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14 January 2019

Legal giants clash over CJN Onnoghen’s trial

To Aare Afe Babalola (SAN), Justice Onnonghen should have been reported to the National Judicial Council (NJC) instead of being taken before the CCT.

But, the Presidential Advisory Committee Against Corruption (PACAC) chairman Itse Sagay disagreed.

In Prof. Sagay’s view, the question of Jurisdiction should not arise. “I think at the level of the officer we’re talking about now, we shouldn’t be talking of the substance. Did he or did he not do it? That’s all,” he said.

The Court of Appeal had held in the Justice Hyeladzira Nganjiwa case that it would amount to the usurpation of NJC’s powers if any judicial officer commits a professional misconduct within the scope of his duty and is investigated, arrested and subsequently prosecuted without a formal complaint/ report to the NJC.

Several senior lawyers have argued that Court of Appeal judgment should have been complied with before a charge was filed against the CJN.

But Sagay, in an interview with our correspondent, slammed the Court of Appeal for the judgment, describing it as unconstitutional and a bid by the justices to get immunity through the back door.

His words: “I want to make a few points. The first is that the Nganjiwa case, as far as I’m concerned, is unconstitutional. That judgment was unconstitutional. It’s an illegal judgment.

“It is an illicit attempt by some Justices of the Court of Appeal to give themselves immunity contrary to the provisions of the Constitution.

“The Constitution has named those entitled to immunity – the President, Vice President, governors and deputy governors.

“What these Justices tried to do is to take over the job of the National Assembly, amend the Constitution and then hide themselves inside as those who are immune from prosecution. To me, it’s illegal and unconstitutional.

“Number two, I’ve read the Nganjiwa judgment. It’s a judgment limited to a judge who was acting as a judicial officer, who was hearing a case and in the process was found guilty of misconduct in the hearing of that case.

“This matter that has just occurred has nothing to do with a case in court. It has something common to all public officers before you take an office. So, there’s a major distinction. The Nganjiwa case does not cover this situation.

“Thirdly, we’re talking of the CJN, head of a branch of government; in fact, I’ll say head of the most important branch of the government, because they’re the arbiters of anything that goes wrong in the other two arms.

“It is said that Julius Ceasar’s wife must be above board. If I’m the Chief Justice, even a judge, and you bring such a charge against me, I will not contest jurisdiction. If I contest jurisdiction and win, you’re still going to say: ‘But you did it’.

“Rather, I’ll waive the issue of jurisdiction, because my status is so high that I must have a clean image before the world, so that the institution I represent may not be tainted.

“Those hiding behind jurisdiction are trying to cover up iniquities of some sort. I’m speaking generally now. Those who are bringing that issue up are creating a problem for this country, because the sore will still be there. It’s as if they’re saying no doctor should treat it.

“Those cases that went on for 12 years was because of the issue of jurisdiction – all the looters’ cases. It’s jurisdiction that was argued from High Court to Supreme Court and back. The issue of bleeding this country to death through corruption was never touched.

“I think at the level of the officer we’re talking about now, we shouldn’t be talking of jurisdiction. We should be talking of the substance. Did he or did he not do it? That’s all.”

A lawyer, Joshua Alobo (SAN) last night said the CCT has the jurisdiction to determine if Justice Onnoghen is guilty or not.

Sending the case to the NJC, Alobo said, is belabouring the matter.

The NJC, he said, has only power to determine administrative cases against judicial officers and not a criminal allegation.

“The Section 292 is clear that the contravention of the Code of Conduct Bureau can only be established by the CCT and if that is clear, then the CCT has jurisdiction to determine if there is a contravention of the Fifth Schedule which every public officer including the judiciary officer is under obligation to comply with. Whether the CJN is guilty or not, it is the tribunal that has the requisite jurisdiction to determine that. The NJC has only power to determine administrative misconduct of the judicial officer as determined to by the Supreme Court. What is before the CCT is a criminal allegation, not administrative misconduct that could be handled by the NJC,” he said.

Activist-lawyer Femi Falana, SAN, in a statement, advised the Federal Government to withdraw the charge against the CJN because it was contrary to the conditions set by the Court of Appeal in the case of Nganjiwa v FRN.

He said: “As all authorities are bound by the Court of Appeal verdict, the case should be withdrawn by the Attorney-General of the Federation without any delay because it is likely to be a prosecutorial misadventure.”

A Senior Advocate of Nigeria (SAN) Mr Dele Adesina described the Federal Government’s action as saddening.

He said the action is like putting the entire judicial institution on trial.

He said: “The institution has no alternative. It is the last hope of the common man. Though it is not immune to probe, but there are procedures. The CJN is not immune to trial but there is a constitutional way on how to go about it. There is no conflict in Section 292 which shows that the CCT cannot try a judicial officer until you have removed the toga of a judge or justice from such person through NJC. The NJC has administrative power to sanction any erring judicial officer.”

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