On the 25th day of January 2019, President Muhammadu Buhari, GCFR, relying on an Exparte Order from the Code of Conduct Tribunal (CCT) suspended the Chief Justice of Nigeria (CJN), Hon. Justice Walter Samuel Onnoghen and forthwith appointed Hon. Justice Ibrahim Tanko Mohammad as the CJN in an acting capacity.
This unprecedented action of the President was greeted with mixed reactions. Consequently, two schools of thoughts have emerged – made up of legal pundits, eminent Nigerians, political/public affairs analysts, Civil Societies, the ordinary man on the street and indeed the International Community – the US, UK, EU.
Those opposed to the action of the President whom I refer to as the Conventionists, relied on Section 292 (1) (a)(i) & (b) of the Constitution of the Federal Republic of Nigeria 1999 (hereinafter referred to as the Constitution) and the much-discussed Supreme Court decision in HON. JUSTICE RALIAT ELELU-HABEEB & ANOR. V. THE HON. ATTORNEY GENERAL OF THE FEDERATION & ORS (2012) LPELR-SC.281/2010 to argue that the President lacked the constitutional power to remove the CJN. The Conventionists are those who hold the firm view that the provisions of the Constitution are sacrosanct and should be followed to the latter.
On the other hand, the other school of thought whom I refer to as the Actionist, argued that the President merely suspended the CJN and that after the conclusion of the CJN’s trial at the CCT, the CJN can resume his duties as the CJN if he is cleared by that Tribunal. The Actionists argued that there is a wall of difference between removal and suspension and that what the President did was to suspend the CJN. Incidentally, Prof. Itse Sagay, SAN is a frontline proponent of this school of thought. The Actionists hinged their arguments on Section 11 of the Interpretation Act, Laws of the Federation to back the President’s action. The Actionists are those who believe that the exigencies of the time warrant the action of the President – in order words, they hold the view that the doctrine of necessity applies.
This article exclusively seeks to inquire whether the President has the powers to suspend the Chief Justice of the Federation (CJN) relying on section 11 of the Interpretation Act as being touted by the Actionists. This is without prejudice to the merit of the serious allegations levelled against the Chief Justice of Nigeria (CJN).
Section 11 of the Interpretation Act provides thus:
“Where an enactment confers a power to appoint a person either to an office or to exercise any functions, whether for a specified period or not, the power includes-
- power to appoint a person by name or to appoint the holder from time to time of a particular office;
- power to remove or suspend him…”
A careful look at the said Section (particularly my underlining) reveals that it deals with appointments mentioned in “Enactments” and NOT appointments in the Constitution like that which bothers on the appointment of the Chief Justice of Nigeria (CJN) or other appointments of Public Officers. The appointment and removal of the CJN is a constitutional matter.
The Constitution of the Federal Republic of Nigeria is NOT an ENACTMENT as used in the Interpretation Act. I make bold to say this point and this point should be noted in parenthesis. It is therefore pertinent to explain the meaning of an Enactment. “Enactment” is defined in Section 37 (1) of the same Interpretation Act to mean “any provision of an Act or Subsidiary Instrument”. Again, I reiterate that the Constitution is NOT a product of an Act of the National Assembly neither is it a Subsidiary Instrument.
What then is an Act? The same section 37 (1) of the Interpretation Act defines “Act” to mean “an Act of the National Assembly, whether passed before or after the commencement of this Act, and includes this Act and an instrument made before the first day of October, 1960, in so far as the instrument has effect as an Act”
The next question is – what is a Subsidiary Instrument? A Subsidiary Instrument is defined by section 37 (1) of the Interpretation Act to mean “any order, rules, regulations, rules of Court or bye-laws made either before or after the commencement of this Act in exercise of powers conferred by an Act.
The Interpretation Act has, with ease, explained the meaning of the word, “Enactment” as contained in section 11 thereof. The reference to the word, “enactment” in the Interpretation Act is reference to “any provision of an Act or Subsidiary Instrument” which does not include the Constitution.
Therefore, examples of the provisions of an “Act” within the meaning of the Interpretation Act is the provisions of the EFCC Act, the ICPC Act, the Federal Road Safety Act, the Federal High Court Act, The Police Act, the CBN Act, the Interpretation Act, etc. because they are products of the National Assembly and were assented to by the President. Examples of the provisions of “Subsidiary Instrument” within the meaning of the Interpretation Act are the provisions of the Rules of Court (Federal High Court Rules, National Industrial Court Rules, FCT High Court Rules etc.), Local Government Bye-laws, Orders of Courts, regulations etc.
In a nutshell, the import of section 11 of the Interpretation Act is that where an enactment (for instance, the provisions of the EFCC Act or other Acts of National Assembly or any Rules of Court, Order, Regulations) confers a power (on the President or any other person) to appoint a person to an office or to exercise any functions, the power includes power to remove or suspend him (that is the person so appointed). Section 11 of the Interpretation Act deals with appointments in Enactments; the said section commences thus: “where an enactment…”
The Constitution does not fall with the meaning of an Act or Subsidiary Instrument. The Constitution has a special place amongst all our Laws. The Constitution is an Enabling Law. Every other law – be it Enactment or Subsidiary Instrument derive their strength from the Constitution and any law that is inconsistent with the Constitution is void to the extent of its inconsistency. Equating the Constitution to an enactment or a Subsidiary Instrument is like disparaging or demeaning the Constitution of this Country. The Constitution was made by Nigerians and bequeathed to Nigeria by Nigerians. This is evident from the preambles to the Constitution itself.
No law in Nigeria provides for the suspension of the Chief Justice of Nigeria (CJN). Therefore the Chief Justice of Nigeria cannot be suspended from office by the President or any other person; the CJN can only be removed from office pursuant to section 292 (1) (a)(i) & (b) of the Constitution. The power to suspend the CJN perhaps exists only in the figment of imagination of the President and those who advised him to embark on such a spurious voyage.
To take my argument further, I dare say that it is not even correct to say that the President appointed the Chief Justice of Nigeria (CJN). To say that the President appointed the CJN would only mean that the CJN is an appointee of the President and that the President has the power to hire and fire the CJN. The appointment of the CJN is the collective responsibility of three persons – the President, the Senate and the National Judicial Council (NJC). See section 231 (1) of the Constitution. The President can only be said to appoint a person when there was no input from any other person. That is to say, the President took a unilateral decision in such appointment – although he has the right to do so. For instance, the President appointed all the Service Chiefs, the SGF, his ADC, Presidential Media Aids, the head of paramilitary organisations, etc. without recourse to the National Assembly or the Judiciary. These persons so appointed by the President can rightly be said to be the appointees of the President and the President can fire them without even giving them reason(s) for his action(s).
I align myself with the Conventionists school of thought. Section 11 of the Interpretation Act does not confer any power whatsoever on the President to suspend the Chief Justice of Nigeria (CJN). Section 11 made reference to an enactment. The section reads thus: “where an enactment confers a power to appoint a person…” It is my contention that the constitution is NOT an enactment within the meaning of the Interpretation Act. Assuming without conceding that the Constitution is an enactment, it is my contention that it still did not confer power on the President to appoint the CJN to enable the President suspend the CJN unilaterally – this is because the appointment of the CJN was not done by the President alone in the first place. Three persons took part in the appointment of the CJN – the President, the Senate and the National Judicial Council (NJC). Therefore, the removal of the CJN (in whatever guise) requires the action of the President and the Senate or the President and the National Judicial Council (NJC) as provided in section 292 (1) (a)(i) & (b) of the Constitution.
This is my humble submission.
AHMED TIJANI YUSUF, ESQ NOTARY PUBLIC OF NIGERIA,07061388076; 08054375584
Ahmed Tijani Yusuf, Esq is an Abuja based Legal Practitioner, human right activist and a Notary Public of Nigeria.
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