“Having confirmed that you have since submitted a petition to the National Judicial Council alleging grave misconduct against the Chief Justice, I am compelled to request you, once again, to file a nolle prosequi to discontinue the charge pending against his Lordship at the Code of Conduct Tribunal without any further delay. The charge should not be allowed to hang like a Sword of Damocles on the head of the Chief Justice while he is being investigated by the National Judicial Council," Falana wrote.
Femi Falana, human rights lawyer and Senior Advocate of Nigeria (SAN), has written the Attorney General of the Federation (AGF) to request an immediate discontinuation of the case instituted against Walter Onnoghen, the suspended Chief Justice of Nigeria (CJN).
Onnoghen is standing trial before the Code of Conduct Tribunal (CCT) over allegations of fraudulent declaration of assets.
The letter, dated February 3, 2019, and addressed to Abubakar Malami, the Honourable Attorney-General of the Federation, was entitled: ‘Request to Discontinue the Case of FRN V Justice Walter Onnoghen at the Code of Conduct Tribunal Forthwith’.
The letter read: “Since the charge of false declaration of assets was filed against the Chief Justice of Nigeria, Justice Walter Onnoghen, at the Code of Conduct Tribunal, by the Code of Conduct Bureau, I have repeatedly requested you to use your good offices to discontinue the case. My request was anchored on the case of Elelu-Habeeb v Attorney-General of the Federation & Ors (2012) 40 WRN 1 where the Supreme Court held that by virtue of Section 292 of the Constitution of Nigeria, the head of any of the judicial arms of State and Federal Governments cannot be removed from office without a prior investigation conducted by the National Judicial Council.
“Having confirmed that you have since submitted a petition to the National Judicial Council alleging grave misconduct against the Chief Justice, I am compelled to request you, once again, to file a nolle prosequi to discontinue the charge pending against his Lordship at the Code of Conduct Tribunal without any further delay. The charge should not be allowed to hang like a Sword of Damocles on the head of the Chief Justice while he is being investigated by the National Judicial Council.
“In view of your implicit confidence in the ability of members of the National Judicial Council to resolve the matter you ought to accede to the request to terminate the proceedings at the Code of Conduct Tribunal forthwith.
“As you are no doubt aware, the withdrawal of the case from the Code of Conduct Tribunal will lead to the immediate vacation of the ex parte order relied upon by President Mohammadu Buhari to justify the illegal suspension of the Chief Justice from office and the appointment of Justice Tanko Mohammad as Acting Chief Justice of Nigeria. Even though by virtue of Paragraph 10 (2) (a) of Part 1 of the Fifth Schedule to the 1999 Constitution (as amended) the Code of Conduct Tribunal is empowered to order any public officer to vacate office the power cannot be exercised until such a public officer has been tried and convicted for breaching the provisions of the code of conduct for pubic officers.
“But as a public officer cannot be removed from office on the basis of an ex parte order granted by any Court or Tribunal in Nigeria we urge you to advise President Buhari to reverse the suspension of the Chief Justice. Once the suspension is reversed Justice Walter Onnoghen will then be prevailed upon to resign as the Chief Justice having lost the moral authority to preside over the affairs on the juridical organ of the Government of the Federation.
“However, if his Lordship does not call it quits or if the National Judicial Council does not recommend his removal from office you may wish to exercise your powers under section 174 of the Constitution to prosecute him for failure to declare his assets, which is a punishable offence under the Code of Conduct Bureau and Tribunal Act. It may interest you to know that the decision of the Code of Conduct Tribunal which declared section 3 (d) of the Code of Conduct illegal and unconstitutional was affirmed by the Court of Appeal in Dr. Olubukola Saraki v Federal Republic of Nigeria (unreported) Appeal No CA/A/1/127C/16 in which judgment was delivered on 27th October 2016."