By Henry Ojelu

Since the drama over the trial of Chief Justice of Nigeria, CJN, Justice Walter Onnoghen began earlier this month, lawyers have been the biggest critics of the charges filed against him by the Federal Government.

Chief Justice of Nigeria (CJN) Justice Walter Samuel Nkanu Onnoghen

While very few of them support the Federal Government’s action, many others condemned the action, describing it as an affront on the judiciary.

This is coming as the Code of Conduct Tribunal, CCT, overruled different Federal High Court and National Industrial Court orders, which are courts of coordinate jurisdiction.

In a strong worded statement, the Nigerian Bar Association, NBA, the umbrella body for lawyers in the country, by its President, Paul Usoro, SAN, noted that the charge against the CJN was an attempt to desecrate the temple of justice.

Aligning with many dissenting voices, the NBA particularly faulted the speed and  procedure adopted by the Federal Government in prosecuting the CJN over allegations of non-declaration of assets and operating a domiciliary account contrary to code of conduct guideline for public officials.

Relying on a 2017 Court of Appeal judgment in the case of Justice Hyeladzira Nganjiwa against FGN, the body said that the Federal Government ought to have reported the CJN before the National Judicial Council, NJC, which is empowered to examine any allegation of corruption against a serving judicial official.

When another equally powerful and influential group within the association, the Body of Senior Advocates of Nigeria, BOSAN, issued a notice of emergency meeting to its members to discuss the issue, it  was expected that the body will come up with a statement or plan of action that would change the narrative dramatically.

After over six hours meeting on January 19, 2019 at the conference hall of the Nigerian Law School, Lagos, the body came up with a six- point resolution on the FG-CJN imbroglio. The resolution, however, fell short of expectations as many had expected the association to take a hard stand on the issue.

Individually, many of the senior advocates who attended the meeting had openly condemned the charge filed against the CJN.  But in a rather watered statement issued at the end of the meeting, the senior lawyers appeared to have made a volte-face on their earlier individual hard stance, and only simply urged parties to respect the rule of law.

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A communiqué by Professor Ben Nwabueze, SAN and Seyi Sowemimo, SAN on behalf of the body simply said: “The Body of Senior Advocates of Nigeria, BOSAN, deplores the situation that had arisen from the preferment of charges against the Chief Justice of Nigeria, CJN, and head of Nigerian Judiciary before the Code of Conduct Tribunal, CCT.  The body urges respect for the constitution, the rule of law, separation of powers, due process and proper administration of justice. In the prevailing circumstances, all parties are urged to consider the impact of their respective actions on the administration of justice in Nigeria and public confidence in our institutions.

“The body recognises that the matter is subjudice (before the CCT and other courts) and it is, therefore, not appropriate to comment on the merits or otherwise of any of the cases. The Body considers that these issues must be resolved carefully and responsibly in the interest of the legal profession and the nation. The Body of Senior Advocates of Nigeria continues to endorse the core values of good governance, public integrity and sustenance of democracy in the spirit of the constitution.”

A very reliable source told Vanguard Law and Human Right that the soft position adopted by the body was as a result of the intrigues that played out during the meeting. The source told our reporter that senior lawyers at the meeting, who had openly criticised government over the CJN trial, maintained their position and urged their colleagues to also condemn the trial. The source stated that majority of the lawyers who took turns to address the meeting agreed that the action of government was a clear assault on the judiciary and that if allowed, government may extend the assault on them also.

It was, meanwhile, gathered that the presence of other senior advocates, who are in the Federal Government’s prosecution team, added a twist to the meeting. It was learned that while most of the senior advocates supported a strong-worded message to the Federal Government, those working for the FG as prosecutors cautioned that doing so would signal that all senior advocates were fighting the Federal Government.

The source said: “It was a very interesting meeting. Most of our members including myself, were clearly against the decision of the Federal Government to try the CJN before the Code of Conduct Tribunal. The meeting was summoned to address two things. The trial of the CJN, Justice Onnoghen and the President of NBA, Paul Usoro. On the issue of the CJN’s trial, our members spoke their minds openly. They condemned the procedure. The presence of some of our members who work for the government and their position that the matter is already prejudiced, however, made sense. After the long deliberations, a committee was constituted to harness the position of the body and issue a communiqué. Whatever your opinion may be about the communiqué, that is the position of the body.”

Meanwhile, some of the lawyers at the meeting, when contacted, refused to speak to our correspondent.

Despite the position of BOSAN, some of its members have, however,  instituted actions in court to challenge the CJN’s trial.

In the suit by Olisa Agbakoba, SAN, before the Federal High Court in Abuja, Agbakoba, through his lawyer, Chief Mike Ozekhome, SAN, is asking the court to declare the trial of the CJN before the CCT by the Federal Government, illegal, unlawful, wrongful, unconstitutional, null and void.  Joined in the suit as co-defendants are the Attorney-General of the Federation, AGF, Code of Conduct Bureau, CCB, CCT and the National Judicial Council, NJC.

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Agbakoba is praying the court to determine, “Whether having regard to the decision of the Court of Appeal in NgajiwaV FRN (2017) LPELR-43391 (CA) , the combined provisions of sections 6, 153,158,287(2), and 292(1) and Paragraph 21(b) of the 3rd Schedule to the 1999 Constitution, as altered and extant provisions of the Code of Conduct for Judicial Officers, the present charge in Charge No:CCT/ABJ/01/19 against the Chief Justice of Nigeria,  Justice Onnoghen, does not amount to flagrant and violent disregard of the provisions of the Constitution, due process of law, and, therefore, unconstitutional, null, void and of no effect whatsoever.

He is also asking the court to determine whether the Federal Government and the AGF can competently file and maintain charges against Justice Onnoghen before  the CCT  or indeed any court or tribunal without prior recourse to the 4th defendant, the National Judicial Council, in accordance with constitutional provisions.

In  another suit  by Peter Abang before the National Industrial Court sitting in Abuja, the lawyer prayed the court to stop the FG  from taking action to remove the CJN from office. Also joined in the suit are the AGF, CCT Chairman, Danladi Umar, former Inspector-General of Police, Ibrahim Idris, CCT, CCB and NJC.

In a request brought by an applicant, the court, headed by Justice Sanusi Kado, made an interim order, suspending the trial of the CJN, pending the determination of the suit challenging Onnoghen’s false asset charge at the CCT.

The court also restrained all the respondents from proceeding with the hearing at the CCT, pending the determination of the substantive application. The order was subsequently renewed on January 21, 2019. The reinforcement of the order “followed an ex-parte application moved by the claimant’s counsel, James Igwe, SAN, who said there was difficulty in serving the CCT Chairman, Justice Umar, the court’s papers personally.

Two groups, the Incorporated  Trustees of the International Association of Students Economists and Management, IASEM and   Trustees of the Centre for Justice and Peace Initiative are also before the Federal High Court, Abuja in a similar action, seeking to restrain the CCT from continuing with the CJN trial. Ruling on two separate ex parte applications, Justice N. Maha, ordered parties to maintain status quo.

He ruled in the two different suits that the defendants should be served with all the papers filed and they should appear in court at the next hearing.

Also, on January 21, another Federal High Court sitting in Abuja,  stopped the CCT from going ahead with further proceedings on the charge against the CJN.

The court, in its ruling by Justice Inyang Ekwo, held: “Parties are hereby ordered to maintain status quo ante pending the determination of the motion on notice. This means that parties must observe the rule of law by not doing anything that would tamper with the Res in this matter pending the determination of the motion on notice.”

The order followed a fresh suit marked FHC/ABJ/CS/67/2019, which was lodged before the court by Action People’s Party,  APP.

Cited as defendants in the suit were President Muhammadu Buhari, Attorney-General of the Federation, the CJN, Justice Ibrahim Tanko, the CCB and the Chairman of the CCT.

Whereas the court granted the plaintiff leave to serve the processes on President Buhari via substituted means, by delivering them at the Federal Ministry of Justice in Abuja, it said the CJN and Justice Tanko should be served through the Chief Registrar of the Supreme Court.

Justice Ekwo ordered that all the Defendants should be put on notice regarding reliefs four and five in the ex-parte motion the Plaintiff lodged before the court.

But in a dramatic twist to the trial, the CCT on January 22, set aside the subsisting orders of the Federal High Court and the National Industrial Court, NIC, restraining it from proceeding with the case.

The three-member panel chaired by Justice Umar, which is a court of coordinate jurisdiction, ruled that the order issued by the two courts directing the tribunal to discontinue the case are not binding on the tribunal, as it declared the orders null and void.

This is certainly not the norm in the legal practice. It is believed that an order made, rightly or wrongly, must be obeyed and some lawyers are worried that when a court of coordinate jurisdiction openly disregards an order made by another court, it is not a good signal for the judiciary.

Danladi held that the tribunal was established by the constitution and could not be stopped by orders of the two courts. He, therefore, ruled that the tribunal will proceed with the case, and he directed the defendant to move his preliminary application challenging the jurisdiction of the tribunal.

A member of the panel, Julie Annabor, concurred with the position of the Chairman in setting aside the order of the courts.

In his ruling, Atedze William, the only member with dissenting judgment, noting that the tribunal is a creation of the Nigerian Constitution and the decision of the High Court was binding on the tribunal, as the tribunal cannot operate in isolation.

With the way things are today, the CJN’s fate hangs on the balance.