January 17, 2010
On 30th December 2009, Hon Justice Idris Legbo Kutigi, the out-going Chief Justice of Nigeria, swore in Hon Justice Aloysius Iyorgyer Katsina-Alu as the new Chief Justice. Kutigi did this notwithstanding that his attention was promptly drawn to the absurdity he embarked upon. The Guardian Newspaper of December 31 gave the event the deserved front-page headline: Kutigi makes history, swears in Katsina-Alu. The Newspaper went further, no doubt in amazement, to say: “HISTORIC, Really historic. That is the way to describe the swearing-in of Justice Iyorgher Aloysius Katsina-Alu as the new Chief Justice of Nigeria (CJN) by the out-going Chief Justice Idris Legbo Kutigi. Reason: For the first time in the century’s history, two Chief Justices occupied that office, albeit for 12 hours.” While Justice Kutigi admitted that this was the first occasion an out-going CJN swore in the in-coming one, he made frantic efforts to justify his action. He said: “If you look at the Oaths Act 2004, you will see the provision there where the CJN, Justices of the Supreme Court, President of the Court of Appeal and the Justices of the Court of Appeal, among others, are all listed in a column, all of them, according to the Act are to be sworn in by the President or the Chief Justice of Nigeria. The provision is there and it has always been there. That the out-going CJN has never done it does not make it wrong. The law is clear. If you also look at the 1999 constitution, it also makes it clear that the person who has the responsibility of swearing in the new CJN is the Chief Justice of Nigeria”.
It is embarrassing that Justice Kutigi who occupied the office of the head of the Nigeria Judiciary should have felt comfortable with a skewed interpretation of the Oaths Act he relied on. It is an elementary rule of interpretation of a statute that the relevant sections or parts must be considered as a whole in order to arrive at a proper interpretation and avoid absurdity. And where there is a compelling need, the antecedent of and or history behind the statute may be considered. A perusal of the second schedule to the oaths Act in question along with its antecedent will reveal to any discerning mind that it was awkwardly put together. The persons to take the oath to be administered by the “The President or the Chief Justice of Nigeria” are stated in the third column thus: Chief Justice of Nigeria, Ministers, Parliamentary Secretaries, Attorney-General of the Federation, Justices of the Supreme Court, President and Justices of the Court of Appeal, Chief Justice and Judges of the Federal High Court, Army Chief of Staff, Naval Chief of Staff, Air Force Chief of Staff, Permanent Secretaries and Inspector General of Police. Further down the column, Ministers and Parliamentary Secretaries are again listed to take their oath before the President.
One would have thought that it ought to have occurred to Justice Kutigi that it could hardly be within the contemplation or intendment of the law makers that the Chief Justice of Nigeria would be required to tender the oath of Ministers, Parliamentary Secretaries, Attorney-General of the Federation, Army, Naval and Air Force Chiefs of Staff, Permanent Secretaries and the Inspector-General of Police.
Unfortunately, as if to give the perpetrators of the on-going unconstitutionality a facade of a smiling face and redemption, Katsina-Alu as Chief Justice of Nigeria was invited to Aso Rock to swear in Permanent Secretaries, which he did. Note that even if that swearing-in had been lawful, Katsina-Alu was not as much granted the honour of performing it at the Supreme Court premises! When will Nigerians be spared the agony of this latest round of duplicity?
I think we have to turn to the Official Oaths Ordinance of 1916 as amended and also the Schedules thereto, particularly the Second Schedule, contained in Cap. 143 of the Laws of the Federation of Nigeria and Lagos 1958, Vol. V, pages 2765 – 2770. Part I of the Second Schedule provides (or provided) that the relevant oaths by Administrative Officers and such other officers exercising executive and judicial functions as the Governor-General may designate shall be taken before a Governor or such officer as a Governor may appoint.
Part II provides (or provided) that the Deputy Governor-General of the Federation, Attorney-General of the Federation, Director of Naval Services, Comptroller of Customs and Excise and Parliamentary Secretaries in the Legislatures of the Federation and of the Regions shall take the relevant oaths before the Governor-General or a Governor. Then Part II dealt with Judicial Officers. The Chief Justice, was to take his oath before the Governor-General or a Governor. Justices, Judges and Puisne Judges were to be sworn in before the Governor-Governor, a Governor or the Chief Justice. Magistrates and Justices of the peace were to be sworn in before a Governor or such officer as a Governor may appoint.
This was the situation during the colonial era and at independence. At independence the Governor-General and Governors were Nigerians. When Nigeria became a Republic on 1st October, 1963, the Oaths and Affirmations Act was enacted. Wherever it was necessary to refer to the Governor-General, the President replaced him. The Second Schedule to the Act provides in column 1 for Oath of Allegiance and Oath of Office, Judicial Oath, Official Oath etc. Under Oath of Allegiance, persons to take oath (as relevant to the present discourse) are listed in column 2 as the Chief Justice of Nigeria, Ministers, Parliamentary Secretaries, Attorney-General of the Federation, Justices of the Supreme Court, Chief Justice and Judges of the High Court of Lagos, Army Chief of Staff, Naval Chief of Staff, Air Chief of Staff, Permanent Secretaries and Inspector-General of Police. In column 3, the persons to tender Oath for the above-named, as earlier stated, are given as “The President or the Chief Justice of Nigeria” Read with circumspection, this bungled schedule to the Act should mean the President or the Chief Justice of Nigeria as appropriate or as the case may be. This is so because the Chief Justice cannot be involved (and never had been) in swearing in Parliamentary Secretaries, Attorney-General of the Federation, Army, Naval and Air Chiefs of Staff, Permanent Secretaries and Inspector-General of Police notwithstanding the obvious clerical error in that column to specifically indicate who to be sworn in by the President and who by the Chief Justice as the earlier Official Oaths Ordinance made clear. Even so, that clerical error is no defence to a fatally unintelligent interpretation. It seems to reflect an unfortunate interpretation of convenience. And could it be that the cabal holding the country to ransom, and some say stolen our country, is increasing in numbers?
But the Chief Justice can swear in Justices of the Supreme Court, President and Justices of the Court of Appeal, Chief Judge and Judges of the Federal High Court (including the Chief Judge, the President of the Customary Court of Appeal and Judges of the Federal Capital Territory, Abuja). He certainly cannot swear in an in-coming Chief Justice of Nigeria in order to avoid absurdity. Justice Kutigi ought to have reflected back to Part III of the Second Schedule to the Official Oaths Ordinance, Cap. 143 of 1958 Laws of Nigeria and thought twice. In defending his action, he even delighted in saying he was still in charge after swearing in Justice Katsina-Alu. That was a ridiculous claim. At that stage there would be two Chief Justices. Hon. Justice Kutigi-Alu who succeeded him tended to make a mockery of his oath when, in receiving some visitors in his office recently, he said he could well have been sworn in by a Commissioner for Oaths. One begins to wonder whether both of them fully appreciated the essence of the oath of that office of Chief Justice of Nigeria. I submit that Justice Katsina-Alu was not constitutionally sworn-in as Chief Justice of Nigeria.
Solomon Asemota & Co.,
Modupe Chambers
#1, Modupe Asemota Close,
Off Adesuwa College Road,
G.R.A., Benin City.
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