On the 23rd day of January, 2019, there was a report that the Code of Conducts Tribunal-herein after referred to as the CCT- granted an Order based on an ex-parte motion filed before it by the Code of Conduct Bureau to the effect that the Chief Justice of Nigeria-herein after referred to as the CJN- shall step aside as the Chief Justice of Nigeria and Chairman of the National Judicial Council-herein after referred to as NJC- over allegation of contravening the provisions of the Code of Conduct and Tribunal Act, Cap C15, Laws of the Federation, 2004, pending the determination of the Motion on Notice dated 10th day of January, 2019 and that the President of the Federal Republic of Nigeria shall take measures to swear-in-the most senior Justice of the Supreme Court of Nigeria as Acting CJN and Chairman of National Judicial Council in order to prevent vacuum in the Judicial Arm of Government pending the determination of the Motion on Notice.

Also, at paragraph 16 of the speech delivered by the President of the Federation, while swearing-in the Acting Chief Justice of Nigeria, the President was reported to have said that ‘16.    It is against this background that I have received the Order of the Code of Conduct Tribunal directing me to suspend the Chief Justice pending final determination of the cases against him. It also explains why I am not only complying immediately, but with some degree of relief for the battered sensibilities of ordinary Nigerians whose patience must have become severely over-taxed by these anomalies.’. The question that this paper is asking is who actually suspended the CJN? The President or the CCT? Even assuming that it was the President that suspended the Honourable, the CJN, will such suspension be valid, legal, constitutional and democratic? All these questions are what this paper attempts to answer.

First and foremost, on the question as to who actually suspended the Honourable, the CJN? The President or the CCT? It is my humble view and submission that it was the CCT that actually suspended the CJN and not the President of the Federal Republic of Nigeria and this can be ascertained from the Order of the CCT granted on the 23rd day of January, 2019, which provides as follows:

‘1. That the Defendant/Respondent shall step aside as the Chief Justice of Nigeria and Chairman National Judicial Council over allegation of contravening the provisions of the Code of Conduct and Tribunal Act, Cap C15, Laws of the Federation, 2004, pending the determination of the Motion on Notice dated 10th day of January, 2019.

  1. That the President of the Federal Republic of Nigeria shall take all necessary measures to swear-in-the most senior Justice of the Supreme Court of Nigeria as Acting Chief Justice of Nigeria and Chairman of National Justice Council in order to prevent vacuum in the Judicial Arm of Government pending the determination of the Motion on Notice.
  2. This matter is hereby adjourned to the 28th day of January, 2019, for hearing.’. (Underlined words are mine for emphasis). Therefore, from the said Order of the Code of Conducts Tribunal, it is my humble submission that the CJN was only suspended by the CCT and not the President. Therefore, the paragraph 16 of the President’s speech which says that ‘16. It is against this background that I have received the Order of the Code of Conduct Tribunal directing me to suspend the Chief Justice pending final determination of the cases against him. It also explains why I am not only complying immediately, but with some degree of relief for the battered sensibilities of ordinary Nigerians whose patience must have become severely over-taxed by these anomalies.’. ‘ is with due respect, misconceived as there is nothing on the Order of the CCT that directed the President to suspend the CJN, rather, the CCT had by itself Ordered his Lordship’s suspension which takes effect with immediate effect and disobedience of which shall be deemed as a contempt of the CCT.

On the second question asking that even assuming that it was the President that suspended the Honourable, the CJN, will such suspension be valid, legal, constitutional and democratic? It is my humble submission that the suspension would have been valid, legal, constitutional and democratic. In support of my submission is the provision of section 318(4) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended)- herein after referred to as the Constitution- which provides thus ‘section 318 (4) thus ‘The Interpretation Act shall apply for the purposes of interpreting the provisions of this Constitution’. From this provision of the Constitution, the writer of this paper submits 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 constitutional 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).

Furthermore, the President, with due respect, though misconstrued the Order of the CCT, by making the speech contained in paragraph 16 of the said speech that he has been directed by the CCT, to suspend the CJN, I hold the view that assuming the fact that the CCT never made the Order, the President by sections 318(4) of the Constitution and section 11 of the Interpretation Act, 2004, shall have the power to suspend all persons that he appoints which in my humble views, includes the CJN and all public officers in the Federation as defined by the Constitution but to such extent that the President appointed the said officer or person. More so, the Constitution in sections 292 and 157 of the Constitution only provide for removal of the CJN and not suspension, whose power is pursuant to sections 318(4) of the Constitution and section 11 of the Interpretation Act, 2004, conferred on the President, even without the need for any Order of any Court to utilize his discretion. Also, there is no law that prevents the President from suspending the CJN from office.

Also, the President has pursuant to the Order of the CCT, appointed the Most Senior Justice of the Supreme Court of Nigeria as the CJN to perform all the functions of the CJN and assuming the President had suspended the CJN without the CCT’s Order, the President would have been able to appoint the Most Senior Justice of the Supreme Court as CJN, by sections 318(4) and 11 (1)(c)(ii) and (2) of the Interpretation Act (supra).

Finally, I hope this paper has been able to convince the reader that the Order of the CCT never directed the President to suspend the CJN rather, the CCT had by its Order, ordered the CJN to step aside from his double offices, and that the President has the valid, legal, constitutional and democratic power to suspend the CJN and to appoint the Most Senior Justice of the Supreme Court as the Acting CJN.

e-mail: hameed_ajibola@yahoo.com

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