Not wanting to leave anything to chance in its legal battle with the suspended Governor of the Central Bank of Nigeria, Sanusi Lamido Sanusi, the federal government Friday appealed the judgment of a Federal High Court in Lagos, which ruled that the seizure and withdrawal of Sanusiâ€™s passport was illegal and a breach of his fundamental human rights.
It also filed a motion for stay of execution pending the hearing and determination of the appeal.
Also yesterday, Members of the House of Representatives who defected from the Peoples Democratic Party to the All Progressives Congress applied to Justice Adeniyi Ademola of the Federal High Court, Abuja to stay the execution of his judgment which restrained them from changing the leadership of the House.
Justice Ibrahim Buba had while delivering judgment in the suit filed by Sanusi seeking an order restraining the police and the Department of Security Service (DSS) from infringing on his fundamental human rights, following his detention and seizure of his passport at the Murtala Muhammed Airport in Lagos on the day he was removed as the CBN governor, ordered the government to return his seized international passport to him.
The judge had equally ordered that the government should apologise to the suspended CBN governor and consequently awarded him N50 million as exemplary damages for the embarrassment caused him by the seizure.
But in a notice of appeal filed by counsels to the Attorney General of the Federation – Chief Mike Ozekhome (SAN) and Dr. Fabian Ajogwu (SAN) – the federal government is asking the Court of Appeal to set aside the judgment of the lower court.
In the notice of appeal obtained by THISDAY, the federal government said Justice Buba erred in law when he assumed jurisdiction to entertain the case against it.
It maintained in the appeal that the dispute between it and Sanusi is related to a dispute over the interpretation and application of the provisions of Chapter IV of the Constitution as it relates to his employment as the Governor of the CBN and seizure of his work-related passport (Diplomatic Passport) issued to him by virtue of his employment as the CBN Governor.
The government argued that by virtue of Section 254C (1) of the 1999 Constitution (Third Alteration) Act, 2010, the Federal High Court does not have the jurisdiction to entertain the matter of seizure of work related passport (Diplomatic Passport) of the embattled suspended governor and his fundamental rights as they are matters within the exclusive jurisdiction of the National Industrial Court (NIC).
It argued that the trial judge erred in law and fact when he held that it did not controvert Sanusiâ€™s affidavit in support of his originating summons dated February 21.
The government equally contended that the trial judge erred in law and fact when he held that paragraph 4 of its counter-affidavit dated March 19 filed in opposition to the suspended governorâ€™s originating summons offended section 115 of the Evidence Act, thereby refusing to consider its counter affidavit (together with the exhibits attached thereto) and written address dated March 19.
It stated that the trial judge erred in law when he granted exemplary damages against it and the second and third respondents to the tune of N50 million which were not specifically pleaded.
No date has been fixed for both the appeal and motion for stay of execution.
In a related development, the Department of State Services (DSS) has expressed its disappointment and dissatisfaction with the judgement in favour of Sanusi and promised to appeal it.
The court had ruled that the Service should hand over Sanusiâ€™s seized travelling documents to him.
In a release signed by the DSS Spokesperson, Marilyn Ogar, the Service claimed it acted in accordance with the law of the land in seizing his travelling documents.
The statement reads: â€œIt is therefore necessary to state that in impounding the passport of Mallam Sanusi Lamido, the Service acted in accordance with the law. For the avoidance of doubt, section 3(2) (b) of Instrument SSS No. 1 of 1999 made pursuant to section 6 of the National Security Agencies (NSA) Act, provides as follows:
â€œConsequently, the Service has taken immediate steps to appeal this rather erroneous judgement. Notwithstanding, this Service holds and continues to hold the judiciary in high esteem as critical partners in nurturing our democracy and nation building.â€
In another development, Justice James Tsoho of the Federal High Court in Lagos yesterday fixed April 11, to hear a suit filed by Sanusi, seeking to halt his investigation by the Financial Reporting Council of Nigeria (FRCN).
Sanusi had filed the suit through his counsel, Mr. Kola Awodein (SAN).
He is seeking a declaration that the FRCN, constituting itself into an investigating body in a manner contained in some newspaper publications of March 24, is ultra vires.
Joined as first and second defendants are the FRCN and the Executive Secretary of the FRCN.
In his motion paper, Sanusi averred that the FRCN’s declaration in a briefing note dated June 7, 2013, and submitted to President Goodluck Jonathan were ultra vires as contained in the FRCN Act, 2011.
He is seeking a declaration that the defendant, having reached a conclusion as to his culpability as Governor of CBN, as indicated in the briefing note and newspaper publications, â€œthey can no longer conduct any investigation on the same matter.â€
He is also seeking: “A declaration that the defendant’s recommendation regarding the plaintiff in briefing note dated June 7, 2013, that he be removed from office as CBN Governor, were ultra vires under the FRCN Act 2011.
A declaration that the proposed investigation as advertised in the Punch Newspaper of March 24, in the circumstance of having reached a conclusion in the briefing note of June 2013, before embarking on the investigation, is tantamount to a breach of natural justice.
A declaration that the defendant does not have the power to conduct investigation as advertised in the newspaper.”
Sanusi is therefore seeking an order, restraining the defendants or any person, body, agent, or privies, under its authority, or pursuant to the FRCN Act, from conducting and continuing any investigation or inquiry as advertised.
He is also seeking an order setting aside or nullifying any report, conclusion or recommendation, based on any purported investigation conducted, as advertised in the Punch Newspaper.
The defence had however filed a preliminary objection, challenging the jurisdiction of the court to hear the suit.
In a short ruling, Justice Tsoho said he would hear the defendant’s objection and the plaintiff’s motion together.
The judge however ordered status quo to be maintained until the suit is determined.
He adjourned the case to April 11 for hearing.
Meanwhile, members of the House of Representatives who defected from the PDP to the APC yesterday applied to Justice Ademola for a stay of execution of his judgment which restrained them from changing the leadership of the House.
Justice Ademola on Monday held further that the lawmakers having relinquished the mandate of their constituents by decamping from APC from PDP had no reason to remain in the House.
While asking for a stay of execution of the judgment, the embattled 37 lawmakers alleged further that the House of Representatives had started making moves to compel them to vacate their seats as members of the House of Representatives based on the judgment on Monday.
The lawmakers are asking the court to stop the PDP from taking advantage of the judgment pending the determination of their appeal at the Court of Appeal.
They also asked the court for an interlocutory injunction restraining the House of Representatives, the Speaker of the House, the Deputy Speaker and the Clerk of the House from stopping them from entering and coming out of the National Assembly complex and chambers pending the determination of their appeal.
The application for stay of execution of the judgment was filed by Sebastine Hon?.
The lawmakers also asked the court to stop the leadership of the House from stopping them from participating in the business of ?the House.
Their lawyer said that an arguable appeal had been filed and that the appeal raised special circumstances which the court should consider and grant an order staying the execution of the judgment.
In an affidavit deposed to by Mr. Simon Udu, a lawyer in the Chambers of Sebastine Hon, he said that if the judgment was not stayed and the appellants were prevented from participating in the plenary or the process to amend the constitution, the process might be truncated.
He also said that irreparable damages would be caused the appellants if their appeal turned out to be successful only after the lapse of their tenure.
He urged the court to bear in mind that appeals at the Court of Appeal take time to determine, which might even drag beyond the tenure of office of the appellants.
Justice Ademola had in his judgment granted an order of perpetual injunction restraining the lawmakers from either initiating or participating in effort to alter the leadership of the House.
Justice Ademola particularly restrained â€œthe 12th to the 53rddefendants (the defecting law makers), their agents and privies, servants from taking any steps or further steps or seating, starting or doing anything to alter or remove or change the leadership of the 1stdefendant, (House of Representatives).â€
He also granted a further order of perpetual injunction, restraining the defecting lawmakers from “altering or participating in the altering or changing the leadership of the 1stdefendant.â€
He also held that, in view of the provision of Section 68(1) (g) of the Constitution, they (the defecting law makers) could not lawfully alter the composition or constitution of the House’s leadership.
Section 68(1) provides: â€œA member of the Senate or of the House of Representatives shall vacate his seat in the House of which he is a member if ; (g) being a person whose election to the House was sponsored by a political party, he becomes a member of another political party before the expiration of the period for which that House was elected; Provided that his membership of the latter political party is not as a result of a division in the political party of which he was previously a member or of a merger of two or more political parties or factions by one of which he was previously sponsored.â€
Justice Ademola, after analyzing evidences before the court observed that there were undisputed facts that the defecting lawmakers were sponsored by the PDP; that the period of their membership had not expired, but that the contention among parties was whether there was a division in the party as contemplated in the provision to section 68(1)(g).
Relying on the definition of â€œdivisionâ€ in the Oxford Advanced Learners Dictionary (8th edition of the International Student edition), the judge held that from evidence before him, including the October 2013 judgment by Justice Evoh Chukwu of the same court, there was no division in the PDP to have allowed the law makers to retain their seats.
â€œThe court finds, as an undisputed fact, that the period for which the 12 to the 53 respondents were sponsored by the plaintiff has not expired in the 1st defendant (House of Representatives). And as earlier stated, there is no division in the plaintiff, and they, that is, the 12th to the 53rd respondents have decamped to another political party â€“ the APC.
â€œAnd as such, they either vacate their seats or resign honourably and relinquish their constituentsâ€™ mandates. They have no basis, morally and legally in staying in the1st defendant (House of Representatives) a day longer,â€ the judge noted.
He however did not order any of the law makers to yield their seats, as that was not part of the four reliefs sought by the plaintiff.
Before deciding the substantive suit, the judge dismissed the preliminary objections by the defendants. He held that the suit was well-instituted; that it was not an abuse of court process; that the plaintiff possessed the locus standi to institute the action and that the originating summons filed by the plaintiff was competent.