By virtue of Section 1(1) of the 1999 Constitution, the “Constitution is supreme and its provisions shall have binding force on the authorities and persons throughout the Federal Republic of Nigeria.”
This should be stated clearly in view of the opinion by some quarters that the CJN enjoys immunity. Section 308 of the 1999 Constitution which provides for immunity clause does not cover the CJN. Hence, he is not above the law. Yet, in the application of law in a secular state, justice should be blind to which section or position a judge holds.
It should be about the protection of the rights and liberties of citizens and the promotion of the rule of law.
It is argued by critics of the Federal government and by legal commentators that given what is already established by the Court of Appeal in a suit brought by the Economic and Financial Crimes Commission (EFCC) against Justice Hyeladzira Nganjiwa, a judge of the Bayelsa Division of the Federal High Court, who was accused of unlawfully receiving $260,000 and N8.6 million through his bank account between 2013 and 2015.
It is also instructive to mention that when the federal government charged Justice Nwali Sylvester Ngwuta, also of the Supreme Court, before the tribunal for alleged non declaration of assets, the case was quashed after he cited the above judgement in the case of Justice Hyeladzira Nganjiwa vs the Federal Republic of Nigeria by the Court of Appeal.
For clarification, the Nigerian legal system is based on the doctrine of judicial precedent otherwise known as ‘stare decisis’ – meaning that a lower court is bound to follow and apply the decision of higher courts.
But a closer examination at the decision of the Court of Appeal in Justice Nganjiwa versus Federal Republic of Nigeria where the appellate court held that no criminal investigation or prosecution can be initiated or instituted in any court of law or tribunal against a serving judicial officer for judicial misconduct without first presenting the allegation to the NJC and a determination made.
However, counsel to the federal government and a Senior Advocate of Nigeria, Abeni Mohammed, vehemently opposed the application and urged the tribunal to dismiss it in its entirety. The senior counsel submitted that the claim of the judicial officer was misconceived by the defendant adding that Mr. Ngwuta was put on trial at the CCT as a public office holder and not as a judicial officer.
Besides, Mr. Mohammed said that the finality of the Appeal Court decision relied upon by the defendant has not been tested at the Supreme Court.
In his words, “The defendant is here as a public officer to face charges against him and not as a judicial officer. He is here as Sylvester Nwali Ngwuta and not as Hon. Justice Sylvester Nwali Ngwuta. It is not derogatory, that is what the law says,” the counsel argued.
Mr. Mohammed insisted that the decision of the appeal court on the judicial officers in relation to section 158 of the 1999 constitution was not an application to the trial of the defendant because of peculiar circumstances and asked the tribunal to assume jurisdiction.
Itsey Sagay, Chairman of the Presidential Advisory Committee against Corruption, says the National Judicial Council (NJC) does not have the power to preside over cases of wrong asset declaration of any judge.
Speaking in Abuja, Sagay said the provision of the Code of Conduct Bureau (CCB) precludes NJC from deciding on the case of any judge that is accused of not declaring his assets. He argued that: “If he is removed from office by the NJC and he ceases to be a judicial officer as well as a public officer, can he, therefore, be tried as a public officer before the Code of Conduct Tribunal? The answer is No, because he is no longer a public officer.
The extant provisions of the Constitution and the Code of Conduct Bureau and Tribunal Act would be rendered nugatory, by a prior NJC involvement.
He added: “Even a baby must realise that no one can get justice against the Chief Justice of Nigeria at the NJC. The CJN is not only the Chairman of the NJC, he is also the appointor of 20 out of the NJC’s 23 members. The CJN is the NJC. Only a grossly ignorant man or an extremely mischievous one could seriously suggest that a matter involving the CJN should be brought before the NJC for adjudication”.
Therefore, the whole idea of taking the present case to the NJC is a non-starter. For that would make the CJN the chief judge of his own case, a clear violation, not only of the Constitution but also of a long standing common law principle coming all the way from MAGNA CARTER in the year 121.
Needless to say that the CJN Justice Walter Onnoghen is facing the battle of his political carreer.He was one of the judges indicted for corruption and recommended for dismissal by the Justice Kayode Eso Panel set up by the Sani Abacha military regime to probe incessant allegations of judicial corruption in 1994. Justice Onnoghen was then a judge in the Cross River State high court where he was accused of selling justice to the highest bidder.
Luckily for Justice Onnoghen he had been promoted to the Court of Appeal when the implementation of the recommendation of the Eso Panel was carried out against only judges of high courts across the country.
On the request by the Federal government that the CJN vacates his. Seat, the constitution has succinctly provided for the procedure in which the CJN can be removed under Section 292 which requires the support by the two-third majority of the Senate.
To question the sincerity of the Federal Government in this case is not entirely wrong. The speed given to the petition makes one fear the sincerity of the Federal Government’s purpose in the matter: fight against corruption or a malicious ‘persecution’? Come to think of it, the petition dated January 7, 2019 was said to have been received by the Chairman of the CCT on January 9, and within three days, they made their investigations and consequently are ready to arraign the CJN? Obviously, the hastiness should give well-meaning Nigerians and the entire world a cause for concern.
A Professional Misconduct Or An Ethical Misconduct?
– By Abimboye Femi (A Political Observer)
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