FG’s Case Against Onnoghen: Is History Being Replayed?

STEPHEN UBIMAGO writes that the action instituted by the Federal Government against the Chief Justice of Nigeria before the Code of Conduct Tribunal (CCT) is reminiscent of an earlier plot to stop Justice Walter Onnoghen’s emergence as CJN… The immediate past Chief Justice of Nigeria, Justice Mahmoud Mohammed, was barely a month away from retirement – scheduled then for November 10 – when operatives of the Department of State Services (DSS) raided the home of judges in different parts of the country during the wee hours of October 8, 2016. Among the judges whose homes were raided on that occasion was then Supreme Court Justice Walter Nkanu Onnoghen. It would be recalled that earlier, the National Judicial Council (NJC) had recommended his name to President Muhammadu Buhari for appointment as CJN to replace the retiring Justice Mohammed. Having reportedly found nothing with which to bring a criminal charge against Onnoghen, the DSS would quickly come out to apologise for raiding his Abuja official residence, saying the precipitous action was done in error. Perhaps if the DSS had managed to find incriminating exhibits during the raid, Onnoghen could have been harried into criminal trial, a development that could have worked against his elevation to the office of CJN. Wasn’t that the intention, after-all? Many observers wondered at the time. All told, President Buhari still did not appoint Onnoghen substantive CJN, for on the eve of the lapse of Justice Mohammed’s tenure, the President on Novemeber 9, 2016 only appoint him Acting CJN – the first time a CJN would be appointed in acting capacity in Nigeria’s judicial history. Suddenly insinuations began to make the rounds that the President was averse to appointing Onnoghen as CJN, first due to political considerations; secondly because he is not a Northern Muslim; and thirdly because it was seemingly against the 27-year old pattern that had only seen the office of CJN being occupied by Northern jurists in unbroken succession. Following this development, uncertainty began to dog the fate of Onnoghen as per the possibility that the President would ever appoint him substantive CJN. Well, the President never did despite protestation from many in the judicial circles. It was Professor Yemi Osinbajo, as Acting President, following Buhari’s departure to the UK for medical attention that eventually sent his name to the Senate for confirmation as substantive CJN on February 8, 2017. Fast forward to January, 2019 and history would seemingly repeat in Onnoghen’s matter, lending credence to the belief in many quarters that if left to the President alone, Onnoghen would never have become substantive CJN, as it appears the president has hatched yet another plot to rubbish the man and set the stage for his removal from office. What is the story? A petition was written against Onnoghen, the CJN, on January 7 by one Dennis Aghanya, a former media Aide to the President. Aghayan, who was also the former National publicity Secretary of Congress for Progressive Change (CPC), the party on whose platform Buhari had contested the 2011 presidential election, is also the founder of The Buhari Organization (TBO), a pro-Buhari group. The petition was submitted to the Code of Conduct Bureau (CCB) on January 9, two days after it was written. On the same January 9, the CCB sent the petition to the Code of Conduct Tribunal (CCT). On January 10 charges were filed against the CJN and he was served summons the following day January 11 to appear before the CCT on the next working day being Monday, January 14. And the uncanny swiftness of the whole development has not just left many Nigerians speechless but more exactly suspicious. This is against the backdrop that in just four weeks, Nigerians will be heading to the polls to elect a new President, for which many have expressed great concerns that given recent happenings in the polity the stage has apparently been set to return Buhari via massive rigging – a development that will end up in the Supreme Court that is currently being headed by Onnoghen as CJN. If the plot to arraign the CJN (who is the head of the nation’s judiciary) before the lowly CCT succeeds, that will go a long way in impugning his character and bringing his fitness for continuation in office to question. It is not impossible that with the development, a massive campaign will ensue for his vacation of office as CJN, so that the next in seniority in the Supreme Court, Justice Ibrahim Tanko Muhammad, a Northern Muslim, who perhaps will be more pliant to the alleged President’s scheme, will take over. And all this, if successfully hatched, is expected to take place during the pendency of Onnoghen’s projected trial that will naturally coincide with the election period and its aftermath that will be marked by election petitions before the various Election Petition Tribunals, including the Court of Appeal and Supreme Court. Thus the question arises: Is the case by the Federal Government against the CJN bona fide in light of the government’s vaunted anti-corruption mantra or is it a calculated plot informed by the exigencies of partisan politics? The Muhammadu Buhari presidency has seen a harvest of criminal charges being brought against judicial officers. For example, following the raid of judicial officers in October 2016, some of the affected judges had been brought for trial in various courts. The likes of Supreme Justices Okoro and Ngwuta, whose cases had earlier been brought before the courts, including the CCT, and summarily thrown out for lacking merit, are fresh judicial precedents that ought to serve as guide to Buhari’s legal advisers. If Onnoghen’s case were bona fide, the outcome of the duo’s case should have served as guides, as the duo is still sitting in the apex court as judges. The celebrated case of Justice Hyeladzira Ajiya Nganjiwa v. FRN, which had been resolved at the Court of Appeal to the effect that a judicial officer cannot be brought to criminal trial during the incumbency of his office save and until indicted by the NJC and removed from the bench, ought to have served as guide to the President’s legal advisers, if indeed the FG’s case against Onnoghen was bona fide. The facts in Ngajiwa’s case are to the effect: By a 14 count information dated June 8, 2017 Nganjiwa, a judge on the Federal High Court bench, was charged before a Lagos High Court for offences ranging from unlawful enrichment by a public officer to making false information contrary to Section 82(a) of the Criminal Law of Lagos State, No. 11, 2011 and Section 39(2) (a) of the EFCC (Establishment) Act, 2004. Upon being served with the information, Nganjiwa filed a Notice of Preliminary Objection challenging the jurisdiction of the trial Court to hear the case against him mainly on the ground that conditions precedent to the filing of the information had not been fulfilled. The Defendant formulated two issues to be resolved viz: 1. Whether the lower Court can validly exercise criminal jurisdiction over a sitting judicial officer (the Appellant) whilst still occupying such office without first satisfying the condition precedent of subjecting such judicial officer to the disciplinary jurisdiction of the National Judicial Council as provided for in the Constitution of the Federal Republic of Nigeria, 1999 (as amended). 2. Whether in view of the constitutionally guaranteed doctrine of independence of the Judiciary, the lower Court is right in reaching the conclusion that the executive arm of government (acting through the  EFCC or any other authority) can directly prosecute a sitting judicial officer without first following due process as provided for in the Constitution by first referring the matter by way of petition to the National Judicial Council.” In its ruling delivered on June 23, 2017, the trial court dismissed the preliminary objection. Miffed with the said ruling, Nganjiwa appealed to the Court of Appeal. In a unanimous decision, the appeal was allowed, and the ruling of the Lagos State High Court delivered on June 23, 2017, was set aside. Nganjiwa’s preliminary objection filed on June 13, 2017 was upheld and Charge No.LD/4769C/2017 was struck out. If the doctrine of stare decisis or judicial precedent is anything to go by in light of Nganjiwa, it may be pointed out rather easily that the case of the FG against the CJN is dead on arrival. It will not fly because it is procedurally flawed.]]>