Breaking News: Acting President Yemi Osibanjo can be impeached for failure to transmit the recommendation of National Judicial Council.

Acting President Yemi Osibanjo can be impeached for failure to transmit the recommendation of National Judicial Council. 
By Bar Joshua Alobo 
 
An interesting twist to the imbroglio on the appointment of substantive Chief Justice of Nigeria assumed an interesting dimension as a Constitutional and Human Rights Advocate, Chief Joshua Esim Alobo filed an action for mandamus before The Federal High Court on Monday 6th February, 2017 and the suit was assigned to Hon Justice Kafarati, (Court 2) on Tuesday by the Chief Judge. In the Suit Chief Joshua Esim Alobo v President of the Federal Republic of Nigeria, the Attorney General of the Federation, ABJ/CS/192/2017. The 12 paragraph affidavit deposed to by John Okpabi Egbe, Litigation Secretary in the law firm of Chief J. Alobo & Co particularly paragraph 10 and 11 captured the kernel of the legal action to wit: “That the failure of the President to transmit the recommendation of the National Judicial Council constitutes dereliction of sacred constitutional duty imposed by the Constitution of the Federal Republic of Nigeria. That it is an impeachable offence for the President to hold the Judiciary to ransom thereby threatening the fulcrum of constitutional democracy, rule of law and impartiality of the judiciary.” more after the cut


The plaintiff further alleged that the President is under constitutional obligation to transmit the recommendation of the National Judicial Council to the Senate for the appointment of the substantive Chief Justice of Nigeria and the wilful, malicious and crass refusal to forward the recommendation to the Senate constitutes an impeachable offence.
The written address filed by the Plaintiff succinctly captured the arguments therein.
The plaintiff is seeking an order of Mandamus as explicitly provided in Order 34 of the Rules of this Honourable Court to compel the President of the Federal Republic of Nigeria to transmit the recommendation of the National Judicial Council to the Senate for confirmation as substantive Chief Justice of Nigeria.
It is our submission that this case perfectly situate where mandamus becomes imperative as to safeguard constitutional democracy, rule of law and independent of the judiciary. The Constitution is the organic law that regulates the three arms of government. The supremacy of the Constitution is well settled in plethora of cases. The action and inactions of the government is dictated by the Constitution.
The Supreme Court in INEC v. Musa (2003) 3 NWLR (Pt. 806) at 35-36, paras. C-A per AYOOLA, JSC wittingly observed as follows:
The acknowledged supremacy of the Constitution and by which the validly of the impugned provisions will be tested. First, all powers, legislative, executive and judiciary and must ultimately be traced to the Constitution. Secondly, the Legislative powers of the legislature cannot be exercised inconsistently, with the constitution. Where it is so exercised it is invalid to the extent of such inconsistency. Thirdly, where the Constitution has enacted exhaustively in respect of any situation, conduct or subject, a body that claims to legislate in addition to what the Constitution had enacted must show that it has derived the legislative authority in do so from the constitution. Fourthly, where the constitution sets the condition for doing a thing, no legislation of the National Assembly or of a State house of assembly can alter those constitution in any way, directly or indirectly, unless, of course the constitution itself as an attribute of its supremacy expressly so authorized.
Also, in Marwa v. Nyako (2012) NWLR (Pt. 1296) 200 Per ADEKEYE, JSC at 351-352 paras. G-C held thus:
The Constitution is the grundnorm and the fundamental law of the land. All other legislations in this country take their hierarchy from the provisions of the Constitution. It is not a mere common legal document. It is an organic instrument which confers powers of the different components of government as well as regulating the relationship between the citizens and the State.
Once the powers, right and limitations under Constitution are identified as having been created, their existence cannot be disputed in a court of law. But the extent and implications may be sought to be interpreted and explained by the court. The provisions of the Constitution take precedence over any law enacted by the National Assembly even though the National Assembly has power to amend the constitution itself.
The position of the Chief Justice of Nigeria is like that of the President who heads the Executive pursuant to section 5 of the 1999 Constitution (as amended), Senate President, Chairman, National Assembly. The Chief Justice of Nigeria does not hold the office at the pleasure of the President.
It is our respectful submission that the President has a legal duty to act on the recommendation of the National Judicial Council by transmitting the said recommendation for the appointment of substantive Chief Justice of Nigeria without any further delay for the stability of democracy and ensuring the independence of the judiciary. It is not an act of favour for the President to act on the recommendation of the National Judicial Council.
It is important to submit that the National Judicial Council is a respectable body established by the Constitution in accordance to section 153(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). The National Judicial Council occupies a supreme prominence in the appointment of judicial officers in the entire federation notwithstanding the concept of true Federalism as the National Judicial Council is an administrative body established by the Federal government. The kingly position of the National Judicial Council is beyond disputation as gleaned from section 158(1) of the 1999 Constitution (as amended). The National Judicial Council is an independent body created by the Constitution of the Federal Republic of Nigeria.
The essence of the constitutional safeguard as to the appointment of judicial officers and the succession of head of court particularly the Supreme Court is to guarantee the independence and impartiality of the judiciary in the determination of disputes without fear or favour.
The Judiciary must be insulated from politics that the Executive and Legislature are known for. Any attempt to introduce “Maradonic” or “Ronaldic” politics in the appointment of substantive Chief Justice of Nigeria will amount to invitation for anarchy to the cherished and entrenched fundamental rights of citizens. The judiciary is the bastion of hope to the downtrodden and rich persons especially in an era of brutal anti-corruption crusade without due regards to the rule of law, the bulwark of democracy. Nigerian democracy has been courageous in dictatorial military era where ousted clauses were recurrent decimal in the Decrees designed to curtail and restrict the liberty of citizens. It will constitute a sad commentary for Nigeria unbroken history of democracy for almost eighteen years of democracy to have issue with routine succession of Chief Justice of Nigeria. A development that was unheard of even in dictatorial military era. The dividend of democracy cannot be bitter than military dictatorship. It is a settled practice with constitutional flavour that the appointment of Chief Justice of Nigeria is done among the ranking Justices of the Supreme Court.
The Constitution of the Federal Republic of Nigeria imposes a mandatory obligation on the President in the appointment of Federal Judicial officials. Section 231(1) of the 1999 Constitution provides for appointments of the substantive Chief Justice of Nigeria by the President on the recommendation of the National Judicial Council and appointment of Justices of the Supreme Court pursuant to section 231(2). It is trite law that there is no room for acting Justice of the Supreme Court hence the appointment of the four Justices of Supreme Court under President Buhari’s administration was timeously communicated to the Senate for confirmation.
It is respectful submitted that section 231(4) contemplates scenarios of urgency where the Chief Justice of Nigeria retired suddenly, death or incapacitation, hence the word “Vacant” the court is invited to considered the scenario enumerated when the office of the President or Vice-President, Governor, the Deputy Governor becomes vacant under section 143 and 144, 188 and 189 of 1999 Constitution (as amended) See AG Federation v. Abubakar Ors (2007) 10 NWLR Pt. 1041 per Aderemi JSC at 189-190 @ paras D-C,
My lord, it is important to further situate when vacancy occur in the circumstance where the principal occupiers such as the President or Vice President, Governor and Deputy Governor. Sections 146 (2) and 191 (2) of the 1999 Constitution (as amended). We humbly set out the said provisions to underscore that the acting capacity of the Senate President or Speaker can be equated to that of acting Chief Justice of Nigeria. Section 146(2) of the 1999 Constitution (as amended) provides: “Where any vacancy occurs in the circumstance mentioned in subsection (1) of this section during a period when the office of Vice President is also vacant, the President of the Senate shall hold office of the President for a period of not more than three months, during which there shall be an election of a new President, who shall hold office for the unexpired term of office of the last holder of the office.”
The President has 7 days before the expiration of 3 months guaranteed by the Constitution for the acting Chief Justice of Nigeria. The Court must order the Senate to deem the recommendation as communicated in the light of the fact that the President has acted on the recommendation wherein Hon Justice Samuel Walter Onnoghen, CFR was sworn though in acting capacity. The Senate in a similar circumstance where the President failed to communicate to the Senate of his vacation to enable the Vice-President pursuant to section 145 of the 1999 Constitution which necessitated the amendment to section 145 of the 1999 Constitution (as amended). The doctrine of necessity was invoked by the Senate prior to the amendment. It is our submission that since the President has communicated to the Senate 10 days medical leave and the said 10 days have elapsed, the acting President can validly transmit the recommendation of NJC to the Senate.

My Lord, the order of mandamus is desirable in this case because the President has no discretionary power in the appointment of the Chief Justice of Nigeria. The court is invited to consider the mandatory language of the Constitution as employed in section 231(1) of the 1999 Constitution (as amended). It states: “the appointment of a person to the office of Chief Justice of Nigeria shall be made by the President on the recommendation of the National Judicial Council subject to confirmation of such appointment by the Senate.”
It is our submission that President Buhari has acted on the recommendation of the National Judicial Council by administering the oath on Hon. Justice Samuel Walter Onnoghen on 10th November, 2016 upon retirement of Hon Justice Madmud Mohammed, CJN on attainment of the mandatory seventy years and the expiration of his tenure on 10th November, 2016. It is self-evident that the immediate past Chief Justice of Nigeria as then Chairman of the National Judicial Council had supervised the replacement process as required by the Constitution for the appointment of substantive Chief Justice of Nigeria within the ambit of section 231(1) of the 1999 Constitution (as amended). His Lordship, Hon. Justice Madmud Mohammed, former Chief Justice of Nigeria forwarded the National Judicial Council’s recommendation of Hon. Justice Onnoghen as the next Chief Justice of Nigeria to President Buhari on October 14, 2016, three months after, the President has wilfully and maliciously failed to transmit a letter to seek the approval of the Senate for that appointment. The flagrant refusal of the President to transmit the recommendation of the National Judicial Council to the Senate constitutes gross misconduct and impeachable offence.
It is humbly submitted that the President as Chief Executive of the Federation has a limited powers in the appointment of Chief Justice of Nigeria and Justices of the Supreme Court as enshrined under section 231 (1) – (5), and paragraph 21 (1) of the 3rd Schedule to the Constitution of the Federal Republic of Nigeria 1999 (as amended).
The National Judicial Council is the sole institution responsible for appointment and discipline of judicial officers in Nigeria. The President mere act on the recommendation made by the National Judicial Council, hence section 231(1) of the 1999 Constitution (as amended) states: “The appointment of a person to the office of Chief Justice of Nigeria shall be made by the President on the recommendation of the National Judicial Council subject to confirmation of such appointment by the Senate”
The Supreme Court has exhaustively dealt with the role of the Chief Executive of State in the appointment of Chief Judge in the case of HON. JUSTICE RALIAT ELELU HABEEB, CHIEF JUDGE OF KWARA STATE & ANOR. V. THE HON. ATTORNEY-GENERAL OF THE FEDERATION & ORS (2012) 13 NWLR (Pt. 1318) it was held per Adekeye JSC at page 521, paras. E-G as follows:
Thus, the entire provisions of the 1999 Constitution in Sections 153(i), (ii), 271(1), 292(1)(a)(ii) and paragraph 21 of part 1 of the Third Schedule to the Constitution of the Federal Republic of Nigeria 1999 dealing with the appointment, removal and exercise of disciplinary control over judicial officers must be read, interpreted and
applied together in solving the issue of whether or not the Governor of a State and the House of Assembly of a State can remove a Chief Judge of a State in Nigeria without any impute of the National Judicial Council. This is because the combined effect of these provisions of the Constitution has revealed very clear intention of the
framers of the Constitution to give the National Judicial Council a vital role to play in the appointment and removal of the judicial officers by the Governors and Houses of Assembly of the State.
The Supreme Court further held per Mahmud Mohammed, JSC at page 495 (who presided and read the lead Judgment) as follows:
“It is quite plain from the provisions of paragraph 21, sub paragraphs (c) and (d) of part 1 of the Third Schedule to
the Constitution of the Federal Republic of Nigeria 1999, that the National Judicial Council is the body that has
been assigned the duty and responsibility of recommending to the Governors of the States of the Federation
suitable persons for the appointment to the offices of Chief Judges of the States and other Judicial officers in the
States. In addition to its role in the appointment of Chief Judges in the States and other judicial officers, the same
National Judicial Council is also empowered under sub-paragraph (d) of the paragraph 21 to recommend to the
Governors of the States the removal from office of the Chief Judges of the States and other judicial officers of the
States and also to exercise disciplinary control over such Chief Judges of the States and other judicial officers of
the States. Therefore, from these very clear provisions of the Constitution which are very far from being
ambiguous, the Governors of the States and the Houses of Assembly of the States cannot exercise disciplinary
control touching the removal of Chief Judges of States or other officers in the States.
Going back to Section 271 (1) of the 1999 Constitution, it is also glaringly clear that the National Judicial Council
has been given a role to play in the appointment of the Chief Judges of the States where the section states:
It can be seen here again, although the Governor of a State has been vested with the power to appoint the Chief
Judge of his own State, that power is not absolute as the Governor has to share the power with the National
Judicial Council in recommending suitable persons and the State House of Assembly in confirming the
appointment. It is in the spirit of the Constitution in ensuring checks & balances between the three arms of
Government that the role of the Governor in appointing and exercising disciplinary control over a Chief Judge of his
State is subjected to the participation of the National Judicial Council and the House of Assembly of the State in
the exercise to ensure transparency and observance of the rule of law.”
The Hon. Justice Mohammed, indeed specifically outlined the basic function of the NJC.
“The first port of call by the Governor on his journey to remove a Chief Judge of the State shall be the National
Judicial Council which is equipped with the personnel and resources to investigate the inability of the Chief Judge
to discharge the functions of His office, the subject of disciplinary action of removal through the Committees of the
Council and where the infirmity the mind or body of body is involves the services of a medical board to examine
and submit appropriate report on the Chief Justice to be affected, could also avail the Council in the process of
investigation…………
It is profoundly submitted that on the authority of section 231(1) of the 1999 Constitution (as amended) and the decision of the Supreme Court in HON. JUSTICE RALIAT ELELU HABEEB, CHIEF JUDGE OF KWARA STATE & ANOR. V. THE HON. ATTORNEY-GENERAL OF THE FEDERATION & ORS the President has no discretion in transmitting the recommendation of the National Judicial Council in the appointment of Hon. Justice Walter Samuel, Onnoghen, Acting Chief Justice of Nigeria.
The Chief Executive Officer of the State or the Federation has no absolute powers in the appointment of a Judicial officer. The Supreme Court decision emphasized the word “recommendation” as opposed to “discretion and advice” The Supreme Court bashed doubts as to non-existence of executive function in the determination of the eligibility for appointment of the Chief Justice of Nigeria. The President, with respect, after recommendation of the National Judicial Council, has no executive function in the determination of who to appoint as the Chief Justice outside the recommendation of the National Judicial Council. The President is not in a position to screen, interview, subject to administrative or executive scrutiny. The President is ceremonially required to transmit the recommendation of the National Judicial Council for confirmation by the Senate.
The acting President by virtue of section 145 0f the 1999 Constitution (as amended) is vested with the Executive powers of the Federation and he is in the position to forthwith transmit the recommendation of the National Judicial Council to the Senate in compliance with section 231(1) of the 1999 Constitution (as amended) as to avert constitutional crisis with graved implication on national stability and security.
It is finally submitted that the Acting President failure to transmit the recommendation of National Judicial Council to Senate is an impeachable offence. The position of Chief Justice of Nigeria is like election to the office and it is crass and violent violation of the Constitution to withhold the outcome of the said election vide the recommendation of the National Judicial Council.