A Federal High Court sitting in Abuja on Wednesday ruled that Vice-President, Goodluck Jonathan should start exercising the powers of president, pending the time President Umaru Yar’Adua would return from a hospital in Saudi Arabia where he has been undergoing treatment for the past 52 days.
This is coming just as the National Chairman of the Peoples Democratic Party, Chief Vincent Ogbulafor, said that Jonathan was capable to act as president pending Yar’Adua’s return.
Ogbulafor said this in Abuja on Wednesday while responding to questions from journalists at a press conference he addressed.
He said Yar’Adua would not have picked Jonathan as his deputy if he doubted his capability to act in his absence.
But the Chief Judge of the Federal High Court, Justice Daniel Abutu, who delivered the ruling in a case filed by a lawyer, Mr. Christopher Onwuekwe and argued by Mr. Amobi Nzelu, noted that Yar’Adua did not send any letter to the National Assembly to enable his deputy exercise the powers of the President pending his return from Saudi Arabia.
He said, “It is hereby declared that by the provision of Section 5(1) and 148(1) of the 1999 Constitution, the vice-president can, on the basis of an assignment or delegation by the President to him of the executive powers of the President under the constitution, exercise the executive powers vested in the President under the constitution in the absence of the President.
“It is further declared that the vice-president can, on the basis of the delegation or assignment to him by the President, of the President’s executive powers under the constitution, lawfully discharge any or all of the functions of the President under the constitution in the absence of the President in the interest of peace, order and good government, pending when the President returns to assume duty.”
For this anomaly, the Judge said that the vice-president could not become an acting president but could, however, carry out the functions of the president in his absence under Section 5 (1) of the 1999 Constitution.
Section 5 (1) of the constitution provides that subject to the provisions of this constitution, the executive powers of the federation:
(a) shall be vested in the President and may subject as aforesaid and to the provisions of any law made by the National Assembly, be exercised by him either directly or through the vice-president and ministers of the government of the federation or officers in the public service of the federation; and
(b) shall extend to the execution and maintenance of this constitution, all laws made by the National Assembly and to all matters with respect to which the National Assembly has, for the time being, power to make laws.
The court also noted that the Attorney-General of the Federation did not argue the issue of locus standi which was raised in his defendants’ written address in response to the plaintiff’s originating summons dated January 7, 2010.
For this reason, the court held that “the issue of locus has been abandoned.”
In the ruling, the chief judge emphasised that even before the suit, the vice-president had been performing the duties of the President as allowed by the constitution in Section 5 (1).
The defendants in the suit are the Attorney-General of the Federation and the Federal Executive Council.
The plaintiff had asked the court for an order directing Jonathan to begin to exercise the powers of President.
Responding to the ruling, the AGF, Mr. Michael Aondoakaa, said no other person could question the vice- president when he performed the functions of the President except the President himself.
Claiming that he had been vindicated, he said that with the ruling, the vice-president could continue to discharge the functions of the office of the President.
He said the vice-president could sign any bill or any papers which the President could sign.
As at Tuesday, Aondoakaa had appeared in person and led other lawyers in the ministry, including the Director of Civil Litigation in his office, Mrs. Agatha Mbamali, who handled the matter for the ministry last Monday.
In his defendants’ written address in response to the plaintiff’s originating summons, the AGF said that it was mischievous for the plaintiff to claim that Yar’Adua was temporarily incapable of performing the functions of his office since, according to him, the plaintiff lacked the constitutional capacity and competence to do so.
According to him, “We submit that the only body which may pronounce on the capacity of the President to discharge his functions is the Federal Executive Council as set up in Section 144 of the 1999 Constitution of the Federal Republic of Nigeria.”
Similarly, the AGF had told the court that “plaintiff’s affidavit discloses no specific allegation or any infringement or anticipated infringement on his right or a personal injury emanating from the defendant’s action.”
Counsel to the plaintiff, Nzelu, had argued that in the present circumstance where the President had not written any letter to the Senate and the House of Representatives informing them that his deputy should oversee the affairs of the state pending his return, a convenient way out of the problem would be for the court to make an order empowering the vice-president to exercise the powers of Yar’Adua pending his return to office.
The plaintiff, in an originating summons, had asked the court to declare that in the absence of the President following his ill-health and in view of Sections 5 (1) and 148 (1) of the 1999 Constitution, the vice-president could exercise the powers vested in the President.
In a 13–paragraph affidavit sworn to by the plaintiff himself, he averred that, “President Yar’Adua has travelled to Saudi Arabia since November 23, 2009 for medical treatment and has not retuned since then.”
Against this backdrop, the plaintiff, through Nzelu asked the court for the following reliefs:
“A declaration that by the combined provisions of sections 5 (1) and 148 (1) of the Constitution of the Federal Republic of Nigeria 1999, the vice-president can exercise the powers vested in the President in the absence of the President having regard to the circumstances of this suit.
“A declaration that the vice-president can lawfully discharge any or all the functions of the President in the absence of the President in the interest of peace, order and good governance of the federation pending when the President resumes and takes over.”
The plaintiff stated that the present scenario was an indication that there was no head of government and such a situation “has led to major crisis capable of threatening the corporate existence and stability of the Federal Republic of Nigeria.”
Following this, the plaintiff stated that the vice-president had “refused, neglected or failed” to exercise any or all the executive powers vested in the President for the president in his absence.
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