Attorney-general Of The Federation & 2 Ors V Alhaji Atiku Abubakar & 3 Ors (2007)

LAWGLOBAL HUB Lead Judgment Report

S. A. AKINTAN, JSC. 

The 1st respondent, Alhaji Atiku Abubakar, commenced this action by an originating summons filed on 4th 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 resident, Federal Republic of Nigeria which commenced on 29th of 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:

A DECLARATION that the term of office of the Plaintiff as the Vice President of the Federal Republic of Nigeria which commenced from 29th of May, 2003 still subsists and does not terminate until 29th of 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 is 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 injunc-tion restraining the Defendants whether by themselves, agents, privies, servants, or otherwise howsoever from impugning or violating the Republic of Nigeria constitutional immunity conferred on the Plaintiff as the Vice President of the Federal

vii. AN ORDER of perpetual injunction restraining the 3rd, 4th, 5th and 6th 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 6th Defendant whether by itself, it’s 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 1st 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 4th January, 2007 by Umar Pariya, personal assistant to the 1st respondent, adequately set out the facts relied on by the 1st 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 21st of December, 2006, the Plaintiff traveled to United States of America (USA) on his Annual Leave.