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