By Onyedika Agbedo
THE Acting Chief Justice of Nigeria (CJN), Justice Walter Samuel Nkanu Onnoghen, has spent 38 unblemished and prolific years in the legal profession. But a greater part of his experience has been on the bench, having spent nine years as a judge of the Cross River State Judiciary (1989-1998), seven years as a Justice of the Court of Appeal (1998-2005) and 11 years as a Justice of the Supreme Court of Nigeria (2005-date). In matters of the law, he has portrayed himself as an upright and impartial arbiter. This much is proven by his dissenting judgment on December 12, 2008, along with Justices George Adesola Oguntade and Aloma Mariam Mukhtar on the election petition filed by President Muhammadu Buhari, the then candidate of the All Nigeria Peoples Party (ANPP) in the 2007 presidential election, against the declaration of late President Umaru Musa Yar’Adua as the winner. While four other justices of the Supreme Court had upheld Yar’Adua’s victory, Onnoghen and the duo of Oguntade and Mukhtar agreed with the petitioner (Buhari) that the elections were fraught with irregularities. They cancelled it and ordered that fresh elections be conducted within 90 days. Although their judgment could not upturn Yar’Adua’s victory, the trio made a bold statement of their inclination to fairness in the dispensation of justice with it. Thus, the National Judicial Council (NJC) that recommended Onnoghen to President Muhammadu Buhari to take over from the immediate past CJN, Justice Mahmud Mohammed, was arguably not mistaken. But instead of sending Onnoghen’s name to the Senate for confirmation as substantive CJN, the President merely swore him in as acting CJN on Thursday, November 10, this year, a move which has been stoking all kinds of speculations in the polity since then.
Governor Ayo Fayose of Ekiti State was the first to raise eyebrows. In a statement recently, he said Onnoghen’s appointment as acting CJN was either a grand plot to deprive him of his well-deserved appointment as CJN because he is from the South-south region or that the cabals in Aso Rock want to hold him on the jugular and use his confirmation to get him to assist them to pervert justice.
Fayose, who claimed that Nigeria was having an acting CJN for the first time in its history with Onnoghen’s appointment, said: “As at the time the NJC recommended Justice Onnoghen to President Buhari, it was 28 clear days to the November 10, 2016, retirement date of Justice Mahmud Mohammed. Why then was his (Onnoghen) name not sent to the Senate for confirmation? Why appointing him as acting CJN when his name should have been sent to the Senate between October 13, 2016, that he was recommended to the President and November 10, 2016, that Justice Mahmud Mohammed retired?”
Since Fayose stirred up the hornet’s net with his statement, the issue has remained in the consciousness of public discourse. But did the President abuse or breach the Constitution of the country in appointing Onnoghen in acting capacity? Why the apprehension in the land over the appointment when Section 231 (4) of the 1999 Constitution as amended provides that: “If the office of the Chief Justice of Nigeria is vacant or if the person holding the office is for any reason unable to perform the functions of the office, then until a person has been appointed to and has assumed the functions of that office, or until the person holding the office has resumed those functions, the president shall appoint the most senior justice of the Supreme Court to perform those functions.”
Section 231(5) also provides that: “Except on the recommendation of the NJC, an appointment pursuant to sub-section 4 of this section shall cease to have effect after the expiration of three months from the date of such appointment, and the President shall not re-appoint a person whose appointment has lapsed.”
In a chat with Sunday Sun on the issue, the Second Vice President of the Nigerian Bar association, Onyekachi Ubani, said the action of the President was constitutional.
“The provision of the constitution allows the President to appoint a qualified person to the position of CJN in acting capacity for three months. But the constitution says that after three months, he cannot re-appoint that same person.
“So, my thinking with regards to what is going on now is that pending the time the President will send the name of Justice Onnoghen to the Senate for confirmation, he can be in an acting capacity. I have no reason to doubt that the President will eventually send his name to the Senate for confirmation. But there are speculations that he may not. And of course the constitution says that after the three months, that same person cannot be re-appointed. So, there is no room for renewal; it’s either you confirm him or you take him out and then bring in the person you want. But the man still has up to five years or thereabout in the Supreme Court to retire. So, taking him away may be that he will continue as an ordinary justice of the Supreme Court.
“But I think the President should be well advised because the process that threw up Onnoghen as explained by the immediate past CJN was very rigorous. The man has been in the Court of Appeal and now the Supreme Court for a long time. He has good credential, knowledge and comportment to serve as CJN. If the process that threw him up was very thorough and credible, the President has no choice than to send the name that has been recommended to him by the NJC to the Senate for ratification. I think that in all ramifications, he qualifies to be CJN.”
Also speaking on the issue, Chima Emmanuel Nnaji, a lawyer, noted that while the action of the President was constitutional given the provisions of Section 231 (4, 5) of the constitution, it was not politically correct, stressing that in the circumstance we find ourselves now as a country, there was no need to appoint Onnoghen in acting capacity when ordinarily he should have been confirmed so he can face his job squarely.
He said: “There are limitations of somebody in acting capacity. There also have been some speculations in certain quarters that the President with his much vaunted fight against corruption would probably want to have a CJN that would buy in or get cowed to toe his line; that the man in an attempt to get his confirmation would be a willing tool in the hands of the executive and be incapable of asserting the independence of the judiciary. These are speculations that are in the public space but they are not so illogical when you look at them. All these are not good enough for the polity.”
On whether Onnoghen can be recommended again to the President for another fresh term of three months after serving out his initial three-month term in acting capacity, Nnaji differed with Ubani. He noted: “In this particular instance, the President must appoint from among the Justices of the Supreme Court the most senior of them, and Onnoghen is the only one that can be so recommended and so appointed. Nigerians know that Onnoghen still has about six more years or thereabout to serve as a Justice of the Supreme Court. And as long as he remains in the Supreme Court, no other Supreme Court justice is senior to him. So, even if the appointment has to be made in acting capacity for 14 times, it has to be the same Onnoghen. It is therefore not necessary for any consideration of political expediency to think of anything outside confirming the man within the three months.”
Nnaji said that the decision of the President to appoint Onnoghen in acting capacity even though he had enough room to do so as being claimed in some quarters has given room to conspiracy theories which are not good for the polity.
“The President would do better to avoid unnecessary crisis and over heating of the judiciary beyond what it is now by going ahead to send Onnoghen’s name to the Senate for confirmation as CJN. Otherwise he would be falling into the trap that has been set by conspiracy theorists to present him as being chauvinistic. Chauvinistic in the sense that he will be averse to having somebody from the South to take over as CJN after the country had serially had at least six former CJN from the North. To avoid that kind of perspective to the issue on ground, I think it would do him well to quickly sending in the name of Onnoghen to the Senate for confirmation. The President should act widely and timely too. That will save the judiciary the uncertainty and unnecessary tension that Onnoghen’s appointment in acting capacity is generating.”
Onnoghen, who hails from Okurike town, Biase Local Government Area of Cross River, was born on December 22, 1950. He attended the Presbyterian Primary School, Okurike Town between 1959 and 1966. He later attended Odorgorno Secondary School, Adabraka, Ghana, between 1967 and 1972, where he earned his West African School Certificate before proceeding to the University of Ghana, Legon, between 1974 and 1977 for his Bachelor of Law Degree (LL.B (Hons). He graduated with Second Class Upper Division and was among the best graduating students. He attended the Nigerian Law School, Victoria Island, Lagos, between 1977 and 1978 for his B.L Certificate and completed his compulsory National Youth Service Scheme (NYSC) in July 1979.
He has served as Pupil State Counsel, Lagos State, (1978 – 1979); Partner in the Law Firm of Effiom Ekong & Company, Calabar (1979 -1988); and Principal Partner/Head of Chambers of Walter Onnoghen & Associates, Calabar (1988 -1989). He was also a High Court Judge, Cross River State Judiciary (1989-1998) and Justice of the Court of Appeal (1998-2005). Onnoghen was appointed a Justice of the Supreme Court of Nigeria in 2005.
A Fellow of the Chartered Institute of Arbitrators, the Nigerian Institute of Advanced Legal Studies and the National Judicial Institute, Onnoghen is a member of the Body of Benchers and Life Bencher. He is also Chairman, Governing Council of the Nigerian Institute of Advanced Legal Studies, and Vice-Chairman, Legal Practitioners’ Privileges Committee. He is married with children.