N’Assembly Resolution: Battle Shifts to Court
By Davidson Iriekpen THISDAY | Feb.17.2010

With the way the Federal High Court Abuja presided over by Justice Dan Abutu handled the litigations arising from President Umaru Musa Yar’Adua’s long absence from the country, many Nigerians are anxiously waiting to see how the same court would handle the two suits challenging the resolution passed by the National Assembly which culminated in Vice President Goodluck Jonathan becoming the Acting President of the country, writes Davidson Iriekpen.

Few days after the National Assembly passed a resolution making Vice President Goodluck Jonathan Acting President of the country, two Nigerians- an Abuja-based lawyer, Ataguba Aboje, and a former Minority Leader in the House of Representatives, Alhaji Farouk Aliyu Adamu, rushed to the Federal High Court in Abuja to challenge the move. Those sued are Vice President Goodluck Jonathan, National Assembly and the Attorney General of the Federation and Minister of Justice.

It would be recalled that President Umaru Musa Yar’Adua was flown out of the country to King Faisal Specialist Hospital and Research Centre in Jeddah, Saudi Arabia on November 23. His absence from the country and failure to properly hand over to his deputy by following the provisions in Section 145 of the 1999 Constitution was alleged to have held back some vital decisions for smooth running of the country. Matters got to a head when the 2009 Supplementary Appropriation passed by the two chambers of the National Assembly was taken to him on his sick bed for endorsement. Also, when the then Chief Justice of Nigeria, Justice Idris Kutigi, swore in his successor, Justice Katsina-Alu. The argument was that all these functions and many others, could have been performed by Jonathan had he been sworn-in to act as the country’s Acting President.

For instance, in the suit instituted by Aboje, he urged the court to determine whether in his capacity as the Vice-President of the country Jonathan can validly be the Acting President under Section 145 of the 1999 Constitution and temporarily discharge the functions of the President, without the President first transmitting to the President of the Senate and the Speaker of the House of Representatives a letter to the effect that he was proceeding on a vacation or that he is unable to discharge the functions of his office.

He is also asking the court to determine whether the Senate or House of Representatives can, by a resolution, empower Jonathan to act as Acting President, to temporarily take over and discharge the functions of the President without the occurrence of the event under Section 145 of the 1999 Constitution?

In the court document obtained by THISDAY, the plaintiff disclosed that the assumption of the Vice-President as Acting President is without basis and lacks legal justification as the position is predicated on the fulfilment of Section 145 by the President and not the passing of a resolution by the National Assembly, who by Section 4 of the Constitution are charged only with the duty of making laws for the peace, order and good governance of the Federation.

The main issue the plaintiff is seeking determination is whether the rule of interpretation is the appropriate cannon of interpretation for the words of Section 145 of the 1999 Constitution. He said the procedure adopted in taking over and discharging the function of the President by the Vice-President as Acting President was unconstitutional and a violation of Section 1(1) of the 1999 Constitution, the plaintiff argued that Section 145 of the constitution which sought the court’s interpretation is unambiguous and explicit and should be given its literal and ordinary meaning.

The plaintiff is seeking the following reliefs: a declaration that the Vice-President can temporarily take over and discharge the function of the President as Acting-President only in accordance with Section 145 of the 1999 Constitution; a declaration that the taking over and the discharging of the function of the President of the Federal Republic of Nigeria by the Vice-President as Acting-President on the strength of the resolution of the National Assembly is an infringement of Section 1(1) of the 1999 Constitution; a declaration that the resolution of the National Assembly recognising the Vice-President as the Acting-President is a violation of Sections 4 and 145 of the 1999 Constitution and to that extent and for all intents and purposes is unconstitutional, null, void and of no effect whatsoever.

Aboje want the court to grant him an order of injunction restraining the Vice-President from temporarily taking over and discharging the function of the President as Acting-President except in accordance with Section 145 of the 1999 Constitution, and an order of injunction restraining the National Assembly from recognising the Vice-President as Acting-President of the country except in compliance with Section 145 of the 1999 Constitution.

He argued thus: “My Lord, Section 145 of the 1999 Constitution provides for the procedure by which a Vice-president may become empowered to assume the function of the President as Acting-President. This section is explicit in that the President himself must transmit both to the Senate President and the Speaker of the House of Representatives a written declaration stating that he is: proceeding on vacation; or unable to discharge the function of his office."

He noted that until this was done, the Vice-president cannot assume the position of an Acting-President, adding that anything short of this is contrary to the clear provision of Section 145 of the Constitution.

“The constitution is so clear and specific on the procedure that must be followed. The incongruous statement of the Senate President that the declaration under Section 145 was transmitted on BBC by the President is not sustainable by the clear provision of Section 145 of the Constitution of the Federal Republic of Nigeria 1999 or any portion thereof, as by no stretch of the imagination would the legislature have contemplated under any circumstance that such declaration would be made to the National Assembly over a foreign radio or television broadcast. To hold otherwise we submit, would be absurd and unreasonable.

“We therefore submit that, the assumption of the Vice-president as Acting-president is without basis and lacks legal justification as this position is predicated on the fulfilment of the Section 145 by the President and NOT the passing of a resolution by the National Assembly, who by Section 4 of the Constitution of the Federal Republic Nigeria 1999 are charged only with the duty of making laws for the peace, order and good governance of the Federation.”

The Abuja-based lawyer is not alone in the litigation. A former Minority Leader in the House of Representatives, Adamu, last week, instituted a suit at the court challenging the resolution of the National Assembly making Jonathan the Acting President pending the recovery and return of President Yar'Adua.

The former lawmaker wants the court to declare that, "having regard to the provisions of Section 145 of the Constitution of the Federal Republic of Nigeria 1999 and the circumstances of this suit, the Senate of the Federal Republic of Nigeria has no constitutional powers to pass a resolution mandating the Vice President Goodluck Ebele Jonathan, to assume full presidential powers as Acting President pending the return of President Umaru Musa Yar'dua."

He prayed the court to decide whether the National Assembly has the powers to mandate the Vice President to become Acting President pending the return of President Yar'Adua. Against this development, the plaintiff asked the court to make an order to invalidate the said resolution of the National Assembly on February 9, this year on grounds that such a resolution was unconstitutional and of no effect.

Similarly, he prayed the court for an order "directing the Senate and House of Representatives to cause compliance with Section 145 of the Constitution by waiting for a written declaration to be transmitted by the President before passing any resolution to that effect."

Adamu also asked the court to order the Vice President to forthwith "stop parading himself" as the Acting President and Commander-in-Chief of the Armed Forced of the Federal Republic of Nigeria." In a written affidavit of urgency deposed to by Adamu himself, the court was told that the President of the Federal Republic of Nigeria traveled since November 23, 2009 and that the matter must be determined in time to avoid constitutional and economic crisis.

Also with the way and manner the Federal High Court in Abuja handled the litigations arising from President Yar’Adua’s long absence from the country, many Nigerians are anxiously waiting to see how the same court, which may be presided over by Justice Abutu, would handle the two suits challenging the resolution passed by the National Assembly which culminated in Vice President Jonathan becoming the Acting President.

For instance, the former AGF got two judgments from Justice Abutu’s court. While it is not clear whether the new AGF would plead the concept of locus standi which many judges in the country had used to throw out suits instituted against the Federal Government. The former AGF had raised the issue but later abandoned it.

Aondoakaa, it would be recalled, personally appeared in all the cases filed by interested persons in the course of Yar’Adua’s absence from the country, as a defendant.

A National Youth Corps Service (NYSC) member, Christopher Onwuekwe, in an application filed before the Federal High Court in Abuja, urged the court to declare that going by the combined provisions of Sections 5(1) and 148 (1) of the Constitution, the Vice President can exercise the executive powers vested in the President in the absence of the President and that the Vice President can lawfully discharge all the functions of Mr. President in the absence of the President in the interest of the country pending when the President resumes and takes over.

He asked the court to determine whether the Vice President, under the provisions of Sections 5(1) and 148 (1) of the Constitution, can exercise the executive powers vested in the President in the absence of the President and whether the Vice President can lawfully discharge any or all of the functions of the President in the absence of the President in the interest of peace, order and good governance of the federation pending when the President resumes and takes over.

In the suit, Justice Abutu had effectively foreclosed the chances of Jonathan becoming acting president, irrespective of how long Yar’Adua stays out of the country and away from office on health grounds.He held that Vice President Jonathan, having been delegated with the power and having regard to the fact that he has been working in the absence of the president, should exercise the powers of President Yar’Adua in line with Section 5 of the constitution.

The judge, who is also the Chief Judge of the Federal High Court, declared that since President Yar’Adua did not submit any letter to the National Assembly informing the legislative body of his absence, the vice president cannot become the acting president but can only carry out the functions of the president in his absence which he has been doing and should continue to do as enshrined in Section 5 (1) of the 1999 constitution.

While delivering judgment in another case involving the Nigerian Bar Association (NBA), Justice Abutu also declared that there was no room for an offshore president in our constitution and that the president cannot operate in abeyance. He however held that Section 145 of the 1999 Constitution did not impose a duty on the president to transmit a written declaration to National Assembly whenever he is proceeding on vacation or is otherwise unable to discharge the functions of his office. According to him, no word or parenthesis imposing an obligation is used in the section.

The judge held that the doctrine of necessity cannot be invoked in the absence of the condition precedent. Ironically, it is the same doctrine of necessity that came to the rescue last week when the National Assembly passed a resolution to make Jonathan the acting president.

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