Alhaji Atiku Abubakar V. The Attorney-general Of The Federation & Ors (2007)
LAWGLOBAL HUB Lead Judgment Report
L. KUTIGI, AG. C.J.N.
By section 239(1)(b) & (c) of the 1999 Constitution, original jurisdiction is conferred on the Court of Appeal to “hear and determine any question as to whether:
(b) the term of office of the President or Vice-President has ceased; or (c) the office of President or Vice-President has become vacant.
The plaintiff by originating summons pursuant to the said section 239 applied to the Court of Appeal for the determination of the following (3) questions –
“I. 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 terms of office as Vice-President, Federal Republic of Nigeria which commenced on 29th of May, 2003 still subsists.
- Whether having regard to the provisions of sections 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.
- 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.”
Without attempting to answer the questions placed before it, the Court of Appeal purportedly acting under section 295(3) of the Constitution suo moto proposed to counsel on both sides to refer the same questions set out above to the Supreme Court to answer.
Counsel all agreed with the proposal. These questions are repeated on page 206 of the record. The questions now is – Can the Court of Appeal validly transfer the matter or suit properly instituted before it to this court for hearing or determination The answer in my view is clearly in the negative. All the (3) questions cannot be said to have arisen from the proceedings. The questions are the very subject matter of the suit. The questions should therefore not be answered by this court (see for example Gamioba v. Esezi II (1961) All NLR 584; (1961) 2 SCNLR 237; Bamaiyi v.Att. Gen. of Federation (2000) 6 NWLR (Pt. 661) 421; Ijegwu v. Federal Republic of Nigeria (2001) 13 NWLR (Pt. 729) 103). For a constitutional question to “arise in the course of proceedings”, it must not have formed part of the question for determination in the original suit as in this case. It must have arisen “ex tempore” or “ex improviso” (see Bamaiyi v. Att. Gen. of Federation (supra). Section 295(3) of the Constitution does not confer upon the Court of Appeal power to transfer a cause to the Supreme Court for hearing or determination. And I so hold. I commend counsel on both sides for seeing with this court that the alleged reference is irregular as it does not comply with the law. They are right. The reference under consideration is therefore incompetent. It is hereby struck-out. The suit is in the interest of justice remitted to the Court of Appeal, Abuja for immediate determination as time is fast running out. I make no order as to costs.
SC.7/2007