20100122
allafrica

Abuja — The Federal High Court, Abuja, on Friday ordered the Federation Executive Council (FEC) 14 days to prove medically that President Umaru Yar'Adua was fit to perform his duties.

The two highest policy bodies existing at the centre are the Federal Executive Council (FEC) and the National Council of States (NCS).

The Chief Judge of the Court, Justice Daniel Abutu, in his judgment ordered FEC to comply with the relevant section of the 1999 Constitution.

"Having regards to the fact that the president has been away on a medical treatment since 23 November 2009, he (Yar' Adua) is incapable of performing his presidential duties.

"The FEC should resolve whether the president is capable of performing his presidential functions or not and pass a resolution to that effect,'' the judge said.

A former Minority Leader, Mr Farouk Aliyu and the Chairman of the Jigawa State Chapter of the Nigerian Bar Association (NBA), Mr Sani Gabbas, had sued the Attorney General of Federation (AGF) and FEC over the indefinite absence of the President.

The plaintiffs through their counsel, Mr Bamidele Aturu, asked the court to determine whether the resolution of FEC at its meeting of 2 December 2009 to the effect that Yar'Adua was capable of discharging his functions as President of Nigeria was constitutional.

Aturu contended that the seat of the president had been vacant since 23 November 2009, arguing that the nation had been without a ruler.

He urged the court to compel Vice President Goodluck Jonathan to start carrying out the functions of the president.
Aturu added that the relevant sections of the constitution made it mandatory for the president to hold meetings with ECF.

The plaintiffs pointed out that "it is unlawful, pursuant to the Public Service Rules for Yar'Adua to be absent from the office without going through due process."

Counsel to the plaintiffs further told the court that the "FEC is violating the law, what the Constitution recognises is ECF."

Aturu prayed the court to hold that the President's failure to write the Senate President and Speaker, House of Representatives, before going on medical vacation on 23 November 'is illegal and unconstitutional as it violates Section 145 of the Constitution".

He urged the court to compel the council to pass a resolution for the Vice President to start performing the presidential duties in Yar'Adua's absence in accordance with the Constitution.

The AGF, Chief Michael Aondoakaa, who appeared in person, in his counter affidavit to the originating summons filed by the plaintiffs, had argued that the plaintiffs' suit was premature and lacked locus standi.

He also argued that the court lacked jurisdiction to entertain the suit and that the court had no power to declare the president's seat vacant when he was still alive and capable.

Aondoakaa told the court to throw out the entire suit on the ground that the plaintiffs had no legal right to sue and that if the court entertained it, it would amount to abuse of court process.

"Section 146 states that the VP shall hold office if the office of the president is vacant by reason of death, Section 143 must be read in conjunction with section 146, this court cannot declare the seat of the president vacant while he is still alive.

"The Constitution does not vest power on the court to declare the seat of the president vacant.
"I submit that section 5 (1) of the constitution is discretional and does not make it mandatory that the VP should take over office in the absence of the president," Aondoakaa said.