Two legal practitioners, Ikenga Imo Ugochinyere, the national chairman of Action People’s Party (APP), and Kenneth Udeze, the national chairman, Action Alliance (AA), have filed an appeal challenging the judgement of Justice Ijeoma Ojukwu of the Federal High Court sitting in Abuja which upheld the constitutionality of the Executive Order 6 of President Muhammadu Buhari. Justice Ojukwu, who dismissed the suit filed against the Presidential Executive Order 6, had held in her judgement that it was within the powers of the president, as granted by the Constitution, to issue Executive Orders for the execution of executive policies as long as such orders do not offend the doctrine of separation of powers.
The trial judge who held that the Order, which empowers the Attorney General of the Federation (AGF) to take steps, in liaison with relevant investigative agencies, to temporarily seize property linked with corruption pending investigation and conclusion of trial to prevent the dissipation of such assets, however, noted that the power must be exercised in accordance with the provisions of the Constitution.
But the appellant, in a motion for injunction pending appeal, wants an order of the court restraining the president and the AGF, or any of their agents, from enforcing, executing or any other manner whatsoever giving effect to the Presidential Executive Order No 6 pending the determination of their appeal filed yesterday at the Abuja Division of the Court of Appeal against the judgement of the trial court.
The appeal, which was hinged on four grounds, submitted that the decision of the trial court was a clear violation and encroachment upon the rights of the citizen and the constitution, and that citizens are entitled to be accorded fair hearing before they can be made to suffer any legal disability as a result of any allegation or charge.
They argued in their notice of appeal that Justice Ojukwu misinterpreted Section 5 of the 1999 constitution upon which the president derived the power to make Executive Order No. 6 of 2018, which is only for the execution and maintenance of the constitution and all laws made by the National Assembly, and not to turn the executive into a law making organ. The notice of appeal submitted that the trial judge erred in law and thereby occasioned a miscarriage of justice when she held that the Executive Order No. 6 of 2018 did not violate the rights of citizens to own property. It also stated that the judge erred in law when she unilaterally varied and modified the express terms of Executive Order No. 6 by issuing judicial caution, that the powers of the AGF must be exercised in accordance with the provisions of the constitution, instead of nullifying the Executive Order.
They argued that the lower court did not have the powers to issue advisory opinion on what the law ought to be as in the present circumstances, adding that the Executive Order 6 violates the doctrine of separation of powers and all tenets of constitutional democracy. The appellants further submitted that the trial judge shut her eyes against the materials placed before the court and deliberately failed and/or refused to make specific findings of fact on the issue they submitted before the court, in view of the fact that “none of the persons listed at the First Schedule of the said Presidential Executive Order No. 6 of 2018 have been found guilty as charged, as their respective trials are still ongoing in various courts in Nigeria.” While saying that the judgment of the lower court was against the weight of evidence, the appellants want the court of appeal to set aside the judgement and grant their relief sought in their Originating Summons filed on July 13, 2018. In a related development, the appellants stated that the judgement of Justice Ojukwu ever gave President Buhari the power to arbitrarily ban citizens from travelling.
Some of the reliefs sought by the appellant include: “That the banning of citizens from travelling abroad and the attempt to give effect to Executive Order No. 6 without first seeking the order of the court is a misinterpretation of the judgement of the Federal High Court on Executive Order 6. “That his action usurps the functions of the court and the legislative powers of the National Assembly that had already promulgated the EFCC, ICPC and Money Laundering Act, all of which allow for interim forfeiture and attachment for citizens’ money and property by an order of a court of law.” It added that the judge at the Federal High Court had held that although Executive Order 6 was not itself wrong, however, the attorney general must obtain an order of the court and that the enforcement of the order must never infringe on the rule of law or derogate the doctrine of separation of powers or the fundamental rights of Nigerians.
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