Court Orders Service on Buhari, NJC, Others in Suit against Acting CJN’s Appointment

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Justice Tanko Muhammad

Alex Enumah in Abuja

Justice Inyang Ekwo of the Federal High Court in Abuja has ordered the service on President Muhammadu Buhari and six others, court processes of a suit against the appointment of Justice Tanko Muhammad as Chief Justice of Nigeria (CJN).

Justice Ekwo gave the order shortly after a human rights lawyer, Chief Malcolm Omirhobo, argued his exparte application seeking to stop the appointment of Muhammad as the substantive CJN.

The Board of Incorporated Trustees of Malcolm Omirhobo Foundation had, in an exparte motion filed on April 15, 2019, asked the court to stop Justice Muhammad’s appointment as CJN, pending the hearing and determination of the motion on notice filed by the foundation.

The plaintiff also asked for an order of interim injunction restraining the Senate of the Federal Republic of Nigeria (7th defendant) from confirming the appointment of Justice Muhammad as CJN pending the determination of the substantive suit challenging his appointment.

Justice Ekwo, in a ruling on the exparte application, however ordered the plaintiff to put the defendants on notice, stressing that: “None of the prayers made on this motion exparte can be granted in the absence of the defendants.”

The defendants in the suit to be served with the hearing notice include, the National Judicial Council (NJC), Federal Judicial Service Commission (FJSC), Justice Muhammad, Federal Government of Nigeria, President Buhari, Attorney General of the Federation (AGF) and the Senate of the National Assembly.

Justice Ekwo in addition ordered Buhari and the other defendants to upon receipt of the process appear before the court within seven days to show cause why the application of the plaintiff should not be granted.

Justice Ekwo then adjourned till May 13, 2019 for the defendants to appear in court to show cause.

The enrolled order made on Friday, May 3, 2019 and sighted by THISDAY, Monday, May 6, 2019 read: “Upon reading the affidavit in support of the motion exparte sworn to by Chief Malcolm Emokiniovo Omirhobo and after hearing Chief Omirhobo for the plaintiff/applicant move in terms of the motion paper, and the court having granted the application, it is hereby ordered as follows: That none of the prayers made on this motion exparte can be granted in the absence of the defendants.

“The plaintiff is hereby ordered to put the defendants on notice.

“The defendants are hereby granted 7 days upon being served to appear and show cause why the application of the plaintiff ought not to be granted.”

The plaintiff, in the suit marked FHC/ABJ/CS/420/2019, is praying the court to declare that the Acting CJN, Justice Muhammad, having made himself available as a tool that was used in the violation of the constitution, especially with regards to the alleged illegal removal of the former CJN, is therefore not a proper and fit person to be recommended for appointment to head the judiciary.

The rights activist further prayed the court to declare that the suspension and/or removal of a CJN from office, is a shared responsibility of the first defendant (NJC), the fifth defendant (Buhari) and seventh defendant (National Assembly).

He argued that President Buhari lacked the constitutional powers to unilaterally suspend and/or remove a sitting CJN from office, as was done in the case of Justice Walter Onnoghen.

Besides, he prayed the court to declare that by combined interpretation of sections 1(1 )(2), 231(4), 292(1)(a)(i)(b), 153(1)(i), 158(1) and paragraph 21 (a)(b) of Part 1 of the Third Schedule of the 1999 Constitution, as amended, “it is unlawful and undemocratic for the 4th and 5th defendants (federal government and President Buhari), to declare the office of the CJN vacant on January 25, 2019 and consequently appoint and swear in the third defendant as the acting CJN.

Omirhobo is therefore seeking an order of court restraining the National Assembly from confirming any appointment of Justice Muhammad as the substantive CJN.

“An order, compelling the 2nd defendant (FJSC), to select and the 1st defendant (NJC), to recommend the most qualified Justice of the Supreme Court of Nigeria that is fit and proper, to the 5th defendant, for appointment to office of the CJN, and for the confirmation of the 7th defendant with a two-thirds majority vote,” he said.

Aside praying the court to bar President Buhari from appointing Justice Muhammad as the substantive CJN, the plaintiff, in a 65-paragraph affidavit he filed in support of the suit, stressed that unless restrained by the court, the executive arm of government would continue to violate the extant provisions of the constitution and sanctity of the judiciary.

In another development, Justice Ekwo also ordered the release of the international passport of Senator Ademola Adeleke to enable him travel to the United States of America (USA) for medical check up.

Granting the order in an exparte application filed on April 30, 2019 by the senator, the judge directed the Deputy Chief Registrar of the Federal High Court, Abuja, to release Adeleke’s travel documents to enable him travel abroad between the period of May 2nd and 9th, 2019.

“The respondent (police) shall not prevent the first defendant from travelling for medical attention upon attending the invitation of the respondent on May 6th, 2019,” the judge ordered and adjourned till June 10, to commence trial in the examination malpractices charge slammed against Adeleke and others by the police.