THE IRREGULARITIES ON THE ORDER OF THE CCT MOTION EXPARTE

The face of the Order clearly shows that it was not moved by a counsel. In other words, the Application was moved suo motu by the court and on its volition. This is indeed strange.

DID THE PRESIDENT EVEN COMPLY WITH THE ALLEGED ORDER BY THE CCT?

The answer is in the negative.

The President made heavy weather about complying with an Order from the CCT.

The President violated the alleged Order made by the CCT. A careful study of the enrolled Order shows that the Order only directed the CJN to STEP ASIDE as the Chief Justice of Nigeria and the Chairman of the National Judicial Council. Consequent upon the CJN stepping aside, then the second Order follows which is the order that the President swear in the most senior Justice of the Supreme Court.

But the President in paragraph 16, of his address stated thus “It is against this background that I have received the Order of the Code of Conduct Tribunal DIRECTING ME TO SUSPEND pending the final determination of the cases against him. It also explains why I am complying immediately… ”

Two things are glaring.

One, the President said he was directed to SUSPEND the CJN. The wordings of the alleged Order are clear and unambiguous. There is no such order directing the president to suspend the CJN!.

Two, the President stated that the Order from the CCT directed him to suspend the CJN “pending the final determination OF THE CASES AGAINST HIM”.  A glance at the Order will again reveal that the President did not comply with the Order he alleged he was complying with.

The Order from the CCT asked that the most senior Justice be sworn in pending the determination the determination OF THE MOTION ON NOTICE.

There is a clear difference between an Order made pending the determination of Motion on Notice and an Order Pending the final determination of the cases against him. While the former abates when the Motion on Notice is taken and determined, the latter enures till the conclusion of the entire trial.

In any case, a Motion Exparte cannot be made “Pending the final determination of the case”.

The above inconsistencies clearly reveal the intent of the president and the desperation of the Government to REMOVE the CJN.

CAN THE PRESIDENT ADD OR VARY THE ALLEGED ORDER OF COURT?

The answer is in the negative.

The President while pretending to be complying with the Order of the CCT cannot add to, remove or vary the order. That is the law.

IS IT PROPER TO ORDER THE CJN TO STEP ASIDE VIA AN EXPARTE ORDER.?

This again is in the negative

Exparte Orders are sparingly made and in situation of extreme urgency, compelling enough as to leave the court with no other alternative in preventing an anticipated injury of a grave nature. See Group Danone & Anor v. Voltic (Nig.) Ltd. (2008) 3-4 S. C. 32 

One is tempted to ask, what is the irretrievable damage or urgency involved that cannot wait till Monday, 28, 2019 being the next adjourned to warrant the grant of the Order?

In view of the nature of the Order, is it not deserving that the respondent be put on Notice, rather than via Exparte Order that are made without hearing the other party?

IS THE TRIBUNAL CLOTHED WITH THE REQUISITE JURISDICTION TO MAKE THE ORDER?

The answer is in the negative.

This is owing to the fact that the jurisdiction of the tribunal has been contested. In the circumstance, the only jurisdiction it has is to first decide whether it has jurisdiction and nothing more!

Authorities are legion that jurisdiction is the very basis on which any court tries a case; it is the lifeline of all trials. It is trite that the issue of jurisdiction is a threshold and is paramount and of great importance in the adjudication of any matter. Jurisdiction of a court has to do with the competence of the court to entertain and determine a matter.

Interestingly, the CCT had adjourned to January 28, 2019 to consider the application challenging its jurisdiction.

It is the law that where a court has no jurisdiction to hear or determine a matter before it, any step taken in relation to the matter is a nullity and void.” See also the case of NCC v. MTN (Nig) Comm. Ltd. (2008) 7 NWLR (Part 1086) 229 at 260 paras. A-B.

MYSTERY ON DATES:

The Petition against the CJN by the Anti- Corruption and Research Based Data Initiative (ACRBDI) was received by the Code of Conduct Bureau on the Wednesday 9th of January, 2019. The Charge was drafted on Thursday 10th January, 2019 and the Application to commence trial was filed on Friday 11th January, 2019. And the matter fixed for arraignment on Monday, January 14, 2019

It leaves one to wonder why the speed to put the CJN on trial, and how all steps towards his arraignment was concluded within a space of 2 working days.

Quite shockingly, even the purported Motion Exparte was dated 9th of January, 2019, the day the petition was received, even before the Charge was drafted.

HAS THE CJN’S RIGHT TO FAIR HEARING NOT BEEN SERIALLY VIOLATED.

The twin pillars of natural justice which are –

(1) let the other side be heard and

(2) one cannot be a judge in his own cause which are summed up in the Latin maxim

It is the duty of the court to create the environment for fair hearing in an egalitarian   manner for the benefit of the parties. Most especially in a criminal charge.

IS IT PROPER FOR THE TRIBUNAL NOT TO OBEY ORDER OF COURTS?

The answer is in the negative.

There are 3 subsisting Orders against the CCT. Also, there is an Order of the Court of Appeal. All restraining the tribunal from proceeding with matter.

It is trite that matters appertaining to judicial orders or judgments, for that matter, are not generally treated with arrogance or levity.  It is rather officious and treading on a perilous path for one to arrogate to oneself the right to choose and pick between court orders in terms of whether they are valid or null and void. In fact, since there is a strong presumption in favour of the validity of a court’s order, it behoves everyone to keep faith with the order of the court. It makes no difference that ex-facie it appears that the court that made the order is without jurisdiction because at the end of the day an order of the court subsists and must be obeyed until set aside by a court of competent jurisdiction.

To, therefore, disobey an order of the court on the fancied belief that the said order is null for any reason whatsoever – even if it subsequently turns out that the order in fact is proved to be null – is a risky and unadvisable decision because until the said order is finally determined to be null and void by the court. the order subsists with the string attaching to it unmitigated.” See Babatunde v. Olatunji (2000) LPELR-SC.148/1995 Per ACHIKE J.S.C. (P.23, paras. A-F).

IS THE PRESIDENT CONSTITUTIONALLY EMPOWERED TO SUSPEND THE CJN WITH OR WITHOUT AN ORDER FROM THE CCT?

The Legislature is the custodian of a country’s Constitution in the same way that the Executive is the custodian of the policy of Government and its execution, and also in the same way that the Judiciary is the custodian of the construction or interpretation of the Constitution.

This makes the 3 Arms separate. The Judiciary is not an appendage of the Executive.

There is no provision in our Constitution, the grund norm that authorises the President to suspend the CJN, in like manner, the CCT cannot make an order, asking the CJN to “step aside”, without any recourse to the Senate or the NJC.

It is also a principle of interpretation that the language of the Constitution where clear and unambiguous, must be given its plain evident meaning and that a Constitutional provision should not be construed so as to defeat its evident purpose. See Hon. Michael Dapianlong & Ors v. Chief (Dr.) Joshua Chibi Dariye & Anor (2007) 4 S. C.  (Pt. III) 18

It is good law that where the Constitution or a statute provides for a pre­condition to the attainment of a particular situation, the pre-condition must be fulfilled or satisfied before the particular situation will be said to have been attained or reached. Our common and popular expression is “condition precedent” See Inakoju & Ors v. Adeleke & Ors. (2007) 4 NWLR (Part 1025) 423, Per Niki Tobi JSC (as he then was) (of blessed memory)

From the above, it goes even without saying that the purported suspension of the Chief Justice of Nigeria, Honorable Justice Walter Onnoghen by President Muhammadu Buhari is unconstitutional illegal, undemocratic, null and void and has no legal footing whatsoever.

SEPREBOFA M. OYEGHE ESQ,Legal Practitioner.,seprebofaoyeghe@gmail.com

 

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