Reforming the judiciary: All eyes now on Justice Onnoghen

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By Ikechukwu Nnochiri 

How far can he go?

The challenges ahead

That all is not well with the justice administration system in Nigeria is not a fact in dispute and the need for a holistic reform of the sector cannot be over-emphasised.

This becomes more imperative in the face of some recent ugly happenings within the judiciary.

Apart from the pervasive corruption that has infected a cognisable number of judges, cutting across the various rungs of the court, the issue of unhealthy delays in the dispensation of justice, as well as high cost of litigation – which has made the courts seem more accessible to the rich, which equally demand urgent attention.

All eyes are now set on the newly confirmed Chief Justice of Nigeria, CJN, Justice Walter Onnoghen, who had while superintending over the judiciary in acting capacity, exhibited a handful of hope-inspiring qualities.

Some of such actions included but were not limited to his directive to judges to expedite hearing on all pending high-profile corruption case, as well as his decision to award substantial punitive cost to be personally paid by lawyers that encourage their clients to file frivolous suits.

However, with the staggering degree of manifest corruption that has had the judiciary by the jugulars over the years, how far the new CJN can go towards sanitising the system, remains to be seen.

Chief Justice of Nigeria, Justice Walter Onnoghen,

Is he ready to not only step on, but to fearlessly crush those dirty big toes that have continued to stain the inner judicial chambers?

Will he be able to reposition the National Judicial Council, NJC, to become more vibrant at wielding the big stick against errant judicial officers?

There is no doubt that Justice Onnoghen assumed leadership of the judiciary at a time public perception about its integrity is at the lowest ebb.

The turbulence which eventually culminated in the arrest and subsequent trial of some superior court judges, including two serving Justices of the Supreme Court, began around the last five months to the retirement of the immediate past CJN, Justice Mahmud Mohammed, on November 10, 2016.

In line with section 291(1) of the 1999 Constitution, as amended, Justice Mohammed, who was born on November 10, 1946, in Jalingo, now in Taraba State, bowed out of active judicial service upon clocking the 70 years mandatory retirement age.

As at the time of his departure, about 21 Judges across the federation were under the radar of anti-graft agencies.

In a move that jolted the nation, operatives of the Department of State Service, DSS, at the end of a “sting operation” it conducted between October 7 and 8, 2016, arrested seven superior court judges after homongous bags of cash (both in foreign and local currencies), and other alleged incriminating items, were allegedly found in their official residences.

Two Justices of the Supreme Court, Inyang Okoro and Sylvester Ngwuta, were among the arrested judges.

Others were the Presiding Justice of the Court of Appeal, Ilorin Division, Justice Mohammed Tsamiya, Justice Adeniyi Ademola of the Federal High Court in Abuja, Muazu Pindiga of the Federal High Court, Gombe Division, former Chief Judge of Enugu State, Justice I. A. Umezulike and judge of the Kano State High Court, Justice Kabiru Auta.

Federal Government has already filed criminal charges against Ngwuta and Ademola before different high courts in Abuja, and also at the Code of Conduct Tribunal.

Remarkably, the tenure of the former CJN witnessed the sack of six Judges and the reprimand of eight others.

There is public consensus on the need for the Judiciary to purge itself of corruption.

Undoubtedly, the task ahead of the current CJN is enormous and daunting, though stakeholders believe the damage is not beyond repairs.

What are some of his landmark judgements?

For those who may have forgotten, it was Justice Onnoghen who, on January 27, 2012, delivered the landmark lead verdict that sacked five Peoples Democratic Party, PDP, governors, who won re-run elections in 2007, from office.

He headed a seven-man panel of Justices of the apex court that unanimously held that former governors Murtala Nyako (Adamawa), Timipre Sylva (Bayelsa), Liyel Imoke (Cross River), Ibrahim Idris (Kogi) and Aliyu Wammako (Sokoto) ought to have vacated their offices before May 29, 2011.

He stressed that in-line with the provisions of section 180(2) of the 1999 constitution, the statutory four-year tenure of the governors had already lapsed.

The verdict elicited plaudits from many Nigerians, as the then Attorney General of the Federation and Minister of Justice, Mohammed Bello Adoke, SAN, ordered that Speakers of the affected states be sworn-in immediately as acting governors pending the conduct of fresh polls.

The judgment followed consolidated appeals that challenged two lower court verdicts that barred the Independent National Electoral Commission, INEC, from including the five states in the governorship election it conducted across the federation on April 26, 2011.

Specifically, Justice Onnoghen held: “From the language used in section 180 of the 1999 constitution, it is very clear that the constitution intended that a governor of a state shall have a tenure of four years from the date he took the Oaths of Allegiance and of Office and nothing more, though he may spend less where he dies, resigns or is even impeached.

In all, a governor has a maximum tenure of eight (8) years under the 1999 constitution. It has been argued that the tenure of four years envisaged in the 1999 constitution is a single unbroken tenure but that submission loses sight of the glaring fact that the provisions of Section 180 (2) supra does not expect or envisage an indefinite occupier of the office of governor of a state that is why the tenure is very definite: four years.

“It is clear from the provisions that in the case of commencement of tenure of a person first elected, it starts with the taking of the Oath of Allegiance and Oath of Office, in this case, the 29th day of May, 2007, when the 1st respondents took their Oaths of Allegiance and Oaths of Office.

“The most important thing to note having regards to the provisions dealing with tenure of governors reproduced supra is that looking closely at the provisions of section 180(2) (a), there is no room for the same person elected governor being elected again following a re-run election. A person elected following a re-run election cannot be said to have been ‘first elected as governor under this constitution’ except he was not the winner of the earlier or first election.

“The present problem arose from the fact that the very persons who won the “first” election also participated and won the re-run elections. In consequence, the lower court held that while the actions of the governors during the period prior to the nullification are valid and legal, the same period cannot be taken into account in calculating the tenure of the said governors following the nullification of their election.   The issue/question of nullity and its legal consequences/effectiveness is usually traced to Lord Denning’s obiter dictum in the case of Mcfoy vs UAC (1961) 3 ALLER, 1169 at 1172.

“To say that the above principles are based on facts which are not material in this case is to state the very obvious. It is the case of the respondents that since their elections in 2007 where nullified it meant that in law the said election never took place and as such the Oaths of Allegiance and of office they took on 29th May, 2007 became non-existent and that the Oaths of Allegiance and of Office which is valid and relevant to the determination of the four year tenure is that which they took at various dates in 2008.

It is very clear from the relevant provisions that no person elected under the 1999 constitution can remain in that office for a day longer than as provided otherwise the intention of the framers of the constitution would be defeated.  If the interpretation favoured by the respondents is adopted and the four year tenure is to be calculated from the second oaths taken in 2008 while in fact and law the 1st respondents took Oaths of Allegiance and of Office on 29th May, 2007 and remained and functioned in office as governors of their various states, would their period not exceed the constitutionally provided tenure of four years?

“The answer is clearly in the positive hence the argument on the principles of null and void acts. The argument that following the nullification of their elections the said elections were in the eyes of the law non-existent as they are regarded not to have taken place as well as the subsequent oaths they took to enable them function in the office of governors of their states is brilliant though it does not deny the fact that there was an election conducted and winners declared thereafter in accordance with existing laws and regulations: that the winners of that election subsequently took their Oaths of Allegiance and of Office as required by the constitution and did function in   that office for about one year effectively exercising the executive powers of the state such as signing Bills into law including appropriation Bills: appointing commissioners and numerous Advisers, awarding contracts, etc.

“The fact that there was an election in 2007 as a result of which the 1st respondents (governors), took their Oaths of Allegiance and of Office, are facts which cannot be wished away, just as the acts they performed while occupying the seat.

The said governors may not have been de-jure governors following the nullification of their elections, which is not supported by the acceptance of their acts in that office as legal and binding on all and sundry, they were certainly governors de-facto during the period they operated ostensibly in accordance with the provisions of the constitution and Electoral Act and as such the period they so operated has to be taken into consideration in determining the terminal date of their tenure following, what I may call, their second missionary journey vide a re-run election particularly as the constitution unequivocally grants a tenure of four years to a person   elected governor of a state calculated from the date he took the Oaths of Allegiance and of Office which was the 29th day of May, 2007”.

Justice Onnoghen was also the head of a seven-man panel of the Supreme Court that on January 17, 2014, declined to quash criminal charge the Federal Government initiated against the first son of late military dictator, General Sani Abacha, Mohammed.

Mohammed had gone before the apex court to challenge his trial, contending that his family had already forfeited assets allegedly stolen by his late father.

While dismissing his appeal, Onnoghen held: “As the late Head of State, General Sani Abacha is not on trial, the appellant who is on trial should go and face the music at the trial court and then adduce whatever defence he considers available to him.

“Whatever immunity the father had when he was in office could not be made available for the appellant.   In the circumstance, Issue No.3 is hereby resolved against the appellant.

“The court below was right when it held that the office of the late Head of State, General Sani Abacha, the nature of his government, the privileges and immunity enjoyed by him, did not have any bearing on the charges filed by the State against the appellant”.

Now that Onnoghen has assumed leadership of the Nigerian Judiciary, it is expected that he would hit the ground running by quickly evolving reform blueprints that will reposition the third arm of government in the country to its rightful place as the last hope of the common man.

Who is the CJN?

Justice Onnoghen was born on December 2,1950, at Okurike Town, Biase L.G.A. of Cross Rivers State.

He attended the Presbyterian Primary School, Okurike Town between 1959 and 1965.

He later proceeded to Accra, Ghana, to attend Odorgorno Secondary School, Adabraka, Accra, Ghana, between 1967 and 1972 for his West African Examination Council (WAEC) Exams.

Justice Onnoghen was at Accra Academy, Accra, Ghana, between 1972 and 1974 for his WAEC (A-Levels) before proceeding to the University of Ghana, Legon, Ghana, between 1974 and 1977 to obtain his Bachelor of Law Degree (LL.B (Hons)) and graduated with 2nd Class Upper Division.

He attended the Nigerian Law School, Victoria Island, Lagos between 1977 and 1978 for his B.L certificate.

His previous professional appointments/positions held include: Pupil State Counsel, Ministry of Justice, Ikeja, Lagos, Ogun State (1978 – 1979), Partner in the Law Firm of Effiom Ekong & Company, Calabar (1979 – 1988).

Principal Partner/Head of Chamber of Walter Onneghen & Associates, Calabar (1988 -1989), High Court Judge, Cross Rivers State Judiciary (1989 – 1998), Chairman, Cross Rivers State Armed Robbery and Fire Arms Tribunal (1990 – 1993).

He was equally the Chairman, Judicial Enquiry into the Crisis between Student of the University of Calabar and Obufa Esuk Orok Community, Calabar (1996), Chairman, Failed Bank Tribunal, Ibadan Zone (1998), Judge, High Court of Rivers State (1992 – 2004), Justice of the Court of Appeal (1998 – 2005).

A Fellow, Chaterred Institute of Arbitrators, Hon. Justice W.S. Nkanu Onnoghen has attended several conferences and seminars around the world. He is a member of the Body of Bencher and Life Bencher.

Justice Onnoghen who will clock 70 on  December 20, 2020, was elevated into the apex court bench in 2005.

He is the first Southern jurist to head the Nigerian Judiciary in about 30 years.

Justice Ayo Gabriel Irikefe who retired in 1987 was the last Southern CJN.

Lawyers and litigants that have been privileged to witness proceedings of the apex court, with Justice Onnoghen as a member of the panel, will quickly concur to the visibility of his amiable personality.

His ability to douse tension through comic retorts, while at the same time maintaining a firm grip on the course of proceeding, is quite remarkable.

Undeniably, the past CJN had within the two-years-plus he was on the saddle, initiated some reform policies, among which included the introduction of automated court system.

He also constituted a second Panel of the Supreme Court to sit on Wednesdays in addition to the normal sitting in chambers slated for the same day.

This additional panel was a first in the history of the Court and it has certainly had a significant impact on the case disposal rate of the Court.

Reeling out his own score card on his last day in office, the former CJN stated: “Structurally, I am pleased to see that the Court Modernisation (retrofitting) Project at the Supreme Court is near completion at Court One. A tour, which I encourage everyone here to undertake, will reveal that the court boasts of the latest in audio-visual aids, transcription and other devices that even modern courts in other climes probably do not possess.”

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