CJN: Buhari, AGF, Senate Absent from Suit Opposing Muhammad’s Appointment
Posted: 14/May/2019

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 hearing of the suit challenging the appointment of Justice Tanko Muhammad as the substantive Chief Justice of Nigeria.
The Federal Government, joined as the 4th defendant in the suit, was also not represented by a lawyer.
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 issued the order after rejecting the plaintiff’s ex parte application on the grounds that the prayer it sought 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 the Monday 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 the court’s bailiff had served all the defendants, except Justice Muhammad for the Monday’s 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 in 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 the 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 regards 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 was unfit to replace the sacked CJN.
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, was a shared responsibility of the 1st defendant (NJC), 5th defendant (Buhari) and 7th defendant (National Assembly).
He argued that President Buhari lacked the constitutional powers to unilaterally suspend and/or remove a sitting CJN from office as was done in the case of Onnoghen.
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,” among other pleas.
He prayed the court to stop President Buhari from appointing Justice Muhammad as the substantive CJN.