The controversy over the suspension of the Chief Justice of Nigeria, Hon. Justice Onnoghen by President Buhari assumed another dimension last week, with two separate, but interrelated developments: a suit reportedly filed by the Senate at the Supreme Court to challenge it, and the 7-day ultimatum issued by the NJC to both the CJN and his stand-in, Justice Muhammad, to respond to petitions of misconduct levelled against them. The former development supposedly compelled the Upper House of the National Assembly to defer consideration of the matter in a plenary session, as it ordinarily would have done. Unfortunately (or, fortunately, depending on which side of the debate you are on), the Senate Leader (the leader of the majority party in the Senate, the All Progressive Congress), Distinguished Senator Ahmed Lawan, promptly issued a press statement in which he distanced the APC caucus from the move.
According to him, the matter was never discussed by the Senate as a body and, accordingly, no resolution was passed by the Senate to authorise it. So, who gave the instruction to do so? That is the question. Clearly, the disclaimer by the APC Senate caucus has thrown a spanner in the works and directly questioned the validity of the suit. At the risk (once again) of breaching the sub judice rule, one cannot but wonder about its credibility. Assuming it was duly authorized by a valid resolution of the Senate, what happens to the plethora at least 5 (at the last count) similar suits currently pending in various courts on the issue? What is the legal position of such a scenario?
As for the latter, I believe it raises a number of troubling questions: what are the prospects of the NJC being fair to either or both men, particularly Justice Muhammad? This question is pertinent because of the structure and composition of the NJC. By virtue of Paragraph 20 of Part 1 of the Third Schedule to the Constitution, the CJN directly appoints fully 19 out of the 25 members of the NJC. Of the remaining 5,they consist of the CJN himself (who is the Chairman), the Acting CJN, (the Deputy Chairman), the Chief Judge of the Federal High Court and the President of the National Industrial Court – two judges of which have issued separate orders in favour of the Justice Onnoghen in relation to the allegations which the NJC is now investigating.
Can the NJC realistically be expected to be fair to the Acting CJN in the circumstances? Should anyone be genuinely surprised if the NJC exonerates the CJN? It remains to be seen. Suffice it to say that the apex court in LPDC vs. FAWEHINMI (1985) 2 NWLR pt. 7 pg. 300 @ 390, held that: “if there are any circumstances so affecting a person or body of persons called upon to determine the rights of fellow human beings as to be calculated to create in the mind of a reasonable man a suspicion of those persons’ impartiality, those circumstances in themselves and by themselves alone, are sufficient to disqualify the person or persons from adjudicating”.
Basis of the Senate’s Intervention
The Senate apparently filed the case to assert its position under Sections 231(1) and 292(1)(a)(i) of the 1999 Constitution, which confer it with the power of confirming the appointment or removal, respectively, of the Chief Justice, amongst other judicial officers. That is fair enough: any attempt to by-pass the Senate in the circumstances contemplated by those constitutional provisions (as is clearly the case with the suspension of the CJN) would suggest a prima case of breach of, at least, the latter.
But, why the Supreme Court?
This is the million-naira question. This poser is not unwarranted, and is prompted by the fact that the Supreme Court is ordinarily a court of last resort, the final court in the judicial hierarchy, which only acts after other courts lower than it have had their say and the loser exercises his or her right of appeal thereto. This is, indeed, the case by virtue of Section 233 of the Constitution. However, the apex court does have a limited original jurisdiction under Section 232(1) of the Constitution to adjudicate over disputes “between the Federation and a State or between States”. Strictly speaking, therefore, the ongoing controversy over the CJN’s suspension would appear to be unprovided for under the Constitution, at least as far as the original jurisdiction of the Supreme Court is concerned.
However, Section 1(1)(a) of the Supreme Court (Additional Original Jurisdiction) Act, 2002, confers the Supreme Court with original jurisdiction in respect of “any dispute between the National Assembly and the President”. The conditions under which this jurisdiction may, however, be invoked are spelt out, inter alia, in Section 2 and Paragraph 2 of the Schedule to the Act thus:“No legal proceedings shall be instituted by or on behalf of the National Assembly except upon the resolution which has been passed by both Houses of the National Assembly by a simple majority of the members of each House present and sitting at the time the resolution is put to vote”.
Needless to say, only the Senate is involved in this situation. Accordingly, only a simple majority of Senators is required to approve its said litigation. The cracks in the Senate over such an approval have obviously raised doubts about the trajectory of the suit. How far will it go? Only time will tell. Justice Onnoghen warned us not to engage in such speculation a year ago. Suffice it to say that in GANI vs. UBA (2000) FWLR pt. 13 pg. 2227 @ 2239B, the Court of Appeal held that “where there is non-compliance with a stipulated condition for setting a legal process in motion, any suit initiated in contravention of the precondition is incompetent and the court is equally incompetent to entertain the suit”.
What about the other pending litigations?
This is yet another dimension to the matter. The Senate did not initiate any of the other 5-odd pending legal challenges to Justice Onnoghen’s suspension. Four of them are on-going at the Federal High Court, the High Court of the FCT, the National Industrial Court and the Code of Conduct Tribunal – whilst an appeal from the last is pending at the Court of Appeal. Notwithstanding the similarities of their subject matters (and the said provisions of Section 1(1)(a) of the Supreme Court (Additional Original Jurisdiction) Act), the Senate’s case at the Supreme Court is somewhat incongruous.
This is because it puts the other courts lower to the apex court who are handling the other suits in an awkward position, as the Senate is, through its action, asking the Supreme Court to overreach those courts and resolve the self-same dispute over the heads of the latter, notwithstanding the fact that theirs were earlier in time. No value judgement on the propriety of this will be made as it would be grossly inappropriate. Suffice it to say that in REGD TRUSTEES OF THE LIVING CHRIST MISSION vs. ADUBA (2000) FWLR pt. 6 pg. 911, the Supreme Court held that where two courts are faced with substantially the same questions, it is desirable that the questions are debated upon in only one of those courts.
The apex court held further that where two proceedings are pending simultaneously before Court ‘A’ and Court ‘B’, and the one in the former relates to a number of issues, only one of which is raised in Court ‘B’, it is preferable that the lone question in Court ‘B’ be determined by Court ‘A’, since a resolution by that court will dispose of all the issues, including the lone issue raised before Court ‘B’.
Beyond this, more worrisome, in my view, is the undeniable fact that both the CJN and Justice Muhammad are colleagues of all the judges of the same Supreme Court which is now tasked with determining their respective fates, if not professional careers. There is surely a sense in which the apex court is being asked to choose its own head. Does the court have that power under the Constitution? It remains to be seen. Besides, it cannot be seriously argued that all the serving Justices of that August body are already familiar with the details of matter with which they are now directly confronted. This is clearly undesirable, because the apex court itself has held that foreknowledge of the facts of a case disqualifies a court on the ground that it is likely to influence his or her mind. See ADIGUN vs. ATT-GEN. OF OYO STATE (1987) 1 NWLR pt. 53 pg.678 @ 724.
Seldom in our constitutional history have all three arms of government – the Executive, the Judiciary and the Legislature – been locked in such a seeming battle for supremacy. In this unique three-cornered face-off, all bets are off. Who blinks first?
Abubakar D. Sani, Esq. Kano.08034533892