The Chief Justice of Nigeria (CJN) is the number one judicial officer and he also heads an arm of Government-Judiciary. The position is created by the constitution and same is protected by the constitution.
The reason for this is obvious i.e. to ensure the independence of the judiciary which is the last hope of the common man. It is also meant to protect the doctrine of separation of power between the three arms of government- Judiciary, Legislature and the Executive. Each arm is to serve as checks and balances on each other. The legality of the recent arraignment of the Chief Justice of Nigeria before the Code of Conduct Tribunal has generated and is still generating a lot of comments/issues in the country. His recent suspension by President Buhari on the basis of an order from the Code of Conduct Tribunal is the latest issue that the whole country is talking about.
It must be noted that the constitution is supreme and if the provision of any other law is inconsistent with the provision of the constitution, such other law shall be void to the extent of its inconsistency. Section 1(1) -(3) of the 1999 constitution of Nigeria (as amended) states that “1. (1) This Constitution is supreme and its provisions shall have binding force on the authorities and persons throughout the Federal Republic of Nigeria. (2) The Federal Republic of Nigeria shall not be governed, nor shall any persons or group of persons take control of the Government of Nigeria or any part thereof, except in accordance with the provisions of this Constitution. (3) If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall, to the extent of the inconsistency, be void.”
The above suggests that the constitution has a binding force over everybody and authorities in Nigeria- not excluding the president of the country.
The appointment to the position of the Chief Justice of Nigeria is provided for under section 231(1) -(5) of the 1999 Constitution of Nigeria. The section states that- “231. (1) The appointment of a person to the office of 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.(2) The appointment of a person to the office of a Justice of the Supreme Court shall be made by the President on the National Judicial Council subject to confirmation of such appointment by the senate.(3) A person shall not be qualified to hold the office of Chief Justice of Nigeria or a Justice of the Supreme Court, unless he is qualified to practice as a legal practitioner in Nigeria and has been so qualified for a period of not less than fifteen years.(4) If the office of 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 has resumed those functions, the President shall appoint the most senior Justice of the Supreme Court to perform those functions.(5) Except on the recommendation of the National Judicial Council, an appointment pursuant to the provisions of subsection (4) of this section shall cease to have effect after the expiration of three months from the date of such appointment, and the President shall not re-appointment a person whose appointment has lapsed.”
Just as the appointment to the position of the Chief Justice is provided for under the constitution, the removal of the person occupying the position is also provided for under section 292 (1) of the constitution. The section recommends that the Chief Justice is to be removed by the president on the recommendation of the National Judicial Council and subject to the confirmation by the two-third of the senate. This position was affirmed by the Court of Appeal in the case of Hon. Justice Hyeladzira Ajita Nganjiwan V Federal Republic of Nigeria(2017) LPELR-43391(CA). Therefore, his arraignment at the Code of Conduct Tribunal without first being investigated and a recommendation sent to the President for his removal (subject to the confirmation by two-third majority of the senate) runs contrary to the provision of the law.
On the basis of the failure of the Federal Government to follow the above laid down procedure, the counsel to the embattled Chief Justice of Nigeria filed an application challenging the jurisdiction of the court i.e. that the Code of Conduct Tribunal has no jurisdiction since the proper procedure hasn’t been followed. It is an established principle of law that where the jurisdiction of a court is being challenged the court must first take steps to resolve the issue of jurisdiction first before doing any other thing- the Supreme Court of Nigeria affirmed this in the case of NDIC V CBN (2002) 7 NWLR (PT.766) 272 AT 292,300 where the court stated that “but first it has to be plain to everyone , not least the court, that the court has jurisdiction to entertain the suit. The court must not give an order in the suit affecting the defendants until the issue of jurisdiction is settled when it has been raised”. The court further stated in the same case that “the matter of jurisdiction is very crucial in any matter before the court that it must be addressed first by the court before proceeding further in the matter”.
From the above, it is crystal clear that the Code of Conduct Tribunal ought to have addressed the issue of jurisdiction first before proceeding to grant an order for the suspension of the Chief justice of Nigeria. Also, there is a principle of law that once a motion on notice concerning an issue is pending such should not be heard exparte again. The application for the suspension of the Chief Justice had been made on notice and same was served on the counsel to the Chief justice of Nigeria. Same application was made exparte (exparte means only one side to be heard) and an order was granted for the suspension of CJN without honouring his right to be heard. This can be said to be a clear violation of the principle of natural justice as the CJN has the right to reply to the motion on notice already filed- for same to be determined on merit. The tribunal adjourned the hearing of the motion on notice for the suspension of CJN and went behind to grant an order against the CJN based on an exparte application.
Furthermore, the exparte application that was granted was dated January 9, 2019. This was even before the CJN was investigated and a charge brought against him. This shows that there is more to the case. The constitution in section 36(5) states that an accused person is presumed innocent until he is proved to be guilty. By filing an application for his suspension before investigation shows that he has been considered as guilty and the matter is more of persecution than prosecution.
It must be noted that history is only repeating itself, the same was done by former President Goodluck Jonathan with regards to Justice Ayo Salami (former President of the Court of Appeal). The Chairman of the Code of Conduct Tribunal was once investigated for corruption, why didn’t he resign on the basis of the allegation?
The cry for the government to follow the right procedure in the removal/suspension of the CJN is not as a sign of respect for the CJN but for the office. If the number one man in the judiciary is not safe then the common man is rendered totally hopeless.
Odunayo Oyasiji
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