The unfolding episode of the suspension of Justice Walter Onnoghen as the Chief Justice of Nigeria and the swearing-in of Justice Tanko Muhammad in acting capacity brings to mind the cases of some judges who had in the past been caught in the web of executive lawlessness, ADE ADESOMOJU writes
President Muhammadu Buhari’s last Friday suspension of the Chief Justice of Nigeria, Justice Walter Onnoghen, and the immediate swearing-in of the next most senior Justice of the Supreme Court, Justice Tanko Muhammad, as the acting CJN are a reenactment of history in the Nigerian Judiciary, especially at the state level.
Buhari said he suspended the CJN based on an ex parte order of the Code of Conduct Tribunal, where Onnoghen had been charged with six counts of non-declaration of assets.
The CCT ordered Onnoghen to step aside as the CJN and directed the President to swear in the most senior Justice of the apex court, who happened to be Justice Muhammad, as the acting CJN.
The development shocked many, including the Nigerian Bar Association, which described the totality of the President’s actions, which were devoid of the input of the National Judicial Council, as a violation of the procedure for the removal and appointment of a person to the topmost judicial position in the country as provided for in the Constitution.
Both Justices Onnoghen and Muhammad are now faced with an uncertain future in their career as the NJC on Tuesday gave them seven days to respond to petitions written against them.
According to a press release by the NJC’s Director (Information), Soji Oye, the council took the decisions after considering four petitions filed at its secretariat.
The statement explained that the petition against Onnoghen was by Zikhrillahi Ibrahim of the Resource Centre for Human Rights and Civil Education while two petitions against Muhammad came from Centre for Justice and Peace Initiative, and Olisa Agbakoba (SAN).
The NJC also referred a petition against the CCT Chairman, Danladi Umar, to the Federal Judicial Service Commission.
If Onnoghen is punished at the end of the day, it will be because of grave allegations of misconduct levelled against him in the petition; for Muhammad, it will be for his siding with what has been described as a breach of the Constitution involving his submitting himself for swearing-in as acting CJN without the input of the NJC.
But the presidency and the Federal Government have, through their spokespersons, justified the President’s action which they said was in compliance with court order.
From Abia State, as recently as last year, to Plateau, Rivers, Kwara, and Ekiti states, one Chief Judge or the other had been removed or a new one appointed in manners which either the NJC or various courts, including the Supreme Court, had frowned on.
While none of the previous instances had been preceded by the filing of criminal charges or issuance of a court order of removal against the sitting heads of court as in Onnoghen’s case, they all shre the common feature of the absence of the NJC’s input.
Just last year, the NJC at its 85th meeting held on March 14, 2018 sanctioned Justice Obisike Orji by forcing him to proceed on compulsory retirement for allowing himself to be sworn in as the acting Chief Judge of Abia State without being recommended by the council.
Governor Okezie Ikpeazu of Abia State had sworn in Orji as the acting Chief Judge of the state following a resolution by the House of Assembly on January 26, 2018, suspending the then substantive Chief Judge, Justice Theresa Uzokwe, from office over allegations of misconduct.
The House had directed Governor Ikpeazu to appoint an acting Chief Judge pending the completion of investigation by its committee into Justice Uzokwe’s alleged act of misconduct.
Following the development, the NJC held an emergency meeting where it declared both the suspension of Justice Uzokwe by the House of Assembly and the swearing-in of Justice Orji in acting capacity as unconstitutional.
The NJC also directed the third most senior judge in the judiciary of the state to step in as the acting Chief Judge pending the conclusion of investigations of allegations of acts of misconduct levelled against Justices Uzokwe and Orji.
The NJC had said in a statement that, “The suspension of the Chief Judge of Abia State (Justice Theresa Uzokwe) by the State House of Assembly, without a prior recommendation by the National Judicial Council, violates the provisions of the Constitution of the Federal Republic of Nigeria.
“Consequently, the subsequent act of appointing and swearing-in of Hon. Mr. Justice Obisike Orji as the acting Chief Judge is invalid for being unconstitutional.
“Furthermore, the conduct of Hon. Mr. Justice Obisike Orji in presenting himself to be sworn in raises potential questions of misconduct that council is now looking into.
“Council therefore resolved to query and suspend Hon. Mr. Justice Obisike Orji pending the outcome of its investigation.”
Later in March 2018, following further investigations by its panel, the NJC said, “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.”
The NJC, also at the same meeting held on March 14, 2018, found Justice Uzokwe culpable and recommended her compulsory retirement.
Buoyed by the decision of the NJC on the Abia State case, a former President of the NBA and ex-member of the NJC, Dr Olisa Agbakoba (SAN), submitted a petition at the NJC requesting it to determine the propriety of Justice Muhammad accepting to be sworn in by the President in place of the suspended CJN, Justice Walter Onnoghen.
According to Agbakoba, by submitting himself to the President to be sworn in as acting CJN, Justice Muhammad lent himself to constitutional infraction by the executive arm of government.
Agbakoba recalled that Justice Muhammad was part of the NJC panel that sanctioned Justice Obisike Orji of Abia State.
Agbakoba said, “It is a matter of regret that Justice Tanko Muhammad, who participated in this process, will lend himself to this constitutional infraction. We pray the NJC to determine this petition in line with the decision in Justice Obisike Orji by immediately removing Justice Tanko Muhammad as Justice of the Supreme Court on grounds of gross misconduct which has generated perhaps the most controversial crisis in Nigeria’s judicial history.”
Like Plateau, like Ekiti
In the midst of the political tension which saw the controversial impeachment of Governors Joshua Dariye of Plateau State and Ayodele Fayose of Ekiti State in 2006, the judiciary in the states were also thrown into a turmoil.
Justice Yau Dakwang (retd.), then sixth in hierarchy among high court judges in Plateau State, was suddenly sworn in by then governor as the acting Chief Judge following the removal of the then incumbent.
The NJC in response suspended Dakwang for allowing himself to be sworn in without recommending him to the governor for appointment.
Later on January 16, 2007, he was compulsorily retired by the NJC.
Justice Jubril Aladejana, then a judge in the Ekiti State High Court, also received similar treatment for allowing himself to be sworn in as the acting Chief Judge of Ekiti State in the wake of the move to impeach then Governor Fayose in 2006.
Likewise, in March 2014, the NJC at an emergency meeting, suspended the then President of the Customary Court of Appeal of Rivers State, Justice Peter Agumagu, for offering himself for appointment as the acting Chief Judge of the state without being recommended by the NJC.
The NJC had said in a statement issued after its emergency meeting that Agumagu’s appointment and swearing-in by then Governor Rotimi Amaechi (now Minister of Transport) did not comply with the provisions of Section 271 of the 1999 Constitution.
It also alleged that Agumagu, by submitting himself for such appointment, failed to abide by his oath of office to uphold the Constitution and laws of the Federal Republic of Nigeria.
The statement by the NJC’s Director of Information, Mr. Soji Oye, read, “In the meantime, Council, in exercise of its powers under paragraph 21 (d) of Part 1 of the Third Schedule of the 1999 Constitution, has suspended Justice P. N. C. Agumagu from office as a judicial officer with immediate effect.”
The statement added that the NJC had directed that a query be issued to Agumagu to explain in writing within four days why he should not be removed from office as a judicial officer.
The trouble had started as a mere disagreement between the Rivers State Government led by then Governor Amaechi and the NJC in 2013 over the appointment of a new Chief Judge of the state.
Amaechi’s administration had preferred Agumagu, who was the President of the Rivers State Customary Court of Appeal, as its candidate, while the NJC had considered another judge in the state judiciary, Justice Daisy Okocha, more suitable for the position.
Setting the stage for a long-drawn battle, Amaechi went ahead to swear in Agumagu as the Chief Judge of the state without the judge being nominated for the position by the NJC.
The NJC responded by suspending Agumagu for allowing himself to be sworn in by the governor as the CJ without him being recommended by the Council in violation of constitutional provisions.
Setting the standard with Kwara
Justice Raliat Elelu-Habeeb was barely a year old in office as the Chief Judge of Kwara State when the state House of Assembly on May 4, 2009 invited her to appear before it in connection with a letter by the then Governor of the state, Dr Bukola Saraki, asking that she be removed from office on the grounds of her alleged inability to discharge the functions of her office.
The then governor, who is the current President of the Nigerian Senate, also, in support of his call for Justice Elelu-Habeeb’s removal, alleged that the Chief Judge’s alleged acts of misconduct contravened the code of conduct for judicial officers.
Elelu-Habeeb, who was on March 6, 2008 appointed as the Chief Judge of Kwara State by the governor on the recommendation of the NJC, had said she was not around on the day the letter was sent to her through the Chief Registrar of the state’s judiciary.
She was said to have directed the Chief Registrar to write to the House of Assembly, requesting the postponement of her appearance to a new date.
However, in what appeared to be an execution of a pre-planned agendum, the House of Assembly of Kwara State ignored the Chief Judge’s request for a new date and on May 5, 2009, barely 24 hours after sending her its invitation letter, sat, considered the governor’s letter and subsequently removed her from office.
Aggrieved at the development, she filed a suit before the Ilorin Division of the Federal High Court an originating summons on May 6, 2009 to challenge it.
Her main grouse was that her purported removal by the Governor and the Kwara State House of Assembly was without any query or disciplinary action against her by the NJC.
She maintained that the NJC was the only body with the constitutional power to initiate and exercise disciplinary control over her as the Chief Judge of Kwara State.
In its judgment delivered on July 23, 2009, the Federal High Court in Ilorin dismissed the preliminary objection filed against the suit and ruled in favour of the Chief Judge.
The matter ended at the Supreme Court, which on February 17, 2012 delivered judgment which established standard procedure for disciplining erring heads of courts.
Being a constitutional matter, the case was heard by a full Supreme Court panel of seven Justices, headed by the now retired Justice Mahmud Mohammed, who later became the Chief Justice of Nigeria.
Justice Onnoghen and five other Justices of the apex court gave their consenting opinions in support of the lead judgment, which affirmed the jurisdiction of the Federal High Court to hear the matter and upheld the case of Elelu-Habeeb to the effect that a Chief Judge could not be removed or disciplined without the input or participation of the NJC.
The apex court held that by virtue of Section 271(1) of the Constitution, the power of the governor of a state to appoint the Chief Judge of the state is not absolute as the power must be shared with the NJC, which must recommend suitable persons and the state House of Assembly which has to confirm the appointment.
Justice Mohammed in the lead judgment added, “It is in the spirit of the Constitution in ensuring checks and balances between the three arms of government that the role of the governor in appointing and exercising disciplinary control over the Chief Judge of his state is subjected to the participation of the National Judicial Council and the House of Assembly of the state in the exercise to ensure transparency and observance of the rule of law.”
Both the Attorney General and the House of Assembly of Kwara State had argued that Section 292(1)(a)(ii) of the Constitution conferred unfettered powers on the governor and the House to remove the Chief Judge on the grounds of misconduct.
The said section read, “A judicial officer shall not be removed from office or appointment before his age of retirement except in the following circumstances:
“(a) In case of:
“(ii) The Chief Judge of a state, Grand Khadi of a Sharia Court of Appeal or President of a Customary Court of Appeal of a state, by the governor acting on the address supported by two-thirds majority of the House of Assembly of the state, 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.”
Clearly, the cited provision does not recognise the role of the NJC in removing the Chief Judge, but in interpreting it, the Supreme Court said it could not be read in isolation of other relevant provisions of the Constitution.
Justice Mohammed said, “Although, it is true as argued by the learned senior counsel for the cross-appellant that the above section 292(1) made no provision for the National Judicial Council to play any role in the removal of a Chief Judge of a state, the fact that the Council has a vital role to play in the appointment, removal and exercising control over a Chief Judge of a state under Section 271 of the Constitution and also under paragraph 21 of the Third Schedule to the same Constitution is not at all in doubt.
“Furthermore, the conditions specified under Section 292(1)(a)(ii)of the Constitution for the exercise of the power of removal must be satisfied before such power can be validly exercised by both the governor and the Hose of Assembly.”
The apex court noted that the exercise of the power to remove a Chief Judge ahead of retirement age could only be based on “inability to discharge the functions of office or appointment; the inability to perform the functions of his office arising from infirmity of the mind or of the body; for misconduct and the contravention of the code of conduct.”
Justice Mohammed further explained that all the conditions or basis for the exercise of power to remove the Chief Judge must be investigated and confirmed by credible evidence placed before the governor and the House of Assembly before proceeding to exercise their power of removal granted by the section of the Constitution.
He also held that it was impossible to investigate any of the conditions without the input from the NJC “which supervision of how the Chief Judge discharges his functions as a judicial officer and which body also is directly responsible for exercising disciplinary control over the said state Chief Judge.”
He added, “It is for the foregoing reasons that I hold the view that in the resolution of the issue at hand, the entire provisions of the 1999 Constitution, in sections 153(1)(i)(2), 292(1)(a)(ii) and Paragraph 21of Part 1 of the Third Schedule to the Constitution of the Federal Republic of Nigeria 1999 dealing with the appointments, removal and exercise of disciplinary control over judicial officers, must be read, interpreted and applied together in resolving the issue of whether or not the Governor of a state and the House of Assembly of a state can remove a Chief Judge of a state in Nigeria without any input of the National Judicial Council.
“This is because the combined effect of these provisions of the Constitution has revealed very clear intention of the framers of the Constitution to give the National Judicial Council a vital role to play in the appointment and removal of judicial officers by the governors and Houses of Assembly of the state.
“In the result, I entirely agree with the two courts below that having regard to these relevant provisions of the 1999 Constitution the Governor of Kwara State and the House of Assembly of the state cannot remove the Chief Judge of Kwara State from office without the participation of the National Judicial Council in the exercise.”
As time passes, stakeholders are waiting to see how much of impact the Supreme Court’s judgment will have on the Onnoghen-Muhammad saga.