THE swearing in of Hon. Justice Aloysius Katsina – Alu, JSC as Chief Justice of Nigeria on 30th December 2009 now competes on the growing list of our current national controversies with the prolonged absence from this country of President Umaru Yar’ Adua.  

The Judicial  Oath taken by Hon.  Justice Katsina -Alu was administered by Hon. Justice Idris  Legbo  Kutigi on the eve of  his own retirement as Chief Justice of Nigeria.The  concern expressed through the press is generally that the outgoing CJN could not competently swear in his successor because:
i.

By established convention, the CJN has always been sworn in by the President of the Federal Republic of Nigeria and so an outgoing CJNcannot discharge that function.

ii. Between the swearing in of   Katsina – Alu by Kutigi on 30thDecember 2009 and the retirement of the latter on 31st December 2009, there were, in consequence, two persons concurrently holding the office of CJN.

I think it is obvious that the first assertion, if it were correct, would cancel ; out the   second. To expatiate – upon the hypothesis  that Kutigi could not perform a function exclusive to the President, it is idle to accuse him of having created in Katsina – Alu a concurrent CJN, albeit for twenty four odd hours only.

However, convention which, after all, is the premise of that first assertion is often an unreliable guide to the state of the law.   A practice, albeit one which is venerated by long usage remains unlawful if it is at variance with the law.

So what does the law really say about the Judicial  Oath?

Section 2 (read together with Second Schedule) of the Oaths Act, CAP.O.I, Laws of the Federation of Nigeria, 2004 requires the Chief Justice of Nigeria  to  take the Judicial Oath.  The form of  that Judicial Oath is set out in the First Schedule of that legislation.

The same oath is prescribed for Justices of the Supreme Court, President and Justices of the Court of  Appeal, Chief Judge and Judges of the Federal High Court and Commissioners of Inquiry iand Tribunals.   Section 2 further designates  the President and the Chief Justice of Nigeria as the persons to administer the Oath.

In a report captioned “How I tried to extend ex-CJN’s tenure – VP” (see page 9 of the Punch, Monday, 4th January 2010) Vice-President Goodluck Jonathan is quoted as saying:

“A few days to the time (expiration of the tenure of the former CJN), the Attorney-General came and showed me the Act that said that either the President or the Chief Justice of the Federation can swear in the new Chief Justice of the Federation. That law was there but nobody saw it.”

It is palpably obvious that the VP derived much relief and comfort from the AG’s interpretation of the Second Schedule to the Oaths Act. The AG had saved the day.

But had he really? It is submitted that, upon a hard look at the relevant provision, the  CJN is empowered to administer the Judicial  Oath on his brethren on the Supreme Court bench, the President and Justices of the Court of  Appeal, the Chief Judge and Judges of the Federal High Court and Commissioners of Inquiry and Tribunals but not on the incoming CJN because that would create the anomaly of two CJNs at the same time.

The President of the Federal Republic of Nigeria, however, may swear in all of the above mentioned appointees, including the CJN.

But all is not lost. Safer refuge subsists within section 3 of the Oaths Act which provides against “unnecessary repetition of oath” to the effect, interalia, that a person  who has duly taken the Judicial Oath in one capacity (e.g.as Justice of the Supreme Court) shall not be required  to re-take that oath upon appointment to another office (e.g as CJN). The full text of section 3(1) runs thus:

“3. Unnecessary repetition of oath .(I) Except in the case of the President, no person who has duly  taken the Oath of Allegiance or the Judicial Oath in Nigeria as provided in this  Act shall be required again to take thatoath on appointment to any other office or on any other occasion.”

In consequence of section 3(1) reproduced above, it would appear that having taken the Judicial Oath upon his initial appointment as JSC, (or indeed as a judicial officer), Hon. Justice Katsina – Alu was not required to take that  oath again upon his appointment as CJN, in which event both the incoming  and  the outgoing CJNs ought to have spared themselves the trouble of  the 30th December 2009 ceremony.

But before we heave a collective sigh of relief, I hasten to deal with the obstacles posed by subsection (3) of section 3, Oaths Act which provides:
“3(3) for the avoidance of doubt and notwithstanding the provisions of sub-section (1) of this section, a person holding; an office or position specified in the second column of the Second Schedule to this Act shall, on or as soon as may be convenient after the first day of October, nineteen hundred and sixty-three take the oath prescribed for that office in the first column of the said Schedule.” (Underlined for emphasis).

In the interpretation of section 3 (3) it is helpful to keep in view the earlier section 2 which provides:
“ 2. Officers to take oaths

A person appointed to an office set out in the second column of the Second  Schedule to this  Act shall take the oath  specified in the first column of the said Schedule which shall be administered by the authority specified in the third column of the said Schedule.” (Underlined for emphasis).

It is significant to observe that while the phrase used  in  section 2 to identify a person who is bound to take  the oath  is a “person appointed to an office set out in the second column etc”, that description is not repeated in section 3(3).

The description in Section 3 (3) is “a person holding an office or position specified in the second column etc”. It  is  submitted that, in effect, the persons who are bound to re-take the relevant oath  are those persons who were  holding  the relevant offices prior to 1st October 1963 i.e. the commencement date of the Oaths Act.  Surely, that date must resonate clearly with all Nigerians.

It is, of course, the date when, by the Constitution of the Federal Republic of Nigeria 1963, we established this nation as a republic, in consequence of which, as a sovereign people, we ceased to bear allegiance to Her Majesty, Queen Elizabeth II. So, the reason for the imposition of the obligation to re-take official oaths by persons holding office prior to 1st October 1963 is obvious.

Indeed, with effect from that date, the Judicial Oath requiring a  judicial officer to pledge to “well and truly serve Our Sovereign Lady Queen Elizabeth the Second …….” (Official Oaths Act, Cap 143, 1958) was replaced by a promise to “be faithful and bear true allegiance to the Federal Republic of Nigeria………” (Oaths Act, 1963).

Hence, the need for  persons who had taken the oath prior to 1st October 1963 to re-take the oath after that date.

Curiously, the Judicial Oath was administered on the current  CJN as if he were an officer within the purview of Section 3 (3) of the Oaths Act i.e. a person holding his immediately preceding  judicial office prior to 1st October 1963.

Much ado about an oath?

Mr.   Molajo, a lawyer writes from Lagos.