Feb 17, 2019

THE ONNOGHEN ASSET DECLARATION DISPUTE: A DISPASSIONATE LOOK AT NIGERIAN BAR ASSOCIATION, ITS TRADUCERS AND THE VERDICT OF HISTORY


There are insinuations in some quarters that the Nigerian Bar Association (NBA) is in support of the embattled CJN, Hon Justice WSN Onnoghen in his trial at the Code of Conduct Tribunal (CCT) on charges related to non-declaration or late declaration of his assets as required by the Code of Conduct for Public Officers contained in the 5th Schedule to the Constitution of the Federal Republic of Nigeria (CFRN), 1999 (as amended). Those who hold this view are quick to suggest that NBA’s support is a deliberate attempt at derailing the “war against corruption” in Nigeria. 


It is my humble view that neither the NBA leadership nor the NBA as a body is in support of CJN Onnoghen as a person. All I think the NBA and its leadership have been doing is merely to demand and insist on decorum and observance of due process of law, as opposed to arbitrary desecration of the Constitution. NBA’s stand is made more rational when one recalls the famous declaration in a 1998 book titled, Lex, Rex, or the Law and the Prince: A Dispute for the Just Prerogative of King and People written by Samuel Rutherford whose view I would paraphrase it to read, “arbitrary application of laws has no alliance with God.” Besides, one must not forget that, by the very peculiar nature of their office, the judicial officers are not ordinarily able to speak out for themselves in matters such as this. The Bar serves as the mouth piece of the Bench, in deserving situations, since the two are two sides of the same coin. Let me quickly reiterate that the Nigerian Bar Association (NBA) and its leadership would lose my sympathy the day it chooses to overtly or covertly support, encourage or condone acts of corruption – whether of the public funds or of the laws. I shall now proceed to lay out the legal foundations for this humble opinion of mine in the hope that this would enflame further dialogues on the issue in a manner that could bring about a resolution, now, sooner or later, on whether the role being played by the NBA’s is reasonably justifiable or justified in the circumstances.

(1) In the case of MADUKOLU v. NKEMDILIM (1962) 1 ALL NLR 589, the Nigerian Supreme Court provided the guide on how to determine whether a court has or does not have jurisdiction in any particular case. Hon Justice Vahe Bairamian (FJ), while delivering the lead judgment in that case was of the view that a court is considered competent when, among other factors, “the case comes before the court initiated by due process of law, and upon fulfilment of any condition precedent to the exercise of jurisdiction.” In this respect, I refer us to the decision in the case of HON. JUSTICE HYELADZIRA AJIYA NGANJIWA v. FEDERAL REPUBLIC OF NIGERIA (2017) LPELR-43391(CA) where the Court of Appeal in its judgment, laid the following mandatory rule of procedure, which was cited by Nonso Robert. Attoh, with approval, in his article titled, “Constitutional Issue Raised By The Proposed Trial Of The Chief Justice Of Nigeria By The Code Of Conduct Tribunal,” and published on 14 January 2019 on www.educationalresourceproviders.com:

Whenever a breach of judicial oath occurs, it is a misconduct itself, then the NJC is the appropriate body to investigate such breaches by the judicial officer and if found to be so, such judicial officer shall face disciplinary action and the NJC may recommend the removal of such a judicial officer to the appropriate authority which is either the President in the case of a Federal Judicial Officer or the Governor of the State in the case of a State Judicial Officer and/or take other actions appropriately. When this is done and accepted by the appropriate authority in compliance with the provisions of the Constitution, then the relevant law enforcement Agent or Agency is at liberty to make the said judicial officer face the wrath of the law. Any act done by the law enforcement Agent or Agency in violation of the above is tantamount to denying the NJC its powers to discipline Judges in accordance with the provisions of Section 153(1) and Paragraph 21 Part 1 of the Third Schedule of the 1999 Constitution (as amended). See Paragraph 21 (a) & (b) of the Third Schedule, Part 1 of the 1999 Constitution (as amended) respectively. Whenever there is an allegation of official misconduct against a judicial officer and the above stated process is not adhered to, it amounts to jumping the gun and ipso facto a direct violation of the Constitution. Recourse to the National Judicial Council is a condition precedent as clearly set out by the Constitution, and any attempt by any Agency of Government to by-pass the Council will amount to failure to observe condition precedent thereby leading to flagrant violation of the Constitution.

In view of this decision in Hon Justice Ngajiwa’s case as reproduced above, can anyone tell straight from the shoulder that CJN Onnoghen could validly be arraigned and tried by the CCT at a time when the National Judicial Council (NJC) is yet to sit and give a determination over the same case? As noted by Nonse Attoh in the work cited above, the Ngajiwa judgment remains the law for what it decided until it is either set aside or overruled. 

The stance of the CCT in CJN Onnoghen’s case becomes more curious when one recalls the judgment of the same CCT in FRN V. SYLVESTER NGWUTA, another Justice of the Supreme Court. The CCT had in that judgment, delivered on 15 May 2018, discharged Hon Justice Ngwuta over false assets declaration charges brought against him by the Federal Government. Hon Justice William A. Atedzeb (a member of the CCT who delivered the judgment of the CCT) had held that as a serving judicial officer, Hon Justice Ngwuta was under the management, control and discipline of the National Judicial Council (NJC) and also that the NJC is a body whose independence of external control or interference is constitutionally provided for in section 158 (1) of the 1999 Constitution (as amended). The judge then accepted and upheld the decision in HYELADZIRA NGAJIWA V. FRN (supra) as the guiding precedent, and quashed the charges against Hon Justice Ngwuta, noting that “any allegation of official misconduct against a judicial officer would first have to be referred to the NJC to the exclusion of any other body, court or tribunal.” (See https://guardian.ng/news/cct-discharges-ngwuta-over-false-assets-declaration/ accessed on 17 February 2019). Why then the summersault in Onnoghen’s case? Is sauce for the goose not sauce for the gander?

(2) The second issue is to look at the processes leading to CJN Onnoghen’s suspension from office and to determine whether they are not a breach of due process of law. Section 292 (1) (a) and (b) of the Constitution of the Federal Republic of Nigeria (CFRN), 1999 (as amended) provides thus:

A judicial officer shall not be removed from his office or appointment before his age of retirement except … by the President of the FRN acting on an address supported by two-thirds majority of the Senate, praying that he be so removed for his inability to discharge the functions of his office or appointment (whether arising from infirmity of mind or of body) or for misconduct or contravention of the Code of Conduct; and in any other case, by the President ... acting on the recommendation of the National Judicial Council that the judicial officer be so removed for his inability to discharge the functions of his office or appointment (whether arising from infirmity of mind or of body) or for misconduct or contravention of the Code of Conduct.

I respectfully submit the following as necessary implications of the provisions of section 292(1) CFRN, 1999 (as amended):

(a) Under no circumstance may a judicial officer be removed without the recommendation of the NJC (National Judicial Council) or a prior resolution of the Senate of the FRN. Accordingly, the suspension of the CJN without first complying with this provision is a violation of the constitution.

(b) I agree that under paragraph 18 of Part I of the 5th Schedule of the Constitution of the Federal Republic of Nigeria (CFRN), 1999 (as amended), one of the punishments the Code of Conduct Tribunal (CCT) may impose on its convict is “vacation of office,” I however respectfully submit as follows:

i) The CCT may only impose punishment after full trial and conviction:

The CCT is not entitled to impose any such punishment unless and until trial is completed and upon the defendant being found guilty before it. Consequently, the ex parte order purportedly given by the CCT Chairman on 23 January 2019 was an illegal order, having NO legal justification whatsoever, anywhere in Nigeria’s statute books or case law. I have given other legal reasons why the said order is null.  (see https://thenigerialawyer.com/was-onnoghen-properly-suspended-is-nbas-position-in-support-of-or-against-rule-of-law-sylvester-udemezues-response-to-abu-orisankoko-oris/)

ii) The CCT does not have any powers under the Constitution to unilaterally suspend or remove a judicial officer from office: 
In a statement published on February 01, 2019 on www.legalnaija.com, celebrated constitutional lawyer and Senior Advocate of Nigeria (SAN), Professor Ben Nwabueze, had submitted that “It is clear from paragraph 18 that: (a) only the CCT itself can order vacation of or suspension from office; the President is not empowered to do so, and cannot be ordered or directed by the CCT to do so; (b)  more importantly, the CCT cannot make an order vacating an office or suspending a person from office until the trial before it is completed and the accused person is found “guilty of contravention of any of the provisions of this Code”; the trial in this case is only just commencing.” The learned professor of constitutional law had then gone ahead to conclude that this applies to a judicial officer in Nigeria, thus ascribing to the CCT a unilateral power to remove a serving judicial officer, albeit upon conviction of such judicial officer. With the greatest respect to the revered learned Professor-Silk, I strongly disagree with any suggestion that the CCT can unilaterally remove or suspend a serving judicial officer without the participation of (A) the President/Governor and (B) the NJC/Senate/House of Assembly, as the case may. I will explain.
Paragraph 18 (2) (a) of Part I of the 5th Schedule of the CFRN, 1999 is a GENERAL provision relating to all public officers and as such does not and cannot override the provisions of section 292 (1) of the same CFRN, 1999 which is a SPECIFIC provision relating exclusively to (only) judicial officers. Section 292(1) clearly states that “a judicial officer SHALL NOT be removed from office or appointment before his age of retirement except in the following circumstances.” There are only two such circumstances in section 292 --- the first is on the request made vide a resolution supported by two-third majority vote of the Senate of the Federal Republic or the House of Assembly of the affected State, as the case may be; the second is on the recommendation of the NJC. And in each instance, removal may only be made by the President or the Governor (as the case may be). 
I accordingly respectfully submit that although the CCT may, upon convicting a public officer, unilaterally give an order that the “public officer” should immediately vacate his or her office, the CCT does not have similar powers with respect to a “judicial officer.” The guiding principle is the Latin legal maxim and canon of statutory interpretation, “generalia specialibus non derogant.” The maxim states that “general provisions in a statute must yield to special or specific provisions in the same statute.” See DORE V. VERDOM [1997] 2 SCR 862. Thus, when a matter falls under any specific provision, then it must be governed by that provision and not by any later general provision in the same statute. General provisions in a law must admit or submit to specific provisions in the same law, on the same subject. This is why section 292 (1) of the CFRN (a special provision made for judicial officers) must necessarily prevail over para 18 (2) (a) of Part I of the 5th Schedule of the CFRN (which is a general provision made for all public officers). 
The reason offered by the courts in support of this principle of interpretation is that the legislature, having had its attention directed to a special subject, and having observed all the circumstances of the case and provided for them, does not intend by a later general enactment or provision to derogate from its own act when it makes no special mention of its intention so to do. See LALONDE V. SUN LIFE [1992] 3 SCR 261; IBORI V OGBORU (2004) 15, NWLR (PT 895) 154; In AKINDOLIRE V. AKINDOLIRE (1977) 1 FCAR, 148, the Court explained thus:
On the maxim of generalia specialibus non derogant,’ the position of an earlier Special Act will not be affected by that of a later general Act although inconsistent with the earlier particular Act and although they deal with the same subject matter.
The above suggestion of mine is strengthened by the provisions of section 23 (3) of the Code of Conduct Bureau & Tribunal Act, 1991, Cap C15, Laws of the Federation of Nigeria (LFN), 2004 (hereinafter referred to as the (CCB&T Act) which provides that “the punishments mentioned in subsection (2) of this section shall be without prejudice to the penalties that may be imposed by any law where the breach of conduct is also a criminal offence under the Criminal Code or any other enactment or law.” 
I therefore humbly suggest that the proper approach where a judicial officer in found guilty by the CCT of breach of the Code of Conduct is to make an order recommending vacation of office of the affected judicial officer, which order could or would then be a ground for the action of the NJC or the Senate/House of Assembly of a State, as provided for in section 292 (1), as the case may be. It appears that, on the clear provisions of section 292 (1) CFRN, 1999, one ground for which the NJC or the Senate/House of Assembly of a State may recommend the removal [or suspension] of a judicial officer is “contravention of the Code of Conduct.” Accordingly, issues relating to Code of Conduct are well within matter that the NJC has powers to look into in respect of a judicial officer. Any removal or suspension of the CJN pursuant only to a purported court order is improper in law as such amounts to a disregard of the condition precedent put in place in section 292(1) CFRN which makes participation of the Senate/NJC a sine-qua-non. 
(3) The third issue to consider is the conduct/attitude of the CCT Chairman on the last date of adjournment of the Tribunal (CCT) in the Onnoghen case. It would be recalled that the CCT Chairman had all along insisted (against existing legislation and case law supporting the contrary) that CJN Onnoghen’s arraignment must precede the hearing of pending interlocutory applications questioning CCT’s jurisdiction to hear the case. EFCC V. PHILIP ODIGIE (2013) 17 NWLR (pt. 1384) 607 is among the cases cited by the Defence in the Onnoghen case, to show that jurisdiction is the lifeblood of any court proceedings and that once raised it is in the interest of justice to first resolve it because any proceedings conducted without jurisdiction is s nullity. The CCT Chairman had however rejected all those legal authorities and this had culminated in the issuance of a Bench Warrant by the CCT Chairman against CJN Onnoghen, who had then decided to end the drama by personally coming to court on 15 February 2019. It was however most stupefying and flummoxing to all reasonable men that when, on 15/02/2019, CJN Onnoghen entered the dock (on the orders of the CCT Chairman) and the arraignment commenced, the following scenario was reported to have happened:

As the Charge was being read to the Defendant, the CCT Chairman suddenly stopped the Clerk from continuing with reading of the charge. This was after the Clerk had read only count one. The Chairman then asked the Defence team whether it (the Defence) would prefer that pending interlocutory applications be taken first. The Defence team answered that since the Defendant was already present in the tribunal, the Defendant's plea should be taken first.

With due respect, is it not alarming that the CCT Chairman would suddenly beat a retreat in a such a manner by deciding to do the right thing (that is, to hear the applications questioning his jurisdiction), after he had compelled the attendance of the defendant who was now in the dock and set for his own arraignment.  In BAFARAWA V STATE (2014) LPELR-22322 (CA), it was held by the Court of Appeal (Per Awotoye, JCA) as follows:

… determination of jurisdictional issues come before trial and since the presence of the accused is only required when the High Court is ready to commence trial then when jurisdictional issues are yet to be determined, accused’s presence in court is not mandatory. 

Section 266 (b) Administration of Criminal Justice Act (ACJA), 2015 provides that the presence of the accused person is mandatory throughout his trial “unless at the hearing of an interlocutory application.” See also EZEZE v. STATE (2004) LPELR-CA/L/370/2003; (2004)14 NWLR (Pt.894)491; and B.B APUGO v. F R N (2017) LPELR-41643(CA). It is trite that issues relating to a court’s jurisdiction are fundamental and lack of jurisdiction is fatal as emphasized in OTUKPO v. JOHN (2000) 8 NWLR (669) 507; BRONIK MOTORS v. WEMA BANK (1983)6 S.C. 158; and OMOKHAFE v. MILITARYT ADMINISTRATOR (2005) 2 MJSC 173. These and more are what the NBA and its Leadership are worried about, and which inform its principled stance in favour of due process, no matter what the outcome would be. Honestly, to me, it really does not matter if CJN Onoghen is in jail or is removed from office, provided due process of law is strictly complied with in either case.

(4) The fourth point to consider is Nemo Judex In Causa Sua. In METROPOLITAN PROPERTIES CO. (F.G.C.) LTD. v. LENNON (1969) 1 Q.B. 577, 598, Lord Denning, M.R., after reviewing the facts in the case before him, held that “a man may be disqualified from sitting in a judicial capacity on one of two grounds. First, a "direct pecuniary interest" in the subject matter. Second, ‘bias’ in favour of one side or against the other.” It was the same Lord Denning, MR who, in R. v. AMBER VALLEY DC, EX PARTE JACKSON [1985] 1 WLR 298, [1984] 3 All ER 50, gave the following insight into the determining factor regarding the likelihood of bias: 

The court looks at the impression which would be given to other people. Even if he was as impartial as could be, nevertheless if right-minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then he should not sit. and if he does sit, his decision cannot stand”. It is irrelevant whether he was in fact biased, because “justice is rooted in [public] confidence.

This rule has been applied in several Nigerian and foreign cases to strike down decisions reached in spite of or in disregard of such reasonable likelihood of bias. See R. v. BOW STREET MAGISTRATE EX PARTE PINOCHET (No. 2) [2000] 1 AC 119, [1999] 1 All ER 577; R. v. Secretary of State ex parte Kirkstall [1996] 3 All ER 304; and ZAMAN v. STATE (2015) LPELR-24595(CA). In OLIVE. v. ENENWALI (1976) 1 NMLR 49 at 50, the Supreme Court of Nigeria (quoting the dictum of Brett, Ag. C.J.N, in the case of Obadara & Ors. v. The President, Ibadan West District Grade "B" Court (1964) 1 All NLR 336) held as follows: 

The principle that a judge must be impartial is accepted in the jurisprudence of any civilized country and there are no grounds for holding that in this respect the law of Nigeria differs from the law of England or for hesitating to follow the English decisions.

It is therefore sad that the CCT Chairman had insisted that CJN Onnoghen must appear before the CCT in spite of the pending application praying that he (CCT Chairman) should recuse (himself) from the case on grounds of breach of nemo judex in causa sua. So, one should not be frightened nor discombobulated that NBA and its Leadership are seriously worried and vigorously complaining and protesting. The protest or complaint is not about the person of Onnoghen himself. NBA knows that CJN Onnoghen is not above the law. NBA’s position, I believe, is that if you must punish CJN Onnoghen or indeed anyone for violation of any extant law, the procedure and processes for meting out such punishment must be in strict compliance with due process of law. NBA’s apprehensions are therefore over the aforesaid, which NBA feels constitute a grave threat to due preservation of the rule of law, separation of powers, constitutionalism, and the independence of the judiciary. Further, as can be gleaned from NBA’s published stand, rule of law and an independent judiciary (free from external influence or unnecessary harassments) are necessary to checkmate abuse of political powers and stop Nigeria from degenerating into a tyrannical State headed by totalitarian leaders evocative of Thomas Hobbes’ Leviathan (the Monster-like leaders), whose personal whims and caprices hold sway as opposed to separation of governmental powers, rule of law and preservation of individual liberty of citizens. 

(5) The fifth issue for consideration is that the Code of Conduct Bureau (CCB) itself is in gross breach of due process of law when it proceeded to file the current charges against CJN Onnoghen notwithstanding the latter’s written admission in response to the allegations made against him as they relate to late-declaration and non-declaration of some aspects of his assets. A close look at section 3 of the Code of Conduct Bureau & Tribunal Act (CCB&T Act), Cap C15 relating to functions of the CCB would help us appreciate this position.  
The functions of the Bureau shall be to receive assets declarations by public officers in accordance with the provisions of this Act; examine the assets declarations and ensure that they comply with the requirements of this Act and of any law for the time being in force; take and retain custody of such assets declarations; and receive complaints about non-compliance with or breach of this Act and where the Bureau considers it necessary to do so, refer such complaints to the Code of Conduct Tribunal established by section 20 of this Act in accordance with the provisions of sections 20 to 25 of this Act: 
Provided that where the person concerned makes a written admission of such breach or non-compliance, no reference to the [Code of Conduct] Tribunal shall be necessary. 
The singular question arising from the proviso to section 3 of the CCB&T Act is as to why the CCB, after having received CJN Onnoghen’s written admission in respect of his asset declaration, still proceeded to file charges against the CJN at the CCT. Are there no other processes and procedures put in place for dealing with a situation in which the affected public officer tenders a written admission, as his Lordship, Hon Justice Onnoghen, had done in this instance, since the CCB&T Act leaves no one in doubt in its command that no reference to the [Code of Conduct] Tribunal shall be necessary where the person concerned makes a written admission of such breach or non-compliance (proviso to section 3)? With the greatest respect, it leaves much to be desired and gives some justification to the feeling in some quarters that there might be more to all this drama than meets the ordinary eye. One could then understand why the NBA feels bothered.

All in all, the foregoing, and nothing more pretentious, I respectfully believe, is the position of the NBA and its leadership on what they see as a brazen suppression of law and due process. And this, I submit further, is the position each and every certified, responsible and reasonable Nigerian Lawyer ought to take and support. If the Nigerian Bar Association (NBA) fails, refuses or neglects to stand up in defence of rule of law and the course of justice, I wonder which other institution in Nigeria we would expect to so do. By the way, it would amount to a gross abdication of its core mandate and primary responsibly for the NBA to be looking elsewhere while Nigeria’s Constitution is being trampled upon and due process of law ditched with impunity. Rule 1 of the Rules of Professional Conduct for Legal Practitioners in Nigeria (RPC), 2007, commands all Lawyers in Nigeria to at all times “uphold and observe the rule of law, promote and foster the course of justice.” Or, did we expect the NBA to act when or after things have gone too bad? For no other purposes, other than those of amplifying why NBA’s position or stand is justified and reasonably understandable and defensible, and regarding the role of lawyers in safeguarding respect by all (leaders and the led) for rule of law, I beg to be permitted to humbly draw our attention to John W. Whitehead’s wise, bold admonition in his great book titled, A Government of Wolves: The Emerging American Police State, published on June 25th 2013. Says he:

The time to act is now, before it's too late. Indeed, there is power in numbers, but if those numbers will not unite and rise up against their oppressors, there can be no resistance. You can't have it both ways. You can't live in a constitutional republic if you allow the government to act like a police state. You can't claim to value freedom if you allow the government to operate like a dictatorship. You can't expect to have your rights respected if you allow the government to treat whomever it pleases with disrespect and an utter disregard for the rule of law.

What is more? Leaders and followers in a country would not be able to defend their nation if they are not held accountable to the country’s laws. Ours is governance of limited power under the Constitution. We must learn to work out our problems on the basis of rule of law and respect for the constitution. W. K. Arnold appears to have captured this point more objectively in his book, The Reign in Spain: Fall & Rise of the Spanish Monarchy, published on 23 July 2016. Hear him out:

Civilized existence is one which respects the law, both wise and good laws as well as bad laws, whose constitutional basis is the will of the people. When one does not like a particular law, the remedy resides in modifying it or revoking it by the procedures established for that very purpose. That methodology is the sole means of guaranteeing that popular will cannot be seized and held captive by… with… extreme interpretations.

I rest my case here. May God help Nigeria, my country! Amen!
Respectfully,

Sylvester Udemezue 
(UDEMS)

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