Necessity or Otherwise of Swearing in an Acting CJN

Abstract

This Article seek to analyze the provision of the Constitution concerning whether it is necessary for an Acting CJN to take an Oath pursuant to Section 290(1) of the CFRN, which provides thus:” A person appointed to any judicial office shall not begin to perform the functions of that office until he has declared his assets and liabilities as prescribed under this Constitution and has subsequently taken and subscribed the Oath of Allegiance and the Judicial Oath prescribed in the seventh Schedule to this Constitution”. It revolves on whether the above provision of the Constitution extend to an Acting CJN unlike the Substantive CJN. Its also portrays on appointment of the Chief Justice of Nigeria (CJN) and circumstances that an Acting CJN may take the office temporarily, which is subject to Section 231(4 and 5) of the CFRN. It also delve on the reason for the necessity of swearing in an Acting CJN which is to ensure the formality and legitimacy of the office and to foster public trust and confidence in judiciary.

Introduction

It is a trite fact that in every state there is always a Constitution which is the Grund Norm that every other law derive their validity from and the law provided in this Constitution must be abide by and failure to abide by this law will amount to sanction. In actual sense, a Constitution can be define as the supreme law by which a state or a country is governed.

Therefore,this Constitution provides for three arms of government, Pursuant to Section 4,5 and 6 of the CFRN, which are the Legislature, Executive and judiciary. Thus, under the Judiciary subject to Section 6 of the CFRN provides that there shall be a supreme Court, which is the Apex court in Nigeria, subject to Section 230 of CFRN and there shall be a CJN Subject to Section 230(2) Paragraph (a) of the CFRN, who is the head of judiciary and oversee the duties and function of the office.

Moreso,this Constitution provides for an Acting CJN in absence of the Substantive CJN or if the Substantive CJN is by any reason incapable of performing the duties and function or if the office is vacant, then, there will be an Acting CJN who will perform the duties and function of the office and this office shall ceased to have effect after the expiration of three (3) Months. Pursuant to Section 231(5) of the CFRN.

In actual sense of the above, there arose a question of ” Whether or not an Acting CJN must be Swear in before assuming the duties and functions of the office”.

It is pertinent to note that this question revolves around the provision of Constitution. which are: Section 231(1), 232(4), 231(5), 290(1) 318(3and 4) of the Constitution of Federal of Nigeria 1999 as amended. Also Section 11(2) of the Interpretation Act.

Analysis of the Constitutional Provision

Section 231(1) of the CFRN provides for the appointment of the CJN which states: “The appointment of a person to the office of Chief Justice of Nigeria shall be made by the President on the recommendation of the National Judicial Council subject to confirmation of such appointment by the Senate.”

The analysis of this provision is that the President is vested with the power to appoint the CJN and will be done on the recommendation of National Judicial Council and will subject to Confirmation by the Senate. This means that the appointment of CJN is done by three due process, which are: the president, National Judicial Council and Senate confirmation. Therefore the Senate confirmation is crucial in the legitimacy of appointment of the CJN.

Section 231(4) of the CFRN provides for the appointment of an Acting CJN in absence or vacant office of the Substantive CJN and which read thus :” if the office of Chief Justice of Nigeria is vacant or if the person holding the office is for any reason unable to perform the functions of the office, then until a person has been appointed to and has assumed the functions of that office, or until the person holding has resumed those functions, the President shall appoint the most senior Justice of the Supreme Court to perform those functions”.

The analysis of the above provision is that there should be an Acting CJN in absence of the Substantive CJN or the vacancy of the office and the person to be appointed to perform those functions must be the senior Justice among the not more than twenty-one Justice of Supreme Court.

Section 231(5) of the CFRN provides for the limitation on tenure of an Acting CJN which provides thus: “Except on the recommendation of the National Judicial Council, an appointment pursuant to the provisions of subsection (4) of this section shall cease to have effect after the expiration of three months from the date of such appointment, and the President shall not re-appointment a person whose appointment has lapsed”.

The analysis of this provision is that the tenure in which an Acting CJN can use is three months in the office and for the Senate Confirmation and after this three months the president cannot reappoint such person as the CJN. Therefore, the occupancy of an Acting CJN is temporary and not permanent. The purpose of this appointment is to safeguard the judiciary from leaving an office vacant which could amount to illegitimacy of the judiciary.

Section 290(1) of the CFRN provides for the. mandatory of taking an oath, which provides thus:” A person appointed to any judicial office shall not begin to perform the functions of that office until he has declared his assets and liabilities as prescribed under this Constitution and has subsequently taken and subscribed the Oath of Allegiance and the Judicial Oath prescribed in the seventh Schedule to this Constitution.”

The analysis of this provision is that, a person appointed to any Judicial office shall take an Oath. That is, whether temporary or permanent must be swear in and take an oath before assuming any functions of that office. Moreso, the mandatory of the provision extend to the Acting CJN. The purpose of this Section 290 of the CFRN is to formalize the position and legitimize the role and duties.