The Acting Chief Justice of Nigeria, Justice Tanko Muhammad, has said President Buhari, as the appointor of the Chief Justice of Nigeria, has the power to remove or suspend any person occupying the office.
Muhammad stated this in defence of Buhari’s suspension of the embattled CJN, Justice Walter Onnoghen, on January 25, 2019, and his immediate appointment by the President as the Acting CJN.
This is contained in a counter-affidavit which he filed to oppose a suit seeking to stop him from being appointed as substantive CJN. The suit was filed before the Federal High Court in Abuja by Malcom Omirhobo Foundation, through its lawyer and promoter, Chief Malcom Omirhobo.
It prayed for, among others, a declaration that Justice Muhammad “is not a proper and fit person to be recommended by the 2nd defendant (the Federal Judicial Service Commission) to the 1st defendant (the NJC) and by the 1st defendant to the 5th defendant (Buhari) for appointment to the Office of the CJN.”
This, the plaintiff said, was because Muhammad in accepting to be sworn in as the Acting CJN, “conducted himself in a manner that cast doubt of confidence in his integrity and impartiality of the judiciary and having made himself a tool used in the violation of the Constitution of Nigeria.”
The seven defendants to the suit are the National Judicial Council, the Federal Judicial Service Commission, Justice Muhammad, the Federal Government, Buhari, the Attorney-General of the Federation and the Senate.
In his response contained in the counter-affidavit filed on his behalf by the law firm of Lateef Fagbemi (SAN), Muhammad maintained that Buhari, acting on an ex parte order of the Code of Conduct Tribunal, rightly suspended Onnoghen. The counter-affidavit was deposed to by Sadiq Ahmad, a lawyer in Fagbemi’s law firm, who also stated that he with “the 3rd defendant (Muhammad) carefully studied the plaintiff’s application for interlocutory injunction.”
He also said he did not commit any wrong by submitting himself to be sworn in in acting capacity following the order of the CCT and the vacuum left behind by Onnoghen’s suspension. He recalled that Onnoghen had subsequently, after his suspension by the President, resigned from office.
On April 18, 2019, the CCT convicted Justice Onnoghen on charges of false and non-declaration of assets, and as punishment, ordered his removal from office, barred him from holding public office for a period of 10 years and ordered the forfeiture of the proceeds of the bank accounts he was said to have failed to declare.
Muhammad stated that apart from the constitutional procedure for the removal of a person from the office of the CJN based on age or retirement or by an address supported by two-thirds majority of the Senate, “any public officer found guilty of the breach or violation of code of conduct can be ordered to vacate the office he is holding as the consequence of the breach or violation of the code of conduct.”
He added that the President also had the power to remove or suspend any occupant of the office of the CJN.
“I also know as a fact that the 5th defendant has the power to remove or suspend any person occupying the office of the Chief Justice of Nigeria being the appointing authority,” the affidavit read in part.
Justifying Onnoghen’s suspension by Buhari, the counter-affidavit stated, “That I also know as a fact that as at January 25, 2019 the order of the Code of Conduct Tribunal also directed the 5th defendant to swear in the most senior Justice of the Supreme Court as the Acting Chief Justice of Nigeria.
“That it was pursuant to the said order of the Code of Conduct Tribunal that the 5th defendant appointed the 3rd defendant as the Acting Chief Justice of Nigeria.
“That in the circumstance, I know as a fact there was no need for a recommendation of the 2nd defendant (FJSC) to the 1st defendant (NJC) or of the 1st defendant to the 5th defendant (Buhari) before the erstwhile Chief Justice of Nigeria could be suspended from office.
“There was also no need for the 5th defendant to approach the 7th defendant for support by majority of two-third votes, before the erstwhile Chief Justice of Nigeria could be suspended from office.