ONNOGHEN: THE CACOPHONY OF JUSTICE AND THE FATE OF NIGERIA - by Professor Dejo Olowu

My little contribution is to assist the non-lawyers and independent watchers of current proceedings to distill the issues beyond the muddy waters being thrown up and about to achieve political ends.

By virtue of Nigeria's colonial legal heritage, judicial precedents (decisions of the higher courts made on earlier cases) take a prime position in the determination of new cases on similar or related facts. The courts, therefore, rely heavily on the settled principles of the law in arriving at their decisions in subsequent cases.

There has been so much hullabaloo about and around the indictment of the eminent occupant of the office of the Chief Justice of Nigeria (CJN), in the person of Mr. Justice Walter Onnoghen. Understandably, the indictment occurring at a politically volatile period (less than 40 days to a vital presidential election) in Nigeria was bound to generate rowdy and opportunistic responses from legal minds and non-legal minds alike.

However, to help our objective understanding and analysis of the state of the law in Nigeria, recourse must be made to the causa celebre, that epic piece of judicial precedent from which all subsequent extrapolations should be made on the present scenario. That point of reference is NGANJIWA v. FEDERAL REPUBLIC OF NIGERIA (2017) LPELR 43391 (Court of Appeal).

The Honourable Justice A.O. Obaseki-Adejumo, Justice of the Court of Appeal (JCA) formulated the following principle in the Ngangiwa Case:

"It must be expressly stated that if a judicial officer commits theft, fraud, murder or manslaughter, arson and the likes,...WHICH ARE CRIMES COMMITTED OUTSIDE THE SCOPE OF THE PERFORMANCE OF HIS OFFICIAL FUNCTIONS [emphasis mine], he may be arrested, interrogated and prosecuted accordingly by the State DIRECTLY without recourse to the NJC (National Judicial Commission).

.. These classes of criminal acts are not envisaged and captured by the provisions of PARAGRAPH 21, PART 1 OF THE THIRD SCHEDULE (to the Constitution).

On the other hand, if any Judicial Officer COMMITS A PROFESSIONAL MISCONDUCT WITHIN THE SCOPE OF HIS DUTY and is investigated, arrested and.......subsequently prosecuted by security agents without a formal complaint/report to the NJC, it will be a usurpation of the latter's constitutionally guaranteed powers under Section 158 and Paragraph 21 Part 1 of the Third Schedule, thereby inhibiting, and interfering with and...... obstructing the NJC from carrying out its disciplinary control over erring judicial officers as clearly provided by the Constitution.''
The simple question that all honest people of clean conscience must ask the coterie of Onnoghen's Amen corner is: what is the category of Onnoghen's wrongdoing?

Failure to declare his personal fiscal assets as statutorily required is a wrongful act OUTSIDE the performance of his duties as a judicial officer. His wrongful act was and remains a criminal offence for which the apparatus of State must act. The NJC has no role in dealing with that.

However, as I already mentioned, these are highly volatile and flammable times. Every action or omission of the Federal Government of Nigeria headed by Mohammadu Buhari will be turned into a weapon of mudslinging against Buhari’s electoral chances. That is the reason for all the pandemonium that has been unleashed on Nigerians these past few days.
Of course, the high volume of count-me-in SANs supporting the CJN will most likely sway the minds of innocent watchers into believing that there is indeed a vendetta against the CJN. There is none and there can be none.
The same Buhari confirmed Onnoghen as CJN despite all the opposing forces that felt he lacked the moral uprightness and integrity required for that office.

But we cannot be shocked or surprised by the outrage and outbursts of those opposed to the trial of a roguish CJN for his roguish act(s): they need him and his roguish system to perpetuate the distribution of judicial largesse and crooked elevations to the Bench and Bar in Nigeria. That is the way the Nigerian judicial and legal architecture now works in the larger part. Corruption oils the system...for those who run by it!

What more? The same judicial system created and nurtured by Onnoghen is the very one that will handle his indictment. Throw up a knife a thousand times and it will come down resting on its flat side. Why so much chaos when Onnoghen will carry the day in his own judicial system? What will however not go away is the moral albatross that will hang on his neck for the rest of his natural life. He'll remain a tainted CJN regardless of how he ends his career.

And talking about electoral calculations, Buhari does not and will not require an Onnoghen or any court to serve any ulterior purposes after the February 2019 elections. Buhari winning the election fair and square dispenses with the need for a subservient adjudicator. Handing over the presidency of Nigeria to Buhari’s closest challenger will be farewell to the sanity of governance that the Buhari administration has set on a steady path since 2015. Nigerians cannot afford to choose profligacy over thrift, we cannot afford to elect a photo-op president over one whose soul is about how to rescue our commonwealth from entrenched vultures.

The 2019 election is and will be all about the very survivability of the Nigerian nation. We must not hand over the polity to those who will mish-mash our treasury and national resources with their insatiable quest for wealth, debauchery and lascivious lifestyle.

CONFUSION REIGNS SUPREME BETWEEN ETHICAL LAWYERS AND UNETHICAL LEGAL PRACTITIONERS by M.A. OLUWALAMBE, ESQ.

Believe the explanation that appeals to your morality or lack thereof.......
HON JUSTICE ONOGHEN, CJN V FRN: 
The position of law
By M. A. Oluwalambe, Esq.

I have read and watched some lawyers expressing a legal opinion on the proposed arraignment of the CJN by the CCB at CCT For offence relating to declaration of assets as required by law.

Some argued that the arraignment at CCT directly without first recourse to NJC is unlawful and they placed reliance on the case of Nganjiwa vs FRN. My opinion shall be solely on the legality of the said arraignment.

Let me start by reproduction of some of the provisions of the Constitution of Nigeria. Fifth Schedule, part I 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 -
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 issue is whether these constitutional provisions apply to the Chief Justice of Nigeria?

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."

in view of the above constitutional provisions, the Chief Justice of Nigeria 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 the declaration of assets to be made to NJC.

Some of the acts that amount to a breach of the code of conduct are in Paragraph 11.3, Part 1 of the fifth Schedule of the 1999 Constitution:

 "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”

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 in this case of Mr. Justice Walter Samuel Onnoghen, CJN, in accordance with the Constitution and Nganjiwa's case.

Hon. Justice Walter Samuel Onnoghen CJN is both judicial officer and a public officer and he can act in the two capacities as such, 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.

The judgement of Court of Appeal in the case of NGANJIWA V FRN  is mostly relied upon by the lawyers opposing the arraignment of CJN at CCT, I also rely on the position of the Court in the same case but the case is distinguishable from the  Hon. Justice Onoghen case, this position is in line with the judgement of the said court. 

Part of the judgement of the Court of Appeal in the case of NGANJIWA V FRN is as follows:

"It must be expressly stated that if a judicial officer commits theft, fraud, murder or manslaughter, arson and the likes, which are crimes committed outside the scope of the performance of his official functions, he may be arrested, interrogated and prosecuted accordingly by the State DIRECTLY without recourse to the NJC. These classes of criminal acts are not envisaged and captured by the provisions of Paragraph 21, Part 1 of the Third Schedule."

It means that it is not in all cases of allegations of crime against a judicial officer must be first recourse to  NJC.

In my humble opinion, the offences relating to the declaration of assets against a judicial officer need not be first reported to NJC before prosecution doing otherwise is a breach of the Constitution and rule of law.

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 an offence committed as a PUBLIC officer, not as a judicial officer.

The arraignment of Justice Onoghen, CJN at CCT directly without first recourse to NJC is legal because he is to be arraigned for an 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.

M . A. Oluwalambe, Esq