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.

Section 318 (3) of the CFRN provides for the Interpretation of reference to a person holding an office. The Section provide this: “In this Constitution, references to a person holding an office shall include reference to a person acting in such office.”Section 318(3) of the Constitution of the Federal Republic of Nigeria serves to clarify references to a person holding an office. Specifically, it states that such references shall include a person acting in that office.

In essence, this subsection ensures that anyone temporarily filling an office or performing its duties is also bound by the same laws and regulations as the permanent office holder. This provision helps maintain continuity and stability in governance.

Section 11 (1) of the Interpretation Act 2004 provide for the Interpretation of Section 318(4) of the CFRN. which provides thus: “where a law requires or permit the holder of an office to do any act or thing, it shall construed to include a reference to the person for the being acting in that office”.

The analysis of this provision is that, when an enactment confer a power or a duty on the holder of an office,the power may be exercise or the duty shall be performed by a person for the being acting in the office. That is, the Acting CJN is holding the same office as the Substantive CJN for the duration of Acting appointment.

The Question on “Whether or Not an Acting CJN Must Take an Oath Before Assuming the Duties and Function of the Office”

In line with the above question, an Acting CJN is person who is holding the office of CJN temporary. That is, pending some certain duration. Therefore,by the provision of Section 231(4) of the CFRN,the Constitution provide for the appointment of Acting CJN if the Substantive CJN is by any reason not capable of performing the duties and function of the office and the duration for the stay in office is three(3) Month subject to Section 231(5) of the CFRN.

Therefore, the provision of the Constitution do not explicitly make provision for the Acting CJN to an Oath, but it can be inferred from some Constitutional provision that an Acting CJN may take an Oath. By the provision of Section 290(1) of the CFRN provides for that “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”. This provision provides that any person appointed to a Judicial office which the office an Acting CJN is also a Judicial office.

Moreso,the provision of Section 318(3) and Section 11 (1) of Interpretation Act provides that: “reference to a person holding an office include reference to a person acting in such office”. Therefore, the Section 11 (1) of the Interpretation Act 2004, interpret that : “ where a law requires or permit the holder of an office to do any act or thing, it shall construed to include a reference to the person for the being acting in that office”.

In actual sense of the above it can be inferred that Acting CJN can take an Oath. Therefore, it is apposite for an Acting CJN to take an Oath before assuming the duties and responsibilities of the office, so as to to maintain the integrity and legitimacy of judiciary.

Argument Against Swearing an Acting CJN

The Opponent of swearing in an Acting CJN are of of the view that it is unnecessary to swear in an Acting CJN as the Constitution did not explicitly require it. They contend that the office of the Acting CJN is temporary and not permanent that the ceremony for swearing an Acting CJN should be reserved for the Substantive CJN. They rely their view on the provision of Section 3(2);of the Oath Act which provides that:” a person appointed to act in any office or capacity in the place of any officer or person, shall not be required to take any oath on the occasion of such appointment, unless the oath required to be taken in respect of such appointment is different from or in addition to any oath duly taken by him in respect of any other appointment, permanent or temporary”.

They contend that swearing in an Acting CJN will be equivalent with the Substantive CJN and which can undermine the importance of the Senate Confirmation. Therefore, they maintain there point that swearing an Acting CJN is unnecessary because the Constitution did not explicitly require it.

Argument in Favour of Swearing an Acting CJN

The proponent of swearing an Acting CJN (which I belong to) maintain that swearing in an Acting CJN is necessary to legitimize the appointment, ensure continuity in the administration of Justice, and affirm their authority to carry out the functions of the office. Therefore, they rely their view on the provision of Section 318(3) of the CFRN which provides that:” reference to a person holding an office shall include reference to a person acting in such office”. This provision was further interpreted by the provision of Section 11 (1) of the Interpretation Act that provides thus:” where a law requires or permit the holder of an office to do any act or thing, it shall construed to include a reference to the person for the being acting in that office”. Thus, from the above provision, it can be inferred that an Acting CJN can take an Oath, that will formalize and legitimize the duties and responsibilities of the office.

Taking an Oath by the Acting CJN will ensure that the actions and decision of the Acting CJN are legally valid and binding. And will foster public trust and confidence in judiciary. Therefore, I humbly submit that swearing an Acting CJN is necessary.

Conclusion

By the provision of Section 318(3) of the CFRN as amended. Supra. An Acting CJN should take an Oath before assuming any duties and responsibilities of the office. Because it will formalize and legitimize the duties and responsibilities of the office. Therefore, swearing an Acting CJN will ensure constitutional compliance, accountability, legitimacy and integrity.

Moreso, in case of Our Line Ltd V SCC Nig. Ltd (2009). The Supreme Court restate that a person appointed to any Judicial office must take an Oath before assuming the duties and responsibilities of the office. They made reference to Section 254(1) of the 1975 Constitution as amended, which provides thus”A person appointed to any Judicial office shall not begin to perform the functions of the office until he as taken and subscribe the Oath of allegiance and the Judicial Oath prescribed in the Sixth Schedule of this Constitution”.

Therefore,the Judicial office in the above provision include the Chief Justice of Nigeria (CJN), whether Substantive or Acting should take an Oath before assuming the duties and responsibilities of the office.

Swearing in an Acting CJN is necessary because it ensure constitutional compliance, accountability, legitimacy, integrity and it fosters public trust and confidence of judiciary in Nigeria.

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