2 Winners, Same Silver Coin …That PDP Verdict On Senate, FEC
Every coin has two faces, what parties seeking ‘ tie-break’ in logjam of choices usually call ‘Head’ or Tail.’ Before a coin is tossed for two conflicting parties, there must be a primary choice in contest, in the case of a soccer event, who kicks the ball first or chooses a desired half of the field.
If therefore, the log-jam now prompted by President Umaru Musa Yar’Adua’s more –than 73-days absence from his presidential desk were to be put in context, two opposing choices will naturally emerge: One in favour of section 145 of the 1999 Nigerian Constitution and the other; respect for the two Abuja High Court rulings voiced on two different occasions by the same Justice Abutu. Lets see both angles.
First, section 145 of the 1999 Constitution which is titled, Acting President during temporary absence of president, states thus: ‘ whenever the President transmits to the President of the Senate and Speaker of the House of Representative a written declaration that he is proceeding on vacation or that he is otherwise unable to discharge the functions of his office, until he transmits to them a written declaration to the contrary such functions shall be discharged by the Vice –president as Acting President”
Key points to note here are, “written declaration”, ‘proceeding on vacation’ (Leave, as Nigerian Civil Servants know it) and “unable to discharge the functions of his office”
Did the president send a written declaration to the Senate President or Speaker House of Rep? No!
Away for more than 70 days on vacation, sorry sick leave(?), Yes. In these number of days, has Mr President been able to “discharge the functions of his office”? No.
Thus, the questions to be raised are, since the president did not transmit any such written declaration, understandably, giving his health condition, at the time of leaving Nigeria for the King Faisal Specialist and Research Centre in Jeddah Saudi Arabi, Nov 23, last year, where, he has since been receiving treatment for acute preicaditis- an inflammation of the lining of the heart, can Vice President Goodluck Jonathan be sworn-in as acting president? Or were it to be seen as Mr President normal annual leave,
sorry vacation, how long would it last? And without the constitutional Senate or Reps notification, is it legally right for the vice president to perform the duties of his boss as if he were acting president?
In a country, where politicians think less of the next election and more of the next generation valid answers to these questions would not be too hard to find.
Now, lets also analyse the second part, the two Abuja High Court rulings, based upon which the Federal Executive Council (FEC), a body of ministers appointed by the ailing president, to make a public declaration about the true state of the president’s health.
Disturbed by the long absence from his office as president, concerned Nigerians had sought constitutional interpretation from an Abuja High Court, presided over by Justice Abutu, before whom the applicants sought, among others, relief that vice President Jonathan be sworn-in as acting president.
But Justice Abutu in his first, ruled that the Vice President could exercise presidential powers in the absence of the president but could not be sworn-in as acting president since Yar’Adua did not transmit a letter to the National Assembly to that effect.
In his second ruling, Justice Abutu gave the Executive Council of the Federation, often also called the Federal Executive Council (FEC) 14 days starting from last Saturday, January 23, 2010 to pass a resolution on the health of the president. The body didn’t need 14 days, they took the decision last Wednesday, January 27, 2010 and told Nigerians that President Yar’Adua was not incapacitated but that he would return to the country next (this) week.
The court’s ruling and directive to the FEC is hinged on the long winding path and hurdles placed in way of a Goodluck Jonathan ever having in his CV, Acting President, if section 144, (1a-c,2,3,4a-b,5), are to be considered
The section spells out how an ailing president or vice president shall cease to hold office and states in 144 (1,A-B) as follows.
(a)…if, by a resolution passed by two thirds majority of all the members of the executive council of the federation, it is declared that the president or vice-President is incapable of discharging the functions of his office, and (b) the declaration is verified, after such medical examination as may be necessary, by a medical panel established under subsection (4) of this section in its report to the president of the Senate and the Speaker of the House of Representative.
(2) where the medical panel certifies in the report that in its opinion the president or the vice president is suffering from such infirmity of body or mind as render him PERMANENTLY INCAPABLE (emphasis mine) or discharging the functions of his office, a notice there of signed by the president of Senate and the Speaker of the House of Representatives shall be published in the official Gazzette of the Government of the Federation.
(3) the president or vice president shall cease to hold office from the date of publication of the notice of the medical report pursuant to subsection (2) of this section.
And then the constitution explains the constitution of the medical panel which opinion will determine the removal of either the president or vice president, in sub section.
(4) The medical panel to which this section relates shall be appointed by the president of the senate and shall comprise Five medical practitioners in Nigeria –
(a) One of whom shall be the personal physician of the holder of the office concerned; and
(b) Four other medical practitioners who have, in the opinion of the President of the Senate, attained a high degree of eminence in the field of medicine relative to the nature of the examination to be conducted in accordance with the foregoing provisions.
(5) In this section, the reference to “Executive council of the Federation is a reference to the body of ministers of government of the Federation, however called, established by the President and charged with such responsibilities for the functions of government as the president may direct.
This is why a lawyer, who had obviously lost his mind said on national television last Tuesday “they are a bunch of desperate politicians determined to save their jobs not the nation. Who knows what could happen to their jobs, if the Vice President were to be sworn-in as Acting President,” I do not agree with that lawyer, what I do know however is that anytime the lion feeds something dies; anytime a new President emerges the status quo, or a part of it, is displaced; any time a vice becomes acting president, he, and not a retiring Chief Justice swears-in a successor; anytime there is a president, he presents his budget to a joint session of the national assembly and not do so through a proxy; and anytime there is a serving president, there is no quarrel as to who should sign bills passed by the National Assembly.
Now, the issues that should be addressed in all these, our prayers for the quick recovery of the President notwithstanding, are; should the Vice President be sworn-in as Acting President to fill the vacuum created by Yar’Adua’s long absence so as to perform all such duties that only a President can perform? Or should we remain where we have been, since November 23, last year, content with the verdict of Yar’Adua’s ministers, that their boss is fine and would return soon?
These, methinks are the two faces of the silver coin, which the ruling Peoples Democratic Party (PDP) said bear same faces-‘head’ and ‘head’, since the senate and the Federal Executive Council (FEC) are both right.
Looking critically, however, the Senate position and that of the roundly criticized chairman, Board of Trustees of the PDP, former President Olusegun Obasanjo, are slightly similar, only, the latter should have voiced the same view privately, even earlier, or never at all.
My Agony is, that even with the awesome powers of a President which VP Jonathan is said to have exercised so far, including the power of sending the military to Jos to quell the tin city’s disturbances, and all, the legality of signing the 2010 Appropriation Bill into law, when passed by the National Assembly, may not be one of the spoils of a Vice President’s office.
Yet, the PDP says, both the Senate and the FEC are right and deserve same commendation. Many agree, I don’t.
Again, RSG Begins Unveiling, Flag-Off Of Nine Key Projects, ’Morrow
The Rivers State Government has rolled out the drums to herald another phase of official commissioning of key projects embarked upon by the Governor Nyesom Wike-led administration in the state.
A statement by the state government said that the process is in continuation of the commissioning and flag-off of projects by Governor Nyesom Wike.
It indicated that Rumuola flyover would be commissioned tomorrow, while the GRA flyover would be commissioned on Saturday.
The also stated that the government would commission the Ezimgbu Road on Monday, December 13, 2021; with another commissioning of Tombia Road Extension scheduled for Tuesday, December 14, 2021.
The statement said that the governor would commission the Safe Home, Borikiri, Port Harcourt on Wednesday, December 15; while on Thursday, December 16, 2021, the governor would commission the Odokwu internal roads.
Also, the governor would continue the flag-off of key infrastructure projects with Chokocho-Igbodo Road slated for Monday, December 20, 2021; Oyigbo-Okoloma Road on Wednesday, December 22, 2021; and Magistrates’ Court Complex, Port Harcourt on Thursday, December 23, 2021.
Wike Justifies N7bn Libel Suit Against THISDAY
Rivers State Governor, Chief Nyesom Wike, yesterday, appeared before the state High Court in Port Harcourt, to testify as a witness in an N7billion libel suit against THISDAY Newspaper.
Wike said he was in court to seek justice and clear his name as a person from the malicious publication by THISDAY Newspaper, which portrayed him as deceitful, untrustworthy person, who exerts subterranean influences on judicial matters and over court sittings in Port Harcourt.
It would be recalled that Wike had in August, 2020, slammed a N7billion suit being damages for libel written and published in THISDAY’s Tuesday, June 23, 2020 edition captioned, “With Wike, Obaseki Meets His PDP’s Waterloo; Almost.”
The defendants in the suit are THISDAY Newspapers Limited, Leaders and Company Limited, Davidson Iriekpan, Chuks Okocha and Adibe Emenyonu.
Wike, while testifying as witness in suit No. PHC/1505/CS/2020 before the court presided over by Justice A. Enebeli, asserted that the defendants maliciously and falsely portrayed him as an unreliable friend/person.
“When you say somebody cannot be trusted; that cannot be a fair comment. When you say somebody is influencing the Judiciary, that cannot be a fair comment”, the governor said.
In his written statement on oath, Wike had stated that the defendants had accused him of influencing the decision of the court sitting in Port Harcourt that granted an injunction restraining Godwin Obaseki from participating in the primaries of Peoples Democratic Party (PDP) in Edo State in 2020.
He stated that the defendants maliciously accused him of undemocratically exerting influence on the primaries process of PDP in Edo State in aid of his ally, Omoregie Ogbeide-Ihama, who was the beneficiary of the court order restraining Obaseki from participating in the PDP primaries.
The governor, who told the court that he was not even aware of the aforementioned suit by Ogbeide-Ihama against Obaseki, said the publication was reckless, false and without regards for the truth.
According to him, contrary to well-known journalistic tradition and practices, the defendants did not investigate properly to ensure the information they relied on was accurate.
“They did not seek to verify the facts from me or in any manner oblige me with the opportunity to state my own side of the story before proceeding to make the false publication” the governor argued.
Wike stated that the defendants further denigrated him before the entire world as a fake democrat, who engages in meddling in the internal affairs of All Progressives Congress (APC) in order to get at his political foe, Chibuike Amaechi.
The governor explained that he was not a member of the APC and has had no hand in the internal crisis which has bedevilled the party both in Rivers State and all over Nigeria.
“By the letter of Messrs E.C. Ukala and Co., Solicitors, under the hand of Emmanuel C. Ukala, SAN, dated 23rd June, 2020, the defendants were given opportunity to retract, and recant the publication as well as to offer apology for the false publication but the defendants spurned the opportunity and ignored the letter completely.”
The governor, while responding to claim by lawyer to the defendants, Turudu Ede, SAN, that the essence of the lawsuit was to intimidate and harass his clients, said the whole essence of the suit was to get justice and clear his name as a man of substantial character, honour and repute.
“The essence of the suit is to get justice since they (defendants) refused to retract the publication or apologise. So, I sued them to clear my name.”
Speaking to journalists outside the court, one of the lawyers to Wike, Mr. Mark Agwu said his client was in court to seek legal redress.
“To challenge him as a person, it means you have made him untrustworthy, a deceit, a cheat, an influencer of the court, because the publication they made was that he had a role to play in influencing the outcome of that Federal High Court case. Nobody will take that lightly, and especially for a man who believes in the rule of law”, Agwu added.
The court adjourned the matter for further hearing to 12th, 13th and 14th of January, 2022.
$130m Fraud: Rivers Sues Saipem SPA, Saipem Contracting Firm, Others
The Rivers State Government has charged two construction firms, Saipem SPA and Saipem Contracting Nigeria Ltd, to court over an alleged conspiracy to cheat and with intent to defraud the state of the sum of $130million, being advanced payment for the construction of the OCGT power plant in Port Harcourt.
In a 16-count criminal charge filed by the Director of Public Prosecution, C.F. Amadi for the Rivers State Attorney General, the state alleged that after collecting the said sum as advanced payment between 2011 and 2018, the defendants have not kept their obligation under the contract.
Others charged alongside the companies were Walter Peviana; Kelechi Sinteh Chinakwe; Giandomenico Zingali; Vitto Testaguzza and Davide Anelli, who are directors and officers of the companies.
The defendants are charged with various offences ranging from conspiracy, cheating and obtaining credit by false pretence, contrary to Section 518 (6) and (7) and punishable under Section 518 of the Criminal Code, Cap 37 Vol. 2 Laws of Rivers State of Nigeria, 1999, section 419A and punishable under Section 419 (A) (1) (b) of the Criminal Code, Cap 37 Vol. 2 Laws of Rivers State, amongst others.
Already, the Rivers State Government has issued a fiat to the law firm of Godwin Obla (SAN) to prosecute the matter before the state High court.
The defendants are equally charged for the offence of false Statements by Officials of Companies contrary to and punishable under Section 436 (b).
The prosecution specifically accused the defendants of obtaining credit of $130million by false pretences or other fraud contrary to Section 419A and punishable under Section 419 (A) (1) (b); obtaining credit of $20,467,942.00 by false pretences or other fraud contrary to Section 419A and punishable under Section 419 (A) (1) (b), obtaining credit of N7,000,000,000.00 only by false pretences or other fraud contrary to Section 419A and punishable under Section 419 (A) (1) (b).
They are charged for obtaining credit of N318,640,173.54, by false pretences or other fraud contrary to Section 419A and punishable under Section 419 (A) (1) (b); attempt to cheat $97million contrary to Section 508 and punishable under Section 509; attempt to cheat $15million contrary to Section 508 and punishable under Section 509; conspiracy to receive a credit of $97million by false pretences contrary to Section 518 (6) and punishable under Section 518; cheating $11million contrary to Section 421 and punishable under Section 421; cheating contrary to Section 421 and punishable under Section 421; cheating N110, 097, 416.51 contrary to Section 421 and punishable under Section 421; cheating by collecting sums attributable to shared facilities already paid for in AFAM Phase I in AFAM Phase II contrary to Section 421 and punishable under Section 421.
Obtaining N20, 467, 942 contrary to Section 421 and punishable under Section 421; obtaining credit of $60,168,936.00 by false pretences or other fraud, contrary to Section 419A and punishable under Section 419 (A) (1) (b); obtaining credit of $1,512,034.00 by false pretences or other fraud contrary to Section 419A and punishable under Section 419 (A) (1) (b) all of the Criminal Code Law of Rivers State, Cap 37 Vol. 2 Laws of Rivers State of Nigeria 1999.
According to the Proof of Evidence attached to the charge and the statement made by the Head, Power Generation/Mechanical of the Rivers State Ministry of Power, one Mr Temple Azunda M., the facts constituting the case in hand are as follows:
Saipem SPA and Saipem Contracting Nigeria Limited and other officers of the duo, herein the Defendants, are Italian companies which services have been retained by the Rivers State Government, herein RSG, in several projects, prominent amongst which is the AFAM Phase II Power Plant Project.
By an initial tripartite agreement made on the January 20, 2010, the RSG under the auspices of the Rivers State Ministry of Power entered a contract with Saipem Contracting Nigeria Limited, Saipem SPA for the construction of the OGCT power plant in Port Harcourt at a total cost of $119million consequent upon which the Rivers State Government made advance payments, in instalments, to Saipem Contracting Nigeria Ltd and Saipem SPA amounting in total to a sum of $130million in all which the Defendants have acknowledged receipt of.
The Defendants were to be given an initial mobilization of 20per cent of the total contract sum which the RSG paid.
It was part of the initial agreement – and indeed a condition sine qua non – that, to access the 2nd tranche of payment of 25per cent from the Rivers State Government, the Defendants would mandatorily have installed the Gas Turbine into the foundations as referenced in ATTACHMENT 1 to VO 007 which states that:
CONTRACTOR shall be entitled to a payment corresponding to 20per cent of the VO No. 007 LS PRICE upon mobilisation to site and commencement of bush clearing activities at SITE.
Upon commencement of bush clearing activities at the site, the contractor shall issue the invoice relevant to the above payment and the owner shall pay such invoice within 14 days from its issuance.
The parties agree that no deduction for recovery of advance payment shall apply on the payment due to the contractor for invoices issued by the contractor in accordance with this paragraph.
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