Why the Suspension of Chief Justice of Nigeria May Become a Precedent in Nigeria History

How Nigeria Judicial Independence has been derailed if not totally lost…..

CJN Justice Walter Onnoghen

Before detailing the story line, it is important to unequivocally state that judicial precedents, verdicts and rulings and judgement in a court of competent jurisprudence becomes law. According to Black’s Law Dictionary, in common law legal systems, precedent is a principle or rule established in a previous legal case that is either binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts.

Common-law legal systems place great value on deciding cases according to consistent principled rules, so that similar facts will yield similar and predictable outcomes, and observance of precedent is the mechanism by which that goal is attained. The principle by which judges are bound to precedents is known as stare decisis.

Based on this premise, the suspension of Justice Walter Onnoghen the Chief Justice of Nigeria by President Muhammadu Buhari has caused constitutional crisis. The CJN who is standing trial over allegations of fraudulent declaration of assets at the Code of Conduct Tribunal was suspended based on ex-parte order from the Chairman of the Code of Conduct Tribunal Justice Danladi Umar to the president and subsequent appointment of Justice Muhammad Tanko as acting CJN. There has never been a period like this for the Nigerian Judiciary in its history. And how the institution muddle through this muddy water will determine their future and that of Nigerians.

CCT Chairman Danladi Umar

It took legal practitioners by surprise when the case on the subject was adjourned by the CCT only for a day after without notice for the CCT to issue an ex-parte order for the suspension of the CJN. This was against the ruling of other appellate courts, the Court of Appeal, the National Industrial Court and two Federal High Courts, which had already ordered for stay of proceedings in the Tribunal.  The Chairman of code of conduct tribunal by his decision did not recognise the jurisdiction of those court, neither did it take due process into consideration. This article takes the stand that if such vicious act of disregard for court processes and due process is allowed to stand, it will become modus operandi for the Nigeria judicial system.

While responding to a petition against him by Incorporated Trustees of the Centre for Justice and Peace Initiative on the ground of abuse court process forwarded by the Federal Judicial Service Commission (FJSC). The CCT Chairman in his response, said that he is not answerable to any institution but the presidency. In the response obtained in a document marked CCT/HQ/FJSC/S/01 and dated, February 6, 2019, which was addressed to the acting Chairman of the FJSC, Umar said himself and other members of the Tribunal are “not judicial officers” and as such were not subject to judicial institutions such as the FSJC and the NJC”. “With regard to the prayer of the petitioner for an appropriate sanction against the chairman, it is important to note that the chairman and members of the tribunal, not being judicial officers, are not constitutionally subject to any disciplinary proceedings by either the National Judicial Council or the Federal Judicial Service Commission but the Presidency”.

He went further to state that “the petitioner alleged that judicial oaths were breached and that the National Judicial Council should consider appropriate sanctions. It is to be noted that the chairman and members of the Code of Conduct Tribunal are not judicial officers. This is predicated on the fact that the chairman and members of the tribunal, during swearing-in, only subscribe to official oaths and not judicial oaths. Therefore, not being a judicial officer, I did not subscribe to judicial oaths as alleged.”

On the decision of the CCT to grant the suspension order, he said it was within his power to do so, but refused to comment further as the matter was still in court. A letter dated May 18, 2015, and marked NJC/CIR/HOC/1/74, was also attached to Umar’s response, signed by Justice Mahmud Mohammed, who was the CJN at the time. According to the letter, Mohammed had asked the CCT to stop referring to themselves as justices as they were not judges. The decision was made pursuant to Paragraph 15 (1 and 2) of Part 1 of the Fifth Schedule of the 1999 Constitution of the Federal Republic of Nigeria. He, therefore, rejected the authority of the National Judicial Council (NJC) and the Federal Judicial Service Commission (FJSC), saying he is not a judicial officer.

This also follows as the Tribunal issued a bench warrant for the arrest of the Chief Justice of Nigeria, against all other Court of competent jurisdiction ruling on the matter for a stay of proceedings and the NJC appeal to the Tribunal and the federal government to hands-off the case so it could investigate the Chief Justice as it’s the body constitutionally equipped to do so. It can only be described as a state of quagmire and brouhaha the contradicting statement of the CCT on this issue. How the executive arm as the CCT chairman claims he belongs to can unilaterally suspend Chief Justice of Nigeria, who is the head of the Judiciary, an independent body from the executive. How the CCT is within its right to suspend the chief Justice of Nigeria while disobeying previous ruling for stay of proceedings by other higher courts. 

This constitutional crisis created by the executive disregard for due process and by Nigeria constitutional standards, unconstitutional and undemocratic approach to this issues, has created unnecessary tension when the nation is heading to a crucial general election where the office of the president, governors and legislatures are going to be contested. It is alleged that this meddling in the judiciary by the executive is a ploy by the ruling party, the All Progressive Congress APC to take control of the judiciary which gives redress to election petitions through its Election Tribunal and the Supreme Court and appoint judges that will adjudicate to their favour as election approaches.

This constitutional crisis has drawn the criticism from the international community, the United States, European Union have all called for the parties involved to respect the rule of law and follow the democratic process as enshrined in the constitution in the course of their action. The United Nations special rapporteur on the independence of judges and lawyers, Diego Garcia-Sayán, also stated that President Muhammadu Buhari’s decision to suspend Walter Onnoghen, former Chief Justice of Nigeria, was in contravention of human rights standards. Garcia-Sayán said in a statement that “the suspension and replacement of the Chief Justice of Nigeria by the country’s President is in contravention of international human rights standards on independence of the judiciary and the separation of powers”. “International human rights standards provide that judges may be dismissed only on serious grounds of misconduct or incompetence,” he added. “Any decision to suspend or remove a judge from office should be fair and should be taken by an independent authority such as a judicial council or a court. “The dismissal of judges without following procedures laid down by the law and without effective judicial protection being available to contest the dismissal is incompatible with the independence of the judiciary.”

Senior Advocates like Dr. Olisa Agbakoba,SAN reacted with shock to the manner with which the CCT is conducting its affairs with total disregard for due process and going far to issue a  bench warrant against the Chief Justice of Nigeria, CJN, Walter Onnoghen. Agbakoba stated that” I am shocked that the Code of Conduct Tribunal will issue a Bench warrant for the arrest of Hon. Justice Walter Onnoghen, knowing full well that its jurisdiction to try the case has been challenged and the Application on challenge is on the CCT docket, and no hearing has occurred”. “The CCT is aware that there is now before the National Judicial Council, a petition against Justice Walter Onnoghen on exactly the same charges at the CCT”. “The CCT ought to await the outcome of the pending matters in the NJC, Appeal Court and Federal High Court. The conduct of the CCT subverts the Rule of Law and due process”  he concluded.

This is a trying time for the Nigeria Judiciary as an independent institution, and it is hoped and expected that the organisation stands up for its body instead of individual lawyers and justices. That they ensure, that the right thing is done and show erring judges the way out while protecting their independence and maintaining their fairness and neutrality. This because, if this meddling in the affairs of the judiciary is allowed to stand, then it will become a precedent, 100 years to come, the executive arm of government shall cite these action by the CCT Chairman as a basis to interfere in the judiciary in any form it deems fit, by that time, individuals that may be presently trying hard to promote one cause or the other or protect their current position or interest of one group will be no more, and by then, the independence of the Nigerian Judiciary must have been rolled away never to be restored, because judicial precedents have consequence, and they stand the test of time.