The controversy over the suspension of the Chief Justice of Nigeria, Hon. Justice Onnoghen by President Buhari, has assumed another dimension, with the suit reportedly filed by the Senate at the Supreme Court to challenge it.
This development supposedly compelled the Upper House of the National Assembly to defer consideration of the matter in a plenary session, as it ordinarily would have done. Unfortunately (or, fortunately, depending on which side of the debate you are on), the Senate Leader (the leader of the majority party in the Senate, the All Progressive Congress), Distinguished Senator Ahmed Lawan, promptly issued a press statement in which he distanced the APC caucus from the move. According to him, the matter was never discussed by the Senate as a body and, accordingly, no resolution was passed by the Senate to authorise it. So, who gave the instruction to do so? That is the question.
Clearly, the disclaimer by the APC Senate caucus has thrown a spanner in the works and directly questioned the validity of the suit. At the risk (once again) of breaching the sub judice rule, one cannot but ponder over the wisdom and indeed the credibility of this latest development in the seemingly endless saga. Assuming it was duly authorized by a valid resolution of the Senate, what happens to the plethora at least 5 (at the last count) similar suits currently pending in various courts on the issue? What is the legal position on such a scenario?
Basis of the Senate’s Intervention
The Senate apparently launched the case to assert its position under Sections 231(1) and 292(1)(a)(i) of the 1999 Constitution, which confer it with the power of confirming the appointment or removal, respectively, of the Chief Justice, amongst other judicial officers. That is fair enough: any attempt to by-pass the Senate in the circumstances contemplated by those constitutional provisions (as is clearly the case with the suspension of the CJN) would suggest a prima case of breach of, at least, the latter.
But, why the Supreme Court?
This is the million-naira question. This poser is not unwarranted, and is prompted by the fact that the Supreme Court is ordinarily a court of last resort, the final court in the judicial hierarchy, which only acts after other courts lower than it have had their say and the loser exercises his or her right of appeal thereto. This is, indeed, the case by virtue of Section 233 of the Constitution.
However, the apex court does have a limited original jurisdiction under Section 232(1) of the Constitution to adjudicate over disputes “between the Federation and a State or between States”. Strictly speaking, therefore, the ongoing controversy over the CJN’s suspension would appear to be unprovided for under the Constitution, at least as far as the original jurisdiction of the Supreme Court is concerned. However, Section 1(1)(a) of the Supreme Court (Additional Original Jurisdiction) Act, 2002, confers the Supreme Court with original jurisdiction in respect of “any dispute between the National Assembly and the President”.
The conditions under which this jurisdiction may, however, be invoked are spelt out, inter alia, in Section 2 and Paragraph 2 of the Schedule to the Act thus: “No legal proceedings shall be instituted by or on behalf of the National Assembly except upon the resolution which has been passed by both Houses of the National Assembly by a simple majority of the members of each House present and sitting at the time the resolution is put to vote”.
Needless to say, both Houses of the National Assembly are not involved in the process of confirming or removing the CJN: only the Senate is Accordingly, only a simple majority of Senators is required to approve its litigation at the Supreme Court which challenges President Buhari’s suspension of the CJN. The cracks in the Senate over such an approval have obviously raised doubts about the trajectory of the suit. How far will it go? Only time will tell. Justice Onnoghen warned us not to engage in such speculation a year ago.
Suffice it to say that the Supreme Court itself has stated that “where some conditions precedent are stipulated before a particular relief or remedy is claimed by court action, the aggrieved party must comply with and exhaust the prescribed condition before the institution of a court action in respect of such a relief or remedy”: OSEYOMON vs. OJO (1997) 5 L.R.C.N. 2069 @ 2089. This has been followed consistently. See the decisions of the Court of Appeal in GAMBARI vs. GAMBARI (1990) 5 NWLR pt. 152 pg. 572 @ 587 and GANI vs. UBA (2000) FWLR pt. 13 pg. 2227 @ 2239B.
In the latter, Bulkachuwa, JCA (as he then was) held that “where there is non-compliance with a stipulated condition for setting a legal process in motion, any suit initiated in contravention of the precondition is incompetent and the court is equally incompetent to entertain the suit”. In AMADI vs. N.N.P.C (2000) FWLR pt. 9 pg. 1527 @ 1553, the Supreme Court held that “a condition precedent is one which delays the vesting of a right until the happening of an event”.
What about the other pending litigations?
This is yet another dimension to the matter. The Senate did not initiate any of the other 5-odd pending legal challenges to Justice Onnoghen’s suspension. Four of them are on-going in the following courts of first instance: the Federal High Court, the High Court of the FCT, the National Industrial Court and the Code of Conduct Tribunal – whilst an appeal from the last is pending at the Court of Appeal. Notwithstanding the similarities of their subject matters (and the said provisions of Section 1(1)(a) of the Supreme Court (Additional Original Jurisdiction) Act), the Senate’s case at the Supreme Court is somewhat incongruous.
This is because it puts the other courts lower to the apex court who are involved in the other suits in something of an awkward position. By the same token, the Senate is, by its own action, asking the Supreme Court to overreach those other courts and resolve the self-same dispute over the heads of the latter, regardless of the fact that theirs were earlier in time. No value judgement on the propriety of this will be made as it would be grossly inappropriate.
Seldom in our constitutional history have all three arms of government – Executive, Judiciary and Legislature – been locked in such a seeming battle for supremacy. In this unique three-cornered-face-off, all bets are off. Who blinks first?
Abubakar D. Sani, Esq. Kano., 08034533892
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