AG Federation v Atiku Abubakar: Facts, Issues & Decision of Court

The case of Attorney General of the Federation v Atiku Abubakar SC 31/2007 (AG Federation v Atiku) is one of the important cases in the history of Nigeria. In this case the Supreme Court of Nigeria was to make a decision on whether the president of Nigeria, having elected his vice, has the power to remove him if he leaves the political party which brought him into power. The case started at the Court of Appeal of Nigeria and went up to the Supreme Court. At the Supreme Court, Akintan, JSC held that the president does not have the legal right to remove his vice president according to section 143 of the constitution.

Subsection 10 of section 143 also oust the jurisdiction of the courts from interfering in matters that has to do with the impeachment of the president or vice president where a gross misconduct is committed by any of them. During the proceedings of the matter, the court also considered other issues which I will discuss here as we proceed.

AG Federation v Atiku Abubakar
AG Federation v Atiku Abubakar

Facts of AG Federation v Alhaji Atiku Abubakar

In 2003, the Peoples Democratic Party (Popularly known as PDP) nominated Chief Olusegun Obasanjo, the then president of the Federal Republic of Nigeria, as presidential candidate for the impending 2003 Nigerian presidential election. Chief Olusegun Obasanjo, in turn, and in compliance with section 142(1) of the 1999 constitution of Nigeria, nominated the 1st respondent, then Vice President for the purpose of contesting the election.

Both chief Olusegun Obasanjo and the 1st respondent were declared as duly elected after the elections, and were sworn into office on the 29th May, 2003 as the president and Vice president of the Federal republic of Nigeria respectively.

Subsequently, the relationship between the 1st respondent as Vice President on the one hand, and the president, Chief Olusegun Obasanjo and the Peoples Democratic Party on the other hand, soured. Eventually, the 1st respondent, while still in office as Vice president, resigned from the Peoples Democratic Party and joined another political party known as the Action Congress.

Consequently, the President of the Federal Republic of Nigeria declared the office of the 1st respondent as Vice president of the Federal Republic of Nigeria vacant. The 1st respondent was Aggrieved and he commenced a suit by originating summons against the appellants and the 2nd and 4th respondent at the Court of Appeal under section 239 of the 1999 constitution. The 1st respondent sought the determination of the following:

1. Whether having regard to the combined provisions of sections 135 and 142 (2) of the Constitution of the Federal Republic of Nigeria, 1999, the plaintiff’s term of office as vice president of the 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 provision 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 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.

The 1st respondent then claimed the following reliefs:

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.

That the President has no power under the Constitution of the 1999 Federal republic of Nigeria or any other law to declare the office or seat of the plaintiff as the Vice President of the Federal Republic of Nigeria vacant.

A declaration that the purported declaration by the president of the Federal republic of Nigeria of the office of the president as vice president of the federal republic of Nigeria vacant is unconstitutional, illegal, null and void and of no effect whatsoever.

Consequently, the court granted the plaintiff’s claim in part and dismissed the first defendant’s counter-claim. In the lead judgment delivered by Abdullahi, PCA, the court held that:

1. The office of the vice president was not terminated.

2. The president does not have any legal power to terminate the office of the vice president in Nigeria.

3. Based on the above, the declaration of the termination of the office of the vice president was null and void.

Aggrieved with the above decision, INEC, the Inspector General of police (IGP) and Attorney General of the federation appealed to the Supreme Court of Nigeria.

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Issues determined by the court in AG Federation v Atiku Abubakar

Whether or not the Court of Appeal was right in granting the declaration relief sought by the 1st respondent when on the available evidence, there was no lis before that court.

Whether or not the Court of Appeal, acting as a trial court, under section 239 of the Constitution of the Federal Republic of Nigeria, properly evaluated the evidence adduced by the parties before arriving at its decision.

Whether or not in construing the intention of the drafters of the Constitution of the Federal Republic of Nigeria, 1999, in relation to section 142 (1) thereof, the Court following appeal was bound to consider the following:

(a) History of the constitution provisions;

(b) Social need, political realities and peculiarities;

(c) The need to avoid absurdity

If the answer to issue 3 above is in the affirmative, whether or not the Court of Appeal was right in its narrow approach to section 142(1) of the constitution of the Federal Republic of Nigeria, 1999 to the effect thaty there is nothing in the provisions which precludes the President and Vice President of the Federal Republic of Nigeria from continuing in office after dumping the political party that sponsored him to the office for another political party.

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Judgment of the Supreme Court in AG Federation v Atiku Abubakar

On hearing the matter, the Supreme Court explained the offices of the President and Vice president as provided in sections 130 and 141 of the 1999 constitution of Nigeria respectively. It went further to state that by allowing the president to appoint a vice from his political party, the constitution was try to promote a harmonious relationship between the president and vice president.

On the question of whether the president has the power to declare the office of the president vacant, it was held that the provisions of the constitution does not allow for such. The only grounds for the removal of the president or vice president which the constitution allows is where there is gross misconduct. And in such cases, the national assembly has the legal power to remove the president or vice president according to the constitution.

Akintan, JSC went further to state that the president does not have the power to remove the Vice president and the court does not also have the jurisdiction to determine such.

On the question as to whether the Vice president can openly criticize the Government, the Supreme court opposed the court of appeal and held that the president does not have the right to do such. The act of the vice president was declared to be painful because he acted in a manner that was not expected of him. However, his act was not illegal. Based on these reasons, the appeal was dismissed.

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Complete list of parties in the case

Attorney General of the federation

Instepctor General of Police

Independent National Electoral (INEC)
(Appellants)

Alhaji Abubakar (Vice president of Nigeria)

National Assembly of the Federation of Nigeria

President o the senate of the federal republic of Nigeria

Speaker, House of Representative of the Federal Republic of Nigeria
(Respondent)

Full list of judges in the suit

Hjnnj. IOnu, J.S.C. (Presided)

Dahiru Musdapher, J.S.C

Sunday Akinola Akintan, J.S.C (Read the leading judgement)

Walter Samuel Nkanu Onnoghen, J.S.C

Francis Fedode Tabai, J.S.C

Ibrahim Tanko Muhammad, J.S.C

Pius Olayiwola Aderemi, J.S.C

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