There is confusion, fear and anxiety in the Judiciary as Chief Justice of Nigeria (CJN) Mahmud Mohammed retires today, without handing over to a successor.
At the close of work, yesterday, he did not officially hand over to any successor, newsmen repotorts.
It was also gathered that, on October 10, Mohammed forwarded the name of Justice Walter Nkanu Onnoghen, as his successor, to President Muhammadu Buhari, who will then forward same to the Senate for confirmation next CJN.
Anxiety is high in the Judiciary over the lacuna, giving that Mohammed’s tenure as CJN lapsed by 12:00am today, upon clocking the mandatory retirement age of 70 years.Although, Mohammed had on October 10, 2016 forwarded Onnoghen’s name to Buhari as the next most senior Justice of the Supreme Court to replace him, based on the recommendations of both the Federal Judicial Service Commission (FJSC) and the National Judicial Council (NJC), the president is yet to forward same to the Senate for confirmation.
Although section 231 (1) of the 1999 Constitution (as amended), confers on president Buhari the power to appoint a CJN, on the recommendation of the NJC, such appointment must however be subject to confirmation by the Senate. Section 231 (3) of the Constitution also provides that: “A person shall not be qualified to hold the office of the CJN or of a justice of the Supreme Court, unless he is qualified to practice as a legal practitioner in Nigeria and had been so qualified for a period of not less than 15 years.”
Senior lawyers who spoke with Daily Sun have expressed concern over the development.
In his reaction, a Senior Advocate of Nigeria, Sabastine Hon has described as “dangerous” Buhari’s failure to endorse Onnoghen’s nomination as CJN before the expiration of Mohammed’s tenure.
“The tenure of the Mohammed, expires at 12 midnight on November 9, 2016. Onnoghen’s name, as the next, most senior Justice of the Supreme Court, has since October 10, 2016, been forwarded to the president, who is expected, constitutionally, to forward it to the Senate for confirmation. Till this moment, Mr. President has not forwarded Justice Onnoghen’s name to the Senate for confirmation. This is scary, to say the least.
“The time to act is now, as Senate must confirm Justice Onnoghen latest on Tuesday, to further enable his swearing in just before or just after Justice Mahmud bows out.
Hon said the image of the Judiciary has nosedived in recent times and the president must be seen to be preventing any further dent on the image of this crucial arm of government. He urged the president to endorse Onnoghen’s appointment, who, he said, could be the first southerner in nearly 30 years to hold the post.
But, rights lawyer, Chief Mike Ozekhome (SAN) said there is no cause for alarm because there would be no vacuum.
He explained that “section 231 (4) (5) of the Constitution provides that when the office of the CJN becomes vacant for any reason, in the interim, the president will appoint the most senior justices of the court, in this case, Justice Onnoghen, in an acting capacity. So, it is not a gift from the president but, a constitutional provision and he is duty bound to act in accordance with the provisions of the Constitution, to appoint Justice Onnoghen as acting CJN until his name is confirmed by the Senate.
“Also, section 231 (5) states that where an Acting CJN is so appointed, it shall be for the period of three months in the first instance and he shall perform the full duties and functions of the CJN and chairman of the NJC. The president can again re-appoint him for another three months until his appointment is made permanent. But if within the expiration of the first three months, the president has not made his appointment permanent, the NJC can still send his name to the president for appointment. The Constitution did not place a limit on the number of times his appointment as an acting CJN can be reviewed.
“So, there is no fear that there will be a lacuna in the Judiciary as the acting CJN shall perform all the functions of his office including that of the NJC Chairman.
Other lawyers who declined to be named, however, said it was too early to jump into conclusion. They added that Justice Onnoghen could still perform the duties of the CJN in an acting capacity, “as the most senior Justice on the bench of the Supreme court.”
If Buhari approves Onnoghen, who is from Cross-River State, as the 17th CJN, he will become the first Southern jurist to head the Judiciary in about 29 years.
Justice Ayo Gabriel Irikefe, who retired in 1987, was the last Southern CJN.
Onnoghen was born on December 22, 1950 at Okurike town, Biase Local Government Area of Cross Rivers State. He attended the Presbyterian Primary School, Okurike town between 1959 and 1965 and later proceeded to Accra, Ghana to attend Odorgorno Secondary School, Adabraka, between 1967 and 1972 for his West African Examination Council (WAEC) exams.
He was at Accra Academy, Ghana, between 1972 and 1974 for his WAEC (A-Levels) before proceeding to the University of Ghana, Legon, Ghana between 1974 and 1977 to obtain his Bachelor of Law Degree (LL.B (Hons)) and graduated with a Second Class Upper Division. He attended the Nigerian Law School, Victoria Island, Lagos between 1977 and 1978. He was called to the Bar on July 8, 1978.
Among the professional appointments/positions he held include: Pupil State Counsel, Ministry of Justice, Ikeja, Lagos State (1978 – 1979); Partner in the Law Firm, Effiom Ekong & Company, Calabar (1979 – 1988); Principal Partner/Head of Chamber of Walter Onnoghen & Associates, Calabar (1988 -1989). He became a High Court Judge, Cross Rivers State Judiciary (1989 – 1998) and served as chairman, Cross Rivers State Armed Robbery and Fire Arms Tribunal (1990 – 1993). He was also chairman, Judicial Inquiry into the crisis between Students of the University of Calabar and Obufa Esuk Orok community, Calabar (1996) and also chairman, Failed Bank Tribunal, Ibadan Zone (1998).
He is also a fellow of Chattered Institute of Arbitrators. and has attended several conferences and seminars around the world. He is a member of the Body of Benchers and Life Bencher. He was appointed a Justice of the Supreme Court of Nigeria (JSC) since 2005.
On February 5, 2016, Justice Onnoghen read the lead judgment, alongside a panel of seven justices, which dismissed Senator Bukola Saraki’s interlocutory application challenging the jurisdiction of the Code of Conduct Tribunal (CCT) to hear his false asset declaration allegation for not being properly constituted.
Justice Onnoghen also held that the tribunal was by the provisions of its enabling laws and the constitution conferred with the quasi-criminal jurisdiction, and thus, could validly issue a bench warrant. He thus held that the Administration of Criminal Justice Act 2015 was applicable to the proceedings of the tribunal.
He dismissed the allegation by Saraki that he was not properly served with the charges and held that the charges filed before the CCT before the appointment of the Attorney-General of the Federation were valid.
He also noted that there was an attempt by Saraki to intimidate the CCT by claiming that it disobeyed the order of a Federal High Court barring it from continuing with the proceedings pending the determination of a suit filed by the Senate President to challenge the trial.
“I have looked at the records, there is nowhere such orders were made,” Justice Onnoghen ruled.
Following this judgment the CCT proceeded with the Senate President’s trial on three counts bordering on false assets declaration.
The pronouncement is hailed as having strengthened the new Administration of Criminal Justice Administration (ACJA, 2015).