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Onnoghen CJN’s Trial: Playing the Game of Law
Barr. ‘Tosin Samuel Alawode Esq
There is hardly anything to be said in law, in morality and in politics which has not been said already since the news of the impending arraignment of His Lordship broke out up till the time he was suspended by the President. Nigerians, and as always, have all become barristers and solicitors of the Supreme Court of Nigeria, even when many did not have Law degrees, as a commentator said on one of the live programs I saw on the television few hours ago, that the Constitution of Nigeria is written in English, so this gives everyone the latitude to interpret the law – who says they cannot? But this discuss, generally, the narratives ensuing, and the Political and legal conclusions have divided the Bar itself, the judiciary and Nigerians [along our Ethno-Political divides].
All Nigerians agreed and have accepted the powers of NJC and the legislatures, especially in the appointment and removal of a Judicial Officer, which are the powers to make recommendations in appropriate circumstances by NJC and the two-third support of the Legislatures in the removal of the Chief Judge/Justice by a Governor of a State or the President in appropriate circumstances. Section 292 of the Constitution needs no further debate such that the Supreme Court has had to resolve same in the case of ELELU-HABEEB v. A-G., FED (2012) 13 NWLR (PT. 1318) 423.
However, in the circumstances of this case, I submit that the only relevant power of the NJC in this matter is the power contained at paragraph 21(b) and (c) of Part 1 of the Third Schedule of the Constitution which its misinterpretation has misled many of us into the belief that NJC is the only authority with the powers to discipline a judicial officer. This is not true. If the entire Paragraph 21 is read together, then meaning of sub-paragraph (i) thereof will become clearer that the NJC is merely a policy and administrative body and not a criminal Court. And as such, which I know is the practice, where an allegation is made against a Judge, the NJC will set up a disciplinary panel which will submit a report to NJC which will form the basis of a recommendation or otherwise to be made. But that is only applicable where the allegation is an infraction of the Code(s) guiding his duties as a judicial officer and nothing more. But where the infraction is a crime, a different approach must be taken and this shall be explained.
To start with, an allegation of infraction of the Code of Conduct Bureau and Tribunal Act and the proceedings of the CCT has been held by the Supreme Court as “quasi-Criminal” in nature in the case of SARAKI v. FRN (2016) ALL FWLR (PT. 836) 395. Therefore, if that explains the law, would an administrative body like NJC have the powers and jurisdiction to determine such? I am aware that the arguments of Nigerians have been that the NJC must investigate the allegation first before any criminal proceedings are instituted in Court. I found this arguments totally wrong, and as a matter of fact, the other way is the case.
The law settled before now is that where a public body is vested with the power to discipline certain persons, it can only exercise such powers, in the case where the charges are criminal in nature, after the person has been tried in the Court and convicted, even though it also relates to misconduct. See FEDERAL CIVIL SERVICE COMMISSION v. LAOYE (1989) 2 NWLR (PT. 106) 652 and DENLOYE v. MEDICAL AND DENTAL DISCIPLINARY COMMITTEE (1968) NSCC 260. Needless to say that the Federal Civil Service Commission which was in issue in Laoye’s case is in the same class of institution as the National Judicial Commission. Please see Paragraph 10 of Part 1 of the Third Schedule of the Constitution.
In a nutshell, the allegation of crime against a Judicial Officer can only be determined by a Court or Tribunal of competent jurisdiction and the verdict of such Court or Tribunal is what the NJC will consider in its recommendation for removal or reinstatement of such a Judicial Officer.
I cannot claim oblivion of the decision of the Court of Appeal in the celebrated case of NGAJIWA v. FRN (2018) 4 NWLR (PT. 1609) 301 being heavily relied upon but I must say that the said decision has not created any conflict in the law. This is because, the subject matter in that case is purely a misconduct and not a criminal or quasi-criminal allegations like Onnoghen CJN’s case. But in such circumstances where a particular allegation can be interpreted as a crime and at the same time a misconduct, the blue pencil rule have been held to apply, which means, the facts must be severed. That is, while the allegations which can be concluded as mere misconducted are referred to the administrative body, the ones concluded as criminal in nature are referred to the Court or Tribunal and the two proceedings can go on simultaneously. Please read NIGERIAN TELE-COMMUNICATIONS LTD v. AWALA (2001) 45 WRN 146.
In this case, the CCT is the right forum to try the allegations levied against his Lordship and the powers of the NJC can only be actively relevant and applicable after the trial has been concluded and His Lordship found guilty.
But my worry is this, as all the actors in this saga cannot feign ignorance of the above positions, perhaps it will be safe to conclude therefore that what is playing out here is what I called playing “The Game of Law”. The real issue here is political and both parties are using the Law to solve real political dispute. When I say political, I do not mean PDP versus APC but simply, “who gets what, when and how”.
In playing this game of law, on one side is the man, the gaffer and the synecdoche of the Judiciary in Nigeria with a team of lawyers who pride as the most popular, most successful and most powerful in Nigeria and the other side is the Federal Government with all the powers of the sovereignty of Nigeria.
If it is not a game, why would the Federal Government be ready to damn the consequences of their actions when they knew quite well that their actions would be given political, ethnic and abuse of power colourations at this time when the general elections are few weeks away? Yet they went ahead with their decision;
If it is not a game, why would the CJN who knows his decision in Saraki’s case on the constitutionality, powers, jurisdiction and true composition of the CCT yet refuse to appear before the same constitutionally constituted Tribunal to answer to the charges properly brought against him and served on him;
If it is not a game, why would the Court of Appeal order a Stay of Proceedings of CCT when in fact the same Court of Appeal and the Supreme Court held in the case of OLISA METUH v. FRN (2017) ALL FWLR (PT. 901) 722 that neither of the two Courts has the power to stay the proceedings of a Criminal Court, yet in this case, they ordered a Stay of Proceedings of the CCT;
If it is not a game, why would the CCT grant an Ex parte Order of Injunction directing the suspension of a Defendant who has been served with originating processes and has made representations in Court, when it is the law that at that stage, every application to the Court can only be made by Motion on Notice.
The foregoing lead me to the issue of suspension of His Lordship by the President. I am of the opinion that there are moral and legal justifications for this. Morally, the toga of the CJN is too big to be worn as a defendant in a criminal case. That has to be removed first. My Lord had to be stripped of all the aura of the most powerful person in the Judiciary in order for justice to be manifestly seen to be done in this case. In law however, suspension is a normal procedure taken to facilitate investigation of allegation against a person. The law is that the interest of the employer, in this case Nigeria, is paramount and the person cannot at this stage complain of fair hearing and breach of natural justice but where it is found wrongful later on, the person could treat such as a repudiatory conduct and can only be entitled to resign and claim for wrongful or unfair dismissal. Please read UNIVERSITY OF CALABAR v. ESIAGA (1997) 4 NWLR (PT. 582) 719 and LONGE v F.B.N 3 NWLR (PT. 967) 228.
In my conclusion, it is very unfair on our collective existence as Nigerians bounded by a Constitution, to be dragged in this “Games of Law” and made to suffer intellectually by these two sets of gamers who obviously know the law but have chosen to play the game of law.
It is my submission, as often said, that where two elephants fight the grasses suffer. I would further say that Nigerians should look beyond the rhetorics of North versus South, PDP versus APC, the fight against corruption, the rule of law, due process and all other jargons that have been sold out to us and choose amongst these gamers who should pay the ultimate price of saving our nascent democracy in the face of this crumbling state of despair. For me, at this moment, I would choose the CJN and insist that he resigns his position, and later decide the fate of the other players with my PVC on 16th February 2019.
As for you; Please Choose Yours Wisely.
Barrister ‘Tosin Samuel Alawode, an Ilorin based legal practitioner can be reached via tsazionattorneys@gmail.com or +2348038050321
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