This is the complete story of the yet unfolding drama of the court cases against President Umaru  Yar’Adua arising from his absence from the country and the need for a handover to Vice President Goodluck Jonathan.

By Jide Ajani ,
Deputy editor & Ise Oluwa Ige

In the last 50 something days, there have been calls by Nigerians from different walks of life on ailing President Umaru Yar’Adua to respect the provisions of the 1999 constitution and hand-over powers to Vice President  Jonathan Goodluck, as acting president.

The calls were predicated on his presumed inability to discharge the functions of his office on  account of his ill-health. Yar’Adua, was flown out of the country  in the wee hours of November 23, 2009 to Saudi Arabia  for treatment of  acute pericarditis.

Sunday Vanguard gathered that President Yar’Adua has no problem, as a person, with ceding  presidential powers to Jonathan  but some overzealous supporters of Yar’Adua  sitting on the neck of the government are  complicating  the process.

How cabal works to stop Jonathan

Sunday Vanguard reliably gathered that following the agitation for the resignation of President Yar’Adua on account of his ill-health the pro Yar’Adua men moved into action the primary aim of which was to frustrate Jonathan from smelling the number one seat either in  acting or substantive capacity. The fear is that allowing him to get there would amount to bringing back former President Olusegun Obasanjo into Aso Rock. First  they agreed to use the provisions of the Constitution to achieve their goal.

Sunday Vanguard learnt that a team of top lawyers was mandated to examine loopholes in the constitution.
According to an impeccable source, when those given the assignment eventually reported back, a number of recommendations summarised into plans A-E  were submitted to the group.

Top of the recommendations is making  provisions of section 144 (1) (b) (2) (3) and (4)) of the 1999 constitution unworkable  before using the provisions of section 5(1) and 148(1) of the 1999 constitution to perpetuate Yar’Adua in power even if he would remain on his sick bed for the rest of his tenure.

The provisions say:
(1) The President or Vice-President shall cease to hold office, if –
(a) by a resolution passed by two-thirds majority of all the members of the executive council of the Federation it is declared that the President or Vice-President is incapable of discharging the functions of  his office; and
(b) the declaration is verified, after such medical examination as may be necessary, by a medical panel established under subsection (4) of this section in its report to the President of the Senate and the Speaker of the House of Representatives.

(2) Where the medical panel certifies in the report that in its opinion the President or Vice-President is suffering from such infirmity of body or mind as renders him permanently incapable of discharging the functions of his office, a notice thereof signed by the President of the Senate and the Speaker of the House of Representatives shall be published in the Official Gazette of the Government of the Federation.

(3) The President or Vice-President shall cease to hold office as from the date of publication of the notice of the medical report pursuant to subsection (2) of this section.

(4) The medical panel to which this section relates shall be appointed by the President of the Senate, and shall comprise five medical practitioners in Nigeria —
(a) one of whom shall be the personal physician of the holder of the office concerned; and
(b) four other medical practitioners who have, in the opinion of the President of the Senate, attained a high degree of eminence in the field of medicine relative to the nature of the examination to be conducted in accordance with the foregoing provisions.

This is to shoot down any move by Federal Executive Council to invoke  provisions of 144 (1) (a) of the constitution following calls for Yar’Adua’s resignation.

The Attorney-General of the Federation, Chief Michael Aondoakaa (SAN) reportedly raised the issue at the FEC meeting.

The FEC then passed a resolution to the effect that the President was still fit to continue governance even when none of them had seen him or seen  medical report to substantiate their position.
That was December 2, 2009.

Soon after the resolution was passed, the Attorney-General came out openly to say that the President was not only medically fit to rule but that he has the powers under the 1999 constitution to govern from anywhere and that he needed not cede powers to the vice president even if he is unavailable to perform the functions of his office.
The pronouncement was to back up the earlier resolution to mean that he is not just fit but that he is performing the functions of his office in Saudi Arabia through delegation of his powers.

But almost immediately, some senior lawyers like Mr O C J Okocha (SAN), Chief Adeniyi Akintola (SAN), among others disagreed with the Attorney-General’s position on the ground that there was no provision in the 1999 constitution that supported it. But Andoakaa (SAN)  was undaunted as he insisted that the constitution allowed Yar’Adua to rule from anywhere in the world through delegation of his presidential function to the vice president and his ministers..

It was at this point that Mr. Femi Falana on December 9, 2009 filed a suit before a Federal High Court, Abuja seeking the court’s interpretation of section 145 of the 1999 constitution.
The section 145 of the 1999 constitution reads:
“Whenever the President transmits to the President of 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”.

He sought to compel President Yar’Adua through the suit to hand-over powers temporarily to the Vice President pending when he would be medically fit to resume duties of his office. He had asked the court to move in his favour because the country was fast heading towards a major constitutional crisis. He said the then outgoing Chief Justice of Nigeria, Justice Idris Legbo Kutigi would retire December 31 and that there was no sitting President to swear in his successor, Justice Katsina Alu. He said that since 1951 when the first indigenous CJN was sworn into office till the time the 10th CJN, Justice Kutigi took his oath of office, he said the ceremony was performed by Mr President.

He said if there was no one to swear in the CJN,  the judiciary like the executive would also lose its head.
Besides, he said that the 2009 Appropriation Bill had been passed by the National Assembly awaiting the signature of the  President and that a number of government businesses were suffering owing to the absence of the president.

The looming  constitutional crises would be averted he said  if President Yar’Adua could do the right thing by transmitting a written declaration to the National Assembly in accordance with the provisions of section 145 of the 1999 constitution so that Jonathan could be sworn in as acting President to perform all presidential functions.

But instead of addressing the issue raised in the suit, the pro Yar’Adua group flew a kite saying that the Attorney-General of the Federation had written VP Jonathan a letter to begin to perform the functions of office of the President under section 5(1) of the 1999 constitution. The AG promptly denied writing any such letter if at all it existed.

Sunday Vanguard leant that he denied any link to such letter upon  legal advice from senior lawyers close to government.

The legal advisors allegedly asked the government to get somebody who would file a suit seeking interpretation of the sections 5(1) and 148(1) to legally achieve what the letter allegedly authoured by Andoakaa could not achieve.

While they were contemplating on the legal advice,  the President of the Nigerian Bar Association (NBA), Chief Oluwarotimi Akeredolu (SAN) also filed a suit at  the Federal High Court, Abuja seeking an order compelling President Yar’Adua to step down to avert  constitutional crises in the country.

In came a senior lawyer who gave them an idea of how to go about it. According to the sources, the Oath Act 2004 which allegedly empowered the outgoing CJN to swear in the incoming one was produced as what government would rely upon to perform the swearing in of the new CJN.

There was another legal advice that the Government should brief the press that the 2009 Appropriation Bill which ran into about 400 pages would be signed by the President in Saudi Arabia.
The said Bill was reportedly taken to Saudi Arabia where President Yar’Adua was said to have signed it into law while the then outgoing CJN, Justice Idris Legbo Kutigi swore in his successor on the strength of the said provisions of the Oath Act 2004.

Two days to the swearing in  of the new CJN, Mr Bamidele Aturu filed another suit on behalf of Hon Umar Farouk, former Minority Leader of the House of Representatives and a lawyer before the same  Federal High Court Abuja seeking a similar order compelling Yar’Adua to handover power to Jonathan.

Andoakaa who is the Attorney-General of the Federation  is the defendant in the three suits filed by Falana, NBA and Farouk while the Executive Council of the Federation  is  co-defendant in only Farouk’s case

The Chief Judge of the Federal High Court, Justice Dan Abutu assigned all the cases to himself and was flying from Lagos to Abuja to sit over the cases.
Andoakaa (SAN) first challenged the locus standi of all the plaintiffs in the three cases, and asked the court to strike them out for want of jurisdiction or dismiss them.
But when hearing started in the case, Justice Abutu suggested the consolidation of the three cases which they agreed to.

However, the cases could not be consolidated because briefs were yet to be exchanged in the cases.
The judge, upon the consent of parties in the cases also made an order rolling together both the objections and the substantive suits so that he would deliver a composite ruling on all the cases.
Andoakaa (SAN) later said he would no longer want to be a party to the arrangement by the judge to take both the substantive case and the objections together.

That was when Falana served seven questions otherwise called interrogatories in law on the Attorney-General. According to him since Andoakaa was still insisting contrary to his position that President Yar’Adua was fit as envisaged under section 144 of the 1999 constitution to continue in office,  it would be better if the conflict of facts could be resolved through the interrogatory since he approached the court through originating summons. In the main, Falana through the interrogatory, asked the court to compel Andoakaa to say whether the FEC relied on any medical report on December 2, 2009 to pass a resolution to the effect that President Yar’Adua is still fit to continue governance.

He also wanted him to annex a copy of such medical report to the interrogatory if it ever existed. Besides, he wanted him to produce before the court a separate medical report on the present health condition of Yar’Adua and state categorically when he would come back to the country to resume his duties. He also asked him to produce a copy of the 2009 Appropriation Bill allegedly signed into law by President Yar’Adua with a view to confirming whether the signature of the president was forged as alleged by some individuals and institutions.

The interrogatory rattled the Attorney-General and he flared up in court even as he promised that he would never answer the questions. He later filed a preliminary objection to the interrogatories and added that the objection must be taken first before the main case.

The answers to the questions, were to provide a legal framework on which direction the court should go on whether it is necessary or not to compel Yar’Adua to hand-over powers.

But before the court could sit on the issue of interrogatory, a pupil, Mr Christopher Onwuemeke, in the Chambers of an Abuja-based lawyer, Mr Amobi Nzelu had filed another suit before the same Federal High Court, Abuja seeking to compel Jonathan Goodluck to begin to perform the functions of the President in accordance with the provisions of sections 5(1) and 148 (1) of the 1999 constitution. The case was filed on a Friday, January 8, 2010 and served on the Attorney-General on a Monday, January 11, 2010.

Although the case came up for mention on January 11, it was adjourned till Wednesday January 13 in the open court at the instance of the Attorney-General of the Federation who claimed that he was served the processes in court that day at 9:00am. The Federal Government has dismissed suggestions that it was the main sponsor of the suit which led to the judgment that Vice President Jonathan should start performing the functions of the president without being made an acting President.

Written briefs were filed and the case was heard  between January 11 and 13.
In the judgment handed down by Justice Abutu in the case, he gave VP Jonathan the go-ahead to perform the functions of office of President Yar’Adua but in his capacity as vice president.

He  went outside the facts of the case to pronounce on section 145 of the 1999 constitution which was never an issue before him in  Christopher Onwyemeke’s  case.

The judgement seems to have weakened  the three pending cases earlier filed before him since last year in which full blown hearing is yet to commence. Justice Niki Tobi (JCA) now Justice of the Supreme Court, had warned  judges in the case of Ajikawo Vs Ansaldo Nigeria Limited thus: “First it is not the judicial function of a judge to embark on an unguarded voyage of discovery for facts which are not placed before him. “A trial judge is not Vasco Dagama. A trial judge is not Christopher Columbus. Coming nearer home, a trial judge is not Mungo Park.

“A trial judge is a person whose duty is to inquire only to the facts placed before him in court. He is forbidden by our law to go outside the facts in court to search for more facts with a view to discovering newer pastures i.e the greener pasture. “He cannot do such a thing. It is a delicate matter for a trial judge to raise issues suo motu and the less he does that, the better.

“He should try as much as it is humanly possible to avoid the arena of the litigation.
“He has no business flirting with the parties and the facts of the case. The law has placed him in a very high and exalted position and he should keep himself there.”

On the 14th January when the court resumed sitting to hear the three other cases which he had decided in Onwuyemeke’s  case, Falana shocked him. He asked the judge to disqualify himself on the ground that he had already descended into the arena and no longer fit to make any pronouncement on his case. Although Aturu did not withdraw his case, he faced the judge in the open court to say that his handling of the case was least expected. He imputed that he rushed the case which was allegedly sponsored by government and that he  delivered judgment on it on a day scheduled for mention.

He said  the case deserves to enter the Guinnes Book of Records. Messrs Femi Falana, Bamidele Aturu and Chief Oluwarotimi Akeredolu (SAN) also said that the verdict was useless as it did not address the main issue generating controversy in the country.

Falana, said if anything, the judgment had  stated the obvious and had  not changed anything because there is still a vacuum. Besides, he said the issue being raised by him and his colleagues to the effect that the constitution requires the President to hand over power anytime he is unavailable to perform the functions of his office is not addressed by the Abutu judgment.

He said if the judgment had resolved the major legal issues being raised, he would have withdrawn his case. “I would have withdrawn my case from the court this morning but because the essential issue being raised by us has been left unanswered, we are proceeding with this matter.

“And we are going to take it to its logical conclusion. This is because it goes beyond the person of the President. “Even at the state level, you know governors also do handover to their deputies.
“It was only the Court of Appeal following nullification of governorship election whereby the governors and their deputies were sent packing that we began to hear of acting governor.
“Even a governor of a state who would go on leave while his deputy was on leave could ask the speaker to take over the state in his absence.

But if we can settle this question of section 145 of the 1999 constitution, it would have implication for the state as well. “That is why this matter has to be pursued to its logical conclusion..

“My case has been strengthened by the interview credited to President Yar’Adua on the BBC where he himself, while appreciating the wishes of Nigerians categorically stated that he wouldn’t know when he would return to the country and resume his duty.

“That implies that he is presently not on duty and would not know when he is going to resume his duty. “So the constitution never envisaged that the President of Nigeria would not be in office for close to two months and yet not handover to the vice president who should man the country in an acting capacity.

“For what Justice Abutu simply said yesterday (Wednesday) which is not disputed by anybody is that the vice president can have functions of president delegated to him pursuant to section 5 of the constitution. “That has never been in dispute in all the cases filed in court..  In fact, all of us concede to that point.
“But what I have raised in my own case is whether you can have implied delegation of duty in a constitutional matter and the decision of our court which we have alluded to in our submission is that the delegation of the
statutory powers has to be in writing to avoid any abuse of power and there are a legion of cases on this.

“In fairness to Justice Dan Abutu, in the case he decided yesterday (Wednesday), he never, for one moment, said that President Yar’Adua has handed over to the vice president. He didn’t say so. He was very careful.

“No dispute has ever arisen on that matter. “The dispute that has arisen would have to be pursued to a logical conclusion so that we can have a judicial resolution on that,” he said.
The source however told Sunday Vanguard that the battle of wit has just begun because the architects of the various plans are back to the drawing board again to spring more surprises.

On the midnight of the 10th of June, 1993, Justice Bassey Ikpeme gave a wonderful judgment that was to change the face of Nigeria as a nation.

It was in the case brought before her by the Association for Better Nigeria, ABN, led by one Abimbola Davies.  The ABN had gone to court to challenge the propriety of holding the scheduled June 12, Presidential elections of 1993.  They wanted the courts to declare that the elections should not hold in 48hours time as scheduled.  Late in the night of June 10, 1993, a Thursday, a judgment was procured by ABN that the June 12 Presidential elections should not hold.

That set in motion confusion.  But because the intelligence at the disposal of the government of the day at that time was such that the National Republican Convention’s Bashir Tofa was deemed to be capable of winning the presidential elections, against the Social Democratic Party’s MKO Abiola, the government of the day allowed the elections to go ahead but not after a few Nigerians began to feel skeptical. But the real drama was to commence after the elections had been conducted and results were being declared.  Then President Ibrahim Babangida stepped aside and an Interim National Government, ING, was instituted.  It was to be the flurry of court cases against the legitimacy of ING that led Justice Dolapo Akinsanya to declare the ING was illegal.  Within hours, Sani Abacha struck and that was the end of the Third Republic.


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