FORM 3 (O.3 r.9)
ORIGINATING SUMMONS
IN THE FEDERAL HIGH COURT
HOLDEN AT ABUJA
SUIT NO……………………………….
IN THE MATTER OF AN APPLICATION BY
BETWEEN
ATAGUBA ABOJE, ESQ………………………………………………PLAINTIFF
AND
- THE VICE-PRESIDENT OF THE FEDERAL REPUBLIC OF NIGERIA
- THE NATIONAL ASSEMBLY OF THE FEDERAL REPUBLIC OF NIGERIA ……….. DEFENDANTS
- THE HONOURABLE ATTORNEY-GENERAL OF THE FEDERATION
ORIGINATING SUMMONS
BROUGHT PURSUANT TO
- ORDER 3 RULE 6 OF THE FEDERAL HIGH COURT (CIVIL PROCEDURE) RULES 2009
- UNDER THE INHERENT POWERS OF THIS HONOURABLE COURT AS PRESERVED BY SECTION 6(6)(A) OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA 1999
LET THE 1 ST DEFENDANT OFSTATE HOUSE, ASO VILLA, ASOKORO, ABUJA FCT, 2 ND DEFENDANT OF NATIONAL ASSEMBLY COMPLEX, THREE ARMS ZONE, ABUJA FCT, 3 RD DEFENDANT OF FEDERAL MINISTRY OF JUSTICE, FEDERAL SECRETARIAT ANNEX, CENTRAL BUSINESS DISTRICT ABUJA FCT ALL IN THE FEDERAL CAPITAL TERRITORY, ABUJA, within 30 days of the service of this Summons on them, inclusive of the days of such service, cause a response to be made for them to this summons which is issued upon the application of the Plaintiff, of Suite A 24 Abuja Shopping Mall, Wuse Zone 3 , Abuja FCT for the determination of the following questions:
- Whether the Vice-president of the Federal Republic of Nigeria can validly act as the Acting-president under Section 145 of the Constitution of the Federal Republic of Nigeria 1999 and temporarily discharge the functions of the President of the Federal Republic of Nigeria, without the President, first transmitting to the President of the Senate and the Speaker of the House of Representative a written declaration that he is proceeding on a vacation or that he is unable to discharge the function of his office as provided under Section 145 of the Constitution of the Federal Republic of Nigeria 1999.
- Whether the Senate or House of Representative both of the National Assembly can by a resolution empower the Vice-president of the Federal Republic of Nigeria to act as Acting-president to temporarily take over and discharge the function of the President of the Federal Republic of Nigeria without the occurrence of the event under Section 145 of the Constitution of the Federal Republic of Nigeria 1999.
RELIEFS SOUGHT
WHEREUPON and in the foregoing premise, if the answers to the questions above are in the negative the Plaintiff seeks the following reliefs:
- A DECLARATION that the Vice-president of the Federal Republic of Nigeria can temporarily take over and discharge the function of the President the Federal Republic of Nigeria as Acting-president only in accordance with Section 145 of the Constitution of the Federal Republic of Nigeria 1999 .
- A DECLARATION that the taking over and the discharging of the function of the President of the Federal Republic of Nigeria by the Vice-president as Acting-president on the strength of the resolution of the National Assembly is an infringement of Section 1(1) of the Constitution of the Federal Republic of Nigeria 1999.
- A DECLARATION that the resolution of the National Assembly recognizing the Vice-president as the Acting-president of the Federal Republic of Nigeria is a violation of Sections 4 and 145 of the Constitution of the Federal Republic of Nigeria 1999 and to that extent and for all intents and purposes is unconstitutional, null, void and of no effect whatsoever.
- AN ORDER OF INJUNCTION restraining the Vice-president from temporarily taking over and discharging the function of the President of the Federal Republic of Nigeria as Acting-president except in accordance with Section 145 of the Constitution of the Federal Republic of Nigeria 1999.
- AN ORDER OF INJUNCTION restraining the National Assembly from recognizing the Vice-president as Acting-president of the Federal Republic of Nigeria except incompliance with Section 145 of the Constitution of the Federal Republic of Nigeria 1999.
Dated this 10 th day of February 2010
_______________________
THE HONOURABLE JUDGE
ATAGUBA S. ABOJE, ESQ
Counsel to the Plaintiff
A&G Solomon
Suite A 24 Abuja Shopping Mall
Wuse Zone 3 Abuja FCT
This summons was taken out by Ataguba Aboje, Esq of A&G Solomon® of suite A 24 Abuja Shopping Mall Wuse Zone 3 Abuja FCT, Legal Practitioners for the above-named Ataguba s. Aboje as Plaintiff.
The defendant may appear hereto by entering personally or by a Legal Practitioner either by filing the appropriate processes (as in Order 7) in response at the Registry of the Court where the summons was issued or by sending them to that office by any of the methods allowed by these Rules.
Note: If the Defendants does 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.
ADDRESS FOR SERVICE:
- THE VICE-PRESIDENT OF THE FEDERAL REPUBLIC OF NIGERIA
STATE HOUSE, ASO VILLA
ASOKORO
ABUJA FCT
NATIONAL ASSEMBLY COMPLEX
THREE ARMS ZONE,
ABUJA FCT
- THE HONOURABLE ATTORNEY-GENERAL OF THE FEDERATION
FEDERAL MINSTRY OF JUSTICE
FEDERAL SECRETARIAT ANNEX
CENTRAL BUSINESS DISTRICT ABUJA FCT
IN THE FEDERAL HIGH COURT
HOLDEN AT ABUJA
SUIT NO……………………………….
IN THE MATTER OF AN APPLICATION BY
BETWEEN
ATAGUBA ABOJE, ESQ………………………………………………PLAINTIFF
AND
- THE VICE-PRESIDENT OF THE FEDERAL REPUBLIC OF NIGERIA
- THE NATIONAL ASSEMBLY OF THE FEDERAL REPUBLIC OF NIGERIA ……..DEFENDANTS
- THE HONOURABLE ATTORNEY-GENERAL OF THE FEDERATION
AFFIDAVIT IN SUPPORT OF THE ORIGINATING SUMMONS
I, ATAGUBA SOLOMON ABOJE, ESQ. Christian, Nigeria citizen, a Legal Practitioner, of A&G Solomon, Suite A 24 Abuja Shopping Mall, Wuse Zone 3, Abuja FCT hereby make oath and aver as follows:
- That I am the plaintiff in the matter and a legal practitioner and a citizen of Nigeria.
- That as a legal practitioner I am under oath to uphold the Constitution of the Federal Republic of Nigeria and the rule of law.
- That I know as a fact the President of the Federal Republic is currently out of the country for medical treatment.
- That I know as a fact that the President of the Federal Republic did not transmit to the President of the Senate and the Speaker of the House of Representative a written declaration that he is proceeding on a vacation or that he is unable to discharge the function of his office as provided under Section 145 of the Constitution of the Federal Republic of Nigeria 1999.
- That the I know as a fact that the Vice-president can only temporarily assume the function of the President as Acting-president upon the fulfillment of Section 145 of the Constitution of the Federal Republic of Nigeria 1999.
- That I know as a fact and it has been widely reported in the media that on the 9 th of February 2010 the National Assembly passed a resolution recognizing the Vice-president as the Acting-president. (Attached and marked the text of the speech of the Senate President on the said resolution as ANNEXURE ‘A’ as published by Peoples Daily (an Online Newspaper) on 10 th February 2010).
- That I know as a fact that that resolution is contrary to the 1999 constitution of the Federal Republic of Nigeria.
- That I know as a fact that the Vice-president on the strength of this resolution has assumed the position of the Acting-president and commander-in-chief of the Armed forces of The Federal Republic of Nigeria. (Attached and marked as ANNEXURE ‘B’ is the full text of the Vice President’s acceptance speech broadcasted nationally as reported by Nigeria Champion Newspaper on 10 th February 2010)
- That I witnessed the Vice-president on NTA reading the text of the acceptance speech to act as president.
- That I know as a fact that this is contrary to the provision of the Constitution of the Federal Republic of Nigeria.
- That the Vice-president has taken control of the government of the Federal Republic of Nigeria contrary to the provisions of the 1999 Constitution.
- That as a Nigerian and a legal practitioner I have an interest and right to be governed in accordance with the Constitution and the rule of law.
- That I know as a fact that the Constitution of the Federal Republic of Nigeria 1999 is supreme over and above any person or interest.
- That it is in the interest of justice to grant this application.
- That I depose to this affidavit in good faith conscientiously believing the same to be true, and by virtue of the provision of the Oaths Act.
________________________
Deponent
SWORN TO at the Federal High Court Registry, Abuja FCT
This……………day of…………………………….2010
BEFORE ME
COMMISSIONER OF OATHS
IN THE FEDERAL HIGH COURT
HOLDEN AT ABUJA
SUIT NO……………………………….
IN THE MATTER OF AN APPLICATION BY
BETWEEN
ATAGUBA ABOJE, ESQ………………………………………………PLAINTIFF
AND
- THE VICE-PRESIDENT OF THE FEDERAL REPUBLIC OF NIGERIA
- THE NATIONAL ASSEMBLY OF THE FEDERAL REPUBLIC OF NIGERIA ……..DEFENDANTS
- THE HONOURABLE ATTORNEY-GENERAL OF THE FEDERATION
WRITTEN ADDRESS IN SUPPORT OF ORIGINATING SUMMONS
My Lord, we have an application brought by Originating Summons by which the plaintiff is praying this Honourable court for the determination of the following questions:
- Whether the Vice-president of the Federal Republic of Nigeria can validly act as the Acting-president under Section 145 of the Constitution of the Federal Republic of Nigeria 1999 and temporarily discharge the functions of the President of the Federal Republic of Nigeria, without the President, first transmitting to the President of the Senate and the Speaker of the House of Representative a written declaration that he is proceeding on a vacation or that he is unable to discharge the function of his office as provided under Section 145 of the Constitution of the Federal Republic of Nigeria 1999.
- Whether the Senate or House of Representative both of the National Assembly can by a resolution empower the Vice-president of the Federal Republic of Nigeria to act as Acting-president to temporarily take over and discharge the function of the President of the Federal Republic of Nigeria without the occurrence of the event under Section 145 of the Constitution of the Federal Republic of Nigeria 1999.
And whereof the plaintiff seeks the following reliefs:
- A DECLARATION that the Vice-president of the Federal Republic of Nigeria can temporarily take over and discharge the function of the President the Federal Republic of Nigeria as Acting-president only in accordance with Section 145 of the Constitution of the Federal Republic of Nigeria 1999.
- A DECLARATION that the taking over and the discharging of the function of the President of the Federal Republic of Nigeria by the Vice-president as Acting-president on the strength of the resolution of the National Assembly is an infringement of Section 1(1) of the Constitution of the Federal Republic of Nigeria 1999.
- A DECLARATION that the resolution of the National Assembly recognizing the Vice-president as the Acting-president of the Federal Republic of Nigeria is a violation of Sections 4 and 145 of the Constitution of the Federal Republic of Nigeria 1999 and to that extent and for all intents and purposes is unconstitutional, null, void and of no effect whatsoever.
- AN ORDER OF INJUNCTION restraining the Vice-president from temporarily taking over and discharging the function of the President of the Federal Republic of Nigeria as Acting-president except in accordance with Section 145 of the Constitution of the Federal Republic of Nigeria 1999.
- AN ORDER OF INJUNCTION restraining the National Assembly from recognizing the Vice-president as Acting-president of the Federal Republic of Nigeria except incompliance with Section 145 of the Constitution of the Federal Republic of Nigeria 1999.
My Lord, accompanying and in support of this application is a 15 paragraph affidavit sworn to by the plaintiff, on which we shall rely on to argue this application.
The plaintiff has formulated a sole issue for determination:
- Whether the literal rule of interpretation is the appropriate cannon of interpretation for the words of Section 145 of the Constitution of the Federal Republic of Nigeria 1999.
TREATMENT OF ISSUE
My Lord, the courts have always held that the cannon of interpretation of the Constitution is the literal rule of interpretation where the words of a statute are clear and explicit. The court is however allowed to employ other rules of interpretation where the literal interpretation would lead to absurdity, ambiguity or injustice. In UGWU V. ARARUME (2007)12 NWLR (PT1048) AT P.405 PP.437-438 PARA G-A, the court stated that:
It is when the literal meaning of the statute result in ambiguity or injustice that the judge may seek internal aids within the body of the statute itself or external aids from the statute in pari materi in order to resolve the ambiguity or avoid doing injustice. This is an exception to the rule rather than the rule. Thus in the construction of statute the primary concern of the judge is the attainment of the intention of the legislature. If the language used by the legislature is clear and explicit, the judge must give effect to it because in such a situation, the words of the statute speak the intention of the legislature.
The court on P, 437 Para C-D further stated,
…the meaning of the underlying principle in the interpretation of statute is that the meaning of the statute or legislation must be collected from the plain and unambiguous expression or words used therein rather than from any notion that may be entertained as to what is just and expedient. The literal rule of interpretation must be followed unless it would lead to absurdity and inconsistency with the provision of the statute as a whole, this is because it is the duty of the judge to construe the words of a statute and give those words their appropriate meaning and effect. It is not the duty of the judge to interpret a statute to avoid its consequence.
My Lord, we submit that Section 145 of the Constitution of the Federal Republic of Nigeria 1999 which we seek this Honourable court’s interpretation is unambiguous and explicit and should be giving it literal and ordinary meaning.
My Lord, Section 145 of the Constitution of the Federal Republic of Nigeria 1999 provides for the procedure by which a Vice-president may become empowered to assume the function of the President as Acting-president. For ease of reference below is a reproduction of Section 145 of the Constitution of the Federal Republic of Nigeria 1999.
Whenever the President transmits to the President of the Senate and the speaker of the House of Representative a written declaration that he is proceeding on a vacation or that he is unable to discharge the function of his office, until he transmit to them a written declaration to the contrary such function of government shall be discharged by the Vice-president as Acting President. (underlined portions mine)
This section is explicit in that the President himself must TRANSMIT both to the Senate President and the Speaker of the House of Representatives a WRITTEN DECLARATION stating that he is:
- Proceeding on vacation; or
- Unable to discharge the function of his office.
And until this is done, the Vice-president cannot assume the position of an Acting-president.
The constitution is so clear and specific on the procedure that must be followed.
Any declaration under Section 145 must be in writing and addressed specifically to the Senate President and the Speaker of the House of Representative and the contents of the letter must amongst others state either of the following, that the President is proceeding on vacation or that he is unable to discharge the duties of his office. Anything short of this is contrary to the clear provision of Section 145 of the Constitution of the Federal Republic of Nigeria 1999.
The incongruous statement of the Senate President that the Declaration under Section 145 was transmitted on BBC by the President (see ANNEXURE ‘A’) is not sustainable by the clear provision of Section 145 of the Constitution of the Federal Republic of Nigeria 1999 or any portion thereof, as by no stretch of the imagination would the legislature have contemplated under any circumstance that such declaration would be made to the National Assembly over a foreign radio or television broadcast. To hold otherwise we submit, would be absurd and unreasonable.
We therefore submit that, the assumption of the Vice-president as Acting-president is without basis and lacks legal justification as this position is predicated on the fulfillment of the Section 145 by the President and NOT the passing of a resolution by the National Assembly, who by Section 4 of the Constitution of the Federal Republic Nigeria 1999 are charged only with the duty of making laws for the peace, order and good governance of the Federation. Clearly, also there are laid down procedures for law making and a mere resolution cannot carry the force of law.
We further submit that the procedure adopted in taking over and discharging of the function of the President by the Vice-president as Acting-president is unconstitutional and a violation of Section 1(1) of the Constitution of the Federal Republic Nigeria 1999.
We humbly urge, my Lord, in the light of the grave constitutional breaches to grant the reliefs sought by the plaintiff and preserve the supremacy of the constitution and the rule of law in order to prevent anarchy and chaos in the polity.
DATED 10 TH February 2010
ATAGUBA S. ABOJE, ESQ
COUNSEL TO THE APPLICANT
A&G SOLOMON
SUITE A 24 ABUJA SHOPPING MALL
WUSE ZONE 3 ABUJA
08036676032
aandglawchambers@gmail.com
IN THE FEDERAL HIGH COURT
HOLDEN AT ABUJA
SUIT NO……………………………….
IN THE MATTER OF AN APPLICATION BY
BETWEEN
ATAGUBA ABOJE, ESQ………………………………………………PLAINTIFF
 AND
- THE VICE-PRESIDENT OF THE FEDERAL REPUBLIC OF NIGERIA
- THE NATIONAL ASSEMBLY OF THE FEDERAL REPUBLIC OF NIGERIA ……..DEFENDANTS
- THE HONOURABLE ATTORNEY-GENERAL OF THE FEDERATION
AFFIDAVIT OF URGENCY
I, ATAGUBA SOLOMON ABOJE, ESQ. Christian, Nigeria citizen, a Legal Practitioner, of A&G Solomon, Suite A 24 Abuja Shopping Mall, Wuse Zone 3, Abuja FCT hereby make oath and aver as follows:
- That I am the plaintiff in the matter and a legal practitioner and a citizen of Nigeria.
- That as a legal practitioner I am under oath to uphold the Constitution of the Federal Republic of Nigeria and the rule of law.
- That I know as a fact that the Vice-president has taken control of the government of the Federal Republic of Nigeria contrary to the provisions of the 1999 Constitution.
- That the action of the Vice-president taking control of the government of the Federal Republic of Nigeria contrary to the provisions of the 1999 Constitution is capable of throwing the country into anarchy and chaos.
- That as a Nigerian and a legal practitioner I have an interest and right to be governed in accordance with the Constitution and the rule of law.
- That I know as a fact that the Constitution of the Federal Republic of Nigeria 1999 is supreme over and above any person or interest.
- That it is in the interest of justice to hear this application expeditiously.
- That I depose to this affidavit in good faith conscientiously believing the same to be true, and by virtue of the provision of the Oaths Act.
________________________
Deponent
SWORN TO at the Federal High Court Registry, Abuja FCT
This……………day of…………………………….2010
BEFORE ME
COMMISSIONER OF OATHS
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