The Senate, in a suit it filed yesterday before the Supreme Court, is seeking a reversal of the suspension and the inauguration of Justice Muhammad.
Justice Onnoghen is facing charges at the Code of Conduct Tribunal (CCT) for alleged false declaration of assets. The tribunal ordered his suspension. President Buhari obeyed the order โ an action that sparked an uproar.
The Senate seeks a declaration that Onnoghenโs suspension โ without a support of two-thirds majority of the Senateโ was a violation of section 292(1)(a)(i) of the Constitution.
It also prays the court to restrain those listed as defendants โ the President, Federal Republic of Nigeria Buhari and the Attorney-General of the Federation โ from continuing or repeating the violation of the Constitution and disregarding the power of the Senate in respect to the suspension of the CJN
The Senate, in the suit filed for it by Paul Erokoro (SAN), argued that the President could not on the directive of the CCT suspend the CJN without two-third majority of the Senate or appoint Muhammad as as the Acting CJN without Senateโs confirmation.
The plaintiff submitted two questions for determination.
One of the questions is if having regard to section 292 and Part 1 of the Third Schedule to the Nigerian Constitution and section 21 of the Code of Conduct Bureau and Tribunal Act, the President could not โsuspendโ or โpreventโ the CJN from performing the functions of his office โon the directive of the Code of Conduct Tribunal or for any reason whatsoever, without an address supported by two-thirds majority of the Senate calling for the removal of the Chief Justice of Nigeriaโ.
The other question for determination read, โHaving regard to section 231 of the Constitution of the Federal Republic of Nigeria, 1999, as amended, and in particular, sub-sections (1) and (4) thereof, can the President of the Federal Republic of Nigeria appoint an acting Chief Justice of Nigeria when there is no vacancy in that office and when the substantive Chief Justice of Nigeria is fit and able to perform the functions of the office and without the recommendation of the National Council and confirmation of such appointment by the Senate.โ
The three prayers sought by the Senate are:
- a declaration that Justice Onnoghenโs suspension without an address calling for the removal, supported by two-thirds majority of the Senate is in violation of Section 292(1)(a)(i) of the Constitution and therefore null and void;
- an order rescinding or setting aside the suspension of Hon. Justice Walter Samuel Nkanu Onnoghen from his office as Chief Justice of Nigeria and restoring him to the said office; and
- an order restraining the defendants from continuing or repeating the violation of the Constitution and disregarding the powers of the Senate at the Federal Republic of Nigeria.
The upper chamber yesterday cancelled its planned resumption of plenary today.
The Senate is also asking the court to determine whether the action of the President amounts to usurpation of the powers of the Senate as provided for in Section 292 of the constitution.
A statement by the Special Adviser (Media & Publicity) to the Senate President, Yusuph Olaniyonu, said following the filing of the case, the matter of the suspension of the CJN, which is the main issue for which the Senate had planned to reconvene today, had become subjudiced.
โTherefore, in line with the standing rules of the Senate not to debate issues that are already pending before the court, the reconvening of the Senate tomorrow (today) has been put off,โ Olaniyonu said.
The cancellation of the resumption was called off in a memo to senators by the Clerk to the Senate, Nelson Ayewor.
The Senate leadership had at the weekend summoned an emergency session to consider Justice Onnoghenโs suspension.
Tension, however, began to build up shortly after the emergency plenary session was announced.
All Progressives Congress (APC) senators and their Peoples Democratic Party (PDP) counterparts started mobilising their members for what was described as a โmake or mar sessionโ.
The Senate leadership also held a series of meetings said to have been necessitated by the need to weigh options.
But late yesterday, there were hints that the Senate leadership was considering calling off the emergency session to avert possible breakdown of law and order.
It was alleged that some senators planned to disrupt the session.
The cancellation of the planned session may not be unconnected with the fear that โthings might get out of handโ, a senator told our reporter.
There was also an unconfirmed report that some senators planned to move an impeachment notice against the Senate leadership at the session.
A statement by the Clerk titled: โCancellation of Senate resumption in plenaryโ informed โall distinguished senators that the resumption in plenary scheduled for tomorrow (today), Tuesday 29th January, 2019 has been cancelled.โ
The statement said the scheduled date of resumption in plenary earlier fixed for Tuesday, February 19, remains.
The All Progressives Congress (APC) Senate Caucus dissociated itself from the court action.
A statement by Senate Leader Ahmed Lawan said: โFor the records, the Senate never met to take such resolution and at no time mandated anyone to approach the Supreme Court on this matter on its behalf.
โConsequently, the Senate APC caucus dissociates itself from the request for the legal interpretation of the suspension.โ
