19 April 2019

Nigeria: The Many Travails of Justice Walter Onnoghen

When the news broke that the Chief Justice of Nigeria, Walter Nkanu Onnoghen would be arraigned at the Code of Conduct Tribunal (CCT) January 14, the immediate response of Nigerians, especially the legal community was that of shock and unbelief. It had never happened in the history of the country.

Onnoghen was the most senior judicial officer in the country and there is a well-settled position of both the trial and appellate courts that being a judicial officer, he must first be subjected to the discipline of the National Judicial Council (NJC) prior to prosecution. However, the arraignment happened despite the public outcry, followed by "suspension" by President Muhammadu Buhari on the order of the CCT and the swearing-in of Justice Ibrahim Tanko Mohammed as Acting Chief Justice of Nigeria.

The ominous signs that Onnoghen was in for hard times began when based on the recommendation of the NJC on October 13, 2016, President Buhari appointed him, being the most senior Justice of the Supreme Court, as the acting CJN on November 10, 2016, following the retirement of Justice Mahmud Mohammed, but refused to transmit his name to the Senate for confirmation. The Federal Judicial Service Commission had on October 5, 2016 recommended Justice Onnoghen to the NJC for onward recommendation to President Buhari.

It is important to note that Onnoghen was the first Southerner in 30 years to hold that office. The last CJN from the South was Justice Ayo Irikefe, who occupied the office in 1987. Unfortunately, the president was reluctant in forwarding his name to the Senate for confirmation after he was recommended by the NJC and appointed acting CJN as required by law. Despite public outcry and media interventions, his name was never sent to the Senate until his first three-month tenure in acting capacity expired on February 10, 2017.

Likely to foist serious constitutional crisis on the country, the then acting president, Yemi Osinbajo, three days after the expiration of his constitutionally recognized time within which to act as CJN, transmitted Onnoghen's name to the Senate for confirmation. Ironically, Onnoghen was one of the Supreme Court justices who in dissent judgment upheld the election of president Buhari in 2007.

In that case, Buhari against the Independent National Electoral Commission (INEC) and others, 2008, AC/51/2008, he delivered a dissenting judgment and nullified the 2007 election on the grounds of substantial non-compliance with the Electoral Act. He equally handed down the profound decision in Amaechi Vs INEC reported in 2008 by Nigerian Weekly Law Report, Pages 10 to 80. Those notwithstanding, the presidency was just not comfortable having him preside over the judiciary.

His recent travails, which culminated in his downfall started with a petition by one Dennis Aghanya who claimed that Onnoghen infringed the Code of Conduct for public officers. Aghanya is said to be a former aide to Buhari. The petition received speedy attention by the Code of Conduct Bureau (CCB). It is doubtful that CCB had sufficient time, if at all, to investigate the allegation, contrary to paragraph 3(e) of the Third Schedule to the 1999 Constitution which mandates the bureau to "receive complaints about non-compliance with or breach of the provisions of the Code of Conduct or any law in relation thereto, investigate the complaint and, where appropriate, refer such matters to the Code of Conduct Tribunal."

Instead, charges were promptly drafted and filed within 24 hours and arraignment slated for the third working day. The apparent haste fuelled speculations of a high-profile plot to oust Onnoghen, whose appointment suffered inexplicable delays as well. Following legal fireworks, the CCT adjourned till Monday, January 28, 2019 to hear the application challenging its jurisdiction to determine the charge. There was also a pending application by the prosecution praying the tribunal to direct Onnoghen to "step aside" until the determination of the case.

The tribunal suddenly reconvened within 24 hours after it had adjourned and with only two of its three members delivered a ruling on an earlier ex-parte application dated January 9 "directing" Buhari to "suspend" Onnoghen. The suspension threw up more fundamental issues. While the prosecution had argued that its ex-parte application was merely seeking an order asking Onnoghen to "step aside," a point reinforced by Buhari in his address at the swearing-in of Justice Mohammed, the pertinent question was whether Onnoghen could be suspended in the manner done.

Lawyers contended that the Constitution does not anticipate suspension of the Chief Justice of Nigeria or any of the heads of court listed in Section 292 of the Constitution except perhaps by the National Judicial Council. Further, there is no apparent lacuna on the issue. Accordingly, the recourse to the tribunal through an ex-parte order is fraught with legal loopholes. It is further contended that the only route available to the prosecution or the Federal Government is that set out in Section 292 of the Constitution. In fact, the Constitution is equally specific that removal of judicial officers pursuant to infractions of the Code of Conduct by judicial officers can only be done through the NJC.

On the disciplinary powers of the NJC over judicial officers, Section 153(i) of the 1999 Constitution establishes the NJC while paragraph 21(b) of the Third Schedule to the 1999 Constitution vests the NJC with the power to "recommend to the President the removal from office of the judicial officers specified in sub-paragraph (a) of this paragraph and to exercise disciplinary control over such officers," including the Chief Justice of Nigeria.

It is instructive that in Nganjiwa v Federal Republic of Nigeria (2017) LPELR-43391 (CA), the Court of Appeal validated this inflexible constitutional provision when it held that a judicial officer cannot be proceeded against without a verdict from the National Judicial Council.

The court had held as follows: "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."

In fact, the tribunal had on May 15, 2018 discharged Justice Sylvester Ngwuta of the Supreme Court on charges of non-assets declaration among others. Relying on the Nganjiwa judgment of December 2017, the two-man panel of the tribunal unanimously held that any other body, court or tribunal could not interfere with the disciplinary powers of the NJC.

Justice William A. Atedze said: "This means that any allegation of official misconduct will first have to be referred to the NJC to the exclusion of any other body, court or tribunal." It is recalled that Justice John Tsoho of the Federal High Court was also discharged on similar grounds. Members of the legal community are of the view that the decision handed down to Onnoghen would be upturned at the appellate courts, just as similar case against the Senate President, Dr. Bukola Saraki. Onnoghen, who will be 69 years old by December 22, is a native of Biase Local government area of Cross Rivers State.

He obtained his first Law degree from the University of Ghana, Legon in 1977, with a second Class Upper Division and attended the Nigerian Law School, Lagos.He was a former Cross River State high court Judge before he was appointed an appeal court judge in 1998, and subsequently appointed to the apex court in 2005. He would have retired in December 22, 2020 at the attainment of the mandatory 70 years old retirement age.

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