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 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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