the time being authorized by Law to administer such Oaths."
THE OATHS ACT, CAP 01
It is to the Oaths Act, Cap. 01 Laws of the Federation of Nigeria, 2004 that we must turn for interpretative succor. This section therefore compliments section 290(2) of the 1999 Constitution. It is the section that states who administers an Oath of office and allegiance on a public or judicial officer as provided for by section 10(1) of the Oaths Act:
"It shall be lawful for the Chief Justice of Nigeria, a Justice of the Supreme Court, the President and Justices of the Court of Appeal and any Judge of the Federal High Court, a notary public, and any commissioner for oaths, to administer any lawful oath or to take any lawful affirmation or affidavit which may require to be taken or made for the purpose of complying with the requirements of any law for the time being in force throughout Nigeria or elsewhere, except where such procedure is expressly or by necessary implication manifestly excluded by the terms of such law as aforesaid and the presumption shall be against any such exclusion"
The above procedure has not been "expressly or by necessary implication manifestly excluded by the terms of such Law as aforesaid (the 1999 Constitution) and the presumption shall be against any such exclusion". This section rather than derogate from the 1999 Constitution which does not prescribe the administration of the Oath actually augments and gives it life.
By Section 10 aforesaid, it means that the former Chief Justice of Nigeria, any Justice of the Supreme Court, the President, and Justices of the Court of Appeal and any Judge of the Federal High Court, a notary public, and any commissioner for oaths could have lawfully administered the Oath of office and Allegiance on the new Chief Justice of Nigeria.
The Oaths of Allegiance and Office are provided for in the Seventh Schedule to the 1999 Constitution. Only one Judicial Oath is provided for all judicial officers. Thus, whether it is the Chief Justice of Nigeria or Magistrate, the same oath is administered on them.
However, the Oaths Act incorporated by the 1999 Constitution is more elaborate. Apparently, not wanting to permit a mere Commissioner for Oath or Notary Public to administer the Oath on an incoming Chief Justice of Nigeria even though such is legal and constitutional, it specifically provides, very significantly, a second schedule. Under this section, "the President or the Chief Justice of Nigeria" can administer the Oath of allegiance on the Chief Justice of Nigeria, Ministers, Parliamentary Secretaries, Attorney-General of the Federation, Justices of the Supreme Court, President and Justices of the Court of Appeal, Army, Naval and Air Chiefs of Staff, Permanent Secretaries, and Inspector General of the Police.
This is all that the former Chief Justice of Nigeria, the Honourable Justice Kutigi did. He was perfectly right and within the Law. Indeed, his action should be eulogised to the high heavens because had he not done so, Nigeria would have found herself in a needless Constitutional crisis of monumental proportions which many Nigerians appear to be feverishly working towards.
For the avoidance of doubt and to underscore the importance of the position of the Chief Justice of Nigeria, only he can administer the Oaths of office and allegiance on the President of Nigeria (Section 2(1), 2nd Schedule to the Oaths Act).
WHAT IF NO OATH WAS ADMINISTERED ON THE NEW CHIEF JUSTICE OF NIGERIA?
Section 3 of the Oaths Act specifically prohibits unnecessary repetition of Oaths.
"(1)Except in the case of the President, no person has duly taken the Oath of Allegiance or the Judicial Oath in Nigeria as provided in this Act shall be required again to take that oath on appointment to any other office or any other occasion".
Indeed Section 4 of the Oaths Act which deals with omission or irregularity as to an oath went further to provide that:
"Nothing in this Act shall render, or be deemed to render or be deemed to have rendered invalid any act done or which hereafter may be done by a public officer in the execution or intended execution of his official duties, by reason only of the omission by the public officer to take any oath or to make any affirmation which the officer should take or should have taken or should make or should have made:"
It is therefore crystal clear that the new Chief Justice of Nigeria, if he had desired, need not even have taken any fresh oath as he will merely be repeating the Judicial Oaths of Office and Allegiance that he had taken as a High Court Judge and, Court of Appeal and Supreme Court of Justices. The fresh oath is otiose and superfluous. But it was well intended: expression unius est exclusion alterius: INEC v PDP (1999) 11 NWLR (Pt. 262) 174 at 191,193 (C.A.); OSAHON v FRN (2003) 16 NWLR (Pt. 845) 89 at 119, (C.A.); ABACHA v FRN (2006) 4 NWLR (Pt. 970) 364, (S.C.); ABACHA v FRN (2006) 4 NWLR (Pt. 970) 239 at 309-310, (C.A).
However, those who brewed a storm in a tea cup over this non sequitur should be rest assured and their fears allayed, that every action taken by the new Chief Justice of Nigeria are valid in law, Constitutional, lawful and proper.
The issue of two Chief Justices existing pari passu which kite some people flew did not even arise. This is because as soon as Justice Kutigi administered the Oath of Office on Justice Katsina-Alu, his tenure automatically without more, expired by effluxion of time. I salute the courage and foresight of these two great minds and rare jurists of impeccable credentials and uncommon judicial pedigree.
Chief Ozekhome writes from Lagos