Leadership (Abuja)
Chucks Ohuegbe and George Agba
14 January 2009
Abuja — The case between President Umaru Musa Yar'Adua and LEADERSHIP Newspapers Group asks the court through its lawyer Barr. B. A. Ebenezer to strike out the president's case, saying that the court was not in a position to give the accused fair hearing.
Meanwhile, the case took a new dimension yesterday as the federal government asked the court to strike out the president's name as the complainant and replace it with that of the Inspector General of Police (IGP) instead.
Government position which was made by the Director of Public Prosecution (DPP), Mr. Salihu Aliyu came at the instance of a strong contention of the Counsel to LEADERSHIP, Mr. Bassey Adeyemi Ebenezer that against the provision of Section 308 of the Constitution of the Federal Republic of Nigeria, 1999, the prosecution shot itself in the foot by allowing the president to sue in his personal capacity.
"Because he wears the robe of immunity, the framers of the Constitution did not envisage that the holder of that office will disrobe himself and come down to the level of suing. It is not even the prerogative of the holder of that office to say that he wants to waive aside that immunity except that law is changed by an Act of the National Assembly", the LEADERSHIP Counsel said.
However, the Chief Magistrate's court headed by Mr. Sunday Ochimana fixed ruling on whether or not to strike out the case for January 20, 2009.
Mr. Ebenezer further contended that there is no dispute as President Yar'Adua under Section 308 of the Constitution enjoys absolute immunity. Following from that he said that he can not be compelled to come to court or to bring any material evidence before the court.
Besides, he said the second to fifth charges in the First Information Report (FIR) against the accused persons "are personal injury allegations which he (the president) must personally come to court to complain."
While admitting that the case between Yar'Adua and LEADERSHIP is novel and unique because it is the first time the president of the country would be the complainant, he added that;" since the man who is a complainant can not come to court how do we cross-examine that person? It is our right."
The Counsel also told the court that after the said publication, agents of the State went to the corporate headquarters of LEADERSHIP Newspapers Group and confiscated computers belonging to the company. He enjoined the court to reason that the president engaged a media organization in a fight with it's hands tied in the back, even as he said," we can not counter sue the President for that because we are barred by the Constitution to do so.
"We can not bring the President to the witness box for him to be cross-examined so as to prove the veracity of his case. Section 36[6][b] says accused persons are entitled to facilities that will aid them in their trial by bringing witnesses. But we can not bring the President as a hostile witness in view of obvious lacuna. There can not be fair hearing. In view of this injustice we are fighting with our hands tied behind our backs and it is contrary to the spirit of the Constitution".
While reminding the court that the interpretation of the provisions of the constitution will be guided by the instant case, he further argued that" It will create manifest injustice if President Yar'Adua comes down from his office and engage in personal transactions, thereby dragging these individuals to court in the name of the Rule of Law".
The Counsel further told the court it is not for the occupant of the office of president to pick and choose as he still wears the robe of immunity, noting that " the drafters of the Constitution did not envisage that the occupants of the office would explore it. It is an aberration." He cited TINUBU V. IMB SECURITIES [2001]FWR Pt. 77 p.1003 to substantiate their claim.
Also, the Counsel cited S.166[1] of Criminal Procedure Code[CPC] which stipulates that the complainants must be in court in person.
But, DPP Salihu Aliyu countered Ebenezer's objection saying the rules of interpretation is very clear that words must be given their clear ordinary meaning and that that which is expressed ousts that which is not expressed.
He said Section 308 debars holders of such immune offices from instituting legal actions. He said the supreme court did not make a categorical statement in some of the cases cited as authority by the accused Counsel.
DPP Aliyu cited CHIEF VICTOR OLABISI ONABANJO V. CONCORD PRESS LTD.1981 2NCLR to substantiate his argument even as he said that the court should not be made to travel out of the borders of the Constitution on the voyage of discovery, adding that" The court only interprets the law and can not re-write the law. What my learned friend is doing is to re-write the law.
"The Accused Counsel said his client will not be given fair hearing. We have not even called witnesses in this case. Even if we do, the Accused lawyer has all the constitutional rights to tear them to pieces with cross-examination. So, the issue of calling witnesses is premature", he stated.
Ebenezer opposed to DPP's oral application, saying that it is not proper for Yar'Adua's name to be struck out because" it is clear in the FIR that it was the President and not the IGP that complained of injury and there is no question of taking over here."
President Yar'Adua had personally approached the Abuja Chief Magistrate court on November 27, 2008 to seek redress over alleged defamation of character, bothering on a publication published by LEADERSHIP WEEKEND.
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