Honourable Justice Onnoghen’s (the CJN’s) trial started when an Anti-Corruption and Research-Based Data Initiative (ARDI) petition, dated January 7, 2019, was filed at the Code of Conduct Bureau (CCB).

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The charges against the CJN presently before the Code of Conduct Tribunal (CCT) are that:

·         Between June 8, 2005 to December 14, 2016, he failed to declare and submit written declarations of all his assets and liabilities within the prescribed three (3) months after his swearing-in as Justice of the Supreme Court of Nigeria on June 8, 2005.

·         After he subsequently declared his assets in December 14, 2016, he omitted to declare his domiciliary accounts, E-saver Savings (Naira) account, and a Naira account.

In response, the CJN in his statement deposed to the CCB admitted that he forgot to make the declarations, but later did them in his 2016 declaration.

The CCT commenced trial on January 14, 2019, but has stayed trial pending outcome of the National Judicial Council’s (NJC’s) investigation of petition against the CJN.

This article sets out only to address key legal issues drawn from the crisis.

1.      The Suspension of the CJN by the CCT.

a)      Who has power to suspend a judge?

b)      The CCT may also have power to suspend judges?

2.      Can the CCT deliver a Ruling before the date its proceeding was adjourned?

3.      Does the President of Nigeria have power to suspend the CJN?

4.      Does the CCT have unqualified jurisdiction to try offences relating to the Code of Conduct Bureau and Tribunal Act (CCB & T Act)?

5.      Does the CCT have jurisdiction to try an offence under the CCB & T Act in spite of admission by an accused?

1.      The Suspension of the CJN by the CCT

a)      Who has power to suspend a judge?

The power of suspension of judges rests solely on the NJC. This is comprised in NJC’s power to exert disciplinary control over judges, as provided in the Constitution.

The court has interpreted Disciplinary Power to include the power to suspend, which is a temporary privation of the rights of a person (facing an allegation)- University of Calabar v. Esiaga (1997) 4 NWLR (Pt.502) 719.

The 1999 Constitution therefore provides, in Paragraph 21(b), Part I of the Third Schedule), thatthe National Judicial Council shall have power, amongst others, to:

“recommend to the President the removal from office of the judicial officers specified in  subparagraph (a) of this paragraph and to exercise disciplinary control over such officers.” (bolded for emphasis).

This provision is reflected in the National Judicial Policy (NJP), launched in 2016 by the NJC, which empowers the NJC (through the Judicial Discipline Regulations) to place a judge under investigation on interim suspension. Particularly, the NJP deals with Judicial Discipline in section 2.2, where it makes provision for the promulgation of Judicial Discipline Regulations (JDR).

Regulation 24 of the JDR thus specifies the powers of interim suspension of judges by the NJC.

b)     The CCT may also have power to suspend judges?

The CCT does not have power to suspend judges, but given that the CCT can try a public officer who has violated the CCB & T Act (and the CJN being a public officer) the CCT technically, has power to remove the CJN from his office as CJN and also from his office as justice of the Supreme Court.

See power of the CCT to impose punishment, in section 23(1)&(2)(a) of the CCB & T Act:

“(1) Where the Tribunal finds a public officer guilty of contravening any of the provisions of this Act, it shall impose upon that officer any of the punishments specified under subsection (2) of this section.

  (2) The punishment which the Tribunal may impose shall include any of the following-

(a) vacation of office or any elective or nominated office …”

However, this must be consonance with the proviso to section 292(1)(a) of the Constitution of the Federal Republic of Nigeria 1999 as amended (CFRN), so that upon conviction by the CCT, the President may send an Address to the Senate; so that where such address is supported by the Senate, the CJN stands removed from his judicial office.

2.      Can the CCT deliver a Ruling before the date its proceeding was adjourned?

This may seem unfathomable, but by plain procedural practice, a court can be forced to sit/hear an application before an adjourned date. To achieve this, an Exparte Motion for a pressing injunction (pending the adjourned date or determination of an interlocutory motion) needs to be filed, supported by a steeply compelling facts-based Affidavit of Urgency. Where the court sits, this Exparte Motionwould mean that the party who the court’s injunction will be executed against cannot challenge the application. It is in this sense that the Prosecution may have validly gotten an Order against the CJN, before CCT’s adjourned date of January 28, 2019.

However, Motions/Applications must be moved before a court delivers a Ruling. From the face of the Ruling granting the Order, there was no record that the Exparte Motion was moved by the Prosecution. This makes the Exparte Order legally problematic, verging on judicial misconduct by the Chairman and other two members of the CCT.

3.      Does the President of Nigeria have power to suspend the CJN?

No. As explained from the outstart, the power to suspend judges is the sole responsibility of the NJC.

However, there is an alternate argument that the President may have power to suspend the CJN based on section 11 of the Interpretation Act. In this alternate frame, by section 11 the Interpretation Act, if the President has power to appoint the CJN, such power comes with a twin power to suspend; granted. But the twin power to suspend must also be exercised in consonance with the same section 11(1)(c) of same Interpretation Act. Thus, by section 11(1)(c), the conditions attached to Appointment must also be followed for Suspension. As such, the President cannot suspend the CJN without recommendation from the NJC and subsequent confirmation by two-thirds majority of the Senate.

Further, it is instructive to note that the CJN was not suspended from Office and replaced by Justice Tanko by the President suo moto. The CJN was suspended from Office and replaced by Justice Tanko by the President acting on an Order (regardless of legality) by the CCT. The option available is for there to be filed a motion in a higher court, challenging the Order, and seeking that the executed action be reversed to status quo ante until final determination of the case at the CCT.

4.      Does the CCT have unqualified jurisdiction to try offences relating to the CCB & T Act?

Drawing from section 158(1) of the CFRN, the CCT has unfettered jurisdiction to try cases relating to the CCB & T Act. The section reads thus:

“In exercising its power to make appointments or to exercise disciplinary control over persons, the Code of Conduct Bureau … shall not be subject to the direction or control of any authority or persons”. (bolded for emphasis).

By the quoted Constitutional provision, no court of record therefore has power to limit or halt proceedings at the CCT.

5.      Does the CCT have jurisdiction to try an offence under the CCB & T Act in spite of admission by an accused?

Section 3 of the CCB & T Act provides that:

“The functions of the Bureau shall be to-

(a)  receive assets declarations by public officers in accordance with the provisions of this Act

(b)  examine the assets declarations and ensure that they comply with the requirements of this Act and of any law for the time being in force

(c)   take and retain custody of such assets declarations and

(d)  receive complaints about non-compliance with or breach of this Act and where the Bureau considers it necessary to do so, refer such complaints to the Code of Conduct Tribunal established by section 20 of this Act in accordance with the provisions of sections 20 to 25 of this Act:

Provided that where the person concerned makes a written admission of such breach or non-compliance, no reference to the Tribunal shall be necessary.” (bolded for emphasis).

The proviso means that where there is a written admission of a breach, as in the statement of admission made by the CJN, there shall be no reference to the CCT. In this vein, the prosecution of Onnoghen at the CCT is in contravention of the CCB & T Act, and the Chairman and the two other members of the CCT appear to also be roped in a triable offence.

However, the provision seems to be circumvented by the supervening CFRN, which in Paragraph 2(e), Part I of its Third Schedule, provides that:

“The Code of Conduct Bureau shall receive complaints about non-compliance with or breach of the provisions of the Code of Conduct or any law in relation thereto, investigate the complaint and, where appropriate, refer such matters to the Code of Conduct Tribunal.” (bolded for emphasis).

This provision makes referral of breach to the CCT CCB’s prerogative. Thus, regardless of a written admission by an accused, the CCB may or may not refer an offence to the CCT, so that in any alternative, their action would be Constitutionally correct.

Conclusion

From the delineated legal issues, it is therefore summed up that:

Ø  Only the NJC can suspend the CJN; the President cannot suspend the CJN.

Ø  By procedural practice, an adjourned court may be forced to sit before the adjourned date.

Ø  The CCT cannot suspend judges (in this case, the CJN), but may on conviction order the removal of the CJN. Although, removal procedure must comply with the proviso to section 292(1)(a) of the CFRN, so that upon conviction/punishment by the CCT,  the President may send an Address to the Senate; which must be supported by two-thirds of the Senate.

Ø  The President cannot suspend the CJN without recommendation from the NJC (or without a CCB Conviction) and subsequent confirmation by the Senate.

Ø  The CJN was not suspended from Office and replaced with Justice Tanko by the President suo moto, but by the President acting on an Order by the CCT, and such Order can be challenged by the CJN in a higher court, toward a reversal to status quo ante pending final determination of the CJN’s case at the CCT.

Ø  The CCT has unfettered jurisdiction to try cases relating to the CCB & T Act.

Ø  The CCB has Constitutional prerogative to still refer a breach of the CCB & T Act to the CCT notwithstanding an admission by an accused.

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Temple Ezebuike is a Lagos-based legal practitioner, with focus on Energy, Finance and Real Estate. You can reach him on templeezebuike@gmail.com

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