According to Section 3( 2) of the extant Oaths Act in Nigeria, a person who had previously taken oath for the office he holds, who subsequently gets appointed to act in a different office may not take a new oath for his acting capacity unless the new oath is different from the previous oath taken or contains additional contents that were not included in his previous oath. It would appear that the oath to an acting CJN would need to take should be or ought to be different from the oath taken as a Supreme Court judge. In my view, there is nothing abnormal, irregular or illegal about taking oath in an acting capacity.
A look at the judicial oath contained in the 7th Schedule to the 1999 Constitution as altered, would reveal that the judicial oath therein relates to separate offices. For example, the oath may be taken as Chief Justice of Nigeria or as Justice of the Supreme Court and so on. If a judicial officer took the judicial oath as a judge of the Supreme Court, it cannot be the same as having taken oath as Ag. Chief Justice or Chief Justice of Nigeria. The said offices are created separately by law. The office of the Chief Justice of Nigeria is specifically created by Section 230 (1) (a) of the I999 Constitution as altered, while Section 230 (1) (b) creates the office of the Justice of the Supreme Court. The two offices are separate and separable at all material times. Similarly, the functions of the two offices are different.
Aside from performing pure judicial duties, the Chief Justice of Nigeria or CJN is the head of the judicial arm of the government of Nigeria, and presides over the country’s Supreme Court together with its administration. He presides over the National Judicial Council pursuant to item I-20(a)of the Third Schedule to the 1999 Constitution as altered. In this regard, he is charged together with the council to deal with recommendations for appointment of suitable persons as judges, removal from office of judges, control and disbursements of funds for the judiciary and a host of other duties.
By the provisions of Section 3 of the National Judicial Institute Act, the CJN is the chairman of the Board of the institute. He oversees the training of judicial officers and their supporting staff through the courses, workshops, continuing education and conferences conducted by the institute to improve their knowledge. It can therefore be comfortably argued that the overall duties of the CJN are in excess of his duties as a justice of the Supreme Court and that even as Ag. CJN, he ought to subscribe to a fresh oath of office to reflect his preparedness to assume a larger office albeit tentatively.
After all, as Ag. CJN, he performs the same duties as the substantive CJN. Nothing more and nothing less. In reality, this topic is really academic in nature as the provisions of Section 3 of the Oaths Act have fizzled out any doubt on the need to administer new oath where the new oath is different from the previous oath taken by a public officer before assumption of duties. The difference can be in the nature of the office or the functions thereof as in this case. The presence of a material difference in the nature of duties of the offices under reference provides legal and functional validity for the taking of an oath of office by public officials appointed in acting capacity.
Dr. Ehiogie West-Idahosa
(Senior Advocate of Nigeria, policy expert and public affairs commentator)