Suit Against Appointment: Acting CJN Served Process in Court

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By Alex Enumah in Abuja

The Acting Chief Justice of Nigeria (CJN), Justice Tanko Muhammad, was on Monday served with a suit seeking to stop President Muhammadu Buhari from appointing him (Muhammad) as 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.

But the trial judge, Justice Inyang Ekwo, had in a ruling delivered on May 6, 2019, on the exparte application however, ordered the plaintiff to put the defendants on notice, saying: “None of the prayers made on this motion exparte can be granted in the absence of the defendants.”

Justice Ekwo also ordered the defendants to appear before him on May 13, 2019 to show cause why the exparte application should not be granted.

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.

However, when the matter came up Monday, one Elizabeth Jonathan announced appearance for the NJC, while one Saleh Sule represented the FJSC.

Another lawyer, K. O. Ajayi, who announced appearance for the Acting CJN, informed the court that though his client was yet to be served with the process, he however came to court when the got wind of the matter.

He agreed to be served with the process on behalf of the Acting CJN and was subsequently served inside the courtroom.

Following the service of all parties in the matter, and the subsequent application of the applicant and plaintiff to withdraw the exparte application, Justice Ekwo then struck out the exparte application and adjourned to June 3, 2019, for commencement of hearing of the substantive suit.

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.

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 3rd defendant as the acting CJN”.

Omirhobo is therefore seeking an order of court restraining the National Assembly from confirming the 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”.

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.