Supreme Court rejects Cross River’s suit against Onnoghen’s suspension, trial

The Supreme Court has rejected a suit by the home state of the immediate past Chief Justice of Nigeria (CJN), Walter Onnoghen – Cross River State – faulting his suspension from office by President Muhammadu Buhari.

President Buhari had, upon an ex-parte order issued by the Code of Conduct Tribunal (CCT) on January 23 this year, suspended Onnoghen from office pending the conclusion of his trial before the CCT on charges of breach of Code of Conduct for Public Officers.

Onnoghen remained on suspension until he retired and was, on April 18 this year , convicted by the CCT after finding that he did not declare some of his assets.

In a judgment on yesterday,  six members of a seven-man panel of the Supreme Court, headed by Justice Olabode Rhoes-Vivour, held that the court lacked jurisdiction to hear the case, because the Attorney General of Cross-River State, in whose name the suit was instituted, lacked the requisite locus standi to initiate the case.

The lead judgment, authored by Justice Olukayode Ariwoola, was read by Justice Paul Galumje, where he also said  the Supreme Court was not the appropriate forum to ventilate whatever grievances the plaintiff may have in relation to the cause of action.

The lead judgment, which five other members of the panel agreed with, upheld the preliminary objection raised against the suit by the Attorney-General of the Federation (AGF) and struck out it (the suit) without examining the merit, on the grounds that it had earlier held  that the court lacked jurisdiction to hear the case.

Justice Ariwoola said: “The plaintiff lacks the locus standi to institute this action, which in turn renders the Supreme Court incompetent to adjudicate on it.

“The preliminary objection is sustained and this action, without any further ado, is liable to be struck out. This, to say the least, is not the appropriate court for any any aggrieved party to ventilate whatever grievance is said to exist. That is, the suspension of the Honourable Justice Walter Nkanu Onnoghen, GCON, from office of the Chief Justice of Nigeria.

“Having come to the above irresistible conclusion, there is no need to further consider the merit of the originating summons filed by the plaintiff. The preliminary objection succeeds and it is upheld. In the final analysis, this suit is hereby struck out.”

Those who agreed with the lead judgment are Justices Rhodes-Vivour, Dattijo Muhammad, Kudirat Kekere-Ekun, Inyang Okoro and Sidi Bage (who retired recently to become the Emir of Lafia, Nasarawa State).

He was said to have written his contribution to the judgment before he retired.

Justice Mary Odili, however, dissented and wrote the minority judgment, in which she struck the preliminary objection filed by the AGF and assumed jurisdiction over the case.

She  held that Cross Rivers State, Onnoghen’s home state, has the locusý standi to sue, and that the Supreme Court is the appropriate forum to institute such suit.

Justice Odili further held that the January 23, 2019 ex-parte order of the CCT, on which President Buhari relied to suspend Onnoghen, was unlawful, because the tribunal had no jurisdiction, in the first place, to entertain the charge brought against the ex-CJN by the Code of Conduct Bureau (CCB).

She was of the view that, Onnoghen being a judicial officer, the case made against him by the CCB ought to have been taken before the National Judicial Council (NJC) first before any trial could be conducted at any other forum.

Justice Odili said:”In my judgment, I dissent. I do not want to agree with the lead judgment. I see no merit in the preliminary objection as the Cross River State Government has the locus standi to bring this action.

“On my part, I dismiss the preliminary objection.I went into the merit and came to the conclusion and answered all the questions raised affirmatively.

“I went further to say that the justification of obeying the ex parte order to which the subject of the order, Justice Onnoghen, was not given a hearing, is a lame excuse since the Code of Conduct Tribunal itself ought not to venture into the matter.

“In the first place, the first port of call about the complaint against a judicial officer is the National Judicial Council before going to the Code of Conduct Tribunal.

“The originating summons is successful, in my view.The plaintiff is entitled to all the prayers it seeks,” Odili said.

The plaintiff’s lawyer, Lucious Nwosu (SAN), had, while arguing the case on February 28, 2019, contended that the Supreme Court was the proper forum for the case to be decided because the issue at stake was not personal to Onnoghen but a violation of the Constitution.

He said since the case was brought by Cross River 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.

“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, who urged the court to reject the preliminary objection filed by the defendants – the AGF and Federal Republic of Nigeria – 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 said.

In a counter argument, defendants’ lawyer, Dayo Apata (Solicitor General of the Federation and Permanent Secretary, Federal Ministry of Justice), had urged the court to uphold his objection and dismiss this suit, marked: SC/45/2019.

Apata queried the plaintiff’s locus standi and argued that the subject matter did not qualify as a dispute between the Federal Government and a state government.

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 correct 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.

The Cross River State Government had,  in the suit marked: SC/45/2019, queried the propriety of Onnoghen’s suspension and trial before the CCT.

In a supporting affidavit sworn to by an official of of the Cross River State Ministry of Justice, Ibi Mboto, the plaintiff stated that Onnghen 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 didctated by the Constitution, was unlawful and unconstitutional.

The plaintiff prayed the Supreme Court to, among others, declare the suspension and trial  illegal on the grounds that it was only the National Judicial Council (NJC) that could exercise disciplinary powers over a serving judge.

The state urged 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.