ATTORNEY-GENERAL OF THE FEDERATION and 2 OTHERS v ALHAJI ATIKU ABUBAKAR (VICE PRESIDENT, FEDERAL REPUBLIC OF NIGERIA) and 3 OTHERS (SC 31/2007) [2007] NGSC 177 (20 April 2007)

ISSUES

Whether the fact that the President had not actually declared the seat of the Vice President vacant meant that there was no live issue (lis) between the parties which the Court could be called upon to decide.

Whether by reason of his defection from the People's Democratic Party ("PDP"), the party on whose platform he came to office with the President, to the Action Congress, the first respondent had vacated the office of the Vice President.

Whether, having regard to sections 135, 142, 143, 144, 146, 308 and other provisions of the 1999 Constitution, the Court of Appeal correctly granted the first respondent relief, restoring him to office, and dismissed the appellant's counter-claim that the office of the Vice President be declared vacant.

Whether the respondent should be deemed to have resigned in terms of section 146(3)(c) of the Constitution on account of his having joined another political party and opposed the President.

Whether the Court of Appeal in properly evaluating all the evidence before it, had identified the issues in dispute and had properly applied its findings of law before arriving at a decision.

Whether the Court of Appeal would have come to a different conclusion if it had considered all the evidence.

Whether in construing the intention of the drafters of the Constitution in relation to section 142(1), the trial court was bound to consider the history of the constitutional provisions, the societal need for which the law was made and the need to avoid absurdity.

Whether the narrow interpretation of section 142(1) of the Constitution defeated the intention of the makers of the Constitution.

Whether the failure of the trial court to ascribe a definite meaning to the word "associate" in section 142(1) of the Constitution was erroneous.

What would be the legal and constitutional consequences when the relationship between the President and Vice President broke down and they could not operate harmoniously as envisaged under the Constitution?

FACTS

Alhaji Atiku Abubakar's, the first respondent, claim arose from disagreement and controversy between him as Vice-President of Nigeria and the President of Nigeria and the first respondent as Vice President of Nigeria.

He claimed that, on 23 December 2006, the President's Special Assistant on Public Affairs, Mallam Uba Sanni, had announced that the office of the Vice President of Nigeria was vacant, and the announcement was reported in several newspapers. It had also been announced that his immunity as Vice President from prosecution had been withdrawn and that all his privileges, entitlements, rights and benefits as Vice President had been withdrawn. The first respondent further alleged that his official residence had been sealed off by police and soldiers and that all vehicles have been removed and the staff attached to his office redeployed.

The first respondent claimed further that the President had accused him of having concealed the fact that he had abandoned the PDP, of which he and the President had been members at the time of election, and had openly declared allegiance to another political party, the Action Congress; that he had abandoned the ideology of the PDP and had openly denounced and condemned the PDP and criticised the decisions of the Government of which he was a part.

In reply, the appellant accused the first respondent of having concealed the fact that he had switched allegiance to another political party (Action Congress), that he had campaigned for that party, condemned the government and failed to attend Federal Executive Council meetings for two months. In other words that he had deserted the very cause that he represented.

The first respondent brought the action by Originating Summons filed in the Court of Appeal pursuant to the provisions of section 239 of the 1999 Constitution, seeking orders that the declaration of the President that the office of Vice President was vacant and that he had been removed from the office of Vice President was unlawful. He sought to be restored to the office and claimed a perpetual injunction restraining the appellants from violating or impugning his constitutional immunity as Vice President.

In a counter-claim, the appellant sought an order declaring that the President and Vice President should both belong to the same political party, that the office of the Vice President could become vacant upon the Vice President resigning from the sponsoring political party and that the first respondent be restrained from parading himself as the Vice President.

The Court of Appeal, in the exercise of its original jurisdiction, entered judgment in favour of the first respondent, declaring that his office as Vice President still subsisted, that the appellants had no power to declare the office vacant and that the declaration that the office was vacant was unconstitutional, null and void.

The first appellant appealed to the Supreme Court.

HELD

Leading judgment by Sunday Akinola Akintan JSC; with S.U. Onu; D. Musdapher; W.S.N. Onnoghen; F.F. Tabai; I.T. Muhammad; P.O. Aderemi, JJSC (unanimously dismissing the appeal)

1.      Essentials of cause of action (lis)

A lis or cause of action is constituted by a bundle of facts which the law would recognise as giving the plaintiff a right of action. Such combination of facts would consist of two elements: the wrongful act of the defendant and the consequential loss or damage. Lis therefore means controversy or dispute. The person seeking to invoke judicial power must show that his personal interest would be immediately affected by the action and that the injury sustained was over and above the interest of the general public. Per Akintan, JSC at 70.

2.      Unhealthy relationship between President and Vice President gave rise to cause of action (lis)

The facts disclosed that there had been an unhealthy relationship between the President and first respondent in which the first respondent had been declared the "former Vice President" and in which his office had been publicly declared vacant. The first respondent had clearly established that he had a good cause of action to warrant instituting the action, and the appellant's claim that no lis existed failed. Per Akintan, JSC at 70.

3.      Trial court in its judgment duly resolved all the issues

All the issues raised by the parties were duly resolved in the judgment of the trial court, and all the inferences made by the Court were supported by evidence. The fact that the trial judge did not repeat the evidence led in support of a particular finding or state that he believed or disbelieved a particular piece of evidence was not enough to displace this conclusion. Per Akintan, JSC at 70.

4.      Clear words in the Constitution given their ordinary meaning

In interpreting the Constitution, words are given their ordinary meaning, unless used in a technical sense, when they are afforded their technical meaning. Phrases and sentences are construed according to the ordinary rules of grammar. If there is nothing to modify, alter or qualify the language which the statue contains, it must be construed according to its ordinary and natural meaning. Such interpretation must be in the context of a liberal understanding that takes into account the circumstances of the nation's people. Per Akintan, JSC at 70.

5.      Duty of judges to expound, and not expand the law

The duty of judges is to expound the law as it is by the clear words of the law-makers. Judges' duty did not extend to expanding the law; that is the exclusive function of the law-makers. Per Aderemi, JSC at 155; Per Onu, JSC at 94.

6.      Words in section 142(1) of Constitution clear and unambiguous

The words in section 142(1) of the Constitution are clear and unambiguous and do not call for any interpretation other than the application of their literal and plain construction. The section envisaged a united presidency between the President and Vice President throughout the tenure. Per Onnoghen, JSC at 105.

7.      Constitution envisaged harmonious political relationship between President and Vice president

The President nominated the Vice President from the same political party as the President and the Constitution assumed that the President and Vice President should maintain the same relationship throughout their term of office. The unity contemplated transcended the fact that the Vice President was not voted for in a separate election. Per Akintan, JSC at 70.

8.      Constitutional roles of offices of President and Vice President

The offices of the President and Vice President are creations of the Constitution (sections 130 and 141 respectively). The executive powers of the Federation are vested in the President by section 5(1) of the Constitution. While the Constitution created both offices, the executive powers vested only in the President. The Nigerian Constitution did not assign any specific executive role to the Vice President. His role was limited to what the President assigned to him. Per Akintan, JSC at 70.

9.      President has no constitutional powers to remove the Vice President

The Vice President can not be removed by the President. The process for removal was contained in section 143 of the Constitution, through the process of impeachment by the National Assembly. Section 143(10) specifically ousted the courts from interfering in the proceedings leading to the impeachment of holders of the two offices for gross misconduct, as defined in section 143(11). Per Akintan, JSC at 70.

10. Vice President should not criticise Government or join another party

The trial court was therefore incorrect to hold that the first respondent could, while Vice President, openly criticise the same government or join another political party and campaign for the office of President. His right to freedom of association did not stretch that far. He was required to first resign. Per Akintan, JSC at 70.

11. Court had no power to pronounce on the behaviour of the Vice President and declare office vacant

It was not the duty of the Court to pronounce on the behaviour of the Vice President and declare his office vacant. That decision and action lay with the National Assembly. Per Akintan, JSC at 70.

12. Office of Vice President created by the Constitution

The office of the Vice President is created by the Constitution. His appointment and removal from office are also provided for, in Constitution. Per Akintan,