Some of the members of the recently dissolved members of the Code of Conduct Bureau still want to be reinstated to office; they filed a suit to block the constitution and the confirmation of a new board, ADE ADESOMOJU reports
Two conflicting letters of advice were issued by the Office of the Attorney General of the Federation and Minister of Justice concerning the tenure of the chairman and other members of the Code of Conduct Bureau during the time that Mr. Mohammed Adoke (SAN) held sway as the nation’s chief law officer.
The first letter of advice, dated March 5, 2012 and issued by the AGF office, indicated that, based on the provisions of the Constitution, the chairman and members of the CCB were to hold the office for a five-year tenure.
Later, another letter, dated May 13, 2014, emanated from the same office, indicating that the tenure of the CCB members would end upon their attaining the age of 70 years.
The beneficiaries of the latest letter of advice were appointed in June 2010.
They were the then Chairman of the board, Mr. Sam Saba, and members comprising, Dr. Ademola Adebo, Chief Stephen Festus Bekefula, Alhaji Disina Mohammed, Dr. Christy Ekoja, Alhaji Ibrahim Manzo, and Mr. Okechukwu Ikechi Nwadinobi.
But two civil society groups – Kingdom Human Rights Foundation International and the Save Nigeria Group – were dissatisfied that members of the board were still in office as of June 2016, contending that board’s tenure ought to have ended in 2015.
So, in June 2016, the two groups, through their lawyer, Mr. Okere Nnamdi, filed a suit marked, FHC/ABJ/CS/411/17, before the Federal High Court in Abuja, challenging the board members’ continued stay in office.
President Muhammadu Buhari, the AGF, and the Chairman of the CCB were the three defendants.
On April 28, 2017, Justice Binta Nyako delivered judgment in the suit, declaring that the tenure of the board members appointed in 2010 had since expired in 2015.
Interpreting sections 153 and 155 of the Constitution, Justice Nyako explained the various statutory categories of members of the board and the manner of their tenures.
According to the judge, the first category covers persons, including a chairman, who is are ex-officio member.
She explained that a member of the board under such category “will remain a member as long as he is still in the office that made him a member.”
Another category, according to the judge, covers a person who is a member of the CCB because he or she held a particular office before.
Such member, the judge said, would be a member of the board for his or her lifetime.
The third category has to do with members who are to remain in office until they attain the age of 70 years.
But the judge explained that those in the last category must not be less than 50 years of age at the time of their appointment and they must vacate office once they attain the age of 70 years.
She said, “It is not in dispute that the Code of Conduct Bureau is a creation of the Constitution by virtue of section 153.
“Section 155 provides for the tenure of chairman and members of the bodies created under section 153 including the Code of Conduct Bureau.
“Sub-section 1, paragraph (a) provides that where a person is a member (including a chairman) who is an ex-officio member will remain a member as long as he is still in the office that made him a member.
“Once he is no longer in that office, he will stop being a member of the Code of Conduct Bureau.
“Paragraph (b) provides for a member that is a member because he held a particular office before, he shall be a member of the board for his lifetime.
“Paragraph (c) provides that any other member that does not fall into the above two categories, shall be a member for five years.
“I believe there is no problem with the above provisions.
“The problem appears to be with the provisions contained in the schedule.
“This schedule provides that the Code of Conduct of Bureau shall have a chairman and nine members.
“The condition for their appointment includes that they must not be less than 50 years of age at the time of their appointment and they must vacate office once they attain the age of 70 years.”
Noting that the AGF office made a somersault by issuing the later letter, she held that all the CCB members that fell under the third category by being appointed by virtue of Section 155(1)(c) of the Constitution were expected to spend five years in office.
She ruled, “There is no confusion in this. The Honourable Attorney General of the Federation, in Exhibit CCB ‘C’, has given advice on this and that advice is the correct position of the law, this Exhibit is dated March 5, 2012.
“On May 13, 2014, the same Honourable Attorney General of the Federation did a somersault and gave another advice, Exhibit CCB ‘D’, contrary to the earlier good advice.
“The tenure of a chairman and member of the Code of Conduct of Bureau is five years if appointed by virtue of section 155(c), provided that he is not below 50 years of age at the time of his appointment and irrespective of whether his five years is spent or not, the tenure will lapse once he attains the age of 70 years.
“As an example, if he is appointed at the age of 67, he will cease to be a member once he turns 70 years even though he would have only served for three years.
“Consequently, the tenure of members of the Code of Conduct Bureau and any person appointed as a Chairman or member of any of the bodies created by Section 153 of the 1999 Constitution pursuant to Section 155(1)(c) is five years.
“So any chairman or member appointed by virtue of section 155(1)(c)of the 1999 Constitution in April 2010, has a five-year tenure that should end in April 2015.
“Consequently, I answer all the questions in the affirmative and declare as per declaration 1.”
The judge, however, declined other prayers sought by the plaintiffs, stating, “I cannot make declaration 2 as I have no evidence before me as to why they are still in office and in what capacity; I also cannot make declaration 3, as I have no evidence as to why the Honourable Attorney General of the Federation gave two conflicting advices (sic) on the same issue, and order as per relief sought…..”
In response, the chairman of the CCB filed an appeal before the Abuja Division of the Court of Appeal against the judgment.
He also, on May 3, 2017, filed a motion on notice seeking an order of the Federal High Court which delivered the judgment to stay execution of the verdict pending the hearing and determination of the appeal.
The application, filed through their counsel, Anulika Osuigwe, was anchored on four grounds and also supported by a six-paragraph affidavit.
The application was accompanied by a four-ground notice of appeal filed before the Court of Appeal in Abuja to challenge the judgment of the Federal High Court.
The appellant’s lawyer argued, in the notice of appeal, that the judge erred in law by holding that the Chairman and members of the Code of Conduct Bureau were only entitled to a five-year tenure.
The appellant also contended that the five-year tenure provided by Section 155 of the 1999 Constitution was a general provision applicable to the executive bodies.
He maintained that Part 1 of the Third Schedule to the 1999 Constitution provided for a specific tenure of up till the attainment of the age of 70 years for the chairman and the board members.
He further argued that section 1(4) of the Code of Conduct Bureau and Tribunal Act Cap, C15 Law of the Federation of Nigeria 2004, equally had similar provision.
The appellant also argued that the judge erred in law by holding that the tenure of office of the current chairman of the CCB and the board members, who were all appointed by the then President Goodluck Jonathan in April 2010, had expired in 2015.
While this was pending, Vice-President Yemi Osinbajo, who was then acting as President in the absence of President Buhari, on June 12, terminated the appointment of the board members, and approved the appointment of new members subject to confirmation by the Senate.
Nominated by Osinbajo as the chairman of the new board was Dr. Muhammad Isah, from Jigawa State (North-west Zone).
The 10 others nominated members of the board are Murtala Kankia, Katsina (North-West zone); Emmanuel E. Attah, Rivers (South-South zone); Danjuma Sado, Edo (South-South zone); Ubolo I. Okpanachi, Kogi (North-Central zone); and Madaki Alkali, Nasarawa (North-Central zone).
The rest are Prof. S. F. Ogundare, Oyo (South-West zone), Ganiyu Hamzat, Ogun (South-West zone), Sa’ad A. Abubakar, Gombe (North-East zone) and Dr. Vincent Nwanli, Ebonyi (South-East zone).
But while the new nominees were waiting to be confirmed by the Senate, five of the former members – Adebo, Nwadinobi, Ekoja, Bekefula, and Manzo – filed a new suit before the National Industrial Court of Nigeria, challenging their removal from office.
The former chairman, Saba’s name was conspicuously missing on the list of the claimants who initiated the suit.
President Buhari, the Senate, the AGF, and the yet-to-be confirmed chairman and members of the bureau were joined as defendants in the suit marked, NICNABJ/194/2017.
The National Industrial Court and the Federal High Court in Abuja which earlier delivered the April 28 judgment are courts of coordinate jurisdiction.
But despite the Federal High Court, the five plaintiffs, in their fresh suit sought among others “a declaration that by provisions of section 157(1) of the 1999 Constitution, the claimants can only be removed from office by the President acting on an address supported by two-third majority of the Senate praying that they be removed for inability to discharge the functions of office (whether arising from infirmity of mind or body or body or any other cause) or for misconduct.”
In addition to seeking an order “reinstating” them as members of the CCB and to remain in office until they were 70 years old, the claimants are also seeking “an order of perpetual injunction restraining the President from forwarding names of the fourth to 13th defendants or any other names to the Senate and the Senate from screening and confirming the fourth to the 13th defendants or any other persons as chairman and members of the Code of Conduct Bureau unless for the purpose of filing available vacancies or the claimants are removed from office in the way and manner prescribed by law”.
But the come-back bid of the former members continues to generate other twists. They filed a motion seeking an interlocutory injunction restraining the relevant authorities from constituting the new board members.
A vacation judge of the NIC in Abuja, Justice Waziri Abali, on August 28 gave a warning to the authorities not to go ahead with the constitution of the new board while the suit by the former members was still pending.
This followed an announcement by the then Acting President Osinbajo directing the nominees to resume in acting capacity pending their confirmation by the Senate.
The former board members through their lawyer, Mr. J.U.K. Igwe (SAN), appeared before Justice Abali, on August 29, 2017, praying for an interim injunction.
Ruling, Justice Abali noted, “the applicants are now apprehensive in view of the present situation as averred in the applicants’ affidavit in support of motion on notice dated August 21, 2017, paragraph, that in a televised broadcast on the Nigerian Television, agents of first and third defendants/respondents, directed the fourth to the 13th defendants/respondents to resume their positions as chairman and members of Code of Conduct Bureau, pending confirmation by the second defendant (the Senate).”
Quoting some of the authorities cited by the claimants, he said, “The Court of Appeal in H.R.H Eze Michael Anyaoha V. Chief Godson Obioha & 3 Ors (2014) 6 NWLR (Pt 1404) 45-481 Paragraph E-G in stressing the duty on parties to preserve the res pending the determination of application for injunction, held, “upon an application for an order of injunction, all activities affecting the respond respondents are automatically terminated or put on hold as a mark of respect to the court before which the application is pending.
“Where an adverse party ignores a notice of the pending application for injunction and continues as nothing has happened, he cannot use his legal position to create a status quo….I agree and I hold.”
But our correspondent was informed that the President of the NIC had yet to assign the case to a new judge, since Justice Abali concluded sitting as a vacation judge on September 8, 2017.
Meanwhile, aside the warning issued by Justice Abali, the Senate seems not to be yet ready for the confirmation of members of the CCB, more than three months after the names of the nominees were reported to have been sent to the upper legislative chamber.
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A Report Of The Judgement Of The 16 Divisions Of The Court Of Appeal In Nigeria