Abuja Lawyer Urges FHC To Declare Jonathan Acting President

San Francisco, Jan 17, (THEWILL) – The battle to empower Vice President Goodluck Jonathan with full President powers entered another gear on Friday when an Abuja based constitutional lawyer and activist, Mr. Kayode Ajulo filed a suit at the Federal High Court in Abuja urging the court to declare that President Umaru Musa Yar’Adua has duly informed the National Assembly of his inability to perform Presidential duties through his recent BBC interview.

President Yar’Adua had in a widely broadcast BBC interview on January 12, 2010, declared that he was ill and receiving treatment. He said he was in touch with the Vice president and would return to the country when his doctors certify him fit to resume work. In his BBC english language broadcast, which lasted for 51 seconds, he said:

“At the moment, I am undergoing treatment and (cough) I am getting better from the treatment I am getting.  I hope that -uh- very soon (cough) there will be tremendous progress, which will allow me to get back home. I wish at this stage to thank all Nigerians for their prayers (cough) for my good health and for their prayers for the nation. (Pause - for 2 seconds) As soon as my doctors discharge me, I will return to Nigeria to resume my duties.  I would also like to use this opportunity to wish our team, the Super Eagles, success in our Nations Cup of Nations matches in Angola.”

In the Hausa interview broadcast with BBC’s Mansur Liman, he said:

“Yar’Adua: My brothers in Nigeria, I want to inform you that I am getting better insha-Allahu. “By the grace of God, any time my doctors discharge me, I will come back home to Nigeria to continue my work. “I want to also thank all Nigerians for their prayers for me and for the nation. “I want to wish our team, the Super Eagles, victory in the African Cup of Nations that is going on in Angola. Thank you.”

BBC: Your Excellency, do you know when you will go back home, because Nigerians are worried about your condition. Do you know how long it will take you to go back home to continue with your work?

Yar’Adua: Insha-Allah, I am getting better. Anytime God heals me and I am strong, that is the time, insha-Allah, I will come back to Nigeria, anytime the doctors discharge me.

BBC: There are a lot of issues (in Nigeria), have you spoken with the Vice President and is everything going on well as you expect?

Yar’Adua: I spoke with him; I have been speaking with him. Everything is going on well in accordance with the constitution of the country.”

Based on Yar’Adua’s BBC broadcast, Ajulo is urging the court to determine as follows:

“A. WHETHER by the combined effect of the authorized and uncontradicted public declaration made by President Umaru Musa Yar’Adua,s broadcast and published through electronics and prints media such as the British Broadcasting Corporation, Thisday Newspaper, Punch Newspaper, Guardian Newspaper, The Nation Newspaper, Sun Newspaper, Vanguard Newspapers, 234 Next and other Newspapers that circulate nationally in Nigeria to the whole world including the President of the Senate and the Speaker of the House of Representatives on Tuesday, 12^th January, 2009 CONSTITUTE the requisite constitutional written declaration to the appropriate authorities under Section 145 of the 1999 Constitution in the circumstances of the President’s situation.

B. WHETHER by the compliance with the provision of Section 145 of the 1999 Constitution, the Vice President has become the Acting-President and therefore can discharges the functions of the office of the President and Commander-in-Chief of the Armed Forces of the Federation pending and until the President transmits another written declaration to the contrary.”

The plaintiff in the suit, which has Attorney General of the Federation as defendant also wants the court to declare as follows:

 “A. That by the combined effect of the authorized and uncontradicted public declaration made by President Umaru Musa Yar’Adua, broadcasted/published through electronics and prints media such as the British Broadcasting Corporation, Thisday Newspaper, Punch Newspaper, Guardian Newspaper, Nation Newspaper, Sun Newspaper, Vanguard Newspapers and other Newspapers that circulate nationally in Nigeria to the whole world including the President of the Senate and the Speaker of the House of Representatives on Tuesday, 12^th January, 2009 CONSTITUTE the requisite constitutional written declaration to the appropriate authorities under Section 145 of the 1999 Constitution in the circumstances of the President’s situation.

B. That by the compliance with the provision of Section 145 of the 1999 Constitution the Vice President has become the Acting-President and therefore discharges the functions of the office of the President and Commander-in-Chief of the Armed Forces of the Federation pending and until the President transmits another written declaration to the contrary.

C. Other orders as the Honourable Court may deem fit to make in furtherance of the above prayers and in the urgent circumstances of this case.”

Mr. Ajulo’s application was supported by a 12-paragraph affidavit duly deposed by one Martin B. Aduloju.

In his written address in support of the originating summons, Ajulo stated that:

“This application is supported by a 12 paragraph affidavit duly deposed to by one Martins B. Aduloju Esq of Counsel of the Plaintiff.

In the supporting affidavit it is averred the directive to close some public schools in Abuja for two weeks to host a three days Abuja Carnival adversely affected one of the Plaintiff’s ward as well as the Plaintiff being the guardian and sponsor of the said ward in the school.

Further, the Plaintiff, a lawyer and Civil rights activist stated he therefore wrote a letter of complaint to the President urging him to review the directive and despite the wide report of the letter in the Nigerian Media and delivery of same on 19^th November 2009 to the office of the President of Nigeria, and unlike the usual practice of correspondences with the Presidency, no response whatsoever was received as the President was reported to be unavailable due to ill health and has been flown out of the Country to King Faisal Specialist Hospital at Jeddah, Saudi Arabia on 23^rd November 2009.

He also averred that since no initial 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; and that the Vice President, Dr Goodluck Jonathan has since not been discharging the function of the office of the President including responding to/treating the request of the plaintiff in the said letter of his.

While this was going on, The President, Umaru Musa Yar’Adua, made an uncontradicted public statement which was broadcasted and published through electronics and print media such as the British Broadcasting Corporation and other Newspapers published nationwide in Nigeria and to the whole world on Tuesday, 12^th January, 2009.

The Plaintiff therefore urges the Court to declare that the authorized and uncontradicted broadcast and publication of the President as copy which was presented and debated at the both chambers of the National Assembly with the President of the Senate and the Speaker of the House of Assembly presiding constitutes a written declaration to appropriate authorities under Section 145 of the 1999 Constitution.

ISSUES FOR DETERMINATION

There are two issues for determination in this application which are humbly formulated as follows:

Whether the court ought to DECLARE that the combined effect of the public statement made by President Umaru Musa Yar’Adua which was broadcast/published through electronics and prints media to the whole world on Tuesday, 12^th January, 2009 CONSTITUTE the requisite constitutional written declaration to the appropriate authority under Section 145 of the 1999 Constitution.

Whether in the light of the issue as formulated in 3.1 above, it devolves on this Honourable court to make A DECLARATION that upon the compliance with the provision of Section 145 of the 1999 Constitution the Vice President has therefore become the Acting President pending contrary declaration from the President.

ARGUMENT OF ISSUES

ISSUE ONE:

“Whether the court ought to DECLARE that the combined effect of the public statement made by President Umaru Musa Yar’Adua which was broadcast/published through electronics and prints media to the whole world on Tuesday, 12^th January, 2009 CONSTITUTE the requisite constitutional written declaration to the appropriate authority under Section 145 of the 1999 Constitution.”

In the affidavit, the Plaintiff averred that on Tuesday 12^th of January 2010, President Umaru Musa Yar’Adua ultimately a pronouncement and that lead credence to the fact that the President is sick, not available in the country and that his return his uncertain subject to his doctors permission of which the whole world including the Plaintiff and the Defendants as well as the President of the Senate and the Speaker of the House of the Representatives listened to and read the declaration as broadcast, published in electronics and prints media.

The declaration by the President is as follows:

“At the moment I am undergoing treatment, and I’m getting better from the treatment. I hope that very soon there will be tremendous progress, which will allow me to get back home...As soon as my doctors discharge me, I will return to Nigeria to resume my duties...I wish, at this stage, to thank all Nigerians for their prayers for my good health, and for their prayers for the nation.”

The Plaintiff further stated unequivocally that the President’s declaration as published is not only read but has been presented and debated by the distinguished and Honourable members of both Chambers of the National Assembly on the 13^th and 14^th of January 2010 in which the President of the Senate and the Speaker of the House of the Representatives are in attendant and presided both Chambers respectively.

We therefore urge the Court to hold that the above mention broadcast and publication as authorized by the President fulfilled the provision of Section 145 of the 1999 Constitution.

Section 145 of the Constitution of the Federal Republic of Nigeria 1999 reads:

“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”.

My Lord, What this Plaintiff is seeking to uphold is the rule of law and application of the law as it is enshrined in the constitution.

If this is not done the nation, its people, its culture, its international relations and several governmental policies and budgetary responsibilities will be most unfortunately circumscribed and rendered impotent by the protracted absence and subsequent docility of the Presidency.

It is a clear intention of the constitution that “whenever” the president is “unable to discharge the functions of his office” for whatever reasons, the duties, functions and responsibilities of his office legally devolves on his deputy, shall act as Acting-President.

It is the law that our Court should use a liberal approach when interpreting the provisions of our constitution, particularly when the same constitution did not provides which format or the form the written declaration should be as well as the mode of the transmission of the written declaration of the President. 

Further, My Lord, it is envisaged and provided for by the Constitution that the President, upon being subsequently fit, can make a “declaration to the contrary” i.e., he can cause another contrary declaration to resume the functions of his office.

As of now, now the Vice President is still acting “for the President” and not as an ACTING PRESIDENT and we urge your lordship to hold that this is not in accordance with the provision of the Constitution.

It is our argument that, the combined effect of the declaration of the President from his health vacation in which he acknowledged his ill health and informed the whole nation that his return will depend ultimately on his consequent well being and the authorized broadcast and publication of same in the electronics and prints media and the presentation of copies of the publication of the declaration in written form to the notice of the President of the senate and Speaker of the House of Representatives is a compliance with the provisions of Section 145 of the 1999.

ISSUE TWO:

“Whether in the light of the issue as formulated in 3.1 above, it devolves on this Honourable court to make A DECLARATION that upon the compliance with the provision of Section 145 of the 1999 Constitution the Vice President has therefore become the Acting President pending contrary declaration from the President.”

We forcefully urge with respect that in accordance to our sacred Constitution whose provisions have been copiously rendered above, a most solemn duty is devolved on this court to make a pronouncement, a bold pronouncement to the effect that the Vice President is, in the circumstance of the fulfillment of the provision of Section 145 of the Constitution, the Acting President of the Federal Republic of Nigeria.

As the Supreme Court rightly observed in RT HON. MICHEAL BALONWU VS. GOVERNOR OF ANAMBRA (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”

CONCLUSION

We urge this Honourable court to grant the relief sought in this humble application in the interest of justice.”

The case has not been assigned to a judge and no date has been set for hearing.

Umaru Yar’Adua left Nigeria on November 23, 2009, for the King Faisal hospital in Jeddah, Saudi Arabia and has refused to formally notify the National Assembly about his hospitalization.

His action has unfortunately, brought the north and south debate to the burner again.

Last week, a Federal High Court ruled that the Vice President could exercise Presidential powers as delegated by the President, but cannot be acting President until the President writes the National Assembly.

There are three more cases in court challenging the President’s action.  One is by Mr. Femi Falana, while the other two are by the NBA and two former lawmakers.