How Acting CJN Landed in ‘Trouble’ After 4 Days in Office

When the National Judicial Council (NJC) gave the Chief Justice of Nigeria (CJN) Walter Onnoghen and the acting CJN Tanko Mohammed seven days to respond to petitions against them, it was just four days after President Muhammadu Buhari appointed Mohammed as the acting CJN.

The crisis in the highest echelon of the nation’s judiciary came after the Code of Conduct Bureau (CCB) filed a six-count charge against CJN Onnoghen on January 11 over allegations of false asset declaration as contained in Section 15 of the CCB and Tribunal Act, Laws of the Federation of Nigeria, 2004. The CJN had since challenged moves to take his plea before the Code of Conduct Tribunal (CCT).

The move by NJC as the highest controlling body for the judiciary to demand a reply from both senior justices came as a surprise to most observers because it points to a scenario where the acting CJN could face possible sanction just days after he was sworn-in.

When the meeting of the NJC was announced in the weekend following President Buhari’s suspension of Justice Onnoghen and the inauguration of Justice Mohammed in acting capacity on January 25 based on an ex parte order of the CCT made on January 23, the expectation was that the meeting will deal with the issue of the substantive CJN.

A professor of Law at the Ahmadu Bello University, Zaria, Prof Tawfiq Ladan had explained that the least he expects from the NJC is to sustain the suspension already imposed on the CJN by the President to allow his trial to continue at the CCT.

But in a statement by the Director of Information, Soji Oye after the meeting on Tuesday January 29, the NJC directed Justice Ibrahim Tanko Mohammad to respond to two petitions against him, one by the Centre for Justice and Peace Initiative, and another petition by Olisa Agbakoba (SAN).

The council also directed Justice Onnoghen to respond to a petition against him by Zikhrillahi Ibrahim of Resource Centre for Human Rights & Civil Education.

Oye also stated that another petition against the Chairman of the Code of Conduct Tribunal (CCT), Danladi Umar by the Centre for Justice and Peace Initiative was referred to the Federal Judicial Service Commission (FJSC).

The FJSC has powers under Paragraph 13 of the Third Schedule to the 1999 Constitution to advice the NJC in nominating persons for appointment as CCT chairman.

While the petition against CJN Onnoghen borders on alleged non-declaration of assets, the petition by Agbakoba against Justice Mohammed is on allegations of presenting himself to be sworn-in as acting CJN without the recommendation of the NJC. Details of the petition by the NGO has not yet been ascertained. The senior lawyer cited the case of Justice Obisike Orji whom a panel of the NJC, which also had Justice Mohammed as member, recommended his compulsory retirement.

“The Constitution is clear about the procedure for suspending or removing the Chief Justice of Nigeria. The Chief Justice of Nigeria can only be removed on the recommendation of the NJC. See Section 153(1), Paragraph 21 (a) of the 3rd Schedule and Section 292 (1) (a) (i) of the Constitution of the Federal Republic of Nigeria 1999 and Supreme Court in Elelu-Habeeb v AGF (2012) 40 WRN 1,” Agbakoba wrote.

“Hon. Justice Tanko Mohammed is fully aware of the state of law, yet presented himself to be sworn in by the President. Incidentally, Justice Tanko Mohammed was a member of the NJC panel that removed Justice Obisike Orji of the Abia State High Court for accepting to be sworn in as the Chief Judge by the Governor of Abia State without recommendation of the NJC.

“It is a matter of regret that Justice Tanko Mohammed 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 Mohammed as Justice of the Supreme Court on grounds of gross misconduct which has generated perhaps the most controversial crisis in Nigerian’s judicial history.”

The NJC had at the 85th meeting on March 14, 2018 found Justice Orji’s response unsatisfactory after he was queried for allowing himself to be sworn-in as acting CJ of the state, “and thereby colluding in, and aiding an unconstitutional process.”

Governor Ikpeazu swore-in Justice Orji after the State Assembly found the Chief Judge of the state, Justice Theresa Uzoukwu, guilty of misconduct in a petition by the Attorney

General of the state, Kalu Umeh (SAN) alleging that she ran a parallel Judicial Service Commission, and for misconduct in Suit No: HU/131/2005 in a judgment of N825, 000 in favour of the litigant but subsequently signed a garnishee order of N109.6m.

But reacting to the case against the acting CJN, an Abuja-based lawyer, Hamid Ajibola Jimoh, said the case of the acting CJN would be handled on its merit and not necessarily in relation to the Abia case.

“I do not think that Hon. Justice Tanko Mohammed has done anything wrong legally by accepting appointment as acting CJN. Did he influence the appointment? More so, why did CJN Onnoghen suspend the NJC meeting of January 15, 2019?” Jimoh submitted.

“That someone wrote petition against another does not mean the allegations were true until investigated, especially all allegations against the acting CJN should be taken with care and credence because the surrounding issues and facts around and necessitating the petition might be politically, sentimentally, retaliatory.

“Also, the ex parte order of the CCT is, as of this moment, valid, subsisting and binding in law until set aside by either the issuing court or an appellate court,” he added.

Also, a senior lawyer who understands the activities of the NJC, Murtala Abdulrasheed, also expressed lack of surprise that the NJC failed to make any definite pronouncement on the matter in the first meeting because of the nature of its operations.

Explaining NJC’s rules and procedure, he said when the petition is received, a committee will be set up to look into it after which a recommendation will be made to the president to either to retire or otherwise.

He noted that the president is not bound to comply with the recommendation of the NJC, citing the case of former President Goodluck Jonathan and President of the Court of Appeal (PCA), Justice Ayo Salami in May 2012, which the former president did not do until his retirement.

“Nothing was decided on whether the suspension of the CJN should be vacated or not,” he said

“The NJC by its decision did not torpedo the action already taken by the President,” he added.

Beside the action expected to be taken by the NJC, subject to its powers to discipline and control judicial officers as provided in Paragraph 21 of the Third Schedule of the 1999 Constitution, several courts are also hearing suits on the issue of the CJN’s suspension, including the criminal trial at the CCT and the suit by the Senate before the Supreme Court.

Abdulrasheed said the Supreme Court suit by the Senate may not address the current concerns or remedy the steps that have been taken in the nation’s judiciary.

“If the Supreme Court makes a decision today, it cannot take a retrospective effect,” he said. “But it would serve to guide for future occurrence.”

For his part, Barr E.M.D. Umukoro said the functions of the NJC and CCT are separate and therefore none can stop the other. He however, suggested that the way to go is for the NJC to determine the issues quickly to make the constitution clear to all concerned.

The main focus for other stakeholders is whether a political solution could be found so that both the CJN and acting CJN are made to step down so that the sanctity of the judiciary can be restored.