We’ve not removed Onnoghen, Fed Govt, AGF tell Supreme Court

•Court to decide suspended CJN’s fate May 17

The suspended Chief Justice of Nigeria (CJN), Justice Walter Onnoghen, has not been illegally removed from office, the Federal Government and Attorney-General of the Federation (AGF) said yesterday.

Faulting claims by the Cross River State Government that the embattled CJN has been eased out of office, the government and the AGF explained that Justice Onnghen was suspended to enable him stand trial for the charge of breach of code of conduct, before the Code of Conduct Tribunal (CCT).

Solicitor-General of the Federation (SGF) Dayo Apata spoke for the government and the Office of 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: “There is a clear distinction between suspension and removal.  There is no evidence before the court to show that the CJN was removed or dismissed from office.”

He argued that Justice Onnoghen’s suspension was not arbitrary, and that President Muhammadu Buhari acted on a valid order made by a competent court, the suspended CJN has now appealed.

The solicitor-general was reacting to an argument by plaintiff’s lawyer, Lucius Nwosu (SAN), to the effect that Onnoghen’s removal from office by the executive was a violation of the Constitution, attack 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 plantiff’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

He 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.”

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 SAN, to protect the Constitution and defend the country’s interest.

Apata argued that Nwosu was not the plaintiff, but a lawyer to the plaintiff. He 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 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 proceedings that is still pending at the Court of Appeal, which has not been determined.

He said that as at yesterday (Wednesday), 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,” he said.

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 Justice Onnoghen, being 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 described the Supreme Court as 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.

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 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.”

The plaintiff’s lawyer argued that it was outrageous and shameful that Apata claimed that Onnoghen was suspended based on an order of court and proceeded to exhibit a copy of the said order.

H said: “It is a shame that the Solicitor General of the Federation exhibited the laughable order made by a lay magistrate. Can this court also just order the President to vacate office? If they say an order is an order, maybe you here, should order the removal of the President.”

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 thus year for judgment.