By Mike Kalu

The main thrust of the article titled: Acting CJN Muhammad: Between NJC Rule and Court Order written by Ahuraka Yusuf Isah and published on the Leadership Newspaper online portal rests on two main points .

1. That there is a distinction between rules and laws, more specifically that a distinction exists between the NJC Rule which mandates that before a judicial officer is appointed chief judge or a CJN the NJC recommendation must be obtained and the law that a court order must be obeyed and in this regard since laws have paramountcy over rules (which according to the writer are personal and changeable according to circumstances) the Acting CJN being caught between ‘the devil and the deep blue sea’ had no choice but to obey the law.

2. That Justice Tanko was acting in obedience to the order of court directing the president to suspend the then Chief Justice of Nigeria Justice W.S.N. Onnoghen and swear in Justice Tanko as the Acting Chief Justice of Nigeria and that the Ag CJN presented himself in obedience to the court order as he did not want to disobey the court order and be liable for contempt.

Without any equivocation, the point must be made from the onset that the attempt to draw a legal distinction between NJC Rules and the settled law on obedience of court orders in the particular context of the saga involving the suspension of the CJN, the swearing in of Justice Tanko as Ag.CJN and the consequent petition against the Ag. CJN to the NJC is specious, totally misconceived and probably designed to cause confusion where non exist. Addressing this point, it is important to note that in this particular instance there is no conflict whatsoever between the NJC rules and the position of the law on obedience to court orders such that the Acting CJN can choose to obey the law and disregard the NJC rules because it is not the NJC rules per se that mandates that the recommendation of the NJC must first be obtained before a judicial officer is appointed CJN but rather the provisions of paragraph 21(a ) of the Third Schedule of the Constitution of the Federal Republic of Nigeria 1999 as amended which is the supreme law of the land. This order gives the power to recommend a judicial officer for appointment as CJN to the National Judicial
Council. A proper order would have been directed to the NJC and not the President.

Having stated the above, it is necessary to state the sequence of events that led to the swearing in of the Ag. CJN which are as follows:

1. On the 9th of January, 2019, the Code of Conduct Bureau received a petition against the Chief Justice of Nigeria for breach of the code of conduct for public officers and a charge was filed on the 11th of January, 2019 before the Code of Conduct Tribunal.

2. On Friday 11th day of January, 2019, officials of the Code of Conduct Bureau came to the office of the CJN, Justice Onnoghen and obtained his written statement in response to the petition.

3. On the same Friday, 11th of January, 2019, the CJN was served with summons to appear for arraignment on the next working day being Monday, 14th January, 2019.

4. Alongside the charge, the Prosecution filed a motion on notice praying the court for the following orders:

a. “An interlocutory order directing the defendant/respondent to step aside as the Chief Justice of Nigeria and the Chairman of the National Judicial Council over allegations of contravening the provisions of Code of Conduct Bureau and Tribunal Act Cap C15 Laws of the Federation of Nigeria 2004 pending the determination of the case.

b. An interlocutory order of the Honorable Tribunal directing the President of the Federal Republic of Nigeria to take all necessary measures to swear in the most senior justice of the Supreme Court as Acting Chief Justice and Chairman of the National Judicial Council in order to prevent a vacuum in the Judicial Arm of Government pending determination of the case.”

5. The arraignment and the above motion on notice were fixed for 14th January, 2019. The CJN W.S. N. Onnoghen caused his Counsel to file a
motion on Notice dated 14th January, 2019 challenging the Tribunal’s Jurisdiction.

6. On the 14th of January, 2019 when the matter came up for hearing, the attention of the Tribunal was drawn to the motions filed i.e the motion on notice filed by the defence challenging the Tribunal’s jurisdiction and the motion filed by the prosecution asking the court to order the CJN to step aside and the President to take all necessary measures to swear in the most senior justice of the Supreme Court as Acting CJN. The Tribunal adjourned to the 22nd of January, 2019 for the hearing of both motions.

7. On the same 14th of January Court orders from the Federal High Court Abuja, the National Industrial Court and the FCT High Court were sought and obtained restraining the Chairman of the Tribunal, Danladi Yakubu Umar from taking further steps in the proceeding before the CCT and forcing the Honorable Justice Onnoghen from vacating his office and for parties to maintain status quo as it existed on the 14th of January, 2019. These orders of Court were served on the Chairman of the Tribunal and the NJC.

8. On the 17th of January, 2019 the Chief Justice of Nigeria caused an appeal to be filed at the Court of Appeal, Abuja in respect of the order of the Tribunal to hear both the prosecutions motion on notice and the Defendant’s motion challenging the Tribunal’s jurisdiction.

9. On the 21st of January, 2019, the Federal High Court in a matter filed by the Action People Party in which President Muhammadu Buhari and Hon.Justice Ibrahim Tanko were the 1st and 3rd Defendants respectively both of them alongside other parties in the suit were specifically mandated that status quo be maintained and parties must observe the rule of law by not doing anything that would tamper with the office of the Chief Justice of Nigeria. The order was served on all the parties including Justice Tanko and the President.

10. On the 22nd of January, 2019 when the matter came up for the second time before the Code of Conduct Tribunal, the motions could not be
argued as earlier scheduled by the court and proceedings were adjourned to the 28th of January, 2019.

11. On the 24th of January, 2019, the Court of Appeal issued an order staying all proceedings before the lower court.

12. On the 25th of January, 2019, the President purporting to be acting on the basis of an exparte order directing him to suspend the Chief Justice of Nigeria made a nation-wide broadcast suspending the Chief Justice of Nigeria and swore in Justice Tanko as the Acting Chief Justice of Nigeria in clear contravention of all subsisting orders and against the doctrine of lis pendis.

Before delving into the issue of obedience to court orders, it is apt to x-ray the exparte order granted by the Tribunal which supposedly formed the basis of the President’s suspension of the CJN. Without going into whether the CCT had power to make the order when its jurisdiction was being challenged, a thorough reading of the order indicates that no such directives to suspend the CJN was given by the CCT to the President. The first prayer of the order was directed to the CJN that he should step aside and then on that basis- in order that a vacuum not be created in the office of the CJN- the President should take all necessary measures to swear in the next most senior Justice of the Supreme Court as Acting Chief Justice of Nigeria. However, it is a fact well known that the said exparte order was not served on the Chief Justice of Nigeria and thus he could not possibly have obeyed an order of which he had no notice or knowledge about. Consequently, he was still the CJN when the President unilaterally arrogated to himself the powers given to the National Judicial Council and the National Assembly and suspended the Chief Justice of Nigeria without regard to due process and the clear provisions of section 292 of the Constitution of the Federal Republic of Nigeria (as amended) which stipulates how the Chief Justice of Nigeria can be removed from office. It The exparte order never directed the President to suspend the CJN.

As a high ranking judicial officer Justice Tanko had the bounden duty to ensure that if at all the President was acting in accordance with the order of the CCT that he abides with what is contained in the order and not import his own whims and expand the order beyond its ambit. Justice Tanko did not do this because he was obviously acting in bad faith and in his over-ambitiousness, he was willing to be sworn in as Ag CJN in violation of clear legal principles. Justice Tanko was not acting in obedience to any court order as no court order directed the President to suspend the CJN and if no such court order exist how then could the office of the CJN be vacant for Justice Tanko to be sworn-in as Ag. CJN?

It must be borne in mind that the CCT exparte order did not direct the President to swear in Justice Tanko. The President was only directed to take all necessary measues to swear in the next most senior Justice of the Supreme Court as Ag. CJN. Therefore, since the Constitution did not in anywhere empower the President to unilaterally appoint and swear-in a CJN, the measures in contemplation by the CCT order was for the order to be served on the NJC first and foremost and await the recommendation of the Council before swearing in Justice Tanko. Also, If Justice Tanko had not allowed his sense of judgment to be beclouded by selfish personal motives he would have persuaded the President to first ensure that the Chief Justice was served with the order to step aside and then upon the stepping aside, he (Justice Tanko) could then be sworn-in by the President in obedience to the said court order and upon prior recommendation of the NJC.

Thus there is no distinction between the case of Justice Obisike Orji who presented himself to be sworn-in as acting Chief Judge of Abia state without the recommendation of the NJC and Justice Tanko’s presentation of himself on the 25th of January, 2019 and his consequent swearing in as the Acting Chief Justice of Nigeria. Even before the case of Justice Obisike, it will be recalled that in Rivers State, the then Governor Rotimi Amaechi appointed Justice Peter Agamagu as the Chief Judge of Rivers State but same was rejected by the NJC headed by the then CJN Justice Muktar. The NJC had directed that Justice

Daisy Okocha be sworn in as Chief Judge of the state, a decision Amaechi refused to comply with. The NJC consequently queried and suspended Justice Agumagu as a judicial officer for allegedly violating Section 271(1) of the Constitution by submitting himself for confirmation by the state House of Assembly and swearing-in by the governor as the state’s substantive Chief Judge without being recommended by the council. The body claimed it acted pursuant to paragraph 21(d) of Part 1 of the Third Schedule to the 1999 Constitution of the Federal Republic of Nigeria, as amended.

The precedence in respect of the punishment meted out to erring judicial officers who present themselves to be so sworn-in without regard to law has thus been well established and Justice Tanko cannot be excused under any guise. Moreover, it has been established that Justice Tanko was not acting in obedience to any court order. Justice Tanko being a member of the NJC panel that sanctioned Justice Obisike Orji and forced him into compulsory retirement was well –informed of the current state of the law as regards the punishment for such acts of misconduct by judicial officers. The writer in positing that NJC rules are personal and changeable according to circumstances is really saying that the law should not be applied on Justice Tanko even when the circumstances are the same.

Furthermore, from the outline of events, it can be seen that four separate court orders from courts of competent jurisdiction were directed to the Chairman of the Tribunal to maintain status quo and not to take any action that would affect the office of the Chief Justice of Nigeria. Yet all these orders were disregarded. Specifically, the order obtained from the Federal High Court on the 22nd directed the President and Justice Tanko to maintain status quo, observe the rule of law by not doing anything that would affect the office of the Chief Justice of Nigeria. All these court orders were obtained before the 23rd of January, 2019 when the CCT granted the ex-parte order the basis upon which the president purported to have acted in suspending the Chief Justice of Nigeria and swearing in Justice Tanko. The writer of the article has painted a scenario in which Justice Tanko appeared to be put in a dilemma as to whether to obey the NJC rules or follow court orders but the elephant in the room is that there was a court order already directed to him yet he knowingly ignored
it, he went ahead to present himself to be sworn in even more so when the Court of Appeal- a superior court to the Tribunal- had stayed all proceedings before the Tribunal. The question is that as a high ranking judicial officer can Justice Tanko cherry pick the court orders he wants to obey? Can he be allowed to take refuge under the guise of ostensibly acting in obedience to court order by presenting himself to be sworn in as acting CJN while deliberately disregarding orders of court directing him to maintain status quo, obey the rule of law and not do anything that will affect the office of the Chief Justice of Nigeria? The principle of obeying court orders does not excuse Justice Tanko but rather condemns him given the fact that he was served with an order which was first in time to the order he purportedly obeyed in presenting himself to be sworn-in as Ag.CJN. He cannot, both in law and in equity be excused because he who comes to equity must come with clean hands!

It is elementary that for peace and order to prevail in society there must be no sacred cows, no selective application of the laws. It is not about Justice Tanko. It is about the sanctity of the law, it is about due process and respect for the rule of law. This illegality should and must not be allowed to stand as it portends ill for the institution of the Judiciary and for society at large.

Mike Kalu writes from USA

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