The National Judicial Council
(NJC) recommended the compulsory retirement of former Chief Justice of Nigeria
(CJN) Walter Onnoghen before he resigned in controversial circumstances, it was
learnt yesterday.
NJC made the recommendation to
President Muhammadu Buhari after its conclusion of investigation of the
petition the Economic and Financial Crimes Commission (EFCC) filed against the
former CJN.
The NJC, after investigating
allegations of “financial impropriety and infidelity to the constitution”
raised against Justice Onnoghen in the EFCC’s petition, recommended his
compulsory retirement from office.
Justice Onnoghen’s retirement
letter sent to President Buhari on April 4 was written after the NJC recommended his compulsory retirement.
President Muhammadu Buhari and
the Office of the Attorney-General of the Federation (OAGF) made the revelation
in documents they filed in response to a suit challenging the appointment of
Justice Ibrahim Muhammad as the acting CJN.
The NJC had, after concluding its
investigation of the petitions against Onnoghen and Muhammad, kept sealed lips
on its findings, but announced that it has sent its recommendations to the
President.
President Buhari and the AGF
faulted the suit filed by the board of Incorporated Trustees of Malcom Omirhobo
Foundation and insisted that Justice Muhammad was appointed in accordance with
the law and to prevent a vacuum after the Code of Conduct Tribunal (CCT)
ordered his (Onnoghen’s) suspension pending the conclusion of his trial.
They argued that the suit hads
become an academic exercise, following Justice Onnoghen’s retirement and
conviction by the Code of Conduct Tribunal (CCT), Also, he is barred from
holding public office for 10 years, they said.
President Buhari and the OAGF
argued that the suit, which also challenged Onnoghen’s suspension, should be
dismissed, having been overtaken by events.
They noted that the Court of
Appeal has since dismissed the interlocutory appeals filed by Onnoghen, in
which he challenged his suspension, the ex-parte order on which President
Buhari acted to suspend him, among other interlocutory decisions of the CCT.
President Buhari and the OAGF
argued that it was within the President’s power to recommend the most senior
Justice of the Supreme Court in acting capacity where the occupant of the
office is unable to act.
They contended that the choice of
Muhammad as the acting CJN was in order because not only was he cleared of any
wrong doing by the NJC, the occupant of the office was unable to act in view of
the CCT’s order suspending him.
The plaintiff is querying the
proprety of Onnoghen’s suspension and Muhammad’s appointment.
It urged the court to, among
others, restrain the President from appointing Justice Muhammadu as a
substantive CJN, on the ground that he made himself available to be sworn in
when Onnoghen was unlawfully suspended.
The plaintiff also pleaded with
the court to restrain the NJC from recommending Muhammad for appointment as the
CJN and for the Senate not to confirm him in substantive capacity.
President Buhari and the OAGF
stated in one of the court documents that “the 3rd defendant (Onnoghen) was sworn in by the 5th defendant
(Buhari) on 25/01/2019 as a result of
the office of the Chief Justice of Nigeria being vacant.
“The 3rd defendant was sworn in
by the 5th defendant based on the fact that the retired Chief Justice Nigeria
was unable to perform the functions of the office of the Chief Justice of
Nigeria by virtue of the ex-parte suspension order of the Code of Conduct
Tribunal dated 25/01/2019.
“Contrary to the erroneous
impression at paragraph 21 of the plaintiff’s affidavit, the Court of Appeal
has dismissed the four interlocutory appeals filed by the retired Chief Justice
of Nigeria in relation to his trial before the Code of Conduct Tribunal.
“The action of the 5th defendant
in swearing in the 3rd defendant was only in deference to the valid and
subsisting order of the Code of Conduct Tribunal.
“The 5th defendant has the power
to appoint the most senior Justice of the Supreme Court Acting Chief Justice of
Nigeria.”
They argued that Onnoghen was not
removed from office, but merely suspended based on the ex-parte order by the
CCT
“To further buttress our
contention that it was not a removal, but a suspension, three developments
stand to support our position.
“First, after the suspension, the
National Judicial Council sequel to a petition by the Economic and Financial
Crimes Commission which they found to be meritorious, recommended compulsory
retirement of Justice Onnoghen on the 5th of April, 2019.
“Secondly, Justice Onnoghen
himself tendered his resignation from service on the 4th of April, 2019.
“Thirdly, the Code of Conduct
Tribunal eventually ordered his removal from office and cessation to hold
public office for ten years.
“All the three developments
referred to above could not have happened if Justice Onnoghen had been removed
and his seat declared vacant by the 4th and 5th defendants on the 25th day of
January, 2019.”
On the fate of the appeals filed
against the interlocutory decisions of the CCT, they noted that “the Court of
Appeal, upon hearing the appeal by justice Onnoghen on his suspension was
dismissed by the court.”
They argued that the 5th
defendant (Buhari) is vested with the power to appoint a person into the office
of the Chief Justice of Nigeria, by the provisions of section 231(1) of the
Constitution of the Federal Republic of Nigeria (as amended).
They said: “We submit further
that it is trite that a body with appointing power also has the power to
suspend as established in section 11(1)(b) of the Interpretation Act.
“It can be inferred that, by
reason of the suspension of Honourable Justice Onnoghen, he was unable to
perform the duties of the office of the Chief Justice of Nigeria.
“Hence, the President was right
to have appointed the most senior Justice of the Supreme Court to perform the
function of the Chief Justice of Nigeria (in acting capacity), pending the
hearing and determination of the charges filed against him.”
President Buhari, the OAGF also
filed a notice of objection in which the urged the court to decline
jurisdiction over the case on the grounds that the plaintiff lacked the
requisite locus standi (right to initiate the suit).
They also argued that the suit
was an abuse of court’s process on the grounds that the plaintiff had filed a
similar suit before now.
Justice Inyang Ekwo adjourned
till Friday for hearing of the both the substantive suit and notices of
preliminary objection filed by defendants.
Listed as defendants in the suit
are: the NJC, the Federal Judicial Service Commission (FJSC), Justice Muhammad,
the Federal Government, President Buhari, the AGF and the Senate.
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