January 27, 2010
The National Conscience Party (NCP) has asked a court to order the Federal Ministry of Health to set up a Medical Board to examine President Yar’Adua immediately, and to declare the failure or refusal of the government to allow such examination illegal. In a suit filed at the Federal High Court in Abuja today by Mr. Femi Falana on behalf of the NCP, the party also asked the court to declare the 2009 budget illegal, unconstitutional, null and void in view of the circumstances in which the President was said to have signed it in Saudi Arabia in December 2009.
The National Conscience Party (NCP) has asked a court to order the Federal Ministry of Health to set up a Medical Board to examine President Yar’Adua immediately, and to declare the failure or refusal of the government to allow such examination illegal. In a suit filed at the Federal High Court in Abuja today by Mr. Femi Falana on behalf of the NCP, the party also asked the court to declare the 2009 budget illegal, unconstitutional, null and void in view of the circumstances in which the President was said to have signed it in Saudi Arabia in December 2009.
IN THE FEDERAL HIGH COURT OF NIGERIA
HOLDEN AT ABUJA
SUIT NO:…………
BETWEEN:
NATIONAL CONSCIENCE PARTY )….. PLAINTIFF
AND
ATTORNEY-GENERAL OF THE FEDERATION )….. DEFENDANT
ORIGINATING SUMMONS
BROUGHT PURSUANT TO:
1. Order 3 Rules 9 of the Federal High Court
(Civil Procedure) Rules 2009.
2. Inherent Jurisdiction of the Court.
LET the Defendant within thirty days after service of this Summons on them inclusive of the day of such service cause an appearance to be entered for them to this Summons which is issued on the application of the Plaintiff for the determination of the following questions:
QUESTIONS FOR DETERMINATION
1. WHETHER President Umaru Yaradua is competent to assent to bills enacted by the National Assembly while on medical vacation or otherwise unable to discharge the functions of his office.
2. WHETHER President Umaru Yaradua who has been on medical vacation or sick leave for more than 42 calendar days within twelve calendar months ought not be examined by a Medical Board.
RELIEFS SOUGHT BY THE PLAINTIFF
1. A DECLARATION that the Supplementary Appropriation Act 2009 is illegal, unconstitutional, null and void as it was purportedly assented to by President Umaru Musa Yaradua on or about December 29, 2009 while on medical vacation in Saudi Arabia on or about December 2009.
2. AN ORDER OF PERPETUAL INJUNCTION restraining the Federal Government, its officials, agents and privies from implementing the Supplementary Appropriation Act 2009 in any manner whatsoever and howsoever.
3. A DECLARATION that the failure or refusal of the Federal Government of Nigeria Defendant to allow a Medical Board to examine President Yaradua is illegal as it violates paragraph 7, Section 3 of Chapter 7 of the Federal Government Public Service Rules, 2006 as amended.
4. AN ORDER directing the Federal Ministry of Health to set up a Medical Board to examine President Yaradua forthwith.
THIS SUMMONS was taken out by MR. FEMI FALANA of FALANA & FALANA & FALANA’S CHAMBERS of No 22, Mediterranean Street, Imani Estate, Off Shehu Shagari Way, Maitama District, Abuja on behalf of the above –named Plaintiff.
Note: 1. The Defendant may appear hereto by entering appearance personally or by a Legal Practitioner either by handing in the appropriate forms duly completed at the High Court Registry or by sending them to that office by post.
2. If the Defendant does not enter appearance within the time and at the place above mentioned such orders will be made and proceedings may be taken, as the Judge may think just and expedient.
…….…………
Judge
Dated this ……….day of January, 2010
…………………………………………..
FEMI FALANA ESQ.
FALANA & FALANA’S CHAMBERS
PLAINTIFF’S COUNSEL
22, MEDITERRANEAN STREET,
IMANI ESTATE,
OFF SHEHU SHAGARI WAY,
MAITAMA DISTRICT, ABUJA
e-mail: [email protected]
Tel: 017401929
FOR SERVICE ON:
THE DEFENDANT
ATTORNEY-GENERAL OF THE FEDERATION
FEDERAL MINISTRY OF JUSTICE
FEDERAL SECRETARIAT, ABUJA
IN THE FEDERAL HIGH COURT OF NIGERIA
HOLDEN AT ABUJA
SUIT NO:…………
BETWEEN:
NATIONAL CONSCIENCE PARTY )….. PLAINTIFF
AND
ATTORNEY-GENERAL OF THE FEDERATION )….. DEFENDANT
AFFIDAVIT IN SUPPORT
I, SAM OGALA, Male, Nigerian Citizen of No 22 Mediterranean Street, Imani Estate, Off Shehu Shagari Way, Maitama District, Abuja do hereby make oath and state as follows:
1. I am a Legal Practitioner in Falana & Falana’s Chambers, Solicitors to the Plaintiff herein.
2. By virtue of my position I am familiar with the facts of this case.
3. I have the authority and consent Plaintiff to depose to this affidavit.
4. Mr. Yinusa Tanko, the General Secretary of the Plaintiff informed me and I verily believe as follows:
i. That the Plaintiff is a registered political party in Nigeria.
ii. The members of the Plaintiff who are gainfully employed pay their taxes as and when due.
5. On November 23, 2009 the Federal Government announced that President Umaru Musa Yaradua had proceeded on medical vacation.
6. It was further announced by the Federal Government that President Yaradua had been admitted to the King Faisal Specialist Hospital in Jeddah, Saudi Arabia for the treatment of acute pericarditis.
7. On December 29, 2009 the Federal Government announced that President Yaradua had signed the Supplementary Appropriation Bill 2009 on his sick bed in Saudi Arabia.
8. I listened to the interview of President Yaradua on the Hausa Service of the BBC when he said that he would return to Nigeria to resume duty whenever he is discharged from the hospital by his doctors. Attached herewith and marked Exhibit “A” is a report of the interview in the Daily Trust newspaper of Wednesday, January 13, 2010.
9. On or about December 29, 2009 when President Yaradua was alleged to have assented to the Supplementary Bill 2009 he was not on duty and was unable to discharge the functions of his office.
10. The Federal Government has failed to ensure that its fiscal and financial affairs are conducted in a transparent manner.
11. I was in this Honourable Court on Friday, January 22, 2009 when the Honourable Chief Judge delivered judgment in Suit No: FHC/ABJ/CS/754/2009 (Between Honourable Farouk Adamu v. Attorney-General of the Federation).
12. In the said judgment this Honourable Court gave the Executive Council of the Federation 14 days within which to pass a resolution on the health of the President.
13. The order of this Honourbale Court cannot be carried out without a report prepared and submitted to the Executive Council of the Federation by the Medical Board.
14. I make this declaration in good faith.
………………
DEPONENT
SWORN TO at the Federal
High Court Registry, Abuja
This………….day of January, 2010.
BEFORE ME
COMMISSIONER FOR OATHS
IN THE FEDERAL HIGH COURT OF NIGERIA
HOLDEN AT ABUJA
SUIT NO:…………
BETWEEN:
NATIONAL CONSCIENCE PARTY )….. PLAINTIFF
AND
ATTORNEY-GENERAL OF THE FEDERATION )….. DEFENDANT
PLAINTIFF’S WRITTEN ADDRESS IN SUPPORT OF ORIGINATING SUMMONS.
1.00 INTRODUCTION
1.01 This is an Originating Summons brought pursuant to Order 3 Rule 9 of the Federal High Court (Civil Procedure) Rules 2009. By this Originating Summons the Plaintiff seeks the following reliefs:
1. A DECLARATION that the Supplementary Appropriation Act 2009 is illegal, unconstitutional, null and void as it was purportedly assented to by President Umaru Musa Yaradua on or about December 29, 2009 while on medical vacation in Saudi Arabia on or about December 2009.
2. AN ORDER OF PERPETUAL INJUNCTION restraining the Federal Government, its officials, agents and privies from implementing the Supplementary Appropriation Act 2009 in any manner whatsoever and howsoever.
3. A DECLARATION that the failure or refusal of the Federal Government of Nigeria Defendant to allow a Medical Board to examine President Yaradua is illegal as it violates paragraph 7, Section 3 of Chapter 7 of the Federal Government Public Service Rules, 2006 as amended.
4. AN ORDER directing the Federal Ministry of Health to set up a Medical Board to examine President Yaradua forthwith.
1.02 There is a supporting affidavit of 14 paragraphs. The Plaintiff relies on all the averments in the said affidavit and the exhibit attached thereto.
2.00 ISSUES FOR DETERMINATION
2.01 The Plaintiff respectfully submits that the issues for determination in the Originating Summons are two namely:
1. WHETHER President Umaru Yaradua is competent to assent to bills enacted by the National Assembly while on medical vacation or otherwise unable to discharge the functions of his office.
2. WHETHER President Umaru Yaradua who has been on medical vacation or sick leave for more than 42 calendar days within twelve calendar months ought not be examined by a Medical Board.
3.00 ARGUMENTS
3.01 ISSUE ONE: WHETHER President Umaru Yaradua is competent to assent to bills enacted by the National Assembly while on medical vacation or otherwise unable to discharge the functions of his office.
3.02 In the affidavit in support of the Originating Summons the Plaintiff has shown that President Yaradua has been on medical vacation or sick leave since November 23, 2009. In his BBC interview of January 12, 2010 President Yaradua thanked Nigerians for praying for him and confirmed that he is on leave. When asked when he would return to work he stated that it would depend on when he would be discharged by his doctors “to return home to resume duty”.
3.03 According to the Black’s Law’s Dictionary the word “vacation” means:
“A recess or leave of absence, a respite or time of respite from active duty or employment; an intermission or rest period during which activity or work is suspended. It is a period of freedom from duty, or work, but not the end of employment.”
3.04 It is submitted that the President cannot legally perform any official function or discharge the duties of his office while on medical vacation or sick leave. Thus, the assent purportedly given to the Supplementary Appropriation Bill 2009 by President Yaradua when he was on medical vacation or sick leave is illegal, null and void and of no effect whatsoever.
3.05 In Itaye & Ors. v. Ekaidere & Ors. (1978) NSCC 485 the Supreme Court declared that the judgment delivered on August 25, 1975 by the Bendel State High Court was illegal, null and void and set it aside on the ground that it took place during the annual vacation of the Court. According to Obaseki JSC:
“The authors of Vol. 5 Strouds Judicial Dictionary Edition at P. 2921 defined the phrase ‘time of vacation’ of the Courts as follows:
‘Time of vacation’ of the Courts held to mean such time as the Court is not sitting (Walsh v. Grier in Rep 4 Eq 303 Blake 8 lr Rep 505)’
There is no definition of ‘vacation’ in our Rules but there is in the White Book, i.e Supreme Court Practice 1976; therein the definition given in Order 1 Rule 4 reads:
‘Vacation means the interval between the end of any of the sittings mentioned in Order 62 Rule 1 and the beginning of the next sittings’
We are therefore in no doubt that it is the law that the High Court will not normally sit or open during vacation to hear or continue the hearing of cases. While the annual court vacation cannot be described as public holiday, its legal effect on court proceedings is similar.
In the case of Justus Olayemi Ososami v. The Commissioner of Police (1952/1955) of WACA Verity C.J., dealing with the legality of sitting on the public holidays, said at page 24:
‘It has recently been held by this Court that a public holiday is like a Sunday, dies no juridicus, and that no law proceeding, can be held on such a day”.
3.06 In Attorney-General of Bendel State v. Attorney-General of the Federation (1983) 2 NCLR 1 the Supreme Court declared null and void the Allocation of Revenue (Federation Account etc) Act 1, 1981 as it was not passed in accordance with the provisions of Section 54,55 and 58 of the Constitution of the Federal Republic of Nigeria, 1979.
3.07 In the light of the foregoing the purported signing of the Supplementary Appropriation Bill 2009 by the President at the time he was on medical vacation or sick leave is illegal, unconstitutional, null and void. To that extent, the Supplementary Appropriation Act 2009 ought to be set aside without any further ado. Issue one should be resolved in favour of the Plaintiff.
4.00 ISSUE TWO : WHETHER President Umaru Yaradua who has been on medical vacation or sick leave for more than 42 calendar days within twelve calendar months ought not be examined by a Medical Board.
4.01 In this case, it has been shown by the Plaintiff that President Yaradua commenced a medical vacation on November 23, 2009. Since he has exceeded the 42 calendar days allowed within 12 calendar months it is submitted that he ought to submit himself for examination by a Medical Board without any further delay.
4.02 This is in line with Paragraph 070316, Section 3 in Chapter 7 of the Federal Government Public Service Rule 2006 which provides that where an officer has been absent from duty on the ground of ill-health for an aggregate period in excess of 42 calendar months within 12 calendar months he shall be made to appear before a Medical Board with a view to its being ascertained whether he/she should be validated from service.
4.03 On the applicability of the Federal Government Public Service Rules 2006 to elected public officers paragraph 010101 of Chapter 1 thereof provides that:
“In so far as the holders of the offices of:
The President;
The Vice President;
Chief Justice of Nigeria
Justices of the Supreme Court;
President and Justices of the Court of Appeal;
Chief Judge and Judges of the High Court of the Federal Capital Territory;
Grand Kadi and Kadis of the Sharia Court of Appeal of the Federal Capital Territory;
President and Judges of the Customary Court of Appeal of the Federal Capital Territory;
The Chairman and members of the following executive bodies, namely;
i. The Code of Conduct Bureau
ii. The Federal Civil Service Commission;
iii. The Independent National Electoral Commission;
iv. The Federal Character Commission;
v. The Code of Conduct Tribunal;
vi. The Revenue Mobilization, Allocation and Fiscal Commission;
vii. The Police Service Commission; and
viii. The Auditor-General of the Federation; and
And any other similar organs that derive their appointments from the Constitution of the Federal Republic of Nigeria are concerned, these Rules apply only to the extent that they are not inconsistent with the provisions of the Constitution of the Federal Republic of Nigeria in so far as their conditions of service and any other law applicable to these officers are concerned”.
4.04 Since the issue of examination by a Medical Board is not inconsistent with any provision of the Constitution President Yaradua ought to be subjected to a medical examination forthwith. This has become urgent in view of the order made by this Honourable Court in Suit No: FHC/ABJ/CS/754/2009 (Honourable Farouk Adamu & Anor. v. Attorney-General of the Federation) to the effect that the Executive Council of the Federation should convene and pass a resolution on the health of the President pursuant to Section 144(1) of the Constitution of the Federal Republic of Nigeria, 1999.
4.05 It is submitted that unless an examination is conducted by a Medical Board the Executive Council of the Federation is not in a position to pass a resolution of discharging the functions of his office in line with the order of this Honourable Court. Issue two ought to be resolved in favour of the Plaintiff.
5.00 LIST OF AUTHORITIES
1. Itaye & Ors. v. Ekaidere & Ors. (1978) NSCC 485
2. Attorney-General of Bendel State v. Attorney-General of the Federation (1983) 2 NCLR 1
Dated this………….day of January, 2010
…………………………………………..
FEMI FALANA ESQ.
FALANA & FALANA’S CHAMBERS
PLAINTIFF’S COUNSEL
22, MEDITERRANEAN STREET,
IMANI ESTATE,
OFF SHEHU SHAGARI WAY,
MAITAMA DISTRICT, ABUJA
e-mail: [email protected]
Tel: 017401929
FOR SERVICE ON:
THE DEFENDANT
ATTORNEY-GENERAL OF THE FEDERATION
FEDERAL MINISTRY OF JUSTICE
FEDERAL SECRETARIAT,
ABUJA
articleadsbanner
IN THE FEDERAL HIGH COURT OF NIGERIA
HOLDEN AT ABUJA
SUIT NO:…………
BETWEEN:
NATIONAL CONSCIENCE PARTY )….. PLAINTIFF
AND
ATTORNEY-GENERAL OF THE FEDERATION )….. DEFENDANT
ORIGINATING SUMMONS
BROUGHT PURSUANT TO:
1. Order 3 Rules 9 of the Federal High Court
(Civil Procedure) Rules 2009.
2. Inherent Jurisdiction of the Court.
LET the Defendant within thirty days after service of this Summons on them inclusive of the day of such service cause an appearance to be entered for them to this Summons which is issued on the application of the Plaintiff for the determination of the following questions:
QUESTIONS FOR DETERMINATION
1. WHETHER President Umaru Yaradua is competent to assent to bills enacted by the National Assembly while on medical vacation or otherwise unable to discharge the functions of his office.
2. WHETHER President Umaru Yaradua who has been on medical vacation or sick leave for more than 42 calendar days within twelve calendar months ought not be examined by a Medical Board.
RELIEFS SOUGHT BY THE PLAINTIFF
1. A DECLARATION that the Supplementary Appropriation Act 2009 is illegal, unconstitutional, null and void as it was purportedly assented to by President Umaru Musa Yaradua on or about December 29, 2009 while on medical vacation in Saudi Arabia on or about December 2009.
2. AN ORDER OF PERPETUAL INJUNCTION restraining the Federal Government, its officials, agents and privies from implementing the Supplementary Appropriation Act 2009 in any manner whatsoever and howsoever.
3. A DECLARATION that the failure or refusal of the Federal Government of Nigeria Defendant to allow a Medical Board to examine President Yaradua is illegal as it violates paragraph 7, Section 3 of Chapter 7 of the Federal Government Public Service Rules, 2006 as amended.
4. AN ORDER directing the Federal Ministry of Health to set up a Medical Board to examine President Yaradua forthwith.
THIS SUMMONS was taken out by MR. FEMI FALANA of FALANA & FALANA & FALANA’S CHAMBERS of No 22, Mediterranean Street, Imani Estate, Off Shehu Shagari Way, Maitama District, Abuja on behalf of the above –named Plaintiff.
Note: 1. The Defendant may appear hereto by entering appearance personally or by a Legal Practitioner either by handing in the appropriate forms duly completed at the High Court Registry or by sending them to that office by post.
2. If the Defendant does not enter appearance within the time and at the place above mentioned such orders will be made and proceedings may be taken, as the Judge may think just and expedient.
…….…………
Judge
Dated this ……….day of January, 2010
…………………………………………..
FEMI FALANA ESQ.
FALANA & FALANA’S CHAMBERS
PLAINTIFF’S COUNSEL
22, MEDITERRANEAN STREET,
IMANI ESTATE,
OFF SHEHU SHAGARI WAY,
MAITAMA DISTRICT, ABUJA
e-mail: [email protected]
Tel: 017401929
FOR SERVICE ON:
THE DEFENDANT
ATTORNEY-GENERAL OF THE FEDERATION
FEDERAL MINISTRY OF JUSTICE
FEDERAL SECRETARIAT, ABUJA
IN THE FEDERAL HIGH COURT OF NIGERIA
HOLDEN AT ABUJA
SUIT NO:…………
BETWEEN:
NATIONAL CONSCIENCE PARTY )….. PLAINTIFF
AND
ATTORNEY-GENERAL OF THE FEDERATION )….. DEFENDANT
AFFIDAVIT IN SUPPORT
I, SAM OGALA, Male, Nigerian Citizen of No 22 Mediterranean Street, Imani Estate, Off Shehu Shagari Way, Maitama District, Abuja do hereby make oath and state as follows:
1. I am a Legal Practitioner in Falana & Falana’s Chambers, Solicitors to the Plaintiff herein.
2. By virtue of my position I am familiar with the facts of this case.
3. I have the authority and consent Plaintiff to depose to this affidavit.
4. Mr. Yinusa Tanko, the General Secretary of the Plaintiff informed me and I verily believe as follows:
i. That the Plaintiff is a registered political party in Nigeria.
ii. The members of the Plaintiff who are gainfully employed pay their taxes as and when due.
5. On November 23, 2009 the Federal Government announced that President Umaru Musa Yaradua had proceeded on medical vacation.
6. It was further announced by the Federal Government that President Yaradua had been admitted to the King Faisal Specialist Hospital in Jeddah, Saudi Arabia for the treatment of acute pericarditis.
7. On December 29, 2009 the Federal Government announced that President Yaradua had signed the Supplementary Appropriation Bill 2009 on his sick bed in Saudi Arabia.
8. I listened to the interview of President Yaradua on the Hausa Service of the BBC when he said that he would return to Nigeria to resume duty whenever he is discharged from the hospital by his doctors. Attached herewith and marked Exhibit “A” is a report of the interview in the Daily Trust newspaper of Wednesday, January 13, 2010.
9. On or about December 29, 2009 when President Yaradua was alleged to have assented to the Supplementary Bill 2009 he was not on duty and was unable to discharge the functions of his office.
10. The Federal Government has failed to ensure that its fiscal and financial affairs are conducted in a transparent manner.
11. I was in this Honourable Court on Friday, January 22, 2009 when the Honourable Chief Judge delivered judgment in Suit No: FHC/ABJ/CS/754/2009 (Between Honourable Farouk Adamu v. Attorney-General of the Federation).
12. In the said judgment this Honourable Court gave the Executive Council of the Federation 14 days within which to pass a resolution on the health of the President.
13. The order of this Honourbale Court cannot be carried out without a report prepared and submitted to the Executive Council of the Federation by the Medical Board.
14. I make this declaration in good faith.
………………
DEPONENT
SWORN TO at the Federal
High Court Registry, Abuja
This………….day of January, 2010.
BEFORE ME
COMMISSIONER FOR OATHS
IN THE FEDERAL HIGH COURT OF NIGERIA
HOLDEN AT ABUJA
SUIT NO:…………
BETWEEN:
NATIONAL CONSCIENCE PARTY )….. PLAINTIFF
AND
ATTORNEY-GENERAL OF THE FEDERATION )….. DEFENDANT
PLAINTIFF’S WRITTEN ADDRESS IN SUPPORT OF ORIGINATING SUMMONS.
1.00 INTRODUCTION
1.01 This is an Originating Summons brought pursuant to Order 3 Rule 9 of the Federal High Court (Civil Procedure) Rules 2009. By this Originating Summons the Plaintiff seeks the following reliefs:
1. A DECLARATION that the Supplementary Appropriation Act 2009 is illegal, unconstitutional, null and void as it was purportedly assented to by President Umaru Musa Yaradua on or about December 29, 2009 while on medical vacation in Saudi Arabia on or about December 2009.
2. AN ORDER OF PERPETUAL INJUNCTION restraining the Federal Government, its officials, agents and privies from implementing the Supplementary Appropriation Act 2009 in any manner whatsoever and howsoever.
3. A DECLARATION that the failure or refusal of the Federal Government of Nigeria Defendant to allow a Medical Board to examine President Yaradua is illegal as it violates paragraph 7, Section 3 of Chapter 7 of the Federal Government Public Service Rules, 2006 as amended.
4. AN ORDER directing the Federal Ministry of Health to set up a Medical Board to examine President Yaradua forthwith.
1.02 There is a supporting affidavit of 14 paragraphs. The Plaintiff relies on all the averments in the said affidavit and the exhibit attached thereto.
2.00 ISSUES FOR DETERMINATION
2.01 The Plaintiff respectfully submits that the issues for determination in the Originating Summons are two namely:
1. WHETHER President Umaru Yaradua is competent to assent to bills enacted by the National Assembly while on medical vacation or otherwise unable to discharge the functions of his office.
2. WHETHER President Umaru Yaradua who has been on medical vacation or sick leave for more than 42 calendar days within twelve calendar months ought not be examined by a Medical Board.
3.00 ARGUMENTS
3.01 ISSUE ONE: WHETHER President Umaru Yaradua is competent to assent to bills enacted by the National Assembly while on medical vacation or otherwise unable to discharge the functions of his office.
3.02 In the affidavit in support of the Originating Summons the Plaintiff has shown that President Yaradua has been on medical vacation or sick leave since November 23, 2009. In his BBC interview of January 12, 2010 President Yaradua thanked Nigerians for praying for him and confirmed that he is on leave. When asked when he would return to work he stated that it would depend on when he would be discharged by his doctors “to return home to resume duty”.
3.03 According to the Black’s Law’s Dictionary the word “vacation” means:
“A recess or leave of absence, a respite or time of respite from active duty or employment; an intermission or rest period during which activity or work is suspended. It is a period of freedom from duty, or work, but not the end of employment.”
3.04 It is submitted that the President cannot legally perform any official function or discharge the duties of his office while on medical vacation or sick leave. Thus, the assent purportedly given to the Supplementary Appropriation Bill 2009 by President Yaradua when he was on medical vacation or sick leave is illegal, null and void and of no effect whatsoever.
3.05 In Itaye & Ors. v. Ekaidere & Ors. (1978) NSCC 485 the Supreme Court declared that the judgment delivered on August 25, 1975 by the Bendel State High Court was illegal, null and void and set it aside on the ground that it took place during the annual vacation of the Court. According to Obaseki JSC:
“The authors of Vol. 5 Strouds Judicial Dictionary Edition at P. 2921 defined the phrase ‘time of vacation’ of the Courts as follows:
‘Time of vacation’ of the Courts held to mean such time as the Court is not sitting (Walsh v. Grier in Rep 4 Eq 303 Blake 8 lr Rep 505)’
There is no definition of ‘vacation’ in our Rules but there is in the White Book, i.e Supreme Court Practice 1976; therein the definition given in Order 1 Rule 4 reads:
‘Vacation means the interval between the end of any of the sittings mentioned in Order 62 Rule 1 and the beginning of the next sittings’
We are therefore in no doubt that it is the law that the High Court will not normally sit or open during vacation to hear or continue the hearing of cases. While the annual court vacation cannot be described as public holiday, its legal effect on court proceedings is similar.
In the case of Justus Olayemi Ososami v. The Commissioner of Police (1952/1955) of WACA Verity C.J., dealing with the legality of sitting on the public holidays, said at page 24:
‘It has recently been held by this Court that a public holiday is like a Sunday, dies no juridicus, and that no law proceeding, can be held on such a day”.
3.06 In Attorney-General of Bendel State v. Attorney-General of the Federation (1983) 2 NCLR 1 the Supreme Court declared null and void the Allocation of Revenue (Federation Account etc) Act 1, 1981 as it was not passed in accordance with the provisions of Section 54,55 and 58 of the Constitution of the Federal Republic of Nigeria, 1979.
3.07 In the light of the foregoing the purported signing of the Supplementary Appropriation Bill 2009 by the President at the time he was on medical vacation or sick leave is illegal, unconstitutional, null and void. To that extent, the Supplementary Appropriation Act 2009 ought to be set aside without any further ado. Issue one should be resolved in favour of the Plaintiff.
4.00 ISSUE TWO : WHETHER President Umaru Yaradua who has been on medical vacation or sick leave for more than 42 calendar days within twelve calendar months ought not be examined by a Medical Board.
4.01 In this case, it has been shown by the Plaintiff that President Yaradua commenced a medical vacation on November 23, 2009. Since he has exceeded the 42 calendar days allowed within 12 calendar months it is submitted that he ought to submit himself for examination by a Medical Board without any further delay.
4.02 This is in line with Paragraph 070316, Section 3 in Chapter 7 of the Federal Government Public Service Rule 2006 which provides that where an officer has been absent from duty on the ground of ill-health for an aggregate period in excess of 42 calendar months within 12 calendar months he shall be made to appear before a Medical Board with a view to its being ascertained whether he/she should be validated from service.
4.03 On the applicability of the Federal Government Public Service Rules 2006 to elected public officers paragraph 010101 of Chapter 1 thereof provides that:
“In so far as the holders of the offices of:
The President;
The Vice President;
Chief Justice of Nigeria
Justices of the Supreme Court;
President and Justices of the Court of Appeal;
Chief Judge and Judges of the High Court of the Federal Capital Territory;
Grand Kadi and Kadis of the Sharia Court of Appeal of the Federal Capital Territory;
President and Judges of the Customary Court of Appeal of the Federal Capital Territory;
The Chairman and members of the following executive bodies, namely;
i. The Code of Conduct Bureau
ii. The Federal Civil Service Commission;
iii. The Independent National Electoral Commission;
iv. The Federal Character Commission;
v. The Code of Conduct Tribunal;
vi. The Revenue Mobilization, Allocation and Fiscal Commission;
vii. The Police Service Commission; and
viii. The Auditor-General of the Federation; and
And any other similar organs that derive their appointments from the Constitution of the Federal Republic of Nigeria are concerned, these Rules apply only to the extent that they are not inconsistent with the provisions of the Constitution of the Federal Republic of Nigeria in so far as their conditions of service and any other law applicable to these officers are concerned”.
4.04 Since the issue of examination by a Medical Board is not inconsistent with any provision of the Constitution President Yaradua ought to be subjected to a medical examination forthwith. This has become urgent in view of the order made by this Honourable Court in Suit No: FHC/ABJ/CS/754/2009 (Honourable Farouk Adamu & Anor. v. Attorney-General of the Federation) to the effect that the Executive Council of the Federation should convene and pass a resolution on the health of the President pursuant to Section 144(1) of the Constitution of the Federal Republic of Nigeria, 1999.
4.05 It is submitted that unless an examination is conducted by a Medical Board the Executive Council of the Federation is not in a position to pass a resolution of discharging the functions of his office in line with the order of this Honourable Court. Issue two ought to be resolved in favour of the Plaintiff.
5.00 LIST OF AUTHORITIES
1. Itaye & Ors. v. Ekaidere & Ors. (1978) NSCC 485
2. Attorney-General of Bendel State v. Attorney-General of the Federation (1983) 2 NCLR 1
Dated this………….day of January, 2010
…………………………………………..
FEMI FALANA ESQ.
FALANA & FALANA’S CHAMBERS
PLAINTIFF’S COUNSEL
22, MEDITERRANEAN STREET,
IMANI ESTATE,
OFF SHEHU SHAGARI WAY,
MAITAMA DISTRICT, ABUJA
e-mail: [email protected]
Tel: 017401929
FOR SERVICE ON:
THE DEFENDANT
ATTORNEY-GENERAL OF THE FEDERATION
FEDERAL MINISTRY OF JUSTICE
FEDERAL SECRETARIAT,
ABUJA
articleadsbanner
googletag.cmd.push(function() { googletag.display('comments'); });
googletag.cmd.push(function() { googletag.display('content1'); });
googletag.cmd.push(function() { googletag.display('content2'); });