President Muhammadu Buhari, the Attorney-General of the Federation, Mr. Abubakar Malami (SAN), and the Senate on Monday failed to send legal representatives to the Federal High Court in Abuja for the scheduled hearing of the suit challenging the appointment of Justice Tanko Muhammad as the substantive Chief Justice of Nigeria.
The Federal Government, joined as the fourth defendant in the suit, was also not represented by a lawyer at the Monday proceedings.
The judge, Justice Inyang Ekwo, had, on May 3, 2019, directed the seven defendants in the suit, including Buhari, the AGF and the Senate, to appear in court on Monday to give reasons why the plaintiff’s prayer for an order stopping the process of the appointment should not be granted.
Justice Ekwo had issued the order after rejecting the plaintiff’s ex parte application on the grounds that the prayer sought in it could not be granted in the absence of the defendants.
He then directed the plaintiff, Malcom Omirhobo Foundation, to have the motion served on the defendants to enable them to respond.
He also directed the defendants to appear in court on Monday for the hearing.
But only three of the defendants — the National Judicial Council, the Federal Judicial Service Commission and Justice Muhammad — sent lawyers to Monday’s proceedings.
Despite not being served, acting CJN Muhammad sent a lawyer, Mr. A.O. Ajana, who said he appeared “in protest.”
Elizabeth Jonathan represented the NJC, while Sani Sule represented the FJSC.
The plaintiff, represented by its lawyer, Malcom Omirhobo, told the judge that the court’s bailiff had served all the defendants, except Justice Muhammad, with the suit and the court’s May 3 order for the Monday hearing.
In response, Omirhobo said due to the inability of the court’s bailiff to serve Muhammad, he had already filed an ex parte application for substituted service of the court processes on the acting CJN.
But the plaintiff’s lawyer later withdrew the ex parte motion and had it struck out by the judge following Ajana’s concession to accept service on behalf of his client in the open court.
Omirhobo also withdrew his motion on notice seeking a restraining order against the acting CJN’s substantive appointment after the judge said he was more interested in the quick determination of the suit on merit than on interlocutory orders.
Justice Ekwo then gave the defendants 14 days to respond to the suit.
The judge adjourned hearing till June 3.
He ordered that hearing notices be served on all the parties that were absent from Monday’s proceedings.
The plaintiff, in its substantive suit filed in April, alleged that Justice Muhammad made himself available as a tool that was used in the violation of the Constitution, especially with regard to the “illegal” removal of Justice Walter Onnoghen as the CJN.
The plaintiff in the suit marked FHC/ABJ/CS/420/2019, contended that with the role played by Muhammad in the alleged illegal removal of Onnoghen, Muhammad, who is currently the most senior Justice of the Supreme Court, is unfit to replace the sacked CJN.
He contended that the Acting CJN conducted himself in a manner that reduced the confidence of the public in the integrity and impartiality of the Judiciary.
The plaintiff stated that the acting CJN “is therefore not a proper and fit person to be recommended for appointment to head the judiciary.”
The plaintiff, among other things, urged the court to declare that the suspension and/or removal of a CJN from office, is a shared responsibility of the 1st defendant (NJC), the fifth defendant (Buhari) and 7th Defendant (National Assembly).
He argued that President Buhari lacked the constitutional powers to unilaterally suspend and/or the removal a sitting CJN from office, as was done in the case of Onnoghen.
He urged the court to interpret the provisions of sections 1(1 )(2), 231(4), 292(1)(a)(i)(b), 153(1)(i), 158(1) and paragraph 21 (a)(b) of Part 1 of the Third Schedule of the 1999 Constitution, in relation to the issue.
He urged the court to hold that “it is unlawful and undemocratic for the 4th and 5th Defendants (Federal Government and President Buhari), to declare the office of the CJN vacant on January 25, 2019, and consequently appoint and swear in the 3rd Defendant as the acting CJN.”
He also urged the court order to restrain the National Assembly from confirming any appointment of Justice Muhammad as the substantive CJN.
He also sought, “An order, compelling the 2nd defendant (FJSC), to select and the 1st defendant (NJC), to recommend the most qualified Justice of the Supreme Court of Nigeria that is fit and proper, to the 5th defendant, for appointment to office of the CJN, and for the confirmation of the 7th defendant with a two-thirds majority vote.”
He prayed the court to stop President Buhari from appointing Justice Muhammad as the substantive CJN.
He maintained that unless restrained by the court, the executive arm of government would “continue to violate the extant provisions of the Constitution and sanctity of the judiciary”.