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Trial of Chief Justice of Nigeria

The recent arraignment of the embattled Chief Justice of Nigeria (CJN), Walter Onnoghen, over his alleged failure to declare his foreign accounts, of course, have  continued to generate controversies and aroused arguments  across the country, with many people being in support of  his trial by the Code of Conduct Tribunal, while others frowned at it.

Abimbola Akindunbi and Kayode Olabanji speak with lawyers and other professionals on the position of the law on whether the CCT is right to arraign him or not?

Mr Sola Ajisafe, legal practitioner and  State

Programme Manager, N-Power, Ondo State

Well, my position is very clear. Firstly, nobody is above the law. And then, upon the authorities that people who are relying upon are basing their reactions that the Chief Justice of Nigeria, cannot be taken to court. I do not think as a lawyer that I accept or agree with them.

Number one, the offence you committed or your misdemeanor under the law when you’re in the process of that action is different from the one you commit under the constitution.

The constitution is to the extent that everyone must declare their assets. And if the CJN failed, refused or neglected to declare his assets, he has flouted a section of the constitutional matter.

All other statutory provisions which are extant provisions coming on from that Act, whether because he is a CJ or whether he is a judicial officer, is a different ball game entirely.

And equally, the decision of the Court of Appeal with people that only the NJC can try its judicial officers, is a systematic way of bringing these people under immunity, covering them with the impunity, which they are not entitled to under Section 308, that is, on a strict legal term.

But importantly, Nigerians , our lawyers equally, must begin to understand that lawyers have roles to play in the society.

And in playing that roles, we must not see ourselves as people from outer space. We must not see ourselves as bastion of corruption and bastion  of impunity.

When things affected the rest of the society, we look the other way. But when it affects us, we create the impression that he is a lawyer, it is a threat to a judge, it’s a threat to our democracy, it’s breach of the rights of the judiciary. And I hate to see these as so, because if the system is destroyed internally by lawyers and judges, then, the society is in great danger.

For me, I accept that the CJN has committed a very grave offence. And so, he must face the law. This one would put everybody on their toes.

One, to the effect that nobody is above the law. When you make the mistake, whether you’re a SAN, or noble, whether you’re an okada rider, President, Minister, teacher or civil servant, when you flout the constitution of the Federal Republic of Nigeria, you must face the music.

Under equity, there’s an equitable doctrine that says that, ‘he who comes for equity, must come with clean hands.’

If the judiciary wants to maintain their place of pride, then they should be seen to be above board.

But unfortunately, both the bar and the bench in Nigeria have not shown that they are above board, when it comes to corruption and fraud.

And I do not think that we’ll continue to help our constitution or our society.

Mr Tosin Sunday Eye,

legal practitioner

By the combined decision in HON. Justice Hyeladzira Ajiya Ngajinwa v. FRN (2017) Lpelr-43391(CA), Section 158(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and paragraph 21(b) of the Third Schedule to the 1999 Constitution, it is grossly unconstitutional for either the Code of Conduct Bureau or the Federal Government to file the  charge or prosecute the Chief Justice of Nigeria, at the Code of Conduct tribunal without a preliminary investigation  being conducted by the National Judicial Commission and a decision given.

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This provision may seem to be technical considering the fact that the CJN is the head of the National Judicial Commission.

However, by the provision of Section 1(1) of the 1999 Constitution (Supra), the federal government is bound to comply as the constitution is the ground norm. Moreso, it is important to say that the CCT lacks jurisdiction to entertain the charges against the CJN,  as the CCT is bound to follow the above Court of Appeal decision under the principle of stare decisis.

Finally, the federal government ought to have known that there witchhunt will fail as you cannot  put something on nothing and expect it to stand.

Anthony Tosin, human rights activist

When the flogger is flogged, he becomes too ashamed to cry.

The Chief Justice of Nigeria, Walter Onnoghen should serve as deterrent to others in that act.

The case of Supreme Court judge in Ghana was applauded and I feel Nigeria is moving towards that direction where the principle of rule of law can witness full implementation and everyone will be equal before the law.

It has no political undertone at all. It is just a coincidence that it happens at this time. Nigerians must learn to analyse issues from a more reasonable point.

Mr Charles Titiloye, legal practitioner

I am in support of the current anti-corruption scheme of the federal government of Nigeria,  to ensure that public servants are all accountable to the constitution.

The Constitution has provided what the public officers must do, not only to the Chief Justice of Nigeria (CJN), but to all public officers. Any public officer who runs foul of it will be taken before the Code of Conduct Tribunal.

The constitutional provisions have been made to ensure that the government has the complete chart of all officers. That is, they must declare all their bank accounts and the money therein before entry to public office. And when they are leaving the office, they must also declare it, to know whether  they use their office to take public funds.

In this case, the CJ of Nigeria left two bank accounts undeclared and the provision also adds that ‘you must declare your account every four years, if you are a public servant.’

In this situation too, the Chief Justice did not declare his accounts within the four years, while in office as provided by the constitution. So, he has to face the trial.

An issue that has to do with the breach of Nigeria Constitution, wherein the constitution specifically gave jurisdiction to Code of Conduct trial to look into the breach of any public officer of provision related to declaration of asset. I think it is proper what the government has done.

I think what the Chief Justice of Nigeria needs to do now, is to put himself together to defend himself of the allegation.

We cannot exclude him from trial, because it will send wrong signals to Nigerians, that people are not equal before the law. Whereas, we are equal before the law of this country. Anybody who runs foul of the law must be ready to face the consequence and if found guilty, punishment shall be applied.

Mr Yunusa Aliyu, legal practitioner

M y opinion shall be based solely on the legality of the said arraignment. The Fifth Schedule, part I of the 1999 Constitution of the Federal Republic of Nigeria, as amended provides in paragraph 11 thereof as follows:

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11.1. “Subject to the provisions of this Constitution, every public officer shall within three months after the coming into force of this Code of Conduct or immediately after taking office and thereafter –

a. at the end of every four years; and

b. at the end of his term of office, submit to the Code of Conduct Bureau a written declaration of all his properties, assets, and liabilities and those of his unmarried children under the age of eighteen years.

The issue is whether these constitutional provisions apply to the Chief Justice of the Nigeria? The Fifth Schedule, part II of the 1999 Constitution as amended provides for the categories of persons

recognised by law as public officers.

These include: 5. “Chief Justice of Nigeria, Justices of the Supreme Court, President and Justices of the Court of Appeal, all other judicial officers and all staff of courts of law.” Also, Paragraph 12 of part 1 of the fifth schedule to the 1999 constitution provides:

12. “Any allegation that a public officer has committed a breach of or has not complied with the provisions of this Code shall be made to the Code of Conduct Bureau.”

Having regard to the above constitutional provisions, the CJN is a Public Officer and the provisions of the Code of Conduct for Public Officers as contained in the Constitution of the Federal Republic is applicable to him.

No provision of any law makes such allegations of breach of declaration of assets to be made to NJC.

Therefore, the argument put forward that the Federal Government ought to have petitioned NJC before arraignment of the CJN at CCT relying on the judgement Of the Court of Appeal in the case of NGANJIWA v. FRN is not valid nor applicable in this case of Hon. Justice Walter Samuel Onnoghen, CJN.

Hon. Justice Walter Samuel Onnoghen CJN is both judicial officer and a public officer and he can accordingly act in the two capacities. His Lordship can however be prosecuted by the Code of Conduct Bureau CCB and a conviction by the tribunal can be a basis for NJC’s recommendation for removal.

Therefore, as NJC has duties and powers to control and discipline judges as judicial officers so also the CCB has powers under the law to prosecute a judge for offence committed as public officer not as judicial officer.

The arraignment of Justice Onnoghen, CJN at CCT directly without first recourse to NJC is legal, because being arraigned for offence committed as a public officer, not as a judicial officer, because offence relating to declaration of assets cannot be said to be committed within the scope of performing judicial function.

Mr Olawale Daniel Olugbenga, legal practitioner

T he starting point is to examine the proposed charge(s) against His Lordship. From reports made available, the CJN is alleged to have maintained foreign accounts and domiciliary accounts in foreign currency. His Lordship is alleged to have failed to declare his assets in violation of the Code of Conduct for Public Officers.

“The second step is to examine the provisions of the law as it relates to the allegation about to be turned charges against His Lordship, the Hon. CJN.

Now, Schedule V, Part 1, of the 1999 Constitution of the Federal Republic of Nigeria, as amended provides in paragraph 11 thereof as follows:

11.1. “Subject to the provisions of this Constitution, every public officer shall within three months after the coming into force of this Code of Conduct or immediately after taking office and thereafter –

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a. at the end of every four years; and

b. at the end of his term of office, submit to the Code of Conduct Bureau a written declaration of all his properties, assets, and liabilities and those of his unmarried children under the age of eighteen years.

11.2. Any statement in such declaration that is found to be false by any authority or person authorised in that behalf to verify it shall be deemed to be a breach of this Code.”

The same law provides that no public officer shall maintain any foreign account.

“The third step is to enquire whether these constitutional provisions apply to the Chief Justice of the Federation and the answer can only be found in the law.

Schedule V part ii of the 1999 Constitution as amended provides for the categories of persons recognised by law as public officers. These includes

5. “Chief Justice of Nigeria, Justices of the Supreme Court, President and Justices of the Court of Appeal, all other judicial officers and all staff of courts of law.”

“It is thus without much ado that one can safely submit that the Chief Justice of Nigeria, His Lordship Hon. Justice Walter Samuel Onnoghen is a Public Officer. His Lordship is also bound by the provisions of the Code of Conduct for Public Officers as contained in the Constitution of the Federal Republic.

“The fourth step is to examine the law as to what step could be taken by the Federal Government, through the Attorney General of the Federation when there is a breach or an alleged breach of any of these provisions.

Paragraph 12 of part 1 if the fifth schedule to the 1999 constitution provides:

12. “Any allegation that a public officer has committed a breach of or has not complied with the provisions of this Code shall be made to the Code of Conduct Bureau.” Now what is the AGF proposing to do? Nothing but complying with the law. Then why the hullabaloo?

“Those who oppose the step being taken by the Federal Government have advanced basically three arguments. First, they claim that independence of the judiciary is paramount. They have however forgotten to differentiate between the person of Mr. Hon. Justice Walter Samuel Onnoghen as a Nigerian who is not above the law and who could commit offence, a Nigerian who is not immuned and who is not better than many others His Lordship had tried and sentenced. The proponents of independence of the judiciary have failed, whether by commission or commission, to see that the office of the CJN is what is meant by judicial independence and not the person in the office. They have refused to appreciate the necessity of subjecting every person to equal treatment before the law, knowing that failure to so do portends great risk to our commonwealth.

Thee second reason being put forward by defenders of His Lordship, Hon. Justice Walter Samuel Onnoghen CJN is that the timing of the arraignment is suspect. According to them, the proposed charge is akin to an attempt by the ruling political party to compromise Election Petitions. This argument, every trained legal mind will agree, is fallacious. An offence can only be reported and tried when discovered. The CJN must be prepared to face and stand trial. And the burden is on His Lordship to prove his innocence as Paragraph 11.3, Part 1 of Schedule V of the 1999 Constitution deems a defendants guilty until contrary is proved.

11.3. “Any property or assets acquired by a public officer after any declaration required under this Constitution and which is not fairly attributable to income, gift, or loan approved by this Code shall be deemed to have been acquired in breach of this Code unless the contrary is proved.

Admittedly, the premise upon which the third argument is based is true, but the conclusion drawn there from is false. The premise of the argument is that the Federal Government cannot remove the CJN without following due process, that is through the JSC.

Yes, that is the law and it has received judicial backing in the case of NGANJIWA v. FRN, However, the conclusion drawn by anti-prosecution of Hon. Justice Walter Samuel Onnoghen CJN is fallacious. Hon. Justice Walter Samuel Onnoghen CJN cannot be removed except by recommendations of the National Judicial Service Commission. His Lordship can, however, be prosecuted by the Code of Conduct Bureau and a conviction by the Bureau can be a basis for NJC’s recommendation for removal.

Hon. Justice Walter Samuel Onnoghen is just another Nigerian who should subject himself to laws that govern all Nigerians.

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