Following President Muhammadu Buhari’s inauguration of Justice Tanko Muhammed as the acting chief justice of Nigeria, the Senate on Monday filed a suit before the Supreme Court praying for among others, an order reinstating Justice Walter Onnoghen as the Chief Justice of Nigeria, CJN.
In the suit marked SC.76/2019, the Senate asked the apex court to declare the suspension of Onnoghen without support of two-thirds majority of the upper legislative chamber as a violation of section 292(1)(a)(i) of the constitution.
The suit also asked the Supreme Court to issue an order restraining the two defendants in the suit – President Buhari and the Attorney-General of the Federation, Mr Abubakar Malami – from continuing or repeating the violation of the constitution and disregarding the power of the Senate in respect to the suspension of the CJN.
The three prayers sought by the Senate read, “A declaration that the suspension, by the President, of Hon. Justice Walter Samuel Nkanu Onnoghen from his office as Chief Justice of Nigeria on or about January 25, 2019, without an address calling for the removal, supported by two-thirds majority of the Senate is in violation of section 292(1)(a)(i) of the constitution and therefore null and void.
“An order rescinding or setting aside the suspension of Hon. Justice Walter Samuel Nkanu Onnoghen from his office as the Chief Justice of Nigeria and restoring him to the said office.
“An order restraining the defendants from continuing or repeating the violation of the Constitution of the Federal Republic of Nigeria and disregarding the powers of the Senate at the Federal Republic of Nigeria.”
Buhari had while announcing the suspension of Onnoghen last Friday based his action on an ex parte order made by two of the three members of the Code of Conduct Tribunal where Onnoghen had been charged with six counts of non-declaration of assets.
The CCT order had directed the CJN to step aside from office pending the conclusion of his trial and ordered the President to swear in the next most senior Justice of the Supreme Court, Justice Tanko Muhammad, as the acting CJN.
But the Senate in its suit filed through its counsel, Mr. Paul Erokoro SAN, faulted the President’s action, arguing that the President could not on the directive of the CCT suspend the CJN without two-thirds majority of the Senate or appoint Muhammad as the acting CJN without Senate’s confirmation.
The plaintiff submitted two questions for determination.
One of the questions is if having regard to section 292 and Part 1 of the Third Schedule to the Nigerian Constitution and section 21 of the Code of Conduct Bureau and Tribunal Act, the President could not “suspend” or “prevent” the CJN from performing the functions of his office “on the directive of the Code of Conduct Tribunal or for any reason whatsoever, without an address supported by two-thirds majority of the Senate calling for the removal of the Chief Justice of Nigeria.”
The other question for determination read, “Having regard to section 231 of the Constitution of the Federal Republic of Nigeria, 1999, as amended, and in particular, sub-sections (1) and (4) thereof, can the President of the Federal Republic of Nigeria appoint an acting Chief Justice of Nigeria when there is no vacancy in that office and when the substantive Chief Justice of Nigeria is fit and able to perform the functions of the office and without the recommendation of the National Council and confirmation of such appointment by the Senate.”
A Legal Assistant in the Office of the Senate President, Mr. Sambo Idahi, in an affidavit filed in support of the suit, said he attended a meeting of the principal officers of the Senate held on January 25, 2019 when the issue of Onnoghen was extensively discussed.
He said the meeting discussed the CCT’s ex parte order which the President anchored his action on and the swearing-in of Justice Muhammad as the acting CJN.
According to Idahi, Saraki informed the meeting that he was not consulted on the matter and never received any request from the President or any other person or authority to debate the issue.
He added that Saraki said Buhari had never requested the Senate’s approval of Justice Muhammad as the acting CJN.
The affidavit read in part, “On Friday, the 25th day of January, 2019, at about 5.40 pm, I was present at a meeting in the Senate Building attended by Principal Officers of the Senate, where the suspension of the Chief Justice of Nigeria was extensively discussed.
“The discussions at the meeting centred on the public announcement made by the President of Nigeria, General Muhammadu Buhari, on the 25th day of January, 2019, in which he revealed that he had suspended the Chief Justice of Nigeria, Hon. Justice Walter Onnoghen, and appointed Hon. Justice l. T. Muhammad as the Chief Justice of Nigeria in an acting capacity. The President’s address during the swearing-in of Hon. Justice Ibrahim Tanko Muhammad was also discussed at the meeting as well as the ex parte order made by the Code of Conduct Tribunal on which the President had acted.
“Hereto shown to me and marked Exhibit A is the said President Muhammadu Buhari’s address. The tribunal’s ex parte order is Exhibit B herein.
“I printed out Exhibits A and B from a HP desktop Computer and HP Laser Jet Pro 4ooMo1a in the office of the Senate President. We use the computer and printer aforesaid daily in the normal work of the Senate and throughout the period of their use, both have functioned accurately. Information has been regularly supplied to the computer in the ordinary cause of those activities information of the kind from which the exhibits were derived and the computer and printer have behaved properly and nothing has ever happened to make us question their reliability and accuracy.
“The President of the Senate informed the meeting that the Senate was not consulted on the matter and never received any request from the President or any other person or authority to debate the issue or present an address to the President for the removal or suspension of the Chief Justice of Nigeria.
“The Senate President and other persons at the meeting repeatedly stated that the Senate had never met to vote on the removal or suspension of the Chief Justice of Nigeria and that no address had been passed by the Senate and presented or sent to the President of Nigeria for the Chief Justice to be removed or suspended.
“The meeting also noted that the Senate was not requested to confirm and did not confirm the appointment of Hon Justice l. T. Mohammed as acting Chief Justice.”
However, the All Progressives Congress, APC, caucus in the Senate has dissociated its members from the legal action filed by Saraki on behalf of the federal lawmakers at the Supreme Court.
The Senate Leader, Ahmad Lawan, in a statement on Monday said there was no resolution of the red chamber which empowered Saraki to take such an action.
The statement read, “It has come to the notice of the Senate APC caucus that the Senate has approached the Supreme Court for the interpretation of the suspension of the Chief Justice of Nigeria, Justice Walter Onnoghen, by President Muhammadu Buhari.
“For the records, the Senate never met to take such a resolution and at no time, mandated anyone to approach the Supreme Court on this matter, on its behalf.
“Consequently, the Senate APC caucus dissociates itself from the said request for the legal interpretation of the (CJN) suspension.”