FG, AGF to Supreme Court: we have not removed Onnoghen
Following the claim by the Cross River State Government that
suspended Chief Justice of Nigeria (CJN), Justice Walter Onnoghen has been
illegally removed from office the Federal Government and Attorney General of
the Federation (AGF) said the claim is untrue.
The FG and AGF argued that, as against Cross River’s claim,
Onnoghen has not been removed from office, he was simply 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 FG and 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 that “there is a clear distinction between
suspension and removal.” He noted that there was no evidence before the court
to show that the CJN was removed or dismissed from office.
The Solicitor General was reacting to argument by lawyer to
the plaintiff, Lucius Nwosu (SAN), to the effect that Onnoghen’s removal from
office, by the Executive, was a violation of the Constitution, attach 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 the two parties.
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
“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 its current
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
“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
He also faulted Nwosu’s reference to the oath he took, on
being conferred with the rank of Senior Advocate of Nigeria, to protect the
Constitution and defend the interest of the Federal Republic of Nigeria.
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
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, as at 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.
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 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
“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 inisted that the Supreme Court was 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
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
“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,” Nwosu said.
He faulted Apata’s argument that similar cases, filed by
Onnoghen were currently pending before the Court of Appeal and on which
judgments have been reserved.
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 to 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.”
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 this year for
The Cross River State Government, in its originating
summons, queried the propriety of Onnoghen’s trial before the CCT and urged the
Supreme Court to declare it illegal on the grounds that it was only the
National Judicial Council (NJC) that could exercise disciplinary powers over a
The state wants the court to among others, declare that, by
the provisions of sections 4, 5, and 6 of the Constitution, there a clear
recognition of the doctrine of separation of powers and checks and balances in
relation to the operations of the three arms of government.
The Cross River State wants 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.
It also seeks a declaration that the CCT, not being the NJC,
is not vested with the jurisdiction over any judicial officer for an alleged
official misconduct on the part of a judicial officer, without a formal
complaint of such official misconduct being first made to and investigated by
The plaintiff equally wants the Supreme Court to declare
that the filing of the charge, before the CCT, against Onoghen, being a
judicial officer, without any formal complaint having been made against him to
the NJC, robbed the CCT of jurisdiction to try the charge and all the
proceedings relating thereto, amount to a nullity.
It therefore urged the court to grant an order of
injunction, restraining the defendants and their agents from further initiating
or proceedings with any similar charge or charges against Onnoghen or any
judicial officer of the superior court created by the Constitution, until a
formal report of misconduct is first, made to and investigated by the NJC.
In a supporting affidavit sworn to by an official of the
Cross River State Ministry of Justice, Ibi Mboto, the plaintiff stated that
Onnoghen is an indigene of the state and the highest judicial officer from the
It argued that Onnoghen’s suspension and trial before the
CCT, without first, being subjected to the NJC’s process, as dictated by the
Constitution, was unlawful and unconstitutional.
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