The Federal Government and Attorney General of the Federation, AGF, have on Thursday, February 28, 2019, faulted claim by the Cross River State Government that suspended Chief Justice of Nigeria, CJN, Justice Walter Onnoghen has been illegally removed from office.
The FG and AGF argued that, as against Cross River’s claim, Onnoghen has not been removed from office, he was simply suspended to enable him to stand trial for the charge of breach of the code of conduct, before the Code of Conduct Tribunal, CCT.
Dayo Apata, the Solicitor General of the Federation, SGF, spoke for the FG and the AGF at the hearing of a suit by Cross Rivers State, in which it challenged Onnoghen’s suspension and asked that the decision be set aside.
Apata contended that “there is a clear distinction between suspension and removal.” He noted that there was no evidence before the court to show that the CJN was removed or dismissed from office.
The Solicitor General was reacting to the argument by the lawyer to the plaintiff, Lucius Nwosu (SAN), to the effect that Onnoghen’s removal from office, by the Executive, was a violation of the Constitution, attach on the Judiciary and a breach of the doctrine of separation of powers.
Apata argued the defendants’ notice of preliminary objection and counter-affidavit, filed in response to the plaintiff’s originating summons.
He urged the court to uphold his objection and dismiss this suit, marked: SC/45/2019, for lack of locus standi, on the grounds that the subject matter does not qualify as a dispute between
Apata said: “Our submission is that there is no dispute between Cross River State and the Federal Government of Nigeria on the subject matter of this case or the charge pending before the Code of Conduct Tribunal, CCT.
“In the absence of any dispute, the original jurisdiction of this court cannot be invoked by the plaintiff. The office in question is the office of the Chief Justice of Nigeria, not the Chief Judge of Cross River State,” Apata said.
On the competence of the suit, Apata faulted Nwosu’s argument that it was intended to protect the Constitution and current its violation by the Executive in the manner Onnoghen was removed from office.
Apata argued that as against the plaintiff’s position, the suit seeks to obstruct the efforts of the defendants to protect the interest of justice as provided in Section 174 of the Constitution, where the AGF is enjoined to ensure that every prosecution should be done in the interest of justice
“The interest of justice is being done with the decision by the Federal Government to prosecute the CJN before the CCT. By this suit, the plaintiff is seeking to frustrate that effort, so the case of Fawehinmi and Akilun cited by the plaintiff’s lawyer does not support their case,” Apata said.
He also faulted Nwosu’s reference to the oath he took, on being conferred with the rank of Senior Advocate of Nigeria, to protect the Constitution and defend the interest of the Federal Republic of Nigeria.
Apata argued that Nwosu was not the plaintiff, but a lawyer to the plaintiff. He said noted that if Nwosu was interested in keeping faith with the oath he swore to, he should have instituted the suit himself.
He added: “The lawyer is not the plaintiff here, but the Cross River State Government. And since the subject is not a dispute between the Cross River State and the Federal Republic of Nigeria, the objection should be sustained.”
Apata urged the court to resist the attempt by the plaintiff to make it determine a criminal proceeding that is still pending at the Court of Appeal, which has not been determined.
He said, as at on Wednesday, February 27, 2019, the Court of Appeal reserved judgments on appeals on the same subject matter as this case. This is a case of abuse of court process and forum shopping.
When asked if the parties at the Court of Appeal were the same as those in the case before the Supreme Court, Apata said no, but that the subject matter is the same.
In his argument, Nwosu urged the court to dismiss the defendants’ objection and grant all the reliefs sought by the plaintiff.
Nwosu argued that, by their objection, the defendants sought to treat the office of the CJN as personal to Onnoghen. He said it is an office created by the Constitution, with responsibilities.
He added: “The seat of the CJN is an institution specifically established by the Constitution of Nigeria, which also makes it tenured, to the effect that the occupant should stay there until his/her retirement age.
“And the only way he/she can be removed before his/her retirement age has also been stated in the Constitution. This dictates that even if there is any transgression, this procedure must be followed.”
Nwosu insisted that the Supreme Court was the proper forum for the case to be decided. He said, since the case was brought by a state, the Constitution says, where there is a dispute between a state and the Federal Government on any constitutional issue/question, the Supreme Court shall be the proper venue.
He added: “The plaintiff is saying, we have seen that you are breaching the constitution and the doctrine of separation of powers, which is the foundation on which we agreed to be part of this federation, so we can come here.
“Once a dispute has been established between a state government and the FG, over a breach of the Constitution, this is the appropriate forum. This suit is brought because the Cross River State Government thinks that the Constitution has been violated,” Nwosu said.
He faulted Apata’s argument that similar cases, filed by Onnoghen were currently pending before the Court of Appeal and on which judgments have been reserved.
Nwosu distinguished both cases and argued that the one before the Supreme Court was not personal to Onnoghen, but meant to cure a violation to the Constitution and the prevent such violation in the future.
He added: “My Lord, there is a siege on the court. They have broken into your (judges’) houses at night, now they have come for your necks.
“We do not know who will be next. If we do not act now, you may not be sitting here in the next few weeks.
*You shall be remembered for what you have done. This is an opportunity for you now to stop this violation of the Constitution.”
Nwosu cited Legal Practitioners Privileges Act, where every Senior Advocate pledges to uphold the provisions of the Constitution, and argued that it will be a gross dereliction of his oath to watch the CJN removed from office in a manner alien to the procedure created by the Constitution.
After listening to the lawyers, a seven-man panel of the court, led by Justice Olabode Rhodes-Vivour adjourned to May 17 this year for judgment.
The Cross River State Government, in its originating summons, queried the propriety of Onnoghen’s trial before the CCT and urged the Supreme Court to declare it illegal on the grounds that it was only the National Judicial Council, NJC, that could exercise disciplinary powers over a serving judge.
want the court to among others, declare that, by the provisions of sections 4, 5, and 6 of the Constitution, there a clear recognition of the doctrine of separation of powers and checks and balances in relation to the operations of the three arms of government.
The Cross River State wants the court to declare that, by virtue of the provisions of sections 153(1), 158(1(, Paragraph 21(b) of Part 1 of the Third Schedule to Constitution, it is the NJC that is exclusively empowered to recommend to the President or Governor the appointment/removal of any judicial officer.
It also seeks a declaration that the CCT, not being the NJC, is not vested with the jurisdiction over any judicial officer for alleged official misconduct on the part of a judicial officer, without a formal complaint of such official misconduct being first made to and investigated by the NJC.
The plaintiff equally wants the Supreme Court to declare that the filing of the charge, before the CCT, against Onnoghen, being a judicial officer, without any formal complaint having been made against him to the NJC, robbed the CCT of jurisdiction to try the charge and all the proceedings relating thereto, amount to a nullity.
It therefore urged the court to grant an order of injunction, restraining the defendants and their agents from further initiating or proceedings with any similar charge or charges against Onnoghen or any judicial officer of the superior court created by the Constitution, until a formal report of misconduct is first, made to and investigated by the NJC.
In a supporting affidavit sworn to by an official of the Cross River State Ministry of Justice, Ibi Mboto, the plaintiff stated that Onnoghen is an indigene of the state and the highest judicial officer from the state.
It argued that Onnoghen’s suspension and trial before the CCT, without first, being subjected to the NJC’s process, as dictated by the Constitution, was unlawful and unconstitutional.
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