Senior lawyers yesterday disagreed on whether President Muhammadu Buhari needs to approve the resignation of the Chief Justice of Nigeria (CJN), Justice Walter Onnoghen.
Onnoghen, who was suspended from office on January 25 by the federal government for allegedly failing to declare part of his assets, tendered his resignation letter to President Buhari late on Thursday, it was learnt.
Surprisingly, the letter was sent to Buhari barely 24 hours after the National Judicial Council (NJC) reportedly recommended Onnoghen's compulsory retirement from service after investigating the allegations of misconduct levelled against him.
While a former President of the Nigerian Bar Association (NBA), Mr. Olisa Agbakoba SAN, advised stakeholders to wait for President Buhari's decision on Onnoghen's fate, his colleague, Mike Ozekhome (SAN), thinks otherwise.
Agreeing with the presidency, Agbakoba informed THISDAY that it would be difficult to determine whether Buhari will accept Justice Onnoghen's resignation or retire him as recommended by the NJC.
He said: "It is difficult to be sure as we need to wait to see whether President Buhari will accept Justice Onnoghen's resignation or retire him as recommended by the NJC. So, it is no clear at this stage."
Incidentally, Agbakoba's position was corroborated the view expressed by the presidency at weekend when it said President Buhari would take a decisive action on the career of the former Onnoghen when he comes back from his foreign trip.
Asked to confirm if Buhari was in receipt of the CJN's letter, the Senior Special Assistant (Media and Publicity) to the President, Garba Shehu, said: "What I will say to you is that on the Onnoghen matter, there is an important decision for the president to take upon his return. These things are in motion, and only the president can decide one way or the other."
But Ozekhome said President Buhari has no option than to accept the resignation since the NJC had recommended that he should be retired.
Ozekhome quoted Section the 306 of the1999 Constitution which states: (1) "Save as otherwise provided in this section, any person who is appointed, election or otherwise selected to any office established by this constitution may reign from office by writing under his hand addressed to the authority or person by whom he was appoint, elected or selected.
Subsection 2 states: "The resignation of any persons from any office established by this constitution shall take effect when the writing signifying the resignation is received by the authority or person to who it is addressed or by any person authoriised by that authority or person to receive it."
Ozekhome stated that going by the above section, the president has no choice but to accept the resignation.
On his part, Onnoghen's counsel, Chris Uche SAN, said it is not expected that the president would reject the resignation since it does not need the approval of the Senate.
Uche said the only thing that would stop the president from accepting the resignation is if the federal government has any hidden agenda or exhibits bad faith.
He added that since the NJC had recommended that the former CJN should be retired, it should not difficult for the president to approve.
"It is expected it would not difficult for the president to approve especially since the NJC has recommended that Onnoghen should be retired. Failure to approve it would further confirm that the federal government has agenda or an exhibition of bad faith."
Meanwhile, while it was not clear if Onnoghen's letter was resignation or retirement, his lead counsel, Chief Adegboyega Awomolo (SAN) at the weekend clarified that what the former CJN submitted to the president was a notice of retirement and not resignation as being speculated.
He said: "Why should he resign? He only gave a notice of retirement according to the dictates of the constitution of Nigeria and the due process of law. From January 15, he has been saying it that he would follow the due process of law, which empowers only the NJC to sanction him and he has been saying that he would abide by the decision of the council, the only body empowered by the constitution to sanction judicial officers. We believe in due process unlike the other party, which went to a magistrate court to obtain an order.
"Yes, he gave notice of retirement after NJC came to the conclusion it arrived at on Thursday, in the fulfillment of his conviction and stance that the council is the only body, constitutionally-empowered to sanction him. That is the position of the law and he has abided by it.
"Regarding the case at the tribunal, we are keeping an open mind and I can't tell you exactly when his retirement notice would take effect."
A senior lawyer who spoke to THISDAY last night, agreed with Awomolo, saying that since Onnoghen still has about 20 months in service, what he submitted to the president could not have been retirement but resignation.
The lawyer, who spoke on account of anonymity, said if Onnoghen chose to resign, he does not need the approval of the president to do it.
He submitted that retirement would not be a better option for the embattled CJN because his action could raise questions on why is retiring.
The lawyer added that retirement as an option could determine whether his entitlements should be paid or not and other benefits such as attending National Council of State meetings.
"Since Onnoghen still has about far over a year in service, what he submitted to the president could not have been retirement but resignation.
"If he chooses to toe that step, he does not need the approval of the president to do it."
"In fact, retirement would not be a better option for him because, so many questions would then be asked why he is retiring and if he has any bad record or questions to answer."
Onnoghen Resigned Because of EFFC Report
However, a renowned lawyer and Senior Advocate of Nigeria (SAN), Robert Clarke while reacting to the resignation of Onnoghen, said the former Chief Justice should have ignored those that egged him on and resigned earlier than he did.
Clarke said that if he had not resigned and government was able to prove the allegations preferred against him, he would have gone for it, but now that he had resigned, government might withdraw the case because "there is no need flogging a dead horse."
He also said that Onnoghen might have resigned because he knew the weightiness of the report the Economic and Financial Crimes Commission (EFCC) has against him, noting that if you commit sin and seek for forgiveness to God, God may forgive you but it is not so with government.
"He resigned because he knows what EFCC has on him. Government knows more than what ordinary citizens know and you can only know what they know when you go up there yourself. We should not be influenced by the political climate but look at issues as they are," he said.
Clarke affirmed that if the President accepts Onnoghen's resignation he would be due to collect all his entitlements, but noted that as at this moment the former Chief Justice could be deemed innocent because the allegations against him were still allegations.
He added that if he did not resign and the federal government sacked him, Onnoghen could take government to court unless he was defeated in court, but he could not have been dismissed on mere allegations.
Clarke also said that by bringing down a highly placed personality like the Chief Judge of the Federation it means that government is fighting corruption and he feels happy about that.