According to the Webster on-line dictionary, the word ‘removal’ means among other meanings, to remove: to force (someone) to leave a job; to dismiss (someone) from a job’. Also, the word ‘suspension’ was defined among other meanings by the same dictionary as ‘to debar temporarily especially from a privilege, office or function’. This paper is an attempt at considering the dichotomy between the ‘removal’ and the ‘suspension’ of a Chief Justice of Nigeria-herein after referred to as CJN- and whether there is any procedure laid down for the President to follow in suspending the CJN.

First and foremost, the law is clear on removal of a CJN by his appointer, who is the President of the Federal Republic of Nigeria-herein after referred to as the President. Also, it is observable in my humble view, that any person appointed as a CJN automatically becomes the Chairman of the National Judicial Council-herein after referred to as the NJC- by virtue of paragraph 20(a) of Part I of the 3rd Schedule to the Constitution of the Federal Republic of Nigeria, 1999 (as amended)-herein after referred to as the Constitution- which provides thus ‘ The National Judicial Council shall comprise the following members- (a) the Chief Justice of Nigeria who shall be the Chairman’. Furthermore, by virtue of section 231 of the Constitution, the CJN is appointed by the President. The said section 231(1) of the Constitution provides thus ‘231.—(1) The appointment of a person to the office of a 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.’. Also, the appointment of the Chairman of the NJC, who is as said earlier, automatically the CJN, is also made by the President as provided by section 154(1) of the Constitution which provides thus ‘154.—(1) Except in the case of ex officio members or where other provisions are made in this Constitution, the Chairman and members of any of the bodies so established shall, subject to the provisions of this Constitution, be appointed by the President and the appointment shall be subject to confirmation by the Senate.’.

Furthermore, on ‘removal’ of the CJN by the President, section 292 and paragraph 21(b) of the Part I of the 3rd Schedule to the Constitution provides for removal and procedures to be followed by the President when he intends to remove a CJN as follows ‘292.—(1) A judicial Officer shall not be removed from office before his age of retirement except in the following circumstances— (a) in the case of— (i) Chief Justice of Nigeria, … by the President acting on an address supported by two-thirds majority of a Senate’. 21. The National Judicial Council shall have power to— (b) recommend to the President the removal from office of the judicial officers specified in sub-paragraph (a) of this paragraph, and to exercise disciplinary control over such officers ;’. Also, the Constitution has provided for the removal and procedure for removing a Chairman of the NJC in section 154(1) of the Constitution thus ‘157.—(1) Subject to the provisions of subsection (3) of this section, a person holding any of the offices to which this section applies may only be removed from that office by the President acting on an address supported by two-thirds majority of the Senate praying that he be so removed for inability to discharge the functions of the office (whether arising from infirmity of mind or body or any other cause) or for misconduct.’.

Furthermore, section 231(4) of the Constitution has provided for what would happen where the Office of the CJN is vacant in order to avoid a vacuum in the Office of the CJN thus ‘(4) 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.’. But it is noteworthy that this section 231(4) of the Constitution does not provide that the President must comply with the procedures laid down in appointing a CJN newly into the office of the CJN. I therefore submit that in appointing the most Senior Justice of the Supreme Court of Nigeria to occupy the vacant office of the CJN, the President is not required to comply with the procedures laid down in the appointment of a new CJN as contained in the above sections.

Therefore, from the above provisions of the Constitution cited, it is my humble submission that:

  1. A CJN is automatically the Chairman of the NJC;
  2. A CJN and Chairman of the NJC is appointed by the President following the procedures laid down in the Constitution for such appointment i.e. made by the President on the recommendation of the National Judicial Council subject to confirmation of such appointment by the Senate;
  3. A CJN is removable by the President on the recommendation of the NJC and being the Chairman of the NJC, is removable by the President acting on an address supported by two-thirds majority of the Senate praying that he be so removed for inability to discharge the functions of the office (whether arising from infirmity of mind or body or any other cause) or for misconduct;
  4. Where the Office of the CJN 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.
  5. In appointing the most Senior Justice of the Supreme Court of Nigeria to occupy the vacant office of the CJN, the President is not required to comply with the procedures laid down in the appointment of a new CJN as contained in the above sections.

Furthermore, and most importantly in my humble submission, the Constitution only makes provisions for removal of the CJN and Chairman of the NJC but does not make provisions for his suspension in the above sections of the Constitution. So, how does one interpret the Constitution to consider whether the CJN and Chairman of the NJC can be suspended? Or does it mean that he cannot be suspended?

On the second question, I think not. In my humble submission, the CJN and Chairman of the NJC can be suspended even though, the  provisions of suspension were omitted or not included in the above sections of the Constitution on removal by the drafters of the Constitution, the Constitution has already resolved this argument which leads to the answer to the first question as to whether the CJN and Chairman of the NJC can be suspended?  A close observation of the provisions of the Constitution in section 318(4) of the Constitution has adopted the entire provisions of the Interpretation Act in interpreting the Constitution, which in my humble view, means that the Constitution has an extension which must be considered along-side the provisions of the Constitution. The said section 318(4) of the Constitution which provides thus ‘The Interpretation Act shall apply for the purposes of interpreting the provisions of this Constitution’. From this provision of the Constitution, I humbly submit that the provisions of the Interpretation Act have the force of the Constitution as though they are part of the Constitution. Also, the word ‘shall’ used by the constitution in this section 318(4) (supra) gives support to this submission. The word ‘shall’ has been defined by courts of law as meaning ‘obligation’. The writer of this paper humbly refers to the case of Tanko v Caleb (1999) 8 NWLR (pt. 616) 606 C.A. at page 611 (paragraph E) thus ‘Generally, the word ‘shall’ is a word of command and denotes obligation and gives no room for discretion. It imposes a duty: See: Katto v CBN (1991) 9 NWLR (pt. 214) 126.’. And I had in one of my articles, advised consultation with the Interpretation Act to interpret the provisions of the Constitution on any issue and it is my submission that considering the provisions of the Constitution in section 318(4) of the Constitution, the Interpretation Act has got another status which I could term ‘the Constitution’s twin brother’. In other words, the Interpretation Act, having the force of the Constitution by section 318(4) of the Constitution, is more than an Act. Therefore, lawyers, judges, law students and law readers should always endeavour to place side by side the Constitution, the Interpretation Act, whenever they seek to interpret the constitution. Also, it is important to know that by the provisions of section 11 of the Interpretation Act, 2004, the President who appointed the Honourable, the CJN has been empowered and conferred the power to suspend the CJN and such suspension is also valid, legal, constitutional and democratic under section 318(4) of the Constitution. The said section 11 of the Interpretation Act provides thus ‘(1)     Where an enactment confers a power to appoint a person either to an office or to exercise any functions, whether for a specified period or not, the power includes-

(a)     power to appoint a person by name or to appoint the holder from time to time of a particular office;

(b)     power to remove or suspend him;

(c)     power, exercisable in the manner and subject to the limitations and conditions (if any) applicable to the power to appoint,-

(i)     to re-appoint or reinstate him,

(ii)     to appoint a person to act in his place, either generally or in regard to specified functions, during such time as is considered expedient by the authority in whom the power of appointment in question is vested

(2)     A reference in an enactment to the holder of an office shall be construed as including a reference to a person for the time being appointed to act in his place, either as respects the functions of the office generally or the functions in regard to which he is appointed, as the case may be. (Underlined words are mine for emphasis).

Therefore, from the above provisions of sections 318(4) of the Constitution and 11 of the Interpretation Act, it is observable that there is no specific or particular procedure laid down for the President to follow in suspending any of such person that he appointed.

Furthermore, arising from the above provisions of the sections 318(4) of the Constitution and 11 of the Interpretation Act, it is my humble submission that:

  1. The CJN and Chairman of the NJC appointed by the President can actually be suspended by the President relying on sections 318(4) of the Constitution and 11 of the Interpretation Act;
  2. There is no particular procedure laid down for the President to follow in suspending the CJN and Chairman of the NJC, so, such suspension is at the discretion of the President even without recourse to the National Assembly or the NJC;
  3. The President does not require an Order of a Court of law to suspend a CJN and Chairman of the NJC or in appointing the most senior Justice of the Supreme Court to be the CJN or to be Chairman of NJC when the office of the CJN is vacant. More so, any person who is a CJN is the Chairman of the NJC, even in acting capacity;
  4. Any person who is appointed as Acting CJN and Chairman of the NJC only occupies that office for a period of 3 months, except on the recommendation of the NJC for an extension, and the President shall not re-appoint a person whose appointment has elapsed, see: section 231(5) of the Constitution;

Finally, without prejudice to the above submissions, I humbly submit as follows:

  1. Under the Constitution, there are provisions for both removal and suspension of the CJN;
  2. While the President who appointed the CJN having complied with the laid down procedures in the Constitution is mandated to also comply with the laid down procedure in removing the said CJN, the Constitution by section 318(4), left the issue of suspension of the CJN to the discretion of the President without any laid down procedure;
  3. The words ‘Removal’ and ‘suspension’ do not mean the same thing. While ‘removal’ infers a permanent removal from office, ‘suspension’ infers to debar someone from his office temporarily;
  4. There is no procedure for suspension of the CJN by the President;
  5. The President does not require the Order of any Court or Tribunal to suspend a CJN;
  6. Suspending the CJN does not mean that he has been removed permanently.

e-mail: hameed_ajibola@yahoo.com

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