The Abuja High Court was today asked to declare Umaru Yar’Adua’s failure to transmit a written declaration to the leadership of the National Assembly before proceeding on medical vacation three weeks ago to be a violation of the Nigerian constitution.

In the suit, filed against the Attorney-General of the Federation by Mr. Femi Falana of FALANA & FALANA’S CHAMBERS, Abuja, the court is also asked for:

 
* A declaration that the meetings of the Federal Executive Council held since November 23 2009 and the decisions taken at those meetings are illegal and unconstitutional as they violate Section 148(2) of the Constitution of the Federal Republic of Nigeria 1999.
    * AN ORDER OF MANDATARY INJUNCTION compelling Yar’adua to transmit a written declaration to the Senate President and the Speaker of the House of Representatives that he has proceeded on medical vacation (and) to empower the Vice President, Dr Goodluck Jonathan to discharge the functions of the President as the Acting President of Nigeria.

 

 The Attorney-General has eight days to respond to the summons either personally or through a legal representative.  If he fails to do so, according to the summons, the court could determine as it pleases as the judge may think “just and expedient.”

 

The full text of the lawsuit is as follows:
IN THE FEDERAL HIGH COURT  OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
                                             
SUIT NO: FHC/ABJ/CS/732/09

BETWEEN:

FEMI FALANA                                                     )… PLAINTIFF

AND

ATTORNEY GENERAL OF THE FEDERATION      )…DEFENDANT

ORIGINATING SUMMONS

LET  THE DEFENDANT within eight days after service of this Summons on him inclusive of the day of such service cause an appearance to be entered for him to this Summons which is issued on the application on the application of the Plaintiff for the determination of the  following question:

QUESTIONS FOR DETERMINATION

1) Whether the refusal or failure of the President to transmit a written declaration to the President of the Senate and the Speaker of the House of Representatives before proceeding on medical vacation on or before November 23, 2009 is not a violation of S. 145 of the Constitution  of the Federal Republic of Nigeria 1999.

2) Whether the Vice President, Dr Goodluck Jonathan can discharge any of the functions of the President when a written declaration has not been transmitted to the President of the Senate and the Speaker of the House of Representatives by President Umaru Musa Yar’adua pursuant to Section 145 of the Constitution of the Federal Republic of Nigeria  1999.

3) Whether the weekly meetings of the Federal Executive Council held since November 23, 2009 and the decisions taken thereat are not illegal and unconstitutional by virtue of Section 148 of the Constitution of the Federal Republic of Nigeria 1999.

RELIEFS SOUGHT BY THE PLAINTIFF

1) A DECLARATION that the failure or refusal of President Umaru Musa Yar’adua to transmit a written declaration to the President of the Senate and the Speaker of the House of Representatives before proceeding on medical  vacation on November 23, 2009 is illegal and unconstitutional as it violates Section 145 of the Constitution of the Federal Republic of Nigeria 1999.

2) A DECLARATION that by virtue of Section 145 of the 1999 Constitution of the Federal Republic of Nigeria the Vice President cannot discharge any of the functions of the President without a written declaration transmitted to the Senate President and the Speaker of the House of Representatives by the President to the effect that he is proceeding on vacation or that he is unable to discharge his functions.

3) A DECLARATION that the meetings of the Federal Executive Council  held since November 23 2009 till date, and the decisions taken thereat are illegal and unconstitutional as they violates Section 148(2) of the Constitution of the Federal Republic of Nigeria 1999).

4)    AN ORDER OF MANDATARY INJUNCTION compelling the President Alhaji Umaru Musa Yar’adua to transmit a written declaration to the Senate President and the Speaker of the House of Representatives that he has proceeded on medical vacation to empower the Vice President, Dr Goodluck Jonathan to discharge the functions of the President as the Acting President of Nigeria.

THIS SUMMONS was taken out  by MR. FEMI FALANA of FALANA & FALANA’S CHAMBERS of 22, Mediterranean Street, Imani Estate, Maitama District, Abuja on behalf of the above named –plaintiff.

Note:    1    The Defendants may appear hereto by entering appearance  
personally or by a Legal Practitioner either by handing in the appropriate form duly completed at the Federal High Court Registry or by sending them to that office by post.

        2    If the Defendants do not enter appearance within the time
            and at the place above mentioned such orders will be made
and proceedings may be taken, as the judge may think just and expedient.

……….
JUDGE

DATED THIS 15th  DAY OF DECEMBER, 2009

……………………………….
SOLA EGBEYINKA, ESQ.
FALANA & FALANA’S CHAMBERS
PLAINTIFF’S COUNSEL,
22, Mediterranean Street
Imani Estate
Maitama District
Abuja.
e-mail: [email protected]
Tel: 08063064118, 08071461673

IN THE FEDERAL HIGH COURT  OF NIGERIA
IN THE ABUJA JUDICAL DIVISION
HOLDEN AT ABUJA
                                                                                                                SUIT NO:……………….
BETWEEN:

FEMI FALANA                                                     )… PLAINTIFF

AND

ATTORNEY GENERAL OF THE FEDERATION      )…DEFENDANT

AFFIDAVIT  IN SUPPORT OF ORIGINATING SUMMONS

I, SAMUEL OGALA, Male, Nigerian and Legal Practitioner of 22, Mediterranean Street, Maitama District, Abuja hereby make Oath and state as follows:-

(1)    I am a counsel in the law firm of FALANA & FALANA’S CHAMBERS and as such I am familiar with the facts of this case.

(2)    The Plaintiff is a Senior counsel involved in litigation throughout the Federal Republic of Nigeria with several cases in the various Courts including the Court of Appeal and the Supreme Court.

(3)    The Plaintiff informed me and I verily believe as follows:

    •    He was involved in the struggle that culminated in the termination of military rule in Nigeria on May 29, 1999.

    •    Owing to his leading role in the campaign for democracy he was arrested, detained and charged with phantom criminal offences on several occasions from 1985 – 1998 by the defunct military  dictatorship.

    •    Since civil rule was restored in May 1999 he has been involved in the defence of the democratic rights of Nigerians and the consolidation  of the fragile democratic process in Nigeria.

    •    On November 23, 2009 the Federal Government in both print and electronic media announced that President Umaru Musa Yar’Adua was traveling to Jeddah, Saudi Arabia for medical treatment.

    •    Before proceeding on the said medical trip the President did not transmit any written declaration to the Senate President and the Speaker of the House of Representatives as required by the 1999 Constitution of the Federal Republic of Nigeria.

    •    Since no written declaration was transmitted to the leadership of the National Assembly the Vice President, Dr Goodluck Jonathan has not been constitutionally empowered to discharge the duties of the President in an Acting capacity.

    •    Apart from presiding over the weekly meetings of the Federal Executive Council the Vice President, Dr Goodluck Jonathan has been reported in the media to have refused to discharge the functions of the President.

    •    In spite of the assurance of the Federal Government that the medical vacation of the President has not affected the administration of the country I know that the 2009 supplementary Appropriation Bill passed by the National Assembly has not been signed into law.

(4)    With respect to the Judiciary the Plaintiff informed me and I verily believe follows:-

(a)     Before his medical vacation the President had appointed the Honourable Justice Aloysius  Katsina-Alu and Honourable Justice Ayo Salami as the Chief  Justice of Nigeria and    President of the Court of Appeal respectively subject to the confirmation of the Senate.

(b)     After the President had proceeded on vacation  the Honourable Justice Umaru Abdullahi retired officially as the President of the Court of Appeal on the 30th day of November, 2009.

(c)    Owing to the absence of the President the most Senior Justice of the Court has not been officially sworn in as the Acting President of the Court of Appeal as required by the Constitution of the Federal Republic of Nigeria.

(d)    Unless the Senate confirms the appointments of the Honourable Justice Aloysius  Katsina-Alu and Honourable Justice Ayo Salami as soon as possible the administration of Justice at the highest level of the judiciary may be brought to a halt due to the absence of the President.

(e)    Several cases involving my clients will not be attended to if the appointments of the Chief  Justice of Nigeria and President of the Court of Appeal are not regularized as a result of the President’s medical vacation.

(f)    If the appointment of the Honourable Justice Katsina-Alu is confirmed as the Chief Justice of Nigeria by the Senate he has to be sworn in by the President of the Federal Republic of Nigeria.

(5)    I know as a legal practitioner that the meetings of the Council of State, the National Defence Council, National Security Council, Nigeria Police Council and the Federal Executive Council cannot be held in the absence of the President as he is required to preside over them in his capacity of the Chairman.

(6)    The conclusion of the last two meetings of the Federal Executive Council  presided over by the Vice President, it was announced in the print and electronic  media that the approval to the award of the following contracts:-

    •    An International Development Association Policy credit of $500 Million for bridging the shortfall in the 2009 Budget.

    •    Supply of one unit of IG7 Generator Assembly and spares for kainji Hydro Electric River PLC for E4.352M.

    •    Upgrade/expansion of Existing gas metering facilities at the Sapele power  station for $ 26.4 and N1.1 Billion.

(7)    I believe that a written declaration by the President to the Senate President and the Speaker of the House of Representatives to the effect that he is on medical vacation will enable the Vice President to discharge the functions of the President in an Acting capacity.

(8)    That I know as a fact that President George Bush of the United States of America, President Fidel Castro of Cuba, President Levy Manawasa of Zambia and Prime Minister Aeriel Sharon of Israel and President Ahidjo of Cameroon  handed over to their Deputies when they were sick in office.

(9)    That unless the reliefs sought by the Plaintiff are granted Nigeria may be plugged into a serious constitutional crisis which may be exploited by anti-democratic forces.

(10)    That I make this declaration in good faith believing same to be true to the best of my knowledge and information.

……………
DEPONENT
SWORN TO at the Federal High Court Registry Abuja
This …………… day of ……………….. 2009

BEFORE ME

COMMISSIONER FOR OATH.
IN THE FEDERAL HIGH COURT  OF NIGERIA
IN THE ABUJA JUDICAL DIVISION
HOLDEN AT ABUJA
                                                                                                                SUIT NO:……………….
BETWEEN:

FEMI FALANA                                                     )… PLAINTIFF

AND

ATTORNEY GENERAL OF THE FEDERATION      )…DEFENDANT

PLAINTIFF’S WRITTEN ADDRESS

1.00    INTRODUCTION:

1.01    The Plaintiff, a Senior Counsel, took out an Originating Summons before this Honourable Court.  In this action the Plaintiff prays the Court to grant certain reliefs to address the constitutional crisis which has arisen as a result current of the medical vacation of President Umaru Musa Yar’Adua.

1.02    In the supporting affidavit the plaintiff averred that the President proceeded on medical vacation on November 21, 2009 without transmitting a written declaration to the leadership of the National Assembly. The gravamen of the Plaintiff’s complaint is that the failure or refusal of the President to transmit a written declaration to the National Assembly has prevented  the Vice President from discharging the functions of the President as the Acting President of Nigeria as required by the 1999 Constitution of the Federal Republic of Nigeria.

2.00    ISSUES FOR DETERMINATION
The Plaintiff submits that there are three issues for determination in this case which are:-

    •    Whether the Vice President can discharge the functions of  the President as Acting President when a written  declaration has not been transmitted to the Senate President and the Speaker of the House of Representatives by the President as stipulated by Section  145 of the 1999 Constitution of the Federal Republic of Nigeria?.

    •    Whether the Vice President, Dr Goodluck Jonathan can discharge any of the functions of the President when a written declaration has not been transmitted to the President of the Senate and the Speaker of the House of Representatives by President Umaru Musa Yar’adua pursuant to Section 145 of the Constitution of the Federal Republic of Nigeria  1999.

    •    3)    Whether the weekly meetings of the Federal Executive Council held since November 23, 2009 and the decisions taken thereat are not illegal and unconstitutional by virtue of Section 148 of the Constitution of the Federal Republic of Nigeria 1999.
3.00    ISSUE ONE:-

3.01    WHETHER THE VICE  PRESIDENT CAN DISCHARGE THE FUNCTIONS OF THE PRESIDENT AS THE ACTING PRESIDENT WHEN A WRITTEN DECLARATION HAS NOT BEEN TRANSMITTED TO THE SENATE PRESIDENT AND THE SPEAKER OF THE HOUSE OF REPRESENTATIVES AS STIPULATED BY SECTION 145 OF THE 1999 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA.

3.02    In the affidavit in support of the Originating Summons the Plaintiff has averred that the Federal Government has announced that the Vice President Dr Goodluck Jonathan is “in charge” of the Federal Government of Nigeria in the absence of the President, Alhaji Umaru Musa Yar’Adua. Accordingly, the Vice President has been holding a weekly meeting of the Federal Executive Council where executive decision including the approval of contracts have been taken.

3.03    In order to address this issue it is pertinent to refer to Section 145 of the 1999 of the Constitution of the Federal Republic of Nigeria which states as follows:-

“Whenever the President transmits to the Senate and the Speaker of the House of Representatives a written declaration that he is proceeding on vacation or that he is otherwise unable to discharge the functions of his Office, until he transmits to them a written declaration to the contrary, such functions shall be discharged by the Vice-President as Acting President”.

3.04    From the clear and unambiguous provision of Section 145 of the Constitution, the President is required to transmit a written declaration to the  Senate President and the Speaker of House of Representatives to the effect that he is proceeding on vacation or that he is otherwise unable to discharge the functions of his offices. Once such a written declaration is transmitted to the National Assembly  the functions of the President shall be discharged by the Vice President as Acting President. If and when the President transmits a written declaration to the contrary the Vice President shall cease to be the Acting President.

3.05    In this case, the Plaintiff has averred that the President proceeded on medical vacation on November 23, 2009 without transmitting a written declaration to the Senate President and the Speaker of the House of Representatives. It is submitted that the Vice President cannot perform the functions of the President as Acting President in the circumstances. Notwithstanding the assurance of the Federal Government that the Vice President is “in charge” the exercise of any of the functions or duties of the President by the Vice President is illegal, null and void and of no effect whatsoever. The Supreme Court of Nigeria in RT Honourable Michael Balonwu V Governor of Anambra State (unreported) Suit No: SC/233/2008 delivered on 4th December, 2009 Per Onnoghen JSC held: “It is therefore proper to hold that the intention of the legislature is to ensure continuity of government action in order to avoid a vacuum”

3.06    Although there is no decided case on this point we can borrow a leaf from the United States of America where the Presidential system was adopted. According to the CNN Transcripts of June 29, 2002:-
“On the morning of June 29, 2009, Cheney served as Acting President of the United States under the terms of the 25th amendment to the Constitution, while Bush was undergoing a colonoscopy. Cheney acted as President from 11.09 UTC that day until Bush resumed the Powers of the Presidency at 13.24 UTC.”

3.07    Vice President Cheney once again served as Acting President for about two hours on July 21, 2007 as President Bush was reported to have transferred “the power of the Presidency prior to undergoing a medical procedure, requiring sedation and latter resumed his powers and duties that same day” (See MSNBC JULY 21, 2007).

It is germane to observe that President Bush wrote to the Senate before and after his medical treatment on both occasions in line with the provisions of the American Constitution. In this case by not transmitting a written declaration to the leadership of the National Assembly before proceeding on medical vacation,  President Yar’Adua has violated the provision of  Section 145 of the Constitution of the Federal Republic of Nigeria. We urge this Honourable Court to so hold.

4.00    ISSUE TWO:-

4.01    WHETHER the Vice President is competent to preside over meetings of the Federal Executive Council by virtue of SECTION 148 of the 1999 Constitution of the Federal Republic of Nigeria.

4.02    In the affidavit in support of the Originating Summons the Plaintiff has deposed to the fact that the Vice President, Dr Goodluck Jonathan has been holding weekly meetings with the Ministers since the President embarked on medical vacation. It is the case of the Plaintiff that such meetings are illegal by virtue of Section 148(2) of the Constitution which provides as follows:-

4.03 The President shall hold regular meetings with the Vice-President and all the Ministers of the Government of the Federation for the purposes of-

    •    Determining the general direction of domestic and foreign policies of the Government of the Federation;

    •    Co-coordinating the activities of the President, the Vice President and the Ministers of the Government of the Federation in the discharge of their  executive responsibilities; and

    •    Advising the President generally in the discharge of his executive functions other than those functions with respect to which he is required by the Constitution to seek the advice or act on the recommendation of any other person or body.

4.04    It is trite law that where a statute mentions specific things or persons, the intention is that those not mentioned are not to be included. The legal principle is captured in the latin maxim “expressio unius est exclusio alterius” or “inclusio unius est exclusio alterius”  see the cases Military Governor of Ondo State V Adewumi (1988) 3 NWLR (PT 82) 280 and Ehuwa V Ondo State INEC (2007) 13 WRN 1. Applying this  principle to the facts of this case it is submitted that since it is only the president that is mentioned in Section 148  (2) of the Constitution the Vice President cannot be included therein. In other words it is only the president that is empowered to hold regular meetings with  the Vice President and Ministers of the Federal Government. The Vice President cannot take advantage of the absence of the  President to substitute himself for the President by holding meetings with Ministers of the Government of the Federation.

See the case of A.G FEDERATION V ABUBAKAR [2007] 20 WRN pt 1 at 19 where Akintan JSC held:
  
“while the Constitution specifically created the office of both the President and that of the Vice President it went ahead to vest the executive powers of the Federation is only the President. But the President is required to exercise the executive powers conferred on him either directly or through the Vice President and Minister of the government of the Federation or officer in the public service of the Federation. Unlike in the United States of America and India where the respective Constitution assign specific roles to the Vice President, the Nigerian Constitution does not assign any specific role to the Vice President. This role which the Nigerian Vice President is to perform is limited to what the President assigns to him just like those of the Ministers who are appointed by the President subject to confirmation by Senate and may be removed by the President at will”.

4.04    On the nature of the single Executive envisaged by the Constitution the Supreme Court further held:-
“The Nigerian Constitution, like the American presidential system, envisaged single executive for which the President is the head and in whom the executive powers are vested in him. The principle excludes the preclusion of a current vesting of the executive powers in two or more persons of equal authority”
4.5    Based on the fact that the President has not transmitted a written declaration to the National Assembly which would have enable the Vice President to serve as the Acting President of Nigeria, he lacks the powers to convene and preside over the meeting of the Federal Executive Council, it is the humble submission of the Plaintiff that all contracts approved by the Federal Executive Council and other decisions taken at the said meetings are illegal, null and void and of no effect whatsoever.

4.6    Since public funds may be released any moment from now to execute such illegal contracts this Honourable Court ought to declare such meetings illegal and unconstitutional. Issue two should be resolved in favour of the Plaintiff.

5.00    ISSUE THREE:-

5.01    Whether this Honourable Court ought to make an order compelling the President to transmit a written declaration to the Senate President and the Speaker of the House of Representatives forthwith.

5.02    The Plaintiff has averred that the Federal Government is already going through a constitutional crisis of monumental dimension. Specifically, the Plaintiff has shown that the absence of the President has had adverse effect on the Judiciary. With a few days to the end of 2009, the Supplementary Appropriation Bill, 2009 has not been signed into law due to the fact that the President is on medical vacation.

5.03 The vacuum being experienced in the Presidency was never contemplated by the Constitution. Hence a Vice President was elected with the President on the joint ticket on the same Political Party i.e Peoples Democratic Party.

5.04  As far as the Constitution is concerned the Vice President is required to be the Acting President whenever the President is on vacation or otherwise unable to discharge the functions of his office. In order to assist the Court the Plaintiff has deposed to facts to show the experience of some countries whose Presidents handed over to their Deputies when they had to undergo medical treatment.

5.05 To save the country from constitutional crisis that may derail the entire democratic process this Honourable Court ought to make an Order compelling the President to transmit a written declaration to the Senate President and the Speaker of the House of Representatives. Unless this is done, without any

further delay the entire democratic process may be derailed by anti-democratic forces.

DATED THIS 15TH DECEMBER, 2009

……………………………….
SOLA EGBEYINKA, ESQ
PLAINTIFF’S COUNSEL,  
FALANA & FALANA’S CHAMBERS
22, MEDITERRANEAN STREET
OFF SHEHU SHAGARI WAY
MAITAMA DISTRICT, ABUJA.
e-mail: [email protected]
Tel: 08063064118, 08071461673

FOR SERVICE ON:

THE ATTORNEY-GENERAL OF  THE FEDERATION
FEDERAL MINISTRY OF JUSTICE
MAITAMA
ABUJA.

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