|
IN THE FEDERAL HIGH COURT
HOLDEN AT
ABUJA
SUIT NO………………………
BETWEEN:
FESTUS KEYAMO
…………………………..…………………PLAINTIFF
AND
1. PRESIDENT OF THE SENATE
2. EXECUTIVE COUNCIL OF THE FEDERATION
……………DEFENDANTS
3. ATTORNEY-GENERAL OF THE FEDERATION
ORIGINATING SUMMONS
BROUGHT UNDER:
-
ORDER 3 RULE 6 & 9 OF THE FEDERAL HIGH
COURT, (CIVIL PROCEDURE) RULES, 2004.
-
INHERENT JURISDICTION OF THIS
HONOURABLE COURT
LET THE DEFENDANTS
(President of the Senate, Executive
Council of the Federation and
Attorney-General of the Federation) of
c/o Federal Ministry of Justice, Abuja
(for 2nd & 3rd
Defendants) and National Assembly
Complex, Three Arm Zone, Abuja (for 1st
Defendant) within thirty days after
service of this summons on them,
inclusive of the day of such service,
cause an appearance to be entered for
them to this summons which is issued
upon the application of FESTUS KEYAMO of
Festus Keyamo Chambers of 13 Nouakchott
Street, Near Bank PHB, Wuse Zone 1,
Abuja, who claims to be interested in
the following reliefs:
(1)
A DETERMINATION
of the question whether the Executive
Council of the Federation (the 2nd
Defendant herein) has not wholly or
substantially complied with the
provisions of Section 144(1)(a) of the
Constitution of the Federal Republic of
Nigeria, 1999, in its session of
Wednesday, February 10, 2010, when
its members unanimously
accepted the Resolution of both Houses
of the National Assembly which
acknowledged the incapacity of President
Umaru Musa Yar’Adua and mandated
Goodluck Jonathan to act as Acting
President.
(2)
CONSEQUENT UPON RELIEF 1 ABOVE,
a determination of the question whether
it is not mandatory for the President of
the Senate (1st Defendant
herein), to immediately appoint a
medical panel to verify the health
status of President Umaru Musa Yar’Adua
in view of the Provisions of Section
144(4) of the Constitution of the
Federal Republic of Nigeria, 1999.
(3)
A DECLARATION
that the Executive Council of the
Federation (the 2nd Defendant
herein) has wholly or substantially
complied with the provisions of Section
144(1)(a) of the Constitution of the
Federal Republic of Nigeria, 1999, in
its session of Wednesday, February
10, 2010, when its members
unanimously accepted the
Resolution of both Houses of the
National Assembly which acknowledged the
incapacity of President Umaru Musa
Yar’Adua and mandated Goodluck Jonathan
to act as Acting President.
(4)
A DECLARATION
that consequent upon relief 2 & 3 above,
it is mandatory for the President of the
Senate (1st Defendant
herein), to immediately appoint a
medical panel to verify the health
status of President Umaru Musa Yar’Adua
in view of the Provisions of Section
144(4) of the Constitution of the
Federal Republic of Nigeria, 1999.
(5)
A MANDATORY ORDER
compelling the 1st Defendant
(President of the Senate) to immediately
appoint a medical panel to verify the
health status of President Umaru Musa
Yar’Adua pursuant to the provisions of
Section 144(4) of the Constitution of
the Federal Republic of Nigeria, 1999.
(6)
SUCH FURTHER OR OTHER ORDERS
as this Honourable Court may deem fit to
make in the circumstances of this case.
Dated this …………………………. day of
…………………………………….. 2010
FESTUS KEYAMO, ESQ.
FESTUS
KEYAMO CHAMBERS,
13,
NOUAKCHOTT STREET,
NEAR
BANK PHB,
WUSE
ZONE 1, ABUJA.
08033371229, 08023388080
This Summons was taken out by FESTUS
KEYAMO, ESQ, legal practitioner for
the above-mentioned Plaintiff. The
defendants may appear hereunto by
entering appearance personally or by a
legal practitioner either bby filling
the appropriate forms (as in Order 7) in
response at the Registrar of the Court
where the summons was issued or by
sending them to that office by any of
the methodsn allowed by these Rules.
NOTE:
if the defendants do not respond within
the time at the place above mentioned,
such orders will be made and proceedings
may be taken as the Judge may think just
and expedient.
ON NOTICE TO:
1ST
DEFENDANT
PRESIDENT OF THE SENATE,
THE
SENATE,
NATIONAL ASSEMBLY,
THREE-ARM ZONE,
ABUJA.
2ND
& 3RD DEFENDANT
ATTORNEY-GENERAL OF THE FEDERATION,
MINISTRY OF JUSTICE,
ABUJA.
IN THE FEDERAL HIGH COURT
HOLDEN AT
ABUJA
SUIT NO………………………
BETWEEN:
FESTUS KEYAMO
…………………………..…………………PLAINTIFF
AND
1. PRESIDENT OF THE SENATE
2. EXECUTIVE COUNCIL OF THE FEDERATION
……………DEFENDANTS
3. ATTORNEY-GENERAL OF THE FEDERATION
AFFIDAVIT IN SUPPORT
I, Festus Keyamo Esq., Male,
Christian, Nigerian citizen,
legal practitioner of 13, Nouakchott
Street, Near Bank PHB, Wuse Zone 1,
Abuja do hereby make oath and state
as follows:
1.
I am a legal practitioner, newspaper
columnist, social crusader and critic.
2.
That I am also a registered voter in
Nigeria and a tax-payer.
3.
That as a legal practitioner and a
Nigerian, I write petitions on various
issues on a daily basis to the President
and Commander-in-Chief of the Armed
Forces and I desire these petitions to
be given prompt attention.
4.
That since
November 23, 2010,
President Umaru Musa Yar’Adua left the
shores of this country to Saudi Arabia
for medical treatment and has not been
seen since then.
5.
That as a result, my petitions have
remained on his desk without anyone
paying attention to them.
6.
In particular, my petition to Mr.
President, regarding how the present
Comptroller of Customs, Alhaji
Abudullahi Dikko forged his WAEC
Certificate and his Certificates from
Nigerian Institute of Management has not
been attended to and a questionable
character continues to preside over the
Nigerian Customs Service.
7. That I am from the Niger-Delta
Region, with myself, my immediate and
extended family residing in the said
region and I have a stake in the Amnesty
programme of President Umaru Musa
Yar’Adua.
8. That the said programme has
since been stalled in the absence of
President Umaru Musa Yar’Adua prompting
the resumption of hostilities in the
region thereby putting my life and that
of my immediate and extended family at
risk.
9.
As a result of all the above, I am
interested to see to it that someone
takes full charge, not as Acting
President, but as substantive President
and Commander-in-Chief of the Armed
Forces of the Federal Republic of
Nigeria.
10.
That due to the prolonged absence of
President Umaru Musa Yar’Adua, on
Tuesday, February 9, 2010,
the National Assembly passed Resolutions
mandating the Vice President, Goodluck
Jonathan to act as Acting-President.
11.
That the said Resolution reads in part:
“However, on 12 January, 2010, Mr.
President informed Nigerians through the
British Broadcasting Corporation (BBC),
that he was receiving medical treatment
in Saudi Arabia, and would only return
to Nigeria to resume his function as
President when his doctors so certify.”
Attached as a bundle and marked Exhibit
A is the letter from the National
Assembly certifying the Votes and
Proceedings of the Senate containing the
Resolution together with our application
letter for the said Votes and
Proceedings and the Votes and
Proceedings which the letter certifies.
12.
That on
Wednesday, February 10, 2010,
the 2nd Defendant, the
Executive Council of the Federation, at
its meeting, accepted the above
Resolution of the National Assembly.
Attached as Exhibit B is the
proceedings of the House.
13.
That the Resolution of the National
Assembly accepted and adopted by the 2nd
Defendant confirmed the incapacity of
President Yar’Adua, hence the mandate
given to Goodluck Jonathan to act in his
stead.
14.
That since then, the 1st
Defendant has refused to set up a
medical panel in compliance with Section
144 of the 1999 Constitution of the
Federal Republic of Nigeria to ascertain
the health status of President Yar’Adua.
15.
That I wrote to the 1st
Defendant informing him of the
development, but he has refused to act.
Attached as Exhibit C is a copy
of the said letter.
16.
That I swear to this affidavit in good
faith.
…………………………
DEPONENT
Sworn to at the Federal High Court
Registry, Abuja,
This ………… day of ……………………….. 2010.
BEFORE ME
COMMISSIONER FOR OATHS
IN THE FEDERAL HIGH COURT
HOLDEN AT
ABUJA
SUIT NO………………………
BETWEEN:
FESTUS KEYAMO
…………………………..…………………PLAINTIFF
AND
1. PRESIDENT OF THE SENATE
2. EXECUTIVE COUNCIL OF THE FEDERATION
……………DEFENDANTS
3. ATTORNEY-GENERAL OF THE FEDERATION
WRITTEN SUBMISSION IN SUPPORT OF
ORIGINATING SUMMONS
1.0 INTRODUCTION:
1.1 By an Originating Summons dated
the 22nd day of February,
2010, the Plaintiff seeks the following
reliefs:
“(1) A DETERMINATION of the question
whether the Executive Council of the
Federation (the 2nd Defendant
herein) has not wholly or substantially
complied with the provisions of Section
144(1)(a) of the Constitution of the
Federal Republic of Nigeria, 1999, in
its session of Wednesday, February 10,
2010, when its members unanimously
accepted the Resolution of both Houses
of the National Assembly which
acknowledged the incapacity of President
Umaru Musa Yar’Adua and mandated
Goodluck Jonathan to act as Acting
President.
(2) CONSEQUENT UPON RELIEF 1 ABOVE,
a determination of the question whether
it is not mandatory for the President of
the Senate (1st Defendant
herein), to immediately appoint a
medical panel to verify the health
status of President Umaru Musa Yar’Adua
in view of the Provisions of Section
144(4) of the Constitution of the
Federal Republic of Nigeria, 1999.
(3)
A DECLARATION that the Executive Council
of the Federation (the 2nd
Defendant herein) has wholly or
substantially complied with the
provisions of Section 144(1)(a) of the
Constitution of the Federal Republic of
Nigeria, 1999, in its session of
Wednesday, February 10, 2010, when its
members unanimously accepted the
Resolution of both Houses of the
National Assembly which acknowledged the
incapacity of President Umaru Musa
Yar’Adua and mandated Goodluck Jonathan
to act as Acting President.
(4)
A DECLARATION that consequent upon
relief 2 & 3 above, it is mandatory for
the President of the Senate (1st
Defendant herein), to immediately
appoint a medical panel to verify the
health status of President Umaru Musa
Yar’Adua in view of the Provisions of
Section 144(4) of the Constitution of
the Federal Republic of Nigeria, 1999.
(5)
A MANDATORY ORDER compelling the 1st
Defendant (President of the Senate) to
immediately appoint a medical panel to
verify the health status of President
Umaru Musa Yar’Adua pursuant to the
provisions of Section 144(4) of the
Constitution of the Federal Republic of
Nigeria, 1999.
(6)
SUCH FURTHER OR OTHER ORDERS as
this Honourable Court may deem fit to
make in the circumstances of this case”.
1.2 The Originating Summons is
supported by a 16-paragraph affidavit
with three annexures. We intend to rely
on all the paragraphs of the said
affidavit and the annexures.
2.0 FACTS
2.1 The facts of the case are as
enumerated in the affidavit in support
of the Summons. The gravamen of the
Plaintiff’s case is that President Umaru
Musa Yar’Adua left the country since
November 23rd, 2010,
and no one has seen him since then. In
particular, paragraphs 10 – 15 state as
follows:
“ (10) That due to the prolonged
absence of President Umaru Musa Yar’Adua,
on Tuesday, February 9, 2010, the
National Assembly passed Resolutions
mandating the Vice President, Goodluck
Jonathan to act as Acting-President.
(11)
That the said Resolution reads in
part:
“However, on 12 January, 2010, Mr.
President informed Nigerians through the
British Broadcasting Corporation (BBC),
that he was receiving medical treatment
in Saudi Arabia, and would only return
to Nigeria to resume his function as
President when his doctors so certify.”
Attached as Exhibit A, is a Certified
True Copy of the Votes and Proceedings
containing the Resolution.
(12)
That on
Wednesday, February 10, 2010, the 2nd
Defendant, the Executive Council of the
Federation, at its meeting, accepted the
above Resolution of the National
Assembly. Attached as Exhibit B is the
proceedings of the House.
(13)
That the Resolution of the National
Assembly accepted and adopted by the 2nd
Defendant confirmed the incapacity of
President Yar’Adua, hence the mandate
given to Goodluck Jonathan to act in his
stead.
(14)
That since then, the 1st
Defendant has refused to set up a
medical panel in compliance with Section
144 of the 1999 Constitution of the
Federal Republic of Nigeria to ascertain
the health status of President Yar’Adua.
(15)
That I wrote to the 1st
Defendant informing him of the
development, but he has refused to act.
Attached as Exhibit C is a copy of the
said letter.”
2.2 Based on the above facts, the
Plaintiff has approached this court for
the above reliefs.
3.0 ISSUES FOR DETERMINATION
3.1 From the foregoing, the following
issues arise for determination:
(1) WHETHER THE EXECUTIVE COUNCIL
OF THE FEDERATION (THE 2ND
DEFENDANT HEREIN) HAS NOT WHOLLY OR
SUBSTANTIALLY COMPLIED WITH THE
PROVISIONS OF SECTION 144(1)(A) OF THE
CONSTITUTION OF THE FEDERAL REPUBLIC OF
NIGERIA, 1999, IN ITS SESSION OF
WEDNESDAY, FEBRUARY 10, 2010, WHEN ITS
MEMBERS UNANIMOUSLY ACCEPTED THE
RESOLUTION OF BOTH HOUSES OF THE
NATIONAL ASSEMBLY WHICH ACKNOWLEDGED THE
INCAPACITY OF PRESIDENT YAR’ADUA AND
MANDATED JONATHAN TO ACT AS ACTING
PRESIDENT.
(2)
IF ISSUE 1 SUCCEEDS IN FAVOUR OF THE
PLAINTIFF, WHETHER IT IS NOT MANDATORY
FOR THE PRESIDENT OF THE SENATE (1ST
DEFENDANT HEREIN), TO IMMEDIATELY
APPOINT A MEDICAL PANEL TO VERIFY THE
HEALTH STATUS OF PRESIDENT YAR’ADUA IN
VIEW OF THE PROVISIONS OF SECTION 144(4)
OF THE CONSTITUTION OF THE FEDERAL
REPUBLIC
OF
NIGERIA,
1999.
(3)
WHETHER THE PLAINTYIFF IS ENTITLED TO
THE GRANT OF THE CONSEQUENTIAL RELIEFS.
4.0 TREATMENT OF ISSUES
4.1 ISSUE NO.1:
4.2 WHETHER THE EXECUTIVE COUNCIL
OF THE FEDERATION (THE 2ND
DEFENDANT HEREIN) HAS NOT WHOLLY OR
SUBSTANTIALLY COMPLIED WITH THE
PROVISIONS OF SECTION 144(1)(A) OF THE
CONSTITUTION OF THE FEDERAL REPUBLIC OF
NIGERIA, 1999, IN ITS SESSION OF
WEDNESDAY, FEBRUARY 10, 2010, WHEN ITS
MEMBERS UNANIMOUSLY ACCEPTED THE
RESOLUTION OF BOTH HOUSES OF THE
NATIONAL ASSEMBLY WHICH ACKNOWLEDGED THE
INCAPACITY OF PRESIDENT YAR’ADUA AND
MANDATED JONATHAN TO ACT AS ACTING
PRESIDENT.
4.3 Here we shall urge this
Honourable Court to hold that what
transpired on Wednesday, the 10th
of February, 2010,
amounts to a compliance with Section
144(1)(a) of the Constitution of the
Federal Republic of Nigeria, 1999.
4.4 For the avoidance of doubt,
Section 144(1)(a) states as follows:
“The President or Vice-President shall
cease to hold office, if-
(a)
by a resolution passed by two-thirds
majority of all the members of the
executive council of the Federation it
is declared that the President or
Vice-President is incapable of
discharging the functions of his
office.”
4.5 On
Wednesday, February 10, 2010,
during the Federal Executive Council
meeting, the Council passed a Resolution
accepting the Resolution of
both Houses of the National Assembly
which made Goodluck Jonathan the “Acting
President”. Now, what is
that “Resolution” which the Federal
Executive Council accepted and adopted
as its own?
4.6 The Resolutions which is
contained in our Exhibit A state in
part:
‘However, on 12 January, 2010, Mr.
President informed Nigerians through the
British Broadcasting Corporation (BBC),
that he was receiving medical treatment
in Saudi Arabia, and would only
return to Nigeria to resume his
functions as President when his
doctors so certify.”
(emphasis mine).
4.7 My Lord, we submit that the
phrase “to resume his functions”,
means at the moment,
he cannot discharge those functions and
would only resume
discharging the functions if his doctors
say so. “Would only” means
he is no longer in control of his own
destiny and he is unsure whether he will
resume his duties or not.
4.8 Further more, assuming the
Resolution of the National Assembly is
unconstitutional as some people say, by
accepting and adopting this Resolution
containing the President’s declaration
as its own, we submit that
the Federal Executive Council has passed
that Resolution afresh as its
own and has substantially
complied with section 144(1)(a) of the
1999 Constitution of the Federal
Republic of Nigeria which now makes the
Resolution constitutional as
far as the Council is concerned.
This is because, the only section in the
whole Constitution which gives power to
the Federal Executive Council to pass
this kind of Resolution on the medical
condition of the President is section
144(1)(a) quoted above. Therefore, by
adopting the Resolution of the National
Assembly, we contend that the Federal
Executive Council was exercising its
powers under section 144(1)(a) of the
Constitution.
4.9 We urge this court to so hold and
resolve ISSUE 1 in favour of the
Plaintiff.
5.0 ISSUE NO.2
5.1 IF ISSUE 1 SUCCEEDS IN FAVOUR
OF THE PLAINTIFF, WHETHER IT IS NOT
MANDATORY FOR THE PRESIDENT OF THE
SENATE (1ST DEFENDANT
HEREIN), TO IMMEDIATELY APPOINT A
MEDICAL PANEL TO VERIFY THE HEALTH
STATUS OF PRESIDENT YAR’ADUA IN VIEW OF
THE PROVISIONS OF SECTION 144(4) OF THE
CONSTITUTION OF THE FEDERAL REPUBLIC OF
NIGERIA, 1999.
5.2 Here we shall urge this
Honourable Court to hold that the Senate
President (1st Defendant) is
under a Constitutional duty to
immediately comply with Section
144(1)(b) and (4) of the Constitution of
the Federal Republic of Nigeria, 1999.
5.3 Sections 144(1)(b),2,3 and 4
state as follows:
“(b) the declaration is verified,
after such medical examination as may be
necessary, by a medical panel
established under subsection (4) of this
section in its report to the President
of the Senate and the Speaker of the
House of Representatives.
(2) Where the medical panel certifies in
the report that in its opinion the
President or Vice-President is suffering
from such infirmity of body or mind as
renders him permanently incapable of
discharging the functions of his office,
a notice thereof signed by the President
of the Senate and the Speaker of the
House of Representatives shall be
published in the official Gazette of
the Government of the Federation.
(3) The President or Vice-President
shall cease to hold office as from the
date of publication of the notice of the
medical report pursuant to subsection
(2) of this section.
(4) The medical panel to which this
section relates shall be appointed by
the President of the Senate, and shall
comprise five medical practitioners in
Nigeria…”
5.4 My Lord, the use of the word
“shall” in the above subsection 4
clearly shows that the 1st
Defendant has no discretion on the
matter, but that the provision is
mandatory. The word “shall” has been
judicially defined in the case of
EJILEMEDE V. OPARA (1998) 9 NWLR (Pt.
567) 587 @ 619 paras C-D state
as follows:
“The word “shall” in its ordinary sense
is a word of command; one which has
always or which must be given a
compulsory meaning as denoting
obligation. It has a peremptory meaning.
It is generally imperative and
mandatory. It has the invaluable
significance of excluding the idea of
discretion and imposes a duty which must
be enforced. Thus, if a statute provides
that a thing shall be done, the natural
and proper meaning is that a peremptory
mandate is enjoined.”
5.5 We therefore submit that it
behooves the 1st Defendant to
immediately appoint a team of five
medical practitioners in line with
section 144(4) of the Constitution of
the Federal Republic of Nigeria, 1999,
to immediately proceed to
Saudi Arabia
to ascertain the health status of Mr.
President and report back to the leaders
of the National Assembly.
5.6 We urge this court to resolve
ISSUE 2 in favour of the Plaintiff.
6.0
ISSUE NO.3
6.1 WHETHER THE PLAINTIFF IS
ENTITLED TO THE GRANT OF THE
CONSEQUENTIAL RELIEFS
6.2 We shall urge the court here to
grant the consequential reliefs.
6.3 In the case of UBALE
V. DADIYA & ORS. (2008) 15 NWLR
(PT.1111) 489 @ 495 the court
held as follows:
“A court has power to grant a
consequential relief. A proper
consequential relief need not be
claimed, even though it can relate to a
matter adjudicated upon. Such order is
made subsequent to a decision and it is
one which flows directly or naturally
from the decision which is inevitably
consequent to it. In the instant case,
the order for fresh election tribunal
was a consequential order which flowed
directly and naturally from the decision
of the tribunal that the election of 14th
April for Balanga South State
Constituency in Gombe State was
inconclusive.”
6.4 In order words, if this
Honourable Court grants our main reliefs,
it follows that the court is
automatically invested with the power to
halt the unconstitutional acts of the
Defendants., The consequential orders
which the Claimants seeks are as
follows:
“(1) A DECLARATION that the
Executive Council of the Federation (the
2nd Defendant herein) has
wholly or substantially complied with
the provisions of Section 144(1)(a) of
the Constitution of the Federal Republic
of Nigeria, 1999, in its session of
Wednesday, February 10, 2010, when its
members unanimously accepted the
Resolution of both Houses of the
National Assembly which acknowledged the
incapacity of President Umaru Musa
Yar’Adua and mandated Goodluck Jonathan
to act as Acting President.
(2)
A DECLARATION that consequent upon
relief 2 & 3 above, it is mandatory for
the President of the Senate (1st
Defendant herein), to immediately
appoint a medical panel to verify the
health status of President Umaru Musa
Yar’Adua in view of the Provisions of
Section 144(4) of the Constitution of
the Federal Republic of Nigeria, 1999.
(3)
A MANDATORY ORDER compelling the 1st
Defendant (President of the Senate) to
immediately appoint a medical panel to
verify the health status of President
Umaru Musa Yar’Adua pursuant to the
provisions of Section 144(4) of the
Constitution of the Federal Republic of
Nigeria, 1999.
(4)
SUCH FURTHER OR OTHER ORDERS as
this Honourable Court may deem fit to
make in the circumstances of this case.”
7.0 CONCLUSION
7.1 We urge this court to grant the
reliefs of the Plaintiff to save our
democracy from an avoidable collapse.
We are most obliged.
Dated this …………………………. day of
…………………………………….. 2010
FESTUS KEYAMO, ESQ.
FESTUS
KEYAMO CHAMBERS,
13,
NOUAKCHOTT STREET,
NEAR
BANK PHB,
WUSE
ZONE 1, ABUJA.
08033371229, 08023388080
ON NOTICE TO:
1ST
DEFENDANT
PRESIDENT OF THE SENATE,
THE
SENATE,
NATIONAL ASSEMBLY,
THREE-ARM ZONE,
ABUJA.
2ND
& 3RD DEFENDANT
ATTORNEY-GENERAL OF THE FEDERATION,
MINISTRY OF JUSTICE,
ABUJA.
|
