Justice Onnoghen reportedly resigned as the Chief Justice of Nigeria on the 4th day of April, 2019 a day after the National Judicial Council recommended his compulsory retirement to President Buhari. While some perceive what is currently happening in the Nigerian judiciary as judicial cleansing; others view it as an attack on the independence of the judiciary.

Argument’s abound as to whether or not Justice Muhammad Tanko can be made a substantive Chief Justice of Nigeria or be reappointed as an acting CJN.

Recall that Justice Tanko was conferred with the prestigious position of Acting Chief Justice of Nigeria since 23rd January, 2019 by President Muhammadu Buhari on the basis of an exparte order issued by the Code of Conduct Tribunal which recommended Justice Walter Onnoghens suspension in which the President acted accordingly. Therefore, the tenure of Justice Tanko as acting CJN will be expiring in two weeks’ time.

Section 231 of The Constitution is explicit on the issue and it provides thus:

  1. The appointment of a person to the office of Chief Justice of Nigeria shall be made by the President on the recommendation of the National Judicial Council subject to confirmation of such appointment by the Senate.

Subsection 4 says: if the office of the Chief Justice of Nigeria is vacant or if the person holding the office is for any reason unable to perform the functions of the office, then until a person has been appointed to and has assumed the functions of that office, or until the person holding the office has resumed those functions, the President shall appoint the most senior Justice of the Supreme Court to perform those functions.

Subsection 5 says: Except on the recommendation of the National Judicial Council, appointment pursuant to the provisions of subsection (4) shall cease to have effect after the expiration of three months from the date of such appointment, and the President shall not reappoint a person whose appointment has lapsed. (emphasis mine)

From the aforementioned provisions, it is clear that Justice Tanko is fit for further reappointment as acting CJN or appointment as a substantive CJN.

It will be recalled that on the 5th of April, 2019, the National Judicial Council recommended Justice Ibrahim Tanko Muhammad to President Buhari for appointment as a substantive CJN.

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