The Federal High Court, Abuja, presided over by Justice James Omotosho will on June 5, 2023 rule on an preliminary objection filed by Atiku Abubakar challenging the suit brought by Festus Keyamo seeking to compel Independent Corrupt Practices and Other Related Offences Commission ICPC to investigate and prosecute him over alleged fraud.
Justice Omotosho adjourned for ruling, the preliminary objection filed by Prof. Mike Ozekhome, SAN, on behalf of Alhaji Atiku Abubakar to the Suit No: FHC/ABJ/CS/84/2023.
Atiku had through his counsel, Prof. Ozekhome, raised a preliminary objection to the suit to the effect that Keyamo lacks locus standi to file the suit, having not disclosed what he has suffered above other members of the public, especially as he filed the suit as a public officer using his public position.
He said the Plaintiff had not disclosed any wrong done to him by Atiku, or what damage he had suffered, describing him as a busy body and meddlesome interloper. Atiku also argued that the suit disclosed no reasonable cause of action.
Atiku had, in the Preliminary Objection, urged the court to dismiss Keyamo’s suit which accused him of using an SPV to corruptly enrich himself while he was Vice President of Nigeria, as purportedly revealed in an affidavit allegedly deposed to by one Michael Achimugu. The allegation had led Keyamo to write to the EFCC, CCB and ICPC to investigate and prosecute Atiku. In addition, Keyamo filed the suit urging the court to direct the anti-graft agencies to prosecute Atiku as a public duty.
Atiku also argued through Ozekhome that the Plaintiff’s suit is incompetent having been filed without leave of the court being first sought and granted on a matter for judicial review, seeking an order of mandamus to compel public officers to perform their statutory duties.
He also argued that the Plaintiff’s suit constitutes a gross abuse of office, the Plaintiff being a public officer occupying a public office and using public funds to bring an action against a private individual to confer a private gain on himself and his political party.
Atiku also urged the court to dismiss and/or strike out the suit for not being initiated by due process of law; and the proper parties not being before the court, as the Attorney-General of the Federation who is the Chief Law Officer of the Federation vested with the prosecutorial powers of the Federation by the 1999 Constitution was not joined as a party to the suit. Ozekhome also urged the court to dismiss the case because it was statute-barred under the Public Officers Protection Act, LFN, 2004, as complaints involved allegedly took place between 1999 and 2007 when he was the Vice President of the Federal Republic of Nigeria, and while he acted in his capacity as a public officer.
The entire suit, Ozekhome also contended, was instituted in bad faith; constitutes an abuse of court process; and is frivolous and vexatious; and therefore constitutes a waste of the precious time of the court and the parties.
The EFCC in its preliminary objection, filed through its counsel, Samuel Okeleke Esq, also aligned with the argument of Atiku, that the case of the Plaintiff was for judicial review, yet he failed to seek the leave of court before filing same. ICPC on its own part contended in its preliminary objection filed by its counsel, O.B Odogbu Esq, that the acts complained about by the Plaintiff were done before the establishment Act of the Commission came into effect.
When the case came up for hearing before Justice Omotosho on 3rd May, 2023, Benson Igbanoi, Esq, holding Prof. Ozekhome’s brief and leading Okueyelegbe Sylvanus Maliki and others for Atiku, informed the court that the Plaintiff did not file any response to Atiku’s Preliminary Objection which was served on him since the 20th of February 2023 contrary to order 26 rule 4 of the Federal High Court (Civil Procedure) Rules, 2019, which provides that the Plaintiff shall respond to Atiku’s objection within seven (7) days from the said 20th February, 2023, when same was served on him.
He urged the court to take the Preliminary Objection as unchallenged and strike out and or dismiss the case of the Plaintiff as the purported counter affidavit filed by the Plaintiff was incompetent.
However, the Plaintiff through his counsel, O.C. Uju Azu, Esq. responded that by the provisions of order 29 Rule 4 of the rules of the court, his time to respond to the objection of Atiku only started running from the time the Originating Process was served on him personally.
The court however wondered whether there was any rule of court that supports this argument, that a party cannot file a preliminary objection when he has knowledge of a suit against him before he is personally served the processes.
The court after hearing argument on this, reserved ruling to the 5th of June, 2023, on the competence or otherwise of the counter affidavit of Keyamo to the Preliminary Objection of Atiku which was filed belatedly without leave of court, till the time when a composite ruling shall be delivered on all the Preliminary Objections filed by parties.
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