“We must not confuse dissent with disloyalty. We must remember always that accusation is not proof and that conviction depends upon evidence and due process of law…” (Edward R. Murrow) ‘A Report on Senator Joseph R. McCarthy’-CBS. http://www.lib.berkeley.edu March 09,1954.
Julia Child further posited, “In the blood-heat of pursuing the enemy, many people are forgetting what we are fighting for. We are fighting for our hard-won liberty and freedom; for our Constitution and the due process of law; and for the rights to differ in ideas, religion and politics “. See Alex Prud’homme and Julia Child,”My Life in France”(2006) , page 184.
The words of the above jurists are apposite comments on the recent trial of His Lordship, Hon. Justice Samuel Walter Nkanu Onnoghen the incumbent Chief Justice of Nigeria (CJN). His Lordship has been arraigned (though was absent on the first day) before the Code of Conduct Tribunal on charges for False Asset Declaration which is a breach of the Code of Conduct for Public Officers. The trial of the CJN has become a debate within the legal circle and on the lips of Nigerians in general. There are indeed several issues to appraise in this controversial. This columnist sees this arraignment as a brazen and reckless attempt at desecrating and denigrating the entire Nigerian Judiciary right from its head. This is rather unfortunate and appalling.
First, the jurisdiction of the Code of Conduct Tribunal to try the CJN occupies a very fundamental seat on this table. It is instructive to note that jurisdiction is very fundamental in any suit whether civil or criminal; it can be raised at any time in the course of proceedings, even for the first time at the Supreme Court (Madukolu v. Nkemdilim (1962) SCNLR 341). The Courts have held in plethora of cases that any decision arising from a court that lacks jurisdiction no matter how well considered or written will be a nullity and a waste of precious judicial time. (Madukolu v. Nkemdilim Supra; Edet v. State (2009) All FWLR (Pt. 463) 1430; Onwudiwe v. FRN (2006) All FWLR (Pt. 319)). It is settled law that the Constitution is the Supreme law of the land and other laws that are inconsistent with the Constitution are null and void. The Constitution has laid a condition precedent for the discipline of judicial officers who have committed professional misconduct in line with their offices before they can be tried in regular courts or quasi-Criminal tribunal. A cumulative reading of the provisions of section 153(1), Section 158(1), paragraph 21(b) of part 1 of the third schedule to the 1999 constitution (as amended) vests the National Judicial Council (NJC) with the SOLE power to discipline serving Judges who have erred in office. Such misconducts must however be related to their scope of duty. (Nganjiwa v. FRN (2017) LPELR 43391 (CA)).
Meanwhile, there have also been arguments that the afore-cited Nganjiwa v. FRN does not apply to the recent trial of the CJN. This is an argument I cannot shy away from throwing my full weight against. We must note that the incumbent CJN has been a Justice of the Supreme Court. The alleged misconduct in the instant controversy was committed in the course of his duty as a Justice of the Supreme Court and acting Chief Justice of Nigeria. Rule 3.1 of the Revised Code of Conduct for Judicial Officers of the Federal Republic of Nigeria provides that a Judicial Officer must be faithful and abide by the provisions of the constitution. Hence, this gives the NJC and not the CCT the jurisdiction to decide whether or not the CJN has breached the provisions of the constitution.
Regulation 2 of the Judicial Discipline Regulation 2017 provides thus:
“The Regulations govern allegations and complaints of misconduct against Judicial Officers and proceedings initiated in exercise of the power of the National Judicial Council pursuant to Part 1 of the third schedule of the 1999 Constitution of the Federal Republic of Nigeria as amended, to exercise disciplinary control over Judicial Officers against whom allegation of misconduct has been made.”
It is my firm submission that the allegations made against the CJN are covered by these provisions and the decisions of the Court of Appeal (CA) in Nganjiwa v. FRN. Any Court that entertains a matter without the fulfillment of the relevant condition precedent does so in futility, such action of the Court is a nullity. Madukolu v. Nkemdilim (supra). Thus, the Code of Conduct Tribunal cannot be said to have jurisdiction without first recourse to the NJC to exercise its disciplinary powers over the CJN. To act otherwise will render any decision therefrom a nullity.
Does this mean that the NJC has absolute disciplinary powers over all Judicial Officers with respect to all kinds of offences? The Court in the Nganjiwas case has settled all doubts in this regard by holding that where such violations or misconducts are not in exercise of their judicial duties, the NJC then would lack sole disciplinary powers over such Judicial Officers.
Furthermore, the Federal Government has filed an interlocutory application praying the Code of Conduct Tribunal to remove the CJN and compel the President to appoint an acting CJN pending the determination of the matter before the Tribunal. The CJN can only be removed in accordance with section 292 of the Constitution providing for the removal of the CJN by the president upon the recommendation of the NJC with two-third majority support of the Senate. Doing otherwise amounts to a flagrant breach of the provisions of the Constitution. (Erelu-Habeeb v. AGF).
The instant Tribunal also lacks the judicial powers to compel the NJC to remove the CJN. Assuming without conceding that the Tribunal even has this power, the NJC cannot recommend His Lordships removal without proper investigation, affording him opportunity to defend himself in line with the spirit and principle of fair hearing. It is surprising that a Tribunal whose jurisdiction is still hanging in the balance of questionability is simultaneously invited to a tea party of granting an interlocutory application in respect of the same matter. This is clearly improper and an abuse of Court Process. The Court has held in Adesuji v. FUTA (2017) 9 NWLR (Pt. 1570) 208 at 221, that an abuse of Court Process is an improper use of judicial process by a party in litigation.
The hue and cry for His Lordship to vacate office as the CJN and the chairman of the NJC on the premise that he cannot be a Judge in his own cause (nemo judex in causa sua) is tantamount to crying wolf where there is none. This is passing a verdict of guilty on His Lordship without any proof of evidence before a competent court. A fortiori, it equates passing a guilty verdict by treacherously and unconscionably circumventing clearly established legal principles and conditions-precedent for dealing with such matters. We must not forget that it is the duty of the prosecution to prove his guilt and not the other way round.
At the moment, the CJN enjoys the presumption of innocence until he is proved guilty following due process of law. I submit that the CJN should step aside as the chairman of the NJC when a petition in respect of the alleged misconduct is filed against him to the NJC since he may easily influence the Council. However, asking him to step aside as the Chief Justice of Nigeria is passing a verdict of guilty on him without due process of law and of course, a violation of his fundamental rights entrenched in the Constitution.
In Conclusion, the CJN is not above the law. The rule of law is above all persons and all are subject to it. Justice John. H. Harlan held in Plessy v. Ferguson 163 U. S 537 (a dissenting judgement):
“The Constitution is colourblind and neither knows or tolerates classes among Citizens“.
The Nigerian Constitution is class-blind and by its character and personality, is no respecter of person. The above is not positing that the CJN does not have a case to answer. It is only canvassing arguments that the due of process of law be allowed to take its full course. We must never pay blind sights to the words of the eminent jurist, Hon. Justice Kayode Eso (of blessed memory):
“… It is the duty of the government to allow the law to take its course or allow the legal and judicial process to run its full course”. See’ Rule of Law or National Security, Which Should Supersede ‘ http://www.thepunchng.com. September 4,2018
DANIEL AKINWALE, ESQ
GUEST COLUMNIST, LAW AXIS 360°
JANUARY GUEST COLUMN SERIES
Daniel Akinwale Esq is a Legal Practitioner, Associate Arbitrator, Centre Institute of Arbitration, UK, Anti- Human trafficking Activist, member of the institute of Brokers and Mortgages. He is currently serving his fatherland with the Ministry of Justice, Sokoto State.