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Finally,
LEADERSHIP Floors Yar’Adua |
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Written by Chuks Ohuegbe and George Agba,
Abuja LEADERSHIP Fri.June
19,2009 |
An Abuja High Court yesterday adjourned
indefinitely the criminal defamation
suit by President Umaru Musa Yar’Adua
against LEADERSHIP Newspapers Group.
In a landmark judgement, the court,
sitting in appellate capacity, adjourned
sine die the case until President
Yar’Adua leaves office and is shorn of
the immunity clause.
A two-member panel of the appellate
court, led by Justice Abubakar Talba,
ruled that the trial Chief Magistrate at
the lower court, Mr. Sunday Ochimana,
was wrong when he refused to adjourn the
case sine die even when it was obvious
that there was an infringement on the
rights of the accused persons as
enshrined in section 36 (5) and (6) of
the 1999 Constitution of the Federal
Republic of Nigeria.
Not satisfied, their lordships held that
there was merit in the appeal filed by
LEADERSHIP against the lower court’s
decision, just as they set aside the
ruling of the Chief Magistrate.
They agreed that the newspaper house’s
appeal before them was a novel case as
it was the first time the president
instituted a case in his personal
capacity against certain individuals.
Justice Talba, who read the lead
judgement, noted that it was the duty of
the court while interpreting the
constitution to adopt a literal
interpretation as they must be read in
their best and ordinary meaning.
"Section 308 of the 1999 Constitution
has undergone intense scrutiny by
superior courts in the country and from
the lords used by the framers of S. 308,
it is clear that it is intended to
confer absolute immunity without barring
them from enforcing their fundamental
human rights," he added.
Authorities
His lordship cited the authorities in
the Court of Appeal cases; Tinubu V. IMB
Securities and Mediatech V. Lam Adesina,
where the court variously held that the
respondent was shielded from
prosecution.
He also cited the Supreme Court ruling
in the suit G.E.C. Vs. Donald Duke,
where the apex court held that the
intention was to confer absolute
immunity to the holders of the office
without regards to their personal
capacities to institute actions.
From the foregoing, the court held that
the president can initiate criminal
proceedings in his personal capacity.
Also, the court held that by the
provision of S. 308 of the 1999
Constitution, the president is not
compellable as a witness and cannot
waive the immunity conferred on him.
Debarred
The court said that from the on-set the
constitution has debarred the accused
persons of their fundamental rights as
contained in S. 36 of the constitution,
as they are incapacitated in calling the
president as a witness.
“By virtue of S. 36 (D) of the
constitution, an accused person has the
right to call all witnesses. The same
person do not specify from which angle
the witness should come from. Now that
the accused cannot secure that the issue
of fair hearing comes into play", his
lordship further stated.
Substantiating the position of the
court, his lordship cited Okafor Vs.
Attorney General of Anambra State where
the court held that the right to fair
hearing is commenced when an accused
person is brought before the court,
adding, “Justice must always be seen to
be done".
Summing up his ruling, his lordship
said, “We cannot but agree that the
Chief Magistrate erred in law when he
ruled otherwise, especially concerning
the provision of S. 36 of the
constitution of the Federal Republic of
Nigeria. The Chief Magistrate was wrong
when he refused to adjourn the case sine
die.
"There is merit in this appeal and the
ruling of the Chief Magistrate is set
aside. This case is set aside sine die".
Wonderful Judgement
In his response, counsel to LEADERSHIP,
Mr. Bassey Adeyemi Ebenezer, described
the ruling as a wonderful judgement and
very thorough. "We very much appreciate
your industry, my lordships."
Citing the provisions of section 36 (5)
and (6) of the 1999 constitution of the
Federal Republic of Nigeria to buttress
its claim, Ebenezer had told the court
on the last adjourned date that the case
was novel, as it was the first time in
the history of this country that a
sitting president personally instituted
a criminal case.
He contended that the provisions of
section 308 (1) of the 1999 constitution
makes it impossible for the president to
be charged to court as no subpoena can
be brought against him.
On the contrary, the counsel said,
section 36 (5) of the 1999 constitution
states unambiguously that any accused
person who is charged with a criminal
offence shall be deemed innocent, while
paragraph (6) of the same section said
that such a witness shall be examined by
counsel in court.
He said: "Our argument is very simple:
This case is a case of criminal
defamation. They are charged pursuant to
S.392, 393, 394 and 395 of the Penal
Code. S. 392 states that whoever defames
another shall be punished and sent to
jail for at least two years. You cannot
defame through a third party. We stated
it from day one that we will want the
president to personally come to court as
a witness.
"But because of the provisions of S.308
of the 1999 constitution, we want the
case to be adjourned sine die. My lords,
to further complicate matters, Section
165 of the Criminal Code says that if
the complainant is absent in court the
case should be discharged. The court
does not know the accused”.
Dispense Fairly
Arguing that the summation of his
pleadings was for fair hearing, Ebenezer
stressed that what his clients were
praying the court for was to dispense
justice fairly.
"My lords, you have been called to
decide between two groups of people: 74
privileged Nigerians and 120 million
people: whose right is subservient? My
lords, we therefore urge this court from
our briefs and submissions that the
rights of 120 million people should be
protected and upheld and adjourn this
case sine die, so that when these 74
persons are no longer in office and not
protected by S. 308 of the 1999
constitution they can pursue their cases
and not hide under the protection of S.
308”.
Countering
Countering Ebenezer's objection, counsel
to President Yar'Adua and Director of
Public Prosecution, Mr. Salihu Aliyu,
had argued that the issues before the
court were clear. The first, according
to the counsel, was whether the holders
of the offices mentioned in S. 308 of
the 1999 constitution were debarred from
complaining, suing or seeking for
redress for any wrong done to them in
any competent court of law.
The second point was if the holders of
such public office were not barred,
whether as in this case of a complain of
defamation, the accused would be
deprived of his right of fair hearing in
view of S. 308 in so far as he could not
call the complainant as a witness.
"I submit that in all the cases before
the Court of Appeal dealing with S. 308,
their decisions have been unanimous that
the provisions of S. 308 does not
deprive the holders of the offices
mentioned there- under to seek for a
redress for any wrong done to them while
in office”, Aliyu said, adding that the
interpretation given to S.308 was that
it was protective and not restrictive.
But counsel to LEADERSHIP quickly
countered by telling the court that all
the cases cited by the DPP were civil
cases, noting that the suit before their
lordships was a criminal case.
Complaint
Yar'Adua had, on November 27, 2008,
lodged a complaint before the Chief
Magistrate Court bordering on alleged
defamation of his character by a report
published by LEADERSHIP WEEKEND. But the
media organisation had on several
occasions apologised to the president
via a series of rebuttals to the story
which bordered on the president's
health.
This was after the
Chairman/Editor-in-Chief of the
LEADERSHIP Newspapers Group, Mr. Sam Nda-Isaiah,
and two of the editors were made to
undergo a difficult time in the hands of
state security agents and the police.
The security operatives also stormed the
corporate headquarters of the
organisation, where they confiscated
computers containing documents vital to
the company, which they are yet to
return.
Landmark
Reacting to the success of his case
yesterday, Mr. Nda-Isaiah said in a
statement, “This judgement, which is
clearly a landmark judgement, will help
in the development of the legal system
in Nigeria because those who designed
the Nigerian Constitution and conferred
immunity on the president did that to
enable the occupant of that very serious
office to concentrate on the work of
governance.
“They did not envisage that a president
would have so much time in his hands as
to want to sue anyone in his own
personal capacity. And it appears quite
curious that the president wants to have
his cake and eat it. He wants to enjoy
right to immunity and yet be able to sue
without presenting his person for cross-
examination.
“Nigerians will continue to remain proud
that in spite of everything, there are
still judges who would stand up for the
cause of justice, no matter who is
involved.
“However, we will be ready to meet the
president in court whenever he leaves
Aso Rock and becomes derobed of
immnunity”.
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