Just yesterday, news broke that President Muhamadu Buhari had purportedly suspended the Hon. Justice Walter Onnoghen as Chief Justice of Nigeria. This is what the President said, ‘Fellow Nigerians, a short while ago I was served with an order of the Code of Conduct Tribunal issued on Wednesday 23rd January, 2019, directing the suspension of the Chief Justice of Nigeria, Honourable Justice Walter Nkanu Samuel Onnoghen from office pending final determination…’
However this is patently untrue. There was no order directing the President to suspend or directing the suspension of the CJN. This is what the alleged order of the Code of Conduct Tribunal said, IT IS HEREBY ORDERED AS FOLLOWS;
- 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 of notice dated 10th January 2019.
- That the President of the Federal Republic of Niger shall take all necessary measures to swear in the most senior Justice of the Supreme Court as Acting Chief Justice of Nigeria and Chairman National Judicial Council in order to prevent a vacuum in the Judicial Arm of the Government pending the determination of the Motion on Notice.
Most lawyers agree that an irregular court order is binding until set aside. But an irregular executive action is not.
Looking at order one, which concerns stepping aside of the CJN, the question is where in this order did the Tribunal order the President to suspend the CJN? Nowhere!
First of all the first order is not directed at the President, rather it is directed at the CJN. So in a government with at least three Senior Advocates of Nigeria including the Vice President Mr. Osinbajo, the Attorney General Mr. Malami and the Minister of Planning Senator Udo Udoma, there is nobody who can read a legal document and interpret a simple order and tell the President who is not a lawyer that the order did not clothe him with power to suspend any one? Troubling.
Second, there is nothing vaguely resembling suspension in the order. The language used is ‘step aside.’ It is only the person who has the legs that can step aside, another man cannot step aside for him. It is similar to saying a person should vacate a premise or an office. It is the person and only that person that can obey the order. What happens if he fails to obey? The court must make a further order to commit him to prison for failing to obey by himself, only then can the Executive Branch through the police become involved. The President jumped the gun and revealed his true intentions.
So, in spite of President Buhari’s shenanigans, Hon. Justice Walter Onnoghen remains the Chief Justice of Nigeria.
Thirdly, the law is settled that a person cannot be bound by an ex parte order obtained behind his back unless and until he has been served with that order. The clearest statement of the law is contained in the Supreme Court decision of Ralph Uwazurike vs Attorney General of the Federation. In that case the Supreme Court went on to say it is the duty of the person who obtained the order ex parte to prove that he has served it, otherwise the person against whom it was obtained is not bound by the order.
It is a little disturbing that an order allegedly obtained on 23rd of January was not served on the Chief Justice of Nigeria on the same day to enable him decide to obey it or otherwise. Instead the order was served on the President on the 25th of January 2019. This action in itself is in violation of the Court of Appeal order of the 24th of January 2019 which stayed all further proceedings [which includes actions of the prosecutors] until 30th of January 2019.
The CJN was deprived of the opportunity of being aware of the alleged order of the CCT. He is not even bound to obey it himself. But more profoundly, the President has no power to suspend the CJN as he purported to do.
In other words, the President has no business in ‘assisting’ the CJN to step aside. No part of that order was directed at the President. President Buhari by purportedly suspending the CJN was a meddlesome interloper. As Lord Denning said long ago, you cannot put something on nothing and expect it to stand, it will fall. The President’s action [suspending the CJN] is standing on nothing. It must fall. Not even an irregular order is holding it up. All it has going for it is an irregular understanding of a simple straight forward order. It cannot go on for much longer.
Some legal magicians have been parroting Section 11 of the Interpretation Act which provides that where an enactment confers the power to appoint that includes the power to suspend.
If that is the case the President did not need a court order to do so. His speech did not say he was exercising any statutory power to suspend, however specious. He said clearly in his address to the Executive Council that he was served with an order of court and that he was acting in obedience to that order. But there is no such order. Clearly the President has taken laws into his own hands.
This situation is just like a court ordering a tenant to vacate a house, and a police officer who is related to the landlord on being shown the order decides to break the door and throw out the tenant without a writ of possession issued or even a bailiff of court directing him to do so. In law that is trespass.
But to an ignorant police man all that is nonsense, because at the end of the day, a police officer will be required to enforce the order of court, so why can’t he just enforce the order willy-nilly, at this point? Happily, Nigerian police men are a little better than that, they will ask for the appropriate court papers before embarking on such an adventure.
Without the necessary court process the police officer has no right to ‘enforce’ orders of a court. In the same manner, if a judge in handing down a death sentence to an armed robber says the armed robber should be hanged by the neck until he dies and the executioner decides to use a karate kick to break his neck or stabs him to death, it is murder and not a lawful execution.
While the second order above, mandates the President to swear in an acting Chief Justice, it is clear that that can only happen after the first order has been complied with, whether voluntarily or by further process of law. This is because order two talks of ‘preventing a vacuum in the Judicial Arm of Government.’ Until the CJN ‘steps aside’ validly, there can be no vacuum.
Thus, even a Supreme Court Justice was caught in the web because of the resort to self help by the President, resulting in the anomalous situation where there a substantive Chief Justice of Nigeria and a putative acting Chief Justice of Nigeria.
Again, the President has put something on nothing and it cannot stand.
If it is allowed to stand it means that 20-something legislators can meet, dispense with constitutional formalities and declare the President and Vice President impeached, then the Senate President can take over the reins of Government in accordance with S. 146(2) of the 1999 Constitution.
If you think the legislators should follow the formalities prescribed by the Constitution in removing the President/Vice President then you must agree that the President must follow the formalities laid down by law to do whatever he wants to do in removing the CJN.
Otherwise, all bets are off.
Emmanuel Jakpa, a legal practitioner can be reached at firstname.lastname@example.org.