However to a legal mind, This has raised a dust in law. It has unsettled the peaceful waters of law and has indeed raised a germane question of law which begs for answer.
To a legal mind, what comes to the mind is whether the president has the power to suspend a judge?
Well, this question has been answered in law even before being asked. The answer is simple and clear. By the living constitution of the Federal Republic of Nigeria which provides, expresses and states the powers of the arms of government.
The same living law however never donates such power of suspension of any judge to the president talk less of the CJN. A closer provision on this is section 292 of the constitution of the Federal Republic of Nigeria provides for the removal (not suspension) of the president.
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The law provides;
“(1) A judicial officer shall not be removed from his office or appointment before his age of retirement except in the following circumstances –
(a) in the case of –
(i) Chief Justice of Nigeria, President of the Court of Appeal, Chief Judge of the Federal High Court, Chief Judge of the High Court of the Federal Capital Territory, Abuja, Grand Kadi of the Sharia Court of Appeal of the Federal Capital Territory, Abuja and President, Customary Court of Appeal of the Federal Capital Territory, Abuja, by the President acting on an address supported by two-thirds majority of the Senate
(ii) Chief Judge of a State, Grand Kadi of a Sharia Court of Appeal or President of a Customary Court of Appeal of a State, by the Governor acting on an address supported by two-thirds majority of the House of Assembly of the State, Praying that he be so removed for his inability to discharge the functions of his office or appointment (whether arising from infirmity of mind or of body) or for misconduct or contravention of the Code of Conduct;
(b) in any case, other than those to which paragraph (a) of this subsection applies, by the President or, as the case may be, the Governor acting on the recommendation of the National Judicial Council that the judicial officer be so removed for his inability to discharge the functions of his office or appointment (whether arising from infirmity of mind or of body) or for misconduct or contravention of the Code of Conduct.
(2) Any person who has held office as a judicial officer shall not on ceasing to be a judicial officer for any reason whatsoever thereafter appear or act as a legal practitioner before any court of law or tribunal in Nigeria.”
By this provision cited above, it is crystal clear that the provision is clear on removal. However, what is in contention here is not the issue of removal but that of suspension. Therefore, I will not be labour you on the removal.
A careful perusal of the constitution would reveal that the constitution does not endow the power of suspending a judge on the president and the exercise of same is ultra vires, illegal, null and void.
The term “ultra vires” has received judicial blessing in ONIGA v. GOVT OF CROSS RIVER STATE & ANOR (2016) LPELR-40112(CA) ” The word “Ultra vires” means beyond or above the power conferred.”Per ELECHI, J.C.A. (P. 13, Para. C).
Furthermore, it is a trite principle of law that where there is express mention of a thing it is to the exclusion of others- Expressio unis est exclusion alterius and Expressio Facit Cessare Tactitum. On this, I commend you to the cases of EHUWA V ONDO STATE ELECTORAL COMMISSION (2006) 11-12, SC 102 per ONIYANGI, JCA (p.28, paras. A-F); AMGBARE V SYLVIA (2007) 18 NWLR (pt 1065) 1; AGBAREH V MIMRA [2008] 2 NWLR (pt. 1071) 378 at 432.
It is also rooted in law that where a public institution or authority has acted ultra vires, such action or procedure shall to its extent be null and void. You may wish to see the cases of A.G. OGUN STATE & ORS V. A.G. FED & ORS (1982) 3 NCLR 166 SC; A.G. V GREAT EASTERN RAILWAY (1880) 5 AC 473 at 478.
At this juncture, it is apposite to state how a public authority may act ultra vires or a kind of action that could be regarded as ultra vires in the eyes of the law. It has been said that “any act of governance which is not covered under the umbrella of an enabling law is a nullity” . This position has been judicially clothed in the cases of A.G. OGUN STATE & ORS V. A.G. FED & ORS SUPRA; NANGIBO V. OKAFOR (2003) 14 NWLR PT. 839, 78 SC”.
Relying on the argument and authorities cited hereinbefore, I submit that the president has acted ultra vires by suspending the CJN and same is illegal, null, void and of no legal effect whatsoever. It is the law that we cannot put something on nothing and expect it to stand, it will definitely collapse as penned by Lord Denning MR in the case of MACFOY V UAC (1961) 3 WLR 1405 at 1409.
I understand that the president did that to show his commitment to the anti-corrution crusade and I commend him but this is a very wrong approach. A war against illegality cannot be won with illegality. It can only be won through a legal means.
I must quickly address the argument of some people justifying the act of Mr president on the provision of section 230 subsection 4. I would like to quote the law as in print. It provides;
“If the office of 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 has resumed those functions, the President shall appoint the most senior Justice of the Supreme Court to perform those functions…”.
They relied on that provision to justify the action of the president since the law is silent on how the seat can be vacant. Firstly, this provision is totally inconsequential and such interpretation is prima facie erroneous and per incuriam.
READ ALSO : Onnoghen: Buhari’s Action Is The Most Brazen Assault On Nigeria’s Constitutional History — Agbakoba, SAN
It doesn’t represent a sound knowledge of interpretation of law. Secondly, assuming but not conceding that the provision is relevant, that interpretation would be absurd as it would subject the Judiciary to the whims and caprices of the executive. This would consequently result into a clear violation of the ancestral principle of separation of powers.
I understand that everyone is entitled to their opinions but these opinions should be carefully made not to mislead the common man.
Whilst rounding this article up, I must quickly advise the political class to follow due process of law and at the same stick to the provisions of the law. They should refrain from exercising their powers arbitrarily as it is dangerous to our democracy.
The constitution is highest law, the grund norm, the alter ego and the fons et origo of any country or society in the modern democracies and it should be protected obeyed and not violated. I must also quickly warn the president that the mere act violating the constitution by suspending the CJN is a valid ground for his removal by the legislature.
Hence, I would like to rest till other issues arise. Thank you and God bless you.
A A Mustapha, 2018
Mustapha Abdul-Basit Adetoyebi is a 300 level student of Faculty of Law, University of Ilorin. A senior and active member of the Students’ Union Bar, University of Ilorin. He is the registrar of the Students’ Union Bar, University of Ilorin. A member of the Alternative Dispute Resolution, University of Ilorin.
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