My Appointment is in Order, Acting CJN Tells Court

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Justice Tanko Muhammad

Alex Enumah in Abuja

The Acting Chief Justice of Nigeria (CJN), Justice Tanko Muhammad, yesterday told the Abuja Division of the Federal High Court that his appointment by President Mohammmadu Buhari in January this year was in line with the provisions of the law.

Justice Muhammad made the submission in his reply to a suit challenging his appointment as Acting CJN.

The suit was filed by the Board of Incorporated Trustees of Malcolm Omirhobo Foundation, an advocacy group.

The plaintiff in the suit marked FHC/ABJ/CS/420/2019, urged the court to declare that 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.

But in his reply to the suit yesterday, Muhammad told the court that his appointment was made shortly after the former CJN, Justice Walter Onnoghen was suspended from office based on the order of the Code of Conduct Tribunal (CCT), which heard the case of false asset declaration against Onnoghen, adding that President Buhari, who appointed him is legally vested with the powers to suspend a CJN, including Onnoghen.

The CCT had in an exparte application directed Buhari to suspend Onnoghen, pending the hearing and determination of corruption charges against him and appoint the most senior justice, (Muhammad) to replace Onnoghen as CJN.

In a 39-paragraphed counter-affidavit that was deposed to by one Sadiq Ahmad, the Acting CJN, argued that President Buhari, being the appointing authority, “has the power to remove or suspend any person occupying the office of the CJN”.

Muhammad further submitted that in exercising his powers to suspend a CJN, the president need not seek the approval of the National Judicial Council (NJC), or the Federal Judicial Service Commission, (FJSC).

Justice Muhammad equally maintained that there was also no need for President Buhari to approach the Senate “for support by majority of two-third votes, before the erstwhile CJN could be suspended from office”.

“That the 5th Defendant (Buhari) followed due process of law in the appointment of the 3rd Defendant as the Acting CJN.

“That the 5th Defendant has extended the appointment of the 3rd Defendant as the Acting CJN, by another three months, upon the recommendation of the 1st Defendant (NJC).

“I know as a fact that there had not been any negative impact on the Nigerian Judiciary as there is renewed belief by the common man in the judiciary as his last hope”, the Acting CJN added.

Justice Muhammad, therefore, prayed the court to dismiss the plaintiff’s suit against his appointment.

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.

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.

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 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 1st Defendant (NJC), the 5th defendant (Buhari) and 7th 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 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 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”.

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.