Attorney General of the Federation and Others v Alhaji Atiku Abubakar (Vice President, Federal Republic of Nigeria) and Others (SC 31/2007) [2007] NGSC 9 (19 April 2007)

 

(2007) 2 All N.L.R. 58

AKINTAN, JSC (DELIVERED THE LEADING JUDGMENT):- The first respondent, Alhaji Atiku Abubakar, commenced this action by an Originating Summons filed on 4 January 2007, at the Court of Appeal (hereinafter referred to as the court below). The action was instituted under the original jurisdiction of that court provided for in section 239(1) of the 1999 Constitution. His claim before the court is as follows:-

"1.    Whether having regard to the combined provisions of section 135 and 142(2) of the Constitution of the Federal Republic of Nigeria 1999, the plaintiff's term of office as Vice President, Federal Republic of Nigeria which commenced on 29 May 2003, still subsists.

2.      Whether having regard to the provisions of section 142, 143, 144 and 146 of the Constitution of the Federal Republic of Nigeria, 1999, or any other provisions of the Constitution of the Federal Republic of Nigeria 1999 or any law, the President of the Federal Republic of Nigeria can declare vacant the office of the plaintiff as Vice President of the Federal Republic of Nigeria.

3.      Whether having regard to the clear provisions of section 308 of the Constitution of the Federal Republic of Nigeria, 1999, the President of the Federal Republic of Nigeria can withdraw, tamper or interfere with or violate the immunity conferred on the plaintiff as the Vice President of the Federal Republic of Nigeria by that section AND OR direct his arrest or prosecution.

WHEREOF THE PLAINTIFF SEEKS THE FOLLOWING RELIEFS:-

i. A DECLARATION that the term of office of the plaintiff as the Vice President of the Federal Republic of Nigeria which commenced from 29 May 2003, still subsists and does not terminate until 29 May 2007.

ii. A DECLARATION that the President has no power under the Constitution of the Federal Republic of Nigeria, 1999 or any other law to declare the office or seat of the plaintiff as the Vice President of the Federal Republic of Nigeria vacant

iii. A DECLARATION that the purported declaration by the President of the Federal Republic of Nigeria of the office of the plaintiff as Vice President of the Federal Republic of Nigeria vacant is unconstitutional, illegal, null and void, and of no effect whatsoever.

iv. AN ORDER setting aside the withdrawal of all the rights, privileges, entitlements inclusive of all security details, staff of the plaintiff as directed by the President of the Federal Republic of Nigeria.

v. AN ORDER restoring all the rights, privileges, entitlements and or benefits howsoever of the plaintiff as the Vice President of the Federal Republic of Nigeria.

vi. AN ORDER of perpetual injunction restraining the defendants whether by themselves, agents, privies, servants, or otherwise howsoever from impugning or violating constitutional immunity conferred on the plaintiff as the Vice President of the Federal Republic of Nigeria.

vii. AN ORDER of perpetual injunction restraining the third, fourth, fifth and sixth defendants whether by themselves, their agents, privies, servants or otherwise howsoever from considering any nominee from the President to the office of the Vice President.

viii. AN ORDER of perpetual injunction restraining the sixth defendant whether by itself, its agents, privies, servants or otherwise howsoever from considering and or giving effect to the President's letter informing them of the declaration of the seat and or office of the plaintiff as the Vice President of the Federal Republic of Nigeria vacant."

The Originating Summons was supported with affidavit evidence in which the facts relied on by the plaintiff (now first respondent) in support of his claim were set out. A number of cuttings from newspaper publications were attached to the affidavits. Paragraphs 11, 12, 13, 14, 15, 17, 18, 20 and 21 of the affidavit deposed to on 4 January 2007, by Umar Pariya, personal assistant to the first respondent, adequately set out the facts relied on by the first respondent in support of his claim before the court. The said paragraphs 11, to 15, 17, 18, 20 and 21 of the affidavit read as follows:-

"11. That I know as a fact that on or about Thursday the 21 of December 2006, the plaintiff travelled to United States of America (USA) on his Annual Leave.

12.   That the plaintiff told me in his office at the Villa on Monday 18 of December 2006, at about 11am and I verily believe him that he sought and obtained the President's approval for the said annual leave.

13.   That on Saturday, 23 of December 2006, the President of the Federal Republic of Nigeria through one Mallam Uba Sanni, his Special Assistant on Public Affairs, announced the office of the plaintiff as Vice President of the Federal Republic of Nigeria vacant.

14.   That I know as a fact on Sunday, 24 December 2006, several National Dallies published the announcement as mentioned in paragraph 13 above.

15.   That I know as a fact in the same announcement that the said Mallam Uba Sanni stated the immunity conferred on the plaintiff as the Vice President of the Federal Republic of Nigeria by the Constitution of the Federal Republic of Nigeria, 1999 has also been withdrawn. Now shown to me and attached as Exhibits '1', '2', and '3' respectively are copies of Leaderships, This day and Guardian Newspapers which conspicuously published the said announcement.

16.   That the said Mallam Uba Sanni in justifying their position quoted sections 142, 143 and 146 of the Constitution of the Federal Republic of Nigeria, 1999 as enabling the decision.

17.   That in the same announcement and as published by several newspapers as referred to in paragraph 15 above including Exhibits '1', '2', and '3', it was stated that:-

i. the President has notified the third to sixth defendants of his decision declaring the office of the plaintiff vacant and to send a nominee to them to replace the plaintiff as Vice President of the Federal Republic of Nigeria.

ii. the President has withdrawn all privileges, entitlements, rights and benefits of the plaintiff as the Vice President of the Federal Republic of Nigeria.

18.   That I know as a fact that the consequent upon paragraphs 13, 14, 15, 16 and 17 above:-

i. all security details attached to the plaintiff were withdrawn.

ii. the official residence of the plaintiff was sealed off by combined team of armed military and policemen and other security agents.

iii. all official vehicles attached to the plaintiff were withdrawn.

iv. all staff attached to the plaintiff's office were redeployed.

(20) That I know as a fact that the first and second defendants have threatened to arrest the plaintiff anytime he arrives the country.

(21) That I know as a fact the term of office of the plaintiff as the Vice President of the Federal Republic of Nigeria terminates on the 29 of May 2007, and that time is of the essence of this action."

A further affidavit to the plaintiff's affidavit in support of the Originating Summons also deposed to by Umar Pariye was also filed. It was averred in paragraphs 5, 6, 7, 8 and 9 therein as follows:-

"5.    That I know as a fact that the first defendant herein on 27 December 2006, caused to be filed an Originating Summons No. CA/A/236/M/06 wherein it referred to the plaintiff herein as the 'former Vice President of Nigeria.'

6.      That I know as a fact that the official residence of the plaintiff was sealed off and remained so, after the filing of the said suit on 27 December 2006.

7.      That I know further that the plaintiff's vehicles remain withdrawn.

8.      That I am also aware that the aides of the plaintiff remain redeployed.

9.      That the above actions were taken and remained in force while the above mentioned suit filed by the first defendant subsisted.

A copy of the Originating Summons filed by the first defendant is attached hereto as Exhibit 'Z'."

In the Originating Summons attached to the said counter-affidavit, the reliefs sought from the court below in the suit by the present first appellant, as plaintiff, include a number of declaratory reliefs, an injunction restraining the first respondent, who was the second defendant in the suit, "from parading or further parading himself as Vice President of Nigeria." Also, an order of injunction restraining the Action Congress (sued as first defendant), the President of the Senate (sued as third defendant) among others, from recognising, treating or addressing the first respondent as the Vice President of the Federal Republic of Nigeria. A 34 paragraph affidavit filed in support of the said Originating Summons was also exhibited. The present first appellant, as the plaintiff in that suit, set out the facts relied on in support of his case in the suit.

The first appellant opposed the first respondent's claim as set out in the Originating Summons. A counter-claim was also filed by the said first respondent. The following reliefs were sought in the counter-claim:-

"RELIEFS SOUGHT BY THE COUNTER CLAIMANT

1.      Declaration that for actualisation of the policies of the sponsoring party and effective running of the office of the President of the Federal Republic of Nigeria, and pursuant to section 142(1) of the Constitution, a Vice President of the Federal Republic of Nigeria must belong to the same political party with the President.

2.      Declaration that the special relationship between the Vice President, the President and the sponsoring party by the combined effect of sections 14, 130, 131(c), 136(1) and 146(c) of the Constitution of the Federal Republic of Nigeria is one of one mindedness, loyalty, trust and mutual confidence and good faith which does not permit double loyalty.

3.      Declaration that the office of the Vice President under section 146(3)(a) can become vacant on the resignation of the Vice President.

4.      Declaration that the dumping of a sponsoring party for another party by a sitting Vice President coupled with condemnation of the President and the Government by a sitting Vice President is a breach of one mindedness, loyalty, trust and confidence expected of the Vice President and therefore constitutes constructive resignation, withdrawal and/or abandonment of the office of the Vice President.

5.      Declaration that by reason of the facts stated in (4) above, a sitting Vice President is estopped from denying that he has by his conduct resigned, withdrawn and/or abandoned the office of the Vice President.

6.      An order of injunction restraining the plaintiff by himself, his servant, privies or otherwise from parading or further parading himself as Vice President of Nigeria.

7.      An order of injunction restraining the second to sixth defendants jointly and or severally by themselves, their agents, servants, privies, or subordinates, whosoever described from recognising, treating or addressing the plaintiff as the Vice President of the Federal Republic of Nigeria.

AND TAKE NOTICE that the questions arising from this counter-claim are as follows, to wit:-

1.      Whether under and or by the combined effect of sections 14, 130, 131(c), 136(1), 142 (1) and 146(c) of the Constitution of the Federal Republic of Nigeria, the President of the Federal Republic of Nigeria can lawfully select or continue to maintain a decamped Vice President who has publicly condemned, the policy of the sponsoring party and embraced a new political party whose policies are hostile to the sponsoring party.

2.      Whether or not the office of the Vice President elected by virtue of section 142(1) of 1999 Constitution can become vacant upon the resignation of the Vice President.

3.      Whether having regard to section 146(a) of the Constitution of the Federal Republic of Nigeria, 1999 which entitles a Vice President to resign from the office of the Vice President, the dumping by the plaintiff of the sponsoring party for another political party coupled with public denunciation and condemnation of the sponsoring political party, the President and their Government do or do not constitute constructive resignation, withdrawal or abandonment of the office of the Vice President.

4.      Whether or not a sitting Vice President elected pursuant to section 142(1) of the 1999 Constitution who declares for another political party, denounced and condemned the sponsoring political party, the government and the President has by his conduct, breached his obligation of one mindedness, loyalty, mutual trust, confidence and good faith and has therefore resigned, abandoned and withdrawn from the office of the Vice President.

5.      Whether a sitting Vice President elected under section 142(1) of the 1999 Constitution who dumps the sponsoring party for another political party and publicly condemned the sponsoring political party, the President and the Government is not by reason of his conduct estopped from denying that he has not constructively resigned from the sponsoring party."

A 14 paragraph counter-affidavit deposed to by Bodunde Adeyanju, a Senior Special Assistant to the President, was also filed. The facts relied on in opposing the claim and in support of the counter-claim were set out in the counter-affidavit. Also filed and relied on is a further counter-affidavit deposed to on 15 January 2007, to which some exhibits were attached, was also filed and relied on by the first appellant.

The first respondent also filed a plaintiff's reply to first defendant's counter-affidavit to the plaintiff's Originating Summons.

The facts relied on by the first appellant in his defence to the Originating Summons and his counter-claim are set out in the 41 paragraph counter-affidavit of first defendant in opposition to the Originating Summons deposed to by Bodunde Adeyanju. In it, the averments in paragraphs 13 to 22 of the plaintiff's affidavit in support of the Originating Summons were specifically denied in paragraph 7. The deponent thereafter accused the first respondent of failure to disclose vital relevant facts to the court. Among the facts said to have been withheld are that the first respondent on 20 December 2006, openly declared for another political party, the Action Congress? (2) that he (first respondent) openly denounced and condemned the PDP, the PDP led Government, PDP policies and the President of the Country. (3) That he also failed to disclose that he said he was no longer a member of the PDP? (4) That he is now a member of Action Congress as well as its Presidential candidate and had been campaigning openly against the PDP Government and the President? and (5) That he failed to disclose that he had ceased to attend the Federal Executive Council meetings for over two months.

In paragraphs 10 to 25 of the same affidavit, it was averred, inter alia, that the first respondent had abandoned the PDP under which he was elected as Vice President and the President who nominated him as his associate for the Presidential elections of 1999 and 2003. That the first respondent abandoned the ideology of the PDP under which they were both elected into office and openly pursued a totally different ideology and openly criticised decisions of the Government of which he was a part. Paragraphs 34 to 41 of the same counter-affidavit read thus:-

"34. That the provision of section 146(3)(c) of the Constitution of the Federal Republic of Nigeria, 1999 envisages other grounds in which the position of the Vice President of Nigeria can be declared vacant other than section 143 and 144 of the Constitution.

35.   That the continued stay in office of a Vice President who has decamped from his sponsoring party to another party may lead to the making of a President from an unsuccessful political party whose policy is hostile to those of the ruling party.

36.   That by virtue of section 144(3)(a) of the Constitution the office of the Vice President can also become vacant by reason of resignation.

37.   That it is universally accepted that resignation could be formal and that resignation could also take the form of constructive withdrawal, abandonment, and relinquishment which the plaintiff has done.

38.   That the plaintiff is estopped from denying that by his conduct which is inconsistent with his obligation to the president he has withdrawn, abandoned, resigned or relinquished his position as Vice President.

39.   That section 142(1) of the constitution does not permit of a Vice President belonging to a different party from the party that elects him nor does it permit of double loyalty.

40.   That the obligation that arises from the special relationship of Vice President to the President and the party that elects it is that of one mindedness loyalty.

41.   That on the facts of the circumstances of this case, the applicant has voluntarily abandoned the PDP government, dumped the PDP and the President to which is an associate or has constructively resigned or withdrawn from the government of the President Obasanjo and PDP."

The first respondent filed a reply to the first appellant's counter-affidavit. It is a 27 paragraph titled "plaintiff's reply to first defendant's counter-affidavit to plaintiff's Originating Summons." He denied most of the defence put up in the counter-affidavit. He then went ahead to give reasons justifying some of the acts he took which were subjects of some of the claims levelled against him by the first appellant. He also alleged that the first appellant had continuously harassed him by causing the PDP to suspend him? by instituting action against him at the court below and by causing a criminal action to be filed against him at the Code of Conduct Tribunal. A number of documents were exhibited along with the said affidavit. Among such documents are a copy of the Originating Summons filed against the first respondent by the first appellant at the court below? copy of the charge preferred against the first respondent at the Code of Conduct Tribunal? letter from the PDP suspending the first respondent from the political party and cuttings from newspaper publications.

The matters thereafter came up for hearing before the court below presided over by the President of the Court. At the hearing on 7 February 2007, learned Counsel for the respective parties addressed the court before the court reserved its judgment.

In its reserved judgment delivered on 20 February 2007, the court granted the plaintiff's claim in part and dismissed the first defendant's counter-claim. In the lead judgment delivered by Abdullahi, PCA, the learned President concluded, inter alia, as follows:-

"All the questions formulated by the plaintiff having been resolved in his favour, his claim succeeds and the reliefs sought by him are granted as follows:-

(1)    It is hereby declared that the term of office of the plaintiff as the Vice President of the Federal Republic of Nigeria which commenced from 29 May 2003, still subsists and does not terminate until 29 May 2007.

(2)    Secondly, it is further declared that the President has no power under the Constitution of the Federal Republic of Nigeria, 1999 or any other law to declare the office or seat of the plaintiff as Vice President of the Federal Republic of Nigeria vacant.

(3)    Thirdly, it is declared that the purported declaration by the President of the Federal Republic of Nigeria of the office of the plaintiff as the Vice President of the Federal Republic of Nigeria vacant is unconstitutional, illegal, null and void and of no effect whatsoever.

The remaining reliefs sought by the plaintiff will not be acceded to in view of the step or steps being taken by the first defendant to restore the plaintiff's rights and privileges accorded to his office to him. The orders of injunction restraining the President of the Federal Republic of Nigeria, the second, third, fourth, fifth and sixth defendants when the rights and liberty of the plaintiff are no longer threatened and assailed by any of the defendants, including the President of the Federal Republic of Nigeria cannot be granted. Injunction is granted to protect the right or threatened right of the plaintiff, it will be refused since there is no evidence that the plaintiff's right is under any threat from the defendants in the light of the three declarations made in his favour in this judgment.

The counter-claim of the first defendant is not made out. Having resolved all the questions framed in the counter-claim against the first defendant it fails and is hereby dismissed in its entirety."

The appellant, as first defendant in the court below, was dissatisfied with the judgment and has filed an appeal against it to this Court. The second defendant (Inspector-General of Police) was also not satisfied with the judgment and he has also filed a notice of appeal against the judgment. A third notice of appeal was also filed by the sixth defendant ("INEC") as the third appellant in this Court. The parties filed and exchanged their briefs in this Court.

The first appellant formulated the following seven issues as arising for determination in the respect:-

"(1)   Whether or not the Court of Appeal was right in granting the plaintiff's reliefs Nos. 1, 11 and 111 when on the available evidence, which was not considered, there was no lis.

(11) Whether or not the Court of Appeal acting under section 239 of the Constitution of the Federal Republic of Nigeria is a trial court which is obliged to evaluate the evidence, identify issues in dispute and apply the findings on the law before arriving at any decision.

(111) Whether or not in construing the intention of the drafters of the Constitution in relation to section 142(1) of the 1999 Constitution in relation to section 142(1) of the 1999 Constitution, the Court of Appeal was not duty bound to consider the following:-

(a)    History of the Constitution provisions?

(b)    Social need, political realities and peculiarities? and

(c)    The need to avoid absurdity.

(111) If the answer to the above is in the affirmative, whether or not the Court of Appeal was right in its narrow approach to the section 142(1) of the 1999 Constitution to the effect that there is nothing in the provisions which precludes the President and the Vice President from continuing in office after dumping the political party that sponsored him to the office for another political party.

(IV) Whether or not the constitutional union between the Vice President and the President under section 142 of the Federal Republic of Nigeria automatically expires immediately after the election that brought both Vice President and President to Office.

(IVb) And if not, whether, the Constitutional union demands from the Vice President, undivided loyalty, trust and confidence as Vice President as long as he remains the Vice President.

(V)    Whether or not the Vice President having openly jettisoned the sponsoring party and defected to another party and condemned the President and the sponsoring party, has not by his conduct abandoned the sponsoring party, the government and the President.

(VI) Whether or not the Court of Appeal has jurisdiction under section 146(3)(c) to declare the sit of the Vice President vacant having regard to uncontradicted evidence that the Vice President has jettisoned the sponsoring party and declared for a political party (Action Congress) which was not even in existence at the time of election? 'castigated the President and condemned the policy and philosophy of the sponsoring party.

(VII) Whether the Court of Appeal's application of the respondent's right of freedom of association to the facts of this case was not wrong particularly as the issue of the said right was raised by court suo motu and without calling upon Counsel to address it."

The second appellant, on the other hand, formulated the following two issues as arising for determination in his own appeal:-

"(a)   Whether on a proper interpretation of the provisions of section 142(1)and 146(3)(c) of the 1999 Constitution of the Federal Republic of Nigeria, the office of the Vice President will be vacated if the Vice President publicly disassociates himself from the President of the Federal Republic of Nigeria and decamps to a rival political party other than one whose platform he was elected into office as the Vice President.

(b)    Whether the court below was entitled to add its own words in the exercise of its judicial function to interpret the provisions of the Constitution."

The third appellant also formulated three issues. They are as follows:-

"(a)   Whether the learned Justices of the lower court were right in holding that the provision of section 146(3)(c) of the 1999 Constitution is duplicitous or repetitious.

(b)    Whether on the state of pleadings and addresses of counsel for the parties the issue of the right to membership of association arose before the lower court to warrant the pronouncement of the lower court on same suo motu.

(c)    Whether or not the learned Justices of the court below were right in holding that the seat of the plaintiff/respondent had not become vacant by reason of his abandonment of the political party under whose platform he was elected into office by joining a rival political party."

It is quite a surprise that both the second and third appellants still considered it necessary to appeal against the judgment. This is because the portion of the claim that concerned them, viz, prayer for injunction to restrain them and the President from taking certain actions was refused and dismissed by the court. However, I believe that both the Grounds of Appeal filed by them and the issues formulated in their briefs are fully covered and subsumed respectively by the Grounds of Appeal filed by the first appellant and in the issues formulated in the first appellant's brief. I therefore believe that the treatment given to the first appellant's appeal will dispose of all the three appeals.

The first respondent, on the other hand, formulated the following one issue as arising for determination in the appeal.

"Having regard to the combined provisions of section 135, 142, 143, 144, 146, 308 and other relevant provisions of the Constitution of the Federal Republic of Nigeria, 1999 and admissible materials placed before the lower court, whether or not the lower court rightly granted the first respondent's relief and dismissed the appellants' counter-claim."

The second and third respondents formulated three issues in their joint brief and the appellant's issues are adopted in the fourth respondent brief. I need not reproduce the three issues formulated by the second and third respondents because I believe that the three issues are adequately covered by those formulated by the first appellant and the one issue formulated in the first respondent's brief.

Chief Afe Babalola, SAN, learned Senior Leading Counsel for the first appellant has argued both in his brief and in his oral presentation before us on the first appellant's Issue 1, that before a court could properly assume jurisdiction in a matter, the plaintiff must establish that there was a dispute between the parties which a court is required to settle. He referred to the affidavit evidence presented by the parties in this case and submitted that the plaintiff failed to show that there was a dispute between him and the President that could justify or support the first three reliefs claimed by the plaintiff. Reference is made in particular to the fact that what was relied on was newspaper publications? an interview credited to one Mallam Uba Sanni on the television on 24 December 2006 and an alleged notification to the third to sixth defendants that the President had declared the office of the plaintiff vacant and would send a nominee to them to replace the plaintiff as Vice President of the Federal Republic of Nigeria.

Reference is made to the reply by Mallam Uba Sanni to the effect that the statement credited to him in the television interview was quoted out of context. It is then submitted that the learned President of the Court of Appeal did not evaluate the evidence before him in the case and make findings on whether or not the President at anytime instructed Mallam Uba Sanni to make the alleged statement credited to him. Reference is also made to the statement made by Mrs Remi Oyo, the Head of Media of the Presidency, that Mallam Uba Sanni was not authorised to make the statement credited to him and her denial that the President had no intention of replacing the plaintiff as Vice President. It is then submitted that had the court below done its duty of evaluating the evidence as stated above, the court below would have found as a fact that there was no factual basis for the relief being sought.

The plaintiff's relief 2, in which he asked for declaration that the President has no power to declare the office vacant, is said to have raised no live issue in view of paragraph 31 of the appellant's affidavit to which there was no positive denial. The same is said of the plaintiff's reliefs 3. The court below is therefore said to have wrongly granted the three reliefs since the plaintiff failed to show that there existed between the parties that there was actual controversy which the court could be called upon to decide as a living issue.

Chief Wole Olanipekun, SAN, leading Senior Counsel for the first respondent, contended in reply that it is not correct that there is no lis or cause of action. He referred specifically to the Originating Summons filed by the first appellant as suit no. Ca/A/236/M/06 against the Action Congress, the first respondent and others as defendants which was one of the documents attached to the plaintiffs affidavit filed in reply to first defendant's counter-affidavit where the first respondent was described as "former Vice President of Nigeria." He submitted that although that suit was later withdrawn, the description given to the first respondent goes to show that there was a lis. He also referred to the various newspaper publications exhibited wherein the President was reported as having declared the office of the Vice President vacant. He submitted that all the said available evidence clearly show that there was cause of action.

It i