The 45 days within which they were to respond to the action has elapsed.
Justice Mohammed Yunusa of the Federal High Court in Lagos had on September 4 directed them to respond to a suit within 30 days.
He said the respondents should be given time to file their defence before the plaintiffs’ motion for interlocutory injunction is heard.
The judge relied on Section 99 of the Sheriffs and Civil Process Act which says: “…The period within which a defendant is required to answer before the court to the writ of summons shall be not less than 30 days after service of the writ has been effected…”
He said the National Assembly and Senate can only be heard by the court if they pay the prescribed fee as penalty for filing their defence out of time.
The respondents must also apply for an extension of time, which Shittu said they are yet to do as there is no application to that effect yet.
The lawyer said the plaintiffs will pray the court to enter judgment in their favour should the respondents fail to regularise their processes before the next hearing date.
“The case is ripe for hearing but the respondents have not joined issues with my clients. We have not been served with any processes.
“As it is, they can only be heard if they apply for extension of time after paying the default fees,” Shittu said.
Hearing was however stalled in the case yesterday due to Justice Yunusa’s absence.
It was learnt that the judge, who sat during the court’s annual long vacation, is on leave and will resume on October 20.
At the last hearing, Shittu informed the court that the respondents had been served with the order of injunction restraining the Senate from compelling the respondents to appear before its Committee on Ethics, Privileges and Public Petitions over a story.
According to the proof of service, the suit was received by the Office of the President of the Senate on September 1.
The National Assembly was earlier served on August 27 through the Office of the Deputy Clerk to the National Assembly.
Vintage Press Limited (publisher of The Nation), Omotoso and Bello are the applicants, while the National Assembly and the Senate are the respondents.
The restraining order is to subsist pending the hearing and determination of the plaintiffs’ motion for interlocutory injunction, which was to come up yesterday.
Should the motion for interlocutory injunction be granted, it will subsist pending hearing of the main suit, which seeks, among others, an order of perpetual injunction against the respondents.
The Senate had, in an August 4 letter, invited Omotoso and Bello to appear before it unfailingly over the story: Motion: 22 APC Northern senators ‘working against Buhari’, published on July 30.
The Senate wrote again on August 11, threatening to invoke Section 89 (1) (D) of the 1999 Constitution (as amended) to compel the applicants’ appearance.
Justice Yunusa granted an order of interim injunction restraining the respondents, whether by themselves, their members, committees or agents from summoning or directing the appearance of the applicants or any of their agents before any Senate Committee.
The court barred the lawmakers from requesting the applicants to produce any papers, notes or other documents in respect of the story.
The judge also restrained the respondents from issuing a warrant to compel the applicants’ attendance before the Senate Committee set up to investigate the publication.
Shittu, in a supporting affidavit to the motion ex-parte, said unless the respondents were restrained, there was a great likelihood of the breach or threatened breach of the applicants’ fundamental rights to receive and impart information as guaranteed by the Constitution.
The applicants said the publication’s content has not been disputed, nor has the National Assembly issued a rejoinder to the story.
According to them, the laws of libel and slander are available to anyone who feels aggrieved by any offensive publication, an option that is also available to the Senate.
Shittu said rather than react to the story or deny it, the Senate wrote to the applicants directing them to compulsorily appear before the committee or risk being arrested.
The lawyer said the applicants were seeking to enforce their fundamental rights to personal liberty and freedom of expression.
He said the story was published in national interest based on “anonymous but informed sources” who cannot be disclosed to anyone, in line with the ethics of journalism.
Shittu the Senate was trying to compel the applicants to explain the story’s source, threatening to violate their right by arresting Omotoso and Bello should they fail to show up before its committee.
The lawyer said the Senate cannot compel the applicants to appear before it under Section 39 because the applicants are not a government agency, but members of the Fourth Estate of the Realm whose functions are guaranteed by the Constitution.
“The invitation is intended to prevent the applicants from discharging their duties in their ordinary course of business,” Shittu said.
After listening to the submissions, Justice Yunusa held: “I have considered the processes filed and the constitutional provisions relied on. I hold the view that the application has merit and is hereby granted.”
In the judge’s absence, the court’s registrars have fixed November 9 for hearing.