Last week when I wrote to advise the lawyers and judges on the pending election petitions that may follow the 2019 General Elections, I touched briefly on the face-off between the Federal Government of Nigeria (FGN) and Chief Justice of Nigeria (CJN) under what I called FGN Vs CJN : A CALL FOR CAUTION where I said :
“Hon. Justice Walter Samuel Nkanu Onnoghen, the Chief Justice of the Nigeria (CJN) is in the news. By virtue of his lordship’s position, he is the number one judicial officer in the country. When I first came across the news headline that there is plan to arraign him before the Code of Conduct Tribunal (CCT) by the Federal Government, my initial reaction was that this might be one of the fake news. But by the way the news continues to assume the status of breaking news; I said serious attention must be focused on this news. With this latest news in town, series of arguments have continued to fly here and there on the propriety of docking the CJN before the Code of Conduct Tribunal. The present government seems to be making a similar mistake made by the PDP government, its predecessor when it suspended Hon. Justice Isa Ayo Salami, the former President of the Court of Appeal.
“Whether the CJN has a question to answer or not, docking him at this moment may be another exercise in futility. As at today, the law seems to be on the side of the CJN as interpreted by the Court of Appeal in the case of NGANJIWA Vs FGN (2017) LPELR -43391 (CA) where it has been held that any misconduct concerning the office and functions a judicial officer must first be referred to the National Judicial Council (NJC) for its own finding and recommendation on such judicial officer. Although in this present circumstances, a fear may be entertained by the prosecuting authority that by allowing the Chairman of the NJC to sit as a judge in his own course may not serve the interest of justice. The solution to this is that the CJN in such situation must not sit in the council when issue concerned him is being deliberated upon. I think this is a classical case where one will say those clamouring that the NJC be headed by a former Chief Justice of Nigeria rather than the incumbent CJN are being justified. Do you remember the conflict between Hon. Justice Katsina –Alu and Justice Isa Salami?
“No matter how genuine the intention of the Federal Government in the present circumstance in its fight against corruption, it has gotten the present one against the CJN wrong as people would read politics into this. What worth doing worth doing well .If the prosecuting authority refuses to put its house in order and follow the due process of law , it bounds to suffer a great defeat in the hands of over 150 SANs who have volunteered to defend the incumbent CJN. The fact still remains that, he who comes to equity, must come with clean hands!”
Despite the admonition given to the prosecuting authority to put its house in order and following the due process of law to avoid the legal defeat, the Code of Conduct Bureau (CCB) which seemed to be confidence in its case when ahead in taking steps to arraign the number one judicial officer in the country before the Code of Conduct Tribunal (CCT). Although the CJN was not present in court as if he had listen to the advice of some Governors from the South South not to appear in court, but his lawyers including SANs led by Chief Wole Olanipekun, a former President of the Nigerian Bar Association (NBA) were in court to appear in protest and challenge the jurisdiction of the tribunal to try the CJN. Remember I said about 150 SANs were said to have volunteered to defend the CJN. Upon argument on issue of personal service of the court process on the CJN, the matter was eventually adjourned for proper and personal service on the CJN. Some other lawyers have gone to the Federal High Court to obtain orders with the view to stop the proceedings at the CCT.
What earlier baffled me most was that why would the FGN despite the cream of lawyers including SANs in its midst would still remain adamant in pursuing the case in question against the CJN in view of the Court of Appeal’s position in the case NGANJIWA Vs FGN (supra ) which many lawyers are now relying on to argue that the CJN ought to be first dragged to the National Judicial Commission (NJC) before any court of law can have a say is such matter. Are the likes of the Attorney General of the Federation, the Vice President of the Federation as well as Professor Itsey Sagay who are all SANs and in the midst of FGN not familiar with that position of law in the said case authority? Should they not have advised the prosecution in this case against the CJN not to go on suicide mission?
According to Professor Sagay, many lawyers including SANs have gotten the NGANGIWA’s case wrong. To the learned Professor, the NGANJIWA’s case in question is not applicable to the present case against the CJN. In the words of the eminent Professor:
“I want to make a few points .The first is that the Nganjiwa case , as far as I’m concerned , is unconstitutional .That judgment was unconstitutional .It‘s an illegal judgment . It is an illicit attempt by some Justices of the Court of Appeal to give themselves immunity contrary to the provision of the constitution… This matter that has just occurred has nothing to do with the case in court. It has something common to all public officers before you take an office .So, there’s a major distinction. The Nganjiwa case does not apply to this situation…Those hiding behind jurisdiction are trying to cover up iniquities of some sort. I’m speaking generally now”
Please note that the Professor said many other things, I only quoted portions that are only relevant to my discussion here. I therefore advise you that if you are interested in reading the Professor in detail and hear from the horse’s mouth, you are at liberty to do that at the appropriate place. When I heard from the learned Professor that the judgment was unconstitutional, what immediate came to my mind was the words of Lord Denning that a bad law or judgement is a law or judgment until it is set aside. With the rate at which this case of Nganjiwa’s case is generating a lot of controversies, I hope a situation will arise where the Supreme Court will be called upon to lay this controversy to rest. From what is presently being seen, the battle may eventually be fought up to the Supreme Court where the final pronouncement will made on the issue. That is the irony of the judicial system we operate in this part of the world.
On this face-off, non-lawyers particularly journalists were not left out in being involved in the argument. I watched this TVC program called JOURNALISTS HANGOUT where some journalists were equally arguing on the matter between the FGN Vs CJN. Armed with the 1999 Constitution as amended on the program, Mr. Babajide Otitoloju who seemed to support the contention of Professor Sagay, expressed his surprise and disappointment on sentiments being brought into the issue by many people particularly lawyers who he said seemed not to understand what the constitution was saying on the issue at stake.
One of the things this issue has brought to light is about the real essence of the National Judicial Council (NJC) in the scheme of things particularly on the activities of the judicial officers under its supervision. Is it in all wrongdoings on the part of a judicial officer that he would be first refer to the NJC before the law takes its course against him? According to the Court of Appeal in Nganjiwa ‘s case :
“…Whenever a breach of judicial oath occurs, it is a misconduct itself, then the NJC is the appropriate body to investigate such breaches by the judicial officer and if found to be so, such judicial officer shall face disciplinary action and NJC may recommend the removal of such judicial officer to the appropriate authority which is either the President in the case a Federal judicial officer or Governor in the case of a State Judicial Officer and/or take other actions appropriately. When this is done and accepted by the appropriate authority in compliance with the provisions of the Constitution, then the relevant law enforcement Agent or Agency is at liberty to make the said judicial officer to face the wrath of law .Any act done by law enforcement agent or agency in violation of the above is tantamount to denying the NJC its power to discipline judge …”
It was held further in the same case that:
“It must be expressly stated that if a judicial officer commits theft, fraud, murder or manslaughter, arson and the likes, which are crimes committed outside the scope of the performance of his official functions, he may be arrested, interrogated and prosecuted accordingly by the State directly without recourse to the NJC .These classes of criminal acts are not envisaged and captured by the provisions of paragraph 21, Part 1 of the third schedule …”
From my own understanding of the positions of the Court of Appeal as stated above, it is not in all wrongdoings committed by a judicial officer that he will first be referred to the NJC before the law takes its due course against such erring judicial officer. The case clearly states a situation where an earring judicial officer will be mandatorily first sent to the NJC and when such step is not necessary and that is where crimes committed are outside the scope of the performance of such judicial officer’s official functions. The major question to be answered by the court and which is now generating controversy is that: Is the present allegation against the CJN one that falls within the scope of his duties as a judicial officer or outside it? The correct answer is better be left to the court since the case is now before the court. Since the present face-off between FGN and CJN is now generating serious hot debate among lawyers and couple with the various court processes being filed here and there, I believe the intervention of the Supreme Court will eventually be needed to put an end to this the great debate.
For how long it will take to reach the end of the road in this new legal battle between the FGN and CJN, is a mother of all questions to be answered by those who are involved in the legal battle whose umpire will be our learned Jurists on the bench. One just hopes that we are not witnessing another legal battle that will refuse to come to an end within a very short time.
REMARKABLE PRONOUNCEMENT ON ATTRIBUTES OF LEGAL PRACTITIONER
“Now, it is, I think, a fair characterization of a legal practitioner’s responsibilities in the country that he stands as a ‘shield’ in defence of right and to ward off wrong. In a profession charged with such responsibilities, there must be exacted those qualities of truth speaking, of high sense of honour, of the strictest observance of fiduciary responsibility.”
Per MUSDAPHER JSC (as he then was) in Okike Vs L.P.D.C (2005) 15 NWLR (Pt. 949) Pg. 510 Para C.
THE SETTLED PRINCIPLE OF LAW
On when Supreme Court will depart from it previous decision
“It is indeed well settled that this (Supreme) court does not ordinarily depart from its decision unless it is shown that the decision has over a period of time perpetuated injustice through the doctrine of stare decisis or it has impeded the development of law or it is in fact against public policy or the decision was given per-incurium.”
See JAMES G. ORUBU Vs. NATIONAL ELECTORAL COMMISSION & 13 ORS (1988) 12 SC. Pt. III Pg. 24, Lines 9-14
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A Report Of The Judgement Of The 16 Divisions Of The Court Of Appeal In Nigeria