•…Agbakoba asks court to declare Onnoghen’s suspension unconstitutional
By Innocent Anaba & Ikechukwu Nnochiri
ABUJA—As the deadline for the suspended Chief Justice of Nigeria, CJN, Walter Onnoghen, and acting CJN, Tanko Mohammed by the National Judicial Council, NJC, to respond to petitions against them expired yesterday, the Attorney General of the Federation and Minister of Justice, Mr. Abubakar Malami, SAN, has challenged the powers of the National Industrial Court, NIC, in Abuja, to stop the suspended CJN from facing trial over alleged failure to declare his assets.
The AGF maintained that the NIC lacked the jurisdiction to interfere in the ongoing criminal proceeding the Federal Government initiated against Justice Onnoghen before the Code of Conduct Tribunal, CCT.
He, therefore, raised a preliminary objection to challenge a suit the NIC relied upon to order the Mr. Danladi Umar-led CCT panel to halt action on the planned arraignment of the suspended CJN.
This development came on a day former president of the Nigerian Bar Association, NBA, Dr. Olisa Agbakoba, asked a Federal High Court sitting in Abuja to declare that the suspension of Justice Walter Onnoghen by President Muhammadu Buhari, sequel to an ex-parte order of the Code of Conduct Tribunal on January 25, 2019, was unconstitutional.
It will be recalled that the NIC had on January 14, ordered the federal government not to proceed with Justice Onnoghen’s trial, pending the hearing and determination of the suit lodged before it by a rights activist, Mr Peter Abang.
The court further issued an interim injunction that barred the tribunal from entertaining any application for Justice Onnoghen to step aside from his position as the CJN, until all the legal issues were resolved.
The order came on a day the CCT panel slated to commence the trial.
However, following the absence of the Defendant to take his plea, the tribunal, which insisted that it must proceed with the case, re-summoned Justice Onnoghen to appear before it on January 22.
The CCT Chairman, Mr. Umar, contended that under the 1999 constitution, as amended, the NIC shared coordinate jurisdiction with the tribunal, and, therefore, lacked the vires to issue a binding injunction against its proceeding.
In a counter move, the NIC, a day before the tribunal’s return date, in a delivered by Justice Sanusi Kado, re-activated all the interim orders that stopped further proceedings on the charge against Onnoghen.
Following an ex-parte application that was brought by FG, the CCT, on January 23, ordered Justice Onnoghen to step aside as both the CJN and Chairman of the National Judicial Council, NJC.
Based on the said ex-parte order, President Muhammadu Buhari, on January 25, suspended Onnoghen and swore in the next most senior Justice of the Supreme Court, Justice Tanko Muhammad, as the Acting CJN.
Meanwhile, at the resumed sitting of the NIC, yesterday, the AGF, aside from challenging the jurisdiction of the industrial court to meddle in the non assets declaration charge against the suspended CJN, also applied for all the interlocutory injunctions to be set aside.
The AGF also urged the NIC to hands-off the suit which he said was grossly incompetent.
Other Defendants in the matter are the CCT Chairman, the Code of Conduct Bureau, the NJC, the Federal Judicial Service Commission, the Inspector-General of Police, and the Senate President, Dr. Bukola Saraki.
All the defendants were absent at the resumed sitting, apart from the AGF who was represented by Mr. Dauda Lamiri.
Mr. Lamiri told the court that all the parties were duly served with the AGF’s motion.
Counsel to the Claimant, Mr. James Igwe, SAN, acknowledged that he had been served by the AGF, saying he was not aware why all the other defendants were not in court.
Before he adjourned the case till March 14 for hearing of the substantive originating summon and all pending applications, Justice Kado directed that hearing notices be served on all parties and proof of service kept in the case file.
The Umar-led CCT panel had last Monday, adduced reasons the suspended CJN must be arraigned to enter his plea to the six-count charge FG levelled against him.
The tribunal maintained that it was legally wrong for Justice Onnoghen, to stay afar and query the competence of the charge, as well as jurisdiction of the CCT to entertain same.
Umar relied on previous decisions of the Supreme Court and provisions of the Administration of Criminal Justice Act, ACJA, 2015, to contend that a Defendant in a criminal matter must, first mount the dock and enter his plea to the charge, before any application could be heard. The panel, therefore, directed the suspended CJN who was absent for the third consecutive time, to appear before it next Tuesday to be arraigned over the allegation that he failed to declare his assets as prescribed by the law, as well as, operated foreign bank accounts, in violation of the code of conduct for public office holders.
Meanwhile, former President of the Nigerian Bar Association, NBA, Dr Olisa Agbakoba, SAN, has asked a Federal High Court sitting in Abuja, to declare that the suspension of Chief Justice of Nigeria, CJN, Justice Walter Onnoghen by President Muhammadu Buhari sequel to an ex-parte order of the Code of Conduct Tribunal on January 25, 2019, was unconstitutional.
Agbakoba is contending in the suit that the suspension or removed from office of Justice Onnoghen, except on the recommendation of the National Judicial Council, NJC, or the President acting on an address supported by two thirds majority of the Senate, was null and of no effect.
Defendants in the suit are the Attorney General of the Federation and NJC.
He is praying the court to declare whether by the combined interpretation of Section 153 (1)(i), Paragraph 21 (b) of the 3rd Schedule and Section 292 (1) (a) (i) of the Constitution of the Federal Republic of Nigeria 1999 as (amended) the CJN, Justice Onnoghen, could be suspended or removed from office except on the recommendation of the National Judicial Council, NJC, or the President acting on an address supported by two-third majority of the Senate.
He is further praying the court to declare that by the combined interpretation of Section 153 (1)(i), Paragraph 21 (b) of the 3rd Schedule and Section 292 (1)(a) (i) of the Constitution of the Federal Republic of Nigeria 1999 as (amended) the CJN, Justice Onnoghen cannot be suspended or removed from office except on the recommendation of the NJC or the President acting on an address supported by two thirds majority of the Senate.
He is praying for any such further order or orders as the court may deem fit to make in the circumstance.
Agbakoba in an affidavit he deposed to in support of the suit, averred: “I know that January 25, 2019, President Buhari pursuant to an ex-parte order of the Code of the Conduct Tribunal purportedly suspended the CJN, Justice Onnoghen, and purportedly swore in Justice Tanko Mohammed as the acting CJN.
“I am aware that there is public outrage as a result of the suspension of Justice Onnoghen. I also know that there are different views about whether the President of Nigeria can suspend the Chief Justice of Nigeria as he did.
“I know that the Constitution of the Federal Republic of Nigeria 1999 provides for removal of the CJN and that the CJN can only be removed based on the recommendation of the NJC or an address by the President supported by two third Majority of the Senate.
“I am fully aware that contrary to the provisions of the Constitution, the President suspended the CJN, Justice Onnoghen, based on an ex-parte order from the Code of Conduct Tribunal on January 25, 2019.
“I am aware that the NJC will on February 11, 2019, determine petitions on the suspension of the CJN, Justice Onnoghen and the swearing in of Justice Mohammed as the Acting CJN.
“The decisions of the NJC are purely administrative. I believe it is in the public interest for the court to declare the law as relates to the suspension or removal of the CJN.”