Onnoghen: Was Resignation His Best Bet?

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Walter Onnoghen

After going through what has been touted by a section of the public as the worst form of humiliations in the hands of agents of the federal government, the suspended Chief of Nigeria, Walter Onnoghen, last week resigned from his position following recommendations of the National Judicial Council, and which also exposed NJC’s perceived double standards in the matter of his successor, Tanko Muhammad. In this report, Davidson Iriekpen and Tobi Soniyi examine some of the intricate dynamics that are currently playing out at the top echelon of the judiciary

After about three months of being in the thick of the storm, the Chief Justice of Nigeria, Justice Walter Onnoghen, last Friday, tendered his resignation. He was said to have sent his resignation letter to President Muhammadu Buhari. THISDAY gathered that Onnoghen turned in his resignation letter last Thursday evening, a day after the National Judicial Council (NJC) recommended that he be compulsorily retired for misconduct
The embattled CJN is still standing trial at the Code of Conduct Tribunal (CCT) on an alleged six-count charge of failure to disclose his assets as required by the law for public office holders. The charge was preferred against him by the federal government following a petition filed at the Code of Conduct Bureau (CCB) by one Mr. Dennis Aghanya, an associate of President Muhammadu Buhari, and a director of the Anti-corruption and Research Database Initiative.

He alleged that Onnoghen owned “sundry accounts primarily funded through cash deposits made by himself up to as recently as August 10, 2016, which appeared to have been run in a manner inconsistent with financial transparency and the code of conduct for public officials.”

The trial commenced at the CCT on January 14, 2019, but Onnoghen was absent. It was then adjourned to the following week, because the embattled former CJN faulted the summons procedure. The next hearing was slated for January 22, 2019 but he again failed to show up in court this due to three orders by the Federal High Court and National Industrial Court.

Following his absence again, President Muhammadu Buhari suspended him from office on January 26 and appointed Tanko Ibrahim Muhammad as acting CJN. His office was thereafter sealed by the police.

His Position as CJN Had Become Untenable
As the first Chief Justice of Nigeria to be arraigned for a criminal offence, Justice Walter Onnoghen’s decision to retire from the bench will save the judiciary from further embarrassment.

The sundry allegations levelled against him by the Economic and Financial Crimes Commission including receiving money in foreign currencies from lawyers and the findings by the National Judicial Council that he could not offer valid defence to the allegations, are such that make his continued stay in office as CJN untenable.

Even though, the authorities may have difficulty proving beyond reasonable doubt that he has committed an offence, the CJN has lost the moral right to continue in office not just as the Chief Justice of Nigeria but also as chairman of the National Judicial Council, a body that disciplines erring judges.

The allegations even though unproven in a court of law have significantly damaged Onnoghen’s moral standing and weakened his reputation to such an extent that even if he was cleared of all changes in his ongoing CCT trial, there was no way he could have returned to office. He must have recognised this fact himself long before he came to his decision to retire or resign.

What were the Options before Him?
Even though the option of resignation was a tough decision for Onnoghen to make, THISDAY gathered from a credible inside source that there were no other alternatives left for the embattled CNJ under the current circumstance. The source disclosed that the option of resignation was first put on the table for him, when he refused to appear at the start of his trial before CCT, but he ignored it, thinking that the case would fizzle out in no distant time.
Investigation revealed that even though a lot of event unfolding in the course of the trial might have immensely contributed to his eventual resignation, the decision by the NJC to recommend his compulsory retirement to President Buhari after deliberating on the petition filed against him by the Economic and Financial Crimes Commission (EFCC) may have seriously accentuated the option.

The NJC had last Wednesday said it had determined the petitions against Onnoghen, and the acting CJN, Tanko Muhammad, and sent its findings to the president for consideration. It was gathered that members of the council unanimously agreed that Onnoghen had particularly lost every moral authority to continue as CJN with the litany of allegations bordering on misconduct.

Many now believe that with the resignation, it would save Buhari from having to get two-thirds majority of the Senate to confirm Onnoghen’s retirement as stipulated in Section 292 (1) of the 1999 Constitution, which might have been impossible to muster.

The section that “Judicial officer shall not be removed from his office or appointment before his age of retirement except in the following circumstances – (a) in the case of – (i) Chief Justice of Nigeria… by the President acting on an address supported by two-thirds majority of the Senate.”

Second are the humongous benefits that would accrue to him with the resignation. Investigation revealed that Onnoghen’s retirement benefits in cash and kind will cost tax payers about N2.5 billion. As part of the package for a retired chief justice, a house will be built for him in Abuja with a nine-digit sum for furnishing — in addition to a severance gratuity that is 300 per cent of his annual basic salary of over N3.3million, as well as pension for life.

Just like state governors, a retired chief justice is entitled to a number of domestic staff and sundry allowances for personal upkeep. This package for judicial officers was put together by the NJC long before Onnoghen became the CJN in 2017. However, if he was dismissed upon conviction by the CCT, he would not be entitled to any benefits.
THISDAY gathered that those, who advised the embattled CJN to resign might have thought that if he allowed the CCT to convict him, not only would he forfeit the monies in the accounts, which he did not declare to the federal government, he would also forfeit the mouth-watering benefits he would enjoy should he not take the option of resignation. In addition, he would be barred from holding public office for 10 years.

Unprecedented Prosecutorial Speed
THISDAY checks revealed that one of the thinking that aided Onnoghen’s resignation stemmed from the unprecedented speed that characterised the petition, investigation, charges prosecution and the body language of the tribunal chairman, Danladi Umar, which all point to the fact that his conviction might have been predetermined. These played out during trial.

For instance, the defence team had noted the speed with which the charges against Onnoghen were filed and alleged connivance of the CCB with the petitioner, whose charges had resulted in his allegations.
The petition, which birthed the charge against the former CJN was written by Dennis Aghanya, a member of the ruling All Progressives Congress (APC) in Enugu State. Dated January 7, the petition was received by the CCB on January, 9, according to the first prosecution witness, James Akpala.

Akpala, a senior investigative officer with the Bureau, told the tribunal that his office received the petition on January 9 and began investigating on January 10. He added that a team of investigators from his office visited Onnoghen’s office on January 11, where they obtained his written statement in addition to bank documents to support the allegations.

Responding to questions from Onnoghen’s counsel, Adegboyega Awomolo, Akpala admitted that they completed their investigation and submitted their report to the CCT before the charge against his client was drafted and filed that same January 11, nearly three hours before the report was submitted to the tribunal.

The other concern was when the CCT rejected Onnoghen’s no-case submission. As soon as Umar was done with the ruling on Friday, he adjourned the hearing to Monday for the defendant to open his defence. This led to uproar in the courtroom, as lawyers from the defence objected to the short adjournment. They questioned the speed in the trial when the tribunal could have given them enough time to prepare their case.

While Awomolo was still on his feet, asking the tribunal chairman to allow the defendant sufficient time to prepare, Umar stood up and walked away, leaving other members of the tribunal to chase after him. As if this was not enough, when the defence announced the closure of its case, it asked the tribunal for a 14-day adjournment in line with practice direction of the court for such situations for it to file its final written address.

But responding, prosecution counsel, Mr. Aliyu Umar SAN, argued that no specific time duration was provided for in the practice direction and urged the tribunal to use its discretion in granting the request, adding that the tribunal should accord them the same amount of whatever days given to the defense for them to file their reply.
In a short ruling, tribunal chairman gave the defence three days to file its final written addresses, following which the prosecution can file in their response in another three days. He subsequently adjourned till April 15 for the adoption of final written addresses by parties and fixing of date for judgment and ruling on all pending applications.

The Appeal Court Conspiracy
The final shocker for Onnoghen was the silence by the Court of Appeal on his case. The former CJN currently has about four appeals pending at the court, either challenging his suspension from office or challenging the jurisdiction of the CCT to hear the charges filed against him. But since February 28, when the appellate court reserved for judgment, nothing has been heard from the justices of the court.

The judgment, which could have long terminated the CCT trial, particularly the appeal challenging the jurisdiction of the tribunal to hear the case, has refused to come, setting tongues wagging that the court might have been cautioned to stay away from the case.

The first time the case came up in the court was January 22, was when the embattled CJN, who was initially scheduled for arraignment on January 14, 2019, ran to the court to stop the process. In a motion on notice brought by his counsel, Awomolo, Onnoghen asked the appeal court to restrain the CCT from going ahead with his trial slated for January 22.

He also asked the court to stop the suit requesting him to step down as the CJN. The senior lawyer submitted that it is settled law that once a matter is before the appeal court, trial courts cease jurisdiction, pending the determination of the matter at the appellate court.

But a three-man panel of the court led by Justice Abdul Aboki, while delivering ruling, refused request. It was therefore no need for an order and adjourning till January 24 for hearing of Onnoghen’s motion on notice. When the matter came up again on January 30, the court dampened the hope of the former CJN for reprieve, refusing to stay proceedings at the CCT. Instead, the appellate court dismissed Onnoghen’s appeal and asked him to return to his scheduled arraignment at the CCT.
Many had wondered why the same Court of Appeal which shut down the trial of Justice Hyeladzira Nganjiwa could not save Onnoghen, when it was the judgment that was used to save a fellow Supreme Court judge, Justice Sylvester Ngwuta, when the federal government had through the Bureau, accused him of false assets declaration shortly after he was arraigned for alleged fraud at the Abuja Division of the Federal High Court.

In a decision of the tribunal in March 2018, it struck out the 10 counts charges leveled against Ngwuta, citing an earlier decision of the Court of Appeal, Lagos Division, which held that serving judicial officers cannot not be tried and that the only body empowered to first indict a serving officer of that capacity is the National Judicial Council (NJC).

Muhammad’s Inordinate Ambition

President Muhammadu Buhari congratulating the new Acting Chief Justice of Nigeria , Justice lbrahim Tanko Muhammed, shortly after taking the Oath of Office at the Council Chamber of the Presidential Villa , Abuja on Friday (Photos by Godwin Omoigui)

Many observers believe one reason why it was easy to get Onnoghen was because of the inordinate ambition of the acting CJN, Ibrahim Tanko Muhammad. Checks revealed that long before Onnoghen became the CJN, against the order of tradition of seniority, the man who succeeded him in acting capacity, had always claimed to be senior on the Bench to him, and should be succeeding the then CJN, Justice Mahmud Mohammed.

Investigation revealed that the seniority war mainly waged from Muhammad’s end, got to a head during an official function at the National Judicial Institute (NJI), when he openly demanded from Mohammed that he be allowed to sit next to him, as the most senior justice of the Supreme Court, ahead of Onnoghen, who then, was the most senior, officially recognised, by the judiciary leadership.

An enraged Mohammed said to have told Tanko point-blank that longevity on the Supreme Court Bench must be followed. He reminded him that Onnoghen got to the Supreme Court ahead of him and going by tradition, the jurist from South-south was officially the most senior of the court.

Despite the matter being resolved in Onnoghen’s favour, Tanko’s camp was said to be upbeat, with sources claiming that he had been assured by the powers-that-be in Buhari’s government, that he would be appointed as Mahmud’s successor ahead of Onnoghen, the reason Onnoghen’s confirmation was needlessly delayed. But following the unsuccessful attempts to stop Onnoghen’s enthronement, the suspended CJN got an early lead, but as things stand today, Muhammad can be said to be having the last laugh.

Judiciary as the Weakest Link
There is no doubting the fact that the forced resignation of Onnoghen has exposed how weak the judiciary is amongst the three arms of government. Counsel to the former CJN, Awolomo, had last week alluded to this when he lamented the ease with which the executive arm of government has treated the nation’s number one jurist with indignity, saying it showed that the judiciary was weak, vulnerable and dependent.

The senior lawyer said his experience at Onnoghen’s trial has brought to the fore, the urgent need for institutional reforms and the need to ensure that agencies are made to be strong and independent.

“The case has clearly shown that Nigerian judiciary is very weak, vulnerable and not independent. The security of tenure of a judicial officer is a mere wishful thinking. It is unthinkable that the head of the judiciary will be treated the way Onnoghen was treated and not a whimper came from the body of men and women of highest distinction in the legal profession. Is it not dangerous that the president can appoint a Chief Justice without the recommendation of the National Judicial Council (NJC)?

“There is no association of Nigerian judges to speak a word. Let no public officers or judicial officer at any level throw stones, because if not all, most are guilty as Onnoghen. Nobody knows who is next, a precedent has been laid. The honourable Attorney-General of the Federation seems pleased. Men, who sit in judgment over fellow human beings, are representative of God on the earth and everyone shall face the almighty God, on the last day, to give account of his stewardship. On that day all secrets shall be laid bare.”

Awomolo carpeted the Nigerian Bar Association, saying by reason of personal leadership ambition, tribal sentiments, has been rendered ineffective, divided, weak and unable to speak boldly to secure the independence of the judiciary. He said situation where the executive arm of the federal government dominates other arms is not good for democracy to thrive.

“The framers of the Constitution of the Federal Republic of Nigeria, 1999 (as mended) omitted to give sufficient attention to the need for the CCT, to secure its independence, impartiality and non-interference from outside the court – a situation, where the executive arm of the federal government, is the custodian of the Code of Conduct for public officers, the enforcer of the Code of Conduct through the tribunal. It is the appointing authority of the members of the tribunal.

“In the proceedings in the tribunal, the executive is the accuser, the investigator, prosecutor, the witness and the judge, all roll together into one. This is unacceptable under the Constitution that guarantees independence of the three arms of government. There is urgent need for constitutional reform,” he concluded.

…NJC’s Volte-face on Acting CJN
Call it double standards, and you will not be far from saying the truth.
Until last week, the NJC would punish any judge, who accepted an appointment from the executive arm of government without the prior approval of the council.

In 2014, the then Rivers State governor and now Minister of Transportation, Rotimi Amaechi appointed Justice Peter Agumagu as the chief judge of the state. The NJC preferred Justice Daisy Okocha. For accepting the appointment, the NJC under the leadership of the then Chief Justice of Nigeria, Aloma Mariam Mukhtar, accused Justice Agumagu of disregarding the council by accepting the appointment.

He was consequently suspended.
The Rivers State governor had on March 18, 2014 sworn in Agumagu after Hon. Justice Lambo Akanbi of a Federal High Court sitting in Port Harcourt had declared the NJC’s action of nominating only Hon. Justice Daisy Okocha for appointment as chief judge as unconstitutional.
The court in Port Harcourt therefore nullified the recommendation of the NJC in appointing Justice Okocha as the Chief Judge of Rivers State. The trial judge said Amaechi was not bound and could not be compelled to swear-in the individual recommended by the NJC.

But that decision did not go down well with the NJC. The council said Justice Agumagu pretended to be unaware of the provisions in the 1999 Constitution as amended with regards to the appointment of a chief judge. NJC ignored the judgment and punished Justice Agumagu. His sin: accepting the appointment to be chief judge.
Last year, at its 85th meeting held on the 14th of March, 2018, NJC recommended the compulsory retirement of Mr. Justice Obisike Oji of Abia State High Court to Governor Okezie Ikpeazu of Abia State. A statement signed by the council’s director of information, Mr Soji Oye read: “Hon. Mr. Justice Obisike Oji was earlier queried by the council for allowing himself to be sworn-in as acting Chief Judge, and thereby colluding in, and aiding an unconstitutional process. His reply was unsatisfactory and the council recommended his compulsory retirement.”
At the council meeting where the decision to sack Justice Oji was taken, Justice Tanko Muhammad was the deputy chairman of the NJC. Justice Walter Onnoghen was the chairman.

By the precedent established by the NJC, it was fairly settled that a judge needs the permission or approval of the NJC to accept appointment from the executive.
Fast forward to 2019, now that it is the turn of Justice Muhammad, it appears this is no longer the rule. The council did not find anything wrong in Muhammad accepting his appointment as acting Chief Justice of Nigeria from President Buhari following the suspension of Onnoghen.

The fact that the council chose to be silent on the decision it took pertaining to the petition against Muhammad further raises suspicion that the council was up to some mischief.
In the said statement, reference was only made to Muhammad in the introductory sentence which read: “The National Judicial Council reconvened today in an Emergency Meeting to consider the Report of the Five-Man Committee constituted to investigate the allegations of misconduct made against Hon. Mr. Justice W. S. N. Onnoghen, GCON and Hon. Mr. Justice I. T. Muhammad, CFR.”

Nothing was said about the decision taken in respect to the petition against the Acting Chief Justice. However, it has since become public knowledge that the council gave the Acting CJN a clean bill of health. That decision contradicts previous decisions taken by the council in dealing with similar infractions. As a dynamic institution, the NJC is entitled to change its rule and can depart from its previous decisions. However, there ought to be sufficient explanation to the public on this otherwise the NJC risks losing credibility before the public.

As it is now, it is difficult to see the council as an impartial organisation. Rather, it has left the public with the impression that the council is an institution where different rules apply to different judges, depending on whose interest is affected. If Justices Agumagu and Oji could be kicked out for accepting appointments from their governors, there is no reason for Justice Muhammad to go scot free especially that he was part of the decision to kick out one of the justices.

The council, in punishing judges, who allow themselves to be used by the executives, appeared to be strengthening the independence of the judiciary. The decision to waive this rule now potentially threatens to erode the gains made in the past.

Also in the light of this decision, can Justice Oji and possibly Agumagu write to the NJC for a review of their cases? Or at best, will the NJC be willing to apologise to them by admitting that the council made a mistake in punishing them for accepting the appointments to be chief judges of their respective states? The council may have a better explanation to justify its decision and it will not be out of place to concede to it the benefit of the doubt. It would however serve the council better if this is made public. But in the absence of a cogent and verifiable reason to justify its decision, NJC might have done an incalculable damage to its credibility and independence.

There is a need, indeed, an urgent one for that matter for the council to explain or justify its decision with respect to the clearance given to the Acting CJN. Otherwise, the council may end up being seen as a cheap and willing tool in the hands of advocates of nepotism and sectional gratification.